College of Law Faculty Scholarship

Trusts Versus Corporations: An Empirical Analysis of Competing Organizational Forms

A. Joseph Warburton — Thu, 06 Oct 2011 12:27:26 PDT

This paper studies the effects of organizational form on managerial behavior and firm performance, from an empirical perspective. Managers of trusts are subject to stricter fiduciary responsibilities than managers of corporations. This paper examines the ramifications empirically, by exploiting data generated by a change in British regulations in the 1990s that allowed mutual funds to organize as either a trust or a corporation. I find evidence that trust law is effective in curtailing opportunistic behavior, as trust managers charge significantly lower fees than their observationally equivalent corporate counterparts. Trust managers also incur lower risk. However, evidence suggests that trust managers tend to underperform their corporate counterparts, even after adjusting for the differences in risk. These results show that the business flexibility granted by corporations leads to greater agency conflict and risk taking, but also to potentially superior risk-adjusted performance. An investor who invests $100,000 in a trust, instead of an equivalent corporation, would save about $100 per year in agency costs, but would forgo about $1,300 per year in gross risk-adjusted performance. The results have implications for corporate governance design, suggesting that heightened fiduciary duties can enhance investor protection by mitigating agency conflict and lessening managerial risk taking, but at the possible cost of inferior risk-adjusted performance.

The President and the Autopen: It Is Unconstitutional for Someone or Something to Sign a Bill Outside of the President's Presence

Terry L. Turnipseed — Thu, 06 Oct 2011 12:27:22 PDT

On May 26, 2011, only hours before three provisions of the Foreign Intelligence Surveillance Act were scheduled to expire, Congress passed an extension. For days, the White House had someone ready to fly to Europe with the legislation in hand for the President to sign, but Congress had been tardy. It seemed quite important to the White House that none of these provisions lapse for any length of time, even the relatively short time it would take to fly from Washington to France. With this urgency as a backdrop, the President was awakened at 5:45 a.m. Central European Time so he could authorize a first: phone a White House staffer in Washington, D.C., and instruct him to use an autopen to sign the bill. No President had ever had anyone else sign on his behalf, and certainly no President had ever ordered the use of an autopen to inscribe his signature on a bill when away from the White House. This Article explores multiple facets of the President’s use of a proxy signature to sign legislation. The state of the law surrounding proxy signatures has remained amazingly constant through both English and American history. The proxy and the principal must be present together when a proxy signature is utilized for a high-value transaction. This was the rock-solid law when the constitution was written. No one seems focused on the presence requirement: not the President, nor the Republican House members who complained to the President, nor the numerous legal commentators and scholars that we have heard from since the autopen signing occurred. The use of the autopen, itself unproblematic, seems to have eclipsed the more important issue of whether the president was present when it was used. By definition, if a non-presence proxy signature is affixed to a bill, then time is of the essence. When time is of the essence, the consequences of a voided signature are never greater. Since the President has roughly twelve days to sign a bill, a non-presence proxy signature could produce one of two unintended consequences. At best, it would produce a twelve-day period during which the new legislation would not be in effect. At worst, if Congress is not in session at the end of the twelve-day period, it would amount to a pocket veto. Neither case is consistent with well-ordered government. In sum, the President’s use of the autopen (or even a human being) to sign a bill outside of the President’s presence is unconstitutional. This establishes a dangerous precedent, one which every thinking lawyer in Washington politics seemed to have overlooked. Let the autopen episode not be a precedent for this or any other President to follow. The Constitution does not allow for shortcuts.

SCALIA’S SHIP OF REVULSION HAS SAILED: WILL LAWRENCE PROTECT ADULTS WHO ADOPT LOVERS TO HELP ENSURE THEIR INHERITANCE FROM INCEST PROSECUTION?

Terry L. Turnipseed — Thu, 06 Oct 2011 12:27:15 PDT

SCALIA’S SHIP OF REVULSION HAS SAILED: WILL LAWRENCE PROTECT ADULTS WHO ADOPT LOVERS TO HELP ENSURE THEIR INHERITANCE FROM INCEST PROSECUTION? Terry L. Turnipseed Associate Professor of Law Syracuse University College of Law in•cest (ĭn'sěst') Sexual relations between family members or close relatives, including children related by adoption. There is a growing trend in this country – startling to many – of adopting one’s adult lover or spouse for various reasons, mostly inheritance-based. Should one who adopts his or her adult lover or spouse be prosecuted for incest? Think about it: the person is having sexual relations with his or her legal child. Is that not incest? Even if a state agrees that it is, will Lawrence v. Texas now protect this behavior, preventing these people from being successfully prosecuted for this type of incest? Indeed, given its prevalence in modern society, will this be the first post-Lawrence individual sexual privacy rights case to which the Court will grant a writ of certiorari? In no less than four instances, Justice Scalia in Lawrence warned that adult incest can no longer be outlawed by state or federal governments: with the decision in Lawrence, Justice Scalia lost his incest repellant (i.e., Bowers). Others have echoed Justice Scalia’s sentiments. Since the Court’s decision in Lawrence, the median viewpoint among legal scholars seems to be that incest is the next battle. It appears that neither Justice Scalia, nor legal scholars realize that the parade of horribles – with adult adoption of lovers leading the band – has already started. It has started with a whimper, though, and not a bang. It has not begun with what is considered “core” incest (sexual relations between biological parents and children or between biological full siblings), but instead with a growing set of behavior classified in many states as incest – sexual relations between an adult who adopts his or her lover or spouse where no parent/child relationship ever existed between the two (a subset of “non-core” incest that also includes sexual relations between distant relatives such as cousins). For some time now adults – both heterosexual and homosexual – have been adopting their lovers and spouses all over the country for various reasons: to better guarantee the adoptee’s right to inherit directly from the adoptor; to keep collateral relatives from having standing to contest the adoptor’s estate plan; or to add a loved one to a class of trust beneficiaries (allowing the adoptee to inherit “through” the adoptor). It appears that, post-Lawrence, both the academy and the judiciary have completely overlooked this steadily growing, albeit stealthy, trend. I wonder if both sides are scared to go to war? Are they scared to engage fully in a prosecution for this type of incest, only to be rebuffed by a Lawrence-based constitutional defense? The stakes are extraordinarily high. If a constitutional challenge to a prosecution for incest of an adult who adopted a lover where no parent/child relationship ever existed were successful, it would likely validate at least some, and possibly all, of Justice Scalia’s anxious Lawrence dissent, and the whole house of sexual-crime cards could well fall with it: not only for this strand of incest laws, but also for laws addressing “core” incest, adultery, bestiality, masturbation, fornication, bigamy, and possibly ending with the brass ring of same-sex marriage. Though no one seems to realize it right now, the outcome of this upcoming battle might well impact millions of American lives. It seems to me that, on balance, the stronger legal arguments favor constitutional protection against criminalization of sexual relations with one’s adopted adult lover where no prior parent/child relationship ever existed, i.e., Lawrence protection for this non-core behavior. I suspect that with the right set of facts, the right proponents, and a Court that takes Lawrence at its word, incest laws as they relate to adult adoption of these lovers will fall, and fall relatively soon. My view is that incest statutes may survive a facial attack under Lawrence, but should fall in a challenge as-applied to the non-core incest scenarios addressed in this Article. An adult who adopts his or her lover (neither ever having been in an adult/child relationship) would seem ripe for protection under Lawrence. This is happening with enough frequency that surely multiple cases will emerge over the next few years, very likely yielding differing results. This would make this issue primed for the Court to grant certiorari sooner rather than later, quite possibly the first post-Lawrence case down Justice Scalia’s Teflon-coated slope. If, as I expect and hope, Lawrence is extended to protect against criminalization of this behavior, opponents and supporters will, in time, look back at this issue as the catalyst that spread the Lawrence wildfire. How much of the personal sexual privacy landscape that becomes enveloped by the protection of Lawrence is anyone’s guess, but perhaps no post-Lawrence legal issue is presently riper for review, making adult adoption of lovers the stealth bomber that Justice Scalia should fear the most.

How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America

Terry L. Turnipseed — Thu, 06 Oct 2011 12:27:09 PDT

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from such a marriage? In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible does it not? The heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is the only person who has absolutely no motivation to do so. How did this rule come about? What, if anything, should we do to change it? This article explores these and other related questions, and proposes a theoretical framework for a model act that would allow heirs and beneficiaries standing to sue to negate the property consequences that flow from a marriage, depending on the level of mental capacity at the time of the marriage. Individuals on their deathbeds have just as much right to marry as anyone, and if competent and under no duress, the parties to the marriage certainly should have protection under the law. Having said that, there is no valid argument for not allowing a decedent-spouse's heirs (those who would take the decedent's property if he or she died unmarried and intestate) and beneficiaries (those who would take under the decedent's valid will, if any, absent a spousal election) the right to challenge the property consequences of a suspect marriage based on traditional grounds that might naturally flow from a deathbed marriage. The current incentives are off kilter. A greedy potential spouse has every incentive to try to find a minister or officer of the law willing to marry them off to a wealthy sick person and no legal incentives not to try it. Upon the death of one of the spouses, the marriage becomes set in stone with no person other than the surviving spouse – no matter how ugly the situation – given standing to seek redress in a court of law. Allowing, in an appropriate way, heirs and beneficiaries to challenge the property consequences of a suspect marriage puts in place the proper disincentives to think twice before attempting to take advantage of one of feeble mind and spirit. It is only reasonable that these poor people, who may well not have the legal capacity to make a contract for the smallest monetary value, and their heirs and beneficiaries should have state protection against a surviving spouse taking some or all of the decedent's property: protection against a surviving spouse who might seem to have few legitimate motives to enter into a deathbed marriage. Just imagine how you would feel losing an expectancy in such circumstances.

Technical Standards for Admission to Medical Schools: Deaf Candidates Don't Get No Respect

Michael A. Schwartz — Thu, 06 Oct 2011 12:27:05 PDT

Medical schools utilize a set of technical standards used to screen applicants with disabilities, and one of the standards, which deals with communication, requires the applicant to be capable of speech and hearing. To the extent that medical schools exclude an applicant with a hearing impairment on the ground that the applicant cannot hear and speak, such exclusion would be (and should be) a violation of federal law. Schools must engage in an individualized assessment of how a Deaf medical candidate would satisfy the communication standard. The notion of an “undifferentiated graduate,” where all graduates qualify for practice in any field of medical practice and research, is outdated. Providing the Deaf candidate with an appropriate auxiliary aid such as a sign language interpreter would not constitute a fundamental alteration of the medical school’s program, nor would the interpreter serve as an intermediary substituting his judgment for that of the candidate. This Article is structured as a memorandum of law arguing for a construction of the technical standard of communication that is open to the different ways – via appropriate auxiliary aids – Deaf students communicate. Ends matter, not means.

Political Advertisements in the Era of Fleeting Indecent Images and Utterances

LaVonda N. Reed-Huff — Thu, 06 Oct 2011 12:26:55 PDT

Political Advertisements in the Era of Fleeting Indecent Images and Utterances by LaVonda N. Reed-Huff This article is both timely and beneficial to the legal profession in its analysis of the Federal Communications Commission’s (the “FCC”) efforts to craft regulations regarding broadcast indecency and to address the prevalence of increasingly sexually suggestive material in political broadcast advertisements. This five-part article explores the statutory dilemma facing broadcasters who are presented political broadcast advertisements that contain indecent material. This dilemma is presented by the intersection of three federal statutes. One federal statute, 47 U.S.C. § 312, grants candidates for federal elective office reasonable access to broadcast stations in furtherance of their political campaigns. Another statute, 47 U.S.C. § 315, provides legally qualified candidates for federal, state, and local office equal opportunities to use broadcast stations as are afforded their opponents. This section also prohibits broadcast licensees from censoring political broadcast material. Finally, 18 U.S.C. § 1464 prohibits the broadcast of obscene, indecent, and profane material over the public airwaves. The racy and sexually suggestive political broadcast advertisements sponsored by some candidates in recent years suggest that the possibility of a broadcaster having to determine whether to air a candidate-sponsored political advertisement that actually could be defined as indecent is not so far-fetched. This article highlights several recent political advertisements and suggests that the dilemma created by this loophole in the statutes must be addressed. One such sexually suggestive television advertisement appeared in 2006 in Tennessee endorsing Republican Bob Corker in his race against Democrat Harold Ford, Jr. for a U.S. Senate seat. The Corker advertisement used sexually suggestive visual images to suggest that Ford frequented wild sex parties and had wild sexual liaisons. In the advertisement, the bare shoulders and face of an otherwise seemingly unclothed young blonde woman appeared on the screen as the young blonde winked and purred into the camera that she had previously met Ford at a Playboy party. The advertisement closed with another shot of the still questionably clothed young blonde teasing Ford to call her. Ford lost the election. Another television advertisement broadcast in New York in the same year endorsed Republican Raymond Meier in his U.S. congressional campaign against Democrat Michael Arcuri. The advertisement opened with superimposed images of a woman who appeared to be an exotic dancer straddling a chair and seductively dancing while purring “Hi, sexy…” Meanwhile, the target of the advertisement, Arcuri stared in the dancer’s direction while lasciviously and seductively licking his lips. The advertisement accused Arcuri of using Oneida County, New York taxpayer dollars to satisfy his sexual desires while on official business by calling an adult fantasy telephone hotline and then charging the call to his hotel room. Despite this advertisement, which ran in the days leading up to the election, Arcuri defeated his opponent to win the congressional seat. In an era where the media appears to take great fascination in the sex lives of elected officials and more so in actually catching and embarrassing them for these exploits, we are certain to see more of this type of material emerge in political campaign advertisements. In fact, it is possible that in the 2010 Louisiana U.S. Senate race, voters will have to choose between an adult film star and an incumbent senator who has been implicated in a Washington prostitution scandal. The possibilities for campaign advertisements containing indecent material are endless. This article does not assert that either the anti-Ford or the anti-Arcuri advertisements squarely falls within the subject matter scope of the FCC’s current definition of indecency, but that they do signal a gradual yet significant shift toward the willingness of political candidates and their supporters to pay for campaign advertisements with a sexual tinge. This article asks a question that has been asked by other scholars—what is a broadcaster to do in the event it is presented with political material that might fall within the subject matter scope of the FCC’s definition of indecency. It offers a number of new judicial, congressional, and agency resolutions to this conflict taking into consideration recent court cases dealing with the issue of broadcast indecency and fleeting expletives and images. Part I of the article describes the statutory conflict. Part II addresses recent broadcast indecency actions including the indecency cases recently decided by the Second and Third Circuits and one currently pending before the U.S. Supreme Court addressing the FCC’s authority to sanction licensees for the broadcast of isolated or fleeting indecent material. Part III specifically evaluates recent political advertisements containing sexually suggestive material. Part IV addresses how courts have handled earlier claims of offensive political speech offering insight and how they might handle future claims. Part V of this article revisits some of the earlier proposals for resolution of the dilemma facing broadcast licensees and will suggest others. This article reiterates the call for immunity for broadcasters that air political advertisements containing indecent material. In addition to evaluating these earlier proposals, this part offers additional resolutions of the issue that have yet to be considered. This article addresses the recent struggle of the FCC and the courts to define indecency and to defend the continued relevance of current indecency rules in light of a converging and ever-changing technological environment. The FCC has on more than one occasion sidestepped ruling on the issue where the material was determined not to have passed the threshold satisfying the definition of indecency. None of these prior cases clearly answers the question of a broadcaster’s liability in the event a broadcaster airs or chooses not to air a political advertisement that actually is determined to be indecent, profane, or obscene as those terms have come to be defined.

The Multiracial Epiphany

Kevin Noble Maillard — Thu, 06 Oct 2011 12:26:50 PDT

The year 1967 becomes the temporal landmark for the beginning of an interracial nation. That year, the United States Supreme Court ruled state antimiscegenation laws unconstitutional in Loving v Virginia. In addition to outlawing interracial marriage, these restrictive laws had created a presumption of illegitimacy for historical claims of racial intermixture. Not all states had antimiscegenation laws, but the sting of restriction extended to other states to forge a collective forgetting of mixed race. Defenders of racial purity could depend on these laws to render interracial relationships illegitimate. Looking back to Loving as the official birth of Multiracial America reinforces the prevailing memory of racial separatism while further underscoring the illegitimacy of miscegenations past. By establishing racial freedom in marriage, Loving also sets a misleading context for the history of mixed race in America. Even though Loving instigates the open acceptance of interracialism, it unintentionally creates a collective memory that mixed race people and relationships did not exist before 1967. To imagine and realize a pre-1967 miscegenated America directly challenges the legal legitimacy of the racial reality that antimiscegenation law attempted to enforce. I approach this subject by examining contemporary claims of mixed race that are rooted in the past. This conflict usually entails opposing narratives: one venerating the involvement of a prominent historical figure as party to an interracial relationship; the other steadfastly holds that such claims are unfounded as specious. Placing miscegenation upon narratives and figures that are faintly characterized and understood as racially white turns private claims of mixed identity into public contemplations of interracial intimacy. To imagine historic figures as "Founding Fathers" of another sort destabilizes an implicit understanding of ingrained racial limitations.

The Color of Testamentary Freedom

Kevin Noble Maillard — Thu, 06 Oct 2011 12:26:45 PDT

Wills that prioritize the interests of nontraditional families over collateral heirs test courts’ dedication to observing the posthumous wishes of testators. Collateral heirs who object to will provisions that redraw the contours of “family” are likely to profit from the incompatibility of testamentary freedom and social deviance. Thus, the interests of married, white adults may claim priority over nonwhite, unmarried others. Wills that acknowledge the existence of moral or social transgressions—namely, interracial sex and reproduction—incite will contests by collateral heirs who leverage their status as white and legitimate in order to defeat testamentary intent. This Article turns to antebellum and postwar will contests between disinherited white heirs and mixed-race devisees to question the role of courts in defining “family” and the expectancy of collaterals to uphold this limitation. While other studies have separately examined the myth of testamentary freedom and argued for the legitimacy of diverse families, scholars have paid less attention to the color of inheritance. Drawing on Cheryl Harris’s groundbreaking work on property and racial expectation interests, this Article illustrates the centrality of whiteness in the validation of testamentary transfers. At the same time, it questions the legal resistance to nontraditional families, which substantially weakens the aspirational theory of donative freedom—the cornerstone of Trusts & Estates. Through the intersection of wills law and family law, this Article initiates a critical inquiry of the influence of race in testamentary transfers.

Slaves in the Family: Testamentary Freedom and Interracial Deviance

Kevin Noble Maillard — Thu, 06 Oct 2011 12:26:40 PDT

This Article addresses the deviance of interracial sexuality acknowledged in testamentary documents. The language of wills calls into question the authority of probate and family law by forcing issues of deviance into the public realm. Will dramas, settled in or out of court, publicly unearth insecurities about family. Many objections to the stated intent of the testator generate from social prejudices toward certain kinds of interpersonal relationships: nonmarital, homosexual, and/or interracial. When pitted against an issue of a moral or social transgression, testamentary intent often fails. In order for these attacks on testamentary validity to succeed, they must be situated within an existing juridical framework that supports and adheres to the hegemony of denial that refuses to legitimate the wishes of the testator. Disinherited white relatives of white testators regularly challenged wills disposing a majority of an estate to paramours and children of African descent. In the nineteenth century, testators who eschewed traditional devises to spouses, relatives, and institutions in favor of mistresses, slaves, or both often incited will contests of testamentary incapacity, undue influence, or fraud. This Article is a case study of In Re Remley, an antebellum will contest between disinherited white collateral heirs and the intended black and mulatto devisees. It retains timeless value in its demonstration of the incompatibility of testamentary freedom and social deviance. I conclude that subjective conceptions of kinship, in particular those unpopular relationships that defy social norms, prevent the idea of testamentary freedom from reaching diverse articulations of family.

Rethinking Children as Property

Kevin Noble Maillard — Thu, 06 Oct 2011 12:26:35 PDT

Despite the collective view in law and social practice that it is intrinsically taboo to consider human beings as chattel, the law persists in treating children as property. Applying principles of property, this Article examines paternity disputes to explain and critique the law’s view of children as property of their parents. As evidenced in these conflicts, I demonstrate that legal paternity exposes a rhetoric of ownership, possession, and exchange. The law presumes that a child born to a married woman is fathered by her husband, even when irrefutable proof exists that another man fathered the child. Attempts by the non-marital biological father to assert parental rights regularly fail, as states allow only one father to “claim” the child. This approach treats the nonmarital father as a trespasser and categorically favors the fundamental due process rights of the marital father. Analyzing these family law cases along a property framework offers a rethinking of the law’s imbalanced treatment of unmarried fathers. The law’s current approach to paternity disputes reflects a classic model of property rights and ownership rooted in static, rigid, and exclusive claims. This framework ignores the interests of children in their biological fathers while overestimating the reproductive normativity of marriage. This Article joins in recent discussions of “stewardship” models of property that engage the complexities of nontitled claims to property. It draws upon constitutional law, property theory, and political philosophy to assert the possibility that the interests of children are better served by protecting and nurturing those relationships (i.e., those with the biological father) that are normally defeated by traditional appeals to substantive due process. By highlighting the claims of nonmarital, biological fathers divested of standing to assert paternal rights, I suggest a turn to a fiduciary ethic that entertains the unique legal status of what I call the “complex family.” This engagement of a textured—as opposed to flat and conclusory—model of the hybrid marital/nonmarital family recognizes the unwed father’s property rights in the child as nontitled, while the marital unit acts as a fiduciary caregiver with legal rights to the child. By embracing the counterintuitive notion of children as property, I argue for a redirection of the existing framework of property theory to a productive model for the family that champions the best interests of the child in tandem with the constitutional interests of marital and nonmarital parents.

The Anatomy of Grey: A Theory of Interracial Convergence

Kevin Noble Maillard et al. — Thu, 06 Oct 2011 12:26:30 PDT

This article offers a theory of racial identity divorced from biological considerations. Law fails to recognize the complexity of racial performance and identity, thus categorically simplifying a perceived polarity of black and white. Ground-breaking scholarship addressing racial boundaries, as written by Randall Kennedy, Elizabeth Bartholet, and Angela Onwauchi-Willig, generally focuses on the enduring legacy of race discrimination. We approach these boundaries from a different angle—whites who become “less white.” We bring together the challenges of passing and adoption to offer a theory of fluid racial boundaries.

Transracial adoption provides one viable channel to discuss the possibilities of white-to-black racial identity transformation. By confronting the meaning of white identity in relation to their black surroundings, adoptive parents may engage along a continuum of what we term “interracial convergence.” Parents who adopt transracially potentially face some of the pressures of being black in the United States. The Interethnic Placement Act forbids the consideration of race in adoption placements, but white adoptive parents nevertheless receive sharp criticism from black social workers for lacking the ability to teach “survival skills” necessary for the child’s racial identity development. We argue, alternatively, that it creates a grey space where racial convergers—adoptive parents and racial passers—can challenge the stability of racial boundaries.

The Unintended Consequences of Stanford v. Roche

Ted Hagelin — Thu, 06 Oct 2011 12:26:25 PDT

This article analyzes the recent Supreme Court decision in Stanford v. Roche and concludes that the Court was correct in holding that the Bayh-Dole Act did not change the basic patent law norm that inventors hold initial title to their inventions; but, and more importantly, that the Court was wrong in finding for Roche because there cannot be an assignment of legal title to an invention until the invention is made, a patent application is filed or a patent is issued, and the inventor executes a written patent assignment that identifies the patent application number or patent number associated with the assignment. If the analysis supporting the latter conclusion is correct, tens of billions of dollars of patent rights could be at risk in the case of unethical employee-inventors, both in universities and the private sector. The article suggests management best practices to lessen this risk and law reform measures to eliminate this risk.

The Count's Dilemma, or, Harmony and Dissonance in Legal Language

Ian Gallacher — Thu, 06 Oct 2011 12:26:21 PDT

Lawyers have had a long, but ambivalent, relationship with metaphor. Viewed by some as a mere literary device, a trick of language that "adds little of substance to an argument," metaphor is seen by others as an essential component of legal language, a rhetorical device inseparable from thought. On one thing, though, all can agree: lawyers only have words to express their thoughts, so they have an obligation to use words, whether used metaphorically or not, as exactly as possible.

This article offers a critique of the way lawyers meet this obligation when they use metaphors based in musical language. In particular, the article examines the ways in which the musical term "harmony" is used as a metaphor to explain the nature of the relationship between disparate elements of the law and concludes that the metaphor fails to convey its intended meaning. In order to reach this conclusion, the article explores the meaning of "harmony" in music and then shows how the musical and assumed legal usages diverge, making "harmony" an inexact metaphor for lawyers to use. Although recognizing that "harmony" will likely continue to be used, the article proposes "tonality" as a better, more precise, alternative musical term for lawyers to use.

“Forty-Two:” A Hitchhikers Guide To Teaching Legal Research To The Google Generation

Ian Gallacher — Thu, 06 Oct 2011 12:26:18 PDT

This article seeks to answer the questions of what students should learn about legal research and who should teach them. It identifies the cultural tension between those who endorse traditional book-based research and those who embrace computer-assisted legal research, looks at the virtues and pitfalls of both approaches, and reflects on some pedagogical strategies the legal research teaching community might adopt in order to help improve law students' ability to conduct effective and efficient legal research.

Throwing Away The Key: An Examination of New York's Sex Offender Civil Commitment Law

Joseph E. Fahey — Thu, 06 Oct 2011 12:26:16 PDT

This article examines New York's newly enacted sex offender civil commitment law entitled"Sex Offenders Requiring Civil Commitment or Supervision." It examines the statute in detail, commenting on its various statutory and constiutional defeciencies, as well as its potential impact on the New York State Unified Court System.

Short of the Goal: New York's Legislation to Compel HIV Testing from Accused Sex Offenders

Joseph E. Fahey — Thu, 06 Oct 2011 12:26:12 PDT

"Short of the Goal: New York's Legislation to Compel HIV Testing from Accused Sex Offenders" examines New York's newly enacted legislation allowing for such court ordered testing upon the filing of charges and prior to conviction.Although this legislation was designed to augment and improve the existing legislation which allows it only post-conviction, it contains significant flaws which leave it short of its intended result. This article examines the legislation and its flaws.

Discretionary Persistent Felony Offender Sentencing In New York: Can it survive Apprendi ?

Joseph E. Fahey — Thu, 06 Oct 2011 12:26:09 PDT

This article examines the Discretionary Persistent Felony Offender sentencing provision contained in New York Penal law section 70.10 and its vitality in the wake of Apprendi v. New Jersey. It examines the disparity in the controlling New York Court of Appeals cases and the holdings in Apprendi and its progeny. It also discusses ways in which the sentencing court can apply the sentnecing statute and avoid Apprendi pitfalls.

Contract Law's Inefficiency

David M. Driesen — Thu, 06 Oct 2011 12:26:03 PDT

Neoclassical economic theory seems to aptly characterize contract law’s essence. Contracts enable two parties to reach a mutually beneficial agreement, thereby facilitating economically efficient transactions. It would seem to follow that the achievement of economic efficiency serves as contract law’s major goal. This article, however, examines an alternative hypothesis, that contract law is about enforcing inefficient bargains in order to provide enough security to facilitate cooperation among economic actors over long periods of time. On this account, contract law manages change over time, rather than achieves static efficiency. While recognizing that parties execute contracts in order to realize an efficient exchange, this article argues that contract law exists largely to enforce bargains that have become inefficient over time. It argues that inefficient contract law performs important macroeconomic functions in stimulating economic growth. The analysis developing this tension between efficient contracting and inefficient contract law casts some doubt on a major rationale for making efficiency the dominant goal for contract law. It also adds an important dimension to the existing explanation of the scholarly literature’s many inconsistencies in conclusions about the efficiency of contract rules. Finally, it helps explains the major exceptions to the rule that courts enforce inefficient contracts found in the impossibility and impracticability doctrines. This article endorses an economic dynamic approach to contact law in light of the tension between efficient contracting and inefficient contract law and describes the components of an economic dynamic analysis rooted in institutional economics. It shows that some of our leading scholars have already tacitly employed this approach effectively to shed new light on contract law.

The Reality of EU-Conformity Review in France

Juscelino F. Colares — Thu, 06 Oct 2011 12:25:58 PDT

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU directive enforcement and similar willingness to refer questions to the ECJ for preliminary rulings demonstrate that, despite adopting dissimilar approaches to the supremacy of Communitarian law, French judges have flourished as Communitarian law judges. The article concludes by presenting an explanation for this high degree of convergence: French judges, responding to growing European integration and enabled by a changing constitutional landscape, adjusted their views to ensure they would have a role in molding the integration of national and EU law.

The Limits of WTO Adjudication: Is Compliance the Problem?

Juscelino F. Colares — Thu, 06 Oct 2011 12:25:52 PDT

Mainstream international trade law scholars have commented positively on the work of WTO adjudicators. This favorable view is both echoed and challenged by empirical scholarship that shows a high disparity between Complainant and Respondent success rates (Complainants win between 80 and 90 percent of the disputes). Regardless of how one interprets these results, mainstream theorists, especially legalists, believe more is to be done to strengthen the system, and they point to instances of member recalcitrance to implement rulings as a serious problem. This article posits that such attempts to strengthen compliance are ill-advised. After discussing prior empirical analyses of WTO adjudication involving primary rights and obligations under the WTO agreements (i.e., substantive adjudication), this article expands the empirical study into compliance disputes. It finds that "enforcement" proceedings do protect the pro-free trade interests so overwhelmingly supported in substantive adjudication. Because that is the case, this article investigates the extent to which current levels of noncompliance might constitute a threat to this regime, and theorizes that the observed level is not only acceptable but a necessary feature of the system. I conclude by arguing that compliance-related issues must be viewed in a broader perspective that transcends narrow legalistic views and accounts for the multifaceted interests of, and differences among, WTO members. (JEL: K 33, K 41)