Law Commons^™

Showcasing Diversity, Patrick S. Shin, Mitu Gulati

North Carolina Law Review

No abstract provided.

Showcasing: The Positive Spin, Katharine T. Bartlett

North Carolina Law Review

No abstract provided.

Is The Public Utility Holding Company Act A Model For Breaking Up The Banks That Are Too-Big-To-Fail?, Roberta S. Karmel

UC Law Journal

During the financial crisis of 2007–08 and the debates on regulatory reform that followed, there was general agreement that the “too-big-to-fail” principle creates unacceptable moral hazard. Policy makers divided, however, on the solutions to this problem. Some argued that the banking behemoths in the United States should be broken up. Others argued that dismantling the big banks would be bad policy because these banks would not be able to compete with universal banks in the global capital markets, and in any event, breaking up the banks would be impossible as a practical matter. Therefore, better regulation was the right solution. …

Righting The Historical Record: A Case For Appellate Jurisdiction Over Appeals Of Sentences For Reasonableness Under 28 U.S.C. § 1291, Briana Lynn Rosenbaum

UC Law Journal

This Article is the first to analyze critically the jurisdictional basis for the Supreme Court’s mandate in United States v. Booker that all courts of appeals review the length of criminal sentences for “reasonableness.” The availability of appellate review has expanded greatly since the Booker opinion, and, indeed, recent research shows that the number of sentence appeals has risen. Unfortunately, the Court did not explain the jurisdictional basis for its expanded “reasonableness review.” The omission is not trivial. For decades, federal courts have held that courts of appeals do not have jurisdiction to review the length of criminal sentences. This …

Note – Preserving Dignity In Due Process, Sara B. Tosdal

UC Law Journal

Procedural due process is a guarantee of fairness. Fundamentally, this guarantee requires notice and an opportunity to be heard. Procedural protections from arbitrary state action vary according to the context of each case, and protections in administrative actions are distinct from those provided in formal judicial proceedings. The administrative state developed to address a pressing need: how to govern and regulate when the three branches of government lack the capacity to efficiently and effectively administer an everevolving society. But as society has developed and expanded, individuals have more frequently interacted with the administrative state, in turn necessitating the expansion of …

Note – Privacy And Security During Life, Access After Death: Are They Mutually Exclusive?, Molly Wilkens

UC Law Journal

The Internet has transformed the way we live our lives. What we have not yet fully realized is how it will impact what happens after we die. Specifically, the migration of financial services online, and the corresponding elimination of paper records, will hamper access to a decedent’s financial assets and may eliminate knowledge of their existence entirely. This Note explores how federal financial and internet privacy laws affect the disclosure of a person’s private financial information and offers solutions for reconciling lifetime privacy interests and the desire for access after death.

Modeling The Congressional End-Run Constraint, Luke M. Milligan

University of Richmond Law Review

No abstract provided.

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

University of Richmond Law Review

No abstract provided.

State Cooperation & The International Criminal Court: A Role For The United States?, Beth Van Schaack

Faculty Publications

This article appeared in a white paper from the American Society of International Law on the relationship between the United States and the International Criminal Court in the post-Kampala Review Conference period. This article is premised on the recognition that (1) the International Criminal Court is almost entirely dependent on State cooperation to effectuate its mandate to bring to justice individuals responsible for committing "the most serious crimes of concern to the international community as a whole" and (2) cooperation is central to the evolving relationship between the ICC and the United States.

Notwithstanding the rapprochement between the ICC and …

Leveraging Externship Opportunities To Provide Benchmark Experiences And Skills For Practice, Sandee Magliozzi, Susan Beneville

Faculty Publications

No abstract provided.

A Separation Of Powers Defense Of Federal Rulemaking Power, Michael Blasie

Faculty Scholarly Works

Judicial rulemaking—the methods by which federal courts create federal procedural rules—represents a paradigmatic clash between the functionalist and formalist theories of the separation of powers. There exist compelling practical reasons to invest such power in the judiciary, yet the Constitution’s text does not explicitly confer such power on any branch. This Article comprehensively examines the separation of powers issues raised by the current federal rulemaking process under the formalist theory of the separation of powers in light of modern precedent. Part I details the current procedure for creating the federal rules, summarizes the relevant scholarship, and examines the few Supreme …

The Dodd-Frank Act: A New Deal For A New Age?, Saule T. Omarova

Cornell Law Faculty Publications

This short essay is an attempt to present a few early "big picture" observations on the broad regulatory philosophy underlying the Dodd-Frank Act. The question raised here is whether the Dodd-Frank Act, in fact, provides a blueprint for the twenty-first-century version of the New Deal - a qualitatively new approach to resolving the regulatory challenges posed by today's financial markets. Answering this complex question in full is hardly possible at this stage in the process, when many critical details of the new legal and regulatory regime are yet to be determined. Nevertheless, it is worthwhile to reflect upon some of …

The Limits Of Eu Hedge Fund Regulation, Dan Awrey

Cornell Law Faculty Publications

This article examines the mechanics of the recently adopted EU Alternative Investment Fund Managers Directive. On balance, the results of this examination are not encouraging. The EU has failed to mount a persuasive case for why the Directive represents an improvement over existing national regulatory regimes or prevailing market practices in several key areas. Furthermore, by attempting to shoehorn an economically, strategically and operationally diverse population of financial institutions into a single, artificial class of regulated actors, the EU has established what is in many respects a conceptually muddled regulatory regime. Most importantly, however, the Directive's approach toward the amelioration …

Three Concepts Of Roles, W. Bradley Wendel

Cornell Law Faculty Publications

One of the many themes in the work of Fred Zacharias was the question of the moral status of role obligations or how roles should be moralized. This paper, written for an issue of the San Diego Law Review dedicated to the memory of Professor Zacharias, explores three alternative ways of conceiving of the relationship between morality and role obligations: strong role differentiation, which posits that roles can change the normative situation of actors; what I call the nexus view, which holds that roles are merely a shorthand for the intersection of existing ordinary moral obligations; and the concept of …

Extending The European Debt Discussion To Broader International Governance, Odette Lienau

Cornell Law Faculty Publications

Although Europe is no stranger to sovereign debt troubles, the focus of international debt governance for several decades has been on the developing world. Discussions surrounding the efficacy and appropriateness of crisis mechanisms have been shaped by this political reality. But the current focus on Europe itself may generate changes in how public and private actors view international debt governance and the legitimacy of crisis mechanisms. In these remarks, I will focus on two ways in which Europe might serve as a test case for broader governance practices. First, I will discuss the ramifications of the European Union’s potential adoption …

Multiplicity In Federalism And The Separation Of Powers, Josh Chafetz

Cornell Law Faculty Publications

By highlighting multiplicity in the federalism context, Alison LaCroix’s new book does constitutional scholarship a great service. Her tracing of the federal idea in the 1760s and 1770s, as well as her tracing of jurisdictional ideas in the early Republic, is thorough and insightful. But it is unclear why her focus suddenly narrows from the federal idea—the idea that multiplicity in levels of government was a virtue rather than a vice—to federal jurisdiction. Certainly, as this Review has endeavored to show, her claim that federalism discourse after 1787 reduced entirely (or even primarily) to jurisdictional debates cannot stand.

And this …

In Defense Of Noncapital Habeas: A Response To Hoffmann And King, John H. Blume, Sheri Lynn Johnson, Keir M. Weyble

Cornell Law Faculty Publications

For decades, federal habeas corpus review of state court judgments has generated wide-ranging, sometimes heated, debate among judges, policymakers, and scholars. In their 2009 Essay, Rethinking the Federal Role in State Criminal Justice, Professors Joseph L. Hoffmann and Nancy J. King added their voices to the exchange, contending that federal habeas corpus review of noncapital state court convictions and sentences should, with narrow exceptions, be abolished. They contend that the expenditure of money, time, and effort necessary to provide review in such cases is no longer justifiable and that those resources should be redirected to creating a federal initiative for …

Defense Of The Constitutionality Of Health Care Reform, Gillian Metzger

Mercer Law Review

Along with the others, I want to thank David for organizing this panel. The great advantage of going last is that the terms of the debate over the Affordable Care Act's constitutionality have been established by the other panelists. As a result, I am going to target my remarks on a few key points, rather than walk through a full dress review of some of the arguments. Like the others, my focus is on existing doctrine. I completely agree with Dean Chemerinsky in thinking that the Supreme Court is not going to change the key parameters of existing analysis, but …

Berghuis V. Smith: Continuing Ambiguity In Fair-Cross-Section Claims, Natalie A. Pifer

Loyola of Los Angeles Law Review

No abstract provided.

Crime And Banishment: Padilla V. Kentucky Debunks The Myth That Deportation Is Not Punishment, Lillian Chu

Loyola of Los Angeles Law Review

No abstract provided.

Attorneys Beware: Jerman V. Carlisle Holds You Liable For Technical Legal Errors Under The Fdcpa, Vartan S. Madoyan

Loyola of Los Angeles Law Review

No abstract provided.

United States V. Comstock: The Next Chapter In The Struggle Between State And Congressional Power, Lauren Kulpa

Loyola of Los Angeles Law Review

No abstract provided.

American Needle, Inc. V. National Football League: Justice Stevens’ Last Twinkling Of An Eye, Katherine Kaso-Howard

Loyola of Los Angeles Law Review

No abstract provided.

Navigating The Course Of Relation Back: Krupski V. Costa Crociere S.P.A. And Standardizing The Relation-Back Analysis, Heather Zinkiewicz

Loyola of Los Angeles Law Review

No abstract provided.

Merck & Co. V. Reynolds: Sarbanes-Oxley’S Perplexing Statute Of Limitations, Jordan Ludwig

Loyola of Los Angeles Law Review

No abstract provided.

Genetically Engineered Crops, It’S What’S For Dinner: Monsanto Co. V. Geertson Seed Farms, Noreen Guregian

Loyola of Los Angeles Law Review

No abstract provided.

Arbitrating Arbitrability: How The U.S. Supreme Court Empowered The Arbitrator At The Expense Of The Judge And The Average Joe, Jennifer Schulz

Loyola of Los Angeles Law Review

No abstract provided.

Schwab V. Reilly: An Exemption From The Duty To Object To Exemptions, Anna Do

Loyola of Los Angeles Law Review

No abstract provided.

Essay: Justice Stevens’ Jurisprudence Of Respect, Nancy S. Marder

Loyola of Los Angeles Law Review

No abstract provided.

Justice Stevens And The Obligations Of Judgment, David E. Pozen

Loyola of Los Angeles Law Review

No abstract provided.