Law Commons^™

Groundhog Law, Richard Delgado

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An unexpected question from a conference participant sends Rodrigo in search of the professor's counsel. A young stranger from another discipline had asked him why law seems never to advance and posited that the reason may be that, lone among disciplines, law is uninterested in advancing human knowledge. The questioner even raised the possibility that law may not belong on a university campus along with departments such as Physics, English, and History, and might well consider relocating to community colleges where it would find a disciplinary home along with courses on welding, automobile mechanics, and high-speed cooking.

Rodrigo, who at …

Incentivized Torts: An Empirical Analysis, John Shahar Dillbary, Cherie Metcalf, Brock Stoddard

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Courts and scholars assume that group causation theories deter wrongdoers. This Article empirically tests, and rejects, this assumption, using a series of incentivized laboratory experiments. Contrary to common belief and theory, data from over 200 subjects show that group liability can encourage tortious behavior and incentivize individuals to act with as many tortfeasors as possible. We find that subjects can be just as likely to commit a tort under a liability regime as they would be when facing no tort liability. Group liability can also incentivize a tort by making subjects perceive it as fairer to victims and society. These …

The Least Of These: The Case For Nationwide Injunctions In Immigration Cases As A Critical Democratic Institution, Allen Slater, Richard Delgado

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No abstract provided.

The Case Against Collective Liability, J. Shahar Dillbary

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Collective liability-defined as the imposition of liability on a group that may include innocent actors-is commonplace. From ancient to modem times, legislators, regulators, and courts have imposed such liability when they believe that the culprit is a member of the group. Examples of collective liability abound: from surgical teams held jointly liable for a misplaced sponge to entire families evicted from their homes for the drug-related activity of a single person under the "One Strike Rule." Courts recognize, of course, that collective liability punishes the innocent, but they view it as a necessary evil to smoke out and punish an …

Cannabis Banking: What Marijuana Can Learn From Hemp, Julie A. Hill

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Marijuana-related businesses have banking problems. Many banks explain that, because marijuana is illegal under federal law, they will not serve the industry. Even when marijuana-related businesses can open bank accounts, they still have trouble accepting credit cards and getting loans. Some hope to fix marijuana's banking problems with changes to federal law. Proposals range from broad reforms removing marijuana from the list of controlled substances to narrower legislation prohibiting banking regulators from punishing banks that serve the marijuana industry. But would these proposals solve marijuana's banking problems?

In 2018, Congress legalized another variant of the Cannabis plant species: hemp. Prior …

If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll

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No abstract provided.

Beyond Bail, Jenny E. Carroll

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From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of monetary bail, reform movements have altered the landscape of pretrial detention. Yet, reform movements have paid little attention to the emerging reality of a post-monetary-bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on nonmonetary conditions of release. These nonmonetary conditions can be problematic for many of the same reasons that monetary bail is problematic and can inject additional bias into the pretrial system.

In theory, nonmonetary conditions offer increased opportunities …

Payday, Yonathan A. Arbel

Articles

Legislation lags behind technology all too often. While trillions of dollars are exchanged in online transactions-safely, cheaply, and instantaneously-workers still must wait two weeks to a month to receive payments from their employers. In the modern economy, workers are effectively lending money to their employers, as they wait for earned wages to be paid. The same worker who taps a credit card to pay for groceries in semiautomated checkout lines depends on dated payroll systems that only transfer payments on a "payday." Workers, especially those living paycheck-to-paycheck, are hard-pressed to meet their daily needs and turn to expensive, short-term credit …

Separating Fact From Fiction In Evaluating The Endangered Species Act: Recognizing The Need For Ongoing Conservation Management And Regulation, William L. Andreen

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No abstract provided.

Essentializing Labor Before, During, And After The Coronavirus Pandemic, Deepa Das Acevedo

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In the era of COVID-19, the term essential labor has become part of our daily lexicon. Between March and May 2020, essential labor was not just the only kind of paid labor occurring across most of the United States; it was also, many argued, the only thing preventing utter economic and humanitarian collapse. As a result of this sudden significance, legal scholars, workers' advocates, and politicians have scrambled to articulate exactly what makes essential labor "essential." Some commentators have also argued that the rise of essential labor as a conceptual category disrupts or should disrupt longstanding patterns in the way …

Farm-Raised Trout, Richard Delgado, Jean Stefancic

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No abstract provided.

Paying For Pretrial Detention, Russell M. Gold

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American criminal law vastly overuses pretrial detention even as it purports to presume defendants innocent. This Article compares financial incentives in pretrial detention to those in civil preliminary injunctions. Both are procedures where one of the parties seeks relief before judgment. And yet, these two procedures employ financial incentives in opposite ways. Civil procedure discourages interim relief by requiring plaintiffi to bear financial risk when they obtain a preliminary injunction. Criminal law does the opposite-encouraging interim relief by requiring defendants to pay to avoid pretrial detention. The reasons that civil procedure relies on financial incentives to discourage requests for interim …

The First Amendment As A Procrustean Bed?: On How And Why Bright Line First Amendment Tests Can Stifle The Scope And Vibrancy Of Democratic Deliberation, Ronald J. Krotoszynski Jr.

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No abstract provided.

Occupational Licensing And The Opioid Crisis, Benjamin J. Mcmichael

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The United States' affordable care crisis and chronic physician shortage have required nurse practitioners to assume increasingly important roles in the healthcare system. Nurse practitioners can address critical access-to-care problems, provide safe and effective care, and lower the cost of care. However, restrictive occupational licensing laws - specifically, scope-of-practice laws - have limited their ability to care for patients. Spurred by interest groups opposed to allowing nurse practitioners to practice independently, states require physician supervision of nurse practitioners. Research has discredited many of the traditional reasons for these restrictive laws, but emerging arguments assert that independent practice will deepen the …

Rethinking Standards Of Appellate Review, Adam N. Steinman

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Every appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court's framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial court …

Safeguarding A Will: Will Deposit Statutes, Alberto Lopez

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No abstract provided.

Some Musings As Llcs Approach The Fifty-Year Milestone, Susan Pace Hamill

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No abstract provided.

Health Justice Strategies To Eradicate Lead Poisoning: An Urgent Call To Safeguard Future Generations, Allyson E. Gold, Emily A. Benfer, Emily Coffey, Mona Hanna-Attisha, Bruce Lanphear, Helen Y. Li, Ruth Ann Norton, David Rosner, Kate Walz

Articles

Despite over a century of evidence that lead is a neurotoxin that causes irreparable harm, today, lead continues to pervade children's environments and remains a constant threat to health and wellbeing. One in three homes across the United States housing children under the age of six has significant lead-based paint hazards that place occupants at risk of permanent neurological harm and lifelong poor health risks. Federal, state, and local governments must use a range of primary prevention strategies in order to fully eradicate the risks and protect children from lead poisoning. This Article provides a comprehensive examination of best practices …

Presidential Laws And The Missing Interpretive Theory, Tara Leigh Grove

Articles

There is something missing in interpretive theory. Recent controversies-involving, for example, the first travel ban and funding for sanctuary cities-demonstrate that presidential "laws" (executive orders, proclamations, and other directives) raise important questions of meaning. Yet, while there is a rich literature on statutory interpretation and a growing one on regulatory interpretation, there is no theory about how to discern the meaning of presidential directives. Courts, for their part, have repeatedly assumed that presidential directives should be treated just like statutes. But that does not seem right: theories of interpretation depend on both constitutional law and institutional setting. For statutes, the …

The Due Process Of Bail, Jenny E. Carroll

Articles

The Due Process Clause is a central tenet of criminal law's constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Article considers the lay of the bail due process landscape through the lens of the district court's opinion in ODonnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the ODonnell court failed to characterize pretrial process as …

Safety, Crisis, And Criminal Law, Jenny E. Carroll

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No abstract provided.

A Few Grains Of Incense: Law, Religion, And Politics From The Perspective Of The "Christian" And "Pagan" Dispensations, Paul Horwitz

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No abstract provided.

A Rule 11 For Prosecutors, Yuri R. Linetsky

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This Article suggests a novel approach to allow victims of frivolous prosecutions to hold prosecutors accountable. Unique among American lawyers, prosecutors enjoy absolute immunity from civil suits alleging professional misconduct. In cases of frivolous prosecutions, where charges are dismissed by the judge or the defendants are acquitted, the former defendants are prevented from seeking damages. This is so despite former defendants often suffering significant consequences-from legal fees to loss of employment. Victims of frivolous prosecutions should be afforded a mechanism to seek redress against prosecutors who bring or maintain meritless actions.

By enacting a rule of criminal procedure that mirrors …

"Sorry" Is Never Enough: How State Apology Laws Fail To Reduce Medical Malpractice Liability Risk, Benjamin Mcmichael, R. Lawrence Van Horn, W. Kip Viscusi

Articles

Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, thirty-nine states (and the District of Columbia) have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible as evidence in subsequent malpractice trials.

The underlying assumption of these laws is that after receiving an apology, patients will be less likely to pursue malpractice claims and will be more likely to settle claims that are filed. However, once a patient has been made aware that the physician has committed a medical error, …

Appellate Jurisdiction And The Emoluments Litigation, Adam N. Steinman

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No abstract provided.

Rodrigo And Ressentiment "I Don't Want It If You Are Going To Get It, Too" -- Why Classical Economic And Political Theory Fails To Explain The Obamacare Vote, But Legal Realism And Cls Can, Richard Delgado

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No abstract provided.

What The Police Don't Know May Hurt Us: An Argument For Enhanced Legal Training Of Police Officers, Yuri R. Linetsky

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No abstract provided.

Beyond Physicians: The Effect Of Licensing And Liability Laws On The Supply Of Nurse Practitioners And Physician Assistants, Benjamin Mcmichael

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The increased use of nurse practitioners (NPs) and physician assistants (PAs) represents an important option for increasing access to healthcare. I explore the effect of two types of laws on the supply of NPs and PAs: occupational licensing laws that limit the practices of NPs and PAs and caps on noneconomic damages. Relaxing licensing laws to allow NPs to practice with less physician oversight increases the supply of NPs in areas with few practicing physicians by 60 percent - though the size of this increases as the supply of physicians grows. I find similar, but weaker, evidence for granting PAs …

Nonmajority Opinions And Biconditional Rules, Adam Steinman

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In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court's holding is "the position taken by those Members who concurred in the judgments on the narrowest grounds." The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an …

The End Of An Era? Federal Civil Procedure After The 2015 Amendments, Adam N. Steinman

Articles

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee's earlier proposals and supporting …