Digital Commons Network^™

Codifying Custom, Timothy Meyer

Faculty Scholarship

Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects …

Trial And Error: Learning From Patterns Of Mistakes, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Do We Need New Regulations In International Humanitarian Law? One American’S Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

What Is Securitization? And For What Purpose?, Steven L. Schwarcz

Faculty Scholarship

In Re: Defining Securitization, Professor Jonathan Lipson attempts to define a “true” securitization transaction, ultimately characterizing it as “a purchase of primary payment rights by a special purpose entity that (1) legally isolates such payment rights from a bankruptcy (or similar insolvency) estate of the originator, and (2) results, directly or indirectly, in the issuance of securities whose value is determined by the payment rights so purchased.” There is much to admire in Lipson’s attempt but also much to question.

Let me start with the admiration. Lipson’s article is by far the most systematic and thoughtful analysis of what …

The Assault On Bad Food: Tobacco-Style Litigation As An Element Of The Comprehensive Scheme To Fight Obesity, Jada Fehn

Faculty Scholarship

This article provides a summary of the obesity epidemic - the economic costs and importantly, some causes. The need for a comprehensive scheme will be explained by examining the shortfalls of current regulatory mechanisms. Next, this article will explain the three waves of tobacco litigation, the strategy involved in each, and why the third wave left an impact. Then, the current status of food litigation will be explained. Next, applying the tobacco model to big food, this article will make it clear that discovery is crucial in several respects. Lastly, an explicit call to action and a battle plan will …

Deductions For Drug Ads? The Constitution Does Not Require Congress To Subsidize Direct-To-Consumer Prescription Drug Advertisements, Shoshana Speiser, Kevin Outterson

Faculty Scholarship

The First Amendment protects lawful, non-misleading advertising as commercial speech, which constrains Congressional attempts to regulate direct-to-consumer advertising (DTCA) of prescription drugs. But the Constitution does not require the federal government to subsidize advertising through the Tax Code. Congress could revoke the legislative gift of tax deductions for DTCA without running afoul of regulating speech. While DTCA proponents maintain that DTCA increases disease awareness and leads to more doctor-patient conversations, Congress could find that these purported benefits are outweighed by other negative consequences, including excessive prescribing.

Queer (In)Justice: Mapping New Gay (Scholarly) Agendas, Giovanna Shay, J. Kelly Strader

Faculty Scholarship

The 2011 book Queer (In)Justice surveys involvement of sexual minorities in all phases of the what the authors term the "criminal legal system." It examines the treatment of LGBTQ people as criminal defendants, victims, and prisoners. Queer (In)Justice moves beyond the typical focus of gay rights activists and scholars in the criminal law area to address the everyday treatment of LGBTQ people by police, prosecutors, courts, and corrections authorities. Relying heavily on prison abolitionist movement thinking, the book calls into question reliance on criminal punishment as a means of combating violence against LGBTQ people. Although largely anecdotal, and sometimes over-heated …

Equality Beyond The Three-Part Test: Exploring And Explaining The Invisibility Of Title Ix’S Equal Treatment Requirement, Erin E. Buzuvis, Kristine E. Newhall

Faculty Scholarship

It is clear from the proliferation of cases and complaints challenging programmatic disparities in school and college athletic programs that Title IX’s goal of equal treatment has not been fully realized. As the scholarship addressing equal treatment in athletics has been minimal, this Article is an effort to add to this scholarship in order to provide a greater understanding of equal treatment provisions. It examines why many school officials administer athletic departments in apparent oblivion to Title IX’s equal treatment mandate.

The Article provides the history of Title IX’s equal treatment provisions and their enforcement at the high school and …

Judicial Formalism And The State Secrets Privilege, Sudha Setty

Faculty Scholarship

Congress has, in the last few years, toyed with the idea of attempting to rein in the executive’s increasing reliance on the state secrets privilege as a means of escaping the possibility of accountability. The Author examines one high-profile case, that of Binyam Mohamed and other plaintiffs claiming that they had been subject to extraordinary rendition, torture, and prolonged detention. The Mohamed litigation offers evidence of a disturbing trend of U.S. courts retreating to formalistic reasoning to extend unwarranted deference to the executive branch in security-related contexts. In this essay the Author limits her analysis to the recent jurisprudence surrounding …

Illich, Education, And The Wire, Erin E. Buzuvis

Faculty Scholarship

This Article focuses on two texts—first, Illich’s 1971 "Deschooling Society," which calls for abolishing institutionalized education in favor of decentralized, personalized relationships that promote intentional learning; and second, The Wire’s fourth season, which is particularly focused on the exercise in futility that is the Baltimore public school system. Read together, these texts explore the problem of institutionalized education and the solution Illich proposes of intentional learning communities. But while both texts help us understand the shortfalls of institutionalized education, neither is particularly prescriptive when it comes to undoing the current state of affairs and weaning our society off of institutions, …

Federal/State Tensions In Fulfilling Medicaid’S Purpose, Laura Hermer

Faculty Scholarship

Medicaid has been subject to reconsiderations of the proper role of government in providing for the health and welfare of populations over recent decades. Over the last decade in particular, a number of states have transferred many functions that they once performed to private entities, including, in a number of cases, express policymaking functions. The Patient Protection and Affordable Care Act (ACA) takes some crucial steps towards readjusting the equilibrium of Medicaid. Rather than further prioritizing the market in its reforms, it gives the federal government stronger charge of Medicaid policy, refocusing the program more directly on expanding eligibility and …

Securities Class Actions Against Foreign Issuers, Merritt B. Fox

Faculty Scholarship

This Article addresses the fundamental question of whether, as a matter of good policy, it is ever appropriate that a foreign issuer be subject to the U.S. fraud-on-the-market private damages class action liability regime, and, if so, by what kinds of claimants and under what circumstances. The bulk of payouts under the U.S. securities laws arise out of fraud-on-the-market class actions – actions against issuers on behalf of secondary market purchasers of their shares for trading losses suffered as a result of issuer misstatements in violation of Rule 10b-5. In the first decade of this century, foreign issuers became frequent …

Drinking Water And Exclusion: A Case Study From California’S Central Valley, Camille Pannu

Faculty Scholarship

The American West is notorious for its water wars, and California’s complex water allocation and governance challenges serve as a bellwether for contemporary water governance across western states. Policy makers and environmental advocates typically represent California’s water woes as a regulatory problem — a failure to balance the needs of growing urban populations with ecological preservation and agricultural irrigation. These debates, however, often elide the issue of water deprivation, and they do not adequately address the concerns of an important constituency: low-income, rural communities.

This Comment argues that a focus on regulation misses a fundamental feature of water inequality: the …

The Intellectual Integrity Of Ed Baker, Vincent A. Blasi

Faculty Scholarship

John Stuart Mill was not one of Ed Baker’s favorite authors, although Ed knew his Mill well and drew on him for some of his important work. But I know Ed Baker would have been a particular favorite of John Stuart Mill. I say that not generically, but specifically. Mill said that what an adaptive, improving society needs most of all — even more than technological expertise — is the hardest thing to achieve: independent thinkers who have the courage to follow their thought wherever it leads, even when that journey risks unsettling their cherished beliefs or damaging their credibility. …

The Rise Of National Security Secrets, Sudha Setty

Faculty Scholarship

Professor Aziz Rana urges a broad and populist reconsideration of the idea that the administration and military are best positioned to make decisions about national security issues. This Article calls for a rethinking of national security secrecy as well. The centralization of security decision-making power in the early Cold War era fostered a culture of government secrecy, with Congress and the judiciary enabling the rise of national security secrecy out of fear that they were ill-equipped to make security-related decisions, and public fear of internal and international security threats trumping concerns about legitimacy or democratic accountability. This culture of secrecy …

Illich (Via Cayley) On Prisons, Giovanna Shay

Faculty Scholarship

This Article considers whether, more than a dozen years after publication of Cayley’s book "The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives," Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment.

Symposium: Radical Nemesis: Re-Envisioning Ivan Illich's Theories On Social Institutions Foreword, Jennifer L. Levi

Faculty Scholarship

The eight articles in this Symposium issue reflect the divergent topics that Ivan Illich managed to reflect upon in his life’s works. The topics include discussion of prisons, education, family law structures, privatization of welfare services and its impact on labor consciousness, media, and the rule of law.

The Symposium was a daylong conference of ideas that invited the engagement of those who joined. The students of Illich and students of students of Illich shared with those of us who had not studied at his side, his passion for ideas, his insights, and his invitation for anyone with or without …

Radical Reform Of Intercollegiate Athletics: Antitrust And Public Policy Implications, Stephen F. Ross

Faculty Scholarship

Universities operating major intercollegiate athletic programs are heading for, if not already in, a crisis. Corruption continues to affect major football and basketball programs, exacerbated by a failure of imagination and will in identifying and deterring corruption, and by a lack of consensus on what constitutes "corruption" when football and men's basketball stars generate millions of dollars but cannot enjoy a lifestyle commensurate with many peer students. Current levels of spending are nonsustainable at many schools. Even where intercollegiate athletic programs are sustained primarily by football and basketball revenues, otherwise visionary and questioning college presidents have yet to publicly question …

The Benefits Of Capture, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.

The Giants Among Us, Robin Feldman, Tom Ewing

Faculty Scholarship

No abstract provided.

From The Oppressed To The Terrorist: Muslim-American Women In The Crosshairs Of Intersectionality, Sahar F. Aziz

Faculty Scholarship

In the post-9/11 era, Muslim women donning a headscarf in America find themselves caught at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women's rights organizations, or civil liberties advocates.

This paper examines how the September 11th attacks adversely impacted the lives of headscarved Muslim women in ways different than Muslim men. Ten years after 9/11, there is a plethora of literature about what has become known as "post-9/11 discrimination." Most of the discussion focuses …

Executive Summary (2012), Gina S. Warren

Faculty Scholarship

2011 was a year full of Energy. One could not open a (virtual) newspaper without seeing an article or commentary on energy-related issues, such as the U.S. Supreme Court's decision in American Electric Power Co. v. Connecticut regarding greenhouse gas ("GHG") regulation, the future of renewable energy, and natural gas extraction via hydraulic fracturing, to list a few. GHG emissions, renewable energy development, and hydraulic fracturing have historically been left to the states to police; however, the Environmental Protection Agency ("EPA") is set to commence regulation of GHG emissions as early as May 2012 and is currently studying hydraulic fracturing …

Stare Decisis And Certiroari Arrive To Brazil: A Comparative Law And Economics Approach, Maria Angela Jardim De Santa Cruz Oliveira, Nuno Garoupa

Faculty Scholarship

Two important legal reforms in court procedure have taken place in Brazil recently: simula vinculante (all courts now have to follow the reasoning of the Supreme Court in similar cases) and requisito da repercussao geral (the Supreme Court only hears cases that are of general importance). These two procedural rules respond to a long debate in the Brazilian legal community on how to address court congestion, the heavy workload of the Brazilian Supreme Court, and the role of the higher courts in establishing case law. We discuss the implications of these two important reforms from the comparative perspective (by explaining …

Capture Nuances In The Contest For Financial Regulation, Lawrence G. Baxter

Faculty Scholarship

Applying capture analysis in the hotly contested arena of financial regulation is difficult. Numerous regulators with widely differing missions and widely diverse stakeholders are involved. Regulators operate under widely differing authorizing legislation. They even function at different levels of government. Agencies are often at odds with each other when it comes to determining optimal public policy. Unlike policy disputes in many other areas of regulation, which can be settled by reference to scientific data, public policy in financial regulation rests profoundly on essentially contested economic ideologies. This makes financial policy doubly difficult: one the one hand, it requires deep expertise—and …

The Property Strategy, Thomas W. Merrill

Faculty Scholarship

My objective in this Article is to offer a description of property as an institution for organizing the use of resources in society. There are several strategies for deciding how valued things will be used, and by whom. “Might makes right” is one approach: we can let a strongman decide these questions. Bureaucratic governance is another: we can create a hierarchical organization and adopt rules and procedures for allocating resources. Group consensus is a third: questions about resource use can be resolved through meetings and discussion among those most closely involved. The claim advanced here is that property is a …

Legal Education, Social Justice And The Law School Dean: Latinas At The Center, Margaret E. Montoya

Faculty Scholarship

The opening of LatCrit XVI in San Diego, CA, on October 9, 2011, coincided with the events that are identified as the start of the global expression of the Occupy Movement. The Occupy Movement began to gain media attention on September 17, 2011, in Zuccotti Park in New York City. By October 9, protests had taken place or were ongoing in eighty-two countries and over 600 communities in the United States. The broad theme for LatCrit XVI was "Global Justice" and the conference was billed as "an opportunity to explore theories, histories, and futures of global justice. Of particular importance …

The Obama Effect: Specialized Meanings In Anti-Discrimination Law, Angela Onwuachi-Willig, Mario Barnes

Faculty Scholarship

In this Article, we explore the proclamations that have been made about an emerging “post-racial” society within the context of workplace anti-discrimination law. Specifically, as the title of our panel for this symposium asks, we inquire: What is the significance of having a biracial, black-white president (or more specifically, the first self-identified black president) to the enforcement of antidiscrimination law? What impact, if any, has President Barack Obama’s campaign for the presidency and election as president had on discrimination in the workplace? Based in part on our review of discrimination cases in which President Obama’s name has been invoked—in most …

Defusing Implicit Bias, Jonathan Feingold, Karen Lorang

Faculty Scholarship

The February 2012 killing of Trayvon Martin has slowly reignited the national conversation about race and violence. Despite the sheer volume of debate arising from this tragedy, insufficient attention has been paid to the potentially deadly mix of guns and implicit bias. Evidence of implicit bias, and its power to alter real-world behavior, is stronger now than ever. A growing body of research on “shooter bias” reveals that, as a result of implicit bias, White and Black Americans are more likely to shoot unarmed Black men than unarmed White men. The problem has been diagnosed. What remains to be determined …

Is Strict Criminal Liability In The Grading Of Offenses Consistent With Retributive Desert?, Kenneth Simons

Faculty Scholarship

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an actor? Should he be punished as harshly as an intentional or knowing killer?

Introduction: The Politics Of Hate, Robert L. Tsai

Faculty Scholarship

This is a special issue dedicated to the topic of hate and political discourse. Collectively, the peer-reviewed articles in this volume are concerned with the political aspects of hatred, i.e., psychology, motivations, organization, tactics, and ends. The articles approach the problem from a variety of disciplines, including anthropology, history, law, literature, philosophy, political science, psychology, and sociology. Among the subjects analyzed: group hatred as a heritable trait; hate as an irrational system of thought; Italian fascism's construction of the Communist other; the rise of the English Defence League and its anti-Islam activities; the persistent myth of blood libel; judicial handling …