Law Commons^™

A Further Look At A Hague Convention On Concurrent Proceedings, Paul Herrup, Ronald A. Brand

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The current project of the Hague Conference on Private International Law has reached a critical juncture that requires careful consideration of the terms that delineate the scope of the proposed convention. Work to date has not followed the mandate of the Council on General Affairs and Policy to produce a convention that would deal with concurrent proceedings, understood as including pure parallel proceedings and related actions. In two previous articles we have addressed the practical needs that should be addressed by the concurrent proceedings project and the general architecture of such a convention. The process is now mired in terminological …

Abortion Pills, David S. Cohen, Greer Donley, Rachel Rebouché

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Abortion is now illegal in roughly a third of the country, but abortion pills are more widely available than ever before. Though antiabortion advocates and legislators are attacking pills with all manner of strategies, clinics, websites, and informal networks are openly facilitating the distribution of abortion pills, legally and illegally, across the United States. This Article is the first to explain this defining aspect of the post-Roe environment and the novel issues it raises at the level of state law, federal policy, and on-the-ground advocacy.

This Article first details antiabortion strategies to stop pills by any means necessary. These tactics …

Public Good Through Charter Schools?, Philip Hackney

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Should nonprofit charter schools be considered “charitable” under § 501(c)(3) of the Internal Revenue Code and be entitled to the benefits that go with that designation (income tax exemption, charitable contribution deduction, etc.)? Current tax law treats them as such; the question is whether there is a good rationale for this treatment. In addition to efficiency and equity, I consider political justice as a value in evaluating tax policy. By political justice, I mean a democratic system that prioritizes the opportunity for more people to have a voice in collective decisions (political voice equality or PVE). Thus, a tax policy …

Takings Federalization, Gerald S. Dickinson

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Federal constitutional law exerts an outsized role and influence over state constitutional law. In takings, Supreme Court jurisprudence has dominated state court interpretations of analogous state constitutional takings provisions. This does not mean, however, that the Supreme Court always leads and the state courts always follow. At times, the opposite is true. There is, indeed, an underappreciated and under addressed role reversal in which the Supreme Court follows the lead of state courts. State takings doctrines have, on limited occasions, influenced federal takings jurisprudence. This federalization of takings is a distinct feature of judicial dual sovereignty where the Supreme Court …

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

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The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

Title Ix's Trans Panic, Deborah L. Brake

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Sport is an agent of social change, but that change does not always track in a progressive direction. Sport can be a site for contesting and reversing the gains of progressive social movements as much as furthering the values of equality and justice for historically marginalized groups. This dynamic of contestation and reversal is now playing out in a new wave of anti-transgender backlash that has gained adherents among some proponents of equal athletic opportunities for girls and women. In this latest twist in the debate over who deserves the opportunity to compete, the sex-separate athletic programming permitted by Title …

Layered Fiduciaries In The Information Age, Zhaoyi Li

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Technology companies such as Facebook have long been criticized for abusing customers’ personal information and monetizing user data in a manner contrary to customer expectations. Some commentators suggest fiduciary law could be used to restrict how these companies use their customers’ data. Under this framework, a new member of the fiduciary family called the “information fiduciary” was born. The concept of an information fiduciary is that a company providing network services to “collect, analyze, use, sell, and distribute personal information” owes customers and end-users a fiduciary duty to use the collected data to promote their interests, thereby assuming fiduciary liability …

Urgenda Vs. Juliana: Lessons For Future Climate Change Litigation Cases, Paolo Davide Farah, Imad Antoine Ibrahim

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No abstract provided.

The Fourth Amendment's Constitutional Home, Gerald S. Dickinson

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The home enjoys omnipresent status in American constitutional law. The Bill of Rights, peculiarly, has served as the central refuge for special protections to the home. This constitutional sanctuary has elicited an intriguing textual and doctrinal puzzle. A distinct thread has emerged that runs through the first five amendments delineating the home as a zone where rights emanating from speech, smut, gods, guns, soldiers, searches, sex, and self-incrimination enjoy special protections. However, the thread inexplicably unravels upon arriving at takings. There, the constitutional text omits and the Supreme Court’s doctrine excludes a special zone of safeguards to the home. This …

Post-Conflict Reconciliation In Ukraine, Elena Baylis

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Reconciliation mechanisms should be a core component of transitional justice in Ukraine. The nature of this conflict as a war justified by claims about history, identity, and legitimacy suggests that there will be a need for post-war reconciliation initiatives. Such reconciliation measures would be intended to enable Ukraine’s Russian, Ukrainian, and other communities to live together constructively within the same state. The goals of social reconciliation also converge with Ukraine’s long-term, political aims vis-à-vis both Russia and the European Union. This paper addresses three types of reconciliation measures that are important for post-conflict Ukraine. Instrumental mechanisms to engage post-conflict social …

Understanding An American Paradox: An Overview Of The Racial Muslim: When Racism Quashes Religious Freedom, Spearit

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In The Racial Muslim: When Racism Quashes Religious Freedom, Sahar Aziz unveils a mechanism that perpetuates the persecution of religion. While the book’s title suggests a problem that engulfs Muslims, it is not a new problem, but instead a recurring theme in American history. Aziz constructs a model that demonstrates how racialization of a religious group imposes racial characteristics on that group, imbuing it with racial stereotypes that effectively treat the group as a racial rather than religious group deserving of religious liberty.

In identifying a racialization process that effectively veils religious discrimination, Aziz’s book points to several important …

Public Ownership And The Wto In A Post Covid-19 Era: From Trade Disputes To A 'Social' Function, Paolo Davide Farah, Davide Zoppolato

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Public ownership is closely bound to the need of the government to protect and guarantee the well-being of its citizens. Where the market cannot, or does not want to, provide goods and services, the State uses different tools to intervene, influence, and control some aspects of the private sphere of expression of its citizens in the name and interest of the collectivity. Although, in the past century, this behavior was accepted as one of the expressions of the public authority and part of the social contract, this perception has shifted partially in accordance with the wave of privatization programs initiated …

Climate Justice In The Anthropocene And Its Relationship With Science And Technology: The Importance Of Ethics Of Responsibility, Paolo Davide Farah, Alessio Lo Giudice

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Climate change is a global phenomenon. Therefore, globalization is the necessary hermeneutical horizon to develop an analysis of the metamorphosis climate change could cause at a political, social, and economic level. Within this horizon, this Article shows how the relationship between the concept of the Anthropocene epoch and the request for justice allows for framing a climate-justice and intergenerational equity–focused political interpretation of the effects of climate change. In order to avoid reducing such an interpretation to merely an ideological critique of capitalism, the conception of climate justice needs to be grounded in a rational, ethical model. This Article proposes …

Affirmatively Furthering Health Equity, Mary Crossley

Articles

Pervasive health disparities in the United States undermine both public health and social cohesion. Because of the enormity of the health care sector, government action, standing alone, is limited in its power to remedy health disparities. This Article proposes a novel approach to distributing responsibility for promoting health equity broadly among public and private actors in the health care sector. Specifically, it recommends that the Department of Health and Human Services issue guidance articulating an obligation on the part of all recipients of federal health care funding to act affirmatively to advance health equity. The Fair Housing Act’s requirement that …

The New Laboratories Of Democracy, Gerald S. Dickinson

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Nearly a century ago, Justice Louis D. Brandeis’s dissent in New State Ice Co. v. Liebman coined one of the most profound statements in American law: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Justice Brandeis reminded us of our strong tradition of federalism, where the states, exercising their sovereign power, may choose to experiment with new legislation within their separate jurisdictions without the concern that such …

A More Capacious Concept Of Church, Philip Hackney, Samuel D. Brunson

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United States tax law provides churches with extra benefits and robust protection from IRS enforcement actions. Churches and religious organizations are automatically exempt from the income tax without needing to apply to be so recognized and without needing to file a tax return. Beyond that, churches are protected from audit by stringent procedures. There are good reasons to consider providing a distance between church and state, including the state tax authority. In many instances, Congress granted churches preferential tax treatment to try to avoid excess entanglement between church and state, though that preferential treatment often just shifts the locus of …

Surveillance Normalization, Christian Sundquist

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No abstract provided.

A Hague Parallel Proceedings Convention: Architecture And Features, Paul Herrup, Ronald A. Brand

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In Paul Herrup and Ronald A. Brand, A Hague Convention on Parallel Proceedings, 63 Harvard International Law Journal Online 1(2022), available at https://harvardilj.org/2022/02/a-hague-convention-on-parallel-proceedings/ and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3894502, we argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group …

Color Of Creatorship - Author's Response, Anjali Vats

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This essay is the author's response to three reviews of The Color of Creatorship written by notable intellectual property scholars and published in the IP Law Book Review.

Too Much Of A Good Thing? A Governing Knowledge Commons Review Of Abundance In Context, Michael J. Madison, Brett M. Frischmann, Madelyn Sanfilippo, Katherine J. Strandburg

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The economics of abundance, along with the sociology of abundance, the law of abundance, and so forth, should be re-framed, linked, and situated in a common context for empirical rather than conceptual research. Abundance may seem to be a new, big thing, between anxiety over information overload, Big Data, and related technological disruptions. But scholars know that abundance is an ancient phenomenon, which only seemed to disappear as twentieth century social science focused on scarcity instead. Restoring the study of abundance, and figuring out how to solve the problems that abundance might create, means shedding disciplinary blinders and going back …

Government By Code? Blockchain Applications To Public Sector Governance, Pedro Bustamante, Meina Cai, Marcela Gomez, Colin Harris, Prashabnt Krishnamurthy, Wilson Law, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Nataliia Shapoval, Annette Vee, Martin B. H. Weiss

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Studies of blockchain governance can be divided into analyses of the governance of blockchains (such as rules and power dynamics within a given network) and governance by blockchains (such as how blockchains can be implemented to improve self-governance of community-based peer production networks). Less emphasis has been placed on applications of distributed ledgers to public sector governance. Our review clarifies that the decentralization and distributive features that enable blockchains to link up loosely connected private organizations and public agencies to improve efficiency and transparency of government transactions. However, most blockchain applications lack clear advantages over the conventional digital recording of …

Participatory Litigation: A New Framework For Impact Lawyering, Jules Lobel

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This Article argues that the manner in which class-action and impact lawyers have traditionally litigated leaves little room for class participation in lawsuits, and that a new, participatory framework can and should be adopted. Through the story of a successful class-action suit challenging California’s use of prolonged solitary confinement in its prisons, the Article demonstrates that plaintiff participation is both possible and important.

Academic literature has assumed that broad plaintiff participation in class-action and impact litigation is not achievable. Yet this Article describes how, in a key California case, attorneys actively involved the plaintiffs in all aspects of the litigation: …

Survey Says--How To Engage Law Students In The Online Learning Environment, Andrele Brutus St. Val

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The pandemic experience has made it clear that not everyone loves teaching or learning remotely. Many professors and students alike are eager to return to the classroom. However, our experiences over the last year and a half have also demonstrated the potentials and possibilities of learning online and have caused many professors to recalibrate their approaches to digital learning. While the tools for online learning were available well before March of 2020, many instructors are only now beginning to capitalize on their potential. The author of this article worked in online legal education before the pandemic, utilizing these tools and …

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

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Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …

Nazi Stolen Art: Uses And Misuses Of The Foreign Sovereign Immunities Act, Vivian Grosswald Curran

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U.S. courts in Foreign Sovereign Immunities Act (“FSIA”) cases must interpret a comprehensive statute which has been said to stand or fall on its terms. At the same time, in Nazi-looted art cases, they do not ignore entirely the backdrop of the U.S.’ adoption of international principles and declarations promising to ensure the return of such art. To some extent, such an undertaking has been incorporated into a statutory amendment of the FSIA. The years 2021 and 2022 have seen major developments in the FSIA both at the U.S. Supreme Court and in the D.C. Circuit Court of Appeals in …

Theory Matters—And Ten More Things I Learned From Martha Chamallas About Feminism, Law, And Gender, Deborah L. Brake

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This Festschrift article celebrates the scholarship of Martha Chamallas, Distinguished University Professor and Robert J. Lynn Chair in Law Emeritus of the Ohio State University Moritz College of Law, and one of the most impactful scholars of feminist legal theory and employment discrimination of her generation. Mining the insights of Chamallas’s body of work, the article identifies ten core “lessons” relating to feminism and law drawn from her scholarship and academic career. It then weaves in summaries and synthesis of her published works with discussion of subsequent legal and social developments since their publication. These lessons (e.g., feminism is plural; …

White Vigilantism And The Racism Of Race-Neutrality, Christian Sundquist

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Race-neutrality has long been touted in American law as central to promoting racial equality while guarding against race-based discrimination. And yet the legal doctrine of race-neutrality has perversely operated to shield claims of racial discrimination from judicial review while protecting discriminators from liability and punishment. This Article critiques the doctrine of race-neutrality by examining the law’s response to white vigilantism in the much-publicized criminal trials of Kyle Rittenhouse and that of Ahmaud Arbery’s assailants.

The New Abortion Battleground, David S. Cohen, Greer Donley, Rachel Rebouché

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This Article examines the paradigm shift that is occurring now that the Supreme Court has overturned Roe v. Wade. Returning abortion law to the states has spawned perplexing legal conflicts across state borders and between states and the federal government. This article emphasizes how these issues intersect with innovations in the delivery of abortion, which can now occur entirely online and transcend state boundaries. The interjurisdictional abortion wars are coming, and this Article is the first to provide the roadmap for the immediate aftermath of Roe’s reversal and what lies ahead.

Judges and scholars, and most recently the Supreme …

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

Articles

There are two things that everyone knows about the Ninth Circuit Court of Appeals: it is very large, and it is very liberal. But common knowledge is sometimes wrong. Is that the case here?

About the first point – the Ninth Circuit’s size – there can be no dispute. The Ninth Circuit Court of Appeals has 29 authorized judgeships, almost twice as many as the second-largest court. But what about the second point – the liberalism? Knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether …

Abortion, Pregnancy Loss, & Subjective Fetal Personhood, Greer Donley, Jill Wieber Lens

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Longstanding dogma dictates that recognizing pregnancy loss threatens abortion rights—acknowledging that miscarriage and stillbirth involve a loss, the theory goes, creates a slippery slope to fetal personhood. For decades, anti-abortion advocates have capitalized on this tension and weaponized the grief that can accompany pregnancy loss in their efforts to legislate personhood and end abortion rights. In response, abortion rights advocates have at times fought legislative efforts to support those experiencing pregnancy loss, and more recently, remained silent, alienating those who suffer a miscarriage or stillbirth.

This Article is the first to argue that this perceived tension can be reconciled through …