Law Commons^™

Letter From Jeffery M. Kadet To Internal Revenue Serv. (Oct. 6, 2019) On Notice 2019-30, 2019-2020 Priority Guidance Plan - Sourcing Of Cloud Services Income, Jeffery M. Kadet

Articles

No abstract provided.

Us Supreme Court Bars Punitive Damages In Unseaworthiness Claims, Craig H. Allen

Articles

To appreciate the reach of the Court's decision on punitive damages for unseaworthiness claims, it is important to understand the federal courts' steady expansion of the class of workers who now qualify as "seamen," the class of floating vessels and structures that now qualify as "vessels," and the strict liability standard for determining whether a vessel is seaworthy.

Professionally Responsible Artificial Intelligence, Michael Hatfield

Articles

As artificial intelligence (AI) developers produce more applications for professional use, how will we determine when the use is professionally responsible? One way to answer the question is to determine whether the AI augments the professional’s intelligence or whether it is used as a substitute for it. To augment the professional’s intelligence would be to make it greater, that is, to increase and improve the professional’s expertise. But a professional who substitutes artificial intelligence for his or her own puts both the professional role and the client at risk. The problem is developing guidance that encourages professionals to use AI …

Bringing The Court Into The Classroom: Suggestions For How To Craft Exercises For Upper-Level Courses Using Real Practitioners' Briefs, Benjamin Halasz

Articles

When I came to teach after practicing for over a decade, I wanted my students to learn to write by using materials from real clients and cases. I quickly found that’s easier said than done. But through experimentation and discussions with experienced colleagues, I found several successful ways to put students into the role of writing parts of a “real” brief—one that uses a real case and real facts—for short, in-class exercises in upper-level courses.

Several articles tout the benefits of using briefs as examples, an enthusiasm I join. But this article focuses on using cases, and especially briefs, as …

Janus As A Client: Ethical Obligations When Your Client Plays Two Roles In One Fiduciary Estate, Karen Boxx, Philip N. Jones

Articles

Is it possible for an attorney to have a conflict of interest when the attorney represents a trustee who is also a beneficiary of the trust? Is that situation similar to having two clients? What if the trustee is not only a beneficiary, but also a claimant against the trust? Since the trustee has three roles to play, is that situation similar to an attorney having three clients? The issue presented by these potential conflicts was one of the most vexing for the drafters of the Fifth Edition of the ACTEC Commentaries. The range of possible approaches goes from a …

Ameliorating The Federal Trial Penalty Through A Systematic Judicial “Second Look” Procedure, Janeanne Murray

Articles

The trial penalty -- the threat of a substantially more severe conviction or longer sentence after trial than the one available upon a guilty plea -- is a key driver of mass incarceration. It undergirds not just the number of people behind bars, but the long sentences so many of them serve. One path to ameliorating the impact of the trial penalty is through a systematic judicial “second look” procedure, whereby judges revisit the propriety of a long sentence after the defendant has served a substantial portion of it. Taking the proposed “second look” provision of the revised Model Penal …

Rethinking Police Rulemaking, Maria Ponomarenko

Articles

No abstract provided.

The Most Revealing Word In The United States Reports, Richard Primus

Articles

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that such …

Reputation And Accountability: Another Look At The United Nations’ Response To The Cholera Epidemic In Haiti, Kristina Daugirdas

Articles

The cholera outbreak in Haiti offers a useful case study of reputation as a disciplinarian of international organizations. On the one hand, UN officials and member states alike have emphasized the need to repair the organization’s damaged reputation. On the other hand, the UN secretariat declined to take certain steps that might have averted—or at least mitigated—that reputational damage in the first place. This contribution argues that the United Nations’ response to cholera in Haiti showcases some important limitations and complications of reputation as a disciplinarian. Reputation will function as a less effective disciplinarian of organizations in the context of …

Prosecutors And Voters Are Becoming Smart On Crime, Barbara L. Mcquade

Articles

How to explain the recent trend of electing reform-minded local prosecutors? It may be that voters are seeing through tough talk to embrace smarter strategies to reduce crime.

Restructuring Rebuttal Of The Marital Presumption For The Modern Era, Jessica Feinberg

Articles

The marital presumption of paternity, which arose from English common law, has served as a core component of the law governing parentage in the United States since the nation’s inception. Pursuant to the marital presumption, a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage. Historically, the marital presumption was extremely difficult to rebut, generally requiring proof of the husband’s non-access to his wife during the time of conception, the husband’s sterility or impotence, or adultery on the part of the wife. As these early grounds for rebuttal …

“You Can't Afford To Flinch In The Face Of Duty”: Judge William Augustus Bootle And The Desegregation Of The University Of Georgia, Patrick Emery Longan

Articles

On January 6, 1961, United States District Judge William Augustus Bootle granted a permanent injunction that required the University of Georgia to admit its first two black students, Hamilton E. Holmes and Charlayne A. Hunter. The backlash began immediately. Newspaper editorials condemned the decision. The Governor of Georgia threatened to close the University. Students rioted. A man escaped from an insane asylum, armed himself and went looking for Charlayne Hunter at her dormitory. Judge Bootle received numerous critical letters, including some that were threatening. Yet Judge Bootle’s attitude was that he did no more than what his position as a …

Voice, Strength, And No-Contest Clauses, Karen J. Sneddon

Articles

The will is a unilateral written disposition of probate property to be effective upon the will-maker's death. To have any legal effect, however, the will-maker's family, beneficiaries, and personal representatives, along with the probate court, need to implement the will provisions. To buttress the strength of the will, the language of the will is definitive, certain, and strong. But when the will relies upon standardized language, the voice of the will-maker is flattened or even non-existent. The absence of the willmaker's voice may jeopardize the legal effect of the will.

This Article argues that the over-reliance on "time-tested" formulaic language …

Reputation Failure: The Limits Of Market Discipline In Consumer Markets, Yonathan A. Arbel

Articles

Many believe that consumer-sourced reputational information about products should increasingly replace top-down regulation. Instead of protecting consumers through coercive laws, reputational information gleaned from the wisdom of the crowd would guide consumer decision-making. There is now a growing pressure to deregulate in diverse fields such as contracts, products liability, consumer protection, and occupational licensing.

This Article presents a common failure mode of systems of reputation: "Reputation Failure." By spotlighting the public-good nature of reviews, rankings, and even gossip, this Article shows the mismatch between the private incentives consumers have to create reputational information and its social value. As a result …

Forgotten Statutes: Trade Law's Domestic (Re)Turn, Kathleen Claussen

Articles

Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral …

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Articles

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to "public" monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an …

"Scientific Inference" Vs. "Legal Reasoning"? Not So Fast! ¿"Inferencia Cientifíca" Vs."Razonamiento Jurídico"? -- No Tan Rápido!, Susan Haack

Articles

No abstract provided.

"Scientific Inference" Vs. "Legal Reasoning"? -Not So Fast!, Susan Haack

Articles

To understand why the interactions of science with the legal system can be so problematic, it's not enough to gesture vaguely towards a supposed contrast between scientific and legal "modes of thinking"; we need to look, instead, to the consequences of the different purposes of science and the law, the different constraints under which they pursue those purposes, and the different cultures of the two enterprises. From this perspective we can see why the law sometimes asks more of science than science can give, and sometimes gets less from science than science could give; and also why a simple dichotomy …

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

Articles

No abstract provided.

Appellate Jurisdiction And The Emoluments Litigation, Adam N. Steinman

Articles

No abstract provided.

"Sorry" Is Never Enough: How State Apology Laws Fail To Reduce Medical Malpractice Liability Risk, Benjamin Mcmichael, R. Lawrence Van Horn, W. Kip Viscusi

Articles

Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, thirty-nine states (and the District of Columbia) have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible as evidence in subsequent malpractice trials.

The underlying assumption of these laws is that after receiving an apology, patients will be less likely to pursue malpractice claims and will be more likely to settle claims that are filed. However, once a patient has been made aware that the physician has committed a medical error, …

The Progressive Idea Of Democratic Administration, William J. Novak

Articles

The first thing to acknowledge about administration is that administration is coincident with governance. Far from being a modern invention or some kind of radical departure from an original political or legal tradition, administration is among the oldest practices of governments. Indeed, it is impossible to conceive of government without administration. Laws need to be enforced, legislation needs to be implemented, and collective goods need to be secured. Governance is mostly a matter of actions and practices, making administration perhaps the most truly reflective aspect of legal and political culture.

Catch And Kill: Does The First Amendment Protect Buying Speech To Bury It?, Leonard M. Niehoff

Articles

The news media usually chase stories in order to publish them—but sometimes not so much. In some instances, media entities vigorously pursue a story—and purchase the source’s right to tell it—for the specific purpose of ensuring that it does not see the light of day. This practice, commonly called “catch and kill,” has recently come under close scrutiny and raises a host of questions.

These include pragmatic questions: Does the practice work? Can the media entity (or a third-party beneficiary) really enforce the underlying contract? Doesn’t the source’s willingness to abide by the contract come down to a simple economic …

Social Freedom, Democracy And The Political: Three Reflections On Axel Honneth's Idea Of Socialism, Stephen W. Sawyer, William J. Novak, James T. Sparrow

Articles

Axel Honneth’s Idea of Socialism is an important clarion call for an urgent rethinking of the possibilities of a socialism for the twenty-first century. One of the most surprising and satisfying aspects of Axel Honneth’s timely new book is its recovery of the continued vitality of John Dewey’s pragmatic democratic philosophy. These reflections on Honneth’s use of John Dewey for democratizing social freedom, take stock of and explore the political limits of Honneth’s social reconstruction.

Clown Eggs, Dave Fagundes, Aaron Perzanowski

Articles

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its surrounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller derby …

The Private Law Critique Of International Investment Law, Julian Arato

Articles

This Article argues that investment treaties subtly constrain how nations organize their internal systems of private law, including laws of property, contracts, corporations, and intellectual property. Problematically, the treaties do so on a one-size-fits-all basis, disregarding the wide variation in values reflected in these domestic legal institutions. Investor-state dispute settlement exacerbates this tension, further distorting national private law arrangements. This hidden aspect of the system produces inefficiency, unfairness, and distributional inequities that have eluded the regime's critics and apologists alike.

Privacy In The Age Of Medical Big Data, W. Nicholson Price Ii, I. Glenn Cohen

Articles

Big data has become the ubiquitous watch word of medical innovation. The rapid development of machine-learning techniques and artificial intelligence in particular has promised to revolutionize medical practice from the allocation of resources to the diagnosis of complex diseases. But with big data comes big risks and challenges, among them significant questions about patient privacy. Here, we outline the legal and ethical challenges big data brings to patient privacy. We discuss, among other topics, how best to conceive of health privacy; the importance of equity, consent, and patient governance in data collection; discrimination in data uses; and how to handle …

Shadow Health Records Meet New Data Privacy Laws, W. Nicholson Price Ii, Margot E. Kaminski, Timo Minssen, Kayte Spector-Bagdady

Articles

Large sets of health data can enable innovation and quality measurement but can also create technical challenges and privacy risks. When entities such as health plans and health care providers handle personal health information, they are often subject to data privacy regulation. But amid a flood of new forms of health data, some third parties have figured out ways to avoid some data privacy laws, developing what we call “shadow health records”—collections of health data outside the health system that provide detailed pictures of individual health—that allow both innovative research and commercial targeting despite data privacy rules. Now that space …

An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias

Articles

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, …

Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll

Articles

The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the …