Digital Commons Network^™

Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

State-Local Litigation Conflicts, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

The Sec's Shareholder Proposal Rule: Creating A Corporate Public Square, James D. Cox, Randall S. Thomas

Faculty Scholarship

In this Article, we take advantage of this Symposium’s goals to think broadly about the future of Rule 14a-8 of the Securities Exchange Act of 1934, the shareholder proposal rule. We set forth a vision for the rule to address boardroom insularity by likening the shareholder proposal rule as the public square for shareholders. The existence of such a forum would redound to the benefit of investors, officers, and boards of directors as a fount of current and useful information about their investors’ and stakeholders’ concerns.

Without Religion W(H)Ither Family Law?, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Ada Constrained: How Federal Courts Dilute The Reach Of The Ada In Prison Cases, Prianka Nair

Faculty Scholarship

No abstract provided.

Christian Dignity And The Overlapping Consensus, Frederick Mark Gedicks

Faculty Scholarship

This Article rejects arguments by Christian leaders, scholars, and others who lament the secularization of the West and urge Christian dignity as the foundation of universal human rights. It argues instead that only a secular conception of dignity free of Christian metaphysics can create an overlapping consensus in support of human rights.

Part I describes the roots of Christian dignity in medieval theology and status. Part II briefly recounts how the Renaissance and Enlightenment re-centered the end of dignity from knowing God to knowing oneself, while the Reformation’s extension of original sin to the intellect left Catholicism as the primary …

Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim

Faculty Scholarship

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.

Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological …

Pore Space Property, Joseph A. Schremmer

Faculty Scholarship

Through modern technology we can use the void pore space of underground rock formations for a growing number of socially beneficial purposes. These run the gamut from unconventional oil and gas production to climate change mitigation. The common law of property and tort, however, has struggled to keep up with advancing technology in this area. Significant questions remain about the nature of property rights in pore space. Of particular interest are the limits, if any, on an owner’s right to use pore space for beneficial purposes when it extends beneath the land of another. For example, may A hydraulically fracture …

Takings Localism, Nestor M. Davidson, Timothy M. Mulvaney

Faculty Scholarship

Conflicts over “sanctuary” cities, minimum wage laws, and genderneutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local …

Nature’S Personhood And Property’S Virtues, Laura Spitz, Eduardo M. Peñalver

Faculty Scholarship

This Article evaluates the strategy of claiming personhood for natural objects as a way to advance environmental goals in the United States. Using the Colorado River Ecosystem v. Colorado litigation as the focus, we explore the normative foundation of the claim—elements of nature are legal persons—and the work personhood is being asked to do by the plaintiff and other environmental activists. We identify three possibilities: procedural work, substantive work, and rhetorical work. Of those, we suggest the plaintiff’s strongest case is rhetorical. We say this not only because it will likely be difficult to convince a judge to extend standing …

Would Reasonable People Endorse A ‘Content-Neutral’ Law Of Contract?, Aditi Bagchi

Faculty Scholarship

This essay raises two challenges to Peter Benson’s compelling new account of contract law. First, I argue that Benson’s use of the concept of reasonableness goes beyond the Rawlsian account to require that we impute to others a capacity to transcend their contingent circumstances in the context of contractual choice. In fact, our choices in contract are driven by external contingencies and it is only reasonable to take those constrains on other people’s choices into account. Second, I contest Benson’s related claim that contract law should be, and largely is, content-neutral. I argue to the contrary that the justice of …

Peeling Apple: Antitrust Standing & Intermediary Defendants, John E. Lopatka

Faculty Scholarship

When market intermediaries unlawfully acquire market power, vertically related market participants may sue under the antitrust laws to recover damages. Their ability to recover depends upon an intricate set of doctrines that define private standing, including the indirect-purchaser rules set down by the Supreme Court most notably in Illinois Brick. In Apple Inc. v. Pepper, the Court decided the application of the indirect-purchaser rules to a particular kind of intermediary, a platform in a two-sided market. The Article explores private antitrust standing doctrines as they apply to market intermediaries, using Apple to frame the exposition. The Court there held that …

Metaphors Of International Law, Harlan G. Cohen

Faculty Scholarship

This chapter explores international law in search of its hidden and not-so-hidden metaphors. In so doing, it discovers a world inhabited by states, where rules are mined or picked when ripe, where trade keeps boats forever afloat on rising tides. But is also unveils a world in which voices are silenced, inequality is ignored, and hands are washed of responsibility.

International law is built on metaphors. Metaphors provide a language to describe and convey the law’s operation, help international lawyers identify legal subjects and categorize situations in doctrinal categories, and provide normative justifications for the law. Exploring their operation at …

Crime And The Mythology Of Police, Shima Baradaran Baughman

Faculty Scholarship

The legal policing literature has espoused one theory of policing after another in an effort to address the frayed relationship between police and the communities they serve. All have aimed to diagnose chronic policing problems in working towards structural police reform. The core principles emanating from these theoretical critiques is that the mistrust of police among communities of color results from maltreatment, illegitimacy and marginalization from the law and its enforcers. Remedies have included police training to encourage treating people with dignity, investing in body cameras and other technology, providing legal avenues to encourage constitutional action by police, and creating …

Deep Tracks: Album Cuts That Help Define The Essential Scalia, Gary S. Lawson

Faculty Scholarship

Jeff Sutton and Ed Whelan have collected some of Justice Scalia’s “greatest hits” in a volume entitled The Essential Scalia: On the Constitution, the Courts, and the Rule of Law. The book is an excellent introduction to the jurisprudential thought and literary style of one of the most influential legal thinkers—and legal writers—in modern times. As with any “greatest hits” compilation, however, there are inevitably going to be key “album cuts” for which there will not be space. This essay seeks to supplement Sutton and Whelan’s invaluable efforts by surveying three of those “deep tracks” that shed particular light on …

Foreword, Jennifer Taub

Faculty Scholarship

This Foreword highlights the central points of the Articles in Volume 43, Issue 1 of Western New England Law Review. The Article topics include emotional support animals, distribution rights for small beer brewers, fairness in accident insurance coverage, alternative legal education materials, and custody challenges for parents with abusive partners. Each share the identification of a perceived problem with the legal status quo and presents proposed solutions.

Professor Justice Ginsburg: Justice Ginsburg's Love Of Procedure And Jurisdiction, Zachary D. Tripp, Gillian E. Metzger

Faculty Scholarship

As two of Justice Ginsburg’s former clerks, we are keenly aware of the popular image of the Justice as the “Notorious RBG”: the champion of women’s rights and the forceful dissenter, strongly disputing the Roberts Court’s conservative turn and articulating the case for the liberal New Deal constitutional vision, with its commitment to protecting individual rights and broad view of national power.

This she did, powerfully and eloquently. But to understand Justice Ginsburg – the person, the Justice, and her jurisprudence – it is also critical to account for her role as the Supreme Court’s leading civil procedure and federal …

A Code Of Ethics For Gene Drive Research, George J. Annas, Chase L. Beisel, Kendell Clement, Andrea Crisanti, Stacy Francis, Marco Galardini, Roberto Galizi, Julian Grunewald, Greta Immobile, Ahmad S. Khalil, Ruth Muller, Vikram Pattanayak, Karl Petri, Ligi Paul, Luca Pinello, Alekos Simoni, Chrysanthi Taxiarchi, J. Keith Joung

Faculty Scholarship

Gene drives hold promise for use in controlling insect vectors of diseases, agricultural pests, and for conservation of ecosystems against invasive species. At the same time, this technology comes with potential risks that include unknown downstream effects on entire ecosystems as well as the accidental or nefarious spread of organisms that carry the gene drive machinery. A code of ethics can be a useful tool for all parties involved in the development and regulation of gene drives and can be used to help ensure that a balanced analysis of risks, benefits, and values is taken into consideration in the interest …

Othering Across Borders, Steven Arrigg Koh

Faculty Scholarship

Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering.

Race, Risk, And Personal Responsibility In The Response To Covid-19, Aziza Ahmed, Jason Jackson

Faculty Scholarship

The COVID-19 crisis has tragically revealed the depth of racial inequities in the United States. This Piece argues that the disproportion­ate impact of the pandemic on racial minorities is a symptom of a failing approach to public health, one that privileges individual behaviors over the structural conditions that generate vulnerability and inequitable health outcomes. Despite clear racial disparities in illness and deaths, the neoliberal ideology of personal responsibility shifts the onus for mitigation of risk away from the social and legal determinants of health and onto the individual. To understand how and why these disparate racial outcomes arise, this Piece …

Competitive Governance And Displacement Decisions Under Rebel Rule: Evidence From The Islamic State In Iraq, Mara Redlich Revkin

Faculty Scholarship

When rebel groups with state-building ambitions capture territory, who stays and why? Through semi-structured interviews and an original household survey in the Iraqi city of Mosul, which was controlled by the Islamic State for more than three years, I conduct a multi-method descriptive comparison of the characteristics of “stayers” against “leavers.” I test and find some quantitative and qualitative support for a theory of competitive governance: Civilians who perceived improvements in the quality of governance under IS rule—relative to the Iraqi state—were more likely to stay under IS rule than those who perceived no change or a deterioration, but displacement …

Cryptocurrency And The State: An Unholy Alliance, Lee Reiners

Faculty Scholarship

This article contextualizes the rise of cryptocurrency within the historical relationship between money and the state. It begins by asking two simple yet critical questions: What is money and where did it come from? Armed with the answers, the article proceeds by taking a fresh look at cryptocurrency through the lens of the credit theory of money. It finds that cryptocurrency, by using new technologies and incentive-based design, attempts to overcome the previous geographic limitations that hindered broad adoption of private currencies. Even with these innovations, cryptocurrency appeared unlikely to challenge the supremacy of sovereign money until Facebook announced the …

Panel One: Classification And Access To National Security Information, Mary-Rose Papandrea, Margaret Kwoka, David Pozen, Stephen I. Vladeck

Faculty Scholarship

This article is a transcript of the first panel of First Amendment Law Review’s 2021 Symposium on National Security, Whistleblowers, and the First Amendment, discussing classification and access to national security information.

Private Facilitators Of Public Regulation: A Study Of The Environmental Consulting Industry, Dave Owen

Faculty Scholarship

Most accounts of businesses and regulators depict adversarial relationships. In these accounts, businesses typically seek to avoid or limit public regulation or, alternatively, to distort it so it serves private rather than public ends. This article uses a study of the environmental consulting industry to explore a different set of relationships between businesses and public regula- tion. These consultants generally work for for-profit companies, and they serve as regulatory intermediaries between busi- nesses and government. Those dual roles raise concerns that environmental consultants, like many other businesses, will seek to subvert regulatory schemes or will serve as instruments of regulatory …

Minimizing The Impact Of Cognitive Bias In Transactional Legal Education, Alina S. Ball

Faculty Scholarship

This Article explores methods law professors can employ to address the cognitive biases their law students possess. This Article provides concrete thoughts on how transactional law clinics can utilize the social, political, and neuroscience research included in this symposium edition.

Groundwater Recharge For A Regional Water Bank: Kern Water Bank, Kern County, California, Michael Kiparsky, Kathleen Miller, Phoebe Goulden, Anita Milman, Dave Owen

Faculty Scholarship

The Kern Water Bank is a semi-private groundwater bank operated by the Kern Water Bank Authority in Kern County, CA. The bank stores water from the State Water Project (SWP), Central Valley Project (CVP), and the Kern River. It is massive in scale, covering over 20,000 acres, with approximately 2.5 million acre feet diverted to the bank since 1995. The bank stores water on behalf of its member water agencies, which include both public and private water entities mainly focusing on agricultural use, along with a small number of municipal and residential customers. Water is withdrawn by the member agencies …

Wilderness Law In The Anthropocene: Purism Or Pragmatism, Phillipa C. Mccormack, Benjamin J. Richardson, David Takacs, Kees Bastmeijer

Faculty Scholarship

Wilderness is vanishing. Despite explicit legislative protection of wilderness values for over half a century, rapid environmental degradation worldwide in recent decades has severely diminished the extent and quality of terrestrial and marine wilderness to the point where we must reassess the fundamental premises and future of wilderness law. With increased human demands on the natural world, and with climate breakdown looming, the very notion of “wilderness” itself may one day be considered meaningless or irrelevant. We examine legal developments in the United States, Australia, and Europe to critically evaluate the state of wilderness law. In this Anthropocene era, when …

We Are The River, David Takacs

Faculty Scholarship

The New Zealand Parliament has recently granted the Whanganui River and the Te Urewera mountain ecosystem rights as legal persons, with a Māori governing board to speak for the nonhuman entities, based upon traditional cultural precepts. Far from an isolated precedent, in what the U.N. Secretary General calls “the fastest growing legal movement of the twenty-first century,” legislatures, courts, or voters in Australia, Colombia, Ecuador, Bangladesh, India, Uganda, and the U.S. have also declared that rivers and other living systems have legal rights. This Article chronicles the movement to grant nonhuman entities legal rights. I analyze the statutes and judicial …

Covid-19 Antibody Testing As A Precondition For Employment: Ethical And Legal Considerations, Sara Gerke, Gali Katznelson, Dorit R. Reiss, Carmel Shachar

Faculty Scholarship

Employers and governments are interested in the use of serological (antibody) testing to allow people to return to work before there is a vaccine for SARS-CoV-2. We articulate the preconditions needed for the implementation of antibody testing, including the role of the U.S. Food & Drug Administration.

Covid-19 And Regulating Vaccines, Dorit R. Reiss

Faculty Scholarship

No abstract provided.