Digital Commons Network^™

Decoding The Impossibility Defense, Daniel B. Yeager

Faculty Scholarship

Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated over 3000 criminal cases as on point, 1200 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation.

Although it is now hornbook that impossible attempts are …

How Asian Should Asian Law Be? – An Outsider’S View, Ralf Michaels

Faculty Scholarship

Is there an Asian identity of Asian law, comparable to European identity and therefore similarly useful as a justification for unification projects? If so, what does it look like? And if so, does this make Asia more like Europe, or less so? Or is this question itself already a mere European projection?

This chapter tries to address such questions. In particular, I look at a concrete project of Asian law unification—the Principles of Asian Comparative Law—and connect discussions about its Asian identity with four concepts of Asia. The first such concept is a European idea of Asia and Asian law, …

What Does Immigration Status Have To Do With Law School, Maryam Ahranjani

Faculty Scholarship

Young people who are undocumented are underrepresented in higher education in general and in law school in particular. Some states offer instate tuition and other supports for undocumented students, but more support is needed for undocumented students.

What To Expect When You’Re Expecting…Tanf-Style Medicaid Waivers, Laura D. Hermer

Faculty Scholarship

Many health policy scholars believe that Medicaid, the federal-state coverage program for lower-income Americans, should remain free from welfare reform trappings such as work requirements that are extraneous to the program. It would seem such requirements would be both inappropriate and counterproductive to the goals of Medicaid. Given the high probability that such requirements will, at least at some level, go into effect during the Trump administration, it bears considering what to expect. What evidence, if any, suggests that imposing welfare reform-style requirements on certain Medicaid beneficiaries will yield harmful results to those beneficiaries, or harmful to Medicaid’s programmatic goal …

Protecting The Sacred Writing: The Operating Agreement, Daniel S. Kleinberger

Faculty Scholarship

This column provides practical steps toward protecting an LLC's written operating agreement from claims of oral or implied-in-fact modification. Such claims undercut the purpose of “reducing the agreement to writing,” replacing definiteness with uncertainty and substituting swearing matches for the written word.

Out Of Thin Air: Trade Secrets, Cybersecurity, And The Wrongful Acquisition Tort, Sharon Sandeen

Faculty Scholarship

The analysis undertaken in this chapter was prompted by two puzzles. First, since U.S. trade secret law was developed based upon the breach of confidence law of England, and the law of England does not recognize an acquisition by improper means theory of recovery except in rare and nascent circumstances, how and why did such a theory develop in the United States? Second, to the extent the acquisition by improper means prong of U.S. trade secret law (unlike its counterpart in England) is disconnected from a duty of confidence and should be thought of as a separate tort, what are …

The "Guarantee" Clause, Ryan Williams

Faculty Scholarship

No abstract provided.

Is The President A Traitor? A Legal Analysis, Noah Kupferberg

Faculty Scholarship

No abstract provided.

Applying Daubert To Flaubert: Standards For Admissibility Of Testimony Of Writing Experts, Heidi K. Brown

Faculty Scholarship

No abstract provided.

Prediction, Persuasion, And The Jurisprudence Of Behaviorism, Frank Pasquale, Glyn Cashwell

Faculty Scholarship

No abstract provided.

Surprising Originalism, Lawrence B. Solum

Faculty Scholarship

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks …

Planning Your Class To Take Advantage Of Highly Effective Learning Techniques, James Mcgrath

Faculty Scholarship

What are the most highly effective learning techniques? Take a moment and consider what you think they are. Write them down if it is convenient. The symposium that is the subject of this law review volume examines the impact of formative assessment. In this article, I will connect formative assessment possibilities with ideas on how to take advantage of some of the proven highly effective learning techniques. The road there is a bit tortuous, but it is my hope that even the most well-informed teacher will find something that they can add to their quiver of techniques to help with …

Free Trade, Fair Trade, And Selective Enforcement, Timothy Meyer

Faculty Scholarship

No abstract provided.

The Trafficking Victim Protection Act: The Best Hope For International Human Rights Litigation In The U.S. Courts?, Sara Sun Beale

Faculty Scholarship

The article focuses on uses Alien Tort Statute as a vehicle for litigating human rights abuses in both civil and criminal prosecutions in the U.S. Topics discussed include developments in International Criminal Law in addressing human rights violations; judicial attitudes that could affect the interpretation of the Trafficking Victim Protection Act; and Sosa v. Alvarez-Machain court case on the same.

Building Multilateral Anticorruption Enforcement: Analogies Between International Trade & Anti-Bribery Law, Rachel Brewster, Christine Dryden

Faculty Scholarship

In the last twenty years, the United States government has put substantial resources behind the fight against .foreign bribery by using the Foreign Corrupt Practices Act (FCPA) to prosecute unilaterally foreign and domestic companies who engage in corruption abroad. The United States is not entirely alone in this effort, but other countries have been far less vigorous in investing resources in investigations and prosecuting cases. Because of the unilateral and extraterritorial nature of FCPA prosecutions, these cases are sometimes controversial as foreign governments resist American influence in their commercial relations.

In response to this international tension, as well as a …

Rights-Weakening Federalism, Shitong Qiao

Faculty Scholarship

This article examines whether federalism protects land rights in China from two dimensions. I first compare national law with local institutions of eminent domain, revealing that local governments take much more land than the national government approves, frequently violating, tweaking, and challenging national law. I next examine the impact of interjurisdictional competition on the development of local land institutions, demonstrating that local governments are weakening individual land rights for the benefits of mobile capital. Overall, Chinese federalism weakens rather than strengthens individual land rights and should be called rights-weakening federalism.

This China case also has general theoretical implications. Leading property …

The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy

Faculty Scholarship

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No …

Safe Harbors: The Many Benefits Of Marine Monuments And Sanctuaries, John F. Bruno, Whitley Saumweber, Larry B. Crowder, Linwood Pendleton, Stephen E. Roady, Tracy Rouleau, Miyoko Sakashita

Faculty Scholarship

The United States has been at the forefront of marine resource stewardship since the 1970s when Federal officials began to implement a series of national policies aimed at the conservation and management of public trust resources in the ocean. Beginning with the establishment of the National Oceanic and Atmospheric Administration in 1970, soon followed by several pieces of landmark legislation, this era marked the start of a continuing effort to integrate ecosystem science with marine resource management. Among the most important bipartisan legacies of this effort has been the steady expansion of marine managed areas in U.S. coastal and ocean …

The Lost Story Of Notice And Personal Jurisdiction, Robin Effron

Faculty Scholarship

No abstract provided.

Higher Education As A Human Right, Heidi Gilchrist

Faculty Scholarship

No abstract provided.

New Mexico’S Renewable Portfolio Standard: Analysis Of Existing Policy Design Elements And Compliance Obligations Beyond 2020, Gabriel Pacyniak

Faculty Scholarship

This white paper analyzes two elements of New Mexico’s current Renewable Portfolio Standard (RPS) in advance of the state legislature’s consideration of an RPS expansion in the 2019 legislative session. First, the paper surveys key policy design elements of the current RPS, compares those elements to other state RPSs, and identifies “policy considerations” that may inform legislative or regulatory action. Among the findings from this part of the analysis are that: 1) other states have set much higher RPS targets; 2) that New Mexico’s RPS has uniquely restrictive cost-containment measures that limit cost impacts but also prohibit the full RPS …

Ganesh Sitaraman’S Idealized American History, David B. Lyons

Faculty Scholarship

A popular theme among patriots is to celebrate America’s special virtues, which distinguish it radically from European models. Ganesh Sitaraman tells us that political constitutions have generally been designed to prevent socially destabilizing class warfare between the rich, who seek greater domination, and the poor, who would like to redistribute the former’s wealth. America’s Constitution is distinctive because it was consciously designed for a society in which the middle class is large enough to preserve social stability. That is why Sitaraman calls it a “middle-class constitution.”

Bringing Human Rights Into Bilateral Investment Treaties: South Africa And A Different Approach To International Investment Disputes, Erika George, Elizabeth Thomas

Faculty Scholarship

This Article therefore begins with a discussion of the Western imperialist history underlying the pasts of China and Africa, discussing the evolution of a Chinese-African economic alliance. Next, this Article discusses the broader roles of BITs in the ISDS system within the context of Chinese and South Africa BITs. It continues with a discussion on the Southern African Development Community's Model BIT, explaining why this particular model is a step in the right direction towards the protection of human rights in all IIAs. This Article highlights the relationship between international investment law, foreign direct investment ("FDI"), BITs, and human rights, …

Extremist Speech, Compelled Conformity, And Censorship Creep, Danielle K. Citron

Faculty Scholarship

Silicon Valley has long been viewed as a full-throated champion of First Amendment values. The dominant online platforms, however, have recently adopted speech policies and processes that depart from the U.S. model. In an agreement with the European Commission, tech companies have pledged to respond to reports of hate speech within twenty-four hours, a hasty process that may trade valuable expression for speedy results. Plans have been announced for an industry database that will allow the same companies to share hashed images of banned extremist content for review and removal elsewhere.

These changes are less the result of voluntary market …

Allocating Patent Litigation Risk Across The Supply Chain, Michael J. Meurer

Faculty Scholarship

The paradigmatic defendant in a patent lawsuit is a vertically integrated manufacturer. But much economic activity is conducted collaboratively by a supply chain of vertically disintegrated firms, and sometimes multiple firms are implicated in infringing activities, by making, selling, or using patented technology, or by contributing to or inducing another firm’s infringement. Often patent owners have the option of suing some or all of the members of a supply chain who contribute to the design, creation and marketing of a new technology.
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Excavating Race-Based Disadvantage Among Class-Privileged People Of Color, Khiara Bridges

Faculty Scholarship

The aim of this article is to begin to theorize the fraught space within which class-privileged racial minorities exist — the disadvantage within their privilege. The article posits that the invisibility of the racial subordination of wealthier people of color (that is, their marginalization on account of their race) is fertile soil for the germination of post-racialism — the sense that we, as a nation, have overcome our racial problems. The dramatic visibility of the minority poor’s suffering, combined with the relative invisibility of the suffering of those minorities who are not poor, breeds the belief that class is now …

Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman

Faculty Scholarship

Access to justice is a broad topic, and we cannot cover everything. You will notice a few major omissions. Most notably, we are not going to emphasize consumer pre-dispute arbitration agreements. This is not because they are not important, but because much has been written and said on this topic, and it could easily swallow the whole discussion. Also, we are probably not going to say very much about restorative justice, and I am sure you will notice some other holes. We invite you to raise missing issues in your comments.

Let me start with a few opening remarks. We …

Saving Face: Unfolding The Screen Of Chinese Privacy Law, Tiffany Li, Jill Bronfman, Zhou Zhou

Faculty Scholarship

Privacy is often a subjective value, taking on meaning from specific social, historical, and cultural contexts. Western privacy scholars have so far generally limited academic study to focus on Western ideals of privacy. However, privacy – or some notion of it – can be found in almost every culture and every nation, including the growing economic powerhouse that is the People’s Republic of China. Focusing on China as a case study of non-Western privacy norms is important today, given the rapid rise of the Chinese economy and its corresponding impact on worldwide cultural norms and law. Simply put, it is …

A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel

Faculty Scholarship

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of …

Teaching Bioethics: The Role Of Empathy & Humility In The Teaching And Practice Of Law, Barbara A. Noah

Faculty Scholarship

This essay considers the role of empathy and humility in the professional practices of physicians and lawyers and in those who prepare students for these professions. Beginning with an overview of the goals and methods of legal education, it compares similar goals in medical education and the value of practicing law (and medicine) with empathy and humility. The essay then describes exercises used in the law school classroom designed both to teach law students about end-of-life law and also to allow them to practice counseling clients. Through these exercises, law students can experience firsthand the challenges of advising a client …