Law Commons^™

The Great Unfulfilled Promise Of Tinker, Mary-Rose Papandrea

Faculty Publications

The most famous line from Tinker v. Des Moines Independent School District is that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 393 U.S. 503, 506. People who know only this line from Tinker—and the victory it gave to the Vietnam-war protesting students—likely think of it as an incredibly speech-protective decision. It turns out that although Tinker contains lofty language about the importance of student speech rights, it sowed the seeds for the erosion of those very same rights. In the past …

(Under)Enforcement Of Poor Tenants' Rights, Kathryn A. Sabbeth

Faculty Publications

Millions of tenants in the United States reside in substandard housing conditions ranging from toxic mold to the absence of heat, running water, or electricity. These conditions constitute blatant violations of law. The failure to maintain housing in habitable condition can violate the warranty of habitability, common law torts, and, in some cases, consumer protection and antidiscrimination statutes. Well-settled doctrine allows for tenants’ private rights of action and government enforcement. Yet the laws remain underenforced.

This Article demonstrates that the reason for the underenforcement is that the tenants are poor. While the right to safe housing extends to all tenants, …

"Surviving Through Together": Hunger, Poverty And Persistence In High Point, North Carolina, Heather Hunt, Gene R. Nichol

Faculty Publications

No abstract provided.

The Myth Of Common Law Crimes, Carissa Byrne Hessick

Faculty Publications

Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an important role in modern American criminal law, and to the extent that it has been displaced by statutes, our justice system has not improved. Criminal statutes regularly delegate questions about the scope of criminal law to prosecutors, and judges have failed to serve as a check on that power. …

Future Work, Jeffrey M. Hirsch

AI-DR Collection

The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the …

Algorithms At Work: Productivity Monitoring Applications And Wearable Technology As The New Data-Centric Research Agenda For Employment And Labor Law, Ifeoma Ajunwa

AI-DR Collection

Recent work technology advancements such as productivity monitoring platforms and wearable technology have given rise to new organizational behavior regarding the management of employees and also prompt new legal questions regarding the protection of workers’ privacy rights. In this Essay, I argue that the proliferation of productivity monitoring applications and wearable technologies will lead to new legal controversies for employment and labor law. In Part I, I assert that productivity monitoring applications will prompt a new reckoning of the balance between the employer’s pecuniary interests in monitoring productivity and the employees’ privacy interests. Ironically, such applications may also be both …

Bias In, Bias Out, Sandra G. Mason

AI-DR Collection

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies …

Communication Addressing North Carolina’S Role In The Cia’S Extraordinary Rendition And Torture Program And Request For Coordinated Measures Including State Visit, Investigations, And International Condemnation, Deborah M. Weissman

Faculty Publications

No abstract provided.

The Prosecutors And Politics Project Study Of Campaign Contributions In Prosecutorial Elections, Carissa B. Hessick, Prosecutors And Politics Project

Faculty Publications

The Prosecutors and Politics Project has compiled a database that identifies who contributed to prosecutor elections and the amount of their donations. Campaign contribution information is often publicly available, but the format of that information varies from state to state, the information is often scattered across multiple sources and the information is sometimes incomplete. The Project has compiled this fragmented data into a single nationwide database that will allow sustained study about who contributes to prosecutor campaigns and the amount of contributions.

This report summarizes and analyzes some of the data from the database. The report will be updated as …

Report On Reparations For Victims Of Extraordinary Rendition And Torture, Deborah M. Weissman

Faculty Publications

No abstract provided.

Owning Colors, Deborah R. Gerhardt, John Mcclanahan Lee

Faculty Publications

Part I of this article explores how different disciplines have contended with understanding color as a signifier of embodied and referential meaning. As a path towards understanding embodied meaning, we summarize what scientific literature teaches about the process behind color vision and biological responses to different color wavelengths. We then turn to the referential or learned meaning of colors. The scholarly literature from psychology, art, religious history, marketing, political science, and behavioral economics overwhelmingly supports the proposition that color sends varied and contradictory expressive signals that are elastic over time and cultural context. Given the many possible and contradictory messages …

Quasi-Sovereign Standing, F. Andrew Hessick

Faculty Publications

This essay proceeds in five Parts. Part I describes the three strands of state standing. It focuses particularly on parens patriae standing to assert quasi-sovereign interests. Part II criticizes the parens patriae framework. It argues that states hold quasi-sovereign interests and accordingly should have direct standing to assert them. Part III argues that states should be able to assert these interests against the United States because of the unique role that states play in our federal system. Part IV argues that recognizing state standing to bring these suits is consistent with the separation of powers theories underlying standing doctrine. Part …

The Interior Structure Of Immigration Enforcement, Eisha Jain

Faculty Publications

Deportation dominates immigration policy debates, yet it amounts to a fraction of the work the immigration enforcement system does. This Article maps the interior structure of immigration enforcement, and it seeks to show how attention to its structure offers both practical and conceptual payoffs for contemporary enforcement debates. First, deportation should not be conceptualized as synonymous with immigration enforcement; rather, it is merely the tip of a much larger enforcement pyramid. At the pyramid’s base, immigration enforcement operates through a host of initiatives that build immigration screening into common interactions, such as with police and employers. Second, this enforcement structure …

North Carolina And The Genius Of The Common Law, John V. Orth

Faculty Publications

No abstract provided.

Sixth Amendment Sentencing After Hurst, Carissa B. Hessick, W. W. Berry

Faculty Publications

The U.S. Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized. At times the doctrine has expanded, invalidating sentencing practices across the country, and at times it has contracted, allowing restrictions on judicial sentencing discretion based on findings that are not submitted to a jury. Hurst represents another expansion of the doctrine. Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a …

Opioid Policing, Barbara A. Fedders

Faculty Publications

This Article identifies and explores a new, local law enforcement approach to alleged drug offenders. Initially limited to a few police departments, but now expanding rapidly across the country, this innovation takes one of two primary forms. The first is a diversion program through which officers refer alleged offenders to community-based social services rather than initiate criminal proceedings. The second form offers legal amnesty as well as priority access to drug detoxification programs to users who voluntarily relinquish illicit drugs. Because the upsurge in addiction to — and death from — opioids has spurred this innovation, I refer to it …

“I Was On My Own:” Reconsidering The Regulatory Framework For Family Support During College, Julia Barnard, Jess Dorrance, Kate Sablosky Elengold, David Ansong

Faculty Publications

No abstract provided.

Was It Worth It: The Complexities And Contradiction In Assessing The Value Of Higher Education, Kate Sablosky Elengold, Jess Dorrance, Julia Barnard, David Ansong

Faculty Publications

No abstract provided.

"Catch A Falling Star": The Bluebook And Citing Blackstone's Commentaries, John V. Orth

Faculty Publications

Sir William Blackstone’s four-volume Commentaries on the Laws of England, first published in 1765–1769, is one of the most frequently cited books in the history of the common law. In America, from the eighteenth-century debates over ratification of the U.S. Constitution to twenty-first century U.S. Supreme Court decisions, Blackstone has been repeatedly recognized as an authoritative source for English law. Generations of editors have kept his book continually in print, regularly updating it with scholarly notes. So many editions of the Commentaries appeared over the years that a special citation form emerged. From the first edition of the Bluebook …

The Modern Case For Withholding, Kathleen Delaney Thomas

Faculty Publications

Who is responsible for paying taxes to the government? Currently, the answer depends on one’s employment status. Employees enjoy the luxury of not having to think about tax remittance during the year because their employers withhold taxes from their paychecks. Non-employees, on the other hand, face a much more onerous system. They must keep track of and budget for taxes during the year, make quarterly remittances to the IRS, and may face penalties for failing to do so. Although this regime has been in place for many decades, there are several reasons why reform may be in order.

First, the …

Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Inniss, Bridget J. Crawford, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia James, Keisha Lindsay

Faculty Publications

No abstract provided.

Unclaimed Personal Property And The State’S Liability For Accrued Interest: A Comparative Lesson From The United States, John V. Orth

Faculty Publications

No abstract provided.

A Masterclass In Trademark's Descriptive Fair Use Defense, Deborah R. Gerhardt

Faculty Publications

When judges decide trademark cases, they often must balance trademark rights against interests in free expression. The defense known as “classic” or “descriptive” fair use embraces the foundational themes that make trademark conflicts so compelling. By design, the defense pits fair competition and free speech against a mark owner’s right to control its story, reputation, and values. The outcome of this tug of war may be hard to predict. It turns on consumer perception, and therefore, generally raises questions of fact. But in Mars, Inc. v. J.M. Smucker Co., this fact intensive question was decided as a matter of law. …

Stylish Legal Citation, Alexa Z. Chew

Working Papers

Can legal citations be stylish? Is that even a thing? Yes, and this Article explains why and how. The usual approach to writing citations is as a separate, inferior part of the writing process, a perfunctory task that satisfies a convention but isn’t worth the attention that stylish writers spend on the “real” words in their documents. This Article argues that the usual approach is wrong. Instead, legal writers should strive to write stylish legal citations—citations that are fully integrated with the prose to convey information in a readable way to a legal audience.

Prominent legal style expert Bryan Garner …

Structural Rights And Incorporation, F. Andrew Hessick, Elizabeth Fisher

Faculty Publications

Under the selective incorporation doctrine, provisions in the Bill of Rights are applied against the states if they are fundamental to the American scheme of ordered liberty or deeply rooted in this nation’s history. By focusing solely on the importance of rights, this doctrine fails to account for the effect of incorporating a right on the states. This Article challenges this approach. It identifies a category of rights whose incorporation most deeply intrudes on state sovereignty. These rights do not simply create individual entitlements; they also have structural features by dictating which government institutions may exercise which government powers. These …

Constituencies And Control In Statutory Drafting: Interviews With Government Tax Counsels, Shuyi Oei, Leigh Z. Osofsky

Faculty Publications

Tax statutes have long been derided as convoluted and unreadable. But there is little existing research about drafting practices that helps us contextualize such critiques. In this Article, we conduct the first indepth empirical examination of how tax law drafting and formulation decisions are made. We report findings from interviews with government counsels who participated in the tax legislative process over the past four decades. Our interviews revealed that tax legislation drafting decisions are both targeted to and controlled by experts. Most counsels did not consider statutory formulation or readability important, as long as substantive meaning was accurate. Many held …

Consumer Protection After A Global Financial Crisis, Melissa B. Jacoby

Faculty Publications

Like other major events, the Global Financial Crisis generated a large and diffuse body of academic analysis. As part of a broader call for operationalizing the study of crises as policy shocks and resulting responses, which inevitably derail from elegant theories, we examine how regulatory protagonists approached consumer protection after the GFC, guided by six elements that should be considered in any policy shock context. After reviewing the introduction and philosophy of the Bureau of Consumer Financial Protection, created as part of the Dodd–Frank Act of 2010, we consider four examples of how consumer protection unfolded in the crises’ aftermath …

The Future Of Administrative Deference, F. Andrew Hessick

Faculty Publications

If one looks at how law affects day-to-day life, administrative law is arguably the most important area of law. Agencies make most laws and adjudicate most disputes. Despite its importance, administrative law is very unsettled. While the basic rules of tort and property law have not changed much over the past one hundred years, that is not the case for administrative law. There are still fights today over the scope of agency power and even the constitutionality of agency action.

Contracting Around The Hague Service Convention, John F. Coyle, Robin J. Effron, Maggie Gardner

Faculty Publications

When a plaintiff wishes to commence an action against a non-resident foreign defendant in an American forum, it may need to serve that defendant with process abroad. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention” or “Convention”) provides a mechanism for achieving that goal. Under the terms of this treaty — which has been ratified by 75 nations — each signatory is required to maintain a central authority that will serve process upon local defendants at the request of U.S. plaintiffs. In practice, however, the act of serving process …

Introduction: #Metoo In The Workplace, Jeffrey M. Hirsch

Faculty Publications

This symposium issue examines various impacts of the #MeToo movement in the workplace. “Me Too” was first coined in 1997 by Tarana Burke, who used the phrase as part of her work to help women like her, especially those of color, who had survived sexual violence. “Me Too” later became “#MeToo,” particularly after several famous actresses accused high-powered Hollywood producer Harvey Weinstein of sexual assault. The actions of Weinstein, as well as many of the numerous powerful men who subsequently faced similar accusations, involved sexual harassment and assault in a specific context: work. These high-ranking executives used their power over …