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Full-Text Articles in Law
A Response To The Ipcc Fifth Assessment, Sarah J. Adams-Schoen, Deepa Badrinarayana, Cinnamon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan Rosenbloom, Inara Scott, David Takacs
A Response To The Ipcc Fifth Assessment, Sarah J. Adams-Schoen, Deepa Badrinarayana, Cinnamon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan Rosenbloom, Inara Scott, David Takacs
Articles
The Intergovernmental Panel on Climate Change's (IPCC) Fifth Assessment Report presented significant data and findings about climate change. But the IPCC's working groups' summaries for policymakers avoid making normative statements about the IPCC's findings. The authors, members of the Environmental Law Collaborative, bridge this gap by identifying the normative claims that stem from the working groups' summaries to spark deeper discussion and help shape the IPCC's sixth assessment.
The Liberal Case For Hobby Lobby, Brett Mcdonnell
The Liberal Case For Hobby Lobby, Brett Mcdonnell
Articles
The Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. has stirred strong objections from political liberals. Those objections are misguided, and the Court's opinion reflects core liberal values of social responsibility and tolerance of diversity. In the first half of its decision, the Court held that in some circumstances, for-profit corporations committed to religious goals may invoke the religious liberty protection of the Religious Freedom Restoration Act (RFRA). Liberals have treated this as an appalling and/or humorous extension of rights, which should apply only to humans. However, the Court's decision rightly recognizes that corporations can, and sometimes do, …
Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen
Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen
Articles
Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction allocates power between states in a way that can support or undermine regulatory interests, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and …
Comparative International Law At The Icty: The General Principles Experiment, Neha Jain
Comparative International Law At The Icty: The General Principles Experiment, Neha Jain
Articles
For a significant period of time, the comparativist and the international lawyer were con- sidered to inhabit different worlds: the former scrutinized similarities and differences between domestic legal systems while the latter focused on the universal realm of international law that overlays these systems. This comfortably segregated image has been conclusively shattered by numerous studies demonstrating the multiple areas of interaction between international and comparative law.1 Of these, one of the ripest areas for further reflection is the “general prin- ciples of law” as a source of international law. Puzzlingly, given the traditional domestic law origins of the general principles …
Identity And Form, Jessica A. Clarke
Identity And Form, Jessica A. Clarke
Articles
Recent controversies over identity claims have prompted questions about who should qualify for affirmative action, who counts as family, who is a man or a woman, and who is entitled to the benefits of U.S. citizenship. Commentators across the political spectrum have made calls to settle these debates with evidence of official designations on birth certificates, application forms, or other records. This move toward formalities seeks to transcend the usual divide between those who believe identities should be determined based on objective biological or social standards, and those who believe identities are a matter of individual choice. Yet legal scholars …
Revitalizing Dormant Commerce Clause Review For Interstate Coordination, Alexandra B. Klass, Jim Rossi
Revitalizing Dormant Commerce Clause Review For Interstate Coordination, Alexandra B. Klass, Jim Rossi
Articles
Interstate coordination presents one of the most difficult challenges for American federalism as well as for energy markets and policy. Existing laws vest the approval of large-scale energy infrastructure projects such as interstate oil pipelines and high-voltage, interstate electric transmission lines with state and local levels of government. At the same time, state siting and eminent domain regimes routinely enable and even encourage state regulators to hold out from approving interstate infrastructure projects, hobbling any hope for interstate coordination. This Article analyzes how judicial review under dormant Commerce Clause principles and doctrine can promote better interstate coordination by discouraging regulatory …
Reorienting Personal Jurisdiction Doctrine Around Horizontal Federalism Rather Than Liberty After Walden V. Fiore, Allan Erbsen
Reorienting Personal Jurisdiction Doctrine Around Horizontal Federalism Rather Than Liberty After Walden V. Fiore, Allan Erbsen
Articles
The Supreme Court’s jurisprudence addressing personal jurisdiction has vacillated between different rationales for limiting judicial authority. Some decisions emphasize liberty, some invoke federalism, and some rely on both. This Article uses the Court’s 2014 decision in Walden v. Fiore to show that recent emphasis on gilded rhetoric about liberty blurs the distinction between venue and jurisdiction, misconstrues the relevant private interests, and fails to consider the allocation of authority among coequal states in a federal system. Walden held that adjudication of a civil suit in a Nevada federal court rather than in a Georgia federal court would infringe the defendant’s …
Gender Diversity And Disparity In The Legal Profession: An Empirical Analysis Of The Gender Profile In National Law Firms And Law Schools, Edward S. Adams, Samuel P. Engel
Gender Diversity And Disparity In The Legal Profession: An Empirical Analysis Of The Gender Profile In National Law Firms And Law Schools, Edward S. Adams, Samuel P. Engel
Articles
Gender representation in the context of large law firms has received extensive scholarly attention and has been the subject of multiple Supreme Court cases.1 Recently, Ellen Pao lost a highly publicized gender discrimination case against Kleiner, Perkins, Caufield & Byers.2 The case unveiled disturbing gender discrimination that affects the lives of many people, especially in the legal profession. With a renewed attack on the “gender gap,” and on cultural sexism in the highest areas of business and law, the question remains: where are we today? How bad is gender discrimination in these desirable fields? What disadvantages do women face and …
The Right Not To Hold A Political Opinion: Implications For Asylum In The United States And The United Kingdom, Stephen Meili
The Right Not To Hold A Political Opinion: Implications For Asylum In The United States And The United Kingdom, Stephen Meili
Articles
This article analyzes the vastly different approaches taken by the United States Supreme Court and the Supreme Court of the United Kingdom toward asylum claims based on political neutrality. In the recent case of RT (Zimbabwe) v. Secretary of State for the Home Department (UKSC 38 (2012)), the U.K. Supreme Court ruled in favor of several apolitical Zimbabweans who sought asylum in the U.K. on the grounds that they would be tortured if they refused to swear allegiance to the Mugabe regime if deported. This case stands in stark contrast to the U.S. Supreme Court decision in INS v. Elias-Zacarias …
What Works For Women At Work: Four Patterns Working Women Need To Know (Book Review), Naomi Cahn, June Carbone
What Works For Women At Work: Four Patterns Working Women Need To Know (Book Review), Naomi Cahn, June Carbone
Articles
An essential resource for any working woman, What Works for Women at Work is a comprehensive and insightful guide for mastering office politics as a woman. Authored by Joan C. Williams, one of the nation’s most-cited experts on women and work, and her daughter, writer Rachel Dempsey, this unique book offers a multi-generational perspective into the realities of today’s workplace. Often women receive messages that they have only themselves to blame for failing to get ahead—Negotiate more! Stop being such a wimp! Stop being such a witch! What Works for Women at Work tells women it’s not their fault. The …
Lawyers On Trial: Juror Hostility To Defendants In Legal Malpractice Trials, Herbert M. Kritzer, Neil Vidmar
Lawyers On Trial: Juror Hostility To Defendants In Legal Malpractice Trials, Herbert M. Kritzer, Neil Vidmar
Articles
In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence …
Fracking And The Public Trust Doctrine: A Response To Spence, Alexandra Klass
Fracking And The Public Trust Doctrine: A Response To Spence, Alexandra Klass
Articles
No abstract provided.
Against Immutability, Jessica A. Clarke
Against Immutability, Jessica A. Clarke
Articles
Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but also those considered too important for anyone to be asked to change. Sexual orientation and religion are paradigmatic examples. This Article critically examines this new concept of immutability, asking whether it is fundamentally different from the old one and how it might apply to characteristics on the borders of employment discrimination law’s protection, such as obesity, pregnancy, and …
A Critical Take On Group Regulation Of Insurers In The United States, Daniel Schwarcz
A Critical Take On Group Regulation Of Insurers In The United States, Daniel Schwarcz
Articles
U.S. insurance regulation focuses predominantly on individual insurance entities, rather than on groups of commonly owned and managed companies. Yet the bailout of AIG and emerging international norms increasingly suggest that effective insurance regulation must operate on both a legal-entity and a group-wide basis. For this reason, state insurance regulators have in recent years focused renewed attention on group insurance regulation. These efforts have produced a “windows and walls” framework for group regulation that attempts to insulate individual insurance companies from potential financial risks associated with their parents and affiliates (“walls”), while simultaneously allowing regulators to remain attuned to these …
The Imaginary Trademark Parody Crisis (And The Real One), William Mcgeveran
The Imaginary Trademark Parody Crisis (And The Real One), William Mcgeveran
Articles
In the two decades since the Supreme Court protected a crude rap spoof from copyright liability in Campbell v. Acuff-Rose Music, Inc., courts have grown to understand the great value of parodic expression in trademark cases as well. Today, plausible claims of parody almost always prevail over trademark rights in judicial rulings. This Article demonstrates that it is simply wrong to suggest, as commentators often do, that we face a crisis in the results of trademark parody cases. That distortion is harmful because it distracts reform efforts and it lends credence to overbroad assertions of trademarks against parody and other …
The Special Value Of Public Employee Speech, Heidi Kitrosser
The Special Value Of Public Employee Speech, Heidi Kitrosser
Articles
In this article, I use the 2014 decision of Lane v. Franks as a jumping off point to revisit the rule of Garcetti v. Ceballos, that speech conducted pursuant to one’s public employment is unprotected by the First Amendment. I explain that Garcetti is emblematic of the Supreme Court’s failure to dig beneath the surface of its own long-standing acknowledgment that public employee speech holds special value. If one tunnels into that subterrane, one finds that the value of public employee speech is a function not just of content, but of form. Public employees play a special role under the …
Contracts, Persons And Property: A Tribute To Margaret Jane Radin, Ruth Okediji
Contracts, Persons And Property: A Tribute To Margaret Jane Radin, Ruth Okediji
Articles
In 2011, the United States was only just beginning to emerge from what some claimed to be the most significant economic crisis since the Great Depression. The devastation wrought by unregulated subprime mortgages unfolded as a political, legal, financial and social tragedy. Millions of homeowners had purchased homes for amounts they most certainly could not afford, with terms and conditions written on documents they even more certainly had never read. Many of those most severely affected were, as one might expect, racial minorities and underrepresented groups, but plenty of other members of society were also caught in the intricately woven …
Rent-Seeking And Litigation: The Hidden Virtues Of Limited Fee-Shifting, Francesco Parisi, Emanuela Carbonara, Georg Von Wangenheim
Rent-Seeking And Litigation: The Hidden Virtues Of Limited Fee-Shifting, Francesco Parisi, Emanuela Carbonara, Georg Von Wangenheim
Articles
In the past couple of decades, scholars have predominantly employed rent-seeking models to analyze litigation problems. In this paper, we build on the existing literature to show how alternative fee-shifting arrangements (i.e., the American rule and modified English rule) affect parties' litigation expenditures and their decisions to litigate. Contrary to the prevailing opinion, we discover some interrelated advantages of the English rule over the American rule, including the reduction of litigation rates and reduction of expected litigation expenditures. Our results unveil a hidden virtue of the English rule, showing that an increase in fee-shifting may have the effect of reducing …
The New Way Of War: Is There A Duty To Use Drones?, Oren Gross
The New Way Of War: Is There A Duty To Use Drones?, Oren Gross
Articles
Drones have become the poster child for America’s continuing fight against terrorism under President Obama, playing the role that torture had occupied during the Bush administration: a morally, legally, and politically controversial issue that drives a wedge between the United States and much of the rest of the world. Covert drone attacks orchestrated by the CIA around the world, including in areas that lie outside recognized war zones, raise a range of difficult questions that have been heavily debated by scholars, policy-makers and in the general media. However, that discussion has focused on whether states have the legal right to …
Milliken, Meredith And Metropolitan Segregation, Myron Orfield
Milliken, Meredith And Metropolitan Segregation, Myron Orfield
Articles
No abstract provided.
The Agency Cost Paradigm: The Good, The Bad, And The Ugly, Claire Hill, Brett Mcdonnell
The Agency Cost Paradigm: The Good, The Bad, And The Ugly, Claire Hill, Brett Mcdonnell
Articles
In the "managerialist" world that preceded our present world--the shareholder value world--some corporate managers could, and did, help themselves when they should have been doing their jobs. They were bad agents, using their positions to get unwarranted leisure and unwarranted perquisites at the expense of their principals, whether the principals were seen as the corporation, its shareholders, or both. The modern agency cost paradigm has focused the attention of courts, directors, and scholars on this problem, in part by conceptualizing the duty of corporate managers as maximizing shareholder value. 1 This paradigm has had a variety of effects: some good, …
Leak Prosecutions And The First Amendment: New Developments And A Closer Look At The Feasibility Of Protecting Leakers, Heidi Kitrosser
Leak Prosecutions And The First Amendment: New Developments And A Closer Look At The Feasibility Of Protecting Leakers, Heidi Kitrosser
Articles
This Article revisits the free speech protections that leakers are due in light of recent commentaries and events. Among other things, the Article critiques arguments to the effect that the Obama Administration's uptick in leak prosecutions does not threaten the system of free speech because plenty of classified information still makes its way into newspapers and the absolute number of leaker prosecutions remains very low. Such positions overlook the slanted impact that prosecutions and investigations are likely to have-and reportedly have had-on the speech marketplace. The Article also explains that even though the increase in prosecutions and other recent developments, …
The Electric Grid At A Crossroads: A Regional Approach To Siting Transmission Lines, Alexandra B. Klass
The Electric Grid At A Crossroads: A Regional Approach To Siting Transmission Lines, Alexandra B. Klass
Articles
The current regulatory framework for approving long-distance, interstate electric transmission lines does not match the physical aspects of the interstate electric grid, regional electricity markets, or the growing but dispersed renewable energy sources increasingly used to power the grid. Despite the interstate nature of the electric grid and electricity markets, the states have virtually complete authority over the siting and permitting of interstate transmission lines. Continuing state authority over the development of the interstate transmission grid is puzzling when compared to the nation’s network of interstate natural gas pipelines, for which regulatory authority was transferred to the federal government in …
The Public Trust Doctrine In The Shadow Of State Environmental Rights Laws: A Case Study, Alexandra B. Klass
The Public Trust Doctrine In The Shadow Of State Environmental Rights Laws: A Case Study, Alexandra B. Klass
Articles
This Article looks at the relationship between state environmental rights statutes and the common law public trust doctrine. In addressing this issue, it focuses on the state of Minnesota, where, in the early 1970s, the state legislature enacted a far-reaching environmental rights statute, the Minnesota Environmental Rights Act (MERA), that served to codify many public trust principles. Beginning in the early 1970s and for the next forty years, litigants in Minnesota that might otherwise have brought common law public trust doctrine claims for environmental protection purposes instead channeled that litigation through MERA. As a result, Minnesota courts have rarely been …
Rethinking The Geography Of Local Climate Action: Multi-Level Network Participation In Metropolitan Regions, Hari M. Osofsky
Rethinking The Geography Of Local Climate Action: Multi-Level Network Participation In Metropolitan Regions, Hari M. Osofsky
Articles
As the United States and the world become increasingly urbanized, cities are a key site for addressing the problem of climate change. However, urban climate change action is not simply about local officials making decisions within their cities. In major U.S. urban areas, “local” involves multiple layers of government, including county and metro-regional entities. Moreover, many of the cities taking action on climate change also participate in and shape networks of local governments based at state, regional, national, and international levels. This Article argues that multilevel climate change networks could be more effective by embracing this geography of local action …
Transforming Trepidation Into Transactional Lawyering, John H. Matheson
Transforming Trepidation Into Transactional Lawyering, John H. Matheson
Articles
Those of us teaching the Business Associations course in law schools are almost universally presented with a combination of circumstances that provides a unique opportunity for transformative teaching. These circumstances start with the outstanding quality of our students but also include their limited educational exposure and experience in business matters, their indoctrination into the “lawyer as litigator” model of the first-year curriculum, their lack of contact with transactional and collective decision making, and their unfamiliarity with the concept of lawyer as value creator.
Teaching Unincorporated Business Associations Through A Simulated Start-Up, Brett Mcdonnell
Teaching Unincorporated Business Associations Through A Simulated Start-Up, Brett Mcdonnell
Articles
This paper describes the Unincorporated Business Associations course taught by the author. The course is organized around a simulated start-up LLC. Students are assigned roles as counsel for one of the founders of the simulated LLC. Over a series of four exercises, students negotiate and draft the provisions of an operating agreement. The course both helps develop important practice skills such as negotiating and drafting, but more fundamentally helps students understand the law of business associations through understanding how that law provides background legal rules for drafting the terms of individual agreements.
Does Law School Still Make Economic Sense?: An Empirical Analysis Of "Big" Law Firm Partnership Prospects And The Relationship To Law School Attended, Edward S. Adams, Samuel P. Engel
Does Law School Still Make Economic Sense?: An Empirical Analysis Of "Big" Law Firm Partnership Prospects And The Relationship To Law School Attended, Edward S. Adams, Samuel P. Engel
Articles
Prospective law students and those in the legal community are often precluded from properly evaluating the potential likelihood that their choice of law school can measurably and tangibly impact their prospects for "big" law firm partnership 1 and its attendant, anticipated economic rewards. In an effort to answer the question of whether law school makes sense from an economic decision-making rationale - if one assumes (and we can certainly argue about this assumption) that one objective to attending law school is to become a partner in a large (and generally lucrative) law firm setting - this Study examines the characteristics …