Law Commons^™

Finding International Law, Part Ii: Our Fragmenting Legal Community, Harlan G. Cohen

Scholarly Works

Is there an “International Community?” This Article suggests that there is not, that the oft-discussed fragmentation of international law reveals that there are in fact multiple overlapping and competing international law communities, each with differing views on law and legitimacy.

This Article reaches this conclusion by taking a fresh look not only at the sources of fragmentation, but at the sources of international law itself. Building on earlier work rethinking international law’s sources and drawing insights from legal philosophy, compliance theory, and international relations, this Article takes a closer look at three areas that have challenged traditional interpretations of international …

The Originalist Case Against Congressional Supermajority Voting Rules, Dan T. Coenen

Scholarly Works

Controversy over the Senate’s filibuster practice dominates modern discussion of American legislative government. With increasing frequency, commentators have urged that the upper chamber’s requirement of sixty votes to close debate on pending matters violates a majority-rulebased norm of constitutional law. Proponents of this view, however, tend to gloss over a more basic question: Does the Constitution’s Rules of Proceedings Clause permit the houses of Congress to adopt internal parliamentary requirements under which a bill is deemed “passed” only if it receives supermajority support? This question is important. Indeed, the House already has such a rule in place, and any challenge …

From Fragmentation To Constitutionalization, Harlan G. Cohen

Scholarly Works

This short essay, prepared for a panel on “The Impact of a Wider Dissemination of Human Rights Norms: Fragmentation or Unity?,” explores the connection between two popular, but seemingly contradictory discourses in international law: fragmentation and constitutionalization. After disentangling and categorizing the various types of fragmentation international law may be experiencing, the essay focuses in on one form in particular, the “fragmentation of the legal community.” This most radical version of fragmentation, the essay argues, has spurred a number of responses, many of which suggest the beginnings of a constitutional conflicts regime for international law. The essay ends by suggesting …

Social Proposals Under Rule 14a-8: A Fall-Back Remedy In An Era Of Congressional Inaction, Margaret V. Sachs

Scholarly Works

More than a decade ago, institutional investors, notably labor unions and pension plans, began using shareholder proposals as a vehicle for advancing progressive social causes. These proposals have recently garnered heightened levels of shareholder support. While even majority support for a proposal does not insure its adoption by the board of directors, appreciable (even if not majority) support can nonetheless sometimes precipitate adoption, or at least negotiation (which can lead to adoption). This Essay argues, first, that with Congress now largely dysfunctional, social proposals have acquired a whole new role—that of a company-by-company, fall-back mechanism for solving social problems that …

Affordable Care Act Litigation: The Standing Paradox, Elizabeth Weeks Leonard

Scholarly Works

The Patient Protection and Affordable Care Act (ACA) litigation presents a standing paradox. In the current posture, it appears that states lack standing to challenge the federal law on behalf of individuals, while individuals possess standing to challenge the federal law on behalf of states. This Article contends that there is no principled reason for this asymmetry and argues that standing doctrine should apply as liberally to states as individuals, assuming states allege the constitutional minimum requirements for standing and especially where the legal challenge turns on allocation of power between the federal government and states. The Article proceeds by …

Scaling The Patent System, Christina Mulligan, Timothy B. Lee

Scholarly Works

Why do firms in some industries ignore patents when developing new products? This paper posits a simple but novel answer to this long-puzzling question: firms ignore patents because they are unable to discover the patents their activities might infringe. The costs of finding relevant patents, which we call discovery costs, are prohibitively high.

Not all industries face high patent discovery costs. Chemical patents are "indexable," meaning that relevant patents can be efficiently retrieved by chemical formula. As a result, discovery costs in the chemical and pharmaceutical industries are low, and inadvertent infringement by firms in these industries is rare. But …

The Monster In The Courtroom, Sonja R. West

Scholarly Works

It is well known that Supreme Court Justices are not fans of cameras — specifically, video cameras. Despite continued pressure from the press, Congress, and the public to allow cameras into oral arguments, the Justices have steadfastly refused.

The policy arguments for allowing cameras in the courtroom focus on cameras as a means to increased transparency of judicial work. Yet these arguments tend to gloss over a significant point about the Court — it is not secretive. The Court allows several avenues of access to its oral arguments including the presence of the public and the press in the audience, …

Exit, Voice, And Reputation: The Evolution Of Spacs, Usha Rodrigues, Mike Stegemoller

Scholarly Works

This Article tells the story of a new type of business—the special purpose acquisition corporation ("SPAC"). The promoters of a SPAC begin by forming a shell corporation with no assets. They then take the company public on little more than a promise that they will strive to complete the acquisition of a target in the near future. We present the first empirical study of the SPAC contract design, and use a hand-collected dataset to trace its evolution over the past nine years.

While SPACs are a new form, their contract design borrows heavily from private equity's playbook. Private equity managers …

The Citizen Shareholder: Modernizing The Agency Paradigm To Reflect How And Why A Majority Of Americans Invest In The Market Berle Iii: Theory Of The Firm: The Third Annual Symposium Of The Adolf A. Berle, Jr. Center On Corporations, Law & Society, Anne M. Tucker

Scholarly Works

This Article examines corporate law from the perspective of personal investment and discusses the economic realities of modern investments in order to understand the role of shareholders within the agency paradigm. Corporate law, its scholars, and suggested reforms traditionally focus on the internal organization of the corporation. For example, agency principles inform corporate law by acknowledging a potential conflict of interest between the managers and shareholders of a corporation. Reforms such as increased shareholder voting rights and proxy access, which seek to give shareholders a more direct means to make their interests known to managers, illustrate corporate law’s focus on …

Politics And Prosecutions, From Katherine Fite To Fatou Bensouda, Diane Marie Amann

Scholarly Works

Based on the Katherine B. Fite Lecture delivered at the 5th Annual International Humanitarian Law Dialogs in Chautauqua, New York, this essay examines the role that politics has played in the evolution of international criminal justice. It first establishes the frame of the lecture series and its relation to IntLawGrrls blog, a cosponsor of the IHL Dialogs. It then discusses the career of the series' namesake, Katherine B. Fite, a State Department lawyer who helped draft the Charter of the International Military Tribunal at Nuremberg and who was, in her own words, a "political observer" of the proceedings. The essay …

Rationally Cutting Tax Expenditures, Gregg D, Polsky

Scholarly Works

This article illustrates the differences between the two types of tax expenditures by examining the child tax credit (a distributional expenditure), the charitable deduction (an allocative expenditure), and taxfree saving accounts and the mortgage deduction (both of which are-usually defended on allocative grounds but probably have mainly distributional impacts). These differences should be well understood by policymakers as they consider tax expenditure reform as part of a deficit reduction plan.

Agency And The Ontology Of The Corporation, Christopher M. Bruner

Scholarly Works

No abstract provided.

The Chevron Two-Step In Georgia's Administrative Law, David Shipley

Scholarly Works

The Georgia Supreme Court and Court of Appeals have long accepted the General Assembly’s authority to enact legislation that establishes administrative agencies and empowers those agencies to promulgate rules and regulations to implement their enabling statutes. In addition, the Georgia Constitution provides that the General Assembly may authorize agencies to exercise quasi-judicial powers. Administrative agencies with broad powers enjoy a secure position under Georgia law.

Like federal and state administrative agencies throughout the nation, Georgia’s many boards, commissions and authorities make policy when they apply their governing statutes in promulgating regulations of general applicability, and in ruling on specific matters …

The Rhetoric Hits The Road: State Resistance To Affordable Care Act Implementation, Elizabeth Weeks Leonard

Scholarly Works

This paper provides an update and reanalysis of my previously published article, Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform, 93 Hofstra Law Review 111 (2010). In Rhetorical Federalism, I made an affirmative case for the widespread trend of state resistance to the then-recently enacted Patient Protection and Affordable Care Act of 2010 (ACA). Before and immediately after ACA’s enactment, a significant number of states engaged in various forms of objection to the new federal Act, including but not limited to lawsuits challenging the constitutionality of the individual insurance mandate. My article focused on five targets of …

Some Preliminary Thoughts On The Law Of Neighbors, Jim Smith

Scholarly Works

A fundamental characteristic of real property law, one that is definitional in nature, is that its subject matter consists of land parcels. A land parcel, in contrast to an ownership interest such as a fee simple estate, is not an abstraction. Each land parcel has a physical reality, and virtually all land parcels abut other parcels. Each parcel has one particular location, defined by its proximity to other pieces of property. The value of a land parcel depends heavily upon its location, and the nature of neighboring parcels has a major impact in determining that value.

Owners of neighboring parcels …

Transtemporal Separation Of Powers In The Law Of Precedent, Randy Beck

Scholarly Works

The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law.

This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing …

An Essay On Originalism And The 'Individual Mandate': Rounding Out The Government’S Case For Constitutionality, Dan T. Coenen

Scholarly Works

The Supreme Court now has under advisement the landmark federal health care law case. Much attention has focused on the law’s minimum coverage provision—or so-called “individual mandate” — and, in particular, its constitutionality under the Commerce Clause and the Necessary and Proper Clause. In a separate and much lengthier article, I offer two main observations about the arguments made to the Court on that issue. First, I show that the challengers of the minimum coverage provision emphasized originalist reasoning in their briefs and oral arguments, while the federal government did not. Second, I explain why — contrary to the impression …

Arthur Soden's Legacy: The Origins And Early History Of Baseball's Reserve System, Edmund P. Edmonds

Journal Articles

The article focuses on the nineteenth century evolution of the U.S. baseball reserves system. It mentions that the early history of the reserve clause establishes a relationship with sports collective bargaining agreements. It notes that its basic structure stems from a dispute between Boston owner Arthur Soden and baseball players James O'Rourke and George Wright. It also emphasizes on discipline imposed to the players who abandon their contracts to seek higher salaries from a different team.

Toward A Unified Grading Vocabulary: Using Grading Rubrics To Set Student Expectations And Promote Consistency In Legal Writing Courses, Jessica L. Clark, Christy Hallam Desanctis

GW Law Faculty Publications & Other Works

Faced with the American Bar Association's proposed changes to law school accreditation standards, especially related to student assessment and outcome measurement, law schools are responding by developing and incorporating assessment standards. Likely related to these proposed changes, there has been an undeniable recent trend in law school assessment scholarship, which is one way to measure law schools' reactions to the call for change. This article contributes to that trend by offering an introduction to a methodology of assessing legal writing - through the use of detailed grading guidelines called rubrics. Our experience over the past several years of using rubrics …

Forward Contracts Preference Exception Broadly Construed, Brian King

Bankruptcy Research Library

(Excerpt)

Derivative transactions and financial contracts are a critical component of the United States economy. There are three main types of derivative contracts executed in our markets: futures, options and forward contracts. Each of these instruments derives value from an underlying security or resource with focus on a possible change in its future value. These instruments can be used as speculative investments, as hedges on securities already owned, or as a means of mitigating risk on volatility within a specific industry. An essential attribute of trading in these derivatives is “the ability of the parties to value their transaction on …

Bankruptcy Courts’ Power To Recharacterize Debt Claims As Equity, David Saponara

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code enables bankruptcy courts to take certain measures to facilitate the claims process and priority system. For example, section 502(b)(1) enables bankruptcy courts, upon objection, to disallow creditors’ claims based on applicable law or an agreement between the creditor and the debtor, and section 510(c) enables bankruptcy courts to equitably subordinate claims of creditors that engaged in inequitable conduct such that subordination would be appropriate to remedy any injury suffered by another creditor. Whether bankruptcy courts may recharacterize debt claims as equity, however, is not explicitly addressed in the Bankruptcy Code. Because of this, recharacterization analysis has …

Who Captures The Rents From Unionization? Insights From Multiemployer Pension Plans, D. Bruce Johnsen

American University Business Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Mark Cohen: Global Intellectual Property Ambassador, Whitney Stenger

SMU Science and Technology Law Review

No abstract provided.

Paying For Privacy: An Unjust Facade, Scott M. Ruggiero

SMU Science and Technology Law Review

No abstract provided.

Keynote Speech, Ted Price

SMU Science and Technology Law Review

No abstract provided.

Killing The Internet To Keep America Alive: The Myths And Realities Of The Internet Kill Switch, Scott M. Ruggiero

SMU Science and Technology Law Review

No abstract provided.

A Review Of 2011 Video-Game Litigation And Selected Cases, Kent Jordan, Robert Wilkinson

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

What's Mine Is Mine But What's Yours Is Ours: Ip Imperialism, The Right Of Publicity, And Intellectual Property Social Justice In The Digital Information Age, Lateef Mtima

SMU Science and Technology Law Review

No abstract provided.