Faculty SSRN Publications

Faculty Scholarship Blog

AALS Criminal Justice Section Junior Scholars Paper Competition
Once again, the AALS Criminal Justice Section will hold a Junior Scholars Paper Competition. Honorees will be recognized at the AALS Annual Meeting in New York City in January 2014. This year the format of our Junior Scholars Paper Competition is changed in a way that we hope will enable more emerging scholars to submit […]

Professor Jost Publishes Health Law Book

George Mason Law & Economics Center Request for Proposals

Prof. Miller Delivers Paper at Swiss Institute of Comparative Law Meeting

Recent Publications

Timothy  C. MacDonnell .

Florida v. Jardines: The Wolf at the Castle Door, 7 NYU J.L. & Liberty 1 2012



Michelle  L. Drumbl .

Decoupling Taxes and Marriage: Beyond Innocence and Income Splitting, 4 Colum. J. Tax L. 94 (2012)



David  Millon .

Book Review, 52 Am. J. Legal Hist. 500 (2012) (reviewing, Blackstone in America: Selected Essays of Kathryn Preyer, Mary Sarah Bilder, Maeva Marcus & R. Kent Newmyer (eds.) 2009).



Robin  Fretwell Wilson .

The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, 53 B.C. L. Rev. 1417 (2012).



Unsettledness in Delaware Corporate Law: Business Judgment Rule, Corporate Purpose
Wed, 12 Jun 2013 | Lyman P. Q. Johnson
This article revisits two fundamental issues in Delaware corporate law. One -- the central role of the business judgment rule in fiduciary litigation -- involves a great deal of seemingly settled law, while the other -- is there a mandated corporate purpose -- has very little law. Using the emergent question of whether the business judgment rule should be used in analyzing officer and controlling shareholder fiduciary duties, the latter issue having recently been addressed by Chancellor Strine… Read more...

Dynamic, Virtuous Fiduciary Regulation
Tue, 04 Jun 2013 | Lyman P. Q. Johnson
This essay, a forthcoming book chapter, examines the recent flux in Delaware LLC fiduciary law (and lawmaking) through the perspectives of New Institutional Economics (NIE) and the virtue ethics tradition. Delaware’s recent unsettledness as to whether default duties apply to LLCs can be understood as an instance of dynamic regulation in a common law setting. Given bounded rationality and incomplete contracting, such “dynamic” regulation emphasizes experimentation, observation, adaptation… Read more...

Why Register Hedge Fund Advisers - A Comment
Wed, 29 May 2013 | Lyman P. Q. Johnson
This brief Comment responds to a thoughtful assessment of the Dodd-Frank regulation of hedge fund advisers. The Comment suggests a stronger case for the regulation on investor protection grounds than many critics allow, even if, subsequently, Congress in the JOBS Act moved to somewhat undermine that goal. As to systemic risk, the hedge fund adviser regulation is essentially only an extended study and data-gathering process which may or may not lead to stricter regulation. As often is the case in
… Read more...

The Intermestic Constitution: Lessons from the World’s Newest Nation
Mon, 20 May 2013 | Kevin L. Cope
Literature on constitution-making has traditionally focused either on the homogenous, transnational nature of constitutions, or conversely, on how domestic drafters or indigenous cultures work to shape a unique national product. This Article shows that these international and domestic perspectives can be reconciled under one framework. Using quantitative analysis and a case study of the constitutional process for the world’s newest nation, South Sudan, the Article demonstrates how these dual… Read more...

The Effects of the Lubanga Case on Understanding and Preventing Child Soldiering
Thu, 25 Apr 2013 | Mark A. Drumbl
On March 14, 2012, a trial chamber of the International Criminal Court (ICC) convicted Thomas Lubanga Dyilo, a rebel leader from the Democratic Republic of the Congo (DRC), for child-soldier-related crimes. Several months later, Lubanga was sentenced to a prison term of fourteen years. On August 7, 2012, an ICC trial chamber issued its decision regarding the principles and procedures to be applied to reparations in the Lubanga case. This Article unpacks the relationships between the Lubanga… Read more...

Pluralism in Corporate Form: Corporate Law and Benefit Corporations
Thu, 18 Apr 2013 | Lyman P. Q. Johnson
Shortcomings in contemporary corporate law and theory are usefully illuminated through the new corporate form known as a benefit or “B” Corporation. For example, deep confusion persists within traditional corporate law over the relationship of three core concepts – fiduciary duties, corporate purpose, and the corporation’s best interests. Conceptually, benefit corporations – which combine profit making (not maximizing) with a social purpose – move from a strict shareholder-centric… Read more...

'She Makes Me Ashamed to Be a Woman': The Genocide Conviction of Pauline Nyiramasuhuko, 2011
Tue, 16 Apr 2013 | Mark A. Drumbl
Although much of the literature on gender and conflict focuses, appropriately, on women as victims of violence, women also act as agents of violence, including mass atrocity, during conflict situations. The first (and, to date, only) woman to be convicted by an international tribunal for genocide and rape as a crime against humanity is Pauline Nyiramasuhuko, Rwanda’s former Minister of Family and Women’s Development. She was sentenced to life imprisonment by Trial Chamber II of the Internati… Read more...

Standards of Proof in Civil Litigation: An Experiment from Patent Law
Wed, 10 Apr 2013 | Christopher B. Seaman
Standards of proof are widely assumed to matter in litigation. They operate to allocate the risk of error between litigants, as well as to indicate the relative importance attached to the ultimate decision. But despite their perceived importance, there have been relatively few empirical studies testing jurors’ comprehension and application of standards of proof, particularly in civil litigation. Patent law recently presented an opportunity to assess the potential impact of varying the standa… Read more...

Defending the Ivory Tower: A Twenty-First Century Approach to the Pickering-Connick Doctrine and Pub
Mon, 08 Apr 2013 | Kevin L. Cope
Due in part to various recent socio-political trends, constitutional academic freedom doctrine has proven inadequate in recent decades as applied to public university faculty scholarship. Unlike the prevailing analytical framework, which lumps scholarship with unrelated speech forms, this article’s framework conceptualizes scholarship as a special form of speech that is neither pure employee speech, nor traditional public-concern speech, but which contributes uniquely to the marketplace of ide… Read more...

Anti-Federalist Procedure
Tue, 02 Apr 2013 | A. Benjamin Spencer
The last decade has witnessed the rise and growth of a surprising and disconcerting trend: Congress has pursued legislation, and the Supreme Court has rendered decisions, that impose upon, supplant, or usurp the judicial authority of states and their courts. This trend is surprising because those who have implemented it have been the foremost proponents of limited federal government and respect for state sovereign authority. The trend is disconcerting because it jeopardizes those very princip… Read more...

Legal Diglossia: Modeling Discursive Practices in Premodern Indic Law
Mon, 01 Apr 2013 | Timothy Lubin
This article proposes to analyze the socio-linguistic practices documented in inscriptions from South and Southeast Asia between the fourth and sixteenth centuries as a type of “functional diglossia” characteristic of legal discourse in states influenced by the transregional Dharmasastra tradition in Sanskrit. This diglossia can take two forms. Sanskrit itself may be used as an acrolect, either alone or in bilingual records, where it has primarily expressive or ceremonial functions. But t… Read more...

Part I: Shareholder Orientation in the Common-Law World - Introduction and Overview
Wed, 27 Mar 2013 | Christopher M. Bruner
The corporate governance systems of Australia, Canada, the United Kingdom, and the United States are often characterized as a single "Anglo-American" system prioritizing shareholders' interests over those of other corporate stakeholders. Such generalizations, however, obscure substantial differences across the common-law world. Contrary to popular belief, shareholders in the United Kingdom and jurisdictions following its lead are far more powerful and central to the aims of the corporation than… Read more...

Is the Corporate Director's Duty of Care a 'Fiduciary' Duty? Does it Matter?
Wed, 27 Mar 2013 | Christopher M. Bruner
While reference to "fiduciary duties" (plural) is routinely employed in the United States as a convenient short-hand for a corporate director's duties of care and loyalty, other common-law countries generally treat loyalty as the sole "fiduciary duty." This contrast prompts some important questions about the doctrinal structure for duty of care analysis adopted in Delaware, the principal jurisdiction of incorporation for U.S. public companies. Specifically, has the evolution of Delaware's conv… Read more...

Is the Corporate Director's Duty of Care a 'Fiduciary' Duty? Does it Matter?
Sat, 23 Mar 2013 | Christopher M. Bruner
While reference to "fiduciary duties" (plural) is routinely employed in the United States as a convenient short-hand for a corporate director's duties of care and loyalty, other common-law countries generally treat loyalty as the sole "fiduciary duty." This contrast prompts some important questions about the doctrinal structure for duty of care analysis adopted in Delaware, the principal jurisdiction of incorporation for U.S. public companies. Specifically, has the evolution of Delaware's conv… Read more...

Class Actions, Heightened Commonality, and Declining Access to Justice
Sun, 17 Mar 2013 | A. Benjamin Spencer
A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class." Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such… Read more...

Pleading and Access to Civil Justice: A Response to Twiqbal Apologists
Fri, 15 Mar 2013 | A. Benjamin Spencer
Professor Yeazell once wrote, “A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions.” One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious claims that fail to offer sufficient specificity and support at the pleading stage. But some have questio
… Read more...

Conceptions of Corporate Purpose in Post-Crisis Financial Firms
Thu, 07 Mar 2013 | Christopher M. Bruner
American "populism" has had a major impact on the development of U.S. corporate governance throughout its history. Specifically, appeals to the perceived interests of average working people have exerted enormous social and political influence over prevailing conceptions of corporate purpose - the aims toward which society expects corporate decision-making to be directed. This article assesses the impact of American populism upon prevailing conceptions of corporate purpose - contrasting its uniqu… Read more...

Remedies: A Guide for the Perplexed
Tue, 19 Feb 2013 | Doug Rendleman
ABSTRACT. Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, s… Read more...

Rejecting Property Rules-Liability Rules for Boomer's Nuisance Remedy: The Last Tour You Need of Cal
Mon, 11 Feb 2013 | Doug Rendleman
This draft article analyzes and criticizes the New York court’s tort remedies in its nuisance decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s famous law-and-economics article, One View of the Cathedral. From the Remedies branch of Legal Realism, this draft finds both wanting because both subordinate the winning plaintiffs’ injunction remedy to money damages. Both the Boomer decision and the Cathedral article undervalue public health and environmental protection. This mind… Read more...

The Polity of the Philosopher-Bureaucrat: Brahmanical Virtue as a Qualification for Public Office
Thu, 24 Jan 2013 | Timothy Lubin
One of the most striking features of Indian social history is the success of the Brahmin castes in promoting the ideal of Brahmins as model candidates for appointment to ministerial or administrative office. The Sanskrit literature on personal virtue and social norms (dharma-sastra) offers a systematic argument for the notion that Brahmanically defined virtues are inculcated and exhibited through observance of particular ritual norms, and ideally embodied in virtuous Brahmins. Scholastic dis… Read more...

The Law School Critique in Historical Perspective
Tue, 08 Jan 2013 | A. Benjamin Spencer
Contemporary critiques of legal education abound. This arises from what can be described as a perfect storm: the confluence of softness in the legal employment market, the skyrocketing costs of law school, and the unwillingness of clients and law firms to continue subsidizing the further training of lawyers who failed to learn how to practice in law school. As legal jobs become more scarce and salaries stagnate, the value proposition of law school rightly is being questioned from all directions.… Read more...