Law Commons^™

Is It Time To Scrap Stare Decisis?, Wilfred U. Codrington Iii

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Shortly after returning to the presidency, Donald Trump terminated several independent federal officers, prompting legal action by employees who occupied government positions covered by statutory for cause removal protections long held constitutionally permissible and valid. Eventually, one or more suits alleging unlawful termination owing to the removal without cause will reach the Supreme Court to be decided on the merits. Having steadily narrowed the Humphrey’s Executor line of cases that insulate these officers, the Court now seems poised to displace that precedent entirely. In isolation, the overruling would mark a seismic doctrinal shift and major advance in legal conservatism's pursuit …

Lost And Found: The Forgotten Origins Of The “Cruel And Unusual Punishments” Prohibition, John D. Bessler

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The U.S. Supreme Court and legal scholars have long traced the origins of the Eighth Amendment’s prohibition against “cruel and unusual punishments” to the English Declaration of Rights, codified as the English Bill of Rights (1689). The English Declaration of Rights recited that, in King James II’s reign, “illegal and cruel punishments” had been “inflicted,” with its tenth clause then declaring in hortatory fashion: “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibitions against excessive bail and excessive fines and the final phrase—“nor cruel and unusual punishments inflicted”—were later …

The Supreme Court’S Old Habits In A New Era? Native Nations, Statehood, And An Indigenous-Led Future For Natural Resources, Monte Mills

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art I of this essay looks back and, relying on Winans and Winters, illustrates the Court’s longstanding commitment to a recognition of tribally reserved rights while requiring a collaborative approach that acknowledges some state interest and authority. Part II then briefly assesses the modern era of Indigenous leadership in natural resources, reviewing the ways in which Native Nations are implementing a new framework of collaborative stewardship for lands, waters, wildlife, and other ecological systems. Finally, Part III considers how the lessons or impacts of this broader movement might be relevant in future conflicts raising questions of statehood and tribal …

Democratic Lawyering: Upending The "Hidden Curriculum" To Prepare New Lawyers For A New World, Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills

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Multiple heightening crises reveal the deficiencies and contradictions of legal education, in particular the values it imparts. Perpetuating myths about U.S. democracy and rule of law, the enduring formalist, liberal legalist cast of law school is increasingly at odds with students’ lived experiences. As liberal democracy and the rule of law falter, no longer is relying on the “hidden curriculum” or the historically nebulous and mythical narratives of the law and our legal system sufficient to prepare tomorrow’s lawyers for the challenges faced by our profession. Instead, with a boost from ABA Standard 303, this article draws on the tradition …

Planning A New Paradigm: Tribal Co-Stewardship And Federal Public Lands Planning, Monte Mills, Martin Nie

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Planning is a critical part of the federal government’s management of the nation’s public lands. Over the last half century, Congress has mandated that each of the four major public land management agencies; the U.S. Forest Service, the Bureau of Land Management, the U.S. Fish and Wildlife Service, and the National Park Service, develop and rely on plans to guide their oversight of public lands and resources. Virtually every activity or decision affecting these public lands can be traced back to language in—or missing from—a plan. But, despite the importance of planning, the process by which each agency develops and …

The New Redlining: How Progressive Policies Restrict The Development Of Housing Supply And Perpetuate America's Racist Property Law Past, Steve Calandrillo, Kelsey Dunn

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Recent scholarship has exposed America’s racist property law past. During the twentieth century, decades of deliberate state-sponsored discrimination (a.k.a., “Redlining”) made homeownership—and the accumulation of wealth—more difficult for people of color. In 1948, the Supreme Court outlawed these practices in the seminal case, Shelly v. Kraemer. However, the damage had been done, and has proven to be long-lasting. Redlining slowed economic mobility for people of color and exacerbated the racial wealth gap. As a result, America is in the midst of an affordable housing crisis that disproportionately impacts people of color.

Readers well versed in economics and public policy …

The Equal Protection-Fourth Amendment Shell Game: An Essay On The Limited Reach Of The 2023 Affirmative Action Cases, The Fourth Amendment, And Race Beyond Skin Color, David B. Owens

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In striking down race-conscious admissions at Harvard and the University of North Carolina, the Supreme Court used lofty rhetoric about the importance of ending race discrimination, even calling the command of Equal Protection “universal.” In two ways, this Essay explores the legal and practical limits of the affirmative action cases and illustrates how the Court’s claimed concern about race discrimination rings hollow. First, this Essay discusses state actors permitted to use race in their decision-making: the police. Unlike elite universities whose policies are subject to exacting scrutiny, the Supreme Court permits police to use race when deciding whom to seize …

Does Third Party Litigation Funding Need Regulations On Consumer Protection, Ronen Avraham, Eric Schuller, Anthony J. Sebok

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Transcript of a roundtable discussion during the Third-Party Litigation Symposium at the S.J. Quinney College of Law.

The Right To Exit Religion, Zalman Rothschild

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This Article argues that just over fifty years ago, in Wisconsin v. Yoder, the Supreme Court recognized what might be called a right to exit religion. In this decision, the Court expressed appreciation for preserving insular religious communities, while simultaneously articulating the principle that accommodations for such communities must not unduly restrict community members’ ability to exit should they wish to do so. Yet courts and scholars have largely overlooked Yoder’s recognition of a right to exit religion. To make this “right” more concrete, the Article examines impediments to it through a case study of one large insular religious community—the …

Bruni And Sugden On Market Virtues, Luís C. Calderón Gómez, Robert Talisse, John A. Weymark

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According to classical liberalism, markets are instruments for the mutually advantageous voluntary exchange of goods and services among individuals who have conflicting interests. Some critics have used a virtue ethics understanding of behavior in markets to call for moral limits to markets because this classical view does not respect the internal value of human practices and the intrinsic motivations of individuals. In response, Luigino Bruni and Robert Sugden have offered a virtue ethics defense of markets, thereby “reclaiming virtue ethics for economics.” We argue that their account needs further elaboration and clarification before it is possible to assess the soundness …

How Experts View The Legal System's Use Of Scientific Evidence, Shari Seidman Diamond, Richard Lempert

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Legal scholars and courts frequently write about how scientific evidence is vetted and presented in legal proceedings, but the views of experts themselves have received little attention. Our research aims to fill that gap. This paper reports some of what we learned from a series of surveys we conducted, beginning with a survey in 2016 of scientists who had been elected to membership in the American Academy of Arts and Sciences.3 Subsequent surveys were directed to subscribers of the journal Science who identified as scientists and engineers and to self-identified experts who advertised their availability as experts to lawyers or …

The President's Orders Targeting Law Firms As Unconstitutional Bills Of Attainder-- Damning Lessons From The Past, Gary Simson

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“Sentence first, verdict afterwards,” the Queen in Alice in Wonderland insisted at the trial of the Knave of Hearts for stealing the Queen’s tarts. Such an upsidedown process obviously leaves quite a bit to be desired, but compared to the process provided by President Donald Trump’s executive orders announcing and inflicting debilitating penalties on particular law firms, it’s not all that bad. After all, the Knave of Hearts, unlike the targeted firms, at least got some sort of trial before punishment was announced.

Also, it’s one thing to be punished for stealing the Queen’s tarts—something that any law-abiding citizen of …

Harms, Relationships, And The Contours Of Liability For Emotional Distress, Steven Schaus

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In Reasonableness and Risk, Greg Keating argues that the law of torts is “preoccupied” with harm—with safeguarding conditions of effective agency. In this comment, I ask whether Keating’s picture can make sense of the tort claims, like loss of consortium, that provide some measure of protection to relationships—and to marriage-like relationships, in particular. It would be awful if my life partner were seriously injured or killed—a serious setback to my interests—a harm by almost any measure. But in what sense would it impair my agency, as Keating’s account of harm seems to require? I explain the force of the question …

Deglobalization, Tax Competition, And The Potential Revival Of The Welfare State, Reuven S. Avi-Yonah, Doron Narotzki

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Before 1980 the world was relatively closed. There were significant barriers to cross-border trade and investment in the form of tariffs and exchange controls. Martin Feldstein, former President Reagan’s chief economic adviser, coauthored an article in 1979 that showed that investment in the U.S. economy was about equal to U.S. savings, so the United States could manage without any foreign direct or portfolio investment.

Novel Corporate Governance Structures, Jennifer S. Fan, Xuan-Thao Nguyen

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Artificial Intelligence (“AI”) startups have taken center stage, rapidly disrupting conventional industries at an unprecedented pace with their groundbreaking innovations. Hailed by many as the most significant technological advancement of our era, AI’s profound societal impact has garnered heightened public and governmental scrutiny. The spotlight has recently fallen on OpenAI, the creator of ChatGPT, which weathered a tumultuous period marked by the ouster and subsequent rehiring of CEO Sam Altman, a board reconfiguration, and Altman’s later return to the board. Concerns over AI safety were offered as the rationale for the tandem corporate governance structure of nonprofit and for-profit at …

The Ai Input Class: Constitutional Urgency And Fair Licensing In Ai Copyright Class Actions, Xuan-Thao Nguyen, Elizabeth G. Porter

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The humanities have long been under attack; now Big Tech is eating them for breakfast. Artificial Intelligence is undermining the cultural and constitutional values of human creativity; it is also threatening the livelihoods of the creative working class. Because neither Congress nor regulators can keep pace with AI’s pace of change, class actions have stepped into the breach. In the first wave of such litigation, authors and artists in courts on both coasts claim that AI companies violate intellectual property law when they “train” their systems on copyrighted works.

This Article analyzes what we call “input” AI claims—that is, proposed …

Why Did The Irs Restart Transfer Pricing Litigation?, Reuven S. Avi-Yonah

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In his excellent recent article on Coca-Cola’s appeal of its transfer pricing defeat in the Tax Court, Tax Notes contributing editor Ryan Finley explains that Coca-Cola’s main argument is based on the idea that “the IRS led the company into an ambush.” In 1996 the IRS entered into a closing agreement with Coca-Cola that provided that for the 1987 through 1995 tax years, the division of profits between Coca-Cola and its foreign “supply points” (the subsidiaries responsible for mixing the secret formula) would be based on a 10 percent return to the subsidiary and that any profit above that would …

The Return Of Private Law, Anthony J. Sebok

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Recent events offer a grim picture of the future of public law. In particular, President Trump’s assault on the administrative state seems destined to hamper the ability of agencies to protect the public in familiar areas such as drug safety, auto safety, environmental protection, and consumer protection.

Democracy’S Distrust: The Supreme Court’S Anti-Voter Decisions As A Threat To Democracy, Gilda R. Daniels

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This Essay explores perceived biases within recent Supreme Court decisions affecting voting access and their implications for American democracy. The Supreme Court plays a pivotal role in enforcing democratic principles. This Essay examines historical and contemporary examples of judicial decisions that have privileged powerful political candidates and legislatures to the detriment of voters. As a lens for assessing these decisions, the Essay introduces a conceptual dichotomy between candidate-centered and voter-centered perspectives. The Essay argues that the Court’s prioritization of the former perspective has forced citizens to bear the burden of antidemocratic decisions, which in turn has led to widespread distrust …

Should The States Return To Worldwide Combined Reporting?, Reuven S. Avi-Yonah

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On February 20 the Institute on Taxation and Economic Policy (ITEP) released a report on the revenue implications of states adopting worldwide combined reporting (WWCR). WWCR refers to a method of taxation that several states (for example, California) applied from the 1970s to the 1990s. Under WWCR, the state takes the entire worldwide profit of a multinational operating in the state and multiplies it by a formula that traditionally combines payroll, tangible assets, and sales in the state divided by worldwide payroll, assets, and sales. The result is the amount of profit taxable in that state.

Biglaw's Race Problem, Angela Onwuachi-Willig, Anthony V. Alfieri

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Ever since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, Professor …

Saving Agency Adjudication, Aaron L. Nielson, Christopher J. Walker, Melissa F. Wasserman

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When discussing the federal judiciary, commentators typically fixate on the 800 or so “Article III” judges who are nominated by the President, confirmed by the Senate, and enjoy life tenure and salary protection. Yet most federal adjudication does not take place in federal courthouses at all. Instead, it occurs in nondescript hearing rooms in administrative agencies—if not telephonically. Indeed, the more than 12,000 agency adjudicators scattered across the federal government collectively issue millions of decisions per year on subjects ranging from Social Security and veterans benefits to immigration and patent rights. In recent years, however, scholars and agency adjudicators have …

Drivers Of Effective Laws For Automated Vehicles, William Hubbard

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Hundreds of thousands of automated vehicles (AVs) are currently driving on America’s roads. The defining feature of AVs is that sophisticated technological systems control some or even all aspects of vehicle movement. Like any motor vehicle, AVs provide many benefits but also raise significant safety concerns. Indeed, people are already dying in collisions with AVs. Effective AV regulation is therefore critical.

This Article addresses an important—perhaps the most important— issue of AV regulation today. Recent empirical research has uncovered a shocking legal crisis: more than 40,000 conventional state laws are unclear or ineffective when applied to AVs. Fortunately, the vast …

Lessons For The Trump Administration From The Biden U.S. National Strategy To Counter Antisemitism, Lili Levi

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In May 2023, the Biden Administration issued the first-ever U.S. National Strategy to Counter Antisemitism [hereinafter National Strategy] with a goal of hindering further normalization of antisemitism by increasing public awareness of antisemitism and highlighting positive Jewish contributions to America. Recent events, however-particularly the social and political upheaval over protests of the war in Gaza-have led to public contestation over Israel, increased instances of antisemitism, and the partisan politicization of Jewish issues. Now, the Trump Administration explicitly purports to fight antisemitism by widespread attacks on universities over antisemitism on campus. Does this mean that the National Strategy has become anachronistic, …

The Editorial Board's Stories Of War And Recovery, Rachelle Navarro, Edna Epstein, Kristin Bender, Leonard Niehoff, Rahul Agarwal, Dennis Raglin, Margaret Mckeown

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What follows are real-world experiences my fellow editors at Litigation journal shared with me. As much as misery loves company, we litigators love war stories more and, boy, do we have some! They show us that, when faced with unexpected catastrophes, we have only one option: Get to work. Do the math. Solve the problem. And then solve the next one.

Unspeakable Objections: Recovering From The Tricks And Traps Of Rule 30(C)(2), Leonard Niehoff, Shannon Hickey

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The boundary between a proper “working” objection and an improper “speaking” objection under Federal Rule of Civil Procedure 30(c)(2) turns out to be less discernible and more mysterious than we might like. It’s certainly less plain than some lawyers believe and some judges have suggested. We all need a better understanding of how and why the business of making objections at depositions can get complicated under the terms of this rule.

Environmental Geography And Law: Toward A Synthesis, Michaela Anang-Hadjicostandi, Sophia Borgias, Karrigan Börk, Ann M. Eisenberg, Guadalupe M. Franco, Cinnamon Carlarne Hirokawa, Keith H. Hirokawa, Jonathan London, Melinda Morgan, Jessica Owley, Shannon Roesler, Sonya Ziaja

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This Article introduces the new interdisciplinary field of Environmental Geography and Law, which has deep roots in ecology, social science, and law. Environmental and natural resources laws are situated in specific times and places where the climate, ecosystems, history and political economy influence both the land and the law. These places drive and constrain the way law develops. In turn, the law shapes places, from the dispossession and forced migration of indigenous groups, to land development via railroad land grants, to patterns of resource extraction and infrastructure development. Past efforts to integrate law and geography have focused more on critical …

U.S. Territories And The Criminal Law Curriculum, Emmanuel H. Arnaud

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No abstract provided.

Springboard To Article V (Or Electoral Democracy And The End Of Constitutional Amendment In The Nation And States), Wilfred U. Codrington Iii

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Drafted in exceedingly sparing terms and notoriously difficult to amend, the U S. Constitution is falling short in one of the most important functions of a government charter: establishing and maintaining a fair and just electoral framework-marked by rules that promote the values of equality, participation, competition, and transparency in elections. That is, the Constitution increasingly fails to preserve electoral democracy even as the nation's systems for voting and elections are plagued by a cascade of problems. State constitutions, though not uniform, are uniformly easier to amend than the national charter and tend to be better stewards of electoral democracy. …

Is The Utpr Extraterritorial Or Discriminatory?, Reuven S. Avi-Yonah

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On January 20 President Trump issued two executive orders on international tax. The first order rejected the OECD’s two-pillar project, stating: The OECD Global Tax Deal supported under the prior administration not only allows extraterritorial jurisdiction over American income but also limits our Nation’s ability to enact tax policies that serve the interests of American businesses and workers. Because of the Global Tax Deal and other discriminatory foreign tax practices, American companies may face retaliatory international tax regimes if the United States does not comply with foreign tax policy objectives. This memorandum recaptures our Nation’s sovereignty and economic competitiveness by …