Law Commons^™

How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs

Faculty Scholarship

Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.

Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are …

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy Meyer

Faculty Scholarship

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism's retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states-often rising or reluctant powers such as China and the United States-without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the European Union: from contractual …

The Costs Of Changing Our Minds, Nita A. Farahany

Faculty Scholarship

This isn’t quite a draft yet – it’s a concept paper. You’ll see after the first 10 pages a good bit of text in brackets, which are primarily notes for me, but it’ll give you a sense of the content of those sections. I’d like to talk through the concept – the “duty” to mitigate emotional distress damages and how courts have struggled with it, as a foray into a broader dichotomy that I see in a number of areas of law that suggest an implicit value in “cognitive liberty.” This is a smaller version of a broader book project …

Consumption, Risk And Prioritarianism, Matthew D. Adler, Nicolas Treich

Faculty Scholarship

In this paper, we study consumption decisions under risk assuming a prioritarian social welfare function, namely a concave transformation of individual utility functions. Under standard assumptions, there is always more current consumption under ex ante prioritarianism than under utilitarianism. Thus, a concern for equity (in the ex ante prioritarian sense) means less concern for the risky future. In contrast, there is usually less current consumption under ex post prioritarianism than under utilitarianism. We discuss the robustness of these results to learning, and to other forms of prioritarian social welfare functions.

The Impact Of Income Disparity On Financial Regulation, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …

Applause For The Plausible, Brandon L. Garrett

Faculty Scholarship

This short essay examines the seemingly contradictory definitions and associations of the word "plausible," which the Supreme Court unexpectedly elevated to a key gatekeeping role for all of federal civil litigation in its rulings altering the pleading standard in Twombly and Iqbal. Justices, judges and commentators have not focused on what "plausible" means, for some good reasons; it carries with it connotations of the "reasonable" and the "fair" but also "superficial," "often specious" and "pretext." I can offer only a plausible defense of the seemingly contradictory meanings of this word deployed to regulate allegations in federal complaints, for which the …

Hazardous Hedging: The (Unacknowledged) Risks Of Hedging With Credit Derivatives, Gina-Gail S. Fletcher

Faculty Scholarship

Is hedging with credit derivatives always beneficial? The benefit of hedging with credit derivatives, such as credit default swaps, is presumed by the Dodd-Frank Act, which excludes hedge transactions from much of the new financial regulation. Yet, significant new risks can arise when credit derivatives are used to manage risks. Hedging, therefore, should be defined not only in relation to whether a transaction offsets risks, but also whether, on balance, the risks that are mitigated—as well as any new risks that arise—are outweighed by the potential benefits.

Regulators of the derivatives markets must consider the risks of hedging with credit …

Selling State Borders, Joseph Blocher

Faculty Scholarship

Sovereign territory was bought and sold throughout much of American history, and there are good reasons to think that an interstate market for borders could help solve many contemporary economic and political problems. But no such market currently exists. Why not? And could an interstate market for sovereign territory help simplify border disputes, resolve state budget crises, respond to exogenous shocks like river accretion, and improve democratic responsiveness? Focusing on the sale of borders among American states, this Article offers constitutional, political, and ethical answers to the first question, and a qualified yes to the second.

Clever Or Clueless? Observations About Bombing Norm Debates, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Five Steps To Successfully Developing A Law Practice Technology Course, Femi Cadmus

Faculty Scholarship

No abstract provided.

Private Equity Firms As Gatekeepers, Elisabeth De Fontenay

Faculty Scholarship

Notwithstanding the considerable attention private equity receives, there continues to be substantial confusion about what private equity does and whether this creates value. Calls for more aggressive regulation of the industry reflect a skeptical view of private equity as—at best—a zero-sum game, in which profits are generated only at the expense of other constituencies. The standard defense of private equity points to its corporate governance advantages as a source of value. This Article identifies an overlooked and increasingly important way in which private equity creates value: private equity firms act as gatekeepers in the debt markets. As repeat players, private …

Santa Anna And His Black Eagle: The Origins Of Pari Passu?, Benjamin Chabot, Mitu Gulati

Faculty Scholarship

One of the most debated issues in international finance is the meaning of the pari passu clause in sovereign bonds. The clause is ubiquitous; it is in almost every single foreign-law sovereign bond out there. Yet, almost no one seems to agree on its meaning. One way to cut the Gordian knot is to track down the origins of the clause. Modern lawyers may have simply copied the clause from the documents of their predecessors without understanding its meaning. But surely the people who first drafted the clause knew what it meant. Four enterprising students at Duke Law School may …

A Difficult Conversation: Corporate Directors On Race And Gender, Kimberly D. Krawiec, John M. Conley, Lissa L. Broome

Faculty Scholarship

This symposium essay summarizes our ongoing ethnographic research on corporate board diversity, discussing the central tension in our respondents’ views – their overwhelmingly enthusiastic support of board diversity coupled with an inability to articulate coherent accounts of board diversity benefits that might rationalize that enthusiasm. As their reactions make clear, frank dialogue about race and gender – even a seemingly benign discussion of diversity’s benefits – can be a difficult conversation.

A State Preferences Account Of Customary International Law Adjudication, Curtis A. Bradley

Faculty Scholarship

The standard account today of customary international law (CIL) is that it arises from the widespread and consistent practice of states followed out of a sense of legal obligation. Although commonly recited, this account is plagued by evidentiary, normative, and conceptual difficulties, and it has been subjected to increasing criticism in recent years. This paper posits a different account of CIL, considered from the perspective of international adjudication. A fundamental problem with much of the theorizing about CIL, the paper contends, is that it fails to identify which decisionmaker it has in mind. Instead, the discussion proceeds as if CIL …

Gun Rights Talk, Joseph Blocher

Faculty Scholarship

No abstract provided.

None Of The Laws But One, Neil S. Siegel

Faculty Scholarship

This Symposium contribution explores differences in how congressional Republicans responded to Medicare and how they responded to the Patient Protection and Affordable Care Act (ACA). Given the narrowness of the constitutional challenges to the ACA that congressional Republicans promoted and the many federal taxes, expenditures, and regulations that they support, this Article rejects the suggestion that today's Republicans in Congress generally possess a narrow view of the constitutional scope of federal power. The Article instead argues that congressional Republicans then and now-and the two parties in Congress today-fracture less over the constitutional expanse of congressional authority and more over the …

Voting Rights Law And Policy In Transition, Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Single And Childfree! Reassessing Parental And Marital Status Discrimination, Trina Jones

Faculty Scholarship

No abstract provided.

Redefining Genomic Privacy: Trust And Empowerment, Yaniv Erlich, James B. Williams, David Glazer, Kenneth Yocum, Nita A. Farahany, Maynard Olson, Arvind Narayanan, Lincoln D. Stein, Jan A. Witkowski, Robert C. Kain

Faculty Scholarship

Fulfilling the promise of the genetic revolution requires the analysis of large datasets containing information from thousands to millions of participants. However, sharing human genomic data requires protecting subjects from potential harm. Current models rely on de-identification techniques in which privacy versus data utility becomes a zero-sum game. Instead, we propose the use of trust-enabling techniques to create a solution in which researchers and participants both win. To do so we introduce three principles that facilitate trust in genetic research and outline one possible framework built upon those principles. Our hope is that such trust-centric frameworks provide a sustainable solution …

Cheating On Their Taxes: When Are Tax Limitations Effective At Limiting State Taxes, Expenditures, And Budgets?, Colin H. Mccubbins, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

Mitt Romney, The 47% Percent, And The Future Of The Mass Income Tax, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.

Hiv Infrastructure Study Columbia, Sc, Susan S. Reif, Elena Wilson, Carolyn Mcallaster

Faculty Scholarship

No abstract provided.

Hiv Infrastructure Study Baton Rouge, Susan S. Reif, Elena Wilson, Carolyn Mcallaster, Casteel Scherger

Faculty Scholarship

No abstract provided.

The Governance Structure Of Shadow Banking, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Right-Skilling: Rabbis And The Rabbinic Role For A New Century, Barak D. Richman, Daniel Libenson

Faculty Scholarship

This chapter applies Clayton Christensen's model of organizational innovation to Jewish contexts. It observes a parallel between the many challenges that currently confront U.S. healthcare and American Jewry: a mismatch in the skills acquired by professionals and the needs expressed by the broader public; expensive institutions with high fixed costs that are struggling to provide value and maintain sustainable revenues; a failure to respect individual autonomy and cultural mores; and a disenfranchised public that suffers from high costs and unmet demand for meaningful services. It then applies Christensen's adapted model for the healthcare sector to American Jewish institutions, suggesting reforms …

The Banality Of Wrongful Executions, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Immigration's Family Values, Kerry Abrams, R. Kent Piacenti

Faculty Scholarship

No abstract provided.

The Constitutional Standing Of Corporations, Brandon L. Garrett

Faculty Scholarship

Are corporations “persons” with constitutional rights? The Supreme Court has famously avoided analysis of the question, while recognizing that corporations may litigate rights under the Due Process Clause, Equal Protection Clause, First Amendment, Fourth Amendment, Sixth Amendment, and Seventh Amendment, but not, for example, the Self-Incrimination Clause of the Fifth Amendment. What theory explains why corporations may litigate some constitutional rights and not others? In this Article, I argue that the doctrine of Article III standing supplies an underlying general theory by requiring a judge to ask: does the organization suffer a concrete constitutional injury to its legal interests? Such …

Towards A “Rule Of Law” Approach To Restructuring Sovereign Debt, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.