Law Commons^™

Petition For A Writ Of Certiorari. Kirk V. Invesco, Limited, 138 S.Ct. 1164 (2018) (No. 17-762), 2017 U.S. S. Ct. Briefs Lexis 4618, 2017 Wl 5665441, Eric Schnapper, Nitin Sud

Court Briefs

QUESTION PRESENTED The Fair Labor Standards Act provides that covered employees who work more than 40 hours in a week must generally be paid overtime at a rate one and one-half times their regular rate. To assure compliance with that overtime rule, the Act and governing regulations require employers to maintain records of all hours worked by covered employees. If an employer has failed to keep the legally required records, the burden on the employee under Anderson v. Mt. Clemens Pottery Co. is simply to "produce[] sufficient evidence to show the amount and extent of that work as a matter …

Reply Brief. Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark

Court Briefs

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …

Reinvigorating Commonality: Gender And Class Actions, Brooke D. Coleman, Elizabeth G. Porter

Articles

In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality—cohesion, unity—in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four "waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. Beginning in the civil rights era, feminism became an entrenched part of mainstream America Over time, however, feminism’s influence waned as …

Petition For Writ Of Certiorari

Washington v. United States, Docket No. 17-269 (138 S.Ct. 735 (2018))

No abstract provided.

Petition For A Writ Of Certiorari, Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark

Court Briefs

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …

Petitioner's Reply Brief. Riley V. Elkhart Community Schools, 137 S.Ct. 1328 (No. 16-533), 2017 U.S. S. Ct. Briefs Lexis 593, 2017 Wl 712023, Eric Schnapper, Robin Remley

Court Briefs

QUESTIONS PRESENTED (1) To establish a prima facie case of discrimination in promotion or hiring, is a plaintiff required to show that the position in question was filled by someone outside his or her protected group? (2) In Patterson v. McLean Credit Union, this Court held that in a case of alleged discrimination in hiring or promotion, a plaintiff “might seek to demonstrate that [the employer's] claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position.” Ash v. Tyson Foods, Inc. recognized that the …

Brief For Respondents. County Of Los Angeles V. Mendez, 137 S.Ct. 1539 (2017) (No. 16-3690), 2017 Wl 696103, Eric Schnapper, Rachel Lee, Leonard J. Feldman, Sara Berry

Court Briefs

QUESTIONS PRESENTED

1. Does the legal framework set out in Grnham v. Connor, 490 U.S. 386 (1989), apply to actions by police that foreseeably create a need for the use of force?

2. In an action under 42 U.S.C. § 1983, where a house search that violates the Fourth Amendment results in the shooting of an innocent resident who did not know that the intruders were sheriff’s deputies, does a resident’s nonculpable response to the intrusion constitute a superseding cause that bars relief for the residents’ injuri

Service Within And Beyond Our Walls, Mary Whisner

Librarians' Articles

With the growth of the Internet, the typical patron base that reference librarians serve has increased to a much wider group of people who use various electronic means of communication to seek assistance. Ms. Whisner examines how technology has expanded these service borders and discusses the ramifications for the modern reference librarian.

Lexicographer For A Day, Mary Whisner

Librarians' Articles

Ms. Whisner shares her love of learning about new words and phrases, and details how she investigates their origins and usages in dictionaries and full-text databases.

Japan’S Adr System For Resolving Nuclear Power-Related Damage Disputes, Daniel H. Foote

Articles

This paper has dual aims. First, it introduces the Nuclear Power-Related Damage Claim Resolution Center, established in 2011 to handle disputes arising out of the March 2011 meltdown at the Fukushima Daiichi nuclear power plant. After first examining the genesis of that Center, this paper describes its structure and roles and discusses its performance, including the challenges it has faced and the accomplishments it has achieved. Second, this paper seeks to place that Center into the broader context of the overall development of alternative dispute resolution (ADR) in Japan and to assess its impact. Two major themes recur throughout this …

Judging Congressional Elections, Lisa Marshall Manheim

Articles

This Article reveals what passes as federal constitutional law in this area: a chaotic set of ad hoc, state-based interpretations that vary drastically by jurisdiction. Some states, for example, have interpreted Article I, Section 5 to permit courts to adjudicate congressional election contests. Others have concluded the opposite. Through such conflicting interpretations, state courts have contributed to a deep, intractable split on the provision's meaning and reach.

State legislatures have compounded the discord by enacting statutes that codify their interpretations, a move that renders their constitutional determinations practically unreviewable. Meanwhile, both Houses of Congress continue to adjudicate these congressional election …

Book Review, Lea Vaughn

Book Reviews

This review essay will proceed in three parts followed by a conclusion that assesses the success and contribution of her work. The first section sketches her approach to legal history and her point of view. Professor Blumenthal takes on the monumental task of challenging the received wisdom of legal historians such as Willard Hurst.

Second, this review will paint a condensed portrait of Blumenthal’s methodology. Her book and its underlying analysis draw on a breathtaking base of source materials: Hundreds of cases, treatises, and biographical notes are woven into her observations. The careful depiction and analysis of these materials is …

The Taking Economy: Uber, Information, And Power, Ryan Calo, Alex Rosenblat

Articles

Sharing economy firms such as Uber and Airbnb facilitate trusted transactions between strangers on digital platforms. This creates economic and other value but raises concerns around racial bias, safety, and fairness to competitors and workers that legal scholarship has begun to address. Missing from the literature, however, is a fundamental critique of the sharing economy grounded in asymmetries of information and power.

This Essay, coauthored by a law professor and a technology ethnographer who studies work, labor, and technology, furnishes such a critique and proposes a meaningful response through updates to consumer protection law. Commercial firms have long used what …

The Advent Of Lawyers In Japanese Government, Daniel H. Foote

Articles

Until 2003, Japanese lawyers were prohibited by law from entering full-time employment in governmental bodies. That year, in line with recommendations by the Justice System Reform Council, the Lawyers Act was amended to permit lawyers to undertake such employment. Incorporating information and insights from interviews with former government lawyers and other concerned parties, this article examines the rise in the hiring of government lawyers and its impact. The article considers factors that have contributed to the increase, examines the roles played by these lawyers, considers prospects for the future, and discusses implications for government, the legal profession, clients, and legal …

The Worst System Of Citation Except For All The Others, David J.S. Ziff

Articles

Now in its twentieth edition, The Bluebook continues to cast its shadow over the legal profession just as it has for almost 100 years, helping legal writers format their references to authorities in briefs, memoranda, opinions, and law review articles. Previous critiques have offered various theories for why, despite its problems, The Bluebook remains the standard for legal citation. Ivy League elitism, the first-mover advantage, and lawyers’ conservative preference for the status quo have all been offered to explain the seemingly inexplicable: If this system is so terrible, then why are we still stuck with it?

One potential answer to …

Foreword: A ‘Coyote Warrior’ And The ‘Great Paradoxes,’ The Scholarship Of Professor Raymond Cross, Monte Mills

Articles

This Foreword to the Public Land and Resources Law Review special issue republishing and celebrating the scholarship of Professor Raymond Cross provides a context and framework for understanding and appreciating the issue's articles. The Foreword reviews Professor Cross' legacy of work as a tribal attorney on behalf of the Three Affiliated Tribes (Mandan, Hidatsa, and Arikara) of the Fort Berthold Reservation and discusses the important contributions his scholarly work continue to make to the field of Federal Indian Law. As noted at the conclusion of the Foreword, "[i]t is a true honor to introduce and present some of his important …

Cohabiting With Property In Washington: Washington's Committed Intimate Relationship Doctrine, Tom Andrews

Articles

Washington has followed a community property system since at least 1869—twenty years prior to statehood. However, Washington rejected the doctrine of common law marriage quite early in 1892. For over one hundred years, in order to receive the advantages of the community property laws, a Washington couple has needed to have their relationship blessed with a ceremonial marriage or have a valid common law marriage in another state.

Accompanying these requirements for the formal establishment of a community property regime was the so-called "Creasman Presumption," which provided that "property acquired by a man and a woman not married to each …

A Transactional Theory Of The Reader In Copyright Law, Zahr K. Said

Articles

Copyright doctrine requires judges and juries to engage in some form of experiencing or “reading” artistic works to determine whether these works have been infringed. Despite the central role that this reading—or viewing, or listening—plays in copyright disputes, copyright law lacks a robust theory of reading, and of the proper role for the “reader.” Reading matters in copyright cases, first, because many courts rely on the “ordinary observer” standard to determine infringement, which requires figuring out or assuming how an ordinary observer would read the works at issue. Second, most courts characterize a key part of infringement analysis as a …

Electoral Evidence, Peter Nicolas

Articles

Each year, millions of Americans cast votes for specific candidates or on specific ballot measures. Each such vote generates potential "electoral evidence," the admissibility of which may be the subject of dispute in subsequent litigation. The evidence may take various forms, including the marked ballot itself, a voter's testimony regarding her vote, or her written or oral statements regarding her vote.

Electoral evidence is most commonly offered in litigation over the election outcome itself, with the parties seeking to determine how certain individuals voted to resolve a close election. However, its potential relevance is not limited to such proceedings. It …

Introductory Essay: Catastrophe Thinking, Fast And Slow, Todd A. Wildermuth

Articles

No abstract provided.

Regulating Cumulative Risk, Sanne H. Knudsen

Articles

This Article proceeds in four parts. Part I describes how cumulative risk assessments tackle the real-world exposure problems that lie at the heart of public health. It shows how risk science has evolved and why policy, not science, lags behind. Part II then examines why key public health concerns cannot be answered through information disclosure or consumer choice models alone.

Having established that regulatory drivers are needed, Part III begins to examine how to move forward. It does so by looking backward and examining how TSCA and FIFRA have failed historically to provide this critical public health focus despite room …

Industry Lobbying And "Interest Blind" Access Norms At International Organizations, Melissa J. Durkee

Articles

The standard approach of international organizations (IOs) makes no formal distinctions between nonprofit private sector associations, known as trade or industry groups, and public interest groups like Amnesty International or Greenpeace. After all, these groups are all organized as nonprofits; they may all be characterized as nongovernmental organizations representing the interests of their memberships; and the groups all seek to advance the agendas of members by offering ideas and expertise to international officials or bodies—classic lobbying activity. Thus, most IOs offer accreditation and access to both private sector and public interest groups on equal terms, without differentiating between them. I …

Astroturf Activism, Melissa J. Durkee

Articles

Corporate influence in government is more than a national issue; it is an international phenomenon. For years, businesses have been infiltrating international legal processes. They secretly lobby lawmakers through front groups: “astroturf” imitations of grassroots organizations. But because this business lobbying is covert, it has been underappreciated in both the literature and the law.

This Article unearths the “astroturf activism” phenomenon. It offers an original descriptive account that classifies modes of business access to international officials and identifies harms, then develops a critical analysis of the laws that regulate this access. I show that the perplexing set of access rules …

Is There A Right To Be Free From Corruption?, Anita Ramasastry

Articles

Scholars and policymakers have, for some time, focused on the link between corruption and human rights. This has been to illustrate that corruption is not a victimless crime. While this has publicized the impact of corruption on individuals and on society, it has not changed the lack of political will to prosecute many instances of corruption. Thus citizens often stand by as their leaders plunder national treasuries. Rather than focusing solely on human rights, or trying to create a new “human right” to be free from corruption, this article explores the right to a legal remedy for victims of corruption …

Standards Of Review In Law And Sports: How Instant Replay's Asymmetric Burdens Subvert Accuracy And Justice, Steve P. Calandrillo, Joseph Davison

Articles

A fundamental tension exists in both law and sports: on one hand, adjudicators must “get the decision right” in order to provide fairness to the parties involved, but on the other, they must issue speedy and certain rulings to avoid delaying justice. The certainty principle dictates that courts follow stare decisis in the law even if they believe that an earlier decision was wrong. However, it is often the case that there is a need to reverse earlier decisions or the law itself in order to make the correct call on appeal.

Both law and sports are constantly balancing the …

Postpartum Taxation And The Squeezed Out Mom, Shannon Weeks Mccormack

Articles

Faced with too-short (or nonexistent) maternity leaves, inflexible work schedules, and the soaring costs of childcare in the United States, many new mothers temporarily leave the workforce to care for their young children. Although media attention has focused on the “opt-out” mom, many more mothers are squeezed out of the external workplace. But mothers that try to return to work may discover that it is difficult to do so, as employers have been shown to be less likely to hire mothers than others. A mother that does reenter may find that even short periods out of work cost (sometimes far) …

Beyond A Zero-Sum Federal Trust Responsibility: Lessons From Federal Indian Energy Policy, Monte Mills

Articles

The federal government’s trust relationship with federally recognized Indian tribes is a product of the last two centuries of Federal Indian Law and federal-tribal relations. For approximately the last 50 years, the federal government has sought to promote tribal self-determination as a means to carry out its trust responsibilities to Indian tribes; but the shadows of prior federal policies, based largely on notions of tribal incompetence and federal paternalism, remain. Perhaps no other policy arena better demonstrates the history, evolution, and promise for reform of the federal trust relationship than Federal Indian energy policy, or the range of federal statutes …

Zombie Patents And Zombie Companies With Patents, Xuan-Thao Nguyen

Articles

While a zombie is the undead and has no expiration, patents do. A patent comes into existence the moment the government, through the United States Patent and Trademark Office (USPTO), examines the invention application and issues a grant of patent. From that birth, a patent will have a lifetime of only twenty years from the date of filing the application. Patents expire and have no life after the twenty-year period.

Some patents die when the patentees abandon them by not paying maintenance fees. Dead patents must remain dead and become part of the public domain. Unfortunately, this Essay observes that …

The Other Securities Regulator: A Case Study In Regulatory Damage, Anita K. Krug

Articles

Although the Securities and Exchange Commission is the primary securities regulator in the United States, the Department of Labor also engages in securities regulation. It does so by virtue of its authority to administer the Employee Retirement Income Security Act (ERISA), the statute that governs the investment of retirement assets. In 2016, the DOL used its securities regulatory authority to adopt a rule that, for the first time, designates securities brokers who provide investment advice to retirement investors as fiduciaries subject to ERISA's stringent transaction prohibitions. The new rule's objective is salutary, to be sure. However this Article shows that, …

Hacking Qualified Immunity: Camera Power And Civil Rights Settlements, Mary D. Fan

Articles

Excessive force cases are intensely fact-specific. Did the suspect resist, necessitating the use offorce? What threat did the suspect pose, if any? Was the use of force excessive in light of the situation? These are judgment calls based on myriad facts that differ from case to case. Establishing what really happened forces courts and juries to wade into a fact-bound morass filled with fiercely conflicting defendant-said, police-said battles.

Now an evidentiary transformation is underway. We are in an era where the probability of a police encounter being recorded has never been higher. With the rise of recording—by the public as …