Law Commons^™

Due Process Abroad, Nathan Chapman

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Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure. Up to now, …

The Legal Regulation Of U.S. Crowdfunding: An Organically Evolving Patchwork, Joan Macleod Heminway

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The legal regulation of crowdfunding in the United States is neither well calibrated nor holistic. With the exception of specific securities regulation legislation, the regulation of crowdfunding under U.S. law exists as an extension of principles of pre-existing regulation to a specific new and continually changing Internet-based financing space. As a result, while some common consumer protection objectives can be identified, the legal regulatory approach to crowdfunding did not develop through deliberate, rational choice based on coherent public policy objectives. Instead, it arose and evolved by necessity in response to the spontaneous and natural origination and development of crowdfunding as …

Professional Responsibility In An Age Of Alternative Entities, Alternative Finance, And Alternative Facts, Joan Macleod Heminway

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Business lawyers in the United States find little in the way of robust, tailored guidance in most applicable bodies of rules governing their professional conduct. The relative lack of professional responsibility and ethics guidance for these lawyers is particularly troubling in light of two formidable challenges in business law: legal change and complexity. Change and complexity arise from exciting developments in the industry that invite — even entice — the participation of business lawyers.

This essay offers current examples from three different areas of business law practice that involve change and complexity. They are labeled: “Alternative Entities,” “Alternative Finance,” and …

Selling Crowdfunded Equity: A New Frontier, Joan Macleod Heminway

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This article briefly offers information and observations about federal securities law transfer restrictions imposed on holders of equity securities purchased in offerings that are exempt from federal registration under the CROWDFUND Act, Title III of the JOBS Act. The article first generally describes crowdfunding and the federal securities regulation regime governing offerings conducted through equity crowdfunding — most typically, the offer and sale of shares of common or preferred stock in a corporation over the Internet — in a transaction exempt from federal registration under the CROWDFUND Act and the related rules adopted by the U.S. Securities and Exchange Commission. …

Chevron In The Circuit Courts: The Codebook Appendix, Kent H. Barnett, Christopher J. Walker

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For our empirical study on the use of Chevron deference in the federal courts of appeals, we utilized the following Codebook. This Codebook draws substantially from the codebook appended to William Eskridge and Lauren Baer's pathbreaking study of administrative law's deference doctrines at the Supreme Court. Our research assistants and we followed the instructions below when coding judicial decisions. To address questions as they arose and to ensure consistent coding, we maintained close contact with each other and our research assistants throughout the project and clarified the Codebook to address additional issues. Further details concerning our methodology (and its limitations) …

Polygamous Marriage, Monogamous Divorce, Michael J. Higdon

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Could the constitutional right to marry also encompass polygamy? That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists—that is, those who never intend to have more than …

To Avoid The Ieds, Mind The Ethical Touchstones, George Kuney

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No abstract provided.

Incorporating Race Into Your Legal Research Class, Shamika Dalton

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No abstract provided.

Tennessee's For Profit Benefit Corporation Act: Will More Regulation Achieve The Desired Results, Brian Krumm

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No abstract provided.

Inimicus Libertatis: Chief Justice Rehnquist’S Majority Or Plurality Opinions In The Field Of Criminal Procedure, Donald E. Wilkes Jr.

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Since the early 1970’s an increasingly conservative Supreme Court of the United States has been leading this country through a “Criminal Procedure Counterrevolution” (also called “The Rehnquisition”), during which the federal rights and remedies of criminal defendants have been inexorably and significantly eroded. There are numerous books and law review articles discussing this counterrevolution. Chief Justice Rehnquist, the most articulate and ideological of the Courts conservative justices, may properly be regarded as the intellectual founder and leader of this trend in favor of restricting criminal procedure rights.

This article analyzes and provides a bibliography of Supreme Court criminal procedure opinions …

Financing Social Enterprise: Is The Crowd The Answer?, Joan Macleod Heminway

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How does a business that wants “do good” while doing well finance its operations? In particular, how does a business of that kind find investors who understand and are committed to both its nonfinancial and financial objectives? This chapter addresses issues at the intersection of corporate governance and corporate finance with those questions in mind. Specifically, the pages that follow assess common foundational elements of social enterprise and crowdfunding and whether crowdfunding may be a promising (or even suitable) source of funding for social enterprise businesses.

As young popular and populist corporate governance and corporate finance adventures, social enterprise and …

2017 Transactional Clinic Conference -- June 1-2, 2017 Philadelphia. Results Of A Survey Of Conference Participants On Skills, Competencies, Learning Outcomes And Assessments (And Other Transactional Clinic Demographics), Brian Krumm

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The authors were presenters at the 2017 Transactional Clinic Conference: Built for Impact, held at University of Pennsylvania Law School in Philadelphia on June 1-2. Their topic was Learning Outcomes, Competencies, Skills and Assessments in Transactional Clinics. As part of their presentation, they prepared a survey of conference participants to gather information about how they define learning outcomes, and define and assess competencies and skills in their transactional clinics. The survey also asked numerous demographic questions about the transactional clinics which were represented, including types of clients represented and matters addressed, number of students supervised, prerequisites, grading, use of technology, …

Safe Haven Conundrum: The Use Of Special Bailments To Keep Pets Out Of Violent Households, Joan Macleod Heminway

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Family violence is a continuing social problem that breeds new complexity at every turn. Just as we seem to get a modicum of control over the sheltering of at-risk mothers and children (among other human victims), we find that family pets—dependent creatures endangered by the same violent behavior that threatens their human caretakers—often are left unprotected or under-protected by both law and society. In most cases, pets are unable to be sheltered with human victims of domestic violence due to shelter restrictions. Restrictions on the sheltering of abuse victims with their pets result in difficult choices for human victims who …

We, The People - Whoever That Is [Reviews], Glenn Harlan Reynolds

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No abstract provided.

Equality And Nondiscrimination Through The Eyes Of An International Religious Organization: The Organization Of Islamic Cooperation's (Oic) Response To Women's Rights, Robert C. Blitt

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This article is the first of a two part series that draws on women’s rights and sexual orientation and gender identity (SOGI) to explore how the Organization of Islamic Cooperation (OIC) represents, interprets and seeks to impact the right to equality and protection against discrimination as enshrined under international human rights law. The study is a novel one in as much as the OIC is neither a state nor a religious group per se. Rather, the OIC stands out as the only contemporary intergovernmental organization unifying its member states around the commonality of a single religion. In this capacity, the …

Why Can't We Be Friends? A Business Finance Lawyer's Plaintive Plea To Entrepreneurs, Joan Macleod Heminway

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Entrepreneurs have the capacity to add value to the economy and the community. Business lawyers — including business finance lawyers — want to help entrepreneurs achieve their objectives. Despite incentives to a symbiotic relationship, however, entrepreneurs and business finance lawyers are not always the best of friends. This symposium piece offers several approaches to bridging this gap between entrepreneurs and business finance lawyers.

Tacit Collusion On Steriods - The Tale On Online Price Transparency, Advanced Monitoring And Collusion, Maurice Stucke

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No abstract provided.

Memorial: William J. (Bill) Beintema (1944-2015), Sibyl D. Marshall, Scott Childs

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No abstract provided.

Shareholder Wealth Maximization As A Function Of Statutes, Decisional Law, And Organic Documents, Joan Macleod Heminway

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In context, corporate law is often credited with creating, hewing to, or reinforcing a shareholder wealth maximization norm. The now infamous opinion in Dodge v. Ford Motor Co. describes the norm in a relatively bald and narrow way: "A business corporation is organized and carried on primarily for the profit of the stockholders." As a matter of theory and policy, commentators from the academy (law and business) and practice (lawyers and judges) have taken various views on this asserted norm — ranging from characterizing the norm as nonexistent or oversimplified to maintaining it as simple fact.

In an effort to …

A Taxonomy And Evaluation Of Successor Liability (Revisited), George Kuney

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Successor liability does not consist of just one doctrine or exception to the general corporate rule of non-liability for asset purchasers, but of many. There are two broad groups of successor liability doctrines, those that are judge-made (the “common law” exceptions) and those that are creatures of statute. Both represent a distinct public policy that in certain instances and for certain liabilities, the general rule of non-liability of a successor for a predecessor’s debts following an asset sale should not apply. With regard to the judge-made doctrines, some commentators have asserted that they are basically a species of liability based …

Permissible Negligence And Campaigns To Suppress Rights, Glenn Harlan Reynolds

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In his The Second Amendment Right To Be Negligent, 68 Fla. L. Rev. 1 (2016), Andrew McClurg looks at statutory protections shielding gun owners and sellers from liability in cases of theft, etc. in terms of what he calls a constitutional “right to be negligent” under the First and Second Amendments. In this brief response, I look at that question, and also touch, briefly, on the to-me interesting aspect that the protection enjoyed by publishers under the First Amendment was created by judicial action, while that enjoyed under the Second Amendment was instead the product of legislation. But, in short, …

Old-School Rhetoric And New-School Cognitive Science: The Enduring Power Of Logocentric Categories, Lucille Jewel

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For thousands of years, the contours of Western legal argument have remained unchanged. Since the time of the ancient Greeks, lawyers have been presenting arguments in the same basic format, with a heavy reliance on the concept of logos, the idea that arguments are most persuasive when presented in a clear deductive logical structure using clean-cut categories. Forming the basis for the terms that appear in logocentric legal arguments, categories allow humans to group facts and information together into classes. For instance, chairs, tables, and beds occupy the category of furniture and cars; trucks, and motorcycles occupy the category of …

The Criminalization Of Walking, Michael Lewyn

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The simple act of walking is sometimes criminalized in the United States. Anti-jaywalking statutes and ordinances—originally motivated by auto-industry lobbyists in the 1920s—call for fines and, sometimes, imprisonment for crossing the street. Additionally, some localities have interpreted statutes against “child neglect” to encompass a parent’s decision to let their kid walk outside alone. The result of this criminalization? Such policies have reduced pedestrian liberty, increased automobile traffic and pollution, and created a disincentive for physical activity in the midst of an obesity and diabetes epidemic. In addition to discussing these effects, this Article argues that the purported safety benefits of …

Reproductive Selection Bias, Lauren R. Roth

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Decades after the advent of assisted reproductive technology (ART) that allows prospective parents to deselect embryos with grave genetic illnesses – a procedure called preimplantation genetic diagnosis (PGD) – it remains a tool largely of upper class whites. In the wake of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, I argue that the time has come to focus on access in this area of reproductive rights. The next logical step is to rebut the presumption that reproductive liberty is only a negative right that prevents government interference with decisions about whether and how to procreate or not …

Redefining Medical Care, Lauren R. Roth

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President Donald J. Trump has said he will replace the Affordable Care Act (ACA) with health savings accounts (HSAs). Conservatives have long preferred individual accounts to meet social welfare needs instead of more traditional entitlement programs. The types of “medical care” that can be reimbursed through an HSA are listed in § 213(d) of the Internal Revenue Code (Code) and include expenses “for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.”

In spite of the broad language, regulations and court interpretations have narrowed this definition substantially. …

The Environmentalist Case For Sprawl- And Why It Fails, Michael Lewyn

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Environmentalists generally favor compact, walkable development, because development that reduces automobile use may reduce automobile-related pollution. Defenders of suburban sprawl argue, however, that compact development may actually increase pollution in a variety of ways. This article criticizes the latter argument.,

Deontological Originalism: Moral Truth, Liberty, And, Constitutional Due Process: Part I - Originalism And Deontology, Peter Brandon Bayer

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This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation …

Nine Into Eleven: Accounting For Common Interest Communities In Bankruptcy, C. Scott Pryor

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Ever more Americans live in a common interest community such as a homeowners’ association or condominium. Common interest communities restrict the uses owners may make of their property but provide benefits to the owners. The community association pays for these benefits by levying assessments on the owners’ property. Common interest communities offer a wide variety of benefits that can be divided into two sorts: public and private. Local municipalities typically provide public benefits at taxpayer expense; private entities usually afford private benefits at the consumer’s expense.

Like both public and private entities, common interest communities can experience the problem of …

Murder For Life Insurance Money: Protecting The Children, Johnny C. Chriscoe

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Children are being murdered for life insurance proceeds.

Of course, if a beneficiary murders a child for the recovery of life insurance money and if he is apprehended, he will surely face numerous legal consequences. He will not recover the insurance money, he will be prosecuted and likely sentenced to life imprisonment or execution, he may be sued for the wrongful death of the child and he may be prosecuted for insurance fraud. However, all of these legal responses are triggered by the death of the child and, therefore, do not serve to protect the child from being murdered in …

The Limits Of Creativity In Copyright: Digital Manufacturing Files And Lockout Codes, Lucas S. Osborn

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As the distinction between the digital and physical worlds continues to diminish, the necessity to reevaluate the bargain struck by the copyright regime increases in importance. Digitization brings increasingly more aspects of our world into the potential ambit of the copyright system. To understand whether and how the copyright system should apply in an increasingly digital world, it is first necessary to understand doctrinally how current copyright laws apply to new digital works. This Article corrects several errors that have appeared in the literature analyzing copyright law's treatment of 3D printing and other digital manufacturing files. This Article incorporates an …