Digital Commons Network^™

Effective Litigation Strategies To Improve State Education And Social Service Systems, Albert H. Kauffman

Faculty Articles

Texas border area Latino plaintiffs brought state court litigation, the Lulac case, to improve higher education opportunities in the Texas- Mexico borderlands. Plaintiffs successfully parlayed their trial court judgment into a massive influx of resources and permanent improvement in higher education in the Texas border. The Article describes the history of the Lulac case and includes an original analysis of the improvement of higher education in the Texas border area. The Article then develops a model for the successful integration of litigation, legislation, public advocacy and community involvement, and applies this model to the Lulac case and the Texas school …

Spokeo, Inc. V. Robins: The Illusory “No-Injury Class” Reaches The Supreme Court, Patricia W. Moore

Faculty Articles

The Supreme Court’s grant of certiorari in Spokeo, Inc. v. Robins and three other cases involving class actions in the October 2015 term could be a bad sign for those who think the class action should remain a viable species of private regulation. The grant of certiorari in Spokeo is also a bad sign for those who think Congress should be able to enact statutes regulating businesses’ behavior for the public good—the petitioner, Spokeo, and its army of business amici are urging the Court to cut the legs out from under many such statutes.

Corporate litigation activists such as the …

Can A Little Representation Be A Dangerous Thing?, Colleen Shanahan, Anna Carpenter, Alyx Mark

Faculty Articles

Access to justice interventions that provide a little representation, including nonlawyer representation and various forms of limited legal services, may be valuable solutions for low- and middle-income Americans. However, a thoughtful approach to improving access to justice efforts should recognize that a little representation may have risks. In particular, one potential risk of a little representation is that while it provides assistance with a discrete legal need in a specific moment, the nature of the assistance is incompatible with challenging the law. As a result, individual litigants do not have the benefit of legal challenges in their own cases and …

Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter

Faculty Articles

No abstract provided.

Judging Identity, Carla Pratt

Faculty Articles

No abstract provided.

The Grapes Of Wrath: On The Health Of Immigration Detainees, Stacey A. Tovino

Faculty Articles

This Article challenges the lack of health care provided to individuals in U.S. Immigration and Customs Enforcement (“ICE”) custody. As background, many immigration detainees are physically and emotionally vulnerable at the time of initial confinement due to a history of torture and trauma, which may include human trafficking, sexual violence, political oppression, psychosocial trauma, and acculturative stress. Detention can exacerbate preexisting vulnerabilities and contribute to severe physical and mental illness as well as death. Between October 2003 and October 2015, 153 individuals died while in ICE custody. Although most proposals for detainee health reform borrow heavily from constitutional law, international …

When Does A Juvenile Become An Adult? Implications For Law And Policy, Alexandra O. Cohen, Richard J. Bonnie, Kim A. Taylor-Thompson, B J. Casey

Faculty Articles

The U.S. Supreme Court has issued a series of landmark decisions regarding the culpability of juveniles under the age of eighteen and has increasingly referenced developmental science in these opinions. Still, the line between juvenile court jurisdiction and criminal court jurisdiction varies widely among state laws, as do the minimum ages for other legal or regulatory purposes. Although the operative age of “adulthood” typically falls somewhere between the ages of eighteen and twenty-one, it has been set lower in some important policy contexts, such as the age at which an adolescent is subject to criminal prosecution and punishment. Legal distinctions …

Constitutional Implications Of The Cost Of War, Lucas Issacharoff, Samuel Issacharoff

Faculty Articles

Institutional practices evolve to fill gaps in all constitutional blueprints. One of the underappreciated features of the initial constitutional settlement of war powers was the accountability of the executive through the process of budgetary authorization and the corresponding need for Congress to answer to the citizenry for the tax implications of military expenditures. This political accountability is more complex than often described, consisting not merely of the division of the Declare War and Commander-in-Chief Clauses of Article I and Article II, but also of the temporal limitation of the budgetary power for the army and a variety of practical and …

The New School Segregation, Erika K. Wilson

Faculty Articles

The South has a long and sordid history of resisting school desegregation. Yet after a long and vigorous legal fight, by the mid-1980’s, schools in the South eventually became among the most desegregated in the country. An important but often under appreciated tool that aided in the fight to desegregate schools in the South was the strategic use of school district boundary lines. Many school systems in the South deliberately eschewed drawing school district boundary lines around municipalities, and instead drew them around counties. The resulting county-based system of school districts allowed for the introduction of school assignment plans that …

The New Public, Sarah A. Seo

Faculty Articles

By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 1960s who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history …

Letter To Supreme Court (Erwin Chemerinsky Is Mad. Why You Should Care.), Barry Friedman

Faculty Articles

Ultimately, I have three recommendations. The first, oddly enough, is process based. I think you need an Advisory Committee, to help you navigate the challenges of how an institution like yours should do business in the twenty-first century. These questions are complicated and you clearly need some help. The second is a plea for a little self-restraint in your personal behavior and pronouncements. The third, on which I close, is a suggestion for getting back to judicial basics.

Obergefell V. Hodges And Nonmarriage Inequality, Melissa Murray

Faculty Articles

On June 26, 2015, the Supreme Court announced its much-anticipated decision in Obergefell v. Hodges, opening the door to nationwide recognition of marriage rights for same-sex couples. The public response to the Court’s decision was immediate and overwhelmingly positive. There is certainly much to celebrate about the Obergefell decision, but there is also cause for serious concern—even alarm. Although the Obergefell decision is a victory for same-sex couples that wish to marry, it is likely to have negative repercussions for those—gay or straight—who, by choice or by circumstance, live their lives outside of marriage. Obergefell builds the case for equal …

Is The Trans-Pacific Partnership’S Investment Chapter The New "Gold Standard"?, José E. Alvarez

Faculty Articles

The Trans-Pacific Partnership's Investment Chapter, and particularly its inclusion of investor-state dispute settlement (ISDS), has been the focus of considerable criticism both in the United States and New Zealand. Despite huge differences between these two potential TPP partners, the anticipated economic and political benefits offered by the pact – but also the threats to democracy posed – have been expressed in similar ways by distinct stakeholders in both countries. This essay describes how this chapter is the culmination of reforms to United States investment protection treaties that began with the investment chapter of the North American Free Trade Agreement in …

We Built It And They Did Not Come: Using New Governance Theory In The Fight For Food Justice In Low-Income Communities Of Color, Deborah N. Archer, Tamara C. Belinfanti

Faculty Articles

Food deserts and food insecurity have received considerable attention from various stakeholders, such as state and local governments, community organizations, and private sector institutions. These stakeholders have sought to overcome food insecurity by turning food deserts into oases by providing “access” to fresh, healthy food. However, many of their solutions—building supermarkets and sponsoring farmers markets—have missed the mark. Residents of food deserts did not flock to grocery stores to purchase fruits andvegetables. As a result, many stakeholders blame the residents of food deserts for their own predicament, lamenting, to paraphrase Field of Dreams, “we built it but they did not …

Selling Kids Short: How "Rights For Kids" Turned Into "Kids For Cash", Martin Guggenheim, Randy A. Hertz

Faculty Articles

In this Article, we will use one of JLC’s many victories, the case of the so-called “kids for cash” scandal of Luzerne County, Pennsylvania in 2008–2009, to look at the current state of juvenile justice and to look back at how we got here. This was a case so bizarre and shocking that it is still difficult to believe it could have happened, let alone that it could have taken place in the modern era. Over the course of roughly a decade, two judges in the western part of Pennsylvania made millions of dollars by wrongfully imprisoning more than 1,800 …

Secret Policing, Barry Friedman

Faculty Articles

This is a paper about secrecy and policing. It is written at a time of intense discussion about policing in America. There is widespread concern that policing agencies have lost the trust of the communities they are charged to police, and that the "legitimacy" of policing is at risk. Part of what is needed, no doubt, is greater transparency around policing. People do not trust those who keep secrets from them. But it goes beyond that. For too long policing has operated aloof from the regular workings of democracy. And there cannot be democratic engagement with policing if what those …

Redefining What’S “Reasonable”: The Protections For Policing, Barry Friedman, Cynthia Benin Stein

Faculty Articles

How should the Constitution govern police surveillance and investigations? Once, the formal rules were clear, even if not faithfully observed: searches and seizures required probable cause and a warrant. Today, however, the Supreme Court has said that many forms of police activity need only be “reasonable.” But what is required to ensure that policing is “reasonable”? This question has become all the more pressing and perplexing as policing has shifted from a reactive, investigative approach that centers on suspicion that a particular person has committed a particular crime to a more programmatic, deterrent approach that relies on searching and seizing …

Voter Welfare: An Emerging Rule Of Reason In Voting Rights Law, Samuel Issacharoff

Faculty Articles

For the first time in at least a generation, the central focus of voting rights law has returned to the issue of eligibility to cast a ballot and the act of voting itself. Unlike in prior generations, the fights over voting are centrally part of a partisan battle for electoral supremacy and are not organized around perpetuating the historic sub-ordination of minority populations—whatever the localized impact on minorities that the new voting rules may trigger. In the partisan environment, courts face claims of exclusion that only imperfectly map onto constitutional prohibitions of discrimina-tory intent or statutory protections of minority voting …

Something Old, Something New: Reflections On The Sex Bureaucracy, Melissa Murray, Karen Tani

Faculty Articles

This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation”—one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected bureaucrats have …

Reconsidering Experimental Use, Rochelle C. Dreyfuss

Faculty Articles

In the years since the Supreme Court began to narrow the scope of patentable subject matter, uncertainties in the law have had a deleterious impact on several important innovation sectors, including, in particular, the life sciences industry. There are now initiatives to expand patentable subject matter legislatively. In this article, I suggest that the Supreme Court’s jurisprudence is an outgrowth of the concern that patents on fundamental discoveries impede scientific research. To deal with that issue, any measure to expand the subject matter of patenting should be coupled with a parallel expansion of defenses to infringement liability, including the restoration …

The Norm Against Economic Espionage For The Benefit Of Private Firms: Some Theoretical Reflections, Samuel J. Rascoff

Faculty Articles

For decades, the American intelligence community has adhered to a norm against spying for the sake of enriching private firms. More recently, the norm has figured in a prominent presidential directive as well as in various international agreements. But notwithstanding its durability and its newfound renown, the norm has largely eluded scholarly consideration. In this Essay, I aim to address that gap by showing how theories of agency capture and institutional culture can help make sense of the norm’s past and inform judgments about its future.

Consent: What It Means And Why It’S Time To Require It, Stephen J. Schulhofer

Faculty Articles

In this paper, I argue that it is time—past time—to give workable content to the notion of sexual consent and to require it as a prerequisite to the penetration of another person. Before turning to the core of my argument, however, I will explain the precise form of consent that I defend. Although it should be uncontroversial that consent—whether favored or opposed—is something communicated by the totality of a person’s conduct, there remains potential ambiguity and significant disagreement about how such a requirement is best framed. In Part I, I describe alternative formulations of consent-by-conduct that are currently in play …

In Wakefield’S Wake: Rescuing New York’S Enterprise Corruption Jurisprudence, Noah A. Rosenblum

Faculty Articles

For many years, New York State’s enterprise corruption law was grounded in a legal error. Recently, the New York Court of Appeals has sought to correct some of the doctrinal consequences of this mistake. Unfortunately, the Court’s solution has left the law unmoored from its original purpose, perpetuated issues of notice and legality, and heightened the risk of overcriminalization. This Comment reconstructs and analyzes these developments. It then turns to the practice of a lone (and heretofore ignored) New York State trial court judge as a potential solution to the legal and policy problems created by the current state of …

Privileged Or Mismatched: The Lose-Lose Position Of African Americans In The Affirmative Action Debate, Devon W. Carbado, Kate M. Turetsky, Valerie Purdie-Vaughns

Faculty Articles

This Article challenges the perception of affirmative action as a racial preference. That perception has made the policy less constitutionally secure and more difficult normatively to defend. We focus our analysis on middle-class African Americans. We do so because the framing of affirmative action as a racial preference has particular traction when its beneficiaries are perceived to be black but not economically disadvantaged. Which is to say, if people believe that colleges and universities employ affirmative action to admit African Americans who are not economically disadvantaged, the conclusion that affirmative action is a racial preference is easy to reach: Black …

Where The Rubber Meets The Clouds: Anticipated Developments In Conflict And Conflict Resolution Theory, Heather Pincock, Timothy Hedeen

Faculty Articles

No abstract provided.

Of Blood And The Buddha: A Nichiren Primer On Counseling Clients, John W. Teeter Jr.

Faculty Articles

Should you pray when you bleed? More specifically, should a Buddhist woman refrain from chanting and reciting from the Lotus Sutra during her menstrual cycle? This was the query fielded by the fiery prophet Nichiren in 1264 in Kamakura, Japan.

Nichiren's response, however, is far more than a doctrinal resolution of an esoteric theological uncertainty. To the contrary, Nichiren's advice is a model of analysis, common sense, and compassion that today's attorneys would be wise to emulate. As set forth below, Nichiren's cautious, sensitive, and pragmatic approach provides an enlightened template on how we can best counsel our clients in …

The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, David Fagundes

Faculty Articles

This Article presents a novel view of the complex moral psychology of infringement. It does so both to complement extant critiques of copyright’s incentivist story and to provide a realistic account of owners’ motivations for infringement on which a more effective copyright regime may be built. We elaborate these claims as follows. Part I highlights the contrast between the robust critiques of copyright’s theory of creation and the paucity of attention to its theory of litigation, and illustrates the social costs produced by increasingly common infringement suits animated by nonfinancial concerns. Part II develops a psychology of infringement, rooted in …

Miranda 2.0, Tonja Jacobi

Faculty Articles

Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this Article analyzes the range of proposals and develops a realistic set of reforms — Miranda 2.0 — which is directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they …

The Supreme Court's Quiet Revolution In Induced Patent Infringement, Timothy R. Holbrook

Faculty Articles

The Supreme Court over the last decade or so has reengaged with patent law. While much attention has been paid to the Court’s reworking of what constitutes patent-eligible subject matter and enhancing tools to combat “patent trolls,” what many have missed is the Court’s reworking of the contours of active inducement of patent infringement under 35 U.S.C. § 271(b). The Court has taken the same number of § 271(b) cases as subject matter eligibility cases—four. Yet this reworking has not garnered much attention in the literature. This Article offers the first comprehensive assessment of the Court’s efforts to define active …

The Long Shadow Of Bush V. Gore: Judicial Partisanship In Election Cases, Michael S. Kang, Joanna M. Shepherd

Faculty Articles

Bush v. Gore decided a presidential election and is the most dramatic election case in our lifetime, but cases like it are decided every year at the state level. Ordinary state courts regularly decide questions of election rules and administration that effectively determine electoral outcomes hanging immediately in the balance. Election cases like Bush v. Gore embody a fundamental worry with judicial intervention into the political process: outcome-driven, partisan judicial decisionmaking. The Article investigates whether judges decide cases, particularly politically sensitive ones, based on their partisan loyalties more than the legal merits of the cases. It presents a novel method …