Law Commons^™

Foreword, Michael H. Posner

The University of New Hampshire Law Review

[Excerpt] "I first met John Hutson in 2005 when I was the Executive Director of Human Rights First. Human Rights First was working to challenge the use of cruelty by U.S. officials in security detentions, practices that had been used at Abu Ghraib, Guantanamo, and elsewhere after the attacks on September 11, 2001. We knew that the human rights community acting alone could not influence this debate, so we went looking for national security experts to help us challenge these practices. "

Obama's Failed Attempt To Close Gitmo: Why Executive Orders Can't Bring About Systemic Change, Erin B. Corcoran

The University of New Hampshire Law Review

[Excerpt] “In the lead up to the 2008 Presidential election, there was broad bipartisan support for closing the detention facility at Guantanamo Bay. President Bush was quoted as saying, “I’d like it to be over with.” John McCain and General Colin Powell echoed similar sentiments for ending detention at the naval base. In addition to prominent Republicans calling for closure, public opinion began to support finding alternative solutions for prisoners held at Guantanamo Bay.

Barack Obama wasted no time once sworn into office executing his central campaign promises. On January 22, 2009, two days after becoming the forty-fourth President of …

Procedural Justice Post-9/11: The Effects Of Procedurally Unfair Treatment Of Detainees On Perceptions Of Global Legitimacy, David Welsh

The University of New Hampshire Law Review

[Excerpt] “The Global War on Terror has been ideologically framed as a struggle between the principles of freedom and democracy on the one hand and tyranny and extremism on the other. Although this war has arguably led to a short-term disruption of terrorist threats such as al-Qaeda, it has also damaged America’s image both at home and abroad. Throughout the world, there is a growing consensus that America has “a lack of credibility as a fair and just world leader.” The perceived legitimacy of the United States in the War on Terror is critical because terrorism is not a conventional …

Misalignments In Tort Law, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

In negligence law, the risks taken into account by courts when setting the standard of care are the same risks considered when imposing liability and awarding damages. I call this the "alignment principle." One objective of this Article is to expose exceptions to the alignment principle, which I call "misalignments." In cases of misalignment, the risks that are accounted for in setting the standard of care are different from the risks for which liability is imposed and damages are awarded. A second objective of this Article is to suggest modifications to the law when misalignments cannot be justified. The most …

Insider Trading And Ceo Pay, M. Todd Henderson

Vanderbilt Law Review

This Article presents evidence showing that boards of directors "bargain" with executives about the profits they expect to make from trades in firm stock. The evidence suggests that executives whose trading freedom increased using Rule 10b5-1 trading plans experienced reductions in other forms of pay to offset the potential gains from trading. There are two potential benefits from trading-portfolio optimization and informed trading profits- and this Article allows us to isolate them. The data show that boards pay executives in a way that reflects the profits they are expected to earn from informed trades. It also casts some doubt on …

Evolving Executive Equity Compensation And The Limits Of Optimal Contracting, David I. Walker

Vanderbilt Law Review

Executive equity compensation in the United States is evolving. At the turn of the millennium, stock options dominated the equity pay landscape, accounting for over half of the aggregate ex ante value of senior executive pay at large public companies, while restricted stock and similar compensation accounted for only about ten percent. Beginning in 2006, stock grants have displaced options as the single largest component of senior executive compensation at these firms. Accompanying this shift has been increased variation among companies in their relative emphasis on stock and options in equity pay packages. Both phenomena provide an opportunity for a …

Executive Compensation Consultants And Ceo Pay, Martin J. Conyon

Vanderbilt Law Review

This Article surveys recent empirical studies on the relation between compensation consultants and CEO pay. The economic rationale for using executive compensation consultants is that they supply valuable data, information, and professional expertise to client firms. However, critics argue that the consultant's independence might be compromised because of conflicts of interest arising from the cross selling of business services or because of the consultant's desire to obtain repeat business. The emergent empirical evidence suggests that pay consultants are important in explaining executive compensation, although the findings are sometimes mixed and the precise effects of consultants on pay are yet to …

Paying For Advice: The Role Of The Remuneration Consultant In U.K. Listed Companies, Ruth Bender

Vanderbilt Law Review

Compensation consultants are an integral part of the process of determining executive pay in large listed companies. This study reports interview-based research with protagonists in setting executive compensation in twelve FTSE 350 companies and addresses why the consultants are used, what they do, and how they are perceived.

Consultants have several important roles. Firstly, they act as experts, providing market data and advising on plan design and implementation. Because of this role, they not only guide their clients as to the requirements of the market, they also help create those selfsame market practices and norms. They also have a role …

Human Trafficking In San Luis Obispo County: Assessing The Local Law Enforcement's Mechanisms For Prevention, Paige K. Wopschall

Social Sciences

No abstract provided.

Biasing Brands, Jeremy N. Sheff

Cardozo Law Review

The dominant search-costs model of trademark law posits that consumers choose products to satisfy their preferences by analytically mapping those preferences to product information that trademarks efficiently provide. This Article tests these descriptive claims against empirical and theoretical research in marketing and consumer psychology, particularly the concept of "brand equity": the value to a firm or its customers of a brand and of the firm's efforts to build and maintain that brand.

Internally complex brand equity models, juxtaposed with empirical findings in related psychology and marketing research, challenge the descriptive accuracy of the search-costs model. In particular, branding efforts can …

Law, History, And Feminism, Tracy A. Thomas

Akron Law Faculty Publications

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history. The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two …

Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas

Akron Law Faculty Publications

In the mid-nineteenth century, Elizabeth Cady Stanton used narratives of women and their involvement with the law of domestic relations to collectivize women. This recognition of a gender class was the first step towards women’s transformation of the law. Stanton’s stories of working-class women, immigrants, Mormon polygamist wives, and privileged white women revealed common realities among women in an effort to form a collective conscious. The parable-like stories were designed to inspire a collective consciousness among women, one capable of arousing them to social and political action. For to Stanton’s consternation, women showed a lack of appreciation of their own …

A Quest For Fair And Balanced: The Supreme Court, State Courts, And The Future Of Same-Sex Marriage Review After Perry, Chase D. Anderson

Duke Law Journal

Gay rights advocates and social conservatives alike have criticized the Supreme Court for its recent decisions concerning sexual orientation. An examination of those decisions reveals that, taken together, they represent a surprisingly careful balance. The result is a principle of neutrality in which the Court has effectively demanded that states refrain from taking either side in the culture war surrounding sexual orientation. The true test of that neutrality principle will arise when the Court considers the constitutionality of a same-sex marriage ban. Thus far, challenges have taken place in state courts under state constitutions; those judges appear to have been …

Journal Staff

Duke Law Journal

No abstract provided.

Provocation Manslaughter As Partial Justification And Partial Excuse, Mitchell N. Berman, Ian P. Farrell

William & Mary Law Review

The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. The defense traces back to the twelfth century and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal law
theorists.

The dominant scholarly view holds that provocation is best explained and …

Mismatch: The Misuse Of Market Efficiency In Market Manipulation Class Actions, Charles R. Korsmo

William & Mary Law Review

Plaintiffs commonly bring two distinct types of claims under section 10(b) of the Securities Exchange Act of 1934: (1) claims of material misrepresentations or omissions, and (2) claims of tradebased market manipulation. Despite the distinctive features of the two types of claims, courts have tended to treat them identically when applying the “fraud on the market” doctrine. In particular, courts have required both types of plaintiffs to make identical showings that the relevant security was traded in an “efficient market” in order to gain a presumption of reliance. The reasons for requiring such a showing by plaintiffs in a misrepresentation …

What To Do With Daubert: How To Bring Standards Of Reliable Scientific Evidence To The National Vaccine Injury Compensation Program, Brandon L. Boxler

William & Mary Law Review

No abstract provided.

Causing Damage Without Authorization: The Limitations Of Current Judicial Interpretations Of Employee Authorization Under The Computer Fraud And Abuse Act, Garrett D. Urban

William & Mary Law Review

No abstract provided.

Symposium On Executive Compensation Keynote Address, Kenneth R. Feinberg

Vanderbilt Law Review

I want to thank Richard Nagareda for inviting me to Vanderbilt; he's an old friend. I am very honored to return to Vanderbilt. I taught a course at Vanderbilt, and I loved teaching here. I loved going to the Country Music Hall of Fame and learning more about Patsy Cline and Johnny Cash. Really, it was great. I've already received an invitation from Dean Jim Bradford to come back to the business school and the law school and to participate in an interdisciplinary look at executive compensation. I hope to return. But when I saw that the Vanderbilt Law Review …

Promising A Better Future But Delivering Debt: Understanding The Financial And Social Impact Of For-Profit Colleges And The Effect Of The New Program Integrity Rules., Cheryl L. Auster

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.

The Game Is Afoot!: The Significance Of Donative Transfers In The Sherlock Holmes Canon, Stephen R. Alton

Faculty Scholarship

This article presents a recently discovered and previously unpublished manuscript written by John H. Watson, M.D., and annotated by Professor Stephen Alton. Dr. Watson’s manuscript records an extended conversation that took place between the good doctor and his great friend, the renowned consulting detective Mr. Sherlock Holmes, regarding issues of gratuitous transfers of property – issues involving inheritances, wills, and trusts – that have arisen in some of the great cases solved by Mr. Holmes. This felicitous discovery confirms something that Professor Alton has long known: these gratuitous transfer issues permeate many of these adventures. Often, the action in the …

Implicit Bias And Immigration Courts, Fatma E. Marouf

Faculty Scholarship

This Article highlights the importance of implicit bias in immigration adjudication. After tracing the evolution of prejudice in our immigration laws from explicit "old-fashioned" prejudice to more subtle forms of "modem" and "aversive" prejudice, the Article argues that the specific conditions under which immigration judges decide cases render them especially prone to the influence of implicit bias. Specifically, it examines how factors such as immigration judges' lack of independence, limited opportunity for deliberate thinking, low motivation, and the low risk of judicial review all allow implicit bias to drive decision-making. The Article then recommends certain reforms, both simple and complex, …

Nonprofit Executive Compensation, Terri Lynn Helge, David M. Rosenberg

Faculty Scholarship

Excessive compensation paid to nonprofit executives and board members is one of the key issues concerning charitable organizations that garner the attention of the general public and Congress. Charitable organizations may pay reasonable compensation to their directors, executive officers and employees for their services without violating applicable federal tax law or state law. The determination of reasonable compensation depends on several factors – the budget of the organization being the most significant factor. Other factors include the number of employees of the organization, the particular sector of the charitable community served by the organization, the geographic location of the organization, …

The Development Of Individual Standing In International Security, Cora True-Frost

Cardozo Law Review

Until quite recently, individuals were not able to challenge United Nations Security Council (Council) action through international-level mechanisms, and were forced to rely instead on United Nations (UN) member states in their attempts to obtain relief This lack of direct redress held even if no member state intermediary was available, such as when individuals' assets were frozen or they had been detained under Council authority. Within the last decade, however, the Council granted some such individuals administrative standing to challenge its authority. After so many years of denying individuals standing in international security, the Council's about-face is puzzling. It is …

Vestiges Of Jurisdiction: On The In Rem Nature Of Pre-Judgment Attachment In New York, Michael A. Mcgarry Jr.

Cardozo Law Review

No abstract provided.

Sorry Seems To Be The Hardest Word: The Fair Sentencing Act Of 2010, Crack, And Methamphetamine, Kyle Graham

University of Richmond Law Review

No abstract provided.

Recognition: A Case Study On The Original Understanding Of Executive Power, Robert J. Reinstein

University of Richmond Law Review

No abstract provided.

The Recent Amendments To Ucc Article 9: Problems And Solutions, David Frisch

University of Richmond Law Review

This article examines three of the forthcoming amendments to Article 9 in some detail: (1) the required name of an individual on a financing statement; (2) the perfection of collateral following the debtor's relocation to a new jurisdiction; and (3) collateral acquired by a new debtor. In the interest of brevity, the discussion of other, less noteworthy, amendments of the statutory text and Official Comments is not as complete. The primary purpose of this article is to offer guidance to legal professionals confronting particular issues under current and future Article 9.

Comparing Ceo Employment Contract Provisions: Differences Between Australia And The United States, Randall Thomas, Jennifer G. Hill, Ronald W. Masulis

Vanderbilt Law School Faculty Publications

The results of our comparison of U.S. and Australian contracts offer some interesting contrasts with several earlier studies that compare U.S. and U.K. CEO compensation. In those prior studies, the authors conclude that U.S. CEOs' compensation is significantly higher than U.K. CEOs' compensation. What is interesting about our initial results is that U.S. CEOs clearly do not have higher base salaries in comparison to Australia. On the other hand, U.S. contracts are much more likely to include restricted stock and stock option features, which generally require payment after a CEO remains at the firm a fixed number of years, typically …

Executive Compensation In The Courts: Board Capture, Optimal Contracting, And Officers' Fiduciary Duties, Randall Thomas, Harwell Wells

Vanderbilt Law School Faculty Publications

This Article proposes a new approach to monitoring executive compensation. While the public seems convinced that executives at public corporations are paid too much, so far attempts to rein in executive compensation have met with little success. Several approaches have been tried - requiring large pay packages to consist predominantly of incentive pay, new procedures for approving pay, mobilization of public outrage at giant compensation packages. None, however, has stemmed the growth of executive compensation, or convinced opponents of large pay packages that such pay is either fair or deserved. Here we suggest a new approach, one that turns to …