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Jaclyn Lopez, Endocrine-Disrupting Chemical Pollution: Why the EPA Should Regulate These Chemicals Under the Clean Water Act, 10 Sustainable Development Law & Policy (2010)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, With Bases Loaded, Alito Hits a Home Run, 63 Vand. L. Rev. En Banc 73 (2010)Clicking on the button will copy the full recommended citation.
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Royal C. Gardner and Theresa J. Pulley Radwan, Corporate Shell Games: LLPs, LLCs, and Responsibility for Mitigation Sites, 31 Nat'l Wetlands Newsletter 6 (2009)Clicking on the button will copy the full recommended citation.
Determining who is legally responsible for a wetland mitigation site is not always a straight-forward process. A wetland regulator provided us a portion of a mitigation bank application that referred to a corporation and its officers, an LLP and two LLCs. This article explains what LLPs and LLCs are, and why many mitigation bank operators opt for these business forms. We then walk through the mitigation bank document itself to try to unravel which entity actually would be responsible for the mitigation bank site. The article concludes with recommendations that wetland regulators should consider when evaluating mitigation proposals involving LLPs and LLCs, whether affiliated with a mitigation bank or not. While there is no particular reason to be worried about LLPs and LLCs as compared to traditional corporations, regulators should consider requiring notice for any changes in the ownership and management of these entities. Regulators should also ensure that financial assurances such as letters of credit and performance bonds expressly cover the entity (whether LLP, LLC, or another form) responsible for the mitigation site.
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Luz Estella Nagle, National Security Issues with Mexico: A Tale of a Troubled State, 19th Annual Review of the Field of National Security Law (2009)Clicking on the button will copy the full recommended citation.
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Robyn Powell and Dennis Heaphy, Civil Rights, Disability, and Health Care: Why Doesn’t Anyone Care?, 5 Health Law Reporter 24 (2009)Clicking on the button will copy the full recommended citation.
In light of the recent discussions on national health reform, which so far have not focused on people with disabilities, this article serves as a call to action for the legal community to join in the local efforts to ensure that the civil rights of people with disabilities do not continue to be violated resulting in gross health disparities. This article provides readers with an understanding of a largely overlooked health care crisis through the lens of the disability rights movement.
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Andrew D. Appleby and Matthew D. Montaingne, Three’s Company: Stone v. Ritter and the Improper Characterization of Good Faith in the Fiduciary Duty Triad, 62 Ark. L. Rev. 431– (2009)Clicking on the button will copy the full recommended citation.
In Stone v. Ritter, the Delaware Supreme Court attempted to end the debate revolving around good faith’s role in director fiduciary liability. The Stone court finally cleared up some doctrinal issues when it explicitly stated that good faith is not a freestanding duty on the level of care and loyalty. However, the court created a host of new questions and concerns - particularly in director oversight cases - when it included good faith solely as a subsidiary element of the duty of loyalty. The Stone court incorrectly held that the fiduciary duty of loyalty is not limited to cases involving a conflict of interest; loyalty also now encompasses director oversight cases. The court should have recognized that good faith is a necessary subsidiary element of both the duty of loyalty and the duty of care, and left director oversight in the realm of care.
The extent of director oversight liability under Stone remains to be seen. Whether the Chancery can appropriately apply the reformulated Caremark/Disney standard is anybody’s guess. If the recent contradictory decisions in Bear Stearns, Ryan, and Bridgeport are any indication, clarity and consistency in Delaware fiduciary law is a chimera.Fortunately, the Delaware Supreme Court’s cogent analysis in Lyondell, however, should provide some much needed post-Stone guidance.
In the wake of the current economic crisis, the Delaware courts need to recognize that the Stone formulation of good faith is inaccurate. The Delaware courts must also recognize that good faith is the overarching fiduciary goal, and thus, a necessary element of both the duty of loyalty and the duty of care.
This article examines Stone, including the factual basis and rationale of both the Chancery Court and the Delaware Supreme Court. This article then provides a concise history of Delaware’s constant repositioning of directors’ fiduciary duties. The article then analyzes the Delaware Supreme Court’s doctrinal shift regarding good faith and the duty of loyalty. This analysis includes both the conceptual and practical implications of good faith as a component of loyalty. This article also analyzes the Stone court’s improper repositioning of Caremark cases solely into the realm of loyalty. Additionally, this article analyzes the potential changes in section 102(b)(7) after the Delaware Supreme Court’s improper shift of good faith from care to loyalty, as well as the most recent - and inconsistent - post-Stone cases. This article concludes with a glance at the future of director liability and a proposed solution to the new quagmire presented by Stone. In brief, the Delaware courts need to recognize that good faith is the overarching fiduciary goal, and thus a necessary element of both the duty of loyalty and the duty of care. Further, the Delaware courts need to reverse Stone’s reframing of director oversight claims as primarily loyalty claims and reincorporate the appropriate Caremark duty of care framework.
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Linda S. Anderson, Adding Players to the Game: Parentage Determinations When Assisted Reproductive Technology is Used to Create Families, 62 Ark. L. Rev. 29 (2009)Clicking on the button will copy the full recommended citation.
Though some forms of assisted reproduction (ART) have been available for a long time, more recent scientific advances in reproductive technology created opportunities for more people to build families, but consequently caused confusion about who should be considered a parent. In addition, changing family relationships have caused questions about who should be considered a parent.
This article attempts to compare the way various courts identify the legal parents of a child born through assisted reproductive technology. After updating existing discussions about the way parentage decisions are made in ART situations the article provides additional support for creating a predictable and consistent approach to situations that scientific advances force courts and legislatures to address.
With little statutory guidance and constrained by individual and varying state law and public policy, courts have attempted to fashion results while generally trying to avoid usurping legislative powers. This article suggests that until legislatures establish clear guidelines for identifying parents, intent to create a child to raise as one’s own should determine parentage when any form of ART is utilized. In fact, as legislatures tackle this complicated issue, intent can provide a reasonable determining factor of a legal parent.
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Kristen David Adams, Homeownership: American Dream or Illusion of Empowerment?, 60 S.C. L. Rev. 573 (2009)Clicking on the button will copy the full recommended citation.
In this Article, I endeavor to show that because Americans value homeownership so much — in fact, more than we should — we have placed ourselves in an untenable position as a country and now find ourselves in the midst of a well-documented housing crisis. In addition, we have used the primacy of homeownership as an excuse not to fulfill our country’s commitment to provide housing assistance to those persons who need it most. We have done this in part by undervaluing quality, affordable rental property (and quality renters) just as we have overvalued homeownership (and homeowners). Some have used the word “myth” in talking about the American view of homeownership; however, the word I prefer is “illusion,” which I intend to be less pejorative while still acknowledging that homeownership does not always deliver the benefits it promises, particularly for lower income homeowners. This Article is not particularly concerned with the question of who is to blame for the current housing crisis, because I believe fault in this context is too complicated to be laid at the feet of just one party or another. Part II of this Article examines the median American household, mortgage, and house, concluding that many Americans cannot afford the homes they have purchased. Next, Part III addresses the question of why our country overvalues homeownership to such an extent that it now finds itself in this position. In doing so, Part III examines the many benefits that homeownership supposedly provides to both individuals and society. Part IV contrasts society’s customary treatment of homeownership as a virtue with its stigmatization of renters, concluding that the latter is unfounded. Part IV also explores how the very interests that have promoted homeownership have also benefited most from its growth. Part V considers several factors that contributed to the real estate boom that culminated in the mid-2000s, including homeowners’ treatment of mortgage debt as wealth, financing options such as no-down-payment and interest-only loans, increased utilization of home equity loans, and certain features of subprime lending. Part VI concludes by suggesting that universal homeownership does not provide the benefits Americans have come to expect from it and proposing four steps policymakers should follow in creating healthier, more sustainable housing policy.
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Michael S. Finch, Judicial Evaluation of Traumatically Induced Fybromyalgia, 2 Psychological Injury and the Law 24 (2009)Clicking on the button will copy the full recommended citation.
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Susan D. Rozelle, Pure Insanity, 42 Tex. Tech L. Rev. 543 (2009)Clicking on the button will copy the full recommended citation.