Law Commons^™

Reframing Law's Domain: Narrative, Rhetoric, And The Forms Of Legal Rules, Stephen Paskey

Journal Articles

Legal scholars typically understand law as a system of determinate rules grounded in logic. And in the public sphere, textualist judges and others often claim that judges should not "make" law, arguing instead that a judge's role is simply to find the meaning inherent in law's language. This essay offers a different understanding of both the structure of legal rules and the role of judges. Building on Caroline Levine's claim that texts have multiple ordering principles, the essay argues that legal rules simultaneously have three overlapping forms, none of which is dominant: not only the form of conditional, "if-then" logic, …

Disbanding Police Agencies, Anthony O'Rourke, Rick Su, Guyora Binder

Journal Articles

Since the killing of George Floyd, a national consensus has emerged that reforms are needed to prevent discriminatory and violent policing. Calls to defund and abolish the police have provoked pushback, but several cities are considering disbanding or reducing their police forces. This Essay assesses disbanding as a reform strategy from a democratic and institutionalist perspective. Should localities disband their police forces? One reason to do so is that discriminatory police departments are often too insulated from democratic oversight to be reformed. But can localities succeed in disbanding and replacing their forces with something better? Unfortunately, the structural entrenchment of …

The Impact Of Municipal Fiscal Crisis On Equitable Development, Christopher J. Tyson

Journal Articles

The article focuses on how redevelopment authorities and land banks (RALBs) are especially vulnerable to municipal fiscal distress given investment and coordination necessary to bring about meaningful, impactful equitable development require a level of resource deployment most local governments. It mentions powers of public finance authority, distressed property management, code enforcement and blight elimination. It also mentions resources necessary to do urban planning, community engagement.

Intolerable Asymmetry And Uncertainty: Congress Should Right The Wrongs Of The Civil Rights Act Of 1991, William R. Corbett

Journal Articles

No abstract provided.

What Is A “Case”?, Lynn M. Mather

Journal Articles

This article interrogates the concept of a “case” in court, in an effort to clarify underlying concerns in debates over whether there is “too much” or “too little” litigation. One perspective on litigation takes a bottom-up view, examining the considerations and motives of disputing parties who file civil claims. This perspective includes theories about litigation and social structure, economics, dispute transformation, political participation, and psychology. An alternative top-down view examines litigation from the perspective of government, including its interest in dispute resolution, social control, and institutional capacities of courts. The article reviews and critiques existing literature on these perspectives and …

Misappropriation Theory: How The World’S Two Largest Economies Regulate Insider Trading, Thomas Hare

Journal Articles

Prior to the government adopting policies of economic reform in the late 1970s, the People’s Republic of China (“the PRC” or “China”) did not have a formal securities market or an accompanying regulatory scheme. For the most part, it was not operationally feasible for a market to develop and flourish in China because the PRC had a centrally planned economy with state-owned enterprises as the primary form of business ownership. However, economic reform brokered conditions where stock trades casually began in markets located in Shanghai, Shenzhen, Chengdu and several other cities in the early 1980s. This informal trading persisted until …

Environmental Justice, Settler Colonialism, And More-Than-Humans In The Occupied West Bank: An Introduction, Irus Braverman

Journal Articles

Our special issue provides a first-of-its kind attempt to examine environmental injustices in the occupied West Bank through interdisciplinary perspectives, pointing to the broader settler colonial and neoliberal contexts within which they occur and to their more-than-human implications. Specifically, we seek to understand what environmental justice—a movement originating from, and rooted in, the United States—means in the context of Palestine/Israel. Moving beyond the settler-native dialectic, we draw attention to the more-than-human flows that occur in the region—which include water, air, waste, cement, trees, donkeys, watermelons, and insects—to consider the dynamic, and often gradational, meanings of frontier, enclosure, and Indigeneity in …

Fair Housing’S Third Act: American Tragedy Or Triumph?, Heather R. Abraham

Journal Articles

Fifty-two years ago, Congress enacted a one-of-a-kind civil rights directive. It requires every federal agency—and state and local grantees by extension—to take affirmative steps to undo segregation. In 2020, this overlooked Fair Housing Act provision—the “affirmatively furthering fair housing” or “AFFH” mandate—has heightened relevance. Perhaps most visible is Donald Trump’s racially charged “protect the suburbs” campaign rhetoric. In an apparent appeal to suburban constituents, his administration repealed a race-conscious fair housing rule, replacing it with a no-questions-asked regulation that elevates “local control” above civil rights.

The maneuver is especially stark as protesters fill the streets, marching in opposition to systemic …

The Elusive Zone Of Twilight, Michael Coenen, Scott M. Sullivan

Journal Articles

In his canonical concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson set forth a "tripartite" framework for evaluating exercises of presidential power. Regarding the middle category of that framework, Justice Jackson famously suggested that presidential actions undertaken "in absence of either a congressional grant or denial of authority" implicate "a zone of twilight," within which "any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." Since the articulation of this idea some seventy years ago, the Supreme Court has furnished little …

Moonlight: A Photo Essay, David A. Westbrook

Journal Articles

No abstract provided.

Illiberalism And Authoritarianism In The American States, James A. Gardner

Journal Articles

Federalism contemplates subnational variation, but in the United States the nature and significance of that variation has long been contested. In light of the recent turn, globally and nationally, toward authoritarianism, and the concurrent sharp decline in public support not merely for democracy but for the philosophical liberalism on which democracy rests, it is necessary to discard or to substantially revise prior accounts of the nature of state-to-state variation in the U.S. All such accounts implicitly presuppose a common commitment, across the political spectrum, to the core tenets of democratic liberalism, and consequently that subnational variations in policy preferences and …

Topology Of The Closet, Michael Boucai

Journal Articles

Despite the closet’s centrality to queer culture and theory, the metaphor’s various meanings have yet to be disaggregated and defined. Following Eve Kosofsky Sedgwick’s identification of the closet with a “crisis of homo/heterosexual definition, indicatively male, dating from the end of the nineteenth century,” the present article uses an array of late-Victorian sources—especially The Memoirs of John Addington Symonds and Teleny, a pornographic novel sometimes attributed to Oscar Wilde—to describe and distinguish: (1) so-called latent homosexuality (“the unconscious closet”); (2) deliberate strategies of suppression, abstention, and reformation (“the conscious closet”); (3) clandestine pursuits of gay sex and sociability (“the double …

Classcrits Time?: Building Institutions, Building Frameworks, Athena D. Mutua

Journal Articles

This essay chronicles the development of ClassCrits, an organization of US legal scholars that seeks to ground economic analyses in progressive legal jurisprudence. Today, ClassCrits ideas may resonate with a broader audience. I attribute this institutional success partly to ClassCrits’ commitment to: an interdisciplinary “big tent” openness, safe and responsive space, and praxis and collaboration. I then explore three key topics in a selection of ClassCrits writings on class and law: (1) neoliberal entrenchment and preservation; (2) class oppression; and (3) the intersecting oppression of class and race. I argue that ClassCrits scholarship on law and neoliberalism is productively viewed …

Copyright And The Creative Process, Mark Bartholomew

Journal Articles

Copyright is typically described as a mechanism for encouraging the production of creative works. On this view, copyright protection should be granted to genuinely creative works but denied to non-creative ones. Yet that is not how the law works. Instead, almost anything—from test answer sheets to instruction manuals to replicas of items in the public domain—is deemed creative and therefore eligible for copyright protection. This is the consequence of a century of copyright doctrine assuming that artistic creativity is incapable of measurement, unaffected by personal motivation, and incomprehensible to novices and experts alike. Recent neuroscientific research contradicts these assumptions. It …

Asylum Under Attack: Restoring Asylum Protections In The United States, Lindsay M. Harris

Journal Articles

The U.S. asylum system has endured four years of systematic attack. The Trump Administration attempted to dismantle the United States’ system to protect asylum seekers through changes to case law, executive orders, presidential proclamations, internal agency guidance and sweeping regulatory changes, among other measures. The system largely ground to a halt after the Trump Administration co-opted the coronavirus public health crisis to effectively close the southern border to asylum seekers with its March 2020 Centers for Disease Control order. This catastrophic order was not even the last in a long line of the Trump Administration’s efforts since assuming power to …

Veiling And Inverted Masking, Saleema Saleema Snow

Journal Articles

“Good morning, Your Honor, AA, here on behalf of the United States government.”1 AA recounted her proudest moment: appearing in federal district court as an attorney for the Department of Justice (DOJ) in a religious accommodation case under Title VII of the Civil Rights Act of 1964.2 There she stood, an Ivy League graduate and the granddaughter of sharecroppers. She appeared before the court as an African-American Muslim woman in hijab representing the government to uphold the constitutional rights of another Muslim woman.3 The complainant, Safoorah Khan, was employed as a teacher in a small Illinois school district and had …

Asylum Attorney Burnout (Model Survey And Additional Survey Responses), Lindsay M. Harris, Hillary A. Mellinger

Journal Articles

No abstract provided.

Removing Police From Schools Using State Law Heightened Scrutiny, Christina Payne-Tsoupros

Journal Articles

This Article argues that school police, often called school resource officers, interfere with the state law right to education and proposes using the constitutional right to education under state law as a mechanism to remove police from schools. Disparities in school discipline for Black and brown children are well-known. After discussing the legal structures of school policing, this Article uses the Disability Critical Race Theory (DisCrit) theoretical framework developed by Subini Annamma, David Connor, and Beth Ferri to explain why police are unacceptable in schools. Operating under the premise that school police are unacceptable, this Article then analyzes mechanisms to …

Critical Interviewing, Laila L. Hlass, Lindsay M. Harris

Journal Articles

Critical lawyering—also at times called rebellious, community, and movement lawyering—attempts to further social justice alongside impacted communities. While much has been written about the contours of this form of lawyering and case examples illustrating core principles, little has been written about the mechanics of teaching critical lawyering skills. This Article seeks to expand critical lawyering theory, and in doing so, provide an example of a pedagogical approach to teaching what we term “critical interviewing.” Critical interviewing means using an intersectional lens to collaborate with clients, communities, interviewing partners, and interpreters in a legal interview. Critical interviewers identify and take into …

Asylum Attorney Burnout And Secondary Trauma, Lindsay M. Harris, Hillary Mellinger

Journal Articles

We are in the midst of a crisis of mental health for attorneys across all practice areas. Illustrating this broader phenomenon, this interdisciplinary Article shares the results of the 2020 National Asylum Attorney Burnout and Secondary Traumatic Stress Survey (“Survey”). Using well-established tools, such as the Copenhagen Burnout Inventory and the Secondary Stress Trauma Survey, the Survey assessed the well-being of over 700 immigration attorneys navigating the tumultuous asylum space. As the largest such study of United States attorneys to date, it is particularly timely. Between 2017 and 2021, the Trump administration’s extreme policies, sweeping regulatory changes, and Attorney General …

Menstrual Dignity And The Bar Exam, Marcy L. Karin, Margaret E. Johnson, Elizabeth B. Cooper

Journal Articles

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

Even The Slightest: Causation In Fela And Jones Act Cases, Thomas C. Galligan Jr.

Journal Articles

No abstract provided.

Louisiana Oil & Gas Update, Keith B. Hall

Journal Articles

No abstract provided.

Racism, Incorporated: Ramos V. Louisiana And Jogging While Black, Victor C. Romero

Journal Articles

There is more to the U.S. Supreme Court’s recent decision in Ramos v.
Louisiana than its holding requiring unanimous state jury verdicts via the
incorporation doctrine. The underlying debate among the Justices in Ramos
about the salience of race in the law is a window into the current cultural
moment. After identifying the racial debate underlying the Justices’ views in
Ramos, this Essay shows how the same pattern emerges in our social and
legal debates around vigilante policing of Black Americans, including a
close-up look at the recent killing of Ahmaud Arbery. Social psychology
teaches us that society stereotypes …

Revocation And Retribution, Jacob Schuman

Journal Articles

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

Five Approaches To Insuring Cyber Risks, Christopher C. French

Journal Articles

Cyber risks are some of the most dangerous risks of the twenty-first century. Many types of businesses, including retail stores, healthcare entities, and financial institutions, as well as government entities, are the targets of cyber attacks. The simple reality is that no computer security system is completely safe. They all can be breached if the hackers are skilled enough and determined. Consequently, the worldwide damages caused by cyber attacks are predicted to reach $10.5 trillion by 2025. Insuring such risks is a monumental task.

The cyber insurance market currently is fragmented with hundreds of insurers selling their own cyber risk …

Prosocial Fraud, Julia Y. Lee

Journal Articles

This Article identifies the concept of prosocial fraud--that is, fraud motivated by the desire to help others. The current incentive-based legal framework focuses on deterring rational bad actors who must be constrained from acting on their worst impulses. This overlooks a less sinister, but more endemic species of fraud that is not driven by greed or the desire to take advantage of others. Prosocial fraud is induced by prosocial motives and propagated through cooperative norms. This Article argues that prosocial fraud cannot be effectively deterred through increased sanctions because its moral ambiguity lends itself to self-deception and motivated blindness. The …

Federal Legal And Regulatory Developments Relating To The Us Pipeline Industry, Chloe J. Marie, Ross H. Pifer

Journal Articles

The Atlantic Coast Pipeline (“ACP”) was designed as a 600-mile underground, pipeline project transporting natural gas from well sites in West Virginia to end users throughout Virginia and North Carolina. Atlantic Coast Pipeline, LLC (“Atlantic Coast”), the developer of the ACP project, began the extensive process of obtaining the necessary regulatory approvals for this project by initiating a pre-filing process with the Federal Energy Regulatory Commission (“FERC”) in October 2014. In the nearly six years that followed, the project received various permits related to water and air quality as well as other matters from state and federal agencies. At nearly …

Rethinking The Supreme Court's Interstate Waters Jurisprudence, Jamison Colburn

Journal Articles

For more than a century the Supreme Court has heard a steady stream of original jurisdiction controversies “between two or more States” over interstate waters. It has for even longer heard and decided similar cases involving non-state parties from its appellate dockets. Until now, no synthesis has combined these traditions to describe and explain states’ legal interests in interstate waters as an amalgam of federal common law, Article III’s judicial federalism, and the separation of powers. This article disentangles legacy opinions, orders, and jurisdictional traditions, revealing the bundle of interests that all courts are obliged to protect. It finally offers …

Peeling Apple: Antitrust Standing & Intermediary Defendants, John E. Lopatka

Journal Articles

When market intermediaries unlawfully acquire market power, vertically related market participants may sue under the antitrust laws to recover damages. Their ability to recover depends upon an intricate set of doctrines that define private standing, including the indirect-purchaser rules set down by the Supreme Court most notably in Illinois Brick. In Apple Inc. v. Pepper, the Court decided the application of the indirect-purchaser rules to a particular kind of intermediary, a platform in a two-sided market. The Article explores private antitrust standing doctrines as they apply to market intermediaries, using Apple to frame the exposition. The Court there held that …