Law Commons^™

Sweet Old-Fashioned Notions: Legal Engagement With Anthropological Scholarship, Deepa Das Acevedo

Faculty Articles

The study of law, we are told often and generally with approval, has become a potluck to which everyone is invited. Over there stand the historians bearing their retrospectively informed insights; across from them are the experimental psychologists hoisting their pleasingly social-scientific brew; in the corner lurk philosophers chatting calmly over some first principles. The center of the room is quite naturally taken up by the economists, laughing exuberantly over their spread of nifty models, intimidating formulae, and soothing predictions. In the midst of this lively affair, circulating among the invitees like a dutiful host, rejecting nothing, sampling everything, and …

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Faculty Articles

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

The Sec’S Climate Disclosure Rule: Critiquing The Critics, George S. Georgiev

Faculty Articles

Climate change is an existential phenomenon, which entails a wide variety of physical risks as well as sizeable but underappreciated economic risks. In March 2022, the U.S. Securities and Exchange Commission (SEC) moved to address some of the information gaps related to the effects of climate change on firms by proposing a rule that requires public companies to report detailed and standardized information about important climate-related matters for the benefit of investors and markets. Though the rule proposal was welcomed by many market participants, it was also met with a level of opposition that was unusual in both its intensity …

Protecting State Constitutional Rights From Unconstitutional Conditions, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts. The overruling of Roe v. Wade and the resulting focus on state constitutional rights to abortion will offer additional new settings for …

Equality Offshore, Martin W. Sybblis

Faculty Articles

Global governance architecture, crafted by wealthy nations, has perpetuated the subordination of developing jurisdictions. The Article offers a novel and surprising analysis of governance tools used by wealthy countries and inter-governmental organizations to constrain offshore financial centers (OFCs) by focusing on the tools’ disparate impacts on tax havens whose populations comprise predominantly Black and Brown people. With tax haven issues garnering increasing attention, this Article provides a pathbreaking conceptual framework for examining the international tax, crime, and business discourse on OFCs. It also illuminates how the actions of powerful international actors, such as the Organization for Economic Cooperation and Development …

The Corrosive Effect Of Inevitable Discovery On The Fourth Amendment, Tonja Jacobi, Elliot Louthen

Faculty Articles

The Supreme Court has only once, almost four decades ago, addressed the doctrine of inevitable discovery, when it established the exception in Nix v. Williams. Inevitable discovery encapsulates the notion of no harm, no foul—if law enforcement would have discovered unlawfully obtained evidence regardless of a constitutional violation, then the resulting evidence need not be excluded. Nix laid out two simple dictates: the eponymous requirement of inevitability and a corresponding evidentiary burden requiring the prosecution to prove by a preponderance of the evidence that law enforcement inevitably would have discovered the evidence without the violation. Such analysis requires counterfactual …

"With All The Majesty Of The Law": Systemic Racism, Punitive Sentiment, And Equal Protection, Darren L. Hutchinson

Faculty Articles

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social …

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

Faculty Articles

This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V …

Beliefs, Information, And Institutions: Public Perception Of Climate Change Information Provided By Government Versus The Market, Cherie Metcalf, Jonathan R. Nash

Faculty Articles

Despite scientific consensus over the threat posed by climate change, governmental actions remain modest or stalled, often because of profound societal polarization: more liberal individuals tend to accept climate change as real, anthropogenic, and as posing a substantial (if not existential) threat, while more conservative individuals tend to doubt such assertions. The standard explanation for this phenomenon is that liberals tend to believe government-provided information—as information about climate change tends to be—while conservatives tend to doubt it. Commentators suggest that market-generated climate change information would more likely sway conservatives.

But this assertion lacks any empirical support. This Article explores this …

Constitutional Rights As Human Rights: Freedom Of Speech, Equal Protection, And The Right Of Privacy, Michael J. Perry

Faculty Articles

Much of my recent scholarly work has addressed questions concerning the political morality - the global political morality of human rights. This essay continues in that vein; I focus on a relationship I began to discuss almost forty years ago, in my first book: the relationship between (some) constitutional rights and (some) human rights. My overarching claim here: There is a significant interface between the constitutional law of the United States and the political morality of human rights. My principal aim in this Essay is to defend (and illustrate) that broad claim by defending three narrower claims:

1. The constitutional …

Antidiscrimination And Tax Exemption, Alex Zhang

Faculty Articles

The Supreme Court held, in Bob Jones University v. United States, that violations of fundamental public policy— including race discrimination in education—disqualify an entity for tax exemption. The holding of the case was broad, and its results cohered with the ideals of progressive society: the government ought not to subsidize discrimination, particularly of marginalized groups. But almost four decades later, the decision has never realized its antidiscriminatory potential. The Internal Revenue Service (IRS) has limited implementation to the narrowest facts of the case. The scholarly literature has not formulated a systematic account of how to enforce the Bob Jones …

Originalism And The Inseparability Of Decision Procedures From Interpretive Standards, Michael L. Smith

Faculty Articles

In his article, Originalism: Standard and Procedure, Professor Stephen E. Sachs describes a never-ending debate between originalism's advocates and critics. Originalists argue that certain historical facts determine the Constitution's meaning. But determining these facts is difficult, if not impossible for judges, attorneys, and the public. Sachs seeks to rise above this debate, arguing that the legal community should not expect originalism to offer a procedure for interpreting the Constitution. Instead, the legal community should treat originalism as a

standard to judge interpretations.

This Article takes issue with this approach. Originalism is not like other instances in law where statutes or …

Beyond Compulsory Licensing: Pfizer Shares Its Covid-19 Medicines With The Patent Pool, Chenglin Liu

Faculty Articles

On March 15, 2022, the United States, European Union, India, and South Africa reached an agreement on the waiver of intellectual property rights (IP rights) for COVID-19 vaccines. The waiver agreement has rekindled the debate on the balance between IP rights protection and equitable access to medicines during a public health crisis. India, South Africa, and other developing countries maintain that a waiver was the only way to make vaccines affordable and accessible. Leading pharmaceutical companies argue that the waiver will stifle innovation and make lifesaving medicines less accessible. Both sides have seemingly overlooked Pfizer's voluntary agreement with the Medicines …

Respecting The Identity And Dignity Of All Indigenous Americans, Bill Piatt

Faculty Articles

The United States government attempted to eliminate Native Americans through outright physical extermination and later by the eradication of Indian identity through a boarding school system and other "paper genocide" mechanisms. One of those mechanisms is the recognition of some Natives but not the majority, including those who ancestors were enslaved. The assistance provided to recognized tribes by the government is inadequate to compensate for the historical and continuing suffering these people endure. And yet the problem is compounded for those unrecognized Natives whose ancestors were enslaved and whose tribal identity was erased. They are subjected to a double-barreled discrimination. …

Can Environmental Law Solve The "Forever Chemical" Problem?, Mark P. Nevitt, Robert V. Percival

Faculty Articles

Although federal environmental law purports to provide the public with comprehensive protection against chemical risks, the U.S. chemical industry is characterized by self­ regulation. This self-regulation is exemplified by the dangers posed by per- and polyfluoroalkyl substances (''PFAS'')­ broad classes of persistent toxic substances that have now entered nearly every American's bloodstream and hundreds of public drinking water systems. Despite data linking exposure to these "forever chemicals" to cancer, infertility, and a host of other public health harms, environmental law has failed to safeguard the American people from PFAS' toxic legacy. How did this occur? And what should be done …

Wage Recovery Funds, Elizabeth Ford

Faculty Articles

Wage theft is rampant in the US. It occurs so frequently because employers have much more power than workers. Worse, our main tool for preventing and remedying wage theft – charging government agencies with enforcing the law -- has largely failed to mitigate this power differential. Enforcement agencies, overburdened by the magnitude of the wage theft crisis, often settle cases for nothing more than wages owed. The agency, acting as broker for the payment of the wages owed, voluntarily foregoes both interest and statutory penalties. This is a bad deal for workers, but not just because they do not get …

Medicare "Bankruptcy", Matthew B. Lawrence

Faculty Articles

Medicare, the social insurance program for the elderly and disabled, is once again facing insolvency. Spending from the program’s hospital insurance trust fund is predicted to exceed the accumulated payroll taxes and other revenues that support the fund within the next five years, leaving Medicare unable to honor some of its obligations. Yet, what happens if and when Medicare becomes insolvent has not previously been explored in legal scholarship and is not addressed in statute or regulation. This Article confronts for the first time the major legal questions that Medicare insolvency would present. It explains what policymakers could do to …

When Police Discursive Violence Interacts With Intimate Partner Violence, Janet Ainsworth

Faculty Articles

Linguists analyzing the practices of American-style police interrogation have revealed the discursive attributes of police interrogation that can, often unwittingly, induce false confessions from suspects. Further, psychologists have identified a number of factors that can make particular subjects of police interrogation especially vulnerable to false confessions under interrogation. This article suggests that women who have been victims of serial domestic violence may be a heretofore unrecognized class of those particularly vulnerable individuals. Because the psychodynamics of American-style police interrogation so closely parallel the psychodynamics of intimate terroristic domestic violence, victims of domestic violence may react to police interrogation with the …

Tech Giant Exclusion, John B. Kirkwood

Faculty Articles

There is no topic in regulatory policy that is more pressing and more controversial than what to do about the tech giants – Google, Facebook, Amazon, and Apple. Critics claim that that these powerful platforms crush competitors, distort the political process, and elude antitrust law because it cares only about consumer prices. The only solution, they argue, is to break them up.

This diagnosis is mistaken. The tech giants have indeed engaged in anticompetitive conduct. They have excluded rivals selling products on their platforms by demoting them in search results, copying their products, or refusing to deal with them. While …

"Only To Have A Say In The Way He Dies:" Bodily Autonomy And Methods Of Execution, Alexandra L. Klein

Faculty Articles

Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain …

The Third Amendment In 2020, Michael L. Smith

Faculty Articles

Compared with other Amendments in the Bill of Rights, the Third Amendment does not get much attention. Its prohibition on the quartering of soldiers in houses during peacetime, along with its prohibition on similar quartering during times of war absent legal prescription, is rarely the subject of litigation or scholarship. Indeed, most people—and likely most attorneys—probably cannot tell you what the Third Amendment covers if put on the spot. This Article aims to fix this by giving the Third Amendment the respect that one of the Constitution's original amendments deserves. This Article surveys and analyzes caselaw, scholarship, and popular media …

Reconstruction Of The Reasonable Person Standard Under Chinese Patent Law, Weihong Yao, Robert H. Hu

Faculty Articles

The standard of a Reasonable Person is the common basis for determining the duty of care of a patent infringer. Under the Chinese patent law, the standards for Reasonable Manufacturer and Reasonable Importer are among the highest standards in the world; such high Chinese standards impose an excessive duty of care for Chinese manufacturing enterprises, importers, and distributors, which hinder the development of those enterprises. We should reconstruct the Chinese patent law's Reasonable Person standard based on the characteristics of the patent system and the status quo of China's economic production. A Reasonable Manufacturer should be defined as an ordinary …

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

Anti-Discrimination Ethics Rules And The Legal Profession, Michael Ariens

Faculty Articles

“Reputation ought to be the perpetual subject of my Thoughts, and Aim of my Behaviour. How shall I gain a Reputation! How shall I Spread an Opinion of myself as a Lawyer of distinguished Genius, Learning, and Virtue.” So wrote twenty-four-year-old John Adams in his diary in 1759. He had been a licensed lawyer for just three years at that time and had already believed himself to be hounded by “Petty foggers” and “dirty Dablers in the Law”—unlicensed attorneys who, Adams claimed, fomented vexatious litigation for the fees they might earn.

Adams believed his embrace of virtue, along with genius …

One Step Backward: The Ninth Circuit's Unfortunate Rule 404(B) Decision In United States V. Lague, Dora Klein

Faculty Articles

The federal courts' current approach to character evidence is widely recognized as problematic. Although Rule 404(b)(1) categorically prohibits the use of character evidence, Rule 404(b)(2) presents a list of examples of permitted purposes that has tempted courts to view the admission of other-acts evidence as proper so long as the evidence is merely relevant to a non-character purpose. Additionally, courts have misconstrued the inclusive structure of Rule 404(b) as creating a presumption

in favor of admissibility. Recent efforts to correct this mistakenly permissive view include decisions by several of the federal circuit courts of appeals recognizing that Rule 404(b) requires …

The Cost Of Unstable Property: Oil, Gas, And Other Confusing Mineral Interests, Chad J. Pomeroy

Faculty Articles

Most people think of property as a thing: a chunk of land or a piece of personal property. Most lawyers, hopefully, have a more sophisticated view and think of property as a set of rights that exists with respect to a thing and governs how one interacts with that thing vis-a-vis other people. But even that nuance is not refined enough for an oil and gas lawyer. Such a practitioner does, of course, view ownership as a set of rights, but the thing at hand is not just a piece of real property or the part of the land that …

The Roberts Court And Class Litigation: Revolution, Evolution, And Work To Be Done, Richard D. Freer

Faculty Articles

Since 2005, when John Roberts was appointed Chief Justice, there have been startling changes to the world of class actions. Jurisdictionally, the Class Action Fairness Act of 2005 fundamentally reconfigured the allocation of class litigation between federal and state courts. Federal Rule of Civil Procedure 23, the federal class action provision, has been amended three times in the Roberts years, once in a meaningful way. Our focus, however, is on what the Roberts Court has done in the class action world through its caselaw. On that score, we have a remarkable corpus. From Shady Grove Orthopedic Associates, P.A. v. …

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

Faculty Articles

Originalism has received a great deal of recent, mainstream attention. President Donald Trump's nomination of three justices to the Supreme Court amplified discussions of their judicial philosophies during and following their confirmation proceedings. Supporters of these nominations highlighted the nominees' originalist credentials, arguing that originalism was the dominant approach to constitutional interpretation.

In the academic sphere, volumes of articles and books set forth originalist theories and methodology. Its academic proponents also refer to it as the dominant form of constitutional interpretation—often asserting that opponents of originalism have failed to enunciate a coherent alternative theory. Some argue that originalism (at least, …

Distracted Walking, Michael L. Smith

Faculty Articles

Throughout the United States and across the world, cities are enacting bans on "distracted walking." These bans target cell phone users who cross the street while using a telephone. Doing so in certain cities may result in a fine, community service, or even jail. Drawing inspiration from municipalities, lawmakers in several states have proposed similar statewide legislation. Pushback against these measures is rare-as many people have either directly, or indirectly, experienced the slow and oblivious behavior of "smartphone zombies."

This Article surveys these laws and demonstrates that the science is, at best, mixed on whether device usage results in distraction …