Law Commons^™

Reflections On A Crit Clinic, Elizabeth L. Macdowell, Nina L. Terzian

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No abstract provided.

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.

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.

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 …

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 …

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 …

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, …

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 …

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

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No abstract provided.

The Implications Of Corporate Political Donations, Benjamin P. Edwards

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No abstract provided.

Nomos And Nation: On Nation In An Age Of "Populism", John Valery White

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Robert Cover's Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals' ability to participate in the development of an idea of nation, is necessary to avoid "a total crushing of the jurisgenerative character" of nomoi by the state, or by …

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 …

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 …

Looking South: Toward Principled Protection Of U.S. Workers, Ann C. Mcginley

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No abstract provided.

Surveilling Potential Uses And Abuses Of Artificial Intelligence In Correctional Spaces, Justin Iverson

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In section II, this paper will begin with an analysis of the development of AI, noting famous examples and establishing a baseline definition as a lens for the rest of this discussion. This paper will assess aspects of AI and machine learning to the extent it furthers our understanding of AI’s ability to collect data and make decisions. Some popular culture references will be brought into focus here to recognize storytelling’s ability to inspire and influence real-world scientific pursuits. Of preliminary importance, the AI we have both dreamed of and feared are certainly kept in mind as technology advances through …

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 …

Indigenous Subjects, Addie C. Rolnick

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No abstract provided.

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 …

Joint Authorship And Dramatic Works: A Critical History, Mary Lafrance

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This Article examines the evolution of copyright law pertaining to collaborative authorship and finds that much of the core legal doctrine in this area arose from disputes involving dramatic works. This fresh look at theatrical collaborations reveals a rich history that calls into question the modem judicial presumption that dramatic writing is the product of individual genius. Examining the history of Anglo- American law's response to collaboration in dramatic works offers valuable insight into the development of multiple concepts related to authorship-in particular, the rules governing derivative works, works made for hire, and joint works. It also demonstrates that the …

In Defense Of Deportation Defense, Michael Kagan

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Recent years have seen growing momentum toward expanding public funding for legal defense of immigrants fighting deportation. Yet, some recent scholarship argues that government-funded deportation defense carries the risk of legitimizing and entrenching an unsalvageable immigration enforcement system that should simply be abolished. As a result, immigrant rights advocates might hesitate to support deportation defense. This Essay argues that such hesitation would be a mistake. Legal defense is the most feasible means available right now to stop many deportations, and expanding deportation defense resources will strengthen the immigrant rights movement locally and nationally. Expanding deportation defense should be a high …

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.

Laboratories Of Democracy: State Law As A Partial Solution To Workplace Harassment, Ann C. Mcginley

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This Article analyzes the substantive and procedural problems created by the federal judiciary in Title VII hostile work environment law that concurrently drains federal anti-harassment law of its meaning. The premise is that, at least for the near future, relying on federal courts and/or the U.S. Congress to protect employees' civil rights is likely fruitless. Instead, we should encourage state legislatures that seek to improve civil rights in employment in their own jurisdictions and state supreme courts to interpret their own state laws to recognize employees' civil rights to the fullest extent possible. Part II analyzes how federal courts decide …

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 …

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 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 …