Law Commons^™

Contextualization Shadow Conversations, James J. Brudney

Faculty Scholarship

No abstract provided.

Consumer Form Contracting In The Age Of Mechanical Reproduction, Ethan J. Leib, Zev J. Eigen

Faculty Scholarship

No abstract provided.

Cutting Through: Thirteen Ways Of Looking At Justice Stevens, Abner S. Greene

Faculty Scholarship

No abstract provided.

Ad Hoc Procedure, Pamela K. Bookman, David L. Noll

Faculty Scholarship

Ad hoc procedure” seems like an oxymoron. A traditional model of the civil justice system depicts courts deciding cases using impartial procedures that are defined in advance of specific disputes. This model reflects a process-based account of the rule of law in which the process through which laws are made helps to ensure that lawmakers act in the public interest. Judgments produced using procedures promulgated in advance of specific disputes are legitimate because they are the product of fair rules of play designed in a manner that is the opposite of ad hoc.

Actual litigation frequently reveals the inadequacy of …

Legislative Underwrites, Ethan J. Leib, James J. Brudney

Faculty Scholarship

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine, they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences. …

Localist Administrative Law, Nestor M. Davidson

Faculty Scholarship

To read the voluminous literature on administrative law is to inhabit a world focused almost exclusively on federal agencies. This myopic view, however, ignores the wide array of administrative bodies that make and implement policy at the local-government level. The administrative law that emerges from the vast subterranean regulatory state operating within cities, suburbs, towns, and counties has gone largely unexamined. Not only are scholars ignoring a key area of governance, but courts have similarly failed to develop an administrative jurisprudence that recognizes what is distinctive about local agencies. The underlying justifications for core administrative law doctrines at the federal …

Concocting Criminal Intent, Deborah W. Denno

Faculty Scholarship

My empirical study, which examines neuroscience evidence in 800 criminal cases over the course of two decades, is the first to determine how, when, and why victim brain scan evidence is introduced and used in court. My study reveals that although courts commonly rely on brain scans to show the extent of a victim’s injury, the actual application of this neuroscience evidence extends far beyond the purpose for which it is admitted.

The Cathedral Through The Looking Glass: A Commentary On Dagan And Dorfman's Just Relationships, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

Threatening Litigation, Bruce A. Green

Faculty Scholarship

No abstract provided.

Democratizing Entrepreneurship: Online Documents, Tools, And Startup Know-How, Jeff Thomas, Praveen Kosuri, Bernice Grant

Faculty Scholarship

No abstract provided.

Generating Rembrandt: Artificial Intelligence, Copyright, And Accountability In The 3a Era--The Human-Like Authors Are Already Here- A New Model, Shlomit Yanisky-Ravid

Faculty Scholarship

Artificial intelligence (AI) systems are creative, unpredictable, independent, autonomous, rational, evolving, capable of data collection, communicative, efficient, accurate, and have free choice among alternatives. Similar to humans, AI systems can autonomously create and generate creative works. The use of AI systems in the production of works, either for personal or manufacturing purposes, has become common in the 3A era of automated, autonomous, and advanced technology. Despite this progress, there is a deep and common concern in modern society that AI technology will become uncontrollable. There is therefore a call for social and legal tools for controlling AI systems’ functions and …

A Challenge To Bleached Out Professional Identity: How Jewish Was Justice Louis Brandeis?, Russell G. Pearce, Adam B. Winer, Emily Jenab

Faculty Scholarship

As an exemplar, Justice Louis D. Brandeis challenges the currently dominant conception that requires lawyers to, in Sanford Levinson's term, "bleach out" their personal identity from their professional identity. Under the dominant neutral partisan vision of the lawyer, clients will only receive the equal representation necessary to provide equal justice if lawyers exclude all personal and group identifications from their role. Brandeis, in contrast, asserted that his Jewish identity constructed his understanding of himself as a jurist. His distinguished career thereby provides a counter-narrative to bleaching-out that can serve as a model for all lawyers, whatever their personal and group …

Antitrust, Consumer Protection, And The New Information Platforms, Mark R. Patterson

Faculty Scholarship

No abstract provided.

The Internationalization Of Sources Of Labor Law, James J. Brudney

Faculty Scholarship

This article examines in depth an important but underappreciated development in international labor law: how norms promulgated by the International Labor Organization (ILO) have affected the development and implementation of domestic labor laws and practices since the early 1990s. The newly globalized focus of labor law—energized by substantial expansions in international trade and investment—has been recognized by scholars, practitioners, and governments, but it has not previously been explored and analyzed in this systematic way.

The article focuses on two central regulatory areas—child labor and freedom of association—and relies on doctrinal and policy developments in these areas, as evidenced by the …

Authenticating Digital Evidence, Paul W. Grimm, Daniel Capra, Gregory P. Joseph

Faculty Scholarship

No abstract provided.

What Mdl And Class Action Have In Common, Howard M. Erichson

Faculty Scholarship

This short article responds to Elizabeth Chamblee Burch's article, Monopolies in Multidistrict Litigation, 70 Vand. L. Rev. 67 (2017). Burch argues that lawyers in MDL leadership positions use their power to negotiate settlements that favor themselves over the plaintiffs they purport to represent. She points to particular terms that lawyers routinely insert in mass settlements. She contrasts MDL with class actions, where procedural safeguards presumably protect class members' interests. My response contends that Burch's concerns about MDL are on target, but that class actions, rather than providing a neat contrast, reveal powerful parallels to the ethical and procedural concerns she …

Aggregation As Disempowerment: Red Flags In Class Action Settlements, Howard M. Erichson

Faculty Scholarship

Class action critics and proponents cling to the conventional wisdom that class actions empower claimants. Critics complain that class actions over-empower claimants and put defendants at a disadvantage, while proponents defend class actions as essential to consumer protection and rights enforcement. This Article explores how class action settlements sometimes do the opposite. Aggregation empowers claimants’ lawyers by consolidating power in the lawyers’ hands. Consolidation of power allows defendants to strike deals that benefit themselves and claimants’ lawyers while disadvantaging claimants. This Article considers the phenomenon of aggregation as disempowerment by looking at specific settlement features that benefit plaintiffs’ counsel and …

The Futility Of Law And Development: China And The Dangers Of Exporting American Law, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

Two, Three Many Rosas! Rebellious Lawyers And Progressive Activist Organizations, Brian Glick

Faculty Scholarship

The cast of prototypic rebellious lawyers promoted by Gerald Lopez is incomplete. It leaves out a very important mode of lawyering: that of working for a progressive activist organization. To fill that gap, this essay introduces “Rosa,” a lawyer on the staff of an organization of low-wage workers fighting for workplace justice and systemic change. The essay argues that working for such organizations in a way that is accountable to the organizations is an especially effective way for lawyers to contribute to economic, racial, gender, social and environmental justice. It examines three current models of such practice: in-house, in an …

Rethinking Prosecutors' Conflicts Of Interest, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

No abstract provided.

Urban Policing And Public Policy— The Prosecutor’S Role, Bruce A. Green

Faculty Scholarship

No abstract provided.

Dead Hand Proxy Puts And Shareholder, Sean J. Griffith, Natalia Reisel

Faculty Scholarship

No abstract provided.

Objections To Disclosure Settlements: A How-To Guide, Sean J. Griffith, Anthony A. Rickey

Faculty Scholarship

Stockholder litigation remains in crisis, with over seventy percent of major mergers and acquisitions subject to litigation. A contributing factor is the breakdown of the adversary process at settlement, when former opponents join hands in favor of a compromise that too often expends corporate resources for no real recovery to the plaintiff class. One obvious corrective is the shareholder’s objection to settlement, which restores adversarial character to the settlement process. Shareholders, however, face substantial difficulties in making such objections. In this article, the authors detail the problem and share their experiences in addressing these obstacles, providing a how-to manual for …

Early Childhood Development And The Law, Clare Huntington

Faculty Scholarship

No abstract provided.

Lawful Gun Carriers (Police And Armed Citizens): License, Escalation And Race, Nicholas J. Johnson

Faculty Scholarship

No abstract provided.

The Right To Regulate In Investor-State Arbitration: Slicing And Dicing Regulatory Carve-Outs, Vera Korzun

Faculty Scholarship

This article examines the "right to regulate" as the power of a sovereign state to adopt and maintain government measures for public welfare objectives. It explores how claims by foreign investors in investor-state dispute settlement (ISDS) may interfere with the state's ability to regulate, and how the state can protect its right in international investment agreements. The article first explains the structure of modern international investment law and dispute resolution. It next turns to the right to regulate and explores why regulatory disputes represent a major challenge for ISDS. It continues by analyzing how exceptions, exclusions, and other safeguard provisions …

The Price Of Judicial Economy In The Us, Bruce A. Green

Faculty Scholarship

In the US, courts widely perceive that judicial scarcity is a common problem threatening the fair and timely resolution of disputes. Courts cite the attendant interest in judicial economy to justify interpreting the procedural and substantive law to reduce the judicial workload or accelerate the resolution of cases. But courts’ assumption that there are too few judges to handle the current caseload is hard to substantiate. First, it may not be possible to infer from excessive judicial backlogs or other perceived judicial deficiencies that a shortfall of judges is to blame. Second, even when one confidently perceives that a judicial …

Designing Systems For Achieving Justice After A Peace Agreement: Northern Ireland's Struggle With The Past, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.

Franklin Delano Roosevelt As Lord Of The Admiralty 1913-1920, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Andrea Yates: A Continuing Story About Insanity, Deborah W. Denno

Faculty Scholarship

No abstract provided.