Law Commons^™

Coming Up Short: The United States' Second-Best Strategies For Corralling Purely Speculative Derivatives, Timothy E. Lynch

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Purely speculative derivatives (PSDs) are derivatives in which neither counterparty is engaged in hedging. Unless used for entertainment purposes, PSDs are irrational, less-than-zero-sum transactions. Entities that engage in PSDs jeopardize their stakeholders and increase systemic risk. PSDs can also increase moral hazard, be used for regulatory arbitrage, and redirect resources away from efficient allocation of market capital. PSDs should be unenforceable, void for public policy reasons, except where expressly permitted to provide gambling entertainment, enhance price discovery, or increase liquidity for hedgers. In the U.S., however, PSDs are often legal and enforceable, even after the financial crisis of 2008 that …

Mental Health, Psychology And The Law Symposium: Introduction, Sean O'Brien

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The authors coordinated and edited a symposium law review issue on Mental Health, Psychology and the Law. The Introduction summarizes submissions that included a memoir from an author whose family members were consumers of mental health services, legal scholars and practitioners who use mental health evidence to defend clients facing the death penalty, and the duty of attorneys to tend to their own mental health care needs while dealing with these emotionally heavy issues.

The Medicaid Gamble, Ann Marie Marciarille

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The Patient Protection and Affordable Care Act (ACA) was an unprecedented gamble. The ACA transformed Medicaid from an unevenly and underfunded program for the poor and disabled to a program to offer those priced out of commercial insurance markets government-funded health insurance similar to Medicare, the single-payer system for seniors and the disabled. In a sense, the ACA gambled that Medicaid could be more like Medicare.

The ACA, as it was transformed by the Supreme Court of the United States, became a gamble on the part of the Court that good things would follow from empowering each of the states …

Gully And The Failure To Stake A 28 U.S.C. § 1331 'Claim', Lumen N. Mulligan

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In this piece, I argue that a return to Gully v. First National Bank in Meridian as an approach to 28 U.S.C. § 1331 jurisdiction is ill-conceived. In a recent thoughtful article, Professor Simona Grossi draws heavily upon the traditions of the legal process school’s approach to federal courts jurisprudence to support just such a resurrection of Gully as the lodestar for § 1331 doctrine. While embracing a return to the legal process school, I argue first that the Gully view — read as a call for judges simply to select sufficiently important matters, in relation to plaintiff’s case in …

Achieving Gender Equity Under Title Ix For Girls From Minority, Urban, Rural, And Economically Disadvantaged Communities, Kenneth D. Ferguson

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Unless middle school and high school girls in urban, rural, and minority communities are given the opportunities to participate in the emerging women’s sports, gender equity is being only facially achieved because Title IX requirements are implemented without specific regard to detrimental impacts on the aforementioned subgroups. This Article will consider the intersection of race, gender, economic status, and community characteristics with sports participation for girls in grades K-12 and will argue that there are two categories of intentional discrimination that are both actionable under Title IX. The first is direct discrimination by a perpetrator of the discrimination — the …

The Ethical-Religious Framework For Shalom, Michael E. Cafferky

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This paper explores the ancient Hebrew Decalogue, the Ten Commandments, a traditional ethical-religious framework for business conduct, in terms of its contribution to well-being. Some elements of the Decalogue align with what contemporary scholars believe are generally-accepted moral principles expected of businesses. This paper addresses the question of how all the elements of the Decalogue contribute to the Hebrew concept of Shalom. The purpose of the Decalogue is established in the context of a covenant community of believers. Each of the Ten Commandments is evaluated in terms of its contribution to Shalom.

Rule Of Law With Chinese Characteristics: An Empirical Cultural Perspective On China, Hong Kong And Singapore, Jeffrey E. Thomas

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This article uses empirical data to analyse the meaning of rule of law with Chinese characteristics. It compares rule of law data on China, Hong Kong and Singapore from the World Justice Project and finds patterns of more limited protection of individual rights and fewer limits on governmental powers. It then uses Geert Hofstede’s cultural dimensions to consider whether those patterns are related to common cultural characteristics. It finds low scores on the cultural value of individualism in those three jurisdictions are correlated with lower protection for individual rights, and that high scores on Hofstede’s Power Distribution Index are inversely …

School Shootings And The Legislative Push To Arm Teachers, Allen K. Rostron

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No abstract provided.

Still Unconstitutional: Our Nation's Experiment With State-Sponsored Sex Segregation In Education, David S. Cohen, Nancy Levit

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Since federal regulations authorized single-sex education in 2006, there has been an explosion of single-sex schools and classes. Although the Supreme Court has not ruled, three federal court decisions have addressed the constitutionality of single-sex classes, and the issue will percolate toward Supreme Court review soon. The arguments are that parents should have choices and “diversity” of educational options, that “brain research” shows that boys and girls are so biologically different to need sex-specific educational environments, that educational outcomes are better, and single-sex learning environments allows boys and girls to break through gender stereotypes. This article dissects these arguments within …

Report: The Need To Renew Tria Aba Tips Task Force On Federal Involvement In Insurance Regulation Modernization, Jeffrey E. Thomas

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This Report support’s the position by the ABA TIPS Task Force on Federal Involvement in Insurance Regulation Modernization that the Terrorism Risk Insurance Act (TRIA) should be renewed. Although the market for terrorism insurance has developed with the support of TRIA, the fundamental nature of terrorism risk has not changed and continues to require the Federal backstop. Because of the unpredictability of terrorism risk, without a Federal backstop many insurers will withdraw from the terrorism market, the price of terrorism insurance will rise and take-up rates will fall. Other countries facing terrorism risk, in some cases substantially less risk than …

Book Review: Lawless Capitalism: The Subprime Crisis And The Case For An Economic Rule Of Law, William K. Black

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No abstract provided.

How Real Is The Concern That Seed Patents Will Turn Farmers Into Inadvertent Infringers?, Christopher M. Holman

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The fear that farmers could be found liable for patent infringement based on the inadvertent presence of patented genetically modified plants on the farmer’s fields has led to calls for limitations on the scope and enforceability of patents. These “reforms” would be especially problematic for agricultural biotechnology companies like Monsanto, but the repercussions could be more widespread, impacting a host of important cutting-edge technologies like synthetic biology and nanotechnology. Although stories of farmers being sued by Monsanto after their fields where inadvertently contaminated by genetic drift are widely circulated, inadvertent infringement based upon genetic drift or the presence of trace …

The Continuing Battle Over The Second Amendment, Allen K. Rostron

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No abstract provided.

Introduction: Mental Health, Psychology, And The Law, Mary Kay Kisthardt

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The authors coordinated and edited a symposium law review issue on Mental Health, Psychology and the Law. The Introduction summarizes submissions that included a memoir from an author whose family members were consumers of mental health services, legal scholars and practitioners who use mental health evidence to defend clients facing the death penalty, and the duty of attorneys to tend to their own mental health care needs while dealing with these emotionally heavy issues.

Cultural Imaginary, The Rule Of Law, And (Post-) Colonialism In Indonesia: Perspectives From Pramoedya Ananta Toer's This Earth Of Mankind, Jeffrey E. Thomas

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This article focuses on culture and rule of law in Indonesia, which provides an excellent case study in colonialism and post-colonialism. The colonial heritage of Indonesia goes back to the early 1500’s until independence was declared in August 1945. This Earth of Mankind by Pramoedya Ananta Toer is an appropriate text because it concerns the struggle of a Native Indonesian with various colonial institutions at the turn of the 19th Century through the eyes of an author who lived through colonial rule, Japanese occupation, and liberation. This article begins with a framework for analysis of the cultural imaginary based on …

Experiential Education And Our Divided Campuses, Margaret E. Reuter, Joanne M. Ingham

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The Carnegie education masters, legal employers, and the ABA have appealed for more experiential teaching in law schools. The time is now; every school will soon have to provide at least 6 credits of clinic, field placement, and skills courses for each of their students according to the ABA’s most recent amendments to the Standards for Approval of Law Schools. Many educators and commentators proclaim the successes of the experiential courses to date, and assume that our current offerings just have to be expanded to accommodate the influx of students. However examination of the nature of the experiential coursework of …

Why We Need A Comprehensive Recording Fraud Registry, Randall K. Johnson

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This essay argues for a modest expansion of the Nationwide Mortgage Licensing System and Registry (NMLS). It does so, initially, by explaining why this online registry limits one type of recording fraud. The essay later describes how the NMLS could detect, and deter, more recording fraud. Lastly, it deals with concerns about a Comprehensive Recording Fraud Registry.

The Diy Digital Exhibition Experience At Tarrant County College, Ayyoub Ajmi

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The Northeast Campus Library of Tarrant County College District in Texas used a Title III Grant to support an innovative project consisting of repurposing old laptops as digital exhibition platforms available to students, faculty and staff. A small number of the frames are used for library promotion displaying FAQs, new acquisitions, and events. The rest of the digital frames are used for exhibition purposes. The project’s mission is to promote student success by increasing library attendance, promote the use of library services by building dynamic and long-term partnerships with other departments, and provide exposure and recognition to students, faculty and …

Foreword – Institutional Responsibility For Sex And Gender Exploitation, Nancy Levit

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Organizations are increasingly being held accountable for sex and gender exploitation perpetrated by individuals who are associated with them. The idea of litigating toward gender justice by making institutional actors responsible for various forms of sex and gender discrimination unites the articles in this Symposium.

This Foreword begins by tracking the evolution of tort law from its early vindication of isolated individual claims to its much more recent incarnation as an instrument of social reform for collective interests. The second part addresses legal impediments that prevent redress of certain types of gendered harms — ranging from areas that are virtually …

Advanced Property Issues In Family Law: An Annotated Bibliography, Travis Mcdonald, Nancy Levit

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This bibliography covers law review articles published, for the most part, after 2006 on property issues within the context of family law. Articles for which the title is self-explanatory or that concern only a single case, state, or statute are cited, but not annotated.

Where Schools Close In Chicago, Randall K. Johnson

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It is often assumed that schools close, disproportionately, in disadvantaged parts of Chicago. The assumption, however, has yet to be substantiated by research. As a result, this article tests the assumption in order to explain where schools close in Chicago. It does so by introducing a new Chicago Public School (CPS) closings dataset. The dataset sheds some light on the phenomenon by identifying 130 schools that closed, twenty-seven ZIP codes that experienced CPS closings and three demographic characteristics of these ZIP codes. In the process, this dataset helps to explain how CPS closings relate to race, income and location.

Patent Eligibility Post-Myriad: Reinvigorated Judicial Wildcard Of Uncertain Effect, Christopher M. Holman

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In the 1970s and early 1980s the US Supreme Court issued several landmark decisions establishing the contours of patent eligibility, a judicially created doctrine that serves as a gatekeeper to prevent the patenting of subject matter deemed so fundamental as to be better left unpatented. Over the course of the next 25 years the Court of Appeals of the Federal Circuit oversaw a progressive expansion in the scope subject matter deemed patent eligible, highlighted by the adoption in the 1990’s of a “useful, concrete and tangible” test for patent eligibility that for all practical purposes seemed to subsume the patent …

Mayo, Myriad, And The Future Of Innovation In Molecular Diagnostics And Personalized Medicine, Christopher M. Holman

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Contrary to popular perception, the Supreme Court’s recent decision in Association for Molecular Pathology v. Myriad Genetics, Inc., finding certain patent claims reciting isolated genomic DNA molecules patent ineligible is likely to have a relatively minor impact on the patenting of diagnostics and personalized medicine. Method claims generally play a much more important role than isolated DNA claims in the patenting of innovations in this important technological sector, and the Court’s earlier decision in Mayo v. Prometheus Labs that held claims directed towards non-genetic methods of personalized medicine to be patent ineligible will likely prove significantly more problematic in this …