Legal Studies Commons^™

The Family And Medical Leave Act Of 1993: Ten Years Of Experience: Introduction, Pauline Kim

Scholarship@WashULaw

On February 5, 1993, in a Rose Garden ceremony, President Bill Clinton signed the Family and Medical Leave Act (FMLA) into law, declaring that workers “will no longer need to choose between the job they need and the family they love.”1 The signing ceremony was significant for a number of reasons. It marked an early legislative victory for a new administration, signaling its commitment to ending gridlock in Washington. It also symbolized changing priorities: earlier versions of the legislation had twice been enacted by Congress and then vetoed by President George H.W. Bush. With its focus on the needs of …

A Complete Research Guide To The Laws Of The People's Republic Of China (Prc), Wei Luo, Joan Liu

Scholarship@WashULaw

A guide to the legal systems and laws of the PRC (based on civil law) and of the Hong Kong (based on English common law) and Macao (based on Portuguese law) Special Administrative Regions. Taiwan, with its own legal system, is not included. The guide lists English and Chinese print and nonprint resources, arranged by topic, language, and format.

The New Uniform Securities Act, Joel Seligman

Scholarship@WashULaw

In early August, the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) adopted the Uniform Securities Act (2002) at its annual meeting. At that time, there were two earlier versions of the Uniform Securities Act in force.

The Uniform Securities Act of 1956 (“1956 Act”) had been adopted at one time or another, in whole or in part, by 37 jurisdictions. The Revised Uniform Securities Act of 1985 (“RUSA”) had been adopted in only a few States. Both Acts have been preempted in part by the National Securities Markets Improvement Act of 1996 (“NSMIA”) and the Securities Litigation Uniform …

An Ethics Critique Of Interference In Law School Clinics, Robert R. Kuehn, Peter A. Joy

Scholarship@WashULaw

Law school clinics play an important role in training future lawyers and in providing legal assistance to traditionally under-represented individuals and groups. In addition to facing the legal issues present in any law practice, law clinic students and faculty are often confronted with ethical issues that lawyers representing poor and unpopular clients sometimes face - outside interference in case and client selection. This article explores the ethical considerations raised by interference in law school clinic case and client selection and limitations on the means of representation lawyers may employ in representing their clients. The article's analysis provides a useful framework …

A Normative Analysis Of The Rights And Duties Of Law Professors To Speak Out, Robert R. Kuehn

Scholarship@WashULaw

As lawyers and members of a profession dedicated to equal justice under law and public service, many law professors have stepped out of the classroom and out of traditional academic scholarship to address perceived injustices in society through efforts such as pro bono litigation and legislative drafting. However, the amount of legally-related public service work by law professors is thought to be quite modest. This article analyzes the normative bases for the rights and duties of law professors to speak out on issues of public concern. It addresses laws that affect the right of a law professor to participate in …

The Colorblind Lottery, Pauline Kim

Scholarship@WashULaw

Although the Supreme Court upheld Michigan Law School's admissions policies in Grutter, the multiple opinions in that case revealed the deep divisions that remain over the legitimacy of race-conscious policies and the meaning of equal protection. At the heart of this division lies disagreement over the concept of colorblindness. For Justices Scalia and Thomas, as well as the advocacy groups that backed the plaintiffs in Grutter and Gratz, colorblindness is an absolute imperative, prohibiting race-conscious decision-making in all but the most dire situations. This insistence on formal colorblindness has lead to the conclusion in several recent court cases that race-conscious …

Gender Contests, Susan Frelich Appleton

Scholarship@WashULaw

This contribution for the “Law, Ethics, and Gender in Medicine” column in the Journal of Gender Specific Medicine interrogates the understanding of gender itself, at a time when transgender and intersex issues were just beginning to “come out” in both popular culture and case law. Against this background, the column explores the roles that physicians have played in such gender contests and considers how evolving medical attitudes can help achieve reform.

Common Law Courts In An Age Of Equity Procedure: Redefining Appellate Review For The Mass Tort Era, Melissa A. Waters

Scholarship@WashULaw

From expansion of tort liability rules, to novel claims aggregation and settlement techniques, to statistically derived liability and damages assessments, mass tort litigation is producing unprecedented innovations at every level of the federal legal system. What is particularly striking about these innovations is that they are almost exclusively the product of a handful of federal trial judges who specialize in mass tort cases. Because appellate courts lack the necessary tools to supervise their decisions, these few mass tort trial judges are shaping the rules that govern the mass tort legal regime with little or no appellate supervision. The result is …

Conflict Of Interest And Competency Issues In Law Clinic Practice, Peter A. Joy, Robert R. Kuehn

Scholarship@WashULaw

Although clinical legal education is an established part of American legal education, few commentators have considered how the ethical issues governing lawyers' conflicts of interest and competency apply in the law school clinic context. This article fills that gap by identifying and explaining the ethical obligations law clinic students and supervising clinical faculty encounter in case and client selection due to conflict of interest and competency considerations. It analyzes various conflicts of interest due to prior, current, or future employment of law clinic students and faculty, and it explores conflicts based on the status of clinical faculty as employees of …

The Supreme Court Justice And "Boring" Cases, Neil M. Richards

Scholarship@WashULaw

This is a short essay discussing the phenomenon of boring cases at the Supreme Court. It examines two letters written by Supreme Court Justices to sick colleagues–a 1903 letter from Chief Justice E.D. White to William Day, and a 1941 letter from William O. Douglas to Hugo Black. The essay argues that one true and underappreciated measure of the worth of a Supreme Court Justice is not merely their ability to be (or at least appear to be) brilliant in the once-a-decade blockbuster cases. Instead, in selecting Supreme Court Justices, we should look just as much at their ability to …

The Changing Nature Of Federal Regulation - Dedications, Joel Seligman

Scholarship@WashULaw

In 1911 the failure of state corporation statutes to prevent securities fraud gave rise to the first significant legislative response when Kansas enacted the first well known state securities law. The law was popularly known as a “blue sky” law, because its intention was to check stock swindlers so barefaced that they “would sell building lots in the blue sky.”

After the U.S. Supreme court held that the blue sky law was constitutional in 1917, the blue sky movement swept the country. By 1933 every state except Nevada had a state securities law in effect.

The Nontrial Adversarial Model: Complex Litigation At The Millennium, Joel Seligman

Scholarship@WashULaw

During the past two decades, a non-trial adversarial model has evolved for deciding private securities law claims. Underlying this evolution are three different types of dynamics: (1) a dramatic growth in the size of securities class actions, epitomized by the Washington Public Power Supply System litigation of the 1980s and the Court’s approval of the fraud-on-the-market presumption, rather than a requirement of individual proof of fraud, in Basic, Inc. v Levinson; (2) a significant growth in the cost and litigation leverage of discovery; and (3) a fundamental shift in the political orientation of Congress in securities litigation, illustrated by the …

Bankruptcy Court Jurisdiction And Agency Action: Resolving The Nextwave Of Conflict, Rafael I. Pardo

Scholarship@WashULaw

This Comment criticizes a pair of decisions by the United States Court of Appeals for the Second Circuit, FCC v. NextWave Personal Communications, Inc. (In re NextWave Personal Communications, Inc.) and In re FCC, which held that a bankruptcy court lacks jurisdiction to determine whether the Federal Communications Commission is stayed from revoking a debtor's licenses. The Comment argues that the Second Circuit interpreted the bankruptcy court's jurisdiction too narrowly because it failed to distinguish properly between an agency's action as a creditor and as a regulator. It concludes that bankruptcy courts and courts of appeals have concurrent jurisdiction to …

Clinical Education For This Millennium: The Third Wave, Peter A. Joy, Margaret Martin Barry, Jon C. Dubin

Scholarship@WashULaw

This article focuses on the continuing transformation of legal education and the role of clinical legal education in training competent, ethical practitioners. Part I examines the primary challenges that clinicians confronted in the past: to create a clinical legal education teaching methodology and to establish viable, enduring clinical programs in law schools throughout the country. Part II discusses a variety of different models for integrating clinical methodology either throughout the curriculum or as a core feature of the curriculum. Part III analyzes a variety of the most pressing challenges and opportunities for clinical legal education and the larger enterprise of …

Beyond The Limits Of Equity Jurisprudence: No-Fault Equitable Subordination, Rafael I. Pardo

Scholarship@WashULaw

In two 1996 decisions involving equitable subordination of claims in bankruptcy cases, United States v. Noland and United States v. Reorganized CF&I Fabricators of Utah, Inc., the Supreme Court did not answer the question of whether a bankruptcy court must find creditor misconduct before it equitably subordinates a creditor's claim. This Note argues that the Court should have established a bright-line rule that requires such a finding, using prepetition, nonpecuniary loss tax penalty claims of the IRS as a model. After showing that, as codified in the Bankruptcy Code, the doctrine of equitable subordination requires a finding of creditor misconduct, …

Denying Access To Legal Representation: The Attack On The Tulane Environmental Law Clinic, Robert R. Kuehn

Scholarship@WashULaw

When people require assistance to advance public interests, rather than private interests, the lack of legal representation is even more severe—less than .001% of lawyers in the legal profession are public interest lawyers. “Although recent data are unavailable, the best available estimates suggest that the number of full-time public interest lawyers is less than one attorney for every 240,000 Americans.” Citizens advancing issues of public concern often have no choice but to turn for free assistance from law school professors or one of the nation’s law school clinics.

Attorney Expertise, Litigant Success, And Judicial Decisionmaking In The U.S. Courts Of Appeals, Stefanie A. Lindquist, Susan Brodie Haire, Roger E. Hartley

Scholarship@WashULaw

In the U.S. legal system, litigants frequently retain counsel to represent their interests in civil cases, particularly when the stakes are high. Scholarly work and anecdotal evidence suggest that variation in the quality of advocacy has the potential to affect litigant success. We examine the relationship between attorney characteristics, case outcomes, and judicial voting in products liability decisions of the U.S. Courts of Appeals. Our analysis found some differences in the levels of experience and specialization of counsel representing defendants and plaintiffs and that counsel expertise was, at times, related to litigant success. In a multivariate model of decisionmaking, judges …

Cynicism, Reconsidered, Pauline Kim

Scholarship@WashULaw

Occasionally I encounter among students the suspicion that law is nothing but politics. In the field in which I teach-employment law-this attitude amounts to the cynical belief that if judges (or at least those judges hostile to workers) can possibly find a way for the employee to lose and the employer to win, they will do so. While I must admit my own misgivings about the extent to which doctrine and precedent actually decide cases, I push these students to try to understand case outcomes as something other than pure politics. Believing that it is important for law students, as …

Identity Notes Part Ii: Redeeming The Body Politic, Adrienne D. Davis

Women, Gender & Sexuality Studies Faculty Research

These remarks were given in April 1996 at the First Annual LatCrit Conference, co-sponsored by California Western Law School and the Harvard Latino Law Review. ... Political corpus, body politic, body of law, corporate law, body of evidence, body of knowledge, the footnote. ... While the body of Christ has not been used explicitly to order secular American law and political theory, a multi-dimensional analysis of his body in Western political theory would have to include its use at a critical historic moment as an organizing metaphor for the racial order of the United States and the consolidation of the …

Bargaining With Imperfect Information: A Study Of Worker Perceptions Of Legal Protection In An At-Will World, Pauline Kim

Scholarship@WashULaw

This Article presents empirical evidence on an issue at the heart of the academic controversy over the at-will rule -- namely, whether employees have sufficient information to effectively negotiate issues of job security. Using a written survey to collect data from several hundred workers, the study documents a widespread misunderstanding of the basic default rule of employment at will. The results indicate that workers consistently overestimate their legal rights, with overwhelming majorities (as high as 89%) believing that they are legally protected against arbitrary and unjust discharges when in fact they can be dismissed at will.

These findings directly contradict …

Privacy Rights, Public Policy, And The Employment Relationship, Pauline Kim

Scholarship@WashULaw

Two well-established common law doctrines increasingly are coming into conflict. The first protects individuals from unreasonable intrusions on their privacy. The second authorizes an employer to fire its employees at will, unless a clear agreement exists to the contrary. As employees have begun to assert their common law right of privacy' in the workplace, their claims have collided headlong with the doctrine of employment at will.

Shopping For A Venue: The Need For More Limits On Choice, Kimberly Jade Norwood

Scholarship@WashULaw

In an earlier article, Professor Norwood questioned the wisdom of the Supreme Court's decision in Ferens v. John Deere Co., which allows plaintiffs to double forum-shop, i.e., to file a lawsuit in one jurisdiction and then, while retaining the advantages of that jurisdiction's laws, to transfer the lawsuit to the geographically preferred jurisdiction. There, Professor Norwood assumed that having choices about where to file lawsuits was a necessary component of America's judicial system. Below, however, Professor Norwood explores that assumption and concludes that parties should not have the unrestricted choices seemingly provided by most venue laws.

The Mandatory Disclosure System And Foreign Firms: Securities Regulation In The Apec Countries., Joel Seligman

Scholarship@WashULaw

This Article examines the disclosure requirements for foreign and domestic securities imposed by the Securities and Exchange Commission, paying special attention to the balance between investor protection and the free flow of capital internationally. As the world economy becomes increasingly global, foreign issuers and their governments, who in the past have had to meet more stringent requirements to issue their securities in the United States, are pushing for less restrictive treatment. This Article describes the progress that has been made towards this end.

The Obsolescence Of Wall Street: A Contextual Approach To The Evolving Structure Of Federal Securities Regulation, Joel Seligman

Scholarship@WashULaw

As a matter of analytical style, this article illustrates a contextualist approach. For a considerable period of time, the dominant analytical style in corporate and securities .law has been a variant of economic, or law and economics, analysis. The virtue of this type of analysis is that it focuses on what its authors deem to be crucial variables and reaches conclusions derived from the core of a specific legal problem. The defect of this type of analysis is that so much is assumed or often assumed away.

The Sec's Unfinished Soft Information Revolution, Joel Seligman

Scholarship@WashULaw

The transformation of the Securities and Exchange Commission's mandatory disclosure system represents the single most important development in the agency's greater than sixty years' experience administering disclosure requirements. Since the early 1970s, the SEC has shifted its emphasis from historical or "hard" information to its current emphasis on forward-looking information. This transformation can be termed the "soft information revolution" in the SEC's mandatory disclosure system. In terms of investor protection, the SEC's emphasis on forward-looking information has significantly improved the quality of what is mandatorily disclosed.

28 U.S.C. § 1658: A Limitation Period With Real Limitations, Kimberly Jade Norwood

Scholarship@WashULaw

Several centuries from now, when archaeologists have unearthed a copy of the Federal Reporter and turned it over to legal historians for study and analysis, our descendants will be puzzled to discover that a society in which judicial resources were such a scarce "commodity" expended so much of that "commodity" searching its state codes for "analogous" limitation periods. I doubt very much that, at least in this regard, our priorities will command much admiration.

Fixing the statute of limitation for a particular cause of action is a legislative function. Indeed, it is not a particularly difficult or complex legislative function. …

The New Corporate Law, Joel Seligman

Scholarship@WashULaw

My thesis is a simple one. In the twentieth century state corporate law norms for the large publicly held corporation have been progressively supplanted by federal standards, particularly those originating in federal securities law. This has occurred both because of the promulgation of new federal standards and because of the atrophy of state corporate law. Certain applications of this thesis are little questioned today. For instance, it is now a conventional idea that the state law applicable to insider trading has largely been ignored and has been generally displaced by such federal securities law staples as Rule 10b-5, section 16 …

The Disinterested Person: An Alternative Approach To Shareholder Derivative Litigation., Joel Seligman

Scholarship@WashULaw

Recently I had the opportunity to apply an unused procedure in a shareholder derivative litigation. In 1989 Michigan amended its Business Corporation Act to allow a court under specified circumstances to appoint a "disinterested person" to perform fact gathering functions similar to those of a German investigative judge. In 1991 I was appointed to be the disinterested person in a derivative litigation involving Rospatch Corporation. The experience persuaded me that compared to litigation and the special litigation committee, the disinterested person approach may often have significant advantages in terms of reduction of litigation costs, procedural fairness, and protection of shareholders.

Hutchins, Adler, And The University Of Chicago: A Critical Juncture, Mary Ann Dzuback

Women, Gender & Sexuality Studies Faculty Research

As dean of Yale University's Law School, Robert Hutchins stressed social science theory and research as central to the university's work. Within a few years, as president of the University of Chicago, he abandoned the social sciences for philosophy and the great books. Hutchins's conversion seems ironic because it took place at an institution renowned for the work of its faculty in social science theory and research. This article is an attempt to make sense of Hutchins's shift in thinking at a critical juncture in his life and in the university's history

The Internationalization Of The Securities Markets: Preface To A Symposium., Joel Seligman

Scholarship@WashULaw

This preface begins by tracing certain of the initial steps taken by the SEC in the internationalization of securities trading. Regulations involving issuers of new securities are discussed in two contexts. First, when foreign private issuers offer securities into the United States, and second, when securities are simultaneously offered in the United States and abroad. The preface concludes by introducing each of the articles in this symposium.