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Full-Text Articles in Law

The Supreme Court, Rule 10b-5, And The Federalization Of Corporate Law, Mark J. Loewenstein Jan 2005

The Supreme Court, Rule 10b-5, And The Federalization Of Corporate Law, Mark J. Loewenstein

Articles

This Article examines Supreme Court jurisprudence since 1997 under the federal securities laws in light of the Court's earlier securities law decisions and in light of its recent decisions construing the Constitution and federal statutes as they relate to the regulation of business. These post-1977 cases strongly suggest that the much-heralded new federalism philosophy of the Supreme Court is not a factor in securities law cases or in business cases generally. Indeed, the opposite seems to be the case. In this context, new federalism cases appear to be an anomaly, with the reality being that the Court is still ...


International Environmental Law: 2005 Annual Report, Vail T. Thorne, Lakshman Guruswamy, Kevin L. Doran Jan 2005

International Environmental Law: 2005 Annual Report, Vail T. Thorne, Lakshman Guruswamy, Kevin L. Doran

Articles

No abstract provided.


Discrimination In Sentencing On The Basis Of Afrocentric Features, William T. Pizzi, Irene V. Blair, Charles M. Judd Jan 2005

Discrimination In Sentencing On The Basis Of Afrocentric Features, William T. Pizzi, Irene V. Blair, Charles M. Judd

Articles

For a long time, social scientists have worried about possible racial discrimination in sentencing in the United States. With a prison population that exceeds two million inmates of whom approximately 48% are African American, the worry over the fairness of the sentencing process is understandable. This article is not about discrimination between racial categories as such, but about a related form of discrimination, namely, discrimination on the basis of a person's Afro-centric features. Section I of the article describes a line of social science research that shows that a person's Afro-centric features have a strong biasing effect on ...


Lawyers' Bargaining Ethics, Contract, And Collaboration: The End Of The Legal Profession And The Beginning Of Professional Pluralism, Scott R. Peppet Jan 2005

Lawyers' Bargaining Ethics, Contract, And Collaboration: The End Of The Legal Profession And The Beginning Of Professional Pluralism, Scott R. Peppet

Articles

This Article combines contractarian economics and traditional ethical theory to argue for a radical revision of the legal profession's codes of ethics. That revision would end the legal profession as we know it-one profession, regulated by one set of ethical rules that apply to all lawyers regardless of circumstance. It would replace the existing uniform conception of the lawyer's role with a more heterogeneous profession in which lawyers and clients could contractually choose the ethical obligations under which they wanted to operate. This "contract model" of legal ethics, in which lawyers could opt in and out of various ...


Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman Jan 2005

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

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No abstract provided.


A Brief Survey Of Deconstruction, Pierre Schlag Jan 2005

A Brief Survey Of Deconstruction, Pierre Schlag

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No abstract provided.


Subjective Decisionmaking And Unconscious Discrimination, Melissa Hart Jan 2005

Subjective Decisionmaking And Unconscious Discrimination, Melissa Hart

Articles

Unconscious bias is widely recognized as the most pervasive barrier to equal employment opportunity for minorities and women in the workplace today and yet many argue that federal laws prohibiting discrimination do not prohibit unconscious discrimination. This article argues that the law does in fact provide some redress for unconscious discrimination. Title VII may not be a perfect method for attacking unconscious bias, but it is a mistake to assume that it is without potential. The article challenges the assumption commonly held by judges that a finding of discrimination must be preceded by the belief that an employer is lying ...


Indigenous Peoples’ Participatory Rights In Relation To Decisions About Natural Resource Extraction: The More Fundamental Issue Of What Rights Indigenous Peoples Have In Lands And Resources, James Anaya Jan 2005

Indigenous Peoples’ Participatory Rights In Relation To Decisions About Natural Resource Extraction: The More Fundamental Issue Of What Rights Indigenous Peoples Have In Lands And Resources, James Anaya

Articles

No abstract provided.


A Property Rights Approach To Sacred Sites Cases: Asserting A Place For Indians As Nonowners, Kristen A. Carpenter Jan 2005

A Property Rights Approach To Sacred Sites Cases: Asserting A Place For Indians As Nonowners, Kristen A. Carpenter

Articles

Although the Free Exercise Clause prohibits governmental interference with religion, American Indians have been unsuccessful in challenging government actions that harm tribal sacred sites located on federal public lands. The First Amendment dimensions of these cases have been well studied by scholars, but this Article contends that it is also important to analyze them through a property law lens. Indeed, the Supreme Court has treated the federal government's ownership of public lands as a basis for denying Indian religious freedoms claims. This Article contends that such holdings rely on an "ownership model" of property law wherein the rights of ...


Arnold Schwarzenegger And Our Common Future, Sarah Krakoff Jan 2005

Arnold Schwarzenegger And Our Common Future, Sarah Krakoff

Articles

No abstract provided.


City Of Sherrill V. Oneida Indian Nation Of New York: A Regretful Postscript To The Taxation Chapter In Cohen's Handbook Of Federal Indian Law, Sarah Krakoff Jan 2005

City Of Sherrill V. Oneida Indian Nation Of New York: A Regretful Postscript To The Taxation Chapter In Cohen's Handbook Of Federal Indian Law, Sarah Krakoff

Articles

No abstract provided.


Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton Jan 2005

Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton

Articles

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning ...


Rites And Rights In Afghanistan: The Hazara And The 2004 Constitution, Justin Desautels-Stein Jan 2005

Rites And Rights In Afghanistan: The Hazara And The 2004 Constitution, Justin Desautels-Stein

Articles

No abstract provided.


Capitalism, Social Marginality, And The Rule Of Law's Uncertain Fate In Modern Society, Ahmed A. White Jan 2005

Capitalism, Social Marginality, And The Rule Of Law's Uncertain Fate In Modern Society, Ahmed A. White

Articles

The rule of law is liberalism's key juridical aspiration. Yet its norms, centered on the principles of legality and legal generality, are being compromised all over the political and legal landscape. For decades, the dominant explanation of this worrying condition has focused mainly on the rise of the welfare state and its apparent incompatibility with the rule of law. But this approach, though shared by a politically diverse range of scholars, is outdated and misconceives the problem. A central function of the modem state has always been to prevent capitalism's inherent tendencies toward social marginalization from devolving into ...


The Hillmon Case, The Macguffin, And The Supreme Court, Marianne Wesson Jan 2005

The Hillmon Case, The Macguffin, And The Supreme Court, Marianne Wesson

Articles

The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court's understanding of the facts of the underlying dispute about the identity of a corpse. The author's investigations into newspaper archives and the original case documents ...


A Response To Professor Bix, Robert F. Nagel Jan 2005

A Response To Professor Bix, Robert F. Nagel

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No abstract provided.


Book Review, S. James Anaya Jan 2005

Book Review, S. James Anaya

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No abstract provided.


Recovering Homelands, Governance, And Lifeways: A Book Review Of Blood Struggle: The Rise Of Modern Indian Nations, Kristen A. Carpenter Jan 2005

Recovering Homelands, Governance, And Lifeways: A Book Review Of Blood Struggle: The Rise Of Modern Indian Nations, Kristen A. Carpenter

Articles

No abstract provided.


The Corporation As Insider Trader, Mark J. Loewenstein, William K.S. Wang Jan 2005

The Corporation As Insider Trader, Mark J. Loewenstein, William K.S. Wang

Articles

With regard to issuer purchases, some of the traditional policy rationales against insider trading do not apply or apply with less force. Nevertheless, courts, commentators, and the SEC have all stated or assumed that a public corporation violates rule 10b-5 by buying its own shares in the market based on material, nonpublic information. In rule 10b-5 cases involving face-to-face transactions, several circuit courts have ruled that the company may not purchase its own stock based on material information not known to the seller. No good reason exists not to apply these precedents to stock market trades by issuers, especially because ...


Navigating Diverse Identities: Building Coalitions Through Redistribution Of Academic Capital--An Exercise In Praxis, Aya Gruber Jan 2005

Navigating Diverse Identities: Building Coalitions Through Redistribution Of Academic Capital--An Exercise In Praxis, Aya Gruber

Articles

No abstract provided.


Book Review, Lakshman D. Guruswamy Jan 2005

Book Review, Lakshman D. Guruswamy

Articles

No abstract provided.


Sustainable Energy: A Preliminary Framework, Lakshman Guruswamy Jan 2005

Sustainable Energy: A Preliminary Framework, Lakshman Guruswamy

Articles

No abstract provided.


The Ghost Of Telecommunications Past, Philip J. Weiser Jan 2005

The Ghost Of Telecommunications Past, Philip J. Weiser

Articles

Paul Starr's The Creation of the Media presents modern policymakers with an important opportunity to consider the historical lessons of the telecommunications industry. This Book Review underscores how Starr's book richly explains some key components of U.S. information policy - such as relying on an integrated strategy of intellectual property, antitrust law, and telecommunications policy - and that some historical lessons are misplaced as to today's environment - such as a categorical skepticism of vertical integration. Moreover, Starr's account of telecommunications history explains that the U.S.'s success in promoting innovation in the information industries reflects our ...


Policing The Spectrum Commons, Philip J. Weiser, Dale N. Hatfield Jan 2005

Policing The Spectrum Commons, Philip J. Weiser, Dale N. Hatfield

Articles

One of the most contested questions in spectrum policy is whether bands of spectrum left as unlicensed will fall victim to the tragedy of the commons. Advocates of increased unlicensed spectrum often downplay what enforcement measures are necessary to minimize interference and to prevent the tragedy of the commons problem. Even imposing spectrum etiquette requirements in addition to the FCC's equipment certification program will fail to address this concern effectively, as the development of such measures - e.g., the requirement that devices listen before they talk - does not ensure that they will be followed. Indeed, if there are incentives ...


Rewriting The Telecom Act: An Introduction, Philip J. Weiser Jan 2005

Rewriting The Telecom Act: An Introduction, Philip J. Weiser

Articles

No abstract provided.


Indigenous Peoples' Rights To Water Under International Norms, David H. Getches Jan 2005

Indigenous Peoples' Rights To Water Under International Norms, David H. Getches

Articles

In this article, Dean Getches examines the nature of international law as it relates to indigenous water rights and evaluates the kinds of claims that native peoples might assert when they are deprived of access to water. Around the world, indigenous peoples have experienced depletion or pollution of their traditional water sources caused by the uses made by dominant, non-native societies. As a result, native peoples' ability to perform water-dependent vocations like farming and fishing, and to perpetuate cultures and spiritual practices requiring water is limited. While a few countries recognize water rights of indigenous peoples in their domestic laws ...


Considering Individual Religious Freedoms Under Tribal Constitutional Law, Kristen A. Carpenter Jan 2005

Considering Individual Religious Freedoms Under Tribal Constitutional Law, Kristen A. Carpenter

Articles

As American Indian nations revitalize their legal systems, there is renewed interest in "tribal law," that is, the law of each of the Indian nations. Today, there is a particular focus on the subject of "individual rights" under tribal law. In tribal contexts, people are highly interested in the legal institutions and rules that govern their lives, especially as many tribal communities are experiencing a period of great political, social, and economic change. At the national level, the Supreme Court repeatedly expresses concern about whether individuals, especially non-Indians, will be treated fairly in tribal court. For scholars, individual rights under ...


The Legacy Of The Bush Ii Administration In Natural Resources: A Work In Progress, David H. Getches Jan 2005

The Legacy Of The Bush Ii Administration In Natural Resources: A Work In Progress, David H. Getches

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No abstract provided.


Energy, Environment & Sustainable Development, Lakshman D. Guruswamy Jan 2005

Energy, Environment & Sustainable Development, Lakshman D. Guruswamy

Articles

No abstract provided.


Moody Investing And The Supreme Court: Rethinking The Materiality Of Information And The Reasonableness Of Investors, Peter H. Huang Jan 2005

Moody Investing And The Supreme Court: Rethinking The Materiality Of Information And The Reasonableness Of Investors, Peter H. Huang

Articles

This Article critically analyzes the judicial decisions and reasoning of the United States Supreme Court and lower courts accepting certain defenses in securities fraud litigation. This Article develops how and why the core notions of materiality of information and the reasonable investor should be revised in light of recent empirical data, experimental evidence, and theoretical models of moody investing. This Article proposes modifying three recent developments in materiality doctrine to take into account moody investing. In particular, this Article argues that current judicial treatment of puffery is flawed because it neglects the power of puffery to alter moods. This Article ...