University of Maryland Francis King Carey School of Law

From the 2010 News Archive
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UMDLaw Publishes New Issue of Research Paper Series

The University of Maryland School of Law is pleased to announce the publication of the latest issue of the School of Law Research Paper Series under the auspices of the Legal Scholarship Network.

Click here to view all of the most recently papers published in the series. The School of Law also maintains the Digital Commons featuring the research and scholarship of the faculty.

Papers in this issue include:

Chevron Without the Courts?" by Shruti Rana
One of the central battlegrounds in administrative law concerns the balance of power between federal courts and agencies. Courts and agencies have long been viewed as having complementary roles in statutory interpretation which reflect their particular institutional competencies and traditional legal and constitutional roles. In its seminal Chevron decision, the Supreme Court attempted to set forth a framework clarifying these roles, dividing interpretive and decisionmaking authority between the courts and agencies in each of Chevron’s two steps; yet, post-Chevron case law has been marked by much debate and dissent over where the lines delineating the scope of judicial and agency authority should be drawn.

This article seeks to enter the debate over the proper scope of the judicial interpretive role in statutory interpretation, analyzing the Supreme Court’s recent Chevron revision project through the lens of immigration law to show that there has been a significant shift in the judicial interpretive role. It argues that recent Supreme Court jurisprudence in the immigration context, and the evolving roles of the immigration agency and federal courts in the wake of recent upheaval in the immigration arena, have resulted in a significant shift of authority expanding the agency’s domain at the judiciary’s expense.

"Crisis, Rescue and Corporate Social Responsibility Under American Corporate Law" by Robert Rhee
This chapter discusses the legal issues of rescue and corporate social responsibility during times of public crisis. It analyzes a corporate board’s fiduciary duty related to the management of a public crisis and the provision of aid to government and the public. The thesis is that American corporate law adequately provides corporate boards authority to assume broad principles of corporate social responsibility, and that during a public crisis this authority is specially recognized in the enabling statutes of corporate law and should be broadened even further to pursue the public good in exigent circumstances.

"Barriers to Effective Risk Management" by Michelle Harner
"As long as the music is playing, you’ve got to get up and dance. We’re still dancing."

This now infamous quote by Charles Prince, Citigroup’s former Chief Executive Officer, captures the high-risk, high-reward mentality and overconfidence that permeates much of corporate America. These attributes in turn helped to facilitate a global recession and some of the largest economic losses ever experienced in the financial sector. They also represent certain cognitive biases and cultural norms in corporate boardrooms and management suites that make implementing a meaningful risk culture and thereby mitigating the impact of future economic downturns a challenging proposition.

The global recession highlighted significant failures in firms’ risk management practices. These failures implicated weaknesses not only in firms’ financial risk modeling but also the human/governance side of risk management. Unfortunately, fixing the former might be significantly easier than attending to the latter. Studies suggest that cognitive biases, including confirmation bias, overconfidence/optimism bias and framing, can impair a board’s and management’s ability to assess risk accurately. These problems are compounded by the typical incentive structure and the “winner-take-all” mentality adopted by many corporations in the United States.

This essay analyzes the potential benefits of improved risk management practices, commonly called enterprise risk management (ERM), and the potential barriers to implementing meaningful ERM at U.S. firms. ERM is an integrated risk management framework that seeks to improve knowledge of and communication about potential risks throughout the firm, starting with the board and senior management team. Indeed, the board and senior management team are vital to creating a risk culture. The essay considers the impact of boardroom dynamics and U.S. corporate culture on risk management practices. The essay further considers whether regulation or a different approach is needed to encourage U.S. corporations to invest the necessary human capital in meaningful ERM.

"Deciphering Dignity" by Leslie Meltzer Henry
This commentary draws on dignity’s usage in law, ethics, and public policy to contemplate a narrow question about what the concept of dignity means in debates about human enhancement technologies. In particular, it considers arguments made by Fabrice Jotterand and other bioethicists who aim to repudiate the transhumanist claim that individuals can enhance their dignity through technological modification. The trouble with the positions on both sides of this debate is that it is extremely difficult to make normative comparisons about human and post-human dignity without first infusing dignity with particular metaphysical assumptions. To that end, the commentary offers a brief taxonomy of dignity to illustrate the various meanings of dignity that animate the debate between Jotterand and the transhumanists, and it demonstrates how the taxonomy can clarify and lend moral salience to the issues at hand.

"Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases" by Michelle Harner and Jason Cantone
Commentators have observed two apparent trends in the use of legal scholarship by the judiciary. First, judges now cite law review articles in their opinions with less frequency. Second, despite this general decline in the invocation of legal scholarship, judges now cite articles in specialty journals with more frequency.

Some commentators attribute the apparent decline in the courts’ use of legal scholarship to the increasingly theoretical and impractical nature of that scholarship. A few studies even suggest that the increasing use of specialty journals by the courts reflects the gap between the content of legal scholarship in general law reviews and the practical needs of the judiciary. Others defend the academy, taking the position that academics continue to write meaningful doctrinal articles and that theoretical and interdisciplinary pieces encourage broader intellectual discourse regarding legal issues.

This study analyzes and refutes the claim of the diminishing role of legal scholarship in the context of business law cases. Specifically, the study focuses on the use of legal scholarship by Delaware state courts from 1997 to 2007 and then on an interval basis dating to 1965. The study finds no general downward trend in the use of legal scholarship in business law cases. Moreover, the study undertakes a detailed analysis of factors predicting a court’s likelihood to cite legal scholarship. Overall, the study provides a unique insight into when, why and how courts invoke legal scholarship in business law cases and, consequently, may help inform future scholarship intended to influence court decisions in this discipline.

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Admissions: PHONE: (410) 706-3492 FAX: (410) 706-1793

Copyright © 2018, University of Maryland Francis King Carey School of Law. All Rights Reserved