Digital Commons Network^™

Volumetric Subdivision And The Architectures Of Property, Douglas C. Harris

All Faculty Publications

Henry Smith’s influential architectural or modular theory of property places things, defined by the right to exclude, at its core. Property as “The Law of Things” relies on an exclusionary strategy, augmented with governance strategies that delineate particular rights of use, to define owned things and to enable their uses. This Article considers that claim and Smith’s call for multi-dimensional theorizing that accounts for property in “the real world” and “in real life” through an analysis of the increasingly common practice of volumetric subdivision to produce three-dimensional property. Focussing on the statutory frameworks in the Canadian province of British Columbia, …

Constitutional Freedoms In The United States, Tom Rozinski

Open Touro Created

2025

Constitutional Freedoms is an undergraduate text for courses in civil rights and liberties. It covers most of the subject areas of other undergraduate texts, although it rearranges some in ways that are more conducive to student learning. The major difference is that freedoms of speech and press are treated together as aspects of communication, rather than separately because so distinguished in the US Constitution. The book includes sections on Supreme Court procedure, methods of interpretation, and tests for unconstitutionality, as well as information about experiential learning opportunities for students.

Faculty List

Journal of Dispute Resolution

No abstract provided.

Description

Journal of Dispute Resolution

No abstract provided.

Masthead

Journal of Dispute Resolution

No abstract provided.

The Gender Sidelining Trap In Mediator Selection, Erin E. Gleason Alvarez

Journal of Dispute Resolution

One of the greatest advantages of commercial mediation is the parties’ ability to construct the process to fit their needs. In mediation, parties are free to make decisions about how the conversation will be structured—whether in person or online, joint session or not, whether negotiations will take place over a few hours or days, and so forth. Here, parties are also uniquely empowered to design what their settlement will ultimately look like—or decide if settlement is even appropriate. Perhaps most importantly, parties decide who will serve as the mediator, the person they trust to facilitate their discussions and negotiations, and …

Participant Actions And Intermediate Outcomes In Initial Joint Sessions And Initial Caucuses, Roselle L. Wissler, Art Hinshaw

Journal of Dispute Resolution

Historically, the initial mediation session usually was a joint session where the mediator and the disputants met together to exchange information and discuss the substance of the dispute. Accordingly, the main components of the initial mediation session and the informational and communication benefits they were thought to provide were discussed in the context of the disputants being together and speaking directly. Today, however, many actions that traditionally took place during the initial joint session, including the discussion of substantive matters and exchanges between the parties, are less likely to occur during initial joint sessions than they did historically and are …

The Eviction Crisis Is Rampaging: Time To Implement Diversion Programs, Rachel Elliott

Journal of Dispute Resolution

More than 7.6 million renters face the threat of eviction annually.1 In early February 2023, Ivy Hany was at risk of being part of this statistic again.2 Years ago, when Ivy was 19, she and her siblings were forced out of their home into a homeless shelter.3 Now, at 53, she was terrified of becoming homeless again.4 Ivy owed her landlord $2,184.75; she would be evicted if she did not pay.5 Fortunately, Ivy had the option of mediation

Extended Reality For Alternative Dispute Resolution, Ryan Gallagher

Journal of Dispute Resolution

“What is real? How do you define ‘real’? If you’re talking about what you can feel, what you can smell, what you can taste and see, then ‘real’ is simply electrical signals interpreted by your brain.” As technology continues to advance, its effects will be felt in all aspects of our lives, and the world of Alternative Dispute Resolution (“ADR”) will be no different. Dispute resolution processes must adapt to the needs of their users. These users are increasingly in different parts of the world as the global economy expands. Inevitably, globalization leads to more conflicts that require resolution. Technology …

I Like My Litigation How I Like My Pie: Whole, Alexandra (Allie) Widick

Journal of Dispute Resolution

There is a huge problem with the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”): it contains major ambiguities. The Act was signed into law by President Biden in 2022, and it has the potential to affect many Americans. It has been estimated that about 60 million workers—over half of the non-unionized private workforce—are subject to mandatory arbitration agreements as part of their employment. The Act states in relevant part that no arbitration agreement “shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the …

Legislative Update, Mckayla Bogda, Karen Crouch, Matthew Hellmann, Brett Newberry, William Rodman

Journal of Dispute Resolution

The Legislative Update tracks legislation related to alternate dispute resolution that has been proposed and passed in state legislatures nationwide. With guidance from the Associate Editor-in-Chief, Associate Members of the Journal of Dispute Resolution wrote this update. This update includes articles focusing on specific bills and trends across legislation from various states that the authors found most interesting and impactful.

Bargaining In The Shadow Of The Efaa, Samuel R. Cole

Journal of Dispute Resolution

Labor unions are having something of a moment. In the past few years, high profile unionization efforts like those at Starbucks and successful strikes like SAGAFTRA have generated headlines. Even as labor activists celebrate these wins, American unions face ongoing obstacles. Union membership continues to decrease, and union participation remains at an all-time low. And now courts, perhaps unwittingly, are adding to their woes. In one example, particularly relevant here, courts have overlooked the distinction between arbitration agreements contained in collective bargaining agreements and arbitration agreements contained in contracts between employers and at-will employees. The result has been to entwine …

Beyond Privity Of Blood: Intestacy And Charity, Adam J. Hirsch

UC Law Journal

When an individual dies without leaving a will, the law of intestacy functions to distribute the decedent’s estate to a surviving spouse and/or close blood relatives. Yet, this default regime fails to account for the possibility that some individuals wish to allocate part of their estates to charity. Drawing on empirical evidence, including data presented here for the first time, this Article advocates building a charitable component into intestacy in those cases where majorities of decedents prefer to establish estate plans transcending traditional heirs. Evidence suggests that this majority preference arises in four situations: (1) where the decedent was extremely …

California’S Bug Problem: The Backup Generation Information Gap And Its Impact On Vulnerable Communities, Andrew H. Jacobs

UC Law Journal

California’s electricity system has faced unprecedented challenges in recent years. Extreme heat, wildfires, and additional severe weather events stressed the system to a breaking point. The state’s electric grid operator repeatedly called for rolling blackouts on hot summer days to preserve the integrity of the electric grid. Electric utilities proactively shut off power during dry and windy conditions to prevent their equipment from sparking wildfires. Strings of powerful winter storms left hundreds of thousands across the state without power for multiple days.

In response to the poor reliability of the electrical grid, demand for backup generation has skyrocketed. Both residents …

Litigation As Accommodation, Matthew A. Shapiro

UC Law Journal

As persistent threats to the integrity of some of our most important public institutions remind us, every public institution faces the challenge of combating the abuse of its powers for ends inconsistent with the public values it aims to serve. Public law employs a distinctive set of strategies for addressing that challenge: vesting institutional powers with public officials, imposing public-regarding duties on those officials, and ensuring compliance with the duties by subjecting officials’ decisions to various forms of oversight and accountability.

This Article argues that the public institution of civil litigation pursues a very different strategy for countering abuse from …

11th Hour Option Discounting: The Significance Of Ipo Prognostications In Fixing Equity Compensation, Sven Riethmueller

UC Law Journal

This article examines the pervasive practice by pre-IPO firms of granting stock options as compensation while preparing to go public. These last-minute option grants, which are typically not contingent upon initial public offering (IPO) completion, feature substantially lower exercise prices relative to the IPO price, thus producing a windfall potential to executives and other option recipients once these firms consummate their IPOs shortly after having made these discounted option awards. I present empirical evidence to the effect that this 11th hour option discounting practice is common. I scrutinized the option grant practices of a hand-collected dataset comprising U.S. preclinical and …

Reversing Perverse Incentives And Aligning Interests: A Statutory Approach To Combatting Sex Trafficking In The Hospitality Industry, Sara Seymour

Vanderbilt Law Review

The hospitality industry has a sex trafficking problem: Seventy-five percent of sex trafficking victims report coming into contact with a hotel at some point during their trafficking. Though hotel franchisors publicly tout their efforts to combat sex trafficking, they are not properly or adequately incentivized to intervene in a meaningful way. The majority of hotels in the United States are franchised, and for every franchised room that is rented out—whether for sex trafficking or otherwise—hotel franchisors receive royalties. Further, franchisors are motivated to dictate material consistency, like what brand of soap to use, but not safety measures, because it allows …

The Indispensability Of Human Paralegals In The Era Of Advancing Ai, Nicole L. Perry

The Guardianship Journal

The rapid advancement of artificial intelligence (AI) is causing ripples in all areas of life. The legal field is not immune, and concerns about AI replacing legal professionals abound. This manuscript explores the role of paralegals in the legal field from the inception of legal assistants to today and beyond. It examines research on the importance of the human paralegals’ expertise in navigating complex legal processes efficiently and accurately while providing emotional support for clients. This manuscript describes how human paralegals will remain indispensable thanks to their technological capabilities and emotional intelligence. Emphasizing the American Bar Association’s (ABA) mandate on …

The Impact Of Job Rotation On The Constitutional Rights Of Public Employee: A Comparative Study, Baha’ Aldeen A. Al Hilat, Jehad D. Aljazi

An-Najah University Journal for Research - B (Humanities)

Objectives: This study aims to analyze the job rotation policy from a constitutional and legal perspective by evaluating the texts of this policy and its adherence to constitutional guarantees for public employees. It also seeks to establish a theoretical framework for this policy as a significant topic in modern administrative organization. Methodology: The study adopted a descriptive approach to analyze the issues related to job rotation based on legislative and judicial frameworks, alongside an analytical approach to evaluate the relationship between this policy and constitutional guarantees for public employees. Additionally, a comparative method was employed to study relevant legislation in …

Copyright

Missouri Law Review

No abstract provided.

Breaking Kayfabe, Thomas B. Bennett

Missouri Law Review

The membership of the Supreme Court affects how it decides cases. This maxim is well accepted among the public. But it is exceedingly rare for Supreme Court opinions to acknowledge this fact, even when it provides the best explanation for the Court’s behavior. And in the unusual instance in which Supreme Court opinions do refer to changes in the Court’s membership, it is jarring. This Article explores two questions that flow from these uncontroversial facts. First, why does it happen so rarely? Second, why does it happen at all? To answer these questions, the Article looks to an unusual source: …

The Clock Is Ticking: Legal Barriers In § 1983 Execution Protocol Challenges, Christian Witte

Missouri Law Review

At 7:53 p.m. on January 25, 2024, the curtains opened, revealing Kenneth Smith strapped down in the execution room, covered by a white sheet. A respirator mask covered his face, serving as the conduit for nitrogen gas that Smith would soon inhale. The prison warden entered the execution chamber, read Smith’s death warrant, and allowed Smith to share his final words: “Tonight Alabama causes humanity to take a step backwards. I’m leaving with love, peace[,] and light . . . . Love all of you.” Alabama’s Attorney General permitted the warden to continue, signaling no court orders were staying the …

Do As I Say, Not As I Do: The Foreign Tax Credit Regulations’ Focus On The Terms Of Foreign Tax Law, Rebecca Rosenberg

Missouri Law Review

The latest set of final regulations on foreign tax credits generally analyzes the creditability of foreign taxes by comparing U.S. regulatory requirements to the words of foreign tax laws, not to their application in practice or their economic effect. This approach essentially chooses increased administrability and reduced whipsaw potential at some cost to accuracy. It also represents a return to the position that the IRS advocated before the United States Supreme Court’s decision in PPL. The regulations’ preamble implies that taxpayers were not always following the post-PPL approach of examining a foreign tax’s economic effect. If taxpayers were more likely …

Custom’S Pervasive Role In Law And The Boundaries Of Positivism, James P. George

Missouri Law Review

Custom is law’s foundation, modulator, and occasional antithesis. This Article explores that relationship, starting with varying insights from some of the few legal philosophers who have examined the custom/law dynamic. The heart of this Article provides examples showing custom’s many influences on the law, set in five functional areas: origin, application, interstitial, rule-source, and oppositional. Although the custom/law interplay spans human behavior, these examples come from law practice where custom is exposed. Many are routine, some are significant, and all show our reliance on behaviors and norms that are not positive law. The conclusion addresses but does not resolve some …

From Sheltering To Sentencing: An Examination Of Immigrant Harboring Under 8 U.S.C. § 1324, Annie K. Kreikemeier

Missouri Law Review

Imagine you are washing dishes in the restaurant where you work when government officials walk through the front door. You hear them announce that they have a warrant to search the restaurant and ask to speak with the owners. Amidst all of the confusion and panic, you become instantly alarmed. If the owners are arrested, you will lose your job, your living space, and your means of transportation. Even more terrifying, you realize the impending raid likely indicates your imminent removal from the country. You are one of the estimated 11,047,000 unauthorized immigrants currently living in the United States. If …

True Threats To First Amendment Protections In The Age Of Voter Disinformation, Taylor Todd

Missouri Law Review

Imagine that in the weeks leading up to a presidential election, the boss of a factory that primarily employs minority workers credibly and repeatedly warns the rank-and-file, “If any of you vote in this upcoming election, we will make sure that you are fired.” If delivered and understood with serious intent, this statement would clearly violate the federal Voting Rights Act of 1965 (“VRA”), which states that “[n]o person . . . shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote . . . .” Remarkably, however, such a …

Table Of Contents

Missouri Law Review

No abstract provided.

The Second Amendment Preservation Act: Revealing The Realities Of Congress’S Commerce Clause Power, Tasneem Huq

Missouri Law Review

“If men were angels, no government would be necessary.” When James Madison published this in the Federalist Papers, the United States Constitution was not even a year old. The Framers were striving to convince American citizens of the Constitution’s vitality while simultaneously grappling with the challenges of developing what the new government, as to be set forth in the Constitution, should look like. The challenge, as identified by Madison, was that the government needed the power to govern while retaining the ability to control itself. The Framers sought to address this problem by creating a system of federalism. But rather …

Cardozo Law News Brief: January 31, 2025, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2025

Highlights from the January 31, 2025 Cardozo Law News Brief include:

• Students participated in the 42nd Annual ITAP, sharpening their trial skills in an intensive litigation training program.

• Cardozo’s Kukin Program for Conflict Resolution offered hands-on mediation and advocacy experience through intensive dispute resolution courses.

• Professor Peter Markowitz spoke to Fox 5 New York about the importance of NYC’s sanctuary city laws.

• Professor Saurabh Vishnubhakat was quoted in The Guardian and Forbes on TikTok’s legal future under President Trump.

• Professor Jocelyn Getgen Kestenbaum appeared on ABC News to reflect on International Holocaust Remembrance Day and the rise of global …

  ---

  Go to article

Read But Not Understood? An Empirical Analysis Of Consumer Comprehension In Homeowners Insurance, Daniel Schwarcz, Brenda J. Cude, Kyle D. Logue, German Marquez Alcala

Law & Economics Working Papers

Modern contract law assumes that consumers meaningfully assent to the standard forms that govern their daily lives. However, this assumption is widely regarded as a legal fiction for two key reasons: first, most consumers do not read standard forms, and second, even those who do often struggle to fully comprehend their terms and implications. While the lack of consumer reading has been well-documented through empirical research, consumers’ ability to comprehend standard form contracts has received surprisingly little attention.

This Article addresses the latter issue by empirically examining whether providing excerpts from the dominant standard form homeowners insurance policy improves consumer …