Law Commons^™

The Light Of Nature: John Locke, Natural Rights, And The Origins Of American Religious Liberty, Steven Heyman

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No abstract provided.

Law’S Facilitating Role In The Field Of Social Enterprise., Evelyn Brody

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A Review of Dana Brakman Reiser and Steven A. Dean. Social Enterprise Law: Trust, Public Benefit, and Capital Markets. New York: Oxford University Press, 2017, 216 pp., $44.95 (hardback) ISBN 978-0-19-024978-6To appreciate the contribution of Professors Dana Brakman Reiser and Steven A. Dean in their pathbreaking volume on social enterprise law, we must begin by recognizing what we are not discussing. As the authors declare: “social enterprises are not charities” (p. 165). By definition, social enterprises are businesses, and thus not subject to the nondistribution constraint so familiar to nonprofit scholars and practitioners. An impact investor seeks profit, perhaps limited …

Liability For Mass Sexual Abuse, Tsachi Keren-Paz, Richard Wright

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When harm is caused to victims by multiple injurers, difficult issues arise indetermining causation of, legal responsibility for, and allocation of liability forthose harms. Nowhere is this truer than in child pornography and sex traffickingcases, in which individuals have been victimized over extended periods oftime by hundreds or even many thousands of injurers, with multiple and oftenoverlapping victims of each injurer. Courts (and lawyers) struggle with thesesituations for a simple reason: they insist on applying tests of causation thatfail when the effect was over-determined by multiple conditions. The failure toproperly understand the causation issue has exacerbated failures to properlyunderstand and …

Ispy: Threats To Individual And Institutional Privacy In The Digital World, Lori Andrews

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What type of information is collected, who is viewing it, and what law librarians can do to protect their patrons and institutions.

Foster V. Chatman: A Missed Opportunity For Batson And The Peremptory Challenge, Nancy Marder

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In 2016, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way …

A General Approach For Predicting The Behavior Of The Supreme Court Of The United States, Daniel Katz

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Building on developments in machine learning and prior work in the science of judicial prediction, we construct a model designed to predict the behavior of the Supreme Court of the United States in a generalized, out-of-sample context. To do so, we develop a time-evolving random forest classifier that leverages unique feature engineering to predict more than 240,000 justice votes and 28,000 cases outcomes over nearly two centuries (1816-2015). Using only data available prior to decision, our model outperforms null (baseline) models at both the justice and case level under both parametric and non-parametric tests. Over nearly two centuries, we achieve …

No Way To Run And "Airline": Surviving An Air Ambulance Ride, Henry Perritt

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No abstract provided.

The Dna Default And Its Discontents: Establishing Modern Parenthood, Katharine Baker

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Most contemporary family law scholarship assumes that propriety of a DNA default for establishing parenthood - a presumption that, in the absence of marriage, whoever had the sex with the mother that resulted in the child should be the father of the child. This article problematizes that DNA default. It demonstrates how the DNA default necessarily magnifies the legal and social importance of sex, discounts the legal significance of women's reproductive labor, and marginalizes all children living outside the binary, heteronormative norm that a genetic regime necessarily edifies. When scrutinized, the DNA default looks just as moralistic and exclusionary as …

Comparison Excluding Commitments: Incommensurability, Adjudication, And The Unnoticed Example Of Trade Disputes, Sungjoon Cho, Richard Warner

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We claim that there are important cases of “incommensurability” in public policymaking, in which all relevant reasons are not always comparable on a common scale as better, worse, or equally good. Courts often fail to confront this. We are by no means the first to contend that incommensurability exists. Yet incommensurability’s proponents have failed to sway the courts mainly because they overlook the fact that there are two types of incommensurability. The first (“incompleteness incommensurability”) consists of the lack of any appropriate metric for making the comparison. We argue that this type of incommensurability is relatively unproblematic in that courts …

Investing And Pretending, Anita Krug

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One of the more prominent components of Dodd–Frank’s regulatory changes was Title VII, providing for the regulation of the over-the-counter derivatives known as “swaps.” A swap is a financial instrument whose value is based on an asset—the “reference asset”—that is wholly unrelated to the swap itself. Although there was much ado about swap regulation immediately after Dodd–Frank’s enactment, the same cannot be said of the many rules that the Commodity Futures Trading Commission (“CFTC”) has subsequently adopted pursuant to its authority under Title VII. This Article critically evaluates the CFTC’s “swap rules” and identifies the regulatory vision that they reflect. …

Downstream Securities Regulation, Anita Krug

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Securities regulation wears two hats. Its “upstream” side governs firms in connection with their obtaining financing in the securities markets. That is, it regulates firms’ and issuers’ offers and sales of securities, whether in public offerings to retail investors or in private offerings to institutional investors. Its “downstream” side, by contrast, governs financial services providers, who assist with investors’ activities in those markets. Their services include providing advice regarding securities investments, as investment advisers do; aggregating investors’ assets for purposes of enabling those investors to invest their assets collectively, as mutual funds do; and acting as “middlemen” between buyers and …

Escaping Entity-Centrism In Financial Services Regulation, Anita Krug

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In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric when they assume that a financial services firm is a stand-alone entity, operating separately from and independently of any other entity. They are entitycentric, therefore, when the specific requirements and obligations they comprise are addressed only to an abstract and solitary “firm,” with little or no contemplation of affiliates, parent companies, subsidiaries, or multi-entity enterprises. Regulatory entity-centrism is not an isolated phenomenon, as …

Reinventing The Development Wheel Of The World Trading System (Reviewing Sonia E. Rolland, Development At The World Trade Organization (2012)), Sungjoon Cho

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In probing how WTO norms may affect developing countries, Sonia Rolland introduces two paradigms in this book: development as an idiosyncrasy and development as a normative co-constituent to trade. The first paradigm concerns development-related exceptions and carve-outs found within WTO rules and agreements that exemplify a contingent provision of special favors to developing countries. Overall, it represents a limited mandate on development in the WTO. In contrast, the second paradigm embodies a normative operationalization of development agenda within the WTO system. It normatively reconstructs WTO rules and institutions in a way where development is a core mandate of the WTO, …

Reconstructing World Politics: Norms, Discourse, And Community, Sungjoon Cho

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This Article argues that the conventional (rationalist) approach to world politics characterized by political bargain cannot fully capture the new social reality under the contemporary global ambience where ideational factors such as ideas, values, culture, and norms have become more salient and influential not only in explaining but also in prescribing state behaviors. After bringing rationalism’s paradigmatic limitations into relief, the Article offers a sociological framework that highlights a reflective, intersubjective communication among states and consequent norm-building process. Under this new paradigm, one can understand an international organization as a “community” (Gemeinschaft), not as a mere contractual instrument of its …

Women's Legal History Symposium Introduction: Making History, Felice J. Batlan

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This essay introduces the Chicago-Kent Symposium on Women's Legal History: A Global Perspective. It seeks to situate the field of women's legal history and to explore what it means to begin writing a transnational women's history which transcends and at times disrupts the nation state. In doing so, it sets forth some of the fundamental premises of women's legal history and points to new ways of writing such histories.

Regionalization, Development And Competition Law: Exploring The Political Dimension, David J. Gerber

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In discussions of the regionalization of competition law, the political dimension often leads a shadowy existence. Regionalization tends to be presented with a hint of a halo around it. States are presented as acting for a shared policy objective intended to benefit all, and political issues often sit uncomfortably with that image. This is particularly true when regionalization involves ‘developing countries’. Here there is often a further level of ‘common good’ discourse. Regionalization is here portrayed not only as a communal experience and goal, but also as one designed to reduce poverty and aid economic development. Where regionalization involves competition …

Institutionalization, Investment Adviser Regulation, And The Hedge Fund Problem, Anita Krug

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This Article contends that more effective regulation of investment advisers could be achieved by recognizing that the growth of hedge funds, private equity funds, and other private funds in recent decades is a manifestation of institutionalization in the investment advisory context. That is, investment advisers today commonly advise these “institutions,” which have supplanted other, smaller investors as advisory clients. However, the federal securities statute governing investment advisers, the Investment Advisers Act of 1940, does not address the role of private funds as institutions that now intermediate those smaller investors’ relationships to investment advisers. Consistent with that failure, investment adviser regulation …

The Creativity Effect (With C. Sprigman), Christopher J. Buccafusco

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No abstract provided.

Reasonable Grounds Evidence Involving Sexual Violence In Darfur (With J. Hagan & R. Brooks), Todd Haugh

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No abstract provided.

The Ecological Advantages Of Nuclear Power, Fred P. Bosselman

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Major electric utilities are deciding whether to build nuclear power plants. How will their decision affect ecological processes and systems, both in the United States and globally? The article makes three arguments: (1) if nuclear power plants are not built, the gap will be filled by more coal-fired power plants; (2) the impact of coal-fired power plants on ecological processes and systems is likely to be increasingly disastrous; and (3) nuclear power’s ecological impacts are likely to be neutral or even positive.

Private Fund Adviser Registration Act Hr-3818, Anita Krug

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This paper comments on the Obama administration's 2009 proposal for the regulation of hedge fund investment advisers.

Financial Regulatory Reform And Private Funds, Anita Krug

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This white paper comments on the Obama administration's June 2009 proposal for the regulation of hedge fund investment advisers.

The Regulatory Response To Madoff, Anita Krug

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This white paper evaluates investor protection mechanisms in the securities regulatory regime at the time the Madoff fraud was exposed. It considers whether the post-Madoff call for additional regulation of hedge funds and/or their managers - and/or their respective activities - was warranted.

Planning For A Bull Market For Wetlands, Fred P. Bosselman

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Until recently, wetlands had value in the marketplace only as targets for destruction. Today, wetlands often have market value for uses that do not require that they be dredged and filled. Such opportunities include: 1. Carbon storage offsets for greenhouse gas emissions; 2. Mitigation banks for destruction of other wetlands; 3. Conservation banks for wildlife protection; 4. Tradable water quality protection rights; 5. Sites for growing algae or other biofuel crops. These new uses have valid public benefits, but most laws and ordinances were not written with these possibilities in mind. Planners and lawyers need to think about ways to …

The Hedge Fund Transparency Act Of 2009, Anita Krug

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This white paper provides a review and critique of a bill introduced by Senators Charles Grassley (R-Iowa) and Carl Levin (D-Mich.) in the Senate in early 2009 that, if enacted, would have imposed certain registration and disclosure requirements on hedge funds and certain other private funds.

Happiness And Punishment, Christopher J. Buccafusco, John Bronsteen, Jonathan S. Masur

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This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings' ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by …

Economics, Law And Institutions: The Shaping Of Chinese Competition Law, David J. Gerber

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China has been considering enactment of an anti-monopoly (antitrust) law since 1993, and it has now enacted such a law. Given the potential importance of this legislation, there is much uncertainty about what the enactment means and what roles it is likely to play in influencing the development of the Chinese economy. This article applies a neo-institutionalist analysis in examining some of the factors that have influenced the shaping of the legislation and that are likely to influence the operation of competition law and its organizations. The main argument is that the central dynamic in both the creation of the …

Toward An Identity Theory Of International Organizations, Sungjoon Cho

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Conventional international relations (IR) theorists, such as realists, neo-functionalists or regime theorists, view international organizations (IOs) as passive tools with which to achieve certain goals. Although an IO may facilitate inter-state cooperation and reduce transaction costs, it does not have a life of its own. Therefore, conventional IR theorists focus mostly on the creation of an IO and inter-state cooperation leading up to the creation. As a result, an IO's institutional change remains rather an “under-studied” and “under-theorized” issue in the conventional international relations (IR) framework.

Granted, conventional IR theories may provide useful insights on an inter-national dynamic among creators …

Toward A New Economic Constitution: Judicial Disciplines On Trade Politics, Sungjoon Cho

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This article first observes that protectionism is an icon of trade politics and thus likely to gather fresh momentum as a domestic election approaches. The paper then problematizes protectionism beyond mere seasonal election politics by revealing its fatal pathologies both to the United States and to the rest of the world. Protectionism basically caters to the special interest at the expense of the larger public interest, which may be coined as a Madisonian constitutional failure. It also deviates from global trading norms, which the United States hypocritically continues to preach adherence to for the rest of the world. This double …

Competition Law And The Wto: Rethinking The Relationship, David J. Gerber

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This essay identifies obstacles to the inclusion of a competition law regime in the WTO and suggests changes that are likely to be necessary if competition law is to become an effective part of the WTO. Two obstacles have impeded inclusion of competition law in the WTO's legal regime and are likely to continue to do so. They are (i) a lack of confidence that the norms, practices and procedures of the WTO rest on a robust conception of community and (ii) uncertainty and concern about what form of competition law might be included and what its role in the …