Digital Commons Network^™

Roads Not Taken On Affirmative Action, Robert L. Tsai

Faculty Scholarship

The law of affirmative action is a mess. In the short term, legal doctrine is constrained by path dependence, but its long-term future is murkier due to the many unforeseen contingencies. To regain a sense of the possible, this Article looks forward to the future of equality jurisprudence by looking backward. It recovers three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right …

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …

Border Trouble: Critical Reflections On The Canada-Us Safe Third Country Agreement Litigation, Efrat Arbel

All Faculty Publications

The Canada-US Safe Third Country Agreement (STCA) has been subject to two different legal challenges before three different Canadian courts and considered in five different judicial decisions. This notwithstanding, the litigation surrounding its legal validity is not yet conclusively determined. This article analyses all five STCA decisions to develop a critical reading of the leading decision as issued by the Supreme Court of Canada in 2023. It posits that the Supreme Court of Canada, like the appellate courts before it, erred in its understanding of the STCA. Specifically, the Court did not engage the facts on record in sufficient detail, …

Racial Bias, Accomplice Liability, And The Felony Murder Rule: A National Empirical Study, G. Ben Cohen, Justin D. Levinson, Koichi Hioki

Akron Law Faculty Publications

Two long criticized prosecutorial tools—the felony murder rule and the accomplice liability doctrine—play an outsized role in the operation of American homicide law. Though each of these tools have separately faced intense criticism for their resistance to the supposedly foundational principles of moral culpability and individual responsibility, their legacy is also defined by the way they function symbiotically and specifically to heighten racialized punishment. This Article addresses the weighty combined reach of the accomplice liability doctrine and felony murder rule, and proposes that racial bias has fueled the operation and survival of these tools. Specifically, it suggests that implicit racial …

The Promise Of Progressive Prosecution, G Ben Cohen

Akron Law Faculty Publications

This Article focuses on the promise and challenges of progressive prosecution through the lens of the election of Jason R. Williams to Orleans Parish District Attorney’s Office. Orleans Parish was the epicenter of mass incarceration, wrongful convictions, violence, and racism over the last thirty years. The election of Jason Williams as District Attorney in 2021 resulted in policy changes in the Orleans Parish District Attorney’s Office. In the first two years of the administration, incarceration rates dropped by one-third, impacting over one thousand people. Dozens of individuals serving draconian punishments for lowlevel offenses were resentenced. Eighteen individuals were exonerated. But …

National Identity And Economic Development In Market-Dominant Small Jurisdictions, Christopher M. Bruner

Scholarly Works

Small jurisdictions that are globally competitive in providing cross-border financial services—market-dominant small jurisdictions (MDSJs)—occupy fascinating and unique positions in global markets, reflecting the complexity of their linkages with major economies. This article explores how the distinctive features of MDSJs highlight important dimensions of the relationship between national identity and economic development. I review literatures that aim to explain how jurisdictions behave in the economic context, focusing on concepts of nationalism, national identity, and nation branding, and how such phenomena might impact one another. I then assess their application to the relationship between national identity and economic development in MDSJs, where …

Originalism And Historical Fact-Finding, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on the idea that it is simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the …

Sovereignty, International Law, And The Princely States Of Colonial South Asia By Priyasha Saksena (Oxford University Press 2023), Aryan Tulsyan, Prabhash Ranjan

National Law School Journal

Sovereignty, International Law, and the Princely States of Colonial South Asia by Priyasha Saksena is a significant academic intervention into understanding South Asia. The author maps how the various actors—the princely states, the British Crown, the East India Company (the company), and the anti-colonial nationalists—used international law, especially the vernacular of sovereignty, to advance their arguments and achieve their goals during the colonial struggle.

Empowering Consumer Rights And Community Welfare: Enhancing Corporate Accountability Through A Geographical Indication Licensing Policy, Akriti ., Sarang Sureshrao Khadkekar, Pinaki Ghosh

International Journal on Consumer Law and Practice

Geographical Indications are a unique form of intellectual property that can potentially improve social-economic welfare. The Indian GI Act is based on the concept of consumer welfare, which prevents market activities that can mislead or confuse consumers. Such confusion can be about the source of origin, the quality, or the reputation of the goods. However, several studies have shown the rampant use of GI names by unauthorized persons and Corporations, creating dangers of diluting the reputation of GI names. Such unauthorized use of GI names results in an unfair commercial advantage to these infringers. Not only that, a genuine consumer …

Churching Nimbys: Creating Affordable Housing On Church Property, Patrick E. Reidy, C.S.C.

Journal Articles

In recent years, faith communities across the United States have begun to create affordable housing on church property, inspired by sincerely held religious beliefs. Some are building microhomes behind their houses of worship. Others are converting residences once used by religious ministers—from rectories to abbeys to convents—into units for seniors and low-income families. Still others are repurposing their vacant schools, church parking lots, and undeveloped parcels of land for denser multifamily structures, from townhouses to apartment buildings. Within housing-advocacy circles and among faith communities, these continent-wide efforts to create affordable housing on church property have manifested an affirmative declaration: “Yes, …

Key Un Committee Clears Path For Crimes Against Humanity Treaty Negotiations, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

On Friday, Nov. 22, 2024, the United Nations Sixth (Legal) Committee took a pivotal decision to advance toward negotiations on a global treaty regarding the prevention and punishment of crimes against humanity. The move is the latest in a series of discussions that has taken place over the past six years and brings States one step closer to finally closing the nearly 80-year-old gap in international law to comprehensively address these grave crimes.

We have been tracking this process together since 2021 in a Just Security series on the potential draft treaty, and in a recent article we chronicled the …

The Pedagogical Value Of Clinical Amicus Advocacy, Steven J. Alagna

Scholarship@WashULaw

This Essay makes a case for why clinical appellate amicus advocacy is particularly well suited to foster valuable experiential learning in the public interest. First, the Essay explores amicus advocacy in general, including its purposes and effectiveness. The Essay then turns to a survey of the educational benefits of amicus opportunities. Importantly, the process of identifying and pursuing amicus-eligible cases is rife with pedagogical benefits, including maximizing student engagement by broadening the kinds of cases to which students can engage (especially incorporating an element of choice that empowers students to engage with legal questions that carry a personal valence), teaching …

Exiting The American Dream, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

Exit planning among U.S. citizens is on the rise. A confluence of worrisome domestic conditions— including societal violence, the curtailment of individual rights, and creeping authoritarianism— has prompted U.S. citizens to contemplate and plan for a possible departure from the country. Among the more popular exit pathways, particularly for minorities in the United States who have experienced or fear identity-based mistreatment, are programs that allow descendants of citizens or other members of the diaspora to acquire status in their ancestral homelands. Decades or even centuries after their ancestors’ arrival, present-day U.S. citizens are considering a return journey, thereby disrupting long-standing …

Protecting Free Speech In Social Media: A Pathway To Self-Determination In International Law, Sydney Marie Harley

Emory International Law Review Recent Developments

With the growth of Internet and social media usage, state regulatory action to surveil and censor citizens is running rampant. As the principle of self-determination stands, minority populations are typically bearing the brunt of these attacks, receiving little protection under domestic and international law. Self-determination within international law must be restructured into a definitive pathway that includes protecting the freedom of speech to encourage discourse and tolerance between the State and its minority populations. This article proposes a solution that could fill the gap in international law formed by insufficient domestic rule in States that neglect to protect these populations …

A Trap For Local Governments: Legislative Exactions After Sheetz V. County Of El Dorado, Andrew Klemm

Case Western Reserve Law Review

No abstract provided.

Repurposed Energy, Hannah Jacobs Wiseman, Alexandra Klass

Faculty Scholarship

Wildfires, weather extremes, and other conditions induced partially by climate change add urgency to the project of accelerating the clean energy transition from fossil fuels to zero-carbon energy infrastructure. Yet the hurdles to accomplishing such a massive industrial-scale transition are daunting. Indeed, large renewable energy generation projects regularly face denials or project-killing delays across the United States. This Article proposes a national policy to channel the bulk of new clean energy projects to targeted categories of both rural lands and urban, post-industrial lands that we define collectively as “repurposed energy” sites. Such lands will consist of marginal farmland, abandoned coal …

Are Holocaust Denial Laws And Critical Race Theory Bans The Same?, Rob Kahn

Cardozo International & Comparative Law Review

Florida's education rules list Holocaust denial and critical race theory ("CRT") as "theories that distort the past." This is not a fair comparison. Holocaust denial laws and CRT bans are analytically distinguishable. Holocaust denial laws were originally intended to fight hate, and this is the only reason they might be legitimate today. By contrast, CRT bans, for all their well-meaning language aboutprotecting childrenfrom race-based accusations of guilt, intend to silence the past. Indeed, the CRT bans are uncannily similar to the laws used in Turkey to ban discussion of the Armenian Genocide in schools. While one might reject both sets …

Constructing A Taxonomy Of Financial Consumer Protection Policy And Assessing The New Consumer Duty In The United Kingdom's Financial Sector, Iris H-Y Chiu, Wai-Yee Wan

Cardozo International & Comparative Law Review

The article critically examines the UK's Consumer Duty, introduced by the Financial Conduct Authority (FCA), arguing that while it represents a significant step in financial consumer protection, it falls short in addressing welfare outcomes and distributive justice. The Duty focuses on consumer empowerment but neglects key aspects of consumer citizenship, such as access to essential financial services and guarantees of product quality. The article proposes a taxonomy of consumer protection levels to evaluate the Duty's effectiveness and advocates for a more robust framework that prioritizes financial inclusion and long-term consumer welfare.

Battling The Form: A Front-End Approach To Default-Use Noncompetes, Rachel Arnow-Richman

University of Florida Journal of Law & Public Policy

A growing consensus holds that employer overuse of noncompete agreements adversely affects workers and the economy. But there is little agreement on how best to regulate these instruments. States have experimented with an array of idiosyncratic reforms that capture the most egregious misuses, while the Federal Trade Commission (FTC), has issued an outright ban that would prohibit all employee noncompetes and comparable instruments nationwide.

This Article argues that any effective reform strategy must target what it terms “default-use” noncompetes—boilerplate restraints imposed by employers as a matter of course without close consideration of their underlying justification. Some unlawful noncompetes are clearly …

The Rise Of Labor Issues As An Antitrust Priority, Richard Dagen, Maryanne Magnier

Emory Business Law Review

No abstract provided.

How To Connect The Unconnected: Broadband Policy In Colorado, Nicole Genevieve Ela

Colorado Technology Law Journal

No abstract provided.

Settlement As Construct: Defining And Counting Party Resolution In Federal District Court, Charlotte S. Alexander, Nathan Dahlberg, Anne M. Tucker

Scholarly Works

Most civil cases settle. Yet generating a definitive settlement rate presents complex definitional and empirical problems, both in what should count as a settlement and how to count it. This Essay makes three contributions to better understanding and defining settlement. First, we propose a flexible, empirically informed, operationalizable definition of settlement as party resolution. Second, we exploit a new federal litigation data source to count party resolutions using machine learning models trained on 11 million docket sheet entries. Third, we offer new findings on party resolution frequency and distribution in the federal courts. Settlement is more widely and differently deployed …

Modern Disaster Fragmentation, Abigail E. André

Fordham Law Review

Natural disasters test us. They exist at the intersection of nature, law, and society to show us where our systems are failing. Beyond physical damage, they magnify weaknesses in our socioeconomic and legal systems. In an attempt to leverage the lessons disasters bring, this Article analyzes the administrative institutions that govern disaster relief from the perspective of law, history, equity, and institutional design. This intersectional analysis uncovers a system fragmented by centuries of disorganization and infused with socioeconomic discrimination. Minor revisions cannot fix our federal approach to disaster relief: an institutional overhaul is required to achieve good governance.

The Tipping Point: Network Effects Of Tipping Quick-Service Restaurant Cashiers, Bree Hall

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Environmental Justice Beyond 2°C, Clifford Villa

Faculty Scholarship

In the last four decades, average temperatures have risen significantly across the United States, with Alaska and New Mexico among the fastest warming states. Since 1970, average temperatures in New Mexico have risen 3.5 degrees Fahrenheit (°F)—or nearly 2 degrees Celsius (°C). The international scientific community has urged world leaders to contain global warming above pre-industrial levels to 1.5°C ideally, and to 2°C at worst. Current trajectories, however, suggest we may shoot past 2°C of global warming this century and enter a world of 3-4°C or beyond... The “trade offs” and “letting go” as we confront the looming 4°C world …

Symposium Introduction: The Effect Of Dobbs On Work Law, Nicole Buonocore Porter

Faculty Publications

In March 2023, Chicago-Kent College of Law hosted a symposium—The Effect of Dobbs on Work Law—to explore the ways that the Dobbs abortion decision has affected the workplace. The presenters at that live symposium wrote articles that are being published in this journal. As the host of the symposium and the Editor of this Journal, I use this Article to introduce the articles in this symposium issue and to provide my reflections on them. I also briefly address the topic that I presented at the symposium—the effect of Dobbs on people with disabilities.

How Poor Is Poor Enough? How Jurisdictional Differences In Implementing The Right To Counsel Affect Indigent Native Americans, J. Santana Spangler-Day

American Indian Law Review

No abstract provided.

Local Visions For Patagonia: Drivers And Dynamics Of Collaborative Environmental Governance In Aysén, Chile, Zachary J. Hummel

Graduate Student Theses, Dissertations, & Professional Papers

Collaborative governance (CG) has emerged as a tool for addressing increasingly complex societal problems by engaging a diverse of set of cross-sector actors in a deliberative process with the aim of realizing consensus-driven outcomes. Emerson et al.’s (2011) Integrated Framework for Collaborative Governance (IFCG) attempts to improve understanding of these arrangements by articulating causal connections between collaborative drivers and dynamics across different contexts. Answering researchers’ call for more empirical support for the IFCG in non-US/European contexts, I used the framework to guide 10 interviews with collaborative governance practitioners in the comanaged marine protected area, AMCP-MU Pitipalena Añihue, located in Aysén, …

Origins Of Russian Membership In The Council Of Europe And The Seeds Of Russia's Expulsion, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

The story of Russia’s membership in the Council of Europe now has a beginning, a middle, and an end. What can we learn about the values of this international organization, and its preeminent human rights convention, from Russia’s inclusion in them? Was Russia’s membership “worth it”? Any attempted answer must produce more questions: from which perspective – Russia’s, the Council’s, other Member States’ – should the effects of Russian membership be evaluated? How did the Council of Europe change Russia (if Russia was, indeed, changed) and how did Russia change the Council of Europe?

This paper examines the beginning of …

Reconstruction, And The Unfulfilled Promise Of Antitrust, Greg Day, Bennett Capers

Scholarly Works

Wealth inequality remains as wide, and as troubling, as it was a half-century ago. While scholars have offered various explanations, there is a contributor that has escaped serious scrutiny: state monopoly power. It is not just that there is a long history of states and municipalities using their monopoly power to protect dominant interests, from enacting Black Codes to shuttering Chinese laundries to barring women, immigrants, and minorities from certain professions. It is also that states continue to use their monopoly power in ways that entrench inequality, from zoning restrictions to eminent domain to regulations that, in effect, bar Black …