Digital Commons Network^™

How Can I Be A Party To A Contract And Yet Lack Standing To Sue Another Party For Breach?, Daniel S. Kleinberger

Faculty Scholarship

The distinction between direct and derivative claims follows necessarily from the concept of a legal person being separate and distinct from its owners, raises and resolves a question of standing, has serious practical consequences in litigation, and is central to the governance of any business entity. In a closely held business, the distinction usually protects the deal the owners have made for themselves. On some occasions, however, the distinction helps shelter a miscreant majority owner who has managed to harm a fellow owner indirectly.

This column will briefly describe the three approaches to the direct-derivative distinction found in the case …

The Jury And Empire: The Insular Cases And The Anti-Jury Movement In The Gilded Age And Progressive Era, Andrew Kent

Faculty Scholarship

This Article argues that there was an important causal link, to date unrecognized, between the widespread dissatisfaction with the jury in the United States during the Gilded Age and Progressive era among many elite lawyers and judges and choices by U.S. policymakers and jurists about colonial governance in Puerto Rico and the Philippines. The story starts with the Insular Cases-landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to "incorporate" the territories into the …

Execution Methods In A Nutshell, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Opportunity Makes A Thief: Corporate Opportunities As Legal Transplant And Convergence In Corporate Law, Martin Gelter, Geneviève Helleringer

Faculty Scholarship

The paper surveys the corporate opportunities doctrine in four jurisdictions: the US, the UK, Germany, and France. Our analysis enables us to trace the development of the doctrine, exposing the way in which certain models of dealing with a particular issue have arisen, and how these models have then spread. Fiduciary duties are often today held out as typical instruments of shareholder protection in the US and the UK, both of which are often held out as model jurisdictions in corporate governance internationally. However, fiduciary duties in these two jurisdictions often operate in strikingly different ways. While the US relies …

Out Of Thin Air: Trade Secrets, Cybersecurity, And The Wrongful Acquisition Tort, Sharon Sandeen

Faculty Scholarship

The analysis undertaken in this chapter was prompted by two puzzles. First, since U.S. trade secret law was developed based upon the breach of confidence law of England, and the law of England does not recognize an acquisition by improper means theory of recovery except in rare and nascent circumstances, how and why did such a theory develop in the United States? Second, to the extent the acquisition by improper means prong of U.S. trade secret law (unlike its counterpart in England) is disconnected from a duty of confidence and should be thought of as a separate tort, what are …

Independence Is The New Health, Laura D. Hermer

Faculty Scholarship

Medicaid plays key roles in supporting our nation’s health. Under the Affordable Care Act, Medicaid took an even more central position in public health endeavors by extending coverage in all interested states to millions of adults who typically fell through the health care cracks. Nevertheless, the Trump administration is now undoing these gains by actively encouraging states to curtail access to Medicaid in key respects while using the rhetoric of health.

This article examines Trump administration efforts in two contexts: (1) state § 1115 waiver applications seeking to better align their Medicaid programs with cash welfare and food stamp programs, …

Sarah C. Haan, Comment On Whistling Loud And Clear: Applying Chevron To Subsection 21f Of Dodd-Frank, Sarah Haan

Faculty Scholarship

No abstract provided.

The "Guarantee" Clause, Ryan Williams

Faculty Scholarship

No abstract provided.

Propping Up Corporate Crime With Corporate Character, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Constitutive Compliance, Edward Janger

Faculty Scholarship

No abstract provided.

The Once And (Maybe) Future Klein Principle, William Araiza

Faculty Scholarship

No abstract provided.

Is The President A Traitor? A Legal Analysis, Noah Kupferberg

Faculty Scholarship

No abstract provided.

Applying Daubert To Flaubert: Standards For Admissibility Of Testimony Of Writing Experts, Heidi K. Brown

Faculty Scholarship

No abstract provided.

Prediction, Persuasion, And The Jurisprudence Of Behaviorism, Frank Pasquale, Glyn Cashwell

Faculty Scholarship

No abstract provided.

International Legal Education And Specialist Certification, Diane Penneys Edelman, Marissa Moran, Richard Peltz-Steele

Faculty Scholarship

No abstract provided.

The United States, Mexico, And The War On Drugs In The Trump Administration, James M. Cooper

Faculty Scholarship

This Article examines the war on drugs as persecuted by the United States and how it has been exported to Mexico. It also explores the increased efforts in the drugs war that the Trump administration, through the U.S. Department of Justice, is pursuing at a domestic level. Part I of this Article provides an outline of the dynamics in the quickly evolving and highly tense relationship between the United States and Mexico. Part II of this Article details the historical background of the U.S.-Mexico border region and demonstrates that the border has long been a contested site. Part III provides …

Beyond Strict Scrutiny: Forbidden Purpose And The "Civil Commitment" Power, Eric S. Janus

Faculty Scholarship

Sex offender civil commitment (SOCC) is a massive deprivation of liberty as severe as penal incarceration. Because it eschews most of the "great safeguards" constraining the criminal power, SOCC demands careful constitutional scrutiny. Although the Supreme Court has clearly applied heightened scrutiny in judging civil commitment schemes, it has never actually specified where on the scrutiny spectrum its analysis falls. This article argues that standard three-tier scrutiny analysis is not the most coherent way to understand the Supreme Court’s civil commitment jurisprudence. Rather than a harm-balancing judgment typical of three-tier scrutiny, the Court’s civil commitment cases are best understood as …

School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert

Faculty Scholarship

More than ten years have passed since the United States Supreme Court last addressed school desegregation. In its abbreviated tenure in the decades following Brown v. Board of Education, school desegregation was successful in many respects. Longstanding policies of state-sponsored educational apartheid eventually ended. A great many school buildings became more diverse. Countless students of color gained access to improved academic opportunities and better life outcomes. A consensus formed around the positive impacts that desegregation could have on both students of color and white students. When courts retreated from upholding desegregation policies, many communities developed their own voluntary plans, some …

Predicting Violent Behavior: What Can Neuroscience Add?, David L. Faigman

Faculty Scholarship

No abstract provided.

The Empirical Turn In Family Law, Clare Huntington

Faculty Scholarship

No abstract provided.

Finding Franklin, Marc Arkin

Faculty Scholarship

No abstract provided.

The Political Morality Of Convergence In Contract, Aditi Bagchi

Faculty Scholarship

One of the most interesting recent developments in contract law has been an academic and political effort to integrate private law. The proposed Common European Sales Law was ultimately withdrawn, and a series of setbacks, including the British referendum to exit the EU, has recast the politics of convergence. But it remains an objective for many European scholars. This essay considers the wisdom of convergence on a single law of transactions from the perspective of philosophical contract theory. The essay proceeds by disaggregating the rights at stake in contract law. It characterises the formal right to contract and describes its …

No Longer Peas In A Pod: More Implications Of The Divorce Of Minnesota Corporate And Llc Law, Daniel S. Kleinberger

Faculty Scholarship

Twenty-five years ago, when an MSBA task force drafted Minnesota’s first limited liability company(LLC) statute, the drafters copied chapter 302A, the corporate statute, to the maximum extent possible. Labels were changed—e.g., member instead of shareholder; board of governors instead of board of directors— and substance was modified to the extent necessary to comply with the then-applicable tax classification regulations. But otherwise, the task was an exercise in replication.

The approach was far out of the mainstream. Almost everywhere else LLC statutes were being derived from partnership law. The task force’s rationale for going rogue was straightforward. At the time, most …

Can Restitution Save Fragile Spiderless Networks?, Ariel Porat, Robert E. Scott

Faculty Scholarship

This Article examines the dramatic increase in business networks in recent decades and considers whether the law can play a useful role in supporting the efficient functioning of these inter-firm relationships for coordination and cooperation. Repeat play, reputational sanctions, and norms of trust and reciprocity are the common explanations for the flourishing of networks in many industries and places. But the evidence also shows that a certain class of networks often fails to survive or function effectively and beneficial cooperation among these network members is impaired. These fragile networks develop organically without a controlling party or hierarchy at the center …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Scholarship

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the “ripeness” rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaintiffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first — the so-called “compensation prong” (as distinguished from a separate “takings prong”). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a “prudential” rule rather than …

Mandatory Quotas For Women On Boards Of Directors In The European Union: Harmful To Or Good For Company Performance?, Monika Leszczynska

Faculty Scholarship

Impact assessments are an important component of a better regulation programme—an initiative of the European Commission launched to improve the quality and transparency of the EU (European Union) law-making process. In the current article, I take a closer look at the Impact Assessment (IA) issued by the European Commission together with a Directive proposing a 40% obligatory female representation on the boards of directors in European public companies. In the IA, the Commission defined an improvement of corporate governance as one of the objectives to be achieved by the Directive. The Commission claimed that the more gender-diverse a corporate board …

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Faculty Scholarship

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a …

Surprising Originalism, Lawrence B. Solum

Faculty Scholarship

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks …

Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta

Faculty Scholarship

The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The participants were: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. The moderator was …

Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …