Digital Commons Network^™

Unleashing Pets From Dead-Hand Control, Kaity Emerson, Kevin Bennardo

Faculty Publications

Many pet owners feel strongly about their animals. Some feel so strongly that they desire their pets to accompany them to the grave. This Article addresses the validity of pet euthanasia provisions in decedents’ wills.

Pet owners generally have the legal power to humanely euthanize their pets. In addition, the primary focus of the law of wills is to effectuate the wishes of the decedent. These two facts seem to counsel in favor of carrying out a testamentary instruction to humanely euthanize a companion animal. Yet courts generally decline to enforce pet euthanasia provisions whenever an objection is raised by …

The Last Breakfast With Aunt Jemima And Its Impact On Trademark Theory, Deborah R. Gerhardt

Faculty Publications

The generally-accepted law and economics theory of trademarks fails to explain why a brand owner would ever walk away from a trademark that generates financially lucrative returns. In 2020, that is exactly what happened again and again as brand owners pledged to abandon racially explicit marks in the weeks following George Floyd’s murder. As citizens became more attuned to the experiences of those depicted in racial marks, the owners of Aunt Jemima, Uncle Ben’s, the Cleveland Indians, the Redskins, the Dixie Chicks, Lady Antebellum and others announced these brands’ days were numbered. By evoking racist stereotypes, they became a moral …

The Inequity Of Informal Guidance, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

The coexistence of formal and informal law is a hallmark feature of the U.S. tax system. Congress and the Treasury enact formal law, such as statutes and regulations, while the Internal Revenue Service offers the public informal explanations and summaries, such as taxpayer publications, website frequently asked questions, virtual assistants, and other types of taxpayer guidance. Throughout the COVID-19 pandemic, the IRS increased its use of informal law to help taxpayers understand complex emergency relief rules implemented through the tax system.

In contrast to many other legal scholars who have examined important administrative law issues regarding informal tax guidance, in …

Turducken™ Legal Writing: Deconstructing The Multi-State Performance Test Genre, Kaci Bishop, Alexa Chew

Faculty Publications

The Multistate Performance Test (MPT) has been praised as the most redeeming part of the otherwise unredeemable bar exam because it most aligns with what new attorneys do in practice. It has also been praised, along with other performance tests, as a useful teaching tool throughout the law school curriculum. This article builds on prior scholarship about the MPT by analyzing the MPT as a tool for teaching and testing legal writing and professional communication skills.

The new insight that this article brings is that the testing aspect of the MPT tends to engulf the teaching aspect; understanding both of …

Citation Stickiness, Computer-Assisted Legal Research, And The Universe Of Thinkable Thoughts, Aaron S. Kirschenfeld, Alexa Z. Chew

Faculty Publications

This article seeks to answer two main questions. The first is whether courts cited the same cases as the parties more often during the print era than during the digital era. The second is what, if anything, the answer to the first question can contribute to the debate about how print-era forms of organizing and describing case law influenced researchers’ behavior. To that end, we sampled cases from 1957, 1987, and 2017, and used “citation stickiness” to study the differences in how parties and judges cited authorities during each of those years. In short, we found that there is less …

The Law According To She-Hulk, Kevin Bennardo

Faculty Publications

First introduced in Marvel comics in 1979, Jennifer Walters is the fictional character best known as the She-Hulk. Her profession is an attorney. While this article occasionally draws from source material elsewhere in the Marvel comics, its primary focus is the third She-Hulk series, which was published in twelve issues from 2014 to 2015. This series is considered to be the most legally focused of the She-Hulk series and was written by an attorney, Charles Soule. Soule himself describes the series as “a book starring a superhero who rarely super heroes. Instead of that, she *gulp* lawyers.”

As is normal …

Simplicity Lost, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

Policymakers, government officials, and scholars have long described tax complexity as one of the most serious problems affecting tax administration and tax compliance in the United States. Some of the costs of tax complexity include billions of hours of “paperwork and other headaches” that taxpayers face each year as they attempt to comply with complex tax law, monetary costs that taxpayers bear when they hire advisors and purchase software to report their tax liability and file their tax returns, difficulties that taxpayers encounter when attempting to claim tax credits and other tax benefits, and challenges the Internal Revenue Service (IRS) …

Automated Legal Guidance At Federal Agencies, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

When individuals have questions about Federal benefits, services, and legal rules, they are increasingly seeking help from government chatbots, virtual assistants, and other automated tools. Current forms of automated legal guidance platforms include the U.S. Citizenship and Immigration Services’s “Emma,” the U.S. Department of Education’s “Aidan,” and the Internal Revenue Service’s “Interactive Tax Assistant.” Most scholars who have studied artificial intelligence and Federal government agencies have not focused on the government’s use of technology to offer guidance to the public. The absence of scholarly attention to automation as a means of communicating government guidance is an important gap in the …

Beyond The Marketplace Of Ideas: Bridging Theory And Doctrine To Promote Self-Governance, David S. Ardia

Faculty Publications

This article proceeds in three parts. Part I examines the longstanding debate over the First Amendment’s purpose and explains why the marketplace of ideas theory has come to dominate both judicial and public understanding of the First Amendment’s speech and press clauses. The marketplace theory’s ascendancy, however, has proven to be problematic. It rests on an overly simplified account of public discourse, treating speech as merely a commodity that can be allocated through market-style transactions, and it has come to embody an extreme version of libertarian economic thinking that is undermining the very democratic processes the First Amendment was intended …

Automated Video Interviewing As The New Phrenology, Ifeoma Ajunwa

Faculty Publications

This Article deploys the new business practice of automated video interviewing as a case study to illuminate the limitations of traditional employment antidiscrimination laws. Employment antidiscrimination laws are inadequate to address the unlawful discrimination attributable to emerging workplace technologies which gatekeep employment opportunities. The Article maintains that the practice of automated video interviewing is based on shaky or unproven social scientific principles that disproportionately impact racial minorities. In this way, the practice of automated video interviewing is analogous to the pseudoscience of phrenology, which enabled societal and economic exclusion through the legitimization of eugenicist and racist attitudes. After parsing the …

Constraining Criminal Laws, F. Andrew Hessick, Carissa Byrne Hessick

Faculty Publications

This Article challenges the modern statutory interpretation of criminal laws. In doing so, it makes two distinct, but related contributions. First, it demonstrates that courts historically played a significantly more active role in interpreting criminal laws than they currently play. In particular, courts routinely interpreted statutes to reach no further than the text or the purpose, and they treated broadly written laws as ambiguous and in need of narrowing constructions. Put simply, courts used their interpretive powers to deliberately favor criminal defendants and constrain the criminal law. Second, it explains how a more active judiciary would combat some of the …

White Injury And Innocence: On The Legal Future Of Antiracism Education, Osamudia James

Faculty Publications

In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased visibility of antiracism education engendered sustained critique and opposition, resulting in executive orders prohibiting its adoption in the federal government, the introduction or adoption of over sixty state-level bills attempting to control how race is taught in schools, and a round of lawsuits challenging antiracism education as racially discriminatory. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, …

Systemically Important Platforms, Caleb N. Griffin

Faculty Publications

Regulating Big Tech is now a matter of intense public debate. We ask how well Big Tech companies fulfill their role as gatekeepers of the public square. We ponder whether their dominant market positions merit an antitrust response. We assess their culpability and complicity in spreading online misinformation and hate. However, in the many normative debates over how Big Tech should use its power, the source of that power remains largely unexamined.

Big Tech, like Big Tobacco before it, is an industry founded on addiction. Although typically “free” to use, the world’s largest digital platforms exploit users’ dopamine pathways to …

Judges And Mass Incarceration, Carissa Byrne Hessick

Faculty Publications

This Article argues that judges—long overlooked in contemporary explanations of mass incarceration—have played a central role both through affirmative decisions that increased punishment and through failures to act as a check on prosecutorial power. It traces how judicial choices such as imposing the trial penalty, deferring to sentencing guidelines, allowing coercive plea bargaining, expanding pretrial detention, and adopting narrow or delayed statutory interpretations have structurally reshaped the criminal justice system to favor conviction and incarceration. The Article then proposes practical steps trial judges could implement immediately to reverse these trends, including reducing reliance on pretrial detention, eliminating the trial penalty, …

Messages In A Time Of Crisis Graphic Communication Design A Change Of Tack?, V Squire

School of Art, Design and Architecture

No abstract provided.