Digital Commons Network^™

The Case For Tipping And Unrestricted Tip-Pooling: Promoting Intrafirm Cooperation, Samuel Estreicher, Jonathan Remy Nash

Faculty Articles

No law in the United States requires or prohibits customers from tipping employees for satisfactory service. Tip income is typically regarded as belonging to employees and may not be appropriated by the employer. Tipping is a widespread phenomenon in certain settings - restaurants, hotels, and gambling casinos. It is a form of performance-based variable compensation that is generally not found elsewhere in this country, where employees generally prefer fixed incomes over a defined period. As a general matter, our laws allow tipping but regulate the sharing of tip income among employees. In the restaurant setting, tip-pooling occurs when tips received …

The Black Police: Policing Our Own, Devon W. Carbado, L. Song Richardson

Faculty Articles

The problem of police violence against African Americans is a salient feature of nationwide discussions about race. Separate from whether racialized policing against African Americans is, in fact, a social phenomenon, is the contestable question about solutions: Assuming that African Americans are indeed the victims of overpolicing, what can we do about it? The answers range from abolishing police officers altogether, to training them, to diversifying police departments. We focus on the diversification of police departments in this essay. Drawing on empirical, historical, and theoretical literatures, we examine how, if at all, black police officers’ race might shape how they …

Standing With A Bundle Of Sticks: The All Substantial Rights Doctrine In Action, Mark J. Abate, Christopher J. Morten

Faculty Articles

This Article provides an overview of the Federal Circuit’s all substantial rights doctrine. Surveying decades of case law, this Article seeks to clarify this confusing area of the law and set out the essential rules for those engaged in patent licensing, patent assignment, and patent litigation. This Article begins by explaining why effective ownership of a patent is critical to standing, and then describes the framework through which courts determine whether a party is, in fact, in possession of all substantial rights and is therefore the effective owner. While there are many factors that courts may consider, certain rights take …

A Not Quite Contemporary View Of Privacy, Richard A. Epstein

Faculty Articles

It is important to understand the limitations of looking at a subject through a breathless contemporary lens. There is no doubt that major technological innovation will always spark a rethinking of how property rights and tort liability should be organized. There is no need to develop sensible rules dealing with upper airspace until the airplane indicates that the ad coelum rule has costs that are not incurred when that space is incapable of commercial exploitation. There is no need to develop an elaborate law of copyright until copying becomes cheap enough that it is worthwhile to steal someone else’s literary …

A Jewish State And A State For All Of Its Citizens: Addressing The Challenge Of Israel’S Arab Citizens, Samuel Estreicher

Faculty Articles

Israel has claimed since its founding that it is both a Jewish State, a special refuge for the Jewish people with an obligation to preserve Jewish culture, and a state for all of its citizens. Israel has maintained, largely successfully, a vibrant democratic and civil society in the face of ongoing threats to its national security and public order. On the level of formal equality, on such matters as voting rights, access to the courts and the provision of educational opportunities, Israel has lived up to its commitments to its Arab citizens. But there are a number of significant areas …

Positive And Negative Externalities In Real Estate Development, Richard A. Epstein

Faculty Articles

Externalities of all sorts and descriptions are a fixed feature of all real estate development in advanced societies, for much of the value of owning and using land derives from the simple fact that everyone has neighbors. But having neighbors is a two-edged sword, as they are welcomed on some occasions and scorned on others. To deal with inevitable appearance of neighbors, legal systems have developed a wide range of land-use control devices that have worked their way into the fabric of modern law. Thus modern legal systems contain techniques to regulate the use of land, such as private restrictive …

Rethinking Autocracy At Work, Cynthia Estlund

Faculty Articles

Book review of Private Government: How Employers Rule Our Lives (and Why We Don't Talk about It) by Elizabeth Anderson. Princeton University Press. 2017.

Issue Preclusion In Employment Arbitration After Epic Systems V. Lewis, Samuel Estreicher, Lukasz Swiderski

Faculty Articles

The Supreme Court’s 5-4 ruling in Epic Systems v. Lewis (2018) that class action waivers in employment arbitration agreements do not violate the National Labor Relations Act’s protection of “concerted activity” by employees may prompt further adoption of class action waivers in arbitration agreements. We consider in this article the prospect of greater use of offensive non-mutual issue preclusion (sometimes termed collateral estoppel) in employment arbitration as an alternative means of minimizing duplicative or inconsistent treatment of employment claims in arbitration. Focusing on confidentiality provisions and preclusion waivers as two obstacles to greater use of estoppel principles in arbitration, we …

The Law Of Nations And The Constitution: An Early Modern Perspective, David Golove, Daniel J. Hulsebosch

Faculty Articles

For political and cultural reasons that go beyond the boundaries of this forum, many American scholars, lawyers, and judges born in the latter half of the twentieth century have found it difficult to comprehend, or even recognize, the Founding generation’s commitment to the law of nations as a system of law, jurisprudence, and morality. Perhaps for similar reasons, that commitment tends to get lost in much modern historical writing. So, too, with respect to a related, but, from a legal perspective, more conse-quential aspect of the Founding: the prominent place of the law of nations in the constitutional reform project …

Presidential Obstruction Of Justice, Daniel J. Hemel, Eric A. Posner

Faculty Articles

Federal obstruction of justice statutes bar anyone from interfering with official legal proceedings based on a “corrupt” motive. But what about the president of the United States? The president is vested with “executive power,” which includes the power to control federal law enforcement. A possible view is that the statutes do not apply to the president because if they did they would violate the president’s constitutional power. However, we argue that the obstruction of justice statutes are best interpreted to apply to the president, and that the president obstructs justice when his motive for intervening in an investigation is to …

Administrative Constitutionalism In Immigration Law, Alina Das

Faculty Articles

The direct application of constitutional norms in immigration law has long been stymied by unique doctrinal and institutional barriers. Scholarship has focused on the role that federal courts may play in indirectly advancing constitutional norms through statutory interpretation and the use of subconstitutional norms in immigration cases. Despite the limited role of federal courts vis-à-vis the administrative state in the shaping of immigration law, less attention has been paid to the role of the executive branch in this arena. This Article addresses and critiques the current state of administrative constitutionalism in immigration law. As this Article describes, the executive branch …

The Roads To Reversing Brexit: Local And Transnational Constitutional Principles, Robert L. Howse

Faculty Articles

Support for Brexit as pursued by Prime Minister Theresa May is shaky and probably waning. An opinion poll conducted in August 2017 suggests that if another referendum on Brexit were to occur, the “Remain” side would win it comfortably. Moreover, as the government has pursued negotiations with Brussels on Brexit, its strategy has often been unclear and the “hard Brexit” approach of Britain—leaving without retaining access to the single market—has even less support than the general idea of Brexit and indeed is alarming to Britain’s business community. If these trends continue, and if a deal on Brexit that is acceptable …

Limiting The National Right To Exclude, Katrina M. Wyman

Faculty Articles

This essay argues that the robust right to exclude that nation states currently enjoy will be harder to justify in an era of climate change. Similar to landowners, nation states have virtual monopolies over portions of the earth. However, the right of landowner to control who enters their land is considerably more constrained than the right of nation states to control who enters their territory. Climate change will alter the areas of the earth suitable for human habitation and the broad right of nation states to exclude will be more difficult to justify in this new environment.

Arrested Development: Rethinking Fourth Amendment Standards For Seizures And Uses Of Force In Schools, Alexis Karteron

Faculty Articles

Fourth Amendment standards regarding seizures and uses of force against juveniles in schools require a critical reassessment. Although jurists and scholars have paid it scant attention, this branch of Fourth Amendment doctrine offers a valuable lens for understanding the school-to-prison pipeline and the power of law enforcement officers to detain, handcuff, and use force against schoolchildren. While the Supreme Court has announced principles regarding the Fourth Amendment in schools generally, it has never addressed this issue directly. This Article explores empirical findings on the role of law enforcement in schools and the unique characteristics of juveniles that should impact Fourth …

The Importance Of Scholarship To Law School Excellence, Wiiliam E. Nelson

Faculty Articles

In this Article, I examine the relationship between ideas and institutional excellence in legal education. Although I differ with him in regard to some details, Bob Kaczorowski has discussed the importance of ideas in the history of Fordham Law School, and so I will use his excellent book6 to articulate a paradigm that explains how ideas relate to institutional development. I will then use the paradigm to examine developments at Harvard Law School parallel to those that occurred earlier at Fordham. I agree with John Sexton that a good law school must be concerned with the “ought” of the law …

A Tale Of Two Hands: One Clapping; One Not, Burt Neuborne

Faculty Articles

I come both to praise and, metaphorically, to bury Learned Hand. I want to explore a riddle that has long perplexed me—how could the same intellectually-gifted judge—Billings Learned Hand—have written the remarkable and courageous 1917 District Court opinion in the Masses, enjoining the Postmaster General from banning an irreverent, radical, fervently anti-war Socialist journal from the mails at the height of World War I—an opinion that paved the intellectual path to the modern First Amendment’s understanding of the intimate relationship between democracy and vigorous judicial protection of free speech; and, thirty-three years later, have authored the chillingly depressing 1950 Second …

Brexit And Ip: The Great Unraveling?, Graeme B. Dinwoodie, Rochelle C. Dreyfuss

Faculty Articles

As the pieces in this Issue suggest, Brexit will, in theory, free the United Kingdom (U.K.) from the constraints and burdens of membership in the European Union (E.U.). It will transfer sovereignty back to the people from what was perceived as the technocratic rule of Brussels; replace the jurisprudence of the Court of Justice of the European Union (CJEU or Court of Justice) with the adjudicative power of national courts; and allow the U.K. to tailor its market regulation to the particular exigencies of its own economy. Whether, as a general matter, the restoration of a classic Westphalian state enhances …

The Role Of Exit Rights: What The Theory Of The Firm Says About The Conduct Of Brexit Negotiations, Richard A. Epstein

Faculty Articles

The United Kingdom’s (U.K.) June 2016 decision to exercise its option to leave the European Union (E.U. or Union) represents one of the great surprises in the complex history of supranational organizations. Most of the discussion in the wake of that decision has tended to stress the particulars of the referendum with regard to the short-term advantages and disadvantages of a decision that has clearly divided class and region within the U.K. Older individuals, and those who did not live and work in the Greater London area, tended to vote in favor of exit. Those who were younger and in …

Challenges And Opportunities Facing Successful Women In Mocrocco, Maia Hallward, Cortney Stewart

Faculty Articles

Over a decade since the passage of a revised family status code (mudawana)in Morocco, the literature varies in its assessment of the code's impact on women's rights and opportunities. While some studies point to the formal support for gender equality reflected in the revised code, others note that Moroccan women continue to face challenges in the social and symbolic spheres. Drawing on interviews conducted by the authors with women leaders in Morocco in 2016, this paper investigates the opportunities and obstacles these women have encountered in their personal journeys. The paper explores the extent to which elite background, …

Circus Arts Therapy Shows Clinical Benefits, Lauren Taglialatela, Circus Arts Institute

Faculty Articles

No abstract provided.

Patent Infringement As Trespass, Adam J. Macleod

Faculty Articles

The now-conventional account of patent law holds that infringement is a strict liability offense, meaning that intent is not an element of an infringement claim. This account heightens the apparent injustice of patent law's special knowledge problem, that as ambiguous descriptions of intangible resources, patent claims do not sufficiently make potential infringers aware of a patentee's right to exclude. Particularly in the age of so-called "patent thickets, " clusters of patents of variable merit which are indistinguishable from each other and from prior art, strict liability, or infringement seems rather hard.

These problems reflect a conceptual misunderstanding. When infringement is …

Reforming The Pentagon: Reflections On How Everything Became War And The Military Became Everything, Mark P. Nevitt

Faculty Articles

In this Essay, I first describe and analyze the two core laws that provide for the military’s legal organizational framework: the National Security Act of 1947 and the Goldwater-Nichols Act of 1986. Second, I highlight one example—the rise of special operations forces and covert action—where existing laws may be inadequate to restrain military action.

Polar Opposites: Assessing The State Of Environmental Law In The World's Polar Regions, Mark P. Nevitt, Robert Percival

Faculty Articles

Climate change is fundamentally transforming both the Arctic and Antarctic polar regions. Yet these regions differ dramatically in their governing legal regimes. For the past sixty years the Antarctic Treaty System, a traditional “hard law” international law treaty system, effectively de-militarized the Antarctic region and halted competing sovereignty claims. In contrast, the Arctic region lacks a unifying Arctic treaty and is governed by the newer “soft law” global environmental law model embodied in the Arctic Council’s collaborative work. Now climate change is challenging this model. It is transforming the geography of both polar regions, breaking away massive ice sheets in …

The Morality Of Compulsory Licensing As An Access To Medicines Tool, Margo A. Bagley

Faculty Articles

This Article contemplates the validity of theft rhetoric in relation to the right of countries to grant compulsory licenses from an unconventional perspective; that of biblical teachings on what it means to steal.

Part I describes the use of theft rhetoric in relation to IP infringement broadly and drug-patent compulsory licenses in particular.

Part II challenges the contention, suggested by theft rhetoric, that compulsory licenses are morally wrong as a form of stealing, by considering the meaning of theft in the context of its Judeo-Christian origins.

Part III considers the cogency of the accusation that the issuance of compulsory licenses …

Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema

Faculty Articles

This Article asks whether observable conflicts between Supreme Court justices—interruptions between the justices during oral arguments—can predict breakdowns in voting outcomes that occur months later. To answer this question, we built a unique dataset based on the transcripts of Supreme Court oral arguments and justice votes in cases from 1960 to 2015. We find that on average a judicial pair is seven percent less likely to vote together in a case for each interruption that occurs between them in the oral argument for that case. While a conflict between the justices that leads to both interruptions and a breakdown in …

Could Official Climate Denial Revive The Common Law As A Regulatory Backstop?, Mark P. Nevitt, Robert V. Percival

Faculty Articles

This Article makes two core arguments. First, it maintains that the common law of nuisance remains an essential backstop when existing regulatory authorities fail to address significant environmental problems. Second, reconnecting nuisance law to its historical roots, the Article maintains that common law litigation has served as an effective prod to help spur the development and implementation of new pollution control technology and to stimulate regulatory action to require its use, rather than serving as a vehicle for the judiciary to impose its own solutions for environmental problems.

This Article proceeds in four parts. Part I reviews the history of …

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

Defense Against The Dark Arts Of Copyright Trolling, Matthew Sag, Jake Haskell

Faculty Articles

In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at noninfringers as well as infringers. This practice is a subset of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet …

The Case For Tipping And Unrestricted Tip-Pooling: Promoting Intrafirm Cooperation, Samuel Estreicher, Jonathan R. Nash

Faculty Articles

This Article proceeds as follows. Part I presents doctrinal background. It discusses the laws governing tip-pooling, with an emphasis on relevant federal and state laws. Part II analyzes, from a law-and-economics perspective, how tip-pooling arrangements—both voluntary and mandatory—might arise, and what form they might take. Part III shows how governing law limits the ability of restaurateurs to put tip-pooling arrangements in place, and shapes the incentives of employees. It also analyzes the response of restaurants like the Union Square Hospitality Group that have barred all tipping. Part IV suggests revisions to existing law that would free up management’s freedom to …

A "Chinese Wall" At The Nation's Borders: Justice Stephen Field And The Chinese Exclusion Case, Polly J. Price

Faculty Articles

First, the sweeping implications of The Chinese Exclusion Case had as much to do with the Supreme Court's concerns about its relationship with both Congress and the President as it did with the Chinese as a disparaged racial group. There are other dimensions beyond race, and one of these was the Supreme Court's view of its role with respect to the other branches of government. Importantly, the Court did not decide the balance of authority between the President and Congress on matters of immigration, an omission that surely lessens its precedential value today.

Second, the Court's pronouncement in the Chinese …