Law Commons^™

International Arbitration And Attorney-Client Privilege — A Conflict Of Laws Approach, Susan Franck

Articles in Law Reviews & Other Academic Journals

Privilege determinations in international arbitration are currently the equivalent of the “wild west,” with minimal predictability and massive pockets of tribunal discretion. Yet protecting privilege in international arbitration — when the same document or communications with lawyers that is protected by United States law may receive no protection under another law — is fundamental to safeguarding attorney-client relationships within a global environment, incentivizing procedural integrity of dispute resolution, and ensuring that justice is done. As it is not clear what law applies to privilege and client confidentiality (let alone how the law is determine), this Essay begins to bridge the …

Reclaiming Place-Based Development Incentive, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

Professor Michelle Layser's forthcoming article is an attack on the current form of place-based tax incentive programs. Layser argues that while rhetorically such programs are said to help the poor, by design they support gentrification in ways that harm the poor. The article ends with a call to reform place-based incentive programs so that the poor in selected areas actually benefit.

The Myth Of Enforcing Border Security Versus The Reality Of Enforcing Dominant Masculinities, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

This essay explores the masculinities underpinnings in modern immigration law, policy, and rhetoric. Existing analysis has captured the ways in which Trump-era immigration laws, policies, and rhetoric are explicitly and implicitly packaged in alarming racism and xenophobia. These critical lenses continue a long and deeply worrisome legacy of “othering” and dehumanizing immigrants and, more broadly, marginalizing communities of color in the United States.

Outside of the immigration law lens, separate strands of scholarship and media coverage have highlighted the toxic masculinities of the Trump era. These discussions have generally focused on President Trump’s treatment of women, the gendered campaign dynamics …

Reclaiming State Authority Over Zoning Property, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

In 2019, Oregon became the first state to pass legislation that essentially bans single-family zoning.' As states across the country struggle to respond to the housing affordability crisis, Oregon's actions do not stand alone. John Infranca's recent article, The New State Zoning: Land Use Preemption Amid a Housing Crisis, may have been published before Oregon's historic vote but it is essential reading for those interested in the future of zoning.

In The Right Direction, Family Diversity In The Inter-American System Of Human Rights, Macarena Sáez

Articles in Law Reviews & Other Academic Journals

This Article argues that the Inter-American System of Human Rights has contributed to a family system that embraces gender equality and non-heterosexual and gender non-conforming families. It argues that the system had, from its inception, an expansive idea of the family that included associations outside marriage. This was the basis for a robust development of the concepts of equality and non-discrimination by the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights. Although the IACtHR has only decided a handful of cases related to the non-heterosexual family, its rich case law on equality and the right to …

In This Issue, What Would Justice Brennan Say To Justice Thomas?, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Nancy Rose, Steven Salop, Fiona Scott Morton

Articles in Law Reviews & Other Academic Journals

There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …

Federal Courts And The Poor: Lack Of Standards And Uniformity In Civil In Forma Pauperis Pleadings, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

Andrew Hammond's article, Pleading Poverty in Federal Court, shows that there is considerable variation in how federal courts consider requests by the poor for fee waivers in civil litigation. Courts not only use different forms to collect ability-to-pay information but they also apply different standards when determining whether fees should be waived. By focusing attention on federal court in forma pauperis motion practices, Hammond's article sheds light on how the poor can be negatively impacted by routine court practices that might ordinarily be treated as merely administrative. Hammond makes a convincing argument that federal courts should have uniform standards for …

Life, Liberty, [And The Pursuit Of Happiness]: Medical Marijuana Regulation In Historical Context, Lewis Grossman

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The struggle for access to medical marijuana differs from most other battles for therapeutic freedom in American history because marijuana also has a popular, though controversial, nontherapeutic use—delivery of a recreational high. After considering struggles over the medical use of alcohol during prohibition as a precedent, this chapter relates the history of medical marijuana use and regulation in the United States. The bulk of the chapter focuses on the medical marijuana movement from the 1970s to present. This campaign has been one of the prime examples of a successful extrajudicial social movement for freedom of therapeutic choice. With the exception …

Cracking The Copyright Dilemma In Software Preservation: Protecting Digital Culture Through Fair Use Consensus, Peter Jaszi, Patricia Aufderheide, Brandon Butler, Krista L. Cox

Articles in Law Reviews & Other Academic Journals

Copyright problems may inhibit the crucially important work of preserving legacy software. Such software is worthy of study in its own right because it is critical to accessing digital culture and expression. Preservation work is essential for communicating across boundaries of the past and present in a digital era. Software preservationists in the United States have addressed their copyright problems by developing a code of best practices in employing fair use. Their work is an example of how collective action by users of law changes the norms and beliefs about law, which can in turn change the law itself insofar …

Disrupting The Discrimination Narrative: An Argument For Wage And Hour Laws' Inclusion In Antisubordination Advocacy, Llezlie Green

Articles in Law Reviews & Other Academic Journals

The traditional discrimination narrative dominates both legal and popular understanding of workplace exploitation of African American workers. This narrative, however, is incomplete as it fails to consider other chronic workplace challenges such as wage theft. The dominant narrative draws upon an anticlassification framework rather than an antisubordination framework. In addition, post-racial legal analyses complicate the dominant narrative’s utility, particularly in a system plagued by structural inequality. Furthermore, both its legal underpinnings and the normative realities of pursuing discrimination claims challenge its efficacy in addressing workplace subordination. Wage theft has largely characterized only the immigrant worker exploitation narrative, despite wage theft’s …

An Irrevocably Tainted Opinion: Zen's Threat To Public Discourse, Andrew F. Popper

Articles in Law Reviews & Other Academic Journals

In Zen Magnets v. Consumer Product Safety Commission, the court barred a federal agency decision maker from participating in a case based on an irrevocably closed mind test satisfied by an open-ended “appearance of impropriety” standard. The decision failed to follow the well-worn path that requires a presumption of honesty, integrity, and good faith for administrative actors. The exclusion from this case, an enforcement action, was based on a single comment made several years earlier in a rulemaking. This action denied unjustly a fair-minded and distinguished agency official from exercising the right and responsibility to participate in an important case. …

Human Rights Heroes: The Challengers Of Free Speech, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

The U.S. Supreme Court's jurisprudence on freedom of speech and press spans little more than 100 years, during which justices from Oliver Wendell Holmes to John Roberts have weighed in on the development of the law. But perhaps more than in some other areas of constitu- tional law, the evolution and growth of free speech have required the courage, sacrifice, determination, and commitment of hundreds, maybe thousands, of litigants over the years who have waged heroic struggles for their rights.

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Alienating Citizens, Amanda Frost

Articles in Law Reviews & Other Academic Journals

Denaturalization is back. In 1967, the Supreme Court declared that denaturalization for any reason other than fraud or mistake in the naturalization process is unconstitutional, forcing the government to abandon its aggressive denaturalization campaigns. For the last half century, the government denaturalized no more than a handful of people every year. Over the past year, however, the Trump Administration has revived denaturalization. The Administration has targeted 700,000 naturalized American citizens for investigation and has hired dozens of lawyers and staff members to work in a newly created office devoted to investigating and prosecuting denaturalization cases.

Using information gathered from responses …

Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai

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This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

Interdisciplinary Projects-Based Community Entrepreneurship Courses, Brandon Weiss, Anthony J. Luppino

Articles in Law Reviews & Other Academic Journals

Over the last approximately fifteen years, the University of Missouri Kansas City (UMKC) School of Law has developed a multifaceted set of courses, including interdisciplinary courses, pro bono clinics, and other programs and events relating to for-profit entrepreneurship and economic development, and social and civic entrepreneurship. This presentation will describe two recent interdisciplinary additions to these offerings-- the Law, Technology and Public Policy (LT&PP) course and the Entrepreneurial Urban Development (EUD) course. Both have strong elements of increased access to law and justice, with particular focus on presently disadvantaged and underrepresented individuals, groups, and communities. They significantly enhance the training …

The Regulatory Accountability Act Loses Steam But The Trump Executive Order On Alj Selection Upturned 71 Years Of Practice, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Speech Across Borders, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

As both governments and tech companies seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to take down or delink material in a geographically segmented way? Or can and should tech companies be ordered to takedown or delink unsavory content across their entire platforms—no matter who is posting the material or where the unwanted content is viewed? How do we deal with conflicting speech norms across borders? And how do we protect against the most censor-prone nation effectively setting global speech rules? These questions were …

Who Owns The Rules Of War In Today's Post-Post-Cold War?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

Professor Gabriella Blum's The Paradox of Power observes that international humanitarian law (IHL) has been in a long. term evolution toward putting the principle of "humanitarianism" and civilian protection at its normative and legal center. The Lecture (on which this essay is a commentary) identifies several reasons for this, in particular (within and across liberal democratic societies) social acceptance of IHL as law but also as socially internalized norms that give IHL broad moral legitimacy. Accepting The Paradox of Power's main propositions as cor rect, this Commentary extends its account in several ways. First, The Paradox of Power's combination of …

Publicly Charged: A Critical Examination Of Immigration Public Benefit Restrictions, Cori Alonso-Yoder

Articles in Law Reviews & Other Academic Journals

Since the early days of the Trump Administration, reports of the President’s controversial and dramatic immigration policies have dominated the news. Yet, despite the intensity of this coverage, an immigration policy with far broader implications for millions of immigrants and their U.S.citizen family members has dodged the same media glare. By expanding the definition of who constitutes a “public charge” under immigration law, the Administration has begun a process to restrict legal immigration and chill the use of welfare benefits around the country. The doctrine of public charge exclusion developed from colonial times and has reemerged in Trump Administration policies …

Eitc For All: A Universal Basic Income Compromise Proposal, Benjamin Leff

Articles in Law Reviews & Other Academic Journals

Universal Basic Income ("UBI") is a concept that has recently begun to enter the popular political consciousness in the United States. It is defined as "a regular cash income paid to all, on an individual basis, without means test or work requirement." It is invoked for a wide variety of political and social purposes, but is almost always presented as radically different from existing governmental welfare and transfer systems. Once a UBI is disaggregated into discrete policy components, it is possible to imagine to what degree existing programs share the benefits (and detriments) of a UBI to a greater or …

Multilateral Development Banks, Their Member States And Public Accountability: A Proposal, Daniel D. Bradlow

Articles in Law Reviews & Other Academic Journals

More than 25 years ago the multilateral development banks (MDBs) began establishing independent accountability mechanisms (IAMs), such as the World Bank’s Inspection Panel, to address concerns about MDB accountability to those communities and groups who were harmed by their decisions and actions. This essay argues that these mechanisms need updating. In the interests of promoting new and creative thinking about these mechanisms, it makes an ambitious two-part proposal designed to improve the efficacy of the IAMs, while also respecting the sovereignty of their member states and protecting an appropriate level of immunity for the MDBs. First, the MDBs should jointly …

The Misuse Of Product Misuse: Victim Blaming At Its Worst, Andrew F. Popper, Robert Adler

Articles in Law Reviews & Other Academic Journals

This Paper addresses the legal consequences that surface when a consumer uses a product in a manner not specifically in- tended by that product's designer or manufacturer. If a product is used in a reasonably foreseeable manner, the fact that the use is at odds with a manufacturer's intention should not be a basis to deny tort liability or limit the regulatory options of the Consumer Product Safety Commission. If a product proves to be unsafe, defective, dangerous, or otherwise hazardous to users and consumers, use patterns should not be the primary determinant in assessing regulatory and common law sanctions …

Reimagining Prosecution: In Search Of The True Progressive, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

Prosecutors are the most powerful officials in the criminal justice system. At least ninety percent of all criminal cases are prosecuted on the state level, and in all but five jurisdictions, the chief prosecutor (also known as the district attorney) is an elected official. Most district attorneys run unopposed and serve for decades. However, in recent years, a number of incumbent district attorneys have been challenged and defeated by individuals who pledged to use their power and discretion to reduce the incarceration rate and eliminate unwarranted racial disparities in the criminal justice system. These so-called “progressive prosecutors” have enjoyed some …

Perjury By Omission, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

“Do you swear to tell the truth, the whole truth, and nothing but the truth?” There are few legal phrases that the layperson can repeat verbatim; this is one of them. But how many people truly understand the nuances and ramifications of testifying under oath? Many assume that if they do not provide the “whole truth” under oath, they will face a perjury charge. However, perjury is a charge often threatened but rarely used. The offense requires that the defendant willfully and knowingly make a false statement, under oath, regarding a material fact.

The federal perjury statute does not contemplate …

Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Steven Salop, Fiona M. Scott Morton, Nancy Rose

Articles in Law Reviews & Other Academic Journals

There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …

Why The Legal Strategy Of Exploiting Immigrant Families Should Worry Us All, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

This article applies a family law lens to explore the systemic and traumatic effects of modern laws and policies on immigrant families. A family law lens widens the scope of individuals harmed by recent immigration laws and policies to show why all families are affected and harmed by shifts in state power, state action, and state rhetoric. The family law lens reveals a worrisome shift in intentionality that has moved the state from a bystander to family-based immigration trauma to an incendiary agent perpetrating family trauma.

Modern immigration laws and policies are deploying legal and political strategies that intentionally sever …

A Tribute To Judge Patricia Wald, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Progressive Property Theory And Housing Justice Campaigns, Brandon Weiss

Articles in Law Reviews & Other Academic Journals

No abstract provided.