Volume 63, Number 6 – March 2014

Articles

Out of Practice: The Twenty-First-Century Legal Profession
Dana A. Remus
PDF

Lawyering has changed dramatically in the past century, but scholarly and regulatory models have failed to keep pace. Because these models focus exclusively on the “practice of law” as defined by the profession, they ignore many types of work that today’s lawyers perform and many sources of ethical tension they encounter. To address these shortcomings, I examine significant twentieth- and twenty-first-century social dynamics that are fundamentally altering contemporary lawyers’ work by broadening and blurring the boundary between law and business. 

Property as the Law of Democracy
Joseph William Singer
PDF

Property law is not simply about best management practices or coordination in the face of scarcity. Democracies elect leaders who pass laws that establish minimum standards for social and economic relationships compatible with our justified expectations and our considered judgments about what it means to treat others with dignity and respect. Property law is not just a mechanism of coordination; it is a quasi-constitutional framework for social life. Property is not merely the law of things. Property is the law of democracy.

Notes

Sword or Shield? Setting Limits on SLUSA’s Ever-Growing Reach
Cecilia A. Glass
PDF

Concerned by the overwhelming presence of vexatious federal securities-fraud class actions, Congress passed the Private Securities Litigation Reform Act of 1995 to increase the procedural burden plaintiffs would face in filing these nonmeritorious suits. Instead of being deterred, plaintiffs simply brought their suits in state court. Congress responded with the Securities Litigation Uniform Standards Act of 1998 (SLUSA), making federal court the exclusive venue for securities-fraud class actions. However, Congress expressly saved from SLUSA’s reach claims that were traditionally brought in state court under corporate law through the Delaware carve-out.

Though this exemption was meant to protect the historic dual federal-state securities-regulation regime, recent appellate court opinions have stretched SLUSA’s reach too far, leaving plaintiffs incapable of bringing many traditional state-law claims essential to the proper policing of corporate law regardless of the forum. This Note addresses the implications of such a broad reading of SLUSA and advocates a two-pronged approach that will simultaneously effectuate SLUSA’s purpose while still preserving these important state-law claims. 

The Sometimes “Craven Watchdog”: The Disparate Criminal-Civil Application of the Presumption Against Extraterritoriality
S. Nathan Williams
PDF

Increasingly, courts must decide whether U.S. law applies extraterritorially. Courts largely resolve questions of extraterritorial scope using tools of statutory construction. Of these tools, the presumption against extraterritoriality has been ascendant. However, this presumption is subject to two divergent lines of cases: Morrison v. National Australia Bank Ltd. affirmed the strict operation of the presumption in civil cases, but United States v. Bowman continues to govern the presumption’s looser role in criminal cases, thereby creating a doctrinal asymmetry. This Note furthers the argument that courts should reconcile Morrison and Bowman, by laying out three arguments for why an expansive Bowman exception is problematic and unsustainable. 

Volume 63, Number 6 – March 2014

Articles

Out of Practice: The Twenty-First-Century Legal Profession
Dana A. Remus
PDF

Lawyering has changed dramatically in the past century, but scholarly and regulatory models have failed to keep pace. Because these models focus exclusively on the “practice of law” as defined by the profession, they ignore many types of work that today’s lawyers perform and many sources of ethical tension they encounter. To address these shortcomings, I examine significant twentieth- and twenty-first-century social dynamics that are fundamentally altering contemporary lawyers’ work by broadening and blurring the boundary between law and business. 

Property as the Law of Democracy
Joseph William Singer
PDF

Property law is not simply about best management practices or coordination in the face of scarcity. Democracies elect leaders who pass laws that establish minimum standards for social and economic relationships compatible with our justified expectations and our considered judgments about what it means to treat others with dignity and respect. Property law is not just a mechanism of coordination; it is a quasi-constitutional framework for social life. Property is not merely the law of things. Property is the law of democracy.

Notes

Sword or Shield? Setting Limits on SLUSA’s Ever-Growing Reach
Cecilia A. Glass
PDF

Concerned by the overwhelming presence of vexatious federal securities-fraud class actions, Congress passed the Private Securities Litigation Reform Act of 1995 to increase the procedural burden plaintiffs would face in filing these nonmeritorious suits. Instead of being deterred, plaintiffs simply brought their suits in state court. Congress responded with the Securities Litigation Uniform Standards Act of 1998 (SLUSA), making federal court the exclusive venue for securities-fraud class actions. However, Congress expressly saved from SLUSA’s reach claims that were traditionally brought in state court under corporate law through the Delaware carve-out.

Though this exemption was meant to protect the historic dual federal-state securities-regulation regime, recent appellate court opinions have stretched SLUSA’s reach too far, leaving plaintiffs incapable of bringing many traditional state-law claims essential to the proper policing of corporate law regardless of the forum. This Note addresses the implications of such a broad reading of SLUSA and advocates a two-pronged approach that will simultaneously effectuate SLUSA’s purpose while still preserving these important state-law claims. 

The Sometimes “Craven Watchdog”: The Disparate Criminal-Civil Application of the Presumption Against Extraterritoriality
S. Nathan Williams
PDF

Increasingly, courts must decide whether U.S. law applies extraterritorially. Courts largely resolve questions of extraterritorial scope using tools of statutory construction. Of these tools, the presumption against extraterritoriality has been ascendant. However, this presumption is subject to two divergent lines of cases: Morrison v. National Australia Bank Ltd. affirmed the strict operation of the presumption in civil cases, but United States v. Bowman continues to govern the presumption’s looser role in criminal cases, thereby creating a doctrinal asymmetry. This Note furthers the argument that courts should reconcile Morrison and Bowman, by laying out three arguments for why an expansive Bowman exception is problematic and unsustainable.