Digital Commons Network^™

Countering Gerrymandered Courts, Jed H. Shugerman

Faculty Scholarship

The key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.

This Piece offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping …

Firearms And Protest: Lessons From The Black Tradition Of Arms, Nicholas J. Johnson

Faculty Scholarship

Kenosha was no aberration. Our history is filled with episodes of righteous protest boiling over into violence. Where violence is imminent, our traditions and laws allow innocents to use corresponding violence in self-defense. This arrangement is imperfect and demands hard thinking about how to refine and possibly improve it. One source of lessons toward this end is the experience of Black freedom fighters who navigated turmoil that dwarfs our current troubles. The principles that guided their struggle help frame a sphere of legitimate gun use during periods of civil unrest. These principles emerge from a considered philosophy and practice of …

In The Zone: Work At The Intersection Of Trade And Migration, Jennifer Gordon

Faculty Scholarship

Trade and immigration are generally described as separate dimensions of globalization. This Article challenges that story by focusing on settings where states and private actors are bringing the two together to achieve disparate economic and policy goals. In one set of cases analyzed here, governments in the Global South are seeking to increase trade through the use of migrant labor, attracting transnational firms to export manufacturing zones by importing lower-cost workers from other countries. In the other, policymakers in the Global North are seeking to decrease immigration through the use of trade by investing in export processing zones in migrant …

Traveling Judges, Alyssa S. King, Pamela K. Bookman

Faculty Scholarship

Around the world, domestic courts focused on commercial disputes hire foreign judges. The practice seems to resemble arbitration, but is also rooted in colonialism. These traveling judges are predominantly retired English judges hired by small, market-dominant jurisdictions, like Hong Kong or Dubai. The judges’ identities reveal efforts to harness business preferences for English common law into domestic court systems. While judges aspire to spread the rule of law, local politics may dictate these courts’ futures. This Article maps the practice of traveling judges and explores its implications.

Negotiating Status: Pro Bono Partners And Counsels In Large Law Firms, Atinuke O. Adediran

Faculty Scholarship

Law firm pro bono work provides access to justice to low-income people and other vulnerable populations. The professionals that manage pro bono programs are at the forefront of that process. The limited available research on these professionals do not often distinguish lawyers from other managers or theorize about their status vis-à-vis other law firm lawyers. Yet the status of lawyers who are also managers of pro bono programs influences both their identities and the management and provision of legal services and advocacy. Drawing on original demographic and interview data, this article shows how law firm pro bono partners and counsels …

Evidence Circuit Splits, And What To Do About Them, Daniel J. Capra, Jessica Berch

Faculty Scholarship

The Federal Rules of Evidence are designed to be simple and user-friendly — able to be deployed quickly and nimbly in the heat of trial. Despite this laudable goal, some of the rules present interpretive challenges. This Article explores approximately a dozen of the most deeply entrenched and troubling circuit splits involving Rules 407, 611, 702, 801, 803, 804, 806, and 1006.

More specifically, the circuit splits addressed are: (1) Whether the rule excluding subsequent remedial measures requires a showing that the defendant’s change was in response to the plaintiff’s injury, and also whether the rule is applicable in actions …

The Textual Canons In Contract Cases: A Preliminary Study, Ethan J. Leib

Faculty Scholarship

This Essay is a first effort to explore how linguistic canons function in contract cases. Most lawyers know about ejusdem generis, expressio unius, and noscitur a sociis from their work in statutory interpretation, but no one has attempted any systematic inquiry into how these canons figure in contract interpretation. Looking at two jurisdictions’ use of textual canons in contract cases over time and in careful detail, this Essay reports findings and offers preliminary conclusions, about the specific jurisdictions under review and more generally in a comparative vein, both inter-jurisdictionally and as compared to what we know about the same canons’ …

The Bi-Partisan Enabling Of Presidential Power: A Review Of David Driesen's 'Specter Of Dictatorship: Judicial Enabling Of Presidential Power, Jed H. Shugerman

Faculty Scholarship

No abstract provided.

Federalism, Private Rights, And Article Iii Adjudication, John M. Golden, Thomas H. Lee

Faculty Scholarship

This Article sheds new light on the private rights/public rights distinction used by the Supreme Court to assess the extent to which the United States Constitution permits adjudication by a non-Article III federal tribunal. State courts have traditionally been the primary deciders of lawsuits over private rights—historically defined as suits regarding “the liability of one individual to another under the law as defined.” If Congress could limitlessly assign adjudication of private rights cases to federal officials lacking the life tenure and salary protections of Article III judges, the political branches of the federal government would enjoy vastly expanded authority to …

Housing The Decarcerated: Covid-19, Abolition & The Right To Housing, Norrinda Brown

Faculty Scholarship

The coronavirus pandemic revealed the need to advance the right to housing and abolition movements. The need for advancements in both spaces was no more painfully apparent than among the recently decarcerated population. Securing housing for the recently decarcerated is particularly difficult due to the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court’s ruling in HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels: eligibility, enforcement, and set asides. As …

Caribbean “Credit Nations”: Consignment Economies In The British West Indies, Eleanor Brown

Faculty Scholarship

No abstract provided.

Journeys Through Space And Time While Reading International Law And The Politics Of History, Found On A Palimpsest, Translated For You, The Reader, Harlan G. Cohen

Faculty Scholarship

I was invited to a symposium on Anne Orford’s book, International Law and the Politics of History. On my way there, my mind wandered, and I found myself lost in a forest of half-remembered stories and unfinished thoughts. Searching for a way out, this is what I discovered.

Clean Air Act Section 115: Is The Ipcc A “Duly Constituted International Agency”?, Adam D. Orford

Faculty Scholarship

Does the Environmental Protection Agency’s (“EPA”) receipt of the Assessment Reports of the Intergovernmental Panel on Climate Change (IPCC) trigger the agency’s duties under Section 115 of the Clean Air Act? The law requires EPA to take action to prevent or eliminate air pollution endangering the public health or welfare of foreign nationals under certain circumstances. If triggered, the argument goes, the law could justify, or compel, EPA’s imposition of nationwide greenhouse gas regulation to combat climate change. One way to do so is to trigger EPA’s duties “upon receipt of reports, surveys or studies from any duly constituted international …

Ai Governance In The Financial Industry, Robin C. Feldman, Kara Stein

Faculty Scholarship

Legal regimes in the United States generally conceptualize obligations as attaching along one of two pathways: through the entity or the individual. Although these dual conceptualizations made sense in an ordinary pre-modem world, they no longer capture the financial system land­ scape, now that artificial intelligence has entered the scene. Neither person nor entity, artificial intelligence is an activity or a capacity, something that mediates relations between individuals and entities. And whether we like it or not, artificial intelligence has already reshaped financial markets. From Robinhood, to the Flash Crash, to Twitter's Hash Crash, to the Knight Capital incident, each …

The House Always Wins: Doctrine And Animus In California’S Covid-19 Prison Litigation, Hadar Aviram

Faculty Scholarship

No abstract provided.

Pursuing Citizenship During Covid-19, Ming Hsu Chen

Faculty Scholarship

No abstract provided.

A Health Justice Response To School Discipline And Policing, Thalia Gonzalez, Alexis Etow, Cesar De La Vega

Faculty Scholarship

Inequities in school discipline and policing have been long documented by researchers and advocates. Longitudinal data is clear that Black, Indigenous, people of color (BIPOC) students are punished and policed at higher rates than their white classmates. For students who have disabilities, especially those with intersectional identities, the impact of school discipline and policing is amplified, with disparities existing at some of the highest rates across multiple categories. And this disproportionality has not diminished during short- and long-term school closures resulting from the COVID-19 pandemic. In fact, schools have employed new models of exclusion in the pandemic setting that operate …

The Death Of Law, Ugo Mattei

Faculty Scholarship

This is a talk about the decline and fall of constitutional law, an over-arching characteristic of the new millennium. I focus on the period from the end of the Cold War—once described as the end of history—to what I call the “Second Cold War” beginning in the second decade of this century and having escalated in the proxy war in Ukraine. The Second Cold War is also characterized by an aborted cooptation of China through the World Trade Organization (to tame China’s seemingly unstoppable ascension to global supremacy) as well as a state of per-manent emergency.

Brains Without Money: Poverty As Disabling, Emily R. Murphy

Faculty Scholarship

e United States has long treated poverty and disability as separate legal and social categories, a division grounded in widespread assumptions about the “deserving” and “undeserving” poor. In the case of disability, individuals generally are not thought to be morally responsible for their disadvantage, whereas in the case of poverty, individuals are assumed to be at fault for their disadvantage and are therefore less deserving of aid. This Article argues that recent advances in brain and behavioral science undermine the factual basis for those assumptions. Poverty inhibits brain development during childhood and, later in life, adversely affects cognitive capacities that …

Toward A Broader Vision Of Lawyering, Ascanio Piomelli

Faculty Scholarship

No abstract provided.

Drafting Agricultural Legislation, Jessica Vapnek

Faculty Scholarship

"Agricultural legislation” is an umbrella term that covers a broad range of topics, including food, veterinary matters, plant protection, seeds, forestry, fisheries, water, and land. Agricultural legislation also intersects with other discrete subject areas, including environment, health, and trade. Because of these interconnections the borderlines – where agriculture begins and these related topics end – are debatable. How different countries view agriculture varies significantly. In the developed world, agriculture is mostly a commercial enterprise, and “agricultural law” is considered largely to apply to the business of agriculture, including agricultural finance, supply chains, marketing, insurance (crop, drought, pest), real estate, intellectual …

Patents As Property For The Takings, Robin Feldman

Faculty Scholarship

The Fifth Amendment’s Compensation Clause contains only a few simple words: “nor shall private property be taken for public use without just compensation.” Yet these simple words have confounded legal minds for over 200 years, and as Congress has contemplated various patent law reforms in recent decades, the specter of the Fifth Amendment looms on the horizon. Conventionally, commentators and judges break down the clause into a few diferent components, each of which has generated a voluminous body of caselaw and corresponding scholarly inquiry. First, there is the question of takings: How does one know if something has been “taken” …

Critical Race Feminism, Health, And Restorative Practices In Schools: Centering The Experiences Of Black And Latina Girls, Thalia Gonzalez, Rebecca Epstein

Faculty Scholarship

Restorative practices (RP) in K-12 schools in the United States have grown exponentially since the early 1990s. Developing against a backdrop of systemic racism, RP has become embedded in educa- tion practice and policy to counteract the harmful and persistent patterns of disparities in school discipline experienced by students of color. Within this legal, social, and political context, the em- pirical evidence that has been gathered on school-based restora- tive justice has framed and named RP as a behavioral interven- tion aimed at reducing discipline incidents—that is, an “alternative” to punitive and exclusionary practices. While this view of RP is …

Standing For Rivers, Mountains - And Trees - In The Anthropocene, David Takacs

Faculty Scholarship

In his well-known article, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, Professor Christopher Stone proposed that courts grant nonhuman entities standing as plaintiffs so their interests may directly represented in court. In this Article, I review Stone’s ideas about standing and our relationship with the natural environment and describe the current, burgeoning, widespread trend toward granting not just standing, but legal rights and legal personhood to rivers, mountains, and other natural entities. I analyze the ways in which courts and legislatures in New Zealand, Australia, Colombia, and elsewhere are addressing concerns similar to Stone’s with expansive, even radical …

Practical Considerations In Starting And Operating An Academic Low-Income Taxpayer Clinic, Minoj Viswanathan, Amy Spivey

Faculty Scholarship

Low-income taxpayer clinics (“LITCs”) provide legal assistance to underserved clients with active federal tax controversies, conduct educational outreach to low-income and English-as-a-second-language taxpayers, and work to ensure the fairness and integrity of the tax system. Despite the availability of IRS grant funding for LITCs and the alignment of LITC goals with the core values that underlie clinical legal education, a relatively small percentage of U.S. law schools currently operates an LITC. Moreover, many law school LITCs have closed within the past ten years, demonstrating that, even if started, academic LITCs are challenging to sustain. This Article incorporates the authors’ experiences …

A Randomized Controlled Trial Of Self-Management For People With Epilepsy And A History Of Negative Health Events (Smart) Targeting Rural And Underserved People With Epilepsy: A Methodologic Report, Farren Briggs, Kristin Cassidy, Carol Blixen, Martha Sajatovic

Faculty Scholarship

Background: Many people living with epilepsy (PLWE) reside in rural communities, and epilepsy self-management may help address some of the gaps in epilepsy care for these communities. A prior randomized control trial of a remotely delivered, Web-based group format 12-week self-management program (SMART) conducted in Northeast Ohio, a primarily urban and suburban community, demonstrated improved outcomes in negative health events such as depression symptoms and quality of life. However, there is a paucity of research addressing the needs of PLWE in rural settings. Methods: The present study leverages collaboration between investigators from 2 mid-western US states (Ohio and Iowa) to …

The Public Meaning Thesis: An Originalist Theory Of Constitutional Meaning, Lawrence B. Solum

Faculty Scholarship

Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process …

Correlates Of Social Isolation Among Community-Dwelling Older Adults During The Covid-19 Pandemic, Omolola E. Adepoju, Minji Chae, Lechauncy Woodard, Kendra L. Smith, Luz E. Herrera, Daikwon Han, Daniel L. Howard, Jessica Dobbins, Marcia Ory

Faculty Scholarship

The past year has severely curtailed social interactions among older adults given their high rates of COVID-19 morbidity and mortality. This study examined social, behavioral, and medical correlates of social isolation among community-dwelling older adults during the COVID-19 pandemic and stratified findings to explore unique differences in two typically neglected populations, African American and Hispanic older adults.

Carbon Fiber Electrodes For Intracellular Recording And Stimulation, Yu Huan, Jeffrey P. Gill, Hillel J. Chiel

Faculty Scholarship

Objective. To understand neural circuit dynamics, it is critical to manipulate and record many individual neurons. Traditional recording methods, such as glass microelectrodes, can only control a small number of neurons. More recently, devices with high electrode density have been developed, but few of them can be used for intracellular recording or stimulation in intact nervous systems. Carbon fiber electrodes (CFEs) are 8 µm-diameter electrodes that can be assembled into dense arrays (pitches 80 µm). They have good signal-to-noise ratios (SNRs) and provide stable extracellular recordings both acutely and chronically in neural tissue in vivo (e.g. rat motor cortex). The …

Covid-19 In Pregnancy, Jill E. Miracle, Prakash R. Ganesh, Johnie Rose, Pauline Terebuh, Kurt C. Stange, Andrea Szabo, Heidi L. Gullett, Rachel Pope

Faculty Scholarship

Objective:To define the symptomatology of SARS-CoV-2 infection in pregnancy and associations between occupation, sociodemographic factors, and comorbidities with the severity of COVID-19 disease in pregnancy in all trimesters, regardless of hospitalization.Methods:We studied a retrospective cohort of a public health surveillance sample of persons with COVID-19 infection diagnosed during pregnancy. Data was collected March 2020 to August 2020 regarding symptoms, disease severity, comorbidities, obstetric history, and occupation.Results:One hundred sixty-three individuals were identified. Constitutional (64%) and lower respiratory symptoms (61%) were most common. Seventeen individuals (13.6%) were hospitalized, and one person (0.7%) died due to COVID-19. Risk factors for severe disease were …