Categories

Number 1 January 2014
Number 2 April 2014
Number 3 May 2014
Number 4 July 2014
Number 5 September 2014
Number 6 November 2014

Teresa Drake
A Response to Aubrey Burris’s ‘Hell Hath No Fury Like a Woman Porned: Revenge Porn and the Need for a Federal Nonconsensual Pornography Statute’
Response to Aubrey Burris, Hell Hath No Fury like a Woman Porned: Revenge Porn and the Need for a Federal Nonconsensual Pornography Statute

In her thoughtful note, Aubrey Burris notes that revenge porn is readily compared to sexual harassment, domestic violence, and cyber-rape. Her note highlights that nonconsensual pornography fuels tactics of domestic abuse and sexual violence, creating an additional means of controlling and humiliating women in relationships. She argues cialis online au that using intimate images as a means of controlling women’s bodies, reputations and lives is just one of many destructive results that justify criminalizing such behavior. While her points are accurate, she skims over complexities of domestic violence when progressing to her argument that existing laws fail to adequately address the problem of revenge porn.
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Jeffrey Riley
Potential Within the Architecture: Explaining the Debate Over the Construction of Social Media
Response to Aubrey Burris, Hell Hath No Fury like a Woman Porned: Revenge Porn and the Need for a Federal Nonconsensual Pornography Statute

My intentions with this essay, which is a response to Aubrey Burris’s call for more federal oversight of the world of “revenge porn,” is not to challenge or support the explicit legal analysis, but rather contribute a voice of explanation as to why such a world exists to begin with. The answer is hidden in the deeper layers of what social media actually is: By understanding the revolutionary DNA of social media, one can begin to understand its potential uses, and by understanding its potential uses, sociological principles can be applied to figure out why exactly someone would use such a tool for nefarious purposes, like posting unapproved pornographic photos of others.
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Michael A. Olivas
In Response to Rafael I. Pardo’s The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy
Response to Rafael I. Pardo, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy

In this essay, I attempt two impossible tasks. First, limited to approximately 1,000 words, I respond to Professor Rafael Pardo’s towering 78 page article, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy. Second, I am resisting the temptation to footnote every point I make, and so resort to what is for me a radical task of not using my usual number of footnotes, in contrast to his nearly 500 (most of them heavily annotated and elaborated). There can be little doubt that Professor Pardo has done for student loan debt and its “Undue Hardship” (UH) provisions what Senator (née Professor) Elizabeth Warren did for consumer and family bankruptcy—turn it inside out, study its nooks and crannies, and explain its nuances and intricacies.
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Robert J. Rhee
A Response to Professor Rose’s ‘Shareholder Proposals in the Market for Corporate Influence’
Response to Paul Rose, Shareholder Proposals in the Market for Corporate Influence

Professor Paul Rose’s Shareholder Proposals in the Market for Corporate Influence makes a significant contribution to the literature on shareholder proposals. The empirical data on shareholder voting trends from 2003 to 2013 was informative, and the insights Professor Rose derives there from are plausible conclusions. In this short response, I provide a few additional observations. My observations stem from a different rearrangement of the categories of shareholder proposals. Once the labels for the different shareholder proposals are rearranged, additional plausible insights follow.
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Charlene D. Luke
Illuminating the Dark Matter of Intellectual Capital
Response to Lily Kahng, The Taxation of Intellectual Capital

Professor Lily Kahng’s article, The Taxation of Intellectual Capital, highlights the distortion contained in the current tax rules governing capitalization. Her article emphasizes that U.S tax law systematically fails to require capitalization for self-created, high-value intangible assets. Professor Kahng’s contribution is to situate the problem in a broader, interdisciplinary context and to use the knowledge gained from that context to suggest specific reforms. In the process, Professor Kahng explores the definitional boundaries of “intellectual capital” and considers potential objections to capitalization of the costs of intellectual capital. As a result, Professor Kahng’s article fosters a richer, contextualized conversation about a significant shortcoming of the tax system.
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Brooke D. Coleman
Easy Access to Loans, But What About Access to Justice?
Response to Rafael I. Pardo, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy

Rafael Pardo’s article, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy, thoughtfully details how, in bankruptcy litigation involving student-loan debt, repeat-player creditors have an undoubted advantage. This advantage, however, goes beyond the standard narrative of how the resource disparities between creditor and debtor result in debtor gain. As Pardo explains, the debtor faces a stacked deck in a number of respects. Indeed, a difficult burden of proof, a complex test for carrying that burden, procedural infirmities, and an arguably vexatious litigant-creditor all combine to make just—let alone successful—litigation a near impossibility for debtors. The Undue Hardship Thicket carefully demonstrates how, like civil litigation at large, bankruptcy litigation risks disadvantaging those who are most marginalized, and thus, has negative implications for access
to justice.
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Xavier Seuba
The Quantification of the Productive Inefficiencies of Patent Production
Response to William Hubbard, The Debilitating Effect of Exclusive Rights: Patents and Productive Inefficiency

Professor William Hubbard’s article, The Debilitating Effect of Exclusive Rights: Patents and Productive Inefficiency, starts by asking, “Are we underestimating the costs of patent protection?” One reaction to that initial question might be excitement that some researcher has calculated the costs and benefits of patent protection, and that Hubbard seeks to render that calculation more accurate. Indeed, Hubbard’s article identifies factors that should be —but heretofore have not been—considered in an economic analysis of patent law: the positive influence of competition on productive efficiency and the opposite effect of some patent policies, laws, and practices. But Hubbard also notes that, unfortunately, despite the abundance of economic literature regarding patents, there exists a great deal of incertitude with regards to even their conventional economic effects.
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Karen C. Burke
Comments on “Taxation of Intellectual Capital:” Better than Consumption-Tax Treatment?
Response to Lily Kahng, “Taxation of Intellectual Capital”

In Taxation of Intellectual Capital, Professor Lily Kahng argues that U.S. tax law is fundamentally flawed because it allows businesses to “expense” investments in self-created intangibles. The article draws on research in related areas (knowledge management, financial accounting, and national accounting) that seeks to identify and measure “intellectual capital,” “a central driver of economic productivity and growth.” Within the framework of a normative income tax, Professor Kahng argues that businesses should be required to capitalize and amortize investments in a broad array of intangibles, including research and development, advertising, and employee-training expenses.
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Laura I Appleman
Who Watches the Watchers? Judges, Guilty Pleas, and Outsider Review
Response to Anne Traum, Using Outcomes to Reframe Guilty Plea Adjudication

The principles that justify our imposition of punishment in public jury trials rapidly disintegrate in the informal, private realm of plea agreements. But what is the best way to regulate a system that does most of its adjudication behind closed doors? In her article, Using Outcomes to Reframe Guilty Plea Adjudication, Professor Anne Traum argues that trial courts should take on the task of regulating guilty pleas by monitoring plea outcomes. But what Professor Traum never quite resolves is the always-tricky problem of motivating courts to do such self-correction. In other words, having trial courts regulate guilty pleas by monitoring plea bargains offers some hope for procedural equity, but ultimately does not go far enough.
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Kenneth B. Nunn
Ideology, Gentile and Pretrial Attorney Speech: A Response to Professor Tarkington
Response to Margaret Tarkington, Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity

Attorneys are officers of the court and essential to the proper functioning of the criminal justice system. In that system, they represent opposing parties with conflicting, indeed adversarial, interests. Should the speech of attorneys be regulated in the American criminal trial process? If so, how can attorney speech be regulated in ways that do not intrude on attorneys’ First Amendment rights or defendants’ right to a fair trial? Can a balance be struck between the Sixth Amendment right to a fair trial and the First Amendment right to free speech that does not impair the ability of either prosecutors or defense attorneys to function as advocates for their respective clients? These are the questions that Professor Margaret Tarkington sets out to answer in her article, Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity.
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Cassandra Burke Robertson
Low Sanctions, High Costs: The Risk to Democratic Freedom
Response to Irina D. Manta, The High Cost of Low Sanctions

Professor Irina Manta deftly combines insights from behavioral economics, political theory, and legal analysis in her piece The High Cost of Low Sanctions. Her central argument is that a seemingly reasonable political compromise can backfire in troubling ways. Specifically, the decision to enact a framework of low or minimal sanctions to discourage unwanted (but not universally condemned) behavior can lead over time to a gradual increase in sanctions and a growing disconnect from citizens’ political preferences. This progression creates a risk of unjust application of the law and a fundamentally anti-democratic outcome that is resistant to repeal through the political process.
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Gregory Dolin, M.D.
Googling Down the Cost of Low Sanctions
Response to Irina D. Manta, The High Cost of Low Sanctions

When we as a society decide that a particular conduct is problematic, we are faced with a choice of how to prevent and punish such conduct. Generally speaking, the more problematic the conduct, the higher the sanction imposed as punishment and the more likely that a putative perpetrator will think twice before engaging in the frowned-upon conduct. It is thus unsurprising that we impose long jail terms for murder while limiting ourselves to moderate fines for speeding and jaywalking. It is equally not surprising, then, that we (thankfully) have more instances of speeding than of murder.
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Peter J. Henning
Dealing With Corporate Misconduct
Response to Lawrence A. Cunningham, Deferred Prosecutions and Corporate Governance: An Integrated Approach to Investigation and Reform

The standard method, these days, to resolve a criminal investigation of a corporation, particularly those with publicly traded shares, is a deferred or non-prosecution agreement. Under such agreements, the company generally pays a fine, some of which have been quite hefty, and perhaps submit to outside monitoring. Upon announcement of the resolution of the case, a company can be expected to issue a contrite public statement committing itself to making a greater effort toward future compliance with the law. For particularly severe or high-profile cases, such as when the Department of Justice wants to show how tough it is on crime, a guilty plea by the organization may be required. Finally, prosecutors may require a company to alter its internal governance structure, perhaps by splitting the jobs of chief executive and chair of the board of directors or creating new reporting lines within the organization. Read More.

Manuel A. Utset
Self-Control Engineering
Response to Miriam H. Baer, Confronting the Two Faces of Corporate Fraud

Professor Miriam Baer’s article, Confronting the Two Faces of Corporate Fraud, is an important contribution to the growing literature on self-control problems and criminal misconduct.1 Professor Baer is concerned with both time-consistent (TC) and time-inconsistent (TI) misconduct. One of the important contributions of Professor Baer’s article is its careful analysis of opportunistic misconduct, particularly in contexts in which actors may have TC preferences or varying degrees of preference for immediate gratification. A second contribution is its analysis of the costs and benefits of various mechanisms for deterring TC and TI opportunistic behavior.
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Larry A. DiMatteo
Questioning the Ubiquitousness, But Not the Value, of Arbitration Carve-outs
Response to Christopher R. Drahozal & Erin O’Hara O’Connor, Unbundling Procedure: Carve-Outs from Arbitration Clauses

Christopher R. Drahozal & Erin O’Hara O’Connor’s article entitled Unbundling Procedure: Carve-Outs from Arbitration Clauses impressively describes the phenomena of carving-out and carving-in in dispute resolution clauses. My review of numerous international contracts, especially those involving the sale of goods, has found that the use of standard or boilerplate arbitration clauses is prevalent. Despite their findings of the existence of customized dispute resolution clauses through the use of carve-outs and carve-ins, the more normative side of their analysis is of more fundamental importance—the abdication by lawyers in failing to customize important and ubiquitous clauses, such as arbitration and force majeure clauses.
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Jeffrey L. Harrison
And Therefore . . . . : Comments on “Unbundling Procedure: Carve-Outs from Arbitration Provisions”
Response to Christopher R. Drahozal & Erin O’Hara O’Connor, Unbundling Procedure: Carve-Outs from Arbitration Clauses

In Unbundling Procedure: Carve-Outs from Arbitration Clauses, Christopher R. Drahozal and Erin O’Hara O’Connor offer a wealth of information about how sophisticated parties allocate the costs and risks of various forms of dispute resolution. What they discover is that these parties, in a variety of contexts, make choices between arbitration and litigation based on the claims and remedies that are likely to be involved. In other words, the parties “carve out” from a general arbitration clause matters that will be litigated. For example, it appears the parties are more inclined to select the judicial process when property, as opposed to liability, rules are at stake. While the descriptive element of their effort is interesting, it is not clear what implications, if any, follow from that information. Or, it may be that they have gone a bit far in suggesting that courts should mimic the services available in private markets.
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Clark D. Asay
Keeping Low Sanctions Low
Response to Irina D. Manta, The High Cost of Low Sanctions

In her thoughtful new article, The High Cost of Low Sanctions, Professor Irina D. Manta provides a useful analysis of the (often) unanticipated negative effects that low legal sanctions can have. While the presence of low legal sanctions may assuage the public’s concerns about any given law, Manta argues that in many cases, low sanctions create a false sense of security. Indeed, in some instances low legal sanctions may be worse than high sanctions for a number of reasons: (1) they may make it easier to pass faulty laws in the first place; (2) these faulty laws then become increasingly difficult to eliminate; and (3) over time, the initially low legal sanctions grow into high sanctions either through incremental additions or simply through the way the laws are enforced.
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Brandon L. Garrett
Rehabilitating Corporations
Response to Lawrence A. Cunningham, Deferred Prosecutions and Corporate Governance: An Integrated Approach to Investigation and Reform

Blockbuster corporate fines grab headlines, but corporate criminal prosecutions have rapidly evolved far beyond using monetary penalties to punish complex organizations. A central goal of federal prosecutors is to rehabilitate corporations, and not simply to fine them. Indeed, some of the largest companies now obtain deferred and non-prosecution agreements that permit them to avoid an indictment and a conviction. In deciding not to fully pursue such companies to a conviction, prosecutors emphasize how they can offer alternatives to prosecution in order to secure positive changes to compliance and ethics programs. Such structural reforms also implicate corporate governance structures, and can involve sustained interventions in the workings of a corporation. Lawrence A. Cunningham’s wonderful new article takes the provocative and counterintuitive position that prosecutors should care about rehabilitating corporate governance far more and not less.
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