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Geographic Indicators: Unexpected Fodder in Brexit Negotiations
Get PDFThe future of intellectual property, especially geographical indications, in the UK is increasingly murky. Libby McKown explores what will happen if GIs are used in the fray of hard negotiations about Brexit.https://scholarship.law.slu.edu/lawjournalonline/1003/thumbnail.jp
Airborne Argus?: St. Louis, Persistent Surveillance Systems, and Stabilizing the Lofty Aims of Fourth Amendment Jurisprudence
Get PDFIn October of last year, the City of St. Louis considered implementing an unprecedented aerial surveillance program. In this article, Jacob Schlosser discusses this powerful but legally questionable system.https://scholarship.law.slu.edu/lawjournalonline/1039/thumbnail.jp
Would the ADA Pass Today?: Disability Rights in an Age of Partisan Polarization
Get PDFThe Americans with Disabilities Act of 1990 (ADA) was the most significant civil rights legislation enacted since the Civil Rights Act of 1964. It provided comprehensive protection against discrimination for individuals with disabilities in employment, public accommodations, and public services. It built on § 504 of the Rehabilitation Act that provided these protections only to programs receiving federal financial assistance. It afforded broad access to those individuals who had benefitted from the 1975 Individuals with Disabilities Education Act. This complex and far-reaching legislation was made possible by a confluence of timing and the right people at the right place at the right time in a political and social climate much different than today. It is extremely unlikely that such legislation would pass in the current political climate. Fortunately, the benefits of the ADA have become apparent as a result of almost three decades of impact. The combination of its success (although more is needed particularly in the area of health care access), the high percentage of the population affected by disability directly or indirectly, and the challenges of any major legislative change on any issue at present makes it unlikely to be repealed in any major way. There is, however, substantial concern over its diminished impact due to administrative agency actions in its reduced enforcement, prioritization, and other administrative attention.
This article recounts the story behind the passage of the ADA, referencing the detailed and insightful stories recounted in the 2015 book Enabling Acts: The Hidden Story of How the Americans with Disabilities Act Gave the Largest US Minority Its Rights, by Lennard Davis as the foundation. Added to those insights are the perspectives of the author of this Article who has been involved in disability rights advocacy and education since 1979
[Dis]integration: Second-Order Diversity and Schools
Get PDFThis article challenges the prevailing definition of diversity in schools. Borrowing from legal theorist Heather Gerken, it argues that diversity is best understood not simply as a rationale for creating integrated spaces, but also [dis]integrated ones, places where minority students and faculty can occupy majority positions, and are able to exercise majority control. Such spaces serve legitimate pedagogical goals that are different from those associated with statistical integration, and therefore warrant consideration by courts tasked with reviewing the use of race in university admissions
Reconstructing the Corporation: A Mutual-Control Model of Corporate Governance
Get PDFThe consensus around shareholder primacy is crumbling. Investors, long assumed to be uncomplicated profit-maximizers, are looking for ways to express a wider range of values in allocating their funds. Workers are agitating for greater voice at their workplaces. And prominent legislators have recently proposed corporate law reforms that would put a sizable number of employee representatives on the boards of directors of large public companies. These rumblings of public discontent are echoed in recent corporate law scholarship, which has cataloged the costs of shareholder control, touted the advantages of nonvoting stock, and questioned whether activist holders of various stripes are acting in the company’s best interests. Academics who support stronger shareholder rights are accused of pandering to special interest groups or naively seeking a panacea in a plebiscite.
As critical theorists have documented over time, the foundations of the shareholder primacy model have always been compromised. In particular, the arguments for a core feature of the modern corporation — the exclusive shareholder franchise — have been revealed as the product of flawed assumptions, misapplied social choice theory, and a failure to hold true to the fundamental precepts of standard economics. It is time to look at such governance features anew, and reorient the literature around the basic purpose of corporations: to provide a legal mechanism for business firms to engage in the process of joint production. In this article, we demonstrate how the prerogatives of corporate governance have been improperly limited to shareholders. We then present a new mutual-control model of corporate governance, one that builds on the longstanding theory of the firm as well as a novel theory of democratic participation. These twin arguments, economic and political, both counsel in favor of extending the corporate franchise to employees as well as shareholders, and, importantly, provide a way to distinguish these two constituencies from other corporate stakeholders when it comes to governance rights. We conclude by assessing the current status of a shared governance system in Germany and advocating for further theoretical and empirical inquiry into organizational governance structures that provide for joint shareholder and employee participation
Testing — and Mostly Rejecting — the Folk Wisdom of the Effective Appellate Brief
Get PDFThere is a great deal of folk wisdom regarding how to draft an effective appellate brief. Judges and lawyers offer advice that briefs should be short, should present relatively few issues, should always be followed by a reply brief, and so forth. There is little doubt that aspiring appellate advocates, law professors who teach writing, appellate court clerks, and appellate court judges look to this folk wisdom to learn how to write effective appellate briefs, teach the skill, and evaluate, by proxies, which briefs are likely to be the best.
But this folk wisdom has never been empirically tested. We do so in this article. We examined all cases in the Eighth Circuit Court of Appeals that resulted in an opinion in 2016, coding for many of the variables that the folk wisdom discusses. We also coded for the type of holding and type of opinion that the Eighth Circuit published as our dependent variables.
The result was that much of the folk wisdom, in our dataset at least, was not statistically supported. We did, however, find some statistically significant correlations between our independent and dependent variables. These results will help to inform the attorneys, professors, clerks, and courts that work with appellate briefs every day. It will help these people draft, teach, and evaluate appellate briefs. It will also further the inquiry into effective appellate writing by calling into question the accepted folk wisdom, and thus opening the doors for other avenues of research
