Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (5)
- Judges (3)
- Supreme Court of the United States (3)
- Courts (2)
- Legal Ethics and Professional Responsibility (2)
-
- State and Local Government Law (2)
- Administrative Law (1)
- Agency (1)
- Banking and Finance Law (1)
- Civil Procedure (1)
- Civil Rights and Discrimination (1)
- Criminal Law (1)
- First Amendment (1)
- Human Rights Law (1)
- Immigration Law (1)
- Jurisprudence (1)
- Law and Gender (1)
- Legal Education (1)
- Legal History (1)
- Legal Profession (1)
- Legislation (1)
- Property Law and Real Estate (1)
- Keyword
-
- Compliance; corporate governance; enforcement (2)
- Aba; ethics rules; professionalism; lawyering; death-penalty (1)
- Aba; professional ethics; duty of candor; criminal law; lawyering (1)
- Adjudication; Cardozo; common law; duty; escola; instrumentalism; MacPherson v. Buick; negligence; pragmatism; preemption; privity; traynor (1)
- Bailout; financial crisis; takings; investor expectations; AIG; General Motors; Fannie Mae; Fifth Amendment; Freddy Mac (1)
-
- Constitutionalism; congress; national sovereignty; Marbury v. Madison; Supreme Court (1)
- Corporate governance; corporation law; activist-nominated directors; director compensation; golden leash; shareholder activism; activist investors; institutional investors; event study; share pricing; governance innovations (1)
- Courts; regulations; civil liability; professionalism; disciplinary (1)
- Criminal law (1)
- Death penalty; federal regulation; capital punishment; abolition; race; criminal justice (1)
- Death penalty; firing squad; execution methods; Eighth Amendment; Supreme Court (1)
- European union; ECT; treaty of amsterdam; article 13; court of justice (1)
- Feminism; feminist legal theory; gender equality (1)
- Feminism; governance; world bank; gender; scholarship (1)
- Forum shopping (1)
- Global shopping (1)
- Immigration law; congress; executive branch; federal administration; bureaucratic officials (1)
- Lawyering; legal profession; professionalism; (1)
- Park Street Church; Massachusetts General Colored Association; Frederick Brinsley; Controversy of 1830 (1)
- Prosecutors; ethics; professionalism; misconduct; regulations (1)
- Race; gender; criminals; background checks (1)
- Race; racism; medicine; patients (1)
- Reasonable doubt (1)
- Religious freedom restoration act; RFRA; supreme court; hobby lobby; zubik; free speech clause; first amendment (1)
- Statute; agency; chevron; marbury v. madison (1)
- Supreme court (1)
- Supreme court; Justices; legal scholar; congress (1)
- Transnational litigation (1)
- Walker v. Texas Division; first amendment; government speech; constitution; supreme court (1)
Articles 1 - 29 of 29
Full-Text Articles in Law
The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene
The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene
Faculty Scholarship
In Walker, the Court deemed Texas’ specialty license plate program government speech, and thus applied no First Amendment review to the state’s refusal to allow a Confederate battle flag specialty plate, even though the reason for the refusal was that the plate was offensive. The dissent considered this unconstitutional viewpoint discrimination in a limited public forum. This article argues that the Walker result was correct, but for the wrong reason. Government should have the power to forbid hateful or vulgar speech from limited public forums such as specialty or vanity license plates, transit ads, and after-school extracurricular activities, even though …
A Secular Test For A Secular Statute, Abner S. Greene
A Secular Test For A Secular Statute, Abner S. Greene
Faculty Scholarship
This short essay argues that a secular test is available to determine what constitutes a “substantial burden” on religious exercise under the Religious Freedom Restoration Act. It takes issue with the Court’s approach that is more deferential to the claimant, and with approaches offered by Professors Sepinwall and Helfand. It resists Sepinwall’s argument that proximity in law tracks a subjective sense of complicity, and it takes issue with Helfand’s argument that examining the substantiality of burden would implicate the religious question doctrine.
A Convenient Seat In God's Temple: The Massachusetts General Colored Association And The Park Street Church Pew Controversy Of 1830, Marc Arkin
Faculty Scholarship
The Massachusetts General Colored Association was the most advanced black civil rights organization of its day. In 1830, the MGCA backed a protest against segregated pews in Boston s Park Street Church, an event that provided a crucial opening for the alliance between black abolitionists and William Lloyd Garrison s New England Anti Slavery Society.
Reasonable Doubt And Moral Elements, Youngjae Lee
Reasonable Doubt And Moral Elements, Youngjae Lee
Faculty Scholarship
The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. …
The Complicated Economics Of Prison Reform, John F. Pfaff
The Complicated Economics Of Prison Reform, John F. Pfaff
Faculty Scholarship
No abstract provided.
The Unsung Virtues Of Global Forum Shopping, Pamela K. Bookman
The Unsung Virtues Of Global Forum Shopping, Pamela K. Bookman
Faculty Scholarship
Forum shopping gets a bad name. This is even more true in the context of transnational litigation. The term is associated with unprincipled gamesmanship and undeserved victories. Courts therefore often seek to thwart the practice. But in recent years, exaggerated perceptions of the “evils” of forum shopping among courts in different countries have led U.S. courts to impose high barriers to global forum shopping. These extreme measures prevent global forum shopping from serving three unappreciated functions: protecting access to justice, promoting private regulatory enforcement, and fostering legal reform.
This Article challenges common perceptions about global forum shopping that have supported …
Courting Abolition, Deborah W. Denno
Courting Abolition, Deborah W. Denno
Faculty Scholarship
This Review of Courting Death offers a different take on two of Professor Carol Steiker and Professor Jordan Steiker's major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty. The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge. In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument — for example, the emergence of unforeseeable exogenous …
Agencies Obligation To Interpret The Statute, Aaron J. Saiger
Agencies Obligation To Interpret The Statute, Aaron J. Saiger
Faculty Scholarship
No abstract provided.
Thinking In The Box In Legal Scholarship: The Good Samaritan And Internet Libel, Benjamin C. Zipursky
Thinking In The Box In Legal Scholarship: The Good Samaritan And Internet Libel, Benjamin C. Zipursky
Faculty Scholarship
No abstract provided.
Should There Be A Specialized Ethics Code For Death-Penalty Defense Lawyers, Bruce A. Green
Should There Be A Specialized Ethics Code For Death-Penalty Defense Lawyers, Bruce A. Green
Faculty Scholarship
State ethics codes based on the ABA Model Rules of Professional Conduct address lawyers' work in advocacy but do not target lawyers' work in particular areas of advocacy or in other specialized practice areas. For more than forty years, critics have asserted that existing ethics rules are too superficial and should be supplemented by specialized rules. This article examines the utility of specialized ethics rules for one particular sub-specialty-death-penalty defense practice. After identifying arguments for and against a specialized ethics code for death-penalty cases, the article analyzes the arguments in the context of a particular ethics dilemma that some death-penalty …
Gender Indicators As Global Governance: Not Your Father's World Bank, Catherine Powell
Gender Indicators As Global Governance: Not Your Father's World Bank, Catherine Powell
Faculty Scholarship
No abstract provided.
Resetting The Baseline Of Ownership: Takings And Investor Expectations After The Bailouts, Nestor M. Davidson
Resetting The Baseline Of Ownership: Takings And Investor Expectations After The Bailouts, Nestor M. Davidson
Faculty Scholarship
During the economic crisis that began in 2008, the federal government nationalized several of the nation’s most significant private companies as part of a broad effort to forestall a global depression. Shareholders in those companies later filed suit, alleging that the federal government in so doing—and in subsequent actions while in control of the firms—took their property without compensation in violation of the Fifth Amendment. To date, those claims have not succeeded. If these cases continue on their current trajectory, with courts rejecting arguments that the rescue of systematically important firms on the brink of collapse requires compensation for shareholders, …
Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Bruce A. Green, Samuel J. Levine
Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Bruce A. Green, Samuel J. Levine
Faculty Scholarship
No abstract provided.
Adding A Little Gold To The Golden Years: Should The European Union Prohibit Compulsory Retirement As Aged-Based Discrimination In Employment?, Roger J. Goebel
Adding A Little Gold To The Golden Years: Should The European Union Prohibit Compulsory Retirement As Aged-Based Discrimination In Employment?, Roger J. Goebel
Faculty Scholarship
On October 2, 1997, the Member States of the European Union signed the Treaty of Amsterdam which amended the European Community Treaty (ECT). Among the Amsterdam Treaty's most important new provisions was ECT Article 13, which authorized the Council of Ministers, acting unanimously, to "take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief disability, age or sexual orientation." The Council acted with surprising rapidity to adopt Directive 2000/78, which prohibits discrimination in employment on all the listed bases (except for "racial or ethnic origin, " which is covered by Directive 2000/43). Since December …
Reconsidering Criminal Background Checks: Race, Gender, And Redemption, Kimani Paul-Emile
Reconsidering Criminal Background Checks: Race, Gender, And Redemption, Kimani Paul-Emile
Faculty Scholarship
No abstract provided.
The Question Concerning Technology In Compliance, Sean J. Griffith
The Question Concerning Technology In Compliance, Sean J. Griffith
Faculty Scholarship
In this symposium Essay, I apply insights from philosophy and psychology to argue that modes of achieving compliance that focus on technology undermine, and are undermined by, modes of achieving compliance that focus on culture. Insisting on both may mean succeeding at neither. How an organization resolves this apparent contradiction in program design, like the broader question of optimal corporate governance arrangements, is highly idiosyncratic. Firms should therefore be accorded maximum freedom in designing their compliance programs, rather than being forced by enforcement authorities into a set of de facto mandatory compliance structures.
The Myths Of Macpherson, Benjamin C. Zipursky, John C.P. Goldberg
The Myths Of Macpherson, Benjamin C. Zipursky, John C.P. Goldberg
Faculty Scholarship
For a symposium marking the centenary of MacPherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, …
Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski
Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski
Faculty Scholarship
No abstract provided.
How Corporate Governance Is Made: The Case Of The Golden Leash, Matthew D. Cain Ph.D., Jill E. Fisch, Sean J. Griffith, Steven D. Solomon
How Corporate Governance Is Made: The Case Of The Golden Leash, Matthew D. Cain Ph.D., Jill E. Fisch, Sean J. Griffith, Steven D. Solomon
Faculty Scholarship
This Article presents a case study of a corporate governance innovation — the incentive compensation arrangement for activist-nominated director candidates colloquially known as the “golden leash.” Golden leash compensation arrangements are a potentially valuable tool for activist shareholders in election contests. In response to their use, several issuers adopted bylaw provisions banning incentive compensation arrangements. Investors, in turn, viewed director adoption of golden leash bylaws as problematic and successfully pressured issuers to repeal them. The study demonstrates how corporate governance provisions are developed and deployed, the sequential response of issuers and investors, and the central role played by governance intermediaries …
Bureaucratic Administration: Experimentation And Immigration Law, Joseph Landau
Bureaucratic Administration: Experimentation And Immigration Law, Joseph Landau
Faculty Scholarship
In debates about executive branch authority and policy innovation, scholars have focused on two overarching relationships—horizontal tension between the president and Congress and the vertical interplay of federal and state authority. However, these debates have overlooked the role of frontline bureaucratic officials in advancing the laws they administer. This Article looks to immigration law—in which lower-level federal officers exercise discretion delegated down throughout federal agencies—to identify how bottom-up agency influences can inform categorical, across-the-board executive branch policy. In this Article, I argue that decisions by frontline officers can and should be better harnessed to pair local laboratories of executive experimentation …
Introduction, Special Issue: Feminist Legal Theory, Maxine Eichner, Clare Huntington
Introduction, Special Issue: Feminist Legal Theory, Maxine Eichner, Clare Huntington
Faculty Scholarship
No abstract provided.
The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno
The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno
Faculty Scholarship
This Article does not address the medical debate surrounding the role of midazolam in executions; the problems associated with using the drug have been persuasively argued elsewhere. Nor does it question the soundness of the Glossip Court’s “alternative method of execution” requirement. Rather, this Article’s proposed reform is a constitutionally acceptable alternative that meets the Glossip Court’s standard, rendering moot—at least for the purposes of the following discussion—very real concerns regarding the validity of that dictate. Part I of this Article pinpoints several areas where the Glossip Court goes wrong in glaringly inaccurate or misleading ways, given the vast history …
Being Good Lawyers: A Relational Approach To Law Practice, Eli Wald, Russell G. Pearce
Being Good Lawyers: A Relational Approach To Law Practice, Eli Wald, Russell G. Pearce
Faculty Scholarship
In response to past generations of debates regarding whether law is a business or profession, we advance an alternative approach that rejects the dichotomies of business and profession, or hired gun and wise counselor. Instead, we propose a relational account of law practice. Unlike frameworks grounded in assumptions of atomistic individualism or communitarianism, a relational perspective recognizes that all actors, whether individuals or organizations, have separate identities yet are intrinsically inter-connected and cannot maximize their own good in isolation. Through the lens of relational self-interest, maximizing the good of the individual or business requires consideration of the good of the …
The Monsanto Lecture: Online Defamation, Legal Concepts, And The Good Samaritan, Benjamin C. Zipursky
The Monsanto Lecture: Online Defamation, Legal Concepts, And The Good Samaritan, Benjamin C. Zipursky
Faculty Scholarship
No abstract provided.
Candor In Criminal Advocacy, Bruce A. Green
Prosecutorial Accountability 2.0, Bruce A. Green, Ellen Yaroshefsky
Prosecutorial Accountability 2.0, Bruce A. Green, Ellen Yaroshefsky
Faculty Scholarship
No abstract provided.
Corporate Governance In An Era Of Compliance, Sean J. Griffith
Corporate Governance In An Era Of Compliance, Sean J. Griffith
Faculty Scholarship
Compliance is the new corporate governance. The compliance function is the means by which firms adapt behavior to legal, regulatory, and social norms. Formerly, this might have been conceived as a typical governance matter to be handled at the discretion of the board of directors. Compliance, however, does not fit traditional models of corporate governance. It does not come from the board of directors, state corporate law, or federal securities law. Compliance amounts instead to an internal governance structure imposed upon the firm from the outside by enforcement agents. This insight has important implications, both practical and theoretical, for corporate …
Fiduciary Political Theory: A Critique, Ethan J. Leib, Stephen R. Galoob
Fiduciary Political Theory: A Critique, Ethan J. Leib, Stephen R. Galoob
Faculty Scholarship
“Fiduciary political theory” is a burgeoning intellectual project that uses fiduciary principles to analyze public law. This Essay provides a framework for assessing the usefulness and limitations of fiduciary political theory. Our thesis is that fiduciary principles can be fruitfully applied to many domains of public law. However, other domains are incompatible with the basic structure of fiduciary norms. In these domains, fiduciary political theory is less likely to be viable.
One contribution of this Essay is to describe the underlying structure of fiduciary norms. We identify three features of these norms that differentiate them from norms of contract, tort, …
Dealing With Racist Patients, Kimani Paul-Emile, Alexander K. Smith, Bernard Lo, Alicia Fernández
Dealing With Racist Patients, Kimani Paul-Emile, Alexander K. Smith, Bernard Lo, Alicia Fernández
Faculty Scholarship
No abstract provided.