Law Commons^™

How Academic Law Librarian Fellowship Programs Benefit Participants & Sponsoring Institutions, Aamir S. Abdullah, Cody B. James

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No abstract provided.

Sexuality’S Promise For Sexual Privacy, Scott Skinner-Thompson

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No abstract provided.

Abortion Law As Protection Narrative, Lolita Buckner Inniss

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The Private Enforcement Of National Security, Maryam Jamshidi

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The private enforcement of public law is a central feature of the American administrative state. As various scholars have argued, the federal government depends upon private parties to enforce public laws through litigation in order to achieve the government’s regulatory objectives. This scholarship has, however, largely overlooked the phenomenon of private enforcement in the national security arena. This Article seeks to describe and analyze national security’s private enforcement for the first time. In doing so, it explores what national security’s private enforcement reveals about the costs of private enforcement more broadly. In particular, this Article identifies an important downside to …

Immigration Enforcement Preemption, Pratheepan Gulasekaram

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The Supreme Court's 2012 decision, Arizona v. United States, turned back the most robust and brazen state regulation of immigration in recent memory, striking down several provisions of Arizona's omnibus enforcement law. Notably, the Court did not limit preemption inquiries to conflicts between the state law and congressional statutes. The Court also based its decision on the tension between the state law and Executive Branch enforcement policies. The landmark decision seemed to have settled the Court's approach to immigration enforcement federalism. Yet, a scant eight years after Arizona, in Kansas v. Garcia, the Court upheld Kansas's prosecutions of noncitizens who …

How Private Actors Are Impacting U.S. Economic Sanctions, Maryam Jamshidi

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Economic and trade sanctions are typically understood as the exclusive province of governments and intergovernmental organizations. Private parties have, however, long played a role in sanctions regimes. For example, private plaintiffs holding unsatisfied, terrorism-related civil judgments have used various U.S. federal statutes to enforce those judgments against assets blocked by U.S. sanctions. Most recently, plaintiffs with judgments against the Taliban have used some of those federal laws to execute against the financial assets of Afghanistan’s central bank. These and other efforts to enforce terrorism-related civil judgments are more than just attempts to collect on outstanding damages awards. Rather, they allow …

The Second Amendment's "People" Problem, Pratheepan Gulasekaram

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The Second Amendment has a “people” problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited “the people” of the Second Amendment to “law-abiding citizens.” In 2022, New York State Rifle & Pistol Ass’n v. Bruen doubled down on the Amendment’s self-defense rationales but, once again, framed the right as one possessed by “citizens.” In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right …

The Politicization Of Criminal Prosecutions, Wadie E. Said

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This Article offers a critical review of how political considerations rooted both in domestic and foreign policy-have distorted the criminal process, thereby offering a complementary analysis of what ails the criminal justice system. This analysis builds on the by-now well-known critiques of the racial and socioeconomic discrimination at the system's heart. The result is a criminal justice system that allows political considerations to dictate results far more than they should. In domestic prosecutions, criminal law is mostly used to target those who seek to question the legitimacy of state policies, state agencies (especially the police), or corporate interests, rendering the …

Electoral Maintenance, Douglas M. Spencer

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According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative of all rights, and yet in many cases legal protections for the right to vote fall short of protections for the other rights that voting is meant to preserve. Redefining the right to vote cannot solve this problem alone. Election administration has at least as much consequence on the right to vote as any particular definition or legal theory. In Democracy’s Bureaucracy, Michael Morse draws our attention to one of the most important yet understudied issues of election administration: voter list maintenance. In addition …

A Bold Plan For Saving The Colorado River, Mark Squillace

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Set Up To Fail: Youth Probation Conditions As A Driver Of Incarceration, Jyoti Nanda

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Youth probation is the most common form of punishment for youth in the United States criminal legal system, with nearly a quarter of a million youth currently under supervision. Yet the role youth probation conditions play in the incarceration of youth has not been the focus of legal scholarship. Youth probation is a court-imposed intervention where young people remain at home under the supervision of a youth probation officer and are required to adhere to probation conditions, rules, and court-ordered conditions. The orders rely on standardized terms on youth probation condition forms. This is the first scholarly Article to excavate …

Tax's Digital Labor Dilemma, Amanda Parsons

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Digitalization has reshaped the relationship between companies and their customers and users. Customers and users increasingly serve a dual role. They are not only consumers but also producers, creating data and content. They are a value-creating workforce, functioning as “digital laborers.”

Digital laborers’ value creation highlights that there are two parts to the question of whether multinational companies are paying their “fair share” of taxes—one of amount and one of location. First, are companies’ total tax bills paid across all countries in line with their global income? Second, is taxing authority over multinational companies’ income being divided amongst countries in …

Fastcase Features: A Quick Guide For Former Casemaker Users, Baylee Suskin

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Voter Data, Democratic Inequality, And The Risk Of Political Violence, Bertrall L. Ross Ii, Douglas M. Spencer

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Campaigns' increasing reliance on data-driven canvassing has coincided with a disquieting trend in American politics: a stark gap in voter turnout between the rich and poor. Turnout among the poor has remained low in modern elections despite legal changes that have dramatically decreased the cost of voting. In this Article, we present evidence that the combined availability of voter history data and modern microtargeting strategies have contributed to the rich-poor turnout gap. That is the case despite the promises of big data to lower the transaction costs of voter outreach, as well as additional reforms that have lowered the barriers …

The Truman Show: The Fraudulent Origins Of The Former Presidents Act, Paul F. Campos

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When President Donald Trump was impeached for a second time, many commenters pointed out that, if Trump were to be convicted by the Senate, he would likely lose millions of dollars in future taxpayer-funded benefits. These benefits are provided to ex-presidents by the Former Presidents Act, a 1958 statute of considerable political significance and ongoing controversy, that nevertheless has to this point been ignored completely by the legal academic literature.

This Article represents the first sustained discussion of the FPA in that literature. It concludes that the statute should be revoked — and it centers its critique on the law’s …

Against The Wind: James Boyd White And The Struggle To Keep Law Alive, Todd M. Stafford

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Pay-To-Playlist: The Commerce Of Music Streaming, Christopher Buccafusco, Kristelia A. García

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Payola—sometimes referred to as “pay-for-play”—is the undisclosed payment, or acceptance of payment, in cash or in kind, for promotion of a song, album, or artist. Some form of pay-for-play has existed in the music industry since the nineteenth century. Most prominently, the term has been used to refer to the practice of musicians and record labels paying radio DJs to play certain songs in order to boost their popularity and sales. Since the middle of the twentieth century, the FCC has regulated this behavior—ostensibly because of its propensity to harm consumers and competition—by requiring that broadcasters disclose such payments.

As …

May I Pay More? Lessons From Jarrett For Blockchain Tax Policy, Amanda Parsons

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In this article, Parsons examines Jarrett, t in which the taxpayers argue that blockchain reward tokens should be included in income only upon sale or exchange (a position that would raise their tax bills), and she explores why they sought this treatment and what implications it holds for policymakers trying to develop a tax regime for blockchain activities.

Debunking The Myth That Police Body Cams Are Civil Rights Tool, Scott Skinner-Thompson

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Cryptocurrency, Legibility, And Taxation, Amanda Parsons

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In Jarrett v. United States, a taxpayer in Tennessee is arguing that staking cryptocurrency did not result in him earning “income” under federal income tax law. This case illustrates the fundamental challenge that cryptocurrency and blockchain technology present for tax law. Wealth creation in the crypto space is not readily legible to the state. This absence of legibility threatens tax law’s reliance on placing economic activities into categories to determine how they should be taxed. Furthermore, this case highlights the harms Congress and Treasury are risking by not taking action on cryptocurrency taxation. The uncertainty and lack of guidance on …

Hunting And Gathering On The Legal Information Savannah, Susan Nevelow Mart, Adam Litzler, David Gunderman

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This article asks, what is it like for novice researchers to research real-world legal problems using four platforms: Bloomberg Law, Fastcase, Lexis Advance, and Westlaw? The study findings produced some surprises, as well as some clear implications for teaching legal research.

The Press’S Responsibilities As A First Amendment Institution, Helen Norton

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Criminal “Justice” As Racial Justice?, Aya Gruber

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Affirmative Consent, Aya Gruber

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Manipulation And The First Amendment, Helen Norton

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Frustration, The Mac Clause, And Covid-19, Andrew A. Schwartz

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COVID-19's impact on business has been exasperating—but is it Frustrating? The Frustration doctrine of contract law excuses a party from its contractual obligations when an extraordinary event completely undermines the principal purpose of making the deal. This doctrine has long been a marginal player in contract litigation, as parties rarely invoked it—and usually lost when they did.

The COVID-19 pandemic, however, is precisely the type of extraordinary event that Frustration was designed to address, and the courts have been inundated over the past year by a wave of colorable Frustration claims. This timely Article describes the Frustration doctrine and explores …

Authoring Prior Art, Joseph P. Fishman, Kristelia A. García

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Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow …

Realizing Diversity, Sustainability, And Stakeholder Capitalism, Peter H. Huang

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Stakeholder capitalism conceives of capitalism with companies maximizing their long-term value, while considering in addition to the interests of their shareholders, also the interests of all their other stakeholders. Examples of such additional stakeholders include customers, employees, communities, creditors, competitors, society at large, and our planet. America today does not have stakeholder capitalism. Instead, America presently has shareholder capitalism, in which publicly held corporations only maximize their stock value to shareholders.

This Essay analyzes proposals for the United States Securities Exchange Commission to require that all reporting companies make periodic mandatory Environmental, Social, and Governance (ESG) disclosures of comparable, standardized, …

The Case For Data Privacy Rights (Or 'Please, A Little Optimism'), Margot E. Kaminski

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No abstract provided.

Endangered Claims: How The U.S. Civil Procedure System Mimics The Wild, Suzette M. Malveaux

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No abstract provided.