Law Commons^™

Whose Lands? Which Public?: The Shape Of Public-Lands Law And Trump's National Monument Proclamations, Jedediah Britton-Purdy

Faculty Scholarship

President Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. …

If We Pay Football Players, Why Not Kidney Donors, Philip J. Cook, Kimberly D. Krawiec

Faculty Scholarship

Ethicists who oppose compensating kidney donors claim they do so because kidney donation is risky for the donor’s health, donors may not appreciate the risks and may be cognitively biased in other ways, and donors may come from disadvantaged groups and thus could be exploited. However, few ethical qualms are raised about professional football players, who face much greater health risks than kidney donors, have much less counseling and screening concerning that risk, and who often come from racial and economic groups deemed disadvantaged. It thus seems that either ethicists—and the law—should ban both professional football and compensated organ donation, …

Southeast Of What? Reflections On Seals' Success, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams

Faculty Scholarship

In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the rights of marriage. In particular, it asked whether a person has a constitutional liberty interest in living with his or her spouse. This case is suddenly of paramount importance: executive orders targeting particular groups of immigrants implicate directly this right to family reunification.

This Article …

Delaware's Retreat: Exploring Developing Fissures And Tectonic Shifts In Delaware Corporate Law, James D. Cox, Randall S. Thomas

Faculty Scholarship

No abstract provided.

Local Evidence In Constitutional Interpretation, Brandon L. Garrett

Faculty Scholarship

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look not to state law, but to local law. Although it has largely gone unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. To take an example, one area in which the Supreme Court has examined local enforcement patterns is in death penalty jurisprudence. In 2015, Justice Stephen Breyer, dissenting in Glossip v. Gross, cited to empirical data to …

Judicial Appraisals Of Risk Assessment In Sentencing, John Monahan, Ann Metz, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

The Proficiency Of Experts, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

Expert evidence plays a crucial role in civil and criminal litigation. Changes in the rules concerning expert admissibility, following the Supreme Court's Daubert ruling, strengthened judicial review of the reliability and the validity of an expert's methods. Judges and scholars, however, have neglected the threshold question for expert evidence: whether a person should be qualified as an expert in the first place. Judges traditionally focus on credentials or experience when qualifying experts without regard to whether those criteria are good proxies for true expertise. We argue that credentials and experience are often poor proxies for proficiency. Qualification of an expert …

Securitization Ten Years After The Financial Crisis: An Overview, Steven L. Schwarcz

Faculty Scholarship

This symposium issue examines securitization a decade after the 2008 financial crisis. Prior to the crisis, securitization was one of America’s dominant means of financing. Many observers, however, blamed securitization for causing the crisis, sparking regulation that arguably has been overly restrictive and, in some cases, even punitive. Where are we now?

Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.

Faculty Scholarship

This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life.

In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …

No More Blood, Kerry Abrams

Faculty Scholarship

No abstract provided.

Rights-Weakening Federalism, Shitong Qiao

Faculty Scholarship

This article examines whether federalism protects land rights in China from two dimensions. I first compare national law with local institutions of eminent domain, revealing that local governments take much more land than the national government approves, frequently violating, tweaking, and challenging national law. I next examine the impact of interjurisdictional competition on the development of local land institutions, demonstrating that local governments are weakening individual land rights for the benefits of mobile capital. Overall, Chinese federalism weakens rather than strengthens individual land rights and should be called rights-weakening federalism.

This China case also has general theoretical implications. Leading property …

Erie As A Way Of Life, Ernest A. Young

Faculty Scholarship

No abstract provided.

Normcore, Jedediah Purdy

Faculty Scholarship

The proliferating "crisis-of-democracy" literature, like The Fast and the Furious franchise, has only one plot. And, like the crash-up car-chase movies, it has not let this fact slow its growth. Likely none of these books would exist—certainly none would be remotely the same—if Hillary Clinton had pulled a hundred thousand more votes out of the Midwest in 2016. All are organized around the shock of Trump's victory and allege a national and international crisis of democracy. Just what is the crisis? What is missing from these works, and the commentariat that they represent, is a genuine reckoning with twenty-first-century questions: …

Restoring Trade's Social Contract, Frank J. Garcia, Timothy Meyer

Faculty Scholarship

No abstract provided.

Free Trade, Fair Trade, And Selective Enforcement, Timothy Meyer

Faculty Scholarship

No abstract provided.

When Terrorists Govern: Protecting Civilians In Conflicts With State-Building Armed Groups, Mara R. Revkin

Faculty Scholarship

Many existing U.S. counter-terrorism policies, including those governing targeting and detention, rely on an empirical assumption that terrorist groups are primarily military organizations. This assumption may be appropriate in the case of al-Qaeda, but it fails to describe terrorist groups that engage not only in warfare but also in governance and state-building such as the Islamic State, a self-declared “caliphate” that—at the height of its expansion in 2014—claimed sovereignty over an estimated 34,000 square miles and 10 million civilians. This Article identifies a category of “state-building” terrorist groups that can be distinguished by the following characteristics: (1) the presence of …

Trade, Redistribution, And The Imperial Presidency, Timothy Meyer

Faculty Scholarship

No abstract provided.

The Offshore Tax Enforcement Dragnet, Shu-Yi Oei

Faculty Scholarship

Taxpayers who hide assets abroad to evade taxes present a serious enforcement challenge for the United States. In response, the United States has developed a family of initiatives that punish and rehabilitate non-compliant taxpayers, raise revenues, and require widespread reporting of offshore financial information by financial institutions and taxpayers. Yet, while these initiatives help catch willful tax cheats, they have also adversely affected immigrants, Americans living abroad, and “accidental Americans.”

This Article critiques the United States’ offshore tax enforcement initiatives, such as the Foreign Account Tax Compliant Act and the Internal Revenue Service’s offshore voluntary disclosure programs. It argues that …

Foreword: Introduction To Decentralization And Development, Shitong Qiao, Richard A. Epstein

Faculty Scholarship

On March 14–15, 2017, a group of Asian and American scholars working in the areas of law, economics, and political science gathered at the University of Hong Kong Faculty of Law. There they debated and discussed decentralization and development at a conference co-sponsored by New York University’s Classical Liberal Institute and the University of Hong Kong Faculty of Law’s Centre for Chinese Law. What does decentralization mean? How do we best measure decentralization? Is interjurisdictional competition a race to the bottom or a race to the top? Is decentralization desirable in the context of China and other jurisdictions? This symposium …

Safe Harbors: The Many Benefits Of Marine Monuments And Sanctuaries, John F. Bruno, Whitley Saumweber, Larry B. Crowder, Linwood Pendleton, Stephen E. Roady, Tracy Rouleau, Miyoko Sakashita

Faculty Scholarship

The United States has been at the forefront of marine resource stewardship since the 1970s when Federal officials began to implement a series of national policies aimed at the conservation and management of public trust resources in the ocean. Beginning with the establishment of the National Oceanic and Atmospheric Administration in 1970, soon followed by several pieces of landmark legislation, this era marked the start of a continuing effort to integrate ecosystem science with marine resource management. Among the most important bipartisan legacies of this effort has been the steady expansion of marine managed areas in U.S. coastal and ocean …

Federalism As A Check On Executive Authority: State Public Litigation, Executive Authority, And Political Polarization, Ernest A. Young

Faculty Scholarship

No abstract provided.

An Exempt Status Sorting Hat, Richard Schmalbeck

Faculty Scholarship

No abstract provided.

Reframing Intellectual Property Rights With Fewer Distortions Of The Trade Paradigm, Jerome H. Reichman

Faculty Scholarship

No abstract provided.

Tax Issues In The Sharing Economy: Implications For Workers, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

No abstract provided.

A National Study Of Immigration Detention In The United States, Emily Ryo, Ian Peacock

Faculty Scholarship

Amidst growing reports of abuses and rights violations in immigration detention, the Trump administration has sought to expand the use of immigration detention to facilitate its deportation policy. This study offers the first comprehensive empirical analysis of U.S. immigration detention at the national level. Drawing on administrative records and geocoded data pertaining to all noncitizens who were detained by U.S. Immigration and Customs Enforcement in fiscal year 2015, we examine who the detainees are, where they were held, and what happened to them.

The bulk of the detained population consisted of men (79%) and individuals from Mexico, El Salvador, Guatemala, …

Changing The First Lady's Mystique: Defining The First Lady's Legal Role And Upending Gender Norms, Ashlee A. Paxton-Turner

Faculty Scholarship

This Article explores the lack of formal guidelines governing the First Lady by first considering the history of the role and how the three branches of government have typically dealt with the role. Attention is also given to the possible intersection with the anti-nepotism statute when and if the First Lady acts as an advisor to the President. This Article then goes on to suggest that this lack of formality has allowed gender norms to govern the role. In an era where women’s rights have resurfaced as a central theme in political discourse, this Article concludes by suggesting some possible …

The Rainy Day Earned Income Tax Credit: A Reform To Boost Financial Security By Helping Low-Wage Workers Build Emergency Savings, Sarah Halpern-Meekin, Sara Sternberg Greene, Ezra Levin, Kathryn Edin

Faculty Scholarship

Financial stability depends on emergency savings. Low-wage workers regularly experience drops in income and unexpected expenses. Households with savings absorb these financial shocks but most low-income Americans lack rainy day savings. Therefore, even a small shock, like car repairs, can result in a cascade of events that throws a low-income family into poverty. Nonetheless, existing policies address emergency savings only indirectly. However, the Earned Income Tax Credit (EITC) already functions as an imperfect, makeshift savings tool. This lump sum refund at tax time gives workers a moment of financial slack, but many EITC recipients lack emergency reserves later in the …

Introduction: Reflections On The Future Of Discovery In Civil Cases, Paul W. Grimm

Faculty Scholarship

No abstract provided.