Law Commons^™

Questioning Quill, Hayes R. Holderness

Law Faculty Publications

The physical presence rule of Quill Corp. v. North Dakota is under increasing attack from the “Kill Quill” movement — a consortium of state tax administrators, industry leaders, and academics opposed to the decision. The physical presence rule prohibits states from requiring many out-of-state vendors to collect taxes on goods sold into the states. Kill Quill states have grown increasingly aggressive, and litigation is well underway in South Dakota and Alabama over those states’ direct disregard for the rule. As a petition to the Supreme Court for certiorari grows closer, the case for overturning the physical presence rule remains cloudy. …

President Donald Trump And Federal Bench Diversity, Carl W. Tobias

Law Faculty Publications

President Donald Trump constantly reminds United States citizens about the myriad circuit and district court appointments that his White House is making to the federal judiciary. Last September, Trump proposed the seventh “wave,” which included three people of color among sixteen judicial nominees. This wave permitted the administration to triple the number of ethnic minority picks whom it had selected, which means that the Executive Branch has proffered ten persons of color in appeals court and district court submissions, yet none is a lesbian, gay, bisexual, or transgender (LGBT) individual. Nevertheless, a problematic pattern, which implicates a stunning lack of …

Qualified Immunity And Fault, John F. Preis

Law Faculty Publications

As a general rule, liability correlates with fault. That is, when the law declares a person liable, it is usually because the person is, in some sense, at fault. Similarly, when the law does not declare a person liable, it is usually because the person is not deemed to be at fault. There are exceptions, of course. A storekeeper who unwittingly sells a product that harms another may be held liable under the doctrine of strict liability, despite her blameless conduct. Similarly, a website owner who knowingly permits others to post defamatory statements on her website is not liable, despite …

Marriage Equality Comes To The Fourth Circuit, Carl Tobias

Law Faculty Publications

Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit presents …

Severability, Separation Of Powers, And Agency Design, Kevin C. Walsh

Law Faculty Publications

Kristin Hickman pursues a “modest” goal in Symbolism and Separation of Powers in Agency Design: “to raise a few reservations regarding judicial refashioning of agency design via [a] severance remedy for separation of powers violations.” This understated approach commands attention to Hickman’s analysis. In this contribution to a Notre Dame symposium on “Administrative Lawmaking in the Twenty-First Century,” Hickman clearly identifies and carefully analyzes problems arising out of what might otherwise have passed as unremarkable applications of existing severability doctrine. With an eye toward big-picture legitimacy of courts and agencies, and with attention toward doctrinal and statutory detail, Hickman …

The President, Prosecutorial Discretion, Obstruction Of Justice, And Congress, Henry L. Chambers Jr.

Law Faculty Publications

The executive power of the United States is vested in the President of the United States. That power includes prosecutorial discretion—the power to prosecute or decline to prosecute. Consequently, the President would appear to have the constitutional authority to initiate or end a federal criminal prosecution or investigation. This would seem particularly so in an era in which executive power arguably continues to expand. Nonetheless, an ongoing debate exists regarding whether a President obstructs justice when he attempts to end a criminal investigation for improper reasons. Those who argue in favor of the possibility of obstruction of justice suggest that …

The Burden Of A Good Idea: Examining The Impact Of Unfunded Federal Regulatory Mandates On Medicare Participating Hospitals, Rachel Juhas Suddarth

Law Faculty Publications

Health care costs are on the rise. In 1960, the United States spent $9 billion on hospital care. Since then, hospital related spending has grown exponentially. In 2015, the United States spent over $1 trillion on hospital care, with $359.9 billion of those payments coming from the federal Medicare program for the aged and disabled. Researchers have long tried to understand the exact causes of rising health care costs. While many have closely examined the costs associated with population demographics, medical innovation, prescription drug costs, overutilization of services, and fraud or abuse, there is one driving force that does not …

Appointing Lesbian, Gay, Bisexual, Transgender And Queer Judges In The Trump Administration, Carl W. Tobias

Law Faculty Publications

President Donald Trump incessantly brags that American citizens selected him to “Make the Judiciary Great Again” and constantly reminds the public that the huge number of federal jurists whom Trump has appointed will be deciding cases decades after his tenure is over. Trump has rapidly submitted many circuit and district court candidates, but not one of his 123 nominees has been openly lesbian, gay, bisexual, transgender or queer (LGBTQ). The White House has also instituted endeavors, specifically regarding transgender people, which seem discriminatory. Indeed, a third of the judicial nominees whom the President has appointed have compiled anti-LGBTQ records. Because …

The Case For Preempting Salt Cap Workarounds, Hayes R. Holderness

Law Faculty Publications

In late 2017 the Tax Cuts and Jobs Act (P.L. 115-97) was passed into law. Controversy instantly ensued. One major controversy revolves around the capping of the Internal Revenue Code section 164 state and local tax deduction at $10,000 per taxpayer (the SALT cap). Viewed by many blue states as an attack on their citizens, the SALT cap has spurred counterattacks in the form of state legislation designed to provide taxpayers with an avenue to counter the effects of the SALT cap (the SALT cap workarounds). While others have and are considering the effectiveness of the SALT cap workarounds, this …

Mostly Settled, But Right For Now, Corinna Lain

Law Faculty Publications

Randy Kozel’s book, Settled Versus Right: A Theory of Precedent, is a laudable effort to make the law more stable, more cohesive, more impersonal — an effort to show that the law can endure even as Justices come and go. The core of his contribution is a proposed doctrine of stare decisis that disentangles deference to precedent from the interpretive methodologies that led to the precedent in the first place, and that so often determine the amount of deference a precedent gets. As a purely doctrinal project, Settled Versus Right naturally assumes that if we fix the doctrine, we’ll fix …

Neoliberalism And The Lost Promise Of Title Vii, Henry L. Chambers, Jr.

Law Faculty Publications

In Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, Professor Deborah Dinner explores how neoliberalism of the late twentieth century has influenced Title VII’s interpretation and destroyed Title VII’s ability to transform the American workplace into one where employees are properly treated, fairly valued, and fully compensated. She suggests that neoliberalism’s focus on a minimal role for state intervention and on the individual worker as a completely realized market actor capable of protecting her interests through negotiation with an employer is problematic. It has led to an interpretation of Title VII that functionally expands employer prerogatives regarding terms …

International Cybertorts: Expanding State Accountability In Cyberspace, Rebecca Crootof

Law Faculty Publications

States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not cybercrimes and do not constitute cyberwarfare, nor are states extending existing definitions of wrongful acts permitting countermeasures to cyberoperations (possibly to avoid creating precedent restricting their own activities). Absent an appropriate label, victim states have few effective and nonescalatory responsive options, and the harms associated with these incidents lie where they fall.

This Article draws on tort law and international law principles to construct …

Autonomous Weapon Systems And The Limits Of Analogy, Rebecca Crootof

Law Faculty Publications

Autonomous weapon systems are often described either as more independent versions of weapons already in use or as humanoid robotic soldiers. In many ways, these analogies are useful. Analogies and allusions to popular culture make new technologies seem accessible, identify potential dangers, and buttress desired narratives. Most importantly from a legal perspective, analogical reasoning helps stretch existing law to cover developing technologies and minimize law-free zones.

But all potential analogies—weapon, combatant, child soldier, animal combatant—fail to address the legal issues raised by autonomous weapon systems, largely because they all misrepresent legally salient traits. Conceiving of autonomous weapon systems as weapons …

Curing The Federal Court Vacancy Crisis, Carl Tobias

Law Faculty Publications

The federal judiciary has experienced a vacancy crisis, which has intensified over President Donald Trump's tenure when judicial openings significantly increased from the 105 vacancies at his inauguration. Despite these concerns, analysts hail court selection as Trump's paramount success. This Article canvasses the rise and expansion of the crisis and scrutinizes the practices which Trump and the I 15th Senate instituted, as Republican concentration on quickly appointing many conservative appeals court judges resulted in departures from longstanding precedents and undermined the presidential discharge of constitutional responsibilities to nominate and confirm impressive jurists as well as senatorial duties to advise and …

Employee Voice In Arbitration, Ann C. Hodges

Law Faculty Publications

The Supreme Court’s 2018 decision in Epic Systems v. Lewis allows employers to force employees to agree to individual arbitration of any claims against the employer, removing their ability to bring class and collective actions. These unilaterally imposed arbitration agreements deprive employees of any voice in this important term of employment.

If arbitration is to serve its intended function of a mutually agreeable forum to resolve disputes, Congress should require employers who desire to use arbitration to negotiate the terms of the agreement with a representative of their affected employees. Such a requirement would reduce some of the adverse effects …

Building Bridges, Wendy Perdue

Law Faculty Publications

"I am deeply honored to assume the role of president of this organization and to stand in front of so many friends and colleagues whom I have known over the years. Many of you are people with whom I have worked through AALS, some are former colleagues from Georgetown or current colleagues from Richmond, and still others I know only through your scholarship and reputation. It is my hope that this year will provide an opportunity for me to reconnect with many of you as we pursue our shared interest in further strengthening and supporting our system of legal education." …

Modernizing Disability Income For Cancer Survivors, Ann C. Hodges

Law Faculty Publications

The medical progress in cancer treatment is worthy of celebration, as survivors of many cancers are living longer. This good news, however, comes with challenges for those survivors. Empirical evidence from researchers at cancer centers demonstrates the devastating impact that cancer has on employment, resulting in serious financial stress for survivors and their families. My previous research used this empirical data to recommend changes in employment laws to meet the need of survivors to maintain employment. This article builds on the prior research by using the empirical evidence of the employment effects of cancer to recommend changes in the disability …

Removing Race From The Jury Deliberation Room: The Shortcomings Of Pena-Rodriguez V. Colorado And How To Address Them, Lauren Crump

Law Student Publications

This comment explores ways in which racial bias undermines the American jury system and argues that simply having a racial bias exception to the no-impeachment rule does not go far enough to guard against racially motivated jury verdicts. In order to guarantee the Sixth Amendment right to an impartial jury, defendants must always be able to question potential jurors about racial bias, and universal court policies need to be adopted across the country that allow for a consistent approach for investigating claims of racial bias in jury deliberations. Part I of this comment examines the history of American juries and …

Using Electronic Monitoring To Enhance The Protection Offered By Civil Protection Orders In Cases Of Domestic Violence: A New Technology Offers New Protection, Nicole Allaband

Law Student Publications

"Domestic violence is a widespread epidemic in the United States. Each year, between 1.8 and 4 million domestic violence incidents are reported. One in three women will experience some form of domestic violence in her lifetime. Civil protection orders (also known as protection from abuse orders or restraining orders) are a common remedy employed by the courts to prevent future violence and protect survivors of domestic violence. These orders can be tailored to fit the circumstances, but frequently include no contact provisions. However, no contact provisions can be difficult to enforce because the abuser is usually intimately familiar with the …

Bargaining Towards Equality: The Effects Of Implicit Bias Training On Plea-Bargaining, John Dunnigan

Law Student Publications

This comment focuses on the racial discrimination that currently exists in the process of plea-bargaining. The author suggests an approach aimed to mend the widespread racial discrimination. Particularly, the author details why mandatory implicit bias trainings for prosecutors would benefit defendants. Implicit bias trainings would benefit the criminal justice system as a whole because they would bring awareness to the issue and give prosecutors the knowledge they need to act justly in the plea-bargaining process.

Giles, The Confrontation Clause, And Inferred Intent: Do Abusers Forfeit Their Confrontation Rights By Engaging In Domestic Violence?, Evan Stastny

Law Student Publications

This Prosecuting those accused of domestic violence presents an array of challenges for prosecutors. These crimes are frequently a he-said, she-said situation with minimal physical evidence. This puts a heavy weight on victim testimony in order to obtain a conviction. Unfortunately, many victims refuse to testify at the outset, agree to testify then change their minds, or do not show up for the court date. Without that testimony, prosecutors will often drop the charges against an accused, possibly putting the victim at risk of another episode of violence.

Justice Scalia opened the door to the possibility of a prosecutor being …

Enforcing Statutory Maximums: How Federal Supervised Release Violates The Sixth Amendment Rights Defined In Apprendi V. New Jersey, Danny Zemel

Law Student Publications

The Sixth Amendment commands that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the …

Boilerplate Dataset, James Gibson

Law Faculty Publications

No abstract provided.

Boilerplate’S False Dichotomy, James Gibson

Law Faculty Publications

The argument against enforcing boilerplate contracts (contracts that no one reads) seems clear. Indeed, if this were a court case we would say that the jury is in; the evidence against boilerplate is overwhelming. Yet the judge has yet to render judgment. Courts continue to enforce boilerplate terms, and even those scholars who have exposed boilerplate as an emperor with no clothes are reluctant to gaze upon its nakedness and condemn its use.

This reluctance originates in an assumption that pervades the boilerplate debate—namely, that courts and commentators alike view boilerplate as necessary to the modern transaction. When asked to …

The Problem With Ptab's Power Over Section 101, Kristen Osenga

Law Faculty Publications

The doctrine of patent eligible subject matter under 35 U.S.C. § 101 is a “real mess.” Other apt terms to describe this doctrine, and the jurisprudence surrounding it, include “chaos” and “crisis.” Few question whether patent eligible subject matter is a problem; however, many do not realize how high the stakes are and how dire the consequences. The erosion of patent protection, in part due to the “chaos,” impacts the willingness of companies to invest in innovation. This is especially true in today’s most important technologies where innovations occur in the spaces most likely to be flagged as ineligible subject …

The New(Clear?) Electricity Federalism: Federal Preemption Of States’ “Zero Emissions Credit” Programs, Joel Eisen

Law Faculty Publications

This Article proposes and applies a “conscious disregard” test for resolving the upcoming appellate litigation that involves the conflict between federal authority over the electric grid and state laws providing subsidies to nuclear power plants in the form of “zero emissions credits” (ZECs). This test draws upon principles of conflict preemption, as elaborated in three recent Supreme Court decisions on the intersection of state and federal jurisdiction over the electric grid under the Federal Power Act. It provides that if a state law explicitly aims to directly affect wholesale electricity market prices, terms or conditions, its subsidy program is impermissible …

Jurisdictional Idealism And Positivism, John F. Preis

Law Faculty Publications

“If I should call a sheep’s tail a leg, how many legs would it have? Four, because calling a tail a leg would not make it so.” This old quip, often attributed to Abraham Lincoln, captures an issue at the heart of the modern law of subject matter jurisdiction. Some believe that there is a Platonic ideal of jurisdiction that cannot be changed by judicial or legislative fiat. Others take a positivist approach and assert that jurisdiction is nothing more than whatever a legislature says it is. Who is right?

Neither and both. Although neither idealism nor positivism is the …

Gender Disparity In Law Review Citation Rates, Christopher A. Cotropia

Law Faculty Publications

Gender disparity in scholarly influence – measured in terms of differential citation to academic work – has been widely documented. The weight of the evidence is that, in many fields of academic inquiry, papers authored by women receive fewer citations than papers authored by men. To investigate whether a similar gender disparity in scholarly influence exists in legal studies we analyze the impact of gender on citation to articles published in top 100 law reviews between 1990 and 2010. We find evidence of gender disparity in citation rates, but in surprising contrast to observations made in other disciplines, we observe …

Free Trade In Electric Power, Joel Eisen

Law Faculty Publications

This Article develops the core legal framework of a new electricity-trading ecosystem in which anyone, anytime, anywhere, can trade electricity in any amount with anyone else. The proliferation of solar and other distributed energy resources, business model innovation in the sharing economy, and climate change present enormous challenges — and opportunities — for America’s energy economy. But the electricity industry is ill equipped to adapt to and benefit from these transformative forces, with much of its physical infrastructure, regulatory institutions, and business models a relic of the early days of electrification. We suggest a systematic rethinking to usher in a …

Enforcing The Rights Of Due Process: The Original Relationship Between The Fourteenth Amendment And The 1866 Civil Rights Act, Kurt T. Lash

Law Faculty Publications

For more than a century, legal scholars have looked to the 1866 Civil Rights Act for clues regarding the original meaning of the Fourteenth Amendment. Because the 1866 version of the Act protected only citizens of the United States, most scholars believe that the Act should be used as a guide to understanding the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause. A close look at the original sources, however, reveals that the 1866 Civil Rights Act protected rights then associated with the requirements of due process. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly described …