Law Commons^™

Reasonable Consideration Of Non-Shareholders: Redrafting State Constituency Statutes To Encourage Socially-Minded Business Decisions, Maxwell Silver-Thompson

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Structural Wall Of Separation And The Erroneous Claim Of Anti-Catholic Discrimination, Robert D. Goldstein

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Prosecuting A Festival: Holding Electric Dance Music Festivals Liable For Drug-Related Deaths Occurring Therein, Rebecca Lomazow

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Foul Play: Tennessee's Unequal Application Of Its Jock Tax Against Professional Athletes, Kirk Berger

Cardozo Public Law, Policy & Ethics Journal

The Framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus escape political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be …

Depressing Diagnosis: Stringent Particularity Requirement Of The Rule 9(B) Pleading Standard As A Critical Bar To Off-Label Promotion Fraud Whistleblowers, Emily T. Chen

Cardozo Law Review

No abstract provided.

The Limits Of Private Ordering Within Modern Financial Markets, Dan Awrey

Cornell Law Faculty Publications

From standardized contracts for loans, repurchase agreements, and derivatives, to stock exchanges and alternative trading platforms, to benchmark interest and foreign exchange rates, private market structures play a number of important roles within modern financial markets. These market structures hold out a number of significant benefits. Specifically, by harnessing the powerful incentives of market participants, these market structures can help lower information, agency, coordination, and other transaction costs, enhance the process of price discovery, and promote greater market liquidity. Simultaneously, however, successful market structures are the source of significant and often overlooked market distortions. These distortions--or limits of private ordering--stem …

The Real Constitutional Problem With State Judicial Selection: Due Process, Judicial Retention, And The Dangers Of Popular Constitutionalism, Martin H. Redish, Jennifer Aronoff

William & Mary Law Review

In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude—that is, the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s focus on retrospective gratitude is …

Tortured Prosecuting: Closing The Gap In Virginia's Criminal Code By Adding A Torture Statute, Christopher G. Browne

William & Mary Law Review

No abstract provided.

Auctioning Class Settlements, Jay Tidmarsh

William & Mary Law Review

Although class actions promise better deterrence at a lower cost, they are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class—the class representative and class counsel—advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class action reform proposals.

This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea is …

Breastfeeding On A Nickel And A Dime: Why The Affordable Care Act's Nursing Mothers Amendment Won't Help Low-Wage Workers, Nancy Ehrenreich, Jamie Siebrese

Michigan Journal of Race and Law

As part of the Patient Protection and Affordable Care Act of 2010 (also known as “Obamacare”), Congress passed a new law requiring employers to provide accommodation to working mothers who want to express breast milk while at work. This accommodation requirement is a step forward from the preceding legal regime, under which federal courts consistently found that “lactation discrimination” did not constitute sex discrimination. But this Article predicts that the new law will nevertheless fall short of guaranteeing all women the ability to work while breastfeeding. The generality of the Act’s brief provisions, along with the broad discretion it assigns …

How Critical Race Theory Marginalizes The African American Christian Tradition, Brandon Paradise

Michigan Journal of Race and Law

This Article offers the first comprehensive account of the marginalization of the African American Christian tradition in the movement of race and law scholarship known as critical race theory. While committed to grounding itself in the perspectives of communities of color, critical race theory has virtually ignored the significance of the fact that the civil rights movement came out of the Black church and that today more than eighty percent of African Americans self-identify as Christian. In practical terms, critical race theory’s neglect of the Christian tradition has meant that arguments developed in race and law scholarship are sometimes incompatible …

Ross Et Al. V. American Express Et Al.: The Story Behind The Spread Of Class Action-Barring Arbitration Clauses In Credit Card Agreements, Nancy A. Welsh, Stephen J. Ware

Faculty Scholarship

Article Extract:

A recent case from the Southern District of New York, Ross et al v. American Express et al, is an antitrust case, but it also is an important case for arbitration. Ross consolidated several class actions in which plaintiffs alleged that major credit card issuing banks, including American Express (Amex), First USA, Bank of America, Citibank, Chase, Discover, and others “violated the Sherman Act by agreeing with their competitors to implement and maintain mandatory class action-barring arbitration clauses as a term or condition for holding their general purpose credit cards.

The Board Of Immigration Appeals' Continuous Search For The Definition Of "Membership In A Particular Social Group" In Matter Of M-E-V-G- And Matter Of W-G-R-: In The Context Of Youth Resistant To Gang Recruitment In Central America, Ivan A. Tereschenko

Connecticut Journal of International Law

In a recent phenomenon, Central American youth have become the targets of forced recruitment by very powerful and well-entrenched gangs. The youth who refuse to join are often subject to vicious acts of retaliatory violence. Recently, the Board of Immigration Appeals (BIA) has attempted to clarify its social visibility and particularity requirements for asylum in Matter of M-E- V-G- and Matter of WG-R, in effect, by renaming its social visibility element as social distinction and explaining that social group recognition for asylum purposes is determined by the perception of the society in question, rather than the perception of the persecutor. …

Unasur: The Newest "Global Player" Or Neo-Boliverian Fantasy, Sara Ross

Connecticut Journal of International Law

The Union of South American Nations (Unasur) presents the most recent vision for trade liberalization and political, economic, and social integration amongst South American countries. Unasur has set 2019 as the year by which it hopes to accomplish many of its goals, such as full regional integration and tariff elimination. But, as 2019 slowly approaches, it remains to be seen whether Unasur will in fact be able to reach these goals. While Unasur's future is certainly compelling, before heralding Unasur as the long-awaited panacea for pure regional integration, important lessons can be drawn from previous attempts at and iterations of …

Bringing Down An Uprising: Egypt's Stillborn Revolution, Sahar F. Aziz

Connecticut Journal of International Law

Despite warnings that bleak socio-economic conditions were pushing Egyptians to the brink, few could have predicted the timing and extent of what has come to be known as the "January 25 h revolution. " For the two years that followed this unprecedented revolutionary moment, many Egyptians believed their nation was headed toward a political rebirth in the direction of democratization - albeit in fits and starts. What ultimately transpired was far from a revolution, but rather an uprising. Those who risked life and limb in multiple mass protests are now in jail or dead while the military-security apparatus sits firmly …

Guatemala On Trial Rios Montt Genocide Trial: An Observer's Perspective, Sasha Maldonado Jordison

Connecticut Journal of International Law

Guatemala was under the microscope. The charges were genocide and crimes against humanity. The events took place between March 23, 1982 and August 8, 1983, the death toll was in the thousands and other victims in the hundreds of thousands. The country had made its way into history. This was the first time that a former head of state was put on trial for genocide before a national tribunal. This Note provides a historical account of the country as well as a brief overview of the conflict that gave rise to the charges of genocide and crimes against humanity. More …

The Social Cost Of Inertia: How Cost-Benefit Incoherence Threatens To Derail U.S. Climate Action, Melissa J. Luttrell

Duke Environmental Law & Policy Forum

As EPA rolls out controversial regulations on power plant emissions of greenhouse gases, a vocal group of legislators, industry groups, and legal and economic scholars are crying foul, arguing EPA didn't "follow the rules" when it conducted its cost-benefit analyses of these regulations.

This article traces the origin of these cost-benefit rules, finding that the methodological handbook alleged to be the "worldwide gold standard" was actually developed through a fundamentally flawed process, one that intentionally excluded majority viewpoints in several relevant academic disciplines. Unsurprisingly, it also contains serious methodological mistakes. If these mistakes were to be applied to regulations addressing …

Speaking Truth To Power Company Regulators: The Consequences Of Modern Regulatory Incentives And Administrative Expediency , Matthew Haber, Victoria Méndez

Duke Environmental Law & Policy Forum

No abstract provided.

Demanding Supply: Re-Envisioning The Landlord-Tenant Relationship For Optimized Perennial Energy Crop Production, Elise C. Scott, A. Bryan Endres

Duke Environmental Law & Policy Forum

As the bioenergy industry in the U.S. expands to meet increased demands for transportation fuel under the Renewable Fuel Standard and electrical power under state Renewable Portfolio Standards and the proposed Clean Power Plan, producers of biomass will seek the ability to grow dedicated, high-yielding energy crops of a perennial nature on leased property. Given the large amount of leased farmland in the U.S., the contributions of tenant-farmers will represent a significant, though currently not well understood, segment of the biomass supply chain. Through the use of contracts as governance schemes, landowners and tenants can navigate three key challenges of …

The Most Important Current Research Questions In Urban Ecosystem Services, James Salzman, Craig Anthony (Tony) Arnold, Robert Garcia, Keith Hirokawa, Kay Jowers, Jeffrey Lejava, Margaret Peloso, Lydia Olander

Duke Environmental Law & Policy Forum

No abstract provided.

Water, Wind, And Fire: A Call For A Federal Renewable Portfolio Standard, Francesca F. Bochner

Duke Environmental Law & Policy Forum

No abstract provided.

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

Utility Air Regulatory Group V. Epa: A Shot Across The Bow Of The Administrative State, Amanda C. Leiter

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Prudential Standing After Lexmark International, Inc. V. Static Control Components, Inc., Ernest A. Young

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Marriage Outlaws: Regulating Polygamy In America, Casey E. Faucon

Duke Journal of Gender Law & Policy

No abstract provided.

Journal Staff

Duke Journal of Gender Law & Policy

No abstract provided.

Psychological Jurisprudence And The Power Of Law: A Critique Of North Carolina’S Woman’S Right To Know Act, Bruce A. Arrigo, Jessica L. Waldman

Duke Journal of Gender Law & Policy

No abstract provided.

Documenting Mass Rape: Medical Evidence Collection Techniques As Humanitarian Technology, Jaimie Morse

Genocide Studies and Prevention: An International Journal

Aim: Emerging global networks of human rights activists, doctors, and nurses have advocated for increased collection of medical evidence in conflict-affected countries to corroborate allegations of sexual violence and facilitate prosecution in international and domestic courts. Such initiatives are part of broader shifts in human rights advocacy to document human rights violations using rigorous, standardized methodologies. In this paper, I consider three principal forms of medical evidence to document sexual violence and their use in these settings: the patient medical record, the medical certificate, and the sexual assault medical forensic exam (commonly known as the “rape kit”).

Methods: Combining archival …

Hydraulic Fracturing: If Fractures Cross Property Lines Is There An Actionable Subsurface Trespass?, Keith B. Hall

Journal Articles

The law recognizes trespass liability for subsurface intrusions, at least in some circumstances. Further, courts sometimes have stated that ownership of land extends to the earth's center. But such statements are dicta. Few courts have carefully considered the maximum extent of subsurface ownership or subsurface trespass liability. Courts in two jurisdictions have recently addressed whether a person incurs liability when he causes hydraulic fracturing fluid to intrude into the subsurface of a neighbor's land, but the courts reached opposite conclusions, with each suggesting that public policy supported its position. Neither adequately examined the legal issues. Careful consideration of trespass concepts …

A False Sense Of Security: Due Process Failures In Removal Proceedings, Darlene Goring

Journal Articles

The article explores the reasons for the failure of due process rights afforded by aliens facing criminal prosecution for unauthorized return to the U.S. after prior removal proceedings. Topics discussed include Federal enforcement of the Immigration and Nationality Act, laws governing criminal prosecution and incarceration for previously removed aliens, and disclosure of the availability of judicial review to aliens facing removal from the U.S.