Law Commons^™

Boilerplate: What Consumers Actually Think About It, Franklin G. Snyder, Ann M. Mirabito

Faculty Scholarship

One of the most difficult problems in modem contract law is the status of standard terms-often called "boilerplate"-in consumer transactions. On the one hand, standard terms are good because they reduce costs and increase efficiency and predictability. On the other hand, they can be used to impose unfair terms on consumers and even to evade important public policies. There is thus a vast and growing literature on the topic.

We know for a fact that most consumers do not read standard terms. They will not read them before they sign the writing or click "I agree" or "Buy now" on …

Senate Bill 1383 Stinks, Steffani Fausone

Student Scholarship

Climate change is no longer a prediction; it is a reality. Part of the climate change conversation revolves around increased methane emissions, focusing on the agricultural industry as a culprit. To address these concerns, the California legislature recently passed Senate Bill 1383, which aims to reduce methane emissions from one agricultural industry in particular--dairies. This far-fetched bill is the first in the country to attempt to regulate methane from dairy cattle. With so much uncertainty surrounding this bill's effects, this Comment argues that the bill will hurt the dairy industry more than it helps combat climate change. This Comment also …

Tax Policy For The Wider Cryptoverse, Arild B. Doerge

Student Scholarship

The rapid rise of Bitcoin and other “cryptoassets” offers many interesting technological capabilities but also comes with uncertainty and volatility in the markets for these assets. The diversity of types of cryptoassets is increasing rapidly, while public understanding and government policy have generally been slow to take account of this diversity. In regard to taxation policy related to cryptoassets, current IRS guidance merely categorizes cryptoassets as general property. The policy implications of this classification run contrary to fundamental goals of tax policy by inhibiting how people use cryptoassets, making compliance more complex and ambiguous than necessary, and taxing cryptoasset transactions …

A Natural Right To Copy, Glynn Lunney

Faculty Scholarship

In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the "no-harm" principle of John Locke to justify copyright as natural right and then used his “enough-and-as-good” proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth …

The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat C. Mungan

Faculty Scholarship

It is considered axiomatic that defamation law protects reputation. This proposition—commonsensical, pervasive, and influential—is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.

Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases can …

A Literary Lens Into Constitutional Interpretation And A Possible Synthesis Of Natural And Positive Law: The Silmarillion, Charles Edward Andrew Lincoln Iv

Student Scholarship

The nature of identity in the United States lies in the Constitution. Perhaps this is due to “veneration” of the document. It has also been argued that the Declaration of Independence holds a seminal role in the American identity.

The rift seems to occur with the concept of a “living constitution,” whereby the concept of an ever-evolving jurisprudence allows for an evolving interpretation of the Constitution as society changes.

This rift can be demonstrated by the world of J.R.R. Tolkien. In The Lord of the Rings and Silmarillion, the various languages of groups of Middle Earth represent and have distinct …

The Implications Of Environmental Law And Latino Property Rights On Modern-Age Border Security: Rejecting A Physical Border And Embracing A Virtual Wall, Kevin Hernandez

Student Scholarship

For many, the construction of a physical border is a rational solution to national security concerns at the southern border. However, there is much evidence indicating that the negative impacts of building a physical border wall far outweigh its benefits. Particularly, the border region’s eco-systems have much to lose in the form of extinctions, biodiversity reduction, and critical habitat destruction. On top of that, a number of Latino communities would be the victims of various eminent domain claims that would strip them of land that, in many cases, has been in their family for multiple gener- ations. The broad, almost …

Smile, You're On Camera: A Discussion Of The Privacy Rights Of Teachers In The Modern Day Classroom, Dakota Brewer

Student Scholarship

Part II of this Article will first explain the purpose of wiretap (or recording) laws. It will then track the development of wiretap laws at the federal and state levels and illustrate several important distinctions. Part III will discuss the evolution of the Fourth Amendment in the United States. It will also examine how the Fourth Amendment and wiretap laws work together and how they apply to teachers. Part IV will look at the inadequacy of current legal remedies available to teachers who are surreptitiously recorded. It will then set forth possible district and classroom policies to help prevent recordings. …

Community In Property: Lessons From Tiny Homes Villages, Lisa T. Alexander

Faculty Scholarship

The evolving role of community in property law remains undertheorized. While legal scholars have analyzed the commons, common interest communities, and aspects of the sharing economy, the recent rise of intentional co-housing communities re-mains relatively understudied. This Article analyzes tiny homes villages for unhoused people in the United States, as examples of co-housing communities that create a new housing tenure—stewardship—and demonstrate the growing importance of community, co-management, sustainability, and flexibility in con-temporary property law. These villages’ property relationships challenge the predominance of individualized, exclusionary, long-term, fee simple ownership in contemporary property law and exemplify property theories such as progressive property …

Righting The Ship: What Courts Are Still Getting Wrong About Electronic Discovery, Tanya Pierce

Faculty Scholarship

What happens when law changes but courts and lawyers ignore the changes? On December 1, 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of those amendments includes a sweeping change to Rule 37(e), dealing with the availability of sanctions in federal courts for lost or destroyed electronically stored information (ESI). In the last few years, however, a number of courts have interpreted the amended rule in ways at odds with its plain language and underlying policies, and a surprising number of courts continue to ignore the amended rule altogether. This article examines those trends and …

Liquid Business, Vanessa Casado-Pérez

Faculty Scholarship

Water is scarcer due to climate change and in higher demand due to population growth than ever before. As if these stressors were not concerning enough, corporate investors are participating in water markets in ways that sidestep U.S. water law doctrine’s aims of preventing speculation and assuring that the holders of water rights internalize any externalities associated with changes in their rights. The operation of these new players in the shadow of traditional water law is producing elements of inefficiency and unfairness in the allocation of water rights. Resisting the polar calls for unfettered water markets, or, contrarily, the complete …

Access To Law Or Access To Lawyers? Master's Programs In The Public Educational Mission Of Law Schools, Mark Burge

Faculty Scholarship

The general decline in juris doctor (“J.D.”) law school applicants and enrollment over the last decade has coincided with the rise of a new breed of law degree. Whether known as a master of jurisprudence, juris master, master of legal studies, or other names, these graduate degrees all have a target audience in common: adult professionals who neither are nor seek to become practicing attorneys. Inside legal academia and among the practicing bar, these degrees have been accompanied by expressed concerns that they detract from the traditional core public mission of law schools—educating lawyers. This Article argues that non-lawyer master’s …

Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl

Faculty Scholarship

Multilateral treaties today rarely touch on subjects where there is no domestic law in the United States, In the U.S. federal system, this domestic law may not be national law, but law of the constituent States of the United States. However, in light of the U.S. Constitution Article VI, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government …

Online Legal Document Providers And The Public Interest: Using A Certification Approach To Balance Access To Justice And Public Protection, Susan Saab Fortney

Faculty Scholarship

The Internet and electronic communications have revolutionized how consumers obtain legal information and assistance. The availability of legal forms and services has developed at lightning speed and countless consumers are using these forms, rather than consulting attorneys. At the same time, many regulators of the legal profession appear to be frozen in time. Some take the position that the provision of interactive forms amounts to the unauthorized practice of law and others question arrangements that appear to involve the sharing of legal fees with non-lawyers. Even for those interested in regulating the provision of on-line services, one complication to doing …

Dr. Jekyll & Mr. Holmes: A Tale Of Two Testaments, Stephen R. Alton

Faculty Scholarship

Author's Note: This Article takes the form of an epistolary exchange across the centuries, comparing and contrasting two noted wills in Victorian literature. To preserve verisimilitude, the author lets these letters and emails speak for themselves, without any formal introduction, just as would have occurred in Victorian epistolary fiction. It is the author's hope that the relevant testaments and the legal issues they present will make themselves clear as these exchanges proceed. Any reader desiring a more formal introduction to this Article is directed to the first email (below) written by the author to Mr. Utterson and Mr. Holmes; this …

The State Of Exactions, Timothy M. Mulvaney

Faculty Scholarship

In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of circumstances involving conditional land use permits in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent …

Disguised Patent Policymaking, Saurabh Vishnubhakat

Faculty Scholarship

Patent Office power has grown immensely in this decade, and the agency is wielding its power in predictably troubling ways. Like other agencies, it injects politics into its decisions while relying on technocratic justifications. It also reads grants of authority expansively to aggrandize its power, especially to the detriment of judicial checks on agency action. However, this story of Patent Office ascendancy differs from that of other agencies in two important respects. One is that the U.S. patent system still remains primarily a means for allocating property rights, not a comprehensive regime of industrial regulation. Thus, the Patent Office cannot …

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2018 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions.

The Paradox Of Minority Attorney Satisfaction, Milan Markovic, Gabrielle Plickert

Faculty Scholarship

A substantial literature documents the challenges faced by minority attorneys in the legal profession, ranging from underrepresentation in prestigious practice settings and lower incomes to discrimination from fellow lawyers, clients, and judges. In light of the foregoing, one would expect minority attorneys to regret their decisions to attend law school and become lawyers. Yet, empirical research indicates that minority attorneys are predominately satisfied with their decision to become attorneys and that their satisfaction is on par with that of white attorneys. How to account for this seeming paradox?

Drawing on data from a large cross-section of Texas lawyers, this is …

The Safe And Efficient Development Of Offshore Transboundary Hydrocarbons: Best Practices From The North Sea And Their Application To The Gulf Of Mexico, Elise Aldendifer, Mckenzie Coe, Taylor Faught, Ian Klein, Peter Kuylen, Keeli Lane, Robert Loughran, Kristin Newby, Morgan Parker, Megan Pharis, John Thomas, Braxton Wood

EENRS Program Reports & Publications

Offshore hydrocarbon resources have been developed for many decades, and with technology improvements, many fields which were once impossible to develop, are now economically and technologically feasible. This has led to a growing difficulty in determining the legislative and regulatory framework for resources that straddle the recognized borders between two states. In this paper, we examine a successful framework agreement governing the transboundary resources between the United Kingdom (“U.K.”) and Norway in the North Sea, and the agreement between the United States and Mexico governing the Gulf of Mexico. Following the 2013 Energy Reform, the Mexican energy sector has been …

Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, Meg Penrose

Faculty Scholarship

How do we evaluate a Supreme Court that writes more than it decides? Despite having the lowest decisional output in the modern era, the Roberts Court is the most verbose Supreme Court in history. The current Justices are more likely than past Justices to have their individual say in cases, writing more concurring and dissenting opinions than prior Courts. These opinions are longer, often strongly worded, and rarely add clarity to the underlying decision. The Roberts Court has shifted from being a decisional body to becoming an institution that comments on more cases than it decides.

This article critiques the …

Assigned Counsel Mentoring Programs: Results And Lessons From Two Pilot Projects, Susan Saab Fortney

Faculty Scholarship

Working with a team of three subject matter experts, the National Legal Aid and Defender Association implemented and evaluated two pilot mentoring projects aimed at helping lawyers who serve as assigned counsel. This report discusses the program design, evaluation outcomes, and offers guidance through lessons learned for other jurisdictions interested in introducing assigned counsel mentoring programs. The author of the report was the principal investigator who evaluated the programs.

This project was supported by grant number 2015-AJ-BX-K043 awarded by the Bureau of Justice Assistance, Office of Justice Programs to the National Legal Aid and Defender Association. The opinions, findings, and …

A Tale Of Two Copyrights, Glynn Lunney

Faculty Scholarship

This essay explores two possible copyright regimes. The first uses costless and perfect price discrimination to enable copyright owners to capture the full market or exchange value of their work. The second also uses costless and perfect price discrimination, but allows copyright owners to capture only the persuasion cost for authoring and distributing a work. We can call the first regime, costless copyright maximalism, and the second, costless copyright minimalism. The choice between these two regimes is primarily distributional: Should we design copyright to allocate the surplus associated with copyrighted works to copyright owners or to copyright consumers? This essay …

Sane Gun Policy From Texas? A Blueprint For Balanced State Campus Carry Laws, Aric Short

Faculty Scholarship

merican universities are caught in the crosshairs of one of the most polarizing and contentious gun policy debates: whether to allow concealed carry on campus. Ten states have implemented "campus carry" in some form; sixteen new states considered passage last year; and a growing wave of momentum is building in favor of additional adoptions. Despite this push towards campus carry, most states adopting the policy fail to strike an effective balance between the competing rights and interests involved. When states give universities the option to opt out of the law, for example, they almost always do. Other states impose a …

Conferring Legal Personality On The World's Rivers: A Brief Intellectual Assessment, Gabriel Eckstein, Ariella D'Andrea, Virginia Marshall, Erin O'Donnell, Julia Talbot-Jones, Deborah Curran, Katie O'Bryan

Faculty Scholarship

The following compilation is substantially reproduced and adapted from a series of essays that appeared in the blog of the International Water Law Project (www.inter nationalwaterlaw.org). The series was solicited in response to the unique recent phenomenon in which a number of courts and legislatures around the world have conferred legal personality on particular rivers. What resulted is a fantastic, thoughtprovoking and timely compilation.

In effect, various water bodies around the world have been accorded legal rights – some though legislative actions and others via judicial decisions – that in some jurisdictions, equate with those recognized in human beings. Although …

Renewed Efficiency In Administrative Patent Revocation, Saurabh Vishnubhakat

Faculty Scholarship

Administrative patent revocation in the U.S. is poised to enter a new period of efficiency, though ironically it will be an efficiency that the America Invents Act originally put in place. The Court’s recent approval of the constitutionality of Patent Trial and Appeal Board ("PTAB") proceedings was blunted by the Court’s accompanying rejection of partial institution. This Patent Office practice of accepting and denying validity review petitions piecemeal had been a key part of the agency’s procedural structure from the start. As a result, the Court’s decision in SAS Institute v. Iancu to require a binary choice — either fully …

Historic Partition Law Reform: A Game Changer For Heirs’ Property Owners, Thomas W. Mitchell

Faculty Scholarship

Over the course of several decades, many disadvantaged families who owned property under the tenancy-in-common form of ownership—property these families often referred to as heirs’ property—have had their property forcibly sold as a result of court-ordered partition sales. For several decades, repeated efforts to reform State partition laws produced little to no reform despite clear evidence that these laws unjustly harmed many families. This paper addresses the remarkable success of a model State statute named the Uniform Partition of Heirs Property Act (UPHPA), which has been enacted into law in several States since 2011, including in five southern States. The …

The Mixed Case For A Ptab Off-Ramp, Saurabh Vishnubhakat

Faculty Scholarship

This Essay begins from the emerging agenda in the political branches for reforming various aspects of the USPTO Patent Trial and Appeal Board, and focuses on a particular reform: the creation of a PTAB off-ramp whereby a patent being challenged in an administrative revocation proceeding could be removed into a system primarily aimed at amending its claims and preserving its validity. To put the proposal into perspective, the Essay presents specific empirical trends, largely unexplored until now, that implicate patent reliance interests to which the PTAB has done injury. Ultimately, because the benefits and costs from a PTAB off-ramp are …

Bakke’S Lasting Legacy: Redefining The Landscape Of Equality And Liberty In Civil Rights Law, Rachel F. Moran

Faculty Scholarship

The fortieth anniversary of Regents of the University of California v. Bakke is worth commemorating simply because the decision has survived. The United States Supreme Court’s opinion upholding the use of race in admissions has had remarkable staying power, even as other programs of affirmative action, for example, in government contracting, have been struck down as unconstitutional. That longevity might seem surprising because Bakke set forth an exacting standard of strict scrutiny under equal protection law that renders all race-based classifications suspect, whether government officials are motivated by benign or invidious purposes. That standard is one that few programs can …

Legal Mechanisms For Mitigating Flood Impacts In Texas Coastal Communities, Philip Bedford, Alexis Long, Thomas Long, Erin Milliken, Lauren Thomas, Alexis Yelvington

EENRS Program Reports & Publications

Flooding is a major source of concern for Texas’ coastal communities. It affects the quality of infrastructure, the lives of citizens, and the ecological systems upon which coastal communities in Texas rely. To plan for and mitigate the impacts of flooding, Texas coastal communities may implement land use tools such as zoning, drainage utility systems, eminent domain, exactions, and easements. Additionally, these communities can benefit from understanding how flooding affects water quality and the tools available to restore water bodies to healthy water quality levels. Finally, implementing additional programs for education and ecotourism will help citizens develop knowledge of the …