Law Commons^™

Blackness As Disability?, Kimani Paul-Emile

Faculty Scholarship

No abstract provided.

Also, No, Ethan J. Leib

Faculty Scholarship

No abstract provided.

Does Adr’S “Access To Justice” Come At The Expense Of Meaningful Consent?, Jacqueline Nolan-Haley

Faculty Scholarship

Over the last forty years, ADR processes, in particular mediation and arbitration, have been advanced as vehicles to secure access to justice for individual litigants and to improve efficiency in overburdened court systems. These processes have functioned as alternatives to the court adjudication of disputes, complementing the judicial system, and operating in what has been famously described as “the shadow of the law. The primary benefits promised by ADR were party autonomy and empowerment. ADR processes would allow parties to “fit the forum to the fuss.” These processes would give parties the opportunity to create their own mosaic of justice, …

Resolving The Crisis In U.S. Merger Regulation: A Transatlantic Alternative To The Perpetual Litigation Machine, Dan Awrey, Blanaid Clarke, Sean J. Griffith

Faculty Scholarship

Regulation by litigation has driven U.S. merger regulation to crisis. The reliance on private lawsuits to police disclosures and potential conflicts of interest in mergers, takeovers, and other control transactions has resulted in the filing of claims after every major transaction. However, it has failed to achieve meaningful benefits for shareholders and has instead deprived them of potentially valuable rights. Regulation by litigation has devolved into attorney rent-seeking, and the raft of substantive and procedural reforms aimed at resolving the crisis has failed. There is an alternative to regulation by litigation. Drawing upon the code and panel-based models of merger …

John Marshall’S Long Game. Review Of John Marshall: The Man Who Made The Supreme Court By Richard Brookhiser, Marc Arkin

Faculty Scholarship

No abstract provided.

Can The President Control The Department Of Justice?, Bruce A. Green

Faculty Scholarship

No abstract provided.

Piracy And Due Process, Andrew Kent

Faculty Scholarship

No abstract provided.

New Majoritarian Constitutionalism, Joseph Landau

Faculty Scholarship

Ever since Alexander Bickel coined the phrase “countermajoritarian difficulty,” commentators have frequently described the Supreme Court as either a “majoritarian” or “counter-majoritarian” institution. In this heuristic dichotomy, the Justices either base constitutional law on their own independent and subjective interpretations or they rely on extrinsic indicators to determine constitutional meaning. In practice, however, this dichotomy is neither clearly evident, nor clearly applied, and a third approach—“New Majoritarian” Constitutionalism—has emerged. Under new majoritarian constitutionalism, the Court considers (1) the actual decisions of courts and juries; (2) legislative trends; (3) executive branch practices; and (4) geographic disparities within various jurisdictions. This model …

The Jury And Empire: The Insular Cases And The Anti-Jury Movement In The Gilded Age And Progressive Era, Andrew Kent

Faculty Scholarship

This Article argues that there was an important causal link, to date unrecognized, between the widespread dissatisfaction with the jury in the United States during the Gilded Age and Progressive era among many elite lawyers and judges and choices by U.S. policymakers and jurists about colonial governance in Puerto Rico and the Philippines. The story starts with the Insular Cases-landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to "incorporate" the territories into the …

The Law Of Nations And The Judicial Branch, Thomas H. Lee

Faculty Scholarship

No abstract provided.

Execution Methods In A Nutshell, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Integrative Information Platforms: The Case Of Zero-Rating, Olivier Sylvain

Faculty Scholarship

No abstract provided.

Christians And Pagans, Abner S. Greene

Faculty Scholarship

No abstract provided.

Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins

Faculty Scholarship

No abstract provided.

Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

No abstract provided.

Reaching To Restructure Across Borders (Without Over-Reaching), Even After Brexit, Susan Block-Lieb

Faculty Scholarship

Is there such a thing as “good” forum shopping? Courts and commentators have begun to articulate the “virtues” of at least some forum shopping, including forum shopping to resolve corporate insolvency or financial distress whether on a domestic or global basis. Especially within the European Union (EU), acceptance has grown of debtors’ efforts to qualify as eligible to access the forum best able to resolve their financial difficulties, even where the efforts involve substantial “fact shifting,” so long as these efforts occurred transparently and were neither abusive nor in bad faith. Growing acceptance of such efforts is partly the result …

But Maybe Everything That Dies Someday Comes Back, Martin S. Flaherty

Faculty Scholarship

Book review: The death of treaty supremacy: an invisible constitutional change. By David L. Sloss. New York: Oxford University Press, 2016. Pp. xiv + 472. Reviewed by Martin S. Flaherty.

Immigration As Commerce: A New Look At The Federal Immigration Power And The Constitution, Jennifer Gordon

Faculty Scholarship

The relationship of immigration law to the Constitution has long been incoherent. One result is that there is little clarity on the appropriate standard of review for constitutional violations when aspects of immigration law and policy are challenged in the federal courts. This Article advances the Commerce Clause as the anchor of a new understanding of the link between the government's immigration power and the Constitution. Despite the extensive early history of the Foreign Commerce Clause as the presumed source of the immigration power, it plays almost no role in immigration jurisprudence today, and few scholars have seriously considered its …

The Empirical Turn In Family Law, Clare Huntington

Faculty Scholarship

No abstract provided.

Confidentiality In Patent Dispute Resolution: Antitrust Implications, Mark R. Patterson

Faculty Scholarship

nformation is crucial to the functioning of the patent system, as it is for other markets. Nevertheless, patent licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents.

Several United States Supreme Court cases have condemned agreements that suppress market information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, …

Race And Rights In The Digital Age, Catherine Powell

Faculty Scholarship

No abstract provided.

A Semantic Framework For The Analysis Of Privacy Policies, Joel R. Reidenberg

Faculty Scholarship

No abstract provided.

Emoluments, Zones Of Interests, And Political Questions: A Cautionary Tale, Jed H. Shugerman, Gautham Rao

Faculty Scholarship

No abstract provided.

The Problem Of Monopolies & Corporate Public Corruption, Zephyr Teachout

Faculty Scholarship

No abstract provided.

Learning To Live With Judicial Partisanship: A Response To Cassandra Burke Robertson, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

No abstract provided.

Competitive Philanthropy: Charitable Naming Rights, Inequality And Social Norms, Linda Sugin

Faculty Scholarship

Income inequality today is at a high not seen since the 1920s, and one way the very richest display their wealth is through charitable giving. Gifts in excess of $100 million are no longer rare, and in return for their mega-gifts, the biggest donors get their names on buildings, an astonishingly valuable benefit that the tax law ignores. The law makes no distinction between a gift of $100 and a gift of $100 million. This article argues that the tax law of charity should focus on the very rich and harness the culture of philanthropy among the elite. The law …

Intermediary Design Duties, Olivier Sylvain

Faculty Scholarship

Online social networking applications and marketplaces enable users to discover ideas, people, places, and products. The companies behind these services purport to be little more than the conduits through which users socialize and transact business. It is on this premise that, pursuant to the Communications Decency Act (CDA), courts are reluctant to impose liability on intermediaries for their users' illegal online conduct. In spite of language in the statute that would limit the safe harbor to intermediaries that voluntarily moderate users' content and behavior, courts today refrain from granting immunity only in cases in which intermediaries "materially contribute" to illegal …

Finding Franklin, Marc Arkin

Faculty Scholarship

No abstract provided.

The Political Morality Of Convergence In Contract, Aditi Bagchi

Faculty Scholarship

One of the most interesting recent developments in contract law has been an academic and political effort to integrate private law. The proposed Common European Sales Law was ultimately withdrawn, and a series of setbacks, including the British referendum to exit the EU, has recast the politics of convergence. But it remains an objective for many European scholars. This essay considers the wisdom of convergence on a single law of transactions from the perspective of philosophical contract theory. The essay proceeds by disaggregating the rights at stake in contract law. It characterises the formal right to contract and describes its …

Contract And The Problem Of Fickle People, Aditi Bagchi

Faculty Scholarship

No abstract provided.