Law Commons^™

The Virtue In Bankruptcy, Matthew Adam Bruckner

Matthew Adam Bruckner

In response to a gap in the corporate bankruptcy literature, this Article offers a new positive theory of corporate bankruptcy law based on virtue ethics. The dominant theory of corporate bankruptcy law—the creditors’ bargain model—is necessarily incomplete because it does not account for bankruptcy courts’ equitable and discretionary powers, or for bankruptcy courts’ need to consider decision-making criteria other than economic efficiency. By contrast, virtue ethics offers insights about these features of corporate bankruptcy law for at least three reasons. First, bankruptcy courts appear to give content to bankruptcy laws by using virtue ethical principles. Second, virtue ethics’ decision-making process—practical …

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

Identity/Time, Nancy J. Knauer

Nancy J. Knauer

This paper engages the unspoken fourth dimension of intersectionality — time. Using the construction of lesbian, gay, bisexual, and transgender (LGBT) identities as an example, it establishes that identity, as it is lived and experienced, is not only multivalent, but also historically contingent. It then raises a number of points regarding the temporal locality of identity — the influence of time on issues of identity and understanding, its implications for legal interventions, social movement building, and paradigms of progressive change. As the title suggests, the paper asks us to consider the frame of identity over time.

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

The Battle For The Soul Of International Shoe, Eric H. Schepard

Eric H Schepard

In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested that Stone hoped …

Remedies Unified In Nine Verses, Caprice Roberts

Caprice L. Roberts

An original substantive poem with footnotes that makes three bold claims: (i) Remedies shapes substantive rights, (ii) the scholarly quest for a unified theory of Remedies is ill-fated, and (iii) Remedies properly reasoned will unify across borders, doctrinal and geographic.

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine …

U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack

Wayne McCormack

One of the principal victims in the U.S. so-called "war on terror" has been the independence of the U.S. Judiciary. Time and again, challenges to assertedly illegal conduct on the part of government officials have been turned aside without addressing the merits, either because of overt deference to the Government or because of special doctrines such as state secrets and standing requirements. This paper catalogs the principal cases first by the nature of the government action challenged and then by the special doctrines invoked. The U.S. judiciary has virtually relinquished its valuable role of judicial review. In the face of …

Overruling Precedent: "A Derelict In The Stream Of The Law", Michael Leroy

Michael H LeRoy

Will the Supreme Court overrule Hoffman Plastic Compounds v. N.L.R.B., 535 U.S. 137 (2002), its precedent that treats unlawful alien workers as criminals and denies them backpay for a violation of a labor law? More generally, what are the statistical indicators of a precedent that the Supreme Court overrules— and how well does Hoffman Plastic fit that profile? To answer these research questions, I analyze two unique databases— 128 federal and state rulings from 2002-2012 that involved Hoffman Plastic’s remedy issue, and a sample of 154 Supreme Court pairings of an overruled precedent, and the decision that explicitly …

Judicial Deference And Institutional Character: Homeowners Associations And The Puzzle Of Private Governance, Michael C. Pollack

Michael C. Pollack

Much of the study of judicial review of governing institutions focuses on the institutions of public government at the federal, state, and local levels. But the courts’ relationship with private government is in critical need of similar examination, and of a coherent framework within which to conduct it. This Article uses the lens of homeowners associations—a particularly ubiquitous form of private government—to construct and employ such a framework. Specifically, this Article proceeds from the notion that judicial deference is less appropriate the more unaccountable a governing institution is. It therefore develops a set of tests for institutional accountability and applies …

A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz

Justin Schwartz

Just as Marx's insights into capitalism have been most strikingly vindicated by the rise of neoliberalism and the near-collapse of the world economy, Marxism as social movement has become bereft of support. Is there any point in people who find Marx's analysis useful in clinging to the term "Marxism" - which Marx himself rejected -- at time when self-identified Marxist organizations and societies have collapsed or renounced the identification, and Marxism own working class constituency rejects the term? I set aside bad reasons to give on "Marxism," such as that the theory is purportedly refuted, that its adoption leads necessarily …

Global Poverty And The Right To Development In International Law, Patrick Macklem

Patrick Macklem

This Article advances an account of the right to development as a legal instrument that holds the international legal order accountable for its role in the production and reproduction of global poverty. It first distinguishes moral conceptions of human rights, as instruments that protect universal features of humanity, from legal conceptions, which tie their existence to their specification in international instruments promulgated in compliance with international legal norms governing the creation of legal rights and obligations. Despite textual ambiguities in the various instruments in which it finds expression, the right to development vests in individuals and communities who have yet …

Snopa And The Ppa: Do You Know What It Means For You? If Snopa (Social Networking Online Protection Act) Or Ppa (Password Protection Act) Do Not Pass, The Snooping Could Cause You Trouble, Angela Goodrum

Angela Goodrum

No abstract provided.

The Shield Of Rights, The Sword Of Disorder: Robert H. Jackson And Civil Liberties, George B. Crawford

George B. Crawford

No abstract provided.

The Piranha Is As Deadly As The Shark: A Case For The Limitation On Deceptive Practices In Dna Collection, Brett A. Bauman

Brett A Bauman

Police deception tactics are utilized throughout the United States as a way to catch unsuspecting criminals. Although criticized in many respects, most deceptive police techniques are not only legal, but are actually encouraged. DNA collection and analysis is no exception—techniques are frequently used by law enforcement officers in an attempt to collect a suspect’s genetic specimen in the interest of solving crimes. While law enforcement officers typically have the best interests of society in mind, the current practices employed by officers to collect suspects’ DNA violate the Fourth Amendment. The Fourth Amendment provides protection against unreasonable searches and seizures, and …

Holmes And The Common Law: A Jury's Duty, Matthew P. Cline

Matthew P Cline

The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

Book Review: Julie Dickson And Pavlos Eleftheriadis, Philosophical Foundations Of European Union Law, Arthur Dyevre

Arthur Dyevre

Change in the legal academy tends to be spurred by changes in the legal reality itself rather than by methodological and conceptual innovation emerging from within the discipline. In that sense, legal developments in the real world habitually seem to be ahead of the scholarship. A new phenomenon emerges, which legal scholars then try to apprehend via the established tools and categories of legal thought, soon to discover that these fail to capture the essence of the new reality. The first to experience the changed legal world are usually the scholars who are closest to practice; those who are intimate …

Punishment And Rights, Benjamin L. Apt

Benjamin L. Apt

Prevalent theories of criminal punishment lack a rationale for the precise duration and nature of state-ordered criminal punishment. In practice, too, criminal penalization suffers from inadequate evidence of punitive efficacy. These deficiencies, in theory and in fact, would not be so grave were the state to enjoy unfettered power over the disposition of criminal penalties. However, in societies that recognize legal rights, criminal punishments must be consistent with rights. Efficacy, even where demonstrable, does not suffice as a legal justification for punishment. This article analyzes the source of rights and how they function as primary rules in a legal system. …

Doomed Steamers And Merged Fires: The Problem Of Preempted Innocent Threats In Torts, Anthony M. Dillof

Anthony M. Dillof

This article addresses a classic question of tort theory: When a court assesses damages in a negligence action, it is relevant that the defendant’s negligence prevented the plaintiff from suffering a harm? For example, imagine that defendant Taxi Driver negligently crashes his taxi thereby injuring plaintiff Passenger. Is it relevant that because of the accident, Passenger did not reach the ocean liner he had been planning to sail on and, as a result, his life was saved because, as it turns out, the ocean liner sank, killing everyone aboard? Though this question has been recognized and addressed for almost a …

Jurisprudence, Interpretation, And Relevance: How Relevant Is Jurisprudence In Modern Practice?, David C. Bell

David C Bell

Jurisprudence and statutory interpretation are distained by law school students and in legal circles outside the academic realm, but both are an integral part of the legal process and as such should be included in all law school education in an effort to turn out practice ready lawyers. This paper will look at the different theories of statutory interpretation, breaking down how the individual theories go about interpretation. The different theories to be analyzed include hermeneutics, textualism, purposive interpretation, dynamic interpretation, liberal interpretation, legal process theory, moral theory, and active liberty. Then the paper will analyze parallels between the interpretation …

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …

Defenseless Self-Defense: An Essay On Goldberg And Zipursky's Civil Recourse Defended, Alan Calnan

Alan Calnan

In a recent symposium published by the Indiana Law Journal, Professors John C.P. Goldberg and Benjamin C. Zipursky offer a spirited defense of their theory of civil recourse, which sees the tort system exclusively as a means of empowering victims of wrongs. This essay assails that defense, finding it curiously defenseless in three related respects. First, civil recourse’s key tenets are particularly vulnerable to criticism because they are quietly reductive, inscrutably vague, and highly unstable. Second, even in its most coherent form, civil recourse theory literally lacks any meaningful explanation of the defensive rights at play within the tort system. …

The Behavioral Psychology Of Appellate Persuasion, James Ridgway

James D. Ridgway

This article uses behavioral psychology research to work backward from how appellate decisions are made to how oral argument, briefing, and argument design can have the maximum impact on the decision makers. Appellate judges are human beings who have the same basic cognitive processes as any others. Understanding these decision-making processes is the key to understanding how to best utilize the few minutes of argument and few pages of briefing that you have to affect what the decision in a case will say. In addition to illuminating the most effective ways to communicate, it also provides insight into how best …

Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower

Richard Cameron Gower

Despite some difficulties, state tort law can be argued to create a unique exception to patent law. Specifically, the prevented rescue doctrine suggests that charities and others can circumvent patents on certain critical medications when such actions are necessary to save individuals from death or serious harm. Although this Article finds that the prevented rescue tort doctrines is preempted by federal patent law, all hope is not lost. A federal substantive due process claim may be brought that uses the common law to demonstrate a fundamental right that has long been protected by our Nation’s legal traditions. Moreover, this Article …

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

Regulate/Mandate: Two Perspectives, John T. Valauri

John T. Valauri

The debate and litigation over the constitutionality of the individual mandate during the past few years has revealed an utter lack of consensus on the bench and in the academy concerning the scope of and limits on the congressional commerce power. The parties here are divided into two different camps and see questions and cases from opposing perspectives which color and frame their perception and understanding of the topic. One perspective is a dynamic take on the New Deal Settlement which sees Congress as possessing essentially unlimited legislative power over commerce. The other perspective freezes doctrine in place and accepts …

Instrumentalist And Holmesian Voices In The Rhetoric Of Reapportionment: The Opinions Of Justices Brennan And Frankfurter In Baker V. Carr, Carlo A. Pedrioli

Carlo A. Pedrioli

In his autobiography, Chief Justice Earl Warren described Baker v.Carr as “the most important case of [his] tenure on the Court.” Following Brown v. Board of Education by eight years, Baker was the second “blockbuster” case of the Warren Court. Warren felt that, if the progeny of Baker had preceded Brown, Brown would have been unnecessary.

As with other major Supreme Court cases, Baker featured rhetoric from highly influential justices, two of whom in this case were Justice William Brennan and Justice Felix Frankfurter. Justice Brennan would write the groundbreaking opinion for the Court that would be part of “the …

Quantitative Model For Measuing Line-Drawing Inequity, Bradley T. Borden

Bradley T. Borden

The law draws lines. It draws lines between manslaughter and murder, negligence and gross negligence, speeding and driving legally, and capital gains and ordinary income. Those lines invariably cause undesirable results. In particular, lines in the law cause inequity because they impose different treatment on similarly situated persons. Despite this inequity, analysts generally embrace the quantitative comforts of inefficiency analysis. This Article introduces a quantitative model for measuring inequity. Consequently, the preference for quantitative measures no longer justifies the disdain for inequity analysis. Instead, democratic and philosophical efforts to assess laws should embrace now-quantifiable inequity analyses as the analytical tools …