Law Commons^™

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 …

The Seven Essential Law School Simulation Courses, Mitch Zamoff

Articles

As we mark the ten-year anniversary of the American Bar Association’s six-credit experiential learning requirement and the launch of the NextGen bar exam, it is critical for U.S. law schools to conduct rigorous assessments of their experiential education curricula. While most law schools now offer students meaningful opportunities to develop lawyering skills in clinics and field placements, there is much less consistency in their simulation course offerings. Simulation courses are a critical component of experiential legal education. While students in clinics and field placements gain valuable, realistic experience addressing the issues presented by their actual clients, those issues may sometimes …

Why Mass Incarceration Is Uniquely American, Michael Tonry

Articles

Mass incarceration, among Western countries a uniquely American phenomenon, resulted from a transformation of American criminal justice systems. Indeterminate sentencing systems in which legislatures established maximum sentences, prosecutors processed cases, judges decided who went to prison, and parole boards decided how long people stayed there were replaced by determinate systems in which legislatures prescribed minimum sentences, prosecutors made the key charging and sentencing decisions, judges processed cases and sentenced minor crimes, and parole boards lost much of their authority. Parole boards and judges become largely irrelevant whenever prosecutors file charges subject to mandatory sentence, three-strikes, truth-in-sentencing, and life without parole …

Metals Derivatives Markets And The Energy Transition, James W. Coleman, Colleen M. Baker

Articles

Despite their escalating importance, thus far, there has been minimal legal scholarship on metals derivatives markets. Given the key role of these markets in the transition to a clean energy future, increased focus on them is imperative.

Hence, it is not surprising that the agendas for the last four meetings of the Commodity Futures Trading Commission’s Energy and Environmental Markets Advisory Committee each dedicated a significant portion of the meeting to metals derivatives markets and their role in the transition to a clean energy future.

Fundamentally, the United States and the world are moving from their long-term dependence on the …

Derivatives Markets Fragilities And The Energy Transition, James W. Coleman, Colleen Baker

Articles

It is common knowledge that climate change concerns have prompted countries around the world to plan for a reduction in their fossil fuel dependencies. Yet while much attention has been placed on new low-carbon sources of energy such as wind, solar, and nuclear, comparatively little focus has centered on the commodity inputs, critical metals, needed to create this clean energy. In this article, we argue that at the heart of the energy transition is a commodities transition representing an unprecedented international reliance on critical metals, traditionally capricious commodities traded in global markets. Indeed, nations around the world have begun to …

What Should Caremark Encompass?, Claire A. Hill, Zohreh Zakiani

Articles

Under In re Caremark Int’l Inc. Derivative Litig., decided in 1996, directors are required to oversee corporate compliance and can be liable for breaching their fiduciary duties if their oversight efforts do not suffice. Since it was decided, Caremark has been very influential, notwithstanding its high bar to liability. Notably, its influence far exceeds the actual probability that directors would be found liable under the doctrine. Instead, much of Caremark’s force is “soft,” through extra-legal mechanisms such as norms and pressures from various constituencies. Caremark clearly covers oversight for violations of law or regulation. But what, beyond those two things, …

Redefining Public Benefits, Naomi Cahn, June R. Carbone

Articles

This Article considers the interaction between marriage, households, and public welfare-type benefits. In light of constant cultural and media attention to “the two-parent privilege,” the article argues that the very purpose of public benefits in the modern era is up for redefinition. The information age, much like the industrial revolution before it, has remade the preconditions for entry into the middle class and contributed to new middle-class family strategies geared to the changing labor market realities. This new era, which has increased income instability and employment insecurity, has increased economic inequality and eroded what were once secure pathways into middle-class …

Curbing Gun Violence Under Plcaa And Bruen: State Attorney General–Driven Solutions To The Surging Epidemic, David Lamb

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

No abstract provided.

American Dream: Social Pressures And Lackluster Regulation Allow Multi-Level Marketing Companies To Function As De Facto Pyramid Schemes, Lindsay R. Maher

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

The entrepreneurial spirit goes to the heart of the American Dream. Pull yourself up by the bootstraps. Put your nose to the grindstone. If you could just be given the tools to get started, you, too, can make something of yourself with hard work and perseverance. This mindset drives millions of people each year to participate in Multi-Level Marketing companies (MLMs), which are advertised as an opportunity to start your own business, sell products, and work on your own schedule. MLMs are also designed to reward sellers each time they successfully encourage another person to join, so much so that …

The Subfederal In Immigration Polarization, Huyen Pham, Pham Hoang Van

Minnesota Journal of Law & Inequality

No abstract provided.

Teaching “Mistrust”, Sarah J. Schendel, Sam E. Bourgeois

Minnesota Journal of Law & Inequality

No abstract provided.

Sword Or Shield? The Weaponization Of Title Ix Against Transgender Athletes, Jacqueline Brant

Minnesota Journal of Law & Inequality

No abstract provided.

Martin Sostre – Enemy Of The State, Laura Molik

Minnesota Journal of Law & Inequality

No abstract provided.

The Right To Boycott: Anti-Bds Laws Violate The First Amendment To Protect Apartheid, Buchanan Waller

Minnesota Journal of Law & Inequality

No abstract provided.

Commandments Before Amendments: The Ministerial Exception & How The Court Prioritizes Religious Rights Over Other Constitutional Protections, Evelyn Doran

Minnesota Journal of Law & Inequality

No abstract provided.

History Vs. Originalism: The Bill Comes Due, Stephen M. Griffin

Constitutional Commentary, Vol. 37 and later (2023–present)

No abstract provided.

Making Sense Of 303 Creative: A Free Speech Solution In Search Of A Problem, David S. Schwartz

Constitutional Commentary, Vol. 37 and later (2023–present)

In 303 Creative v. Elenis, the Supreme Court held that a website designer had a First Amendment right to refuse to create wedding websites for same-sex couples, even though she would create such websites for opposite-sex couples and despite the fact that her refusal violated a Colorado antidiscrimination law. 303 Creative purports to resolve a tension between freedom of speech and public accommodations laws as applied to “creative professionals” whose products or services are expressive. But this problem is largely theoretical. It did not really exist outside a small handful of ginned-up controversies between purportedly creative wedding-related businesses run by …

Multi-Parent Custody, Jessica Feinberg

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

In recent years, a number of jurisdictions have enacted laws recognizing that a child may have more than two legal parents (multi-parentage). Recognition of multi-parentage represents a significant change to the legal framework governing parentage— for most of U.S. history, it was well established that a child could have a maximum of two legal parents. While commentators undoubtedly will continue to debate the wisdom of multi-parentage recognition, it is clear both that multi-parentage has arrived and that its arrival raises many novel and important questions across a variety of areas of the law. Proponents and opponents of multi-parentage agree that …

Should Courts Make It Personal? Virtue-Dependent Doctrine And The Law Of Executive Power, Michael Coenen

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

No abstract provided.

Thirty-Five Years Of Inaction: The Unfulfilled Promise Of The Medicaid Equal Access Provision, Delaram Takyar

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

No abstract provided.

Defining Common And Individual Issues In Class Actions: What A Reasonable Jury Could Do, Aaron D. Van Oort, John Rockenbach

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

No abstract provided.

The Supreme Court’S Opinion In Sec V. Jarkesy Has The Potential To Be Extremely Destructive, Richard J. Pierce Jr.

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

No abstract provided.

The Roberts Court And The Unraveling Of Labor Law, Courtlyn G. Roser-Jones

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

Labor law comprises several doctrines and procedures that oversee the relationships between employers, unions, and the workers they represent. These doctrines—the duty of fair representation, exclusivity, good-faith bargaining, captive-audience speech, and rights of equal access—are all component threads to a tapestry designed to facilitate widespread organizing and collective bargaining. Yet the Roberts Court has brushed aside how entwined these threads are and, in so doing, has undercut labor law’s far-reaching mandate. Likewise, this Court has disregarded the expertise of the National Labor Relations Board, the administrative agency tasked with weaving together specific legal canons in ways that reflect labor’s broad …

Making Whole, Making Better, And Accommodating Resilience, Erik Encarnacion

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

The conventional story about compensatory damages is that they aim to make plaintiffs whole, but not better off. This make-whole ideal implies that courts should subtract material gains from compensatory awards because otherwise plaintiffs would be unjustly enriched. This Article undermines this conventional wisdom in three ways. First, it highlights an oft-overlooked point: that sometimes courts may, as a doctrinal matter, award compensatory damages that render plaintiffs materially better off than before. Second, and more surprisingly, the Article shows that awarding material “betterments” is sometimes (and paradoxically) required by the make-whole ideal itself, not merely as a limited exception to …

Can The Excessive Fines Clause Mitigate The Lfo Crisis? An Assessment Of The Caselaw, Michael O'Hear

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

The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans. These legal financial obligations (LFOs) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities. One possible source of restraint on LFOs may be the Excessive Fines Clause of the Eighth Amendment. Largely ignored by courts and commentators for two centuries, the Clause has in recent years been the subject of a burgeoning volume of litigation and scholarship. The U.S. Supreme Court has decided a handful …

Throuples And Family Law, Philip De Sa E Silva

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

As throuples and other forms of polyamorous relationships gain visibility and acceptance, courts will have to confront the legal issues that will likely arise when a throuple forms and when it dissolves. How should courts determine child custody for three equally situated parents? How should courts divide assets among three people who have cohabitated in a marriage-like relationship? This note_comment describes some of the legal problems throuples are most likely to encounter, especially regarding child custody and division of assets. This note_comment outlines some of the ideal solutions to these problems, such as forming contracts with the help of an …

The Potential Power Of Cedaw In America's Post-Roe Abortion Debate Outside Of Its Formal Mechanisms, Hannah Grayson

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

No abstract provided.

A War On Ukraine, A War On Culture: Protecting Cultural Identity In International Law, Anastasiya Kadukov

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

No abstract provided.

Historicizing Same-Sex Marriage Debate In The Legal Periphery: Savigny, Nakagawa, And The Korean Marriage, Rama Hyeweon Kim

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

Global advocates for incorporating same-sex marriage into local family laws often argue for it using universal language of rights and nondiscrimination. They also contrast progressive countries with those that are behind in this respect. This Article resists a thin comparison driven by a universalist impulse and instead engages in an exploration of “local” family law in South Korea. Using the recent Supreme Court decision that extended spousal coverage of national health insurance to same-sex couples as an entry point, this Article offers brief histories of two distinct legal ideas and developments within Korean family law, both involving a deep and …

Accounting For The Unaccountable: Does The Holding Foreign Companies Accountable Act Deter Chinese Companies?, Grant Newman

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

The Holding Foreign Companies Accountable Act (“HFCAA” or “the Act”) threatens to prohibit trading in Chinese companies listed in the United States if the Public Certified Accounting Board (“PCAOB”) is unable to oversee their respective Chinese auditors. By assessing the limits of protection the HFCAA offers U.S. investors, this Note argues that the statute’s more fundamental objective is to deter Chinese companies from listing in the United States. Hence, this Note asks whether the HFCAA deters or will deter Chinese companies from listing or remaining listed in the United States. To answer this, this Note examines data collected by the …