Law Commons^™

How To Feel Like A Woman, Or Why Punishment Is A Drag, Mary Anne Franks

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If a man in prison says that he was made -to feel like a woman," this is commonly understood to mean that he was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison but also sexual abuse generally These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. In contrast, this Article argues that feminization is punitive for both …

Criminalizing Revenge Porn, Danielle Citron, Mary Anne Franks

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No abstract provided.

Opt-Out Education: School Choice As Racial Subordination, Osamudia R. James

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Despite failure to improve academic outcomes or close the achievement gap, school-choice policies, advanced by education legislation and doctrine, have come to dominate public discourse on public education reform in the United States, with students of color disproportionately enrolling in voucher programs and charter schools. This Article moves past the typical market-based critiques of school choice to analyze the particularly racialized constraints on choice for marginalized students and their families in the public school system. The Article unpacks the blame-placing that occurs when the individualism and independence that school choice and choice rhetoric promote fail to improve academic outcomes, and …

The Irs As Tax Law Nonenforcer, Leigh Osofsky

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No abstract provided.

Latcrit 2013 Conference Symposium Afterword:Theorizing And Building Critical Coalitions: Outsider Society And Academic Praxis In Local/Global Justice Struggles, Francisco Valdes

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No abstract provided.

Breaking Glass: Identity, Community And Epistemology In Theory, Law And Education, Francisco Valdes

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No abstract provided.

Mindful Ethics - A Pedagogical And Practical Approach To Teaching Legal Ethics, Developing Professional Identity, And Encouraging Civility, Jan L. Jacobowitz, Scott L. Rogers

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Aristotle spoke of virtue and ethics as a combination of practical wisdom and habituation-an individual must learn from the application of critical reasoning skills to experience. Perhaps one of the earliest proclamations of the value of experiential learning, the Aristotelian view, reappears throughout history and is captured once again by the Carnegie Foundation's Report on Legal Education, which includes a call for instruction that provides practical skills and ethical grounding to complement the teaching of legal analysis. The Carnegie Report continues to play a role in the ongoing discussion of the need to reform legal education; a debate that is …

Cultivating Professional Identity & Creating Community: A Tale Of Two Innovations, Jan L. Jacobowitz

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No abstract provided.

The Jurisprudence Of Union, Gil Seinfeld

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The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a …

Actavis, The Reverse Payment Fallacy, And The Continuing Need For Regulatory Solutions, Daniel A. Crane

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The Actavis decision punted more than it decided. Although narrowing the range of possible outcomes by rejecting the legal rules at the extremes and opting for a rule of reason middle ground, the opinion failed to grapple with the most challenging issues of regulatory policy raised by pharmaceutical patent settlements. In particular, it failed to clearly delineate the social costs of permitting and disallowing patent settlements, avoided grappling with the crucial issues of patent validity and infringement, and erroneously focused on “reverse payments” as a distinctive antitrust problem when equally or more anticompetitive settlements can be crafted without reverse payments. …

After Search Neutrality: Drawing A Line Between Promotion And Demotion, Daniel A. Crane

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The Federal Trade Commission's (“FTC” or “the commission”) January 3, 2013 decision to close its longstanding investigation of Google1 brings to a close a flurry of discussion over the possibility that Google could become subject to a “search neutrality” principle in the United States. Although the Commission found against Google on several grounds, it rejected petitions from Google's critics to create a search neutrality principle as a matter of antitrust law. This essay briefly analyzes what remains of U.S. antitrust scrutiny of Internet search bias after the Google settlement. In particular, it suggests that a sensible line can be drawn …

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

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After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos

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There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the …

Hollowed-Out Democracy, Kate Andrias

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Professors Joseph Fishkin’s and Heather Gerken’s essay for this symposium, The Two Trends That Matter for Party Politics, along with the larger project of which it is a part, marks a notable turn (or return) in the law-of-democracy field. Unlike much recent scholarship, Fishkin’s and Gerken’s work does not offer a comprehensive theory of corruption or equality, but instead analyzes the relationship between campaign finance law and the actual functioning of political parties in our democracy. In brief, Fishkin and Gerken tell us that our contemporary political parties are at once highly polarized and oddly weak. They claim this is …

Towards A Universal Framework For Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

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Discrimination in insurance is principally regulated at the state level. Surprisingly, there is a great deal of variation across coverage lines and policyholder characteristics in how and the extent to which risk classification by insurers is limited. Some statutes expressly permit insurers to consider certain characteristics, while other characteristics are forbidden or limited in various ways. What explains this variation across coverage lines and policyholder characteristics? Drawing on a unique, hand-collected data-set consisting of the laws regulating insurer risk classification in fifty-one U.S. jurisdictions, this Article argues that much of the variation in state-level regulation of risk classification can in …

Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener

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This Article proceeds as follows: Part I provides a background of the system of presidential oversight of regulation through OIRA review. Part II analyzes: (1) the incentives for agencies to cooperate with or avoid OIRA, (2) a broad array of agency avoidance tactics, and (3) corresponding response options (especially in a repeat-player relationship). Part III argues that response options to agency avoidance should not be unquestioningly pursued or rejected. Instead, they should be evaluated using many of the same principles OIRA employs in reviewing agency regulation, including a systematic consideration of the benefits and costs of particular response actions and …

Zombies Among Us: Injunctions In Defamation Cases Come Back From The Dead, Jim Stewart, Leonard M. Niehoff

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Here's a scary thought: an individual, unhappy with negative statements that have been made about him, sues for defamation and persuades the trial court to issue an injunction prohibiting the speaker from engaging in that speech again. An appellate court reviews the injunction and, in large measure, upholds it. This creepy scenario brings shudders to free speech and media advocates, who have long viewed such injunctions as prior restraints that the First Amendment forbids in all but the most extreme and extraordinary cases. As a recent decision from the Michigan Court of Appeals demonstrates, however, decades of United States Supreme …

The Sneetches As An Allegory For The Gay Rights Struggle: Three Prisms, Peter Nicolas

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In this essay, I invoke both versions of Dr. Seuss's The Sneetches as an allegory for the modern struggle for gay rights in the United States viewed through three different prisms. The first and most obvious of these prisms is the battle between the heterosexual majority and the gay minority represented by the two groups of Sneetches. Members of the majority seek to distinguish themselves with markers of social acceptance such as marriage, parenting, and military service, as well as access to certain other markers of social acceptance, including the ability to donate blood and become members in private organizations …

Memento Mori: Deaths And Wills, Karen J. Sneddon

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Death. The mere mention of the word sends a shiver down the spine or provokes a nervous giggle. Modern reactions to death range from avoidance, as shown by the abundance of death euphemisms, to fascination, as shown by the number of movies and television shows centered on death, including Twilight's vampires and The Walking Dead's zombies. Estate planning is the legal environment in which a person con.fronts his or her mortality and participates in the formulation of his or her legacy. Contextualizing the experience as a memento mori experience promotes the function of the estate planning process, specifically …

The Changing Discourse Of The Supreme Court, Stephen M. Johnson

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In addition to exploring whether the Court’s opinions have become less readable, this Article also examines whether factors identified in other studies, such as the opinion type or the subject matter in dispute, correlate to the readability of the Court’s opinions, either in the 1930's or today, and whether that has changed over time.

Part I outlines the criticisms that have been leveled at the Supreme Court’s opinions and some of the possible reasons for the obfuscation of the opinions. Part II explores the purposes of, and intended audiences for, Supreme Court opinions and considers whether it really matters whether …

Sue And Settle: Demonizing The Environmental Citizen Suit, Stephen M. Johnson

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When federal agencies fail to issue regulations, respond to petitions, approve plans, review standards, or take any number of actions that are required by statute, the federal Administrative Procedure Act (APA) and federal environmental laws authorize citizens to sue the agencies to force them to carry out their legal obligations. Indeed, Congress anticipated that citizens would play an important role in the enforcement of federal environmental laws. When faced with lawsuits for failing to perform non-discretionary duties, agencies tend to settle because their liability is clear.

Bringing A World Of Light To Technology And Judicial Ethics, David Hricik

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The Luddites thought that by smashing machines in early 19th Century England, they could eliminate the threat that those machines presented to them. Of course, they were wrong. As was the case during the Luddites’ time, technology continues to march inexorably onward in today’s society. As a result, those within the legal community—judges in particular—have no choice but to begin using technology. Although judges are currently using technology, they sometimes do so without understanding what they are doing.

Already, today’s “new-fangled” contraptions have ensnared judges. Perhaps the most widely known example is Judge Kozinski of the United States Court of …

A Strange Kind Of Identity Theft: How Competing Definitions Of "Indian" May Deny Individual Identity, Suzianne D. Painter-Thorne

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To the extent we think about it all, most of us believe what our parents tell us about where we came from-about who our grandparents are, who our ancestors were, our ethnic background, our family histories. My own family story includes claims to Scottish, Irish, French, and English ancestry. It also includes the Cherokee great-grandmother so popular in American genealogical stories. I have not undertaken an extensive genealogical search to more accurately pinpoint the threads of my ancestral quilt; I have simply accepted the family lore without much thought to whether it was verifiable.

My family's claimed link to the …

'Quack Corporate Governance' As Traditional Chinese Medicine – The Securities Regulation Cannibalization Of China's Corporate Law And A State Regulator's Battle Against Party State Political Economic Power, Nicholas C. Howson

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From the start of the People’s Republic of China’s (PRC) “corporatization ” project in the late 1980s, a Chinese corporate governance regime subject to increasingly enabling legal norms has been determined by mandatory regulations imposed by the PRC securities regulator, the China Securities Regulatory Commission (CSRC). Indeed, the Chinese corporate law system has been cannibalized by all - encompassing securities regulation directed at corporate governance, at least for companies with listed stock. This Article traces the path of that sustained intervention and makes a case — wholly contrary to the “quack corporate governance” critique much aired in the United States …

Who's In Charge Of Global Finance?, Michael S. Barr

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The global financial crisis caused widespread harm not just to the financial system, but also to millions of households and businesses and to the global economy. The crisis revealed substantive, fundamental weaknesses in global financial regulation and raised serious questions about whether national regulators and the international financial regulatory system could ever be up to the task of overseeing global finance. This Article analyzes post-crisis reforms with two questions in mind: First, how can we build an effective international financial architecture with more than one architect? Second, can we build a system that is legitimate and accountable? The Article suggests …

How Serious Is The Problem Of Base Erosion And Profit Shifting?, James R. Hines Jr.

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In recent years, the problem of base erosion and profit shifting (BEPS) by multinational corporations has entered the public consciousness as a potentially important impediment to tax collections. The purpose of this article is to identify the nature of BEPS, consider empirical evidence of its magnitude, and evaluate proposed policy responses. There is considerable evidence that multinational firms arrange their affairs in a tax-sensitive manner, from which it is easy—indeed, perhaps a little too easy—to infer that beps is a serious problem. There are journalistic accounts of apparently spectacular international tax-avoidance schemes used by multinational corporations, though these stories commonly …

The Margin Of Appreciation In International Investment Law, Julian Arato

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Investment treaties tend to say nothing, or only very little, about the appropriate standard of review for arbitrating disputes between sovereign states and foreign investors. Most treaties do not address whether states should be afforded any deference in their own assessment of their treaty obligations. Neither do they specify the converse, that state action must be strictly reviewed. They are simply silent – and their silence has been interpreted in innumerable ways by different tribunals. This interpretive chaos has generated calls for a unified approach – one that would resolve the uncertain and fragmented status quo, while being sufficiently flexible …

The Tempting Of Antitrust: Robert Bork And The Goals Of Antitrust Policy, Daniel A. Crane

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Of all Robert Bork’s many important contributions to antitrust law, none was more significant than his identification of economic efficiency, disguised as consumer welfare, as the sole normative objective of U.S. antitrust law. The Supreme Court relied primarily on Bork’s argument that Congress intended the Sherman Act to advance consumer welfare in making its landmark statement in Reiter v. Sonotone that “Congress designed the Sherman Act as a ‘consumer welfare prescription.’” This singular normative vision proved foundational to the reorientation of antitrust law away from an interventionist, populist, Brandeisian, and vaguely Jeffersonian conception of antitrust law as a constraint on …

Understanding Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

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Insurance companies are in the business of discrimination. Insurers attempt to segregate insureds into separate risk pools based on the differences in their risk profiles, first, so that different premiums can be charged to the different groups based on their differing risks and, second, to incentivize risk reduction by insureds. This is why we let insurers discriminate. There are limits, however, to the types of discrimination that are permissible for insurers. But what exactly are those limits and how are they justified? To answer these questions, this Article (a) articulates the leading fairness and efficiency arguments for and against limiting …

The Mold That Shapes Hearsay Law, Richard D. Friedman

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In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I …