Law Commons^™

Interpreting Constitutional Provisions In Tandem, Kiel Brennan-Marquez

Faculty Articles and Papers

No abstract provided.

Disparate Impact And Voting Rights: How Objections To Impact-Based Claims Prevent Plaintiffs From Prevailing In Cases Challenging New Forms Of Disenfranchisement, Jamelia Morgan

Faculty Articles and Papers

As this article will show, the reluctance of courts to accept evidence of "impact plus" stems in part from a concern that the remedies required by impact-based claims under Section 2 of the Voting Rights Act will involve essentialism and an affront to individual dignity. These concerns are animated in the vote dilution context where, in cases challenging the dilution of the minority vote, and not involving intentional vote dilution, objections have centered on the notion that Section 2's results test requires courts to make essentialist claims regarding minority and non-minority voting patterns and election choices. Such objections are misplaced …

Caged In: The Devastating Harms Of Solitary Confinement On Prisoners With Physical Disabilities, Jamelia Morgan

Faculty Articles and Papers

This article draws from interviews with currently and formerly incarcerated people with disabilities, disability rights advocates, prisoners' rights advocates, medical experts, legal scholars, and correctional officials, and examines the conditions of confinement, harms, and challenges facing prisoners with physical disabilities in solitary confinement. In addition, this article fills some of the gaps in data and where possible builds on existing data to provide a snapshot into (1) the number of people with physical disabilities; (2) the number of prisoners with physical disabilities in solitary confinement; and (3) the volume of grievances filed by prisoners with disabilities in ten state prison …

Beyond The Guild: Lawyer Organizations And Law Making, Leslie Levin

Faculty Articles and Papers

Lawyers throughout the world seek to influence law, not only through their individual actions, but also through lawyer organizations. As interest groups, these organizations often work to affect not only law, but also the justice system and the workings of government. It is no secret that these organizations sometimes try to block legal change or create new legal rules to promote lawyers' own interests.' Lawyer organizations also work to influence law in ways that will benefit their clients. Yet sometimes lawyers' collective actions reflect broader political concerns rather than their clients' or their own self-interest, such as when thousands of …

One Not Like The Other: An Examination Of The Use Of The Affirmative Action Analogy In Reasonable Accommodation Cases Under The Americans With Disabilities Act, Jamelia Morgan

Faculty Articles and Papers

This Article discusses the debate within the courts regarding the employer's affirmative obligations under the ADA's reasonable accommodation clause by focusing on the use of the affirmative action analogy. The purpose of this Article is to examine the evolution of the affirmative-action analogy in reasonable-accommodation case law over time and to decipher its meaning and relevance. At the onset, it is important to establish a few definitions and assumptions. First, the affirmative-action analogy refers to cases where courts liken or compare the plaintiff's reasonable-accommodation request to affirmative action. Specifically, the Article examines cases where the term "affirmative action" explicitly appears …

Does Small Group Health Insurance Deliver Group Benefits: An Argument In Favor Of Allowing The Small Group Market To Die, John Aloysius Cogan, Jr.

Faculty Articles and Papers

The small group health insurance market is failing. Today, fewer than one-third of small firms now offer health insurance and the number of people covered by small group insurance continues to drop. These problems invite the obvious question: What should be done about the small group market? Past scholarship on the small group market has largely focused on documenting the market's problems, evaluating the effectiveness of prior reform efforts, and proposing regulatory changes to stabilize the market. This Article takes a different approach to the small group problem by asking a previously unasked question: Does the small group market deliver …

Efficiency And Its Discontents, Michael Fischl

Faculty Articles and Papers

Review of Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford 2014).

Self-Knowledge For Lawyers: What It Is And Why It Matters, Thomas Morawetz

Faculty Articles and Papers

Anyone who has taught in law schools for three decades or more has witnessed a paradigm shift in legal education. From the 1960s through the 1980s, it was common to ask how law school differs from the kind of practical training that might be acquired in, say, apprenticeship to a practitioner. A frequent answer was to compare law schools with graduate schools in arts and sciences and to argue that the law students were taught similar skills of reasoning, normative evaluation, cultural contextualization, and self-examination. For the most part it was taken for granted that academic scholars aspired to these …

Book Review, Thomas Morawetz

Faculty Articles and Papers

Reviewing Daniel S. Medwed ed., Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent, Cambridge: Cambridge University Press, 2017 and Sharon Dolovich and Alexandra Natapoff eds., The New Criminal Justice Thinking, New York: New York University Press, 2017.

Formal And Informal Amendment Of The United States Constitution, Richard Kay

Faculty Articles and Papers

No abstract provided.

Designing The Tax Treatment Of Litigation-Related Costs, Sachin Pandya, Stephen Utz

Faculty Articles and Papers

Defendants often deduct for income tax purposes their litigation-related costs, such as attorney fees and payments to settle claims or satisfy judgments. The result is often a large gap between the sticker price of settlements or judgments and their after-tax cost-what defendants really pay out of pocket. The problem: For every dollar that a defendant avoids in tax liability by, for example, deducting the damage awards it pays, the civil justice system falls that much short of its corrective justice or optimal-deterrence goals in that case. For this reason, the entire civil justice system should care about this question: How …

The New Law Of The Child, Anne Dailey, Laura A. Rosenbury

Faculty Articles and Papers

This Article sets forth a new paradigm for describing, understanding, and shaping children's relationship to law. The existing legal regime, which we term the "authorities framework;' focuses too narrowly on state and parental control over children, reducing children's interests to those of dependency and the attainment of autonomy. In place of this limited focus, we envision a "new law of the child" that promotes a broader range of children's present and future interests, including children's interests in parental relationships and nonparental relationships with children and other adults; exposure to new ideas; expressions of identity; personal integrity and privacy; and participation …

Big Data Policing And The Redistribution Of Anxiety, Kiel Brennan-Marquez

Faculty Articles and Papers

By equipping police with data, what are we trying to accomplish? Certain answers ring familiar. For one thing, we are trying to make criminal justice decisions, plagued as they often are by inaccuracy and bias, more refined. For another, we are trying to boost the efficiency of governance institutions-police departments, prosecutor's offices, municipal courts-that operate under the pall of scarcity.

For the moment, I want to put answers like these to one side; not because they are wrong, but because they seem like only part of the story. Another goal of big data policing, in addition to those just described, …

Fourth Amendment Anxiety, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles and Papers

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement's collection of informa­tion can be cause for "anxiety," meriting constitutional protection, even if subsequent uses of the information are tightly restricted. This change is significant. While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing.

Beyond offering a careful reading of Birchfield, this Article has two goals. First, …