Law Commons^™

Cleansing Animus: The Path Through Arlington Heights, William Araiza

Faculty Scholarship

No abstract provided.

Rational Contract Design, Naveen Thomas

Faculty Scholarship

No abstract provided.

Black Boarding Academies As A Prudential Reparation: Finis Origine Pendet, Roy L. Brooks

Faculty Scholarship

With billions of dollars pledged and trillions of dollars demanded to redress slavery and Jim Crow (“Black Reparations”) the question of how best to use these funds has moved into the forefront of the ongoing campaign for racial justice in our post-civil rights society. Reparatory strategies typically target the norms and structures that sustain racial disadvantage wrought by slavery and Jim Crow. The goal of such transitional reparations is to extinguish the menace of white supremacy and systemic racism across the board. Restructuring in housing, education, employment, voting, law enforcement, health care, and the environment—social transformation—is absolutely needed in the …

Why The Actual Malice Test Should Be Eliminated, John M. Kang

Faculty Scholarship

Under traditional common law, a plaintiff could recover damages for libel if she could prove that the defendant had published a factual statement about the plaintiff that tended to injure the plaintiff’s reputation. The plaintiff, at most, was required to show negligence to recover damages for libel. While the amount of money that any given plaintiff could recover in damages was uncertain, one thing was clear: the First Amendment would not protect libel. In 1964, in New York Times Co. v. Sullivan, the Supreme Court radically upended this received view of libel as unprotected speech. According to Sullivan, …

Athletic Scholarships And Title Ix: Compliance Trends And Context, Erin E. Buzuvis

Faculty Scholarship

This Article evaluates enforcement practices and compliance trends related to Title IX's requirement for gender equity in the distribution of athletic financial aid. It confirms that universities in the most competitive athletic programs continue to underfund women's athletic scholarships relative to the proportionality standard required by law. It also confirms that the under-allocation of women's athletic opportunities at universities across divisions results in additional disparities in scholarship funding that is not captured by an analysis of compliance. This Article concludes with suggestions that the government clarifies its expectations and enforcement priorities. It further calls for regulators, scholars, and advocates to …

Reimagining A U.S. Corporate Tax Increase As A Supplemental Subtraction Vat, Daniel S. Goldberg

Faculty Scholarship

The U.S. federal government raises tax revenue almost exclusively through income taxes, both corporate and individual, whereas its trading partners and competitors rely for their national revenue on both income taxes and “destination-based” value added taxes (VATs), which are not imposed on exports but are imposed on imports. As a result, U.S. corporations, which are subject to U.S. corporate income tax, may be at a serious trade disadvantage to competitor non-U.S. corporations with respect to both U.S. domestic sales and foreign sales, if the U.S. corporate income tax exceeds the foreign country’s income tax imposed on those competitors.

The Biden …

Targeting School Shootings: Using Three Warning Signs—Animal Abuse, Domestic Violence, And Conduct Disorder—To Help Prevent Massacres, Phyllis Coleman

Faculty Scholarship

No abstract provided.

Situating Dobbs, Paula A. Monopoli

Faculty Scholarship

The recent decision in Dobbs v. Jackson Women’s Health has been characterized as an outlier because its effect is to erase a previously recognized constitutional right. This paper situates Dobbs in a broader feminist constitutional history. It asks if this retrenchment is really such a unique turn in American jurisprudence when it comes to protections or “rights” that matter most to women’s lived experience. The paper argues that if one opens the aperture of constitutional history to embrace a more capacious view of rights, those afforded to women have often been eroded or erased by state legislatures, Congress, and courts. …

Environmental Evidence, Seema Kakade

Faculty Scholarship

The voices of impacted people are some of the most important when trying to make improvements to social justice in a variety of contexts, including, criminal policing, housing, and health care. After all, the people with on the ground experience know what is likely to truly effectuate change in their community, and what is not. Yet, such lived experience is also often significantly lacking and undermined in law and policy. People with lived experience tend to be seen as both community experts with valuable knowledge, as well as non-experts with little valuable knowledge. This Article explores the lived experience with …

Election Obstruction, Jason Marisam

Faculty Scholarship

In 2020 and 2022, multiple Republican county canvassers refused to perform their ministerial duty to approve election returns, obstructing the official certification of the results. The canvassers latched onto false claims of fraud and other conspiracies advanced by election deniers. They eventually relented because of court orders and public pressure. The elections produced official winners, and crisis was averted. But, as long as election denialism rots our political discourse, election obstruction by canvassers will be a persistent risk with significant dangers for our democracy. This Essay provides a brief history of election obstruction by canvassers, examines the modern link between …

Rethinking International Investment Law: Form, Function & Reform, Stratos Pahis

Faculty Scholarship

No abstract provided.

U.S. Law And Discrimination In Health Care, Kimani Paul-Emile

Faculty Scholarship

No abstract provided.

Should Prosecutors Be Expected To Rectify Wrongful Convictions, Bruce A. Green

Faculty Scholarship

In 2008, the American Bar Association amended the Model Rules of Professional Conduct to address prosecutors’ post-conviction conduct. Model Rules 3.8(g) and (h) establish the remedial steps a prosecutor must take after achieving a criminal conviction when confronted with significant new evidence of an injustice. They require prosecutors to disclose the new exculpatory evidence and to take reasonable steps to initiate an investigation, and if clear and convincing evidence then establishes the convicted defendant’s innocence, the prosecutors’ office must take reasonable steps to rectify the injustice. Since then, 24 state judiciaries have adopted versions of one or both rules. Although …

The Need For An Asian American Supreme Court Justice, Vinay Harpalani

Faculty Scholarship

In her insightful Comment on Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (hereinafter SFFA cases), Dean Angela Onwuachi-Willig critiques Chief Justice Roberts’s majority opinion for its “simplistic understanding of race and racism.” She interrogates the “doxa” — the “unexamined cultural beliefs” that structure the majority’s narrative on racial experiences. Onwuachi- Willig elucidates how Chief Justice Roberts accepts whiteness as a tacit norm and ignores the marginalization of people of color. She contrasts this with the “fuller” history of American racism brought forth by Justices …

Are Police Officers Bayesians? Police Updating In Investigative Stops, Jeffrey A. Fagan, Lila J.E. Nojima

Faculty Scholarship

Theories of rational behavior assume that actors make decisions where the benefits of their acts exceed their costs or losses. If those expected costs and benefits change over time, behavior will change accordingly as actors learn and internalize the parameters of success and failure. In the context of proactive policing, police stops that achieve any of several goals — constitutional compliance, stops that lead to “good” arrests or summonses, stops that lead to seizures of weapons, drugs, or other contraband, or stops that produce good will and citizen cooperation — should signal to officers the features of a stop that …

Policing The Unhoused, Ernesto A. Longa

Faculty Scholarship

[A]n Albuquerque police officer ordered Joleen Nez, a 37- year-old, unhoused, American Indian woman, “to pick up her litter [from the street] and of the consequences if she did not.” Joleen refused, stating, “It’s not my trash.” The consequences were that Joleen was summoned to appear in court for littering, booked into the Bernalillo County Metropolitan Detention Center (“MDC”) when she failed to appear and declared an in-custody death the next day.These stories and others like them prompted a series of questions. Why are non-violent petty criminal offenders being murdered by police and dying in county jails? What does the …

Ad Coelum And The Design Of Property Rights, Joseph A. Schremmer

Faculty Scholarship

This Article seizes on a specific doctrinal discussion in Eric Claeys’s Natural Property Rights to argue for the importance of understanding property doctrines in the context of a system of interconnecting rules and standards and not in isolation. The ad coelum doctrine provides that land ownership entails ownership of the suprajacent airspace as well as the underlying subsurface. As Claeys’s discussion highlights, scholars disagree about the significance of ad coelum both conceptually, as to what function the rule serves in defining and allocating property, and normatively. It is only by viewing ad coelum in the context of how it interacts …

Arresting Assembly: An Argument Against Expanding Criminally Punishable Protest, Allison Freedman

Faculty Scholarship

ARRESTING ASSEMBLY: AN ARGUMENT AGAINST EXPANDING
CRIMINALLY PUNISHABLE PROTEST
ALLISON M. FREEDMAN

ABSTRACT

In recent years, public protests have shed light on societal inequities that had previously gone unheard. Yet instead of responding to protesters’ concerns, many state legislators are attempting to silence disenfranchised groups by introducing hundreds of “anti-protest” bills. This is a recent phenomenon and one that is accelerating—the largest wave of “anti-protest” bills was introduced on the heels of the most robust protest movement in recent history, Black Lives Matter during the summer of 2020.

Although it is clear that legislators are attempting to tamp down public …

State Sequestration: Federal Policy Accelerates Carbon Storage, But Leaves Full Climate, Equity Protections To States, Gabriel Pacyniak

Faculty Scholarship

Abstract

The Intergovernmental Panel on Climate Change—the UN’s expert science panel—has repeatedly found that limiting climate change to prevent catastrophic harms will require at least some use of carbon capture and sequestration (CCS), and may entail substantial deployments of this technology. There is significant uncertainty, however, about the level of lifecycle greenhouse gas (GHG) reductions achievable in practice from varying CCS applications; some applications could even lead to net increases in emissions. In addition, a number of these applications create or maintain other harms, especially those related to fossil fuel extraction and use. For these reasons, many environmental justice advocates …

From The Devine Gift To The Devil's Bargains: Asian Americans In The Ideology Of White Supremacy, Vinay Harpalani

Faculty Scholarship

White supremacy is complex, evolving, and ever nuanced in all of its aspects, including its positioning of Asian Americans. Through different lenses, Stacy Hawkins, Robert Chang, Matthew Shaw, and Shakira Pleasant challenge me to interrogate this positioning even further. My reply can only begin to do so, but this colloquy will also inspire my future writings. In delineating my thoughts, I also draw inspiration from my mentor, the late Derrick Bell, whose insights have consistently informed my work.

Keeping All The Lights On: A Roadmap To Affordable, Universal Electricity Service In The Clean Energy Transition, Gabriel Pacyniak

Faculty Scholarship

The COVID-19 pandemic, the ongoing reckoning with structural racism, and an emerging focus on justice in the clean energy transition have combined to spotlight utility disconnections and the related issues of energy access, affordability, and security. Recent empirical scholarship has demonstrated that electricity disconnections of lower-income people are relatively common, disproportionately affect people of color, and cause significant harm. This Article describes how a number of U.S. states are fashioning an emerging policy model that makes significant progress toward truly affordable and accessible electricity service for all. It also describes how these state actions are consistent with U.S. utility law …

Achieving Climate Justice Through Land Back: An Overview Of Tribal Dispossession, Land Return Efforts, And Practical Mechanisms For #Landback, Vanessa Racehorse

Faculty Scholarship

Due to the increasing pressures of the climate change crisis, federal and state governments are beginning to acknowledge that Indigenous-led stewardship and control over Tribal aboriginal homelands is a crucial component of addressing climate change. In the United States, Tribal nations have a long history of responsible land stewardship, with environmental conservation and respect for the world's biodiversity being an inextricable piece of Tribal customs, traditions, and knowledge. This Article strives to pay due respect to traditional land stewardship and its important role in the past, present, and future.

Part I of this Article starts with an overview of the …

Increasing Compliance With International Pandemic Law: International Relations And New Global Health Agreements, Matthew M. Kavanagh, Clare Wenham, Elize Massard Da Fonseca, Laurence R. Helfer, Elvin Nyukuri, Allan Maleche, Sam F. Halabi, Adi Radhakrishnan, Attiya Waris

Faculty Scholarship

No abstract provided.

Firearms Law And Scholarship Beyond Bullets And Bodies, Joseph Blocher, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Academic work is increasingly important to court rulings on the Second Amendment and firearms law more generally. This article highlights two recent trends in social science research that supplement the traditional focus on guns and physical harm. The first strand of research focuses on the changing ways that gun owners connect with firearms, with personal security, status, identity, and cultural markers being key reasons people offer for possessing firearms. The second strand focuses on broadening our understanding of the impact of guns on the public sphere beyond just physical safety. This research surfaces the ways that guns can create fear, …

The Possible Futures Of American Democracy, Jedediah Purdy

Faculty Scholarship

No abstract provided.

Return To Sender?: Analyzing The Senior Leader “Open Letter” On Civilian Control Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

In response to the September 2022 open letter, “To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations,” by eight former secretaries of defense and five former chairmen of the Joint Chiefs of Staff, this Article adds a piece to the unsettled puzzle of civil-military relations. The Letter attempts to detail “core principles or best practices” (CP/BP) regarding civil-military relations, and in response, this Article comments on and clarifies these well-intended efforts. This Article sequentially dissects each CP/BP in today’s context of hyper-politicization, partisanship, technology, and more. Where necessary, the Article explains how the law may …

Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet

Faculty Scholarship

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …

Square-Peg Frauds, Miriam Baer

Faculty Scholarship

No abstract provided.

His Ship Has Sailed—Expelling Columbus From Cultural Heritage Law, Emily T. Behzadi

Faculty Scholarship

Latin America is a region rich with cultural heritage that existed for centuries before its antiquities were looted, trafficked, and sold on the international market. The language used to classify these objects of cultural heritage has been a tool of oppression and erasure. In reference to those objects of historical importance, auction houses, dealers, museums, and even looters themselves consistently use the term “Pre-Columbian.” “Pre-Columbian,” which means “before Columbus,” defines the historical period prior to the establishment of the Spanish culture in the national territories of Mexico, Central America, South America, and the Caribbean islands. In fact, this definition is …

The Ali Principles Of The Law Of Family Dissolution: Addressing Inequality Through Functional Regulation, Linda C. Mcclain, Douglas Nejamie

Faculty Scholarship

As part of a volume commemorating the American Law Institute on its centennial, this Essay reflects on the ALI Principles of the Law of Family Dissolution. We show how the Principles’ drafters intervened in cutting-edge issues at a time of flux in family law in ways that elaborated a progressive agenda that would continue to gain traction in the years after the Principles’ publication in 2000. Beginning from the assumption that family law should reflect how people actually live, the drafters developed a functional, rather than formal, approach to legal regulation. Such an approach, they believed, could vindicate commitments to …