Digital Commons Network^™

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

The Identity Factor, Jessica Feinberg

Faculty Publications

Identity development is one of the most important processes that occur during childhood. For certain populations of children, such as those who are LGBTQ+ or multiracial, the path to healthy identity development is substantially more complicated. These children must navigate the development of their identities while existing in a world in which they will frequently encounter a lack of societal understanding and acceptance. Children within these populations face elevated risks of short- and long-term harms, including suicidal ideation, depression, substance abuse, and low self-esteem. As a result, it is critically important that LGBTQ+ and multiracial youth receive support in developing …

The Hidden Pain Of Family Policing, Shanta Trivedi

All Faculty Scholarship

The child welfare system ostensibly exists to protect children. However, its methods—investigating allegations of abuse and neglect, filing cases against parents in court, removing children from their parents, and, in thousands of cases each year, permanently severing the legal relationship between children and their parents—have been shown to inflict great harm on children, despite the system’s stated goal. This Article looks at the system’s impact from a different angle: the harm to parents. It is both common sense and a proven fact that a child’s well-being depends in large part on the health and well-being of their parents. Yet the …

Court Review: Journal Of The American Judges Association, Vol. 61, No. 1, Eve M. Brank, David J. Dreyer, Reba Page

Court Review: Journal of the American Judges Association

Contents

We Need Cvility Now More Than Ever, Benes Z. Aldana

Bias of Work-Related Psychological Claims, Melissa Lin Jones

An AI Primer for Judges, Joseph Regalia

Editor’s Note

President’s Column, Vincent L. Johnson

Thoughts from Canada: The Supreme Court of Canada Considers the Application of the Common Law “Exigent Circumstances” Doctrine to the Warrantless Searches of Electronic Devices, Wayne K. Gorman

Crossword: Four 38-acrosses, Victor Fleming

Court Review Author Submission Guidelines

The Resource Page

What Judges Can Do about Implicit Bias: Evidence-based Recommendations and Practices, Jerry Kang

Crossing The Rubicon: Assembling A Litigation Colossus In Mass Torts, Samir D. Parikh

Michigan Law Review Online

In 2021, Arizona created the alternative business structure (ABS), which allows nonattorneys to own a firm that provides legal services and actively participate in firm management. Scholars have argued that this new paradigm will erode the attorney-client relationship. This represents a legitimate concern. Conflict- ing fiduciary duties can complicate key moments in case resolution. But the impact of Arizona’s shift is more seismic. The true threat does not involve nonattorneys owning a law firm but, rather, private equity firms vertically in- tegrating the entire mass-tort machinery. The endgame is a litigation colossus that rolls up law firms, marketers, claim aggregators, …

What’S Left Of The New Deal State?, Sandeep Singh Dhaliwal

Michigan Law Review Online

A vast body of scholarship situates itself in the New Deal era. Another extensive collection explores the history of criminal justice in the United States. To date, however, there has been little effort to bring these conversations together. New Deal Law and Order, written by legal historian Anthony Gregory, fills this conspicuous gap. Gregory remarkably narrates the New Deal era through the lens of President Franklin Roosevelt’s “war on crime” (p. 1), challenging how we think about both the New Deal’s legacy and the foundations of the modern security state.

Discriminating Alignment In The Innovation Sphere, Juliet P. Kostritsky

Faculty Publications

Contracts play an important role in innovation. As a result, some. scholars have proposed theories highlighting contract provisions as devices that can serve to informally enforce agreements and build trust between parties. Others emphasize the hierarchical provisions between firms to promote efficiency. Yet another group views these agreements as a mechanism to institutionalize learning and protect property interests. This Article offers a new theory. To understand a firm’s contractual choices and governance, we must look at how the same provisions in different contracts may have distinct meanings or operate differently in different contexts. So, scholars must give context to these …

When Lsat Doesn't Matter And Other Surprising Finds From A Deep Dive Into Academic Probation In Law School, Kari Milligan, Ryan Jerome Lecount

Faculty Scholarship

Numerous students nationwide are placed on academic probation and ultimately dismissed from law school each year. While students often carefully conceal their probationary status, their lack of visibility within legal communities should not be mistaken for an absence of need. These students are frequently uniquely vulnerable—facing unexpected family emergencies or entering law school unprepared. The consequences of dismissal are dire, with students experiencing adverse mental health effects and financial exigencies. During the 2023–2024 academic year alone, tuition and fees for a single year of law school ranged from $30,000 to $48,000. Yet, little research—particularly quantitative—has been conducted in service of …

Regulatory Personhood: The Elixir For Redundancy Between The Sec And The Pcaob, Sarah Williams

Faculty Scholarly Works

The Public Company Accounting Oversight Board (“PCAOB” or “Board”) is a quasi-governmental regulatory agency created by Congress in 2002 in response to revelations of widespread financial fraud at major public companies. Since its creation, the agency has experienced significant challenges. Litigants have challenged its constitutionality, the Trump administration challenged its very existence, and legislation was introduced in 2021 to transfer its responsibilities to the U.S. Securities and Exchange Commission (“SEC”).

Proposals to eradicate the Board asserted vague concerns about the redundancy of its responsibilities with those of the SEC, and alleged resultant monetary waste. This Article, written in 2022, provides …

Why Academic Law Librarians Quit: Results Of The Law Librarian Exit Survey, Laura J. Ax-Fultz

Faculty Scholarly Works

The pandemic exposed the struggles of workers everywhere. The complexity of handling family, work, illness, and a host of other issues led many to reconsider their employment. The phrase “The Great Resignation” summed up the zeitgeist of the early pandemic. Concurrently, open positions for academic law librarians were increasing. I sought to unravel the apparent surge in open positions by surveying academic law librarians to discover why they resigned from their positions or considered leaving them during the period of January 2020 through June 2023.

These findings were evaluated within the context of a high volume of job postings in …

Cultural Cognition And The Thoughtful Judge, Jack H.L. Whiteley

Articles

That judges follow what the law is, and not what they wish it was, is a requirement of the rule of law. At the same time, scholars, lawyers, and judges often say that judges’ values influence their decisions. Connecting these two ideas has generated a conversation about the relationship between law, ideology, and politics.

Recently, part of this conversation has focused on a theory called cultural cognition. The theory offers an account of how people’s values shape how they interpret things without their noticing. People whose values tend toward hierarchy sometimes perceive facts differently than people whose values tend toward …

Tonry’S Blueprint For The Comparative Study Of Sentencing Law And Policy, Kevin R. Reitz

Articles

This essay explores Michael Tonry’s treatment of sentencing law and policy within the U.S. as an inherently comparative project. The essay draws from Tonry’s “early period” in comparative sentencing from the late 1970s to the middle 1990s, when his writing was largely U.S.-centric, focued on quickly changing conditions in dozens of states and the federal system. Tonry classified the several models of “sentencing reform” that were being tried across the country, drew contrasts in the legal architectures of the new systems, collected data and evaluation research for as many states as possible, and treated the reform-active states as “laboratories” whose …

Standardization And Accuracy Of Race And Ethnicity Data: Equity Implications For Medical Ai, Alexandra Tsalidis, Lakshmi Bharadwaj, Francis X. Shen

Articles

The rapid integration of artificial intelligence (AI) into healthcare has raised many concerns about race bias in AI models. Yet, overlooked in this dialogue is the lack of quality control for the accuracy of patient race and ethnicity (r/e) data in electronic health records (EHR). This article critically examines the factors driving inaccurate and unrepresentative r/e datasets. These include conceptual uncertainties about how to categorize races and ethnicity, shortcomings in data collection practices, EHR standards, and the misclassification of patients’ race or ethnicity. To address these challenges, we propose a two-pronged action plan. First, we present a set of best …

Revolutionizing Brain Research Using Portable Mri In Field Settings: Public Perspectives On The Ethical And Legal Challenges, Molly K. Madzelan, Frances Lawrenz, Susan M. Wolf, Francis X. Shen

Articles

Introduction New, highly portable MRI (pMRI) technology promises to revolutionize brain research by facilitating field-based studies that can expand research to new settings beyond the traditional MRI suite in a medical center. At this early stage of development, understanding public knowledge and attitudes about pMRI research is crucial. Objective In this article we present the first empirical study of the general public’s willingness to participate in pMRI research, and their perceptions of expected benefits and concerns. Methods & Results We conducted a nationally representative online survey (N = 2,001) administered Aug. 15-31, 2022. We found that respondents were overwhelmingly willing …

Designer Organs: Ethical Genetic Modifications In The Era Of Machine Perfusion, Irina Filz Von Reiterdank, Susan M. Wolf, Raphaela Bento, Insoo Hyun

Articles

Gene therapy is a rapidly developing field, finally yielding clinical benefits. Genetic engineering of organs for transplantation may soon be an option, thanks to convergence with another breakthrough technology, ex vivo machine perfusion (EVMP). EVMP allows access to the functioning organ for genetic manipulation prior to transplant. EVMP has the potential to enhance genetic engineering efficiency, improve graft survival, and reduce posttransplant complications. This will enable genetic modifications with a vast variety of applications, while raising questions on the ethics and regulation of this emerging technology. This review provides an in-depth discussion of current methodologies for delivering genetic vectors to …

Public Perceptions Of Neurotechnologies Used To Target Mood, Memory, And Motor Symptoms, Rémy A. Furrer, Amanda R. Merner, Ian Stevens, Peter Zuk, Theresa Williamson, Francis X. Shen, Gabriel Lázaro-Muñoz

Articles

Public attitudes toward four neurotechnologies for treating three types of brain disorders (mood, motor, and memory) vary on a range of metrics, such as perceived risk, invasiveness, and likelihood of use. In a survey of 1,052 US participants, deep brain stimulation (DBS) was seen as the most invasive and risky among the surveyed methods, involving the greatest perceived change to the person and the least likely to be used personally. Non-surgical options like transcranial magnetic stimulation (TMS) and pills were viewed as more acceptable. Devices targeting motor symptoms were rated as more beneficial and acceptable than those for mood or …

Revoluntionizing Brain Research Using Portable Mri In Field Settings: Public Perspectives On The Ethical And Legal Challenges, Molly K. Madzelan, Frances Lawrenz, Susan Wolf, Francis X. Shen

Articles

Introduction

New, highly portable MRI (pMRI) technology promises to revolutionize brain research by facilitating field-based studies that can expand research to new settings beyond the traditional MRI suite in a medical center. At this early stage of development, understanding public knowledge and attitudes about pMRI research is crucial.

Objective In this article we present the first empirical study of the general public’s willingness to participate in pMRI research, and their perceptions of expected benefits and concerns.

Methods & Results

We conducted a nationally representative online survey (N = 2,001) administered Aug. 15-31, 2022. We found that respondents were overwhelmingly willing …

Race, Gender, And Ordinary Peace: Assessing The Women, Peace, And Security Agenda Through A Coloniality Lens, Fionnuala Niaolain, Claire Wright

Articles

No abstract provided.

By Way Of Conclusion: Making Sense Of Fallacies, Claire Hill

Articles

As noted in the Introduction to this volume, our collective goal is to examine some of the key misconceptions and unquestioned assumptions – which we refer to as ‘fallacies’ – that guide, and often misguide, developments in modern corporate law and financial regulation. These fallacies are embedded and instantiated in scholarship, law, public policy and public opinion. Their intellectual and practical impact is considerable, but it is largely hidden. Critically, these fallacies too often frame legal and policy debates, strongly influencing and even determining policy choices. While our volume does not (and indeed cannot) provide an exhaustive analysis of this …

Tribes And Temperament: Two Underappreciated Determinants Of Market Actor Behavior, Motivations And Beliefs, Claire A. Hill

Articles

This chapter, written for a volume on Hidden Fallacies in Corporate Law and Financial Regulation, argues that markets and market actors can be better understood by taking into account some neglected determinants of behavior, motivations and beliefs -- and ultimately, by embracing an expanded view of rationality.

The neglected determinants are tribes, by which I mean communities with their own norms, rituals, and institutions, and temperament, which I use in its colloquial sense. Deal makers, for instance, can be said to have a community, with norms as to, among other things, ‘what’s market.” Knowing and abiding by the norms conveys …

Review Of A Research Agenda For Patent Law, Jacob Sayward

Articles

No abstract provided.

True Law As Genre: Narrative Nonfiction And The Law, Jorge L. Contreras

Texas A&M Journal of Property Law

The Genome Defense, which offers a book-length narrative nonfiction account of the civil litigation that led to the elimination of patents on human genes in the United States, is a member of a distinct literary subgenre that I term True Law. Like the older and better-known True Crime genre, True Law narratives blend the conventions of journalism and novelistic writing to describe complex legal disputes in a manner that is engaging and accessible to the general public. True Law accounts, which have increased in number and popularity since the publication of Jonathan Harr’s A Civil Action in 1995, serve …

On Snow’S Intellectual Property And Immorality, David O. Taylor

Texas A&M Journal of Property Law

In this Essay, I consider the “why” and “how” of Professor Snow’s controversial, countercultural, important, and relevant position that immorality may result in the denial of intellectual property protection. First, I highlight how surprising it is that Professor Snow’s argument springs from the theories underlying intellectual property protection, rather than the theories underlying the morality and ethics he believes ought to be considered in determining intellectual property protection. No one (that I know, at least) goes to the Environmental Protection Agency seeking better regulations to protect the environment and uses the labor desert theory of property rights as an argument. …

What We Can Learn From The Notorious P&Id V. Nigeria, Emily Granja

Arbitration Brief

On October 23, 2023, England’s High Court of Justice ruled in favor of the Federal Republic of Nigeria in Nigeria v. Process & Industrial Developments Ltd. (P&ID). Reviewing the case, the High Court vacated P&ID’s $10 billion arbitral award after finding significant evidence of fraud and bribery. While the High Court’s decision marked a victory for Nigeria, it also shook the international arbitration system. This case exposed some of international arbitration’s flaws and generated new concerns regarding the confidentiality inherent in the arbitration process.

Protecting Older Adults Who Are Incarcerated: Does The 8th Amendment Work?, Jalayne J. Arias

Health Matrix: The Journal of Law-Medicine

Older adults in prison and within other carceral systems (i.e. jails, parole) are uniquely at risk for elder mistreatment. Emerging research has begun to consider the experiences of older adults within carceral settings, including aging in prison, chronic conditions and medical care, compassionate release, and end-of-life care. This research exposes evidence that prisons and other carceral settings lack resources and services for older adults. Given increased vulnerability and a lack of protective resources, older adults experiencing incarceration may experience disproportional rates and consequences of elder mistreatment. A public health approach to develop tools and resources that would prevent, detect, and …

Decision-Making Supports And Cognitive Decline, Rebekah Diller

Health Matrix: The Journal of Law-Medicine

For persons with a range of cognitive disabilities, supported decision-making, rooted in a human rights approach to disability, has emerged as a tool that permits them to make legally binding decisions and avoid guardianship. As supported decision-making policy has evolved in the United States, state statutes have primarily focused on formal agreements through which individuals can designate trusted supporters to assist in obtaining information, processing that information, and communicating a decision. This Article argues that supported decision-making has promise for preserving the autonomy of persons living with dementia, but that the model of a supported decisionmaking agreement embodied in the …

Planning For Cognitive Decline: Combining Formal Supported Decision-Making Agreements And Healthcare Power Of Attorney, Megan S. Wright

Health Matrix: The Journal of Law-Medicine

Patients who have impaired decision-making abilities may not be permitted to make contemporaneous medical decisions. Instead, a substitute decision maker, including a healthcare agent, may be asked to decide on the patient’s behalf even if the patient wants to participate in the medical decision making. Being marginalized in decisions made about their medical care may lead to a decline in wellbeing for these patients. But supported decision making, wherein a person with cognitive impairments receives decision-making assistance, may facilitate such patients making contemporaneous medical decisions. As supported decision-making legislation spreads throughout the United States, there are questions about how this …

Cultural Conquest: Russia's Strategic Assault On Ukrainian Heritage As Both A Catalyst For And A Casualty Of Conflict, Brittan Harrell

American University International Law Review

Vladimir Putin and his government have disseminated fabricated claims about Ukraine’s history, language, and sovereignty as a rationalization for the 2022 invasion of Ukraine. Not only has the war resulted in grave human loss, but it has also caused widespread destruction throughout Ukraine. Nongovernmental organizations, foreign governments, academics, and Ukrainian citizens have collected robust evidence that Russian forces are purposefully targeting repositories of Ukrainian identity. The intentional destruction of this protected property is considered a war crime under the Rome Statute. Following the International Criminal Court’s (“ICC”) first successful prosecution for the destruction of protected property in 2016, there has …

In Violation Of Diplomatic Treaties: A Look Into Ecuador's Forced Extraction, Josie C. Tarin

American University International Law Review

In December 2023, former Vice-President of Ecuador, Jorge Glas, sought political asylum in the Mexican Embassy located in Quito, Ecuador. On April 5, 2024, following a week of political discourse between the Ecuadorian and Mexican governments, the Mexican government granted Glas political asylum. In their announcement, Mexico reminded Ecuador that the 1954 Caracas Convention on Diplomatic Asylum and the 1961 Vienna Convention on Diplomatic Relations protected both Glas and the employees within the Mexican embassy. On the evening of Mexico’s announcement, Ecuadorian agents operating under executive authority entered the Mexican embassy without consent, injured an employee of the Mexican embassy …

Military Service Academies: The Final Battleground For Affirmative Action, Krista Trefen

American University Law Review

The future of affirmative action in the United States military service academies faces critical uncertainty following the Supreme Court's decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, which ended race-conscious admissions practices in higher education. Although the Court explicitly excluded the service academies from its holding, reserving space for race-conscious practices tied to national security-the Naval Academy, Military Academy, and Air Force Academy have recently indicated they will discontinue the use of affirmative action in response to changes in Department of Defense policy.

This Comment examines the historical and statutory foundations of the military …