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Archive for March, 2011

Prof. Bruner on the Changing Face of Money

March 31, 2011 Leave a comment

Christopher BrunerProfessor Christopher M. Bruner, Associate Professor of Law and Ethan Allen Faculty Fellow, recently published his article, The Changing Face of Money, Boston University’s Review of Banking and Financial Law.

In this article, Professor Bruner argues that widespread failure to comprehend the intrinsic nature of modern money loomed large in the recent financial and economic crisis, and that broader comprehension of its meaning is a precondition for effective post-crisis reforms. Prof. Bruner begins by providing a brief history of money, emphasizing its gradual divergence from inherent value. He then considers the value of today’s dollar in economic, legal, and psychological terms, arguing that each perspective conveys a single over-arching lesson – that better comprehending our money requires better comprehending ourselves. He argues that the introspection of this exercise will reveal with unique clarity some of the critical lessons of the crisis and its aftermath.

You can find Prof. Bruner’s article on SSRN here.

Congratulations to Professor Bruner on this accomplishment.

Prof. Sundby on the Exclusionary Rule

March 30, 2011 Leave a comment

Scott SundbyProfessor Scott E. Sundby, the Sydney and Frances Lewis Professor of Law, recently published his article, The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule43 Tex. Tech L. Rev. 391 (2010), in the Texas Tech Law Review, as part of their Fourth Amendment Search & Seizure Symposium.

In the article, Prof. Sundby discusses the two distinct “creation stories” behind the exclusionary rule in American jurisprudence, as found in Herring v. United States, 555 U.S. 135 (2009). Chief Justice Roberts and Justice Ginsburg articulated dramatically different visions of the exclusionary rule and its judicial heritage. Justice Roberts, writing for the five-justice majority, framed the exclusionary rule as simply a judicial rule designed solely to deter police misconduct. In her dissent, Justice Ginsburg alluded to a very different vision, a “more majestic” conception of the exclusionary rule. Prof. Sundby explores the rhetorical and historical arc of these two competing creation stories in identifying when the majestic conception lost its dominance and the evidentiary rule conception gained preeminence.

You can find Prof. Sundby’s article on SSRN here.

Congratulations to Professor Sundby on this publication.

Prof. Johnson on Banker Regulation

March 29, 2011 Leave a comment

Lyman JohnsonProfessor Lyman P. Q. Johnson, the Robert O. Bentley Professor of Law, recently had his article, Beyond the Inevitable and Inadequate Regulation of Bankers: A Comment on Painter, published in the upcoming University of St. Thomas Law Journal.

The article is a comment on Richard Painter’s article, The Moral Responsibilities of Investment Bankers, also published in the upcoming University of St. Thomas Law Journal. In the article, Prof. Johnson identifies several reasons for both the inevitability and the inadequacy of business regulation. Next, it comments on Prof. painter’s proposals for inducing greater responsibility by bankers and offers a few suggestions for introducing a moral tenor into the discourse about financial markets.

Prof. Johnson’s paper may be found on SSRN by clicking here.

Many congratulations to Professor Johnson on the publication of his article.

Prof. Joan Krause on Health Care Fraud

March 28, 2011 Leave a comment

Joan KrauseIn the fifth installment of the Spring 2011 Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor Joan H. Krause, Professor of Law at the University of North Carolina-Chapel Hill School of Law, came to speak today about her paper, Skilling and the Pursuit of Health Care Fraud.

In the paper, Prof. Krause discusses health care fraud, a universally recognized problem with our health care system today. Health care fraud is actionable under a wide range of criminal, civil and administrative laws, including the Anti-Kickback Statute, the False Claims Act, and even mail and wire fraud statutes. She notes that mail and wire fraud cases generally fall into three categories, involving a scheme to defraud the victim of: tangible property, intangible property, or the intangible right to honest services. The first two involve traditional cases, where the perpetrator defrauds the victim directly. The latter eliminates the requirement that the victim suffer the loss to the perpetrator. For this any many other reasons, Prof. Krause notes the many challenges to the honest services portion of mail and wire fraud cases, typically on constitutionally vague grounds.

The decision in Skilling v. U.S., 130 S. Ct. 2896 (2010), changed that. In Skilling, the Supreme Court narrowed the scope of the honest services provision to criminalize only bribery and kickback schemes. Prof. Krause argues that this clarification and narrowing of the provision may end up increasing the number of mail and wire fraud prosecutions for health care related matters. Mail and wire fraud cases carry stiffer penalties, allows the victim-patient to testify, and is far more expansive that other prosecution charges.

Many thanks to Professor Krause for visiting W&L and sharing her paper with the faculty.

Professor Bryant on Constitutional Forbearance

March 22, 2011 Leave a comment

A. Christopher BryantIn the fourth installment of the Spring 2011 Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor A. Christopher Bryant, Professor of Law at the University of Cincinnati College of Law, came to speak yesterday about his working paper, Constitutional Forbearance.

Professor Bryant defines constitutional forbearance as when a Judge or Justice concludes that her policy preference conflict with what the Constitution requires and she then rules in conformity with the latter, in disregard of the former. By doing so, she offers herself as living proof that constitutional law is not just politics by other means. Professor Bryant argues that in heavily publicized and politicized cases, judges should consciously exercise forbearance. He notes that of the five judges that have heard cases regarding the Patient Protection and Affordable Care Act, they have all ruled along party lines, 3-2. If the Roberts Court does the same, it will vote 5-4, against the Act. These cases, therefore, present an opportunity for constitutional forbearance. Professor Bryant calls on the Supreme Court to exercise constitutional forbearance as an example of self-restraint to improve our constitutional jurisprudence.

Professor Bryant’s thoughts started a healthy discussion from members of the faculty who attended. We thank Prof. Bryant for presenting his ideas.

Prof. Lyman Johnson: Corporate Governance and Business Ethics

March 18, 2011 4 comments

Lyman JohnsonOn Friday, March 31, Professor Lyman P. Q. Johnson, the Robert O. Bentley Professor of Law, will present at Notre Dame Law School’s spring symposium, Corporate Governance and Business Ethics in a Post-Crisis World. Professor Johnson will present his paper, Getting Beyond Corporate Law’s Modest Contribution to Corporate Responsibility.

Professor Johnson will argue that corporate law, and law generally, historically has made only a modest and inadequate contribution to society’s quest for more responsible corporate conduct.  His presentation will first trace four areas where law has influenced and mirrored cultural expectations concerning corporate responsibility: corporate personhood, corporate purpose, corporate regulation, and corporate governance.  Next, his presentation will identify areas holding greater potential than law for fostering more ethical and responsible corporate behavior.  Prof. Johnson aims to realistically assess what law can and cannot do today in meeting society’s demand for ethical-responsible conduct in the corporate sector.

We wish Professor Johnson safe travel and success in his presentation amongst leading scholars.

Prof. Daniel Lyons on Net Neutrality

March 14, 2011 Leave a comment

Daniel LyonsIn the third installment of the Spring 2011 Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor Daniel Lyons, Assistant Professor of Law at Boston College Law, came to speak today about net neutrality, discussing his upcoming paper, Net Neutrality and Nondiscrimination Norms in Telecommunications.

Professor Lyons argued that the new rules enacted by the FCC against Internet broadband providers, such as Comcast and Verizon, impose far greater nondiscrimination obligations on broadband providers than the law has ever imposed on telephone companies. Under the new rules enacted last December, a bright-line nondiscrimination rule was established: broadband providers may not block lawful internet content or applications, nor may they unreasonably discriminate in the carriage of such content over their networks. These rules, Professor Lyons argues, fly in the face of existing precedent. Existing rules for telephone companies and mail carriers do not allow different rates for “like” services, but do allow the sale of “premium” services, such as priority or certified mail. The new rules do not allow for such a system for broadband providers (although the rules do allow for different speeds for the end-user, just not a content-based system).

Professor Lyons argued that the net neutrality rules enacted jeopardize traffic management systems during periods of high congestion. Under the new rules, all traffic must be degraded equally. A more efficient system, he argues, would be to allow real-time applications, such as a video chat, priority over website loading. Or to utilize capitalist system of allowing providers, such as YouTube or Netflix, to pay for priority for their customers.

We thank Professor Lyons for visiting Washington and Lee to discuss his paper and ideas with the faculty.

Prof. Brian Murchison on Snyder v. Phelps

March 11, 2011 Leave a comment

Brian MurchisonProfessor Brian Murchison, the Charles S. Rowe Professor of Law, posts here about his reaction and thoughts on the recently decided U.S. Supreme Court Case, Snyder v. Phelps. He also previewed the case last October here at the Faculty Scholarship Blog.

The Supreme Court’s decision in Snyder v. Phelps was consistent with First Amendment precedent; the Court’s 8-1 vote on the merits was perfectly plausible and not unexpected.

The facts are well known.  A fringe church crudely exploited the occasion of a deceased Marine’s memorial service.  The group gathered in a space permitted by police, some 1,000 feet from the church, without breaching the peace or disrupting the service, and their signs expressed a message that many thought bizarre — that God kills soldiers to punish the United States for condoning homosexuality.   When the Marine’s father sued the church group for intentional infliction of emotional distress and invasion of privacy caused by the speech, a jury in Maryland awarded him a significant amount of damages.   The Fourth Circuit reversed on First Amendment grounds, ruling among other things that the challenged speech was non-actionable hyperbole.

The Supreme Court affirmed the Fourth Circuit’s result. Read more…

Prof. Christopher Bruner: Corporate Governance Reform in a Time of Crisis

March 3, 2011 Leave a comment

Christopher BrunerProfessor Christopher M. Bruner, Associate Professor of Law and Ethan Allen Faculty Fellow, recently published his article, Corporate Governance Reform in a Time of Crisis in the University of Iowa’s Journal of Corporation Law.

In this article, Professor Bruner argues that crisis-driven corporate governance reform efforts in the United States and the United Kingdom that aim to empower shareholders are misguided and offers an explanation of why policymakers in each country have reacted to the financial crisis as they have. He first discusses the risk incentives of shareholders and managers in financial firms and examines how excessive leverage and risk-taking in pursuit of short-term returns for shareholders led to the crisis. Prof. Bruner then describes the far greater power and centrality that U.K. shareholders have historically possessed relative to their U.S. counterparts and explores historical and cultural factors explaining this distinction. These differences, he argues, loom large in the observed crisis responses. The U.K. initiatives reflect reinforcement of the more shareholder-centric status quo while the U.S. initiatives reflect a populist backlash against managers, fueled by middle class anger and fear in a far less stable social welfare environment. The article concludes with a discussion of corporate governance challenges facing U.S. and U.K. policymakers following the crisis.

Many congratulations to Prof. Bruner. The full text of his article may be found at his SSRN page.

Prof. Christopher Bruner: Good Faith in Revlon-Land

March 2, 2011 Leave a comment

Christopher BrunerProfessor Christopher M. Bruner, Associate Professor of Law and Ethan Allen Faculty Fellow, recently published his article, Good Faith in Revlon-Land in the New York Law School Law Review. The article was part of a symposium issue featuring articles on the nature and importance of the evolving fiduciary duty of good faith.

Professor Bruner’s article addresses the high hurdle for plaintiffs challenging directors’ good faith in the sale of a company as set by the Delaware Supreme Court in Lyondell Chemical Company v. Ryan. He argues that the Lyondell standard effectively imports into the transactional context the exacting standard previously applied in the oversight context.

The article starts by tracing the evolution of the good faith concept over recent decades and then contrasts the strict state of mind requirement found in In re Walt Disney Co. Derivative Litigation with an even stricter standard applied the same year in Stone v. Ritter to establish bad faith in the board oversight context. Prof. Bruner then turns to Lyondell, where the Delaware Supreme Court in 2009 extended the exacting standard of Stone to the transactional context.

He argues that while Lyondell undoubtedly limits directors’ liability exposure, it is amenable to a reading that preserves some limited capacity for the good faith component of the duty of loyalty to discipline boards in the sale of a company.

Congratulations to Professor Bruner on the publication of his article. The full text may be found at the Law Review’s website or at his SSRN page.

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