Cleveland-Marshall College of Law Legal Studies Research Paper Series最新文献

{"title":"Political Economy, Capitalism and the Rule of Law","authors":"David R. Barnhizer, Daniel D. Barnhizer","doi":"10.2139/SSRN.2716372","DOIUrl":"https://doi.org/10.2139/SSRN.2716372","url":null,"abstract":"There is a symbiotic relationship between a society’s form of economic activity and the Rule of Law institutions that support, facilitate, and limit that activity. Economic activity and Rule of Law institutions interact in a dynamic relation that creates, allocates, denies, and adapts power among competing entities. The core fact is that of transformation of the nature of power and the identities of those who control it. Nothing in such a system remains static and, unlike other systems, it is the natural effect of the system to reward its participants for creative contributions that sustain and advance its dynamism. The Rule of Law in the Western democracies represents the collection of deeper cultural values within which the dynamic activity takes place and operates as a facilitator, governor and definer of the economic activity by which power is distributed and social goods created and shared.Joseph Schumpeter once explained: “The capitalist process not only destroys its own institutional framework but it also creates the conditions for another. Destruction may not be the right word after all. Perhaps I should have spoken of transformation.” This point is raised because it seems quite obvious that we are at a point of transformation and that, while we can understand that fact without question, we still have no clear idea about the full nature, scale, elements, timing, costs, benefits or consequences of that transformation. It is much like Nikolai Kondratiev observed in accordance with his description of “Kondratiev Waves” that periodically affect the form and structure of an economic system. A key aspect of Kondratiev’s “Wave” concept is that the system does not simply change in degree as a linear phenomenon but shifts “in kind” and takes on new characteristics while discarding some of those associated with its previous form. Although there are challenges to the existence of the periodic “waves” in terms of their specific timing there is no real dispute that capitalist societies undergo periodic fundamental transformations. Technological developments in communication and automation are currently driving such a fundamental transformation. Moreover, despite that this wave of development arguably began in the mid-1990s, the end state is still mostly conjectural. Given what we are saying about the close connection between economic activity and the Rule of Law, we assert that it is difficult to understand either sub-system in isolation from the other. It is also inevitable that the Rule of Law element, while creating a framework within which economic activity occurs, is largely controlled and caused by the economic factors that are supported by the system generated by strong Rule of Law institutions. We are fully committed to the Western version of the Rule of Law and consider the form that economic activity takes in Western democracies as a vital “cause-and-effect” element of that system. In this brief analysis we will explore these considerations ","PeriodicalId":262348,"journal":{"name":"Cleveland-Marshall College of Law Legal Studies Research Paper Series","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127381902","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Polish Migrant and Its Impact in UK","authors":"Mohammad A. Islam","doi":"10.2139/SSRN.2709265","DOIUrl":"https://doi.org/10.2139/SSRN.2709265","url":null,"abstract":"Unlike a birth or a death, a \"migration\" is not a discrete natural event, one of a series that can be counted and classified with little or no ambiguity. Whether someone who moves is a \"migrant\" depends or more less arbitrary criteria concerning the distance covered, the relative permanence of the move, and its seeming importance. This lack of conceptual clarity has been aggravated by the fact that data are typically collected following legal, political, or other ad hoc definitions, most of what we think we know about migration derives from these inadequate statistics. The paper juxtaposes legal analysis of the UK's free movement policy with pragmatic perspectives taken from in-depth interviews with Polish migrants.","PeriodicalId":262348,"journal":{"name":"Cleveland-Marshall College of Law Legal Studies Research Paper Series","volume":"2 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116940336","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Self-Interest and Sinecure: Why Law School Can't Be 'Fixed' from Within","authors":"David R. Barnhizer","doi":"10.2139/SSRN.2376909","DOIUrl":"https://doi.org/10.2139/SSRN.2376909","url":null,"abstract":"The issue of how best to do a legal education is being approached as if it were an intellectual and pedagogical question. Of course in a conceptual sense it is. But from a political and human perspective (law faculty, deans and lawyers) it is a self-interested situation in terms of how does this affect me? The reality is that for law faculty and deans it is mainly a life style, status, economic benefit and political situation in which the various interests protected by the traditional faculty slot placeholders (as well as the non-traditional practice-oriented teachers) are being masked by self-serving language best described as “high rhetoric”. My point is that as some lawyers have told me, “people would kill to have your job.” That is disturbingly close to being accurate. And if that is true then it offers a useful insight that “people would probably do almost anything to keep that job” once they have become part of the incredibly comfortable academic system inhabited by the American law professor. If we were critiquing any system other than the one in which we work, law professors (as lawyers) would immediately evaluate that other system based on the effects of the inevitable sense of entitlement, privilege, self-interest, bias and resistance to change that affects any system. A central dynamic operating against real change in legal education is the very high level of individualized self-interest that characterizes the amazing job of the American law professor. This individualized self-interest produces a set of inchoate “work rules” that is at least as powerful as the work rules under which many labor unions operate. The rules allow the law professor unaccountable “space” to do whatever he or she desires in teaching, research, and external activity. This allows too many members of law faculties to treat their lucrative and privileged positions as a part-time job. As I suggest in this brief essay, very few beneficiaries of such a system voluntarily seek to alter its highly favorable terms of operation or are able to fully withstand the seductions of its privileges and perquisites. Most engage in convenient rationalizations that prevent real change because that would require them to lose the privileges and impose greater accountability and responsibility. A result of the intense self-interest in which the American law professor operates is that recommendations that law school be modified to be more “practical”, implement clinical programs and incorporate courses such as Trial and Appellate Advocacy, Dispute Resolution, Negotiation, Interviewing and Counseling, Transactional work and so forth will not be accepted as significant across-the-board educational reforms. Arguments aimed at achieving substantial improvements in legal education have been around for four or five decades. It isn’t as if the premises of those arguments were obscure and a “great cloud of unknowing” suddenly stripped away. It is amusing to see people “reinventing the wheel” a","PeriodicalId":262348,"journal":{"name":"Cleveland-Marshall College of Law Legal Studies Research Paper Series","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133643453","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Role of Bilateral Investment Treaties in Mitigating Project Finance's Risks: The Case of Colombia","authors":"J. Hoyos","doi":"10.2139/SSRN.2163284","DOIUrl":"https://doi.org/10.2139/SSRN.2163284","url":null,"abstract":"Bilateral Investment Treaties (BITs) have been widely used as a warranty against political risks in developing countries. A justification for entering into those agreements, besides the desire to encourage bilateral investments, is the absence of a multilateral legal framework regulating investments; thus, a substantial portion of the relationship between host states and international investors has been developed through bilateral agreements, such as BITs and investment chapters in FTAs. This paper analyzes the most substantive provisions of the Colombian signed BITs and the investment chapter of the United States – Colombian FTA (as this is one of the most important and recent agreements entered into by Colombia) in order to determine, from a project finance perspective, the scope of the protections given by these instruments to foreign investors and their impact on risk mitigation.","PeriodicalId":262348,"journal":{"name":"Cleveland-Marshall College of Law Legal Studies Research Paper Series","volume":"19 4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124278863","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Incubator or Cultivator: Defining the Role of the Surrogate","authors":"B. Lewis","doi":"10.2139/SSRN.1572887","DOIUrl":"https://doi.org/10.2139/SSRN.1572887","url":null,"abstract":"The availability of reproductive technology makes it possible for one woman to supply the genetic material to create the child and another woman to gestate and give birth to the child. This division of labor has required courts to have to adjudicate maternity. A few state legislatures have enacted statutes designating the legal mother of a child conceived as the result of a surrogacy arrangement. In other jurisdictions, the courts must decide whether the surrogate or the contracting woman should be recognized as the child’s legal mother. In order to accomplish that purpose, courts have relied upon several different tests. As a result, the woman who gives birth may be deemed the legal mother in one state. In another jurisdiction, the woman who contributes the genetic material used to create the child may be adjudicated as the legal mother. These conflicting results are not in the best interests of the child, the contracting couple or the surrogate.In order to prevent forum shopping and in the interest of judicial economy, instead of creating tests to allocate maternity, the courts should rely on standard contracts principles and conclude that the surrogate is never the legal mother of the child. In cases where there is a valid contract, the court should enforce the contract. The remedy for the surrogate’s breach should be specific performance. Therefore, the court should order the surrogate to surrender the child to the contracting couple. If no written surrogacy contract exists or the jurisdiction does not recognize surrogacy contracts, the court should apply the doctrines of promissory estoppel or unjust enrichment, to prevent the surrogate from retaining custody of the child. It should not matter whether the surrogate is an incubator (gestational surrogate) or a cultivator (traditional surrogate). In either case, the surrogate should not be permitted to ignore the contract and keep the child.","PeriodicalId":262348,"journal":{"name":"Cleveland-Marshall College of Law Legal Studies Research Paper Series","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126119192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From Yuck to Wow and Back Again","authors":"D. Davis","doi":"10.1111/J.1748-0922.2009.01354.X","DOIUrl":"https://doi.org/10.1111/J.1748-0922.2009.01354.X","url":null,"abstract":"This review essay discusses three recent books on the problem of \"directed evolution,\" or genetic engineering, written from differing philosophical perspectives. The books are Babies by Design, by Ronald M. Green, Enhancing Evolution, by John Harris, and The Case against Perfection, by Michael J. Sandel.","PeriodicalId":262348,"journal":{"name":"Cleveland-Marshall College of Law Legal Studies Research Paper Series","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130210440","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lawrence: An Unlikely Catalyst for Massive Disruption in the Sphere of Government Employee Privacy and Intimate Association Claims","authors":"Matthew Green","doi":"10.15779/Z38Q05B","DOIUrl":"https://doi.org/10.15779/Z38Q05B","url":null,"abstract":"In 2003, the U.S. Supreme Court handed down Lawrence v. Texas, the landmark decision that overturned a Texas statute proscribing homosexual sodomy. The Supreme Court held that the Texas statute infringed the right of \"free adults\" to engage in private, consensual, non-commercial sexual conduct in their home. In doing so, the Court overturned a prior case, Bowers v. Hardwick, which had upheld a Georgia sodomy statute. In his Lawrence dissent Justice Scalia predicted that overruling Bowers would cause a massive disruption of the current social order. To substantiate his point, he cites numerous cases, many in the area of public employment, the foundations of which, he contends, are now undermined because of the Court's overruling of Bowers. This article presents a strong argument that the massive disruption theory is unfounded in the area of government employee privacy and intimate association claims. Such clams typically arise when a government employee is terminated or otherwise sanctioned because he or she is involved in a relationship the public employer claims conflicts with the employer's interests. Several reasons support the narrow reading of Lawrence with regard to these claims.Despite Lawrence's invocation of cases discussing fundamental rights the Court failed to state that the right at issue in that case was a fundamental right, and the Court appeared to invalidate the Texas statute under rational basis review. Accordingly, lower courts interpreting Lawrence have held that it created no new fundamental right and likewise have analyzed privacy and intimate association claims that rely for support on Lawrence, including claims brought by public employees, under rational basis review. Such review generally results in upholding the government decision.The article further demonstrates that Lawrence has neither undermined the at-will employment doctrine nor the deference afforded to a government employer to make decisions regarding its workforce, even where those decisions curb a worker's right to enter into a relationship his or her employer contends conflicts with its effective functioning. This article also demonstrates that successful employee claims are rare because numerous lower courts have adopted stringent tests to analyze employee privacy and intimate association claims. Such tests rarely result in employee victories. It is, therefore, unlikely that Lawrence will have a massive effect on employee privacy and intimate association claims.To test this thesis, the article analyzes the cases that Justice Scalia cites in his dissent as now standing on shaky foundation in the wake of Lawrence. The article demonstrates that the holdings of these cases likely survive Lawrence.","PeriodicalId":262348,"journal":{"name":"Cleveland-Marshall College of Law Legal Studies Research Paper Series","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121633976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Predatory Lending and Community Development at Loggerheads","authors":"Kathleen C. Engel, P. McCoy","doi":"10.2139/ssrn.687161","DOIUrl":"https://doi.org/10.2139/ssrn.687161","url":null,"abstract":"For decades, cities have invested in decaying neighborhoods, leading to increases in home values and home equity. As a result, these neighborhoods have become ready targets for predatory lenders, who market their abusive loans to financially unsophisticated homeowners with home equity and no relationships with traditional lenders. Some borrowers lose their homes; others forsake home repairs to avoid default and foreclosure. Neighborhoods that once were stable become littered with abandoned and neglected homes, resulting in increased crime, falling home values, rising demands for social services, and lower tax revenues. In the wake of the devastation done by predatory lenders, the question for policymakers is: what can be done? This paper seeks to answer this question. The paper opens by defining predatory lending. Next, the paper describes how the rise of securitization, deregulation of price terms, affordable lending incentives, bank closings, and historical credit discrimination together fueled the rise and institutionalization of predatory lending in the 1990s. Lastly, the paper evaluates different possible approaches to redressing predatory lending, including industry self-regulation, consumer education and counseling, Community Reinvestment Act oversight, criminal enforcement, existing private causes of action, and a suitability proposal.","PeriodicalId":262348,"journal":{"name":"Cleveland-Marshall College of Law Legal Studies Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129972671","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}