Law Commons^™

The Tort Foundation Of Duty Of Care And Business Judgment, Robert J. Rhee

Faculty Scholarship

This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says that the tort analogy fails. This dismissal of tort prinicples is wrong. Although shareholder derivative suits and ordinary tort cases properly yield systemically antipodal outcomes, they are bound by a common analytical framework. The principles of board liability are rooted in tort doctrines governing duty, customs, …

Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Keats Citron, David C. Gray

Faculty Scholarship

In his insightful article The Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013), Neil Richards offers a framework for evaluating the implications of government surveillance programs that is centered on protecting "intellectual privacy." Although we share his interest in recognizing and protecting privacy as a condition of personal and intellectual development, we worry in this essay that, as an organizing principle for policy, "intellectual privacy" is too narrow and politically fraught. Drawing on other work, we therefore recommend that judges, legislators, and executives focus instead on limiting the potential of surveillance technologies to effect programs of broad and indiscriminate …

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …

Regulation By Amicus: The Department Of Labor's Policy Making In The Courts, Deborah Thompson Eisenberg

Faculty Scholarship

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts.

Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the …

Privacy, Antitrust, And Power, Frank Pasquale

Faculty Scholarship

When a dominant internet service collects information about its users, the situation is so far from the usual arm’s-length market transaction that neoclassical economic analysis is misleading. “Lack of surveillance” is not a product that individuals have varying preferences for and purchase accordingly. Rather, surveillance is an inevitable concomitant of life online. We need to tame the power that surveillance entails, rather than continuing to pursue illusory, surveillance-free alternatives on the platform level.

To the extent a company creates profiles of individuals and collects data on them, a third party ought to be collecting reports from the company on how …

The Future Of Hipaa In The Cloud, Frank Pasquale, Tara Adams Ragone

Faculty Scholarship

This white paper examines how cloud computing generates new privacy challenges for both healthcare providers and patients, and how American health privacy laws may be interpreted or amended to address these challenges. Given the current implementation of Meaningful Use rules for health information technology and the Omnibus HIPAA Rule in health care generally, the stage is now set for a distinctive law of “health information” to emerge. HIPAA has come of age of late, with more aggressive enforcement efforts targeting wayward healthcare providers and entities. Nevertheless, more needs to be done to assure that health privacy and all the values …

The Supreme Court, Cafa, And Parens Patriae Actions: Will It Be Principles Or Biases?, Donald G. Gifford, William L. Reynolds

Faculty Scholarship

The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state …

Alternative Dispute Resolution And Public Confidence In The Judiciary: Chief Judge Bell's "Culture Of Conflict Resolution", Deborah Thompson Eisenberg, Rachel Wohl, Toby Treem Guerin

Faculty Scholarship

Chief Judge Robert M. Bell has been a visionary leader in the development of alternative dispute resolution (“ADR”). His innovations have made Maryland a model state for conflict resolution programs in the courts and, uniquely, beyond the courthouse doors in a broad range of arenas. This article provides an overview of the “culture of conflict resolution” he ignited in the judiciary and in communities.

The Legacy Of Jane Larson: The Politics Of Practicality And Surprise, Martha M. Ertman

Faculty Scholarship

Jane Larson's work and life enriched my own and others. Her intellectual framework - applying legal economic ideas of consent to feminist theory, backed up by legal history - suggest surprising practical solutions to problems ranging from the injuries of adultery and prostitution to housing in border towns.

Love And Contracts In Don Quixote, Martha M. Ertman

Faculty Scholarship

Viewing love as a contract seems, initially, like mistaking windmills for giants, or a peasant girl for a grand lady. This chapter seeks, like Don Quixote, to convince readers to suspend their practiced views of everyday relationships in order to see them in a new light. What seems crazy at first glance may come to look as good, and sometimes better, than the more conventional view. As a law professor, I usually write about love and contracts by focusing on legal opinions and statutes, and recently I have added real-life stories from books and newspapers, as well as my …

Private-Rights Litigation And The Normative Foundations Of Durable Constitutional Precedent, Maxwell L. Stearns

Faculty Scholarship

This chapter advances a simple thesis that runs counter to much public-law scholarship. Holding all else constant, the more difficult, or costly, constitutional rulings are to obtain, the more durable the resulting precedent; conversely, the easier, or cheaper, such rulings are to obtain, the less durable the resulting precedent. Most public-law scholarship implicitly rests on the opposite premise that the relative ease or difficulty of obtaining constitutional rulings should correlate positively, not negatively, with the relative importance or unimportance of the asserted right. Within a public-rights adjudicatory model, important constitutional rights justify relaxing traditional constraints on constitutional decisionmaking, including ripeness, …

Grains Of Sand Or Butterfly Effect: Standing, The Legitimacy Of Precedent, And Reflections On Hollingsworth And Windsor, Maxwell L. Stearns

Faculty Scholarship

One test of whether a scholarly work has achieved canonical status is to ask respected scholars in the field which works, setting aside their own, are essential reads. William Fletcher’s article, The Structure of Standing, now in its twenty-fifth year, would almost certainly emerge at the top of any such lists among standing scholars. And yet, while many at this conference have built upon Fletcher’s insights, there remains notable disagreement concerning standing doctrine’s normative foundations. The central dispute concerns whether standing doctrine should be celebrated as furthering a “private-rights,” or instead, condemned as thwarting a “public-rights,” adjudicatory model.

In a …

Tackling "Arithmophobia": Teaching How To Read, Understand, And Analyze Financial Statements, Paula J. Williams, Kris Anne Tobin, Eric Franklin, Robert J. Rhee

Faculty Scholarship

This discussion presents different ideas on how to teach accounting and practical finance to law students.

Has The Roberts Court Plurality's Colorblind Rhetoric Finally Broken Brown's Promise?, Phoebe A. Haddon

Faculty Scholarship

This Essay examines the continuing significance of the Keyes decision to the judicial vision of equality and racial isolation in public education. By comparing efforts to promote educational equality from the Keyes era through today, this Essay asserts that the judiciary has wrongly embraced a colorblind interpretation of the Equal Protection Clause. In so doing, courts have impeded the progress of children in Denver and around the country, ignored highly instructive social science studies on the benefits of desegregation, and broken the constitutional promise of equal citizenship. For future policy makers and lawyers to address these persistent problems, legal educators …

Transcription Of 2013 Chapman Law Review Symposium: "The Future Of Law, Business, And Legal Education: How To Prepare Students To Meet Corporate Needs", Leo E. Strine Jr., Bradley Borden, Robert J. Rhee, Tania King, Lee Cheng

Faculty Scholarship

No abstract provided.

The Right To Quantitative Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of …

Stop Terry : Reasonable Suspicion, Race, And A Proposal To Limit Terry Stops, Renée M. Hutchins

Faculty Scholarship

The Terry doctrine, which grants a police officer the authority to stop and frisk based on his or her reasonable suspicion rather than probable cause, was created by the Supreme Court at a time when the nation con- fronted a particular moment of violent racial strife. Since Terry was decided, the Supreme Court has continued to expand the reach of the doctrine—which opened the door for potential abuse. Existing data is increasingly proving that the loosening of constitutional standards is causing substantial harms to people of color nationwide. This article joins the existing scholarly discussion surrounding this decision to suggest …

Looking Backward, Looking Forward: The Next 40 Years Of Environmental Law, Robert V. Percival

Faculty Scholarship

The only certainty concerning predictions for the future of the environment is that most of them are likely to be wrong. This is illustrated by the fate of past predictions, such as those contained in Paul Ehrlich's Populations Bomb, Gregg Easterbrook's A Moment on the Earth, and Bjørn Lomborg's The Skeptical Environmentalist. While it is difficult to guess at the future of the environment, predictions concerning environmental law are even more hazardous because they turn in large part on the future of politics. After reviewing current political gridlock over environmental concerns, this Article considers contemporary forecasts of the fate of …

Future Conduct And The Limits Of Class-Action Settlements, James Grimmelmann

Faculty Scholarship

This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public. Even more than the “future claims” familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.

Courts should guard against the dangers of future-conduct releases with …

Criminal Records, Race And Redemption, Michael Pinard

Faculty Scholarship

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals …

Transgender People, Intimate Partner Abuse, And The Legal System, Leigh S. Goodmark

Faculty Scholarship

The unique experiences of transgender persons subjected to abuse have not been the focus of legal scholarship; instead, the experiences of transgender people are often subsumed in the broader discourse around domestic violence in the lesbian, gay, bisexual, and transgender (LGBT) community. This dearth of legal scholarship is not surprising given how little research of any kind exists on how transgender people experience intimate partner abuse. This is the first law review article to concentrate specifically on intimate partner abuse and the transgender community. The Article begins by discussing the difficulties of engaging in scholarship around this topic, noting the …

Coping With The America Invents Act: Patent Challenges For Startup Companies, Patricia E. Campbell

Faculty Scholarship

No abstract provided.

Library Services For The Self-Interested Law School: Enhancing The Visibility Of Faculty Scholarship, Simon Canick

Faculty Scholarship

This article suggests a new set of filters through which to evaluate law library services, in particular those that support faculty scholarship. Factors include profound changes in legal education, and motivators of today’s law professors. Understanding the needs of self-interested deans and professors, libraries can fill new roles that are consistent with our core values. In particular we can focus on dissemination and promotion of faculty work, especially through innovative open access projects.

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale, Elizabeth A. Reilly, Jeffery Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel

Faculty Scholarship

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad …

The Declaration Of Independence As Canon Fodder, Mark A. Graber

Faculty Scholarship

No abstract provided.

Human Rights And The Evolution Of Global Environmental Law, Robert V. Percival

Faculty Scholarship

Environmental problems that jeopardize the health of humans increasingly implicate concerns that have played an important role in the development of international human rights. While some have questioned the wisdom or effectiveness of focusing human rights concerns on environmental problems, it seems an inevitable response to the failure of many countries to protect their citizens adequately from harm caused by environmental degradation. This paper reviews efforts to apply human rights concerns to environmental problems. It describes how these developments illustrate the growth of a kind of “global environmental law” that blurs traditional distinctions between domestic and international law and public …

Diversifying Clearinghouse Ownership In Order To Safeguard Free And Open Access To The Derivatives Clearing Market, Michael Greenberger

Faculty Scholarship

Implementing the rigorous governance and ownership standards established in the Dodd-Frank Wall Street Reform and Consumer Protection Act3 for derivatives clearing organizations (DCOs) will promote free and open access to clearing and reduce systemic risk within what is now the $700 trillion notional value derivatives market. Such standards are central to and advance the key regulatory tenants of Dodd-Frank: i.e., to restore transparency, capital adequacy, and accountability to what was the unregulated over-the-counter (OTC) derivatives market by ensuring that swaps are cleared through financially sound DCOs. Also, these rules will promote competition by curtailing large swap dealers‘ (SDs) control …

What's On First?: Organizing The Casebook And Molding The Mind, Donald G. Gifford, Joseph L. Kroart Iii, Brian Jones, Cheryl Cortemeglia

Faculty Scholarship

This study empirically tests the proposition that law students adopt different conceptions of the judge’s role in adjudication based on whether they first study intentional torts, negligence, or strict liability. The authors conducted an anonymous survey of more than 450 students enrolled in eight law schools at the beginning, mid-point, and end of the first semester of law school. The students were prompted to indicate to what extent they believed the judge’s role to be one of rule application and, conversely, to what extent it was one of considering social, economic, and ideological factors. The survey found that while all …

Closing Wall Street’S Commodity And Swaps Betting Parlors: Legal Remedies To Combat Needlessly Gambling Up The Price Of Crude Oil Beyond What Market Fundamentals Dictate, Michael Greenberger

Faculty Scholarship

The price of crude oil in the futures markets has oscillated wildly during the past five years. Although these price swings may partly be a result of insufficient supply meeting large demand for oil, economic data demonstrate that market fundamentals have in fact remained in equilibrium. An overwhelming number of market participants, financial analysts, and academics have instead shown that unregulated excessive speculation in the oil futures markets is to blame. Such excessive speculation is a result of the financialization of commodities, which has exacerbated price swings in oil because the speculative upward betting causes artificially high prices that do …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …