Law Commons^™

Carrie Menkel-Meadow: Leading Us Toward Justice And Peace, Jean R. Sternlight

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This Essay explores how Carrie Menkel-Meadow's life and work have both highlighted the path of "And"-showing and explaining that it is not only possible but also desirable to seek justice as well as peace, to be both activist and neutral. Of course, tensions will remain. Regarding particular issues in specific moments we all must decide which path we can and should take. Which activism is best, and which goes too far? With whom can we or should we negotiate, and when should we instead say, "I can't negotiate with this person or group"? When should we talk and listen, and …

The 2022 New Jersey Insurance Fair Conduct Act And The Incomplete Evolution Of Policyholder Protection, Jeffrey W. Stempel

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No abstract provided.

Coercive Control And The Limits Of Criminal Law, Courtney K. Cross

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Domestic violence does not always include physical violence. While abusive relationships may be punctuated with physical violence, it is the dynamic of control that constitutes the crux of the abuse. This dynamic is characterized by behaviors designed to dominate, degrade, and discipline, including emotional and financial abuse, isolation, rulemaking, and surveillance. These nonviolent forms of abuse are collectively referred to as "coercive control," and their impact can be debilitating and devastating for survivors of domestic violence. Despite what we know about domestic violence, the criminal legal system focuses its efforts on discrete incidents or encounters between the abuser and the …

What Did Those Sixteen Justices Say?, Leslie C. Griffin

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Everyone is finally noticing that the current Supreme Court is changing its jurisprudence on religious freedom. The commentators are finally paying more attention to the fact that seven of the Court's current Justices were raised Catholic. What role have Catholics played in the Supreme Court's history? This article traces their contributions on religious freedom and civil rights, starting with Chief Justice Taney and ending with Justice Barrett.

The Implications Of Corporate Political Donations, Benjamin P. Edwards

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No abstract provided.

In-Person Or Via Technology?: Drawing On Psychology To Choose And Design Dispute Resolution Processes, Jean R. Sternlight, Jennifer K. Robbennolt

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Covid-19 fostered a remote technology boom in the world of dispute resolution. Pre-pandemic, adoption of technical innovation in dispute resolution was slow moving. Some attorneys, courts, arbitrators, mediators and others did use technology, including telephone, e-mail, text, or videoconferences, or more ambitious online dispute resolution (ODR). But, to the chagrin of technology advocates, many conducted most dispute resolution largely in-person. The pandemic effectively put the emerging technological efforts on steroids. Even the most technologically challenged quickly began to replace in-person dispute resolution with videoconferencing, texting, and other technology. Courts throughout the world canceled all or most in-person trials, hearings, conferences, …

Racial Contagion: Anti-Asian Nationalism, The State Of Emergency, And Exclusion, Stewart Chang

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No abstract provided.

Unjustly Vilified Trips-Plus?: Intellectual Property Law In Free Trade Agreements, Marketa Trimble

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Intellectual property (IP) law provisions of free trade agreements (FTAs) have attracted much criticism. Critics have argued that FTA negotiators, succumbing to the lobbying of various stakeholders, have eliminated or significantly limited many of the flexibilities that multilateral treaties had created, forced stronger IP protection onto developing countries, and fragmented international IP law. While agreeing with a great deal of the criticism expressed by others, this Article departs from the typical vilification of FTAs by identifying and analyzing the positive features of FTA IP provisions that are worth replicating and expanding in future FTAs. These positive features include provisions concerning …

Civil Rights Law Equity: An Introduction To A Theory Of What Civil Rights Has Become, John Valery White

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This Article argues that civil rights law is better understood as civil rights equity. It contends that the four-decade-long project of restricting civil rights litigation has shaped civil rights jurisprudence into a contemporary version of traditional equity. For years commentators have noted the low success rates of civil rights suits and debated the propriety of increasingly restrictive procedural and substantive doctrines. Activists have lost faith in civil rights litigation as an effective tool for social change, instead seeking change in administrative forums, or by asserting political pressure through social media and activism to compel policy change. As for civil rights …

A Deeper Dive Into Nautilus: Differentiating Insurer Efforts To Recover Defense Costs And Assessing Recoupment In The Wake Of The Ali Restatement, Jeffrey W. Stempel

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Insurers and Policyholder have for decades contested whether the typical general liability policy requires policyholders to reimburse insurers for defense costs where a claim is ultimately held not to be one for which a defense is required. Although a slight majority of decisions favors insurers, the recent trend has favored policyholders, as reflected in §21 of the American Law Institute Restatement of the Law, Liability Insurance (“RLLI”), one of several contested portions of the RLLI. In Nautilus Insurance v. Access Medical, the Nevada Supreme Court provided the most extensive post-RLLI analysis of the dispute, ruling in favor of the …

Judicial Consensus: Why The Supreme Court Should Decide Its Cases Unanimously, David Orentlicher

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Like Congress and other deliberative bodies, the Supreme Court decides its cases by majority vote. If at least five of the nine Justices come to an agreement, their view prevails. But why is that the case? Majority voting for the Court is not spelled out in the Constitution, a federal statute, or Supreme Court rules.

Nor it is obvious that the Court should decide by a majority vote. When the public votes on a ballot measure, it typically makes sense to follow the majority. The general will of the electorate ought to govern. But judicial decisions are not supposed to …

Billing Judgment, Nancy B. Rapoport, Joseph R. Tiano Jr.

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In most situations, when a lawyer sends a bill to a client, the client pays the fees. When the client believes that a fee or expense is unreasonable, the client will ask for reductions. Conscientious lawyers review a bill before sending it to the client, exercising judgment in terms of what fees and expenses are reasonable. But in bankruptcy cases, the estate pays the court-appointed professionals' fees and expenses out of unsecured funds or from a cash collateral carve-out. Thus, the responsibility for scrutinizing the fees and expenses falls not to a particular client, but to the court, per 11 …

Misogyny And Murder, Ann C. Mcginley

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The Atlanta-area shootings of six Asian women in massage parlors in March 2021 raised awareness about anti-Asian discrimination and violence in the United States. When the perpetrator, Robert Aaron Long, shot the Atlanta-area spa victims, public speculation arose about whether he was motivated by hatred for the Asian victims because of their race. Many wondered whether the shooter would be charged and convicted of hate crimes against the victims. When asked by police about his motives, the perpetrator stated that he had a "sex addiction," meaning that the spas created intolerable sexual temptations that he was unable to resist. Considering …

Supreme Risk, Benjamin P. Edwards

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While many have discussed the social issues that might arise because of a majority-conservative Supreme Court, one critical consequence of the current Court has been overlooked: the role of the Court in generating or avoiding systemic risk. For some time, systemic financial risk has been regulated by a mix of self-regulatory organizations (SROs), such as the Depository Trust Corporation, and federal regulators such as the Financial Stability Oversight Council (FSOC). However, the Court's recent jurisprudence now creates real risk that federal courts will declare keystone SROs unconstitutional because they do not fit neatly into an eighteenth-century constitutional framework.

SROs are …

Apportioning Authorship, Mary Lafrance

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Part II of this Article introduces the restrictive joint authorship tests created by federal courts, and the courts' reliance on the equal ownership principle as a justification for those tests. Part III examines the relevant case law and other authorities addressing the rights of tenants in common under both copyright law and the general law of property, and concludes that, contrary to the views expressed by many courts and commentators, historical precedent and legislative history strongly favor an interpretation of the copyright statutes that apportions joint authorship shares according to the collaborators' respective contributions. Part IV examines the decision of …

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

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No abstract provided.

How To Design An Antiracist State And Local Tax System, Francine J. Lipman

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Since the first ship of enslaved African people landed in Virginia in 1619, racist policies in institutions, systems, structures, practices, and laws have ensured inequity for people of color. These racist policies include every imaginable variant of injustice from slavery to lynching, to segregation, and to economic injustices, including those delivered through tax systems today. Although facially color-blind, tax systems have long empowered the explosion of white wealth and undermined wealth accumulation for Black families and communities of color. State and local tax systems, especially in the South, have deeply-rooted racist fiscal policies, including Jim Crow laws that continue to …

Transcript Of Video File: Panel 4 - Severe Or Pervasive: Towards Empowering Workers, Ann C. Mcginley, Allegra Fishel, Alexis Ronickher, Joseph M. Sellers, Bernice Yeung

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This is a video transcript of a panel session in the Enhancing Anti-Discrimination Laws in Education and Employment symposium.

Insuring Fortuity—And Intent: A Comment On Professor French's Insuring Intentional Torts, Erik S. Knutsen, Jeffrey W. Stempel

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No abstract provided.

The Public Policy Exception And International Intellectual Property Law, Marketa Trimble

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No abstract provided.

Review: Nevada Real Property Practice And Procedure Manual, Ngai Pindell

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Professor Pindell's review of Nevada Real Property Practice and Procedure Manual (2021).

The Human Right To Workplace Safety In A Pandemic, Ruben J. Garcia

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The COVID-19 pandemic has presented unique challenges for immigrant workers many of whom occupy jobs most at risk in the pandemic: heath care, janitorial services, and mass transit. This Article encourages the extension of human rights instruments protecting health and safety in the workplace to all workers, particularly immigrant workers. Garcia analyzes the options available for workers who confront unsafe working conditions under existing law. Expanding the language of “human right” will allow for greater scrutiny of actions taken by the government and employers. Garcia encourages statutory changes to OSHA and the NRLA, test cases, filing complaints under trade agreements, …

Repairing Medical Equipment In Times Of Pandemic, Ofer Tur-Sinai, Leah Chan Grinvald

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The COVID-19 pandemic that has gripped the world since early 2020 has underscored the need for an effective right to repair medical equipment. As healthcare systems have been pushed to the limit, keeping critical medical equipment (such as ventilators) in working order has become a matter of life and death. Unfortunately, the ability of hospitals and other healthcare providers to service and fix their medical equipment is often hindered by the tight control that original equipment manufacturers keep over repair of their products. On top of direct contractual restrictions on repair, one of the major difficulties encountered by hospital-based and …

The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure

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This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable was …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

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This article enters into the modern debate between "constitutional departmentalists"-who contend that the executive and legislative branches share constitutional interpretive authority with the courts-and what are sometimes called "judicial supremacists." After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas-popular sovereignty and the separation of powers-which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we …

Hard Battles Over Soft Law: The Troubling Implications Of Insurance Industry Attacks On The American Law Institute Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel

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ALI Restatements of the Law have traditionally exerted significant influence over court decisions and the development of the common law. During the past two decades, however, the ALI has seen an upsurge in interest group activity designed to shape or even thwart aspects of the Institute's work. Most recently, the Restatement of the Law of Liability Insurance (RLLI) has been the focus of not only criticism of particular provisions but a concerted effort by members of the insurance industry to demonize the project as a whole and bar use of the document by courts.

The vehemence of insurer opposition seems …

Chevron’S Asylum: Judicial Deference In Refugee Cases, Michael Kagan

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Chevron deference is at the height of its powers in refugee and asylum cases, with the highest possible human consequences. Why does the Supreme Court seem so comfortable with Chevron deference in asylum cases when it has been reluctant to defer to the government in other kinds of deportation cases? More to the point, is this deference justified? There are cogent arguments justifying more deference in asylum cases than in other kinds of deportation cases. These arguments rest to a great extent on the premise that greater political accountability is a good thing when interpreting a statute. Yet in a …

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble

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This section of the the chapter "Recognition and Enforcement" of the International Law Association's Guidelines on Intellectual Property and Private International Law ("Kyoto Guidelines") establishes the conditions under which the effects of judgments rendered in a country may be extended to foreign jurisdictions. It seeks to favor international coordination and legal certainty by facilitating the cross-border recognition and enforcement of judgments relating to IP disputes. The Guidelines are based on a broad concept of judgment with restrictions concerning judgments not considered final under the law of the State of origin as well as certain provisional measures. The main provision of …

Infected Judgment: Problematic Rush To Conventional Wisdom And Insurance Coverage Denial In A Pandemic, Erik S. Knutsen, Jeffrey W. Stempel

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The COVID-19 pandemic created not only a public health crisis but also an insurance coverage imbroglio, prompting near-immediate business interruption claims by policyholders impacted by government restrictions ordered in response to the pandemic. Insurers and their representatives "presponded" to the looming coverage claims by quickly moving to denigrate arguments for coverage, engaging in a pre-emptive strike that has largely worked to date, inducing too many courts to rush to judgment by declaring-as a matter of law-that policy terms such as "direct physical loss or damage" do not even arguably encompass the business shutdowns resulting from COVID-19. Our closer examination of …

Incarcerated Activism During Covid-19, M. Eve Hanan

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Incarcerated people have a notoriously difficult time advocating for themselves. Like other authoritarian institutions, prisons severely curtail and often punish speech, organizing, and self-advocacy. Also, like other authoritarian institutions, prison administrators are inclined to suppress protest rather than respond to the grounds for protest. Yet, despite impediments to their participation, incarcerated people have organized during the pandemic, advocating for themselves through media channels, public forums, and the courts. Indeed, a dramatic increase in incarcerated activism correlates with the onset of the COVID-19 pandemic.

Just as the COVID-19 pandemic highlights injustice in other areas of criminal legal practices, it reveals both …