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Articles 1 - 23 of 23
Full-Text Articles in Law
Haack On Legal Proof, Richard Wright
Haack On Legal Proof, Richard Wright
All Faculty Scholarship
In this paper I discuss Susan Haack’s illuminating discussion and constructive critique of the current confusion regarding the standards of proof employed in the law, focusing especially on mathematical probability rather than warranted belief interpretations of those standards. At the end, I question Haack’s claim that statistical evidence is relevant not only for establishing the existence of a causal process but also, although usually insufficient by itself, for proving actual causation in a specific case.
Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher Schmidt
Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher Schmidt
All Faculty Scholarship
In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial deference …
The Changing Landscape Of 19th Century Courts, Nancy Marder
The Changing Landscape Of 19th Century Courts, Nancy Marder
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Book Review of:Amalia D. Kessler. Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877. New Haven: Yale University Press, 2017. 449 pp. Illustrations, appendix, notes, bibliography, and index. $35.00.
Building A Regime Of Restrictive Immigration Laws, 1840-1945, Felice Batlan
Building A Regime Of Restrictive Immigration Laws, 1840-1945, Felice Batlan
All Faculty Scholarship
H-Pad is happy to announce the release of its sixth broadside. In “Building a Regime of Restrictive Immigration Laws, 1840-1945,” Felice Batlan traces a century of U.S. government laws, policies, and attitudes regarding immigration. The broadside explores how ideas about race, class, religion, and the Other repeatedly led to laws restricting the immigration of those who members of Congress, the President, and the U.S. public considered inferior and/or a threat.
A Fresh Look At Title Vii: Sexual Orientation Discrimination As Sex Discrimination, Anthony Michael Kreis
A Fresh Look At Title Vii: Sexual Orientation Discrimination As Sex Discrimination, Anthony Michael Kreis
All Faculty Scholarship
Since 2006, the Illinois Human Rights Act has prohibited discrimination in employment because of an employee’s sexual orientation or gender identity. Until 2017, employees discriminated against because of their sexual orientation had no federal cause of action, however. In a landmark decision, Hively v. Ivy Tech, the Court of Appeals for the Seventh Circuit became the first appellate court to hold that federal law’s prohibition of sex discrimination in the workplace also proscribed sexual orientation discrimination. The Hively decision is a substantial departure from decades’ worth of Seventh Circuit precedent and created a split between the circuits. This Article examines …
The Light Of Nature: John Locke, Natural Rights, And The Origins Of American Religious Liberty, Steven Heyman
The Light Of Nature: John Locke, Natural Rights, And The Origins Of American Religious Liberty, Steven Heyman
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No abstract provided.
Law’S Facilitating Role In The Field Of Social Enterprise., Evelyn Brody
Law’S Facilitating Role In The Field Of Social Enterprise., Evelyn Brody
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A Review of Dana Brakman Reiser and Steven A. Dean. Social Enterprise Law: Trust, Public Benefit, and Capital Markets. New York: Oxford University Press, 2017, 216 pp., $44.95 (hardback) ISBN 978-0-19-024978-6To appreciate the contribution of Professors Dana Brakman Reiser and Steven A. Dean in their pathbreaking volume on social enterprise law, we must begin by recognizing what we are not discussing. As the authors declare: “social enterprises are not charities” (p. 165). By definition, social enterprises are businesses, and thus not subject to the nondistribution constraint so familiar to nonprofit scholars and practitioners. An impact investor seeks profit, perhaps limited …
Liability For Mass Sexual Abuse, Tsachi Keren-Paz, Richard Wright
Liability For Mass Sexual Abuse, Tsachi Keren-Paz, Richard Wright
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When harm is caused to victims by multiple injurers, difficult issues arise indetermining causation of, legal responsibility for, and allocation of liability forthose harms. Nowhere is this truer than in child pornography and sex traffickingcases, in which individuals have been victimized over extended periods oftime by hundreds or even many thousands of injurers, with multiple and oftenoverlapping victims of each injurer. Courts (and lawyers) struggle with thesesituations for a simple reason: they insist on applying tests of causation thatfail when the effect was over-determined by multiple conditions. The failure toproperly understand the causation issue has exacerbated failures to properlyunderstand and …
Convergence And Divergence In International Economic Law And Politics, Sungjoon Cho, Jürgen Kurtz
Convergence And Divergence In International Economic Law And Politics, Sungjoon Cho, Jürgen Kurtz
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This article explores the phenomena of convergence and divergence in international economic law. It argues that both international trade and investment law have been forced to overcome a structural (legal-institutional) prioritization of market goals via competing social regulatory concerns. It is at this stress point that we argue that a powerful set of converging and procedurally orientated hermeneutics can be identified in the jurisprudence that, properly employed, could significantly bolster the elasticity and durability of state commitment to international economic law constraints. There remain, however, continuing textual and systemic divergences at play, which opponents will often dismiss for reasons of …
Derechos Fundamentales, Privacidad Y Aplicaciones Móviles Médicas, Lori Andrews
Derechos Fundamentales, Privacidad Y Aplicaciones Móviles Médicas, Lori Andrews
All Faculty Scholarship
No abstract provided.
From Reparations To Dignity Restoration: The Story Of The Popela Community., Bernadette Atuahene, Sanele Sibanda
From Reparations To Dignity Restoration: The Story Of The Popela Community., Bernadette Atuahene, Sanele Sibanda
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In certain circumstances property takings are part of a larger strategy to further subjugate a certain group within the polity by denying their humanity or their capacity to reason. These takings involve more than the confiscation of property; they also involve the deprivation of dignity. In her book, We want what’s ours: Learning from South Africa’s land restitution program, Atuahene has called these dignity takings. The Popela people are a resource-poor, but culturally-rich African community from South Africa’s Limpopo region that the colonial and apartheid regimes subjected to dignity takings. The post-apartheid state was interested not only in providing compensation …
Stategraft, Bernadette Atuahene, Timothy Hodge
Stategraft, Bernadette Atuahene, Timothy Hodge
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Although sometimes difficult to detect, governmental power abuses can have detrimental impacts. Property tax assessments provide an effective lens to examine this phenomenon because, given the complexity of calculating property tax assessments, it is difficult for citizens to know when local government has exceeded its legitimate taxing authority and crossed into the realm of illegal extraction. Michigan is an ideal case study because it protects property owners by making assessment-related power abuses more visible through a unique state constitutional provision: property tax assessments cannot exceed 50 percent of a property’s market value. Abuses have persisted nevertheless. Between 2011 and 2015, …
Beyond Greed Is Good: Pop Culture In The Business Law Classroom, Felice Batlan, Joshua Bass
Beyond Greed Is Good: Pop Culture In The Business Law Classroom, Felice Batlan, Joshua Bass
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No abstract provided.
Federalism Of Personal Finance: State & Federal Retirement Plans, William Birdthistle
Federalism Of Personal Finance: State & Federal Retirement Plans, William Birdthistle
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In this Article, I consider possible approaches that attempt to improve the plans through which millions of Americans tend to their life savings. I begin by considering the inadequacies of our current system of defined contribution accounts and then address two possible alternatives: the first being a federal account universally available to Americans based largely on the model of the Thrift Savings Plan; the second being a system of statebased retirement accounts like those that have already been developed in a handful of states. Though I conclude that a single, federal plan would be superior, either alternative approach would be …
Tactful Inattention: Erving Goffman, Privacy In The Digital Age, And The Virtue Of Averting One's Eyes, Elizabeth De Armond
Tactful Inattention: Erving Goffman, Privacy In The Digital Age, And The Virtue Of Averting One's Eyes, Elizabeth De Armond
All Faculty Scholarship
No abstract provided.
Scaffolding On Steroids: Meeting Your Students Where They Are Is Harder Than Ever ... And Easier Than You Think, Kari L. Aamot Johnson
Scaffolding On Steroids: Meeting Your Students Where They Are Is Harder Than Ever ... And Easier Than You Think, Kari L. Aamot Johnson
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No abstract provided.
When Is Hate Speech Wrongful? A Comment On Alexander Brown’S Hate Speech As Degradation And Humiliation, Steven Heyman
When Is Hate Speech Wrongful? A Comment On Alexander Brown’S Hate Speech As Degradation And Humiliation, Steven Heyman
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No abstract provided.
The Motive Power In Public Sector Collective Bargaining, Martin Malin
The Motive Power In Public Sector Collective Bargaining, Martin Malin
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In the private sector, George Taylor referred to the strike as providing the “motive power” in collective bargaining. A major reason behind the enactment of public employee collective bargaining laws is to reduce the interruption of public services from job actions. This was the case with the enactment of New York’s Taylor Law.This paper, written for a conference commemorating the 50th anniversary of the Taylor Law and published in a special issue of the Hofstra Labor and Employment Law Journal focused on the Taylor Law, examines what, in the absence of a right to strike, provides the motive power for …
Allocating Liability Among Multiple Responsible Causes: Principles, Rhetoric And Power - Chapter 2, Richard Wright
Allocating Liability Among Multiple Responsible Causes: Principles, Rhetoric And Power - Chapter 2, Richard Wright
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No abstract provided.
Investors' Paradox, Anita Krug
Investors' Paradox, Anita Krug
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For the first time in an era, new investment products for smaller ("retail ") investors are emerging. These products are mutual funds that engage in the types of trading and investment activities that have long been the province of sophisticated investors. Accordingly, the new funds (called "alternative funds") promise to reduce the gulf between retail investors and their sophisticated counterparts, in terms of portfolio diversification and investment results.This Article describes the complex mix of factors that spawned alternative funds and critically evaluates the funds' potential, the first scholarly work to do so. It additionally unearths the paradox that impedes the …
Amending Patent Claims, Gregory Reilly
Amending Patent Claims, Gregory Reilly
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Patent claims traditionally have been freely amendable to overcome a finding of unpatentability. For that reason, the Patent Office’s restrictive approach to amendments in new post-issuance review proceedings created by the America Invents Act provoked strident criticism; generated administrative, statutory, and constitutional challenges; and fractured the Federal Circuit. This Article supplies the comprehensive evaluation of the costs and benefits of patent claimamendments, both in examination and post-issuance, surprisingly missing in the literature.The results are mixed. Amendments in initial examination are less clearly warranted than commonly thought, with the costs – primarily problematic drafting incentives – often overlooked and the benefits …
How Much Should We Spend To Protect Privacy?: Data Breaches And The Need For Information We Do Not Have, Richard Warner, Robert Sloan
How Much Should We Spend To Protect Privacy?: Data Breaches And The Need For Information We Do Not Have, Richard Warner, Robert Sloan
All Faculty Scholarship
A cost/benefit approach to privacy confronts two tradeoff issues. One is making appropriate tradeoffs between privacy and many goals served by the collection, distribution, and use of information. The other is making tradeoffs between investments in preventing unauthorized access to information and the variety of other goals that also make money, time, and effort demands. Much has been written about the first tradeoff. We focus on the second. The issue is critical. Data breaches occur at the rate of over three a day, and the aggregate social cost is extremely high. The puzzle is that security experts have long explained …
Flipping The Classroom To Teach Workplace Adr In An Intensive Environment, Martin H. Malin, Deborah Ginsberg
Flipping The Classroom To Teach Workplace Adr In An Intensive Environment, Martin H. Malin, Deborah Ginsberg
All Faculty Scholarship
No abstract provided.