Law Commons^™

Public Enforcement Compensation And Private Rights, Prentiss Cox

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Government enforcement actions have returned tens of billions of dollars to consumers, investors and employees. This “public enforcement compensation” is important to effective civil law enforcement, yet it is poorly understood and increasingly criticized. Recent scholarship asserts that public compensation mimics class action recoveries and raises the same concerns of accountability to recipients of relief. This Article rejects the class action analogy and presents an alternative framework grounded in the law and practice of public enforcement for understanding the relationship between public compensation and private rights. One scholar goes further and contends that state attorneys general violate constitutional due process …

A Consequential Justice, Robert Stein

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No abstract provided.

Seeking Clemency For Inmates Serving Outdated Sentences, Janeanne Murray

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No abstract provided.

Nonmarriage, June Carbone, Naomi Cahn

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Now that the Supreme Court has reshaped the laws of marriage, attention is shifting to nonmarriage. The law no longer treats intimate couples who do not marry as either deviant or deprived. Yet, rather than regulate nonmarriage in a systematic way, the law applies two inconsistent doctrines to govern these relationships. This Article is the first to explore the fundamental contradiction in the legal approach to unmarried partners. While the laws governing financial obligations between unmarried couples are moving toward a deregulatory model that radically differs from the status-based regulation of marriage, the laws of custody and support insist on …

Friending The Privacy Regulators, William Mcgeveran

Articles

According to conventional wisdom, data privacy regulators in the European Union are unreasonably demanding, while their American counterparts are laughably lax. Many observers further assume that any privacy enforcement without monetary fines or other punishment is an ineffective “slap on the wrist.” This Article demonstrates that both of these assumptions are wrong. It uses the simultaneous 2011 investigation of Facebook’s privacy practices by regulators in the United States and Ireland as a case study. These two agencies reached broadly similar conclusions, and neither imposed a traditional penalty. Instead, they utilized “responsive regulation,” where the government emphasizes less adversarial techniques and …

The Grass Is Not Always Greener: Congressional Dysfunction, Executive Action, And Climate Change In Comparative Perspective, Hari Osofsky, Jacqueline Peel

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Partisan climate change politics, paired with a legislative branch that is often deeply divided between two parties, has led to congressional gridlock in the United States. Numerous efforts at passing comprehensive climate change legislation have failed, and little prospect exists for such legislation in the foreseeable future. As a result, executive action under existing federal environmental statutes--often in interaction with litigation--has become the primary mechanism for national-level regulation of greenhouse gas emissions from motor vehicles and power plants. Although many observers critique this state of affairs and wish for a legislature more able to act. this essay argues that more …

Pining Away In The Midst Of Plenty: The Irony Of Rorty's Either/Or Philosophy, Susan Haack

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No abstract provided.

No Longer A Neutral Magistrate: The Foreign Intelligence Surveillance Court In The Wake Of The War On Terror, Robert Stein, Walter Mondale, Caitlinrose Fisher

Articles

Since the founding of our nation, the executive, judicial, and legislative branches of government have struggled with maintaining an appropriate balance between gathering intelligence for national security purposes and protecting the civil liberties of United States citizens. This difficulty is compounded by the uniquely challenging separation of powers issues national security problems present. In 1978, after the scale tipped too far toward “security” at the expense of personal liberties, the United States Senate formed the United States Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Church Committee) to investigate executive overreach and recommend structural and statutory changes …

Sharing Residual Liability: ‘Cheapest Cost Avoider’ Revisited, Emanuela Carbonara, Alice Guerra, Francesco Parisi

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Economic models of tort law evaluate the efficiency of liability rules in terms of care and activity levels. A liability regime is optimal when it creates incentives to maximize the value of risky activities at the net of accident and precaution costs. The allocation of primary and residual liability allows policymakers to induce parties to undertake socially desirable care and activity levels. Traditionally, tort law systems have assigned residual liability either entirely on the tortfeasor or entirely on the victim. In this paper, we unpack the cheapest cost-avoider principle (Calabresi, 1970) to consider the virtues and the limits of loss-sharing …

Open Minds And Harmless Errors: Judicial Review Of Post-Promulgation Notice And Comment, Kristin Hickman, Mark Thomson

Articles

In 2012, the Government Accountability Office surprised many administrative law specialists by reporting that fully 35% of major rules and 44% of nonmajor rules issued by federal government agencies lacked pre-promulgation notice and opportunity for public comment. For at least most of the major rules, however, the issuing agencies accepted comments from the public after issuing the rule, and in most of those cases, the agencies followed up with new final rules, responding to comments and often making changes in response thereto. Post-promulgation notice and comment do not precisely comply with the Administrative Procedure Act, yet are arguably close enough …

Forging Path For Women's Rights In Customary Law, Tamar Ezer

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No abstract provided.

Post-Graduate Legal Training: The Case For Tax-Exempt Programs, Philip Hackney, Adam Chodorow

Articles

The challenging job market for recent law school graduates has highlighted a fact well known to those familiar with legal education: A significant gap exists between what students learn in law school and what they need to be practice-ready lawyers. Legal employers historically assumed the task of providing real-world training, but they have become much less willing to do so. At the same time, a large numbers of Americans – and not just those living at or below the poverty line – are simply unable to afford lawyers. In this Article, we argue that post-graduate legal training, similar to post-graduate …

Resurrecting Islam Or Cementing Social Hierarchy?: Reexamining The Codification Of 'Islamic' Personal Status Law, Haider Ala Hamoudi

Articles

There is a regrettable tendency to equate social conservatism with religious adherence. Nowhere does this occur more than in the Muslim world, where conservatives are closely associated with adherence to shari’a. The more unyielding the conservative, the “stricter” the supposed adherence to shari’a, or, alternatively, the more “literal” the version of shari’a adhered to.

While almost any social conservative movement in the Muslim world or otherwise professes adherence to religious doctrine as being the core of its ideological commitment, and while there are important ways in which Muslim social conservatives insist on adherence to religious rules in their most traditional …

Lawyers At Work: A Study Of The Reading, Writing, And Communication Practices Of Legal Professionals, Ann N. Sinsheimer, David J. Herring

Articles

This paper reports the results of a three-year ethnographic study of attorneys in the workplace. The authors applied ethnographic methods to identify how junior associates in law firm settings engaged in reading and writing tasks in their daily practice. The authors were able to identify the types of texts junior associates encountered in the workplace and to isolate the strategies these attorneys used to read and compose texts.

The findings suggest that lawyering is fundamentally about reading. The attorneys observed for this study read constantly, encountering a large variety of texts and engaging in many styles of reading, including close …

Black Health Matters: Disparities, Community Health, And Interest Convergence, Mary Crossley

Articles

Health disparities represent a significant strand in the fabric of racial injustice in the United States, one that has proven exceptionally durable. Many millions of dollars have been invested in addressing racial disparities over the past three decades. Researchers have identified disparities, unpacked their causes, and tracked their trajectories, with only limited progress in narrowing the health gap between whites and racial and ethnic minorities. The implementation of the Affordable Care Act (ACA) and the movement toward value-based payment methods for health care may supply a new avenue for addressing disparities. This Article argues that the ACA’s requirement that tax-exempt …

Deference To Claims Of Substantial Religious Burden, Caroline Mala Corbin

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No abstract provided.

Ready, Fire, Aim: How Universities Are Failing The Constitution In Sexual Assault Cases, Tamara Rice Lave

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This Article looks critically at the procedural protections American universities give students accused of sexual assault. It begins by situating these policies historically, providing background to Title IX and the different guidelines promulgated by the Department of Education. Next, it presents original research on the procedural protections provided by the fifty flagship state universities. In October 2014, university administrators were contacted and asked a series of questions about the rights afforded to students, including the standard of proof right to an adjudicatory hearing, right to confront and cross examine witnesses, right to counsel, right to silence, and right to appeal. …

Financial Stability, Financial Services, And The Single Market, Caroline Bradley

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No abstract provided.

Classing Up The Agency, Sergio J. Campos

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No abstract provided.

Collaboration Between Schools And Child Welfare Agencies In Florida To Address The Educational Needs Of Children In Foster Care, Kele Stewart, Vanessa Thorrington

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No abstract provided.

Mind The Analytical Gap! Tracing A Fault Line In Daubert, Susan Haack

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No abstract provided.

Compensation's Role In Deterrence, Russell M. Gold

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There are plenty of noneconomic reasons to care whether victims are compensated in class actions. The traditional law-and-economics view, however, is that when individual claim values are small, there is no reason to care whether victims are compensated. Rather than compensation deterring wrongdoing is tort law's primary economic objective. And on this score, law-and-economics scholars contend that only the aggregate amount of money that a defendant expects to pay affects deterrence. They say that it does not matter for deterrence purposes how that money is split between victims, lawyers, and charities. This Article challenges that claim about achieving tort law's …

The End Of An Era? Federal Civil Procedure After The 2015 Amendments, Adam N. Steinman

Articles

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee's earlier proposals and supporting …

The Secession Of The Successful: The Rise Of Amazon As Private Global Consumer Protection Regulator, Jane K. Winn

Articles

In 2005, the Americans for Fair Electronic Commerce Transactions (“AFFECT”) coalition issued a list of 12 principles it hoped would contribute to a new consensus about what constitutes fairness in online consumer transactions. A decade later, a cursory review of different jurisdictions indicates that, while there has been little discernable progress in the direction of the principles in the United States, other jurisdictions such as the European Union have made more progress.

However, the one jurisdiction in the world that comes closest to implementing all 12 principles across the full spectrum of consumer transactions is not a government at all, …

Copyright's Illogical Exclusion Of Conceptual Art That Changes Over Time, Zahr K. Said

Articles

This Essay argues that copyright illogically excludes conceptual art from protection on the basis of fixation, given that well-settled case law has interpreted the fixation requirement to reach works that contain certain kinds of change so long as they are sufficiently repetitive to be deemed permanent. While conceptual art may perhaps be better left outside the scope of copyright protection on the basis of its failure to meet copyright’s other requirements, this Essay concludes that fixation should not be the basis on which to exclude conceptual art from protection.

There are of course both normative and descriptive questions around the …

Class As Caste: The Thirteenth Amendment’S Applicability To Class-Based Subordination, William M. Carter Jr.

Articles

As part of a symposium marking the sesquicentennial of the Thirteenth Amendment, this Article briefly explores whether the Thirteenth Amendment applies to class-based subordination. While recognizing that the increasingly rigid class-based stratification of our society, rampant discrimination against the poor, increasing income inequality, and the concentration of enormous wealth in the hands of so few are all pressing social challenges that the legal system must address, this Article concludes that generalized class-based discrimination likely would not fall within the scope of the “badges and incidents of slavery” that the Amendment prohibits.

This Article argues, however, that the Thirteenth Amendment's prohibition …

Leading New Lawyers: Leadership And Legal Education, Michael J. Madison

Articles

Lawyers may become leaders, but leaders also may become lawyers. The path to leadership can begin in law school. This short essay describes a leadership development course developed and implemented at a law school over the last four years.

Full Circle? The Single Tax Principle, Beps, And The New Us Model, Reuven S. Avi-Yonah

Articles

This paper will argue that while there is some innovation in BEPS, it is in fact more of a continuation that a sharp break with the past. Like Alexis de Tocqueville’s French Revolution, BEPS represents both continuity and change. In particular, the single tax principle has formed the theoretical basis of much of the international tax regime from the beginning. And it is in fact this continuity rather than any sharp change that gives the final BEPS package its promise to, as Secretary General Gurria also promised, “put an end to double non-taxation.”

Portmanteau Ascendant: Post-Release Regulations And Sex Offender Recidivism, J. J. Prescott

Articles

The purported purpose of sex offender post-release regulations (e.g., community notification and residency restrictions) is the reduction of sex offender recidivism. On their face, these laws seem well-designed and likely to be effective. A simple economic framework of offender behavior can be used to formalize these basic intuitions: in essence, post-release regulations either increase the probability of detection or increase the immediate cost of engaging in the prohibited activity (or both), and so should reduce the likelihood of criminal behavior. These laws aim to incapacitate people outside of prison. Yet, empirical researchers to date have found essentially no reliable evidence …

Until The Client Speaks: Reviving The Legal-Interest Model For Preverbal Children, Lisa Kelly, Alicia Levezu

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This article seeks to revive and develop further the concept of legalinterest advocacy, which was first introduced by the American Bar Association in 1996. This overlooked model offers a workable alternative to both the best-interest and substituted-judgment representation models for preverbal clients. Through legal-interest advocacy, attorneys for preverbal children are charged with ensuring that the many rights given to infants are enforced, while withdrawing from attorneys the ability to impose their values on the child client. This article outlines how legal-interest advocacy representation can ensure that a child's legal rights are protected and preserved until the child client can speak …