Digital Commons Network^™

Maduro Bonds, G. Mitu Gulati, Ugo Panizza

Faculty Scholarship

No abstract provided.

Strategic Publication, Ben Grunwald

Faculty Scholarship

Under the standard account of judicial behavior when a panel of appellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion.

This Article argues that a divided panel has a third option: strategic publication. The panel can choose …

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 …

The Second Amendment As Positive Law, Joseph Blocher, Darrell A.H. Miller

Faculty Scholarship

No abstract provided.

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 …

Black, White, And Blue: Bias, Profiling, And Policing In The Age Of Black Lives Matter, Bridgette Baldwin

Faculty Scholarship

The United States has experienced a series of murders at the hands of the police in recent years, from Michael Brown to Tamir Rice to Eric Garner. The brutalization of Black people at the hands of the police is not new, but many are being introduced to the concept of police brutality through the channels of social media. Hashtags like #BlackLivesMatter and #TakeAKnee have revolutionized the conversation about racism and policing, bringing these incidents into mainstream media and common conversation. This movement has led to a deeper discussion on the following questions: (1) Why are Black people viewed as violent …

Unintended Agency Problems: How International Bureaucracies Are Built And Empowered, Anu Bradford, Stavros Gadinis, Katerina Linos

Faculty Scholarship

The ground underneath the entire liberal international order is rapidly shifting. Institutions as diverse as the European Union, International Monetary Fund, United Nations, and World Trade Organization are under major threat. These institutions reflect decades of political investments in a world order where institutionalized cooperation was considered an essential cornerstone for peace and prosperity. Going beyond the politics of the day, this Article argues that the seeds of today’s discontent with the international order were in fact sown back when these institutions were first created. We show how states initially design international institutions with features that later haunt them in …

Intellectual Property As Seen By Barbie And Mickey: The Reciprocal Relationship Of Copyright And Trademark Law, Jane C. Ginsburg

Faculty Scholarship

Some years ago, caselaw on trademark parodies and similar unauthorized “speech” uses of trademarks could have led one to conclude that the law had no sense of humor. Over time, however, courts in the US and elsewhere began to leaven likelihood of confusion analyses with healthy skepticism regarding consumers’ alleged inability to perceive a joke. These decisions did not always expressly cite the copyright fair use defense, but the considerations underlying the copyright doctrine seemed to inform trademark analysis as well. The spillover effect may indeed have been inevitable, as several of the cases in which the fair use defense …

America’S Relation To World Order: Two Indictments, Two Thought Experiments, And A Misquotation, Philip C. Bobbitt

Faculty Scholarship

The State is undergoing a crisis of legitimacy owing to its inability to cope with novel problems of weapons proliferation, transnational threats including climate change, a fragile global financial infrastructure, cultural influences carried by electronic communications, and an undemocratic regime of human rights law. These fatal inadequacies are summoning forth a new constitutional order, the latest in a series of century-spanning archetypal regimes that have arisen since the Renaissance and the collapse of feudalism. A backlash against the harbingers of this new order, however, is crippling the development of those modes of action that are required to deal with the …

Unmarked? Criminal Record Clearing And Employment Outcomes, Jeffrey Selbin, Justin Mccrary, Joshua Epstein

Faculty Scholarship

An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively low-level misdemeanors. In an era of heightened security concerns, easily available data, and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential.

In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We studied a random sample of participants in one such …

A Multi-Decade Joinpoint Analysis Of Firearm Injury Severity, Bindu Kalesan, Yi Zuo, Ziming Xuan, Michael B. Siegel, Jeffrey A. Fagan, Charles Branas, Sandro Galea

Faculty Scholarship

Non-fatal firearm injuries constitute approximately 70% of all firearm trauma injuries in the United States. Patterns of severity of these injuries are poorly understood. We analyzed the overall, age-, sex- and intent-specific temporal trends in the injury severity of firearm hospitalizations from 1993 to 2014.

We assessed temporal trends in the severity of patients hospitalized for firearm using Nationwide Inpatient Sample (NIS) data over a 22 year period. Firearm hospitalization was identified using assault (E965x), unintentional (E922x), intentional self-harm (E955x), legal (E970) and undetermined (E985x) International Classification of Diseases, Ninth Revision, Clinical Modification (ICD9) codes. Injury severity was measured using …

Learned Hand On Statutory Interpretation: Theory And Practice, Thomas W. Merrill

Faculty Scholarship

It is a great honor to take part in the celebration of the Second Circuit’s 125th anniversary and in particular to present the Hands Lecture. The Second Circuit in the 1930s and 1940s came to be called the “Hand Court,” and during those years it established its reputation as the most admired of the U.S. circuit courts of appeals. It was called the Hand Court because two of its judges, who often formed the majority on three-judge panels, bore the surname Hand. They were cousins. Augustus Hand was a few years older than Learned Hand but was appointed to the …

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Faculty Scholarship

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Influenza Mandates And Religious Accommodation: Avoiding Legal Pitfalls, Dorit Rubinstein Reiss, Veena B. Dubal

Faculty Scholarship

No abstract provided.

Is Patent Enforcement Efficient, Robin Feldman, Mark A. Lemley

Faculty Scholarship

No abstract provided.

The Sound & Fury Of Patent Activity, Robin Feldman, Mark A. Lemley

Faculty Scholarship

No abstract provided.

Caveat Irs: Problems With Abandoning The Full Deduction Rule, Manoj Viswanathan, Joseph Bankman, David Gamage, Jacob Goldin

Faculty Scholarship

No abstract provided.

Work As A Masculinity Contest, Jennifer L. Berdahl, Marianne Cooper, Peter Glick, Robert W. Livingston, Joan C. Williams

Faculty Scholarship

No abstract provided.

State Responses To Federal Tax Reform: Charitable Tax Credits, Manoj Viswanathan, Joseph Bankman, David Gamage, Jacob Goldin

Faculty Scholarship

No abstract provided.

Children's Perspectives Of Mothering In The Context Of Domestic Violence: Recent Research Findings, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

California's Drug Transparency Law: Navigating The Boundaries Of State Authority On Drug Pricing, Jaime S. King, Katherine L. Gudiksen, Timothy T. Brown, Christopher M. Whaley

Faculty Scholarship

No abstract provided.

Resolution Triggers For Systemically Important Financial Institutions, John Crawford

Faculty Scholarship

No abstract provided.

The Conservative Turn Against Compensatory Mitigation, Dave Owen

Faculty Scholarship

No abstract provided.

Disrupting Regulation, Regulating Disruption: The Politics Of Uber In The United States, Veena B. Dubal, Ruth Berins Collier, Christopher L. Carter

Faculty Scholarship

No abstract provided.

Complicity By Referral, Heather M. Field

Faculty Scholarship

No abstract provided.

Federal Laboratories Of Democracy, Dave Owen, Hannah J. Wiseman

Faculty Scholarship

No abstract provided.

Cooperative Subfederalism, Dave Owen

Faculty Scholarship

No abstract provided.

The Institutional Design Of Punishment, Aaron J. Rappaport

Faculty Scholarship

No abstract provided.

The New Chinese Diaspora: Embracing The Model Minority And Perpetual Foreigner?, Frank H. Wu

Faculty Scholarship

No abstract provided.

The Dilemma Of The "Doctor In The Family", Joanna K. Weinberg

Faculty Scholarship

No abstract provided.