Law Commons^™

Reckoning With Race And Disability, Jasmine E. Harris

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Our national reckoning with race and inequality must include disability. Race and disability have a complicated but interconnected history. Yet discussions of our most salient socio-political issues such as police violence, prison abolition, healthcare, poverty, and education continue to treat race and disability as distinct, largely biologically based distinctions justifying differential treatment in law and policy. This approach has ignored the ways in which states have relied on disability as a tool of subordination, leading to the invisibility of disabled people of color in civil rights movements and an incomplete theoretical and remedial framework for contemporary justice initiatives. Legal scholars …

The First Amendment, Common Carriers, And Public Accommodations: Net Neutrality, Digital Platforms, And Privacy, Christopher S. Yoo

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Recent prominent judicial opinions have assumed that common carriers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A review of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial …

Taking Aim At Pointing Guns? Start With Citizen’S Arrest, Not Stand Your Ground: A Reply To Joseph Blocher, Samuel W. Buell, Jacob D. Charles, And Darrell A.H. Miller, Pointing Guns, 99 Texas L. Rev. 1173 (2021), Kimberly Kessler Ferzan

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No abstract provided.

Taking Disability Public, Jasmine E. Harris

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Anti-discrimination laws enforce the idea that no one should be forced or encouraged to hide their race, gender, sexuality or other characteristics of their identity. So why is disability rights law the glaring exception? Other areas of anti-discrimination law have eschewed forms of enforced privacy about protected classes and, as a result, re-frame privacy norms as problematic, antigenic, and, at times, counter to structural reform goals. In contrast, disability rights law values privacy norms to preempt discrimination; in other words, if you never reveal the information, no one can discriminate against you because of that information. This Article argues that …

Reversing The Fortunes Of Active Funds, Adi Libson, Gideon Parchomovsky

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In 2019, for the first time in the history of U.S. capital markets, passive funds surpassed active funds in terms of total assets under management. The continuous growth of passive funds at the expense of active funds is a genuine cause for concern. Active funds monitor the management and partake of decision-making in their portfolio companies. Furthermore, they improve price efficiency and managerial performance by engaging in informed trading. The buy/sell decisions of active funds provide other market participants reliable information about the quality of firms. The cost of active investing is significant and it is exclusively borne by active …

Did The America Invents Act Change University Technology Transfer?, Cynthia L. Dahl

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University technology transfer offices (TTOs) are the gatekeepers to groundbreaking innovations sparked in research laboratories around the U.S. With a business model reliant on patenting and licensing out for commercialization, TTOs were positioned for upheaval when the America Invents Act (AIA) transformed U.S. patent law in 2011. Now almost ten years later, this article examines the AIA’s actual effects on this patent-centric industry. It focuses on the five key areas of most interest to TTOs: i) first to file priority; ii) broadening of the universe of prior art; iii) carve-out to the prior commercial use defense; iv) micro-entity fees; and …

The Search For Clarity In An Attorney's Duty To Google, Michael Thomas Murphy

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Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.

So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much …

Restoration: The Role Stakeholder Governance Must Play In Recreating A Fair And Sustainable American Economy A Reply To Professor Rock, Leo E. Strine Jr.

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In his excellent article, For Whom is the Corporation Managed in 2020?: The Debate Over Corporate Purpose, Professor Edward Rock articulates his understanding of the debate over corporate purpose. This reply supports Professor Rock’s depiction of the current state of corporate law in the United States. It also accepts Professor Rock’s contention that finance and law and economics professors tend to equate the value of corporations to society solely with the value of their equity. But, I employ a less academic lens on the current debate about corporate purpose, and am more optimistic about proposals to change our corporate governance …

Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy

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Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often-countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way to …

Codetermination In Theory And Practice, Grant M. Hayden, Matthew T. Bodie

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A system of shared corporate governance between shareholders and workers, codetermination has been mostly ignored within the U.S. corporate governance literature. When it has made an appearance, it has largely served as a foil for shareholder primacy and an example of corporate deviance. However, over the last twenty years—and especially in the last five—empirical research on codetermination has shown surprising results as to the system’s efficiency, resilience, and benefits to stakeholders. This Article reviews the extant American legal scholarship on codetermination and provides a fresh look at the current state of codetermination theory and practice. Rather than experiencing the failures …

Is There A Cure For Vaccine Nationalism?, Ana Santos Rutschman

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“[V]accine nationalism . . . should serve as a reality check for the status of global health cooperation in the twenty-first century.”

Dispatch – United States: “Proposition 22: A Vote On Gig Worker Status In California”, Miriam Cherry

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Under California court decisions and then the California Legislature's 2019 AB5 bill, gig workers were poised to become employees under the law. But all that changed when in November 2020 the voters approved Proposition 22, which provides for a complicated set of new rules that gives gig workers some rights of employees, but not others, (like the right to bargain collectively). This "Dispatch" examines the events around the passage of Proposition 22 in more detail.

Systemic Racism, The Government’S Pandemic Response, And Racial Inequities In Covid-19, Ruqaiijah Yearby, Seema Mohapatra

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During the COVID-19 pandemic, the federal and state governments have ignored racial and ethnic minorities’ unequal access to employment and health care that results in racial inequities in COVID-19 infections and deaths. In addition, they have enacted laws that further exacerbate these inequities. Consequently, many racial and ethnic minorities are employed in low-wage essential jobs that lack paid sick leave and health insurance. This lack of benefits causes them to go to work even when they are sick and prevents them from receiving appropriate medical treatment. As a result, racial and ethnic minorities have disproportionately been infected and died from …

Decoupling State Income Tax From Federal: Current Taxation Of Unrealized Gain, The New York Proposal, Henry Ordower

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A proposal decouples NY from federal tax computations to tax billionaires on unrealized appreciation. If enacted, the proposal generates basis discontinuities across borders but enhances state revenue and may prove attractive to many states. The article reviews how states seek to enhance revenues and considers issues of cross-border taxation and the fundamental right to travel.

The Market As Negotiation, Rebecca E. Hollander-Blumoff, Matthew T. Bodie

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Our economic system counts on markets to allocate most of our societal resources. The law often treats markets as discrete entities, with a native intelligence and structure that provides clear answers to questions about prices and terms. In reality, of course, markets are much messier—they are agglomerations of negotiations by individual parties. Despite theoretical and empirical work on markets and on negotiation, legal scholars have largely overlooked the connection between the two areas in considering how markets are constructed and regulated.

This Article brings together scholarship in law, economics, sociology, and psychology to better understand the role that negotiation plays …

Disparities In Health Care: The Pandemic’S Lessons For Health Lawyers, Danielle Pelfrey Duryea, Nicole Huberfeld, Ruqaiijah Yearby

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Population-level disparities in health and health care came to the forefront of U.S. public consciousness in 2020. As the racial, ethnic, and socioeconomic stratification of COVID-19 infection and death rates emerged with chilling clarity, the Black Lives Matter protests of the summer focused millions of Americans on the complex, structural nature of inequity and its long-lasting effects.

Access to quality health care is a “social determinant of health,” meaning that it is one of the “non-medical factors that influence health outcomes . . . the conditions in which people are born, grow, work, live, and age, and the wider set …

Protecting The Rights And Wellbeing Of People With Disabilities During The Covid-19 Pandemic, Elizabeth Pendo

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The COVID-19 pandemic has exposed and exacerbated significant inequities experienced by people with disabilities. It has also emphasized the value of legal protections against discrimination based on disability. The Americans with Disabilities Act was enacted 30 years ago to eliminate discrimination against people with disabilities and ensure equal opportunity across major areas of American life (ADA, 2008). Together with an earlier law, the Rehabilitation Act of 1973 Rehabilitation Act, 2012), this landmark civil rights law impacts a broad range of issues raised by the COVID-19 pandemic and protects a large and growing number of Americans. This Chapter focuses on application …

Covid-19, Courts, And The 'Realities Of Prison Administration.' Part Ii: The Realities Of Litigation, Chad Flanders

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Lawsuits challenging prisons and jails for not doing enough to stop the spread of COVID-19 among inmates have faced mixed results in the courts: wins at the district court level are almost always followed by losses (in the form of stays of any orders to improve conditions) at the appeals court level or at the Supreme Court. This short article tries to explain why this is happening, and makes three comparisons between how district courts and appeals courts have analyzed these lawsuits. First, district courts and appeals courts tend to emphasize different facts in their decisions. District courts focus more …

Abolish Municipal Courts: A Response To Professor Natapoff, Brendan Roediger

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If we are serious about disrupting the generational reproduction of the racial social order, we are going to have to learn to let go. Taking up the legacy of criminal municipal courts and racial control, this Response argues against the practice of prescribing from the traditional “medication list” of liberal reforms (substantive, procedural, and “democratizing”) without grappling with whether a system or apparatus is so inextricably bound up with the maintenance of race and class hierarchy that it should be demolished. I assert that we should always ask whether something is redeemable before we ask whether it is reformable. In …

Ending The War On People With Substance Use Disorders In Health Care, Kelly K. Dineen, Elizabeth Pendo

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Earp et al. (2021) provide a robust justification for the decriminalization of drugs based on the systemic racism that fuels the “war on drugs” and the ongoing harms of drug policies to individuals. The authors’ call for decriminalization is a necessary but insufficient step in addressing the entrenched structural, institutional, and individual discrimination that leads to the inequitable and unjust treatment of people with substance use disorder (PWSUD). Nothing short of robust enforcement of existing legal protections and sweeping legal reforms in the regulation of addiction treatment, controlled substances, health care finance, and civil rights law will be adequate to …

Trademark's 'Ship Of Theseus' Problem, Matthew T. Bodie

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The story of the ship of Theseus has long presented a puzzle over the nature of identity. Preserving the boat over time, the ancient Greeks would remove its wooden planks as they rotted and replace them with new planks. The question arose: was this still the same ship?

The problem hits at an issue that is critical to trademark law but has largely been overlooked: namely, what is the identity of the entity that holds the mark? And how do we determine whether that has changed over time? The law provides straightforward answers: it assigns the mark to the business …

Comments On Rights To Federally Funded Inventions And Licensing Of Government Owned Inventions, National Institute Of Standards And Technology (Nist), United States Department Of Commerce, Notice Of Proposed Rulemaking. 86 Fr 35. Agency/Docket Number: 201207-0327, Joshua D. Sarnoff, Liza Vertinsky, Yaniv Heled, Ana Santos Rutschman, Cynthia M. Ho

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This letter is written in response to the notice of proposed rulemaking published in the Federal Register on January 4, 2021, seeking public comments on the revised regulations proposed by NIST to the University and Small Business Patent Procedure Act of 1980 (the “Bayh-Dole Act”). We submit this letter as academics who engage in research on patent law and biomedical innovation. The arguments also reflect practical knowledge that one of us has acquired from a decade of working with U.S. universities and biotech companies in the process of technology transfer as a lawyer practicing in two highly regarded Boston law …

“One Of The Greatest Human Tragedies Of Our Time”: The U.N., Biden, And A Missed Opportunity To Abolish Immigration Prisons, Lauren E. Bartlett

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Children in cages, rampant sexual abuse, lack of access to life-saving medical treatment, and more. These human rights violations continue to occur in immigration prisons in the United States today, and given the scope, many, including the United Nations, are pushing the United States to abolish immigration prisons altogether. However, the Biden administration has demonstrated that is not interested in supporting the abolition of immigration prisons, not even in the international human rights arena.

After providing a brief overview of international human rights law prohibiting immigration prisons, this essay explores U.N. recommendations on immigration prisons from each of the Universal …

Artificial Intelligence And The Challenges Of Workplace Discrimination And Privacy, Pauline Kim, Matthew T. Bodie

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Employers are increasingly relying on artificially intelligent (AI) systems to recruit, select, and manage their workforces, raising fears that these systems may subject workers to discriminatory, invasive, or otherwise unfair treatment. This article reviews those concerns and provides an overview of how current laws may apply, focusing on two particular problems: discrimination on the basis of protected characteristics like race, sex, or disability, and the invasion of workers’ privacy engendered by workplace AI systems. It discusses the ways in which relying on AI to make personnel decisions can produce discriminatory outcomes and how current law might apply. It then explores …

Intellectual Property As A Determinant Of Health, Ana Santos Rutschman

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Public health literature has long recognized the existence of determinants of health, a set of socio-economic conditions that affect health risks and health outcomes across the world. The World Health Organization defines these determinants as “forces and systems” consisting of “factors combin[ing] together to affect the health of individuals and communities.” Frameworks relying on determinants of health have been widely adopted by countries in the global South and North alike, as well as international institutional players, several of which are direct or indirect players in transnational intellectual property (IP) policymaking. Issues raised by the implementation of IP policies, however, are …

International Courts & Judicial Affairs, Sara L. Ochs, Paula Henin, Paola Patarroyo, Haydee Dijkstal, Ira Trako, Kabir Duggal, Chloe Fletcher, Alexander Witt, Marc Weitz

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This chapter reviews some of the most significant developments made by international courts and tribunals in 2020.

I. International Court of Justice As of the time of writing (November 2020), this year, the International Court of Justice (Court) has rendered one order on provisional measures, two judgments on appeals from decisions of the International Civil Aviation Organization (ICAO) Council, and two orders relating to expert evidence.

Queering Bostock, Jeremiah A. Ho

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Although the Supreme Court’s 2020 Title VII decision, Bostock v. Clayton County, Georgia, is a victory for LGBTQ individuals, its doctrinal limitations unavoidably preserve a discriminatory status quo. This Article critically examines how and why Bostock fails to highlight the indignities experienced by queer minorities under decades of employment discrimination. In Bostock, Justice Gorsuch presents a sweeping textualist interpretation of Title VII that protects against sexual orientation and gender identity discrimination. Yet, the decision sparsely recognizes queer lived experiences, compared to prior pro-LGBTQ cases where such recognition contributed to developing an anti-stereotyping framework that confronted some of the heteronormative biases …

The Functional Operation Of Workers’ Compensation Covid Presumptions, Michael C. Duff

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During 2020, a number of U.S. states implemented workers' compensation COVID-19 presumptions. This short informal paper defines and explains legal presumptions generally and then discusses the workers' compensation presumptions. The paper contends that at this juncture it is not clear whether states intended to enact "Thayer-Wigmore" or "Morgan" presumptions; but if they operate as Thayer-Wigmore presumptions they will not do workers' compensation claimants much good in the context of non-jury proceedings presided over by administrative law judges.

Challenges For Black Workers After 2020: Antiracism In The Gig Economy?, Michael C. Duff

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Black workers’ fortunes in the coming decades are tied to the expansion of the Gig economy, the impact of which is to destroy employee status. Because much antiracism law and policy has been transmitted to society through the medium of employment law, the disappearance of employee status should be of concern to all foes of racism. This short essay argues that Section 1981 of the Civil Rights Act of 1866 should be expanded to cover all forms of racist workplace conduct. Regulatory arbitrage will continue to challenge the definition of employment for the foreseeable future. It is fitting that one …

A Babe In The Woods: An Essay On Kirby Lumber And The Evolution Of Corporate Law, Lawrence Hamermesh

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This essay examines the development of corporate law during the time span of the author's career, focusing on the interrelated subjects of valuation, corporate purpose, and shareholder litigation.