Law Commons^™

The Brand-X Effect: Declining Chevron Deference In The 21st Century, Stephen Johnson

Articles

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is the most frequently cited Supreme Court administrative law decision and has generated substantial scholarship over the past thirty-four ears. Almost three decades ago, Robert Glicksman and Christopher Schroeder examined the nature of judicial review of the actions of the Environmental Protection Agency ("EPA") by the federal courts during the agency's first twenty years of existence, focusing, in part, on the changing nature of that review in light of the Chevron decision. Glicksman and Schroeder concluded that the courts aggressively reviewed EPA's actions during the agency's early years, interpreting the …

A Logical Step Forward: Extending Voluntary Acknowledgments Of Parentage To Female Same-Sex Couples, Jessica Feinberg

Articles

Under current law, stark differences exist between different- and same-sex couples who welcome children into the world with regard to the ease through which the member of the couple who did not give birth to the child is able to obtain legal parent status. While a number of simple, efficient procedures exist for establishing legal parentage for different-sex partners of women who give birth, same-sex partners of women who give birth often have to go through significantly more complex, time-consuming, and expensive procedures in order to establish legal parentage. The inequitable treatment of same-sex couples in establishing legal parentage has …

Clarifying The “Probate Lending” Debate: A Response To Professors Horton And Chandrasekher, Jeremy Kidd

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The debate over third-party funding of legal claims just got more interesting. The debate already had plot twists, such as free-market scholars lining up in opposition to the U.S. Chamber of Commerce and alongside proplaintiff scholars who they oppose in tort reform debates. Now add to the mix a recent paper by Professors Horton and Chandrasekher that introduced an entirely new angle to the debate: funding of probate disputes. Now that this parallel area of funding has been identified, comparing and contrasting probate funding with litigation funding should illuminate the incentives that funders/recipients face in both scenarios. By pointing out …

Telling Tales The Transactional Lawyer As Storyteller, Karen J. Sneddon

Articles

Transactional lawyers are storytellers, although they may not think of themselves as such. They work with provisions and clauses to build trans-actional documents that encapsulate the wishes, hopes, and fears of the transacting parties to promote, guide, and control the relationship of those parties. Narratology, the theory of narrative, can provide a resource to transactional lawyers that facilitates the construction of a wide range of transactional documents, which can themselves be considered narratives.

The form documents that transactional lawyers use as starting points in the drafting process are already rife with narrative characteristics; they are embedded with characters and plots, …

Remedial Reading: Evaluating Federal Courts’ Application Of The Prejudice Standard In Capital Sentences From “Weighing” And “Non-Weighing” States, Sarah Gerwig-Moore

Articles

On March 31, 2016, the State of Georgia executed my client, Joshua Bishop. Until the time of his execution, several successive legal teams challenged his conviction and sentence through the usual channels: direct appeal, state habeas corpus proceedings, and federal habeas corpus proceedings. The last hearing on the merits of his case was before a panel of the United States Court of Appeals for the Eleventh Circuit, which accepts appeals from death penalty cases out of Georgia, Florida, and Alabama. In a lengthy opinion describing the many mitigating circumstances present in Mr. Bishop’s case, the Eleventh Circuit denied relief. This …

Ethics Of Using Artificial Intelligence To Augment Drafting Legal Documents, David Hricik

Articles

Skynet is not and may never be self-aware, but machines are al-ready doing legal research, drafting legal documents, negotiating disputes such as traffic tickets and divorce schedules, and even drafting patent applications. Machines learn from us, and each other, to augment the ability of lawyers to represent clients—and even to replace lawyers completely. While it also threatens lawyers’ jobs, the exponential increase in the capacity of machines to transmit, store, and process data presents the opportunity for lawyers to use these services to provide better, cheaper, or faster legal representation to clients. By way of familiar example, instead of determining …

Indeconstructible: The Triumph Of The Environmental “Administrative State”, Stephen M. Johnson

Articles

Shortly after the 2017 Presidential inauguration, a senior advisor to the President proclaimed that a top priority of the Administration would be the “deconstruction of the administrative state.” A primary target of the Administration’s deconstruction efforts was the U.S. Environmental Protection Agency (“EPA”) and federal environmental regulations.

While the President can use a variety of tools, including the appointment power, budget power, treaty power, and executive orders, to influence the manner in which the EPA and other agencies interpret and enforce laws, the President has very little power to unilaterally “deconstruct the administrative state.” The “administrative state” is a creation …

Throwing The Baby Out With The Patriarchy, Scott Titshaw

Articles

Throughout the history of Europe and its former new world colonies, families have been a central unit for defining legal rights and duties, including those related to citizenship and immigration. Less than a century ago, a woman and her children automatically gained or lost citizenship in the U.S. and many other countries upon her marriage to a citizen or noncitizen. The family was treated as one unit reflecting the legal identity of the father-husband as “head of family.”

Fortunately, the United States and other governments have increasingly recognized women – and, to a lesser extent, children – as independent persons …

Quacks Or Bootleggers: Who’S Really Regulating Hedge Funds?, Jeremy Kidd

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Influential scholars of corporate law have questioned previous federal interventions into corporate governance, calling it quackery. Invoking images of medical malpractice, these critiques have argued persuasively that Congress, in responding to crises, makes policy that disrupts efficient private rules and established state laws. This Article applies the Bootleggers and Baptists theory to show that Dodd–Frank’s hedge fund rules are more than just negligent or reckless, but designed to benefit special interests that compete with the hedge fund model. Those rules offer no solutions to any real or perceived risks arising from hedge fund investing, but might offer an advantage to …

Fintech: Antidote To Rent-Seeking?, Jeremy Kidd

Articles

Fintech is a reality of our modern society, and will likely become even more so in the future. Peer-to-peer lending, cybercurrencies, smart contracts, algorithmic lending, and more, have required adaptation by consumers and producers of financial services. Our modes of doing business will continue to be challenged and changed by these and other Fintech innovations, almost certainly expanding beyond merely “promot[ing] financial inclusion, expand[ing] access to capital for individuals and small businesses, and more broadly reshap[ing] how society interacts with financial services.” By reducing transaction costs, advancing technology opens the doors to innovations the likes of which we might not …

Stranger Than Fiction: How Lawyers Can Accurately And Realistically Tell A True Story By Using Fiction Writers’ Techniques That Make Fiction Seem More Realistic Than Reality, Cathren Page

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This Article differs from other articles on related topics in that it focuses broadly on including specific details to establish an overall sense of reality. In contrast, in his article, This is Not the Whole Truth, Professor Steve Johansen discusses those details that can ethically be omitted; this Article, however, is about which select details to include rather than to omit. Although some articles have focused on details regarding specific objects, such as an obtuse object or an endowed object, this Article covers a wider category of details that applies throughout the narrative as opposed to details that surface only …

Astonishingly Excellent Success Or Sad! Loser! Failure: Why President Trump’S Legal Narratives “Win” With Some Audiences And “Lose” With Others, Cathren Page

Articles

While President Trump is often called a liar and various commentators have analyzed his rhetorical approach, little has been said about storytelling's role in his wins and losses. Trump’s narratives about legal issues enjoy wild success with his supporters, amuse some critics, and terrify others. Thus far into his presidency, his legal narratives have often failed with courts. With nearly sixty-three million American voters backing Trump, scholars and students of persuasion cannot ignore his successes. However, with over sixty-five million Americans voting against him and various court’s ruling against him, scholars and students of persuasion also cannot ignore his failures. …