Law Commons^™

Negligence And Two-Sided Causation, Keith N. Hylton, Haizhen Lin, Hyo-Youn Chu

Faculty Scholarship

We extend the economic analysis of negligence and intervening causation to "two-sided causation" scenarios. In the two-sided causation scenario the effectiveness of the injurer's care depends on some intervention, and the risk of harm generated by the injurer's failure to take care depends on some other intervention. We find that the distortion from socially optimal care is more severe in the two-sided causation scenario than in the one-sided causation scenario, and generally in the direction of excessive care. The practical lesson is that the likelihood that injurers will have optimal care incentives under the negligence test in the presence of …

The Women Of The Wall: A Metaphor For National And Religious Identity, Pnina Lahav

Faculty Scholarship

The Women of the Wall wish to participate in communal prayer in the women’s section of the Western Wall in Jerusalem. Their practice is to pray as a group, wrap themselves in a tallit, and read from the Torah scroll. They represent Jewish pluralism in that their group includes Orthodox, Conservative, Reform and secular women. They represent openness to change in that they base their claims on Halakhic interpretation, thereby embracing the capacity of Jewish law to evolve. This article reviews the resistance of the religious and political establishment in Israel to their claim and their struggle, unsuccessful so far, …

Blinding Prosecutors To Defendants’ Race: A Policy Proposal To Reduce Unconscious Bias In The Criminal Justice System, Sunita Sah, Christopher Robertson, Shima Baughman

Faculty Scholarship

Racial minorities are disproportionately imprisoned in the United States. This disparity is unlikely to be due solely to differences in criminal behavior. Behavioral science research has documented that prosecutors harbor unconscious racial biases. These unconscious biases play a role whenever prosecutors exercise their broad discretion, such as in choosing what crimes to charge and when negotiating plea bargains. To reduce this risk of unconscious racial bias, we propose a policy change: Prosecutors should be blinded to the race of criminal defendants wherever feasible. This could be accomplished by removing information identifying or suggesting the defendant’s race from police dossiers shared …

The Moral Reading All Down The Line, James E. Fleming

Faculty Scholarship

Michael W. McConnell has written an elegant and illuminating article about constitutional interpretation.' He seeks to show how five major methodological approaches fit together. The five approaches he discusses are: "originalism, precedent, longstanding practice, judicial restraint, and living constitutionalism (here called the normative approach)."'2 He distinguishes two camps with respect to these approaches. One camp, he notes, "advocates for (or against) a particular approach ... on the assumption that these approaches are mutually inconsistent and that the task is to determine which is best . . . .3 The other camp "treats the various common approaches as mere tools in …

The Intersection Of Civil And Religious Family Law In The U.S. Constitutional Order: A Mild Legal Pluralism, Linda C. Mcclain

Faculty Scholarship

This chapter considers how civil and religious family law intersect in the U.S. legal system and how U.S. constitutional law shapes and constrains the accommodation of religious pluralism as it pertains to family law. To the question, “Is there too much or too little pluralism in U.S. family law?,” I answer that family law appropriately embraces a mild legal pluralism, while clearly distinguishing between civil and religious marriage. After illustrating this distinction in the context of the recent controversy over same-sex marriage, I consider two categories of cases: (1) cases in which courts consider whether to enforce terms of Jewish …

The Novel New Jersey Eyewitness Instruction Induces Skepticism But Not Sensitivity, Athan Papailiou, David Yokum, Christopher Robertson

Faculty Scholarship

In recent decades, social scientists have shown that the reliability of eyewitness identifications is much worse than laypersons tend to believe. Although courts have only recently begun to react to this evidence, the New Jersey judiciary has reformed its jury instructions to notify jurors about the frailties of human memory, the potential for lineup administrators to nudge witnesses towards suspects that they police have already identified, and the advantages of alternative lineup procedures, including blinding of the administrator. This experiment tested the efficacy of New Jersey’s jury instruction. In a 2×2 between-subjects design, mock jurors (N = 335) watched a …

Time, Institutions, And Adjudication, Gary S. Lawson

Faculty Scholarship

Some of my earliest and fondest memories regarding constitutional theory involve Mike McConnell. He was a participant at the very first Federalist Society conference in 1982, at a time when the entire universe of conservative constitutional theorists fit comfortably in the front of one classroom. More importantly, at another Federalist Society conference in 1987, he gave a speech on constitutional interpretation that, unbeknownst to him, profoundly shaped my entire intellectual approach to the field by emphasizing the obvious but oftoverlooked point that different kinds of documents call for different kinds of interpretative methods.1 In 2015, it is more than an …

Protecting Syrian Refugees: Laws, Policies, And Global Responsibility Sharing, Susan M. Akram, Sarah Bidinger, Aaron Lang, Danielle Hites, Yoana Kuzmova, Elena Noureddine

Faculty Scholarship

This article provides an excerpt of a report that maps out how the Syrian refugee crisis is being played out in four of the main states hosting the refugees, Lebanon, Jordan, Egypt and Turkey. This excerpt focuses on the laws and policies in the host states and how they are creating particularly devastating consequences for Palestinian refugees. The excerpt sets out the Report’s conclusions and recommendations, primarily the call for a global Comprehensive Plan of Action (cpa), with various components within and outside the Middle East region that build on existing legal obligations to better allocate responsibility for the refugee …

Symposium: Fighting Corruption In American And Abroad: Foreword, Jed Handelsman Shugerman

Faculty Scholarship

This Foreword focuses on a few related observations from the symposium. First, it summarizes Teachout's book, which inspired this symposium and which relied on history to undermine Citizens United. Second, it suggests that a more recent case in this Court's Term, Williams-Yulee vs. Florida Bar,⁸ also erodes Citizens United, at least a bit, by recognizing a compelling state interest in combating the appearance of corruption and bias in a new context: by embracing that corruption lurks in gray areas and the banality of campaign fundraising. Third, Pamela Karlan and Samuel Issacharoff once observed that money in politics …

Fairness At A Time Of Perplexity: The Civil Law Principle Of Fairness In The Court Of Justice Of The European Union, Daniela Caruso

Faculty Scholarship

The general principle of fairness, recently articulated by the Court of Justice of the European Union in the context of consumer law, is bound to prompt ambivalent scholarly reactions. Fairness in private law could be dismissed as hopelessly indeterminate: yet another venue of judicial balancing, a technique already seen ad nauseam in Luxembourg, whereby lip service is paid to conflicting considerations, but no real solace can be found against regressive outcomes of law and policy choices. At the same time, the judicial articulation of a general principle of fairness in private law could be seen as a prompt for domestic …

Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin

Faculty Scholarship

This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA.

Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …

Financial Rewards For Whistleblowing Lawyers, Nancy J. Moore, Kathleen Clark

Faculty Scholarship

The federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes? A handful of lawyers have tried to do so as FCA qui tam relators. They have not yet succeeded, but several court decisions suggest that they might be able to do so under confidentiality exceptions to state ethics law, which several courts have held are not preempted by the FCA. No lawyer has been publicly identified as …

Distinguishing Disparate Treatment From Disparate Impact; Confusion On The Court, Michael C. Harper

Faculty Scholarship

In two decisions in the 2014-2015 Term, Young v. United Parcel Service, Inc., and Equal Employment Opportunity Commission v. Abercrombie & Fitch, Inc., the Court seemed to give contradictory answers to an important unresolved conceptual definitional question: Does disparate treatment include assigning members of a protected group based on their protected status to a larger disfavored group that is defined by neutral principles and that includes others who are not members of the protected group? Or does such assignment have only a disparate impact on the protected status group?

In Young, the first of these decisions, all members of the …

Dworkin's Perfectionism, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

In this essay, we shall interpret Dworkin's constitutional theory in light of three varieties of perfectionism: (1) the idea that government should undertake a formative project of inculcating civic virtues and encouraging responsibility in the exercise of rights; (2) the idea that we should interpret the American Constitution so as to make it the best it can be; and (3) the idea that we should defend a Constitution-perfecting theory that would secure not only procedural liberties essential for democratic self-government but also substantive liberties essential for personal self-government. We shall identify three gaps left by Dworkin's work and sketch how …

Reparations For Slavery And Jim Crow, Its Assumptions And Implications, David B. Lyons

Faculty Scholarship

This paper develops the case for reparations to African Americans today, based on wrongdoing that began with slavery, that was not repaired by Reconstruction, that was continued in new forms under Jim Crow, and that left a deeply-entrenched legacy of disadvantage despite civil rights reforms of the twentieth century. It reviews relevant aspects of U.S. history and policies since 1607 and lays out the moral considerations that call for a system of reparations far beyond anything yet contemplated by American society. It argues that cash payments, while needed, would not suffice, because slavery and Jim Crow were not just a …

Parody And Fair Markets, Jessica Silbey

Faculty Scholarship

In December 2011, the UK Intellectual Property Office commissioned the Centre for Intellectual Property Policy and Management at Bournemouth University to research the effects of parody on copyrighted works. Do parodies harm the market for the underlying work? How might we measure the economic effects of parody, as incentive depressors or engines?

UK copyright law does not contain an exception specifically covering parodies. The authors of the study perceive the UK copyright law as one of the most restrictive in seven jurisdictions surveyed (US, Canada, Australia, France, Germany, Netherlands, UK) with regard to parodies. By commissioning this research, the UK …

Patent Trolls And Preemption, Paul Gugliuzza

Faculty Scholarship

Patent law is usually thought to be the domain of the federal government, not state governments. Yet over half the states have recently passed statutes outlawing unfair or deceptive assertions of patent infringement. The statutes are aimed at fighting so-called patent trolls, particularly those who send letters to users of allegedly infringing technology — as opposed to the manufacturers of that technology — demanding that each user purchase a license for a few thousand dollars or else face an infringement suit. The Federal Circuit, however, has held that state law claims challenging acts of patent enforcement are preempted by the …

End The Popularity Contest: A Proposal For Second Amendment 'Type Of Weapon' Analysis, Cody Jacobs

Faculty Scholarship

The Supreme Court’s recognition of an individual Second Amendment right to bear arms for self-defense raised many questions about the scope and content of that right. One issue that will become increasingly important in the years ahead, but that has received relatively little attention from scholars and courts, is the question of which “arms” are protected by that right. The Supreme Court’s decision in District of Columbia v. Heller purports to lay out a test that asks whether the weapon at issue is in “common use” at the time the case is decided. This article critiques that test, arguing that …

Explaining Arbitration Law, William W. Park

Faculty Scholarship

Most fields of law provide guidance on how courts decide cases. In contrast, arbitration law tells judges when not to decide disputes, in deference to private decision-makers selected by the litigants.

At such moments, arbitration law normally includes two limbs: first, to hold parties to their bargains to arbitrate; second, to monitor the basic integrity of the arbitral process, so the case will be heard by a fair tribunal that listens before deciding, stays within its mission, and respects the limits of relevant public policy. As we shall see, in applying these principles, the devil lurks in the details of …

Villanelle For Susan Martyn, Elizabeth Mccuskey

Faculty Scholarship

A poem in honor of Susan Martyn

Experiential Teaching In Theory And Practice: An Annotated International Business Transactions Syllabus, Maya Steinitz, Orit Shalomson, Naomi Steinitz-Edelman

Faculty Scholarship

In this short piece we provide an interactive, annotated International Business Transactions (IBT) syllabus. The introduction and annotations seek to connect the current discourse on experiential legal education to andragogy — the study of adult learning.

In 2013 we set out to re-develop a 3-credit IBT course. We applied various experiential pedagogical methodologies — developed initially to train Israeli air force pilots and later adapted to medical training and grounded in theoretical and empirical education research — to serve in a traditional IBT course. The goal was not only to develop legal skills such as negotiation, contract drafting, and client …

The Dependent Origins Of Independent Agencies: The Interstate Commerce Commission, The Tenure Of Office Act, And The Rise Of Modern Campaign Finance, Jed Handelsman Shugerman

Faculty Scholarship

Independent regulatory agencies are some of the most powerful institutions in the United States, and we think of them today as designed to be insulated from political control. This Article shows that their origins were the opposite: this model first emerged in the late nineteenth century because it offered more political control.

The modern executive's design of unitary presidential control over most offices, alongside "independent" regulatory agencies, took shape in the winter of 1886-1887. Congress repealed the Tenure of Office Act, giving the President the unchecked power to dismiss principal officers and ending the Senate's power to protect those officers. …

Equality Of Arms In Arbitration: Cost And Benefits, William W. Park

Faculty Scholarship

Depending on context and content, a regulatory framework can either help or hinder efforts to enhance aggregate social and economic welfare. Lively debate has arisen with respect to the net effects of two recent sets of directives for lawyer comportment in cross-border arbitration, the first being Guidelines adopted by the International Bar Association, the second contained in new arbitration rules promulgated by the London Court of International Arbitration. Each instrument aims to promote a more level playing field on matters where legal cultures differ, such as document production and counsel independence. Each has caused thoughtful commentators to question the need …

Challenging Arbitral Jurisdiction: The Role Of Institutional Rules, William W. Park

Faculty Scholarship

One oft-discussed element in arbitration law relates to the judicial function in monitoring the basic integrity of the arbitral process, so the case will be heard by a tribunal that not listens before deciding, and which stays within its mission. Arbitrators must remain within the contours of confines of their authority, has been the subject of well-known national judicial decisions applying the hard law of statutes and treaties.

Less-often debated, institutional rules play a vital jurisdiction role in complementing national and international legal norms. The 2012 ICC Arbitration Rules provide an intriguing study of how administrative decisions dovetail into jurisdictional …

Why Is There No Clear Doctrine Of Informed Consent For Lawyers?, Nancy J. Moore

Faculty Scholarship

Written as a contribution to a symposium issue of the Toledo Law Review honoring retiring professor Susan Martyn, this article takes as its starting point an early article by Professor Martyn entitled “Informed Consent in the Practice of Law.” In that article, Professor Martyn decried the inability of clients to control the course of their representation and urged state legislatures to remedy this situation by enacting legislation creating an action in damages based upon a lawyer’s failure to obtain the client’s informed consent. Such an action would be similar to common law actions that courts had recently recognized by patients …

Focusing The Multifactor Test For Employee Status: The Restatement’S Entrepreneurial Formulation, Michael C. Harper

Faculty Scholarship

The American Law Institute’s twenty-first century mission to restate for the first time American employment law carried the responsibility to provide more clear guidance on the law’s critical distinction between employees and independent contractors. This distinction delineates the scope not only of federal employee protection and benefit statutes, but also of employee protections and benefits conferred by state statutory and common law.

A Restatement of Employment Law, however, like any Restatement, could not formulate clearer or otherwise more desirable doctrine from the whole cloth of the views and values of the Reporters or the ALI membership. The Restatement could not …

The Way We Pay Now: Understanding And Evaluating Performance-Based Executive Pay, David I. Walker

Faculty Scholarship

Over the last ten years, performance-based equity pay, and particularly performance shares, have displaced stock options as the primary instrument for compensating executives of large, public companies in the U.S. This article examines that transformation, analyzing the structure and incentive properties of these newly important instruments and evaluating the benefits and risks from an investor’s perspective. Notable observations include the following: Although technically “stock” instruments, performance shares mimic the incentive characteristics of options. But performance shares avoid the tax, accounting, and other constraints that have led to uniform grants of non-indexed, at the money options. Performance share plans can be …

Book Review: The Color Of Our Shame: Race And Justice In Our Time, By Christopher J. Lebron, David B. Lyons

Faculty Scholarship

Ideal theory seeks to identify the basic conditions of social justice but does not tell us how to achieve them. Christopher Lebron’s important new book The Color of Our Shame is a philosophically enterprising venture in non-ideal theory, suggesting how we might bring about racial equality in America. A reader who is passingly familiar with civil rights developments of the 1950s and 1960s might imagine that racial inequality is a disappearing vestige of past discrimination; so an essential step in Christopher Lebron’s argument is to establish that racial inequality remains a grave issue half a century later. That task is …

Explaining The Blurred Line Between Employment And Independent Contracting, Michael C. Harper

Faculty Scholarship

As the Reporter primarily responsible for the chapter defining the employment relationship in the recently completed Restatement of Employment Law, I thought I had fully considered and taken account of the origins and various instances of judicial confusion in distinguishing employees from independent contractors. Thus, I was especially surprised to have my understanding of the confusion substantially enhanced by Julia Tomassetti’s recent conceptually deep article. Tomassetti argues that an understanding of the unusual and contradictory nature of employment contracts and their development is necessary to explain judicial confusion when defining employment, and that it is not sufficient simply to highlight …

Michael Mustill: A Reminiscence, William W. Park

Faculty Scholarship

The arbitration world lost a giant when Michael Mustill departed in April of this year, just a few days short of his 84th birthday. A man of enormous intellect and wit, with a fine capacity for sincere friendship, this generous Yorkshireman enriched us through contributions as counsel, judge, scholar, and mentor.