Law Commons^™

Perceptions Of Justice In Multidistrict Litigation: Voices From The Crowd, Elizabeth Chamblee Burch, Margaret S. Williams

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With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was an MDL case, and 97% of those were products liability like opioids, talc, and Roundup.

Ordinarily, civil procedure puts tort plaintiffs in the driver’s seat, allowing them to choose who and where to sue, and what claims to bring. Procedural justice tells courts to ensure …

Las Medidas De “Acomodación” De La Religión En El Derecho Estadounidense [Accommodation Of Religion In U.S. Law], Michael W. Mcconnell, Nathan Chapman

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En este trabajo se analizan las medidas de acomodación de la religión, que gozan de una gran tradición en el derecho constitucional de los Estados Unidos, así como los debates que han generado desde el punto de vista de su conformidad con las cláusulas de la Primera Enmienda de la Constitución de los Estados Unidos: la cláusula de no establecimiento de una religión oficial y la cláusula de libre ejercicio de la religión. A lo largo del trabajo se analiza la principal jurisprudencia recaída sobre las medidas de acomodación y los test que se han construido para enjuiciarlas.

[This paper …

Juridical Discourse For Platforms, Thomas E. Kadri

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Facebook founder Mark Zuckerberg has created a private “Supreme Court,” or so he says. Since 2021, his company’s Oversight Board has issued verdicts on a smattering of Facebook’s decisions about online speech. Cynics frame the Board as a Potemkin village, but defenders invoke analogies to separation of powers to claim that this new body empowers the public and restrains the company. Some are even calling for a single “platform supreme court” to rule over the entire industry.

Juridical discourse for platforms is powerful, but it can also be deceptive. This Response explores how juridical discourse has legitimized and empowered Facebook’s …

Modern Sentencing Mitigation, John B. Meixner Jr.

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Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions. Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence. It is surprising, then, that relatively …

Panel Three: How Should Spacs Be Treated Going Forward (Ipos, Mergers, Or Distinctly Different?), Usha Rodrigues, Gregg A. Noel, Rick Flemming, Michael Stegemoller

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From the Symposium: Here to Stay: Wrestling with the Future of the Quickly Maturing SPAC Market

Panel addressing and examining the policy concerns around special purpose acquisition companies (SPACs).

Recovering Contingency Within American Antimonopoly And Democracy, Laura Phillips-Sawyer

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*This is the fourth post in a symposium on William Novak’s New Democracy: The Creation of the Modern American State. For other posts in the series, click here.

In his chapter on antitrust law and the American antimonopoly tradition, the penultimate substantive chapter of the book, Novak covers much familiar ground. Yet, he is not focused on the conventional areas of debate in antitrust history, which have included recovering the congressional intent behind the Sherman Antitrust Act of 1890, recreating the economic logic of early antitrust jurisprudence, or surveying the doctrinal shift from “literalism” to the rule of …

Interconstituted Legal Agents, Christian Turner

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Legal theory and doctrine depend on underlying assumptions about human nature and sociality. Perhaps the most common and basic assumption is that we are separate persons who communicate imperfectly with one another. While this separation thesis has been questioned, it still dominates legal theory. However, I show that understanding separation and connection as alternative perspectives, rather than as ontologically true or false, reveals that legal conflict often arises when these perspectives give rise to clashing intuitions concerning the meaning of community and what constitutes goals and harms. This Article organizes perspectives on social relationships in increasing order of intersubjectivity: isolation, …

Uzuegbunam V. Preczewski, Nominal Damages, And The Roberts Stratagem, Michael Wells

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In Uzuegbunam v. Preczewski the Supreme Court held for the first time that federal-court jurisdiction exists over a § 1983 case that presents only a claim for nominal damages. As a result, such claims remain subject to adjudication even when the plaintiff’s request for prospective relief, targeting an allegedly unlawful practice, has been mooted by the government’s discontinuance of the thus-challenged behavior. In dissent, Chief Justice Roberts maintained that the majority’s ruling clashed with Article III’s “personal stake” requirement and also unwisely permitted plaintiffs to sidestep controlling jurisdictional rules by adding a meaningless claim for nominal damages to a complaint …

Righting A Reproductive Wrong: A Statutory Tort Solution To Misrepresentation By Reproductive Tissue Providers, Yaniv Heled, Hillel Y. Levin, Timothy D. Lytton, Liza Vertinsky

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Fraud, misrepresentation, and other unfair trade practices plague the market for human reproductive tissue. The sale of sperm, eggs, and embryos is virtually unregulated in almost all states, and courts have been inhospitable to victims. As a result, children are born with genetic disorders that impose extreme financial and personal hardship. Proposals for direct government oversight have, for the most part, failed to gain traction, and litigation has yielded inadequate remedies.

This Article assesses these problems and proposes model legislation that would eliminate doctrinal obstacles to holding unscrupulous reproductive tissue providers liable. By making it easier for parents to bring …

Environmental Law, Travis M. Trimble

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In 2021, the United States District Court for the Southern District of Alabama, in an issue of first impression, concluded that the United States is not a "person" under the contribution provision of the Oil Pollution Act (OPA),2 and therefore the provision did not waive the sovereign immunity of the United States. For this and other reasons a plaintiff could not recover in contribution from the United States for the plaintiffs costs of cleaning up an oil spill, even where the plaintiff alleged the spill was the result of the sole negligence of the United States. The United States District …

Race-Ing Antitrust, Bennett Capers, Greg Day

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Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Csec Treatment Courts: An Opportunity For Positive, Trauma-Informed, And Therapeutic Systems Responses In Family And Juvenile Courts, Emma Hetherington, Allison Dunnigan, Hannah Elias Sbaity

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In an effort to improve outcomes for CSEC (commercial and sexual exploitation of children) youth and to facilitate accurate identification of survivors through the implementation of multidisciplinary, survivor-focused responses, jurisdictions have increasingly looked towards treatment courts to serve as a model for prevention, intervention, diversion, and treatment. Juvenile and family courts are uniquely positioned to intervene in cases involving CSEC. Several jurisdictions have already created treatment courts to specifically address the needs of survivors and those at risk of CSEC, particularly those who are involved in the child welfare or juvenile justice systems. The goal of treatment courts for survivors …

A Judge Never Writes More Freely: A Separate-Opinions Citation-Network Approach To Assessing Judicial Ideology, Joseph S. Miller

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What do judges really care about? Scholars have used various methods to identify a judge’s policy preferences. The standard method in political science, called the Martin-Quinn score, counts a judge’s votes for conservative or liberal outcomes. But judges don’t just vote, they give reasons in written opinions. Reason-giving is not only part of the tradition of common-law decision making but is also central to rule-of-law ideals, concerns that are not the focus most empirical methodologies. What’s more, the reasons a judge gives for reaching a conclusion provide powerful evidence for what the judge herself cares about. That is especially the …

Tributes To Family Law Scholars Who Helped Us Find Our Path, Thomas Oldham, Paul M. Kurtz

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At some point after the virus struck, I had the idea that it would be appropriate and interesting to ask a number of experienced family law teachers to write a tribute about a more senior family law scholar whose work inspired them when they were beginning their careers. I mentioned this idea to some other long-term members of the professoriate, and they agreed that this could be a good project. So I reached out to some colleagues and asked them to participate. Many agreed to join the team. Some suggested other potential contributors, and some of these suggested faculty members …

Artificially Intelligent Boards And The Future Of Delaware Corporate Law, Christopher Bruner

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This article argues that the prospects for Artificial Intelligence (AI) to impact corporate law are at once over- and under-stated, focusing on the law of Delaware – the predominant jurisdiction of incorporation for US public companies. Claims that AI systems might displace human directors not only exaggerate AI’s foreseeable technological potential, but ignore doctrinal and institutional impediments intrinsic to Delaware’s competitive model – notably, heavy reliance on nuanced applications of the fiduciary duty of loyalty by a true court of equity. At the same time, however, there are discrete AI applications that might not merely be accommodated by Delaware corporate …

The U.S. Supreme Court's Characterizations Of The Press: An Empirical Study, Sonja R. West, Ronnell Anderson Jones

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The erosion of constitutional norms in the United States is at the center of an urgent national debate. Among the most crucial of these issues is the fragile and deteriorating relationship between the press and the government. While scholars have responded with sophisticated examinations of the President’s and legislators’ characterizations of the news media, one branch of government has
received little scrutiny—the U.S. Supreme Court. This gap in the scholarship is remarkable in light of the Court’s role as the very institution entrusted with safeguarding the rights of the press. This Article presents the findings of the first comprehensive empirical …

Bankruptcy Grifters, Lindsey Simon

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Grifters take advantage of situations, latching on to others for benefits they do not deserve. Bankruptcy has many desirable benefits, especially for mass-tort defendants. Bankruptcy provides a centralized proceeding for resolving claims and a forum of last resort for many companies to aggregate and resolve mass-tort liability. For the debtor-defendant, this makes sense. A bankruptcy court’s tremendous power represents a well-considered balance between debtors who have a limited amount of money and many claimants seeking payment.

But courts have also allowed the Bankruptcy Code’s mechanisms to be used by solvent, nondebtor companies and individuals facing mass-litigation exposure. These “bankruptcy grifters” …

Platforms As Blackacres, Thomas E. Kadri

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While writing this Article, I interviewed a journalist who writes stories about harmful technologies. To do this work, he gathers information from websites to reveal trends that online platforms would prefer to hide. His team has exposed how Facebook threatens people’s privacy and safety, how Amazon hides cheaper deals from consumers, and how Google diverts political speech from our inboxes. You’d think the journalist might want credit for telling these important stories, but he instead insisted on anonymity when we talked because his lawyer was worried he’d be confessing to breaking the law—to committing the crime and tort of cyber-trespass. …

Bargaining For Abolition, Zohra Ahmed

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What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? I offer three different ways to think about labor in criminal court: (1) labor as a source of sociological value, (2) labor as an input that generates certain measurable outcomes, and (3) labor as a vehicle to advance abolitionist reforms. First, through their quotidian activities, criminal courts’ workers enact a practical philosophy that communicates lessons about who and how we value each other. Drawing on ethnographic …

Cocurricular Learning In Management Education: Lessons From Legal Education’S Use Of Student-Edited Journals, Matthew I. Hall, Matt Theeke

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In this essay, we draw on insights from U.S. legal education’s century-long experiment using student-edited journals as a cocurricular learning tool, to develop the argument that management education should consider introducing a new category of student-edited, practitioner-oriented journals. Student-edited journals are potentially well-suited for management education because they encourage students to learn professionally relevant skills and to develop a greater understanding of research and its role in professional education. Enlisting students to help edit practitioner journals could also benefit business professionals by increasing the availability of practitioner-oriented research. In doing so, management education can use this cocurricular learning activity to …

Protecting The Public Domain And The Right To Use Copyrighted Works: Four Decades Of The Eleventh Circuit’S Copyright Law Jurisprudence, David E. Shipley

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This article is about the importance of the copyright law jurisprudence from the U.S. Court of Appeals for the Eleventh Circuit. This appellate court turns 40 in 2021, and it has rendered many influential copyright law decisions in the last four decades. Its body of work is impressive. This article discusses the court’s important decisions in the following areas: the originality standard; the application of the U.S. Supreme Court’s Feist decision to compilations, directories, computer software, architectural works, and other creative works like movies, photographs, and characters; copyright protection for unfixed works; the scope of the government edicts doctrine; and, …

Optimizing Whistleblowing, Usha Rodrigues

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Whistleblowers have exposed misconduct in settings ranging from public health to national security. Whistleblowing thus consistently plays a vital role in safeguarding society. But how much whistleblowing is optimal? And how many meritless claims should we tolerate to reach that optimum? Surprisingly, legislators and scholars have overlooked these essential questions, a neglect that has resulted in undertheorized, stab-in-the-dark whistleblower regimes, risking both overdeterrence and underdeterrence.

This Article confronts the question of optimal whistleblowing in the context of financial fraud. Design choices, which play out along two axes, have profound effects on the successful implementation of whistleblowing policy. One axis varies …

Introduction To The Symposium On Gregory Shaffer, "Governing The Interface Of U.S.-China Trade Relations", Harlan G. Cohen

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What happens to international institutions when expectations about their function and purpose shift? Must such institutions give way as states reconsider the settlements on which those institutions are based, or can they adapt (or be adapted) to new geopolitical realities? Or to put it most bluntly, as the geopolitical balance of power shifts, must law give way to power? At a very deep level, these are the questions animating Gregory Shaffer's "Governing the Interface of U.S.-China Trade Relations," published in the American Journal ofInternationalfaw. 1 As the ballooning rivalry between the United States and China stretches and strains institutions like …

Lessons From A Pandemic: Recommendations From The Georgia Tpo Forum For Strengthening Protections Against Domestic Violence, Christine M. Scartz, Sarah White, Jaime Boorman

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A civil protective order in Georgia is commonly called a temporary protective order, or TPO. The Georgia TPO Forum (the Forum) is a collaborative effort among practitioners who are deeply passionate about ending domestic violence and minimizing its effects on victims.1 The Forum is made up of advocates and attorneys who work every day with people who need protection from violence. Members provide each other not only with suggestions and solutions to problems, but also a listening ear in a profession where another tragic case is always on its way. The Forum is also uniquely positioned to offer recommendations about …

Popular Enforcement Of Controversial Legislation, Randy Beck

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Texas opted for popular enforcement of Senate Bill 8 (S.B. 8), prohibiting abortion once a fetal heartbeat can be detected. In an effort to prevent pre-enforcement judicial review, the legislature precluded enforcement of the statute by government officials. Instead, any member of the public may sue for statutory damages of at least $10,000 from any person who (1) performs an abortion violating the statute, (2) knowingly aids or abets such an abortion, or (3) “intends” to perform or aid and abet such an abortion.

The cause of action authorized by S.B. 8 is a “popular action,” a once common method …

Rate Base The Charge Space: The Law Of Utility Ev Infrastructure Investment, Adam D. Orford

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To fight climate change and support the transition to a zero-emissions transportation sector, the U.S. is setting out to build a huge fleet of electric vehicle (EV) charging stations. But EV charging equipment is expensive, and how to pay for it is not straightforward. This Article explores the emerging law and policy of using the bill payments of millions of electric utility customers to solve the problem. State utility regulators, in obscure technical proceedings, have begun directing billions of ratepayer dollars toward EV chargers. Is this an unfair and risky social spending experiment, as its opponents argue? Or is it …

Introducing Students To Ethics And Professionalism Challenges In Virtual Communication, Carol Morgan, Katherine M. Koops, James E. Moliterno, Carol Newman

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As the practice of law, and the conduct of business generally, focuses increasingly on virtual communication, the ethics and professionalism challenges inherent in email, videoconference, text, and telephone communication continue to evolve. These challenges are particularly prevalent in transactional practice, which involves frequent communication with a variety of parties through a variety of communication channels. Exposing law students to these challenges through exercises and simulations contributes to the continued development of their professional identity as lawyers.

This article presents a variety of exercises that introduce students to client confidentiality, inadvertent disclosure, and other ethical issues that often arise in the …

Journeys Through Space And Time While Reading International Law And The Politics Of History, Found On A Palimpsest, Translated For You, The Reader, Harlan G. Cohen

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I was invited to a symposium on Anne Orford’s book, International Law and the Politics of History. On my way there, my mind wandered, and I found myself lost in a forest of half-remembered stories and unfinished thoughts. Searching for a way out, this is what I discovered.

The Disappearing Freedom Of The Press, Sonja R. West, Ronnell Anderson Jones

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At this moment of unprecedented decline of local news and amplified attacks on the American press, attention is turning to the protection the Constitution might provide to journalism and the journalistic function. New signals that at least some Justices of the U.S. Supreme Court might be willing to rethink the core press-protecting precedent in New York Times v. Sullivan has intensified these conversations. But this scholarly dialogue appears to be taking place against a mistaken foundational assumption: that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Despite the First Amendment …

The Lawyers Justice Corps: A Licensing Pathway To Enhance Access To Justice, Eileen Kaufman

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The idea for establishing a Lawyers Justice Corps emerged out of efforts to solve a problem: how to license lawyers at a time when COVID-19 had expanded the need for new lawyers while also making an in-person bar exam dangerous, if not impossible. We-the Collaboratory on Legal Education and Licensing for Practice'-proposed the Lawyers Justice Corps to provide a different and better way of certifying minimum competence for new attorneys while at the same time helping to create a new generation of lawyers equipped to address a wide range of social justice, racial justice, and criminal justice issues. When implemented, …