Digital Commons Network^™

Sovereignty And Complex Interdependence: Some Surprising Indications Of Their Compatibility, Charles F. Sabel

Faculty Scholarship

Even as democratic sovereignty and globalization are increasingly seen as incompatible in theory, this chapter argues that, in some important realms, they are proving compatible in practice. As tariffs have fallen to negligible levels, trade agreements among rich countries have come to focus on reconciling regulatory differences. In many sectors, novel forms of cooperation have emerged that allow trade partners deliberately to investigate and learn from one another’s practices, eventually recognizing the equivalence of regimes that are not strictly identical — and in the process extending domestic political oversight to relations among states while often heightening domestic accountability. The emergent …

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Joshua Gupta-Kagan

Faculty Scholarship

The U.S. Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue in the 1990s and 2000s found that T.L.O. applied …

Building Bridges: Examining Race And Privilege In Community Economic Development: Introductory Overview, Priya Baskaran, Renee Hatcher, Lynnise E. Pantin

Faculty Scholarship

The country has been in economic recovery since the Great Recession in 2007. Home prices have since stabilized after the mortgage and foreclosure crisis that followed the Recession. In late 2017, the federal government passed the Tax Cuts and Jobs Act, leading to a surge in corporate earnings. As of the time of this writing, major stock indicators are at all-time highs, and interest rates are low. But corporate indicators and interest rates do not paint the entire picture. Most of the economic recovery is in affluent, predominately white parts of the country, while distressed areas inhabited by people of …

Investigating Potentially Unlawful Death Under International Law: The 2016 Minnesota Protocol, Christof Heyns, Stuart Casey-Maslen, Toby Fisher, Sarah Knuckey, Thomas Probert, Morris Tidball-Binz

Faculty Scholarship

Across every region of the world, states are daily alleged to have committed or to have failed to prevent unlawful killings. From police shootings of members of ethnic minorities, to the use of lethal force against protestors during peacetime, to indiscriminate air strikes and targeted attacks on civilians during armed conflict, one of the most pressing concerns is ensuring that an effective investigation of the killing is conducted. Without an investigation, accountability is typically impossible, and families and communities must endure the pain of loss without knowing the truth, much less seeing justice. Investigations are an essential component of the …

Zoned Out: How Zoning Law Undermines Family Law’S Functional Turn, Kate Redburn

Faculty Scholarship

A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law doctrines have increasingly embraced the claims of “functional families” — those whose bonds can be traced to cohabitation and shared domestic life. At the same time, zoning laws have narrowed to recognize only formal families, effectively restricting residency to individuals related by blood, marriage, or adoption. As a result, family law’s “functional turn” remains vulnerable in at least thirty-one states. Using original legal analysis and historical research, this Note illuminates that contradiction, explains how it arose, and argues that …

Protecting Consumers In The Age Of The Internet Of Things, Nicole Smith Futrell

Faculty Scholarship

“Wake up, baby!”

Imagine waking up in the middle of the night to the sound of a stranger speaking to your baby through the baby monitor. For one Texas couple, this horror story became reality when a man hacked their internet-connected monitors to watch and stalk their child. In a similarly horrifying scenario, a hacker stalked Miss Teen USA, Cassidy Wolf, for a year via her webcam. The stalker had 24/7 access to her webcam and also traced the keystrokes on her keyboard to learn her passwords for various web accounts. Subsequently, the hacker used private information he learned about …

Whose Faith Matters? The Fight For Religious Liberty Beyond The Christian Right, Elizabeth Reiner Platt, Katherine M. Franke, Kira Shepherd, Lilia Hadjiivanova

Faculty Scholarship

By offering a sweeping account of religious liberty activism being undertaken by numerous progressive humanitarian and social justice movements, and uncovering how right-wing activists have fought for conservative Christian hegemony rather than “religious liberty” more generally, this report challenges the leading popular narrative of religious freedom.

This Is The Moment Of Truth, Ray León, Roger Lin, Camille Pannu, Irene Vasquez

Faculty Scholarship

While everyone is taking their seats, I wanted to quickly just thank the prior panelists today and bring it full circle, back to Mustafa’s opening keynote, where he asked, “Who is fighting these fights? Who is doing this work in fighting for justice?” He pointed out that many of the people fighting these fights, many of the advocates, are people who look like you and are also the same age as you. That is why we have this panel. What can you, as students, do to get involved in the environmental justice or social justice movements?

My name is Roger …

A Promising Start For Early Childhood Development And The Law, Clare Huntington

Faculty Scholarship

Examining the role of the law in early childhood development is not new; several legal scholars have engaged in such an inquiry, including scholars at this symposium. But this engagement has not led to a sustained debate about how the legal system can foster early childhood development, nor has it yet led to the integration of legal scholars into the interdisciplinary research on, and policy debates about, early childhood. I have argued that the creation of a new subdiscipline in family law — early childhood development and the law — would achieve these goals, sparking debate within law, bringing a …

Nonvoting Shares And Efficient Corporate Governance, Dorothy S. Lund

Faculty Scholarship

A growing number of technology companies, including Google, Zillow, and Snap, have issued stock that does not allow investors to vote on corporate decisions. But there is fundamental disagreement among scholars and investors about whether nonvoting stock is beneficial or harmful. Critics argue that nonvoting shares perpetually insulate corporate insiders from influence and oversight, and therefore increase agency costs. By contrast, proponents contend that nonvoting shares may provide benefits that exceed these agency costs, such as enabling corporate insiders to pursue their long-term vision for the company without interference from outside shareholders.

This Article offers a novel perspective on this …

Overview Of Climate Change Litigation, Michael B. Gerrard

Faculty Scholarship

Climate change litigation is a global phenomenon. According to a database maintained by the Sabin Center for Climate Change Law, as of February 4, 2019 a total of 1,297 climate cases had been filed in courts or other tribunals worldwide. Of these, 1,009 — 78 percent — were from the United States, Australia was a distant second, with ninety-eight, followed by the United Kingdom with forty-seven. No other country had as many as twenty. The cases were filed in twenty-nine countries and six international tribunals, led by the Court of Justice of the European Union, which had forty-one.

Janus's Two Faces, Kate Andrias

Faculty Scholarship

In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.Stunning in its disregard of principles of stare decisis, Janus overruled the forty-year-old precedent Abood v Detroit Board of Education.The Janus decision marks the end of the post – New Deal compromise with respect to public sector unions and the First Amendment. Looking to the future, Janus lays the groundwork for further attack on …

Symposium: The Future Of The New International Tax Regime, Rosanne Altshuler, Fadi Shaheen, Jeffrey Colon, Michael Graetz, Rebecca Kysar, Susan Morse, Daniel Shaviro, Richard Phillips, Daniel Rolfes, Daniel Rosenbloom, Stephen Shay, Steven Dean

Faculty Scholarship

The symposium was held at Fordham University School of Law on October 26, 2018. It has been edited to remove minor cadences of speech that appear awkward in writing and to provide sources and references to other explanatory materials in respect to certain statements made by the speakers.

Showcase Panel I: What Is Regulation For?, Richard Epstein, Philip A. Hamburger, Kathryn Kovacs, John D. Michaels, Britt Grant

Faculty Scholarship

2018 National Lawyers Convention Transcripts

“The administrative state, with roots over a century old, was founded on the premise that Congress lacked the expertise to deal with the many complex issues facing government in a fast-changing country, and that it was unhelpfully mired in and influenced by politics, leading to bad outcomes when it did act. The alternative was to establish administrative agencies, each with assigned areas of responsibility, housing learned experts qualified to make policy decisions, deliberately insulated from political accountability. The Administrative Procedure Act (APA), passed in 1946, both governs the manner in which agencies may adopt and …

Changes In Patterns Of Mortality Rates And Years Of Life Lost Due To Firearms In The United States, 1999 To 2016: A Joinpoint Analysis, Hannah M. Bailey, Yi Zuo, Feng Li, Jae Min, Krishna Vaddiparti, Mattia Prosperi, Jeffrey A. Fagan, Sandro Galea, Bindu Kalesan

Faculty Scholarship

Firearm-related death rates and years of potential life lost (YPLL) vary widely between population subgroups and states. However, changes or inflections in temporal trends within subgroups and states are not fully documented. We assessed temporal patterns and inflections in the rates of firearm deaths and %YPLL due to firearms for overall and by sex, age, race/ethnicity, intent, and states in the United States between 1999 and 2016.

We extracted age-adjusted firearm mortality and YPLL rates per 100,000, and %YPLL from 1999 to 2016 by using the WONDER (Wide-ranging Online Data for Epidemiologic Research) database. We used Joinpoint Regression to assess …

Fair And Impartial Adjudication, Thomas W. Merrill

Faculty Scholarship

Any legal system that purports to respect the rule of law must ensure the fair and impartial adjudication of disputes under the law. Classic accounts of the rule of law assume that courts should resolve such disputes. However, this is too narrow. All forms of adjudication, not just by courts, need to be fair and impartial. In any event, no one could claim that courts or entities by that name are always fair and impartial. All legal systems need a guarantee of fair and impartial adjudication that applies to all forms of dispute resolution under law.

A dispute arising under …

Three Legal Visions Of A ‘Green New Deal’, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Rep. Alexandria Ocasio-Cortez (D-N.Y.), who has rocketed to such fame that she is now widely known simply as AOC, and Sen. Edward Markey (D-Mass.), co-father of Waxman-Markey, the cap-and- trade bill that narrowly passed the House in 2009 but died in the Senate, have introduced identical resolutions to create a “Green New Deal.” H. Res. 109, S. Res. 59.

Assessment Of Medicaid Beneficiaries Included In Community Engagement Requirements In Kentucky, Atheendar Venkataramani, Elizabeth F. Bair, Erica Dixon, Kristin A. Linn, Will Ferrell, Margrethe Montgomery, Michelle K. Strollo, Kevin G. Volpp, Kristen Underhill

Faculty Scholarship

States are pursuing Section 1115 Medicaid demonstration waiver authority to apply community engagement (CE) requirements (eg, participation in work, volunteer activities, or training) to beneficiaries deemed able-bodied as a condition of coverage. Understanding the size and characteristics of the populations included in these requirements can help inform policy initiatives and anticipate effects.

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Faculty Scholarship

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial …

Domesticating Guidance, Peter L. Strauss

Faculty Scholarship

This Essay, written for an occasion celebrating the scholarship of Professor William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents — statements of general policy and interpretive rules — that today one generally finds discussed under the rubric “guidance.” These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. § 553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its …

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell

Faculty Scholarship

This Article examines the possible racial and ethnic implications of California’s expansive death penalty statute in light of the Eighth Amendment’s requirement that each state statute narrow the subclass of offenders on whom a death sentence may be imposed. The narrowing requirement derives from the holding in Furman v. Georgia over forty-five years ago, when the U.S. Supreme Court ruled that existing death penalty statutes violated the Eighth Amendment’s prohibition against cruel and unusual punishments. Citing statistics demonstrating arbitrary and capricious application of capital punishment, a majority of the Justices concluded that a death sentencing scheme is unconstitutional if it …

Overcoming Impediments To Offshore Co2 Storage: Legal Issues In The U.S. And Canada, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Limiting future temperature increases and associated climate change requires immediate action to prevent additional carbon dioxide being released into the atmosphere and to lower the existing atmospheric carbon dioxide load. This could be advanced through carbon capture and storage (CCS), which involves collecting carbon dioxide that would otherwise be released by power plants or similar facilities and injecting it into underground geologic formations, where it will remain permanently sequestered. The techniques developed for CCS can also be used to sequester carbon dioxide that has been removed from the atmosphere using direct air capture or other negative emission technologies. Past CCS …

Informed Trading And Cybersecurity Breaches, Joshua Mitts, Eric L. Talley

Faculty Scholarship

Cybersecurity has become a significant concern in corporate and commercial settings, and for good reason: a threatened or realized cybersecurity breach can materially affect firm value for capital investors. This paper explores whether market arbitrageurs appear systematically to exploit advance knowledge of such vulnerabilities. We make use of a novel data set tracking cybersecurity breach announcements among public companies to study trading patterns in the derivatives market preceding the announcement of a breach. Using a matched sample of unaffected control firms, we find significant trading abnormalities for hacked targets, measured in terms of both open interest and volume. Our results …

Fiduciary Principles In Family Law, Elizabeth S. Scott, Ben Chen

Faculty Scholarship

Family members bear primary responsibility for the care of dependent and vulnerable individuals in our society, and therefore family relationships are infused with fiduciary obligation. Most importantly, the legal relationship between parents and their minor children is best understood as one that is regulated by fiduciary principles. Husbands and wives relate to one another as equals under contemporary law, but this relationship as well is subject to duties of care and loyalty when either spouse is in a condition of dependency. Finally, if an adult is severely intellectually disabled or becomes incapacitated and in need of a guardian, a family …

Persistent Regulations: A Detailed Assessment Of The Trump Administration's Efforts To Repeal Federal Climate Regulations, Jessica A. Wentz, Michael B. Gerrard

Faculty Scholarship

This paper takes a critical look at what the Trump administration has actually accomplished in terms of repealing and modifying greenhouse gas emission standards and otherwise advancing its pro-fossil fuel agenda. As detailed herein and summarized in Figures 1 and 2, the scope of the efforts taken pursuant to this agenda is extremely broad – there are dozens of different deregulatory actions underway at various agencies, most notably the Environmental Protection Agency (EPA). But in most cases, the pace of these efforts has been quite slow. This is particularly true for efforts to repeal or revise major regulations like the …

From A "Culture Of Unwellness" To Sustainable Advocacy: Organizational Responses To Mental Health Risks In The Human Rights Field, Margaret Satterthwaite, Sarah Knuckey, Ria Singh Sawhney, Katie Wightman, Rohini Bagrodia, Adam Brown

Faculty Scholarship

This Article presents findings from a qualitative study of how individual human rights advocates perceive well-being and mental health issues within the human rights field, and how human rights organizations in all regions of the world are responding to well-being concerns. The findings are based on an analysis of 110 interviews, which include advocates at 70 human rights organizations from 35 countries and more than three dozen experts; surveys of organizational policies and practices; desk research concerning well-being and mental health; and the experiences of the coauthors working as human rights practitioners with non-governmental organizations (“NGOs”) around the world.

The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett

Faculty Scholarship

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected …

The Ncaa And The Irs: Life At The Intersection Of College Sports And The Federal Income Tax, Richard L. Schmalbeck, Lawrence A. Zelenak

Faculty Scholarship

Few organizational acronyms are more familiar to Americans than those of the National Collegiate Athletic Association (NCAA) and the Internal Revenue Service (IRS). Although neither organization is particularly popular, both loom large in American life and popular culture. Because there is a tax aspect to just about everything, it should come as no surprise that the domains of the NCAA and the IRS overlap in a number of ways. For many decades, the strong tendency in those areas has been for college athletics to enjoy unreasonably generous tax treatment-sometimes because of the failure of the IRS to enforce the tax …

Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

There is widespread belief that the Patent Office issues too many bad patents that impose significant harms on society. At first glance, the solution to the patent quality crisis seems straightforward: give patent examiners more time to review applications so they grant patents only to those inventions that deserve them. Yet the answer to the harms of invalid patents may not be that easy. It is possible that the Patent Office is, as Mark Lemley famously wrote, “rationally ignorant.” In Rational Ignorance at the Patent Office, Lemley argued that because so few patents are economically significant, it makes sense to …