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Tim Kaye, The Confusion of Perspectives, Policies and Practices in Wal-Mart v. Dukes, in Wal-Mart v. Dukes: Class Actions Under Scrutiny (Tricia Gorman ed., West, 2011)Clicking on the button will copy the full recommended citation.
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Cynthia Hawkins DeBose and Darryl Wilson, Mastering Property Law (Carolina Academic Press, 2011)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli, Constitutional Traditionalism in the Roberts Court, 73 U. Pitt. L. Rev. 1 (2011)Clicking on the button will copy the full recommended citation.
The debate over the role of traditionalism in constitutional interpretation has itself become a tradition. It remains a popular and controversial topic among constitutional scholars and presents normative questions that are as divisive, difficult, and important today as at the Founding. Missing from the discussion, however, is a comprehensive account of how the Supreme Court has employed traditionalism - an approach that looks for meaning in present manifestations of longstanding practices or beliefs - in its constitutional jurisprudence. This project is the first to fill this significant gap in the literature by providing an exhaustive and systematic analysis of the Court’s use of constitutional traditionalism. This Article focuses on the Roberts Court’s first five terms to provide an empirical foundation that will not only offer previously unavailable insights into the Court’s current traditionalist practices, but will also set forth a useful framework for the ongoing normative debate over traditionalism.
This project uses content analysis of key terms to identify every instance in which the Roberts Court employed traditionalism to interpret the Constitution. More specifically, this project set out to answer the following three questions: first, how frequently does the Roberts Court employ traditionalism in its constitutional jurisprudence?, second, how robust is the Court’s use of traditionalism (i.e., is it used to interpret a broad or narrow range of constitutional provisions)?, and finally, how often and in what contexts do individual justices on the Roberts Court rely on traditionalism in their own constitutional opinions? The research provided here suggests answers to all three of these questions. First, the data indicate that traditionalism has been relied upon regularly by the Roberts Court, appearing in nearly half of the Court’s constitutional cases. Second, traditionalism is frequently applied to a wide variety of constitutional provisions: two-thirds of the constitutional provisions considered by the Roberts Court were subjected to a traditionalist analysis, and ranged from provisions pertaining to government power and structure to individual rights. Finally, the data show that although traditionalism is used more frequently by conservative justices, it is nevertheless employed by all members of the Court in a wide variety of contexts. Although there is more to learn about traditionalism’s role in the Court’s constitutional jurisprudence, this evidence makes clear that notwithstanding the normative controversy surrounding traditionalism, any future study of the workings of this Court, its members, or of the future direction of constitutional law in general must take traditionalism into account.
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Will Bunting, The Trouble with Investment Banking: Cluelessness, Not Greed, 48 San Diego L. Rev. 993 (2011)Clicking on the button will copy the full recommended citation.
We assume that the set of marketable financial instruments can be divided into two distinct categories: (1) easy-to-price and (2) difficult-to-price, and then isolate two behavioral effects as most important with respect to securities trading in difficult-to-price securities; specifically, the house-money-effect and the earned-money-effect. It is shown that these behavioral effects discourage profitable investment in research effort.
We then argue that the Private Securities Litigation Reform Act (“PSLRA”) safe harbor should not apply to investment banks that issue/underwrite difficult-to-price securities. We also advocate for the return of the private investment banking partnership as the most sensible way in which to get the relevant behavioral incentives right vis-à-vis the bank and its investor-clients and propose two regulatory measures designed to induce such banks to structure themselves as private partnerships where they are otherwise free to publicly incorporate.
Finally, we suggest that fiduciary responsibilities owed to investors by investment advisers/broker-dealers transacting in these kinds of securities must be strengthened/weakened, respectively. Current reform proposals blur the distinction between these two financial actors. We argue that the line must be drawn as bright as possible in order to make as salient as possible to investors in whom they can repose their trust and confidence. Moreover, instead of passing legislation designed to eliminate or reduce proprietary transactions, this Article argues for just the opposite – that legislation be passed to make the incentives facing broker-dealers and registered investment advisers (and investment banks as well) look more like those of the typical hedge fund – not less.
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Ciara Torres-Spelliscy and Kathy Fogel, Shareholder-Authorized Corporate Political Spending in the United Kingdom, 46 U.S.F.L. Rev. 525 (2011)Clicking on the button will copy the full recommended citation.
The U.S. is facing the advent of unfettered corporate political expenditures as a result of the U.S. Supreme Court’s Citizens United decision. This decision sets precedence to allow publicly-traded corporations to use vast amounts of corporate treasury money to fund political advertisements in federal election campaigns without any sort of disclosure or shareholder consent. Similar policy concerns have been addressed by U.K. laws in 2000. In this paper, we present evidence on the effect of the 2000 and 2006 Amendments to Companies Act of the United Kingdom that provide shareholders with the ability to consent or object to future corporate political spending and a new dual disclosure system that requires companies to report political spending to shareholders in annual reports, while the political parties to report the source of their funding to the voting public through the Electoral Commission.
We obtain data on management proposals requesting shareholder voting on future corporate political expenditure by Britain’s publicly traded companies and the actual corporate political spending. We show that the U.K. Companies Act has not acted as a ban on corporate political spending. To the contrary, companies that seek approval of political budgets nearly always get them approved by shareholders. However, the political budgets that are sought by managers and approved by shareholders are typically modest – ranging from £50,000 to £100,000. In addition, actual corporate political spending for publicly-traded companies in the U.K. is far below the overall shareholder-authorized amounts. Lastly, our data reveal that since the 2000 Amendments, political spending appears to have migrated from publicly-traded companies to privately-held companies in the past decade.
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Theresa J. Pulley Radwan, Sword or Shield: Use of Tithing to Establish Nondischargeability of Debt Following Enactment of Religious Liberties and Charitable Donation Protection Act, 19 Am. Bankr. Inst. L. Rev. 471 (2011)Clicking on the button will copy the full recommended citation.
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Darryl Wilson, The Caribbean Intellectual Property Office (CARIPO): New, Useful and Necessary, 19 Michigan State Journal of International Law 551– (2011)Clicking on the button will copy the full recommended citation.
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Joseph F. Morrissey, Lochner, Lawrence, and Liberty, 27 Ga. St. U. L. Rev. 609 (2011)Clicking on the button will copy the full recommended citation.
This article, “Taking Lochner Out of the Closet,” is at the intersection of contract law, constitutional law, and sexual orientation law. The article offers a fresh and neutral analytical framework based on liberty of contract to advance gay rights. The framework might also be applied to other areas of concern where government regulation must be justified.
With respect to gay rights specifically, many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation. Advocates frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However such arguments are often defeated by counter arguments presented with religious, moral and even emotional fervor.
This article discusses and develops an alternative analytical framework that is perhaps more neutral and less emotional than pleas for equal protection or privacy, and that might be used to critically assess such restrictions. The argument is one based on the historic principles of liberty of contract. Those principles were prevalent during what has become known as the Lochner era, an era named for the infamous case of Lochner v. New York, which was decided in 1905. (Lochner held that a statute regulating working hours of bakers was unconstitutional). The Lochner case and the era named for it was dominated by a simple presumption that people should be allowed the liberty to order their own affairs through contract and that regulatory encroachments on that liberty interest would be evaluated critically. This article argues that it is with just such a presumption that restrictions denying individuals the liberty to pursue and have a family should be evaluated and, most likely, found to be unconstitutional.
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Louis J. Virelli, Introduction, Chief Justice Roberts’ Influence on the Supreme Court, 40 Stetson L. Rev. 661 (2011)Clicking on the button will copy the full recommended citation.
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Darryl Wilson, Battle Galactica: Recent Advances and Retreats in the Struggle for Preservation of Trademark Rights on the Internet, 12 Journal of High Tech Law 1– (2011)Clicking on the button will copy the full recommended citation.