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Judith A.M. Scully, Book Review, Raised by the Courts: One Judge’s Insight into Juvenile Justice (2010), 35 Champion 61 (2011)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, The Complexities of Judicial Takings, 45 U. Rich. L. Rev. 903 (2011)Clicking on the button will copy the full recommended citation.
In last term’s Stop the Beach Renourishment Inc. v. Florida DEP, the Supreme Court for the first time squarely confronted the question of whether a judicial action could ever be considered an unconstitutional taking of private property. The Court unanimously rejected the judicial takings claim, but the justices issued a highly fragmented set of opinions. No justice was able to command a majority on any of the major conceptual issues presented by the judicial takings question. As a result, the Court dramatically raised the profile of judicial takings question, but left all of the major issues open.
In this article, I argue that the judicial takings issues are even more complicated than the Court’s fractured opinions suggest. In particular, I argue that three factual distinctions among types of cases that largely were ignored in Stop the Beach can lead to dramatically different outcomes in matters of judicial takings standards, procedures, and remedies. I analyze each of the substantive and procedural issues raised by judicial takings in light of these factual distinctions. Along the way, I argue that judicial takings does not require a unique standard different from the Court’s existing takings standards, and that judicial takings (and regulatory takings more broadly) should apply to government actions that mandate transfers of private property to public ownership, but not to government actions that mandate transfers of property between private persons.
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Lance Long and William F. Christensen, Does the Readability of Your Brief Affect Your Chance of Winning an Appeal? An Analysis of Readability in Appellate Briefs and Its Correlation with Success on Appeal, 12 J. App. Prac. & Process 145 (2011)Clicking on the button will copy the full recommended citation.
The study described in this article suggests that the length of sentences and words, which is “readability” for our purposes, probably does not make much difference in appellate brief writing. First, we found that most briefs are written at about the same level of readability; there simply is not much difference in how lawyers write appellate briefs when it comes to the length of sentences and words. Furthermore, the readability of most appellate briefs is well within the reading ability of the highly educated audience of appellate judges and justices. Second, the relatively small differences in readability are not related to the outcome of an appeal in a statistically significant manner. Our study did show, however, that the opinions of judges and justices are less readable than lawyers’ briefs and that the opinions of dissenting judges or justices are the least readable of all the appellate writing we analyzed. Ultimately, we conclude that readability, as determined by the Flesch Reading Ease scale, is a non-issue for legal writing at the appellate level. Although readability did not appear to be related to outcome, there was a statistically significant relationship between the readability of the courts’ majority and dissenting opinions. Dissenting opinions are decidedly less readable than majority opinions.
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Roy Balleste, A Primer on Internet Governance: A New Field of Study Emerges in the Internet Age, 15 AALL Spectrum 8 (2011)Clicking on the button will copy the full recommended citation.
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Joseph F. Morrissey, The CISG: A Lex Amicorum, in International Arbitration and International Commercial Law: Synergy, Convergence and Evolution--Liber Amicorum Eric Bergsten (S. Kroll et al. eds., Wolters Kluwer, 2011)Clicking on the button will copy the full recommended citation.
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Jaclyn Lopez and Catherine Kilduff, Dispersants: The Lesser of Two Evils or a Cure Worse than the Disease, 16 Ocean and Coastal Law Journal 375 (2011)Clicking on the button will copy the full recommended citation.
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Ciara Torres-Spelliscy, Corporate Political Spending & Shareholders Rights: Why the U.S. Should Adopt the British Approach, in Risk Management and Corporate Governance (Abolharran Jalilvand and Tassos Malliaris eds., Routledge, 2011)Clicking on the button will copy the full recommended citation.
American shareholders lack the ability to consent to political spending by corporations. Indeed, because of gaps between corporate and campaign finance law, U.S. corporations can make political expenditures without giving shareholders any notice of the spending either before or after the fact. This is problematic because the political interests of the managers who spend the corporate money may diverge from the political interests of shareholders who provided the funding.
By contrast, British companies must seek permission from shareholders to make political expenditures under the Political Parties, Elections and Referendums Act of 2000 and must report such spending to U.K. shareholders on an annual basis.
Shareholders in U.S. companies have been protected by a century’s worth of election laws which limited the amount of money that could be spent in federal elections by corporations, unions and banks. Corporations are required to pay for federal political expenditures through corporate political action committees (PAC's). This PAC requirement was struck in Citizens United, a Supreme Court decision dated January 21, 2010.
The federal corporate PAC requirement safeguarded the interests of shareholders in particular because most investors are unaware of how, when or why corporations make political expenditures. For example, in states that lack federal-style election rules, corporations may give political donations directly from their corporate treasuries (money in the corporate treasury includes funds from the sale of stocks and products). Corporations can spend money on politics without consent from or notice to shareholders.
The shareholder may not know who the corporation supports or may even actively disagree with who the corporation supports. By contrast, if a shareholder chooses to give to a corporate PAC, then the shareholder is fully on notice that the money will be used for a political purpose and there is meaningful consent in the transaction.
The laws that require corporations to pay for political expenditures through corporate PAC's are under legal attack in the courts. Most recently, the Supreme Court overruled Austin v. Michigan Chamber of Commerce and part of McConnell v. Federal Election Commission-two cases which required corporations to conduct political spending through corporate PAC's.
The Supreme Court used Citizens United as an opportunity to expand corporate speech rights. This new development in the law has hurt shareholders by allowing corporate managers to use corporate treasury funds to make political expenditures.
A recent study, “Corporate Political Contributions: Investment or Agency?” by Aggarwal, Meschke, and Wang (2009) found that large corporate political expenditures are linked with lower shareholder value and poor corporate management. In other words, managers make political donations because they want to, not because giving will necessarily benefit the corporations they manage. Overruling Austin and part of McConnell will give poor managers even more venues in which to spend shareholders’ investments on political expenses.
By exploring both campaign finance law and corporate law, this paper, “Political Spending & Shareholders’ Rights,” will argue that the U.S. should adopt the British approach to corporate political expenditures. In the first instance, U.S. corporations should disclose their political spending directly to shareholders and they should give shareholders the opportunity to consent to political spending. These reforms will improve corporate governance and minimize corporate risk.
The need for this reform has become heightened with the Supreme Court’s Citizens United decision. In a world where corporations can spend an unlimited amount corporate treasury funds on federal and state elections, shareholders will need new protections to guard against self-interested political spending by corporate managers.
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Royal C. Gardner, Stacking Opportunities and Risks in Environmental Credit Markets, 41 Envtl. L. Reporter 10121 (2011)Clicking on the button will copy the full recommended citation.
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Jaclyn Lopez, What We Should Learn from the BP Spill, 20 Envtl. L. Section of the State Bar of California: Envtl. L. News 35 (2011)Clicking on the button will copy the full recommended citation.
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Tim Kaye, Sneering But Adhering: Communication, Kelsen, and Hart’s Habit of Obedience, in Law, Justice, and Miscommunications: Essays in Applied Legal Philosophy (Tim Kaye ed., Vandeplas, 2011)Clicking on the button will copy the full recommended citation.