Digital Commons Network^™

Precedent Terms, Vincent Buccola, David A. Hoffman

Coase-Sandor Institute for Law & Economics Research Paper Series

An implicit binary underlies most academic thinking about commercial and corporate contracts. To judge from the theory literature, such agreements consist of just two kinds of terms: those that are negotiated and priced and those that are boilerplate. But on-the-ground realities don’t square with the picture of contract production that the standard assumption yields. That picture can’t easily explain, for example, why sophisticated parties regularly spend large sums quarreling over terms, nor is it compatible with commonly expressed attitudes of negotiating triumph or dismay.

This Article develops a new analytical category that can explain these and other empirical regularities and …

The Tom Sawyer Effect: Invisible Work And Labor Market Power, Eric A. Posner

Coase-Sandor Institute for Law & Economics Research Paper Series

Certain types of work-like behavior are not treated as paid labor in the law and are therefore not taxed or given workplace protections and are often not understood to be work by ordinary people. This kind of “invisible work” is exceedingly common. It encompasses not only the frequently discussed example of household labor, but also the work, or some of the work, of athletes, soldiers, students, artists, volunteers, religious and political figures, and consumers who implicitly trade work—and money—for products and services. Invisible work is the product of cultural understandings left over from the past or manufactured by businesses, which …

Book Review: Biglaw's Race Problem, Angela Onwuachi-Willig, Anthony V. Alfieri

Faculty Scholarship

Ever since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, …

The Complex And Marginalized Experiences Of Bipoc Trafficked Women: An Examination Of Disabilities, Aces, Discrimination, And Racism, Jacquelyn C. A. Meshelemiah, Fabian Arroyo Rojas, Hannah Ruth Steinke, Marlene Carson, Justin A. Haegele

Human Movement Studies & Special Education Faculty Publications

The purpose of this study was to examine the lived experiences and multiple identities of disabled BIPOC trafficked women. The findings from this study help to identify a carousel of victimization experienced by disabled BIPOC trafficked women, starting with adverse childhood experiences, onto trafficking victimization that differed between Black and White women, and later while seeking services. These findings highlight the need for providers and researchers to think beyond monolithic identities and consider the intersecting ways in which various forms of oppression (ableism and racism) influence the experiences of disabled trafficked BIPOC women.

Refugee Law: Human Rights, Refugee Law, And Border Crossing, Moria Paz

The Judges' Book

No abstract provided.

Remedies For Decades Of Hbcu Underfunding: Can Coalition V. Maryland Serve As A Model, Or Is Government “Persuasion” Needed?, John K. Pierre, Gail S. Stephenson

UC Law Journal of Race and Economic Justice

No abstract provided.

Front Matter

Michigan Law Review

Front Matter for Volume 123, Issue 4 of Michigan Law Review

Front Matter For Volume 123, Issue 5 Of Michigan Law Review, University Of Michigan Law School

Michigan Law Review

No abstract provided.

Front Matter

Michigan Law Review

Front Matter for Volume 123, Issue 6 of Michigan Law Review

The Systematic Devaluation Of Legal Scholarship In Criminology And Criminal Justice, Henry F. Fradella

Touro Law Review

Certain bibliometrics have become important indicators of scholarly impact despite their many weaknesses. This Article presents data demonstrating the shortcomings of using citation counts and journal impact factors for law-based scholarship. Moreover, the Article argues that reliance on these flawed metrics is just one example of how scholars in criminology and criminal justice (“CCJ”) systematically devalue legal scholarship.

The Article begins by offering quotations from social scientists that provide insights into the negative ways they view legal scholars and their work. It also quotes from interviews conducted with CCJ scholars who hold a law degree and either earned or are …

Celebrity Trademark Overload: The Rising Issue Of Excessive Registrations And Reverse Confusion, Lola-Marie Pyros

Touro Law Review

Celebrities use trademark law not only to protect their brands, but also to stake claims on a vast range of potential marks through intent to use (“ITU”) applications—often before any real commercial plan exists. This practice allows celebrities to reserve rights ranging from viral catchphrases to their children’s names which crowds the trademark register, delays legitimate filings by smaller businesses, and forces challengers into costly legal battles. A separate but equally troubling issue arises when a celebrity’s brand overshadows a preexisting weaker mark. In “reverse confusion” cases, courts often focus on whether the celebrity acted willfully, ignoring the fact that …

Reproductive Rights: How Voting Behavior Illustrates Shifting Political Attitudes, Keavy Callwood

Williams Honors College, Honors Research Projects

This research project intends to explore a causal link between the Supreme Court decision in Dobbs v. Jackson Women's Health Organization (2022) and shifting political attitudes as modeled through voting behaviors. Research will be conducted by using data from government and reputable sources that are representative of the general public to show that political attitudes have shifted since the release of the Dobbs decision. Additionally, the question will be analyzed through discussing several political theories and applying them to the current issues being studied. This research could help show how the Supreme Court is an important actor in the political …

The Abuses Of History In Constitutional Interpretation, Sherif Girgis

Journal Articles

From the Article

Jack Balkin’s Memory and Authority powerfully describes the kaleidoscopic quality of historical arguments in constitutional law. The book also moves easily between description and prescription. This Essay explores whether it moves too easily from one to the other. I consider whether the book’s analysis is so keen to capture our actual practices that it leaves itself too few resources for evaluating them—whether its account of history’s uses, made expansive by a zeal to fit how lawyers actually reason, crowds out any robust account of how they ought not to reason. While I am inclined to think so, …

Carceral Bonds, Tyler E. Dougherty

Faculty Publications

Over the past 50 years, the U.S. financed a massive physical and fiscal expansion of prisons via the municipal bond market—with devastating results. This project is the first to shine a light on the role of municipal debt in state-level carceral decision making, spotlighting the ways that the municipal bond market affects states’ capacities to incarcerate.

This Article argues that the two primary controls of states’ use of the carceral bond market—(1) market discipline and (2) states’ fiscal constitutions—are particularly ineffective at limiting states’ spending on prisons. This failure to restrain states’ spending through the carceral bond market enables private …

Patenting The Taboo: Sex, Drugs, And Abortion, Andrew Gilden, Sarah R. Wasserman Rajec

Faculty Publications

The patent system provides a surprisingly rich archive of the interplay between social norms and technological change. Patent law requires applicants to publicly disclose the novelty and usefulness of their inventions, thereby bringing to light areas of innovation that may have previously lived in the shadows. In other words, patent law encourages public disclosure of technologies that are taboo—developed and practiced in secret, for reasons such as social approbation, illegality, or religious sanctity. To obtain a patent for a taboo technology, patentees must establish their legitimacy as innovators while navigating cultural norms that are hostile to their fields of innovation. …

In Through The Side Door: Anti-Asian Nativism, U.S. Immigration, And Foreign Policy—A Legal History And Case Study, Deenesh Sohoni, Vivian E. Hamilton, Chinua Thelwell

Faculty Publications

The 19th- and early 20th-centuries were marked by pervasive anti-Asian sentiment, and antipathy towards people of color more generally. Giving legal effect to the anti-Asian nativism prevalent at the time, U.S. policies prohibited most Asian immigration and naturalization. In particular, immigration laws sought to exclude Asian laborers and working-class immigrants from entry. During the same period, however, the federal government determined that other Asian visitors—especially Chinese government officials, merchants, religious leaders, and students—could be useful in advancing U.S. political and economic interests abroad. Thus, in marked contrast to its inhospitable treatment of their working-class counterparts, U.S. policy facilitated the entry …

Abolish What?, Benjamin Levin

Scholarship@WashULaw

From leading academic journals to popular press outlets, abolitionist activism and scholarship have earned airtime in national debates about criminal justice reform. But what is "abolition?" When scholars, lawyers, and activists talk about abolition, they seem to mean very different, even conflicting, things. In this Essay, I focus on a core question that might divide different abolitionists-and different critics of abolition: what is to be abolished? Abolitionists argue that it's critically important to abolish something, while critics of abolition insist that something is necessary to a well-functioning society. Yet, it's not always clear what that something is-both for abolitionists and …

The Curiously Minor Role Of Minor V. Happersett (Foreword), Susan Frelich Appleton, Travis Crum, Hannah Keidan

Scholarship@WashULaw

This Foreword introduces a symposium marking the 150th anniversary of Minor v. Happersett, a Supreme Court decision unanimously holding that the Fourteenth Amendment's Privileges or Immunities Clause did not enfranchise women. Notwithstanding its impact on the women's suffrage movement and the subsequent ratification of the Nineteenth Amendment, Minor presents a puzzle: it is a relatively obscure precedent that remains deeply relevant to contemporary legal debates. To elucidate this point, this Foreword juxtaposes Minor with two notorious Supreme Court decisions: Dred Scott and Dobbs.

Like Dred Scott, Minor pairs a morally repugnant result with legalistic reasoning. But whereas …

A Liberty-Balancing Approach To Crime, Sheldon Evans

Scholarship@WashULaw

At its core, the criminal legal system is an ecosystem of institutions that seek to balance liberty interests. The insightful theories and complex practices of crime policy coalesce around questions on how crime impacts the liberties of individuals and communities to be safe, and how this correlates with the deprivation of liberty from offenders through our punishment system. But modern criminal policy, most often associated with the problems of overcriminalization and mass incarceration, has wholly abandoned any such delicate and nuanced balancing. Instead, the system thrives on sacrificing the liberties of offenders in a perverse and ineffective regime that leads …

The Practice Of Executive Constitutionalism, Conor Clarke, Daniel Epps

Scholarship@WashULaw

The Executive Branch must inevitably interpret the Constitution. Although departmentalists and judicial supremacists disagree about the scope of the Executive’s constitutional authority, few believe the Constitution is only for the courts. But what are the practices through which the Executive Branch interprets the Constitution and translates those interpretations into concrete decisions? What is their history? And what, if anything, is distinctive about them? While a rich and growing literature has examined some aspects of these questions, scholars have not broadly canvased the most central tools by which the Executive Branch shapes and implements constitutional law, or considered what makes them …

Auditing Criminal Justice Minimalism, Trevor George Gardner

Scholarship@WashULaw

If criminal justice minimalism is a shared principle among criminal law scholars, it can help to clarify the quality of our disagreements. Every normative proposal in the criminal legal literature can be held to the minimalist standard—audited, so to speak, to account for the policy author’s minimalist claims. To this end, this Essay proposes a four-step framework by which to evaluate adherence to the minimalist principle, where each step serves as a hub for pointed scholarly debate regarding the path to minimalist criminal justice.

Framing Legal Systems In New And Emerging Statelets: Autonomous Projects Of The Zapatistas Of Chiapas And The Democratic Autonomous Administration Of Northern And Eastern Syria, Samuel Wolff

Emory International Law Review Recent Developments

Autonomous movements within states are disruptions in the normal order and control that a state exerts over its territories. While there are some groups that aim to achieve autonomy and recognition while staying within the structure of the existing state, other groups seek to succeed and establish their own autonomous area completely succeeding and divorcing from the state. For a variety of reasons- from mistrust of a corrupt central government to violent repression of ethnic minorities- movements arise offering an alternative to the existing state. As these movements break, sometimes violently, from the state, they also break from the legal …

Comparative Federalism In The Us And The Eu — The Winemaker's Legal Perspective, Clement Xu

Emory International Law Review Recent Developments

In our lives, many of us will intersect with wine at some point, be it an aged bordeaux presented in elaborate fashion, or a box of nondescript cooler doled out at a backyard cookout. Beyond analyzing a wine for the complexity of its bouquet, or the strength of its tannins, the wine market as a whole beckons a nuanced study from the perspective of comparative law. The radical differences in business models, consumer base, and even expectations, between the “old world” and the “new world” give rise to a number of topics ranging from authenticity, legal protection, and government regulatory …

The Normative Porosity Of The Un Convention On The Law Of The Sea: From "Human Rights At Sea" To The "Ocean-Climate Nexus", Eduardo Cavalcanti De Mello Filho

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

This article delves into the nexus between the 1982 U.N. Convention on the Law of the Sea (“UNCLOS”) and the broader international legal order, focusing on UNCLOS Article 287 tribunals with jurisdiction limited to disputes related to the Convention. The study categorizes three gateways through which external rules of international law influence the interpretation and application of UNCLOS: Renvoi provisions, systemic interpretation mechanisms, and systemic integration via Article 293(1). Considering recent studies highlighting UNCLOS as a “springboard for interaction,” this research synthesizes legal dogmatics with insights from the sociology of law and international relations theory. Mindful of the momentum experienced …

Explaining Constitutional Copying As An Idealogy: Argentina's "Yankee-Mania" Under President Domingo Sarmiento (1868-1874), Jonathan M. Miller

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

Foreign constitutional models can transform a country thanks to the power of ideology. The comparative constitutional literature maintains that successful constitutionalism requires credible commitments to essential rules by all major political actors so that those out of power can avoid persecution that will drive them into rebellion, and those in power can feel assured that if they relinquish power, the opposition will respect their core interests. The literature also assumes that the process of reaching credible commitments is a slow one, but that over time civil society, courts and government bureaucracies will strengthen the commitments and act against unconstitutional power …

Volume 75 Issue 4 (2025), Case Western Reserve Law Review

Case Western Reserve Law Review

No abstract provided.

Volume 76 Issue 1 (2025), Case Western Reserve Law Review

Case Western Reserve Law Review

No abstract provided.

Volume 75 Issue 3 (2025), Case Western Reserve Law Review

Case Western Reserve Law Review

No abstract provided.

Lecture Responsive Democracy And The Administrative State, Edward L. Rubin

Case Western Reserve Law Review

No abstract provided.

Inventions Without Inventors: The Need To Recognize Ai Systems As Inventors, Niloufer Selvadurai

Journal of Law, Technology, & the Internet

As AI systems increasingly generate innovative products and processes, a critical issue to address is the nature and extent of the patent protection that is conferred upon such outputs. The overarching objective of patent law is the support of innovation and progress. In determining applications, the clear focus of patent judgments is whether the claimed invention satisfies the required standards of inventiveness, novelty, and non-obviousness. It is hence curious that incidental references to “individuals” and “persons,” variously scattered through patent statutes, operate to deny recognition of AI inventors. This is the result of the global test litigation instigated by Dr. …