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Full-Text Articles in Entire DC Network
All The World's A Platform?: Some Remarks On 'Marketplace Platform' Employment Laws, Michael C. Duff
All The World's A Platform?: Some Remarks On 'Marketplace Platform' Employment Laws, Michael C. Duff
Faculty Articles
This paper addresses the enactment of marketplace platform laws which have arisen as a remarkable feature of the gig economy in recent years A marketplace platform law decides the question of whether an individual worker is an independent contractor or an employee ' an ongoing controversy in all employment law including workers' compensation law ' by emphasizing factors other than those normally considered in traditional legal analyses As of this writing seven states appear to have enacted marketplace platform lawsbrbrIn short marketplace platform laws ' developed substantially and lobbied aggressively by the company Handy Inc ' make it much easier …
The Shifting Law Of Sexual Speech: Rethinking Robert Mapplethorpe, Amy M. Adler
The Shifting Law Of Sexual Speech: Rethinking Robert Mapplethorpe, Amy M. Adler
Faculty Articles
This Article explores the dramatic changes that have occurred over the last thirty years in the First Amendment doctrines governing sexual speech. As a prism through which to evaluate these changes, I consider the thirtieth anniversary of the landmark Robert Mapplethorpe trial, the first censorship prosecution against an art museum in the history of this country and the defining battle in the culture wars that roiled post-Reagan America. The target was the exhibition of formally beautiful, sexually hard-core photographs by Robert Mapplethorpe on view at a museum in Cincinnati. The controversy that erupted over those images—fueled by anxieties about AIDS, …
Policing's Information Problem, Barry Friedman, Elizabeth G. Jánszky
Policing's Information Problem, Barry Friedman, Elizabeth G. Jánszky
Faculty Articles
We spend over $100 billion each year on policing in the United States, yet have very little idea of what keeps us safe. From the adoption of new technologies like facial recognition to militarization to stop-and-frisk tactics, and much else, police in the United States pursue public safety strategies without understanding the full range of costs or benefits. There is a particularly troubling tendency to ignore the social costs (the impact policing practices have on individuals)—and the distributional costs (how policing regularly falls most heavily on racial and marginalized communities). As a result, we don’t know what keeps us safe, …
Participation And Polarization, Richard H. Pildes
Participation And Polarization, Richard H. Pildes
Faculty Articles
Campaign-finance reformers have turned in recent years to a novel form of publicly-financed elections—small-donor matching programs—as the way to reduce the perceived corruption that arises from the current role of money in American elections. The rise of the Internet and social media have transformed the way campaigns are funded and turned small donors into a major force in American campaigns. The 2018 elections dramatically demonstrated the new power of small donors. Building on this transformation, the focus of reform efforts are now programs that match small donations ($200 or less) with public funds, which typically provide $6 in public funds …
Using The Corporate Prosecution And Sentencing Model For Individuals: The Case For A Unified Federal Approach, Rachel E. Barkow
Using The Corporate Prosecution And Sentencing Model For Individuals: The Case For A Unified Federal Approach, Rachel E. Barkow
Faculty Articles
This essay explores the different approaches the Department of Justice and Sentencing Commission have taken to individual and corporate defendants and explain why aspects of the corporate model should apply to individual cases as well. Part I will describe the key attributes of the modern federal model for individuals. Its emphasis is on controlling the discretion of line prosecutors and judges and shows a marked preference for severity. Part II will explain how the approach to corporate criminal law enforcement emphasizes individual assessment, the need to balance the costs of punishment with its benefits, and an emphasis on considering other …
Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Robert E. Scott, Stephen J. Choi, Mitu Gulati
Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Robert E. Scott, Stephen J. Choi, Mitu Gulati
Faculty Articles
The phenomenon of “sticky boilerplate” causing inefficient contract terms to persist exists across a variety of commercial contract types. One explanation for this failure to revise suboptimal terms is that the key agents on these transactions, including attorneys and investment bankers, are short sighted; their incentives are to get the deal done rather than ensure that they are using the best terms possible for their clients. Moreover, these agents face a first mover disadvantage that deters unilateral revisions to inefficient terms. If agency costs are indeed driving the stickiness phenomenon, we expect that the pace of revision will vary across …
Constitution By Convention, Samuel Issacharoff, Trevor W. Morrison
Constitution By Convention, Samuel Issacharoff, Trevor W. Morrison
Faculty Articles
Constitutionalism has never been exclusively reduced to the written text either in terms of its commands or its interpretation. In the United States, lived experiences and institutional arrangements “can inform our determination of what the law is,” as the Supreme Court recently noted. Nevertheless, the precise relation between written text and settled institutional practice remains a subject of disagreement and even confusion. The scholarly literature has only recently begun to treat these issues with the seriousness they deserve. We bring to this debate a sensibility that beneath the constitutional text there lies a world of institutional settlement—or constitution by convention—in …
Post-Traumatic Stress Disorder (Ptsd) Coverage And Other Expanding Benefit Changes In The Workers' Compensation Insurance Marketplace: Academic Legal Perspective, Michael C. Duff
Faculty Articles
This paper discusses the increased use of causation presumptions in workers compensation cases involving firefighters and other first responders It also considers increasing workers compensation coverage of post traumatic stress disorder with respect to those same categories of workersThe paper discusses how workers compensation coverage of certain conditions tends to parallel the growth of potential tort liability observes that disease presumptions were a feature of early 20th century workers compensation statutes and so are not new and argues that recognition of workers compensation mentalmental claims has been consistent with zone of danger expansion of the negligent infliction of emotional distress …
The Hollowed Out Common Law, Samuel Issacharoff, Florencia Marotta-Wurgler
The Hollowed Out Common Law, Samuel Issacharoff, Florencia Marotta-Wurgler
Faculty Articles
The electronic marketplace poses novel issues for contract law. Contracts created through browsewrap, clickwrap, and shrinkwrap (contracts whose embedded terms are only available after purchase) poorly fit doctrines that emerged from face-to-face offer and acceptance, the mutual execution of a common set of documents, or the rituals of mass market transactions involving physical fine print. Not surprisingly, these contracts of the new electronic marketplace require doctrinal elaboration. Our Article asks not about the specific resolution of new doctrinal challenges, but about how the common law of contracts will be elaborated. Specifically, the Article begins with empirical observations about the domain …
An Intersection Of Gender, Race, And Sports: Guidelines For Universities Determining Whether Athletes Accused Of Title Ix Violations Should Be Removed From Their Teams, David A. Grenardo
An Intersection Of Gender, Race, And Sports: Guidelines For Universities Determining Whether Athletes Accused Of Title Ix Violations Should Be Removed From Their Teams, David A. Grenardo
Faculty Articles
Sexual assault on college campuses remains an epidemic. As universities attempt to handle Title IX complaints regarding sexual misconduct, they must protect the academic environment and integrity of their schools. Since athletes are three times more likely to be accused of sexual assault than non-athletes, and schools have historically mishandled complaints against athletes, the proposed guidelines in this Article provide an equitable approach for determining when an athlete should be removed from his team based on accusations of a Title IX violation. The guidelines are based on the newly implemented Title IX regulations and take into account the interests and …
How Much Is Too Much? A Test To Protect Against Excessive Fines, Daniel S. Harawa
How Much Is Too Much? A Test To Protect Against Excessive Fines, Daniel S. Harawa
Faculty Articles
Fines are the most common form of punishment in the United States, and are disparately imposed against poor people of color. The stories of fines ruining lives abound. Yet until last year, in most state courts, it was not clear whether a person could challenge financial punishment imposed against them as unconstitutional. That changed when the Supreme Court held in Timbs v. Indiana that the Eighth Amendment’s Excessive Fines Clause applies to the states. Despite the fact that all state and federal courts must now be equipped to decide whether financial punishment violates the Eighth Amendment, the Supreme Court has …
Manning V. Caldwell: A Harbinger?, Daniel S. Harawa
Manning V. Caldwell: A Harbinger?, Daniel S. Harawa
Faculty Articles
Last term, the Fourth Circuit heard three cases en banc. One case, Manning v. Caldwell, involved a challenge to Virginia's habitual drunkard statute. In Manning, the Fourth Circuit split 8-7. The majority opinion, written jointly by Judges Motz and Keenan, garnered eight votes. The principal dissent, authored by Judge Wilkinson, was joined by five judges. Judge Diaz wrote a separate dissent. While the various opinions in Manning are interesting, this Article is not about their reasoning. It is about the conflict they revealed. Judge Keenan wrote a separate concurrence lamenting the tone of the principal dissent, and Judge Wilkinson wrote …
Commodity & Propriety In Contemporary New York City, Katrina M. Wyman
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
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
"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
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
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
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
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 …
Outside Advisers Inside Agencies, Brian D. Feinstein, Daniel J. Hemel
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
"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
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
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
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
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
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
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
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
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
Festschrift: Personal Recollections Of Professor Robert F. Williams, Helen Hershkoff
Faculty Articles
Festschrift for Professor Robert F. Williams.