Note: Embryo Adoption: The Solution to an Ambiguous Intent Standard
By Molly Miller. Full text here. When a person or couple elects to use in vitro fertilization to create embryos they often end up with more embryos than they need. Most fertilization clinics now require these people to specify what they want done with the remaining embryos (destruction, storage, donation to science, or donation to others…
Continue ReadingNote: Litigating the Contours of Constitutionality: Harmonizing Equitable Principles and Constitutional Values when Considering Preliminary Injunctive Relief
By Ryan Griffin. Full text here. Preliminary injunctions are a frequently sought form of relief in public law litigation. However, federal courts are inconsistent in the tests they employ to grant or deny this relief. Two recent cases, Winter v. Natural Resources Defense Council and Planned Parenthood v. Rounds, highlight a particularly important doctrinal grey area:…
Continue ReadingResponse Article, Speaking of Silence: A Reply to Making Defendants Speak
By Donald P. Judges & Stephen J. Cribari. Full text here. In this invited reply to an article recently published in the Minnesota Law Review, we concentrate on explaining why we do not share that article’s underlying antipathy to the Fifth Amendment right to silence at trial. That antipathy, also frequently expressed by other commentators, is…
Continue ReadingHard v. Soft Law: Alternatives, Complements, and Antagonists in International Governance
By Gregory C. Shaffer & Mark A. Pollack. Full text here. Understanding the interaction of international hard and soft law in a fragmented international law system is increasingly important in a world where international regimes are proliferating, but where there is no overarching legal hierarchy. This Article responds to the existing literature on hard and soft…
Continue ReadingProperty 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…
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