Law Commons^™

Finance In The Courtroom: Appraising Its Growing Pains, Eric L. Talley

Faculty Scholarship

This short essay provides an overview of the current state of finance in corporate law, emphasizing its role in a series of pending appraisal cases at the Delaware Supreme Court.

Market Power And Inequality: The Antitrust Counterrevolution And Its Discontents, Lina M. Khan, Sandeep Vaheesan

Faculty Scholarship

In recent years, economic inequality has become a central topic of public debate in the United States and much of the developed world. The popularity of Thomas Piketty’s nearly 700-page tome, Capital in the Twenty-First Century, is a testament to this newfound focus on economic disparity. As top intellectuals, politicians, and public figures have come to recognize inequality as a major problem that must be addressed, they have offered a range of potential solutions. Frequently mentioned proposals include reforming the tax system, strengthening organized labor, revising international trade and investment agreements, and reducing the size of the financial sector.

One …

The Immanent Rationality Of Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

Why does copyright treat certain kinds of copying as legally actionable? For nearly a century, American copyright thinking has referenced a core consequentialist dogma to answer this question: incentivizing the production of creative expression at minimal social cost in an effort to further social welfare. This rationale, routinely traced back to the Constitution’s seemingly utilitarian mandate that copyright law should “promote the [p]rogress” of the sciences and useful arts, has come to dominate modern copyright jurisprudence and analysis.2 By classifying specific acts of copying as a wrong, and thereby recognizing a “right to the use of one’s expression,” copyright is …

Amazon's Antitrust Paradox, Lina M. Khan

Faculty Scholarship

Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead. Through this strategy, the company has positioned itself at the center of e-commerce and now serves as essential infrastructure for a host of other …

References To Football In Judicial Opinions And Written Advocacy, Douglas E. Abrams

Faculty Publications

Writing for the Court,Justice Elena Kagan explained that the dual bases of liability, recited in Section 11 of the Securities Act of 1933, are not "an invitation to Monday morning quarterback an issuer's opinions" if the opinions later prove incorrect. The Court thus spurned second-guessing from the relative comfort of hindsight. With her nod to football, justice Kagan employed a rhetorical technique that justices and lower federal and state judges have employed with increased frequency since the early 1970s. In cases with no claims or defenses concerning sports, written opinions help decide or explain issues of law or fact with …

Revising Racial Patents In An Era Of Precision Medicine, Jonathan Kahn

Faculty Scholarship

In 2006, I published an article examining the rising use of racial categories in biomedical patents in the aftermath of the successful completion of the Human Genome Project and the production of the first draft of a complete human genome. Ten years on, it now seems time to revisit the issue and consider it in light of the current era of “Precision Medicine” so prominently promoted by President Obama in his 2015 State of the Union address where he announced a $215 million proposal for the Precision Medicine Initiative as “a bold new research effort to revolutionize how we improve …

Challenging The Status Quo: An Integrated Approach To Dismantling The School-To-Prison Pipeline, Nancy G. Abudu, Ron E. Miles

St. Thomas Law Review

When it comes to challenging school disciplinary policies that have an especially disparate and negative impact on students of color and students with disabilities, courts cannot be the sole or final arbiter for addressing this serious problem. Rather than acting as a discouraging force, courts routinely uphold these disruptive school disciplinary policies and end up being a major conduit in the "School-to-Prison Pipeline" (STPP). The STPP refers to the phenomenon of over-disciplining minors, which in turn results in their suspension, expulsion, and in some cases, incarceration. With limited exceptions, the cases that parents have brought on behalf of their children …

Front Matter

St. Thomas Law Review

Front Matter includes Masthead, advisors, and Table of Contents for St. Thomas Law Review Volume 29, Issue 2, Spring 2017.

The Shell Game: An Easy Hide-And-Go-Seek Game For Criminals Around The World, Idelys Martinez

St. Thomas Law Review

This Comment explores how the laws of the United States facilitate the formation of anonymous shell corporations, how criminals take advantage of these laws, and how the United States is in dire need of a change. Part I of this Comment discussed the legitimate and illicit uses of shell corporations by weighing the interests of corporate owners and their need for shell corporations and the potential risks that shell corporations pose to the United States. Part II of this Comment outlines the legislative efforts to regulate anonymity and discusses why the current laws and proposed legislation are ineffective. Part III …

Civility And Professionalism In The Law: The Road To Justice Symposium Issue

St. Thomas Law Review

No abstract provided.

Dostoevsky As Juvenile Justice Advocate And Progenitor Of Therapeutic Jurisprudence, Amy D. Ronner

St. Thomas Law Review

In this Article, I explore this fixation with childhood suffering and suggest that Dostoevsky implicitly predicted the core tenets of a relatively new legal movement, called "therapeutic jurisprudence" ("TJ"), and I broach the question of why this matters. In an effort to provide an answer, I identify Dostoevsky as an early ombudsman for therapeutic juvenile justice and link him to the voiceless "polyphonic" voices in The Brothers Karamazov and to what I denominate the poly-personae of A Writer's Diary.

Therapeutic Jurisprudence, Professionalism, And "Spikes" For Lawyers, Shelley Kierstead

St. Thomas Law Review

This article will progress as follows. In Part 1, I discuss both the medical profession and the legal profession's challenges in relation to effective communication with patients and clients. I suggest that the medical profession's response, specifically as it relates to delivering bad news, has been more proactive and widespread than the legal profession's response. Part 2 briefly reviews research dealing with legal clients' emotional responses to different forms of communication, with a view supporting the argument that clarity of information, empathic responses to clients' reactions, and collaborative problem-solving are important elements of a professional relationship. Part 3 introduces the …

Tsai Today (2017), Southern Methodist University, Dedman School Of Law, Tsai Center For Law, Science And Innovation

Tsai Today

No abstract provided.

Render Unto Caesar: How Misunderstanding A Century Of Free Exercise Jurisprudence Forged And Then Fractured The Rfra Coalition, John S. Blattner

CMC Senior Theses

This thesis provides a comprehensive history of Supreme Court Free Exercise Clause jurisprudence from 1879 until the present day. It describes how a jurisdictional approach to free exercise dominated the Court’s rulings from its first Free Exercise Clause case in 1879 until Sherbert v. Verner in 1963, and how Sherbert introduced an accommodationist precedent which was ineffectively, incompletely, and inconsistently defined by the Court. This thesis shows how proponents of accommodationism furthered a false narrative overstating the scope and consistency of Sherbert’s precedent following the Court’s repudiation of accommodationism and return to full jurisdictionalism with Employment Division v. Smith …

Women, Migration, And Prostitution In Europe: Not A Sex Work Story, Anna Zobnina

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Submission On The Draft General Comment On “State Obligations Under The Icescr In The Context Of Business Activities”, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In January 2017 CCSI made a submission to the Committee on Economic, Social and Cultural Rights, regarding its draft General Comment on “State obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities.” CCSI’s submission focused on: (1) host and home states’ obligations as they relate to international investment agreements (IIAs); (2) extraterritorial obligations in the context of outward investment; and (3) state obligations related to corruption issues.

In the submission, CCSI emphasized that states must ensure that existing treaties do not generate conflicts between obligations owed under IIAs and the Covenant (in …

Guide To Land Contracts: Forestry Projects, International Senior Lawyers Project, Kaitlin Y. Cordes, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Agricultural investment contracts and forestry projects can be complex, with complicated provisions that are difficult to understand. To assist non-lawyers in better understanding agricultural investment contracts, such as those available on the Open Land Contracts repository, CCSI has developed a Guide to Land Contracts: Forestry Projects.

This Guide, prepared by International Senior Lawyers Project staff and volunteers in collaboration with the Columbia Center on Sustainable Investment, aims to assist the Open Land Contracts repository users in unpacking the technical provisions and language typically found in forestry contracts in order to better understand the contracts and the potential implications of …

Narratives Of Self Government In Making The Case, Benjamin Berger

Articles & Book Chapters

This is a book about persuasion. In Making the Case: The Art of the Judicial Opinion, Paul Kahn draws the judicial opinion into the centre of our field of vision and invites us to join him in inquiring into the role that it plays shaping our legal and political communities, and in seeking to understand how it does its work. Ultimately, he shows that persuasion is at the heart of the judicial opinion and, with that, at the heart of the rule of law.

The Ethical Debate On Drones, Anne Hopkins

Augustana Center for the Study of Ethics Essay Contest

No abstract provided.

Alienation And Reconciliation In Social-Ecological Systems, Ann M. Eisenberg

Faculty Publications

After rancher Ammon Bundy’s forceful occupation of the Malheur National Wildlife Refuge to protest federal “tyranny” in 2016, mainstream commentary dismissed Bundy and his supporters as crackpots. But the dismissal of the occupation as errant overlooked this event’s significance. This conflict: 1) involved a clash over scarce natural resources, of the type that will likely gain more frequency and intensity in the face of climate change; and 2) highlighted the popular idea that the federal government and federal environmental regulations are the enemy of the (white, rural, male) worker. This thread of antienvironmental, anti-federal alienation among many working people has …

Tax And Social Context: Legal Fictions And Tax, Tessa R. Davis

Faculty Publications

No abstract provided.

Responsible Resource Development And Prevention Of Sex Trafficking: Safeguarding Native Women And Children On The Fort Berthold Reservation, Kathleen Finn, Erica Gajda, Thomas Perin, Carla Fredericks

Publications

In 2010, large deposits of oil and natural gas were found in the Bakken shale formation, much of which is encompassed by the Fort Berthold Indian reservation, home to the Mandan, Hidatsa, and Arikara Nation (“MHA Nation” or “Three Affiliated Tribes” or “the Tribe”). However, rapid oil and gas development has brought an unprecedented rise of violent crime on and near the Fort Berthold reservation. Specifically, the influx of well-paid male oil and gas workers, living in temporary housing often referred to as “man camps,” has coincided with a disturbing increase in sex trafficking of Native women. The social risks …

A Taste Of The Current Protection Offered By Intellectual Property Law To Molecular Gastronomy, Mary Grace Hyland

Cybaris®

No abstract provided.

Masthead

Touro Law Review

No abstract provided.

Florida's Stand Your Grand Law: How To Get Away With Murder, Evelyn Reyes

Intercultural Human Rights Law Review

On the afternoon of February 26, 2012, George Zimmerman (Zimmerman) drove through his neighborhood when he spotted a "suspicious black male" and decided to inform the authorities. Seventeen-year-old Trayvon Martin (Martin) was walking home after purchasing a bag of Skittles at a nearby 7-Eleven. Instructed by a police dispatcher, Zimmerman was to stay in his vehicle and avoid Martin. Zimmerman ignored the dispatcher's instructions and decided to approach Martin. Zimmerman consequently entered into an altercation with Martin, who was unarmed. Moments later, Zimmerman shot Martin, and claimed self-defense. A claim of self-defense under a Stand Your Ground theory enables an …

The Cost Of (Non)Compliance: An Expose Of The United States' Immigration Detention Policy And Its Failure To Comply With International Standards, Jessica Wright

Intercultural Human Rights Law Review

The persistence of brutal warfare sparked an international movement against torture at the turn of the twentieth century. By 1948, the Universal Declaration of Human Rights (UDHR) introduced a ban on torture.' Two decades later, the International Covenant on Civil and Political Rights (ICCPR) followed suit, prohibiting member States from subjecting individuals to torture. However, in decades following said treaties, brutal dictatorships proved that short provisions in international documents are not enough to prevent torture. The plight of Chilean dictator Augusto Pinochet illustrated the weaknesses of the international framework on torture. Despite the heinous acts of torture committed under his …

Crime Shouldn't Pay: How California Should Expand And Restructure Its Human Trafficking Asset Forfeiture Laws, Benjamin T. Greer

Intercultural Human Rights Law Review

Section I of this article will provide updated statistical data on human trafficking in California, demonstrating increased consciousness, heightened awareness and the ongoing search for effective tools. Sections II and III will highlight the important psychological and practical economic impact asset forfeiture laws have on crime. These sections will also provide a comprehensive review how forfeiture is currently implemented in the fight against human trafficking. Sections IV and V will argue why human trafficking crimes must be subjected to California's civil asset forfeiture laws: how civil forfeiture reduces both the supply-side and demand-side of trafficked victims. It will also provide …

Is The U.S. Supreme Court Becoming Hostile To The Administrative State, Jeffrey Lubbers

Contributions to Books

Jeffrey S. Lubbers, Is the U.S. Supreme Court Becoming Hostile to the Administrative State?, prepared for the Administrative Law Discussion Forum held at the University of Luxembourg, July 1-2, 2015; published (with other papers) by Carolina Academic Press in Comparative Perspectives on Administrative Procedure Global Papers Series Volume III pp. 31-50 (Russell W. Weaver, et. al. eds 2017). Draft available at http://ssrn.com/abstract=2645036

They Were Here First: American Indian Tribes, Race, And The Constitutional Minimum, Sarah Krakoff

Publications

In American law, Native nations (denominated in the Constitution and elsewhere as “tribes”) are sovereigns with a direct relationship with the federal government. Tribes’ governmental status situates them differently from other minority groups for many legal purposes, including equal protection analysis. Under current equal protection doctrine, classifications that further the federal government’s unique relationship with tribes and their members are subject to rationality review. Yet this deferential approach has recently been subject to criticism and is currently being challenged in the courts. Swept up in the larger drift toward colorblind or race-neutral understandings of the Constitution, advocates and commentators are …

Review Of What's Wrong With Copying? By Abraham Drassinower, Jessica Silbey

Faculty Scholarship

There are several radical aspects of Abraham Drassinower’s book WHAT’S WRONG WITH COPYING? One is that he shoves to the side the question of copyright incentives and the economic theory of intellectual property law, both long-standing starting points for copyright theory and doctrine. Drassinower makes no intellectual apologies for this sidelining and justifies it by the second radical aspect of his book: he claims to be exploring copyright law on its own terms, not on terms from outside copyright (economics or behavioral incentives) but from internal to copyright law as written and developed since the Statute of Anne.1 This he …