Wang on Insider Trading Damages

Bill Wang has published an article called "Measuring Insider Trading Damages for a Private Plaintiff," 10 U.C. Davis Business L. J. 1 (2009). Bill identifies four measures of damages: "pure" out of pocket; "expedient" out of pocket; recissory; and cover. No single measure is "fair" in all cases, he argues, because of real-world problems in determining what a particular plaintiff would have done absent the fraud.

Leib on Reactions to "Privilege or Punish"

Ethan Leib (along with co-authors Dan Markel and Jennifer Collins) have published a response to three essays reviewing their recently published book, Privilege or Punish? Criminal Justice and the Challenge of Family Ties. The three reviews were written by Doug Berman (Ohio State), Naomi Cahn (George Washington), and Gabriel Chin (Arizona). The Leib, et al., response is called (When) Should Family Status Matter in the Criminal Justice System?, 13 New Criminal Law Review (2010). Here is the link to the entire symposium, which is in the Criminal Law Review: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1561777

Lee on Special Populations in California Prisons

Eumi Lee has published an article called An Overview of Special Populations in California Prisons, 7 Hastings Race & Poverty L. J. 223 (2010) (symposium on California correctional crisis)(available on HeinOnline). The article (like the panel that generated it) is limited to three groups: transgender, immigrant, and women prisoners. The article concludes that, with the state facing such severe budget and inmate population problems in general, the treatment of these special populations must continue to be monitored.

Lee on the Many Barriers to Reentry in California

Eumi Lee has published an article titled, The Centerpiece to Real Reform? Political, Legal, and Social Barriers to Reentry in California, 7 Hastings Race & Poverty L. J. 243 (2010) (symposium on California correctional crisis)(available on HeinOnline). The article concludes that the reentry programs established by AB 900 have not become the "Centerpiece of Real Reform" they were promised to be. Without the implementation of community-based reentry programs and the reform of state and federal laws that impose many collateral consequences on parolees, "the self-reinforcing cycle of incarceration, parole, and recidivism will continue unabated."

Field on Explicit Elections in the Federal Income Tax System

Heather Field has published an article titled "Choosing Tax: Explicit Elections as an Element of Design in the Federal Income Tax System," 47 Harv. J. Legis. 21 (Winter 2010). Here's the abstract:

Taxpayer choice pervades the federal income tax system. This choice can be made either implicitly, whereby the taxpayer arranges his economic and/or legal affairs so as to qualify for his desired tax treatment, or explicitly, whereby the taxpayer merely tells the Internal Revenue Service how he wishes to be treated for tax purposes, without having to take any specific non-tax actions or structure his financial or legal dealings in any particular way. Scholars often focus on implicit taxpayer choice and seek to hinder that type of tax planning. However, explicit taxpayer choice garners little scholarly attention. This hole in the literature is surprising given that explicit taxpayer choices, in the form of tax elections, generally reflect pure tax-planning opportunities that are affirmatively granted to taxpayers by Congress and the Treasury Department and given that tax elections continue to be added to the Internal Revenue Code. To help fill this gap, this Article provides a framework for understanding how explicit tax elections are and should be used in the federal income tax system. Specifically, by drawing on a wide variety of tax elections, this Article discusses problems that may be caused by the use of explicit tax elections, identifies and assesses four major functions by the use of explicit tax elections, and derives a few generally applicable recommendations about how to design explicit tax elections so as to maximize their efficacy and minimize criticisms of their use. Despite the many compelling criticisms of the availability of explicitly provided taxpayer choices, this Article argues that carefully conceived explicit elections can be valuable tools in the design and administration of the tax system. Moreover, by isolating and analyzing situations where Congress and the Treasury affirmatively turn over to the taxpayers the right to determine their own tax consequences, this study of explicit elections can provide insight into the broader balance of power between taxpayers and the government. And, at the very least, this Article brings scholarly attention to the under-studied role of explicit elections in the tax system.

Boswell on Immigration Amnesty

Richard Boswell has published an article called "Crafting an Amnesty with Traditional Tools: Registration and Cancellation," 47 Harv. J. Legis. 175 (Winter 2010). In this article, Richard focuses on the best way to structure an amnesty program rather than on justifications for one.

The article argues that four overarching principles should govern an amnesty program: (1) the program should be rooted in preserving family unity, meeting needs for work skills, and fostering humanitarian values; (2) the program should in part aim to ameliorate unnecessary hardship to the individual applicant as well as to the community of which he has become a part; (3) the statutory scheme should be as simple as possible to minimize multiple or conflicting interpretations; and (4) ease and comprehensibility of administration.

Here's the link: http://ssrn.com/abstract=1563627

Carrillo on Popular Legal Culture

Jo Carrillo has written a chapter called "Popular Legal Culture" for Law in Society and History: Essays on Major Themes in the Work of Lawrence M. Friedman (Cambridge University Press) (Robert Gordon and Morton Horwitz, eds.) (forthcoming).

Keitner on Immunities of Foreign Officials from Civil Suit

Chimene Keitner has filed an amicus brief in the United States Supreme Court in Yousuf v. Samantar. In this case, torture survivors and victims' family members sued Samantar, the former Prime Minister and Minister of Defense of Somalia, for torture and extrajudicial killing. Samantar lives in Virginia. The Fourth Circuit held that the Foreign Sovereign Immunities Act of 1976 (FSIA) does not apply to individuals, and therefore does not shield Samantar from suit. It remanded the question of whether other, non-statutory sources of immunity might apply. The U.S. Supreme Court granted Samantar's petition for certiorari to review the Fourth Circuit's decision interpreting the FSIA. Briefing is currently in progress, and oral arguments are scheduled for March 3.

Chimene authored the Brief of Professors of Public International Law and Comparative Law as Amici Curiae in Support of Respondents, which is available online here (http://ssrn.com/abstract=1543642 http://ssrn.com/abstract=1543642> ). This amicus brief systematically examines non-FSIA case law involving the immunities of foreign officials from civil suit. In the context of this case, the brief refutes two unsupported assertions made by the Petitioner. First, Petitioner asserts that "pre-1976 common law immunized a state's officials for their official acts." He relies heavily on this assertion for his conclusion that the FSIA should be read to include former foreign officials notwithstanding the FSIA's omission of any reference to individuals in its definition of the term "foreign state." See 28 U.S.C. § 1603(a). Second, Petitioner claims that "the overwhelming current international authority" provides immunity to former foreign officials sued in their personal capacity for acts of torture and extrajudicial killing. The authorities Petitioner cites, and significant authorities that he omits to cite, do not support these assertions. Non-FSIA sources of foreign official immunity do not provide a blanket shield from personal liability for universally recognized international law violations, even if such violations were committed by individuals who held government positions.

Aviram on Shipping Out Inmates

Hadar Aviram has written an op-ed in the February 1 San Francisco Daily Journal, in which she asks some hard questions about the proposal to move many California prisoners out of the state. She refers to it as the "inmate export enterprise."

Weinberg on the California Stem Cell Initiative

Joanna Weinberg has posted a paper (co-authored with Joel Adelson of UCSF) on the California Institute for Regenerative Medicine (CIRM), which was created by ballot initiative to make stem-cell research a constitutional right. Joanna and Joel conducted interviews and reviewed documents to evaluate what kind of start CIRM has gotten off to. They concluded that CIRM has overcome start-up challenges, been selectively influenced by criticism, and adhered to its core mission.

Here's the link: http://ajph.aphapublications.org/first_look.shtml

Grodin on Prop. 8 and the California Constitution

Joe Grodin has posted an article that examines the principal questions about Proposition 8 facing the California Supreme Court, namely whether the state constitution can be modified through an initiative measure that would take away from an identifiable group rights that the state Supreme Court has deemed to be "fundamental," and whether that measure, if Proposition 8 is upheld, operates to invalidate existing same-sex marriages.

The link is here: http://www.bepress.com/cjpp/vol1/iss1/13/

Keitner on Rights Beyond Borders

Chimene Keitner has posted a draft to SSRN titled, "Rights Beyond Borders." Here is the abstract:

Burgeoning scholarly interest in comparative constitutional law, transnational criminal law, and national security law has generated surprisingly little synthesis among these fields. The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article addresses this gap by developing a conceptual framework for thinking about the extraterritorial application of domestic rights guarantees, with a focus on cases arising from the detention and interrogation of terrorism suspects. Part I identifies three modes of reasoning about rights beyond borders, which I label constitution as compact, constitution as conscience, and constitution as code. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her personal status and/or territorial presence. Conscience-based reasoning focuses the government’s mandate to act solely in accordance with a defined set of national values in all locations and circumstances. Code-based reasoning takes a strictly territorial approach to restrictions on government action outside the national territory, even vis-à-vis citizens. Part II examines the evolving jurisprudence of extraterritorial rights in three jurisdictions in light of these models: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act. These three characterizations of ways of thinking about the extraterritorial application of domestic rights regimes (compact, conscience, and code) can provide a convenient vocabulary for describing how domestic courts reason about specific challenges to government action beyond national borders. They can also help us think more systematically about how courts and other actors should reason about rights beyond borders, as governments bring their coercive power to bear on individuals in a variety of extraterritorial circumstances.

Here's the cite:
http://ssrn.com/abstract=1480886

Edit: Final publication at 36 Yale Journal of International Law 55.

Lee on Frankfurter's "Federal Jurisdiction"

Evan Lee has published a review of Felix Frankfurter and Wilber G. Katz, Cases and Other Authorities on Federal Jurisdiction and Procedure (1931). The review is titled, "Federal Jurisdiction According to Professor Frankfurter," 53 St. Louis U. L. J. 779 (2009), and is part of a symposium on "Teaching Federal Courts." This essay is part of a larger project on the history of the doctrines that make up the "Federal Courts" or "Federal Jurisdiction" course.

Aviram Talks to Esquire (!) About Prisons

Hadar Aviram is interviewed in Esquire about the California correctional crisis here: http://www.esquire.com/the-side/richardson-report/prison-population-debate-072809

Leib on Direct Democracy and the Budget

Ethan Leib and Chris Elmendorf (UC Davis) have published an op-ed in the New York Times suggesting a long-term solution to budget standoffs in California: http://www.nytimes.com/2009/07/28/opinion/28leib.html