Property Rhetoric and the Public Domain
By David Fagundes. Full text here. Those who prefer broad intellectual property rights often deploy the rhetoric of physical property. By contrast, those who are concerned about maintaining public entitlements in information resist that rhetoric. In this Article, I take this dichotomy as a starting point for investigating the power of property rhetoric as a tool…
Continue ReadingAmerican Trust Law in a Chinese Mirror
By Frances H. Foster. Full text here. Comparative law scholars use the term “legal transplant” to refer to the transfer of legal rules, institutions, and norms from one legal system to another. This Article identifies a valuable, previously unrecognized, feature of legal transplants. The transplant process can generate intensive study of the donor legal system by…
Continue ReadingCorporate Control and the Need for Meaningful Board Accountability
By Michelle M. Harner. Full text here. Corporations are vulnerable to the greed, self-dealing, and conflicts of those in control of the corporation. Courts traditionally regulate these potential abuses by designating the board of directors and senior management as fiduciaries. In some instances, however, shareholders, creditors, or others outside of corporate management influence corporate decisions and,…
Continue ReadingNote: In re the Welfare of Due Process
By Kristin K. Zinsmaster. Full text here. The juvenile justice system is not the same as when it started. This Note argues that the juvenile court has become as punitive, as public, and as formalistic as the adult system from which it was supposed to differ. Furthermore, the modern juvenile court suffers from the precise problems…
Continue ReadingNote: Credit Rating Agencies and the First Amendment: Applying Constitutional Journalistic Protections to Subprime Mortgage Litigation
By Theresa Nagy. Full text here. The First Amendment should not protect credit rating agencies for their grossly inaccurate ratings of residential mortgage-backed securities. The rating agencies played a significant role in the subprime mortgage crash and resulting financial market crisis. In past litigation, rating agencies have been successful in defending lawsuits involving claims of inaccurate…
Continue ReadingWhy Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?
By Gerard N. Magliocca. Full text here. This Article examines the failure of the incorporation doctrine following the ratification of the Fourteenth Amendment and draws some lessons from that experience for the live issue of whether the Second Amendment should apply to the States. The analysis reaches three main conclusions. First, the opinion in the Slaughter-House…
Continue ReadingReconfiguring Estate Settlement
By John H. Martin. Full text here. Probate, the judicial process for settling a decedent’s estate, has been vilified and shunned for nearly five decades. Its cost, delay, and lack of privacy motivate the public and their advisors to utilize a multiplicity of title formats and alternative devices to transfer assets at death. For some time…
Continue ReadingAgainst Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs
By Richard A. Epstein. Full text here. Although the principle of personal autonomy is commonly accepted as the proper guide for health care decisions, that principle has been conspicuously absent in the area of drug regulation, where the FDA has the unquestioned power to keep drugs off the market if it deems them either unsafe or…
Continue ReadingNote: The Protective Scope of the Fair Debt Collection Practice Act: Providing Mortgagors the Protection They Deserve from Abusive Foreclosure Practices
By Eric M. Marshall. Full text here. The Fair Debt Collection Practices Act (FDCPA) is intended to provide consumers broad protection from abusive and harassing practices of debt collectors. However, courts disagree over whether mortgage foreclosure constitutes debt collection under the Act. Several circuit courts hold that mortgage foreclosure is debt collection under the FDCPA, but…
Continue ReadingNote: Deterring Fraud to Increase Public Confidence: Why Congress Should Allow Government Employees to File Qui Tam Lawsuits
By Barry M. Landy. Full text here. Contractor fraud against the government is rampant as contractors regularly inflate the cost of their services and overcharge the government for their work. The federal False Claims Act (FCA) is the government’s most successful litigation tool for combating fraud, resulting in recoveries of approximately $22 billion since 1986. Traditionally,…
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