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Full-Text Articles in Law
The Limits Of Business Limited Liability: Entity Veil Piercing And Successor Liability Doctrines, John Matheson
The Limits Of Business Limited Liability: Entity Veil Piercing And Successor Liability Doctrines, John Matheson
Articles
The quest for limited liability in business enterprises and transactions has been a driving force in the development of business organization law for centuries. The historical development of corporations and limited partnerships evidences this primary goal. The recent development of the modern forms of limited liability partnerships and limited liability companies proves that this quest continues unabated. In addition, parties to significant business transfer transactions have long sought by construct and contract to apportion and limit their respective legal responsibilities and liabilities.Counterbalancing this inexorable trend toward limited liability has been the penchant of common law jurisprudence to define its limits. …
Varieties Of Youth Justice, Anthony Doob, Michael Tonry
Varieties Of Youth Justice, Anthony Doob, Michael Tonry
Articles
No abstract provided.
At The Cutting Edge Of Labor Law Preemption: A Critique Of Chamber Of Commerce V. Lockyer, Stephen F. Befort, Bryan N. Smith
At The Cutting Edge Of Labor Law Preemption: A Critique Of Chamber Of Commerce V. Lockyer, Stephen F. Befort, Bryan N. Smith
Articles
This article analyzes the contours of federal labor law preemption through the lens of the Ninth Circuit Court of Appeals recent decision in Chamber of Commerce v. Lockyer, 364 F.3d 1154 (9th Cir. 2004). This case involves a constitutional challenge brought by the U.S. Chamber of Commerce and several other organizations to California Assembly Bill 1889 (AB 1889), enacted by the California legislature effective in 2001. This statute prohibits certain public employers, state grant recipients, and state contractors from using state-provided funds or property to assist, promote, or deter union organizing efforts. The Ninth Circuit, in a decision issued in …
Through The Years: The Supreme Court And The Copyright Clause, Ruth Okediji
Through The Years: The Supreme Court And The Copyright Clause, Ruth Okediji
Articles
No abstract provided.
Are Torture Warrants Warranted? Pragmatic Absolutism And Official Disobedience, Oren Gross
Are Torture Warrants Warranted? Pragmatic Absolutism And Official Disobedience, Oren Gross
Articles
May torture ever be morally or legally permissible? In Why Terrorism Works, Professor Alan Dershowitz makes two important claims. First, he rejects the notion that a prohibition on torture ought to be absolute. Second, in an attempt to limit the use of torture and maximize civil liberties Dershowitz suggests the mechanism of judicial torture warrants as a prerequisite to torturing suspected terrorists in interrogations. This article challenges both of Dershowitz's propositions by introducing two interlinked claims based on concepts of pragmatic absolutism and official disobedience. I argue that an absolute legal ban on torture ought to be maintained. However, in …
Employment Discrimination Remedies And Tax Gross Ups, Gregg Polsky, Stephen Befort
Employment Discrimination Remedies And Tax Gross Ups, Gregg Polsky, Stephen Befort
Articles
This article considers whether a successful employment discrimination plaintiff may be entitled, under current law, to receive an augmented award (a gross up) to neutralize certain adverse federal income tax consequences. The question of whether such a gross up is allowed, the resolution of which can have drastic effects on litigants, has received almost no attention from practitioners, judges, and academics. Because of the potentially enormous impact of the alternative minimum tax (AMT) on discrimination lawsuit recoveries, however, the gross up issue is now beginning to appear in reported cases. The three principal federal anti-discrimination statutes - Title VII, the …
Let's Not "Spit The Bit" In Defense Of "The Law Of The Horse": The Historical And Legal Development Of American Thoroughbred Racing, Joan Howland
Articles
No abstract provided.
Researching Labor Arbitration And Alternative Dispute Resolution In Employment, Employee Advocate: A Publication Of The National Employment Lawyers Association, Laura Cooper, Suzanne Thorpe
Researching Labor Arbitration And Alternative Dispute Resolution In Employment, Employee Advocate: A Publication Of The National Employment Lawyers Association, Laura Cooper, Suzanne Thorpe
Articles
No abstract provided.
The Public And Private Ordering Of Marriage, Brian Bix
Accommodation At Work: Lessons From The Americans With Disabilities Act And Possibilities For Alleviating The American Worker Time Crunch, Stephen F. Befort
Accommodation At Work: Lessons From The Americans With Disabilities Act And Possibilities For Alleviating The American Worker Time Crunch, Stephen F. Befort
Articles
This article addresses issues of accommodation and time with respect to the American worker time crunch problem. On the former issue, I concur in Professor Arnow-Richman's observation that an accommodation approach to addressing the competing pressures of work and family is prone to resistance from the courts. Experience under the ADA illustrates a judicial reluctance to go beyond a traditional equal treatment view of discrimination to embrace a more affirmative different treatment model of discrimination. But this does not mean that the ADA's reasonable accommodation framework has been a failure. To the contrary, while the reasonable accommodation requirement may have …
A New Voice For The Workplace: A Proposal For An American Works Councils Act, Stephen F. Befort
A New Voice For The Workplace: A Proposal For An American Works Councils Act, Stephen F. Befort
Articles
Surveys show that American workers want more "voice" in the workplace. For the past century, unions have served as the principle voice mechanism for workers, but with the decline of unions, employee voice also has diminished. Section 8(a)(2) of the NLRA compounds this problem by prohibiting most employer-supported programs by which employees "deal with" employers concerning terms and conditions of employment. Both the East and the West offer possible alternative voice mechanisms. Over the past two decades, American employers increasingly have looked to the Japanese experience in adopting quality circles, work teams, and other employee involvement programs. But the growth …
The Labor And Employment Law Decisions Of The Supreme Court's 2003-04 Term, Stephen F. Befort
The Labor And Employment Law Decisions Of The Supreme Court's 2003-04 Term, Stephen F. Befort
Articles
It is longstanding tradition for the Secretary of the ABA's Labor and Employment Law Section to prepare a summary of the labor and employment decisions issued during each Supreme Court term. This article summarizes seven labor and employment decisions issued by the Court during its 2003-04 term as well as two other decisions that, while not arising under a labor or employment statute, have potential implications for labor and employment law. The article also analyzes each of the decisions for their overall impact and significance within the field of labor and employment law. The article goes on to discuss how …
Lessons From The Rise And (Possible) Fall Of Chinese Township-Village Enterprises, Brett Mcdonnell
Lessons From The Rise And (Possible) Fall Of Chinese Township-Village Enterprises, Brett Mcdonnell
Articles
The success of Chinese township-village enterprises (TVEs) poses a puzzle for a property rights approach to the theory of the firm, since no one really holds well-defined, transferable property rights to control and claim the residual profits of TVEs. TVEs also pose a second puzzle: in the last five or seven years, they have started to experience serious problems, despite reforms which have improved TVEs from a property rights perspective. This paper takes ideas from property rights and institutional approaches to economics and examines whether those ideas can help explain both of these puzzles. As to the first puzzle, reforms …
Corporate Constituency Statutes And Employee Governance, Brett Mcdonnell
Corporate Constituency Statutes And Employee Governance, Brett Mcdonnell
Articles
The paper compares the effects of corporate constituency statutes versus employee involvement in corporate governance, using a simple model to consider interactions between shareholders, employees, and managers. Both constituency statutes and employee governance tend to lead to a redistribution from shareholders to employees. However, constituency statutes do so at the cost of weakening limits on managerial misbehavior, thereby reducing social welfare. In contrast, employee governance strengthens the limits on managerial misbehavior, and hence is potentially more desirable than constituency statutes.
The Wrong Way To Equality: Privileging Consent In The Trafficking Of Women For Sexual Exploitation, Beverly Balos
The Wrong Way To Equality: Privileging Consent In The Trafficking Of Women For Sexual Exploitation, Beverly Balos
Articles
Chamoli lived near the birthplace of the Buddha in Nepal. When she was 16, she met a young man and fell in love with him. He promised to marry her but insisted that she come away with him to India. So one day she ran away with the boyfriend and crossed the border to India on foot. From there she and her boyfriend took a train to the Indian city of Poona. Once they had reached Poona, Chamoli was taken to a house where there was an older Nepali lady and many young girls. The lady gave her boyfriend some …
Is Lawrence Libertarian?, Dale Carpenter
Is Lawrence Libertarian?, Dale Carpenter
Articles
Lawrence v. Texas 1 begins with "Liberty" and ends with "freedom." 2 For the first time in its history the Supreme Court invalidated a law criminalizing sexual conduct. Add to that sweeping statements in Lawrence celebrating individual "autonomy." 3 Consider too the Court's surprising revival of substantive due process, a doctrine entombed with musty traditions in liberty-denying decisions like Bowers v. Hardwick 4 and Washington v. Glucksberg. 5 What is more, Lawrence is not your father's substantive due process. The pre-Lawrence doctrine bifurcated the world into a large domain of almost unprotected "liberty interests" and a very small and increasingly …
The Unknown Past Of Lawrence V. Texas, Dale Carpenter
The Unknown Past Of Lawrence V. Texas, Dale Carpenter
Articles
On the night of September 17, 1998, someone called the police to report that a man was going crazy with a gun inside a Houston apartment. When Harris County sheriff's deputies entered the apartment they found no person with a gun but did witness John Lawrence and Tyron Garner having anal sex. This violated the Texas Homosexual Conduct law,3 and the deputies hauled them off to jail for the night. Lawyers took the men's case to the Supreme Court and won a huge victory for gay rights.
A Man's Home Is His Castle: How The Law Shelters Domestic Violence And Sexual Harassment, Beverly Balos
A Man's Home Is His Castle: How The Law Shelters Domestic Violence And Sexual Harassment, Beverly Balos
Articles
Violence against women is a pervasive problem in the United States. Historically, however, society did not take violence against women seriously. The law trivialized the abusive behaviors that led to harm against women.3 For example, until relatively recently there was not a legally recognized term for what is now labeled sexual harassment.4 It is now acknowledged that at work women are faced with the problem of sexual harassment.
The Antipaternalism Principle In The First Amendment, Dale Carpenter
The Antipaternalism Principle In The First Amendment, Dale Carpenter
Articles
Much attention has been paid of late to unauthorized disseminations of classified information. A grand jury proceeding has been initiated to investigate the leak and publication of information about the National Security Agency's warrantless electronic surveillance program. And in a case currently pending in the Eastern District of Virginia, the U.S. government for the first time is prosecuting private citizens for exchanging classified information in the course of concededly non-espionage activities - specifically, political lobbying. These events illuminate the underdeveloped and deeply under-theorized state of the law on classified information leaks and publications. The central chasm in existing theory and …
Sox Appeals, Brett Mcdonnell
Sox Appeals, Brett Mcdonnell
Articles
Through the Sarbanes-Oxley Act ("SOx"), Congress appeals to two groups, regulators and private actors. Most of the new duties and liabilities that SOx creates have limited legal substance, advancing little beyond previous rules. However, we must look further to see how regulators and private actors are responding. The SEC's rulemaking efforts directly required under SOx have not been inspiring, but SOx has helped prod the SEC into rulemaking which potentially could prove more important than all of the provisions of SOx combined: rules giving shareholders the ability to nominate directors using the corporation's proxy tools. The New York Stock Exchange …
International Human Rights Law Perspective On Grutter And Gratz, David Weissbrodt
International Human Rights Law Perspective On Grutter And Gratz, David Weissbrodt
Articles
There is an international human rights law aspect to Grutter v. Bollinger 1 and Gratz v. Bollinger 2 that might be missed by many lawyers and scholars who rarely consider any legal domain beyond the limits of the U.S. Constitution. Indeed, Grutter and Gratz reflect a trend in Supreme Court opinions to use international human rights sources in interpreting the Constitution.
The Sub-Commission's Initiative On Human Rights And Intellectual Property, David Weissbrodt, Kell Schoff
The Sub-Commission's Initiative On Human Rights And Intellectual Property, David Weissbrodt, Kell Schoff
Articles
In 2000 the United Nations Sub-Commission on the Promotion and Protection of Human Rights adopted a resolution raising concerns about the consistency of international intellectual property protections and human rights norms. This article summarises human rights norms relevant to intellectual property and the pertinent aspects of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which overlap or potentially conflict. The article provides several examples of potential conflict and how they might be resolved. The article demonstrates that the Sub-Commission resolution helped to initiate a major international discussion and some action on the relationship between human rights and intellectual property.
Government Policy Towards Innovation In The United States, Canada, And The European Union As Manifested In Patent, Copyright, And Competition Laws, Daniel J. Gifford
Government Policy Towards Innovation In The United States, Canada, And The European Union As Manifested In Patent, Copyright, And Competition Laws, Daniel J. Gifford
Articles
THE United States, Canada, the European Union, Japan and most industrialized nations have adopted patent, copyright and other intellectual property laws. A major or primary purpose of those laws is to foster innovation, including technological innovation. Industrial and technological innovation is generally perceived as a good because technological advances increase a society's productivity, 1 thus increasing its wealth and raising living standards. The major industrialized nations also possess competition laws, one of whose purposes is to preserve, foster and support competitive markets. These nations want to preserve competitive markets because competitive markets help to allocate available resources to their highest …
How Do The Social Benefits And Costs Of The Patent System Stack Up In Pharmaceuticals?, Daniel J. Gifford
How Do The Social Benefits And Costs Of The Patent System Stack Up In Pharmaceuticals?, Daniel J. Gifford
Articles
This paper explores the workings of the patent system in the context of the generation of new pharmaceutical products. First it identifies the relevant characteristics of the patent system and its relation to the market. The paper concedes that, in general, the patent system is probably the best way of generating new technology, in substantial part because that system uses the market to provide both incentives and rewards. The paper also identifies downsides of this patent/market system: deadweight loss and the unresponsiveness of that patent/market system to the needs of the poor. The paper then explores the social costs and …
Moral Judgment Of Law Students Across Three Years: Influences Of Gender, Political Ideology And Interest In Altruistic Law Practice, Maury Landsman, Steven P. Mcneel
Moral Judgment Of Law Students Across Three Years: Influences Of Gender, Political Ideology And Interest In Altruistic Law Practice, Maury Landsman, Steven P. Mcneel
Articles
Jokes and negative stereotypes about lawyers abound, suggesting low levels of honesty and morality. One commentator has suggested a reason for this: The joke rings true to a lot of people because of what many lawyers in this country - including many at the top of the profession - do for their clients: bend, distort, conceal, cover up, obfuscate, or misrepresent the facts, in ways that are simultaneously (1) regarded by ordinary people as just plain dishonest, and (2) defended by many lawyers and legal experts as embodying the finest traditions of the bar and of legal ethics in our …