Digital Commons Network^™

Does The Quality Of The Plaintiffs' Law Firm Matter In Deal Litigation?, Adam B. Badawi, David H. Webber

Faculty Scholarship

This Article examines how the stock market reacts to the filing of lawsuits against mergers and acquisitions targets as the quality of the plaintiffs’ law firm varies. Our primary dataset includes all cases of this type filed in the Delaware Chancery Court from November 2003–September 2008. We group the law firms that file these suits into higher and lower quality categories using several quantitative and qualitative measures. We hypothesize that target firm share value should reflect the likelihood that litigation will result in an increase in merger consideration. This effect is likely to depend, at least in part, on law …

Nfib V. Sebelius And The Right To Health Care: Government's Obligation To Provide For The Health, Safety, And Welfare Of Its Citizens, Jack M. Beermann

Faculty Scholarship

One of the most important roles government plays in contemporary society is protecting people from unsafe products and environmental conditions. Although the Supreme Court has rejected calls to read the Constitution of the United States to include positive rights, this article’s central claim is that the Supreme Court’s rejection of the Medicaid expansion in the Patient Protection and Affordable Care Act makes sense only if the Constitution is understood as requiring government to provide for the health, safety and welfare of its citizens. It’s not that Chief Justice Roberts intended this implication, but if states did not feel obligated to …

Fidelity To Our Living Constitution, James E. Fleming

Faculty Scholarship

This essay explores the arguments of Bruce Ackerman, who decries the Roberts Court’s “shattering judicial betrayal” of our living constitution’s Civil Rights Revolution. He argues for a broader conception of the constitutional canon: The higher law of the Constitution includes not only formally adopted provisions but also “landmark statutes” and judicial “superprecedents,” for example, those of the Civil Rights Revolution. He also argues for a broader conception of popular sovereignty: We the People manifest our will not only through the formal amending procedures but also through higher lawmaking procedures outside Article V. He exhorts us to fidelity to our living …

Is It Time To Rewrite The Constitution? Fidelity To Our Imperfect Constitution, James E. Fleming

Faculty Scholarship

This essay considers arguments that the U.S. Constitution is so imperfect — and the constitutional and political system so dysfunctional or otherwise failing — that it is time to rewrite the Constitution through amendment or constitutional convention. I argue that if we adopt and maintain an attitude of fidelity to our imperfect Constitution, it may be unnecessary to formally amend the Constitution unless there is good reason to believe that something better might come out of this process. The better approach is to maintain an attitude of fidelity to the imperfect Constitution and to apply a Constitution-perfecting theory — to …

Punishment And Blame For Culpable Indifference, Kenneth Simons

Faculty Scholarship

In criminal law, the mental state of the defendant is a crucial determinant of the grade of crime that the defendant has committed and of whether the conduct is criminal at all. Under the widely accepted modern hierarchy of mental states, an actor is most culpable for causing harm purposely, and progressively less culpable for doing so knowingly, recklessly, or negligently. Notably, this hierarchy emphasizes cognitive rather than conative mental states. But this emphasis, I argue, is often unjustified. When we punish and blame for wrongful acts, we should look beyond the cognitive dimensions of the actor’s culpability, and should …

Puzzles Of Proportion And The Reasonable Military Commander: Reflections On The Law, Ethics, And Geopolitics Of Proportionality, Robert D. Sloane

Faculty Scholarship

This article offers modest reflections on jus in bello proportionality. It suggests that the law of armed conflict (LOAC) build on the only consensus legal standard that exists: that of the good-faith reasonable military commander. The difficulty — here, as with any reasonableness standard — is to identify factors that realistically can, and legally should, guide adherence to it and to consider the objective and subjective dimensions of judgments under the standard. Part II scrutinizes the content and status of Additional Protocol I’s (API) canonical definition of proportionality. It analyzes its text and context to bring out the extent to …

The Rise And Fall Of The Consumption Tax, Reuven S. Avi-Yonah

Articles

The year 1974 was an eventful one in U.S. history. For the first time, a president resigned under threat of impeachment. Watergate and the Vietnam War shook Americans’ faith in their government. The economy was reeling from the first oil embargo, and the United States’ prospects seemed bleak. In that context, Professor William Andrews of Harvard Law School published an article that would revolutionize tax scholarship. Against the backdrop of widespread dissatisfaction with the government in general and the income tax in particular, Andrews suggested replacing the income tax with a consumption tax. That suggestion was ironic for anyone familiar …

企業の社会的責任と戦略的租税行動 [Corporate Social Responsibility And Strategic Tax Behavior], Reuven S. Avi-Yonah, Keisaku Koga Translator

Articles

This paper addresses two questions. First, from the perspective of the corporation, should the corporation cooperate and pay the corporate tax, or should it engage in "strategic" tax behavior designed to minimize or eliminate its corporate tax burden? Second, from the perspective of the state, should the state use the corporate tax just to raise revenue, or should it also try to use it as a regulatory tool to steer corporate behavior in directions that it deems beneficial to society? The paper argues that whatever our view of the nature of the corporation and of the legitimacy of corporate social …

Unfair And Deceptive Robots, Woodrow Hartzog

Faculty Scholarship

Robots, like household helpers, personal digital assistants, automated cars, and personal drones are or will soon be available to consumers. These robots raise common consumer protection issues, such as fraud, privacy, data security, and risks to health, physical safety and finances. Robots also raise new consumer protection issues, or at least call into question how existing consumer protection regimes might be applied to such emerging technologies. Yet it is unclear which legal regimes should govern these robots and what consumer protection rules for robots should look like.

The thesis of the Article is that the FTC’s grant of authority and …

The Scope And Potential Of Ftc Data Protection, Woodrow Hartzog, Daniel J. Solove

Faculty Scholarship

For more than fifteen years, the FTC has regulated privacy and data security through its authority to police deceptive and unfair trade practices as well as through powers conferred by specific statutes and international agreements. Recently, the FTC’s powers for data protection have been challenged by Wyndham Worldwide Corp. and LabMD. These recent cases raise a fundamental issue, and one that has surprisingly not been well explored: How broad are the FTC’s privacy and data security regulatory powers? How broad should they be?

In this Article, we address the issue of the scope of FTC authority in the areas of …

Increasing The Transaction Costs Of Harassment, Woodrow Hartzog, Evan Selinger

Faculty Scholarship

Wouldn’t it be nice if the rules, agreements, and guidelines designed to prevent online harassment were sufficient to curb improper behavior? As if. Wrongdoers are not always so easily deterred. Sometimes these approaches are about as effective as attacking tanks with toothpicks.

As Danielle Citron contends in her critically important work, Hate Crimes in Cyberspace, the design of the Internet facilitates vitriol and abuse, even when it is legally, contractually, and normatively prohibited. Communicating almost effortlessly at distance—sometimes anonymously and typically with minimized body language—can heighten emotional detachment and blunt moral sensitivity. Tragically, when a mediated environment makes it …

King, Chevron, And The Age Of Textualism, Abigail Moncrieff

Faculty Scholarship

In the King v. Burwell oral arguments, Chief Justice John Roberts—usually one of the more active members of the Court—asked only one substantive question, addressed to the Solicitor General: “If you’re right about Chevron [deference applying to this case], that would indicate that a subsequent administration could change [your] interpretation?” As it turns out, that question was crucial to Roberts’s thinking and to the 6-3 opinion he authored, but almost all commentators either undervalued or misunderstood the question’s import (myself included). The result of Roberts’s actual thinking was an unfortunate outcome for Chevron—and potentially for the rule of law—despite …

Gradually Exploded: Confrontation Vs. The Former Testimony Rule., Tim Donaldson

St. Mary's Law Journal

Observing live court testimony allows a jury to determine witness credibility. This is called demeanor evidence. Allowing the introduction of transcripts of prior testimony by a witness offends a defendant's right to confrontation guaranteed by the Sixth Amendment of the United States Constitution. Loss of demeanor evidence can heighten sensitivity surrounding the constitutional demands of unavailability and an opportunity for cross-examination. But the loss of this evidence is discounted when dealing with the admissibility of prior testimony as long as a defendant was formerly afforded an opportunity to cross-examine. Demeanor evidence, however, is still treated as a non-essential component of …

Sovereign Immunity: The Texas Department Of Transportation's Duty To Maintain Roadways Ravaged By The Eagle Ford Shale Boom., Lasca A. Arnold

St. Mary's Law Journal

While the shale boom has brought about many positive results such as economic growth and new jobs to the Eagle Ford Shale region, the ravaged roadways left in the aftermath must be addressed. The demands for equipment and manpower created by oil and gas exploration are extensive. Sadly, the Texas Department of Transportation (TxDOT)—the entity charged with maintaining and repairing roads in these affected counties—refuses to supply sufficient funding to repair the over used roadways. This pressure is exerted in rural areas where most of the roads and bridges are designed for lower volumes of traffic. In addition to the …

An Employer's Relationship With Its Recruiting Firm - Something More Than An Arm's-Length Transaction., Hannah L. Hembree

St. Mary's Law Journal

Taking advantage of the perfect storm created by an increased demand for professional services and a shortage of qualified candidates, recruiting firms search for permanent employees on behalf of employers across the nation. These searches are often characterized by non-exclusive contingency agreements wherein a recruiting firm’s entitlement to remuneration is directly tied to successful placement—ranging from 15% to 30% of a candidate’s first year salary. Though communication from interested applicants constitutes the easiest path to placement, passive candidates are quickly becoming the primary target of zealous recruiters. Passive candidates are those currently employed but open to the possibility of changing …

The Economic Loss Doctrine As An Obstacle To Claims Of Contractual Strangers., Richard L. Reed, Richard L. Reed Jr.

St. Mary's Law Journal

Home owners, contractors, and subcontractors entering a contract to build in accordance with another’s design must be aware of their respective risks under the economic loss doctrine. The economic loss doctrine bars recovery due purely to economic loss by a party that is a contractual stranger. In a typical construction contract, a homeowner may separately contract with a contractor and a design professional. In this situation, the contractor does not have privity with the design professional and the economic loss doctrine bars the contractor from suing the design professional for economic loss. Likewise, if the homeowner hires a contractor and …

Anti-Retaliation Protection For Internal Whistleblowers Under Dodd-Frank Following The Fifth Circuit Decision In Asadi., Tapas Agarwal

St. Mary's Law Journal

Abstract Forthcoming.

Defining A Health Care Liability Claim In The Post-Texas West Oaks Era., William Woolsey

St. Mary's Law Journal

Following the Texas Supreme Court’s rulings in West Oaks Hospital v. Williams and Ross v. St. Luke’s Episcopal Hospital, it remains unclear whether a non-patient’s injury in a hospital constitutes a health care liability claim (HCLC). If the trial court rules the claim is an HCLC, the plaintiff must present expert testimony. Failure to present an expert report within 120 days after filing the suit results in automatic dismissal. The Texas Supreme Court addressed this issue in West Oaks. The Court held that a claimant, suing a hospital under a theory of premise liability, need not be a patient for …

Brookshire Bros.: Cleanup On Aisle 9 - The Current Messy State Of Spoliation Law., Xavier Rodriguez

St. Mary's Law Journal

Abstract Forthcoming.

Enforcement Of Noncompetition Agreements: Protecting Public Interests Through An Entrepreneurial Approach., Griffin Toronjo Pivateau

St. Mary's Law Journal

Abstract Forthcoming.

Revenge Pornography: Exploring Tortious Remedies In Texas., Kevin B. Bennett

St. Mary's Law Journal

Abstract Forthcoming.

How Mccullen Affects San Antonio's Anti-Panhandling Ordinance., Christopher M. Childree

St. Mary's Law Journal

Abstract Forthcoming.

Professor Aloysius A. Leopold: An Extraordinary Man., Gerry W. Beyer

St. Mary's Law Journal

Abstract Forthcoming.

The Ancient Magna Carta And The Modern Rule Of Law: 1215 To 2015., Vincent R. Johnson

St. Mary's Law Journal

This article argues the text of the Magna Carta, now 800 years old, and reflects many of the values that are at the center of the modern concept of the Rule of Law. A careful review of its provisions reveals the Magna Carta demonstrates a strong commitment to the resolution of disputes based on rules and procedures that are consistent, accessible, transparent, and fair; and to the development of a legal system characterized by official accountability and respect for human dignity.

Lincoln V. The Proslavery Constitution: How A Railroad Lawyer's Constitutional Theory Made Him The Great Emancipator., Paul Finkelman

St. Mary's Law Journal

Abstract Forthcoming.

A Constitutional Amendment Allowing Broader Campaign-Finance Reform Would Not Criminalize Political Satire., Christopher W. Bell

St. Mary's Law Journal

Campaign finance remains a perennial issue, because contributions and expenditures define the political campaigns which shape our democracy. While a majority of the American public supports limiting campaign spending, campaign finance reform remains near the bottom of most voters’ priorities. Reformers have called the lack of the public’s interest “[o]ne of the persistent mysteries of campaign finance reform.” Citizens United v. F.E.C. focused national attention on the role of money in politics. Citizens United evoked such strong reactions, because it represents the two competing versions of the concept of freedom of speech: “free speech as serving liberty” and “free speech …

Incorporating Rights: Making The Most Of The Meantime, Erika George

Faculty Scholarship

In June 2014 the U.N. Human Rights Council adopted a resolution establishing an open‐ended intergovernmental working group to commence deliberations and draft an international legally binding instrument on transnational corporations. The Council also agreed to extend the mandate of the U.N. Working Group on Business and Human Rights, the entity created to promote the U.N. Guiding Principles on Business and Human Rights. The Guiding Principles are a non‐legally binding set of standards created consistent with an earlier Council mandate to “operationalize” the “Protect, Respect and Remedy Framework.”

The Council’s action advancing treaty talks could be seen as calling into question …

The Use Of Shear Rate-Diameter Dose-Response Curves As An Alternative To The Flow-Mediated Dilation Test, Brian Wu, Daniel Credeur, Simon Fryer, Lee Stoner

Faculty Publications

The brachial artery flow-mediated dilation test (FMD) is the non-invasive gold-standard used to test endothelial function. Reduced FMD precedes the development of atherosclerosis and provides an early marker for predicting future cardiovascular disease events. Although, this test is of high potential, it is somewhat limited by poor reproducibility. By utilizing hand warming and grip exercise combined with hierarchical linear modeling, shear rate-diameter dose-response curves may provide a novel and more accurate way to assess endothelial function in humans. Shear rate-diameter dose-response curves could potentially improve upon the traditional FMD measurement and serve as a superior clinical and research tool for …

Estimating The Sex Composition Of The Summer Flounder Catch Using Fishery-Independent Data, Jason M. Morson, Eleanor A. Bochenek, Eric N. Powell, Emerson C. Hasbrouck, Jennifer E. Gius, Charles F. Cotton, Kristin Gerbino, Tara Froehlich

Faculty Publications

Models that account for sex-specific behavior and population dynamics are becoming more common in the stock assessment of sexually dimorphic fishes. However, such models can be data intensive and require some knowledge or assumptions about the sex ratio of fishery landings. A recent stock assessment review of Summer Flounder Paralichthys dentatus identified the need to account for sex-specific fishing mortality in the assessment model; however, no data on the sex composition of the catch were available. Fishery-independent, sex-specific information for this species is collected annually by the National Marine Fisheries Service's Northeast Fisheries Science Center during their bottom trawl survey. …

The Legitimacy Of Administrative Law, Jed Handelsman Shugerman

Faculty Scholarship

"How does an alien imposition attain legitimacy?" asks Nicholas Parrillo in Against the Profit Motive: The Salary Revolution in American Government, 1780-1940.' Parrillo and three other historians address this question in a group of outstanding new books on the rise of American administrative law. Each book reflects the various ways in which American administrative law has been an alien imposition: filling a "hole" in the text of the Constitution that did not address administrative powers;2 changing the traditional separation of powers of legislative rule-making and judicial adjudication with individualized due process; imposing centralized bureaucracy over local self-rule; imposing the …