Law Commons^™

Red-Flag Laws, Civilian Firearms Ownership And Measures Of Freedom, Royce De R. Barondes

Faculty Publications

This essay provides context for an assessment of a part of the recently-enacted Bipartisan Safer Communities Act--federal legislation funding state red-flag procedures, which allow for seizures of firearms from persons who have not committed crimes.

First, it assesses Maryland’s experience during the first year of implementing these procedures. The essay details computations, extrapolating from Maryland’s first-year experience, showing that adoption of these statutes causes blameless persons to be subject to being killed by the government at a rate comparable to or in excess of the murder rate.

Second, the essay identifies an overlooked impact of this federal legislation. The legislation’s …

Dual Fiduciaries: Unicorns, Corporate Law And The New Frontier, Anat Alon-Beck

Faculty Publications

Legal and regulatory structures influence the shift in equities in the United States from public markets to private markets, entrepreneurial opportunities and new firm formation. There is a rise in the number of “unicorn” firms, which are privately held venture-capital backed startups that are valued at $1 billion or more. The number of unicorns in the United States and overseas has grown exponentially over the last few years. This chapter discusses the rise of the unicorns and with it the increasing importance of corporate governance and fiduciary duties. There are new vertical and horizontal conflicts among common and preferred shareholders …

Power Shift: The Return Of The Uniting For Peace Resolution, Michael P. Scharf

Faculty Publications

In 2022, the United States dusted off the 1950 Uniting for Peace Resolution in order to obtain General Assembly condemnation of the Russian invasion of Ukraine. This was the first time in three decades that the Security Council and General Assembly had utilized the Uniting for Peace mechanism – a process designed to end-run a Security Council veto. Together with the General Assembly’s creation of the international investigative mechanism for Syria in 2016 over Russia’s objection, the use of the Uniting for Peace process to condemn Russia’s aggression represented a shift in power away from the Security Council and to …

Cancel Culture Attacks On Books And Authors, Joseph A. Custer

Faculty Publications

Some people today view free speech as a threat to emotional safety and well-being. Cancel culture attempts to silence authors who express “unapproved” opinions by removing access to their works, publicly shaming them, and making attempts to destroy their livelihood. Cancel culture has been increasing, particularly on social media.

In this paper, the author argues that cancel culture is the antithesis of freedom of expression. He explores cancel culture through the theoretical lens of John Stuart Mill and a more contemporary advocate of free expression, Jonathan Rauch. The author discusses the controversy associated with Dr. Seuss Enterprise's decision to stop …

Is The Clean Water Act Obsolete?, Jonathan Adler

Faculty Publications

The Clean Water Act (CWA) is fifty years old and has not been meaningfully revised in 35 years. Over this time, the CWA has helped to protect and improve water quality, but substantial water quality challenges remain including (but not limited to) nonpoint source water pollution. Given these challenge's and dramatic changes in the nature of and scientific understanding of today’s water quality challenges, it is appropriate to ask whether the CWA remains capable of fostering further environmental progress or whether it is obsolete. Prepared for the Case Western Reserve Law Review symposium on “The Clean Water Act at 50,” …

Conservation Easements: A Tool For Preserving Wildlife Habitat On Private Lands, Robin M. Rotman, Sarah A. Brown, Michael A. Powell, Sonja A. Wilhelm Stanis

Faculty Publications

Conservation easements are an essential tool for conserving private lands, and they have great potential for enhancing wildlife habitat and biodiversity. Private land conservation in the United States is likely to increase in the coming years, in light of Executive Order No. 14,008, issued by President Joseph Biden on January 27, 2021, which set a goal of conserving at least 30% of U.S. lands and waters by 2030 (Executive Office of the President 2021). There is, therefore, a need to evaluate the effect of conservation easements on wildlife habitat and biodiversity and to make recommendations for further enhancing the effectiveness …

A World Without Prosecutors, Jeffrey Bellin

Faculty Publications

Bennett Capers’ article Against Prosecutors challenges us to imagine a world where we “turn away from prosecution as we know it,” and shift “power from prosecutors to the people they purport to represent.”

[...]

Capers joins a long line of authors seeking to attack mass incarceration by reducing the role of prosecutors. I agree with these authors that we should dramatically shrink the footprint of American criminal law and ending the war on drugs is a good place to start. But while Capers styles his proposal as a “[r]adical change,” I find the focus on prosecutors in this context decidedly …

A Tokenized Future: Regulatory Lessons From Crowdfunding And Standard Form Contracts, Darian M. Ibrahim

Faculty Publications

This Article examines the world of risk investing in the cryptoeconomy. The broader crypto market is booming despite the latest downturn. People and institutions are buying in. The question is now how to regulate it.

This Article first tackles the question of whether coins, tokens, and other investable cryptoassets are securities. Second, for those cryptoassets that are not securities, this Article seeks to find a regulatory solution that balances promoting innovation with investor protection, just as the Securities and Exchange Commission (SEC) would do. To strike the right balance, this Article adopts a proposal by Ian Ayres and Alan Schwartz …

Improving (And Avoiding) Interstate Interpretive Encounters, Aaron-Andrew P. Bruhl

Faculty Publications

State courts often encounter the statutes of other states. Any encounter with another state’s statutes raises an interesting but inconspicuous question about choice of law. In particular, the interstate encounter presents a choice of interpretive law. Despite some universal practices in statutory interpretation, there are methodological differences across jurisdictions—both at the level of overall approach and in the details of particular interpretive canons. When a state court encounters the statute of a sister state, may the forum state use its own interpretive methods or must it instead use the methods of the enacting state?

The existing doctrine on this choice-of-law …

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Nomos, Narrative, And Nephi: Legal Interpretation In The Book Of Mormon, Nathan B. Oman

Faculty Publications

The Book of Mormon helped launch one of America’s most successful religions, and millions around the world accept it as scripture. It is thus one of the more influential books to have been published in the United States. Ironically, precisely because of its role in the founding of Mormonism, the text of the Book of Mormon has often been ignored. Recently, however, the Book of Mormon has begun to attract the attention of scholars whose interest in the text goes beyond either religious devotion or the academic study of Mormonism. Rather, they look to the text as a literary creation …

Reconciling Copyright "Restoration" For Pre-1972 Foreign Sound Recordings With The Classics Protection And Access Act, Tyler T. Ochoa

Faculty Publications

When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: …

"The Rule” And The Constitution: Witness Exclusion And The Right To A Public Trial, Stephen E. Smith

Faculty Publications

Federal and state rules of evidence provide for the exclusion of potential witnesses from the courtroom. But, in criminal proceedings, the Sixth Amendment’s right to a public trial presumes that a courtroom will be open. The public trial right has been widely interpreted to restrict even “partial closures” – the exclusion of an individual or group from a criminal courtroom. The rule on witnesses is potentially at odds with the right to a public trial. Witness exclusion, by rule, is almost automatic. The Sixth Amendment, on the other hand, requires heightened scrutiny before individuals may be excluded from the courtroom. …

United States V. Allen And Judicial Review Of Early Pandemic Courtroom Closures, Stephen E. Smith

Faculty Publications

Trial court judges in 2020 were faced with a remarkable new problem. They were asked to accommodate both public health concerns (preventing trial participants, jurors, and spectators from contracting COVID-19) and criminal defendants’ Sixth Amendment right to a public trial. As courts of appeal begin their review of cases alleging violations of the Sixth Amendment’s right to a public trial arising during the early pandemic, they should be careful to consider conditions as they were at the time. We have learned much about COVID-19 and its management since then. But reviewing courts should not demand that trial courts possess public …

Segmented Innovation In The Legalization Of Mitochondrial Transfer: Lessons From Australia And The United Kingdom, Myrisha S. Lewis

Faculty Publications

The U.S. is often characterized as a leader in innovation—a home of Nobel Prize‐winning scientists, innovators, and abundant research funding. Yet, in the area of assisted reproduction combined with genetic modification or substitution, what I call “reproductive genetic innovation,” that characterization begins to wane. This Article focuses on the regulation of mitochondrial transfer, a subset of reproductive genetic innovation. While human clinical trials related to mitochondrial transfer go forward in the U.K., the clinical use of the technique remains illegal in the U.S. due to a system of subterranean regulation by the U.S. Food and Drug Administration and a now-recurring …

Circuit Personalities, Allison Orr Larsen, Neal Devins

Faculty Publications

The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety of levels: rules governing oral argument and the publishing of opinions, en banc practices, social customs, case discussion norms, law clerk dynamics, and even selfimposed circuit nicknames. In this Article, we describe these varying “circuit personalities” and then argue that they are necessary to the very survival of the federal courts of appeals. Circuit-specific norms and traditions foster collegiality …

Redefining Progress And The Case For Diversity In Innovation And Inventing, Colleen Chien

Faculty Publications

In the United States, women represent 50% of the workforce, but only 27% of STEM workers and 13% of inventors. This article surveys the scientific literature to make the empirical case for diversity in innovation and inventing, finding a growing body of research to show how diverse innovators expand the reach, quality, and quantity of innovation. It then surveys the history of patent law to make the legal case for prioritizing diversity in inventing, and for expanding conventional notions of “progress” in the patent system to include the promotion of a diverse set of innovators, rather than just innovation. It …

Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter

Faculty Publications

This article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV …

Normalizing Reproductive Genetic Innovation, Myrisha S. Lewis

Faculty Publications

Many societally accepted techniques were quite controversial at inception and for decades after. For example, historically, dialysis was “unnatural,” vaccination was “the poisoned quill,” and artificial insemination was akin to adultery. Despite social and cultural hurdles, the aforementioned medical techniques have today attained overall public acceptance, permissive legal treatment, and even health insurance coverage in some cases.

Unlike many now-routine treatments like in vitro fertilization (IVF), egg freezing, and organ transplantation, which flourished without significant governmental intervention, today’s controversial medical treatments, especially those involving reproductive genetic innovation, face intense regulatory barriers. Reproductive genetic innovation, which is the combination of IVF …

Improved Writing From Reading Other Writers, Douglas E. Abrams

Faculty Publications

In 1954, a 12-year-old junior high school student wrote to Justice Felix Frankfurter seeking advice about how to prepare to become a lawyer. “The best way to prepare for the law,” Frankfurter answered, “is to come to the study of law as a well-read person.” Reading other writers, he explained, enables future lawyers to “acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking.”

Justice Frankfurter offered his young correspondent sound advice about the intimate link among reading, writing, and lawyering. Reading works from other writers with an eye toward …

Biometrics And An Ai Bill Of Rights, Margaret Hu

Faculty Publications

This Article contends that an informed discussion on an AI Bill of Rights requires grappling with biometric data collection and its integration into emerging AI systems. Biometric AI systems serve a wide range of governmental purposes, including policing, border security and immigration enforcement, and biometric cyberintelligence and biometric-enabled warfare. These systems are increasingly categorized as "high-risk" when deployed in ways that may impact fundamental constitutional rights and human rights. There is growing recognition that high-risk biometric AI systems, such as facial recognition identification, can pose unprecedented challenges to criminal procedure rights. This Article concludes that a failure to recognize these …

The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz

Faculty Publications

Relying on a dataset I assembled of 130 doctors prosecuted for illegal opioid distribution between 2015 and 2019, this Article shows that judges rejected federal prosecutors’ sentencing recommendations over two-thirds of the time. Put differently, prosecutors lost much more often than they prevailed at sentencing. And judges often rejected the prosecutors’ sentencing positions by dramatic margins. In 23% of cases, judges imposed a sentence that was half or even less than half of what prosecutors recommended. In 45% of cases, judges imposed a sentence that was at least one-third lower than what prosecutors requested. In short, prosecutors lost most of …

The Inequalities Of Innovation, Colleen Chien

Faculty Publications

Over the last few decades, the United States has become more innovative, but the gains have been distributed unequally. In 2020, over 50% of new U.S. patents went to the top 1% of patentees, and more than 50% of all patents of U.S. origin were generated by just five states, all coastal. Less than 13% of inventors were women. The economic, geographic, and demographic concentration of innovation highlight how the intersections between two traditionally discrete topics—innovation and inequality—have become increasingly relevant. But rather than any single inequality, this Article argues, multiple inequalities—of income, opportunity, and access—have relevance to innovation. Examining …

Victims As Instruments, Rachel J. Wechsler

Faculty Publications

Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes. Since the U.S. Supreme Court's 2004 decision in Crawford v. Washington, courts require declarants to be available for cross-examination on "testimonial" hearsay evidence. Consequently, criminal legal actors are further incentivized to employ highly coercive practices aimed at securing GBV victims' participation in the criminal legal process as evidentiary tools. These practices include arresting and incarcerating victims through …

Smith's Last Stand? Free Exercise And Foster Care Exceptionalism, James G. Dwyer

Faculty Publications

Part I first situates Fulton [Fulton v. City of Philadelphia] within two broader contexts—the clash between social equality rights for sexual minorities and religious freedom, and a pattern of eliding children from legal contests over their lives. It then explains why the standard constitutional framing of social equality versus religious freedom contests is improper when the state is acting as guardian and proxy for children or other non-autonomous persons. Part II sets out a proper framework for analyzing these conflicts, elucidating the scope and nature of the state’s parens patriae authority—a lacuna in constitutional jurisprudence. Part III applies …

How Abortion Laws Do And Don't Work, Michelle Oberman

Faculty Publications

The US Supreme Court appears ready to permit states to re-criminalize abortion. When the “law on the books” changes in the United States, what might the “law on the ground” look like? One answer lies in examining what happens today, in countries with restrictive abortion laws. Israel’s 1977 law bars abortion unless approved by a “pregnancy termination committee.” Drawing on interviews with committee members, lawmakers, advocates and others, this Article presents an ethnographic study of one country’s experience with a law criminalizing abortion.

Israel’s approach, limiting abortion access to those with qualifying conditions, is likely to be in play for …

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Publications

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

Institutional Betrayals As Sex Discrimination, Emily Suski

Faculty Publications

Title IX jurisprudence has a theoretical and doctrinal inadequacy. Title IX’s purpose is to protect public school students from sex discrimination in all its forms. Yet, courts have only recognized three relatively narrow forms of sex discrimination under it. Title IX jurisprudence, therefore, cannot effectively recognize as sex discrimination the independent injuries, called institutional betrayals, that schools impose on students because they have suffered sexual harassment. Institutional betrayals occur when schools betray students’ trust in or dependency on them by failing to help students in the face of their sexual harassment. These injuries cause harms that can be more severe …

Integrated Nonmarital Property Rights, E. Gary Spitko

Faculty Publications

Nonmarital cohabitation has become a mainstream family structure in the United States. Yet, despite the increasing prevalence of nonmarital cohabitants, American family property law generally fails to support nonmarital couples. This inequality under the law disproportionately disadvantages persons of color, those with relatively less education, and couples with relatively fewer economic resources. This Article considers the post-Obergefell need for law reform to better support nonmarital families, examines the principles that should ground nonmarital property rights reform, and proposes a novel approach to nonmarital property rights that integrates the law of dissolution with the law of succession, unifies the law governing …

The Constitutional Right To An Implicit Bias Jury Instruction, Colin Miller

Faculty Publications

The Supreme Court has gone to great lengths to prevent jurors from holding defendants’ silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a “no adverse inference” instruction even over a defense objection; and (3) the judge must give a “no adverse inference” instruction upon a defense request. Conversely, the Court has never ruled that jurors can impeach their verdict based upon jurors holding a defendant’s silence against him, and lower courts have ruled …