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Articles 1 - 19 of 19
Full-Text Articles in Law
Ensuring An Exemplary Judiciary Workplace: An Alternative To A Mandatory Reporting Requirement For Judges, Arthur D. Hellman
Ensuring An Exemplary Judiciary Workplace: An Alternative To A Mandatory Reporting Requirement For Judges, Arthur D. Hellman
Testimony
In December 2017, the Director of the Administrative Office of the United States Courts, responding to a request from Chief Justice Roberts, formed a Working Group to recommend measures “to ensure an exemplary workplace for every judge and every court employee.” The Working Group issued its report in June 2018. On October 30, 2018, two committees of the Judicial Conference of the United States, the administrative policy-making body of the federal judiciary, held a hearing on proposed amendments to the Rules for Judicial-Conduct and Judicial-Disability Proceedings and the Code of Conduct for United States Judges. Both sets of proposed amendments …
Comments On Proposed Amendments To The Rules For Judicial-Conduct And Judicial-Disability Proceedings, Arthur D. Hellman
Comments On Proposed Amendments To The Rules For Judicial-Conduct And Judicial-Disability Proceedings, Arthur D. Hellman
Testimony
In late 2017, prominent Ninth Circuit Judge Alex Kozinski was accused of engaging in sexual harassment and other misconduct over a long period during his tenure as a judge. Judge Kozinski resigned, but the controversy continued. The Director of the Administrative Office of the United States Courts, responding to a request from Chief Justice Roberts, formed a Working Group to recommend measures “to ensure an exemplary workplace for every judge and every court employee.” The Working Group issued its report in June 2018.
In September 2018, the Committee on Judicial Conduct and Disability (Conduct Committee) of the Judicial Conference of …
Written Testimony Of Philip Hackney For The Hearing On Oversight Of Nonprofit Organizations: A Case Study On The Clinton Foundation (House Of Representatives Committee On Oversight, December 13, 2018), Philip Hackney
Testimony
This is written testimony offered to the House Committee on Oversight's Subcommittee on Government Operations on December 13, 2018: Our nation has tasked the IRS with the large and complex responsibility for regulating the nonprofit sector, but has failed to provide the IRS with resources commensurate with that task. This is important work. Nonprofits constitute a large and growing part of our economy, and they are granted a highly preferential tax status. An organization that abuses that preferential status will obtain a significant and unfair advantage over the organizations and individuals who play by the rules. If we are to …
Tenure Redux, Jacqueline D. Lipton
Tenure Redux, Jacqueline D. Lipton
Articles
This essay is a reflection on some of the questions that arose during the author's tenure process that are likely pertinent to others on the tenure track today particularly with respect to questions about writing style in tenure pieces, and on whether early scholars should focus on general law reviews or specialty journals--depending on their areas of expertise--or a combination of both. It also reflects on choice of subject matter for tenure work, and whether some of that work may or may not stand the test of time, as well as on differences between the U.S. legal scholarship process and …
The Technologies Of Race: Big Data, Privacy And The New Racial Bioethics, Christian Sundquist
The Technologies Of Race: Big Data, Privacy And The New Racial Bioethics, Christian Sundquist
Articles
Advancements in genetic technology have resurrected long discarded conceptualizations of “race” as a biological reality. The rise of modern biological race thinking – as evidenced in health disparity research, personal genomics, DNA criminal forensics, and bio-databanking - not only is scientifically unsound but portends the future normalization of racial inequality. This Article articulates a constitutional theory of shared humanity, rooted in the substantive due process doctrine and Ninth Amendment, to counter the socio-legal acceptance of modern genetic racial differentiation. It argues that state actions that rely on biological racial distinctions undermine the essential personhood of individuals subjected to such taxonomies, …
Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand
Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand
Articles
In June, 2017, the Wuhan Intermediate People's Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and …
An Invitation Regarding Law And Legal Education, And Imagining The Future, Michael J. Madison
An Invitation Regarding Law And Legal Education, And Imagining The Future, Michael J. Madison
Articles
This Essay consists of an invitation to participate in conversations about the future of legal education in ways that integrate rather than distinguish several threads of concern and revision that have emerged over the last decade. Conversations about the future of legal education necessarily include conversations about the future of law practice, legal services, and law itself. Some of those start with the somewhat stale questions: What are US law professors doing, what should they be doing, and why? Those questions are still relevant and important, but they are no longer the only relevant questions, and they are not the …
Doctrinal Reasoning As A Disruptive Practice, Jessie Allen
Doctrinal Reasoning As A Disruptive Practice, Jessie Allen
Articles
Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.
Critical Race Ip, Anjali Vats, Deidre A. Keller
Critical Race Ip, Anjali Vats, Deidre A. Keller
Articles
In this Article, written on the heels of Race IP 2017, a conference we co-organized with Amit Basole and Jessica Silbey, we propose and articulate a theoretical framework for an interdisciplinary movement that we call Critical Race Intellectual Property (Critical Race IP). Specifically, we argue that given trends toward maximalist intellectual property policy, it is now more important than ever to study the racial investments and implications of the laws of copyright, trademark, patent, right of publicity, trade secret, and unfair competition in a manner that draws upon Critical Race Theory (CRT). Situating our argument in a historical context, we …
Property Musings At The U.S.-Mexico Border, Gerald S. Dickinson
Property Musings At The U.S.-Mexico Border, Gerald S. Dickinson
Articles
President Donald J. Trump issued an Executive Order calling for “a physical wall on the southern border” of the United States in January, 2017. In his address before Congress, the President stated, “[W]e will soon begin the construction of a great wall along our southern border.” The political response to the Executive Order has been swift. Representative Lamar Smith of Texas views the Executive Order as a testament to the President “honoring his commitment” to immigration enforcement. Senator Ron Johnson of Wisconsin favorably compares the border mandates in Israel and Egypt as successful examples of how to mitigate illegal immigration. …
A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew
A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew
Articles
The centuries-old conception of judges and arbitrators as highly predictable and objective is being dismantled. In its place, a much more textured, complicated, and challenging understanding of legal decision-making is being constructed. New research on “Motivated Cognition” demonstrates that judges and arbitrators are more human than mechanical, pouring themselves – and the cultural and institutional contexts within which they act – into their decision making. This article extends the emerging model of Motivated Cultural Cognition, a form of Motivated Cognition, to the global stage, investigating arbitration of business disputes between two world-powers: United States and China. Through a first-of-its-kind empirical …
Bundling Justice: Medicaid's Support For Housing, Mary Crossley
Bundling Justice: Medicaid's Support For Housing, Mary Crossley
Articles
Achieving safe and stable housing presents a profound and ongoing challenge for many people living in poverty. The challenges include housing that is substandard or unaffordable and continuing risks of eviction. For a growing number, these challenges prove too much, and they become homeless. In addition, housing-related challenges that are part of daily life for many poor people can influence their physical and mental health. Increased attention to the health impacts of inadequate, insecure, and unaffordable housing has prompted some – including public health experts, physicians, and sociologists studying housing – to urge that housing issues, and homelessness in particular, …
Ascertainability: Prose, Policy, And Process, Rhonda Wasserman
Ascertainability: Prose, Policy, And Process, Rhonda Wasserman
Articles
One of the most hotly contested issues in class action practice today is ascertainability – when and how the identities of individual class members must be ascertained. The courts of appeals are split on the issue, with courts in different circuits imposing dramatically different burdens on putative class representatives. Courts adopting a strict approach require the class representative to prove that there is an administratively feasible means of determining whether class members are part of the class. This burden may be insurmountable in consumer class actions because people tend not to save receipts for purchases of low-cost consumer goods, like …
Pragmatism, Pragtivism, And Private Environmental Governance, Joshua Galperin
Pragmatism, Pragtivism, And Private Environmental Governance, Joshua Galperin
Articles
This essay is an edited version of a talk presented at the 2017 J.B. & Maurice C. Shapiro Environmental Law Symposium on Private Environmental Governance at the George Washington University. It is adapted from a longer article entitled Trust Me, I’m A Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism, in 42 Colum. J. Envtl. L. 425 (2017).
Board Rooms And Jail Cells- Assessing Ngo Approaches To Private Environmental Governance, Joshua Galperin
Board Rooms And Jail Cells- Assessing Ngo Approaches To Private Environmental Governance, Joshua Galperin
Articles
Staff of the Nature Conservancy often find themselves in corporate board rooms. Staff of Greenpeace often find themselves in jail cells. The Nature Conservancy (TNC) prides itself on its non-confrontational, collaborative deal making, partnering closely with corporations like chemical giant Dow and agricultural lightning rod Monsanto. Both Dow and Monsanto, in fact, are members of TNC’s Business Council along with the likes of BP, Shell, and Cargill. Greenpeace, on the other hand, prides itself on direct action, civil disobedience, and non-violent confrontation. Greenpeace has launched combative operations against Dow, Monsanto, and other TNC collaborators. While business partners praise TNC’s cooperative …
Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson
Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson
Articles
Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …
Essay: Cooperative Federalism And Federal Takings After The Trump Administration's Border Wall Executive Order, Gerald S. Dickinson
Essay: Cooperative Federalism And Federal Takings After The Trump Administration's Border Wall Executive Order, Gerald S. Dickinson
Articles
The Trump Administration’s (arguably) most polemic immigration policy — Executive Order No. 13,767 mandating the construction of an international border wall along the southwest border of the United States — offers a timely and instructive opportunity to revisit the elusive question of the federal eminent domain power and the historical practice of cooperative federalism. From federal efforts to restrict admission and entry of foreign nationals and aliens (the so-called “travel ban”) to conditioning federal grants on sanctuary city compliance with federal immigration enforcement, state and local governments (mostly liberal and Democratic enclaves) today have become combative by resisting a federal …
The Broken Medicare Appeals System: Failed Regulatory Solutions And The Promise Of Federal Litigation, Greer Donley
The Broken Medicare Appeals System: Failed Regulatory Solutions And The Promise Of Federal Litigation, Greer Donley
Articles
The Medicare Appeals System is broken. For years, the System has been unable to accommodate a growing number of appeals. The result is a backlog so large that even if no new appeals were filed, it would take the System a decade or more to empty. Healthcare providers wait many years for their appeals to be heard before an Administrative Law Judge (ALJ), and because the government recoups providers' Medicare payments while they wait, the delays cause them serious financial harm. Even worse, providers are more likely than not to prevail before the ALJ, proving that the payment should never …
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David A. Harris, David Rudovsky
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David A. Harris, David Rudovsky
Articles
The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …