Copyright (c) 2009 Villanova University School of Law All rights reserved. http://law.bepress.com/villanovalwps Recent documents in Villanova University Legal Working Paper Series en-us Mon, 27 Jul 2009 12:50:07 PDT 3600 http://law.bepress.com/villanovalwps/papers/art138 http://law.bepress.com/villanovalwps/papers/art138 Tue, 19 May 2009 08:14:18 PDT Severability doctrine provides the leading, and some say only, way to deal with partially unconstitutional statutes. But severability is a deeply flawed doctrine whose distinctive function--which is not to save, but to destroy--is misunderstood. This Article provides an alternative, based on the approach used in the first several decades of judicial review. This Article excavates the old approach and explains how a reconstructed version of that original approach can be implemented in today's significantly different processes of constitutional adjudication. Kevin Walsh Constitutional Law Courts Legislation http://law.bepress.com/villanovalwps/papers/art137 http://law.bepress.com/villanovalwps/papers/art137 Tue, 19 May 2009 08:10:39 PDT Proponents of environmental regulation have catalogued various strategies used by takeholders to delay or weaken regulatory efforts, including (1) manufacturing or magnifying uncertainty; (2) demanding "sound science" (and thereby imposing unreasonable standards of evidence); and (3) data quality initiatives that permit deconstruction of credible studies by highlighting inevitable assumptions, funding sources, and areas for further research. Such strategies can be termed "idealizations" of science insofar as they rely on an unrealistic image of good science as somehow capable of avoiding tentative conclusions, institutional interests, consensual assumptions, and the need for further research.The question remains, however, when does an argument based on scientific uncertainty reflect a valid concern, and when is such an argument merely strategic?This Article is based on a study that was structured to identify whether and how arguments and challenges based on idealizations of science were used in the initial (pre-litigation) stages of several Philadelphia-area water quality controversies. The purpose of this Article is to describe the results of our study, including our sense that idealized arguments, at least in the early stages of TMDL disputes, are not very effective. David S. Caudill Environmental Law Water Law http://law.bepress.com/villanovalwps/papers/art136 http://law.bepress.com/villanovalwps/papers/art136 Tue, 19 May 2009 07:38:29 PDT Drawing on research into the use of experts in early 19th-century criminal trials, the image of mad alchemists in popular culture representations of science, and the distinction between empirical and contingent "interpretive repertoires" in the discourse of scientific controversies, this article explores the controversy over arsenic-detection technologies prior to the Marsh test. In addition to noting the predictable criticism of incompetent expertise in the service of law, this article highlights implied accusations of hubris and amorality on the part of over-confident experts, both in the early 19th-century and in today's crisis of forensic science. David S. Caudill Evidence Legal History http://law.bepress.com/villanovalwps/papers/art135 http://law.bepress.com/villanovalwps/papers/art135 Tue, 19 May 2009 07:30:33 PDT In this Article, I propose to analyze conflicts of law precedents and theory to explore the extent to which a state can apply its law on abortion to abortions performed outside the state but bearing a significant connection to the state. In attempting to resolve such questions, we enter into the domain of choice of law, part of the field of conflicts of law. This domain is notoriously unstable and contested. This instability allows legal commentators to project their attitudes towards abortion (and many other matters) in analyzing and construing the relevant authorities to resolve choice of law issues. I shall strive to avoid doing that, but it is for others to decide whether I succeed. I begin in Part I by examining why differences among states regarding abortion policy arise and why those difference are likely to persist. I then proceed in Part II by describing choice of law theory generally. In Part III, I examine the application of choice of law theory to litigation involving differing abortion laws in different states. I conclude in Part IV that states can apply their laws to their citizens when they travel out of the state in an effort to avoid abortion restrictions. Joseph W. Dellapenna Constitutional Law Legal History Sexuality and the Law Women http://law.bepress.com/villanovalwps/papers/art134 http://law.bepress.com/villanovalwps/papers/art134 Tue, 19 May 2009 07:19:54 PDT This Article examines the classification of the law into legal fields, first generally and then by specific examination of the field of environmental law. We classify the law into fields to find and to create patterns, which render the law coherent and understandable. A legal field is a group of situations unified by a pattern or set of patterns that is both common and distinctive to the field. We can conceptualize a legal field as the interaction of four underlying constitutive dimensions of the field: (1) a factual context that gives rise to (2) certain policy tradeoffs, which are in turn resolved by (3) the application of values and interests to produce (4) legal doctrine. An organizational framework for a field identifies the field's common and distinctive patterns, which may arise in any of these underlying constitutive dimensions.The second part of the Article applies this general analytical approach to the field of environmental law, proposing a framework for understanding environmental law as a field of legal study. Two core factual characteristics of environmental problems are, in combination, both common and distinct to environmental law: physical public resources and pervasive interrelatedness. Numerous use demands are placed on environmental resources, creating conflicts. These use conflicts define the policy tradeoffs that frame environmental lawmaking, forming the basis for a use-conflict framework for conceptualizing environmental lawmaking. A use-conflict framework for environmental lawmaking carries significant analytical advantages over other models for conceptualizing environmental law as a legal field. Todd S. Aagaard Environmental Law http://law.bepress.com/villanovalwps/papers/art133 http://law.bepress.com/villanovalwps/papers/art133 Mon, 11 May 2009 10:16:57 PDT In the typical securities fraud class action under Rule 10b-5, the plaintiff class consists of buyers who seek damages equal to the difference between the price paid for the stock during the fraud period and the lower price that prevails after corrective disclosure. The argument here is that this claim is really an amalgam of direct and derivative claims and that the derivative claims should result in recovery by the corporation for the benefit of all stockholders. There are three types of losses that arise in the typical stock-drop action. First, part of the loss may be attributable to lower expected earnings (fundamental loss). Second, part of the loss may be attributable to an increase in the cost of equity because of increased risk associated with the corporation (capitalization loss). Third, part of the loss may be attributable to the class action itself which if successful will result in a payout by the corporation to settle the litigation (feedback loss). It is not clear that fundamental loss should be actionable since it is a loss that will occur whether or not there is fraud. Capitalization loss may or may not be actionable. If it arises because of harm to the reputation of the corporation as a result of fraud or similar wrongful acts that cause the market to lose trust in the corporation resulting in an increased cost of capital for the corporation, the loss is derivative because it affects the corporation as a whole and affects all stockholders in the same way. On the other hand, the corporation may also suffer a capitalization loss in the absence of any fraud because the market learns new information about firm-specific risk. This loss - like fundamental loss - arises whether or not there is fraud. It should not be actionable. Finally, feedback loss arises only because the corporation pays if the class action is successful. But if the only actionable loss is capitalization loss for which the corporation should recover, there is no justification for a class action, no reason for the corporation to pay, and no feedback loss. In other words, feedback loss goes away if the class action goes away. In short, the only genuine loss in a stock-drop action under Rule 10b-5 is attributable to claims that should be characterized as derivative. The mystery is why the courts and litigants have failed to characterize such claims as derivative rather than direct. Although there is some doubt whether capitalization loss is actionable as a matter of federal securities law, such claims are clearly actionable under the state law of fiduciary duty, particularly when there is insider misappropriation involved. The fact that such claims are litigated as direct class claims rather than derivative claims is especially puzzling because most stock is held by well-diversified institutional investors that lose from class actions. Such investors are equally likely to sell (gain) as to buy (lose) during the fraud period. Gains and losses net out over time. So the cost of litigation is a deadweight loss that reduces portfolio return. Moreover, because the corporation pays if the action is successful, the net effect is that holders pay buyers. A diversified investor who buys a few shares during the fraud period to add to existing holdings may lose more on its holdings than it gains from any recovery. Thus, diversified investors should be opposed to direct class actions in principle. They should favor derivative actions that seek recovery by the corporation for any loss such as capitalization loss from fraud. But each of the constituencies that might advocate for derivative actions - institutional investors, defendant corporations, and the plaintiff bar - is afflicted by a disabling conflict that discourages reform. An institutional investor cannot afford to opt out of securities fraud class action because by doing so it would effectively pay as a holder without the benefit of an offsetting recovery as a buyer. Defendant corporations may be reluctant because insurance may not cover claims made in the context of a derivative action. And the plaintiff bar may be disinclined to prosecute derivative actions with much vigor because attorney fees are likely to be significantly greater in a class action. As a result, reform is unlikely unless the courts take the initiative. But this is arguably as it should be. It is well settled that procedure is a matter for the courts. And the characterization of claims as direct or derivative is a judicial function governed by the rules of procedure. Besides, the securities fraud class action is a judicial invention. Thus, the courts have the power and the duty to clean up the mess. RICHARD A. BOOTH Corporations Securities Law http://law.bepress.com/villanovalwps/papers/art132 http://law.bepress.com/villanovalwps/papers/art132 Wed, 15 Apr 2009 08:01:21 PDT In any large corporate acquisition, there is a delay between the time the parties enter into a merger agreement (the signing) and the time the merger is effected and the purchase price paid (the closing). During this period, the business of one of the parties may deteriorate. When this happens to a target company in a cash deal, or to either party in a stock-for-stock deal, the counterparty may no longer want to consummate the transaction. The primary contractual protection parties have in such situations is the merger agreement's "material adverse change" (MAC) clause. Such clauses are heavily negotiated and extremely complex, and when parties dispute whether one of them has been MAC'd between signing and closing, the fate of the transaction (and thus often billions of dollars in value) depends on the proper interpretation of the MAC clause. This article reports the results of an empirical study of MAC clauses in over 350 business combination agreements filed in the SEC's EDGAR database between July 1, 2007, and June 30, 2008, argues that prior theories of the allocation of risk in MAC clauses are inconsistent with the empirical data, and then explains why the complex allocations of risk typically made in public company merger agreements are in fact efficient. Robert T. Miller Commercial Law Contracts Corporations Economics Secured Transactions http://law.bepress.com/villanovalwps/papers/art131 http://law.bepress.com/villanovalwps/papers/art131 Mon, 06 Apr 2009 09:58:07 PDT "This is a review essay of Nan Seuffert's Jurisprudence of National Identity: Kaleidoscopes of Imperialism and Globalisation from Aotearoa New Zealand (Ashgate, 2006), a critical, interdisciplinary study of the construction of national identity of Aotearoa New Zealand, which unearths the raced and gendered constitution of this postcolonial nation state." Penelope J. Pether Jurisprudence Women http://law.bepress.com/villanovalwps/papers/art130 http://law.bepress.com/villanovalwps/papers/art130 Mon, 06 Apr 2009 09:53:07 PDT This essay takes up Robert Cover's account, in "Nomos and Narrative" of Constitutional Epics. Ranging across legal and literary texts including Toni Morrison's Beloved, David Malouf's An Imaginary Life, the Canadian Arar Commission Report, and Bringing Them Home, the Report of the Australian Human Rights and Opportunity Commission's National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, it concludes that what comparative study of Constitutions and their Epics might yield are brutal truths and the judgments of history, but also insights into how we might make of that unpromising material a nomos and a narrative of redemptive Constitutionalism. Penelope J. Pether Immigration Law Jurisprudence http://law.bepress.com/villanovalwps/papers/art129 http://law.bepress.com/villanovalwps/papers/art129 Mon, 06 Apr 2009 09:40:34 PDT This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, the achievement and exercise of authoritativeness. Authoritativness is the gateway by which goods enter, including through human law. The article develops these points by showing their place in United States v. Mead (2001). The article was prepared for the January 2009 meeting of the AALS Section on Law and Religion, co-sponsored by the Section on Jewish Law and the Section on Islamic Law. Patrick McKinley Brennan Administrative Law Constitutional Law Jurisprudence Law and Society Legislation Religion