This Article draws on an empirical study of the careers of
international law graduates who earned an LL.M. in the United States, and
considers the role of a U.S. LL.M. as a path for building a legal career in the
United States. It identifies the
institutional, political, and economic forces that present challenges to
graduates who attempt to stay in the United States. While U.S. law schools prize the international
diversity of their graduate students, this study reveals that the U.S. legal
profession is most accessible to international students from English-speaking
common law countries, whose language and background allow them to blend into the
U.S. legal profession because their "foreignness" is less evident than students
without these characteristics. International law students also are the topic
of the companion article by Swethaa Ballakrishnen that follows, in which the
experience of international law students who return to their home country of India
is presented as a contrast. Together,
these articles offer insight into the different barriers that shape entry and
access into legal markets, and suggest implications for the way we understand
international credentialism and the global legal profession.
This Article studies the effects of an international credential for migrants who return to their home country—in this case, students who return to India with a U.S. LL.M degree. Borrowing a framework from social psychology and organizational theory, it argues that international students with American law degrees who return to their countries of origin do not always benefit from the credential. Instead, trends from qualitative interview data suggest that repatriating an international credential—however prestigious—is a fluid process that requires emphasizing or obscuring the credential depending on the interactional context. As a result, this Article presents a contrast to the preceding article by Carole Silver, which traces the experience of similar LL.M. graduates who stay in the United States to pursue a legal career. Together, these findings on the different barriers that shape entry and access into legal markets have important implications for the way we understand international credentialism and the global legal profession.
The focus of this Article is the effect that globalization has had on social inequalities within large corporate professional firms, in both the United Kingdom and the United States. While globalization is an imprecise term, there is general agreement about its destructive impact on traditional society. Some see this as producing a range of negative effects (such as psycho-social fragmentation and insecure employment). Others, however, have viewed it as opening up the possibility for individuals to create their own biography. This is due in part to globalization’s “capitalization of everything” which, in the case of the legal profession, has transformed the large law firm from a relatively parochial organization, in which personal relations remained highly significant, into a multinational organization governed by Human Resource Management (HRM), commonly employing Diversity Management (DM) techniques and dominated by discourses of entrepreneurialism. These developments could be expected to have resulted in significant progress toward a more socially representative profession. Yet statistical surveys and qualitative research suggest that gender, race, and class remain strongly determinant of career progress in both the U.S. and U.K. legal professions, including in the globalized corporate sector. This Article considers some of the theoretical models which might explain the persistent salience of social categories for legal careers. It then draws on these models in a discussion of recent qualitative research conducted for the U.K. Legal Services Board (LSB).
In 2007, the United Kingdom adopted a new law called the Legal Services Act. This Act radically changed certain aspects of U.K. lawyer regulation. Section 1 of that Act identified eight “regulatory objectives” that provide the basis for the regulation of the legal profession. The United Kingdom is not the only jurisdiction that has identified regulatory objectives. A number of Canadian provinces, for example, have provisions that are tantamount to regulatory objectives. Australia is also in the process of developing such objectives and routinely uses “purpose statements” when enacting legal profession regulation. However, many countries—including the United States—have not explicitly identified regulatory objectives and do not use purpose statements. This Article analyzes various regulatory objectives that have been adopted or proposed. It places the use of regulatory objectives and purpose statements in lawyer regulation in a broader context by describing some of the recent profession-specific and non-profession-specific regulatory reform initiatives. The Article recommends that jurisdictions that have not yet adopted regulatory objectives for the legal profession do so. Finally, the Article concludes by offering recommended regulatory objective concepts for jurisdictions to consider.
Regulation shapes every area of modern economic life. Getting regulation right—knowing when it is necessary, what it should accomplish, and what form it should take—is a critical part of policymaking in every society. Developing an effective oversight structure requires a complex analysis of each society’s particular historical, cultural, and legal foundations. Regulation of the practice of law is no different, although it has received surprisingly little public attention in the United States and Canada. That is not for lack of problems, and other countries with similar legal systems, such as Australia and England and Wales, have begun to do better at addressing common oversight failures. This Article explores why problems in American and Canadian legal regulation persist, and identifies reform strategies that build on recent innovations from abroad.
State ownership of publicly traded corporations remains pervasive around the world and has been increasing in recent years. Existing literature focuses on the implications of government ownership for corporate governance and performance at the firm level. This Article, by contrast, explores the different but equally important question of whether the presence of the state as a shareholder can impose negative externalities on the corporate law regime available to the private sector. Drawing on historical experiments with government ownership in the United States, Brazil, China, and Europe, this study shows that the conflict of interest stemming from the state’s dual role as a shareholder and regulator can influence the content of corporate laws to the detriment of outside investor protection and efficiency. It thus addresses a gap in the literature on the political economy of corporate governance by incorporating the political role of the state as shareholder as another mechanism to explain the relationship between corporate ownership structures and legal investor protection. Finally, this Article explores the promise of different institutional arrangements to constrain the impact of the state’s interests as a shareholder on the corporate governance environment, and concludes by offering several policy recommendations.
In 2011, the U.S. Supreme Court ruled on the issue of personal jurisdiction over alien corporations in products liability cases. J. McIntyre Machinery, Ltd. v. Nicastro was the Court’s first statement on the issue in twenty-four years. The opinion, handed down almost ten years after the injury that gave rise to the litigation, could not command a majority of the Justices. Writing for a plurality, Justice Kennedy set forth a strict standard that required that a manufacturer’s products be specifically targeted at a given forum state for jurisdiction to be proper. This Note argues that, while Kennedy’s opinion did not necessarily violate the letter of jurisdictional doctrine—for in reality, there is no discernible letter—it violated the spirit. In analyzing the origins, development, and application of personal jurisdiction over the centuries, this Note concludes that the current palette of jurisdictional tests is not sufficient to meet the demands of fairness in cases like Nicastro. Using simple tort concepts as analogues, this Note advances a new test capable of doing justice without violating due process.
Under Internal Revenue Code section 501(c)(3), certain public charities are exempt from income taxation. As a condition to this benefit, such organizations are prohibited from participating or intervening in any political campaign on behalf of, or in opposition to, a candidate for public office. The statute and the regulations promulgated thereunder, however, do not clearly define what activities are prohibited. This lack of clarity, combined with the U.S. Supreme Court’s protection of the political speech rights of other business organizations, has led many commentators to question section 501(c)(3) on constitutional grounds. Others have criticized the statutory scheme for creating inefficiencies in enforcement and compliance efforts. This Note examines the constitutional and policy questions surrounding section 501(c)(3), catalogues existing proposals to change it, and proposes its own changes to cure those deficiencies. It concludes that a bright-line rule should be used to determine when revocation of tax-exempt status is appropriate, and that revoked entities should be permitted to file for exemption under section 501(c)(4).
The “first sale” doctrine, section 109(a) of the Copyright Act of 1976, gives the owner of a lawfully made copy of a work the right to sell it without the copyright holder’s authorization. Section 602(a), meanwhile, prohibits the unauthorized importation of a copyrighted work. What happens if someone buys a copy of a work outside of the United States, brings the copy into the United States, and then tries to sell it? Does the “first sale” doctrine apply, so that the foreign copy can be sold in the United States? Or does the anti-importation provision control? If it does, the seller would not be able to invoke the “first sale” safe harbor and would be liable under federal copyright law if she did not obtain the copyright holder’s authorization for the U.S. sale. In John Wiley & Sons Inc. v. Kirtsaeng, the Second Circuit held that the statutory language of the first sale doctrine, specifically the words “lawfully made under this title,” does not extend the first sale safe harbor to copies made outside of the United States. This holding rendered it unnecessary to consider whether the anti-importation provision applies. In so doing, the Second Circuit relied on its reading of the U.S. Supreme Court decision in Costco v. Omega. This Note suggests that the Supreme Court should find that the Second Circuit was incorrect in its interpretation of the first sale doctrine, but this Note does not decide whether the anti-importation provision should apply to Kirtsaeng if the case is remanded. The Wiley court misinterpreted the first sale doctrine’s statutory language and also misconstrued the holding in Omega, in which the Court split 4–4 on the relevant issue, creating no binding precedent. The Wiley holding creates a perverse incentive: copyright holders can now avoid the first sale doctrine altogether by moving production overseas. This holding conflicts with the fundamental balance of policies at the core of copyright.
Parents and children whose legal relationships derive from state adoption judgments face uncertainty when they travel across state lines. State officials have denied out-of-state adoptive parents revised birth certificates, which recognize their status as legal parents in their child’s birth state, because the parents would be statutorily unable to adopt in that state. Various U.S. Courts of Appeals have disagreed as to whether, and to what extent, the Full Faith and Credit Clause in Article IV of the Constitution requires that state executive officials recognize out-of-state rights. Circuits also differ as to whether the Full Faith and Credit Clause confers an individual right for purposes of 42 U.S.C. § 1983 on parents alleging a violation of the Clause. The divergent opinions result from conflicting interpretations of the force and scope of the Full Faith and Credit Clause, distinctions between recognition and enforcement of out-of-state rights, and the varying views of the Clause’s balance of state policy interests and federal unity imperatives. This Note argues that the language, history, and purpose of the Full Faith and Credit Clause demonstrate that the Clause requires states—including both judicial and executive officers—to give meaningful recognition to judicially established rights. It concludes that the denial of revised birth certificates to out-of-state adoptive couples violates the Full Faith and Credit Clause’s mandate to meaningfully recognize and equally enforce out-of-state judgments.