Faculty SSRN Publications

Faculty Scholarship Blog

George Mason Law School Public Policy Conference on the Law & Economics of Privacy and Data Security
Wednesday, June 19, 2013 George Mason University School of Law Arlington, VA Dear Friend: I am writing to invite you to attend the Law & Economics Center’s Public Policy Conference on The Law & Economics of Privacy and Data Security. The conference will be offered by the LEC’s Henry G. Manne Program in Law & […]

Incoming W&L Law Prof. Margaret Hu’s Article Reviewed

Call for Papers: AALS 2014 Joint Program on Sections on Poverty Law and Clinical Legal Education

Professor Franck to Present at European Society of International Law

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).



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...

Why Register Hedge Fund Advisers - A Comment
Wed, 03 Apr 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...

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...

Does International Investment Law Need Administrative Law?
Mon, 25 Mar 2013 | Donald Earl Childress III
Jason Webb Yackee’s thoughtful article, Controlling the International Investment Law Agency, is an important contribution to a growing literature on the question of the legitimacy of the international investment law (IIL) system, and, in particular, investor-state arbitration, which is largely the focus of his article. Rather than taking a for-or-against position on the IIL system in its present form, Professor Yackee proposes that we accept the system as it exists and analogize it “to a do… 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...

After Kiobel: International Human Rights Litigation in State Courts and Under State Law
Tue, 05 Mar 2013 | Donald Earl Childress III
Litigation in domestic courts is only one of many ways to promote and protect international human rights, but it has received much attention from lawyers and scholars. Attention has focused above all on litigation in the U.S. federal courts under the Alien Tort Statute (the “ATS”). However, plaintiffs are facing growing barriers to ATS human rights litigation in the U.S. federal courts, and it is likely that the Supreme Court’s upcoming decision in Kiobel v. Royal Dutch Petroleum Co. wil… 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...

Forum Conveniens: The Search for a Convenient Forum in Transnational Cases
Wed, 13 Feb 2013 | Donald Earl Childress III
This Article examines the forum non conveniens doctrine as it is applied by federal courts and state courts in present-day transnational litigation. The Article also explores what happens when the doctrine is invoked in cases involving foreign sovereigns. The Article uncovers empirical evidence suggesting increased use of the forum non conveniens doctrine by courts. Unfortunately, this increased use does not come with clear standards for application. After considering the underlying rationales f… 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...

Introduction: The Role of Ethics in International Law
Mon, 28 Jan 2013 | Donald Earl Childress III
The purpose of this volume is to explore what role ethical discourse plays in international law. In so doing, the chapters uniquely explore the role of ethics in both public and private international law. This volume seeks (1) to delineate the role of ethical investigation in creating, sustaining, challenging, and changing international law and (2) to open up a conversation between two related disciplines – public and private international law – that frequently labor in different intellectua… Read more...