Law Commons^™

Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy A. Welsh

Faculty Scholarship

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and …

Happy Birthday, Krs!, Kurt Metzmeier

Faculty Scholarship

Routinely cited in briefs, often the subject of legal arguments, and dutifully followed by Kentucky judges, the Kentucky Revised Statutes seem more a force of nature than something with a date of origin. Yet on October 1, 2017, the not-quite-a-baby-boomer known universally as the “KRS” celebrated its 75th birthday.

This article describes the long process to revise Kentucky's statutes that started in 1936 when the General Assembly created a committee to weed out repealed and obsolete laws, and to reduce the length (and heft) of the massive Carroll’s Kentucky Statutes used in state courts. The need was obvious; that very …

The First Real-Time Blockchain Vat - Gcc Solves Mtic Fraud, Richard Thompson Ainsworth, Musaad Alwohaibi

Faculty Scholarship

Following years of study the Gulf Cooperation Council (GCC) appears ready to adopt the recommendations of the International Monetary Fund (IMF) and put in place a tax system that will stabilize revenue. A value added tax (VAT) and corporate income tax (CIT) are considered. A VAT Framework Agreement, that functions like the VAT Directive in the EU, has been agreed.

Although new, the GCC VAT is very worthy of attention. From a tax policy perspective, it is making notable improvements to EU VAT design. The GCC VAT is (potentially) the world’s first real-time, blockchain-secured, multi-jurisdictional VAT. This is a remarkable …

Bitproperty And Commercial Credit, Christopher K. Odinet

Faculty Scholarship

In the past several years, the growth of virtual property in today’s economy has been explosive. The everyday use of virtual assets, ranging from Twitter and Facebook to YouTube and virtual world accounts, is nearly absolute. Indeed, by one account, Americans check social media over seventeen times per day. Further, a growing number of savvy virtual entrepreneurs are reporting incomes in the six- and seven-figure range, derived solely from their online businesses. Nevertheless, although the commercial world has come to embrace these newfound markets, commercial law has done a poor job of keeping up. Scholars have argued that laws governing …

Command Responsibility In The Twenty-First Century: The United States Basic Framework And Future Military (And Quasi-Military) Operations, Joshua E. Kastenberg

Faculty Scholarship

The article analyzes the constitutional basis of command responsibility as well as how this responsibility has been shaped by the Judicial Branch and Congress. It also briefly discusses the application of international law and human rights norms in the context of two models of future operations and the corresponding potential for command liability, beginning with the Commander in Chief. This article focuses on two principle areas of consideration. The first involves the use of non-military personnel who assist or take part in quasi-military roles. An increasing concern arises from questions over the extent of responsibility of United States command authorities …

Redefining Parental Rights: The Case Of Corporal Punishment, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

A Particularly Serious Exception To The Categorical Approach, Fatma E. Marouf

Faculty Scholarship

A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet, the Board of Immigration Appeals has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examination of the elements with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offenses are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious crime determination to promote …

Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green

Faculty Scholarship

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination scholars, …

The Agency Problems Of Institutional Investors, Scott Hirst, Lucian A. Bebchuk, Alma Cohen

Faculty Scholarship

We analyze how the rise of institutional investors has transformed the governance landscape. While corporate ownership is now concentrated in the hands of institutional investors that can exercise stewardship of those corporations that would be impossible for dispersed shareholders, the investment managers of these institutional investors have agency problems vis-à-vis their own investors. We develop an analytical framework for examining these agency problems and apply it to study several key types of investment managers.

We analyze how the investment managers of mutual funds - both index funds and actively managed funds - have incentives to under-spend on stewardship and to …

The Promise Of Lutie A. Lytle: An Introduction To The Tenth Annual Commemorative Lutie A. Lytle Black Women Law Faculty Workshop Iowa Law Review Issue, Angela Onwuachi-Willig

Faculty Scholarship

It is with great pleasure and pride that I offer this introduction and welcome to this special Iowa Law Review issue in celebration of the Tenth Annual Commemorative Lutie A. Lytle Black Women Law Faculty Workshop. Named after Lutie A. Lytle, an African American woman who became the first female law professor in the nation (and, likely, in the world) in 1897, the Workshop has afforded diverse law faculty an unparalleled opportunity to prepare for the job market; to develop teaching and leadership skills; to hone scholarly agendas; and to workshop articles, book proposals, and "ideas-inprogress" since its founding at …

Law, Social Welfare, And Net Neutrality, Keith N. Hylton

Faculty Scholarship

Net neutrality generates wealth transfers from one type of internet content provider to another. In theory, these transfers might be socially desirable, and could be justified on the basis of informational externalities similar to those cited to justify fair use in copyright law. In practice, however, the conditions that justify fair use do not hold where net neutrality operates. Moreover, the internal subsidization required by net neutrality generates a regressive transfer. The welfare gains that might come from controlling anticompetitive abuse or government coercion through implementation of net neutrality can be achieved by alternative policies with less harmful consequences.

Malulani And The Entrenchment Of Mechanical Analysis Of Related-Party Exchange Rules, Bradley T. Borden

Faculty Scholarship

No abstract provided.

Qualitative Diversity: Affirmative Action's New Reframe, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Arkansas, Meet Tarasoff: The Question Of Expanded Liability To Third Persons For Mental Health Professionals, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Toward A Critical Race Theory Of Evidence, Jasmine Gonzales Rose

Faculty Scholarship

Scholars, judges, and lawyers have long believed that evidence rules apply equally to all persons regardless of race. This Article challenges this assumption and reveals how evidence law structurally disadvantages people of color. A critical race analysis of stand-your-ground defenses, cross-racial eyewitness misidentifications, and minority flight from racially-targeted police profiling and violence uncovers the existence of a dual-race evidentiary system. This system is reminiscent of nineteenth century race-based witness competency rules that barred people of color from testifying against white people. I deconstruct this problem and introduce the original concept of “racialized reality evidence.” This construct demonstrates how evidence of …

Interpretation Catalysts In Cyberspace, Rebecca Ingber

Faculty Scholarship

The cybersphere offers a rich space from which to explore the development of international law in a compressed time frame. This piece examines the soft law process over the last decade of the two Tallinn Manuals – handbooks on the international law of cyber warfare and cyber operations – as a valuable lens through which to witness the effects of “interpretation catalysts” on the evolution of international law. In prior work, I identified the concept of interpretation catalysts – discrete triggers for legal interpretation – and their influence on the path that legal evolution takes, including by compelling a decision-making …

Reconceptualizing The Whistleblower's Dilemma, Miriam Baer

Faculty Scholarship

No abstract provided.

Geographical Indications Between Trade, Development, Culture, And Marketing: Framing A Fair(Er) System Of Protection In The Global Economy?, Irene Calboli

Faculty Scholarship

This chapter analyzes some of the topics on the current debate involving geographical indications (GIs) of origin that will be further elaborated by the contributors to this volume from a variety of perspectives and angles. As the title indicates, this volume focuses on GI protection “at the crossroads of trade, development, and culture,” with a specific focus on the countries in the Asia-Pacific region. This choice is due primarily to the fact that the analysis of issues related to GI protection in this region is, to date, not as extensive as the analysis in other regions, particularly in the Western …

Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon

Faculty Scholarship

My own view is that Goold overstates the explanatory role of tort law. But even were that not the case, the courts need to reach some kind of “settled” understanding on these various interests before a cause of action is created or definitively rejected, and that no such consensus on the three matters mentioned yet exists, whether they are viewed as forms of tort or otherwise. Goold’s work may nevertheless be an important step toward reaching closure on these and other open questions in copyright law.

Brief Amici Curiae On Behalf Of International And Constitutional Law Experts In Support Of Petition For Certiorari, Al Bahlul V. United States , 840 F.3d 757 (D.C. Cir. 2016) (En Banc), Robert D. Sloane, Foley Hoag Llp

Faculty Scholarship

Amici curiae, legal experts in international and constitutional law, believe that a majority of the en banc panel in Bahlul v. United States, 840 F.3d 757 (D.C. Cir. 2016) (en banc), mistakenly affirmed Ali Hamza Ahmad Suliman al Bahlul’s conviction by a military commission for a non-international war crime. The main concurring opinion in that case misconceived how international law defines the jurisdiction of law-of-war military commissions. As amici argue below, it is the Constitution—not international law—that limits the jurisdiction of lawof-war military commissions.

Brief For The Council Of University Presidents On Legislative Council V Martinez As Amicus Curiae, No. S-1-Sc-36422, Kevin Washburn

Faculty Scholarship

On April 7, 2017, the Governor exercised an extraordinary line-item veto of portions of the Fiscal Year 2018 appropriation bill eliminating all funding for the Legislature and for higher education in New Mexico. Governor's House Executive Message No. 56 (April 7, 2017), Petitioner's Exhibit D, at 3-7. Amici have a fiduciary responsibility to their institutions to advocate for a resolution quickly to mitigate the many harms caused by this budget crisis. CUP takes no position on the outcome of this action, but Amici do request that this case be decided expeditiously so that other constitutional actors do not waste time …

Race, Policing, And Technology, Bennett Capers

Faculty Scholarship

No abstract provided.

When Antitrust Becomes Pro-Trust: The Digital Deformation Of U.S. Competition Policy, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Transformative Use In Software, Clark D. Asay

Faculty Scholarship

Fair use is copyright law’s most important defense against claims of copyright infringement. It provides courts with an equitable tool for allowing parties to use the copyrighted materials of others without liability when doing so facilitates copyright’s constitutional purpose of promoting the “progress of Science and the useful Arts.”

When analyzing fair use, modern courts place great emphasis on whether the purportedly fair use involves a “transformative use” of the copyrighted materials. In what some are calling the most important software copyright case in decades, a jury recently handed Google a victory by concluding that Google’s reuse of some of …

Bureaucracy As The Border: Administrative Law And The Citizen Family, Kristin Collins

Faculty Scholarship

This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating …

Security Clearance Conundrum: The Need For Reform And Judicial Review, Heidi Gilchrist

Faculty Scholarship

No abstract provided.

Grasping Fatherhood In Abortion And Adoption, Malinda L. Seymore

Faculty Scholarship

Biology makes a mother, but it does not make a father. While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood. Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomy--it is easy …

The Rcep And Trans-Pacific Intellectual Property Norms, Peter K. Yu

Faculty Scholarship

In the past few years, the Trans-Pacific Partnership has garnered considerable media, policy and scholarly attention. Rarely analyzed and only occasionally mentioned is the Regional Comprehensive Economic Partnership (RCEP). This agreement is currently being negotiated between Australia, China, India, Japan, New Zealand, South Korea and the 10 members of the Association of Southeast Asian Nations (ASEAN). Launched in November 2012 under the ASEAN 6 framework, the RCEP negotiations built on past trade and non-trade discussions between ASEAN and its six major Asia-Pacific neighbors.

This article examines the RCEP with a focus on the intellectual property norms that it seeks to …

Dueling Grants: Reimagining Cafa's Jurisdictional Provisions, Tanya Pierce

Faculty Scholarship

Part I of the article discusses the relevant policies underlying CAFA and Rule 23. Part II briefly outlines the more straightforward operation of CAFA jurisdiction in pre-certification and post-successful certification situations before explaining the provisions in CAFA that have given rise to considerable confusion after courts deny class certification. Part III critiques the arguments made by courts and scholars in support of and against continuing jurisdiction. It then suggests an approach that is most consistent with the statute, in light of all of its relevant provisions and their corresponding limitations, and that furthers prudential concerns underlying Rule 23 and CAFA …

Extending The Normativity Of The Extended Family: Reflections On Moore V. City Of East Cleveland, Angela Onwuachi-Willig

Faculty Scholarship

Part I of this Article briefly recounts the plurality decision in Moore before analyzing Justice Brennan’s concurring opinion and detailing how the concurrence affirms, rather than deconstructs, the notion of African American deviance in families. Next, Part II specifies the ways in which Justice Brennan could have truly uplifted African American families and other families of color by identifying and explicating the strengths of extended or multigenerational family forms among people of color and by showing how such family forms can be a model, or even the model (if one must be chosen), for all families. Then, Part III concludes …