Law Commons^™

The Right To A Public Trial In The Time Of Covid-19, Stephen E. Smith

Faculty Publications

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case ...

Should Covid-19 Empower Strata Corporations To Ban Non-Residents?, Douglas C. Harris

Faculty Publications

Stories are appearing of condominium developments that have banned non-residents in response to the COVID-19 pandemic. In doing so, they are following governments in Canada at many levels, including national, provincial, and Indigenous, that have prohibited non-residents who are not essential service workers from entering their jurisdictions.

An Unknown Past, An Unequal Present, And An Uncertain Future: Transnational Environmental Law Through Three Research Challenges, Natasha Affolder

Faculty Publications

This chapter seeks to bring into focus three broad research challenges facing transnational environmental law – an unknown past, an unequal present, and an uncertain future. Transnational law theory invites scholars to stand at a distance from current orthodoxies and to contemplate environmental law and its practice from new vantage points. The study of transnational environmental law thus prompts new ways of thinking about where to look for environmental law and its foundational influences. New research agendas emerge organically from such shifts of gaze. By identifying future research agendas, we can illuminate both the diversity of sites of past and present ...

The Washington State Second Chance Expungement Gap, Colleen Chien, Zuyan Huang, Jacob Kuykendall, Katie Rabago

Faculty Publications

Every time a person is convicted of a crime, this event is memorialized in the person’s criminal record in perpetuity, setting off thousands of potential collateral consequences, including being penalized in searches for employment, housing and volunteer opportunities. To remove these harmful consequences, Washington law allows people whose criminal records meet certain conditions to vacate their records. However, the Second Chance Gap in Washington “expungements” - the share of people who aren’t accessing the vacation remedy because of hurdles in the petition process - we suspect is large. To estimate it, we used research and practice expertise to approximately model ...

A No-Contest Discharge For Uncollectible Student Loans, Brook E. Gotberg, Matthew Bruckner, Dalie Jimenez, Chrystin Ondersma

Faculty Publications

Over forty-four million Americans owe more than $1.6 trillion in student loan debt. This debt is nearly impossible to discharge in bankruptcy. Attempting to do so may require costly and contentious litigation with the Department of Education. And because the Department typically fights every case, even initial success can be followed by years of appeals. As a result, few student loan borrowers attempt to discharge their student loan debt in bankruptcy.

In this Article, we call on the Department of Education to develop a set of ten easily ascertainable and verifiable circumstances in which it will not contest a ...

Brief Of Amicus Curiae Interdisciplinary Research Team On Programmer Creativity In Support Of Respondent, Ralph D. Clifford, Firas Khatib, Trina Kershaw, Kavitha Chandra, Jay Mccarthy

Faculty Publications

This brief answers the two primary issues that are associated with the first question before the Court. First, the programmers’ expression of the Java-based application programmer interfaces (“APIs”) are sufficiently creative to satisfy that requirement of copyright law. Second, the idea expression limitation codified in Section 102(b) of Copyright Act does not establish that the APIs are ideas. Both of these assertions are supported by the empirical research undertaken by the Research Team. This brief expresses no opinion on the resolution of the fair use question that is also before the Court.

Complicated Lives: A Look Into The Experience Of Individuals Living With Hiv, Legal Impediments, And Other Social Determinants Of Health, Margaret B. Drew, Jason Potter, Caitlin Stover

Faculty Publications

Those living with HIV continue to have challenges that extend well beyond their medical needs Public misconceptions surrounding HIV transmission and treatment have resulted in systemic and pervasive discrimination against those living with the disease. Common misconceptions include overly optimistic perceptions of the modern state of medical treatment, leading the uninformed to conclude that people living with HIV are minimally impacted by the disease, and misunderstandings regarding how the disease is transmitted from person-to-person, leading to stigma and social prejudice. Because of these misconceptions, three professors from the University of Massachusetts Dartmouth formed a community partnership to determine the unmet ...

Our Federalism On Drugs, Jonathan Adler

Faculty Publications

Over the past decade, voters and legislatures have moved to legalize the possession of marijuana under state law. Some have limited these reforms to the medicinal use of marijuana, while others have not. Despite these reforms marijuana remains illegal under federal law. Although the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a “compound republic” like the ...

Why Choose Ltas? An Empirical Study Of Ohio Manufacturer’S Contractual Choices Through A Bargaining Lens, Juliet P. Kostritsky, Jessica Ice

Faculty Publications

This paper contributes to recent scholarship regarding Long Term Agreements (LTAs) by providing empirical evidence that suppliers are more likely to undertake the costs of an LTA if the transaction requires significant capital expenditures or the potential for large sunk costs. Through a survey of a random group of 63 Ohio supplier/manufacturers, the paper explores why supplier/manufacturers with a full range of contractual and non-contractual solutions might choose one set of arrangements over others. It then seeks to link its findings to a broader theory of how parties bargain to solve durable problems under conditions of uncertainty, sunk ...

Statutes And The Common Law Of Contracts: A Shared Methodology, Juliet P. Kostritsky

Faculty Publications

This chapter explores the intersection between, or the impact of, statutes on contract law, and compares the relative importance of, and intersections between, statutory and common law in contract.

Uncooperative Environmental Federalism 2.0, Jonathan H. Adler

Faculty Publications

Has the Trump Administration made good on its pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This paper, prepared for the Hastings Law Journal symposium, “Revolution of Evolution? Administrative Law in the Age of Trump,” provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.

Asking Too Much: The Ninth Circuit’S Erroneous Review Of Social Security Disability Determinations, Stephen E. Smith

Faculty Publications

Disability determinations made by the Social Security Administration’s administrative law judges are subject to judicial review by Article III courts. By statute, these courts apply the “substantial evidence” standard of review on appeal from the agency. The substantial evidence standard is a forgiving one that defers to the findings of the agency. But the Ninth Circuit Court of Appeals has modified this standard. It now reviews certain categories of SSA findings not only for substantial evidence, but for support by “clear and convincing reasons.” This heightened standard of review is facially at odds with the statutorily mandated substantial evidence ...

Distributive Justice And Rural America, Ann M. Eisenberg

Faculty Publications

Today’s discourse on struggling rural communities insists they are “dying” or “forgotten.” Many point to globalization and automation as the culprits that made livelihoods in agriculture, natural resource extraction, and manufacturing obsolete, fueling social problems such as the opioid crisis. This narrative fails to offer a path forward; the status quo is no one’s fault, and this “natural” rural death inspires mourning rather than resuscitation. This Article offers a more illuminating account of the rural story, told through the lens of distributive justice principles. The Article argues that rural communities have not just “died.” They were sacrificed. Specifically ...

Harmful Reporting, Justine A. Dunlap

Faculty Publications

Title IX is used in many ways; perhaps most prominent and controversial is its use to address issues of sexual harassment and sexual assault on college campuses. The regulations governing that use have just been changed, with the Department of Education issuing new final regulations on xx. The recent spotlight aside, an aspect of Title IX that has gotten too little attention has been the move towards having all or nearly all university employees categorized as “mandatory reporters.” A mandatory reporter is one who must report an allegation of sexual assault to the university’s Title IX coordinator. This report ...

Abandoning Copyright, Dave Fagundes, Aaron K. Perzanowski

Faculty Publications

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and the case law is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete ...

Generalist Judges And Advocates' Jargon, Douglas E. Abrams

Faculty Publications

Clerking is a privilege. Fresh out of law school and eager to begin their careers, law clerks at any level of the federal or state judiciary covet the opportunity to learn from a judge’s reservoir of knowledge. But law clerks who anticipate careers writing as advocates are also well-positioned to learn about something that a judge may not know when briefs or other adversary submissions land on the desk.

That “something” concerns jargon, this article’s focus because its use by advocates can impede the court’s understanding of a case’s facts and law. “Jargon” refers to “special ...

The Power Of A Positive Tweet, Patricia G. Montana

Faculty Publications

(Excerpt)

I am not naively suggesting that all we need are more positive tweets to solve the inequity problems that still plague many law schools’ treatment and advancement of legal writing faculty. But I do wonder whether more positive tweets from administrators, tenured colleagues, and others can help (and more instantaneously) spread positive feelings, heal past harms, build relationships, forge new connections, and ultimately help create more opportunities for success.

The Traditions Of American Constitutional Law, Marc O. Degirolami

Faculty Publications

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study ...

Backdoor Purposivism, Anita S. Krishnakumar

Faculty Publications

It has become standard among statutory interpretation commentators to declare that, “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined since its heyday in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is ...

Three Questions About "Stand Your Ground" Laws, Cynthia V. Ward

Faculty Publications

No abstract provided.

Charter Rights, State Expertise: Testing State Claims To Expert Knowledge, Emma Cunliffe

Faculty Publications

This article considers the individual and collective significance of two decisions issued by the Supreme Court of Canada in 2018: Ewert v. Canada and R. v. Gubbins.

Treating Professionals Professionally: Requiring Security Of Position For All Skills-Focused Faculty Under Aba Accreditation Standard 405(C) And Eliminating 405(D), J. Lyn Entrikin, Lucy Jewel, Susie Salmon, Craig T. Smith, Kristen K. Tiscoine, Melissa H. Weresh

Faculty Publications

No abstract provided.

Workplace Sexual Harassment And The "Unwelcome" Requirement: An Analysis Of Bc Human Rights Tribunal Decisions From 2010 To 2016, Bethany Hastie

Faculty Publications

Legal complaints concerning workplace sexual harassment are anticipated to increase, following in the wake of the #MeToo movement and a number of high-profile cases in Canada. Yet little contemporary research has analyzed sexual harassment laws in Canada. This article contributes to further research on sexual harassment laws through a case analysis of BC Human Rights Tribunal decisions from 2010 to 2016. This article analyzes trends in assessing credibility and character in sexual harassment complaints and establishes that the requirement that a complainant prove that the conduct in question was “unwelcome” improperly shifts the focus of the legal inquiry towards her ...

Breaking The Silence On Father-Daughter Sexual Abuse Of Adolescent Girls: A Case Law Study, Janine Benedet, Isabel Grant

Faculty Publications

Adolescent girls are targeted for sexual violence at a rate higher than females at any other life stage. Girls most often face sexual violence at the hands of men that they know and trust within their own families, yet this type of abuse has largely evaded scrutiny from the #MeToo movement. In this article, the authors seek to revitalize the discussion of sexual abuse against adolescent girls by their fathers. The article is part of a larger study that examined all Canadian judicial decisions involving sexual offences against girls between the ages of twelve and seventeen inclusive over a three-year ...

Income Taxation Of Small Business: Toward Simplicity, Neutrality And Coherence, David G. Duff

Faculty Publications

Among the many contributions that Judith Freedman has made to tax law and policy in the United Kingdom and around the world, one of the most sustained and significant involves the regulation and taxation of small business. This article reviews Professor Freedman’s contributions to tax law and policy regarding small business, and evaluates Canadian experience with the taxation of private companies and their shareholders in light of Professor Freedman’s work. Part II summarizes Professor Freedman’s main conclusions regarding the taxation of small business, addressing both the taxation of similar economic activities conducted through different legal forms and ...

Translating Modern Slavery Into Management Practice, Galit A. Sarfaty

Faculty Publications

This article examines how ill-defined legal norms around modern slavery are being outlined in supply chain legislation and then interpreted by management professionals. Building on an infrastructural analysis of supply chain governance, I uncover the set of practices that underlie recent regulations around modern slavery. I track the implementation of these laws by following the “chain of translation,” whereby information is transformed from on-the-ground raw data; to quantitative metrics of modern slavery risks; and finally, to polished corporate statements. This analysis focuses on the critical role being played by Sedex (Supplier Ethical Data Exchange), which is a platform for sharing ...

The Promise And Peril Of Using Disability Law As A Tool For School Reform, Claire Raj

Faculty Publications

Advocates have recently devised a radical litigation approach to force broad systemic changes in public schools using the most unlikely of tools: disability law. If they succeed, disability law stands to eclipse any other cause of action as the most effective means of school reform. This novel approach relies on groundbreaking research demonstrating a correlation between Adverse Childhood Experiences (ACEs) that children encounter outside school and the learning challenges they face in school. Focusing on this link, advocates claim that children from impoverished and crime-ridden neighborhoods, by virtue of where they live, have disabilities that entitle them to system-wide school ...

Platform Pleading: Analyzing Employment Disputes In The Technology Sector, Joseph Seiner

Faculty Publications

The technology sector has created thousands of new jobs for workers across the country in an emerging multi-billion dollar industry. Many companies in this platform-based sector are attempting to characterize their workers as independent contractors rather than employees, thus stripping them of both federal and state workplace protections—including the right to bargain collectively, receive fair compensation, and avoid discrimination. The federal courts, which have always grappled with the question of worker classification, are now struggling to define employment with respect to these gig sector jobs. The result has been scattered court decisions with inconsistent and conflicting analyses.

This Essay ...

Pay Now, Play Later?: Youth And Adolescent Collision Sports, Vivian E. Hamilton

Faculty Publications

The routine and repeated head impacts experienced by athletes in a range of sports can inflict microscopic brain injuries that accumulate over time, even in the absence of concussion. Indeed, cumulative exposure to head impacts—not number of concussions—is the strongest predictor of sports-related degenerative brain disease in later life. The observable symptoms of disease appear years or decades after initial injury and resemble those of other mental-health conditions such as depression and dementia. The years-long interval between earlier, seemingly minor, head impacts and later brain disease has long obscured the connection between the two.

Risk of injury differs ...

The Great Unfulfilled Promise Of Tinker, Mary-Rose Papandrea

Faculty Publications

The most famous line from Tinker v. Des Moines Independent School District is that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 393 U.S. 503, 506. People who know only this line from Tinker—and the victory it gave to the Vietnam-war protesting students—likely think of it as an incredibly speech-protective decision. It turns out that although Tinker contains lofty language about the importance of student speech rights, it sowed the seeds for the erosion of those very same rights. In ...