Law Commons^™

Drone Federalism: Civilian Drones And The Things They Carry, Margot E. Kaminski

Publications

Civilian drones are scheduled to be permitted in the national airspace as early as 2015. Many think Congress should establish the necessary nationwide regulations to govern both law enforcement and civilian drone use. That thinking, however, is wrong. This Essay suggests drone federalism instead: a state-based approach to privacy regulation that governs drone use by civilians, drawing on states’ experience regulating other forms of civilian-on-civilian surveillance. This approach will allow necessary experimentation in how to best balance privacy concerns against First Amendment rights in the imminent era of drone-use democratization. This Essay closes by providing some guidance to states as …

Rethinking Attempt Under The Model Penal Code, William T. Pizzi

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No abstract provided.

Secrets, Lies, And Disclosure, Helen Norton

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This symposium essay suggests that we can sometimes understand those who resist campaign disclosure or disclaimer requirements as interested in keeping a secret and occasionally even in telling a sort of lie about the source or intensity of support for a particular candidate or cause. Such secrets and lies threaten listeners’ autonomy interests when the speaker seeks to keep such secrets (and sometimes seeks to tell such lies) to enhance her ability to influence her listeners’ decisions. For these reasons, I suggest greater attention to the reasons speakers seek to keep secrets (or occasionally tell such lies) in assessing the …

Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers, Ming H. Chen

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This Article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies incorporate immigrants into labor law enforcement in accordance with the agencies' professional ethos and organizational mandates. Building on Miles' Law that "where you stand depends on where you sit," this Article argues that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose …

Bridging The Great Divide--A Response To Linda Greenhouse And Reva B. Siegel's Before (And After) Roe V. Wade: New Questions About Backlash, Lolita Buckner Inniss

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This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry focuses on what factors are implicated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. By naming party politics and the Catholic Church, Greenhouse and Siegel posit two crucial elements that shaped the abortion debate. I assert, however, that what is not discussed in their Article is the way numerous other factors have figured into …

David Getches: A Tribute To A Leader And Scholar, Matthew L.M. Fletcher, Kristen A. Carpenter

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No abstract provided.

The Judicial Assault On The Clean Water Act, Mark Squillace

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No abstract provided.

Lies And The Constitution, Helen Norton

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Although the Supreme Court declared almost forty years ago that “there is no constitutional value in false statements of fact,” the Court in United States v Alvarez ruled that the First Amendment protects at least some -- and perhaps many -- intentional lies from government prohibition. In Alvarez, a divided Court struck down the Stolen Valor Act, a federal statute that made it a crime for any person to state falsely that he or she had received a military decoration or medal. In three separate opinions, all of the Justices agreed that the First Amendment permits the government to …

Internet Governance: The Role Of Multistakeholder Organizations, Joe Waz, Phil Weiser

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With the increasing international focus on the future of the ITU and its role (or lack thereof) in Internet governance, there is greater attention being paid to the fact that much of the 'governance' of the Internet is in fact carried out by so-called 'multistakeholder ('MSH') organizations.' Over the last two decades, these entities have largely established the norms and standards for the global Internet, but they are little known to the general public and even to most regulators and legislators. Indeed, most governments do not understand the essential role of MSH organizations. Consequently, to develop an effective Internet governance …

The Digital Collections At Colorado Law, Robert M. Linz

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No abstract provided.

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

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Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.

Introductory Remarks: International Energy Governance, Lakshman Guruswamy

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No abstract provided.

Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur

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No abstract provided.

Government Speech In Transition, Helen Norton

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This symposium essay explores the legacy of the Supreme Court’s decision in Johanns v. Livestock Mktg. Ass’n. There the Court offered its clearest articulation to date of its emerging government speech doctrine. After characterizing contested expression as the government’s, the Court then held such government speech to be exempt from free speech clause scrutiny. In so doing, the Court solved at least one substantial problem, but created others that remain unresolved today. On one hand, Johanns marked the Court’s long overdue recognition of the ubiquity and importance of government speech, appropriately exempting the government’s own expressive choices from free …

Reining In The Rogue Squadron: Making Sense Of The "Original Source" Exception For Qui Tam Relators, Dayna Bowen Matthew

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The qui tam provision of the Civil False Claims Act effectively serves to expand the government’s capacity to combat fraud, but also invites abusive prosecution against blameless public contractors. Although the public disclosure jurisdictional bar is designed to permit worthy claimants to proceed as whistle blowers while precluding parasitic opportunists from unfairly imposing litigation costs and reaping undeserved awards, the inconsistent judicial interpretation of the original source exception threatens predictable and just law enforcement. Christopher Alexion’s note categorizes the approaches courts have taken as ranging from permissive, to “middle ground” to restrictive based on the timing of the relator’s disclosure, …

A Shift To Narrativity, Derek H. Kiernan-Johnson

Publications

Slipshod, inconsistent use of core Applied Legal Storytelling terminology muddles its discourse and hampers its growth. Refining the field’s vocabulary is essential, but insufficient, as exclusive focus on the field’s objects of inquiry, such as story and narrative, and the means of creating or conveying them, such as storytelling and narrating, risks losing the “A” in ALS. We need a new focus, one unburdened by the ambiguities and negative associations of existing options that more accurately reflects Applied Legal Storytelling scholars’ unique contributions. A shift to narrativity. Narrativity, as imagined here, is a top-level quality of a legal text or …

Tiger Cub Strikes Back: Memoirs Of An Ex-Child Prodigy About Legal Education And Parenting, Peter H. Huang

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I am a Chinese American who at 14 enrolled at Princeton and at 17 began my applied mathematics Ph.D. at Harvard. I was a first-year law student at the University of Chicago before transferring to Stanford, preferring the latter's pedagogical culture. This Article offers a complementary account to Amy Chua's parenting memoir. The Article discusses how mainstream legal education and tiger parenting are similar and how they can be improved by fostering life-long learning about character strengths, emotions, and ethics. I also recount how a senior professor at the University of Pennsylvania law school claimed to have gamed the U.S. …

Lawyers, Loyalty And Social Change, Deborah J. Cantrell

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Fundamentally, cause lawyers engage in their work to make social change. Scholars of cause lawyering have generated a robust and rich literature considering important issues, such as what kinds of advocacy strategies best generate social change and what features of the relationship between cause client and cause lawyer are critical to an engaged and mutual relationship. But, the literature has neglected a key aspect of the cause lawyer and client relationship: whether the particular kind of loyalty that exists as between them hinders or helps in achieving social change. This Article fills that void. It first illuminates the particular features …

Genealogies Of Risk: Searching For Safety, 1930s-1970s, William Boyd

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Health, safety, and environmental regulation in the United States are saturated with risk thinking. It was not always so, and it may not be so in the future. But today, the formal, quantitative approach to risk provides much of the basis for regulation in these fields, a development that seems quite natural, even necessary. This particular approach, while it drew on conceptual and technical developments that had been underway for decades, achieved prominence during a relatively short timeframe; roughly, between the mid-1970s and the early 1980s--a time of hard looks and regulatory reform. Prior to this time, formal conceptions of …

Fugitive Emissions: The Marcellus Shale And The Clean Air Act, Joseph Minott, Jonathan Skinner

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No abstract provided.

Sovereignty And The Promotion Of Peace In Non-International Armed Conflict, Anna Spain

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No abstract provided.

Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin

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This Article challenges the corporate-constructed image of American business and industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and doctrinal corporate law, this Article examines the ways that social and legal actors understand what it means for a corporation or its products to be American. In a global economy, what does it mean for a corporation to present the impression of national citizenship? Considering the recent bailout of American automotive corporations, the automotive industry today becomes a powerful vehicle for problematizing the conflicted public/private nature of the corporate …

Regulation Goes Medieval, Andrew A. Schwartz

Publications

Section 301 of the 2009 federal Credit Card Accountability, Responsibility, and Disclosure Act prohibits the issuance of consumer credit cards to young adults ages 18–20 unless the credit contract is cosigned by an older adult who accepts joint liability for the card, or else the young adult proves she has “independent means of repaying” her credit card obligations. This prohibition is at odds with a 50-year trend of extending the rights of adulthood to people ages 18–20. It also blocks an important source of credit for young entrepreneurs, who often use consumer credit to launch their enterprises.

Tenth Amendment Challenges After Bond V. United States, Scott G. Thompson, Christopher Klimmek

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In its recent decision in Bond v. United States, the Supreme Court explained that because the Tenth Amendment "secures the freedom of the individual," private parties who otherwise satisfy Article III's standing requirements and other prudential requirements may challenge federal laws as violating the Tenth Amendment. In so doing, the Court reversed the majority of circuit courts that have addressed the issue and removed a significant categorical bar to individual Tenth Amendment challenges. This Article explains Bond's holding and explores its implications for future Tenth Amendment challenges by private parties.

Although Bond contains some expansive language regarding the role …

Economic Development And The Problem With The Problem-Solving Approach, Justin Desautels-Stein

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Scholars and practitioners alike have recently pointed to the idea of a "new moment" in the field of law and economic development, as well as a hope for a fruitful rethinking of political economy. The idea is that we have passed out of the period of high "neoliberalism," associated at one time with Reagan, Thatcher, and the so-called Washington Consensus and now eclipsed by the ascendance of the Obama Administration. The hope attending the new consensus is that, in the wake of neoliberal law and policy, the field of law and development might be on the verge of a new …

Privacy & The Personal Prospectus: Should We Introduce Privacy Agents Or Regulate Privacy Intermediaries, Scott R. Peppet

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No abstract provided.

Four Conceptualizations Of The Relations Of Law To Economics (Tribulations Of A Positivist Social Science), Pierre Schlag

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This brief essay sketches the ways in which four leading economic thinkers (Knight, Coase, Posner and Sunstein) have dealt with a vexing tension in the relations of economics to law, the state, and the social. The tension arises as microeconomists address (or fail to address) the relations of their theories to “soft factors” such as psychology, politics, social institutions, etc. These soft factors are at once clearly consequential for economic behavior (and thus arguably should be included in the theories). At the same time, these soft factors are not self-evidently subject to determination by any known economic laws (and thus …

The Faculty Workshop, Pierre Schlag

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This essay explores the ubiquitous law school institution, “The Faculty Workshop,” as an entrée into and manifestation of contemporary American legal thought. The Faculty Workshop is examined both as a regulator and expression of legal thought - at once governance system and symptom. We close by discussing “Stage 4.”

Partiality And Disclosure In Supreme Court Opinions, Robert F. Nagel

Publications

This Essay begins by identifying the various kinds of partiality the Justices of the Supreme Court can have in the cases they decide. Although there is widespread recognition of the influence these biases might have, for the most part the Justices continue to write opinions as if they (and other judges) were entirely disinterested. This practice is often thought to be justified as a source of judicial legitimacy, but there are a number of reasons to doubt that a pretense of impersonality is actually important for maintaining respect for the Court. Consequently, the possibility has to be considered that the …

From Tiger Mom To Panda Parent, Peter H. Huang

Publications

This response to Yale Law Professor Amy Chua’s book, Battle Hymn of the Tiger Mother, complements a much longer and related article that is also in part a response to Chua’s book: Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Legal Education and Parenting, 1 British Journal of American Legal Studies 297 (2012). This brief essay discusses the cultural differences between Chinese and Western views about education, learning, and parenting. This editorial draws on research in social psychology to analyze the stereotype of Asians and Asian Americans as being competent yet unsociable. Finally, this reflection draws …