Digital Commons Network^™

Reprint: The Rule Of Law: Mcgirt V. Oklahoma And The Recognition Of The Muscogee (Creek) Reservation, C. Steven Hager

American Indian Law Review

No abstract provided.

Tributes To Steve Hager, Kace Rodwell, Michael Colbert Smith, Stephanie Hudson

American Indian Law Review

No abstract provided.

Toward More Robust Self-Regulation Within The Legal Profession, Veronica Root Martinez, Caitlin-Jean Juricic

Faculty Scholarship

The Trump Administration left reverberations throughout American life, and the legal profession was not insulated from its impact. The conduct of lawyers—both public and private—working on behalf of former President Trump was the subject of constant conversation and critique. The reality, however, is that the questions regarding the conduct of the Trump Administration lawyers, are rooted, in part, in more fundamental questions about the appropriate role of the lawyer within society. This Essay advocates for the adoption of a self-regulation scheme whereby lawyers regulate and oversee the conduct of other lawyers, to ensure that members of the legal profession are …

Saying The Quiet Parts Out Loud: Teaching Students How Law School Works, Alexa Z. Chew, Rachel Gurvich

Faculty Publications

The summer of 2020 was an inflection point for legal education’s relationship with racial and other inequities. After Minneapolis police murdered George Floyd, faculty, administrators, and students spoke out with increased urgency about the need to address race in law school curricula. For example, professors sought to give race context to cases found in law school casebooks by not presenting judicial opinions as neutral statements of the law. Many law schools, including our own, formally (re)dedicated themselves to helping students recognize and analyze structural inequalities and how the law perpetuates them.

Law schools focused on what their faculty and graduates …

Eviction Courts, Kathryn A. Sabbeth

Faculty Publications

This Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact.

The Article identifies ten groups of laws that structure critical design features of eviction courts: (1) filing fee statutes that make …

A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan

Faculty Scholarship

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.

This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which …

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

Faculty Scholarship

The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of their fiduciary relationships with courts and clients. For instance, states can sanction lawyers for some speech inside a courtroom that would be protected if uttered by a non-lawyer. This Article explores whether lawyers’ free speech rights should also be different from those of other speakers when lawyers, acting on their own behalf, participate in political discourse. Applying the current First Amendment framework, the authors question the bar’s assumption that, simply because lawyers are subject to rules of professional conduct, courts can …

Nonprofit Board Composition, Atinuke O. Adediran

Faculty Scholarship

This Article addresses a critical gap in the literature and current debates about the composition of nonprofit boards. The law of fiduciary duties and nonprofit governance best practices do not provide sufficient guidance on how to compose boards to empower the communities they serve. And even as the corporate sector is seizing on current important moments to debate the inclusion of employees and racial and ethnic minorities on corporate boards, nonprofit boards are largely left out of these debates. The Article introduces the concept of board capital, which originated from the for-profit management literature, but has gained a stronghold in …

Negotiating Status: Pro Bono Partners And Counsels In Large Law Firms, Atinuke O. Adediran

Faculty Scholarship

Law firm pro bono work provides access to justice to low-income people and other vulnerable populations. The professionals that manage pro bono programs are at the forefront of that process. The limited available research on these professionals do not often distinguish lawyers from other managers or theorize about their status vis-à-vis other law firm lawyers. Yet the status of lawyers who are also managers of pro bono programs influences both their identities and the management and provision of legal services and advocacy. Drawing on original demographic and interview data, this article shows how law firm pro bono partners and counsels …

Horizontal Collusion And Parallel Wage-Setting In Labor Markets, Johnathan Masur, Eric A. Posner

Public Law and Legal Theory Working Papers

Horizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These factors …

Arbitration Case Law Updates 2021–2022 (June 2022), Sandra D. Grannum, Elissa Germaine

Faculty Publications

(Excerpt)

This article summarizes leading arbitration cases and related issues that are of particular relevance to the securities arbitration practitioner. There appears to be a move away from compelling arbitration and federal jurisdiction of motions to confirm or vacate. The courts have decided several cases specifically involving FINRA arbitrations, discussing who can bring them and what courts have jurisdiction over them.

In addition, the Federal Arbitration Act was amended by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, the title of which speaks for itself.

Anti-Discrimination Ethics Rules And The Legal Profession, Michael Ariens

Faculty Articles

“Reputation ought to be the perpetual subject of my Thoughts, and Aim of my Behaviour. How shall I gain a Reputation! How shall I Spread an Opinion of myself as a Lawyer of distinguished Genius, Learning, and Virtue.” So wrote twenty-four-year-old John Adams in his diary in 1759. He had been a licensed lawyer for just three years at that time and had already believed himself to be hounded by “Petty foggers” and “dirty Dablers in the Law”—unlicensed attorneys who, Adams claimed, fomented vexatious litigation for the fees they might earn.

Adams believed his embrace of virtue, along with genius …

Supported Decision-Making: Potential And Challenges For Older Persons, Morgan K. Whitlatch, Rebekah Diller

Articles

In recent years, supported decision-making (SDM) has gained traction as a recognized alternative to guardianship for persons with disabilities in the United States. To date, SDM has not been as widely recognized as an alternative for older people, particularly those struggling with cognitive decline. This paper explores some of the obstacles that have prevented SDM from being used more broadly by older people, identifies ways of surmounting some of those obstacles, and makes recommendations for ways that SDM can be used in the aging context.

Remote Justice & Domestic Violence: Process Pluralism Lessons From The Pandemic, Andrea K. Schneider, Heather Hlavka, Sameena Mulla, Erin Schubert, Aleksandra J. Snowden

Articles

Domestic violence procedures, like so many court processes around the world, were forced to go online and remote during the pandemic. The impact was dramatic—there were fewer restraining order petitions filed in the first place and an even lower amount granted. In short, domestic violence survivors, among the most vulnerable in our court system, were even more challenged in the last two years. Like many court systems, Milwaukee will never go back to being fully in-person for all procedures in conjunction with domestic violence. The evolving hybrid choices could provide additional access to justice, or these processes could create additional …

The Rules Of Professional Responsibility And Legal Finance: A Status Update, Anthony J. Sebok

Articles

Legal finance occurs when strangers fund litigation for profit. Traditionally looked upon with suspicion in the common law, and limited by the doctrines of champerty and maintenance, legal finance is now a thriving part of the American legal landscape. Legal finance has been promoted as a solution to the access-to-justice problems facing working and middle class Americans, as well as a new asset class for Wall Street. At the center of legal finance, however, are lawyers – not the lawyers who write the contracts for the financing – but the lawyers for the cases being financed.
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Ai, Equity, And The Ip Gap, Daryl Lim

SMU Law Review

Artificial intelligence (AI) has helped determine vaccine recipients, prioritize emergency room admissions, and ascertain individual hires, sometimes doing so inequitably. As we emerge from the Pandemic, technological progress and efficiency demands continue to press all areas of the law, including intellectual property (IP) law, toward incorporating more AI into legal practice. This may be good when AI promotes economic and social justice in the IP system. However, AI may amplify inequity as biased developers create biased algorithms with biased inputs or rely on biased proxies. This Article argues that policymakers need to take a thoughtful and concerted approach to graft …

Legal Liability For Artificially Intelligent "Robot Lawyers", Michael Loy

Lewis & Clark Law Review

This Comment discusses liability for the use of autonomous “robot lawyers” in the practice of law. A “robot lawyer” is an artificially intelligent (AI) software program that performs legal tasks traditionally handled by lawyers. Law firms currently use “non-autonomous” robot lawyers that operate under the supervision of a human attorney to assist in legal research, e-discovery, and contract drafting. In the future, “autonomous” robot lawyers that operate without human oversight may one day represent clients. However, courts and legislatures have not determined who will be liable for errors, omissions, malpractice, or other harms caused by autonomous robot lawyers. This Note …

Presidential Election Reform: A Current National Imperative, Mark Bohnerst, Reed Hundt, Kate E. Morrow, Aviam Soifer

Lewis & Clark Law Review

This Article suggests several important practical reforms in how we choose our President and Vice President. It first identifies problems with the Electoral College system, and proposes solutions that would not require a constitutional amendment. The Article also discusses how the long-forgotten provisions of Section 2 of the Fourteenth Amendment authorize reduction in the electoral votes from states whose legislatures deprive or abridge the right of the people to vote for their presidential electors. By exploring the history and language of Section 2, this Article demonstrates that it was ratified with the specific purpose of preventing state legislatures from usurping …

Legal Introspection Towards The Development Of Right To Privacy As Fundamental Right In India, Payal Thaorey

Indonesia Law Review

Privacy of the individual is an essential aspect of dignity. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. The journey of right to privacy has been …

Trouble With Names: Commercial Speech And A New Approach To Food Product Label Regulation, William Cusack

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court has recognized First Amendment protection for “commercial speech” since 1975. Commercial speech doctrine seeks to balance advertiser interest in speech, consumer interest in information, and society’s interest that “economic decisions in the aggregate be intelligent and well-informed.” Regulations and compulsory disclosures of commercial speech play a part in ensuring consumers are well-informed. Yet, there continues to be consumer confusion surrounding the commercial speech doctrine’s application to food labeling. Lawmakers continue to pass regulations that are unnecessary or nonsensical. Regulators continue to enforce these regulations, even if the state interest in doing so is minimal or non-existent. There …

Civil Rights And Disability Justice Clinic: Brief And Special Appendix For Plaintiffs-Appellants: Not Dead Yet, Nmd United, Disability Rights New York, Michelle Brose, Mike Volkman, Jessica Tambor, Peri Finkelstein, Individually And On Behalf Of A Class Of All Others Similarly Situated, Plaintiffs- Appellants V. Kathy Hochul, Governor Of The State Of New York, In Her Offifficial Capacity, Howard A. Zucker, Commissioner Of The New York State Department Of Health, In His Offifficial Capacity, Defendants-Appellees. Case 21-2212., New York Law School

Briefs/Court Filings

No abstract provided.

Finding Neverland? Artificial Intelligence And The Jurisprudence Of Legal Certainty, Omar Zaky

Theses and Dissertations

The development of artificial intelligence (AI) models that are capable of predicting the decisions of prominent courts – most notably the European Court of Human Rights and United States Supreme Court – provides us with an opportunity to revisit important jurisprudential debates regarding the quest for legal certainty. Through providing clear distinctions within formalistic jurisprudence, and its, subsequent, realist critique; this thesis seeks to analyze legal decision-making and its relationship with artificial intelligence. I argue that, AI’s deterministic nature and its support for the law being an “entirely self-contained process” does lend some credence to certain jurisprudential arguments. However, this …

"You Should Have Known:" The Need For Evidentiary Notice Requirements In Immigration Court, Marisa Moore Apel

University of Cincinnati Law Review

No abstract provided.

Legal Education Reform In Africa: Time To Revisit The Two-Tier Legal Education System, Okechukwu Oko

University of Miami International and Comparative Law Review

The two-tier legal education system has become increasingly ineffective by virtue of the evolution of changes in legal practice and Africa’s unique conditions and circumstances. The problem is rooted in the fact that some African countries adopted the two-tier legal education system on the assumption that what worked in Britain offered a prescription for success in Africa. However, the two-tier legal education system has been ineffective in Africa because the infrastructure—pupilage, apprenticeship, continuing legal education—that complements and anneals it is not widely available in Africa. Where these elements exist, they tend to be frail and unreliable. Africa’s urgent challenge is …

Trusts From A To Z: Legal Ethics, Thomas Simmons

Faculty Publications

No abstract provided.

Access To Justice For Refugees: How Legal Aid And Quality Of Counsel Impact Fairness And Efficiency In Canada’S Asylum System, Craig Damien Smith, Sean Rehaag, Trevor C. W. Farrow

Canadian Forum on Civil Justice

This report presents findings from a study exploring relationships between refugee legal aid, quality of counsel, the fairness and efficiency of asylum procedures, and access to justice for refugee claimants in Canada. Legal scholars, jurists and legal associations across Canada have recognized an access to justice “crisis”. The crisis extends to refugee claimants, and is exacerbated by unique vulnerabilities and barriers to justice. This report defines access to justice for refugee claimants in Canada as early and affordable access to high-quality legal representation to both prepare claims and appear before the Immigration and Refugee Board, without systemic or economic barriers; …

2021 December, Cleveland-Marshall College Of Law

2020s

No abstract provided.

France's Organisme De Défense Et De Gestion: A Model For Farmer Collective Action Through Standard Development And Brand Management, Christopher J. Bardenhagen, Philip H. Howard, Marie-Odile Noziéres-Petit

Journal of Food Law & Policy

Quality-based food production, often with a regional dimension, can provide farmers with new, value added markets. It can also provide consumers with access to place based high-quality products, and may benefit local economies through increased commerce. French Organismes de Défense et de Gestion (ODGs) illustrate a mode of quality-based agri-food business organization. ODGs focus on the development of production standards, as well as management of the intellectual property related to those standards. This mode, which is commonly used in Europe, has not often been used in the United States, despite its potential for regional food system development. The ODG mode …

Foreword: Law + Computation: An Algorithm For The Rule Of Law And Justice?, Daniel W. Linna Jr.

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Legislative Recipe: Syntax For Machine-Readable Legislation, Megan Ma, Bryan Wilson

Northwestern Journal of Technology and Intellectual Property

Legal interpretation is a linguistic venture. In judicial opinions, for example, courts are often asked to interpret the text of statutes and legislation. As time has shown, this is not always as easy as it sounds. Matters can hinge on vague or inconsistent language and, under the surface, human biases can impact the decision-making of judges. This raises an important question: what if there was a method of extracting the meaning of statutes consistently? That is, what if it were possible to use machines to encode legislation in a mathematically precise form that would permit clearer responses to legal questions? …