Law Commons^™

International Arbitration And Attorney-Client Privilege — A Conflict Of Laws Approach, Susan Franck

Articles in Law Reviews & Other Academic Journals

Privilege determinations in international arbitration are currently the equivalent of the “wild west,” with minimal predictability and massive pockets of tribunal discretion. Yet protecting privilege in international arbitration — when the same document or communications with lawyers that is protected by United States law may receive no protection under another law — is fundamental to safeguarding attorney-client relationships within a global environment, incentivizing procedural integrity of dispute resolution, and ensuring that justice is done. As it is not clear what law applies to privilege and client confidentiality (let alone how the law is determine), this Essay begins to bridge the …

Reclaiming Place-Based Development Incentive, Ezra Rosser

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Professor Michelle Layser's forthcoming article is an attack on the current form of place-based tax incentive programs. Layser argues that while rhetorically such programs are said to help the poor, by design they support gentrification in ways that harm the poor. The article ends with a call to reform place-based incentive programs so that the poor in selected areas actually benefit.

The Myth Of Enforcing Border Security Versus The Reality Of Enforcing Dominant Masculinities, Jamie Abrams

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This essay explores the masculinities underpinnings in modern immigration law, policy, and rhetoric. Existing analysis has captured the ways in which Trump-era immigration laws, policies, and rhetoric are explicitly and implicitly packaged in alarming racism and xenophobia. These critical lenses continue a long and deeply worrisome legacy of “othering” and dehumanizing immigrants and, more broadly, marginalizing communities of color in the United States.

Outside of the immigration law lens, separate strands of scholarship and media coverage have highlighted the toxic masculinities of the Trump era. These discussions have generally focused on President Trump’s treatment of women, the gendered campaign dynamics …

Reclaiming State Authority Over Zoning Property, Ezra Rosser

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In 2019, Oregon became the first state to pass legislation that essentially bans single-family zoning.' As states across the country struggle to respond to the housing affordability crisis, Oregon's actions do not stand alone. John Infranca's recent article, The New State Zoning: Land Use Preemption Amid a Housing Crisis, may have been published before Oregon's historic vote but it is essential reading for those interested in the future of zoning.

In The Right Direction, Family Diversity In The Inter-American System Of Human Rights, Macarena Sáez

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This Article argues that the Inter-American System of Human Rights has contributed to a family system that embraces gender equality and non-heterosexual and gender non-conforming families. It argues that the system had, from its inception, an expansive idea of the family that included associations outside marriage. This was the basis for a robust development of the concepts of equality and non-discrimination by the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights. Although the IACtHR has only decided a handful of cases related to the non-heterosexual family, its rich case law on equality and the right to …

In This Issue, What Would Justice Brennan Say To Justice Thomas?, Stephen Wermiel

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No abstract provided.

Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Nancy Rose, Steven Salop, Fiona Scott Morton

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There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …

Federal Courts And The Poor: Lack Of Standards And Uniformity In Civil In Forma Pauperis Pleadings, Ezra Rosser

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Andrew Hammond's article, Pleading Poverty in Federal Court, shows that there is considerable variation in how federal courts consider requests by the poor for fee waivers in civil litigation. Courts not only use different forms to collect ability-to-pay information but they also apply different standards when determining whether fees should be waived. By focusing attention on federal court in forma pauperis motion practices, Hammond's article sheds light on how the poor can be negatively impacted by routine court practices that might ordinarily be treated as merely administrative. Hammond makes a convincing argument that federal courts should have uniform standards for …

Life, Liberty, [And The Pursuit Of Happiness]: Medical Marijuana Regulation In Historical Context, Lewis Grossman

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The struggle for access to medical marijuana differs from most other battles for therapeutic freedom in American history because marijuana also has a popular, though controversial, nontherapeutic use—delivery of a recreational high. After considering struggles over the medical use of alcohol during prohibition as a precedent, this chapter relates the history of medical marijuana use and regulation in the United States. The bulk of the chapter focuses on the medical marijuana movement from the 1970s to present. This campaign has been one of the prime examples of a successful extrajudicial social movement for freedom of therapeutic choice. With the exception …

Cracking The Copyright Dilemma In Software Preservation: Protecting Digital Culture Through Fair Use Consensus, Peter Jaszi, Patricia Aufderheide, Brandon Butler, Krista L. Cox

Articles in Law Reviews & Other Academic Journals

Copyright problems may inhibit the crucially important work of preserving legacy software. Such software is worthy of study in its own right because it is critical to accessing digital culture and expression. Preservation work is essential for communicating across boundaries of the past and present in a digital era. Software preservationists in the United States have addressed their copyright problems by developing a code of best practices in employing fair use. Their work is an example of how collective action by users of law changes the norms and beliefs about law, which can in turn change the law itself insofar …

Manufactured Emergencies, Robert Tsai

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Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a concern. The erosion of democratic norms has led not only to the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also to the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To …

October 1, 2019 Broadcast: 'The Rohingya Genocide', Rebecca Hamilton

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No abstract provided.

What Would Justice Brennan Say To Justice Thomas, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Paris Agreement And Global Climate Litigation After The Trump Withdrawal, David Hunter

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The article addresses the emergence of cases in many countries around the world that are addressing climate change by enforcing, or at least referring to, the Paris Agreement.

Privacy And Security Across Borders, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

Who Is The Client? Rethinking Professional Responsibility For Benefit Corporations, Joseph Pileri

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A growing social enterprise movement has led companies to increasingly opt into the benefit corporation form, and those companies are hiring lawyers. Benefit corporations challenge the notion that corporate law’s primary focus is on furthering shareholder interests. While many have written about the benefit corporation with respect to corporate fiduciary law, this Article is the first to explore the form’s ethical implications for lawyers. Ethical obligations necessarily reflect substantive law governing client organizations; changes to the corporate form presented by benefit corporation legislation should reverberate in legal ethics. The legal profession, however, has not addressed how to lawyer to a …

Copyright And The Progress Of Science: Why Text And Data Mining Is Lawful, Michael Carroll

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This Article argues that U.S. copyright law provides a competitive advantage in the global race for innovation policy because it permits researchers to conduct computational analysis — text and data mining — on any materials to which they have access. Amendments to copyright law in Japan, and the European Union’s recent addition of limitations on copyright to legalize some TDM research, implicitly acknowledge the competitive benefits provided by the fair use provision of U.S. copyright law. Focusing only on U.S. law, this Article makes two general contributions to the literature on fair use: (1) in cases involving archiving, the user’s …

Internet Of Infringing Things: The Effect Of Computer Interface Copyrights On Technology Standards, Charles Duan

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You connect to the Internet via your Wi-Fi access point. You surf the Web using a browser and send emails through your email server. You probably use some USB peripherals-say a mouse, keyboard, or printer. Maybe you even watch cable or broadcast television.

Under current case law, each of those computer systems and devices may very well be copyright-infringing contraband. This is through no fault of your own-you need not be pirating music or streaming illegal movies to infringe a copyright. The infringement simply exists, hard-wired within each of those devices and many more that you use, a result of …

Conduct Yourselves Accordingly: Amending Bar Character And Fitness Questions To Promote Lawyer Well-Being, David Jaffe, Janet Stearns

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Wage Theft In Lawless Courts, Llezlie Green

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Low-wage workers experience wage theft — that is, employers’ failure to pay earned wages — at alarmingly high rates. Indeed, the number of wage and hour cases filed in federal and state courts and administrative agencies steadily increases every year. While much of the scholarly assessment of wage and hour litigation focuses on large collective and class actions involving hundreds or thousands of workers and millions of dollars in lost wages, the experiences of individual workers with small claims have received little attention. Furthermore, scholarly consideration of the justice gap in lower courts, more generally, has often focused on debt …

The Exclusionary Rule In The Age Of Blue Data, Andrew Ferguson

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In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court’s understanding of the exclusionary rule: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The open question remains: how can defendants demonstrate sufficient recurring or systemic negligence to warrant exclusion? The Supreme Court has never answered the question, although the absence of systemic or recurring problems has figured prominently in two recent exclusionary rule decisions. Without the ability to document recurring failures, or patterns of police misconduct, courts can dismiss …

The New Social Contracts In International Supply Chains, David Snyder

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This Article considers, from legal, practical, moral, and policy perspectives, Model Contract Clauses (MCCs) to protect the human rights of workers in international supply chains. The product of the ABA Business Law Section Working Group to Draft Human Rights Protections in International Supply Contracts, the MCCs are an effort to provide companies with carefully researched and well-drafted clauses to incorporate human rights policies into supply contracts (purchase orders, master vendor agreements, and the like). The Article discusses the impetus, goals, and strategies of the MCCs and explains the paradigm of the corporate, operational, and political landscape for which they are …

The Deconstructed Issue-Spotting Exam, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

This article proposes a teaching technique for use in large, Socratic-style law school classes to embed exam preparation, formative assessment, and lawyering simulations in the course without overburdening the professor or students. This technique is sustainable, yet highly efficacious for students.

Law schools nationwide are implementing new reforms pushing law schools toward stronger assessment techniques and client-based simulations better preparing students for the practice of law. Many law schools have implemented these reforms around the margins or outside of the traditional doctrinal course. Law schools have generally added new classes with experiential learning components or with simulations integrated into the …

Rethinking Feres: Granting Access To Justice For Service Members, Andrew F. Popper

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In 1946, the ancient wall of sovereign immunity gave way with the passage of the Federal Tort Claims Act (FTCA) opening the courthouse doors to persons harmed by those acting on behalf of the federal government. From the outset, FTCA liability was limited by the expansive discretionary function exception and other express limitations on civil actions. Unresolved in the FTCA was the fate of members of our armed forces injured by actions "incident to service" but outside of armed conflict. Four years later, in Feres v. United States, the Court addressed this question placing dramatic limits on civil tort claims …

Defining Detention: The Intervention Of The European Court Of Human Rights In The Detention Of Involuntary Migrants, Anita Sinha

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This Article examines the European Court of Human Rights' intervention in the detention of involuntary migrants. It analyzes the use of "carceral migration control" in response to a migration "crisis," and argues that the actual crisis in the region is one of politics and policies rather than the magnitude of migration. It explores the consequences of a crisis moniker for migration, including shortsighted migration policies, entrenched caricatures of migrants as threatening, and excessive emphasis on punitive rather than humanitarian responses. Responding to migration as a crisis has led states in Europe and elsewhere to shift the movement of people across …

Visibility And Accountability: Shining A Light On Proceedings In Misdemeanor Two-Tier Court Systems, Binny Miller

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No abstract provided.

Accused And Unconvicted: Fleeing From Wealth-Based Pretrial Detention, Cynthia E. Jones

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Why Central Banks Need To Take Human Rights More Seriously, Daniel D. Bradlow

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Most central bankers think that there is a tenuous connection between the operations of central banks and human rights. Their responsibility is to concentrate on the relatively narrow set of macro-economic variables that are relevant to their mandates and to leave to their country’s political leadership the decisions dealing with the complex and politically sensitive variables that affect the functioning of the economy and society.

This position is no longer tenable. Climate change is forcing the central banking community to rethink their view of their responsibilities. The recent release of the Network for Greening, the Financial System’s first comprehensive report …

Use Of Force In Humanitarian Crises: Addressing The Limitations Of U.N. Security Council Authorization, Paul Williams, Sophie Pearlman

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The original 2001 United Nations (UN) codification of the Responsibility to Protect (R2P) granted the UN Security Council exclusive control over authorizing use of force in sovereign states. Unfortunately, as demonstrated over the past 20 years, the need for humanitarian intervention has not changed and the use of force in the name of humanitarian intervention has not always occurred even when the need for such intervention was dire. When the UN Security Council is deadlocked, and a humanitarian crisis is at hand, it is necessary to have a means of using low-intensity military force to prevent mass atrocity crimes. In …

Talking Foreign Policy: Responding To Rogue States, Paul Williams, Todd F. Buchwald, James Johnson, Michael P. Scharf, Milena Sterio

Articles in Law Reviews & Other Academic Journals

No abstract provided.