Law Commons^™

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 …

The New White Flight, Erika K. Wilson

Faculty Publications

White charter school enclaves — defined as charter schools located in school districts that are thirty percent or less white, but that enroll a student body that is fifty percent or greater white — are emerging across the country. The emergence of white charter school enclaves is the result of a sobering and ugly truth: when given a choice, white parents as a collective tend to choose racially segregated, predominately white schools. Empirical research supports this claim. Empirical research also demonstrates that white parents as a collective will make that choice even when presented with the option of a more …

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.

Termination Of Tenancy In Common By Adverse Possession: A Comparative Lesson From The United States, John V. Orth

Faculty Publications

No abstract provided.

Fructifying The First Amendment: An Asymmetric Approach To Constitutional Fact Doctrine, Amanda Reid

Faculty Publications

No abstract provided.

Safeguarding Fair Use Through First Amendment’S Asymmetric Constitutional Fact Review, Amanda Reid

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. …

Of Titles And Testaments: Reflections Of An American Reader Of The Adelaide Law Review, John V. Orth

Faculty Publications

From the point of view of an American lawyer, two Australian innovations in the law of property stand out: titles by registration and the dispensing power in the law of wills. Both originated in South Australia, and both are the subject of articles in the Adelaide Law Review. Both spread rapidly to other Australian states and throughout the Commonwealth. But in the United States, despite some early success, neither achieved widespread adoption. Readers of the Adelaide Law Review, who doubtless view titles by registration and the dispensing power as obvious improvements on earlier property law, may be surprised …

The Role Of Lawyers In Removing Economic Activity From State Supervision, W. Mark C. Weidemaier

Faculty Publications

Economic activity does not always depend on state-created law (to set the rules), state-funded courts (to resolve disputes), or state coercion (to enforce compliance). These well-known facts have motivated a large and inter-disciplinary literature spanning law, economics, history, sociology, anthropology, and other disciplines.

This short essay is prompted by Steven Ware’s Private Ordering and Commercial Arbitration, which appears elsewhere in this volume. Ware’s article is a thoughtful and persuasive reflection on the importance of Soia Mentschikoff to the voluminous literature on private ordering, as well as a call to recognize the importance of arbitration as a tool of self-governance. …

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 …

Consumer Remedies For Civil Rights, Kate Sablosky Elengold

Faculty Publications

No abstract provided.

Age Discrimination By Platforms, Ifeoma Ajunwa

Faculty Publications

This Article explores how platforms in the workplace (both social media and hiring platforms) might enable, facilitate, or contribute to age discrimination in employment. The Article starts with evidence of age discrimination on work platforms particularly with regard to design elements, such as the availability of age-related proxies. The article then describes how these platforms use practices that redline, cull, or dissuade older job applicants. It then presents the challenging legal issues raised by the mediation of discriminatory employment practices by an information intermediary in the form of a platform, notably the problems of meeting the burden of proof and …

The Investment Imperative, Kate Sablosky Elengold

Faculty Publications

This Article names and identifies the “investment imperative” as the widely-held belief that higher education is necessary to increase one’s financial prosperity and social standing in America. Increasingly, higher education policy has supported the investment imperative by shifting the benefit, burden, and risk of higher education from the public to the private consumer. This has resulted in a patchwork of laws that encourage education at any cost, primarily driven by personal debt, and without concomitant regulations that control for instructional quality.

Drawing on interdisciplinary scholarship, empirical studies, and original interviews with student loan borrowers across the country, this Article argues …

A Behavioral Economics View Of Judge Posner’S Contracts Legacy, Deborah R. Gerhardt

Faculty Publications

Legal analysis has not sufficiently adjusted by applying behavioral economic theory to contract law. This Article contributes to filling that gap by considering the following questions. How does the economic analysis of law account for irrational behavior? If our choices do not always result from linear, rational thinking, should we consider using behavioral economics to rethink our understanding of contract law? If we can agree that behavioral economics challenges the theoretical coherence of rational economic reasoning, should we view behavioral economics as a substitute or adjunct to law and economics? Given the explosion of work in behavioral economics that has …

Interpreting Forum Selection Clauses, John F. Coyle

Faculty Publications

Over the past half century, courts in the United States have developed canons of construction that they use exclusively to construe forum selection clauses. These canons play an important role in determining the meaning of these clauses and, by extension, whether litigation arising out of a particular contract must proceed in a given place. To date, however, these canons have attracted surprisingly little attention in the academic literature.

This Article aspires to fill that gap. It provides the first comprehensive taxonomy of the canons that U.S. courts use to construe forum selection clauses. These interpretive rules fall into four groups: …

Federalism Limits On Non-Article Iii Adjudication, F. Andrew Hessick

Faculty Publications

Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal …

Balancing Justice Needs And Private Property In Constitutional Takings Provisions: A Comparative Assessment Of India, Australia, And The United States, Krithika Ashok, Paul T. Babie, John V. Orth

Faculty Publications

This Article explores the relationship between justice needs and private property in the constitutional takings provisions of the Indian, Australian, and American constitutions. Building upon established scholarship, it develops a theoretical framework within which to consider the way in which a state balances the requirement to provide minimal levels of justice for its citizens through the re-distribution of goods and resources with the need to protect the private property of individuals. We summarize this framework in what we refer to as the “Justice Needs-Protection of Private Property Continuum.” Using the framework developed, the Article provides an outline of the takings …

Citation Stickiness, Kevin Bennardo, Alexa Z. Chew

Faculty Publications

This Article is an empirical study of what we call citation stickiness. A citation is sticky if it appears in one of the parties’ briefs and then again in the court’s opinion. Imagine that the parties use their briefs to toss citations in the court’s direction. Some of those citations stick and appear in the opinion—these are the sticky citations. Some of those citations don’t stick and go unmentioned by the court—these are the unsticky ones. Finally, some sources were never mentioned by the parties yet appear in the court’s opinion. These authorities are endogenous—they spring from the court itself. …

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 …

Electricity Competition And The Public Good: Rethinking Markets And Monopolies, Jonas J. Monast

Faculty Publications

The United States electricity sector is engaged in a long-term experiment regarding the proper role of market competition. Many states that transitioned to competitive electricity markets in the early 2000s are again reconsidering the relationship between market competition and public policy goals. Low natural gas prices, falling costs of renewable energy and energy storage, and improvements in efficiency are causing early retirements of coal and nuclear power plants and thus affecting environmental policy goals and economic interests. States that continue to rely on monopoly utilities for electricity are also reconsidering the role of competition, but from a different angle. Rather …

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.