Law Commons^™

How Securities Regulation Really Works: A Comparative Study Of The Regulatory, Principled, And Normative Reputational Approaches To Securities Regulation, Amy Aiq

Amy Wall

This paper compares international securities regulation through the lens of a structural and historical analysis. The regulatory, principled and normative reputational models of securities regulation as exemplified by the U.S., U.K. and China are discussed. A discussion of the foundations of securities markets lays the groundwork for understanding different underlying purposes of securities regulation. The paper follows the development of securities markets from the roots of the 17th century European trading companies, through the statist polices that created the bond markets, to the transatlantic crossing and the development of the investment banking system and creation of governmental agencies enforcing securities …

From Rapists To Superpredators: What The Practice Of Capital Punishment Says About Race, Rights And The American Child, Robyn Linde

Faculty Publications

At the turn of the 20^th century, the United States was widely considered to be a world leader in matters of child protection and welfare, a reputation lost by the century’s end. This paper suggests that the United States’ loss of international esteem concerning child welfare was directly related to its practice of executing juvenile offenders. The paper analyzes why the United States continued to carry out the juvenile death penalty after the establishment of juvenile courts and other protections for child criminals. Two factors allowed the United States to continue the juvenile death penalty after most states in …

Natural Law And The Rhetoric Of Empire: Reynolds V. United States, Polygamy, And Imperialism, Nathan B. Oman

Faculty Publications

In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds, and the anti-polygamy legislation and litigation that it midwifed, as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the Mormons …

Why Is Small Business The Chief Business Of Congress?, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Small business is a sacred cow in America. In 1958, Congress created the Small Business Investment Company ("SBIC"), a unique public-private program that provides long-term capital to small entrepreneurs. From its inception, however, the SBIC has been plagued by inefficiency and failure. Yet, Congress continues to pour millions of dollars into the SBIC program, with no end in sight. What explains this failed policy course?

This article argues that the SBIC program exemplifies the pitfalls of legal and political institutional path dependency and should be replaced by private institutional lending system. Pursuant to this account, past decisions can influence future …

Patent Eligible Inventions After Bilski: History And Theory, Joshua Sarnoff

College of Law Faculty

The U.S. Supreme Court has continued to require that patentable subject matter eligibility determinations under Section 101 be made by reference to three historic, categorical exclusions, for scientific principles, natural phenomena, and abstract ideas, which must be treated as if already known even when newly discovered by the applicant. Various thoughtful scholars have alternatively urged that these exclusions from the patent system should be viewed restrictively or that eligibility decisions should be avoided. But these scholars underappreciate the benefits of categorical exclusions and particularly of treating them as if they were already known prior art, and in any event the …

The Texas Wind Estate: Wind As A Natural Resource And A Severable Property Interest, Alan J. Alexander

University of Michigan Journal of Law Reform

In 2011, Texas is again at the forefront of an energy boom: the wind energy boom. In 2006, Texas surpassed California and became the US. state with the most installed capacity to produce wind energy, and Texas' level of installed capacity has continued to grow. But the law has not kept pace with this growth. Similar to the initial growth of the oil and gas industry in Texas, the wind energy industry was also born, and continues to grow, in the absence of clear legal and regulatory standards. Lack of regulation in the early development of the oil industry contributed …

Oral History Interview With Michael Furmston: Conceptualising Smu, Michael P. Furmston

Oral History Collection

The interview covered: first involvement with Singapore and SMU, challenges and opportunities for the law school, faculty recruitment, law research, job opportunities, relationship with legal communities, internships, law building, future developments, dispute resolution.

Biography:

Founding Dean, School of Law, SMU, 2007–present

Professor Michael Furmston became the founding dean of the School of Law in August 2007. The second law school in Singapore, SMU’s undergraduate law programme has been noted for the significant proportion of business and finance courses. Its first students graduated in July 2011. In 2009, a postgraduate law programme was introduced, the juris doctor. During Professor Furmston’s tenure …

The Incredible Shrinking Free Exercise Clause, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Information Anxieties, G. S. Hans

Michigan Telecommunications & Technology Law Review

The constant access and instant publication that the Internet allows have given every pundit an online soapbox. This content explosion has created two related problems for consumers and industry: how to find valuable content online (whatever "valuable" means) and how to moderate the flow of the content itself. Tim Wu argues in The Master Switch that the second issue of content control and mediation has been fiercely debated in the United States as far back as the invention of the telephone in the late nineteenth century. Consumers, creators, companies, and government officials have disputed the appropriate regulations for the devices …

General Corporation Laws: History And Economics , David Mcbride

Law and Contemporary Problems

No abstract provided.

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …

The Splendid Isolation Revisited: Lessons From The History Of Veterans Benefits Before Judicial Review, James D. Ridgway

James D. Ridgway

The history of warfare is grittier and more complex than that portrayed by the jingoistic news reels of old. So too, the history of veterans benefits is much more checkered and conflicted than might be suggested by slogans welcoming home the nation’s heroes. Understanding the history and origins of a complex administrative area such as veterans law is vitally important to good practice and thoughtful scholarship. However, because attorneys were not involved in the system for generations while it evolved during two centuries without the oversight of judicial review, very few practitioners or scholars today have any direct experience with …

[Introduction To] The Legal Universe: Observations On The Foundations Of American Law, Vine Deloria, Jr., David E. Wilkins

Bookshelf

According to Deloria and Wilkins, "Whenever American minorities have raised voices of protest, they have been admonished to work within the legal system that seek its abolition." This essential work examines the historical evolution of the legal rights of various minority groups and the relationship between these rights and the philosophical intent of the American founders.

Legal Education And Civility, Mark Niles

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Connecticut's Fourth Congressional District: History, Politics, And The Maverick Tradition, Gary L. Rose

Sacred Heart University Press Books

Connecticut's Fourth Congressional District: History, Politics, and the Maverick Tradition is a case study of one of the most unique congressional districts in the United States. Located in Fairfield County, the fourth district is a bedroom community close to New York City. The district's close proximity to Wall Street, the tendency of the district's constituents to elect free-thinking congresspersons, and the wealth and celebrity status of many district residents have resulted in a setting which can be described as an anomaly in the larger context of congressional politics. Contents: Introduction -- Connecticut's Fourth Congressional District: geography and demographics -- A …

Murder And Martial Justice: Spying And Retribution In Wwii America. By Meredith Lentz Adams (Kent, Ohio: The Kent State University Press, 2011), Millard E. Moon Ed.D.

Journal of Strategic Security

No abstract provided.

Practically Grounded: Convergence Of Land Use Law Pedagogy And Best Practices, Patricia E. Salkin, John R. Nolan

Scholarly Works

The changing dynamics in the field of land use and sustainable community development law demand that land use law professors rethink the way in which we prepare law students to practice law in this area. This needed paradigm shift converges with the growing momentum of the best practices movement which urges law schools to dramatically revise the curricular approach to legal education, arguing that traditional models are no longer effectively serving the goal of producing competent and fully prepared new lawyers. A perfect storm is present and a unique opportunity exists through the application of many “best practices” concepts for …

Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard

Articles

To outsiders, securities law is not all that interesting. The body of the law consists of an interconnecting web of statutes and regulations that fit together in ways that are decidedly counter-intuitive. Securities law rivals tax law in its reputation for complexity and dreariness. Worse yet, the subject regulated-capital markets-can be mystifying to those uninitiated in modem finance. Moreover, those markets rapidly evolve, continually increasing their complexity. If you do not understand how the financial markets work, it is hard to understand how securities law affects those markets.

Donald W. Jackson On Prisoners Of America’S Wars: From The Early Republic To Guantanamo. By Stephanie Carvin. New York: Columbia University Press, 2010. 336pp., Donald W. Jackson

Human Rights & Human Welfare

A review of:

Prisoners of America’s Wars: From the Early Republic to Guantanamo. By Stephanie Carvin. New York: Columbia University Press, 2010. 336pp.

Paper Thin: Freedom And Re-Enslavement In The Diaspora Of The Haitian Revolution, Rebecca J. Scott

Articles

In the summer of 1809 a flotilla of boats arrived in New Orleans carrying more than 9,000 Saint-Domingue refugees recently expelled from the Spanish colony of Cuba. These migrants nearly doubled the population of New Orleans, renewing its Francophone character and populating the neighborhoods of the Vieux Carre and Faubourg Marigny. At the heart of the story of their disembarkation, however, is a legal puzzle. Historians generally tell us that the arriving refugees numbered 2,731 whites, 3,102 free people of color, and 3,226 slaves. But slavery had been abolished in Saint-Domingue by decree in 1793, and abolition had been ratified …

Falling Through The Crack: How Courts Have Struggled To Apply The Crack Amendment To Nominal Career And Plea Bargain Defendants, Maxwell Arlie Halpern Kosman

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …

The Rise And Demise Of The Collective Right Interpretation Of The Second Amendment, David T. Hardy

Cleveland State Law Review

This article explores the origins of the two competing theories of the Second Amendment -- the "individual rights" approach which carried the majority in Heller and McDonald, and the variants of a "collective right" theory which was previously dominant in the lower courts, and one variant of which was endorsed by the Heller dissents. Careful analysis of states' bills of rights of the Framing period suggests that two guarantees were desired, by different political factions. Framers closely adhering to the Classical Republican point of view favored protection for the militia as a system; those favoring the emerging Jeffersonian point of …

Coase, Institutionalism, And The Origins Of Law And Economics, Herbert J. Hovenkamp

All Faculty Scholarship

Ronald Coase merged two traditions in economics, marginalism and institutionalism. Neoclassical economics in the 1930s was characterized by an abstract conception of marginalism and frictionless resource movement. Marginal analysis did not seek to uncover the source of individual human preference or value, but accepted preference as given. It treated the business firm in the same way, focusing on how firms make market choices, but saying little about their internal workings.

“Institutionalism” historically refers to a group of economists who wrote mainly in the 1920s and 1930s. Their place in economic theory is outside the mainstream, but they have found new …

Choosing Justices: How Presidents Decide, Joel K. Goldstein

All Faculty Scholarship

Presidents play the critical role in determining who will serve as justices on the Supreme Court and their decisions inevitably influence constitutional doctrine and judicial behavior long after their terms have ended. Notwithstanding the impact of these selections, scholars have focused relatively little attention on how presidents decide who to nominate. This article contributes to the literature in the area by advancing three arguments. First, it adopts an intermediate course between the works which tend to treat the subject historically without identifying recurring patterns and those which try to reduce the process to empirical formulas which inevitably obscure considerations shaping …

On Corporate Codification: A Historical Peek At The Model Business Corporation Act And The American Law Institute Principles Through The Delaware Lens, E. Norman Veasey

Law and Contemporary Problems

No abstract provided.

The Siren Song Of History: Originalism And The Religion Clauses, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

It is hard to foresee much happiness in the lot of those seeking the original meaning of the Religion Clauses. We may acknowledge the opacity of the historical record, the variety of viewpoints held by founders forgotten and non-forgotten, the humanness of the founders who did not always practice what they preached, even the basic indeterminancy of language; still, we are seduced by the siren song of interpretive certainty. But the search for greater clarity is not without its payoff. As the three books under review here illustrate, the more we look for answers in the historical record, the more …

Women Behind The Wheel: Gender And Transportation Law, 1860-1930, Margo Schlanger

Book Chapters

Gender difference is only infrequently mentioned in recent negligence cases. To contemporary (mostly non-essentialist) eyes, gender difference seems to appear only mildly relevant to tort law's area of concern: care and harm to others and self. But in the early days of modern tort law, when gender differences loomed larger in the consciousness of American jurists, and unabashedly so, judicial opinions more frequently grappled with how negligence doctrine ought to take account of female difference. This chapter explores opinions published between approximately 1860 and 1930 that illuminate this issue in cases involving women drivers and passengers of cars and wagons. …

Slavery And The Law In Atlantic Perspective: Jurisdiction, Jurisprudence, And Justice, Rebecca J. Scott

Articles

The four articles in this special issue experiment with an innovative set of questions and a variety of methods in order to push the analysis of slavery and the law into new territory. Their scope is broadly Atlantic, encompassing Suriname and Saint-Domingue/Haiti, New York and New Orleans, port cities and coffee plantations. Each essay deals with named individuals in complex circumstances, conveying their predicaments as fine-grained microhistories rather than as shocking anecdotes. Each author, moreover, demonstrates that the moments when law engaged slavery not only reflected but also influenced larger dynamics of sovereignty and jurisprudence.

Readers' Copyright, Jessica D. Litman

Articles

My goal in this project is to reclaim copyright for readers (and listeners, viewers, and other members of the audience). I think, and will try to persuade you, that the gradual and relatively recent disappearance of readers’ interests from the core of copyright’s perceived goals has unbalanced the copyright system. It may have prompted, at least in part, the scholarly critique of copyright that has fueled copyright lawyers’ impression that “so many in academia side with the pirates.” It may also be responsible for much of the deterioration in public support for copyright. I argue here that copyright seems out …

The Legal Academy As Dinner Party: A (Short) Manifesto On The Necessity Of Inter-Interdisciplinary Legal Scholarship, Paul Stancil

Faculty Scholarship

This Article explores the need for an increase in inter-interdisciplinary legal scholarship, suggesting that legal scholars from different traditions and backgrounds need to sit down at the same table and start talking to one another. The author presents an argument in favor of an integrated model of legal scholarship in which norms of intellectual modesty and cooperation fuel the development of interdisciplinary work. He develops a functional hierarchy which allows scholars to start with the first, threshold question, then work down to the operational details as they carefully consider our accumulated learning about why and how people actually act. After …