Law Commons^™

The Jury's Constitutional Judgment, Nathan Chapman

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Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque. Should the jury have the right to nullify criminal statutes on constitutional grounds? Should the jury apply constitutional doctrine in civil rights suits against government officers? Should courts of appeals defer to the jury’s application of constitutional law, or review it de novo?

This Article offers the first holistic analysis of the jury’s role in constitutional adjudication. It argues that the Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the …

The Establishment Clause, State Action, And Town Of Greece, Nathan Chapman

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The Establishment Clause forbids the government from engaging in the same religious exercise that the law protects when performed by a private party. Thus, an establishment case often turns on whether religious activity is "state action." Too often, however, courts ignore the state action analysis or merge it with the substantive Establishment Clause analysis. This muddles both doctrines and threatens individual religious liberty.

This Article argues that the state action doctrine should account for the government's distribution of private rights. Accordingly, the Constitution applies to the government's distribution of rights, but not to a private party's use of those rights. …

The Death Of Deference And The Domestication Of Treaty Law, Harlan G. Cohen

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How much deference do courts give to Executive branch views on treaty interpretation? The Restatement (Third) of the Foreign Relations Law of the United States tells us that courts “will give great weight to an interpretation made by the executive branch,” and earlier empirical studies suggested that deference to Executive in such cases was robust. But is that still the case? The Supreme Court’s rejection of the Executive’s view in a series of high profile cases including Hamdan v. Rumsfeld, BG Group PLC v. Republic of Argentina, and Bond v. United States should raise some doubts. This short article investigates, …

Talk Don’T Touch? Considerations For Children’S Attorneys On The Physical Touch Of Clients, Andrea L. Dennis

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Researchers focused on the representation of children and attorneys for children have taken great pains to explore issues surrounding the attorney-child client relationship and recommend strategies and policies supporting positive development of the relationship. Notwithstanding the breadth of available information, almost no attention has been aimed at whether attorneys should physically touch their clients. This article fills that gap.

This Article consists of three parts. Part I describes the literature commanding attorneys for children to develop quality relationships with their clients. These works recognize that young clients seek good relationships with their attorneys, but that barriers to creating quality relationships …

Collateral Consequences And The Preventive State, Sandra G. Mayson

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Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should …

Business Torts And Unfair Competition Handbook, 3rd Edn, Maurice Stucke

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No abstract provided.

Flourishing Rights, Wendy A. Bach

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Flourishing Rights reviews Clare Huntington’s Failure to Flourish: How Law Undermines Family Relationships, recently published by the Oxford University Press. This review explores the way that specific issues at the heart of the relationship between poor families and the state affects Huntington’s thesis and proposals. The review largely applauds the book but concludes that a robust form of rights protection, when combined with the impressive policy arguments Huntington marshals, might actually make real the audacious idea that everyone has a right to flourish.

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

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Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

Improving Agencies’ Preemption Expertise With Chevmore Codification, Kent H. Barnett

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After nearly thirty years, the judicially crafted Chevron and Skidmore judicial-review doctrines have found new life as exotic, yet familiar, legislative tools. When Chevron deference applies, courts employ two steps: they consider whether the statutory provision at issue is ambiguous, and, if so, they defer to an administering agency’s reasonable interpretation. Skidmore deference, in contrast, is a less deferential regime in which courts assume interpretative primacy over statutory ambiguities but defer to agency action based on four factors — the agency’s thoroughness, reasoning, consistency, and overall persuasiveness. In the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress directed courts …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

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Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

Scholarly Works

Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

Fundamental Changes In The Llc: A Study In Path-Divergence And Convergence, Joan Macleod Heminway

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Issues relating to fundamental changes in LLCs — matters such as amendments to organizational documents, mergers, conversions, domestications, and dissolutions — have received little consideration in the law literature. While they are regular occurrences in the lifecycle of a firm, they are not in front of an LLC’s management or legal counsel every day. Having said that, they are critically important aspects of the law governing LLCs, especially in transformative times. This draft book chapter, written for the forthcoming Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman & Mark J. Loewenstein eds., Edward Elgar …

Book Review: “The Good Lawyer: Seeking Quality In The Practice Of Law”, Linda H. Edwards

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In their first collaboration, The Happy Lawyer, the writing team of Nancy Levit and Doug Linder tackled a crucially important subject: how to have a happy life in the law. As part of that project, they interviewed more than two hundred lawyers about what makes them happy in their jobs. Levit and Linder noticed that happy lawyers nearly always talked about doing good work. Curious about the connection, the authors turned to recent research in neuroscience and learned, not to their surprise, that a key to a happy life is, indeed, the sense of doing good work. It is …

The Indie Lawyer Of The Future: How New Technology, Cultural Trends, And Market Forces Can Transform The Solo Practice Of Law, Lucille Jewel

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This article is about individual lawyers innovating in the practice of law. New technology, cultural trends, and market forces have the potential to awaken latent markets for one-to-one legal services grounded in the sharing economy, the commons, DIY businesses, and other similar endeavors. These forces might reshape the solo practice of law, which in turn might induce structural change in the legal system itself. Despite the mass commoditization of many law products, there is a potentially new market for craft-oriented lawyers who directly connect with clients.

When we connect the sharing economy and the cultural values that support it with …

Women In The Crowd Of Corporate Directors: Following, Walking Alone, And Meaningfully Contributing, Joan Macleod Heminway

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With the thought that new perspectives often can be helpful in addressing long-standing unresolved questions, this article approaches an analysis of women’s roles on corporate boards of directors from the standpoint of crowd theory. Crowd theory — in reality, a group of theories — explains the behavior of people in crowds. Specifically, this article describes theories of the crowd from social psychology and applies them to the literature on female corporate directors, looking at the effects on both women as crowd members and boards as decision-making crowds.

Unfortunately, while the crowd theory perspective provides some insights, they are not altogether …

Truancy Lawyering In Status Offense Cases: An Access To Justice Challenge, Dean Rivkin

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No abstract provided.

Happy Together? The Uneasy Coexistence Of Federal And State Protection For Sound Recordings, Gary Pulsinelli

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Federal copyright law provides a digital performance right that allows owners of sound recordings to receive royalties when their works are transmitted over the Internet or via satellite radio. However, this federal protection does not extend to pre-1972 sound recordings, which are excluded from the federal copyright system and instead left to the protections of state law. No state law explicitly provides protection for any type of transmission, a situation the owners of pre-1972 sound recordings find lamentable. These owners are therefore attempting to achieve such protection by various means. In California, they filed a lawsuit, claiming that they already …

Book Review: Humane Migration: Establishing Legitimacy And Rights For Displaced People., Fran Ansley

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No abstract provided.

Constitutional Remedies: Reconciling Official Immunity With The Vindication Of Rights, Michael Wells

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A great deal of scholarly attention is devoted to constitutional rights and comparatively little to remedies for their violation. Yet rights without remedies are not worth much, and remedial law does not always facilitate the enforcement of rights, even of constitutional rights. This Article discusses an especially challenging remedial context: suits seeking damages for constitutional wrongs that occurred in the past, that are unlikely to recur, and hence that cannot be remedied by forward-looking injunctive or declaratory relief. Typical fact patterns include charges that the police, prison guards, school administrators, or other officials have engaged in illegal searches and seizures, …

Regulation By Hypothetical, Mehrsa Baradaran

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A new paradigm is afoot in banking regulation—and it involves a turn toward the more speculative. Previous regulatory instruments have included geographic restrictions, activity restrictions, disclosure mandates, capital requirements, and risk management oversight to ensure the safety of the banking system. This Article describes and contextualizes these regulatory tools and shows how and why they were formed to deal with industry change. The financial crisis of 2008 exposed the shortcomings in each of these regimes. In important ways, the Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) departs from these past regimes and proposes something new: Call it …

Don't Fear The Leaker: Thoughts On Bureaucracy And Ethical Whistleblowing, Glenn Harlan Reynolds

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In this brief Essay, I argue that rather than trying to eliminate leaks entirely, which experience demonstrates is impossible, we should instead try to channel leaks so that they provide the maximum benefit to transparency while reducing risks to national security and other secrecy concerns. I also offer some preliminary suggestions about how to accomplish this goal.

Brief Of Professors At Law And Business Schools As Amici Curiae In Support Of Respondents, Omnicare, Inc., Et Al., Petitioners, V. Laborers District Council Construction Industry Pension Fund, Et Al., Respondents, No. 13-435 (S. Ct. Sept. 2, 2014), Joan Macleod Heminway, J. Robert Brown, Celia Taylor, Lyman P.Q. Johnson

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This Amicus Brief was filed on behalf of more than 20 law and business faculty in a case arising under Section 11 of the Securities Act of 1933. The issue framed by the parties sought to define the test for establishing the falsity of an opinion that was not subjectively believed. The statement at issue involved representations that contracts were legally valid. The Brief took the position that the statement was not an opinion. A representation about the legal validity of contracts, like other matters of present fact, can be false on the date made. Nonetheless, a speaker may express …

Evolution Of Chattel Paper: From Possession To Control, Thomas E. Plank

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Since its inception, Article 9 has authorized both non-possessory assignment of chattel paper perfected by the filing of a financing statement and a possessory assignment perfected by possession. As a result, tangible chattel paper is “quasi-negotiable” because certain purchasers for value with possession can have priority over previously perfected secured parties. The 2000 revision of Article 9 authorized security agreements evidenced by an electronic record or records and created electronic chattel paper as a new sub-type of collateral. To extend quasi-negotiability to electronic chattel paper, it also introduced the concept of “control” as an analogue to possession of tangible chattel …

Out With The Old, In With The New Two Perspectives On Implementing Libguides At An Academic And A Public Law Library, Shamika Dalton

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LibGuides can be a great tool, as many librarians in various types of institutions will testify. But there are some considerations for their use. Following, Danielle A. Becker, electronic services librarian at Minnesota State Law Library, and Shamika D. Dalton, assistant university librarian at University of Florida Levin College of Law, provide their insights on working with the tool in their respective institutions.

The Commerce Power And Congressional Mandates, Dan T. Coenen

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In National Federation of Independent Business v. Sebelius, a five-Justice majority concluded that the commerce power did not support enactment of the so-called “individual mandate,” which imposes a penalty on many persons who fail to buy health insurance. That ruling is sure to spark challenges to other federal laws on the theory that they likewise mandate individuals or entities to take certain actions. Federal laws founded on the commerce power, for example, require mine operators to provide workers with safety helmets and (at least as a practical matter) require mine workers to wear them. Some analysts will say that laws …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

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I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

In Search Of Effective Ethics & Compliance Programs, Maurice Stucke

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The U.S. Sentencing Commission's Organizational Guidelines for over twenty years have offered firms a significant financial incentive to develop an ethical organizational culture. Nonetheless, corporate crime persists. Too many ethics programs remain ineffective.

As this Article explores, the Guidelines' current approach is not working. The evidence, including sentencing data over the past twenty years, reveals that few firms have effective ethics and compliance programs. Nor is there much hope that the Guidelines' incentive will induce companies, after the economic crisis, to become more ethical.

The problem is not attributable to three assumptions underlying the Guidelines. The empirical research, while still …

Sentencing Inequality Versus Sentencing Injustice, Melanie Wilson

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No abstract provided.

Anti-Justice, Melanie Wilson

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This Article contends that, despite their unique, ethical duty to “seek justice,” prosecutors regularly fail to fulfill this ethical norm when removed from the traditional, adversarial courtroom setting. Examples abound. For instance, in 2013, Edward Snowden leaked classified information revealing a government-operated surveillance program known as PRISM. That program allows the federal government to collect metadata from phone companies and email accounts and to monitor phone conversations. Until recently, prosecutors relied on some of this covertly acquired intelligence to build criminal cases against American citizens without informing the accused. In failing to notify defendants, prosecutors violated the explicit statutory directives …

Investor And Market Protection In The Crowdfunding Era: Disclosing To And For The 'Crowd', Joan Macleod Heminway

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This article focuses on disclosure regulation in a specific context: securities crowdfunding (also known as crowdfund investing or investment crowdfunding). The intended primary audience for disclosures made in the crowdfund investing setting is the “crowd,” an ill-defined group of potential and actual investors in securities offered and sold through crowdfunding. Securities crowdfunding, for purposes of this article, refers to an offering of securities made over the Internet to a broad-based, unstructured group of investors who are not qualified by geography, financial wherewithal, access to information, investment experience or acumen, or any other criterion.

To assess disclosure to and for the …