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Full-Text Articles in Law
Anticompetitive Merger Review, Samuel N. Weinstein
Anticompetitive Merger Review, Samuel N. Weinstein
Articles
U.S. antitrust law empowers enforcers to review pending mergers that might undermine competition. But there is growing evidence that the merger-review regime is failing to perform its core procompetitive function. Industry concentration and the power of dominant firms are increasing across key sectors of the economy. In response, progressive advocates of more aggressive antitrust interventions have critiqued the substantive merger-review standard, arguing that it is too friendly to merging firms. This Article traces the problem to a different source: the merger-review process itself. The growing length of reviews, the competitive restrictions merger agreements place on acquisition targets during review, and …
Trust Decanting: A Critical Perspective, Stewart E. Sterk
Trust Decanting: A Critical Perspective, Stewart E. Sterk
Articles
Until recently, a party seeking modification of an irrevocable trust needed approval from all interested parties, or from a court. The last decade, however, has brought a flood of state legislation authorizing trust decanting – a process by which a trustee “decants” trust assets from one vessel (the original irrevocable trust) into a second vessel (a new trust with terms designed to reflect the settlor’s supposed intent). Most recently, the Uniform Law Commissioners have, in 2015, promulgated the Uniform Trust Decanting Act.Decanting enable trustees and trust beneficiaries to avoid the cost associated with judicial modification in cases where the irrevocable …
Can John Coffee Rescue The Private Attorney General? Lessons From The Credit Card Wars, Myriam E. Gilles
Can John Coffee Rescue The Private Attorney General? Lessons From The Credit Card Wars, Myriam E. Gilles
Articles
Partisans on one side of the class action debates argue that the class device is a critical enforcement tool that increases much-needed access to justice. Combatants on the other side scoff that class actions are tools for shaking down corporations for settlement payments and attorneys’ fees in unmeritorious cases. In his most recent book, Entrepreneurial Litigation: Its Rise, Fall and Future, John C. Coffee puts both sides in their place, providing an account that, he aptly tells us, “has long been missing in the literature, in large part because academics writing in this area either have been so ideologically committed …
Legal Capacity For All: Including Older Persons In The Shift From Adult Guardianship To Supported Decision-Making, Rebekah Diller
Legal Capacity For All: Including Older Persons In The Shift From Adult Guardianship To Supported Decision-Making, Rebekah Diller
Articles
For the last several decades, guardianship has been the subject of continual calls for reform, often spurred by revelations of guardian malfeasance and other abuses in the system. Recent developments in international human rights law pose a more fundamental challenge to the institution. Under Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), governments may not deprive individuals of their “legal capacity”—or right to make decisions and have those decisions recognized as legally binding—on the grounds of disability. In the wake of the CRPD, the concept of supported decision-making has gained growing acceptance as …
Regulation Of Emerging Risk, Matthew T. Wansley
Regulation Of Emerging Risk, Matthew T. Wansley
Articles
Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must satisfy high, initial informational thresholds to regulate, so they postpone rulemaking in the face of uncertainty about the effects of new technologies. But while regulators passively acquire more information, fledgling industries consolidate and become politically entrenched. By the time agencies can justify regulation, the newly …
Virtuous Capture, Matthew Wansley
Virtuous Capture, Matthew Wansley
Articles
A regulatory agency is captured if, instead of the public interest, it pursues the interests of powerful firms it is intended to regulate. Scholars disagree about which agencies are captured, how they become captured, and what reforms, if any, can prevent capture. There is consensus on one issue: capture is a vice.In this Article, I argue that capture can be a virtue. When powerful interest groups thwart justified regulation, the optimal strategy for pursuing that regulation may be to indirectly empower interest groups that stand to profit from it in the long-run. Legislation creating new interest groups — or altering …
Four Reforms For The Twenty-First Century, Barry C. Scheck
Four Reforms For The Twenty-First Century, Barry C. Scheck
Articles
What follows are my top four suggestions for judicial action and advocacy that can result in urgently needed and readily achievable reforms. Ass the American Judicature Society and its members consider their agenda and mission for the coming years, each of these issues deserves their support.
Time To Sever The Dead Hand: Fisk University And The Cost Of The Cy Pres Doctrine, Melanie B. Leslie
Time To Sever The Dead Hand: Fisk University And The Cost Of The Cy Pres Doctrine, Melanie B. Leslie
Articles
No abstract provided.
Alternative Elements, Jessica A. Roth
Alternative Elements, Jessica A. Roth
Articles
The U.S. Constitution provides a criminal defendant with a right to trial by jury, and most states and the federal government require criminal juries to agree unanimously before a defendant may be convicted. But what exactly must a jury agree upon unanimously? Well-established doctrine, pursuant to In re Winship, provides that the jury must agree that the prosecution has proven every element of the offense beyond a reasonable doubt. Yet what the elements of any given offense are is not as clear as one might expect. Frequently, criminal statutes—especially federal statutes—describe an array of prohibited conduct, leaving ambiguous whether …
The Wisdom Of Crowds? Groupthink And Nonprofit Governance, Melanie B. Leslie
The Wisdom Of Crowds? Groupthink And Nonprofit Governance, Melanie B. Leslie
Articles
Scandals involving nonprofit boards and conflicts of interest continue to receive considerable public attention. Earlier this year, for example, musician Wyclef Jean's Yele Haiti charity became the target of intense criticism after the charity disclosed that it had regularly transacted business with Jean and entities controlled by Jean and other directors. Although scandals caused by self-dealing undermine public confidence in the charitable sector, they continue to erupt. Why do charitable boards sanction transactions with insiders?
This Article argues that much of the blame lies with the law itself. Because fiduciary duty law is currently structured as a set of fuzzy …
Constitution On Ice: A Report On Immigration Home Raid Operations, Bess Chiu, Lynly Egyes, Peter L. Markowitz, Jaya Vasandani
Constitution On Ice: A Report On Immigration Home Raid Operations, Bess Chiu, Lynly Egyes, Peter L. Markowitz, Jaya Vasandani
Articles
No abstract provided.
Assuring Access To Justice: The Role Of The Judge In Assisting Pro Se Litigants In Litigating Their Cases In New York City’S Housing Court, Paris R. Baldacci
Assuring Access To Justice: The Role Of The Judge In Assisting Pro Se Litigants In Litigating Their Cases In New York City’S Housing Court, Paris R. Baldacci
Articles
No abstract provided.
A Progressive Consumption Tax For Individuals: An Alternative Hybrid Approach, Mitchell L. Engler
A Progressive Consumption Tax For Individuals: An Alternative Hybrid Approach, Mitchell L. Engler
Articles
Dissatisfaction with the existing income tax has increased in recent years. Practical problems with the income tax base create numerous loopholes, increasingly exploited by well-advised taxpayers. For the most part, these gaps are attributable to the income tax's "realization" requirement, under which taxpayers report gains and losses as "realized" through market transactions. A consumption tax appeals as a response to these significant current loopholes since "realization" loses its significance under a consumption-based tax. The consumption tax's appeal has been further enhanced by the recent and growing recognition of the narrow difference between income and consumption taxes, assuming away practical problems. …
Conclusion, Monroe E. Price
The Asbestos Claims Management Act Of 1991: A Proposal To The United States Congress, Lester Brickman
The Asbestos Claims Management Act Of 1991: A Proposal To The United States Congress, Lester Brickman
Articles
No abstract provided.
The Asbestos Litigation Crisis: Is There A Need For An Administrative Alternative?, Lester Brickman
The Asbestos Litigation Crisis: Is There A Need For An Administrative Alternative?, Lester Brickman
Articles
No abstract provided.
Reexamining Intellectual Property Concepts: A Glimpse Into The Future Through The Prism Of Chakrabarty, Monroe E. Price
Reexamining Intellectual Property Concepts: A Glimpse Into The Future Through The Prism Of Chakrabarty, Monroe E. Price
Articles
No abstract provided.
The Tax Reform Act Of 1986: A Response To Professor Yorio And His Vision Of The Future Of The Internal Revenue Code, Edward A. Zelinsky
The Tax Reform Act Of 1986: A Response To Professor Yorio And His Vision Of The Future Of The Internal Revenue Code, Edward A. Zelinsky
Articles
No abstract provided.
Reforming The Efficiency Criterion: Comments On Some Recent Suggestions, David G. Carlson
Reforming The Efficiency Criterion: Comments On Some Recent Suggestions, David G. Carlson
Articles
No abstract provided.
Pennhurst And The Scope Of Federal Judicial Power To Reform Social Institutions, David Rudenstine
Pennhurst And The Scope Of Federal Judicial Power To Reform Social Institutions, David Rudenstine
Articles
No abstract provided.