Digital Commons Network^™

Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each …

Table Of Contents & Masthead

Lewis & Clark Law Review

Front Matter contains Table of Contents, Masthead, and faculty for Lewis & Clark Law Review Volume 25, Issue 4.

Taking Corwin Seriously, Itai Fiegenbaum

Lewis & Clark Law Review

Corporate law’s most important development is founded on a misunderstanding of the channels and consequences of shareholder empowerment. The Article’s title references the seminal Delaware Supreme Court decision that ruled that a positive shareholder vote effectively insulates a friendly sale from judicial oversight. Central to Corwin’s reasoning is the notion that the shareholder vote provides an effective restraint against insider overreaching. Yet every deal that includes a premium over the market price is assured of shareholder approval. The doctrinal lynchpin’s real-life insignificance exposes a baffling inconsistency in contemporary takeover jurisprudence.

This Articles makes two novel contributions to the bourgeoning scholarship …

In Memoriam Professor Emeritus Egon Guttmon, Claudio Grossman, Walter A. Effross, David Snyder

Scholarly Articles in Law Reviews & Journals

When I think about Egon, the first thing that comes to mind are the memories when we met in 1982 at the Washington College of Law (WCL), where he was working as a full-time faculty member. I was coming at that time from my sabbatical in the Netherlands and as a Fulbright Scholar. From the beginning, Egon sought to provide me with a welcoming environment. He approached me, finding shared backgrounds and interests, which is always greatly appreciated, particularly when you are in a new institution. Egon noted that we both had an intellectual interest in international law. In addition …

For Grand Juries, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

In his provocative essay, Against Prosecutors, Professor Bennett Capers contributed to a now-robust conversation that was on the fringes just a decade ago. Although it remains to be seen whether the pendulum will swing away from the engagement with abolitionist theory that intensified in the wake of the May 2020 murder of George Floyd, a number of serious thinkers have staked out ground questioning the dogma that organs of the criminal legal system are inevitable.

Refusing to be burdened by conventions of the past, Capers trains his sights on another criminal justice institution—public prosecution. Although prosecutors long have been criticized …

The Invasion Of Ukraine: A Gross Violation Of International Law, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

In recent weeks, humanity has witnessed a war in Europe as a result of Russia’s unjustified invasion of Ukraine.

Civil Procedure: Personal Jurisdiction After Ford, Scott Dodson

The Judges' Book

No abstract provided.

International Law: A Roadmap For Foreign Official Immunity In U.S. Courts, Chimène I. Keitner

The Judges' Book

No abstract provided.

Griggs V. Duke Power Co., Angela Onwuachi-Willig, David Simson

Articles & Chapters

No abstract provided.

Lawyers And The Lies They Tell, Bruce Green, Rebecca Roiphe

Articles & Chapters

Noting that the First Amendment protects lies about the government made in the public square, this article explores whether lawyers’ free speech rights ought to be different from that of other speakers. The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of lawyers’ fiduciary relationships with courts and clients. But how much more demanding can the law be when it comes to lawyers’ speech — in this case, false political speech? Applying the current First Amendment framework, we question the bar’s assumption that lawyers’ speech outside of these contexts can be …

Mapping The Civil Justice Gap In Federal Court, Roger Michalski, Andrew Hammond

Faculty Articles

Unrepresented litigants make up a sizable and normatively important chunk of civil litigation in the federal courts. Despite their importance, we still know little about who these pro se litigants are. Debates about pro se litigation take place without sufficient empirical information. To help fill some of the gaps in our understanding of pro se litigants, this Article takes a new approach by mapping where pro se litigants live. Using a massive data set of 2.5 million federal dockets from a ten-year period, we obtained addresses of non-prisoner pro se litigants. We then geolocated these addresses and cross-referenced that information …

Lowering The Stakes Of The Employment Contract, Aditi Bagchi

Faculty Scholarship

Every country has to make hard choices about the distribution of entitlements. But employers control the entitlements that individual Americans enjoy to a far greater extent than those in other rich democracies. In this Essay, I argue that, in the absence of the political consensus necessary to deliver state solutions to political questions, employers here are assigned an exaggerated role in employees’ lives. Government incentives for and directives to employers have become a strategy of political deflection. The effect has been to raise the stakes of employment well beyond the scope of those terms and conditions that relate to attracting …

Retrospective Risk Allocation, Aditi Bagchi

Faculty Scholarship

No abstract provided.

The Dilemma Of Liberal Pluralism, Abner S. Greene

Faculty Scholarship

Supporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The …

Proxy Crimes And Overcriminalization, Youngjae Lee

Faculty Scholarship

A solution to the problem of “overcriminalization” appears to be decriminalization of certain crimes. This Essay focuses on a group of crimes that has been labeled “proxy crimes” as a candidate to be eliminated. What are proxy crimes? Douglas Husak defines them as “offenses designed to achieve a purpose other than to prevent the conduct they explicitly proscribe.” Michael Moore describes them as involving situations where we “use one morally innocuous act as a proxy for another, morally wrongful act or mental state.” Put that way, proxy crimes seem highly problematic, and Larry Alexander and Kimberly Ferzan bluntly put it, …

Inequality By Unnatural Selection: The Impact Of Tax Code Bias On The Racial Wealth Gap, Phyllis C. Taite

Faculty Articles

No abstract provided.

Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There Is The Possible Application Of Bostock V. Clayton County, Kevin D. Brown, Lalit Khandare, Annapurna Waughray, Kenneth G. Dau-Schmidt, Theodore M. Shaw

Articles by Maurer Faculty

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …

Four Perspectives On A Sustainable Future In Nosara, Costa Rica, Greg Munno, Álvaro Salas Castro, Tina Nabatchi, Christian M. Freitag

Articles by Maurer Faculty

The town of Nosara on Costa Rica’s Nicoya peninsula is home to a vibrant community of diverse residents and is adjacent to an important turtle nesting site. However, tensions between lifelong residents, more recent transplants, visitors, and developers have increased as more of the world discovers this once-isolated haven. Climate change, income inequality, and alienation from a distant government apparatus have further complicated effective land-use planning and fractured social cohesion. Using a mixed-method approach of in-depth interviews (n = 67), Q methodology (n = 79), and public deliberation (n = 88), we explored residents’ priorities for the future of their …

Tensions And Opportunity In Arctic Development And Stewardship, Cuslj

Canada-United States Law Journal

Adler, Jonathan; Doran, Charles; McCarney, Rosemary; Findlay, Martha Hall; Short, Hugh

Google V Oracle: A Comment And Call To Action Student Articles And Notes, Justine Pileggi

Canada-United States Law Journal

No abstract provided.

The Protection Of Environmental Law Under Nafta And Cusma: A Canadian Perspective Student Articles And Notes, George Moshenski-Dubov

Canada-United States Law Journal

No abstract provided.

Vermin Of Proof: Arguments For The Admissibility Of Animal Model Studies As Proof Of Causation In Toxic Tort Litigation, Kristen Ranges, Jessica Owley

Articles

Toxic torts is a body of law that aims to compensate individuals for harms they suffer from exposure to hazardous substances. To successfully bring a toxic tort claim, a plaintiff must prove the main elements of a general tort cause of action: duty, breach, causation, and damages. Causation in a toxic tort case is particularly challenging to prove given the nature of toxic substances. To prove the toxicant in question caused the damages alleged, plaintiffs often present expert testimony based on scientific studies. Animal model studies, in particular, can help factfinders understand the health implications of the toxicants at issue. …

Law And The Moral Dynamics Of Collective Action, Aditi Bagchi

Faculty Scholarship

Many moral demands on social groups cannot be met without cooperation among group members. In some cases, individual action does not advance the collective moral interest at all without some threshold level of cooperation by other group members. Is an individual required to act as if others will cooperate even if she knows that they will not? This Article argues that individuals may take into account the reality of pervasive noncooperation and decline to attempt cooperation. Only ex ante mandatory rules can solve moral collective action problems. In a political community, those rules are public law. The most compelling argument …

Principles Of Home Rule For The 21st Century, Nestor M. Davidson

Faculty Scholarship

This has been excerpted and adapted from the National League of Cities Principles of Home Rule for the 21st Century report. Read the full report at: https://www.nlc.org/wp-content/uploads/2020/02/Home-Rule-Principles-Rep ortWEB-2-1.pdf.

Art. 8.9 Ceta Investment And Regulatory Measures, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

Article 8.9 CETA on “Investment and Regulatory Measures” is at the centre of continuous and vigorous debate on how to ensure a proper balance between private business interests and the prerogative of States to regulate public welfare issue. The concerns expressed in the debate on the right to regulate are well-known. International investment agreements (IIAs) came under criticism due to their substantive protection standards, whose language is perceived as lacking in precision; as a consequence, they deliver too little policy flexibility. The protection standards together with the investor-State dispute settlement (ISDS) system, moreover, afford high levels of discretion to the …

In Memoriam: A Friend To The Law School, Sean J. Griffith

Faculty Scholarship

Phillip . Blumberg served as Dean of the University of Connecticut School of Law from 1974 to 1984. These remarks were first delivered at the University of Connecticut School of Law's tribute to Dean Blumberg, "Honoring Phillip I. Blumberg," held on December 10, 2021. They have been lightly editedfor publication.

Predicting Cybersecurity Incidents Through Mandatory Disclosure Regulation, Aniket Kesari

Faculty Scholarship

Cybersecurity risk is an increasingly common concern for organizations
that collect and maintain vast troves of data. In 2011, the United States
Securities and Exchange Commission (SEC) provided guidelines for how
publicly traded companies should convey these risks to potential investors. But
does this mandatory disclosure regime effectively serve this purpose in the
cybersecurity context? This Article uses machine learning and natural language
processing techniques to analyze firms’ mandatory risk disclosure statements,
predict which firms are at the greatest risk of suffering cybersecurity incidents,
and evaluate how well disclosure meets the goals of the broad regulatory
regime. More broadly, this …

Modification Requests In Community Associations: Do We Know What’S Reasonable?, Beth M. Gazes

Touro Law Review

The Fair Housing Act (“FHA”) as well as the New York State Human Rights Law (“HRL”) provide, inter alia, that qualifying individuals shall be granted reasonable modifications or accommodations to afford such individuals either full enjoyment of the premises or an equal opportunity to enjoy their dwelling, respectively. Both laws likely extend to common areas of the development but arrive at this protection in different ways. Namely, through the FHA’s implementing rules (“Rules”) and with guidance from the Department of Housing and Urban Development (“HUD”), courts have easily interpreted the FHA to extend to common areas but stop short …

Theft, Extortion, And The Constitution: Land Use Practice Needs An Ethical Infusion, Michael M. Berger

Touro Law Review

There are many ways in which property owners/developers interact with regulators. To the extent that texts and articles deal with the ethical duties of the regulators, they tend to focus on things like conflicts of interest. But there is more. This article will examine numerous other ways in which regulators may run afoul of ethical practice in dealing with those whom they regulate

Wyoming’S Wild Horse Ranch: History And Description Of A Socio-Ecological Experiment, Alex Sas-Jaworsky, John Derek Scasta

Human–Wildlife Interactions

The growing population of free-roaming horses (Equus ferus caballus) on western public rangelands has necessitated that federal agencies, such as the Bureau of Land Management (BLM) and U.S. Forest Service, develop novel approaches to curb growth including reproduction management. However, bureaucracy has hindered effective research and application of horse management on public lands and examples on private lands may present new solutions. Here we present the history and current population management strategy for the Wild Horse Ranch (WHR) located in southeastern Wyoming, USA, as an example of an ongoing private entity managing horses. Prior to 1985, this ~6,000-ha …