Law Commons^™

Platform Unions, Charlotte Garden

Minnesota Law Review Vols. 106:2 onward (2021-present)

How should we regulate social media platforms to prevent harmful treatment of users? Regulators, advocates, and scholars have grappled with this problem for years. Many proposed solutions, ranging from improving privacy disclosures, to promoting competition between platforms, to requiring platforms to pay users for their data, are at best incomplete. This Article begins from the premise that platform problems are collective problems and proposes a collective solution: empowering users to organize platform unions. Much like labor unions give employees a say in in their working conditions even when they lack individual bargaining power, platform unions would facilitate collective bargaining over …

The Good, The Bad, And The Unconstitutional: State Attempts To Solve The Defendant Class Action Problem, Tyler Blackmon

Minnesota Law Review Vols. 106:2 onward (2021-present)

While the overwhelming majority of class action lawsuits filed in this country are plaintiff class actions--with named plaintiffs representing larger classes of plaintiffs--Rule 23 of the Federal Rules of Civil Procedure technically permits plaintiffs to sue a named defendant representing a class of defendants as well. However, such suits are exceptionally rare--so much so that they have been described as “as rare as unicorns.” Still, when defendant classes emerge, they create two distinct problems. First, defendant classes cause both federal district courts and their state counterparts severe administrative headaches. Second, defendant classes trample on the due process rights of the …

Fixing Disparate Prosecution, Shima Baradaran Baughman, Jensen Lillquist

Minnesota Law Review Vols. 106:2 onward (2021-present)

America's system of public prosecution is broken. Prosecutors who charge harshly or disparately are shielded from any consequences or recourse, and defendants are left with few options. This asymmetry in power results in prosecutors singlehandedly maintaining mass incarceration in the United States and leads to some states incarcerating more people per year than entire countries. Prosecutors in the United States are permitted to charge with little supervision or guidance other than to follow the law and “seek justice.” Many choose to charge the highest number of crimes possible, while others choose to exercise restraint and label themselves as “progressives.” But …

Two Is Not Always Better Than One: Concurrent Jurisdiction In Indian Country And The Withering Of Tribal Sovereignty Following Mcgirt And Castro-Huerta, Marina Berardino

Minnesota Law Review Vols. 106:2 onward (2021-present)

There is a violence epidemic plaguing the Native American population across the country. Native women are disproportionality victimized by both sexual and non-sexual violence--over eighty-five percent of Native women are expected to be victims of intimate partner violence, stalking, or sexual violence at some point in their life. Most often, the perpetrators are non-Native, which creates jurisdictional issues. In most states, the only sovereign with the authority to prosecute non-Indian-on-Indian crimes is the federal government. Yet, federal law enforcement often does not investigate these crimes, and federal prosecutors ultimately decline to prosecute many sexual assault and domestic violence crimes in …

Modern Statutory Interpretation: Correcting Court-Made Deficiencies In Title Vii Law, Jordan Boudreaux

Minnesota Law Review Vols. 106:2 onward (2021-present)

Title VII of the Civil Rights Act of 1964 is a monumentally important piece of legislation that ensures all Americans can enjoy a fair workplace, free of discrimination. Even so, the federal circuits remain split on a significant aspect of Title VII's interpretation. Notably, in some circuits, employees can still be scheduled or transferred based on their protected class, with minimal redress under Title VII. In Hamilton v. Dallas County, the Fifth Circuit upheld an employer's explicitly sex-discriminated schedule as unactionable under the court's standard. In doing so, the Fifth Circuit temporarily validated explicit discrimination in a key aspect of …

Twins At Bat(Son), Strikes Are Out: Minnesota’S Opportunity To Restore Batson V. Kentucky By Eliminating Peremptory Strikes, Samuel Buisman

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Erasing Racial Harms In Cfpb V. Community Financial Services Association, Callan Showers

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Bounded Entities And (Some Of) Their Discontents, Surabh Vishnubhakat

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Teaching “Is This Case Rightly Decided?”, Steven Arrigg Koh

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Private-Law Attorneys General, Molly Shaffer Van Houweling

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

American Fiction: Overturning The Doctrine Of Immigration Entry Fiction As Established In Shaughnessy V. Mezei, Dahlia Wilson

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

A Great American Gun Myth: Race And The Naming Of The “Saturday Night Special”, Jennifer L. Behrens, Joseph Blocher

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

“Proven” Safety Regulations: Massachusetts 1805 Proving Law As Historical Analogue For Modern Gun Safety Laws, Billy Clark

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Refining The Dangerousness Standard In Felon Disarmament, Jamie G. Mcwilliam

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Substance Over Symbolism: Do We Need Benefit Corporation Laws?, Cheng-Chi Chang

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Subjective Costs Of Tax Compliance, Jonathan H. Choi, Ariel Jurow Kleiman

Minnesota Law Review Vols. 106:2 onward (2021-present)

This Article introduces and estimates the “subjective costs” of tax compliance, which are costs of tax compliance that people experience directly and individually. To measure these costs, we conducted a survey experiment assessing how much taxpayers would pay to reduce the unpleasantness associated with filing a tax return. The experiment revealed that taxpayers are more concerned about inadvertent mistakes in their tax filings than the time spent on compliance. Respondents also only ascribed meaningful value to eliminating all tax compliance work; they ascribed essentially no value to marginal time savings. Additionally, taxpayers were indifferent between simplification services offered by a …

In Defense Of Pickering: When A Public Employee's Social Media Speech, Particularly Political Speech, Conflicts With Their Employer's Public Service, Abby Ward

Minnesota Law Review Vols. 106:2 onward (2021-present)

With the rise of social media and the United States’ increasing political polarization, public employees take to social media to post about political issues such as race and policing. But when public employees make posts on political issues in an inflammatory or controversial way, public employers often discipline or fire the employee, fearing disruption and community backlash. The result is First Amendment litigation involving social media speech, an uncharted territory for courts. When a public employee is disciplined for engaging in political speech on social media, courts usually analyze the employee’s First Amendment claim under the Pickering balancing test. This …

The Belfast/Good Friday Agreement And Transformative Change: Promise, Power And Solidarity, Fionnuala Ní Aoláin

Articles

In 2023 the 1998 Belfast/Good Friday Agreement marks its twenty-fifth anniversary. For many the Agreement projects a global image of a successfully concluded end to conflict. However, key aspects of the agreement remain under-enforced or simply undelivered: in particular, provisions related to significant and wide-ranging guarantees addressing human rights and equality of opportunity. As a result, socio-economic and cultural deficits persist, undermining the capacity to achieve a ‘positive peace’. In this article we address the question of how transformative the Agreement and associated reforms have been in addressing the root causes of the conflict and the structures that underpinned it. …

Stakeholder Governance As Governance By Stakeholders, Brett H. Mcdonnell

Articles

Much debate within corporate governance today centers on the proper role of corporate stakeholders, such as employees, customers, creditors, suppliers, and local communities. Scholars and reformers advocate for greater attention to stakeholder interests under a variety of banners, including ESG, sustainability, corporate social responsibility, and stakeholder governance. So far, that advocacy focuses almost entirely on arguing for an expanded understanding of corporate purpose. It argues that corporate governance should be for various stakeholders, not shareholders alone.

This Article examines and approves of that broadened understanding of corporate purpose. However, it argues that we should understand stakeholder governance as extending well …

Populist Politics And International Business Policy: Problems, Practices, And Prescriptions For Mnes, Paul Vaaler, Christopher Hartwell, Barclay James, Thomas Lindner, Jakob Müllner

Articles

In this editorial introduction to the Special Issue on populism, we discuss different approaches to defining populism in ways relevant to multinational enterprise (MNE) strategy and organization. In addition, we demonstrate how populist host-country government policies often target MNEs in ways that give rise to distinctly new forms of discriminatory treatment. This theoretical background sets the stage for the papers of this Special Issue, explaining the origins of these populist host-country government policies and the impact of such policies on FDI and international trade. We conclude with various suggestions for advancing IB policy research on populism, including building a better …

Making Law Practice Technology More Simulation-Based, Jacob Sayward

Articles

Law and Technology Legal Technology Law Practice Technology Technology Competency Law Legal Education Legal Profession Technology Technology Education Technology Planning or Policy

Opportunistic Breach Of Contract, Francesco Parisi, Brian H. Bix, Ariel Porat

Articles

Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We …

"With Great Power Comes Great Responsibility": Improving Your Feedback And Hallmarks Of Effective Feedback, Randall Ryder

Articles

Effective feedback can change a law student’s trajectory in law school and beyond. The feedback-centric nature of experiential learning courses allows law students to both develop their skills and personal lawyering style. However, many experiential instructors are from a different generation, with different expectations and communication styles than today’s law students. This article highlights hallmarks of effective feedback for the modern law school classroom. As the field of law continues to evolve, law schools will need to as well.

This article discusses four key hallmarks: (1) provide feedback in multiple formats,(2) help each student develop their personal style, (3) explain …

Platform Unions, Charlotte Garden

Articles

How should we regulate social media platforms to prevent harmful treatment of users? Regulators, advocates, and scholars have grappled with this problem for years. Many proposed solutions, ranging from improving privacy disclosures, to promoting competition between platforms, to requiring platforms to pay users for their data, are at best incomplete.

This Article begins from the premise that platform problems are collective problems and proposes a collective solution: empowering users to organize platform unions. Much like labor unions give employees a say in in their working conditions even when they lack individual bargaining power, platform unions would facilitate collective bargaining over …

“Criminalizing” Depositions In Arbitration, Mitch Zamoff

Articles

Civil litigation–style deposition practice is preventing commercial arbitration from reaching its full potential as an economical, efficient alternative to a civil lawsuit. Although there is consensus among alternative dispute resolution experts that meaningful limits must be imposed on arbitration discovery to unlock the efficiency benefits of arbitration, depositions continue to feature prominently in commercial arbitrations for at least three reasons. First, civil litigators are addicted to depositions. They reflexively propose overdone deposition practice in arbitrations that replicates their litigation experience. Second, arbitrators may hesitate to disallow deposition discovery out of fear that their awards will be vacated for failure to …

Second, But Not Last: Competition With Positive Spillovers, Francesco Parisi

Articles

This paper extends the traditional rent-seeking model to consider contests in which the effects of the contestants’ efforts are externally unproductive (i.e., redistributive) but internally productive (i.e., with positive spillover effects on other contestants). Our results show that when players act sequentially, the presence of positive spillovers on other contestants may reduce, or even reverse, the first-mover’s advantage. A second-mover advantage is very likely to arise. Notably, in contests with multiple players, the second-mover advantage does not unravel into a last-mover advantage. Players want to be second, but not last. The comparative statics analysis shows how the strength of positive …

Destruction, Proportionality, And Sustainability: A Law-And-Economics Analysis, Thomas F. Cotter

Articles

This Paper undertakes a law-and-economics analysis of the remedy of destruction (and, subsidiarily, the related remedies of recall and removal) of products that infringe intellectual property (IP) rights. We begin with a brief survey of international, regional, and domestic law and practice, observing that (1) courts generally are believed to be more likely to order the destruction of copyright- and trademark-infringing goods than of patent-infringing goods, and (2) the frequency with which courts order the destruction of patent-infringing goods varies from one country to another. Our observations lead us to present two principal theses.

The first is that a comparative …

Importance And Interpretive Questions, Ilan Wurman

Articles

In its October 2021 Term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies. The doctrine has been almost universally assailed on the right by scholars who argue that the doctrine is inconsistent with textualism and on the left by those who claim it is a recently invented, functionalist tool devised to reach antiadministrativist results. One can explain at least some of the cases, however, in a way that …

Ot '22 And The Path Of Administrative Law, Ilan Wurman

Articles

This symposium piece reflects on the Supreme Court’s October 2022 term and what it reveals for the direction of administrative law. It argues first that the nondelegation doctrine is dead but not for the reason functionalists have been arguing for so long. It is dead rather because the causes of its revival have been effectively removed. Nondelegation concerns are most felt when there is significant executive unilateralism; in the past such unilateralism was encouraged by the Chevron doctrine, which allows the executive branch to interpret statutes creatively and, so long as those interpretations are plausible, requires courts to defer to …

Legal Endearment: An Unmarked Barrier To Transforming Policing, Public Safety, And Security, Emmanuel Mauleón

Articles

The problems of racialized policing have come into renewed focus over the past decade. The advent of viral bystander videos has not only forced a popular confrontation with moments of both routine and extraordinary policing violence but also sparked protests, uprisings, and grassroots movements to challenge current practices in policing and determine what must be done to transform it. And yet, even after the mobilization of one of the largest racial justice movements in American history, transformative change remains elusive. This Article offers an answer to this puzzle by foregrounding White people’s collective relationship with policing and describing how this …