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Articles 31 - 60 of 1225
Full-Text Articles in Law
A Fiduciary Theory Of Progressive Prosecution, Bruce A. Green, Rebecca Roiphe
A Fiduciary Theory Of Progressive Prosecution, Bruce A. Green, Rebecca Roiphe
Faculty Scholarship
Progressive prosecutors differ from their more traditional counterparts primarily in the way in which they make decisions. They tend to bind their discretion by announcing categorical policies rather than making fact-based decisions case by case. This Article catalogs the unusual degree of pushback progressive prosecutors have encountered from the public, legislatures, courts, police, and their own subordinate prosecutors. Drawing on fiduciary theory, it explains this reaction as a response to progressive prosecutors’ abdication of their fiduciary role. As a public fiduciary, prosecutors are entrusted with protecting the public’s abstract interest in justice, and an integral part of this role is …
Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson
Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson
Faculty Scholarship
Second Amendment Sanctuaries deploy nonenforcement policies and strategies in defiance of firearms laws of superior jurisdictions. The scholarship so far has focused on whether Second Amendment Sanctuary policies are legally enforceable. This Article advances the scholarship beyond questions of de jure validity by examining the potential for practical, de facto efficacy of Second Amendment Sanctuary policies. This Article concludes that even where Second Amendment Sanctuaries have weak claims to formal validity, defiant public officials still have broad opportunities to implement Second Amendment Sanctuary policies through the exercise of enforcement discretion. The conclusion that enforcement discretion can effectuate sanctuary policies is …
Black Liberty In Emergency, Norrinda Brown
Black Liberty In Emergency, Norrinda Brown
Faculty Scholarship
COVID-19 pandemic orders were weaponized by state and local governments in Black neighborhoods, often through violent acts of the police. This revealed an intersection of three centuries-old patterns— criminalizing Black movement, quarantining racial minorities in public health crises, and segregation. The geographic borders of the most restrictive pandemic order enforcement were nearly identical to the borders of highly segregated, historically Black neighborhoods.
The right to free movement is fundamental and, as a rule, cannot be impeded by the state. But the jurisprudence around state power in public health emergencies, deriving from the 1905 case Jacobson v. Massachusetts, has practically resulted …
Congressional Power, Public Rights, And Non-Article Iii Adjudication, John M. Golden, Thomas Lee
Congressional Power, Public Rights, And Non-Article Iii Adjudication, John M. Golden, Thomas Lee
Faculty Scholarship
When can Congress vest in administrative agencies or other non–Article III federal courts the power to adjudicate any of the nine types of “Cases” or “Controversies” listed in Article III of the United States Constitution? The core doctrine holds that Congress may employ non–Article III adjudicators in territorial courts, in military courts, and for decision of matters of public right. Scholars have criticized this so-called “public rights” doctrine as incoherent but have struggled to offer a more cogent answer.
This Article provides a new, overarching explanation of when and why Congress may use non–Article III federal officials to adjudicate matters …
Theorizing Corroboration, Maggie Wittlin
Theorizing Corroboration, Maggie Wittlin
Faculty Scholarship
A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.
This Article argues that there is a key problem with using corroboration to evaluate …
When Donor Meets Purpose, Atinuke O. Adediran
When Donor Meets Purpose, Atinuke O. Adediran
Faculty Scholarship
This Essay addresses a gap in law and the Restatement of the Law Charitable Nonproít Organizations regarding the relationship between a charitable nonproít’s donors and its purpose. I argue that charitable nonproíts can align their purposes with the personal or professional identities of their donors, and it may be in the best interest of some charities to do so. Charities whose purposes are to address racial or economic inequality should seriously consider aligning their donor identity with their purpose as a way of improving their legitimacy in the communities they serve, and to reach previously untapped sources of funding.
`Representing And Being Represented In Turn’ – A Symposium On Hélène Landemore’S Open Democracy, Ethan J. Leib
`Representing And Being Represented In Turn’ – A Symposium On Hélène Landemore’S Open Democracy, Ethan J. Leib
Faculty Scholarship
No abstract provided.
Measuring Follow-On Innovation, Janet Freilich, Sepehr Shahshahani
Measuring Follow-On Innovation, Janet Freilich, Sepehr Shahshahani
Faculty Scholarship
How patents affect follow-on innovation is a key question for the patent system. We disaggregate follow-on innovation into activities that infringe patents and others that do not infringe but can be indirectly affected by patents. Replicating an important study using our disaggregated measure, we find that 87 percent of followon innovation is not patent infringement. Supplementing the study’s empirical strategy with data on patent expiration dates, we find that gene patents which are not close to expiration cause an increase in noninfringing follow-on research, but the effect disappears for patents close to expiration. Our nuanced measure helps better identify the …
Private Law And Public Discourse, Aditi Bagchi
Private Law And Public Discourse, Aditi Bagchi
Faculty Scholarship
Democracies need institutions that help to build public consensus on fundamental principles of justice. However, the major public institutions associated with this task – electoral institutions, the press, education, and civil society—each face a trade-off between a high degree of governmental control over their agendas, on the one hand, and self-segregation by participants, on the other. This Article identifies private law—the litigation of private claims and their judicial resolution—as an unlikely but ultimately critical site for building consensus on political principles. After laying out what public discourse requires (and what it does not), the Article argues that private law is …
Title Ix And "Menstruation Or Related Conditions", Marcy L. Karin, Naomi Cahn, Elizabeth B. Cooper, Bridget J. Crawford, Margaret E. Johnson, Emily Gold Waldman
Title Ix And "Menstruation Or Related Conditions", Marcy L. Karin, Naomi Cahn, Elizabeth B. Cooper, Bridget J. Crawford, Margaret E. Johnson, Emily Gold Waldman
Faculty Scholarship
Title IX protects against sex-based discrimination and harassment in covered education programs and activities. The Biden Administration's recently proposed Title IX regulations do not, however, include discrimination on the basis of menstruation or related conditions as a form of discrimination based on sex. This comment on the proposed regulations explains why the regulations should include conditions related to menstruation and recommends changes for how to do so.
Family Law For The One-Hundred-Year Life, Naomi R. Cahn, Clare Huntington, Elizabeth Scott
Family Law For The One-Hundred-Year Life, Naomi R. Cahn, Clare Huntington, Elizabeth Scott
Faculty Scholarship
Family law is for young people. To facilitate child rearing and help spouses pool resources over a lifetime, the law obligates parents to minor children and spouses to each other. Family law’s presumption of young, financially interdependent, conjugal couples raising children privileges one family form—marriage—and centers the dependency needs of children.
This age myopia fundamentally fails older adults. Families are essential to flourishing in the last third of life, but the legal system offers neither the family forms many older adults want nor the support of family care older adults need. Racial and economic inequities, accumulated across lifetimes, exacerbate these …
It's A Code: Amending The Federal Rules Of Evidence To Achieve Uniform Results, Daniel J. Capra, Jessica Berch
It's A Code: Amending The Federal Rules Of Evidence To Achieve Uniform Results, Daniel J. Capra, Jessica Berch
Faculty Scholarship
This Article identifies, explores, and attempts to resolve nine conflicts that have arisen in the federal courts regarding the proper interpretation and scope of the Federal Rules of Evidence. For each conflict, we set forth the language of the current rule, its policy goals, and the differing positions taken by the courts. We then analyze the merits of the debate and propose new rule language to resolve the matter.
In this Article, we consider whether theft-based convictions are automatically admissible under Rule 609(a)(2), and how to calculate the passage of ten years for old convictions under Rule 609(b). We chart …
Race, Gatekeeping, Magical Words, And The Rules Of Evidence, I. Bennett Capers
Race, Gatekeeping, Magical Words, And The Rules Of Evidence, I. Bennett Capers
Faculty Scholarship
Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence—what is deemed relevant, what is deemed trustworthy—to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.
One area that has escaped racialized scrutiny—at least of the type I am interested in—is that of expert testimony. In this brief Essay written for the Vanderbilt Law Review Symposium, Reimagining the Rules of Evidence at …
Binding Hercules: A Proposal For Bench Trials, Maggie Wittlin
Binding Hercules: A Proposal For Bench Trials, Maggie Wittlin
Faculty Scholarship
Should the Federal Rules of Evidence apply at bench trials? By their own terms, they apply, but courts have been reluctant to enforce them on themselves with the same rigor that they enforce them on juries. Scholarship on the issue has been mixed. Although McCormick deemed the rules of evidence "absurdly inappropriate" outside of the jury context, more recently, scholars have suggested that many reasons for imposing exclusionary rules on jurors also apply to judges. Yet practical problems persist. For one, once judge evaluate the admissibility of evidence, they can’t “unring the bell” and ignore evidence they've decided to exclude. …
Lawyers And The Lies They Tell, Bruce A. Green, Rebecca Roiphe
Lawyers And The Lies They Tell, Bruce A. Green, Rebecca Roiphe
Faculty Scholarship
The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of their fiduciary relationships with courts and clients. For instance, states can sanction lawyers for some speech inside a courtroom that would be protected if uttered by a non-lawyer. This Article explores whether lawyers’ free speech rights should also be different from those of other speakers when lawyers, acting on their own behalf, participate in political discourse. Applying the current First Amendment framework, the authors question the bar’s assumption that, simply because lawyers are subject to rules of professional conduct, courts can …
The Institutions Of Family Law, Clare Huntington
The Institutions Of Family Law, Clare Huntington
Faculty Scholarship
Family law scholarship is thriving, with scholars using varied methodologies to analyze intimate partner violence, cohabitation, child maltreatment, juvenile misconduct, and child custody, to name but a few areas of study. Despite the richness of this discourse, however, most family law scholars ignore a key tool deployed in virtually every other legal-academic domain: institutional analysis.
This methodology, which plays a foundational role in legal scholarship, focuses on four basic questions. Scholars often begin empirically, identifying the specific legal, social, and economic institutions that shape an area of legal regulation. Beyond descriptive accounts, scholars analyze how authority is and should be …
Lowering The Stakes Of The Employment Contract, Aditi Bagchi
Lowering The Stakes Of The Employment Contract, Aditi Bagchi
Faculty Scholarship
Every country has to make hard choices about the distribution of entitlements. But employers control the entitlements that individual Americans enjoy to a far greater extent than those in other rich democracies. In this Essay, I argue that, in the absence of the political consensus necessary to deliver state solutions to political questions, employers here are assigned an exaggerated role in employees’ lives. Government incentives for and directives to employers have become a strategy of political deflection. The effect has been to raise the stakes of employment well beyond the scope of those terms and conditions that relate to attracting …
The Challenge Of Radical Reform In Pluralist Democracies, Aditi Bagchi
The Challenge Of Radical Reform In Pluralist Democracies, Aditi Bagchi
Faculty Scholarship
Martijn Hesselink proposes a new European charter of private law that would correct the deficiencies in private law identified by Katharina Pistor. While Hesselink aims to achieve radical reform by way of radical democracy, this article argues that radical democracy is unlikely to realise a radically progressive vision of private law. Citizens of wealthy, post-industrial democracies lack certainty about both the material consequences of reform and the demands of justice. Because their caution renders them averse to far-reaching, bundled reform packages, public discourse in post-industrial societies as we find them is more likely to produce incremental than radical substantive reform.
The False Promise Of General Jurisdiction, Maggie Gardner Gardner, Pamela K. Bookman, Andrew Bradt, Zachary Clopton, D. Theodore Rave
The False Promise Of General Jurisdiction, Maggie Gardner Gardner, Pamela K. Bookman, Andrew Bradt, Zachary Clopton, D. Theodore Rave
Faculty Scholarship
The Supreme Court has said that general jurisdiction provides at least one clear and certain forum to sue defendants, and that assumption has begun to shape the Court’s understanding of specific jurisdiction. But that assumption is wrong. General jurisdiction does not provide a guaranteed U.S. forum for foreign defendants or in cases involving multiple defendants. And even when defendants can be sued “at home,” such cases may be (and not infrequently are) dismissed for forum non conveniens, sometimes even when no alternative forum is available.
Nor is a regime reliant on a general jurisdiction backstop desirable. The Court’s narrowed version …
Impeaching Legal Ethics, Bruce A. Green, Rebecca Roiphe
Impeaching Legal Ethics, Bruce A. Green, Rebecca Roiphe
Faculty Scholarship
In the investigations, hearings, and aftermath of President Trump’s first impeachment, lawyer-commentators invoked the rules of professional conduct to criticize the government lawyers involved. To a large extent, these commentators mischaracterized or misapplied the rules. Although these commentators often presented themselves to the public as neutral experts, they were engaged in political advocacy, using the rules, as private litigators often do, as a strategic weapon against an adversary in the court of public opinion. For example, commentators on the left wrongly conveyed that, under the rules, government lawyers had a responsibility to the public to voluntarily assist in the impeachment, …
Law And The Moral Dynamics Of Collective Action, Aditi Bagchi
Law And The Moral Dynamics Of Collective Action, Aditi Bagchi
Faculty Scholarship
Many moral demands on social groups cannot be met without cooperation among group members. In some cases, individual action does not advance the collective moral interest at all without some threshold level of cooperation by other group members. Is an individual required to act as if others will cooperate even if she knows that they will not? This Article argues that individuals may take into account the reality of pervasive noncooperation and decline to attempt cooperation. Only ex ante mandatory rules can solve moral collective action problems. In a political community, those rules are public law. The most compelling argument …
Still Against Prosecutors, I. Bennett Capers
Still Against Prosecutors, I. Bennett Capers
Faculty Scholarship
No abstract provided.
Countering Gerrymandered Courts, Jed H. Shugerman
Countering Gerrymandered Courts, Jed H. Shugerman
Faculty Scholarship
The key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.
This Piece offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping …
Platform Realism, Informational Inequality, And Section 230 Reform, Olivier Sylvain
Platform Realism, Informational Inequality, And Section 230 Reform, Olivier Sylvain
Faculty Scholarship
Online companies bear few duties under law to tend to the discrimination that they facilitate or the disinformation that they deliver. Consumers and members of historically marginalized groups are accordingly the likeliest to be harmed. These companies should bear the same, if not more, responsibility to guard against such inequalities.
Free-Ing Criminal Justice, I. Bennett Capers
Free-Ing Criminal Justice, I. Bennett Capers
Faculty Scholarship
No abstract provided.
Retrospective Risk Allocation, Aditi Bagchi
A Comment On Foohey Et Al., Steering Loan Modifications Post-Pandemic, Susan Block-Lieb
A Comment On Foohey Et Al., Steering Loan Modifications Post-Pandemic, Susan Block-Lieb
Faculty Scholarship
No abstract provided.
Fit For Its Ordinary Purpose: Implied Warranties And Common Law Duties For Consumer Finance Contracts, Susan Block-Lieb, Edward J. Janger
Fit For Its Ordinary Purpose: Implied Warranties And Common Law Duties For Consumer Finance Contracts, Susan Block-Lieb, Edward J. Janger
Faculty Scholarship
The history of consumer goods and consumer credit markets pre-sents an anomaly: market transactions for consumer goods and credit transactions evolved in tandem from face to face and bespoke to standardized and widely distributed; the law governing these “product” markets has not. With consumer goods, the Uniform Commercial Code codifies implied warranties of merchantability and fitness for a particular purpose, and the common law of tort provides strict liability for defective products. With consumer fi-nance contracts, borrowers enjoy scant common law protection. And yet both consumer goods and consumer contracts may be danger-ously defective “products.”
This Article reconsiders the traditional, …
Corporate Accountability And Worker Empowerment, Atinuke O. Adediran
Corporate Accountability And Worker Empowerment, Atinuke O. Adediran
Faculty Scholarship
No abstract provided.
Mala Prohibita, The Wrongfulness Constraint, And The Problem Of Overcriminalization, Youngjae Lee
Mala Prohibita, The Wrongfulness Constraint, And The Problem Of Overcriminalization, Youngjae Lee
Faculty Scholarship
The wrongfulness constraint, as a principle of criminalization, is supposed to preclude criminalization in the absence of wrongfulness. Crimes that look especially problematic from the perspective of the wrongfulness constraint are mala prohibita offenses. The aim of this Essay is to consider the question whether the wrongfulness constraint can serve as an effective tool to curb overcriminalization by looking at the case of mala prohibita offenses. This Essay defends the following propositions. First, because of the availability of an array of tools to defend various mala prohibita offenses as satisfying the wrongfulness constraint, it is often not a straightforward matter …