Law Commons^™

Toward Global Corporate Citizenship: Reframing Foreign Direct Investment Law, Rachel J. Anderson

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This article argues that modern foreign direct investment law is a vestige of the colonial era during which early forms of transnational corporations emerged. Unlike international trade law and despite the dramatic developments of the twentieth century, foreign direct investment law remains largely unchanged. Due to a lack of political will, prior multilateral efforts to implement comprehensive foreign direct investment law reforms have been largely unsuccessful. However, in recent years, growing political will has emerged under the umbrella of Global Corporate Citizenship and related movements. This article posits that Global Corporate Citizenship is an opportunity to reframe and reform foreign …

Race And Essentialism In Gloria Steinem, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper reflects on Angela Harris's essay Race and Essentialism in Feminist Legal Theory.. Harris is one of the foremost law professors in the country. She has co-written or coedited several important critical race theory and feminist theory casebooks as well as a casebook for a first-year course. This particular essay is one of the most cited critical race theory pieces ever, having been referred to in at least 796 articles. Professor Cooper joins a group of distinguished peers, describing the power Harris' work has on them now and when they were developing scholars.

Our First Unisex President?: Black Masculinity And Obama's Feminine Side, Frank Rudy Cooper

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People often talk about the significance of Barack Obama's status as our first black President. During the 2008 Presidential campaign, however, a newspaper columnist declared, "If Bill Clinton was once considered America's first black president, Obama may one day be viewed as our first woman president." That statement epitomized a large media discourse on Obama's femininity. In this essay, Professor Frank Rudy Cooper thus asks how Obama will influence people's understandings of the implications of both race and gender.

To do so, he explicates and applies insights from the fields of identity performance theory, critical race theory, and masculinities studies. …

Should The Government Prosecute Monopolies?, Maurice Stucke

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In the past few years, courts and the Department of Justice have cited approvingly the Court's dicta in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP. This article analyzes why the economic thinking in Trinko is wrong, and how the Court ignores its precedent involving the Sherman Act's concerns of monopolies' political, social and ethical implications. It responds to the Court's claim that cartel behavior is easier to identify and remedy than monopolistic behavior and proposes an improvement to the Court's current rule of reason standard to reduce the risk of false positives, while enabling the antitrust …

Attorney-Client Fee Agreements That Offend Public Policy, Alex B. Long

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Under traditional contract law principles, an agreement may be deemed unenforceable because it so clearly offends established public policy that recovery under the contract is inappropriate. In such cases, there has traditionally been a presumption against permitting the offending party to recover, either under the contract or in quantum meruit. Yet, the legal profession (through the Restatement of the Law Governing Lawyers) and the courts (through their decisions) have effectively reversed that presumption and have announced a general rule in favor of permitting lawyers to recover fees even when their fee agreements clearly offend well-established and strong public policy. Moreover, …

It's A Small World: Using The Classic Disney Ride To Teach Document Coherence, Michael J. Higdon

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This essay describes an analogy legal writing professors can make to the classic Disney ride, "It's a Small World" for the purpose of teaching document coherence.

Pedagogic Techniques: Multi-Disciplinary Courses, Annotated Document Review, Collaborative Work & Large Groups, George Kuney

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No abstract provided.

Saving Law Reviews From Political Scientists: A Defense Of Lawyers, Law Professors, And Law Reviews, Benjamin H. Barton

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This essay reviews Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, and argues that it fails on two fronts. First, I offer a defense of lawyers, law professors, and law reviews. Second, I show that Spitzer's own book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship.

For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents' scholarship is not only wrong …

New Antitrust Realism, Maurice Stucke

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In the midst of a failing economy, the incoming Obama administration will not likely adopt its predecessor's antitrust policies. So if change is afoot, what form should change take? This essay outlines the needed transformative change in today's competition policy. The essay proposes more empirical analysis by the U.S. competition authorities, outlines how behavioral economics can assist in this new antitrust realism, and concludes in explaining why such antitrust realism is needed.

Wanted: Female Corporate Directors (A Review Of Professor Douglas M. Branson's No Seat At The Table), Joan Macleod Heminway, Sarah A. Walters

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In his 2007 book No Seat at the Table, Professor Douglas Branson aptly describes how patterns of male dominance inherent in the legal structures of corporate governance reproduce themselves again and again to keep women out of executive suites and boardrooms, and then he offers a practical way to break this cycle of dominance-through paradigm shifting. A central value of Professor Branson's book derives from this thesis, as well as his use of nontraditional empirical data and interdisciplinary literature (in addition to more traditional decisional law and legal scholarship) to support the positions he takes. Moreover, No Seat at …

Protecting A Business Entity Client From Itself Through Loyal Disclosure, Paula Schaefer

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No abstract provided.

Introduction To The Special Report, George Kuney

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No abstract provided.

Ask Not What Your Charity Can Do For You: Robertson V. Princeton Provides Liberal-Democratic Insights Into Cy Pres Reform, Iris Goodwin

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This article centers on a long-standing problem in the law of public charity: how to ameliorate the force of restrictions imposed by donors on large gifts in the face of societal change. Seeking to advance personal beliefs or social agenda, donors of large gifts commonly limit the application of donated funds to particular programs. Under current law, such restrictions obtain in perpetuity. A restriction, if socially apposite when made, often functions as a dead hand upon the charity with the passage of time. What has long been sought by the legal community is a substantive standard by which to evaluate …

Female Investors And Securities Fraud: Is The Reasonable Investor A Woman?, Joan Macleod Heminway

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This paper extends existing scholarship that questions the existing materiality standard used under Rule 10b-5 (and elsewhere in U.S. securities regulation) and its touchstone notion of the reasonable investor. Specifically, the paper asks and answers a seemingly straightforward, yet provocative, question: Is the reasonable investor a woman? The paper then preliminarily explores the potential significance of its key findings - that women and men exhibit different investment behaviors and achieve different investment outcomes, and that the resulting female investor profile is closer to existing conceptions of the reasonable investor than the resulting male investor profile.

As women become larger players …

Martha Stewart And The Forbidden Fruit: A New Story Of Eve, Joan Macleod Heminway

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This paper narrates a biblical story - Eve’s ingestion of the forbidden fruit - and analogizes it to a recent business law story that I explore in my scholarship and use in my teaching - Martha Stewart’s sale of ImClone stock as alleged insider trading. The analogy, while imperfect, helps expose interesting questions about the descriptive and normative content of U.S. insider trading law and related legal process issues. Although many of the points made in the paper (and the related details and examples presented) can be and have been explored or used in other ways, I contend that the …

Whistleblowing Attorneys And Ethical Infrastructures, Alex B. Long

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Rule 5.1 of the ABA’s Model Rules of Professional Conduct requires law firm partners to make reasonable efforts to supervise subordinate attorneys and to ensure that the firm has internal measures in place that give 'reasonable assurance' that all lawyers within the firm are complying with their ethical obligations. Despite the existence of this ethical duty, there are enough judicial decisions involving attorneys who have been fired for blowing the whistle on unethical conduct to lead one to suspect that perhaps law firm compliance measures regarding Rule 5.1 leave something to be desired. This Article discusses the role that a …

Rethinking The Legal Reform Agenda: Will Raising The Standards For Bar Admission Promote Or Undermine Democracy, Human Rights, And Rule Of Law?, Samuel J. Levine, Russell G. Pearce

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This Article offers a critique of, and alternative to, the American Bar Association's efforts, supported by the United States government, to promote the requirement of a college education in law as prerequisite for becoming a lawyer in developing countries. Using the examples of China, which currently has a far more open system for becoming a legal services provider, and South Africa, which already has a system consistent with the goals of the ABA, the Article argues that more stringent education requirements actually undermine democracy, human rights, and rule of law. In China, where the most significant advocates for human rights …

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

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Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The …

Cultural Inversion And The One-Drop Rule: An Essay On Biology, Racial Classification, And The Rhetoric Of Racial Transcendence, Deborah W. Post

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No abstract provided.

Cooperative Federalism And Wind: A New Framework For Achieving Sustainability, Patricia E. Salkin, Ashira Ostrow

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This Article proposes a federal wind siting policy modeled on the cooperative federalism framework of the TCA’s Siting Policy. Part I describes some advantages of wind energy, focusing specifically on the environmental, economic, and social benefits. This Part also discusses several technical obstacles to wind energy development, including the need to supplement wind energy with conventional energy sources and the lack of adequate transmission infrastructure. Part II assesses the current regulatory regime for the siting of wind turbines, reviewing general practices across the United States at both the state and local levels. Although a number of states have been active …