Law Commons^™

Where United Haulers Might Take Us: The State-Self-Promotion Exception To The Dormant Commerce Clause Rule, Dan T. Coenen

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Fourteen years ago, in C & A Carbone, Inc. v. Town of Clarkstown, the U.S. Supreme Court held that a local government had unconstitutionally discriminated against interstate commerce when it forced its citizens to purchase all waste-transfer services from a single local private supplier. In a recent decision, United Haulers Ass'n v. Oneida- Herkimer Solid Waste Management Authority, the Court refused to extend the principle of Carbone to a law that required citizens to purchase these same services from a local government-operated facility. The Court thereby engrafted on the dormant Commerce Clause a new state-selfpromotion exception, which receives its first …

Reframing And Reforming The Securities And Exchange Commission: Lessons From Literature On Change Leadership, Joan Macleod Heminway

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As a reaction to perceived and actual regulatory failures at the Securities and Exchange Commission (the SEC), from mistakes that contributed to the financial crisis to the Bernard Madoff affair, the SEC has been engaged in an operational transformation process. The growing literature on management and leadership in times of change -- change leadership literature -- offers a number of potentially valuable lenses through which we may assess reform at the SEC.

With the thought that securities regulators and others may learn valuable lessons about the SEC’s restructuring and reorganization from experts in change leadership, this Article explores a selected …

How To Avoid The Constraints Of Rule 10b-5(B): A First Circuit Guide For Underwriters, Eric Franklin Amarante

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If an underwriter knows that a prospectus contains a material misrepresentation, may that underwriter use the prospectus to sell securities, or would that expose the underwriter to liability under Rule 10b-5(b)? The First Circuit’s surprising and rather disconcerting answer was delivered on March 10, 2010 in Securities and Exchange Commission v. Tambone. In Tambone, the First Circuit held that the SEC could not hold underwriters liable for such misrepresentations if they did not draft the prospectus. Ostensibly, this holding is nothing more than a judicial check on the SEC’s enforcement powers under Rule 10b-5(b). However, the practical result of this …

Against Civil Gideon (And For Pro Se Court Reform), Benjamin H. Barton

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This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform.

Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle.

There is …

When A Monopolist Deceives, Maurice Stucke

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This essay uses one context - a monopolist’s deceptive advertising or product disparagement - to illustrate how competition authorities and courts should evaluate a monopolist’s deception under the federal antitrust laws. Competition authorities should target a monopolist’s anticompetitive deception, which courts should treat as a prima facie violation of the Sherman Act without requiring a full-blown rule of reason analysis or an arbitrary, multi-factor standard.

Through A Glass Darkly: Using Brain Science And Visual Rhetoric To Gain A Professional Perspective On Visual Advocacy, Lucille A. Jewel

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American legal culture, tracking the trend within the media culture as a whole, has become inherently more visual. Visual competency is now required for effective persuasion in the courtroom and in a variety of other advocacy settings. The central thesis of this Article is that visual advocacy is here to stay, but that there is a large knowledge gap that prevents advocates from being able to evaluate the professionalism of their own visual arguments and properly respond to the visual arguments submitted by their opposing counsel.

Accordingly, this Article offers a detailed outline of the knowledge bases that attorneys need …

Improbable Cause: A Case For Judging Police By A More Majestic Standard, Melanie Wilson

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This article presents findings from an empirical study of judicial orders in one Midwestern federal district court over a twenty-four month period. The study analyzes trial court decisions to determine whether, as scholars often contend, judges consistently side with the prosecution when a defendant claims that the police lied during the criminal investigation of her case. The study also looks at the frequency with which defendants make such arguments, the types of case in which defendants claim police lies, and the strength or weakness of the evidence in cases that do and do not persuade trial judges that the police …

Governance, Accountability And The New Poverty Agenda, Wendy A. Bach

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Across the country a new poverty agenda is emerging. These efforts are limited by the political consensus that has emerged since welfare reform and focus, as has always been the case, on the “deserving” - in today’s iteration, primarily the working poor. Mirroring national and international trends, the means of governance of these new social welfare programs has also begun to change. Where once there was a set of programs ostensibly controlled through law and regulations, in growing pockets there is now radical devolution and abandonment of traditional legal and rule making structures. Experiments in policy, program structure, and governance …

Constructing Citizenship Without A License: The Struggle Of Undocumented Immigrants In The U.S. For Livelihoods And Recognition, Fran Ansley

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No abstract provided.

Private Oppression: How Laws That Protect Privacy Can Lead To Oppression, Teri Dobbins Baxter

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This article explores the problems that can arise when laws protect the privacy of some individuals at the expense of others. These issues will be viewed through the lens of the controversial case of the children taken into state custody from the Yearning for Zion Ranch in Texas. Specifically, the article examines the allegations that led government authorities to intervene and remove the children from the Ranch and the difficulties that the government faces when such allegations are made against residents of isolated communities who have little interaction with the larger American society. The article will further demonstrate how privacy …

Is There An Unreasonable Accommodation? Is There A Due Hardship?, Alex B. Long

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No abstract provided.

Decriminalizing Students With Disabilities, Dean Rivkin

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Despite the enactment of the Individuals With Disabilities Education Act (IDEA) in 1975, students with disabilities have been disproportionally singled out for school exclusion and “push-out” through disciplinary actions, inadequate educational programs, and criminal prosecution. In Honig v. Doe, 484 U.S. 305 (1988), the United States Supreme Court condemned the disciplinary exclusion of students for behaviors that were manifestations of the students’ emotional disabilities. Criminal prosecution of students for disability-related behavior was curbed in the case of Morgan v. Chris L., 927 F. Supp. 267 (E.D. Tenn 1994), aff’d 106 F.3d 401 (6th Cir. 1997). This article examines the Chris …

Private And Public Construction In Modern China, Gregory M. Stein

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During the past three decades, real estate development in China has proceeded at an astonishing pace, with much development occurring before China’s 2007 adoption of its first modern law of property. Investors thus spent hundreds of billions of dollars in the real estate market of a nation that, during most of this period, had no formal property law. How can a huge nation modernize so rapidly and dramatically when its legal system furnishes such uncertainty? And how can this happen in a nation that still purports to subscribe to socialist ideology?

I set out to answer these questions by interviewing …

Whistling Dixie About The Irs Whistleblower Program Thanks To The Irc Confidentiality Restrictions, Michelle M. Kwon

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The Internal Revenue Service has been authorized for many years to pay awards to individuals who blow the whistle on those who do not pay their taxes. But the whistleblower program was underused and ineffective. In 2006, Congress modified the whistleblower program to boost the IRS’s authority to pay cash awards to tax whistleblowers. The premise of the article is that Congress did not go far enough in 2006 in light of the confidentiality restrictions in Internal Revenue Code Section 6103. As currently written, Section 6103 essentially prohibits the IRS from disclosing to the whistleblower tax information of the purportedly …

An Exclusionary Rule For Police Lies, Melanie Wilson

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Although the Supreme Court has often said that truth is an imperative to justice, we now know that police officers, the key investigative component in our criminal justice system, lie. How often do the police lie? No one knows for sure. But credible reports of police lies are common.

Because our legal system treats the police as if they were impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality, the criminal justice system lacks the appropriate structure to expose and effectively deal with …

The Future Of Inadvertent Disclosure: The Lingering Need To Revise Professional Conduct Rules, Paula Schaefer

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In recent years, the American Bar Association and state bars have deferred to lawmakers to create a legal solution to the problems associated with inadvertent disclosure. When Federal Rule of Evidence 502 was enacted in September 2008, lawmakers and commentators praised the new rule as a remedy to costly pre-production privilege review and as an answer to the uncertainties of waiver law.

This article examines the numerous inadvertent disclosure issues that remain unanswered for litigators and transactional attorneys, and considers the new problems created by Federal Rule of Evidence 502. In 2009, transactional attorneys have no practical means to obtain …

Lessons From The Financial Crisis, Maurice Stucke

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What lessons can we learn from the financial crisis concerning the issues of systemic risk, firms too big to fail, and the income inequality in the United States today?

In light of the public anger over the financial crisis and bailouts to firms deemed too big to fail, this Essay first addresses the issue of systemic risk posed by mergers generally and those in the financial services industries specifically. The federal government heard concerns in the 1990s about mega-mergers in the financial industry. The Department of Justice, for example, heard concerns that the Citibank-Travelers merger would create an institution too …

Money, Is That What I Want?: Competition Policy & The Role Of Behavioral Economics, Maurice Stucke

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Although the behavioral economics and happiness economic literature are hot areas in legal and economic scholarship, the U.S. policymakers, until recently, have not embraced the literature. That is changing with the financial crisis. Policymakers are re-examining the assumptions underlying many neoclassical economic theories embedded in their policies.

This article addresses one cornerstone of neoclassical economic theory, namely that rational consumers pursue their economic self-interests. It is commonly associated with Adam Smith’s famous statement: “It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own …

Federal Interventions In Private Enterprise In The United States: Their Genesis In And Effects On Corporate Finance Instruments And Transactions, Joan Macleod Heminway

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In response to U.S. corporate failures involved in the current global financial crisis, traditional corporate finance vehicles and tools were widely used in new ways and for new purposes. Of course, one object of the U.S. government’s investment and intervention in, and exercise of influence over, private enterprise during the crisis was to provide for or ensure the provision of adequate capital funding. But its investment, intervention, and influence also represented a new way to oversee and otherwise regulate key business enterprises in the financial services and automotive sectors. This Article reviews certain aspects of the use of preferred stock, …

The Best Of Times, The Worst Of Times: Securities Regulation Scholarship And Teaching In The Global Financial Crisis, Joan Macleod Heminway

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This short piece is an annotated version of remarks that I gave to introduce a roundtable discussion on securities regulation scholarship at the University of Maryland School of Law program on “Corporate Governance and Securities Law Responses to the Financial Crisis” held on April 17, 2009. The piece represents my current thoughts about what it is like to teach, research, and write in the area of securities regulation. Ultimately, the message I deliver is a positive one; there is much opportunity for securities regulation teachers and scholars in an environment like the one we have been wrestling with since at …

Viva State Employment Law - State Law Retaliation Claims In A Post-Crawford/Burlington Northern World, Alex B. Long

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No abstract provided.

Commercial Leasing In China: An Overview, Gregory M. Stein

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In an effort to understand how and why investors and other professionals are willing to participate in China’s unsettled commercial leasing market, I recently interviewed Chinese and Western experts in the real estate field, including lawyers, judges, developers, bankers, government officials, and academics. This Article summarizes my findings about China’s commercial leasing market. China’s new property law provides some insight into how China’s real estate market functions, but a full picture requires an understanding of how these professionals have operated in a legally uncertain environment, both before and after the new law became effective.

Book Review - Richard Hyland's Gifts: A Study In Comparative Law, Iris Goodwin

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This essay is a lengthy review of Richard Hyland's Gifts: A Study in Comparative Law (OUP, 2009), a masterpiece of comparative law scholarship.

How The Rich Stay Rich: Using A Family Trust Company To Secure A Family Fortune, Iris Goodwin

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This Article is about family trust companies and the role they play in preserving great fortunes. A family trust company is a corporation formed to provide fiduciary services to a related group of people, in contrast to banking institutions established to offer similar services to a larger public. The province of the mega-rich (who remain very much upon the American landscape, the recent economic crisis notwithstanding), these entities have received scant attention from the academic bar. While family trust companies are not new, recent changes in the law in some states have made these entities far easier to create and …

Getting Right Without Lincoln, Daniel W. Hamilton

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No abstract provided.

How To Avoid The Constraints Of Rule 10b-5(B): A First Circuit Guide For Underwriters, Eric H. Franklin

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If an underwriter knows that a prospectus contains a material misrepresentation, may that underwriter use the prospectus to sell securities, or would that expose the underwriter to liability under Rule 10b-5(b)? The United States Court of Appeals for the First Circuit's surprising and rather disconcerting answer was delivered on March 10, 2010, in Securities and Exchange Commission v. Tambone. In Tambone, the First Circuit held that the Securities and Exchange Commission (SEC) could not hold underwriters liable for such misrepresentations if they did not draft the prospectus. Ostensibly, this holding is nothing more than a judicial check on the SEC's …

Expert Witnesses: The Nevada Supreme Court Clarifies Adherence To Nrs 50.275 And Judicial Discretion, Expressly Declining To Embrace The Federal Daubert Approach, Jeffrey W. Stempel

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No abstract provided.

Snyder V. Phelps: Searching For A Legal Standard, Leslie C. Griffin

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No abstract provided.

Review Essay: Religion And Politics 2008-2009: Sometimes You Get What You Pray For, Leslie C. Griffin

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No abstract provided.

Book Review: "The Lost History Of The Ninth Amendment", Thomas B. Mcaffee

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No abstract provided.