Law Commons^™

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 …

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 …

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 …

Abandoning Predictions, Kevin Bennardo

Faculty Publications

Analytical documents are a hallmark of the law school legal writing curriculum and of the practice of law. In these documents, the author applies a body of law to a set of facts and reaches a conclusion. Oftentimes, that conclusion is phrased as a prediction (“The court is likely to find . . .”), and many academics even refer to analytical documents as “predictive” document types. If that describes you, my goal is to convince you to change your ways. Instead of conceptualizing legal analysis as “predictive,” we should simply conceptualize it as analytical. Rather than writing predictive conclusions to …

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 …

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 …

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 …

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 …

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

Faculty Publications

No abstract provided.

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. …

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. …

Consumer Remedies For Civil Rights, Kate Sablosky Elengold

Faculty Publications

No abstract provided.

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 …

Lenders' Roles And Responsibilities In Sovereign Debt Markets, Susan Block-Lieb, W. Mark C. Weidemaier

Faculty Publications

Academic and policy debates about the multi-trillion-dollar sovereign debt markets presume these markets are unique. The reason is that sovereigns differ from other borrowers. To the extent observers look elsewhere for guidance, they turn to corporate debt as a comparison. For example, official actors have repeatedly intervened in sovereign debt markets by prodding market participants to draft loan contracts that simulate aspects of corporate bankruptcy. We argue that the conventional view of sovereign debt—though useful to a point—has substantially and unjustifiably limited the academic and policy agenda. Rather than dwell on the unique characteristics of sovereign borrowers, we examine the …

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: …

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.

From Arcades To Online: Updating Copyright To Accommodate Viodeo Game Streaming, Nicholas Robinson

North Carolina Journal of Law & Technology

No abstract provided.

Bioethics Beyond The Biosphere: Using Human Subject Medical Research To Chart Out Regulation And Liability For Health Risks In Outer Space, Ashle M. Page

North Carolina Journal of Law & Technology

Humans may be living in outer space sooner than we think. Because of the elevated potential for detrimental effects to human health in space, ethical standards must be established prior to the widespread formation of human space settlements. This article offers a framework for analyzing the bioethics of humans in space by analogizing the uncertainty in establishing a precautionary and liability framework for health risks in space by using models for medical experimentation on Earth.

An exploration of conventional bioethics principles, international guidelines for medical research, and regulations in the United States will parallel a precautionary framework for ensuring protections …

When One Word Changes Everything: How The Unitary Concept Dismantles The Basis Of Terry Frisks, Aaron D. Davison

North Carolina Law Review

No abstract provided.

Remedial Chevron, F. Andrew Hessick

North Carolina Law Review

No abstract provided.

Bank Sales And Bake Sales: Section 75-1.1 And The Hajmm Legacy, Robert T. Lucas Iv

North Carolina Law Review

No abstract provided.

Contents, North Carolina Law Review

North Carolina Law Review

No abstract provided.

The Preferred Preferences In Employment Discrimination Law, Emily Gold Waldman

North Carolina Law Review

No abstract provided.

Front Matter, North Carolina Journal Of Law & Technology

North Carolina Journal of Law & Technology

No abstract provided.

Juries In U.S. Patent Cases: A Comparative Portrait Of The Boundaries Of Democracy, M. Neil Browne, Nancy K. Kubasek, Alex Q. Jacobs

North Carolina Journal of Law & Technology

“It is clear that juries will necessarily differ in ‘competence,’ but it is at best incongruous to suggest that a society that sends its citizens routinely into space could never produce a jury competent to determine a case some judge might consider too ‘complex’ for people with ‘common experience’ to decide.”

Subject Matter Eligibility And Functional Claiming In Software Patents, Michael Xun Liu

North Carolina Journal of Law & Technology

Subject matter eligibility and functional claiming are considered separate doctrines in patent law. Conceptually, subject matter eligibility relates to the types of ideas that can be patented, whereas limits on functional claiming constrain how patentees can claim their inventions. In practice, however, patents that recite functional claims are also more likely to be invalidated for failing to recite patentable subject matter. This trend is especially prevalent in the software field, where courts often hold the function or end result of a computer program represents an unpatentable abstract idea.

Critics argue this judicial approach to software patents improperly conflates “what is …

Carpenter V. United States: A New Era For Protecting Data Generated On Personal Technology, Or A Mere Caveat?, Aaron L. Dalton

North Carolina Journal of Law & Technology

In deciding Carpenter, a majority of United States Supreme Court Justices recognized that, at a fundamental level, historical cell-site location information (CSLI) differs from other categories of business records in terms of deserving Fourth Amendment protection. However, the majority’s opinion is unclear about the precise source of this distinction, and about how, or whether, to protect other data generated from personal technology in the future. Although the majority opinion purports to be limited to CSLI, this narrow scope is not in the best interest of consumers. At best, Carpenter presents the opportunity to establish a predictable and comprehensive system for …

Parametric Payouts And Evironmental Conservation: How A Tech-Based Insurance Policy Could Pave The Way For Economically Viable Conservation Efforts, Hannah M. Petersen

North Carolina Journal of Law & Technology

This year, the state government of Quintana Roo, Mexico, the Nature Conservancy, and the reinsurance company, Swiss Re, created the first parametric insurance policy to be taken out on a natural resource; the Mesoamerican Reef. This innovative policy creates a technology-based approach to establishing economically viable environmental conservation by assigning a quantitative value to a vulnerable resource that protects the $10 billion tourism industry in the Caribbean. It also creates an entirely new and unregulated subsector of the insurance field. Although this type of policy sets the stage for innovative environmental conservation efforts, parameters and payout mechanisms might not align …