Law Commons^™

The Year In Review 2018: Selected Cases From The Alaska Supreme Court And The Alaska Court Of Appeals

Alaska Law Review Year in Review

No abstract provided.

Technology Assisted Review (Tar) Guidelines, Bolch Judicial Institute

Bolch Judicial Institute Publications

In the winter of 2016, more than 50 e-discovery experts volunteered to develop and draft guidelines providing guidance to the bench and bar on the use of technology assisted review (TAR).

This document explains the TAR process and offers “best practices,” which are intended to provide a protocol on whether and under what conditions TAR should be used. It provides a strong record and roadmap for the bench and bar, which explain and support the use of TAR in appropriate cases.

As with any group product of this nature, where some consensus must be reached, the drafters and other participants …

Originalism And The Law Of The Past, William Baude, Stephen E. Sachs

Faculty Scholarship

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …

Totemic Functionalism In Foreign Affairs Law, Elad D. Gil

Faculty Scholarship

In many Western democracies, and particularly in the United States, foreign affairs are primarily an executive enterprise. The travel ban, the exit from the Irannuclear deal, and the airstrikes against the Bashar al-Assad regime in Syria are just a few recent illustrations of unilateral assertions of presidential power. A large part of the justification for treating foreign affairs differently than other areas of public policy, in which political and judicial checks on the executive are more robust, is functional. Owing to the executive’s relative institutional advantages over the legislature and the judiciary—in expertise, knowledge, speed, unitary structure, and democratic accountability—courts …

Trade And The Separation Of Powers, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I powers over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic …

Proactive Resolution Of Sovereign And Subnational Debt, Steven L. Schwarcz

Faculty Scholarship

Sovereign debt restructuring strategies have been mostly reactive, applying only once a nation’s debt burden becomes unsustainable. Reactive strategies are suboptimal for many reasons, including that international law does not yet provide mechanisms—in the corporate sector, provided by bankruptcy law—for correcting collective action and other market failures that impede the restructuring of sovereign debt. A financially troubled nation often faces a dilemma: paying its debt would reduce its ability to provide critical public services, but defaulting would further damage the nation’s fiscal integrity and reputation and could even shock the broader economy. Building on “proactive” strategies designed to resolve corporate …

A Theory Of Poverty: Legal Immobility, Sara Sternberg Greene

Faculty Scholarship

The puzzle of why the cycle of poverty persists and upward class mobility is so difficult for the poor has long captivated scholars and the public alike. Yet with all of the attention that has been paid to poverty, the crucial role of the law, particularly state and local law, in perpetuating poverty is largely ignored. This Article offers a new theory of poverty, one that introduces the concept of legal immobility. Legal immobility considers the cumulative effects of state and local laws as a mechanism through which poverty is perpetuated and upward mobility is stunted. The Article provides an …

Slouching Toward Universality: A Brief History Of Race, Voting, And Political Participation, Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Sustainable And Open Access To Valuable Legal Research Information: A New Framework, Alex Zhang, James Hart

Faculty Scholarship

This article evaluates the current status of access to foreign and international legal research information, analyzes the challenges that information providers have experienced in providing valuable and sustainable access, and proposes a model that would help create and facilitate effective and sustainable access to valuable foreign, comparative, and international legal information.

Board Diversity By Term Limits?, Darren Rosenblum, Yaron Nili

Faculty Scholarship

Four-fifths of the corporate board seats in the United States are held by men and a shocking number of companies lack any female representation on their boards. While institutional investors have pushed these companies for change, California took a more aggressive step and followed several European countries by mandating a quota for board representation. Heated argument has ensued over what diversity we should prioritize and what mechanisms should be used to promote diversity. Yet could these challenges be avoided altogether through the use of term limits?

This Article is the first academic inquiry exploring the connection between term limits and …

The Cost Of Changing Our Minds, Nita A. Farahany

Faculty Scholarship

The neuroscience revolution poses profound challenges to the doctrine of avoidable consequences in tort law and exposes deep theoretical riddles about the right to our own mental experiences and memories. To address this profound question, this Article begins with a deceptively simple principle of tort law: A victim of tortious wrongdoing by another is held responsible for mitigating her own physical injuries. This Article addresses whether that same doctrine should require a tort victim to likewise mitigate her emotional injuries. The answer to that question is of great and increasing importance because it goes to the heart of how society …

The Outsized Influence Of The Fcpa?, Veronica Root Martinez

Faculty Scholarship

The current power and influence of the Foreign Corrupt Practices Act (“FCPA”) is really quite remarkable when one considers the statute was largely ignored for its first twenty-five years of existence. This statute, meant to reign in corruption by United States companies doing business abroad; has generated billions of dollars in revenue for the United States government; prompted the development of law firm practice groups and law school courses; become the subject of numerous scholarly articles; and has, arguably, made anti-bribery efforts the highest of priorities for multinational corporations engaged in robust compliance efforts. Corporations, scholars, and the public would …

The Law And Politics Of Socially Inclusive Trade, Timothy Meyer

Faculty Scholarship

No abstract provided.

Successor Ceos, Yaron Nili

Faculty Scholarship

Recent years have seen a push towards separating the roles of CEO and chairperson of the board. While many companies still maintain a combined CEO-chair role, investors consistently express their concern that the dual CEO-chair position jeopardizes the independence and effectiveness of the board. Yet, while investors and academic research have focused on one channel for achieving such separation—through the appointment of an independent director as chair—a second has been left relatively unexplored. In fact, in many cases, as this Article documents, the separation of CEO-chair has occurred through the second channel: the current CEO-chair steps down as CEO while …

Private International Law As An Ethic Of Responsivity, Ralf Michaels

Faculty Scholarship

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our …

Theorizing The Judicialization Of International Relations, Karen J. Alter, Emilie M. Hafner-Burton, Laurence R. Helfer

Faculty Scholarship

This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur—(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring—or threaten to bring—a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for …

The Enduring Distinction Between Business Entities And Security Interests, Ofer Eldar, Andrew Verstein

Faculty Scholarship

What are business entities for? What are security interests for? The prevailing answer in legal scholarship is that both bodies of law exist to partition assets for the benefit of designated creditors. But if both bodies of law partition assets, then what distinguishes them? In fact, these bodies of law appear to be converging as increasing flexibility irons out any differences. Indeed, many legal products, such as securitization vehicles, insurance products known as captive insurance, and mutual funds, employ entities to create distinct asset pools. Moreover, recent legal innovations, such as “protected cells,” which were created to facilitate such products, …

Dartmouth College V. Woodward And The Structure Of Civil Society, Ernest A. Young

Faculty Scholarship

No abstract provided.

Sports In The Courts: The Ncaa And The Future Of Intercollegiate Revenue Sports, Paul H. Haagen

Faculty Scholarship

No abstract provided.

Reclaiming The Role Of Lawyers As Community Connectors, David F. Levi, Dana Remus, Abigail Frisch

Faculty Scholarship

With the prospect of nonlawyers stepping in to do low-fee legal work, how should the legal profession conceive of its relationship to that work and ensure that nonlawyers bolster rather than undermine the value that lawyers add to society? Lawyers should reclaim their role as connectors in their communities: interstitial figures with the knowledge, skill, and trust to help resolve disputes, move beyond stalemates, dispel tensions, and otherwise bring people and resources together in productive solutions. They should do so, at least in part, through pro bono work for poor and low-income clients. It would be a mistake to stand …

Applying Unoccupied Aircraft Systems To Study Human Behavior In Marine Science And Conservation Programs, Michelle B. Nowlin, Stephen E. Roady, Everette Newton, David W. Johnston

Faculty Scholarship

The declining costs of Unoccupied Aircraft Systems (UAS, aka drones), their ease of use, and their ability to collect high resolution data from a variety of sensors has resulted in an explosion of applications across the globe. Scientists working in the marine environment are increasingly using UAS to study a variety of topics, from counting wildlife populations in remote locations to estimating the effects of storms and sea level rise on shorelines. UAS also provide transformative potential to study the ways in which humans interact with and affect marine and coastal ecosystems, but doing so presents unique ethical and legal …

Free Speech And The Law Of Evidence, Dan T. Coenen

Duke Law Journal

To what extent does the First Amendment limit the ability of prosecutors to offer evidence of a defendant’s past protected speech? As it turns out, the Supreme Court has touched on this question in only a handful of rulings, each of which was crafted to target only the distinctive facts of the case at hand. Many lower courts, however, have distilled from these decisions a sweeping, admissibility-favoring constitutional rule. According to that rule, the First Amendment imposes no limit on prosecutorial use of past-speech evidence—no matter how prejudicial—so long as it meets the minimum standard of evidentiary relevance. This approach …

The Ghost In The Courtroom: When Opinions Are Adopted Verbatim From Prosecutors, Natasha-Eileen Ulate

Duke Law Journal

Judicial opinions captivate the legal community, serving as a hub for teaching new lawyers and developing the law. These opinions also provide a method for the justice system to communicate with the people it serves—both the parties to the cases and the public. This communication should be well-reasoned and developed from a neutral standpoint. However, this ideal is being seriously threatened by ghostwriting, the practice of allowing a party to write the opinion. This is particularly troubling in criminal cases, where the very lawyers charged with prosecuting defendants are writing the opinions against them.

This Note proposes that opinions written …

Corporate Disobedience, Elizabeth Pollman

Duke Law Journal

Corporate law has long taken a dim view of corporate lawbreaking. Corporations can be chartered only for lawful activity. Contemporary case law characterizes the intentional violation of law as a breach of the fiduciary duties of good faith and loyalty. While recognizing that rule breaking raises significant social and moral concerns, this Article demonstrates that corporate law and academic debate have overlooked important aspects of corporate disobedience.

This Article provides an overview of corporate disobedience and illuminates the role that it has played in entrepreneurship and legal change. Corporations violate laws in a variety of contexts, including as part of …

Journal Staff

Duke Law Journal

No abstract provided.

Empowering The Poor: Turning De Facto Rights Into Collateralized Credit, Steven L. Schwarcz

Faculty Scholarship

The shrinking middle class and the widening gap between the rich and the poor constitute significant threats to social and financial stability. One of the main impediments to upward mobility is the inability of economically disadvantaged people to use their property — in which they sometimes hold only de facto, not de jure, rights — as collateral to obtain credit. This Article argues that commercial law should recognize those de facto rights, enabling the poor to borrow to start businesses or otherwise create wealth. Recognition not only would provide benefits that exceed its costs; it also would be consistent with, …

Uncitral Working Group Iii: Can Reforming Procedures Rebalance Investor Rights And Obligations?, Lorenzo Cotula, Terrence Neal

Faculty Scholarship

The work of the United Nations Commission on International Trade Law (UNCITRAL) provides an opportunity to rebalance the international investment regime – but only if the full gamut of key issues are identified. Requiring investors to uphold standards of responsible business conduct (RBC) is largely a function of substantive rights and obligations, but it also presents procedural dimensions that fall within the purview of the UNCITRAL process. This policy brief explores the issues and discusses possible options for reform.

Unconstitutionally Illegitimate Discrimination, Brandon L. Garrett

Faculty Scholarship

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is and should be enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as its stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that Constitutional doctrine, in its broad outlines, …

The Promising Viral Threat To Bacterial Resistance: The Uncertain Patentability Of Phage Therapeutics And The Necessity Of Alternative Incentives, Kelly Todd

Duke Law Journal

Bacteriophages, or “phages,” are a category of highly adept and adaptable viruses that can infect and kill bacteria. With concerns over the burgeoning antibiotic-resistance crisis looming in recent years, scientists and policymakers have expressed a growing interest in developing novel treatments for bacterial infections that utilize bacteriophages. Because of the great expense associated with bringing a new drug to market, patents are usually considered the gold standard for incentivizing research and development in the pharmaceutical field. Absent such strong protection for a developer’s front end investment, pharmaceutical development remains financially risky and unattractive. Unfortunately, recent Supreme Court jurisprudence analyzing patentable …

Beyond The Annals Of Murder: The Life And Works Of Thomas M. Mcdade, Jennifer L. Behrens

Faculty Scholarship

Thomas M. McDade is best known (if not well-known enough) for his seminal 1961 reference bibliography, The Annals of Murder: A Bibliography of Books and Pamphlets on American Murders from Colonial Times to 1900. Beyond that singular text on early American murder trial accounts, though, lies more than 70 additional publications on American legal history, law enforcement, and literature, gathered together for the first time in an annotated bibliography of McDade’s lesser-known writings. The article also examines McDade’s fascinating life and varied career as an early FBI agent, World War II veteran, corporate executive, and true crime chronicler.