Law Commons^™

There Are No Ordinary People: Christian Humanism And Christian Legal Thought, Richard W. Garnett

Journal Articles

This short essay is a contribution to a volume celebrating a new casebook, "Christian Legal Thought: Materials and Cases", edited by Profs. Patrick McKinley Brennan and William S. Brewbaker.

The Case Against Oral Argument: The Effects Of Confirmation Bias On The Outcome Of Selected Cases In The Seventh Circuit Court Of Appeals, Christine M. Venter

Journal Articles

Scholars have long been divided over the role, function, and significance, if any, of oral argument in judicial decision-making.' Federal courts seem similarly divided, as some circuits routinely grant oral argument in almost every case, while others grant oral argument in only a small fraction of appeals. This divide should not be dismissed as merely an idiosyncratic debate or as a response to excessive workload, particularly when one considers that approximately 53,000 appeals were filed in federal courts of appeals in the year ending September 30, 2016.2 Since the Supreme Court grants certiorari in only approximately eighty cases each year, …

Sector Agnosticism And The Coming Transformation Of Education Law, Nicole Stelle Garnett

Journal Articles

Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private-school choice devices like vouchers, tax credits and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors—discussed in detail below—that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public schools. …

Precedent And Speech, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …

The Missing Justice In Coleman V. Miller, Barry Cushman

Journal Articles

All nine of the sitting justices took part in the 1939 case of Coleman v. Miller, which concerned whether the Kansas legislature had ratified the pending Child Labor Amendment. One of the issues in the case was decided by a vote of 5-4, while another was resolved by a vote of 7-2. With respect to a third issue, however, Chief Justice Charles Evans Hughes reported that it presented “a question upon which the Court is equally divided and therefore the Court expresses no opinion upon that point.”

Scholars understandably have been puzzled by how a decision in which a full …

Truth And Politics: A Symposium On Peter Simpson's Political Illiberalism: A Defense Of Freedom., Gerard V. Bradley

Journal Articles

There is no more important question in thinking about life-and actually living-in political community than whether it is to be permeated by, and purposefully oriented around, the main truths about human flourishing. It is at least paradoxical that, precisely when the state and its law and political life are shaping people's lives more and more, the professed roots of all this influence are growing thinner, more shallow. Lawmakers who profess and in many cases even think they should be "neutral" about values are more involved with how persons' lives go than, perhaps, ever before.

Of course, any community which has …

Inside The 'Constitutional Revolution' Of 1937, Barry Cushman

Journal Articles

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number …

Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley

Journal Articles

Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he championed throughout his …

Religious Freedom And Recycled Tires: The Meaning And Implications Of Trinity Lutheran, Richard W. Garnett, Jackson C. Blais

Journal Articles

The Supreme Court's decision in Trinity Lutheran clearly affirmed a First Amendment rule against anti-religious discrimination. At the same time, it raised or left open a number of important and interesting questions about education reform, the relevance of anti-Catholic bias to states' so-called Blaine Amendments, and the sharpening tension between religious freedom and the application of antidiscrimination laws.

Criminal Trademark Enforcement And The Problem Of Inevitable Creep, Mark Mckenna

Journal Articles

This Article, delivered as the 2017 Oldham Lecture at the University of Akron School of Law, focuses on the federal Trademark Counterfeiting Act (TCA), the primary source of federal criminal trademark sanctions. That statute was intended to increase the penalties associated with the most egregious form of trademark infringement — use of an identical mark for goods identical to those for which the mark is registered and in a context in which the use is likely to deceive consumers about the actual source of the counterfeiter’s goods. The TCA was intended to ratchet up the penalties associated with counterfeiting, but …

Vote Fluidity On The Hughes Court: The Critical Terms, 1934-1936, Barry Cushman

Journal Articles

This article makes four principal claims. The first is that the justices of the Hughes Court often changed their positions in major cases between the time that they cast their votes in conference and their final votes on the merits. The second is that the Court achieved comparatively high rates of unanimity even during its most turbulent Terms because justices who had served on earlier Courts had internalized a norm counseling those who lost at the conference vote to acquiesce in the judgment of the majority. The third is that the justices who most frequently did so in this period’s …

"To Help, Not To Hurt": Justice Thomas's Equality Canon, Nicole Stelle Garnett, William S. Consovoy

Journal Articles

To comprehend Justice Thomas’s views on racial equality requires an understanding of how his life experiences influence his approach to questions of race and the law. Recurring themes in his opinions about racial equality include his belief that racial preferences stigmatize their beneficiaries, his concern that the prevailing notion that racial integration is necessary to black achievement is rooted in a presumption of racial inferiority, his worry that affirmative action efforts provide cover for the failure to address the urgent needs of disadvantaged Americans, and his knowledge that seemingly benign policies can mask illicit motives. Finally, Justice Thomas contends that …

Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia

Journal Articles

In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued …

Adultery: Trust And Children, Margaret F. Brinig

Journal Articles

Deborah Rhode writes that while adultery is admittedly not good, it should not be criminal. She argues that it should not generate a tort action either, because the original purposes for which the torts of alienation of affections and criminal conversation come from a time with quite different views about marriage and gender, while no-fault and speedy divorce today give adequate remedies to the wronged spouse. Further, adultery should not affect employment (as a politician or in the military) unless it directly impacts job performance.

My own reluctance to disengage adultery and law stems from the seriousness of adultery. First, …

What's In, And What's Out: How Ip's Boundary Rules Shape Innovation, Mark Mckenna, Christopher J. Sprigman

Journal Articles

Intellectual property law sorts subject matter into a variety of different regimes, each with different terms of protection and different rules of protectability, infringement, and defenses. For that sorting to be effective, IP needs principles to distinguish the subject matter of each system. This paper focuses on one of the most important aspects of border-drawing that our IP system undertakes — identifying “useful” subject matter.

This aspect is critical because our IP system gives utility patent law pride of place and draws the boundaries of the other doctrines in large part to respect utility patent’s supremacy. Yet IP law’s sense …

Constraining Monitors, Veronica Root

Journal Articles

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.

The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of …

Justice Scalia's Rule Of Law And Law Of Takings, Nicole Stelle Garnett

Journal Articles

This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both its impact on the Supreme Court's takings canon and its consistency with his stated jurisprudential principles.

Racial And Gender Justice In The Child Welfare And Child Support Systems, Margaret Brinig

Journal Articles

While divorcing couples in the United States have been studied for many years, separating unmarried couples and their children have proven more difficult to analyze. Recently there have been successful longitudinal ethnographic and survey-based studies. This piece uses documents from a single Indiana county’s unified family court (called the Probate Court) to trace the effects of race and gender on unmarried families, beginning with a sample of 386 children for whom paternity petitions were brought in four months of 2008. It confirms prior theoretical work on racial differences in noncustodial parenting and poses new questions about how incarceration and gender …

Ending The Excessive Use Of Force At Home And Abroad, Mary Ellen O'Connell

Journal Articles

In the mid-1980s the American Society of International Law (ASIL) launched an initiative to engage more women and minority members in the Society and international law more generally.' Professor Henry Richardson was there, encouraging all of the new aspirants, including me. He is still doing that, and this essay in his honor is an expression of gratitude, admiration, and affection. It develops themes Hank and I have both pursued for decades: human rights, peace and non-violence, and the promotion of international law and ASIL.

Utilizing Secondary Sanctions To Curtail The Financing Of The Islamic State, Jimmy Gurule

Journal Articles

This article will discuss existing legislation used to curtail the financing of the Islamic State, the value of imposing secondary sanctions against the terrorist group, and concerns regarding the extraterritorial applications of US sanctions.

Introduction: Negotiating Ip's Boundaries In An Evolving World, Stephen Yelderman

Journal Articles

The common element of the articles that make up this Symposium Issue is a refusal to dismiss difficult questions with mechanical formality, to paper over the wrinkles that emerge when the simple models that function in the middle flounder at the edge. As this Symposium Issue will show, those wrinkles have a lot to tell us.

Chickens And Eggs: Does Custody Move Support, Or Vise-Versa?, Margaret Brinig

Journal Articles

Most, if not all, of the theoretical work on child support presupposes that it becomes an issue only when couples separate, that is, that the flow moves between custody and child support and that the duty to make monetary payments is typically owed by the noncustodial parent. (I realize, of course, that there can be issues regarding the identity of the payor and that there are criminal and civil actions possible when parents refuse or neglect to provide support to dependent children.) Some empirical work confirms the relationship between the two. For example, Judith Seltzer, Weiss and Willis, and Brinig …

Empowering Courts In Corporate Law, Julian Velasco

Journal Articles

Corporate law recognizes the twin duties of care and loyalty, but treats the two very differently. Cases involving the duty of care receive very deferential review under the business judgment rule, if any at all, in light of exculpation provisions in corporate charters, while cases involving the duty of loyalty receive more demanding review under the entire fairness test. A fiduciary has the duty to act in the interests of the beneficiary in all relevant respects." In other words, both care and loyalty, as well as any other fiduciary duties that exist, are all merely aspects of the one overarching …

Citizens Abroad And Social Cohesion At Home: Refocusing A Cross-Border Tax Policy Debate, Michael Kirsch

Journal Articles

Modern developments raise significant questions about the future importance (or non-importance) of formal citizenship status. For example, while many have interpreted the European Union project, with its emphasis on the free movement of individuals, as portending the decreasing relevance of nationality, recent developments, such as the “Brexit” vote, suggest that national identity remains an important factor for many individuals. While much of the public debate over citizenship focuses on areas, such as immigration, that are more obviously tied to formal citizenship status, this debate also impacts cross-border tax policy.

Over the past decade, several scholars have addressed the use of …

The Value Of Accuracy In The Patent System, Stephen Yelderman

Journal Articles

Because it must rely on imperfect information, the patent system will inevitably make mistakes. To determine how the system ought to err in cases of uncertainty—and whether a given mistake is worth correcting—scholars have composed a simple picture of the consequences of error in either direction. On the one hand, erroneous patent awards impose unjustified costs. On the other hand, erroneous patent denials discourage successful inventors and reduce incentives to create in the future. The result is an essentially indeterminate balancing, in which policies of overly liberal awards drive up costs, and policies of overly cautious awards drive down incentives. …

Coordinating Compliance Incentives, Veronica Root

Journal Articles

In today’s regulatory environment, a corporation engaged in wrongdoing can be sure of one thing: regulators will point to an ineffective compliance program as a key cause of institutional misconduct. The explosion in the importance of compliance is unsurprising given the emphasis that governmental actors — from the Department of Justice, to the Securities and Exchange Commission, to even the Commerce Department — place on the need for institutions to adopt “effective compliance programs.” The governmental actors that demand effective compliance programs, however, have narrow scopes of authority. DOJ Fraud handles violations of the Foreign Corrupt Practices Act, while the …

A Humble Justice, Marah S. Mcleod

Journal Articles

Media and scholarly critics often claim that Justice Thomas's criminal law opinions reflect intentional cruelty or callousness, and dismiss his opinions without engaging seriously with their substance.
This Essay contends that judicial humility is a far more plausible explanation for Justice Thomas's criminal case decisions. If observers recognize that his approach to the law is guided by humility, rather than his own cruel or callous views, they will be more likely to consider the substance of his opinions and will benefit from wrestling with his challenging jurisprudential and historical perspective - even if they do not agree with the conclusions …

Trademarks And Digital Goods, Mark Mckenna, Lucas S. Osborn

Journal Articles

Technology increasingly allows for digital distribution of goods that once might once have been offered in physical form, radically separating the design and production processes. That separation has potentially destabilizing consequences for trademark law, which overwhelmingly has been oriented toward indications of the origin of physical goods. For one thing, digitization brings much more of trademark law into contact with the Supreme Court's Dastar decision, raising difficult questions about whether, and under what circumstances, digital files count as “goods” for Lanham Act purposes. More broadly, a world of increasing digitization implicates concerns about the boundaries of trademark law vis-à-vis other …

From A Muddle To A Mudslide: Murr V. Wisconsin, Nicole Stelle Garnett

Journal Articles

This article analyzes the U.S. Supreme Court's most-recent regulatory takings decision, Murr v. Wisconsin, concluding that the decision further muddies the takings waters and threatens to undermine the already-limited protection of private property provided by the Fifth Amendment's Takings Clause.

Countering The Majoritarian Difficulty, Amy Coney Barrett

Journal Articles

In Our Republican Constitution, Randy Barnett argues that the United States Constitution rests on a foundation of individual rather than collective popular sovereignty. Grounding the legitimacy of the government in the authority given it by each individual rather than by the People as a whole echoes the thesis, advanced in Barnett’s prior work, that the government must justify incursions upon individual liberty. If the People as a body are sovereign and the Constitution is designed to facilitate democratic self-governance, legislation is presumptively legitimate because it represents the sovereign will of the democratic majority. If the individual is sovereign, by contrast, …