Digital Commons Network^™

Choice Of Law And Employee Restrictive Covenants: An American Perspective, Gillian Lester, Elizabeth Ryan

Faculty Scholarship

Employees are increasingly mobile across state lines. This is partly the result of technological change facilitating individual movement and communication, but also a result of corresponding changes in corporate organization to establish offices and interests in multiple jurisdictions. With these developments, there has been a rise in litigation surrounding the enforcement of employee covenants not to compete when the parties or issues involved have connections to multiple jurisdictions. The emerging body of law intrigues and confounds lawyers and commentators because of its complexity and unpredictability. This essay is an effort to describe recent legal developments in the United States, situating …

Osgoode Syllabus Of Courses And Seminars: 2010 - 2011, Office Of Student Services

Syllabi

No abstract provided.

Let The Securities And Exchange Commission Outsource Enforcement By Litigation: A Proposal, Tamar Frankel

Faculty Scholarship

The stories of Stanford's suspected Ponzi scheme, and Madoff s proven scheme, as well as the Securities and Exchange Commission's lenient settlements with very large suspected violators, and its focus on the numerous, small accused, have raised questions about the Commission's enforcement resources. This Article suggests that the Commission outsource civil cases against very large defendants when the examination of the defendant finds signs of wrongdoing under the securities acts. The Commission already outsources two types of legal services and the United States government practices extensive outsourcing. This article suggests that with appropriate limitations and controls outsourcing of enforcement litigation …

On The Rhetorical Invention Of A Failed Project: A Critical Response To Skeel's Assessment Of Christian Legal Scholarship, David S. Caudill

Faculty Publications

No abstract provided.

The Supreme Court's Increased Attention To The Law Of Lawyering: Mere Coincidence Or Something More? , Renee Newman Knake

American University Law Review

The United States Supreme Court considered seventeen cases raising issues related to the role of attorneys and the practice of law during the 2009 Term. This body of cases represents a substantial departure from dockets in recent history, where typically the Court took up less than a handful of cases involving regulation of the legal profession. While some might consider the increased number of cases addressing the law of lawyering a mere coincidence, this article contends that something more is occurring. The Court’s decision to devote so much of its limited time to these matters is noteworthy not only for …

A Missed Opportunity: Health Care Reform, Rhetoric, Ethics And Economics At The End Of Life, Joshua E. Perry

MC Law Review

Symposium

Transactional Planning And Advice, Linda Galler, Michael B. Lang

Hofstra Law Faculty Scholarship

The point of conflicts of interest rules is to protect clients' reasonable expectations that legal advisors and representatives will act on their behalf free from compromising loyalties and influences. Thus, the basic principle embodied in the Model Rules' conflict provisions is that a lawyer may not represent anyone where the interests of another person - a current or former client, perhaps, or the lawyer's own interests - could impair the lawyer's ability to zealously and impartially act on a client's behalf. Resolution of a conflict might entail declining to undertake representation, withdrawing from an existing representation, or obtaining a Client …

Circuit Breakers And The Mission Of Stock Market Stability, J. Scott Colesanti

Hofstra Law Faculty Scholarship

Between the morning of October 19, 1987 and the closing bell of October 20, 1987, the Dow Jones Industrial Average fell 25%. Shunning the drastic remedy of closing the markets (akin to FDR’s “bank holiday” of March 1933), the regulatory response ultimately took the form of ‘circuit breakers,’ crudely fashioned, limited trading halts that some critics described as “throwing sand in the gears.”

The calibration of the decline prompting a trading halt remained constant from the time of the implementation of the circuit breaker in April 1989 until April 1998. At that time, the trigger point was changed from an …

Leaks, Lies, And The Moonlight: Fiduciary Duties Of Associates To Their Law Firms, Susan Saab Fortney

Hofstra Law Faculty Scholarship

This symposium article examines the fiduciary duties of law firm associates. After applying agency principles to the firm-associate relationship, the article analyzes specific duties and discusses cases involving alleged breaches of fiduciary duties by associates. It explores associate duties in the current legal, organizational, and socio-technological environment in which associates practice. The article closes with observations on the importance of firm principals considering the effect of firm culture on associate attitudes and conduct.

The Experiences Of Incarceration On Indigenous Parents And Primary Care-Givers Of Juvenile Detainees, Simone Reid

Theses : Honours

Incarceration impacts on a number of people, not just the person sentenced. It has been suggested that the family of the prisoner can experience the prison sentence just as much, albeit differently, as the prisoner themself. Families remain important, as those prisoners who return to strong family networks are at less risk of recidivism. National research has been used to inform policy-makers, but every State has unique characteristics. The overrepresentation of Torres Strait Islander and Aboriginal juveniles in juvenile detention, especially in Western Australia, has been well-documented. However, research examining the experiences of incarceration on family members is limited. This …

The New International Arbitration (Amendment) Bill – A Broader Framework For Interim Relief Or Just A Tune-Up?, Mahdev Mohan, Eu-Yen Tay

Research Collection Yong Pung How School Of Law

Singapore aspires to retain its place as a trusted arbitration hub for commercial parties all around the world. The recently proposed amendments to the International Arbitration Act seek to bring Singapore closer to meeting international standards in relation to the arbitration procedure. While the initiative should be applauded, those amendments relating to interim measures fall somewhat short of expectations of a new, broader framework of curial assistance in aid of arbitration. This article explores the uncertainties that could arise from the proposed amendments, either because of phrasing or of an omission to embrace the Model Law. It is hoped that …

The Quasi-Class Action Method Of Managing Multi-District Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller

Vanderbilt Law Review

This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys' compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees, and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily …

Evaluating Norms: An Empirical Analysis Of The Relationship Between Norm-Content, Operator, And Charitable Behavior, Brian Sheppard, Fiery Cushman

Vanderbilt Law Review

There are several kinds of norms, and this variety can lead to spirited debate about the best norm to employ for the regulation of a particular activity. Should the norm be mandatory or aspirational? A rule or a standard? One important area in which norm-choice has come to the fore is the American Bar Association's oversight of pro bono work. Currently, the organization utilizes an aspirational norm recommending that lawyers perform at least fifty pro bono hours annually, but there is pressure to adopt some sort of mandatory rubric. Inspired by this debate, we have designed and implemented an experiment …

Government Speech 2.0, Helen Norton, Danielle K. Citron

Faculty Scholarship

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these …

Conditional Spending And Compulsory Maternity, Nicole Huberfeld

Faculty Scholarship

More than 45 million Americans are uninsured, and even more are seeking government assistance accessing healthcare, rendering the conditions placed on government spending a timely and significant issue. Federal funding often demands a sacrifice of the recipient, meaning that Congress can condition the receipt of federal funds on certain statutory prerequisites. Given the demand to expand the nation's major public healthcare programs, it is important to reconsider the Supreme Court's Spending Clause jurisprudence. The Court's major decisions regarding conditional spending have facilitated a disconnect that analytically separates the individual from the conditional spending program, a divide that has allowed Congress …

Report And Recommendations On The Status Of Clinical Faculty In The Legal Academy, Katherine R. Kruse

Scholarly Works

"Report and Recommendations on the Status of Clinical Faculty in the Legal Academy" identifies and evaluates the most appropriate modes for clinical faculty appointments in the legal academy, concluding that legal education is best served when full-time clinical faculty are appointed predominantly on a unitary tenure-track model. Drawing on data collected through a survey of clinical program directors and faculty, the Report analyzes the five most identifiable clinical faculty models: unitary tenure track; clinical tenure track; long-term contract; short-term contract; and clinical fellowships. It determines that, despite great strides in the growth of clinical legal education in the last 30 …

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, Jean R. Sternlight

Scholarly Works

This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources. This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication …

What We Don't Know Can Hurt Us: The Need For Empirical Research In Regulating Lawyers And Legal Services In The Global Economy, Carole Silver

Articles by Maurer Faculty

No abstract provided.

Special Introduction: October 2010, Lauren K. Robel

Articles by Maurer Faculty

No abstract provided.

Globetrotting Law Firms, Jayanth K. Krishnan

Articles by Maurer Faculty

Despite the current financial crisis, prestigious American and British law firms continue to maintain a presence in Continental Europe, Latin America, and China. Yet, in one economically fertile, democratic country - India - such global legal powerhouses are scarcely found. This study seeks to understand empirically why there is a general absence of these and other foreign law firms practicing in India. Based on fieldwork and compiled interview data of lawyers, judges, government officials, activists, and clients from India, the United States, and Britain - the latter two being the foreign countries most interested in gaining access to the Indian …

The Joint Law Venture: A Pilot Study, Jayanth K. Krishnan

Articles by Maurer Faculty

This pilot study evaluates the effectiveness of law firms entering into joint ventures, an increasingly eyed business model particularly by American and British lawyers seeking to expand into promising financial markets. One country at the center of the joint venture experiment has been Singapore. With the strong encouragement of the Singaporean government (which has long embraced foreign investment), various elite law firms from the United States and Britain have been partnering with domestic Singaporean law firms for over the past decade. Because these foreign firms were traditionally barred from practicing Singaporean law on their own, the ‘joint law venture,’ or …

Charity And Information: Correcting The Failure Of A Disjunctive Social Norm, Brian Broughman, Robert Cooter

Articles by Maurer Faculty

Charitable donations fund social goods that the state and markets undersupply. Despite widespread belief in the importance of private charity, most Americans donate little or nothing. Experiments in behavioral economics show that anonymity, not human nature, causes low contributions. Anonymity poses a particular challenge for charity because of the special character of the obligation. Charity is a disjunctive social norm, meaning the obligation is owed to ‘A or B or C or …’. Disclosure of each individual’s aggregate conduct is necessary for the effectiveness of any disjunctive social norm. To revitalize charity we propose a public registry where each taxpayer …

Establishment': A Core Concept In Chinese Inbound Income Taxation, Wei Cui

All Faculty Publications

Analogous with the concept of a US "trade or business" in US federal income tax law, the concept of "establishment" under Chinese tax law determines the boundary between net-income and gross-income taxation of inbound investments. As central as the concept is, it has received surprisingly little interpretation. As China increasingly opens to foreign portfolio investment and makes new non-corporate business forms available to foreigners, the term is urgently in need of clarification. This Article describes the recent regulatory and commercial developments in China that may rekindle interest in elaborating the meaning of "establishment." It then discusses the interpretations that have …

Sports And Entertainment Agents And Agent-Attorneys: Discourses And Conventions Concerning Crossing Jurisdictional And Professional Borders, David S. Caudill

Faculty Publications

Questions regarding the ethical obligations, pitfalls, and dilemmas facing attorneys who become sports or entertainment agents are not new. However, despite a substantial discourse on the topic, the sense persists that being both a lawyer and an agent is problematic. The applicable laws, including ethical regulations, seem to be clear, but are subject not only to law‟s usual jurisdictional variations and interpretive instability, but also to the mediation of conventions or tacit understandings that pervade the sports and entertainment industries.

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

Scholarly Works

No abstract provided.

Luke Cole, Brian E. Gray

Faculty Scholarship

No abstract provided.

Brew To Bikes: Portland's Artisan Economy, Charles H. Heying

Urban Studies and Planning Faculty Publications and Presentations

Brew to Bikes: Portland's Artisan Economy explains how post-industrial economic transformations have created a space for artisan enterprises to flourish. Dissatisfied with passive consumption, many residents of Portland, OR take matters into their own hands. Associate Professor of Urban Studies Charles Heying noticed these local artisans prospering all over the city and set out to study their thriving economy. Profiling hundreds of local businesses, and with an eye on Portland's unique penchant for sustainability and urban development, Brew to Bikes is about everything from bike manufacturers to microbreweries, from do-it-yourself to traditional crafts. A treatise to local, ethical business practices, …

Theodore Roosevelt On Labor Unions: A New Perspective, Louis B. Livingston

Dissertations and Theses

Historical studies of Theodore Roosevelt's views about labor and labor unions are in conflict. This was also true of contemporary disagreements about the meaning of his labor rhetoric and actions. The uncertainties revolve around whether or not he was sincere in his support of working people and labor unions, whether his words and actions were political only or were based on a philosophical foundation, and why he did not propose comprehensive labor policies.

Roosevelt historiography has addressed these questions without considering his stated admiration for Octave Thanet's writings about "labor problems." Octave Thanet was the pseudonym of Alice French, a …

The Expansion Of Defense Counsel Liability To Include Malpractice Claims By Insurance Companies: How The West Was Won, Johnny Parker

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Guest Editor's Introduction, Special Issue: Ensuring Access To Justice For Self-Represented, Amy Applegate

Articles by Maurer Faculty

I am pleased to be the guest editor of his special issue of Family Court Review, which focuses on "Access to Justice for Self-Represented Litigants." I am even more pleased that this issue includes articles written by some of the leaders of Indiana's pro bono legal community; several outstanding students; my collaborators who conduct research about the effect of self-representation in the mediation context, especially where there is intimate partner violence or abuse (IPVA); and colleagues in the national clinical and law school pro bono community whose students provide pro bono services to disadvantaged or marginalized individuals with family …