Law Commons^™

Virtual Guilty Pleas, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The coronavirus pandemic led criminal courts across the country to switch to virtual hearings to protect public health. As the pandemic subsides, many policymakers have called for the continued use of the remote format for a range of criminal proceedings. To guide decisions whether to use remote criminal justice on a regular basis, it is important to review the advantages and disadvantages of the practice.

Remote criminal proceedings have been praised for their convenience and efficiency, but have also raised concerns. Many have worried that videoconferencing inhibits effective communication between defendants and their counsel, hinders defendants’ understanding of the process, …

A Comparative Analysis Of Mortgage Loan Assignments And A Call For Reform In The United States, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

The flow of capital into mortgage loans depends heavily on the ability to transfer those loans. In the United States, Germany, and other countries, mortgage loans are transferred on the secondary market. A loan originator may sell loans to a purchaser who intends to hold the loans and collect payments or to a third party who will pool the loans and issue mortgage-backed securities to investors.

In the United States, assignments of mortgage loans have created legal challenges and have been the subject of much litigation. The transfer and storage of large volumes of paper promissory notes, still the prevailing …

The Ties That Bind: What Pauli Murray Teaches Us About Race, Family, Slavery, And Inequality, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Pauli Murray is an unsung American hero. The modern-day understanding of equality and the legal arguments used to obtain it for various groups including African Americans, women, and the LGBTQ community were the brainchild of Pauli Murray. This essay illustrates how Dr. Murray’s family history is emblematic of the struggle for racial justice and equality in America. The pain and tenacity of her ancestors shaped her destiny and spurred her activism. Her family experiences illuminate the many ways that the foothold of structural racism began with placing insurmountable legal barriers between Black men, women, and children as a family unit. …

Presidential Administration And Fda Guidance: A New Hope, Nathan Cortez, Jacob S. Sherkow

Faculty Journal Articles and Book Chapters

Assessments of a President’s first 100 days in office typically focus on legislative priorities and executive orders. Less attention is paid to early victories achieved via guidance and other informal acts of “presidential administration.” The COVID-19 pandemic has opened a window for the Biden Administration to effectuate critical public health policies through guidance issued by the Food and Drug Administration. This brief essay highlights the power—and pitfalls—of effectuating public health policy this way, and discusses the lasting power of guidance for any new administration.

Cause And Effect In Antidiscrimination Law, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Standards of causation in antidiscrimination law, and disparate-treatment cases in particular, are deeply flawed. Their defects have caused an illogical, obscure, and unworkable proof scheme that requires an overhaul to curb the harm that it engenders and to allow the antidiscrimination statutes to serve their objectives effectively. This Article proposes a theory and method of causation that achieves this goal. The problem stems from the inadequacies associated with current standards of causation in disparate-treatment cases—the but-for test and the motivating-factor test. The proposed “factorial” approach introduces a causal standard that addresses these inadequacies. It entails three innovations over current causation …

Transparency In Plea Bargaining, Jenia I. Turner

Faculty Journal Articles and Book Chapters

lea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it …

Remote Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay. The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over. To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020. The survey responses were supplemented with direct observations of remote plea hearings …

Codeterminination In Theory And Practice, Grant M. Hayden, Matthew T. Bodie

Faculty Journal Articles and Book Chapters

Codetermination—a system of shared corporate governance between shareholders and workers—has been mostly ignored within the U.S. corporate governance literature. When it has made an appearance, it has largely served as a foil for shareholder primacy and as an example of corporate deviance. However, over the last fifteen years—and especially in the last five—empirical research on codetermination has shown surprising results as to the system’s efficiency, resilience, and benefits to stakeholders.

This Article reviews the extant American legal scholarship on codetermination and provides a fresh look at the current state of codetermination theory and practice. Rather than experiencing the failures predicted …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

The Problem Of Gender Inequity: The Legacy Of Deborah Rhode, Joanna Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

Creating Cryptolaw For The Uniform Commercial Code, Carla L. Reyes

Faculty Journal Articles and Book Chapters

A contract generally only binds its parties. Security agreements, which create a security interest in specific personal property, stand out as a glaring exception to this rule. Under certain conditions, security interests not only bind the creditor and debtor, but also third-party creditors seeking to lend against the same collateral. To receive this extraordinary benefit, creditors must put the world on notice, usually by filing a financing statement with the state in which the debtor is located. Unfortunately, the Uniform Commercial Code (U.C.C.) Article 9 filing system fails to provide actual notice to interested parties and introduces risk of heavy …

Exploring The Implications Of Artificial Intelligence, Kristin N. Johnson, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Emerging technologies promise to play a transformative role in our society, enabling driverless cars, enhanced accuracy and efficiency in disease mapping, greater and less expensive access to certain consumer services, including consumer financial services. Discussions regarding the role of emerging technologies increasingly center on the development and integration of artificial intelligence technologies or AI-an assemblage of technologies that rely on a variety of computational techniques. This Essay offers a modest primer outlining a general understanding of the contours and contributions of Al, as well as introducing the articulated benefits and limits

of these technologies.

This Essay examines the increasingly pervasive …

Immoral Patents, David O. Taylor

Faculty Journal Articles and Book Chapters

Only to a limited extent have U.S. legislators recognized the moral and ethical implications of the patentability of controversial technologies. I find this absence of legislative debate curious for several reasons, including the fact that for decades there has been an intense public debate over the government’s involvement in, and regulation of, research and development related to biotechnology, including reproduction technologies, and particularly the use and destruction of embryonic stem cells, embryos, and fetuses—areas of considerable moral and ethical concern. Nor has there been debate regarding patentability with respect to other areas of concern, such as technologies that damage the …

Autonomous Business Reality, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Society tends to expect technology to do more than it can actually achieve, at a faster pace than it can actually move. The resulting hype cycle infects all forms of discourse around technology. Unfortunately, the discourse on law and technology is no exception to this rule. The resulting discussion is often characterized by two or more positions at opposite ends of the spectrum, such that participants in the discussion speak past each other, rather than to each other. The rich context that sits in the middle ground goes disregarded altogether. This dynamic most recently surfaced in the legal literature regarding …

Autonomous Corporate Personhood, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Sexual Harassment In The Post-Weinstein World, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The 2017 iteration of the #MeToo movement has brought tremendous attention to the problem of sexual harassment in the workplace, as well as in a variety of other contexts. We learned that sexual harassment is rampant, varied in form, and harmful, or, more accurately, that it is still all of these things. Sexual harassment at work has existed as long as women have worked, whether paid, valued, or enslaved. The law of sexual harassment has a much more recent provenance. Courts began to recognize harassment as a form of sex discrimination in the early 1980s, and the entire current structure …

Race-Conscious Jury Selection, Anna Offit

Faculty Journal Articles and Book Chapters

Among the central issues in scholarship on the American jury is the effect of Batson v. Kentucky (1986) on discriminatory empanelment. Empirical legal research has confirmed that despite the promise of the Batson doctrine, both peremptory strikes and challenges for cause remain tools of racial exclusion. But these studies, based on post facto interviews, transcript analysis, and quantitative methods offer little insight into Batson’s critical impact on real-time decision-making and strategy in voir dire. If we increasingly know what kinds of juries are produced in the post-Batson world, we know very little about how they are produced.

This Article addresses …

Facilitating Capital Raising: The Sec’S 2020 Amendments To The Exempt Offering Framework, Marc I. Steinberg, Taylor E. Santori

Faculty Journal Articles and Book Chapters

No abstract provided.

Tributes To Family Law Scholars Who Helped Us Find Our Path: Dorothy E. Roberts, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Professor Dorothy Roberts is a legacy builder and an inspiration for women, African American scholars, youth, and ordinary folks who want to make a difference in the lives of others. Her work in the field of family, race, and gender law is nothing short of prolific. She is a powerhouse whose research and advocacy reach across law into the fields of Africana studies, sociology, anthropology, medicine, psychology, political science, business, economics, and human rights. She is one of the first female professors to unpack how the law interfaces with Black women in various roles—as mother, wife, partner, daughter, caretaker, worker, …

State Energy Cartels, James W. Coleman

Faculty Journal Articles and Book Chapters

Fracking has made America the center of global oil production and the engine of the world’s economy. But haste makes waste. America’s new oil wells are releasing natural gas as well, which is prized as a clean and reliable fuel around the world, but must be simply burned off or “flared” if there are no pipelines to bring it to the customers that need it. The pace of the oil boom, and the challenges of building new pipe-lines have forced oil companies to flare staggering quantities of natural gas. Texas and North Dakota are now flaring—that is, wasting—more gas than …

Covid-19 And Law Teaching: Guidance On Developing An Asynchronous Online Course For Law Students, Yvonne Dutton, Seema Mohapatra

Faculty Journal Articles and Book Chapters

Most law schools suspended their live classroom teaching in March 2020 due to the COVID-19 pandemic and quickly transitioned to online programming. Although professors can be commended for rapidly adapting to an emergency situation, some commentators have nevertheless suggested that the emergency online product delivered to students was substandard. Based on our own experiences in designing and delivering online courses, we caution against embracing a broad-reaching, negative conclusion about the efficacy of online education. Indeed, much of this emergency online programming would be more properly defined as “emergency remote teaching,” as opposed to “online education.” Delivering online education to students …

The Corporation Reborn: From Shareholder Primacy To Shared Governance, Grant M. Hayden, Matthew T. Bodie

Faculty Journal Articles and Book Chapters

The consensus around shareholder primacy is crumbling. Investors, long assumed to be uncomplicated profit-maximizers, are looking for ways to express a wider range of values in allocating their funds. Workers are agitating for greater voice at their workplaces. And prominent legislators have recently proposed corporate law reforms that would put a sizable number of employee representatives on the boards of directors of large public companies. These rumblings of public discontent are echoed in recent corporate law scholarship, which has cataloged the costs of shareholder control, touted the advantages of nonvoting stock, and questioned whether activist holders of various stripes are …

Brief Of Professor Jeffrey D. Kahn As Amicus Curiae In Support Of Plaintiffs-Appellees, Jeffrey D. Kahn, Andrew T. Tutt

Faculty Journal Articles and Book Chapters

This is an amicus brief that in support of plaintiffs-appellees in Elhady v. Kable, an important terrorist watchlisting case in the United States Court of Appeals for the Fourth Circuit.

Brief Of Jeffrey D. Kahn As Amicus Curiae In Support Of Respondents (Tanzin V. Tanvir), Andrew T. Tutt, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This is an amicus brief filed in the United States Supreme Court in support of the respondents in Tanzin v. Tanvir, a case concerning the Religious Freedom Restoration Act and allegations of egregious conduct by FBI agents retaliating against individuals who resist their encouragement to become informants in their religious communities by using the No Fly List.

Martin Luther King Jr. And Ernest Everett Just - On Evolution Of Ethical Behavior, Theodore Walker

Perkins Faculty Research and Special Events

Rev. Martin Luther King Jr. prescribed an evolutionary advance in ethical behavior: the total “abolition of poverty” and the abolition of war throughout “the world house.” Cell biologist Ernest Everett Just advanced the idea that human ethical behavior evolved from cellular origins.

Also, astrobiologists Chandra Wickramasinghe and Sir Fred Hoyle advanced the idea of cosmic biology, including stellar evolution and cosmic evolution. From cells to humans to stars and cosmology, evolutionary natural science converges with natural theology.

Secret Algorithms, Ip Rights, And The Public Interest, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The secrecy surrounding the algorithms that play a central role in American life today is proving to have alarming effects. Judges and juries are convicting defendants based on secret evidence. Major advertisers like Facebook are discriminating against minorities seeking housing. And Russians may very well be hacking our voting machines to change election outcomes. The algorithm secrecy underlying these results obscures whether such legal outcomes are actually accurate and fair or whether they were based on faulty evidence, affected by bias, or manipulated by outside influences. These are just a handful of the public-interest perils of algorithm secrecy. This Article …

Patent Eligibility And Investment, David O. Taylor

Faculty Journal Articles and Book Chapters

Have the Supreme Court’s recent patent eligibility cases changed the behavior of venture capital and private equity investment firms, and if so how? This Article provides empirical data about investors’ answers to those important questions. Analyzing responses to a survey of 475 investors at firms investing in various industries and at various stages of funding, this Article explores how the Court’s recent cases have influenced these firms’ decisions to invest in companies developing technology. The survey results reveal investors’ overwhelming belief that patent eligibility is an important consideration in investment decisionmaking, and that reduced patent eligibility makes it less likely …

Secret Conviction Programs, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.

Corporate Lawyers: Ethical And Practical Lawyering With Vanishing Gatekeeper Liability, Marc I. Steinberg

Faculty Journal Articles and Book Chapters

No abstract provided.

Rebuilding The Texas Railroad Commission, James W. Coleman

Faculty Journal Articles and Book Chapters

This article explains how the Railroad Commission of Texas became the world’s most prominent oil and gas regulator and how it can become the world’s role model again. It explains how the Railroad Commission built the world’s modern oil and gas industry by stopping oil and gas waste and ensuring stable prices. And it describes the crisis now facing the industry—overproduction of oil and gas is wasting resources that will be worth more in the future. The United States is emerging from the biggest oil and gas boom that the world has ever seen and its production now dwarfs that …