Law Commons^™

Deferentialism: A Post–Originalist Theory Of Legal Interpretation, Scott Soames

Fordham Law Review

No abstract provided.

Originalism, Vintage Or Nouveau: “He Said, She Said” Law, Tara Smith

Fordham Law Review

No abstract provided.

Meaning And Understanding In The History Of Constitutional Ideas: The Intellectual History Alternative To Originalism, Saul Cornell

Fordham Law Review

No abstract provided.

Accepting Contested Meanings, Bernadette Meyler

Fordham Law Review

No abstract provided.

The Observer Effect: National Security Litigation, Executive Policy Changes, And Judicial Deference, Ashley S. Deeks

Fordham Law Review

    The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong.

    This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play …

In Bonds We Trustee: A New Contractual Mechanism To Improve Sovereign Bond Restructurings, Robert Auray

Fordham Law Review

    Governments around the world raise significant amounts of capital by issuing sovereign bonds in international financial markets. These bonds are typically purchased and traded by foreign investors who seek a profitable return on their investment. The issuing country incurs sovereign debt, which it must repay over a predetermined period of time. Occasionally, sovereigns—typically emerging market governments—become unable or unwilling to repay their sovereign debt.

    A country’s ability to repay its debt is difficult to assess given the multitude of nonfinancial factors that affect the assessment. As a result, investors are vulnerable to opportunistic defaults which can deprive them of their …

Chevron’S Flexible Agency Expertise Model: Applying The Chevron Doctrine To The Bia’S Interpretation Of The Ina’S Criminal Law–Based Aggravated Felony Provision, Michael Dorfman-Gonzalez

Fordham Law Review

    For nearly thirty years, courts have looked to the U.S. Supreme Court’s ruling in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. when reviewing a challenge to an agency’s interpretation of statutory language and determining whether deference is appropriate. Despite Chevron’s longstanding role as one of administrative law’s most important legal doctrines, no specification exists as to whether judicial deference is required when an agency interprets language outside the scope of its expertise. As a result, the Second and Third Circuits have split on the issue of whether the Bureau of Immigration Appeals’ (BIA) interpretation of the term …

Waiving Fiduciary Duties In Delaware Limited Partnerships And Limited Liability Companies, Winnifred A. Lewis

Fordham Law Review

    In corporations, like most other business associations, fiduciary duties exist to deter management from abusing their power over the owners’ property. In Delaware limited partnerships and limited liability companies, this protection can be waived in the operating agreement. This Note explores the effects of retaining or waiving fiduciary duties and how this plays out in the interpretation of operating agreements. It argues that default fiduciary duties exist for limited liability companies and limited partnerships, including those that are member managed, and it proposes a combination of disclosure and signature requirements from each limited partner or member in order for waiver …

Can Condoms Be Compelling? Examining The State Interest In Confiscating Condoms From Suspected Sex Workers, Meghan Newcomer

Fordham Law Review

    Confiscating condoms from suspected sex workers leaves them at risk for HIV/AIDS, other sexually transmitted diseases, and unwanted pregnancy. Yet, police officers in New York, Washington, D.C., and Los Angeles collect condoms from sex workers to use against them as evidence of prostitution. Sometimes, the condoms are taken solely for the purpose of harassment. These actions put sex workers at risk of contracting sexually transmitted diseases because they may continue to engage in sex work without using protection.

    In the landmark case of Griswold v. Connecticut, the U.S. Supreme Court established a fundamental privacy right in the use and …

Plain Packaging And The Trips Agreement: A Response To Professors Davison, Mitchell And Voon, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The issue of plain packaging is at the very core of the intersection between trade law, intellectual property and public health. Unlike the issue of export of generic pharmaceuticals, which was addressed in the World Trade Organization by the adoption of a specific Declaration and notification system, it seems that plain packaging will be addressed by the WTO Dispute-Settlement Body. A report prepared by the author in 2010 discussing the intellectual property aspects of plain packaging was critiqued by Professors Davison, Mitchell and Voon in several publications and submissions, including a recent book. In this article, the author responds to …

Plain Packaging And The Interpretation Of The Trips Agreement, Daniel J. Gervais, Susy Frankel

Vanderbilt Law School Faculty Publications

Plain packaging of cigarettes as a way of reducing tobacco consumption and its related health costs and effects raises a number of international trade law issues. The plain packaging measures adopted in Australia impose strict format requirements on word trademarks (such as Marlboro or Camel) and ban the use of figurative marks (colors, logos, etc.). As a result, questions have been raised as to plain packaging’s compatibility with the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).
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/="/">WTO members can validly take measures to protect and promote public health, but in doing …

What Should We Do About Multijurisdictional Litigation In M&A Deals?, Randall Thomas

Vanderbilt Law School Faculty Publications

Many M&A transactions attract shareholder litigation challenging the fairness of the economic terms of the deal for the target shareholders. Since the end of the financial crisis, however, there has been a documented increase in the number of jurisdictions in which each individual transaction is attacked. Why has this upsurge in multi-jurisdictional litigation occurred? How significant are its real costs and benefits? And what should we do about it, if anything? This Article first summarizes what we know about these questions and then offers its own viewpoint on how best to respond to multi-jurisdictional litigation. On the one side, the …

Private Environmental Governance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Environmental law has quietly transformed from a positive law field deeply rooted in administrative law to one that is also heavily rooted in private law and private governance. After two decades (1970-1990) of remarkable activity, more than two decades have now passed without a major federal environmental statute (1991-2012). Whether the appropriate next step is expansion or contraction, reforms to the federal statutory framework have stalled. Federal regulatory activity and state and local measures have filled some of the gap, but private governance efforts – the pursuit of public ends through private standards, monitoring, enforcement, and dispute resolution – now …

Ehearsay, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

A new kind of evidence is making its way to America's courts. Social media posts and text messages are surfacing in trials across the country, and the cases so far represent just the tip of the technological iceberg.' The potential enormity of the emerging evidentiary phenomenon is apparent in the changing habits of our own lives. Many of us, particularly those under thirty, constantly transmit observations and impressions through text messages and social media sites, no matter where we are and what we are (supposed to be) doing.' As "smartphone" ownership expands and younger adults-who al- ready average over 100 …

Tinker-Ing With Speech Categories: Solving The Off-Campus Student Speech Problem With A Categorical Approach And A Comprehensive Framework, Scott Dranoff

William & Mary Law Review

No abstract provided.

Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum

William & Mary Law Review

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of …

Precedent Or Problem?: Alameda County's Diversion Problem Policy For Youth Charged With Prostitution And The Case For A Policy Of Immunity, Janet C. Sully

William & Mary Law Review

No abstract provided.

The Fraud-On-The-Market Tort, John C.P. Goldberg, Benjamin C. Zipursky

Vanderbilt Law Review

It is commonplace to observe that there are differences between private 10b-5 actions and common-law actions for deceit, notwithstanding that both travel under the name of "fraud."' It is equally commonplace to suppose that these differences primarily reflect the need to adapt law that was first developed in a world of face-to-face transactions to the modern reality of large-scale, impersonal markets. The poster children for the transition from common-law fraud to securities fraud are, first, the Supreme Court's adoption in Basic, Inc. v. Levinson of the fraud-on-the-market doctrine and, second, the related emergence of securities fraud class actions. Amidst this …

How Much Is That Lawsuit In The Window? Pricing Legal Claims, Maya Steinitz

Vanderbilt Law Review

Assessing the value of legal claims is the sixty-four thousand dollar question (no pun intended) of civil litigation. Clients, as every litigator knows, often come into their attorneys' offices with a belief that they know how much their claim is worth. The attorney is then asked to validate that number. Alternately, clients can come to their attorneys with a grievance-I have been injured, a counter-party breached its contract with me, I have been fired, our rainforest has been devastated by a mining company-and ask the attorney for an assessment of how much their grievance might be worth. Contingency lawyers, who …

Table Of Contents

Seattle Journal for Social Justice

No abstract provided.

Introduction, Jacqueline Mcmurtrie

Seattle Journal for Social Justice

No abstract provided.

Gideon At Fifty -- Golden Anniversary Or Mid Life Crisis, Kim Taylor-Thompson

Seattle Journal for Social Justice

No abstract provided.

Fifty Years After Gideon: It Is Long Past Time To Provide Lawyers For Misdemeanor Defendants Who Cannot Afford To Hire Their Own, Robert C. Boruchowitz

Seattle Journal for Social Justice

No abstract provided.

Gideon: Looking Backward, Looking Forward, Looking In The Mirror, Steven Zeidman

Seattle Journal for Social Justice

No abstract provided.

Legal Financial Obligations: Fulfilling The Promise Of Gideon By Reducing The Burden, Travis Stearns

Seattle Journal for Social Justice

No abstract provided.

Does The Right To Counsel On Appeal End As You Exit The Court Of Appeals?, Nancy P. Collins

Seattle Journal for Social Justice

No abstract provided.

Improving Access To Justice: Plain Language Family Law Court Forms In Washington State, Charles R. Dyer, Joan E. Fairbanks, M. Lynn Greiner, Kirsten Barron, Janet L. Skreen, Josefina Cerrillo-Ramirez, Andrew Lee, Bill Hinsee

Seattle Journal for Social Justice

No abstract provided.

Congress' Encroachment On The President's Power In Indian Law And Its Effect On Executive-Order Reservations, Mark R. Carter Jd, Phd

Seattle Journal for Social Justice

No abstract provided.

The Overwhelming Case For Clean Air Act Reform, Bill Pedersen, David Schoenbrod

Other Publications

Congress could add half year to the life of the average american by eliminating two false assumptions built into the foundation of the CleanAir Act: (1) All pollutants have a safe level (2) pollution is local.

Semantic Searches, Athul K. Acharya

Duke Law Journal

Courts and commentators have struggled with the problem of cabining digital searches while still allowing law enforcement sufficient latitude to be efficient and effective. This Note examines current proposals, such as requiring search protocols or abandoning the plain view doctrine, before proposing a solution of its own: revisiting the constitutional requirement of particularity in the warrant. Focusing on particularity is not new; the problem is describing, ex ante, where to search within a corpus of seized data. The language of files and folders is both inadequate and incoherent for this task, but in rejecting it, courts have largely given up …