Volume 67 Category
Regulation by Hypothetical
Oct. 17, 2014—Regulation by Hypothetical ABSTRACT A new paradigm is afoot in banking regulation—and it involves a turn toward the more speculative. Previous regulatory instruments have included geographic restrictions, activity restrictions, disclosure mandates, capital requirements, and risk management oversight to ensure the safety of the banking system. This Article describes and contextualizes these regulatory tools and shows...
The Language of Mens Rea
Oct. 17, 2014—The Language of Mens Rea Appendix B: Full Text of Scenarios in the Revised MPC Definitions Experiment Appendix B: Full Text of Scenarios in the Signal Variant and Revised Recklessness Experiments ABSTRACT This Article empirically tests two key questions. First: How sensitive are jurors to variations in the language that delineates the criminal mental state...
Speech Beyond Borders: Extraterritoriality and the First Amendment
Oct. 17, 2014—Speech Beyond Borders: Extraterritoriality and the First Amendment ABSTRACT Does the First Amendment follow the flag? In Boumediene v. Bush, the Supreme Court categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad. Instead, the Court made the application of such rights, the First Amendment...
Trademarked for Death? A Licensee’s Trademark Rights After an Executory Contract is Rejected in Bankruptcy
Oct. 17, 2014—Trademarked for Death? A Licensee’s Trademark Rights After an Executory Contract Is Rejected in Bankruptcy ABSTRACT Upon declaring bankruptcy, a licensor of a trademark is given the option to “reject” its license agreements with trademark licensees. Due to the absence of trademarks from the definition of “intellectual property” in the Intellectual Property Licenses in Bankruptcy...
Keep Your Friends Close: A Framework for Addressing Rights to Social Media Contacts
Oct. 17, 2014—Keep Your Friends Close: A Framework for Addressing Rights to Social Media Contacts ABSTRACT The proliferation of social media poses numerous new challenges that require the law to find creative solutions. One pressing legal question is who has the superior right to social media contacts as between an employee who manages a company’s social media...
Confrontation and the Law of Evidence: Can the Language Conduit Theory Survive in the Wake of Crawford?
Oct. 17, 2014—Confrontation and the Law of Evidence: Can the Language Conduit Theory Survive in the Wake of Crawford? ABSTRACT The interrogation of non-English-speaking defendants by government officials usually requires the aid of an interpreter. In the event that the interpreter is unavailable to testify to the truth of his translations in court and a third-party witness...
“Sticky” Arbitration Clauses? The Use of Arbitration Clauses After Concepcion and Amex
Jun. 14, 2014—Sticky Arbitration Clauses? We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. The Supreme Court’s decision in Concepcion led commentators to predict that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their...
Enjoining Abuse: The Case for Indefinite Domestic Violence Protection Orders
Jun. 14, 2014—Enjoining Abuse- The Case for Indefinite Domestic Violence Protection Orders While countless studies demonstrate the complex and dangerous nature of intimate partner abuse, most jurisdictions permit only the entry of yearlong domestic violence protection orders. Judges may assume that danger ceases once the order takes effect, but evidence of the recurrent nature of violence demonstrates...
In Defense of American Criminal Justice
Jun. 14, 2014—In Defense of American Criminal Justice
Is FINRA a State Actor? A Question that Exposes the Flaws of the State Action Doctrine and Suggests a Way to Redeem It
Jun. 14, 2014—Is FINRA a State Actor?
Making or Breaking Your Billion Dollar Case: U.S. Judicial Assistance to Private International Arbitration Under 28 U.S.C. § 1782(a)
Jun. 14, 2014—Making or Breaking Your Billion Dollar Case
Tentative Interpretations: The Abracadabra of Administrative Rulemaking and the End of Alaska Hunters
May. 16, 2014—Tentative Interpretations- The Abracadabra of Administrative Rulemaking and the End of Alaska Hunters
Save Now, Win Later: Removing Statutory Barriers to Prize-Linked Savings Initiatives
May. 16, 2014—67 Vand. L. Rev. 907 – Watford
Prisoners and Habeas Privileges Under the Fourteenth Amendment
May. 16, 2014—Prisoners and Habeas Privileges Under the Fourteenth Amendment The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes. The strongest existing argument that state prisoners...
Enforcement Discretion and Executive Duty
May. 16, 2014—67 Vand. L. Rev. 671 – Price Recent Presidents have claimed wide-ranging authority to decline enforcement of federal laws. The Obama Administration, for example, has announced policies of abstaining from investigation and prosecution of certain federal marijuana crimes, postponing enforcement of key provisions of the Affordable Care Act, and suspending enforcement of removal statutes against...
The Case for a Market in Debt Governance
May. 16, 2014—67 Vand. L. Rev. 771 – Yadav Scholars have long lamented that the growth of modern finance has given way to a decline in debt governance. According to current theory, the expansive use of derivatives that enable lenders to trade away the default risk of their loans has made these lenders uninterested, even reckless, when...