Law Commons^™

Blurring The Lines Between Pleading Doctrines: The Enhanced Rule 8(A)(2) Plausibility Pleading Standard Converges With The Heightened Fraud Pleading Standards Under Rule 9(B) And The Pslra, Marc I. Steinberg, Diego E. Gomez-Cornejo

Faculty Journal Articles and Book Chapters

This article focuses on the Supreme Court’s recent enhancement of Rule 8(a)(2)’s pleading standard to approach the heightened fraud pleading standards under Rule 9(b) and the PSLRA. The authors posit that the introduction of a tacit “probability requirement” into the basic pleading standard impedes the heightened fraud pleading standards under Rule 9(b) and the PSLRA from fulfilling the policy rationales for which they were created. By elevating the basic requirements that must be met in any federal civil case for a complaint to be legally sufficient, the Supreme Court has caused an evident convergence of pleading standards that blurs the …

Introduction: Insider Trading (Oxford University Press 3d Ed.), William K.S. Wang, Marc I. Steinberg

Faculty Journal Articles and Book Chapters

This paper is the introductory chapter to Insider Trading (Oxford University Press 3d ed. 2010). This treatise analyzes the application of various laws to stock market insider trading and tipping. Among the federal laws are Exchange Act section 10(b), SEC Rule 10b-5, mail/wire fraud, SEC Rule 14e-3, Exchange Act section 16, and Securities Act section 17(a). The state law discussed is both state common law and a state law claim by the issuer.

Another chapter addresses government enforcement of the insider trading/tipping prohibitions. A chapter on compliance programs deals with how firms can try to prevent illegal insider trading and …

A Review Of Negotiating Justice: Progressive Lawyering, Low Income Clients, And The Quest For Social Change, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.

Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability And The Political Question Doctrine, Chris Jenks

Faculty Journal Articles and Book Chapters

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political …

A Critical Legal Rhetoric Approach To In Re African-American Slave Descendants Litigation, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.

Judging Cruelty, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

he wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states - either politically or constitutionally - to similarly abandon the punishment. Politically, states may succumb to the trend of discontinuing a punishment. Constitutionally, states may be forced to surrender the punishment if it is considered cruel, and, as a result of a large number of states renouncing it, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, …

Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Some federal courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of legitimate grounds, the complaint is dismissed because the plaintiff lacks a “prior substantial connection” to the United States.

I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of …

Recalibrating The Legal Risks Of Cross-Border Health Care, Nathan Cortez

Faculty Journal Articles and Book Chapters

The nascent scholarship surrounding "medical tourism" assumes, without much scrutiny, that foreign jurisdictions provide few legal remedies to patients, instead focusing on whether U.S. patients can sue in U.S. courts. This article tests that assumption by examining whether patients might recover adequate compensation not only in the United States, but in four common destinations: India, Thailand, Singapore, and Mexico. I analyze how each jurisdiction handles medical malpractice complaints and discuss the unique obstacles patients might face when navigating each of these systems. I conclude that U.S. patients will struggle to recover remotely adequate compensation in each of these jurisdictions. This …

A Prolonged Slump For ‘Plaintiff-Pitchers’: The Narrow ‘Strike Zone’ For Securities Plaintiffs In The Fourth Circuit, Marc I. Steinberg, Dustin Appel

Faculty Journal Articles and Book Chapters

This article focuses on the narrow “strike zone” that plaintiffs must overcome in private securities actions instituted in the Fourth Circuit. Based on empirical data generated over a fourteen-year span, there emerges a clear finding that during that time period defendants were victorious in almost all cases, either on the merits of the case or due to procedural obstacles. The authors posit that this pattern of difficulty for plaintiffs arises, at least in part, from the Fourth Circuit’s restrictive interpretation of various requisite elements of these causes of action, such as materiality and scienter, as well as the Fourth Circuit’s …

Legal Ethics In International Criminal Defense, Jenia I. Turner

Faculty Journal Articles and Book Chapters

This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less …

Not Child's Play: Revisiting The Law Of Child Soldiers, Chris Jenks

Faculty Journal Articles and Book Chapters

This brief commentary discusses child soldiers in general and Omar Khadr, a 15 yr old whom the United States military captured during armed conflict in Afghanistan, in particular. I suggest the conversation should be broadened and to move past misperceptions of the applicable law and norms concerning detention and prosecution of child belligerents.

Law, Facts, And Power, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself - both in the already notorious pleading section of the opinion, and in …

A Sense Of Duty: The Illusory Criminal Jurisdiction Of The U.S./Iraq Status Of Forces Agreement, Chris Jenks

Faculty Journal Articles and Book Chapters

The Status of Forces Agreement (SOFA) between the U.S. and Iraq entered force on January 1, 2009 and established the legal framework by which U.S. personnel continue to operate in Iraq. The SOFA followed lengthy and contentious negotiations, which many commentators claim that Iraq “won,” extracting significant concessions from the U.S. in the process. While that may true in some areas, the opposite seems to be the case in one of the most contentious areas of this or any SOFA – criminal jurisdiction over service members. This article examines the criminal jurisdiction article of the Iraq SOFA and posits that …

The Foreign Commerce Clause, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article comprehensively addresses Congress’s powers under the Constitution’s Foreign Commerce Clause. Congress has increasingly used the Clause to pass laws of unprecedented and aggressive reach over both domestic and foreign activity. Yet despite the Clause’s mounting significance for modern U.S. regulatory regimes at home and abroad, it remains an incredibly under-analyzed source of constitutional power. Moreover, faced with an increasing number of challenges under the Clause lower courts have been unable to coherently articulate the contours of Congress’s legislative authority. When courts have tried, their efforts have largely been wrong. The Article explains why they have been wrong and …

Green Cards For Foreign House Buyers: A Way To Help Stabilize Housing Prices, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

The continuing decline in US housing prices is making it difficult to effectively address our nation’s financial and economic problems. Any measures that would serve to help stabilize housing prices without requiring substantial government expenditures merit serious consideration. Richard Lefrak and Gary Shilling have recently set forth in the Wall Street Journal the broad outlines of a proposed change in immigration law that would confer conditional residency and eventually permanent residency upon foreign purchasers of US houses. In this article I present and discuss a modified version of their proposal that is more comprehensive and that seeks to avoid the …

The Cult Of Efficiency In Corporate Law, Stephen E. Ellis, Grant M. Hayden

Faculty Journal Articles and Book Chapters

This paper challenges a fundamental assumption of corporate law scholarship. Corporate law is heavily influenced by economics, and by normative economics in particular. Economic efficiency, for example, is seen as the primary goal of good corporate governance. But this dependence on standard notions of economic efficiency is unfortunate, as those notions are highly problematic. In economic theory, efficiency is spelled out in terms of individual preference satisfaction, which is an inadequate foundation for any sort of normative analysis. We argue that on any account of the good, people will sometimes prefer things that aren’t good for them on that account. …

The Assault On Section 11 Of The Securities Act: A Study In Judicial Activism, Marc I. Steinberg, Brent A. Kirby

Faculty Journal Articles and Book Chapters

This article focuses on the federal courts' restrictive interpretation of Section 11 of the Securities Act of 1933, the most investor-friendly express remedy that the "New Deal" Congress enacted. This judicial erosion has resulted in a cause of action that extends to fewer investors and is riddled with uncertainty at the pleading stage. The authors posit that recent federal court decisions that have added reliance as an element of Section 11 claims and rejected the use of statistical evidence to prove tracing are inconsistent with Section 11's text and legislative history. The article then explores the inconsistencies associated with pleading …

Introductory Note To The United States Supreme Court: Graham V. Florida & The Federal Court Of Australia: Habib V. Australia, Chris Jenks

Faculty Journal Articles and Book Chapters

This introductory note considers two different and completely unrelated cases: Graham, a U.S. Supreme Court criminal case on the cruel and unusual punishment clause of the U.S. Constitution and Habib, an Australian civil case involving a former Guantanamo Bay detainee. This note focuses on one aspect of the disparate nature of the cases, starkly contrasting judicial attitudes towards the role of “foreign law” in domestic jurisprudence. Juxtaposed, the two cases offer an interesting view of not only the obvious differences between the U.S. inward and the Australian outward looking judicial philosophies, but perhaps a broader sense of how the two …

No-Limit Texas Hold 'Em, Or, The Voir Dire In Dallas County, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Voir dire is Law French for “to speak the truth.” In the United States and a few other common-law countries that still use juries, the term describes the process of selecting jurors who will hear the evidence presented at trial, render a verdict, and sometimes determine punishment. The translation suggests a search for jurors who can render a fair and impartial verdict. Attorneys try to discover and remove jurors who seem unable or unlikely to speak the truth, such as those who nurture irrational prejudices or harbor private grievances.

In most federal courts, the judge is the primary conduit for …

The Endogeniety Problem In Cost-Benefit Analysis, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Cost-benefit analysis, an important technique in American public sector decision-making, is used to assess policies through aggregating the estimated willingness to pay of the affected persons to enjoy the benefits or avoid the burdens of those policies. Such analyses are generally based on the implicit simplifying assumptions that both the preferences of existing persons and the genetic identities of the persons who will comprise future generations are exogenous with respect to that policy. If, however, some persons’ preferences are endogenous in that they are altered by a policy, which is often the case, then this exogenous preferences assumption will introduce …

Race, American Law And The State Of Nature, George A. Martinez

Faculty Journal Articles and Book Chapters

This article advances a new theoretical framework to help explain and understand race and American law. In particular, the article argues that we can employ a philosophical model to attempt to understand what often occurs when the dominant group deals with persons of color. The article contends that when the dominant group acts with great power or lack of constraint, it often acts as though it were in what political philosophers have called the state of nature. Thus, this article argues that there is a tendency for the dominant group to act as though it were in the state of …

Ten Questions On National Security, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This essay was written in response to an invitation by the editors of the William Mitchell Journal of the National Security Forum to answer one or more of ten questions concerning national security law and policy. This essay provides the author's answer to the question: "Would President Obama have the authority to hold a United States citizen without charge in a military brig for six months if that citizen - who lives in Minnesota - is suspected of links to al Qaeda following a one-month trip to Somalia?"

Presentation Of Jeffrey Kahn, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This short essay is based on remarks given at the Kennan Institute at the conference ‘The Russian Constitution at Fifteen: Assessments and Current Challenges to Russia’s Legal Development’. A central focus of these remarks is the undoing of the federal system described in the 1993 Constitution.

The Future Of Oil And Gas Law, John S. Lowe

Faculty Journal Articles and Book Chapters

Author’s thesis is simple: Oil and gas jurisprudence has a bright future. We live in a hydrocarbons world, and our economic system is not going to change dramatically overnight; we will continue to live in a world powered and heated by hydrocarbons for at least the next twenty years. In fact, world demand for oil and gas is likely to increase substantially. From the turn of the twenty-first century until mid-2008, the world watched as oil prices first inched upwards and then surged. The high energy costs that energized us until a year and a half ago (and that appear …

The Texas Mis-Step: Why The Largest Child Removal In Modern U.S. History Failed, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

This Article sets forth the historical and legal reasons as to how the State of Texas botched the removal of 439 children from the Fundamentalist Church of Jesus Christ of Latter-Day Saints parents residing in Eldorado, Texas. The Department of Family and Protective Services in Texas overreached its authority by treating this case like a class-action removal based on an impermissible legal argument, rather than focusing on the facts and circumstances that could have been substantiated for a select group of children at risk. This impermissible legal argument regarding the “pervasive belief system” of a polygamist sect that allowed minor …

Shareholder Democracy And The Curious Turn Toward Board Primacy, Grant M. Hayden, Matthew T. Bodie

Faculty Journal Articles and Book Chapters

Corporate law is consumed with a debate over shareholder democracy. The conventional wisdom counsels that shareholders should have more voice in corporate governance, in order to reduce agency costs and provide democratic legitimacy. A second set of theorists, described as “board primacists,” advocates against greater shareholder democracy and in favor of increased board discretion. These theorists argue that shareholders need to delegate their authority in order to provide the board with the proper authority to manage the enterprise and avoid short-term decision making.

In the last few years, the classical economic underpinnings of corporate law have been destabilized by a …

Pregnancy, Work, And The Promise Of Equal Citizenship, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

Saving Civil Justice: Judging Civil Justice, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

No abstract provided.

The Managerial Judge Goes To Trial, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

Scholars have examined the phenomenon of pre-trial judicial management, but have ignored the ways in which this problematic set of attitudes has invaded the trial phase of litigation. This article examines the use of managerial discretion at the trial stage and demonstrates that trial-phase managerial decisions suffer from all the problems of their pre-trial counterparts: 1) trial management involves judges so intimately in the parties’ information and strategies that it may compromise the judges’ impartiality; 2) it leads to a loss of transparency as more decisions are made off the record or in chambers; 3) management decisions are not guided …

All Human Rights Are Equal, But Some Are More Equal Than Others: The Extraordinary Rendition Of A Terror Suspect In Italy, The Nato Sofa, And Human Rights, Eric Talbot Jensen, Chris Jenks

Faculty Journal Articles and Book Chapters

On November 4, 2009, an Italian court found a group of Italian military intelligence agents, operatives from the Central Intelligence Agency and a U.S. Air Force (USAF) officer guilty of the 2003 kidnapping of terror suspect Abu Omar. Thrown in a van on the streets of Milan, the abduction took Abu Omar from Italy to Egypt, where he was allegedly tortured and interrogated about his role in recruiting fighters for extremist Islamic causes, including the insurgency in Iraq.

This essay posits that lost amidst politically charged rhetoric about Bush administration impunity and the “war on terror” is that the Italian …