Dodd-Frank: Quack Federal Corporate Governance Round II
By Stephen M. Bainbridge. Full text here. The question before us is whether Dodd-Frank’s corporate governance provisions, like those of SOX, are mere quackery. Part I of the Article focuses on the problem of quack corporate governance regulation in the abstract. What are the defining characteristics of a quack law? Why would Congress adopt such laws?…
Continue ReadingNote: Insufficient Government Protection: The Inescapable Element in Domestic Violence Asylum Cases
By Elsa M. Bullard. Full text here. Domestic violence asylum applicants have spent years struggling to demonstrate they are a particular social group within the meaning of refugee statutes and thus worthy of asylum in the United States. Recent statements by the Department of Homeland Security (DHS) and a favorable outcome for the applicant in In…
Continue ReadingNote: The Problem with Waste: Delaware's Lenient Treatment of Waste Claims at the Demand Stage of Derivative Litigation
By Jamie L. Kastler. Full text here. This Note addresses the Delaware courts’ treatment of waste claims at the demand stage of derivative litigation. Recent Delaware opinions indicate that waste is part of the fiduciary duty of good faith. This means that directors are not protected from claims of waste by section 102(b)(7) exculpation clauses…
Continue ReadingNote: Diversity Jurisdiction and Injunctive Relief: Using "Moving-Party Approach" to Value the Amount in Controversy
By Christopher A. Pinahs. Full text here. A necessary requirement for federal diversity jurisdiction is that the amount in controversy exceeds $75,000. Injunctions, however, are not a sum certain, and courts often struggle to value this intangible form of relief for purposes of diversity jurisdiction. Further compounding this problem is the fact that injunctions often differentially…
Continue ReadingRegulating Insurance Sales or Selling Insurance?: Against Regulatory Competition in Insurance
By Daniel Schwarcz. Full text here. In certain regulatory regimes, including those governing banking and corporate law, firms are permitted to choose among multiple competing regulators. This Article examines the desirability of such regulatory competition in the context of property, casualty, and life insurance markets. It analyzes various different approaches to structuring such regulatory competition, including…
Continue ReadingConstitutional Dictatorship: Its Dangers and Its Design
By Sanford Levinson & Jack M. Balkin. Full text here. A constitutional dictatorship is a system (or subsystem) of constitutional government that bestows on a certain individual or institution the right to make binding rules, directives, and decisions and apply them to concrete circumstances unhindered by timely legal checks to their authority. Constitutional dictatorship, far from…
Continue ReadingFiduciaries 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…
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