Law Commons^™

Regulating Driving Automation Safety, Matthew Wansley

Articles

Over forty thousand people die in motor vehicle crashes in the United States each year, and over two million are injured. The careful deployment of driving automation systems could prevent many of these deaths and injuries, but only if it is accompanied by effective regulation. Conventional vehicle safety standards are inadequate because they can only test how technology performs in a controlled environment. To assess the safety of a driving automation system, regulators must observe how it performs in a range of unpredictable, real world edge cases. The National Highway Traffic Safety Administration (NHTSA) is trying to adapt by experimenting …

Qualified Immunity’S Flawed Foundation, Alexander A. Reinert

Articles

Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine—fundamental errors that have never been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction—namely, that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common …

Lawyering The Presidency, Deborah Pearlstein

Articles

Among its many profound effects on American life, the Trump presidency has triggered a surge of interest in the project of law reform to better check the exercise of presidential power. Yet these reform efforts arise against a wholly unsettled debate about the function and effectiveness of existing checks, perhaps none more so than the role of executive branch legal counsel. With courts often deferential, and Congress hamstrung by partisan polarization, scholars have drawn on the experiences of executive branch lawyers to assess whether counsel functions as part of an “internal separation of powers” form of constraint. Yet while these …

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors.

This Article disaggregates slavery from the slave trade and slavery …

The Executive Branch Anticanon, Deborah Pearlstein

Articles

Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …

Getting Past The Imperial Presidency, Deborah Pearlstein

Articles

In an age in which the “imperial presidency” seems to have reached its apex, perhaps most alarmingly surrounding the use of military force, conventional wisdom remains fixed that constitutional and international law play a negligible role in constraining executive branch decision-making in this realm. Yet as this Article explains, the factual case that supports the conventional view, based largely on highly selected incidents of presidential behavior, is meaningless in any standard empirical sense. Indeed, the canonical listing of presidential decisions to use force without prior authorization feeds a compliance-centered focus on the study of legal constraint rooted in long-since abandoned …

Commercial Speech Protection As Consumer Protection, Felix T. Wu

Articles

The Supreme Court has long said that “the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides.” In other words, consumers—the recipients or listeners of commercial speech—are the ones the doctrine is meant to protect. In previous work, I explored the implications of taking this view seriously in three contexts: compelled speech, speech among commercial entities, and unwanted marketing. In each of those contexts, adopting a listener-oriented approach leads to the conclusion that many forms of commercial speech regulation should receive far less First Amendment scrutiny than …

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

Articles

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

The Supreme Court's Civil Assault On Civil Procedure, Alexander A. Reinert

Articles

No abstract provided.

European Legal Development: The Case Of Tort: Comparative Studies In The Development Of The Law Of Tort In Europe, Vol 9, Anthony Sebok

Articles

This review addresses volumes 7-9 of the series Comparative Studies in the Development of the Law of Torts in Europe, edited by John Bell and David Ibbetson and published by Cambridge University Press.

Racial Inclusion, Exclusion And Segregation In Constitutional Law, Michelle Adams

Articles

In Part I of the Article, I examine early cases in which the Court described segregation as a form of resource "lock-up." In several cases leading up to Brown, the Court detailed how racial segregation allows a more dominant group to hoard substantial societal resources. In these early cases, the Court's focus was on segregation as a mechanism for excluding individuals from valuable benefits on the basis of race; it did not speak explicitly to the harms associated with racial classification schemes. In this Part of the Article, I also return to Brown v. Board of Education and explore the …

Public Interest(S) And Fourth Amendment Enforcement, Alexander A. Reinert

Articles

Fourth Amendment events generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the amendment creates only tension between privately held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered …

The Historical Race Competition For Corporate Charters And The Rise And Decline Of New Jersey: 1880-1910, Charles M. Yablon

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No abstract provided.

Copyright And Incomplete Historiographies: Of Piracy, Propertization, And Thomas Jefferson, Justin Hughes

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Because we learn from history, we also try to teach from history. Persuasive discourse of all kinds is replete with historical examples – some true and applicable to the issue at hand, some one but not the other, and some neither. Beginning in the 1990s, intellectual property scholars began providing descriptive accounts of a tremendous strengthening of copyright laws, expressing the normative view that this trend needs to be arrested, if not reversed. This thoughtful body of scholarly literature is sometimes bolstered with historical claims – often casual comments about the way things were. The claims about history, legal or …

Civil Enforceability Of Religious Prenuptual Agreements, Michelle Greenberg-Kobrin

Articles

In the years since Perri Victor's divorce has been finalized, she has tried to move on with her life. She is raising a young daughter from that marriage and finishing up law school. Perri and Warren Victor were married in an Orthodox Jewish ceremony in Florida in 1976. They received a civil divorce in 1990. However, as an Observant Jew, Perri cannot remarry until Warren gives her a Jewish religious divorce known as a get. Since late 1987, she has been pleading with Warren to give her a get. When Warren asked her to give up a portion of her …