Law Commons^™

Does The Mobile-Sierra Doctrine Apply When A Contract Is Challenged By A Noncontracting Third Party?, Jay E. Grenig

Faculty Publications

No abstract provided.

First Parents: Reconceptualizing Newborn Adoption, James G. Dwyer

Faculty Publications

No abstract provided.

Preaching To The Court House And Judging In The Temple, Nathan B. Oman

Faculty Publications

No abstract provided.

Constitutional Displacement, Timothy Zick

Faculty Publications

This Article examines the intersection between territory and constitutional liberty. Territoriality, as defined by Robert Sack, is the attempt to affect, influence, or control people, phenomena, and relationships by delimiting and asserting control over a geographic area. Territoriality affects constitutional liberty in profound ways. These effects have been apparent in certain infamous historical episodes, including the territoriality of racial segregation, the geographic exclusion and internment of Japanese-Americans during World War II, early state migratory exclusions, and isolation of the sick and mentally ill. Today, governments are resorting to territorial restrictions in an increasing number of circumstances, including detention of enemy …

The Saucier Qualified Immunity Experiment: An Empirical Analysis, Nancy Leong

Faculty Publications

No abstract provided.

Deception, Decisions, And Investor Education, Jayne W. Barnard

Faculty Publications

Tens of millions of dollars each year are spent on investor education. Because older adults (those aged sixty and older) are disproportionately victims of investment fraud schemes, many educational programs are targeted at them. In this Article, Professor Barnard questions the effectiveness of these programs. Drawing on recent studies from marketing scholars, neurobiologists, social psychologists, and behavioral economists examining the ways in which older adults process information and make decisions, she offers a model of fraud victimization (the "deception/decision cycle") that explains why older adults are often vulnerable to investment fraud schemes. She then suggests that many of the factors …

Cedaw, Compliance, And Custom: Human Rights Enforcement In Sub-Saharan Africa, Angela M. Banks

Faculty Publications

No abstract provided.

Why The United States Supreme Court Got Some [But Not A Lot] Of The Sixth Amendment Right To Counsel Analysis Right, Paul Marcus

Faculty Publications

No abstract provided.

Specific Performance And The Thirteenth Amendment, Nathan B. Oman

Faculty Publications

No abstract provided.

Green Helmets: Eco-Intervention In The Twenty-First Century, Linda A. Malone

Faculty Publications

No abstract provided.

A House Divided: The Invisibility Of The Multiracial Family, Angela Onwuachi-Willig, Jacob Willig-Onwuachi

Faculty Scholarship

This Article is an invited special projects paper for the Harvard Civil Rights-Civil Liberties Law Review. It examines how society and law work together to frame the normative ideal of intimate couples and families as both heterosexual and monoracial. This Article sets out to accomplish three goals. First, it examines the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of interracial marriages and families within our society. Specifically, Part II of this Article uses the work of Professor Peggy McIntosh to identify unacknowledged monoracial, heterosexual-couple privileges and list unearned privileges, both social and legal, …

Toward An Architecture Of Health Law, Wendy K. Mariner

Faculty Scholarship

This article examines 3 questions: What is an academic field of law? Is health law such a field? If it is, how can or should it be described? The first question may have no answer; scholars and practicing lawyers have fashioned their owns spheres of expertise. Describing health law faces particular challenges, including the breadth of applicable doctrines and the decline of unique medically-oriented adaptations of general principles. The article offers a blueprint based on the health and human rights framework as a functional description of the eclectic and translegal field of health law. This approach can identify the principles …

Choice Of Law For Professional Responsibility Issues In Aggregate Litigation, Nancy J. Moore

Faculty Scholarship

As the rest of the papers in this symposium issue demonstrate, aggregate litigationi raises difficult, often intractable choice-of-law issues for judges, as well as for litigants and their lawyers. Typically, judges must choose among rules governing not only substantive law, but also statutes of limitations, allocation of damages, and punitive damages. 2 What is less well-recognized is that aggregate litigation may also present difficult choice-of-law issues regarding the ethical conduct of the lawyers involved in these cases. So far, these issues have barely surfaced, not because professional responsibility questions have not been raised with respect to aggregate litigation, but rather …

The U.S. Discovery-Eu Privacy Directive Conflict: Constructing A Three-Tiered Compliance Strategy, Carla L. Reyes

Faculty Journal Articles and Book Chapters

This note examines the conflicts of laws issue faced by trans-border civil litigants attempting to comply with both the U.S. Federal Rules of Civil Procedure and the requirements of the EU Privacy Directive. This note first sifts through the quagmire of regulations, and then attempts to help trans-border litigants view the U.S. discovery-EU data protection conflict through a transnational legal lens, and concludes by constructing a three-tiered strategy for compliance that respects U.S., EU and international law.

International Governance Of Domestic National Security Measures: The Forgotten Role Of The World Trade Organization, Carla L. Reyes

Faculty Journal Articles and Book Chapters

The current perception of the United Nations as the only institution charged with governing international security issues was neither intended nor required. Although the historical development of the World Trade Organization (WTO) caused a significant shift in its governance focus, the WTO is uniquely situated to remedy several of the governance failures suffered by the United Nations and to act as an effective governor of national security in the economic sphere. need for such an alternative governance mechanism is especially acute when nation-states refuse to recognize the authority of the United Nations over a security dispute or when a veto-holding …

Corporate Tax Reform: Listening To Corporate America, Christopher H. Hanna

Faculty Journal Articles and Book Chapters

In the last few years, academics, practitioners and government officials have engaged in serious discussions in reforming the U.S. corporate income tax system. Some, if not much of the discussion, has focused on maintaining the competitiveness of U.S. corporations in a global economy. As a result, some have argued that the U.S. needs to reduce its top corporate tax rate from 35 percent, which is currently among the highest of the 30 OECD countries, to a rate around 30 percent or even lower. Others have maintained that the U.S. needs to enact specific or targeted tax incentives, such as expensing …

The Real Value Of Tax Deferral, Christopher H. Hanna

Faculty Journal Articles and Book Chapters

A leading law professor wrote, almost 25 years ago, that Deferral of gain is not as serious as outright exemption [exclusion], but it is the next best thing, as sophisticated taxpayers and their counsel are now well aware. If exclusion is not possible, then according to the professor, the next best result is to defer paying taxes on the item of income. From a tax law standpoint, very few academics would disagree with the statement that deferral is the next best thing to exclusion.

But how important is tax deferral in the real word, particularly with respect to the Fortune …

It Depends, Gary S. Lawson

Faculty Scholarship

Peter Strauss stated at the outset of this Symposium that the participants were chosen in part for the likelihood that they would generate “intelligent disagreement.” By that standard, I may have been a poor choice--and if that is the case, I will leave it to the reader to determine whether it is a function of the first or second term in the quoted phrase. At first glance, it looks as though I sharply disagree with Rick Pildes and Harold Bruff about whether the PCAOB's members are principal officers who must be appointed by the President with the advice and consent …

Building A Framework To Address Failure Of Complex Global Financial Institutions, Douglas W. Arner, Joseph J. Norton

Faculty Journal Articles and Book Chapters

The systemic phase of the current global financial crisis was triggered by the failure of large complex global financial institutions (LCGFIs). In this context, as recognised by the Group of 20, one of the greatest failures of both international and domestic legal and regulatory systems has been the lack of appropriate arrangements, including adequate insolvency arrangements, to address such failures when they occur. Following a discussion of the difficulties of dealing with the failure of large complex global financial conglomerates, the article discusses advocates a framework based upon prevention of failure as the first element and mechanisms to address failure …

American Moment[S]: When, How, And Why Did Israeli Law Faculties Come To Resemble Elite U.S. Law Schools?, Pnina Lahav

Faculty Scholarship

Following independence in 1948, the Hebrew University of Jerusalem founded a law faculty and modeled it on the European example (Continental and British). Today, the Israeli law faculty is much more similar to the U.S. law school than to institutions of legal education in Europe. This Article traces the history of the changes in Israeli legal education. It argues that the shift began after 1967, faced resistance in the 1980s, and gained momentum in the 1990s. Presently we may be witnessing the beginning of a shift away from U.S. influence and back to Continental Europe or even Asia. The Article …

Book/Tax Conformity And Equity Compensation, David I. Walker, Victor Fleischer

Faculty Scholarship

Should we require companies to report the same amount of income to the IRS as they report to their shareholders? The idea behind "book/tax conformity" is that managers' desire to increase reported earnings would act as a check on their desire to minimize taxable income, and vice versa. Some scholars have proposed a comprehensive approach, adopting financial income as the basis for corporate taxation. Legislators, meanwhile, have offered a targeted approach that singles out equity compensation, which has historically been a significant source of the "gap" between book income and taxable income.

This Article argues that book/tax conformity carries unexplored …

Combating Midnight Regulation, Jack M. Beermann

Faculty Scholarship

The flurry of regulatory activity by the outgoing administration of President George W. Bush has raised, once again, the specter of midnight regulation. Whatever the reason for midnight regulation, there seems to be a general consensus that something has gone wrong when an outgoing administration takes important action while the incoming administration is essentially waiting to take over. Most late term action is subject to the obvious question of "if this action was so important, why didn't the administration take it in the last seven and three-quarters years or so?" Even though the Constitution leaves the incumbent in office for …

The End Of Reparations Talk: Reparations In An Obama World, Kevin Outterson

Faculty Scholarship

Disparities in Black health began in slavery, were reinforced in segregation and racism, and persist today despite significant remedial efforts. In the last decade, the statistics about Black health disparities show no improvement. The caustic history of slavery, racism and segregation hasn't been completely undone. Fundamental changes are still necessary to repair deficits in Black health.

But the election of Barack Obama has changed the relevance of reparations as a political tool for making these changes. We elected a Black man as President, and he refused to apply reparations talk to social programs of uplift for disadvantaged communities. Obama struck …

The Turn Toward Congress In Administrative Law, Jack M. Beermann

Faculty Scholarship

Congress engages in an extensive and ever-increasing level of oversight of the activities of the Executive Branch. The level of observation and supervision is high enough that it is appropriate to hold Congress responsible for a very high proportion of the activities of the Executive Branch. In recent years, so much attention has been paid to assertions of power by the President and the Supreme Court, Congress has been somewhat neglected. This paper analyzes the power of Congress mainly through an administrative law lens with the aim of pointing out ways in which Congress has remained or become responsible for …

Tort Duties Of Landowners: A Positive Theory, Keith N. Hylton

Faculty Scholarship

One of the most controversial areas of modern tort law is that of the duty of landowners toward people who visit their land. The common law divided land visitors into three types: invitees, licensees, and trespassers. The highest duty of care was owed to the invitee and the lowest to the trespasser. The distinctions led courts to hand down harsh decisions and to draw formal lines between the categories that seemed to defy common sense at times. This paper explains the incentive-based function of the classical landowner duties. I will argue that the classical duties served useful regulatory functions. The …

The Impact Of Sovereign Wealth Funds On The Regulation Of Foreign Direct Investment In Strategic Industries: A Comparative View, Maya Steinitz, Michael Ingrassia

Faculty Scholarship

Investments by sovereign wealth funds ('SWFs') - pools of capital accumulated by and under the control of sovereign states, mostly from the Persian Gulf and East Asia - in European and North American companies have changed dramatically both in scope and in nature in the last few years. In terms of scope, SWFs are estimated to currently control USD$2-3 trillion in assets - more than all hedge funds and private equity funds combined - and within the next five years, they are expected to direct USD$6-10 trillion in assets.' In terms of the nature of the investments made, these funds …

Internationalized Pro-Bono And A New Global Role For Lawyers In The 21st Century: Lessons From Nation-Building In Southern Sudan, Maya Steinitz

Faculty Scholarship

From 2004 to 2006, the author led the pro bono representation of the Sudan People’s Liberation Movement (“SPLM”), assisting the SPLM in drafting and negotiating the National Interim Constitution of Sudan, the Interim Constitution of Southern Sudan and the Constitutions of two “transitional” states. The representation was part of an emerging trend in pro bono representations. In small but increasing numbers, private law firms have begun to take on pro bono projects with global significance - assisting governments and civil society in post-conflict countries to deal on an even footing with foreign investors, for instance, or working with international criminal …

Accounting For Productivity Growth When Technical Change Is Biased, James Bessen

Faculty Scholarship

Solow (1957) decomposed labor productivity growth into two components that are independent under Hicks neutrality: input growth and the residual, representing technical change. However, when technical change is Hicks biased, input growth is no longer independent of technical change, leading to ambiguous interpretation. Using Solow's model, I decompose output per worker into globally independent sources and show that technical bias directly contributes to labor productivity growth above what is captured in the Solow residual. This contribution is sometimes large, generating rates of total technical change that substantially exceed the Solow residual, prompting a reinterpretation of some well-known studies.

Constitutional Theory And The Future Of The Unitary Executive, Sotirios Barber, James E. Fleming

Faculty Scholarship

In The Constitution in Wartime: Beyond Alarmism and Complacency, Mark Tushnet distinguishes two voices: "alarmists who see in every action taken by the Bush [A]dministration a portent of gross restrictions on the civil liberties of all Americans, and administration shills who see in those actions entirely reasonable, perhaps even too moderate, accommodations of civil liberties to the new realities of national security."1 Tushnet's volume contains essays, including one by us,2 which he judges to lie "beyond alarmism and complacency" (or perhaps between alarmism and complacency). But critics of the Bush Administration's theory of the unitary executive may be alarmed by …

Eight Is Enough, Naomi R. Cahn, Jennifer M. Collins

Faculty Journal Articles and Book Chapters

On January 26, 2009, the nation's second set of live-born octuplets was delivered. The public fascination with this event quickly turned ugly when the media revealed that the mother was thirty-three year-old Nadya Suleman, who is single, unemployed, and already caring for six children under the age of eight.

The cultural backlash against Suleman has focused on three separate issues. The first revolves around Suleman herself, and her ability as a single, unemployed mother to parent fourteen young children successfully. A second set of concerns revolves around the medical procedures at her fertility clinic. How could the clinic agree to …