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Counterparty Regulation And Its Limits: The Evolution Of The Credit Default Swaps Market, Houman B. Shadab

Articles & Chapters

Over-the-counter (OTC) derivatives are widely regarded as “unregulated” financial instruments. While it is true that OTC derivatives are subject to relatively minimal federal regulation, OTC derivatives are in fact subject to a robust form of control and governance in the form of counterparty regulation. Counterparty regulation arises when two or more parties are continually exposed to counterparty credit risk for the duration of a long-term contract, and it consists of specific governance mechanisms such as the daily adjustment of collateral and the netting out of redundant trades. Counterparty regulation governs derivatives transactions but not securities transactions.

This essay reviews recent …

Too Stubborn To Ever Be Governed By Enforced Insanity: Some Therapeutic Jurisprudence Dilemmas In The Representation Of Criminal Defendants In Incompetency And Insanity Cases, Michael L. Perlin

Articles & Chapters

Little attention has been paid to the importance between therapeutic jurisprudence (TJ) and the role ofcriminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice ofthe same …

Barry Friedman's The Will Of The People: Probing The Dynamics And Uncertainties Of American Constitutionalism, Edward A. Purcell Jr.

Articles & Chapters

This essays examines Barry Friedman’s book, The Will of the People, and its thesis that, with lags and hesitations, the Supreme Court’s constitutional jurisprudence has increasingly adapted to the changing social and political attitudes of the American people. Noting the book’s close affinity with the work of recent scholars who argue that popular attitudes should and do have substantial influence in shaping constitutional law, the essay explores the lessons Friedman draws from his constitutional history and, in particular, the significance of four “critical periods”: the Federalist Era with its opposition to what seemed an overtly partisan Court, the first half …

Recruitment Initiatives In Higher Education: A Comparison Of Study Abroad And Enrollment Management Procedures, Carla Joy Ruffer

Master's Theses

There is a disparity of minority students' participation in study abroad, and establishing best practices for successful recruitment would assist in closing this gap. This project will look to add research toward reaching such best practices by analyzing the methods of recruiting minority students into higher education study abroad programs. What methods are universities using to recruit minority students into study abroad, and how do these compare to the methods used by enrollment management to recruit minority students into an institution? In order to answer these questions, I will use a qualitative analysis through interviews of study abroad and enrollment …

Impact Of Short-Term Study Abroad On Mba Students, Jessica Oldford

Master's Theses

Short-term study abroad programs are quickly becoming the new norm for study abroad within higher education. Results from the Institute of International Education's opendoors 2009 research show that short-term programs were the most popular during the 2007-08 academic year with 56% of students participating in this type of exchange. Many graduate programs of U.S. institutions are now expanding international program offerings to include short-term options to accommodate their students, particularly graduate-level students. Graduate-level students often times have other responsibilities such as full-time employment, young families, etc. which prevent them from participating in full-term study abroad programs. As such, these students …

Front Matter

Michigan Law Review

No abstract provided.

Penumbral Thinking Revisited: Metaphor In Legal Argumentation, Chris Rideout

Faculty Articles

In the modern jurisprudence of the United States Supreme Court, the controversy over the place of metaphor came directly into the spotlight in Griswold v. Connecticut. Justice Douglas, writing for the majority and relying in part on metaphoric reasoning for his argument, located a right to privacy in the penumbral area formed by emanations from specific guarantees in the Bill of Rights. The various opinions in Griswold represent a divide regarding the place of metaphoric reasoning in legal argument. Justice Douglas employs metaphoric reasoning, while several of his fellow justices either avoid it or reject it. Because the case has …

Methademic: Drug Panic In An Age Of Ambivalence, Deborah Ahrens

Faculty Articles

The story of criminal sanctions in modern America is a familiar-and depressing narrative. According to the narrative, we live in an era where the dynamics of popular politics, the practices of the media, and the (often racialized) anxieties of modern life combine to create a one-way ratchet, in which we identify perceived new threats to public order and respond unthinkingly with harsh new criminal sanctions. On the surface, the wave of concern over methamphetamine that swept the nation in the middle part of this decade followed this script, as a media panic led to substantial popular concern and significant new …

Brilliant Disguise: An Empirical Analysis Of A Social Experiment Banning Affirmative Action, Deirdre M. Bowen

Faculty Articles

The notion of a colorblind society captured the imagination of voters who passed propositions banning affirmative action in higher education admissions in California, Washington, more recently in Michigan, and on November 4th, in Nebraska. Affirmative action is no longer required, proponents assert, because society no longer judges people by their skin color. They argue that the need for affirmative action is a vestige of a bygone era, and such a policy only creates resentment and stigma. This paper confronts the colorblind ideal myths of stigma and resentment, which appear at much greater rates in anti-affirmative action states. In analyzing data …

Truth Or Consequences: Self-Incriminating Statements And Informant Veracity, Mary Nicol Bowman

Faculty Articles

Courts treat self-incriminating statements by criminal informants as a significant factor favoring the reliability of the informant’s information when making probable cause determinations for the issuance of search warrants. Courts do so even though admissions of criminal activity usually undercut, rather than support, credibility. In using self-incriminating statements to support the informant’s reliability, courts tend to rely on a theory with significant theoretical flaws. Furthermore, recent United States Supreme Court jurisprudence in other contexts undercuts the reliability of using self-incriminating statements to support the veracity of other information. If courts adequately scrutinize the informant’s self-incriminating statements and the circumstances surrounding …

Lifting Burdens: Proof, Social Justice, And Public Assistance Administrative Hearings, Lisa Brodoff

Faculty Articles

In "Lifting Burdens: Proof, Social Justice, and Public Assistance Administrative Hearings," Lisa Brodoff describes the administrative hearing system for public assistance recipients and applicants, and asserts that it is the primary social justice system for the poor. She discusses why public assistance appellants are always placed at a significant disadvantage in this system. The article proposes that the best way to even out the inequities in adjudications is to always place the burdens of production and persuasion by clear and convincing evidence on the government in these hearings. She argues that policy, efficiency, and fairness require a consistent and heavy …

Making Up Is Hard To Do: Race/Gender/Sexual Orientation In The Law School Classroom, Robert S. Chang, Adrienne D. Davis

Faculty Articles

This exchange of letters picks up where Professors Adrienne Davis and Robert Chang left off in an earlier exchange that examined who speaks, who is allowed to speak, and what is remembered.' Here, Professors Davis and Chang explore the dynamics of race, gender, and sexual orientation in the law school classroom. They compare the experiences of African American women and Asian American men in trying to perform as law professors, considering how makeup and other gender tools simultaneously assist and hinder such performances. Their exchange examines the possibility of bias that complicates the use of student evaluations in assessing teaching …

Rock Climbing With The Gotandas, Robert S. Chang

Faculty Articles

No abstract provided.

Rodrigo's Portent: California And The Coming Neocolonial Order, Richard Delgado

Faculty Articles

No abstract provided.

Motive, Duty, And The Management Of Restricted Charitable Gifts, John K. Eason

Faculty Articles

Set against the backdrop of fiduciary duties governing nonprofit organization management, this article explores donor restrictions imposed upon gifts made to charitable recipients. The particular focus falls upon charitable gift restrictions that prove difficult for the recipient organization’s management to implement as time passes from the date of the gift. This article examines the trust doctrine of cy pres as the traditional remedial device for addressing such concerns, but ultimately finds that doctrine wanting - particularly so in an environment of increasingly corporate charitable governance. After explaining the long-noted vagaries of cy pres in practical application, this article reveals the …

Lawyering And Learning In Problem-Solving Courts, Paul Holland

Faculty Articles

The introduction of Drug Courts and other problem-solving courts has brought significant change to the American criminal justice system. This change has required lawyers working in these courts to re-examine their role and to re-consider and re-calibrate the nature of their interactions and relationships with their clients and all of the other actors in the system. This article looks beyond the rhetorically charged debate that has marked these changes and offers instead a close examination of the actual experience of lawyers, judges, and most importantly, defendant-participants, in these courts. This examination demonstrates that many of the traditional values embedded in …

One Is The Loneliest Number: The Single Taxpayer In A Joint Return World, Lily Kahng

Faculty Articles

The United States is one of the few developed countries to retain the joint income tax return, available for heterosexual married couples only. Since its adoption in 1948, its underlying assumptions have been challenged on many valid grounds, and yet it remains firmly embedded in mainstream political and policy discourse. In recent years, most of the debate surrounding the joint return has focused on reducing marriage penalties, bonuses, and determining who among the universe of couples ought to be extended the benefit of the marriage bonuses. The treatment of single people has received almost no attention. The scant attention paid …

The Alienage Spectrum Disorder: The Bill Of Rights From Chinese Exclusion In Guantanamo, Won Kidane

Faculty Articles

The fundamental notion that increased ties to the polity of the United States would entitle an alien to better rights is deeply-rooted in the jurisprudence. Ordinarily, these rights tend to strengthen as one moves forward from the beginning of the spectrum, which might involve the most attenuated contact, as in the case of enemy aliens detained by United States military in a foreign land or an overseas visa applicant, to the end of the spectrum, which might involve a United States citizen. While this seems to make perfect sense, this article argues that a closer examination of the century-old jurisprudence …

The Status Of Private Military Contractors Under International Humanitarian Law, Won Kidane

Faculty Articles

One of the serious problems that the new administration faces is undoubtedly the regulation and use of private military contractors in "the war on terror." The private military industry is largely unregulated at the national level. Its status under international law is also poorly understood. This article assesses the legal status of this industry, characterizes the various functions, demonstrates the difficulty of regulating the industry as a unitary entity, and identifies the appropriate set of international standards that the new administration and Congress as well as the larger international legal community could employ in evaluating regulatory options.

The Terrorism Bar To Asylum In Australia, Canada, The United Kingdom, And The United States: Transporting Best Practices, Won Kidane

Faculty Articles

The contemporary threat of terrorism that the Western world faces is primarily from so-called “aliens.” As such, the laws that are meant to combat terrorism necessarily involve the regulation of the admission and exclusion of aliens. This type of regulation is traditionally the purview of immigration law. Although the link between national security and immigration is by no means contemporary, the existing level of intersection between antiterrorism laws and immigration is essentially a post- 9/11 phenomenon.

The reason for this phenomenon is that the 9/11 attacks were planned and executed by aliens. Although there has not been a terrorist attack …

Law Of Geography And The Geography Of Law: A Post-Colonial Mapping, Tayyab Mahmud

Faculty Articles

This article examines the relationship between law and geography through the prisms of colonialism and neoliberal Empire. Using two novels set in nineteenth and twenty-first century India, respectively, it evaluates the so-called first law of geography, namely that "everything is related to everything else, but near things are more related than distant things." It argues that the formative and enduring relationship between global systems of domination and modern law has created a geolegal space that has a global dimension. This geolegal space creates norms and subjectivities that are intimately related to spatially distant forces and projects. Emergence and consolidation of …

Slums, Slumdogs, And Resistance, Tayyab Mahmud

Faculty Articles

No abstract provided.

Pretext In Peril, Natasha T. Martin

Faculty Articles

This Article addresses the connections among substance, procedure, and equality in the American workplace. Exploring the deepening struggle for plaintiffs under Title VII of the Civil Rights Act of 1964, this Article seeks to add clarity to an enduring quandary—why does Title VII fail to combat the prejudicial disparate treatment it was designed to eradicate? This Article offers a critique of the hardships shouldered by plaintiffs in proving contemporary workplace discrimination.

Challenging the seemingly unfettered discretion of the courts in evaluating claims of workplace bias, this Article pursues the interplay of procedural and substantive law to expose how courts "chip …

Discipline-Building And Disciplinary Values: Thoughts On Legal Writing At Year Twenty-Five Of The Legal Writing Institute, J. Christopher Rideout

Faculty Articles

No abstract provided.

Legal Writing: The View From Within, J. Christopher Rideout, Jill J. Ramsfield

Faculty Articles

No abstract provided.

Tributes To Mary S. Lawrence, Chris Rideout

Faculty Articles

No abstract provided.

Justice Stevens And The Seattle Schools Case: A Case Study On The Role Of Righteous Anger In Constitutional Discourse, Andrew Siegel

Faculty Articles

No abstract provided.

Be Professional!, Dean Spade

Faculty Articles

In 2010, the Harvard Journal of Law and Gender published a series of letters between Adrienne Davis and Bob Chang entitled, "Making Up Is Hard to Do: Race/Gender/Sexual Orientation in the Law School Classroom," along with three response pieces by Adele Morrison, Darren Rosenblum and Dean Spade. "Be Professional!" is written in letter form like "Making Up Is Hard to Do" and discusses Spade's experience becoming and being a trans law professor, as well as broader questions about activism, academia, professionalism and the neo-liberal academy.

Asian Americans And The Road To The White House: Musings On Being Invisible, Robert S. Chang

Faculty Articles

In October 1993, the Asian Law Journal published its inaugural issue, featuring its first article entitled "Toward an Asian American Legal Scholarship: Critical Race Theory, Post-structuralism, and Narrative Space." I ASIAN L.J. 1 (1993). With this opening salvo, the Asian Law Journal (now the Asian American Law Journal) launched only the second law journal in the United States dedicated to Asian American Jurisprudence. The author of this landmark article is none other than Professor Robert S. Chang, one of the most recognized figures in Asian American Jurisprudence and Critical Race Theory. To celebrate the fifteen years since the publication of …

Physician-Assisted Suicide And Dementia: The Impossibility Of A Workable Regulatory Regime, John B. Mitchell

Faculty Articles

Currently, four-and-a-half million Americans are afflicted with Alzheimer’s Disease, accounting for roughly half the cases of adult dementia, and fourteen million cases are projected by mid-century. With the coalescence of the baby boomers, managed health care, and increasingly scarce health care resources, our society must brace to face a social and legal policy challenge of enormous importance and complexity. In this circumstance, the inevitable call for access to physician-assisted suicide, likely triggered through some form of living will, will need to be considered within a context far different than the current focus of the assisted-suicide debate on terminal illness. Asserting …