Law Commons^™

Elephant In The Room, Patrick Barry

Articles

Over the past several decades, the student population at law schools across the country has become more and more racially diverse. In 1987, for example, only about 1 in every 10 law students identified as a person of color; by 2019, that percentage shot up to almost 1 out of 3.

Yet take a look at virtually any collection of recommended manuals on writing. You are unlikely to find even one that is authored by a person of color. The composition of law schools may be dramatically changing, but the materials that students are given to help them figure out …

Investigative Advocacy: The Mechanics Of Muckraking, Patrick Barry

Articles

This essay argues that drafting a complaint is a form of investigative advocacy and that the best of them uphold the tradition of muckraking journalism.

Not Just The Historians: Anne Orford’S Insights And The Suspicion Between International Law And Philosophy, Steven R. Ratner

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International Law and the Politics of History is nothing short of cri de coeur directed at international lawyers and historians, the two disciplinary co-conspirators in international law's so-called turn to history. Rather than embracing what appears to be a mutually beneficial model of interdisciplinary collaboration, Anne Orford instead sees international lawyers as evading their responsibilities as decisionmakers-and indeed makers of both the discipline and its underlying norms-and historians as self-satisfied purveyors of truths that they themselves know are contested and instrumental. As much as she blames historians for acting with blinders, her main audience is international lawyers (mostly the academic …

Platforms As Blackacres, Thomas E. Kadri

Articles

While writing this Article, I interviewed a journalist who writes stories about harmful technologies. To do this work, he gathers information from websites to reveal trends that online platforms would prefer to hide. His team has exposed how Facebook threatens people's privacy and safety, how Amazon hides cheaper deals from consumers, and how Google diverts political speech from our inboxes. You'd think the journalist might want credit for telling these important stories, but he instead insisted on anonymity when we talked because his lawyer was worried he'd be confessing to breaking the law-to committing the crime and tort of cyber-trespass. …

Role Of Courts In Ensuring Water Justice In India: Brasilia Declaration On Water Justice And Beyond, Gayathri D. Naik

Articles

Water being a scarce resource, questions of its allocation and distribution, coupled with concerns of its depletion have troubled policy makers, legislators, and judges alike. While, over the years there has been significant development on the discussion surrounding the rights-duty paradigm of water resources, by establishing the obligation of states, discussion surrounding a certain value-based approach to guide the minds of important stakeholders in creating and enforcing policy has gained far less traction comparatively. It is in this context that this paper explores an alternative justice-based approach to water, drawing from the works of Amartya Sen on capabilities and more …

Violence Everywhere: How The Current Spectacle Of Black Suffering, Police Violence, And The Violence Of Judicial Interpretation Undermine The Rule Of Law, David B. Owens

Articles

No abstract provided.

Taxing Creativity, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

The recent sell offs of song catalogs by Bob Dylan, Stevie Nicks, Neil Young, and Mick Fleetwood for extraordinarily large sums of money raise questions about the law on creativity. While patent and copyright laws encourage a wide array of creative endeavors, tax laws governing monetization of creative works do not. The Songwriters Capital Gains Equity Act, in particular, solidifies creativity exceptionalism, exacerbates tax inequities among creators, and perpetuates racial disparities in the tax Code. This Article asserts that the law must encourage creativity from all creators. It is time to eliminate tax exceptionalism for musical compositions or expand its …

The Injustice Of 1.5°C–2°C: The Need For A Scientifically Based Standard Of Fundamental Rights Protection In Constitutional Climate Change Cases, Andrea K. Rodgers, Lauren E. Sancken, Jennifer Marlow

Articles

In 2015, signatories to the Paris Agreement agreed to the goal of keeping global temperature rise this century to well below 2°C above preindustrial levels and to pursue efforts to limit the temperature increase even further to 1.5°C. Although the adoption of the Paris Agreement was in many ways a political triumph, seven years later many climate advocates are presenting the Paris target to judicial bodies as the de facto legal standard for fundamental rights protection in climate change cases. Yet, the history leading up to the signatories’ ultimate adoption of the Paris Agreement target suggests that the target is …

Modeling Through, Ryan Calo

Articles

Theorists of justice have long imagined a decision-maker capable of acting wisely in every circumstance. Policymakers seldom live up to this ideal. They face well-understood limits, including an inability to anticipate the societal impacts of state intervention along a range of dimensions and values. Policymakers cannot see around corners or address societal problems at their roots. When it comes to regulation and policy-setting, policymakers are often forced, in the memorable words of political economist Charles Lindblom, to “muddle through” as best they can.

Powerful new affordances, from supercomputing to artificial intelligence, have arisen in the decades since Lindblom’s 1959 article …

Chapter Eight - Technology And The Law: The Automobile (By James Willard Hurst), Bj Ard, William J. Novak

Articles

In this chapter we are going to talk about some of the automobile effects that it has had. Upon the law, and some of the effects that the law has had upon the automobile. We could undoubtedly open up some worthwhile lines of thought, if we talked about the automobile in relation to, certain brooder problems of which it is a part: for example, the effects of the internal combustion the growth engine, or of all types of communication. But we shall have enough on our hands if we stick to the automobile, and even so in the limits of …

Assessing Amateurism In College Sports, Casey E. Faucon

Articles

College sports generate approximately $8 billion each year for the National C[artel] Athletic Association and its member institutions. Most of this revenue flows from lucrative television broadcasting deals, which often incorporate the right to commercialize and sell the names, images, and likenesses of college athletes. Under its current revenue scheme, student-athletes-85 percent of whom live below the poverty line-receive a share of zero. For over a century, we've justified this exploitative distribution scheme under a cloak of student-athlete "amateurism." Antitrust challenges to the NCAA's amateurism rules clash with the assumption that "amateurism" is a revered tradition and an important tenet …

Federalism By Deception: The Implied Limits On Congressional Power, Bryan K. Fair

Articles

The purpose of this Article is to lay bare federalism by deception and the theory of implied limits on federal power. Other scholars have recently noted the rise of anti-federalist viewpoints in modern cases. I go a step further to demonstrate how Supreme Court Justices have embraced anti-federal ideology, but have cited Federalist sources, including Marshall, to announce unenumerated limits on federal legislative power.

Law's Duct Tape? Using Public Nuisance To Fix The Holes In Administrative Law, Anthony J. Sebok

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No abstract provided.

What’S Going On? An Overview Of Diversity, Equity, And Inclusion Dispute Resolution Initiatives In New York, Robyn Weinstein, Michelle Lavrichenko

Articles

Leaders in the dispute resolution profession in New York State have been working to implement various fellowships, mentorship programs, scholarships, and other initiatives aimed at increasing diversity, equity, and inclusion in the field of dispute resolution. This article will provide an overview of the current ADR-related diversity, equity, and inclusion initiatives throughout New York and introduce you to five individuals participating in DEI ADR fellowships and mentorship programs across the state.

Robert Cover’S Love Of Stories: A Rumination On His Wanting To Discuss The Brothers Karamazov With Me Across Five Conversations During The Last Five Years Of His Life, With An Application To The Chauvin Murder Trial Of 2021, Richard H. Weisberg

Articles

The field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of …

What War Did To The Academy, What The Academy Did To War: A 20-Year Retrospective On The Effects Of The Post-9/11 Wars, Deborah Pearlstein

Articles

The history of the legal academy’s impact on the way states fight wars is hardly one of unmixed glory. It was a law professor moonlighting for President Lincoln who authored “Instructions for the Government of Armies of the United States in the Field” during the Civil War, a code still recognized worldwide today for having laid critical groundwork for the modern law of war. It was likewise a law professor whose work came to serve as both theoretical and practical justification for the sweeping powers of the Nazi state. So it should perhaps be unsurprising that, two decades of engagement …

Pandemic Rules: Covid-19 And The Prison Litigation Reform Act’S Exhaustion Requirement, Betsy Ginsberg, Margo Schlanger

Articles

For over twenty-five years, the Prison Litigation Reform Act (PLRA) has undermined the constitutional rights of incarcerated people. For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win—regardless of merit. We have seen the result in the wave of litigation relating to the COVID-19 pandemic. Beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them. Time and again, …

Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck

Articles

A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …

Intragovernmental Speech And Sanction, Katherine A. Shaw

Articles

This Essay, prepared as part of a symposium on Professor Helen Norton’s The Government’s Speech and the Constitution, asks what role, if any, we should understand the Constitution to play in mediating disputes over speech between and among government entities. Focusing on the examples of impeachment and censure, the piece considers scenarios in which one arm of government takes action in response to the speech of another arm or entity of government, exploring what role the Constitution should play in shaping or constraining those responses.

Addictive Technology And Its Implications For Antitrust Enforcement, James Niels Rosenquist, Fiona M. Scott Morton, Samuel N. Weinstein

Articles

The advent of mobile devices and digital media platforms in the past decade represents the biggest shock to cognition in human history. Robust medical evidence is emerging that digital media platforms are addictive and, when used in excess, harmful to users’ mental health. Other types of addictive products, like tobacco and prescription drugs, are heavily regulated to protect consumers. Currently, there is no regulatory structure protecting digital media users from these harms. Antitrust enforcement and regulation that lowers entry barriers could help consumers of social media by increasing competition. Economic theory tells us that more choice in digital media will …

The Rules Of Professional Responsibility And Legal Finance: A Status Update, Anthony J. Sebok

Articles

Legal finance occurs when strangers fund litigation for profit. Traditionally looked upon with suspicion in the common law, and limited by the doctrines of champerty and maintenance, legal finance is now a thriving part of the American legal landscape. Legal finance has been promoted as a solution to the access-to-justice problems facing working and middle class Americans, as well as a new asset class for Wall Street. At the center of legal finance, however, are lawyers – not the lawyers who write the contracts for the financing – but the lawyers for the cases being financed.
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Moonshots, Matthew Wansley

Articles

In the last half-century, technological progress has stagnated. Rapid advances in information technology disguise the slow pace of productivity growth in other fields. Reigniting technological progress may require firms to invest in moonshots—long-term projects to commercialize innovations. Yet all but a few giant tech firms shy away from moonshots, even when the expected returns would justify the investment. The root of the problem is corporate structure. The process of developing a novel technology does not generate the kind of interim feedback that shareholders need to monitor managers and managers need to motivate employees. Managers who anticipate these agency problems invest …

Post-Grant Adjudication Of Drug Patents: Agency And/Or Court?, Arti K. Rai, Saurabh Vishnubhakat, Jorge Lemus, Erik Hovenkamp

Articles

The America Invents Act of 2011 (AIA) created a robust administrative system-the Patent Trial and Appeal Board (PTAB)-that provides a route for challenging the validity of granted patents outside of district courts. Congress determined that administrative adjudication of the validity of initial patent grants could be cheaper and more scientifically accurate than district court adjudication of such validity.

For private economic value per patent, few areas of technology can match the biopharmaceutical industry. This is particularly true for small-molecule drugs. A billion-dollar drug monopoly may be protected from competition by a relatively small number of patents. Accordingly, the social cost …

The Commodification Of Public Land Records, Reid Kress Weisbord, Stewart E. Sterk

Articles

The United States deed recording system alters the “first in time, first in right” doctrine to enable good faith purchasers to record their deeds to protect themselves against prior unrecorded conveyances and to provide constructive notice of their interests to potential subsequent purchasers. Constructive notice, however, works only when land records are available for public inspection, a practice that had long proved uncontroversial. For centuries, deed archives were almost exclusively patronized by land-transacting parties because the difficulty and cost of title examination deterred nearly everyone else.

The modern information economy, however, propelled this staid corner of property law into a …

Steering Loan Modifications Post-Pandemic, Pamela Foohey, Dalie Jimenez, Christopher K. Odinet

Articles

As part of federal and state relief programs created during the COVID-19 pandemic, many American households received pauses on their largest debts, particularly on mortgages and student loans. Others may have come to agreements with their lenders, likewise pausing or altering payment on other debts, such as auto loans and credit cards. This relief allowed households to allocate their savings and income to necessary expenses, like groceries, utilities, and medicine. But forbearance does not equal forgiveness. At the end of the various relief periods and moratoria, people will have to resume paying all their debts, the amounts of which may …

Don't Let The Digital Tail Wag The Transformation Dog: A Digital Transformation Roadmap For Corporate Counsel, Michele M. Destefano, Tellmann P. Bjarne, Daniel Wu

Articles

Due in part to the COVID-19 pandemic, enhancements in technology, as well as shifts in the macroeconomic and socioeconomic dynamics of globalization, Digital Transformation (DT) has become an enterprise-wide imperative for most multinational companies (MNCs). As a result, legal departments are being challenged to embrace enterprise DT and start their own departmental DT journeys. Despite these trends, there is little scholarship and research about how MNC legal departments are addressing the DT challenge. How are General Counsel (GCs) currently approaching DT? Is what they are doing effective and value-accretive? And importantly, how should GCs approach DT to best generate value? …

Vermin Of Proof: Arguments For The Admissibility Of Animal Model Studies As Proof Of Causation In Toxic Tort Litigation, Kristen Ranges, Jessica Owley

Articles

Toxic torts is a body of law that aims to compensate individuals for harms they suffer from exposure to hazardous substances. To successfully bring a toxic tort claim, a plaintiff must prove the main elements of a general tort cause of action: duty, breach, causation, and damages. Causation in a toxic tort case is particularly challenging to prove given the nature of toxic substances. To prove the toxicant in question caused the damages alleged, plaintiffs often present expert testimony based on scientific studies. Animal model studies, in particular, can help factfinders understand the health implications of the toxicants at issue. …

The Lost Cause Of Free Speech, Mary Anne Franks

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No abstract provided.

When Teachers Misgender: The Free Speech Claims Of Public School Teachers, Caroline Mala Corbin

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No abstract provided.

Re-Envisioning Child Well-Being: Dismantling The Inequitable Intersections Among Child Welfare, Juvenile Justice, And Education, Kele Stewart

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Twenty years after Shattered Bonds, Dorothy Roberts' indictment that the family regulation system polices, disrupts, and restructures Black families and communities remains urgent. Black families remain overrepresented in foster care with enshrined disparate treatment and outcomes. Black children are more likely to be removed from their homes, and their longer stays in foster care are characterized by placement instability, overly restrictive placements, the risk of abuse and exploitation, and inadequate mental health and other services. Black children also have worse educational outcomes than even other children in foster care, are over-referred to the juvenile justice system, and are more …