Law Commons^™

Who’S Going To Pick Up The Trash? Using The Build America Bond Program To Help State And Local Governments’ Cash Deficits, Randle B. Pollard

Scholarly Articles

All over the United States, state and local governments are facing increasing revenue deficits due to the current economic recession. Even during good economic times, state and local governments experience temporary cash-flow deficits. State and local governments use short-term municipal bond debt to finance temporary cash-flow deficits caused by the normal erratic collection of tax revenue. The issuance of short-term debt secured by future tax revenue has always been a financing tool that helped local governments with cash-flow problems.

The effects of the subprime mortgage crisis and the current recession threaten state and local governments’ ability to use this financial …

Quieting Cognitive Bias With Standards For Witness Communications, Melanie D. Wilson

Scholarly Articles

Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated roundtable discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section's undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored Standards may lessen the detrimental …

Seven Principles: Increasing Access To Law School Among Students Of Color, Catherine E. Smith

Scholarly Articles

In Fall 2010, I became one of the first tenured professors in the nation to hold a deanship dedicated exclusively to diversity in a school of law. As the Associate Dean of Institutional Diversity and Inclusiveness at the University of Denver's Sturm College of Law ("SCOL"), I am charged with strengthening access to the legal academy, particularly among, but not limited to, students and faculty of color. This Essay describes the evolution of my role and the seven principles that currently guide student pipeline and recruitment efforts at the SCOL. These principles help the SCOL focus those efforts, work strategically, …

Managing Corporate Federalism: The Least-Bad Approach To The Shareholder Bylaw Debate, Christopher M. Bruner

Scholarly Articles

Over recent decades, shareholders in public corporations have increasingly sought to augment their own power – and, correlatively, to limit the power of boards – through creative use of corporate bylaws. The bylaws lend themselves to such efforts because enacting, amending, and repealing bylaws are essentially the only corporate governance actions that shareholders can undertake unilaterally. In this Article I examine the contested nature of bylaws, the fundamental issues of corporate power and purpose that they implicate, and the differing ways in which state and federal lawmakers and regulators may impact the debate regarding the scope of the shareholders' bylaw …

Corporate Governance Reform In A Time Of Crisis, Christopher M. Bruner

Scholarly Articles

In this article I argue that crisis-driven corporate governance reform efforts in the United States and the United Kingdom that aim to empower shareholders are misguided, and offer an explanation of why policymakers in each country have reacted to the financial crisis as they have. I first discuss the risk incentives of shareholders and managers in financial firms, and examine how excessive leverage and risk-taking in pursuit of short-term returns for shareholders led to the crisis. I then describe the far greater power and centrality that U.K. shareholders have historically possessed relative to their U.S. counterparts, and explore historical and …

Finding Possession: Labor, Waste And The Evolution Of Property, Jill M. Fraley

Scholarly Articles

Although possession has long been intimately linked to labor, recent historical work on land claims during the sixteenth and seventeenth centuries suggests that the clash of divergent legal cultures of possession drove the two apart. This clash yielded an American concept of possession much more deeply connected to industrialization than the traditional understanding of labor. By providing evidence of how our concept of labor was industrialized, this article questions the outcomes in modem possession cases, particularly as they impact development and environmental preservation in rural areas.

Techniques To Teach Substance And Skill In Contract Drafting: In-Office Meetings And Analytical Memos, Lyman P. Q. Johnson

Scholarly Articles

This short article is based on a talk at Emory Law School on Transactional Lawyering. One overall pedagogical aim of a transactional course (or any business contract drafting course) is to link skills training with insistence on in-depth substantive learning about law and business. In this way, skills training – although acknowledged to be practical – also can be recognized as intellectually demanding, a point not always appreciated by proponents of more traditional law teaching. Two techniques for making the connection – in-office meetings and detailed “companion” analytical memos – are described.

Enduring Equity In The Close Corporation, Lyman P.Q. Johnson

Scholarly Articles

This Article develops the theme of change/sameness in corporate law. Written to commemorate the thirty-fifth anniversary of Wilkes v. Springside Nursing Home, Inc., the Article argues that the equitable fiduciary duties so central to Wilkes endure today in the close corporation precisely because equity, by its nature, is so exquisitely adaptive – under constantly changing circumstances − to the ongoing pursuit of a just ordering within the corporation. Unlike fixed legal rules – which are categorical, static, and do not take sufficient account of changes wrought by time or human arationality – equity is malleable and timely as it reckons …

Two Models Of Corporate Social Responsibility, David K. Millon

Scholarly Articles

The article discusses the two perspectives of corporate social responsibility (CSR). It states that the constituency model of CSR focus on the constituent elements of the company including shareholders, senior management, and employees. It mentions that the sustainability approach to CSR focus on the external relationships as well as the long-run sustainability of the company.

Delaware's Non-Waivable Duties, Lyman P. Q. Johnson

Scholarly Articles

This Article disputes the view - seemingly settled among scholars, judges, and lawyers - that recently - enacted statutes in Delaware legally permit fiduciary duties to be waived in noncorporate business associations. The argument is a rarity in business law because it is a constitutional argument, not one initially based on policy considerations or statutory interpretation, and it seeks to harmonize judicial review of fiduciary duties in noncorporate businesses with that in Delaware corporations, where waivers are not permitted. Delaware’s Constitution vests the Delaware Court of Chancery with general equity jurisdiction and powers of a kind that cannot be curtailed …

Good Faith In Revlon-Land, Christopher M. Bruner

Scholarly Articles

The Delaware Supreme Court has set a very high hurdle for plaintiffs challenging directors' good faith in the sale of a company. In Lyondell Chemical Company v. Ryan, the court held that unconflicted directors could be found to have breached the good faith component of their duty of loyalty in the transactional context only if they "knowingly and completely failed to undertake," and "utterly failed to attempt" to discharge their duties.

In this essay I argue that the Lyondell standard effectively imports into the transactional context the exacting standard previously applied in the oversight context — a move clearly aimed …

Sigtarp And The Executive-Legislative Clash: Confronting A Bowsher Issue With An Eye Toward Preserving The Separation Of Powers During Future Crisis Legislation, Aaron R. Sims

Washington and Lee Law Review

No abstract provided.

Images Of Force: The Power Of Maps In Community Development, Jill M. Fraley

Scholarly Articles

Recent trends in critical geography have drawn attention to the secret political lives of maps. Beneath a veneer of abstraction and scientific neutrality, maps are deeply political devices, embedding within them perspectives on what is important in a community, what are assets and what are liabilities, what is central and what is marginal. By drawing on the historical example of the mapping work of the Tennessee Valley Authority in the United States, this article examines the power of maps in community development, land use planning and natural resource allocation. This examination yields a lesson in the significance of the maps …

Independent Contractors, Employees, Andentrepreneurialism Under The Nationallabor Relations Act: A Worker-By-Worker Approach, Micah Prieb Stoltzfus Jost

Washington and Lee Law Review

No abstract provided.

W(H)Ither The Jury? The Diminishing Role Of The Jury Trial In Our Legal System, Jennifer Walker Elrod

Washington and Lee Law Review

No abstract provided.

Native Nation Economic Development Via The Implementation Of Solar Projects: How To Make It Work, Ryan David Dreveskracht

Washington and Lee Law Review

No abstract provided.

Fragmented Lives: Disability Discrimination And The Role Of "Environment-Framing", Ani B. Satz

Washington and Lee Law Review

This Article presents a novel theory that courts undermine the purpose of the Americans with Disabilities Act (ADA) by implicitly embracing environment-frames that disfavor disability protections. Courts employ environment-frames at two stages of judicial analysis under the Act: the disability eligibility and remedy stages. In determining whether a plaintiff is in the statutorily protected class, courts typically use a broad environment-frame to assess limitation of a "major life activity." The larger the environment-frame, the more likely a court will view an individual as able to perform a major life activity in some portion of her environment and deny her protected …

Due Process In Civil Commitments, Alexander Tsesis

Washington and Lee Law Review

In one of its most controversial decisions to date, United States v. Comstock, the Roberts Court upheld a federal civil commitment statute requiring only an intermediate burden of proof. The statute provided for the postsentencing confinement of anyone proven by "clear and convincing evidence" to be mentally ill and dangerous. The law relied on a judicial standard established more than thirty years before. The majority in Comstock missed the opportunity to reassess the precedent in light of recent psychiatric studies indicating that the ambiguity of available diagnostic tools can lead to erroneous insanity assessments and mistaken evaluations about patients’ likelihood …

Employee Or Entrepreneur?, Jeffrey M. Hirsch

Washington and Lee Law Review

No abstract provided.

Sigtarp: A Problem In Name Only?, Adam F. Scales

Washington and Lee Law Review

No abstract provided.

Reconceptualizing Present-Value Analysis In Consumer Bankruptcy, Rafael I. Pardo

Washington and Lee Law Review

During the three decades following the enactment of the Bankruptcy Code, courts and commentators have been vexed by the problem of determining the present value of future payments to creditors proposed in a debtor’s repayment plan. The issue central to this problem has been the discount rate to be applied when conducting present-value analysis. While the Code unmistakably requires the discounting of future payments as part of the process for confirming a repayment plan, the Code does not explicitly specify the rate itself or the manner in which the rate should be calculated. No uniform rule of decision has emerged …

Keeping Hope Alive, David K. Millon

Washington and Lee Law Review

No abstract provided.

Finding Sigtarp In The Separation Of Powers Labyrinth, Jonathan R. Siegel

Washington and Lee Law Review

No abstract provided.

Gas Flaring In Nigeria‘S Niger Delta: Failed Promises And Reviving Community Voices, Eferiekose Ukala

Washington and Lee Journal of Energy, Climate, and the Environment

This Note examines the use of litigation to stop gas flaring in Nigeria’s Niger Delta, and proposes an alternative solution to the ongoing gas flaring in the Niger Delta region. In exploring an alternative solution, this Note (1) details the history of gas flaring in Nigeria; (2) discusses Nigeria’s gas-flaring legislation and its implementation; (3) analyzes the impact that landmark gas flaring cases have had on the stoppage of gas flaring; and (4) details how litigation has been used as a tool to combat gas flaring, juxtaposing the concept of the rule of law. This Note concludes by suggesting that …

The Improbability Of Meaningful Climate Change Regulation: A Constructivist Understanding Of The Global Commons And The Need For U.S. Leadership, Stacey Valentine

Washington and Lee Journal of Energy, Climate, and the Environment

Climate change is a topic that permeates today’s scientific, political, and social discourse. It is a term that is both widely known and hotly debated across the country and across the globe. While an ever-increasing majority of the scientific and political realms has come to the conclusion that meaningful climate change regulation is necessary to prevent negative repercussions across the globe, there is little consensus on what that regulation should look like or how to bring it about. The nature of greenhouse gases, or GHGs, makes international cooperation a must if the world hopes to prevent and avoid the experts’ …

Using The Federal Communication Commission’S Tower Construction Notification System As A Model For Siting Nuclear Waste On Native American Land, Casey Zivin

Washington and Lee Journal of Energy, Climate, and the Environment

Since the advent of nuclear power in the United States in the mid-20th century, the federal government has struggled to find a suitable location to store the hazardous waste associated with nuclear power generation. In 1991, in an attempt to solve the problem of storing nuclear waste, the federal government created grant programs which offered funding to states and Native American tribes who volunteered to store nuclear waste on their lands. One tribe in particular, the Skull Valley Goshute of Utah, viewed storing nuclear waste as an opportunity to infuse their reservation with monies. Further, because tribes enjoy sovereign status …

The Development Of Environmental Governance Regimes: A Chinese-Inspired Reconstruction, Roda Mushkat

Washington and Lee Journal of Energy, Climate, and the Environment

The challenge of protecting the biosphere has both salient academic and policy dimensions. On the academic side, persistent efforts have been made in the field of socio-legal studies to enhance the understanding of the complex processes involved, in the domestic arena and on the international front, in the formation and transformation of the elaborate institutional arrangements designed to contribute to this goal. The scholars engaged in those efforts have pursued divergent paths, but one school of thought has moved decisively to the forefront. China’s experience does not cast doubt on its relevance, or even prominence, yet it suggests that multi-pronged …

College Suicide: A Law And Policy Perspective, Gary Pavela

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Insights Gleaned From The Tragedy At Virginia Tech, Lucinda Roy

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Appropriate Responses Of Campus Security Forces, Donald Challis

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.