Law Commons^™

Vol. 47, No. 09 (November 3, 2014)

Indiana Law Annotated

No abstract provided.

Crowdfunding And Its Impact On Indie Film, Andrew Eisbrouch

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

Crowdfunding has become a popular new way for filmmakers as well as entrepreneurs, small businesses, and philanthropists to raise capital by obtaining small contributions from a large number of individuals over the Internet. Websites such as Kickstarter, IndieGoGo, RocketHub, and WeFunder have provided a portal for films like Wish You Were Here, Veronica Mars, and Sharknado 2 to obtain needed financing. A recent legislation has the potential to change this crowdfunding and indie film landscape. On April 5th, 2012, President Obama signed into law the Jumpstart Our Business Startups Act (“JOBS Act”), which legalizes equity crowdfunding over the Internet.

This …

November 2, 2014: Today’S Papers, Bruce Ledewitz

Hallowed Secularism

Blog post, “Today’s Papers“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Yates V. United States: A Case Study In Overcriminalization, Stephen F. Smith

Journal Articles

In Yates v. United States, the Supreme Court will decide whether tossing undersized fish overboard can be prosecuted under the Sarbanes–Oxley Act of 2002, a law aimed at preventing massive frauds of the sort that led to the collapse of Enron and sent shock waves throughout the economy. Although the legal issue is narrow, the case has far-reaching significance. The Yates prosecution is a case study in the dangers posed by “overcriminalization”: the existence of multitudinous, often overlapping criminal laws that are so poorly defined that they sweep within their ambit conduct far afield from their intended target.

The …

Privatizing Mass Settlement, Jaime Dodge

Notre Dame Law Review

From BP’s oil spill in the Gulf of Mexico to the National Football League’s (NFL) inability to honor Super Bowl tickets, corporate defendants are contravening the established litigation wisdom and offering full compensation to victims—without haggling to pay pennies on the dollar, without stall tactics and frivolous motions; indeed, without any litigation at all. These offers have often been dismissed as rare one-off exceptions to the rule.

This Article challenges that claim, suggesting that these private mass settlements are instead relatively common features in our aggregate litigation system. The Article explores the reasons that, contrary to traditional wisdom, defendants would …

Flourishing Rights, Wendy A. Bach

Scholarly Works

Flourishing Rights reviews Clare Huntington’s Failure to Flourish: How Law Undermines Family Relationships, recently published by the Oxford University Press. This review explores the way that specific issues at the heart of the relationship between poor families and the state affects Huntington’s thesis and proposals. The review largely applauds the book but concludes that a robust form of rights protection, when combined with the impressive policy arguments Huntington marshals, might actually make real the audacious idea that everyone has a right to flourish.

Torch (November 2014), Brandon Baldwin, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

Symposium: The Role Of Federal Law In Private Wealth Transfer, Jeffrey Schoenblum

Vanderbilt Law Review

Property and inheritance are "quintessential state matters."' In fact, there is no federal intestacy law. There is no federal wills law. There is no federal trust law. And yet.... Increasingly, federal law impacts court decisions involving private wealth transfer. Increasingly, federal law is the central consideration in premortem and postmortem planning for private wealth transfer. Despite this, until recently, little scholarly attention has been paid to this phenomenon; the assumption regarding the centrality of state law, quoted above, having gone largely unquestioned. But now that the "sleeping giant" has awakened, the role that federal law plays in private wealth transfer …

Market Power Without Market Definition, Daniel A. Crane

Notre Dame Law Review

Antitrust law has traditionally required proof of market power in most cases and has analyzed market power through a market definition/market share lens. In recent years, this indirect or structural approach to proving market power has come under attack as misguided in practice and intellectually incoherent. If market definition collapses in the courts and antitrust agencies, as it seems poised to do, this will rupture antitrust analysis and create urgent pressures for an alternative approach to proving market power through direct evidence. None of the leading theoretic approaches—such as the Lerner Index or a search for supracompetitive profits—provides a robust …

Procedural Rights At Sentencing, Carissa Byrne Hessick, F. Andrew Hessick

Notre Dame Law Review

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems—systems that limit sentencing factors and specify particular punishments based on particular facts—defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentenced based on ex post facto laws. By contrast, for discretionary systems—systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion—defendants do not enjoy …

A House Divided: When State And Lower Federal Courts Disagree On Federal Constitutional Rights, Wayne A. Logan

Notre Dame Law Review

This Article provides the first in-depth examination of state-federal concurrent constitutional authority and does so by focusing on a context in which its consequences are most problematic: within individual states. While a handful of articles over the years have examined state court power vis-a-vis federal constitutional questions more generally, no systematic effort has been undertaken to examine intrastate, state-federal conflict on federal constitutional questions. This Article redresses this deficit, using as its doctrinal locus federal constitutional criminal procedure, with its unique impact on government power and individual liberty and privacy.

Labor In Faith: A Comparative Analysis Of Hosanna-Tabor V. Eeoc Through The European Court Of Human Rights' Religious Employer Jurisprudence, Francesca M. Genova

Notre Dame Law Review

This Note uses the European Court of Human Rights’ framework to analyze the Supreme Court’s decision in Hosanna-Tabor v. Equal Employment Opportunity Commission, which recognizes a “ministerial exception” for religious organizations as a defense to certain employment claims. It argues that the unanimous Supreme Court in Hosanna-Tabor examines factors similar to those of its European counterpart, but protects religious liberties more robustly by avoiding some of the European Court’s preoccupations. Yet, the European Court’s assessment anticipates the difficulties of applying the “ministerial exception” in future cases.

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

Brigham Young University Journal of Public Law

No abstract provided.

War Over Words: Reinterpreting "Hostilities" And The War Powers Resolution, Eileen Burgin

Brigham Young University Journal of Public Law

No abstract provided.

Justice As A Luxury? The Inefficacy Of Middle Class Pro Se Litigation And Exploring Unbundling As A Partial Solution, Deborah Beth Medows

Brigham Young University Journal of Public Law

No abstract provided.

Federalizing Principles Of Donative Intent And Unanticipated Circumstances, Reid K. Weisbord

Vanderbilt Law Review

This Comment identifies a central tenet of wealth transfer law that should guide federal actors when operating in this area: Wealth transfer law facilitates donative intent by responding to circumstances unanticipated by the donor. Wealth transfer law performs this intent- fulfilling function by supplying opt-outs, presumptions, and default rules to solve problems created by the donor's inability to predict or respond to future events. To illustrate that principle, this Comment will focus on one such rule, disclaimer rights, which refer to a donee's refusal to accept a donative transfer. In "Disclaimers and Federalism," Professor Adam J. Hirsch identifies several settings …

In Search Of The Probate Exception, James E. Pfander, Michael J.T. Downey

Vanderbilt Law Review

As a limit on the power of Article III courts, the probate exception has surely earned its place in the old curiosity shop of federal jurisdictional law. Dating from the early nineteenth century, the exception has been said to derive from various sources, including the lack of federal jurisdiction over ecclesiastical matters, the "law" and "equity" limits of Article III, and the structure of our federal government. The Supreme Court's 2006 decision in Marshall v. Marshall sought to clarify matters, but lower courts continue to debate the breadth of the exception. In this Article, we go in search of the …

Investment Arbitration Under The Spotlight - What Next For Asia, Fali Nariman

2010 Herbert Smith Freehills-SMU Arbitration Lecture Series

This lecture will provide an analysis of recent developments in investment arbitration in Asia with a particular focus on the role played by bilateral and multilateral agreements in the region. A number of countries, particularly in South-East Asia and South Asia have engaged in investment arbitration in the last couple of years. Indonesia has reportedly signaled its intention to terminate its bilateral investment treaties, following the example of several Latin American countries in recent years. Will India also act on its stated intention to whittle down arbitration protections afforded to investors under Bilateral Investment Treaties? Will other states in the …

The Unexonerated: Factually Innocent Defendants Who Plead Guilty, John H. Blume, Rebecca K. Helm

Cornell Law Review

No abstract provided.

Faculty Research Interest Database, David Owerbach

Office of Research Institutional Research and Scholarship

No abstract provided.

The Governance Structure Of Shadow Banking: Rethinking Assumptions About Limited Liability, Steven L. Schwarcz

Notre Dame Law Review

In an earlier article, I argued that shadow banking—the provision of financial services and products outside of the traditional banking system, and thus without the need for bank intermediation between capital markets and the users of funds—is so radically transforming finance that regulatory scholars need to rethink their basic assumptions. This Article attempts to rethink the corporate governance assumption that owners of firms should always have their liability limited to the capital they have invested. In the relatively small and decentralized firms that dominate shadow banking, equity investors tend to be active managers. Limited liability gives these investor-managers strong incentives …

We The People: Juries, Not Judges, Should Be The Gatekeepers Of Expert Evidence, Krista M. Pikus

Notre Dame Law Review

This Note urges restoration of the proper balance of power between judges and juries regarding expert evidence. Our justice system has steadily moved away from letting juries decide important questions of fact and toward putting the decisionmaking power into the hands of judges. The recent developments in evidence law, requiring judges to act as the “gatekeepers” of expert evidence, present significant obstacles for plaintiffs attempting to get cases to a jury. This newer standard in expert evidence is a violation of the foundational precept in American jurisprudence that the people should be the sovereign, not the judge.

7 Tips For An Efficient Faculty Bibliography: How To Tackle Faculty Bibliography Challenges With (Relative) Ease, Marcia L. Dority Baker, Stefanie S. Pearlman

Marvin and Virginia Schmid Law Library: Faculty Publications

There are many reasons to compile a faculty bibliography: recording faculty accomplishments, preserving information for future generations, and supporting your institution’s external affairs office, to name a few. Also, it is a potential publication for librarians at a tenure-granting institution. So, why did we decide to create a faculty bibliography? It was a combination of past inquiries from our patrons and the need to publish. Prior to this bibliography, no such compilation of our faculty’s work existed. Although our library hosts a display of current faculty scholarship at the start of each fall semester to promote recent faculty publications, we …

The Equitable Anti-Injunction Act, Erin Morrow Hawley

Notre Dame Law Review

The Anti-Injunction Act of 1867 (AIA or the Act) has never been more important. Originally enacted to expedite the collection of revenue-raising taxes, courts and scholars have for years assumed that the statute imposes a jurisdictional bar on any pre-enforcement challenge to a tax. On this interpretation, taxpayers subject to an invalid tax have two choices only: comply or pay the tax and pursue a refund. Read this way, the Act is a marked departure from the general rule that pre-enforcement challenges are permissible so long as justiciability requirements are met. And it imposes a marked burden on aggrieved taxpayers …

Mirrored Externalities, Lisa Grow Sun, Brigham Daniels

Notre Dame Law Review

A fundamental but underappreciated truth is that positive and negative externalities are actually mirror reflections of each other. What we call “mirrored externalities” exist because any action with externalities associated with it can be described as a choice to do or to refrain from doing that particular action. For example, if a person smokes and thereby creates a negative externality of more secondhand smoke, then her choice not to smoke creates a positive externality of less secondhand smoke. Conversely, if a person’s choice to get an immunization confers a positive externality of reducing vectors for disease transmission, then a choice …

‘Coin’Ing The Tax ‘Bit’, Asmita Bedekar

The Contemporary Tax Journal

No abstract provided.

Why Section 530 Of The Revenue Act Of 1978 Applies To The States, David Randall Jenkins

The Contemporary Tax Journal

No abstract provided.

An Examination Of The Tax Incentive For Child Support, Gary M. Fleischman, Paul Hutchison, Zafar Dad Khan

The Contemporary Tax Journal

No abstract provided.

Disclaimers And Federalism, Adam J. Hirsch

Vanderbilt Law Review

The beneficiary of an inheritance has the right to disclaim (i.e., decline) it, within limits ordinarily set by state law. This Article examines situations where a beneficiary's right to disclaim might instead be governed by federal law, as a matter of both existing doctrine and public policy. Issues of federalism arise with regard to disclaimers in several contexts: (1) when a disclaimer would function to defeat a federal tax lien; (2) when a disclaimer could affect a beneficiary's eligibility for Medicaid assistance; (3) when a beneficiary disclaims ERISA pension benefits; and (4) when a beneficiary executes a disclaimer prior to …

Is Federalization Of Charity Law All Bad? What States Can Learn From The Internal Revenue Code, Melanie B. Leslie

Vanderbilt Law Review

Professor Ascher makes a compelling case that federal law, and especially the Internal Revenue Code (the "Code"), has eclipsed state law as the predominate regulating force of the charitable sector. Professor Ascher views this trend with trepidation-he criticizes the Code for imposing a "frightening and bewildering array of often draconian penalties" and for its failure to track preexisting state-law concepts.

I agree that the combination of state and federal law creates an impenetrable maze that charitable fiduciaries find overly difficult to negotiate. Yet I am reluctant to finger the Code as the primary culprit. In my view, state law deserves …