Law Commons^™

Reimagining The Risk Of Long-Term Care, Allison K. Hoffman

All Faculty Scholarship

U.S. law and policy on long-term care fail to address the insecurity American families face due to prolonged illness and disability — a problem that grows more serious as the population ages and rates of disability rise. This Article argues that, even worse, we have focused on only part of the problem. It illuminates two ways that prolonged disability or illness can create insecurity. The first arises from the risk of becoming disabled or sick and needing long-term care, which could be called “care-recipient” risk. The second arises out of the risk of becoming responsible for someone else’s care, which …

The Knowledge Gap In Workplace Retirement Investing And The Role Of Professional Advisors, Jill E. Fisch, Tess Wilkinson-Ryan, Kristin Firth

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The dramatic shift from traditional pension plans to participant-directed 401(k) plans has increased the decision-making responsibility of individual investors for their own retirement planning. With this shift comes increasing evidence that investors are making poor decisions in choosing how much to save for retirement and in selecting among their investment options. Studies question the value of efforts to improve these decisions through regulatory reforms or investor education.

This article posits that deficiencies in workplace retirement savings cannot be adequately addressed until the reasons for poor investment decisions are better understood. We report the results of a study designed to simulate …

The Dual-Grant Theory Of Fair Use, Abraham Bell, Gideon Parchomovsky

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Fair use is one of modern law's most fascinating and troubling doctrines. It is amorphous and vague, and notoriously difficult to apply. It is, at the same time, vitally important in copyright and perhaps the most frequently raised and litigated issue in the law of intellectual property.

This article offers a novel theory of fair use that provides both a better understanding of the underlying principles and better tools for applying the doctrine.

In contrast with the dominant understanding of fair use in the literature — that fair use addresses market failure — the article proposes viewing fair use as …

Presidential War Powers As An Interactive Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

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There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

Tightening The Ooda Loop: Police Militarization, Race, And Algorithmic Surveillance, Jeffrey L. Vagle

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This Article examines the role military automated surveillance and intelligence systems and techniques have supported a self-reinforcing racial bias when used by civilian police departments to enhance predictive policing programs. I will focus on two facets of this problem. First, my research will take an inside-out perspective, studying the role played by advanced military technologies and methods within civilian police departments, and how they have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools, and which automates de facto penalization and …

Designing Plea Bargaining From The Ground Up: Accuracy And Fairness Without Trials As Backstops, Stephanos Bibas

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American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around. This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation …

Laird V. Tatum And Article Iii Standing In Surveillance Cases, Jeffrey L. Vagle

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Plaintiffs seeking to challenge government surveillance programs have faced long odds in federal courts, due mainly to a line of Supreme Court cases that have set a very high bar to Article III standing in these cases. The origins of this jurisprudence can be directly traced to Laird v. Tatum, a 1972 case where the Supreme Court considered the question of who could sue the government over a surveillance program, holding in a 5-4 decision that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.

Everything’S Bigger In Texas: Except The Medmal Settlements, Tom Baker, Eric Helland, Jonathan Klick

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Recent work using Texas closed claim data finds that physicians are rarely required to use personal assets in medical malpractice settlements even when plaintiffs secure judgments above the physician's insurance limits. In equilibrium, this should lead physicians to purchase less insurance. Qualitative research on the behavior of plaintiffs suggests that there is a norm under which plaintiffs agree not to pursue personal assets as long as defendants are not grossly underinsured. This norm operates as a soft constraint on physicians. All other things equal, while physicians want to lower their coverage, they do not want to violate the norm and …

From Promise To Form: How Contracting Online Changes Consumers, David A. Hoffman

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I hypothesize that different experiences with online contracting have led some consumers to see contracts—both online and offline—in distinctive ways. Experimenting on a large, nationally representative sample, this paper provides evidence of age-based and experience-based differences in views of consumer contract formation and breach. I show that younger subjects who have entered into more online contracts are likelier than older ones to think that contracts can be formed online, that digital contracts are legitimate while oral contracts are not, and that contract law is unforgiving of breach.

I argue that such individual differences in views of contract formation and enforceability …

The Emergence Of Classical American Patent Law, Herbert J. Hovenkamp

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One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce development politics inevitably distorts the decision making. …