Fiduciaries with Conflicting Obligations
By Steven L. Schwarcz. Full text here. This Article examines the dilemma of a fiduciary acting for parties who, as among themselves, have conflicting commercial interests—an inquiry fundamentally different from that of the traditional study of conflicts between fiduciaries and their beneficiaries. Existing legal principles do not fully capture this dilemma because agency law focuses primarily…
Continue ReadingJudicial Discipline and the Appearance of Impropriety: What the Public Sees Is What the Judge Gets
By Raymond J. McKoski. Full text here. In order to promote public trust in the independence and impartiality of the judicial system, judges are required to forego a litany of professional and personal behaviors deemed to be inconsistent with the role of the neutral magistrate. For example, codes of judicial conduct prohibit ex parte communications, the…
Continue ReadingWho's Afraid of Law and the Emotions?
By Kathryn Abrams & Hila Keren. Full text here. Law and emotions scholarship has reached a critical moment in its trajectory. It has become a varied and dynamic body of work, mobilizing diverse disciplinary understandings, to analyze the range of emotions that implicate law and legal decisionmaking. Yet mainstream legal academics have often greeted it with…
Continue ReadingNote: Challenging Peremptories: Suggested Reforms to the Jury Selection Process Using Minnesota as a Case Study
By Maisa Jean Frank. Full text here. Jury selection proceeds differently in each state. Though not constitutionally mandated, each jurisdiction allows attorneys to exercise peremptory challenges as part of the process. During the past sixty years, members of the legal profession have consistently called into question the validity of this practice. Supreme Court jurisprudence gives selected…
Continue ReadingNote: The Due Process Rights of Parents to Cross-Examine Guardians Ad Litem in Custody Disputes: The Reality and the Ideal
By Emily Gleiss. Full text here. Currently, state statutes that govern guardian ad litem appointments for children in custody disputes fail to protect the due process rights of parents. Focused solely on the best interests of children, these laws provide few safeguards against the infringement of parents’ rights to the care, custody, and control of their…
Continue ReadingNote: Federal Preemption and the Rating Agencies: Eliminating State Law Liability to Promote Quality Ratings
By Timothy M. Sullivan. Full text here. The credit rating agencies remain under intense scrutiny amidst the current financial crisis. Congress is currently considering multiple proposals to alter the federal regime for regulating rating agencies. Meanwhile, large-scale investors such as the California Public Employees Retirement Services (CalPERS) have commenced major litigation to recover losses allegedly suffered…
Continue ReadingThe Role of the United States Supreme Court in Interpreting and Developing Humanitarian Law
By David Weissbrodt & Nathaniel H. Nesbitt. Full text here. In the absence of a single authoritative mechanism to interpret humanitarian law, a number of treaty bodies, national courts, regional human rights courts/commissions, international tribunals, and thematic mechanisms have been called upon to address humanitarian law issues. Prime among these institutions is the U.S. Supreme Court.…
Continue ReadingWhose Claim Is This Anyway? Third-Party Litigation Funding
By Maya Steinitz. Full text here. Third-party litigation funding, or litigation finance, is a new industry composed of institutional investors who invest in litigation by providing finance in return for an ownership stake in a legal claim and a contingency in the recovery. Its emergence has been recognized as one of the most significant developments in…
Continue ReadingErie′s Suppressed Premise
By Michael Steven Green. Full text here. The Erie doctrine is usually understood as a limitation on federal courts’ power. The Article concerns the unexplored role that the Erie doctrine has in limiting the power of state courts. According to Erie Railroad Co. v. Tompkins, a federal court must follow state supreme court decisions when interpreting…
Continue ReadingConstitutional Spaces
By Allan Erbsen. Full text here. The Article is the first to systematically consider the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. Yet despite the importance and pervasiveness of spatial references in the Constitution, commentators…
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