Law Commons^™

The Anti-Parent Juvenile Court, Barbara A. Fedders

Faculty Publications

This Article identifies and analyzes features of the juvenile delinquency court that harm the people on whom children most heavily depend: their parents. By negatively affecting a child’s family—creating financial stress, undermining a parent’s central role in rearing her child, and damaging the parent-child bond—these parent-harming features imperil a child’s healthy growth and development. In so doing, the Article argues, they contravene the juvenile court’s stated commitment to rehabilitation.

In juvenile court, fees and fines are assessed against parents, who also often must incur lost wages to comply with court orders. In addition, while youths of all economic backgrounds and …

Automated Legal Guidance At Federal Agencies, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

When individuals have questions about Federal benefits, services, and legal rules, they are increasingly seeking help from government chatbots, virtual assistants, and other automated tools. Current forms of automated legal guidance platforms include the U.S. Citizenship and Immigration Services’s “Emma,” the U.S. Department of Education’s “Aidan,” and the Internal Revenue Service’s “Interactive Tax Assistant.” Most scholars who have studied artificial intelligence and Federal government agencies have not focused on the government’s use of technology to offer guidance to the public. The absence of scholarly attention to automation as a means of communicating government guidance is an important gap in the …

Unleashing Pets From Dead-Hand Control, Kaity Emerson, Kevin Bennardo

Faculty Publications

Many pet owners feel strongly about their animals. Some feel so strongly that they desire their pets to accompany them to the grave. This Article addresses the validity of pet euthanasia provisions in decedents’ wills.

Pet owners generally have the legal power to humanely euthanize their pets. In addition, the primary focus of the law of wills is to effectuate the wishes of the decedent. These two facts seem to counsel in favor of carrying out a testamentary instruction to humanely euthanize a companion animal. Yet courts generally decline to enforce pet euthanasia provisions whenever an objection is raised by …

Superior Status: Relational Obstacles In Law To Racial Justice And Lgbtq Equality, Osamudia James

Faculty Publications

Animus and discrimination are the two legal lenses through which in-equality is typically assessed and understood. Insufficient attention, however, is paid to the role of status in animating inequality, even in landmark cases thought to be equality-promoting. More than an animating force between intractable po-litical conflicts, status also informs the development of equality law in the United States. When courts, advocates, and policymakers affirm, ignore, miss, or con-cede to status hierarchies instead of dismantling them, those groups that perceive a decrease in their status relative to others will only use “equality-promoting” doctrine to rebalance status hierarchy in their favor. Public …

“Shall Not Be Construed”: Reversal Of Supreme Court Decisions By Constitutional Amendment, John V. Orth

Faculty Publications

This Article considers the way in which small changes of wording can signal large changes of thought in the United States Constitution (Constitution). Drawing upon examples found in the Eleventh and Sixteenth Amendments, and in the Reconstruction Amendments, the Article shows that there are two ways to reverse a U.S. Supreme Court decision by constitutional amendment. The first type of amendment may reverse the decision by instructing the Court on the proper construction of a particular provision, as in the case of the Eleventh Amendment. The second means involves reversing the decision by altering the constitutional provision in question, rather …

The Inequity Of Informal Guidance, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

The coexistence of formal and informal law is a hallmark feature of the U.S. tax system. Congress and the Treasury enact formal law, such as statutes and regulations, while the Internal Revenue Service offers the public informal explanations and summaries, such as taxpayer publications, website frequently asked questions, virtual assistants, and other types of taxpayer guidance. Throughout the COVID-19 pandemic, the IRS increased its use of informal law to help taxpayers understand complex emergency relief rules implemented through the tax system.

In contrast to many other legal scholars who have examined important administrative law issues regarding informal tax guidance, in …

Racial Capitalism In The Civil Courts, Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg, Lauren Sudeall

Faculty Publications

This Essay explores how civil courts function as sites of racial capitalism. The racial capitalism conceptual framework posits that capitalism requires racial inequality and relies on racialized systems of expropriation to produce capital. While often associated with traditional economic systems, racial capitalism applies equally to nonmarket settings, including civil courts.

The lens of racial capitalism enriches access to justice scholarship by explaining how and why state civil courts subordinate racialized groups and individuals. Civil cases are often framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants enter the civil legal system involuntarily, and the state …

Saying The Quiet Parts Out Loud: Teaching Students How Law School Works, Alexa Z. Chew, Rachel Gurvich

Faculty Publications

The summer of 2020 was an inflection point for legal education’s relationship with racial and other inequities. After Minneapolis police murdered George Floyd, faculty, administrators, and students spoke out with increased urgency about the need to address race in law school curricula. For example, professors sought to give race context to cases found in law school casebooks by not presenting judicial opinions as neutral statements of the law. Many law schools, including our own, formally (re)dedicated themselves to helping students recognize and analyze structural inequalities and how the law perpetuates them.

Law schools focused on what their faculty and graduates …

Eviction Courts, Kathryn A. Sabbeth

Faculty Publications

This Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact.

The Article identifies ten groups of laws that structure critical design features of eviction courts: (1) filing fee statutes that make …

Policing The Polity, Eisha Jain

Faculty Publications

The era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full …

Other Judges' Cases, Melissa B. Jacoby

Faculty Publications

After documenting the role of mediating judges in today’s federal courts, Part I considers both reform narratives and power narratives explaining their use. To add context and specificity, Part I presents case studies based on original research. While these examples have unusual features, they illustrate the breadth of potential mediating judge activities and offer more of a citable record than can be found for other cases. The first involves the largest municipal bankruptcy in American history. 10 The second starts with the bankruptcy of a founder of a nationwide assisted living facility enterprise, who also solicited retirees to make “can’t …

Implicit Legislative Bias: The Case Of The Mortgage Interest Deduction, Kathleen Delaney Thomas, Leigh Z. Osofsky

Faculty Publications

The home mortgage interest deduction is over 100 years old. The deduction has been subject to increasing and, at times, withering criticism from commentators. Scholars have argued that the mortgage interest deduction may be a particularly ineffective and regressive way to subsidize homeownership. Other scholars have made the important point that the mortgage interest deduction has a disparate racial impact: homeowners are disproportionately white, so the deduction disproportionately benefits white people at the expense of people of color. Yet, the mortgage interest deduction has retained remarkable and costly staying power despite all the critiques.

How has the mortgage interest deduction …

Beyond The Marketplace Of Ideas: Bridging Theory And Doctrine To Promote Self-Governance, David S. Ardia

Faculty Publications

This article proceeds in three parts. Part I examines the longstanding debate over the First Amendment’s purpose and explains why the marketplace of ideas theory has come to dominate both judicial and public understanding of the First Amendment’s speech and press clauses. The marketplace theory’s ascendancy, however, has proven to be problematic. It rests on an overly simplified account of public discourse, treating speech as merely a commodity that can be allocated through market-style transactions, and it has come to embody an extreme version of libertarian economic thinking that is undermining the very democratic processes the First Amendment was intended …

Automated Video Interviewing As The New Phrenology, Ifeoma Ajunwa

Faculty Publications

This Article deploys the new business practice of automated video interviewing as a case study to illuminate the limitations of traditional employment antidiscrimination laws. Employment antidiscrimination laws are inadequate to address the unlawful discrimination attributable to emerging workplace technologies which gatekeep employment opportunities. The Article maintains that the practice of automated video interviewing is based on shaky or unproven social scientific principles that disproportionately impact racial minorities. In this way, the practice of automated video interviewing is analogous to the pseudoscience of phrenology, which enabled societal and economic exclusion through the legitimization of eugenicist and racist attitudes. After parsing the …

Restoring Faith In Military Justice, Eleanor T. Morales, John W. Brooker

Faculty Publications

The military justice system was designed to maintain good order and discipline, strengthen national security, and achieve justice. After military leaders failed to effectively address the sexual assault crisis within the armed forces, Congress lost faith in this system. In response, Congress enacted sweeping legislative reform, transferring prosecutorial discretion for the most serious offenses from commanders to military lawyers. Unlike civilian prosecutions, most decisions within the military justice system have overwhelmingly favored one consideration: maintaining good order and discipline in the unit. While Congress’s reforms change who makes the decisions in many cases, they will have little effect unless military …

The Mystery Of The Missing Choice-Of-Law Clause, John F. Coyle

Faculty Publications

There is widespread agreement among experienced contract drafters that every commercial contract should contain a choice-of-law clause. Among their many virtues, choice-of-law clauses facilitate settlement and reduce litigation costs. While most modern contracts contain these provisions, some do not. In many instances, the absence of these clauses may be attributed to outdated forms, careless drafting, inattentive lawyers, or some combination of the three. In a few instances, however, it appears that sophisticated contract drafters purposely omit choice-of-law clauses from their agreements. If these clauses add value to a contract — and there is nearuniversal agreement that they do — then …

Covid-19 And The Perils Of Free-Market Parenting, Maxine Eichner

Faculty Publications

U.S. public policy has for decades rested on the expectation that parents will privately provide the cash and conditions their children need. This expectation is exceptional: most other wealthy countries’ public policies support children through a mix of public and private funds. The COVID-19 pandemic, however, radically changed U.S. policy. The severe economic dislocation that resulted led Congress to pass a series of measures that funneled trillions of public dollars to families and parents. Whether these measures should represent a temporary deviation from the nation’s free-market expectations during an unprecedented emergency or the first step in a long-term shift toward …

The Gender Gap In Academic Patenting, W. Michael Schuster, Miriam Marcowitz-Bitton, Deborah R. Gerhardt

Faculty Publications

The gender gap in academia has long been the focus of public discourse regarding the role of universities in promoting social values. In this study, we consider women’s participation in transferring knowledge from the academy to industry. A prominent model for such transfer is reflected in patent registration for inventions developed through scholarly research. And while academic patenting is a significant component of the professional activities of many faculty members, the extent to which women’s scientific discoveries are patented and commercialized has received relatively little attention.

The U.S. academy is a leader in science and a pioneer of technology transfer. …

How Impeachment Works, Michael J. Gerhardt

Faculty Publications

This Article rejects the common view of the two Trump impeachments as a constitutional debacle. It asserts, instead, that the federal impeachment process retains significant vitality as a mechanism for holding presidents accountable for misconduct in office. If we take a step back from the tiny set of presidential impeachment trials in American history and adopt a more panoramic view of their effects and connections to other disciplinary mechanisms for presidential misconduct, it is easier to see that presidential impeachments still have bite. In fact, they can and do cripple legacies and reputations, create permanent evidentiary records of presidential misconduct, …

Public Investment In Climate Resiliency: Lessons From The Law And Economics Of Natural Disasters, Donald T. Hornstein

Faculty Publications

This Article takes issue with an important claim in the public choice and climate disaster literature: that American political markets will not allow appropriate investments in disaster preparedness and prevention, even when those investments are cost-benefit bargains. The claim is significant because the costs of climate disasters in the twenty-first century are estimated to be in the trillions of dollars due to the presence of legacy greenhouse gases in the atmosphere. Thus, even assuming a sustained, successful global campaign to limit future greenhouse gases, the ingredients for decades of droughts, wildfires, storms, and floods are already locked into the atmosphere. …

White Injury And Innocence: On The Legal Future Of Antiracism Education, Osamudia James

Faculty Publications

In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased visibility of antiracism education engendered sustained critique and opposition, resulting in executive orders prohibiting its adoption in the federal government, the introduction or adoption of over sixty state-level bills attempting to control how race is taught in schools, and a round of lawsuits challenging antiracism education as racially discriminatory. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, …

Nonmarriage And Choice In South Africa And The United States, Holning Lau, Suzanne A. Kim

Faculty Publications

In this Article, we examine three insights about free choice that emerge from studying the development of South Africa’s law of nonmarriage. First, South African jurisprudence advances understandings of nonmarriage as a valid choice. Unlike U.S. jurisprudence, which has been accused of overprivileging marriage and demeaning nonmarriage, South African jurisprudence draws attention to people’s legitimate reasons for choosing not to marry and the dignity interests attached to that choice. South African law helps to broaden the imagination of what is possible when nonmarriage is respected as a valid choice.

Second, South African jurisprudence illuminates the fact that the choice whether …

Pricing Plastics Pollution: Lessons From Three Decades Of Climate Policy, Jonas J. Monast, John Virdin

Faculty Publications

Plastic is now the most widely used human-made substance on the planet, and plastics pollution impacts marine and coastal ecosystems, local economies, and human health. Local and national governments are increasingly responding by banning plastic bags and other specific plastic products, taxing the use of certain plastics, and improving waste management and recycling. These are important steps, but alone they will not result in a meaningful reduction in cumulative plastics pollution or encourage development of sufficient alternatives to plastic. Additional policy measures are necessary.

This Article argues that climate change and plastic pollution share numerous similarities, and these similarities allow …

Not Child’S Play: A Constitutional Game Of Pass The Story In Dobbs, Shurtleff, And Kennedy, John V. Orth, Paul T. Babie

Faculty Publications

This Article suggests that in the effort to find fixed standards for rights, working with vague, indeterminate, silent text, the Supreme Court engages in a constitutional game of pass the story. No one outcome concludes the story; it merely adds another chapter, to which the next set of judges will add their own installment. The quest for standards never ends. The Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Shurtleff v. City of Boston, and Kennedy v. Bremerton School District are merely the latest installments in stories that began with the founding. And as with any such story, …

Preemption Of Police Reform: A Roadblock To Racial Justice, Rick Su, Marissa Roy, Nestor Davidson

Faculty Publications

In 2020, nearly half of the largest U.S. cities reoriented municipal spending priorities by directing money from their police budgets to social services; for many cities, these budgetary changes reversed decades of increases. Cities began implementing additional police reforms as well: New York City became the first municipality to end qualified immunity for police officers while San Francisco shifted to deploying crisis response teams, rather than police officers, to respond to mental health calls.

Instead of supporting these critical reforms, some states targeted cities that prioritized racial justice by preempting those cities’ ability to engage in meaningful change. In the …

A Silver Lining To Russia’S Sanctions-Busting Clause, Michael Bradley, Irving De Lira Salvatierra, W. Mark C. Weidemaier, Mitu Gulati

Faculty Publications

In 2018, Russia began inserting an unusual clause into euro and dollar sovereign bonds, seemingly designed to circumvent future Western sanctions. The clause worked by letting the government pay in roubles if sanctions cut off access to dollar and euro payment systems. The clause received little scrutiny at the time, perhaps because Russia used a state-owned bank, rather than a global investment bank, as underwriter. But with the invasion of Ukraine and the ensuing sanctions imposed by the United States and other governments, the relevance of the clause has become clear. This Essay examines how the market reacted to the …

Racialized Religious School Segregation, Erika Wilson

Faculty Publications

Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education.

Dreams Interrupted: A Mixed-Methods Research Project Exploring Latino College Completion, Kate Sablosky Elengold, Jess Dorrance, Amanda Martinez, Patricia Foxen, Paul Mihas

Faculty Publications

Latino students are entering college at record numbers; Today, almost 3.8 million Latinos are enrolled in colleges and universities across the United States. Yet Latino students trail their White and Asian peers in attaining college degrees. The overall completion gap exceeds ten percentage points.

Although scholars and advocates have pointed to several different barriers facing Latino college students, a persistent narrative focuses on Latino students’ aversion to taking on student debt. In response, researchers at the University of North Carolina-Chapel Hill and UnidosUS undertook a multi-year mixed-method study to test and interrogate whether and how debt aversion affects Latino college …

Teaching Leadership In American Law Schools: Why The Pushback?, Martin H. Brinkley

Faculty Publications

In September 2020, I participated in a panel discussion with several other deans at Baylor Law School’s 2020: Vision for Leadership Conference. The subject was “Leadership Programming in Law Schools.”

My assignment was to account for why teaching leadership might meet with resistance from inside law schools, despite widespread agreement that lawyer-leaders have always been and are always likely be critical to the survival of American democracy, as well as our fellow citizens’ hopes of living meaningful, satisfying lives.

This essay endeavors to memorialize and expand on the views I expressed on the panel.

The "Innocence" Of Bias, Osamudia James

Faculty Publications

No abstract provided.