Digital Commons Network^™

Commodity & Propriety In Contemporary New York City, Katrina M. Wyman

Faculty Articles

This Essay analyzes the ongoing debate among a small number of legal and urban planning academics about how to address the high cost of housing in New York City. In a city where over two-thirds of households rent, this essentially is a debate about how to bring rents more in line with incomes. This Essay might be regarded as a piece of fan (non)fiction. Its focus is similar to Commodity & Propriety on elite views, it takes the book’s analytical structure as a starting point, and it offers a supplemental chapter.

The Racial Composition Of Forensic Dna Databases, Erin E. Murphy, Jun H. Tong

Faculty Articles

Forensic DNA databases have received an inordinate amount of academic and judicial attention. From their inception, numerous scholars, advocates, and judges have wrestled with the proper reach of DNA collection, retention, and search policies. Central to these debates are concerns about racial equity in forensic genetic practices. Yet when such questions arise, critics typically just assert that forensic DNA databases are not demographically representative. Such assertions are expressed in vague or conclusory terms, without a citation to actual data or even to concrete estimates about the actual composition of DNA databases. This Article endeavors to fill these gaps in the …

"Fighting Faiths," Error Deflection, And Free Speech, Burt Neuborne

Faculty Articles

Judicial promulgation and enforcement of enhanced error deflection rules in the context of speech regulation, dating from Justice Oliver Wendell Holmes Jr.’s celebrated dissent in Abrams v. United States, is the subject of this essay. Unlike many celebrated students of the power of judges to set aside the actions of democratically legitimate institutions, I do not believe that judicial invalidation of (1) statutes enacted by duly elected legislatures, (2) administrative actions taken by duly serving executives, and/or (3) verdicts issued by randomly selected juries are necessarily rooted in a judge’s allegedly superior ability to identify and define substantive rights codified …

Showcase Panel Ii: Why, Or Why Not, Be An Originalist?, Dean Reuter, Amy Coney Barrett, Michael C. Dorf, Saikrishna B. Prakash, Richard H. Pildes, Thomas Hardiman

Faculty Articles

On November 15, 2019, the Federalist Society hosted the second showcase panel of the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The topic of the panel was “Why, or Why Not, Be an Originalist?” There are a variety of arguments for following originalism today, such as justifications rooted in language, positivism, sovereignty, and consequences. This panel would look at many normative positions for and against originalism.

Patent Originalism, Richard A. Epstein

Faculty Articles

As the title to this article indicates, I shall engage in some sort of a quasi-originalist inquiry into the proper interpretation of this clause, in an effort to find out how it was understood during the founding period. I shall largely restrict myself to the patent line of cases. The evidence will in some cases go beyond that period to cover nineteenth-century cases which offer an accurate reflection of the earlier thinking, insofar as they exhibit no intention to alter the law from the way in which it was originally formed. The issue is of no little importance because the …

Holding Amazon Liable As A Seller Of Defective Goods: A Convergence Of Cultural And Economic Perspectives, Catherine M. Sharkey

Faculty Articles

Amazon’s e-commerce business, which offers a platform for third-party vendors, defies conventional categorization for products liability purposes. Professor Marshall Shapo’s conception of “tort law as a cultural mirror” sheds light on how products liability law has evolved so as to hold Amazon liable even as the seismic shift away from brick-and-mortar physical stores to the virtual marketplace has transformed the reasonable expectations of consumers. Holding Amazon liable is likewise supported by the economic perspective embodied in the “cheapest cost avoider” analysis; namely, that Amazon is best situated to take actions to minimize risks and prevent accidents from defective products. This …

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Faculty Articles

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …

Vedanta Resources Plc And Another V. Lungowe And Others, Tara Van Ho

Faculty Articles

In Vedanta v. Lungowe, the United Kingdom Supreme Court determined that civil claims for negligence brought by Zambian claimants against an English parent company (Vedanta) and its Zambian subsidiary (Konkola Copper Mines plc (KCM)) for damages experienced in Zambia can proceed in English courts. While framed as a domestic tort law case, the decision is significant for international efforts aimed at holding businesses accountable for their "negative impacts" on human rights.' Writing for a unanimous Court, Lord Briggs's judgment hinged narrowly on the right of victims to access substantial justice. More broadly, Lord Briggs suggested that parent companies that hold …

The Army's G-Rap Fiasco: How The Lives And Careers Of Hundreds Of Innocent Soldiers Were Destroyed, Jeffrey F. Addicott

Faculty Articles

The purpose of this article is three-fold. First, this article seeks to explore the legal and policy ramifications of the CID's multi-year criminal investigation, which targeted vast numbers of innocent Army National Guard and Army Reserve personnel for alleged criminality as contract employees in the G-RAP or AR-RAP.

Second, this article aims to highlight the CID's longstanding practice referred to as "titling"-of refusing to delete from their system of records those individuals that are subsequently cleared of any wrongdoing by their commands. This highly dubious administrative practice was particularly devastating to the hundreds of innocent and fully exonerated participants in …

The Case For The Rodeo: An Analysis Of The Houston Livestock Show And Rodeo's Inverse Condemnation Case Against The City Of Houston, Emilio R. Longoria

Faculty Articles

This Article will explore questions at the frontier of eminent domain law using the Houston Rodeo's 2020 closure as its case study. In doing so, it will attempt to clear the muddied waters of the Court's jurisprudence on compensable takings. Because of the Rodeo's location, and because of the Supreme Court's recent decision in Knick v. Townshjp of Scott, this analysis will be done using both federal and Texas law. However, since many state jurisdictions either parallel federal takings law or have made their respective takings statutes more stringent - finding compensable takings more easily than Texas or the federal …

Public Rights After Oil States Energy, Adam J. Macleod

Faculty Articles

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States last Term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public regulatory …

Arthur C. Y. Yao (1906-2004): A Pioneer Chinese Professor At St. Mary's University School Of Law, Robert H. Hu

Faculty Articles

No abstract provided.

Losing The Freedom To Be Human, Evelyn Aswad

Faculty Articles

In 2019, Apple’s CEO warned that contemporary business models, which are based on harvesting our personal data and monetizing everything we do online, violate our privacy and will eventually cause us “to lose the freedom to be human.” Others have taken this privacy concern a step further by questioning whether these business models undermine mental autonomy, i.e., the ability to think and form opinions. The burgeoning chorus of concerns has triggered a variety of high-profile calls to explore whether international human rights law protects against intrusions on the inner sanctum of one’s mind, particularly with respect to the business models …

Double Standards: An Empirical Study Of Patent And Trademark Discipline, Jon J. Lee

Faculty Articles

Our legal system is built on the foundation that lawyers have a number of coexisting and sometimes conflicting duties — to their clients, to others who might be affected by their practice, and to the effective and equitable administration of justice. While most lawyers fulfill these duties ethically, invariably some fail to live up to these expectations. For this reason, all states have created disciplinary authorities to regulate and sanction lawyer misconduct. The United States Patent and Trademark Office (“USPTO”) is one of the few agencies to have developed its own disciplinary system for policing the conduct of trademark attorneys …

Outside Advisers Inside Agencies, Brian D. Feinstein, Daniel J. Hemel

Faculty Articles

Advisory committees are a ubiquitous, yet understudied feature of the administrative state. More than seventy-five thousand experts from out-side the federal government serve on over one thousand committees across the Executive Branch, providing agencies with informed “second opinions” to complement their in-house experts in the civil service. By law, these committees must be “fairly balanced in terms of the points of view represented.” Yet little is known about whether advisory committees live up to this standard, under what circumstances agencies utilize these panels, and how advisory committees influence agency decisionmaking. This Article sheds light on the composition and operation of …

"Directly Adverse" Means Directly Adverse: How Courts Have Misread Rule 1.7(A)(1) And Why It Matters, Stephen Gillers

Faculty Articles

The Model Rules do not define “directly adverse.” These words limit a lawyer’s freedom to accept clients and a client’s ability to hire counsel of choice—this prohibition derives from the lawyer’s duty of loyalty. When, then, is a matter directly adverse to a nonparty client simply because the outcome could harm its interests? The answer to that question, the subject of this Article, is where the boundaries of Rule 1.7(a)(1) have been blurred, leaving the courts and the bar without adequate guidance. By confusing Rule 1.9(a)’s protection of a former client’s “interests” with Rule 1.7(a)(1)’s prohibition of direct adversity to …

Stop-And-Strip Violence: The Doctrinal Migrations Of Reasonable Suspicion, Devon W. Carbado

Faculty Articles

In 1968, the U.S. Supreme Court decided Terry v. Ohio. Writing for the Court, Chief Justice Earl Warren ruled that police officers may "stop-and-frisk" people whom they have reasonable suspicion to believe are armed and dangerous. The reasonable suspicion standard was an exception to the Fourth Amendment's probable cause requirement, one that the Chief Justice maintained would be narrowly tailored to circumstances under which police officers fear for their safety or the safety of others. Over the past forty years, that exception has metastasized across Fourth Amendment law, beyond the Terry stop-and-frisk context, to justify a range of governmental intrusions. …

Who’S Afraid Of Section 1498? A Case For Government Patent Use In Pandemics And Other National Crises, Christopher J. Morten, Charles Duan

Faculty Articles

COVID-19 has created pressing and widespread needs for vaccines, medical treatments, PPE, and other medical technologies, needs that may conflict – indeed, have already begun to conflict – with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government-paid compensation under 28 U.S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today a conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point …

On Power & Indian Country, Maggie Blackhawk

Faculty Articles

An invited essay by the Stanford Law Review on the author's experience as a woman in the legal profession for a volume published collectively by the top sixteen law reviews.

Stepping Up To The Challenge Of Leadership On Race, Anthony C. Thompson

Faculty Articles

This speech was delivered on November 8, 2019, at the Association of the Bar of the City of New York, as a part of a symposium entitled “Leading Differently Across Difference: A National Conference on Training Lawyers as Leaders” hosted by the Maurice A. Deane School of Law at Hofstra University and the school’s Freedman Institute.

Exile From Main Street, Deborah N. Archer

Faculty Articles

There is a growing web of policing-based housing policies that prohibit people who have had contact with the criminal legal system from living in public, subsidized, or private rental housing. This web of restrictions is consistent with America’s broader embrace of exile in response to perceived threats and is rapidly expanding against a backdrop of mass criminalization. While individual policing-based housing policies have received some scholarly attention, little has been written about their cumulative impact and the central role that mass criminalization plays in locking people out of housing. When the full array of restrictions on public and private housing …

Joint Employment: The Unintended And Unpredictable “Employment” Relationship, Richard A. Epstein

Faculty Articles

The following is a transcript of a 2018 Federalist Society panel entitled Joint Employment: The Unintended and Unpredictable "Employment" Relationship. The panel originally occurred on November 15, 2018, during the National Lawyers Convention in Washington, D.C.

In Defense Of International Comity, Samuel Estreicher, Thomas H. Lee

Faculty Articles

A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts’ refraining from hearing cases over which they have subject-matter jurisdiction because of international comity—respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the U.S. legal system …

The Law Of Corporate Investigations And The Global Expansion Of Corporate Criminal Enforcement, Jennifer H. Arlen, Samuel W. Buell

Faculty Articles

The United States model of corporate crime control, developed over the last two decades, couples a broad rule of corporate criminal liability with a practice of reducing sanctions, and often withholding conviction, for firms that assist enforcement authorities by detecting, reporting, and helping prove criminal violations. This model, while subject to skepticism and critiques, has attracted interest among reformers in overseas nations that have sought to increase the frequency and size of their enforcement actions. In both the U.S. and abroad, insufficient attention has been paid to how laws controlling the conduct of corporate investigations are critical to regimes of …

Festschrift: Personal Recollections Of Professor Robert F. Williams, Helen Hershkoff

Faculty Articles

Festschrift for Professor Robert F. Williams.

Black Markets And The Exchange Structure, Richard R. W. Brooks

Faculty Articles

Laws do not prevent crime. They create it. Volitional acts causing harm to persons and their interests of course occur with and without law (though presumably more often without) but to see these actions as criminal, to identify them properly as such, is possible only through law. So stated, the point is rather bromidic, and yet it does hint at a more profound question. Why make any conduct criminal? Answers to this question would appear obvious and overdetermined, at least, for some conduct. Victims of assaults, thefts, and other gross invasions of their persons and property needn’t testify as to …

Acts Of Oblivion, Kenji Yoshino

Faculty Articles

Bernadette Meyler’s Theaters of Pardoning offers a profound and provocative meditation on the relationship between forgiveness and the state. In this comment, I follow her methodological and substantive lead by taking literary and legal approaches to a curious form of pardoning she discusses in her work—the “Act of Oblivion.” The Act of Oblivion operated as a super-pardon: It was “a form of general amnesty erasing the record of the underlying events rather than simply remitting punishment.” Pardon is to oblivion as forgiving is to forgetting. Part I briefly describes the Act of Oblivion and its superficial merits. Part II turns …

Cities As International Environmental Actors: The Case Of Marine Plastics, Danielle Spiegel-Feld, Katrina M. Wyman

Faculty Articles

As the impacts of marine plastic pollution become ever more apparent, a number of states have begun calling for the development of a new international agreement to address the problem. This Essay considers which jurisdictional entities should be engaged in the drafting of such an agreement if one should materialize. While nation states have traditionally been the main entities recognized as having the legal personality to make treaties, cities have the potential to substantially advance efforts to mitigate certain international environmental problems, including the plague of global marine plastic pollution. We argue, on functional grounds, that this potential should be …

Regulation And Innovation: Approaching Market Failure From Both Sides, Yafit Lev-Aretz, Katherine J. Strandburg

Faculty Articles

Across markets and disciplines, regulation is often claimed to be the enemy of socially desirable innovation because of factors including innovation’s unpredictability and regulation’s compliance costs. In this essay, we bring an intellectual property scholars’ perspective to bear on the question of regulation’s impact on innovation. We offer a novel, yet intuitive analytical framework that takes both market demand failures and failures of supplier appropriability into account. Traditionally, regulation seeks to mitigate market failures that create deviations between the demand portfolio perceived by suppliers and the socially optimal demand portfolio. Studies of the interplay between regulation and innovation have mostly …

The Untenable Case For Keeping Investors In The Dark, Lucian A. Bebchuk, Robert J. Jackson Jr., James D. Nelson, Roberto Tallarita

Faculty Articles

This Article seeks to contribute to the heated debate on the disclosure of political spending by public companies. A rulemaking petition urging SEC rules requiring such disclosure has attracted over 1.2 million comments since its submission almost nine years ago, but the SEC has not yet made a decision on the petition. The petition has sparked a debate among academics, members of the investor and issuer communities, current and former SEC commissioners, and members of Congress. In the course of this debate, opponents of mandatory disclosure have put forward a wide range of objections to such SEC mandates. This Article …