Law Commons^™

Is It Time For A Universal Genetic Forensic Database?, Christopher Slobogin, Ellen Wright Clayton, J. W. Hazel, B. A. Malin

Ellen Wright Clayton

The ethical objections to mandating forensic profiling of newborns and/or compelling every citizen or visitor to submit to a buccal swab or to spit in a cup when they have done nothing wrong are not trivial. But newborns are already subject to compulsory medical screening, and people coming from foreign countries to the United States already submit to fingerprinting. It is also worth noting that concerns about coercion or invasions of privacy did not give pause to legislatures (or, for that matter, even the European Court) when authorizing compelled DNA sampling from arrestees, who should not forfeit genetic privacy interests …

Explicit Bias, Jessica A. Clarke

Jessica Clarke

In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of bias have not gone away. The law does not need empirical methods to identify bias when it is marching down the street in Nazi regalia, hurling misogynist invective, or trading in anti-Muslim stereotypes. Official acceptance of such prejudices may be uniquely harmful in normalizing discrimination. But surprisingly, many discrimination cases ignore explicit bias. Courts …

Surprise Vs. Probability As A Metric For Proof, Edward K. Cheng, Matthew Ginther

Edward Cheng

In this Symposium issue celebrating his career, Professor Michael Risinger in Leveraging Surprise proposes using "the fundamental emotion of surprise" as a way of measuring belief for purposes of legal proof. More specifically, Professor Risinger argues that we should not conceive of the burden of proof in terms of probabilities such as 51%, 95%, or even "beyond a reasonable doubt." Rather, the legal system should reference the threshold using "words of estimative surprise" -asking jurors how surprised they would be if the fact in question were not true. Toward this goal (and being averse to cardinality), he suggests categories such …

Women's Day Feature, Srividhya Ragavan

Srividhya Ragavan

No abstract provided.

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The Authors' Reply To Commentaries On, And Criticisms Of The Militia And The Right To Arms, Or, How The Second Amendment Fell Silent, H. Richard Uviller, William G. Merkel

William G. Merkel

No abstract provided.

Heller As Hubris, And How Mcdonald V. City Of Chicago May Well Change The Constitutional World As We Know It, William G. Merkel

William G. Merkel

No abstract provided.

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Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes

Wayne R. Barnes

Standard form contracts permeate our very existence, and now even include contracts we assent to online by way of "clickwrap" and "browsewrap" methods. Notwithstanding the ever-increasing presence and complexity of such standard form contracts, both offline and online, the law of contracts in this area has remained fairly static since before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to …

Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes

Wayne R. Barnes

Standard form contracts permeate our very existence, and now even include contracts we assent to online by way of "clickwrap" and "browsewrap" methods. Notwithstanding the ever-increasing presence and complexity of such standard form contracts, both offline and online, the law of contracts in this area has remained fairly static since before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to …

Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes

Wayne R. Barnes

No abstract provided.

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes

Wayne R. Barnes

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that …

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne Barnes

Wayne R. Barnes

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that …

Reconsidering Christianity As A Support For Secular Law: A Final Reply To Professor Calhoun, Wayne R. Barnes

Wayne R. Barnes

This symposium has revolved around Professor Calhoun’s article, which posits that it is completely legitimate, in proposing laws and public policies, to argue for them in the public square based on overtly religious principles. In my initial response, I took issue with his argument that no reasons justify barring faith-based arguments from the public square argument. In fact, I do find reasons justifying the prohibition of “faith-based,” or Christian, arguments in the public square—and, in fact, I find such reasons within Christianity itself. This is because what is being publicly communicated in Christian political argumentation is that if citizens comply …

Property-As-Society, Timothy M. Mulvaney

Timothy M. Mulvaney

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception …

"[N]Ot A Story To Pass On": Constructing Mothers Who Kill, Susan Ayres

Susan Ayres

Society is horrified and shocked when mothers kill their children. While this reaction may be justified, the reasons behind infanticide are never fully explored. Motherhood has very specific definitions in our society which makes it difficult to understand the motivations behind infanticide. Social institutions, such as the legal system and the media, are responsible for constructing motherhood in such a way that we view mothers who kill their children as simply insane and deficient. This article asserts another possible viewpoint regarding infanticide. Instead of specularizing women, the author urges people to view mothers who kill their children within the context …

Claudia Rankine's 'Citizen': Documenting And Protesting America's Halting March Toward Racial Justice And Equality, Susan Ayres

Susan Ayres

After the first election of President Barak Obama in 2008, there was a sense that the United States had reached a post-racial phase in its history. That sentiment was relatively short-lived, because by 2013, when Michael Brown was killed in Ferguson, it was clear that President Obama’s election was not transformative. More recently, during the presidential campaign and after the election of President Donald Trump in 2016, undisguised racism in the United States has reared its ugly head. Activists such as the Reverend Al Sharpton have been outspoken in their criticism of President Trump. Sharpton has claimed, “Everything King fought …

From "Federalization" To "Mixed Goverance" In Corporate Law: A Defense Of Sarbanes-Oxley, Robert B. Ahdieh

Robert B. Ahdieh

No abstract provided.

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Randy D. Gordon

The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal-at least in part-how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO's purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge …

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Peter R. Reilly

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Data Exclusivities In The Age Of Big Data, Biologics, And Plurilaterals, Peter K. Yu

Peter K. Yu

The past decade has seen many new developments impacting the intellectual property system. The introduction of big data analytics has transformed the fields of biotechnology and bioinformatics while ushering in major advances in drug development, clinical practices, and medical financing. The arrival of biologics and personalized medicines has also revolutionized the healthcare and pharmaceutical industries. In addition, the emergence of bilateral, regional, and plurilateral trade agreements have raised serious, and at times difficult, questions concerning the evolution of domestic and international intellectual property standards.

One topic linking all three developments together concerns the establishment of international standards to protect clinical …

Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh

Nancy Welsh

In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules that would have brought substantial transparency to mandatory pre-dispute consumer arbitration. In particular, the CFPB proposed to require regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to arbitration clauses, and further, the CFPB proposed to make such information public (with appropriate redactions). Although Congress and the President ultimately annulled the CFPB’s proposed rule, its introduction revealed the need for dispute resolution neutrals to support bringing “measured transparency” to private dispute resolution. To place the CFPB’s …

Class Action-Barring Mandatory Pre-Dispute Consumer Arbitration Clauses: An Example Of (And Opportunity For) Dispute System Design?, Nancy A. Welsh

Nancy Welsh

Ultimately, this essay will conclude that a private, ad hoc dispute system design process did lead to the insertion of class action waivers in mandatory pre-dispute consumer arbitration clauses. In-house and outside counsel certainly played key roles in initiating this process, but it is unclear that any individual lawyers could claim credit or responsibility as "designers." The representatives of dispute resolution organizations, meanwhile, played supporting roles-as providers of information and as amici in Supreme Court litigation. The essay will consider whether dispute resolution professionals could have managed their role in the process differently-and if so, why they would have managed …

Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman

Michael Z. Green

Extract:

I want to give you a roadmap for our program. We will not be delivering individual papers but, rather, hope to have a discussion. We are planning to spend thirty minutes on introductions for the purpose of allowing you to identify the source of each panelist's perspectives. We will then use an hour, more or less, for a discussion among the panel. That will leave fifteen minutes for audience questions and participation. Because we will be publishing an edited transcript, we ask that you hold your questions until the end.

Access to justice is a broad topic, and we …

Something To [Lex Loci] Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Meg Penrose

The new question relating to same sex marriage is not "who decides," but who is married. The federal government and many states have historically relied on the place-of-celebration rule, or lex loci celebrationis, to determine who is married. This ensures that married couples do not lose their marital status simply because they travel across state borders or relocate to a new home. Under lex loci celebrationis, if the marriage is legally valid where it was celebrated, then the marriage is legally valid everywhere else.

This article address the most pressing unresolved question of United States v. Windsor: Will the federal …

Getting It Right: Title Ix's Role In Adjudicating Sexual Assault Claims, Meg Penrose

Meg Penrose

Article Extract:

I want to start with a very important point: sexual assault is a crime. We have a serious issue in the United States with sexual assault and sexual harassment. We are seeing this play out right now, and I think the “Me Too” campaign has brought important attention to this issue. An issue that impacts not only our college residence halls, but, as we have seen, the halls of Congress. Serious people are not debating whether sexual assault and sexual harassment pose a societal problem. Rather, serious people are debating how to adequately address these issues without compromising …