Law Commons^™

Free-Ing Criminal Justice, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Afrofuturism And The Law, I. Bennett Capers

Faculty Scholarship

Long before the film Black Panther captured the public’s imagination, the cultural critic Mark Dery coined the term “Afrofuturism” to describe “speculative fiction that treats African-American themes and addresses African-American concerns in the context of twentieth-century technoculture.” Since then, the term has been applied to speculative creatives as diverse as the pop artist Janelle Monae, the science fiction writer Octavia Butler, and the visual artist Nick Cave. But only recently have thinkers turned to how Afrofuturism might guide, and shape, law. This special issue, “Afrofuturism and the Law,” features articles that explore the many ways Afrofuturism can inform a range …

Lowering The Stakes Of The Employment Contract, Aditi Bagchi

Faculty Scholarship

Every country has to make hard choices about the distribution of entitlements. But employers control the entitlements that individual Americans enjoy to a far greater extent than those in other rich democracies. In this Essay, I argue that, in the absence of the political consensus necessary to deliver state solutions to political questions, employers here are assigned an exaggerated role in employees’ lives. Government incentives for and directives to employers have become a strategy of political deflection. The effect has been to raise the stakes of employment well beyond the scope of those terms and conditions that relate to attracting …

Countering Gerrymandered Courts, Jed H. Shugerman

Faculty Scholarship

The key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.

This Piece offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping …

Platform Realism, Informational Inequality, And Section 230 Reform, Olivier Sylvain

Faculty Scholarship

Online companies bear few duties under law to tend to the discrimination that they facilitate or the disinformation that they deliver. Consumers and members of historically marginalized groups are accordingly the likeliest to be harmed. These companies should bear the same, if not more, responsibility to guard against such inequalities.

Retrospective Risk Allocation, Aditi Bagchi

Faculty Scholarship

No abstract provided.

A Comment On Foohey Et Al., Steering Loan Modifications Post-Pandemic, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Paths To Downstream Innovation, Janet Freilich

Faculty Scholarship

No abstract provided.

Derailing The Deference Lockstep, Aaron J. Saiger

Faculty Scholarship

Key voices, most prominently that of Justice Neil Gorsuch, have embraced the position that the Chevron doctrine, under which federal courts defer to an agency’s reasonable interpretation of its organizing statutes, is incompatible with the judicial duty to “say what the law is.” These voices include several state supreme courts, which have held (often citing Justice Gorsuch) that state-court deference to state agency interpretations likewise impinges upon the fundamental duty of state judges to decide, on their own, what state law is.

This Article urges states to resist the uncritical importation into state law of antideference arguments based on the …

The Dilemma Of Liberal Pluralism, Abner S. Greene

Faculty Scholarship

Supporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The …

Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed H. Shugerman

Faculty Scholarship

The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a “removal of context.” This article focuses on the “executive power” part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England’s limited monarchy: the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a “royal prerogative" or a default royal power. The …

Proxy Crimes And Overcriminalization, Youngjae Lee

Faculty Scholarship

A solution to the problem of “overcriminalization” appears to be decriminalization of certain crimes. This Essay focuses on a group of crimes that has been labeled “proxy crimes” as a candidate to be eliminated. What are proxy crimes? Douglas Husak defines them as “offenses designed to achieve a purpose other than to prevent the conduct they explicitly proscribe.” Michael Moore describes them as involving situations where we “use one morally innocuous act as a proxy for another, morally wrongful act or mental state.” Put that way, proxy crimes seem highly problematic, and Larry Alexander and Kimberly Ferzan bluntly put it, …

Replies To Commentators, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in …

‘Nothing About Us Without Us’: Toward A Liberatory Heterodox Halakha, Laynie Laynie Soloman, Russell G. Pearce

Faculty Scholarship

The role and function of “halakha” (Jewish law) in Jewish communal life is a divisive issue: while Orthodox Jews tend to embrace Jewish law, non-Orthodox Jews (here deemed “Heterodox”) generally reject Jewish law and halakhic discourse. We will explore the way in which Robert Cover’s work offers an antidote to categorical Heterodox distaste for halakha specifically, and law more broadly, providing a pathway into an articulation of halakha that may speak to Heterodox Jews specifically: one that is driven by creative “jurisgenerative” potential, that is informed by a paideic pluralism, and that is fundamentally democratic in its commitment to being …

The Restatement Of The Law, Children And The Law: A Blueprint For Reforming The Child Welfare System, Clare Huntington

Faculty Scholarship

As part of the special issue on the foster care system, this essay challenges the assumption that all the children who are in foster care should be in foster care. The essay first describes the familiar—and still persuasive—argument that foster care does not serve the interests of most children and families. It then brings a new lens to bear on this argument by describing the work of the American Law Institute's Restatement of the Law, Children and the Law, which provides a blueprint for shrinking the child welfare system and promoting child well-being.

Introduction To The Symposium On Feminist Approaches To International Law Thirty Years On: Still Alienating Oscar?, Catherine Powell, Adrien K. Wing

Faculty Scholarship

No abstract provided.

Evidence Circuit Splits, And What To Do About Them, Daniel J. Capra, Jessica Berch

Faculty Scholarship

The Federal Rules of Evidence are designed to be simple and user-friendly — able to be deployed quickly and nimbly in the heat of trial. Despite this laudable goal, some of the rules present interpretive challenges. This Article explores approximately a dozen of the most deeply entrenched and troubling circuit splits involving Rules 407, 611, 702, 801, 803, 804, 806, and 1006.

More specifically, the circuit splits addressed are: (1) Whether the rule excluding subsequent remedial measures requires a showing that the defendant’s change was in response to the plaintiff’s injury, and also whether the rule is applicable in actions …

The Textual Canons In Contract Cases: A Preliminary Study, Ethan J. Leib

Faculty Scholarship

This Essay is a first effort to explore how linguistic canons function in contract cases. Most lawyers know about ejusdem generis, expressio unius, and noscitur a sociis from their work in statutory interpretation, but no one has attempted any systematic inquiry into how these canons figure in contract interpretation. Looking at two jurisdictions’ use of textual canons in contract cases over time and in careful detail, this Essay reports findings and offers preliminary conclusions, about the specific jurisdictions under review and more generally in a comparative vein, both inter-jurisdictionally and as compared to what we know about the same canons’ …

A World Without Roe: The Constitutional Future Of Unwanted Pregnancy, Julie C. Suk

Faculty Scholarship

With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. …

Federalism, Private Rights, And Article Iii Adjudication, John M. Golden, Thomas H. Lee

Faculty Scholarship

This Article sheds new light on the private rights/public rights distinction used by the Supreme Court to assess the extent to which the United States Constitution permits adjudication by a non-Article III federal tribunal. State courts have traditionally been the primary deciders of lawsuits over private rights—historically defined as suits regarding “the liability of one individual to another under the law as defined.” If Congress could limitlessly assign adjudication of private rights cases to federal officials lacking the life tenure and salary protections of Article III judges, the political branches of the federal government would enjoy vastly expanded authority to …

A Flawed Case Against Black Self-Defense, Nicholas J. Johnson

Faculty Scholarship

No abstract provided.

Justice Ginsburg’S Cautious Legacy For The Equal Rights Amendment, Julie C. Suk

Faculty Scholarship

History will remember the late Justice Ruth Bader Ginsburg (RBG) as the “founding mother” of constitutional gender equality in the United States. This Article unpacks her legacy for inclusive constitutional change, unearthing her lifelong commitment to the Equal Rights Amendment (ERA), which was adopted fifty years ago by Congress in 1972. It took nearly half a century for the Amendment to be ratified by the thirty-eight states required by Article V, with Virginia becoming the last state to ratify it in 2020—the year of Justice Ginsburg’s death. Because the last three ratifications occurred decades after congressionally imposed time limits, RBG …

Making The Equal Rights Amendment That Is Needed In The Twenty-First Century, Julie C. Suk

Faculty Scholarship

No abstract provided.

Hard Cases Make Bad Law? A Theoretical Investigation, Sepehr Shahshahani

Faculty Scholarship

I use formal models to probe the aphorism that “hard cases make bad law.” The analysis illuminates important features of the common law process, especially the influence of case characteristics on lawmaking and the role of strategic litigators. When a case raises concerns that are not reflected in doctrine, the court might distort the law to avoid a hardship. Distortion is more likely when the case is important or the facts are close to the border of legality. Litigators may exploit courts’ attention to extra-doctrinal concerns by strategically selecting cases for litigation. Surprisingly, though, a strategic litigator improves lawmaking relative …

Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

No abstract provided.

The Bi-Partisan Enabling Of Presidential Power: A Review Of David Driesen's 'Specter Of Dictatorship: Judicial Enabling Of Presidential Power, Jed H. Shugerman

Faculty Scholarship

No abstract provided.

Constraint Without Closeness: A New Picture Of Cooperation, Aditi Bagchi

Faculty Scholarship

No abstract provided.

Law And The Moral Dynamics Of Collective Action, Aditi Bagchi

Faculty Scholarship

Many moral demands on social groups cannot be met without cooperation among group members. In some cases, individual action does not advance the collective moral interest at all without some threshold level of cooperation by other group members. Is an individual required to act as if others will cooperate even if she knows that they will not? This Article argues that individuals may take into account the reality of pervasive noncooperation and decline to attempt cooperation. Only ex ante mandatory rules can solve moral collective action problems. In a political community, those rules are public law. The most compelling argument …

Principles Of Home Rule For The 21st Century, Nestor M. Davidson

Faculty Scholarship

This has been excerpted and adapted from the National League of Cities Principles of Home Rule for the 21st Century report. Read the full report at: https://www.nlc.org/wp-content/uploads/2020/02/Home-Rule-Principles-Rep ortWEB-2-1.pdf.

In Memoriam: A Friend To The Law School, Sean J. Griffith

Faculty Scholarship

Phillip . Blumberg served as Dean of the University of Connecticut School of Law from 1974 to 1984. These remarks were first delivered at the University of Connecticut School of Law's tribute to Dean Blumberg, "Honoring Phillip I. Blumberg," held on December 10, 2021. They have been lightly editedfor publication.