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Full-Text Articles in Law
Reflections On E-Marriage Papers, Brian H. Bix
Reflections On E-Marriage Papers, Brian H. Bix
Articles
My task is to comment on the rich collection of papers inspired by the E-marriage proposal of Adam Candeub and Mae Kuykendall.' Theirs is a refreshingly novel suggestion, though one with some precedents (in social policy and practice, there is little under the Sun that is entirely new). In the course of commenting on the other papers in this symposium, I will have some reflections on the Candeub/Kuykendall proposal as well.
Mahr Agreements: Contracting In The Shadow Of Family Law (And Religious Law)--A Comment On Oman's Article, Brian H. Bix
Mahr Agreements: Contracting In The Shadow Of Family Law (And Religious Law)--A Comment On Oman's Article, Brian H. Bix
Articles
This article is a Comment on Nathan Oman, "Bargaining in the Shadow of God's Law: Islamic Mahr Contracts and the Perils of Legal Specialization" (45 Wake Forest Law Review 579 (2010)). Oman's article shows that there are real disadvantages in looking at contracts through the lens of narrow transaction types, especially where individual agreements might fit poorly with the assumed narrative of that transaction type. The example Oman uses, mahr agreements treated within the category of premarital agreements, gives partial (but only partial) support for his thesis. The vast majority of those agreements should not be treated as premarital agreements, …
Strategies For An Employee Role In Corporate Governance, Brett Mcdonnell
Strategies For An Employee Role In Corporate Governance, Brett Mcdonnell
Articles
One way to make U.S. corporations more sustainable is to broaden the group of stakeholders whose interests are considered in making decisions. This Essay evaluates a number of possible strategies for creating a role for employees in corporate governance. The strategies include: Using areas other than business association law to enhance the legal rights of individual employees; Encouraging officer or director power, hoping that officers and directors will side with employees and other interests more than shareholders; Encouraging shareholder power, hoping that employees agree with shareholders on the need to keep managers accountable; Supporting unions as a source of countervailing …
The Role Of The Committee On The Rights Of The Child In Interpreting And Developing International Humanitarian Law, David Weissbrodt, Joseph C. Hansen, Nathaniel H. Nesbitt
The Role Of The Committee On The Rights Of The Child In Interpreting And Developing International Humanitarian Law, David Weissbrodt, Joseph C. Hansen, Nathaniel H. Nesbitt
Articles
The interaction between human rights law and international humanitarian law (IHL) has received a great deal of scholarly attention. Commentators note the increased presence of IHL in the work of human rights bodies. There remains an interesting gap in the debate, however: while human rights bodies may be referencing international humanitarian law, what are they doing with it? To what extent are they interpreting its protections under a human rights framework? Are they performing substantive or precedential analysis of IHL? This article addresses one measure of that gap by comprehensively examining the work of the Committee on the Rights of …
Letting The Puppets Speak: Employee Voice In The Legislative History Of The Wagner Act, Laura J. Cooper
Letting The Puppets Speak: Employee Voice In The Legislative History Of The Wagner Act, Laura J. Cooper
Articles
Professor Kenneth G. Dau-Schmidt, in his keynote address in this Symposium, Promoting Employee Voice in the American Economy: A Call for Comprehensive Reform, 1 joins a chorus of other scholars when he identifies a lack of employee voice in the workplace as a fundamental deficiency of contemporary American labor relations and recommends initiatives to remedy the problem. 2 Today's scholarly critiques and proposals directed at the problem of employee voice echo a flurry of commentaries that appeared in the late 1980s and early 1990s. These earlier critics bemoaned the absence of employee workplace voice, viewed Section 8(a)(2) of the National …
Dominance, Innovation, And Efficiency: Modifying Antitrust And Intellectual Property Doctrines To Further Welfare, Daniel J. Gifford
Dominance, Innovation, And Efficiency: Modifying Antitrust And Intellectual Property Doctrines To Further Welfare, Daniel J. Gifford
Articles
This Article examines a number of problematic areas in which the antitrust and intellectual property laws fail, or have failed, to attain the efficiency and welfare goals that underlie them. Although some of the areas in question have been separately analyzed in the literature, this Article focuses on them as a unitary group: one whose existence presents a challenge to the antitrust and intellectual property laws to develop a common approach by explicitly recognizing the maximization of aggregate social welfare as the goal of both sets of laws. This recognition would help courts resolve apparent conflicts in the applications of …
Defining Torture And Cruel, Inhuman, And Degrading Treatment, David Weissbrodt, Cheryl Heilman
Defining Torture And Cruel, Inhuman, And Degrading Treatment, David Weissbrodt, Cheryl Heilman
Articles
Declaring a “war against terror,” the United States has detained foreign nationals suspected of terrorist activities and has interrogated them at various locations outside the United States. As the United States seeks to bring charges against the detainees, serious questions have arisen regarding the interrogation methods used to obtain evidence. Federal laws enacted to meet the United States' obligations under treaties prohibit the use of evidence obtained through torture or through cruel, inhuman, or degrading treatment. What legal standards should be applied to determine whether interrogation methods or conditions of confinement constitute torture or cruel, inhuman, or degrading treatment? Is …
State Attorneys General's Use Of Concurrent Public Enforcement Authority In Federal Consumer Protection Laws, Amy Widman, Prentiss Cox
State Attorneys General's Use Of Concurrent Public Enforcement Authority In Federal Consumer Protection Laws, Amy Widman, Prentiss Cox
Articles
Recent scholarly and legislative interest in state enforcement of federal law has led to the need for an empirical understanding of how and when these enforcement powers are used. This article reports on an examination of the use by state attorneys general of sixteen federal consumer protection laws that expressly allow for state enforcement. The data are sorted and analyzed by both single state actions and multistate actions over time, and by the involvement of federal agencies in the state cases. The data reveal a measured use of such powers by state attorneys general and robust state and federal cooperation …
Of The Conditional Fee As A Response To Lawyers, Claire Hill, Richard W. Painter
Of The Conditional Fee As A Response To Lawyers, Claire Hill, Richard W. Painter
Articles
There are radically differing views as to whether Dodd-Frank took the right approach, and whether it will be successful or even beneficial. But even the most optimistic scenario leaves a significant problem unaddressed. One important cause of the crisis was that some banks and their lawyers had been looking for-and finding-clever ways to honor the letter of the law while violating its spirit, including by "pushing the envelope" as far as it will go (and in some cases, further). The legal opinion rendered in Lehman Brothers' Repo 105 transaction, discussed more fully below, is but one example of the type …
Regulatory Contrarians, Brett Mcdonnell, Daniel Schwarcz
Regulatory Contrarians, Brett Mcdonnell, Daniel Schwarcz
Articles
This Article explores the role that “regulatory contrarians” can play in promoting more adaptive financial regulation. Such contrarians have several distinguishing features. First, they possess persuasive authority by virtue of their position, access to media and officials, or speaking engagements and reports. Second, they are affiliated with, and enjoy privileged access to, a regulatory entity but are nonetheless independent, as reflected in their budget, staffing, and/or priorities. Finally, they are tasked with studying the regulatory process, policy positions, and the regulated market and in some way reporting on deficiencies and potential improvements. The Article argues that regulatory contrarians can modestly …
Compromised Fiduciaries: Conflicts Of Interest In Government And Business, Claire Hill, Richard W. Painter
Compromised Fiduciaries: Conflicts Of Interest In Government And Business, Claire Hill, Richard W. Painter
Articles
In the present financial crisis, the government has become extensively involved in managing companies, at times undertaking massive bailouts. The results of government involvement in business are at best mixed. Moreover, its involvement has generated significant criticism. But government involvement in managing companies is sometimes inevitable. It is therefore important to consider how it can be improved. One critical reason why government might perform poorly is conflicts of interest. Given the conflicts that arise at multiple levels of decisionmaking in both government and private companies, it should not be surprising that government management of companies is often problematic. In both …
The Role Of The United States Supreme Court In Interpreting And Developing Humanitarian Law, David Weissbrodt, Nathaniel H. Nesbitt
The Role Of The United States Supreme Court In Interpreting And Developing Humanitarian Law, David Weissbrodt, Nathaniel H. Nesbitt
Articles
In the absence of a single authoritative mechanism to interpret humanitarian law, a number of treaty bodies, national courts, regional human rights courts/commissions, international tribunals, and thematic mechanisms have been called upon to address humanitarian law issues. Prime among these institutions is the United States Supreme Court. Though only in a small number of cases, the Court has relied on humanitarian law principles and treaties from the early days of the Republic to the “war on terrorism.” In what ways does the Court invoke this body of law and how competent is its analysis? Is the Court institutionally equipped to …
Setting Optimal Rules For Shareholder Proxy Access, Brett Mcdonnell
Setting Optimal Rules For Shareholder Proxy Access, Brett Mcdonnell
Articles
Recent developments in Delaware concerning shareholder bylaws and the SEC proposal concerning shareholder proxy access have moved the U.S. closer to a set of optimal rules for shareholder proxy access in nominating director candidates, but not all the way there. These rules must address both the default rule which applies in the absence of agreement within a corporation to the contrary, and the altering rule which specifies who within a corporation may choose to opt out of the default provisions. Applying principles of accountability and freedom of contract, the optimal default rule would allow for certain shareholders to use the …
Competitiveness In State Supreme Court Elections, 1945-2009, Herbert M. Kritzer
Competitiveness In State Supreme Court Elections, 1945-2009, Herbert M. Kritzer
Articles
There has been much debate over changes in state supreme court elections. However, most of the research that debate refers to considers a relatively short time span. This paper reports an analysis of contestation and competitiveness in state supreme elections for the entire post-World War II period. The paper considers both primary and general elections (other than retention elections). The central finding of the paper is that outside the South there has in fact been surprising little change, either in whether incumbents are challenged for reelection or in the competitiveness of the elections that are contested (looking separately at open …