Law Commons^™

Book Review: Justice Triage, Milan Markovic

Faculty Scholarship

Benjamin Barton and Stephanos Bibas’s new book, Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law, is an eloquent exemplar of the deregulation literature. What sets Rebooting Justice apart from other works in the genre is that Barton and Bibas do not treat deregulation as a panacea. Their starting point is that Americans are not well served by lawyers’ monopoly over the legal services market, but they do not envision a world in which every legal problem is resolved ably and efficiently. Their goal is much more modest: a less complex legal system in which lawyer …

Voter Psychology And The Carbon Tax, Gary M. Lucas Jr

Faculty Scholarship

Economists across the political spectrum argue that a carbon tax is the most effective and economically efficient policy for addressing climate change. Voters, however, strongly oppose the carbon tax and instead favor “green” subsidies and command-and-control regulations. If carefully designed, these policies might complement a carbon tax, but by themselves, they will make global warming mitigation incredibly expensive and perhaps even infeasible. Moreover, if poorly designed, subsidies and regulations can be counterproductive.

This Article argues that the public dislikes the carbon tax because the tax possesses attributes that make it psychologically unappealing relative to other climate policy instruments. The Article …

Citizen Scientists, Data Transparency, And The Mining Industry, Madison Condon

Faculty Scholarship

What happens when a community feels that the standards imposed by state and federal laws are insufficient to protect its health and environment? Or when the responsible government agencies lack the funding, competency, or political will for full enforcement of the law? One of the greatest hurdles facing citizen environmental advocates in these situations is a lack of access to environmental monitoring data. All routes available for policing industry—whether it be rallying community support for protest, petitioning a government agency for enforcement action, or bringing a citizen suit—require, as a first step, an understanding of whether and what pollution has …

Guns On Campus: A Look At The First Year Of Concealed Carry At Texas Universities, Aric K. Short

Faculty Scholarship

After years of failed attempts, the Texas Legislature passed "campus carry" in 2015. Under the new law, effective in 2016 for four-year institutions, public universities must allow the concealed carry of handguns by license holders on their premises. Texas's campus carry law is unique when compared to other states that allow concealed carry on college campuses: each university is given the flexibility to create weapons implementation plans, including the establishment of limited gun-free zones. The first year of campus carry implementation by Texas universities has been relatively quiet, with generally uniform implementation rules established by colleges across the state. However, …

Alternatives To Immigration Detention, Fatma E. Marouf

Faculty Scholarship

The United States places over 440,000 people each year in immigration detention, far more than any other country in the world. This Article argues that there are compelling humanitarian and financial reasons to utilize more alternatives to detention. It examines the strengths and limitations of existing alternatives, including the need to develop more community-based case management programs and to rely less on electronic monitoring. The Article then sets forth several legal arguments under the Constitution, Rehabilitation Act, and international human rights law for requiring greater consideration of alternatives to detention.

Tiny Homes For The Homeless: A Return To Politically Engaged Community Economic Development Law?, Lisa T. Alexander

Faculty Scholarship

The evolution of community economic development (CED) over the past several decades has witnessed dramatic growth in scale and complexity. New approaches to development and related lawyering, and to philosophies underlying these approaches, challenge us to reimagine the framework of CED. From the early days of community development corporations to today’s sophisticated tools of finance and organization, this evolution reflects “why law matters” in pursuit of economic justice and opportunity. Change is visible in new approaches to enterprise development and novel grassroots initiatives that comprise a virtual “sharing economy,” as well as intensified advocacy around low-wage work and efforts to …

Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy A. Welsh

Faculty Scholarship

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and …

Grasping Fatherhood In Abortion And Adoption, Malinda L. Seymore

Faculty Scholarship

Biology makes a mother, but it does not make a father. While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood. Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomy--it is easy …

Fighting Fines & Fees: Borrowing From Consumer Law To Combat Criminal Justice Debt Abuses, Neil L. Sobol

Faculty Scholarship

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in …

Gateway Crimes, Murat C. Mungan

Faculty Scholarship

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful drugs. This Article presents a theory of “gateway crimes,” which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses. A typical gateway crime is an act which is punished lightly, but because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People …

International Law And Transboundary Aquifers, Gabriel Eckstein

Faculty Scholarship

Although international law applicable to transboundary aquifers is still in an early stage of development, ground water resources on nation’s frontiers are now garnering growing international attention. This article examines the chief formal and informal mechanisms that have been proposed or implemented for the assessment, use, allocation, and protection of transboundary aquifers and identifies the legal trends and priorities emerging from these instruments. It also considers gaps and shortcomings in the emerging administrative regime and offers recommendations for the further development of the law.

The Automated Public Sphere, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Fostering Legal Cynicism Through Immigration Detention, Emily Ryo

Faculty Scholarship

Every year, tens of thousands of noncitizens in removal proceedings are held and processed through an expanding web of immigration detention facilities across the United States. The use of immigration detention is expected to dramatically increase under the Trump administration’s mass deportation policy. I argue that this civil confinement system may serve a critical socio-legal function that has escaped the attention of policymakers, scholars, and the public alike. Using extensive original data on long-term immigrant detainees, I explore how immigration detention might function as a site of legal socialization that helps to promote or reinforce widespread legal cynicism among immigrant …

From Territorial To Monetary Sovereignty, Katharina Pistor

Faculty Scholarship

State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary …

The Role Of The State Towards The Grey Zone Of Employment: Eyes On Canada And The United States, Susan Bisom-Rapp, Urwana Coiquaud

Faculty Scholarship

In most countries, precarious working is on the rise and nonstandard forms of work are proliferating. What we call the “grey zone” of employment is generated by transformations at and with respect to work both in standard and nonstandard forms of working. Focusing on legal and policy regulation, and on the role of the state in the creation and perception of the grey zone, our contribution explains the way the government acts or fails to act, and the consequences of that activity or inactivity on the standard employment relationship. Examining and juxtaposing conditions in our two countries, Canada and the …

Every Dollar Counts: In Defense Of The Obama Department Of Education's "Supplement Not Supplant" Proposal, James S. Liebman, Michael Mbikiwa

Faculty Scholarship

Evidence compellingly demonstrates – as Congress famously recognized in Title I of the Elementary and Secondary Education Act of 1965 (ESEA) – that children from economically disadvantaged backgrounds require more educational resources than other students. Yet, a half century later, many school districts still spend less money on high-poverty schools than on more privileged schools. In 2011, a study by the U.S. Department of Education discovered that nationwide, more than forty percent of schools eligible for Title I funding based on their high-poverty status receive less state and local funding for instructional and other personnel costs than non-Title I schools …

Leading With Conviction: The Transformative Role Of Formerly Incarcerated Leaders In Reducing Mass Incarceration, Susan Sturm, Haran Tae

Faculty Scholarship

This report documents the roles of formerly incarcerated leaders engaged in work related to reducing incarceration and rebuilding communities, drawing on in-depth interviews with 48 of these leaders conducted over a period of 14 months. These “leaders with conviction” have developed a set of capabilities that enable them to advance transformative change, both in the lives of individuals affected by mass incarceration and in the criminal legal systems that have devastated so many lives and communities. Their leadership assumes particular importance in the era of the Trump Presidency, when the durability of the ideological coalitions to undo the failed apparatus …

A New International Legal Regime For A New Reality In The War Against Drugs, Guillermo J. Garcia Sanchez

Faculty Scholarship

The paper reviews the existing international legal regime on the war against drugs and argues that it has become obsolete in the face of the trend to legalize the consumption of certain drugs, such as marijuana, in developed nations. It particularly analyzes the contradictory practice of the United States to pressure producing states, such as Mexico and Colombia, to enforce the regime and at the same time allow the legalization of consumption in local U.S. states.

Markets And Sovereignty, Joseph Blocher, Mitu Gulati

Faculty Scholarship

The past few decades have witnessed the growth of an exciting debate in the legal academy about the tensions between economic pressures to commodify and philosophical commitments to the market inalienability of certain items. Sex, organs, babies, and college athletics are among the many topics that have received attention. The debates often have proceeded, however, as if they involve markets on one side and the state on the other, with the relevant question being the ways in which the latter can or should try to facilitate, restrict, or rely on the former. In this article, we approach the relationship between …

Is The Future Of Law A Driverless Car? Assessing How The Data Analytics Revolution Will Transform Legal Practice, Eric L. Talley

Faculty Scholarship

Machine learning and artificial intelligence technologies (“data analytics”) are quickly transforming research and practice in law, raising questions of whether the law can survive as a vibrant profession for natural persons to enter. In this article, I argue that data analytics approaches are overwhelmingly likely to continue to penetrate law, even in domains that have heretofore been dominated by human decision makers. As a vehicle for demonstrating this claim, I describe an extended example of using machine learning to identify and categorize fiduciary duty waiver provisions in publicly disclosed corporate documents. Notwithstanding the power of machine learning techniques, however, I …

Cracking The Code: An Empirical Analysis Of Consumer Bankruptcy Outcomes, Sara Sternberg Greene, Parina Patel, Katherine M. Porter

Faculty Scholarship

Chapter 13 is a cornerstone of the bankruptcy system. Its legal requirements strike a balance between the rehabilitation of debtors through keeping assets and reducing debt, and the repayment of creditors over a period of years. Despite the accolades from policymakers, the hard truth is that the majority of the half-million families each year that seek refuge in chapter 13 bankruptcy will not achieve the debt relief of a discharge. Prior research found that those who drop out of bankruptcy quickly endure the serious financial struggles that they had before bankruptcy—now even worse off for having spent thousands of dollars …

A Different Class Of Care: The Benefits Crisis And Low-Wage Workers, Trina Jones

Faculty Scholarship

When compared to other developed nations, the United States fares poorly with regard to benefits for workers. While the situation is grim for most U.S. workers, it is worse for low-wage workers. Data show a significant benefits gap between low-wage and high-wage in terms of flexible work arrangements (FWAs), paid leave, pensions, and employer-sponsored health-care insurance, among other things. This gap exists notwithstanding the fact that FWAs and employment benefits produce positive returns for employees, employers, and society in general. Despite these returns, this Article contends that employers will be loath to extend FWAs and greater employment benefits to low-wage …

Inequality Rediscovered, Jedediah Purdy, David Singh Grewal

Faculty Scholarship

Widespread recognition that economic inequality has been growing for forty years in most of the developed world, and in fact has tended to grow across most of the history of modern economies, shows that the period 1945-1973, when inequality of wealth and income shrank, was a marked anomaly in historical experience. At the time, however, the anomalous period of equality seemed to vindicate a long history of optimism about economic life: that growth would overcome meaningful scarcity and usher in an egalitarian and humanistic period that could almost qualify as post-economic. This has not been the experience of the last …

Aggressive Encounters & White Fragility: Deconstructing The Trope Of The Angry Black Woman, Trina Jones, Kimberly Jade Norwood

Faculty Scholarship

Black women in the United States are the frequent targets of bias-filled interactions in which aggressors: (1) denigrate Black women; and (2) blame those women who elect to challenge the aggressor’s acts and the bias that fuels them. This Article seeks to raise awareness of these “aggressive encounters” and to challenge a prevailing narrative about Black women and anger. It examines the myriad circumstances (both professional and social) in which aggressive encounters occur and the ways in which these encounters expose gender and racial hierarchies. It then explores how the intersectional nature of Black women’s identities triggers a particularized stereotype …

Adjudicating Death: Professionals Or Politicians?, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Variation exists in how death examinations take place in the United States. In some counties and states decisions about autopsies and the issuance of death certificates are made by a local coroner who often needs nothing more than a high school diploma to run for election to the job of coroner. In other counties and states, an appointed medical professional performs the death examination. We provide preliminary tests of the difference in performance between death examination offices run by appointed medical professionals compared with elected coroners. We find that death examiner offices in elected coroner states are less likely to …

Repugnance Management And Transactions In The Body, Kieran Healy, Kimberly D. Krawiec

Faculty Scholarship

Researchers have made progress in understanding the role of repugnance in transactions involving the human body. Yet, often, the focus remains on exchange between individuals and how they mentally cope (or not) with repugnance. But these exchanges also entail a “vertical” dimension in which organizational and state actors both directly manage repugnance and also limit the repugnance management tools available to the marketplace. Analyzing repugnance and its management as an organizational and regulatory problem, in addition to an individual one, suggests that a single, harmonized system of exchange in bodily goods is unlikely to emerge with the passage of time.

Voice And Exit As Accountability Mechanisms: Can Foot-Voting Be Made Safe For The Chinese Communist Party?, Roderick M. Hills Jr., Shitong Qiao

Faculty Scholarship

According to Albert 0. Hirschman's famous dichotomy, citizens can express their preferences with their "voice" (by voting with ballots to elect better representatives) or by "exit" (by voting with their feet to choose better places to live). Suppose, however, that ballot-voting is ineffective: Can exit not merely aid but also replace voice? Using the People's Republic of China, a party state without elective democracy as a case study, we argue that exit is not a substitute for, but rather a complement to, voice. China's bureaucratic promotion system plays the same role that local elections do in the United States, promoting …

City On A Hill: The Democratic Promise Of Higher Education, Rachel F. Moran

Faculty Scholarship

When we think about the democratic promise of higher education, we often think of public universities. Consider, for example, the civic-minded reflections of Gordon Davies, the former Chancellor of the University of Virginia, who concluded in 1997 that “[e]ducation is not a trivial business, a private good, or a discretionary expenditure. It is a deeply ethical undertaking at which we must succeed if we are to survive as a free people.” This lofty vision has since been undermined by persistent cuts in funding for state universities across the nation. In 2007, James Duderstadt, the former president of the University of …

Time Is Money: An Empirical Assessment Of Non-Economic Damages Arguments, Christopher Robertson

Faculty Scholarship

Non-economic damages (pain and suffering) are the most significant and variable components of liability. Our survey of 51 U.S. jurisdictions shows wide heterogeneity in whether attorneys may quantify damages as time-units of suffering (“per diem”) or demand a specific amount (“lump sum”). Either sort of large number could exploit an irrational anchoring effect.

We performed a realistic online, video-based experiment with 732 human subjects. We replicate prior work showing that large lump sum demands drive larger jury verdicts, but surprisingly find no effect of similarly-sized per diem anchors. We do find per diem effects on binary liability outcomes, and thus …

Closets, Standards, Abortion: A Reply To Professor Pozen, Carol Sanger

Faculty Scholarship

I am grateful for David Pozen's thoughtful observations regarding About Abortion. They have sharpened my understanding of how to think about the problem of abortion – or more accurately, about how abortion is kept problematic – as a matter of law and of social practice. I invoke the word "problematic" to describe the cultural setting in which abortion sits: although the procedure is legal, common, and safe, it is often treated as though it were not legal, or barely so; not common, except perhaps for women and girls who have nothing to do with you; and not at all …