Digital Commons Network^™

Cost-Benefit Analysis And The Structure Of The Administrative State: The Case Of Financial Services Regulation, Richard L. Revesz

Faculty Articles

The viability and desirability of conducting cost-benefit analysis of financial regulation is a subject of intense academic debate. Opponents claim that such analysis is feasible for environmental regulation but not for financial regulation because of the difference in the benefits that require monetization in the respective areas. This Article argues that the recent debate misses an important part of the problem. In large part, cost-benefit analysis of financial regulation cannot currently be performed successfully because of institutional shortcomings, not analytical difficulties. Compared to Executive Branch agencies, independent agencies, like the major financial regulatory agencies, lack the capacity to do cost-benefit …

Designed To Fail: The President's Deference To The Department Of Justice In Advancing Criminal Justice Reform, Rachel E. Barkow, Mark Osler

Faculty Articles

One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress. We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice. In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting commonsense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety. These examples and basic institutional design theory both point …

Why Incentives For "Patent Holdout" Threaten To Dismantle Frand, And Why It Matters, Richard A. Epstein, Kayvan B. Noroozi

Faculty Articles

An increasing number of judges, legislators, and scholars, particularly in the United States, have wrongly come to believe that the commitment that standard-essential patents be licensed on “fair, reasonable, and nondiscriminatory terms” (“FRAND”) was principally created to advance the interests of technology implementers, and have too often given a preference toward implementers’ interests in interpreting FRAND agreements. That premise has led American courts to take a categorically hostile view toward awarding injunctions against implementers who infringe valid standard-essential patents, fearing that the injunctive remedy would give innovators undue leverage. Indeed, American courts have been so unilaterally concerned with innovators’ conduct …

The Decline Of The Dormant Commerce Clause, Daniel Francis

Faculty Articles

A profound transformation has been worked in the law of the dormant Commerce Clause. Much contemporary scholarship and many modem decisions of the Supreme Court present the essential structure and content of the doctrine in the form that it held through the middle decades of the 20th century (hereafter the "Traditional Framework"). But in truth the Court has dramatically eroded the dormant Commerce Clause since the mid-1980s, leaving it today a slender remnant of the traditional model. This Article tracks three dimensions of the doctrine's precipitous decline. First, the Court has profoundly eroded the rule against discriminatory regulation, focusing almost …

Bleistein, The Problem Of Aesthetic Progress, And The Making Of American Copyright Law, Barton C. Beebe

Faculty Articles

This Article presents a revisionist account of the 1903 Supreme Court case Bleistein v. Donaldson Lithographic Co. and the altogether decisive and damaging influence it has exerted on the making of modern American copyright law. Courts and commentators have long misunderstood Justice Holmes’s celebrated opinion for the majority in Bleistein in two fundamental ways. First, we have misunderstood Holmes’s oft-cited declaration that a work need merely express its author’s “personality” to satisfy copyright law’s originality requirement. Scholars have cited Bleistein’s—and our current law’s—nominal originality requirement as conclusive evidence that literary romanticism did not significantly influence American copyright law. In fact, …

Retooling And Coordinating The Approach To Prosecutorial Misconduct, Anthony C. Thompson

Faculty Articles

Prosecutorial misconduct has stubbornly remained a troubling feature of the American criminal justice system. Judges and scholars have bemoaned its persistence, and some have warned that it threatens to reach epidemic proportions. The problem is that the current approaches we deploy to surface, investigate, and stop such misconduct are inadequate to the task. Too often, the courts, scholars, and the public misread the scope of the problem. They want to treat responses to prosecutorial misconduct as a product of individual bad actors. These individual "bad apples" are viewed as outliers and disconnected from office leadership. But the misconduct is rarely …

The Transnational Case In Conflict Of Laws: Two Suggestions For The New Restatement Third Of Conflict Of Laws—Judicial Jurisdiction Over Foreign Defendants And Party Autonomy In International Contracts, Linda J. Silberman, Nathan D. Yaffe

Faculty Articles

To inform the ongoing Restatement efforts in Conflict of Laws and Foreign Relations, the authors identify two areas where the transnational case might deserve special consideration: judicial jurisdiction over foreign defendants and party autonomy in choosing the applicable law. On the question of judicial jurisdiction, the authors point out that the modern two-step constitutional test for specific jurisdiction articulated in Asahi—minimum contacts and then reasonableness—involved a foreign defendant. Although the lower courts appear to embrace the same standard with respect to both domestic and foreign defendants, they argue that the factors identified by the court in the reasonableness analysis best …

Concepts Before Percepts: The Central Place Of Doctrine In Legal Scholarship, Richard A. Epstein

Faculty Articles

Modern legal scholarship often relegates doctrinal work to a lower-status tier than empirical research, economic modeling, and philosophical speculation. That move is a big mistake. It is only by knowing how cases fit together with each other and with some overarching theory of social welfare that it is possible to be sensible in applying current doctrine to legal disputes and in formulating alternative approaches. Initial theoretical mistakes cannot be cured by their repeated application, which only renders the law more confused and indeterminate than before. The consequences of root error are accordingly examined in three areas: consequential damages, personal jurisdiction, …

Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer

Faculty Articles

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply …

Barry Feld: An Intellectual History Of A Juvenile Court Reformer, Martin Guggenheim

Faculty Articles

The article of Professor Barry Feld’s that provides the foundation for this special issue of the Nevada Law Journal—My Life in Crime: An Intellectual History of the Juvenile Court—chronicles the transformation of the juvenile justice system over the course of the past five decades. Feld is certainly the right person to tell this story. He is perhaps the leading scholar in juvenile justice of his generation. And, probably more than any other scholar, his scholarship has had a direct impact on juvenile court practice. He has been a prosecutor, law professor, researcher, commission member, and scholar. He was among the …

The Sec’S Shift To Administrative Proceedings: An Empirical Assessment, Stephen J. Choi, A. C. Pritchard

Faculty Articles

Congress has repeatedly expanded the authority of the SEC to pursue violations of securities laws in proceedings adjudicated by the SEC's own administrative law judges, most recently through the Dodd-Frank Act. We report the results from an empirical study of SEC enforcement actions against non-financial public companies to assess the impact of the Dodd-Frank Act on the balance between civil court and administrative enforcement actions. We show a general decline in the number of court actions and an increase in the number of administrative proceedings post-Dodd-Frank. At the same time, we show an increase in average civil penalties post-Dodd-Frank for …

The Persistence Of The Confederate Narrative, Peggy C. Davis, Aderson Francois, Colin Starger

Faculty Articles

Ever since the United States was reconstituted after the Civil War, a Confederate narrative of states’ rights has undermined the Reconstruction Amendments’ design for the protection of civil rights. The Confederate narrative’s diminishment of civil rights has been regularly challenged, but it stubbornly persists. Today the narrative survives in imprecise and unquestioning odes to state sovereignty. That appreciation of the doctrines of federalism and separation of powers should govern adjudication of the Constitution’s meaning is unarguable. That it should preclude national responsibility for the protection of human rights is, however, unacceptable. We analyze the relationship, over time, between assertions of …

No Room For Error: Clear-Eyed Justice In Forensic Science Oversight, Erin E. Murphy

Faculty Articles

The memorandum issued by the Legal Resource Committee to the Organization of Scientific Area Committees (OSAC) convened by the National Institute of Standards and Technology (NIST) is remarkable as much for its existence as for its content. Despite a long history of formal and informal calls to radically restructure forensic science in the United States, the march of reform has been slow and plodding. The emergence of the OSAC, in direct response to the critiques lodged in the 2009 National Academy of Sciences report, marked one small but meaningful step to prod forensic science away from the strict control of …

A Reply To Professor Dan Subotnik, Wiiliam E. Nelson

Faculty Articles

I wrote “The Emerging American Police State” in an effort to address two important issues of constitutional dimension. It would have been much easier to “get over it,” as Professor Subotnik has advised, and simply pay the $180 tribute that the state was demanding. After all, I’ve spent $180 for which I’ve received no value on many occasions in the past and cannot even remember the times I’ve done it. But I remain convinced, especially after reading Professor Subotnik’s response, that paying tribute and getting over it would have been wrong.

Misappropriation On A Global Scale: Extraterritoriality And Applicable Law In Transborder Trade Secrecy Cases, Rochelle C. Dreyfuss, Linda J. Silberman

Faculty Articles

To begin the discussion on extraterritoriality and applicable law in trade secrecy cases, Part I provides a short survey of national trade secrecy laws. It demonstrates the many ways in which even countries that all operate under the TRIPS Agreement and generally agree on the availability of protection can nonetheless make divergent policy choices and enact laws that differ in critical detail. In short, this Part exposes how clashes among national trade secrecy laws can easily occur. Part II reviews the limits that modern courts have imposed on the extraterritorial reach of federal legislation and elucidates the Supreme Court’s two-step …

Limitless Worker Surveillance, Ifeoma Ajunwa, Kate Crawford, Jason M. Schultz

Faculty Articles

From the Pinkerton private detectives of the 1850s, to the closed-circuit cameras and email monitoring of the 1990s, to new apps that quantify the productivity of workers, and to the collection of health data as part of workplace wellness programs, American employers have increasingly sought to track the activities of their employees. Starting with Taylorism and Fordism, American workers have become accustomed to heightened levels of monitoring that have only been mitigated by the legal counterweight of organized unions and labor laws. Thus, along with economic and technological limits, the law has always been presumed as a constraint on these …

Achieving Antidiscrimination Objectives Through "Safe Harbor" Rules For Cases Of Chronic Hiring Aversion, Samuel Estreicher

Faculty Articles

This paper urges government agencies responsible for enforcing antidiscrimination laws to use existing authority to promulgate “safe harbor” rules to encourage employment of individuals who are unlikely to obtain employment because of the risks to employers of an erroneous hiring, coupled with the improbability of enforcement. Such perennially frustrated job seekers include individuals aged 65 and over, individuals with obvious disabilities whose employment entails significant accommodation costs, and individuals convicted of serious crimes. Without detracting from traditional education and enforcement activities, the responsible administrative agencies should promulgate “safe harbors” for employers willing to hire individuals from these categories of high …

Truth, Lies, And Power At Work, Cynthia Estlund

Faculty Articles

In her Article entitled Truth and Lies in the Workplace: Employer Speech and the First Amendment, Professor Helen Norton has highlighted an Achilles’ heel of labor and employment law, and has sought to address it: that body of law is almost completely dependent for its enforcement on employees’ assertion of their own rights; yet employees are widely ignorant of their rights, and employers sometimes actively mislead them. Her focus is not on how the law might intervene to educate employees and protect them from misinformation; there are some familiar policy tools at hand both to regulate employer misrepresentations and to …

The Anti-Deference Pro-Preemption Paradox At The U.S. Supreme Court: The Business Community Weighs In, Catherine M. Sharkey

Faculty Articles

Two indicia of the Roberts Court’s alleged pro-business leanings are, first, its readiness to find state tort law preempted by federal law and, second, its skepticism toward Auer deference to federal agencies. But it is difficult to reconcile individual Justices’ — particularly those identified as part of the “conservative core” — pro-preemption positions and anti-Auer positions, and this tension suggests that the oft-advanced pro-business narrative warrants a closer look. The tension is on clearest display in drug preemption cases, where even the most anti-agency deference Justices readily defer to the Food and Drug Administration (FDA), particularly when the agency’s interpretation …

Improving The Uniform Partition Of Heirs Property Act, Rishi Batra

Faculty Articles

Johnny Rivers was born and had lived his whole sixty-nine-year life on the same seventeen-acre tract on Clouter Creek near the Cainhoy Peninsula of Charleston, South Carolina. His father owned the land since 1888, and his family had worked the land and paid taxes, never missing a tax payment. He thought he and his family would live on the land for the rest of his life.

However, in 2000, he received a letter telling him he was the subject of a legal action called a "partition.” A family member who was a part owner of the land and whom Rivers …

Justice, Interrupted: The Effect Of Gender, Ideology, And Seniority At Supreme Court Oral Arguments, Tonja Jacobi, Dylan Schweers

Faculty Articles

Oral arguments at the U.S. Supreme Court are important—they affect case outcomes and constitute the only opportunity for outsiders to directly witness the behavior of the Justices of the highest court. This Article studies how the Justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument …

Buying Happiness: Property, Acquisition, And Subjective Well-Being, David Fagundes

Faculty Articles

Acquiring property is a central part of the modern American vision of the good life. The assumption that accruing more land or chattels will make us better off is so central to the contemporary preoccupation with acquisition that it typically goes without saying. Yet an increasing body of evidence from psychologists and economists who study hedonics—the science of happiness—yields the surprising conclusion that getting and having property does not actually increase our subjective well-being. In fact, it might even decrease it. While scholars have integrated the insights of hedonics into other areas of law, no scholarship has yet done so …

Internet Safe Harbors And The Transformation Of Copyright Law, Matthew Sag

Faculty Articles

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made …

Vulnerability And Inevitable Inequality, Martha Albertson Fineman

Faculty Articles

The abstract legal subject of liberal Western democracies fails to reflect the fundamental reality of the human condition, which is vulnerability. While it is universal and constant, vulnerability is manifested differently in individuals, often resulting in significant differences in position and circumstance. In spite of such differences, political theory positions equality as the foundation for law and policy, and privileges autonomy, independence and self-sufficiency. This article traces the origins and development of a critical legal theory that brings human vulnerability to the fore in assessing individual and state responsibility and redefining the parameters of social justice. The theory arose in …

Judging Law In Election Cases, Michael S. Kang, Joanna Shepherd

Faculty Articles

In Part I, we introduce our earlier work on election cases and judicial partisanship before setting forth our new approach to studying the influence of law on judicial decisionmaking. We describe the special nature of the election cases in our database that allow more persuasive inferences of judicial partisanship than typically derived in empirical work on judicial behavior. We then explain our new approach for measuring case strength based on counterpartisan decisionmaking by judges. In Part II, we apply our approach to case strength to our dataset and present our results. In a nutshell, partisanship appears to matter as expected …

Invisible Bosses For Invisible Workers, Or Why The Sharing Economy Is Actually Minimally Disruptive, Deepa Das Acevedo

Faculty Articles

Because the idea that sharing economy companies operate as invisible bosses is central to many critiques of this new approach to labor exchange, Part I begins by explaining just what it is about their authority that makes it “invisible.” Part II extends this discussion to two earlier developments that, like the sharing economy, also significantly transformed the way Americans work: the franchise explosion of the 1950s and the spread of the independent contractor model in the late twentieth century. This article is the first to offer a detailed comparison of work practices used by sharing economy companies, franchises, and some …

Sovereignty And Social Change In The Wake Of India's Recent Sodomy Cases, Deepa Das Acevedo

Faculty Articles

American constitutional law scholars have long questioned whether courts can truly drive social reform, and this uncertainty remains even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India—spurred by developments in a special type of legal action developed in the late 1970s known as public interest litigation (PIL)—have only recently begun to question the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged and optimism that public interest litigation can be returned …

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren L. Hutchinson

Faculty Articles

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

Valuation In Chapter 11 Bankruptcy: The Dangers Of An Implicit Market Test, Diane Lourdes Dick

Faculty Articles

Large corporate debtors typically include broad legal disclaimers in their financial disclosures to the bankruptcy court, such that the valuation estimates they offer in support of a proposed plan of reorganization are essentially meaningless. Some bankruptcy courts, however, discourage parties from litigating valuation; instead, they encourage them to negotiate, trusting that to the extent the debtor's estimates are woefully out of sync, the bargaining process will cause the debtor to pursue a restructuring that rests upon a more accurate value estimation. Meanwhile, these same courts interpret a lack of viable challenges to the debtor's valuation estimates as evidence of their …

Environmental Racism, American Exceptionalism, And Cold War Human Rights, Carmen G. Gonzalez

Faculty Articles

Environmental justice scholars and activists coined the terms “environmental racism” to describe the disproportionate concentration of environmental hazards in neighborhoods populated by racial and ethnic minorities. Having exhausted domestic legal remedies (or having concluded that these remedies are unavailable), communities of color in the United States are increasingly turning to international human rights law and institutions to challenge environmental racism.

However, the United States has ratified only a handful of human rights treaties, and has limited the domestic application of these treaties through reservations and declarations that preclude judicial enforcement in the absence of implementing legislation. Indeed, the U.S. has …