Law Commons^™

Secret Jurisdiction, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

So-called “confidentiality creep” after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The executive branch’s procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call “secret jurisdiction,” in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on …

The Paradox Of The Right To Contract: Noncompete Agreements As Thirteenth Amendment Violations, Ayesha B. Hardaway

Faculty Publications

There is a growing trend across the nation for employers to require low-level, unskilled workers to execute noncompete agreements as a condition of being hired to work as an at-will employee. The application of noncompete agreements in low-wage positions occupied by unskilled workers is outside of the original scope and purpose of such agreements. These individuals lack both bargaining power and protection from being terminated without cause. Moreover, upon termination of their employment, the executed noncompete agreement can legally prevent these workers from securing employment with another company.

The enforcement of noncompete agreements in these circumstances may require low-level, unskilled …

Counting Casualties In Communities Hit Hardest By The Foreclosure Crisis, Matthew Rossman

Faculty Publications

Recent statistics suggest that the U.S. housing market has largely recovered from the Foreclosure Crisis. A closer look reveals that the country is composed not of one market, but of thousands of smaller, local housing markets that have experienced dramatically uneven levels of recovery. Repeated waves of home mortgage foreclosures inundated certain communities (the “Hardest Hit Communities”), causing their housing markets to break rather than bend and resulting in what amounts to a permanent transition to a lower value plateau. Homeowners in these predominantly low and middle income and/or minority communities who endured the Foreclosure Crisis lost significant equity in …

The Senate Has No Constitutional Obligation To Consider Nominees, Jonathan Adler

Faculty Publications

After the death of Justice Antonin Scalia, Senate Republicans announced they would refuse to consider any nomination for his seat on the Supreme Court prior to the next presidential election. In response, some have argued that the Senate has a constitutional obligation to act on a Supreme Court nomination. This argument finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all nominations to legislatively authorized seats on the federal bench, and on the Supreme Court in particular, …

Anti-Disruption Statutory Construction, Jonathan Adler

Faculty Publications

During his first ten years on the Supreme Court, Chief Justice John Roberts has adopted a pragmatic approach to statutory interpretation that appears to place a higher priority on avoiding disruptive consequences than on any particular interpretive methodology. Prepared for the symposium, “Ten Years the Chief: Examining a Decade of John Roberts on the Supreme Court,” at the Benjamin N. Cardozo School of Law, this brief essay argues that the Chief Justice’s approach to statutory interpretation exhibits a “Burkean minimalism” that seeks to reduce seismic effect of the Court’s decisions. In particular, the Chief Justice is drawn toward statutory interpretations …

Category Errors And Executive Power, Jonathan Adler

Faculty Publications

In the context of implementing the Affordable Care Act and the Clean Air Act, the Obama Administration has asserted not only the authority to determine when, and how stringently, to enforce relevant provisions, but also the authority to waive or delay legal obligations enacted by Congress. These actions have prompted accusations that the Administration is exceeding the proper bounds of executive authority. The ensuing debate – and litigation – over these actions has generated a good deal of confusion about the nature and scope of executive power. Commentators have often misunderstood or mischaracterized the nature of the acts taken and …

Persistent Threats To Commercial Speech, Jonathan Adler

Faculty Publications

The current Supreme Court is very protective of speech, including commercial speech. Threats to commercial speech persist nonetheless. This paper, prepared for a symposium at Brooklyn Law School, examines two: 1) the use of commercial speech restrictions as a form of rent-seeking; 2) compelled commercial speech. Regulation of commercial speech protect is sometimes used to protect established corporate interests from competitors who are less able to bear the costs of regulation, with consequences that extend beyond the economic marketplace. In the case of commercial speech, courts have been unduly deferential to claims of a consumer “right to know” as a …

The Interaction Of Exhaustion And The General Law, Aaron K. Perzanowski, Ariel Katz, Guy A. Rub

Faculty Publications

In Statutory Domain and the Commercial Law of Intellectual Property, John Duffy and Richard Hynes argue that IP exhaustion — the doctrine that limits a patentee’s or copyright holder’s control over goods in the stream of commerce — was created and functions exclusively to confine IP law within its own domain and prevent it from displacing other laws.

In this essay, we explain why we are not persuaded. A central theme in Duffy and Haynes work is the argument that the common law did not play a role in the emergence and development of exhaustion. However, we show that the …

Legal Fictions And The Role Of Information In Patent Law, Craig Allen Nard

Faculty Publications

The common law plays a prominent role in the development of American patent law. Judicial stewardship of the patent space can be seen as an institutional advantage, one that compares favorably to punctuated, and potentially more distortive or inartful, congressional action. The common law allows for a certain flexibility, and despite its deep allegiance to tradition, crust forms more readily on statutory law than the common law. One of the tools that reflects this institutional litheness is the use of legal fictions, which have been employed by judges in various areas of the law seemingly since the beginning of the …

Electronic Health Records And Medical Big Data: Law And Policy, Sharona Hoffman

Faculty Publications

This book helps readers gain an in-depth understanding of electronic health record (EHR) systems, medical big data, and the regulations that govern them. It is useful both as a primer for students and as a resource for knowledgeable professionals. The book analyzes the shortcomings and benefits of EHR systems, explores the law's response to the technology’s adoption, highlights gaps in the current legal framework, and develops detailed recommendations for regulatory, policy, and technological improvements. Electronic Health Records and Medical Big Data addresses not only privacy and security concerns, but also other important challenges, such as those related to data quality …

The Power To Tax, Erik M. Jensen

Faculty Publications

The Power to Tax, chapter 1 in The Powers of the U.S. Congress: Where Constitutional Authority Begins and Ends, Brien Hallett, editor: Copyright © 2016 by ABC-CLIO LLC

This is a chapter in a book intended largely for an undergraduate audience. The chapter outlines the key terms necessary for understanding the congressional power to tax under the U.S. Constitution; the history and development of our understanding of that power; and the limitations (or possible limitations) on the power.

How The War Against Isis Changed International Law, Michael P. Scharf

Faculty Publications

In an effort to destroy ISIS, beginning in August 2014, the United States, assisted by a handful of other Western and Arab countries, carried out thousands of bombing sorties and cruise missile attacks against ISIS targets in Iraq and Syria. Iraq had consented to the airstrikes in its territory, but Syria had not, and Russia blocked the UN Security Council from authorizing force against ISIS in Syria. The United States invoked several different legal arguments to justify its airstrikes, including the right of humanitarian intervention, the right to use force in a failed state, and the right of hot pursuit, …

Empirical Study Redux On Choice Of Law And Forum In M&A: The Data And Its Limits, Kyle Chen, Harold S. Haller, Juliet P. Kostritsky, Wojbor A. Woyczynski

Faculty Publications

The legal community has long recognized that business corporations heavily favor Delaware as the state of incorporation. However, a recent study of merger agreements from 2002 by Eisenberg and Miller suggested that despite Delaware’s prominence as the place of incorporation, companies “flee” from Delaware with respect to both choice of law and forum, and instead prefer New York. We set out to study data from 343 merger and acquisitions contracted on between January 1, 2011 and June 30, 2011 in an attempt to verify this conjecture. Our study is important for two reasons. First, the 2011 data set show that …

Trying The Trial, Andrew S. Pollis

Faculty Publications

Lawyers routinely make strategic advocacy choices that reflect directly, if inferentially, on the credibility of their clients’ claims and defenses. But courts have historically been reluctant to admit evidence of litigation conduct, sometimes even expressing hostility at the very notion of doing so. This Article deconstructs that reluctance. It argues not only that litigation conduct has probative value, but also that there is social utility in subjecting lawyer behavior to juror scrutiny.