Law Commons^™

The Prosecutor's Duty To "Imperfect" Rape Victims, Tamara Rice Lave

Articles

No abstract provided.

The Continuing Battle Over Economically Targeted Investments: An Analysis Of The Department Of Labor's Interpretative Bulletin 2015-01, Edward A. Zelinsky

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In Interpretive Bulletin 2015-01 (IB 2015-01), the U.S. Department of Labor (DOL) renewed the now two-decades old battle over “economically targeted investments” (ETIs). As a matter of statutory interpretation, IB 2015-01, like its predecessors, is unpersuasive. The Employee Retirement Income Security Act of 1974 (ERISA) requires plan trustees to invest “solely” to provide participants’ retirement benefits. A trustee who invests in ETIs violates this statutory obligation by pursuing collateral economic benefits for persons other than plan participants. As a matter of policy, the social investing which ETIs exemplify is unsound. At best, such social investing in practice merely shuffles investment …

Class Warfare: The Disappearance Of Low-Income Litigants From The Civil Docket, Myriam Gilles

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In recent years, much attention has been paid to the startling disparities in income and wealth in contemporary U.S. society. The enormous concentration of economic power in the top 1% is the culmination of decades of significant income and wealth gains for the top, combined with stagnant or decreasing growth for the majority - a trend that continues apace. But nowhere is the gap more glaring than in the civil docket, where class actions brought by or on behalf of low-income consumers and employees are on the verge of disappearing.

To be sure, the decline in class actions is only …

Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property, Stefan Bechtold, Christopher Buccafusco, Christopher Jon Sprigman

Articles

All creativity and innovation build on existing ideas. Authors and inventors copy, adapt, improve, interpret, and refine the ideas that have come before them. The central task of intellectual property (IP) law is regulating this sequential innovation to ensure that initial creators and subsequent creators receive the appropriate sets of incentives. Although many scholars have applied the tools of economic analysis to consider whether IP law is successful in encouraging cumulative innovation, that work has rested on a set of untested assumptions about creators’ behavior. This Article reports four novel creativity experiments that begin to test those assumptions. In particular, …

Retirement In The Land Of Lincoln: The Illinois Secure Choice Savings Program Act, Edward A. Zelinsky

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In 2015, Illinois became the first state to enact a state-mandated and state-operated retirement system for private sector employers: The Illinois Secure Choice Savings Program Act. The Illinois program resembles a system approved by the California legislature—a system that has not yet been enacted since it is conditioned on an additional vote by the legislature. Illinois’ program and the one proposed in California have notable differences in that (1) the Illinois retirement accounts will qualify as individual retirement accounts (“IRAs”) under the Internal Revenue Code (“Code”); (2) the Illinois IRAs will be Roth IRAs; (3) the California program requires participation …

The Day Doctrine Died: Private Arbitration And The End Of Law, Myriam E. Gilles

Articles

This story begins in 1980, when a budding anti-lawsuit movement found an energetic champion in a new conservative President. Over time, the movement became a dominant feature of political life, as its narrative of activist judges, jackpot justice, and a thriving lawsuit industry stirred partisan passions. And yet, some thirty years on, it is clear that the primary legacy of the anti-lawsuit movement is the movement itself--not legislative achievements, which have been few and far between, but committed adherents, including future Supreme Court Justices, lower court judges, and business leaders.

Meanwhile, and also in the early 1980s, federal courts began …

Innovation, The State And Private Enterprise: A Corporate Lawyer's Perspective, Charles M. Yablon

Articles

This is a review essay based on an important recent book, The Entrepreneurial State: Debunking Public vs. Private Sector Myths, by Mariana Mazzucato, a Professor of the Economics of Innovation. In that book, Professor Mazzucato explains how the U.S. Government, acting as an “entrepreneurial state” has made the critical investments in technologies that have given rise to multi-billion dollar new industries. Mazzucato argues that only the State currently has the funds and incentives necessary to finance the earliest and most important phases of the innovation process, investments the private sector cannot and will not make. Mazzucato’s defense of the centrality …

Hillenmeyer, "Convenience Of The Employer," And The Taxation Of Nonresidents' Incomes, Edward A. Zelinsky

Articles

In Hillenmeyer v. Cleveland Board of Review, Ohio’s Supreme Court unanimously declared that Cleveland’s municipal income tax violated the Due Process Clause of the U.S. Constitution by taxing a nonresident athlete under the “games-played” method rather than the “duty-days” method. According to the Ohio court, the games-played approach overtaxed Mr. Hillenmeyer by allocating to Cleveland Mr. Hillenmeyer’s compensation from the Chicago Bears using the percentage of the Bears’ games played in Cleveland. By this approach, Cleveland taxed Mr. Hillenmeyer extraterritorially, reaching income he earned from services he performed for the Bears outside of Cleveland’s borders. Due Process, the Ohio …

The Hopes And Fears Of All The Years: 30 Years Behind And The Road Ahead For The Widespread Use Of Mediation, Lela P. Love, Ellen A. Waldman

Articles

Looking through the windshield in 1985, the dispute resolution community was enthusiastic about mediation's promise: the promise of a radically different paradigm premised on party-driven resolution and collaborative decision-making. Peering ahead, mediation's pioneers anticipated a quiet revolution in conflict management toward more therapeutic and democratic processes. What do events in the last three decades tell us about the high and low points — the successes and failures — in the journey of that endeavor? Looking forward, how might we best align reality with our highest aspirations and avoid the disappointing troughs we encountered in those past decades? This article addresses …

Legal Capacity For All: Including Older Persons In The Shift From Adult Guardianship To Supported Decision-Making, Rebekah Diller

Articles

For the last several decades, guardianship has been the subject of continual calls for reform, often spurred by revelations of guardian malfeasance and other abuses in the system. Recent developments in international human rights law pose a more fundamental challenge to the institution. Under Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), governments may not deprive individuals of their “legal capacity”—or right to make decisions and have those decisions recognized as legally binding—on the grounds of disability. In the wake of the CRPD, the concept of supported decision-making has gained growing acceptance as …

The Entrepreneurial Commons: Reframing The Relationship Between Intellectual Property And Entrepreneurship, Michael J. Burstein

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Reconceptualizing entrepreneurial activity as a knowledge commons leads us to ask a different set of questions than previous studies have, and to utilize a different set of methodological tools. As Part II described, existing approaches to understanding the relationship between IP and entrepreneurship focus on the firm and its reactions to various IP laws. By contrast, to the extent that the exemplar entrepreneurial activities described in Part III can be described as instances of commons governance, the analysis must necessarily be broader. The knowledge commons framework forces us to acknowledge that much of information production and dissemination depends on relationships …

The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, Dave Fagundes

Articles

Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no economic harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-economic harms tend to stifle rather than encourage creative production. While much scholarship has critiqued copyright’s economic theory from the perspective of authors’ incentives to create, ours is the first to explore this issue from the perspective of owners’ motivations to sue for infringement. We turn to moral psychology, and in particular to moral …

A Theory Of Copyright Authorship, Christopher Buccafusco

Articles

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner …

Justice Scalia, The 2016 Presidential Election, And The Future Of Church-State Relations, Marci A. Hamilton

Articles

No abstract provided.

What Fascism Teaches Us, Arthur Jacobson

Articles

The article argues that fascism represents a perverted extreme of conservatism that seeks to protect tradition through the total abandonment of reason and the use of violence. By analyzing the omissions in Leo Strauss's political framework, the analysis posits that the only effective response to the fascist challenge is a model of reason rooted in revelation—specifically the rabbinic Jewish tradition—which provides an irrational basis for maintaining a rational community.

The Unwritten Federal Arbitration Act, Anthony J. Sebok

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The article examines the tension between the Federal Arbitration Act (FAA) and state public policy, particularly in consumer arbitration cases. It argues that while the FAA prioritizes arbitration agreements, state public policy can override such agreements when they undermine fairness or due process. The analysis focuses on the implications of ATT Mobility v. Concepcion, which upheld the enforceability of class action waivers under the FAA, and explores how state laws and policies continue to influence arbitration outcomes, especially regarding consolidation and assignment of consumer claims.

Private Dollars For Public Litigation: An Introduction, Anthony J. Sebok

Articles

The article argues that litigation investment—where third-party funders provide capital for lawsuits in exchange for a share of potential recoveries—should be extended to public litigation. It contends that the economic rationale for litigation investment applies equally to public entities, such as state Attorneys General, as it does to private litigants. The author highlights the funding gap in public litigation, particularly in large-scale cases against well-resourced defendants, and suggests that litigation investment could address this gap more effectively than contingent fee arrangements with private attorneys.

Editor's Introduction To The Symposium "Macpherson At 100: Reflections On Its Influence", Anthony J. Sebok

Articles

The article introduces a symposium that challenges the conventional narrative of MacPherson v. Buick Motor Co. as a decisive victory over the privity rule. It argues that the case's actual influence is more nuanced, misunderstood, or absent than commonly believed, suggesting that the meaning of landmark decisions is shaped by subsequent interpretation rather than the ruling alone.

Abortion, Informed Consent, And Regulatory Spillover, Katherine Shaw, Alex Stein

Articles

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understand-ing, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.

This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possi-bility that such standards might cross state lines. Planned Parenthood v. Casey and other …

Constructive Unilateralism: U.S. Leadership And International Taxation, Reuven S. Avi-Yonah

Articles

In recent years, various U.S. international tax proposals have been advanced on the basis that we should follow the lead of our major trading partners. For example, it has been argued that we should adopt a "territorial" tax system (really, an exemption for dividends by controlled subsidiaries of U.S. multinationals) because most of our trading partners have done so. Other voices have called for the United States to adopt a "patent box" because the United Kingdom and other EU jurisdictions have one.

Formalism And Functionalism In Antitrust Treatment Of Loyalty Rebates: A Comparative Perspective, Daniel A. Crane

Articles

It is a widely held belief that U.S. antitrust law has long been characterized by economic functionalism and that European antitrust law has long been characterized by legal formalism.' The received wisdom began to change in Europe a decade ago when the Directorate General Competition of the European Commission (DG Comp) began to advocate a more "effects-based" analysis of abuse of dominance. Two factors arguably contributed to this change. First, the DG Comp became increasingly influenced by economists who had little use for the old formalism. Second, as Europe trie to spread antitrust to developing antitrust regimes across the world-and, …

Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus

Articles

In Part I, I will describe the ways in which today's right-to-counsel challenges are similar to and different from those that faced the writers of the 1961 symposium. I will also explain in more detail why the structural conditions of criminal defense work to create (and, to some extent, always have created) a cultural problem in indigent defense delivery systems across the country. In Part II, I will discuss why I believe that we are, once again, facing a moment for potential reform, albeit reform that is different in scope and kind from that which was possible in the 1960s. …

Contemporary Practice Of The United States Relating To International Law, January 2016, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • United States and France Sign Agreement to Compensate Holocaust Victims • United States Conducts Naval Operation Within Twelve Nautical Miles of Spratly Islands in the South China Sea, Prompting Protests from China • United States Pursues Bilateral and Multilateral Initiatives in and Around the Arctic

Testing Racial Profiling: Empirical Assessment Of Disparate Treatment By Police, Sonja B. Starr

Articles

In this Article, I explore why measuring disparate-treatment discrimination by police is so difficult, and consider the ways that researchers' existing tools can make headway on these challenges and the ways they fall short. Lab experiments have provided useful information about implicit racial bias, but they cannot directly tell us how these biases actually affect real-world behavior. Meanwhile, for observational researchers, there are various hurdles, but the hardest one to overcome is generally the absence of data on the citizen conduct that at least partially shapes policing decisions. Most crime, and certainly most noncriminal "suspicious" or probable-cause-generating behavior, goes unreported …

Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus

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In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists. But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the …

The Just-Barely-Sustainable California Prisoners' Rights Ecosystem, Margo Schlanger

Articles

Over the past two decades, the United States has seen a marked decline in the frequency and depth of court interventions in prisons and jails. Prisoners’ rights litigation has not disappeared—but it has been drastically curtailed by the 1996 Prison Litigation Reform Act (PLRA), along with myriad other forces, doctrinal and political. The PLRA, enacted as part of the Newt Gingrich “Contract with America,” undermined prisoners’ ability to bring, settle, and win lawsuits. (Schlanger 2003; Schlanger 2006)

The resulting impact on jail and prison litigation has been extremely substantial. Significant prisoners’ rights cases certainly remain on court dockets, and new …

Exposing The Gendered Myth Of Post Conflict Transition: The Transformative Power Of Economic And Social Rights, Madeleine Rees, Christine M. Chinkin

Articles

Post conflict transition has become an industry, with a plethora of states, NGOs, experts, institutes, academics and U.N. bodies, all seeking to find the right formula to effect real and sustainable peace where previously there has been none. It is valuable and important, nevertheless, to note that "more than [fifty] percent of peace agreements fail within the first five years of signature". The evidence is clear: transitions are not working.

In this essay we seek to explain and deconstruct some of the terminology applied to post conflict situations by briefly looking at conceptss of "gender equality" participation, political economy, neo-liberalism, …

Commentary On The Emerging Constitutional Indigenous Peoples Land Rights In Tanzania, Daniel Halberstam

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The pastoralists and hunter-gatherer indigenous peoples in Tanzania continue lobbying their recognition as such and protection of their land rights. This article discusses the extent to which the indigenous peoples are legally recognized and the state of their security of land tenure. With the hindsight of the UN Declaration on the Rights of Indigenous Peoples 2007 and the 2003 Report of the African Commission Working Group of Experts on Indigenous Population, this article probes the emerging indigenous land rights within the broader understating of the minority rights in the Draft Constitution of Tanzania 2014 as well as the Draft Policy …

Opinion 2/13 Of The Court (C.J.E.U.), Daniel Halberstam

Articles

Opinion 2/13 of the Court of Justice of the European Union (CJEU) declared the draft agreement on European Union accession to the European Convention on Human Rights (ECHR) incompatible with the Treaty on European Union. The Opinion comes toward the end of a long and gradual process of incorporating human and fundamental rights principles into the legal system of the European Community and its successor, the European Union. Opinion 2/13 sends the Commission back to the drawing board on what has long been seen as the capstone of that process—EU accession to the Strasbourg human rights regime as an external …

When Should We Teach Our Students To Pay Attention To The Costs Of Legal Research?, Beth H. Wilensky

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It is axiomatic in legal research pedagogy that law schools should teach students how to conduct cost-effective legal research. To do that, we need to teach students to consider the amount of time and money their research requires, how paid legal research platforms like Westlaw and Lexis charge for their services, and how to research in an efficient and cost-sensitive way. But we shouldn’t do those things. Or at least, we shouldn’t do them at first. Instead, we should tell students not to worry about the costs of legal research during their first year of law school—with the possible exception …