Law Commons^™

From Fragmentation To Constitutionalization, Harlan G. Cohen

Scholarly Works

This short essay, prepared for a panel on “The Impact of a Wider Dissemination of Human Rights Norms: Fragmentation or Unity?,” explores the connection between two popular, but seemingly contradictory discourses in international law: fragmentation and constitutionalization. After disentangling and categorizing the various types of fragmentation international law may be experiencing, the essay focuses in on one form in particular, the “fragmentation of the legal community.” This most radical version of fragmentation, the essay argues, has spurred a number of responses, many of which suggest the beginnings of a constitutional conflicts regime for international law. The essay ends by suggesting …

Social Proposals Under Rule 14a-8: A Fall-Back Remedy In An Era Of Congressional Inaction, Margaret V. Sachs

Scholarly Works

More than a decade ago, institutional investors, notably labor unions and pension plans, began using shareholder proposals as a vehicle for advancing progressive social causes. These proposals have recently garnered heightened levels of shareholder support. While even majority support for a proposal does not insure its adoption by the board of directors, appreciable (even if not majority) support can nonetheless sometimes precipitate adoption, or at least negotiation (which can lead to adoption). This Essay argues, first, that with Congress now largely dysfunctional, social proposals have acquired a whole new role—that of a company-by-company, fall-back mechanism for solving social problems that …

Affordable Care Act Litigation: The Standing Paradox, Elizabeth Weeks Leonard

Scholarly Works

The Patient Protection and Affordable Care Act (ACA) litigation presents a standing paradox. In the current posture, it appears that states lack standing to challenge the federal law on behalf of individuals, while individuals possess standing to challenge the federal law on behalf of states. This Article contends that there is no principled reason for this asymmetry and argues that standing doctrine should apply as liberally to states as individuals, assuming states allege the constitutional minimum requirements for standing and especially where the legal challenge turns on allocation of power between the federal government and states. The Article proceeds by …

Scaling The Patent System, Christina Mulligan, Timothy B. Lee

Scholarly Works

Why do firms in some industries ignore patents when developing new products? This paper posits a simple but novel answer to this long-puzzling question: firms ignore patents because they are unable to discover the patents their activities might infringe. The costs of finding relevant patents, which we call discovery costs, are prohibitively high.

Not all industries face high patent discovery costs. Chemical patents are "indexable," meaning that relevant patents can be efficiently retrieved by chemical formula. As a result, discovery costs in the chemical and pharmaceutical industries are low, and inadvertent infringement by firms in these industries is rare. But …

The Monster In The Courtroom, Sonja R. West

Scholarly Works

It is well known that Supreme Court Justices are not fans of cameras — specifically, video cameras. Despite continued pressure from the press, Congress, and the public to allow cameras into oral arguments, the Justices have steadfastly refused.

The policy arguments for allowing cameras in the courtroom focus on cameras as a means to increased transparency of judicial work. Yet these arguments tend to gloss over a significant point about the Court — it is not secretive. The Court allows several avenues of access to its oral arguments including the presence of the public and the press in the audience, …

Exit, Voice, And Reputation: The Evolution Of Spacs, Usha Rodrigues, Mike Stegemoller

Scholarly Works

This Article tells the story of a new type of business—the special purpose acquisition corporation ("SPAC"). The promoters of a SPAC begin by forming a shell corporation with no assets. They then take the company public on little more than a promise that they will strive to complete the acquisition of a target in the near future. We present the first empirical study of the SPAC contract design, and use a hand-collected dataset to trace its evolution over the past nine years.

While SPACs are a new form, their contract design borrows heavily from private equity's playbook. Private equity managers …

The Citizen Shareholder: Modernizing The Agency Paradigm To Reflect How And Why A Majority Of Americans Invest In The Market Berle Iii: Theory Of The Firm: The Third Annual Symposium Of The Adolf A. Berle, Jr. Center On Corporations, Law & Society, Anne M. Tucker

Scholarly Works

This Article examines corporate law from the perspective of personal investment and discusses the economic realities of modern investments in order to understand the role of shareholders within the agency paradigm. Corporate law, its scholars, and suggested reforms traditionally focus on the internal organization of the corporation. For example, agency principles inform corporate law by acknowledging a potential conflict of interest between the managers and shareholders of a corporation. Reforms such as increased shareholder voting rights and proxy access, which seek to give shareholders a more direct means to make their interests known to managers, illustrate corporate law’s focus on …

Politics And Prosecutions, From Katherine Fite To Fatou Bensouda, Diane Marie Amann

Scholarly Works

Based on the Katherine B. Fite Lecture delivered at the 5th Annual International Humanitarian Law Dialogs in Chautauqua, New York, this essay examines the role that politics has played in the evolution of international criminal justice. It first establishes the frame of the lecture series and its relation to IntLawGrrls blog, a cosponsor of the IHL Dialogs. It then discusses the career of the series' namesake, Katherine B. Fite, a State Department lawyer who helped draft the Charter of the International Military Tribunal at Nuremberg and who was, in her own words, a "political observer" of the proceedings. The essay …

Rationally Cutting Tax Expenditures, Gregg D, Polsky

Scholarly Works

This article illustrates the differences between the two types of tax expenditures by examining the child tax credit (a distributional expenditure), the charitable deduction (an allocative expenditure), and taxfree saving accounts and the mortgage deduction (both of which are-usually defended on allocative grounds but probably have mainly distributional impacts). These differences should be well understood by policymakers as they consider tax expenditure reform as part of a deficit reduction plan.

Agency And The Ontology Of The Corporation, Christopher M. Bruner

Scholarly Works

No abstract provided.

The Chevron Two-Step In Georgia's Administrative Law, David Shipley

Scholarly Works

The Georgia Supreme Court and Court of Appeals have long accepted the General Assembly’s authority to enact legislation that establishes administrative agencies and empowers those agencies to promulgate rules and regulations to implement their enabling statutes. In addition, the Georgia Constitution provides that the General Assembly may authorize agencies to exercise quasi-judicial powers. Administrative agencies with broad powers enjoy a secure position under Georgia law.

Like federal and state administrative agencies throughout the nation, Georgia’s many boards, commissions and authorities make policy when they apply their governing statutes in promulgating regulations of general applicability, and in ruling on specific matters …

The Rhetoric Hits The Road: State Resistance To Affordable Care Act Implementation, Elizabeth Weeks Leonard

Scholarly Works

This paper provides an update and reanalysis of my previously published article, Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform, 93 Hofstra Law Review 111 (2010). In Rhetorical Federalism, I made an affirmative case for the widespread trend of state resistance to the then-recently enacted Patient Protection and Affordable Care Act of 2010 (ACA). Before and immediately after ACA’s enactment, a significant number of states engaged in various forms of objection to the new federal Act, including but not limited to lawsuits challenging the constitutionality of the individual insurance mandate. My article focused on five targets of …

Some Preliminary Thoughts On The Law Of Neighbors, Jim Smith

Scholarly Works

A fundamental characteristic of real property law, one that is definitional in nature, is that its subject matter consists of land parcels. A land parcel, in contrast to an ownership interest such as a fee simple estate, is not an abstraction. Each land parcel has a physical reality, and virtually all land parcels abut other parcels. Each parcel has one particular location, defined by its proximity to other pieces of property. The value of a land parcel depends heavily upon its location, and the nature of neighboring parcels has a major impact in determining that value.

Owners of neighboring parcels …

Transtemporal Separation Of Powers In The Law Of Precedent, Randy Beck

Scholarly Works

The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law.

This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing …

An Essay On Originalism And The 'Individual Mandate': Rounding Out The Government’S Case For Constitutionality, Dan T. Coenen

Scholarly Works

The Supreme Court now has under advisement the landmark federal health care law case. Much attention has focused on the law’s minimum coverage provision—or so-called “individual mandate” — and, in particular, its constitutionality under the Commerce Clause and the Necessary and Proper Clause. In a separate and much lengthier article, I offer two main observations about the arguments made to the Court on that issue. First, I show that the challengers of the minimum coverage provision emphasized originalist reasoning in their briefs and oral arguments, while the federal government did not. Second, I explain why — contrary to the impression …

Beyond The Water Cooler: Speech And The Workplace In An Era Of Social Media, Ann C. Mcginley

Scholarly Works

No abstract provided.

The Hunt For Noncitizen Voters, Fatma E. Marouf

Scholarly Works

No abstract provided.

Federal Courts At The Boyd School Of Law, Anne R. Traum

Scholarly Works

No abstract provided.

Resolving The Ip Disconnect For Small Businesses, Leah Chan Grinvald

Scholarly Works

Small businesses are an important component of the American economy. In fact, the jobs created by small businesses could assist the United States in overcoming its most recent economic downturn. Paradoxically, though, the failure rate of small businesses is quite high. Although various factors contribute to this high failure rate, one of the factors the U.S. government has focused on has been the disproportionate impact that intellectual property laws, policies, and their enforcement may have on small businesses. While the U.S. government has paid attention to the impact of domestic intellectual property laws on small businesses, the government has paid …

Insights From A National Conference: "Conflicts Of Interest In The Practice Of Medicine", David Orentlicher

Scholarly Works

No abstract provided.

Sustainability As A Means Of Improving Environmental Justice, Patricia E. Salkin, John C. Dernbach, Donald A. Brown

Scholarly Works

This article explains why environmental justice provides much of the foundation for sustainable development, and shows how sustainability can improve our ability to achieve environmental justice. The article first explains a basic but often unrecognized truth about environmental policy: environmental pollution and degradation, sooner or later, harms humans. Both sustainable development and environmental justice respond to this problem, though in somewhat different ways. Sustainable development, however, suggests a broader set of tools to address this problem than are often employed for environmental justice. The article shows how four broad approaches — more and better sustainability options, law for sustainability, visionary …

Honey, It’S All The Buzz: Regulating Neighborhood Beehives, Patricia E. Salkin

Scholarly Works

Beekeeping’s popularity has surged in recent years, perhaps culminating in the introduction of the first ever White House bee hive. Local Apiaries provide a wide variety of benefits to communities, ranging from pollination services for gardens to producing honey that can be used in a wide array of foods and products. Apiaries are not always welcome in a community, however, perhaps because of their potential to cause a nuisance, or to harm crops or people. Although beekeeping regulation implicates both state and federal concerns a number of localities have developed unique and practical regulations that promote backyard beekeeping, while maximizing …

Land Use Regulation: It Just Gets Worse, Michael Lewyn

Scholarly Works

Some commentators treat suburban sprawl (by which I mean automobile-dependent land development) as the result of the free market at work. This article reviews City Rules, by urban planning professor Emily Talen. In this book, Talen shows not only how zoning and similar land use regulations generate automobile-dependent suburban sprawl, but also how these regulations have become stricter, more pro-sprawl, and more complex over time. Talen proposes to reform these regulations through municipal codes that promote more walkable, less automobile-dependent development.

Two Cheers For Instant Runoff Voting, Michael Lewyn

Scholarly Works

"Instant runoff voting" (IRV) is a system that allows voters to rank their choices in a multicandidate election. Thus, the second-choice voters of less successful candidates are redistributed to the front-runners. The purpose of this system is to prevent candidates opposed by a majority of voters from winning. For example, if candidates A and B each have 40 percent of the vote and candidate C has 20 percent, the front-runner supported by the majority of C's supporters is the true "majority choice" and will win under IRV. The purpose of this article is to critically examine the arguments for and …

It's Not Just A Writing Problem, Suzanne Darrow Kleinhaus

Scholarly Works

No abstract provided.

A Heretical View Of Teaching: A Contrarian Looks At Teaching, The Carnegie Report And Best Practices, Gary Shaw

Scholarly Works

This article takes a position contrary to those of the Carnegie Foundation for the Advancement of Teaching Report, Educating Lawyers and Best Practices for Legal Education. It argues that much of the harm those reports attribute to Socratic dialogue is misguided— that the problems that arise are a result ofbad teaching technique rather than any flaw intrinsic in Socratic dialogue. It then goes on to argue that because many of the problems the two reports are trying to address are due to poor teaching rather than the Socratic dialogue, the reports’ recommendations cannot achieve the results hoped for. Current law …

Rights, Reservations, And Religion; International Human Rights Law And The Status Of Women, Mark Goldfeder

Scholarly Works

While human rights law in its current form is less than fifty years old, the issues that it grapples with are much, much older. People oftentimes dismiss religion or religious norms as being out of date, close-minded, or old-fashioned, and label religious views as discriminatory in theory or even in practice. In reality, religions have been dealing with human rights issues since ancient times, and in some ways have laid the groundwork for the very modern discussions that have supplanted them. The answers that religions give, therefore, deserve at the very least a careful and respectful analysis before they are …

"The Good Mother": Mothering, Feminism, And Incarceration, Deseriee A. Kennedy

Scholarly Works

As the rates of incarceration continue to rise, women are increasingly subject to draconian criminal justice and child welfare policies that frequently result in the loss of their parental rights. The intersection of an increasingly carceral state and federally imposed timelines for achieving permanency for children in state care has had a negative effect on women, their children, and their communities. Women, and their ability to parent, are more adversely affected by the intersection of these gender-neutral provisions because they are more likely than men to be the primary caretaker of their children. In addition, incarcerated women have higher rates …

Sprawl In Canada And The United States, Michael Lewyn

Scholarly Works

The purpose of this Article is to ascertain whether (1) suburban sprawl is as widespread in Canadian metropolitan areas as in their American counterparts, and (2) Canadian government policies, and in particular Canadian zoning law and transportation policies, encourage sprawl. The article concludes that Canadian metropolitan areas are in fact somewhat less sprawling than most of their American counterparts, but that in Canada, as in the United States, government land use regulation and government transportation policy do favor sprawl to some extent. For example, in both nations municipal zoning regulations, by limiting density and forcing landowners to build parking lots, …

Higher Law Secularism: Religious Symbols, Contested Secularisms, And The Limits Of The Establishment Clause, Zachary R. Calo

Scholarly Works

This paper considers whether religious symbols on public property might serve a permissible role within the secular polity, and whether there is a way to understand such symbols as compatible with secular commitments. While some attention will be given to constitutional issues, it is proposed that jurisprudential incoherence in this area is less the result of legal interpretation and technique than with the way in which law has framed the concept of the secular. We are not facing a crisis in the Establishment Clause so much as a crisis in the secular. The aim of the paper is thus to …