Digital Commons Network^™

From Monopolists To Markets?: A Political Economy Of Issuer Choice In International Securities Regulation, Frederick Tung

Faculty Scholarship

It is ironic that during a time of corporate scandal and regulatory soul searching, one of the most spirited debates among corporate and securities law scholars has focused on reform proposals for international securities regulation that essentially call for corporate self-regulation. Scholars have called for international regulatory competition in securities law, arguing that each issuer of securities should be able to pick its own securities regulatory regime. While these "issuer choice" proponents argue for a diversity of and competition among securities laws of the various nations, their proposals also ironically depend on uniformity - or at least international consensus - …

Habermas's Discourse Theory Of Law And Democracy, Hugh Baxter

Faculty Scholarship

In his 1992 book, "Between Facts and Norms," Jürgen Habermas develops a two-part theory of law and democracy. This article examines the first part – the “reconstructive” part – in which Habermas seeks the most basic principles that justify modern legal and political orders, as well as the institutions and practices through which those principles are realized. Habermas's aims in this part of his theory are ambitious. His largest goal is to reconcile classic tensions in political theory, most notably the tension between basic rights and democracy – or, in terms of American legal theory, the “countermajoritarian difficulty.” He argues …

Introduction: Keeping Secrets, Dale Carpenter

Faculty Journal Articles and Book Chapters

It has become a commonplace to say that September 11 changed everything. What the writer or speaker usually means by this is that Americans have re-calibrated their views on the relative importance of individual civil liberties and the common good. Like many other national traumas, September 11 may in historical hindsight be seen as a jolt that perhaps necessarily-but at any rate, temporarily-induced a retrenchment on rights.

But if the September-11-changed-everything idea overstates the significance of the event, it also understates the extent to which, at least in the area of privacy, some re-calibration of the balance between liberty and …

Delegation And Original Meaning, Gary S. Lawson

Faculty Scholarship

The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study. Concurring opinions by Justices Thomas and Stevens in the American Trucking case raise anew the question whether the nondelegation doctrine has any grounding in the Constitution's text and structure. The answer is "yes." The nondelegation doctrine flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers. The correct formulation of the Constitution's nondelegation doctrine was outlined by Chief Justice Marshall …

Dimensions Of Negligence In Criminal And Tort Law, Kenneth F. Simons

Faculty Scholarship

This article explores different dimensions of the concept of negligence in the law. The first sections focus on the fundamental distinction between conduct negligence (unreasonable creation of a risk of harm), a conception that dominates tort law; and cognitive negligence (unreasonable failure to be aware of a risk, either through inadvertence or mistake), a conception that is much more important in criminal law. The last major section identifies five significant institutional functions served by a legal negligence standard: expressing a legal norm in the form of a standard rather than a rule; personifying fault; empowering the trier of fact to …

Managerial Power And Rent Extraction In The Design Of Executive Compensation, Lucian Arye Bebchuk, Jesse M. Fried, David I. Walker

Faculty Scholarship

This paper develops an account of the role and significance of managerial power and rent extraction inexecutive compensation. Under the optimal contracting approach to executive compensation, which has dominated academic research on the subject, pay arrangements are set by a board of directors that aims to maximize shareholder value. In contrast, the managerial power approach suggests that boards do not operate at arm's length in devising executive compensation arrangements; rather, executives have power to influence their own pay, and they use that power to extract rents. Furthermore, the desire to camouflage rentextraction might lead to the use of inefficient pay …

Adventures With Lori Andrews, George J. Annas

Faculty Scholarship

The subtitle of Lori Andrew's autobiographical The Clone Age is "Adventures in the New World of Reproductive Technology."' This may seem an odd characterization of the life of a legal scholar, but adventures is just right to chronicle the life of this academic legal activist. Lori's legal adventures began at Yale Law School and continue in Chicago, where she was a researcher at the American Bar Association for over a decade and is now professor of law at Chicago-Kent College of Law and Director of the Institute for Science, Law and Technology. Her adventures in health law can also be …

The Magic Lantern Revealed: A Report Of The Fbi's New Key Logging Trojan And Analysis Of Its Possible Treatment In A Dynamic Legal Landscape, Woodrow Hartzog

Faculty Scholarship

Magic Lantern presents several difficult legal questions that are left unanswered due to new or non-existent statutes and case law directly pertaining to the unique situation that Magic Lantern creates. ²⁵ The first concern is statutory. It is unclear what laws, if any, will apply when Magic Lantern is put into use.²⁶ The recent terrorist attacks in the United States have brought the need for information as a matter of national security to the forefront. Congress recently passed legislation (i.e. USA PATRIOT Act) ²⁷ that dramatically modifies current surveillance law, thus further complicating the untested waters of a …

Comments On Open Source Genomics, Michael J. Meurer

Faculty Scholarship

I am going to make a few comments in the spirit of those made by Josh. I think the topic of Dan's paper is very interesting. It covers a lot of ground, and I do not have time to talk about more than a single issue. Josh's began discussing the similarity between academic research and open source, and then analyzed GPL. I want to go back to the first issue Josh raised and argue that, unlike Josh, I see some fairly significant differences between open source software and genomics. I want to talk about the cooperative ethic in the open …

Lawyers, Civil Disobedience, And Equality In The Twenty-First Century: Lessons From Two American Heroes Symposium: Of John Brown: Lawyers, The Law, And Civil Disobedience, U. W. Clemon, Bryan K. Fair

Articles

No abstract provided.

And The Walls Came Tumbling Down: Sharing Grand Jury Information With The Intelligence Community Under The Usa Patriot Act, Jennifer M. Collins

Faculty Journal Articles and Book Chapters

No abstract provided.

Lurking In The Shadows: The Hidden Issues Of The Securities And Exchange Commission's Regulation Fd, Marc I. Steinberg, Jason B. Meyers

Faculty Journal Articles and Book Chapters

This Article explores key issues likely to arise under Regulation FD, including some that the Commission may not have envisioned in promulgating the Regulation. The first part begins by reviewing the scope of the Regulation in the ensuing discussion. In Part II, the Article addresses how well the Regulation fits with the policies underlying the federal securities laws. Focusing on issues related to an issuer's duty to disclose, the efficiency of capital markets, and the Commission's predominant emphasis on fairness in promulgating the Regulation, the authors note that in many ways Regulation FD provides an awkward fit with the general …

After Be & K: The Difficult Constitutional Question Of Defining The First Amendment Right To Petition Courts, Carol Rice Andrews

Articles

No abstract provided.

Common Law And Statutory Restrictions On Access: Contract, Trespass, And The Computer Fraud And Abuse Act, Maureen A. O'Rourke

Faculty Scholarship

Is copyright law relevant to the terms of access to information? Certainly, few would seriously contend that breaking into a locked filing cabinet to obtain access to a manuscript is not sanctionable, even if the intruder had some purpose that copyright law would applaud with respect to the information contained in the manuscript itself. Many instinctively believe that one must pay the asking price and respect the terms that accompany a copyrighted work or face the consequences under some set of laws like copyrights or contracts. In short, society likely generally believes that market forces regulate the conditions of access …

Ndsu Magazine : Fall 2002

NDSU Magazine

No abstract provided.

Osad Moralny A Teoria Prawa (Moral Judgment And Legal Theory), David B. Lyons

Faculty Scholarship

My theme is the role of moral judgment in legal theory. My thesis is that moral judgment provides an important constraint on various aspects of legal theory. I shall illustrate that thesis by discussing, first, the so-called "separation" of law and morals (Section I); secondly, legal interpretation (Section II); and thirdly, the "rule of law" ideal (Section III).

The Managing Lawmaker In Cyberspace: A Power Model, Tamar Frankel

Faculty Scholarship

This Article is about power - the ability to gain obedience whether by captivating followers, persuading skeptics or awarding and withdrawing economic benefits. The purpose of this Article is to analyze how the power of the Internet Corporation for Names and Numbers ("ICANN") was created, augmented, strengthened and reined in. Many controversies surround ICANN, including the very foundation of its existence - the need for a single "root" in the Internet naming infrastructure - its organizational form and accountability, and the utterances, policies and actions of its management.

The purpose of this Article is not to argue and prescribe but …

Regulation And Investors' Trust In The Securities Market, Tamar Frankel

Faculty Scholarship

The subject of investor confidence in the securities markets has received wide attention recently as details of fraud and avarice continue to emerge. Investors' trust in the securities markets is important for the reasons discussed in Professor Stout's marvelous paper.¹ This Comment focuses on the relationship between investors' trust and government regulation of the markets. By regulation I mean congressional legislation and actions by federal agencies. I exclude the courts mainly because their lawmaking is not primarily policy-based, and my aim is to sound the alarm for legislative and regulatory policy-directed actions. Many an economist and academic have argued …

Not In Our World: A Perspective Of Community Organizing Against Hate, Bill Wassmuth, M J. Bryant

Journal of Hate Studies

On Sept. 11, 2001, Americans were brutalized by an undeniable statement of hatred that made an indelible impression on not just its thousands of victims, but on the consciousness of the whole world. The terrorist attacks that toppled the twin towers of the World Trade Center in New York City, and destroyed part of the Pentagon Building in Washington D.C., defiled symbols of American enterprise and military might, and robbed us of any complacency we felt as a nation immune to attack.

The Vindication Of Hate Violence Victims Via Criminal And Civil Adjudications, Brian Levin

Journal of Hate Studies

Attempts by victims of hate violence to vindicate their claims through civil courts have a long history in the United States that predates the Civil War. The most notorious Supreme Court decision in American history commenced auspiciously in a St. Louis, Missouri county circuit court in two racially based tort actions on April 6, 1846. Slaves Dred and Harriet Scott petitioned Judge John Crum for permission to sue their owner and for “reasonable liberty” to effectively pursue their case. In an action remarkable for its time, Judge Crum granted the motions and stipulated that neither slave be removed from the …

Polystyrene/Graphite Nanocomposites: Effect On Thermal Stability, Fawn Marie Uhl, Charles A. Wilkie

Chemistry Faculty Research and Publications

Nanocomposites consisting of polymer and clay have been shown to exhibit a significant reduction in flammability and an increase in mechanical properties. This work examines the effect of thermal stability and mechanical properties of nanocomposites prepared from potassium graphite and styrene. Synthesis of nanocomposites was accomplished by using potassium graphite (KC₈) as the initiator in the polymerization of styrene. A slight increase in thermal stability is observed but mechanical properties are decreased.

Preparation Of Pvc- Clay Nanocomposites By Solution Blending, Dongyan Wang, Charles A. Wilkie

Chemistry Faculty Research and Publications

PVC-clay nanocomposites have been prepared by solution blending of the polymer with both sodium montmorillonite and an organically modified clay. The nanocomposites have been characterized by X-ray diffraction and transmission electron microscopy; in all cases the materials are best described as mixed immiscible—intercalated nanocomposites, Thermogravimetric analysis shows that, in some cases, the onset temperature of the degradation is enhanced, and the fraction of nonvolatile residue is always decreased. This decrease in the amount of char indicates a significant change in the degradation pathway of the polymer, caused by the presence of the clay. For some preparations, the tensile strength and …

Preparing For The Clothed Public Square: Teaching About Religion, Civic Education, And The Constitution, Jay D. Wexler

Faculty Scholarship

Although law and religion scholars have long argued about whether American culture marginalizes religious belief, many important indicators suggest that religion indeed plays a prominent role in contemporary American life. America is an extremely religious nation. Polls consistently show that about ninety percent of Americans continue to believe in God, and both church attendance and membership remain at high levels. This religiosity, moreover, spills out into the public square. A great many Americans rely on religious reasons when thinking and talking about public issues. Ninety percent of the members of Congress, by one report, consult their religious beliefs when voting …

Russian Compliance With Articles Five & Six Of The European Convention Of Human Rights As A Barometer Of Legal Reform & Human Rights In Russia, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This Note examines two of Russia's obligations under the European Convention on Human Rights (ECHR): the Article 5 right to liberty and security, and the Article 6 right to a fair trial to gauge Russian compliance with European human rights norms. These articles lie at the heart of systematic legal reform in the Russian Federation. This Note defends the thesis that the agonizingly slow progress of judicial reform and the advancement of human rights in Russia is a function of the inevitable lag of conceptual norms behind institutional reform. Part I explores the weak place of the rule of law …

Patent Settlement Agreements: Preliminary Views, Joseph F. Brodley, Maureen A. O'Rourke

Faculty Scholarship

Settlements between S competitors in patent cases raise important and sensitive antitrust issues. Patent settlement agreements may create or maintain a monopoly in technology or innovation markets and may also effectuate a monopoly or cartel in related goods markets. Indeed, absent the patent rights, certain terms of patent settlement agreements may be per se antitrust violations. Further, anticompetitive patent settlements-unlike most antitrust conspiracies-are enforceable in court, providing the parties with an effective means of preventing the cheating that is the bane of cartels. Thus, the antitrust risk that a settlement agreement may operate as a disguised cartel has long been …

Federalism, Democratization, And The Rule Of Law In Russia, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Combining the approaches of three fields of scholarship - political science, law and Russian area studies - the author of this 2002 Oxford University Press book explores the foundations and future of the Russian Federation. Russia's political elite have struggled to build an extraordinarily complex federal system, one that incorporates eighty-nine different units and scores of different ethnic groups, which sometimes harbor long histories of resentment against Russian imperial and Soviet legacies. This book examines the public debates, official documents and political deals that built Russia's federal house on very unsteady foundations, often out of the ideological, conceptual and physical …

Putin's Federal Reforms: A Legal-Institutional Perspective, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

The first year of Putin's presidency proved to be the most concerted and fundamental shake-up of federal relations in Russia since the 1993 Constitution. This paper examines this transition in detail, focusing attention on the legal-institutional aspects of this dramatic shift in policy. First, the end of Yeltsin's 'parade' - of sovereignties, bilateral treaties and special agreements - is examined. Next, attention is paid to Putin's early decrees: 'positive' decrees creating the seven federal districts and federal envoys, and 'negative' decrees that annulled regional laws and legal acts judged by him not to be in conformity with federal law. Finally, …

Bicentennial Man - The New Millennium Assimilationism And The Foreigner Among Us, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.

Excuse And Justification In The Law Of Fair Use: Commodification And Market Perspectives, Wendy J. Gordon

Faculty Scholarship

Over twenty years ago, the Journal of the Copyright Society of the U.S.A. reprinted my article, "Fair Use as Market Failure" (82 Columbia Law Review 1600 (1982), available at: https://ssrn.com/abstract=3577724. That 1982 piece suggested that an underlying pattern governs the protean forms of "fair use", and I employed the notion of market failure to reveal and explain how the pattern functioned. Since then, some misunderstandings of my argument have arisen.

I am pleased to publish in this, the Fiftieth Anniversary issue of the Journal of the Copyright Society, a clarification – and partial amendment – of my position. As …

Framing The Public Square, Jay D. Wexler

Faculty Scholarship

For at least the past decade or so, law-and-religion scholars have vigorously debated the issue of whether it is proper for American citizens to rely on religious reasons when talking about and reaching decisions on issues of public concern, including law. Those who argue that religion should be kept out of such decisionmaking and discourse contend that reliance on religious reasons: (1) violates principles of separation of church and state, (2) unfairly excludes nonbelievers from meaningful participation in public discourse, (3) creates unacceptable divisiveness, and (4) risks the domination of Christian beliefs in public discourse to the detriment of religious …