Law Commons^™

Creating A Stakeholder Democracy Under Existing Corporate Law, Justin Blount

Faculty Publications

Much of the current debate in corporate governance is framed in terms of stakeholder versus shareholder forms of corporate governance. While one would find little debate that stakeholders’ interests are important to any business, there is substantial debate regarding whether any stakeholder besides shareholders should have a formal role in corporate governance. What has been largely ignored in this debate is the issue of private ordering: since corporate law is largely enabling rather than mandatory, can stakeholder governance structures be voluntarily created within the current shareholder-centric default corporate law structure? This article argues that this is clearly the case, sets …

Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Equity Crowdfunding: A Market For Lemons?, Darian M. Ibrahim

Faculty Publications

No abstract provided.

Google Glass While Driving, Adam M. Gershowitz

Faculty Publications

Is it legal to use Google Glass while driving? Most states ban texting while driving and a large number also forbid drivers from being able to see television and video screens. But do these statutes apply to Google Glass? Google advises users to check their states’ law and to “[r]ead up and follow the law!” Yet, laws designed for a tangible world are very difficult to apply to virtual screens projected by futuristic wearable technology. In short order, however, police and prosecutors across the country will be called upon to apply outdated distracted driving laws to Google Glass.

This article …

The Lost History Of The Political Question Doctrine, Tara Leigh Grove

Faculty Publications

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …

The Crime Of Conspiracy Thrives In Decisions Of The United States Supreme Court, Paul Marcus

Faculty Publications

No abstract provided.

Dispatches From Two Fronts Of The Battle For Sentencing Reform: Parole And Federal Sentencing Legislation, Frank O. Bowman Iii

Faculty Publications

This Issue of FSR reports on two fronts in the ongoing national battle for sentencing reform. The first half of the Issue is devoted to evolving views and new initiatives on parole. The second half of the Issue is a report on the content and prospects for success of a number of bills pending in Congress that would reform federal criminal sentencing, corrections, and back-end release practices.

Good Enough To Be Getting On With? The State Of Federal Sentencing Legislation, December 2015, Frank O. Bowman Iii

Faculty Publications

This article traces the evolution of the sentencing reform debate in Congress in 2015. It summarizes and compares the six major pieces of sentencing legislation introduced in 2015. It describes the progression from con­ceptually simple, broadly applicable reforms of mandatory minimum sentences to the regime of complex and highly restrictive rules relaxing mandatory minimum sentences for a modest subset of federal defendants found in the bills that passed the Senate and House Judiciary Committees. The article summarizes some of the concerns voiced about he sentencing provisions of the various bills. Finally, it discusses the three pending bills relating to back-end …

Recognizing The Limits Of Antitrust: The Roberts Court Versus The Enforcement Agencies, Thom Lambert, Alden F. Abbott

Faculty Publications

In his seminal 1984 article, The Limits of Antitrust, Judge Frank Easterbrook proposed that courts and enforcers adopt a simple set of screening rules for application in antitrust cases, in order to minimize error and decision costs and thereby maximize antitrust's social value. Over time, federal courts in general, and the U.S. Supreme Court in particular, under Chief Justice Roberts have in substantial part adopted Easterbrook's "limits of antitrust" approach, thereby helping to reduce costly antitrust uncertainty. Recently, however, antitrust enforcers in the Obama Administration (unlike their predecessors in the Reagan, Bush, and Clinton Administrations) have been less attuned to …

Patent Assertion Entities In Europe, Brian Love, Christian Helmers, Fabian Gaessler, Max Ernicke

Faculty Publications

This book chapter presents the findings of an empirical study of German and U.K. patent litigation involving patent assertion entities (PAEs). Overall, we find that PAEs account for roughly ten percent of patent suits filed in these countries during the time periods covered by our study: 2000-2008 for Germany and 2000- 2013 for the U.K. We also present a variety of additional data on the characteristics of European PAE suits and PAE-asserted patents and, finally, consider what our findings suggest are the most important reasons PAEs tend to avoid European courts. We conclude that, while many factors likely contribute to …

Innovation Levers In Diagnostic Patents, Colleen Chien

Faculty Publications

No abstract provided.

How Moving From “Best” To “Next” Practices Can Fuel Innovation, Sandee Magliozzi

Faculty Publications

No abstract provided.

A Post-Obergefell America: Is A Season Of Legal And Civic Strife Inevitable?, Carl H. Esbeck

Faculty Publications

Obergefell v. Hodges did not extend the rigor of the Equal Protection Clause to "sexual orientation" as a protected class. The case is about the right to marry by obtaining a license from the state, not a right to be free of discrimination on the basis of sexual orientation. The Court's rhetoric, however, will boost officials eager to take the next step for sexual equality. Not only did Obergefell speak of gays and lesbians as a class and wrote empathetically about them, but in dicta twice said that being gay or lesbian is an immutable characteristic. Accordingly, it can be …

Breach Avoidance Or Treaty Avoidance?: The Problem Of Over-Compliance And U.S. Ratification Of The Basel Convention On Hazardous Wastes, Tseming Yang, C. Scott Fulton

Faculty Publications

Over the past two decades, the failure of the United States to ratify a string of global multilateral environmental agreements has become a significant source of frustration for environmentalists and diplomats. The common perception is that Washington politics is to blame. The problem has even led to scholarly suggestions that any new climate agreement coming out of the Paris negotiations later this year could be entered into by the U.S. as an Executive Agreement rather than a Senate-approved treaty.

Delay has been uniquely serious, however, with respect to the 1989 Basel Convention on Hazardous Wastes. Signed under the elder President …

Taxonomy Of The Snowden Disclosures, Margaret Hu

Faculty Publications

This brief Essay offers a proposed taxonomy of the Snowden Disclosures. An informed discussion on the legality and constitutionality of the emerging cybersurveillance and mass dataveillance programs revealed by former NSA contractor Edward Snowden necessitates the furtherance of cybersurveillance aptitude. This Essay contends, therefore, that a detailed examination of the Snowden disclosures requires not just a careful inquiry into the legal and constitutional framework that guides the oversight of these programs. A close interrogation also requires a careful inquiry into the big data architecture that guides them. This inquiry includes examining the underlying theories of data science and the rationales …

In Defense Of Mcdonnell Douglas: The Domination Of Title Vii By The At-Will Employment Doctrine, Chuck Henson

Faculty Publications

The purpose of this Article is to describe the actual relationship between the Doctrine and Title VII as implemented in the Court's disparate treatment decisions. Title VII and the Doctrine are not separate forces warring with each other. The at-will employment doctrine guided the Court's Title VII disparate treatment jurisprudence, giving the maximum possible latitude to employers because that was the Eighty-eighth Congress's intent.

Sec In-House Tribunals: A Call For Reform, Drew Thornley, Justin Blount

Faculty Publications

I IN the aftermath of the 1929 crash of the stock market and during the height of the Great Depression, the federal government took steps to strengthen U.S. securities laws.1 To that end, via the Securities Exchange Act of 1934, the U.S. Congress (Congress) created the U.S. Securities and Exchange Commission (SEC), whose “mission [is] to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.”2 As “the primary overseer and regulator of the U.S. securities markets,” the SEC has the power to bring enforcement actions against parties it believes to be in violation of the nation’s securities …

Incivility In Legal Writing Can Be Costly To Client And To Attorney, Douglas E. Abrams

Faculty Publications

The adversary system's pressures can strain the tone and tenor of a lawyer's oral speech, but the strain on civility can be especially great when lawyers write. Words on paper arrive without the facial expression, tone of voice, body language, and contemporaneous opportunity for explanation that can soothe face-to-face communication. Writing appears cold on the page, dependent not necessarily on what the writer intends or implies, but on what readers infer.

This article is in three parts. Part I describes two manifestations of incivility, a lawyer's written derision of an opponent, and a lawyer's written disrespect of the court. Part …

Content-Based Copyright Denial, Ned Snow

Faculty Publications

No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …

The Right To Remain Armed, Jeffrey Bellin

Faculty Publications

The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia, and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta, and Cleveland.

These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could …

The Voting Rights Act, Questions Of Deference & Legislative Facts In A Digital Age, Allison Orr Larsen

Faculty Publications

AALS Constitutional Law Panel (January 5, 2015)

Do Laws Have A Constitutional Shelf Life?, Allison Orr Larsen

Faculty Publications

Times change. A statute passed today may seem obsolete tomorrow. Does the Constitution dictate when a law effectively expires? In Shelby County v. Holder, the 2013 decision that invalidated a provision of the Voting Rights Act, the Court seems to answer that question in the affirmative. Although rational and constitutional when written, the Court held that the coverage formula of the law grew to be irrational over time and was unconstitutional now because it bears “no logical relation to the present day.” This reason for invalidating a law is puzzling. The question answered in Shelby County was not about whether …

An Assessment Of The Consumer Review Freedom Act Of 2015, Eric Goldman

Faculty Publications

No abstract provided.

Copyright Policy And The Problem Of Generalizing, Eva E. Subotnik

Faculty Publications

(Excerpt)

Today we have heard a variety of concerns expressed by professional authors, artists and performers. But one of the toughest aspects of determining how to make the copyright system work better is generalizing about what is and is not working. In these brief remarks, I would like to identify three areas that demonstrate this difficulty.

At the outset, a disclaimer: I took the animating theme of this Symposium to be the improvement of the financial stake of individual authors in some kind of direct way. This mode of analysis should be distinguished from other approaches, equally valid, that would …

Acquisition Challenge: The Importance Of Incompressibility In Comparing Learning Curve Models, Justin R. Moore, John J. Elshaw, Adedeji B. Badiru, Jonathan D. Ritschel

Faculty Publications

The Department of Defense (DoD) cost estimating methodology currently employs T. P. Wrights 75-plus-year-old learning curve formula. The goal of this research was to examine alternative learning curve models and determine if a more reliable and valid cost estimation method exists, which could be incorporated within the DoD acquisition environment. This study tested three alternative learning models (the Stanford-B model, DeJong's learning formula, and the S-Curve model) to compare predicted against actual costs for the F-15 A-E jet fighter platform. The results indicate that the S-Curve and DeJong models offer improvement over current estimation techniques, but more importantly and unexpectedly …

Transferring Nonnegotiable Mortgage Notes, Dale A. Whitman

Faculty Publications

This article reviews what we know about transferring ownership and the right of enforcement of nonnegotiable notes. The focus will be on notes secured by mortgages, since this is likely the context in which most modern nonnegotiable notes are created. There has been a vast amount of litigation about the transfer of negotiable mortgage notes in the past half decade, greatly expanding our understanding, but there has been little development involving nonnegotiable notes. Hence, it is helpful to compare negotiable and nonnegotiable notes, with particular emphasis on how each is transferred. Perhaps ironically, this means that the bulk of this …

Combatendo A Corrupção Nos Estados Unidos, Paul Marcus

Faculty Publications

The article discusses the problematic of the fight against the corruption by the criminal justice system of the United States, mainly the white-collar crimes. It is emphasized, first, that in most of the cases does not result in trial, but in plea bargains, and, second, in many cases the encouragement from an undercover agent has served as an effective defense instrument. Finally, it is discussed the problematic of the use of information obtained from the technological devices and its probable violation to the right privacy.

This article is in Portuguese.

International Law In Domestic Courts, David Sloss, Michael Van Alstine

Faculty Publications

Traditional accounts of international law in domestic courts focus on the distinction between monist and dualist legal systems. In monist systems, courts apply international law directly. In dualist systems, direct application is not an option, so courts apply international law indirectly, or not at all. Although this account is formally correct, it tells us very little about the functional role of domestic courts in the international legal system. In this chapter, we present a functional account that focuses on the distinctions among horizontal, vertical, and transnational legal obligations. Modern international law regulates horizontal relationships between states, vertical relationships between states …

Locked In: Interactions With The Criminal Justice And Child Welfare Systems For Lgbtq Youth, Ymsm, And Ywsw Who Engage In Survival Sex, Meredith Dank, Lilly Yu, Jennifer Yahner, Elizabeth Pelletier, Mitchyll Mora, Brendan M. Conner

Faculty Publications

No abstract provided.

Big Data Blacklisting, Margaret Hu

Faculty Publications

“Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data tools, both substantive and procedural due process protections may be threatened in new and nearly invisible ways. Substantive due process rights safeguard fundamental liberty interests. Procedural due process rights prevent arbitrary deprivations by the government of constitutionally protected interests. This Article frames the increasing digital mediation …