Law Commons^™

Looking South: Toward Principled Protection Of U.S. Workers, Ann C. Mcginley

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No abstract provided.

Surveilling Potential Uses And Abuses Of Artificial Intelligence In Correctional Spaces, Justin Iverson

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In section II, this paper will begin with an analysis of the development of AI, noting famous examples and establishing a baseline definition as a lens for the rest of this discussion. This paper will assess aspects of AI and machine learning to the extent it furthers our understanding of AI’s ability to collect data and make decisions. Some popular culture references will be brought into focus here to recognize storytelling’s ability to inspire and influence real-world scientific pursuits. Of preliminary importance, the AI we have both dreamed of and feared are certainly kept in mind as technology advances through …

Billing Judgment, Nancy B. Rapoport, Joseph R. Tiano Jr.

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In most situations, when a lawyer sends a bill to a client, the client pays the fees. When the client believes that a fee or expense is unreasonable, the client will ask for reductions. Conscientious lawyers review a bill before sending it to the client, exercising judgment in terms of what fees and expenses are reasonable. But in bankruptcy cases, the estate pays the court-appointed professionals' fees and expenses out of unsecured funds or from a cash collateral carve-out. Thus, the responsibility for scrutinizing the fees and expenses falls not to a particular client, but to the court, per 11 …

Indigenous Subjects, Addie C. Rolnick

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No abstract provided.

Misogyny And Murder, Ann C. Mcginley

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The Atlanta-area shootings of six Asian women in massage parlors in March 2021 raised awareness about anti-Asian discrimination and violence in the United States. When the perpetrator, Robert Aaron Long, shot the Atlanta-area spa victims, public speculation arose about whether he was motivated by hatred for the Asian victims because of their race. Many wondered whether the shooter would be charged and convicted of hate crimes against the victims. When asked by police about his motives, the perpetrator stated that he had a "sex addiction," meaning that the spas created intolerable sexual temptations that he was unable to resist. Considering …

Joint Authorship And Dramatic Works: A Critical History, Mary Lafrance

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This Article examines the evolution of copyright law pertaining to collaborative authorship and finds that much of the core legal doctrine in this area arose from disputes involving dramatic works. This fresh look at theatrical collaborations reveals a rich history that calls into question the modem judicial presumption that dramatic writing is the product of individual genius. Examining the history of Anglo- American law's response to collaboration in dramatic works offers valuable insight into the development of multiple concepts related to authorship-in particular, the rules governing derivative works, works made for hire, and joint works. It also demonstrates that the …

In Defense Of Deportation Defense, Michael Kagan

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Recent years have seen growing momentum toward expanding public funding for legal defense of immigrants fighting deportation. Yet, some recent scholarship argues that government-funded deportation defense carries the risk of legitimizing and entrenching an unsalvageable immigration enforcement system that should simply be abolished. As a result, immigrant rights advocates might hesitate to support deportation defense. This Essay argues that such hesitation would be a mistake. Legal defense is the most feasible means available right now to stop many deportations, and expanding deportation defense resources will strengthen the immigrant rights movement locally and nationally. Expanding deportation defense should be a high …

Apportioning Authorship, Mary Lafrance

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Part II of this Article introduces the restrictive joint authorship tests created by federal courts, and the courts' reliance on the equal ownership principle as a justification for those tests. Part III examines the relevant case law and other authorities addressing the rights of tenants in common under both copyright law and the general law of property, and concludes that, contrary to the views expressed by many courts and commentators, historical precedent and legislative history strongly favor an interpretation of the copyright statutes that apportions joint authorship shares according to the collaborators' respective contributions. Part IV examines the decision of …

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

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No abstract provided.

Laboratories Of Democracy: State Law As A Partial Solution To Workplace Harassment, Ann C. Mcginley

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This Article analyzes the substantive and procedural problems created by the federal judiciary in Title VII hostile work environment law that concurrently drains federal anti-harassment law of its meaning. The premise is that, at least for the near future, relying on federal courts and/or the U.S. Congress to protect employees' civil rights is likely fruitless. Instead, we should encourage state legislatures that seek to improve civil rights in employment in their own jurisdictions and state supreme courts to interpret their own state laws to recognize employees' civil rights to the fullest extent possible. Part II analyzes how federal courts decide …

Carrie Menkel-Meadow: Leading Us Toward Justice And Peace, Jean R. Sternlight

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This Essay explores how Carrie Menkel-Meadow's life and work have both highlighted the path of "And"-showing and explaining that it is not only possible but also desirable to seek justice as well as peace, to be both activist and neutral. Of course, tensions will remain. Regarding particular issues in specific moments we all must decide which path we can and should take. Which activism is best, and which goes too far? With whom can we or should we negotiate, and when should we instead say, "I can't negotiate with this person or group"? When should we talk and listen, and …

Insuring Fortuity—And Intent: A Comment On Professor French's Insuring Intentional Torts, Erik S. Knutsen, Jeffrey W. Stempel

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No abstract provided.

The 2022 New Jersey Insurance Fair Conduct Act And The Incomplete Evolution Of Policyholder Protection, Jeffrey W. Stempel

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No abstract provided.

Coercive Control And The Limits Of Criminal Law, Courtney K. Cross

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Domestic violence does not always include physical violence. While abusive relationships may be punctuated with physical violence, it is the dynamic of control that constitutes the crux of the abuse. This dynamic is characterized by behaviors designed to dominate, degrade, and discipline, including emotional and financial abuse, isolation, rulemaking, and surveillance. These nonviolent forms of abuse are collectively referred to as "coercive control," and their impact can be debilitating and devastating for survivors of domestic violence. Despite what we know about domestic violence, the criminal legal system focuses its efforts on discrete incidents or encounters between the abuser and the …

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 …

Collected Wisdom On Selecting Leaders And Managing Mdls, Elizabeth Chamblee Burch, Stephen Bough

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Today, nearly one out of every two new suits filed in federal civil court is part of a multidistrict litigation (MDL). Initially designed to organize antitrust cases against electrical equipment manufacturers, MDL’s adaptability and minimal requirements made it the preferred approach for coordinating pretrial process for all manner of cases, from securities, employment, intellectual property, and antitrust to sales practices, common disasters, and products liability. Yet, the simplicity of MDL’s technical requirements—that cases are pending in different districts and share a common factual question—belie the complexity of the proceedings themselves. Governed principally by insiders’ unwritten but longstanding norms, both newly-appointed …

International Environmental Law At Its Semicentennial: The Stockholm Legacy, Melissa J. Durkee

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The 1972 United Nations Conference on the Human Environment produced the Stockholm Declaration, an environmental manifesto that forcefully declared a human right to environmental health and birthed the field of modern international environmental law. The historic event powerfully “dramatized . . . the unity and fragility of the biosphere,” sparking a remarkable period of international legal innovation and cooperation on environmental protection in the decades to come.

The Stockholm Declaration can be rightly celebrated for putting environmental issues on the international legal agenda and driving the development of environmental law at the domestic level around the world. At the same …

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 …

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 …

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 …

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 …

Trump, Lawyer Regulation, And The Institutional Double Bind, Benjamin H. Barton

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Scandals, news stories, and court setbacks that would have devastated other, more traditional Presidents have seemingly only made Donald Trump’s bond with his supporters stronger. This creates a challenge when institutions try to punish anyone in Trump’s orbit. Taking action against Trump only encourages his supporters, while inaction may lessen the left’s faith in institutions and leave opponents of President Trump wondering why nothing is being done to curtail what they see as flagrant criminal contempt. This is a problem the author calls the “institutional double bind.” This Essay discusses whether there is any solution for these institutions stuck in …

Russia’S 2020 Constitutional Amendments And The Entrenchment Of The Moscow Patriarchate As A Lever Of Foreign Policy Soft Power, Robert C. Blitt

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Much has been written about the Kremlin’s embrace of the Russian Orthodox Church—Moscow Patriarchate (ROC) as a lever of soft power for advancing Russia’s foreign policy. Based on the substance of the constitutional amendments ratified in July 2020, this chapter reasons that the church-state partnership is poised to grow stronger and more entrenched in the coming years.

After briefly highlighting the energizing effect several key constitutional amendments are likely to have on existing Kremlin foreign policy objectives, this chapter offers an assessment of the ROC’s central role in disseminating and advocating these newly minted constitutional norms across its international platforms …

Suspicionless Policing, Julian A. Cook

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The tragic death of Elijah McClain—a twenty-three-year-old, slightly built, unarmed African American male who was walking home along a sidewalk when he was accosted by three Aurora, Colorado police officers—epitomizes the problems with policing that have become a prominent topic of national conversation. Embedded within far too many police organizations is a culture that promotes aggressive investigative behaviors and a disregard for individual liberties. Incentivized by a Supreme Court that has, over the course of several decades, empowered the police with expansive powers, law enforcement organizations have often tested—and crossed—the constitutional limits of their investigative authorities. And too often it …