Law Commons^™

The Pure Theory Of Law Is A Hole In The Ozone Layer, Peter Goodrich

Articles

The article critiques the Pure Theory of Law, arguing that it is inadequate and detached from the dynamic and creative aspects of legal practice. The author advocates for a reimagined legal theory that integrates critical perspectives, embodiment, and a connection to the natural world, emphasizing the need for adaptability and responsiveness over static dogma.

New Means Of Financing Tort Lawsuits And Law Firms: Presentation Of Professor Anthony Sebok, Anthony J. Sebok

Articles

The article explores the role of third-party financing in litigation, focusing on its historical development, ethical implications, and modern applications in addressing the challenges of negative value claims in mass torts and consumer litigation. It examines various forms of third-party support, including assignment, maintenance, champerty, and factoring, and evaluates their potential to facilitate access to justice while raising important legal and ethical considerations.

Mdl Drano: Rule 23-Based Solutions To Mass Tort Buildup, Myriam E. Gilles, Gary Friedman

Articles

It has been taken as gospel, over the past quarter century, that class action procedures are unavailable in mass tort cases. This Article examines two distinct challenges to that assumption-one resting on Rule 23(c)(4)'s issue class procedure and the other on an innovation advanced by Francis McGovern, in whose honor this Article and symposium are dedicated.

The Issue Class Revolution, Myriam E. Gilles, Gary Friedman

Articles

In 2013, four Supreme Court Justices dissented from the decision in Comcast Corp. v. Behrend, which established heightened requirements for the certification of damages class actions. In a seemingly offhanded footnote, these dissenters observed that district courts could avoid the individualized inquiries that increasingly doom damages classes by certifying a class under Federal Rule of Civil Procedure 23(c)(4) on liability issues only and "leaving individual damages calculations to subsequent proceedings." The dissenters were onto something big. In fact, the issue class and follow-on damages model has broad potential to restore the efficacy of aggregate litigation across several substantive areas …

Fraudulent Transfer As A Tort, David G. Carlson

Articles

Fraudulent transfer law has historically been an in rem right of a creditor to property fraudulently received by a third party. In a minority of states, courts have treated fraudulent transfers as creating an in personam liability of the transferring debtor, the recipient, and any other third party who "conspired" with the transferor to achieve the transfer. This Article examines the wisdom of this modern trend and finds it wanting. The United States Supreme Court in 1861 was correct: fraudulent transfers are not wrongs. They merely create in rem rights.

Fraudulent Transfers: Void And Voidable, David G. Carlson

Articles

This Article explores the civil procedure attendant to private fraudulent transfer litigation (primarily outside the context of bankruptcy). In such litigation, courts ponder whether fraudulent transfers are void or voidable. In fact, they are both simultaneously! According to the theory "at law," a fraudulent transfer is "void." That is, a creditor with a judgment could simply levy the property from a fraudulent grantee as if the grantee had no property rights. This Article questions the constitutional viability of this ancient attitude. Meanwhile, "equity" viewed the transfer as voidable. The grantee gets title, but the title might be set aside. The …

Police Prosecutions And Punitive Instincts, Kate Levine

Articles

This Article makes two contributions to the fields of policing and criminal legal scholarship. First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality. It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic. It shows that police prosecutions legitimize the criminal legal system while at the same time displaying the same racism and ineffectiveness that have been shown to pervade our prison-backed criminal …

The Rise Of Decentralized Autonomous Organizations: Opportunities And Challenges, Aaron J. Wright

Articles

The article explores the rise of Decentralized Autonomous Organizations (DAOs), highlighting their potential to transform traditional organizational structures through blockchain technology and smart contracts. DAOs offer operational efficiencies, such as decentralized governance and transparent decision-making, but face significant legal challenges, including lack of recognition, liability concerns, and regulatory uncertainties. The article argues that U.S. business law, with its emphasis on private ordering, could accommodate DAOs, but legal adaptations are necessary to address their unique characteristics and ensure widespread adoption.

Stripped Of Funds, Stripped Of Rights: A Critique Of Guardianship As A Remedy For Elder Financial Harm, Rebekah Diller, Leslie Salzman

Articles

There is a growing consensus in the United States and abroad recognizing the right to “legal capacity”—the right to make legally binding decisions for oneself—as a basic human right. Despite this recognition, adult guardianship—the state court procedure by which a person is declared incapacitated and stripped of decision-making rights—remains a widely used tool, particularly for older adults who have suffered financial exploitation or loss. For this population, guardianship is considered an unpleasant yet necessary remedy to address their financial harms. But what if the cure does not really work as intended, while other, less intrusive means could prevent and redress …

Counterterrorism 2.0, Deborah Pearlstein

Articles

Are there any lessons to be gleaned for combatting the rising threat of white nationalist terrorism today from the U.S. response to the attacks of 9/11 twenty years on? This symposium reflection suggests that among the most important lessons may be in avoiding the conceptually defining characteristics of the early U.S. response in 2001. Detainee torture and abuse, the embrace of trial by newly formed military commission, and other misguided policies and practices whose effects are still felt today were set in motion in the first few weeks after the attacks, driven by the instinct to do something, bolstered by …

Courts Beyond Judging, Michael C. Pollack

Articles

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

Defining Who Is An Employee After A.B.5: Trading Uniformity And Simplicity For Expanded Coverage, Edward A. Zelinsky

Articles

My assessment of California’s A.B.5 differs from the evaluation advanced by the advocates and opponents of that legislation: I conclude that A.B.5 made a significant but limited expansion of the coverage of California labor law but at a notable cost. Even as A.B.5 broadened the reach of the Golden State’s labor protections, A.B.5 also made the definition of "employee” more complex and less uniform. Those seeking federal or state legislation like A.B.5 confront the same trade-off under which greater coverage is achieved at the expense of more complexity and less uniformity in the definition of who is an employee. The …

From The Frying Pan To The Fire: Scotus’ Fsia Inaction As Further Permitting Executive Branch Intervention In “Takings Exception” Cases And Its Consequences In Forcing Holocaust Plaintiffs To Return To Europe, Richard H. Weisberg

Articles

The Supreme Court of the United States (“SCOTUS”) very recently punted and left wide a circuit split on a key question under the Foreign Sovereign Immunities Act (“FSIA”): Do plaintiff Holocaust victims need to return to the country that wronged them in order to proceed in a United States federal court that otherwise had jurisdiction over their claims? While sending down unresolved a conflict between the D.C. and Seventh Circuits, in a companion case also involving Holocaust victims, SCOTUS essentially ended an action against Germany by taking the strong suggestion of the Executive Branch through its Solicitor General that a …

Blockchain Neutrality, Samuel N. Weinstein

Articles

Blockchain technology is transforming how markets work. Blockchains eliminate the need for trusted gatekeepers like banks to execute, verify, and record transactions. In the financial markets, their disruptive potential threatens both Wall Street banks and Silicon Valley venture capitalists. How blockchain technology is regulated will determine whether it encourages or inhibits competition. Some blockchain applications present serious fraud and systemic risks, complicating regulation. This Article explores the antitrust and competition policy challenges blockchain presents and proposes a regulatory strategy, modeled on Internet regulation and net neutrality principles, to unlock blockchain’s competitive potential. It contends that financial regulators should promote blockchain …

Erisa Defined Benefit Plans Are Not "Trust" Worthy, Stewart E. Sterk

Articles

No abstract provided.

Substance Use Disorder Discrimination And The Cares Act: Using Disability Law To Inform Part 2 Rulemaking, Kelly K. Dineen, Elizabeth Pendo

Articles

Substance use disorder (SUD) is a chronic health condition—like people with other chronic health conditions, people with SUDs experience periods of remission and periods of exacerbation or recurrence. Unlike people with most other chronic conditions, people with SUDs may be more likely to garner law enforcement attention than medical attention during a recurrence. They are also chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. The COVID-19 pandemic has had devastating consequences for people with SUDs, who are at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions …

Playing At The Crossroads Of Religion And Law: Historical Milieu, Context And Curriculum Hooks In Lost & Found, Owen Gottlieb

Articles

This chapter presents the use of Lost & Found – a purpose-built tabletop to mobile game series – to teach medieval religious legal systems. The series aims to broaden the discourse around religious legal systems and to counter popular depiction of these systems which often promote prejudice and misnomers. A central element is the importance of contextualizing religion in period and locale. The Lost & Found series uses period accurate depictions of material culture to set the stage for play around relevant topics – specifically how the law promoted collaboration and sustainable governance practices in Fustat (Old Cairo) in twelfth-century …

International Rule Of Law And Domestic Courts: A Few Concerns, Akhila Basalalli

Articles

The manifestation of the international rule of law appears as one of the possible paths to check the rule of power and establish an egalitarian system. Many international organizations have emphasized on the international rule of law in their objectives and mandates and have called the states to act in their service. The domestic courts have resonated with the call by exhibiting internationalism in their decisions. The international norms have been domesticated by the courts by adopting several incorporation and interpretation methods. The domestic courts, therefore, have been called as the ‘agents’ in the service of international law and protectors …

Antiracism, Reflection, And Professional Identity, Monte Mills, Eduardo R.C. Capulong, Andrew King-Ries

Articles

Intent on more systematically developing the emerging professional identities of law students, the professional identity formation movement is recasting how we think about legal education. Notably, however, the movement overlooks the structural racism imbedded in American law and legal education. While current models of professional development value diversity and cross-cultural competence, they do not adequately prepare the next generation of legal professionals to engage in the sustained work of interrupting and overthrowing race and racism in the legal profession and system. This article argues that antiracism is essential to the profession’s responsibility to serve justice and therefore key to legal …

Taxing Parents: Welfarist Theories, Shannon Weeks Mccormack

Articles

The Internal Revenue Code (the “Code”) taxes parents inequitably. Couples with a sole earner are under-taxed compared to couples with dual earners or single parents. Previous scholarship has identified these inequities and then argued that this sole earner bias should be eliminated. These arguments, however, have often been incomplete. Simply establishing that an inequity exists does not create a full argument for legal reform. After all, the Code plays favorites all the time. Scholars have traditionally turned to theories of distributive justice when evaluating whether tax preferences are warranted. These theories offer competing visions about the way resources should be …

Protecting Patients From Physicians Who Inflict Harm: New Legal Resources For State Medical Boards, Elizabeth Pendo, Tristan Mcintosh, Heidi A. Walsh, Kari Baldwin, James M. Dubois

Articles

State medical boards (SMBs) protect the public by ensuring that physicians uphold appropriate standards of care and ethical practice. Despite this clear purpose, egregious types of wrongdoing by physicians are alarmingly frequent, harmful, and under-reported. Even when egregious wrongdoing is reported to SMBs, it is unclear why SMBs sometimes fail to promptly remove seriously offending physicians from practice. Legal and policy tools that are targeted, well-informed, and actionable are urgently needed to help SMBs more effectively protect patients from egregious wrongdoing by physicians.

Past reviews of SMB performance have identified features of SMBs associated with higher rates of severe disciplinary …

The Right To Benefit From Big Data As A Public Resource, Mary D. Fan

Articles

The information that we reveal from interactions online and with electronic devices has massive value—for both private profit and public benefit, such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of …

Public (Ai)Ccomodations, Jevan Hutson, Deepak George, Aj Kidd, Sulaf Al-Saif, Mandy (Meiyun) Ku, Devin Glaser, Devin Glaser

Articles

This Note discusses the use of Al surveillance in places of public accommodations and its implications for civil rights and antidiscrimination law. Part I documents the extensive Al surveillance employed in areas of public accommodation, where American antidiscrimination laws explicitly provide for elevated protection. Part II uses critical race theory to explore how contemporary antidiscrimination law marries two approaches to antidiscrimination in a way that undercuts its own ability to remedy injustice. Part III reveals how antidiscrimination law fails to address issues implicated by Al surveillance in areas of public accommodations, and Part IV proposes a simple solution: abolish it.

Advisors Or Enablers? Bringing Professional Service Providers Into The Guiding Principles’ Fold, Anita Ramasastry

Articles

After a decade, different businesses adhere to the UN Guiding Principles on Business and Human Rights (UNGPs). Some key commercial entities, however, remain largely outside of the UNGPs universe, including professional service providers (PSPs) who are retained by businesses to provide  expert advice and services. These advisors include lawyers, management consultants, architects and others. Some may have specialized units that provide advice on the UNGPs when retained solely for that purpose. But when asked to provide general commercial legal advice, to design a building, or restructure a business, such advisors do not typically appear to apply the UNGPs, to identify …

Injurers Versus Victims: (A)Symmetric Reactions To Symmetric Risks, Francesco Parisi, Alice Guerra

Articles

Tort models assume symmetry in the behavior of injurers and victims when faced by a threat of liability and a risk of harm without compensation, respectively. This assumption has never been empirically validated. Using a novel experimental design, we study the behavior of injurers and victims when facing symmetric accident risks. Experimental results provide qualified support for the symmetric behavior hypothesis.

Early Repayment Of Loans Under Eu Law: The Lexitor Judgment, Enrico Baffi, Francesco Parisi

Articles

Recent changes in EU law provide flexibility and protection to consumers, facilitating early repayment of loans, when the consumer is no longer interested in continuing a credit relationship. From an economic point of view, early repayment of loans should be facilitated, because it allows money that is no longer needed to be put to other desirable uses. Under current EU law, as recently interpreted in the Lexitor judgment by the Court of Justice of the European Union, upon early repayment of a loan, consumers can obtain a pro-rated reimbursement of all the up-front and recurring costs of the loan, including …

Judicial Restoration Of Rights As An Auxiliary To The Pardon Power, Janeanne Murray

Articles

No abstract provided.

Extraterritorial Damages In Patent Law, Tom Cotter

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No abstract provided.

Uncoupling, June Carbone, Naomi Cahn

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No abstract provided.

"Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality", Kate Andrias, Benjamin I. Sachs

Articles

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …