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Attachment to the Therapist and Psychotherapy Outcome in Symptoms of Anxiety, Depression and Borderline Personality Disorder
No full textPreclusion of Remedies Under Article 16(3) of the UNCITRAL Model Law
Get PDFIn search of actual consequences of (mis)use of the available remedies, Chapter II of the foregoing article starts by exploring whether the Model Law implies “choice of remedies” policy by examining its travaux préparatoires (hereinafter “travaux”). It also seeks to determine existence of “alternative system of defences” at cross-border level between remedies at the seat of arbitration and in the enforcement country. Chapter III engages in a determination of general framework of preclusions under the Model Law by analyzing specific provisions such as Article 4, 13 and 16(2).
Chapter IV, by analyzing the travaux, determines the primary purpose of the Model Law. It further engages in analysis and discussion of what may affect purported preclusionary nature of Article 16(3) by looking at the form of the preliminary ruling, language of the article and analyzing time limit provided therein.
Subsequently, Chapter V examines the correlation between Article 16(3) and remedies against final award under the Model Law. By detailed analysis of travaux, the article determines whether Article 16(3) should fall under the purported “choice of remedies” policy or rather under the framework of preclusion of the Model Law. The chapter engages in examination of pertinent case law and literature in order to reach the conclusion on the preclusiveness Article 16(3) of the Model Law on post-award stages.
Finally, the article provide author’s conclusion on the preclusive nature of Article 16(3) of the Model Law and proposes a possible solution in order to address the problem of ambiguity and inconsistency
Resolving the Conflict Between Fiduciary Duties and Socially Responsible Investing
Get PDFPart I of this Article clarifies and strictly defines the frequently nebulous idea of socially responsible investing (“SRI”), explaining its history, trends, and current status. To give perspective and perhaps temper hype, Part II discusses the efficacy of SRI as a method of change, concluding that while SRI may not have much effect on air quality or oppressive foreign governments, there are situations where SRI is useful and even necessary. Part III looks at the conflict between SRI and the fiduciary duties of trustees, investment advisers, and broker-dealers. It shows the contractual nature of fiduciary duties and why this is relevant for SRI. Part III also explores important legislation, such as ERISA, that affects fiduciary duties in certain circumstances. Further, Part III examines the superficial and non-legal analysis in some of the high-profile commentary on SRI. Part IV offers the legal analysis that has been lacking, examining SRI through the doctrines of authorization and ratification, as well as determining the effects of exculpation clauses in trust instruments and contracts. The Article concludes by explaining when SRI is lawful for fiduciaries and instructing them as to how they can engage in SRI without fear of breaching their fiduciary duties
Nature’s Law: The Evolutionary Origin of Property Rights
Get PDFThis article contributes to the outline of the origin of property rights set forth by Professor Krier, by more fully analyzing the role of evolutionary biology in the development of property rights. This article focuses on the pre-political formation of property ownership and the initial formation of concepts of property and ownership. Expanding on Krier’s analysis, this article considers the implications of this evolutionary foundation on our modern property regime, particularly given the growing chasm between the wealthy on one side and the poor and middle-class on the other.
Part II discusses the growing disparity of wealth in America and our property system’s failure to respond to this inequity. While current debates among property scholars have attempted to address concerns of inequality, Part III discusses how scholars have inadequately analyzed the origin of the rights that accompany ownership. Part IV explores the evolution of property rights in nature. The property rights displayed by animals in the wild mirror many of our common law property rules, and Part V argues that our common law property system is based on the same unconscious evolutionary strategy that causes the deference to ownership that is displayed in animal behavior. Part VI discusses what this evolutionary foundation to our default property rules means for our modern property regime
The Art of a Loan: “When the Loan Sharks Meet Damien Hirst’s ‘$12-Million Stuffed Shark’”
Get PDFPart I of this Article introduces the reader to the typical types of loans that banks make, includes an in-depth description of a secured loan, and finishes with a discussion of the due diligence requirements of banks. Part II identifies the unique complexities posed by art when it is used as collateral, comparing and contrasting the banks’ process when approving a loan secured by commonly-used assets versus a loan secured by art. Part III discusses the banks’ growing willingness to approve art-backed loans, and identifies the safeguards built into such deals. Part IV introduces the sub-prime lenders of the art market, discussing pawn shop regulations and loans made by “luxury pawn shops” and “art dealers.” Part V compares and contrasts bank loans and “art lender” loans with an emphasis on defaulting borrowers. Part VI discusses the effects of art-backed loans in general, predicting that such practices may lead to a significant drop in the price of art in the market, placing more works in private collections, and thereby decreasing the amount of art available for viewing to the general public. Finally, Part VII briefly concludes
Protecting Diversity in the Ivory Tower with Liability Rules
Get PDFThe two sides of the debate over race-based affirmative action in higher education tell two distinct stories – one of diversity’s benefits and the other of affirmative action’s burdens. In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court found the benefits to be so compelling to society that they were deemed to outweigh the burdens. Voters in Michigan and other states found otherwise and the Court in Schuette v. Coalition to Defend Affirmative Action, 572 U.S. — (2014) upheld their right to ban race-conscious admissions. Paradoxically, since the use of race as a “plus factor” by selective universities to admit a few underrepresented minority applicants makes possible a diverse learning environment that benefits all students on campus, the beneficiaries should far outnumber and outvote the few applicants who are displaced. But because those actually burdened are not known, the number of imagined victims is easily inflated in the mind of electorate. In highlighting this and other shortcomings of the Grutter regime, this article proposes that if the benefits of diversity outweigh the burdens, the universities should be able to demonstrate this favorable cost-benefit ratio by accommodating the real burden-bearers.
Accommodation could come in the form of direct compensation for the displaced students or indirect burden-shifting – getting others to give up their seats. Shifting the burden to those who are more willing to bear it can lower the cost of settlement. In-kind benefits and gifts could be used instead of monetary compensation. Addressing the displacement burden would reduce much of the grievances against racial preferences in admissions, and reveal to the public how little affirmative action affects the vast majority of applicants. Of course, it would impose costs on the university, but the willingness of universities to take on these costs also demonstrates their commitment to the benefits of diversity. A skeptical Court in Fisher v. University of Texas, 570 U.S. —- (2013) remanded for lower courts to determine whether race-conscious admissions are still necessary when the university was already achieving on-campus diversity through race-neutral means. Accommodation could provide a convincing showing that the extra benefits from using the race-plus factor are indeed worth the costs.
Lastly, accommodation would give universities a much stronger incentive to address the academic achievement gap across racial groups, which makes affirmative action necessary in the first place. Grutter permits the use of race in admissions for 25 years to eliminate this gap. But scant evidence of progress over the past decade raises concerns that the universities are perpetuating the gap by holding students of different racial groups to different standards. If accommodation is required, universities would find it in their interest to encourage those minority students who could be accepted with the help of the race-plus factor to improve their academic credentials further so they could be admitted without triggering the need to accommodate a displaced applicant. Only then will the gap start to narrow and lead to the realization of Grutter’s goal – achieving diversity without resorting to race-conscious means
