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The Faculty Workshop, Pierre Schlag Jan 2012

The Faculty Workshop, Pierre Schlag

Publications

This essay explores the ubiquitous law school institution, “The Faculty Workshop,” as an entrée into and manifestation of contemporary American legal thought. The Faculty Workshop is examined both as a regulator and expression of legal thought - at once governance system and symptom. We close by discussing “Stage 4.”

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Freedom Of Contract In An Augmented Reality: The Case Of Consumer Contracts, Scott R. Peppet Jan 2012

Freedom Of Contract In An Augmented Reality: The Case Of Consumer Contracts, Scott R. Peppet

Publications

This Article argues that freedom of contract will take on different meaning in a world in which new technology makes information about places, goods, people, firms, and contract terms available to contracting parties anywhere, at any time. In particular, our increasingly "augmented reality" calls into question leading justifications for distrusting consumer contracts and strengthens traditional understandings of freedom of contract. This is largely a descriptive and predictive argument: This Article aims to introduce contract law to these technologies and consider their most likely effects. It certainly has normative implications, however. Given that the vast majority of consumer contracting occurs in …

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Secrets, Lies, And Disclosure, Helen Norton Jan 2012

Secrets, Lies, And Disclosure, Helen Norton

Publications

This symposium essay suggests that we can sometimes understand those who resist campaign disclosure or disclaimer requirements as interested in keeping a secret and occasionally even in telling a sort of lie about the source or intensity of support for a particular candidate or cause. Such secrets and lies threaten listeners’ autonomy interests when the speaker seeks to keep such secrets (and sometimes seeks to tell such lies) to enhance her ability to influence her listeners’ decisions. For these reasons, I suggest greater attention to the reasons speakers seek to keep secrets (or occasionally tell such lies) in assessing the …

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Partiality And Disclosure In Supreme Court Opinions, Robert F. Nagel Jan 2012

Partiality And Disclosure In Supreme Court Opinions, Robert F. Nagel

Publications

This Essay begins by identifying the various kinds of partiality the Justices of the Supreme Court can have in the cases they decide. Although there is widespread recognition of the influence these biases might have, for the most part the Justices continue to write opinions as if they (and other judges) were entirely disinterested. This practice is often thought to be justified as a source of judicial legitimacy, but there are a number of reasons to doubt that a pretense of impersonality is actually important for maintaining respect for the Court. Consequently, the possibility has to be considered that the …

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Planetarian Identity Formation And The Relocalization Of Environmental Law, Sarah Krakoff Jan 2012

Planetarian Identity Formation And The Relocalization Of Environmental Law, Sarah Krakoff

Publications

Local food, local work, local energy production--all are hallmarks of a resurgence of localism throughout contemporary environmental thought and action. The renaissance of localism might be seen as a retreat from the world's global environmental problems. This Article maintains, however, that some forms of localism are actually expressions, appropriate ones, of a planetary environmental consciousness. This Article's centerpiece is an in-depth evaluation of local climate action initiatives, including interviews with participants, as well as other data and observations about their ethics, attitudes, behaviors, and motivations. The values and identities being forged in these initiatives form the basis for timely conceptions …

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A Shift To Narrativity, Derek H. Kiernan-Johnson Jan 2012

A Shift To Narrativity, Derek H. Kiernan-Johnson

Publications

Slipshod, inconsistent use of core Applied Legal Storytelling terminology muddles its discourse and hampers its growth. Refining the field’s vocabulary is essential, but insufficient, as exclusive focus on the field’s objects of inquiry, such as story and narrative, and the means of creating or conveying them, such as storytelling and narrating, risks losing the “A” in ALS. We need a new focus, one unburdened by the ambiguities and negative associations of existing options that more accurately reflects Applied Legal Storytelling scholars’ unique contributions. A shift to narrativity. Narrativity, as imagined here, is a top-level quality of a legal text or …

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A "Neo-Feminist" Assessment Of Rape And Domestic Violence Law Reform, Aya Gruber Jan 2012

A "Neo-Feminist" Assessment Of Rape And Domestic Violence Law Reform, Aya Gruber

Publications

No abstract provided.

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Information Lost And Found, Frederic M. Bloom Jan 2012

Information Lost And Found, Frederic M. Bloom

Publications

At the core of every lawsuit is a mix of information-revealing documents that chronicle a party's malfeasance, guarded memos that outline a lawyer's trial strategy, fading memories that recall a jury's key mistakes. Yet the law's system for managing that information is still poorly understood. This Article makes new and better sense of that system. It begins with an original examination of five pieces of our civil information architecture--evidence tampering rules, automatic disclosure requirements, work product doctrine, peremptory challenge law, and bans on juror testimony--and compiles a novel study of how those doctrines intersect and overlap. It then fits these …

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Computable Contracts, Harry Surden Jan 2012

Computable Contracts, Harry Surden

Publications

This Article explains how and why firms are representing certain contractual obligations as computer data. The reason is so that computers can read and process the substantive aspects of contractual obligations. The representation of contractual obligations in data instead of (or in addition to) the traditional written language form - what this Article calls "data-oriented contracting" - allows for the application of advanced computer processing abilities to substantive contractual obligations. Certain financial contracts exemplify this model. Equity option contracts are routinely represented not as contract documents written in ordinary language - but as data records intended to be processed by …

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David Getches: A Tribute To A Leader And Scholar, Matthew L.M. Fletcher, Kristen A. Carpenter Jan 2012

David Getches: A Tribute To A Leader And Scholar, Matthew L.M. Fletcher, Kristen A. Carpenter

Publications

No abstract provided.

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Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas Jan 2012

Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas

Publications

Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, particularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …

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Why We Need A Progressive Account Of Violence, Aya Gruber Jan 2012

Why We Need A Progressive Account Of Violence, Aya Gruber

Publications

No abstract provided.

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Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux Jan 2012

Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux

Publications

No abstract provided.

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Four Conceptualizations Of The Relations Of Law To Economics (Tribulations Of A Positivist Social Science), Pierre Schlag Jan 2012

Four Conceptualizations Of The Relations Of Law To Economics (Tribulations Of A Positivist Social Science), Pierre Schlag

Publications

This brief essay sketches the ways in which four leading economic thinkers (Knight, Coase, Posner and Sunstein) have dealt with a vexing tension in the relations of economics to law, the state, and the social. The tension arises as microeconomists address (or fail to address) the relations of their theories to “soft factors” such as psychology, politics, social institutions, etc. These soft factors are at once clearly consequential for economic behavior (and thus arguably should be included in the theories). At the same time, these soft factors are not self-evidently subject to determination by any known economic laws (and thus …

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The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks Jan 2012

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

Publications

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.

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Reimagining Criminal Prosecution: Toward A Color-Conscious Professional Ethic For Prosecutors, Justin Murray Jan 2012

Reimagining Criminal Prosecution: Toward A Color-Conscious Professional Ethic For Prosecutors, Justin Murray

Publications

Prosecutors, like most Americans, view the criminal-justice system as fundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices--and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors--contribute to the staggering and disproportionate incarceration of black …

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Experimental Pragmatism In The Third Globalization, Justin Deystone Jan 2012

Experimental Pragmatism In The Third Globalization, Justin Deystone

Publications

Pragmatism dominates contemporary legal thought, but knowing this isn’t knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes immanent in the pragmatisms, and …

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Remarks, James Anaya Jan 2012

Remarks, James Anaya

Publications

These remarks were delivered at the Closing Plenary--Indigenous Peoples and International Law: A Conversation with UN Special Rapporteur James Anaya and Inter-American Commission Rapporteur Dinah Shelton.

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Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski Jan 2012

Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski

Publications

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot …

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"Other Spaces" In Legal Pedagogy, Lolita Buckner Inniss Jan 2012

"Other Spaces" In Legal Pedagogy, Lolita Buckner Inniss

Publications

There is an increasing focus upon the material and metaphoric spatial dimensions of various academic disciplines, including law. This essay considers the spatial dimensions of legal pedagogy, focusing on Critical Race Theory (CRT). The essay first explains the "critical program" in law and how CRT grows out of it. The essay then suggests that the critical program, and especially CRT, is as much a human geographic or spatial construct as it is a social, political or historic one, and briefly describes the nature of human geography and legal geography. It next considers how metaphors for understanding CRT's position in legal …

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Privacy & The Personal Prospectus: Should We Introduce Privacy Agents Or Regulate Privacy Intermediaries, Scott R. Peppet Jan 2012

Privacy & The Personal Prospectus: Should We Introduce Privacy Agents Or Regulate Privacy Intermediaries, Scott R. Peppet

Publications

No abstract provided.

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Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin Jan 2012

Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin

Publications

This Article provides an historically-rooted analysis of a recent spate of civil RICO complaints arising from labor union organizing campaigns. The Article historicizes contemporary civil RICO suits against labor unions by analogizing to nineteenth century conspiracy prosecutions of unions. In tracing this history of organized labor’s social standing, the Article addresses the cultural framing of the union and its place in political and cultural discourse over the past century. The civil RICO complaints have received limited scholarly attention mainly focusing on issues of federal preemption; this Article argues for a broad reading of the cases as a way to understand …

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Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin Jan 2012

Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin

Publications

This Article challenges the corporate-constructed image of American business and industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and doctrinal corporate law, this Article examines the ways that social and legal actors understand what it means for a corporation or its products to be American. In a global economy, what does it mean for a corporation to present the impression of national citizenship? Considering the recent bailout of American automotive corporations, the automotive industry today becomes a powerful vehicle for problematizing the conflicted public/private nature of the corporate …

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Fugitive Emissions: The Marcellus Shale And The Clean Air Act, Joseph Minott, Jonathan Skinner Jan 2012

Fugitive Emissions: The Marcellus Shale And The Clean Air Act, Joseph Minott, Jonathan Skinner

Publications

No abstract provided.

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Regulation Goes Medieval, Andrew A. Schwartz Jan 2012

Regulation Goes Medieval, Andrew A. Schwartz

Publications

Section 301 of the 2009 federal Credit Card Accountability, Responsibility, and Disclosure Act prohibits the issuance of consumer credit cards to young adults ages 18–20 unless the credit contract is cosigned by an older adult who accepts joint liability for the card, or else the young adult proves she has “independent means of repaying” her credit card obligations. This prohibition is at odds with a 50-year trend of extending the rights of adulthood to people ages 18–20. It also blocks an important source of credit for young entrepreneurs, who often use consumer credit to launch their enterprises.

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The Perpetual Corporation, Andrew A. Schwartz Jan 2012

The Perpetual Corporation, Andrew A. Schwartz

Publications

Courts and commentators take for granted that the ultimate objective of a business corporation is long-run profitability, not immediate profits. But a corporation is a creature of statute, so a statutory source for this rule must be found--or it is not really a rule. Yet prior literature has not identified any such legal basis, leaving a gap in corporate theory. This Article fills that gap by showing that the modern corporation is obliged to act with a long-term view because it has "perpetual existence" under the law. This Article then explains that because they must plan for a perpetual future, …

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Introductory Remarks: International Energy Governance, Lakshman Guruswamy Jan 2012

Introductory Remarks: International Energy Governance, Lakshman Guruswamy

Publications

No abstract provided.

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Sovereignty And The Promotion Of Peace In Non-International Armed Conflict, Anna Spain Jan 2012

Sovereignty And The Promotion Of Peace In Non-International Armed Conflict, Anna Spain

Publications

No abstract provided.

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The Water Marketing Solution, Mark Squillace Jan 2012

The Water Marketing Solution, Mark Squillace

Publications

No abstract provided.

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Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur Jan 2012

Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur

Publications

No abstract provided.

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