Law Commons^™

Intraparty Conflict And The Separation Of Powers, Gregory A. Elinson

College of Law Faculty Publications

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that contrary to the Madisonian vision competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty …

"Critical Legal Studies, Again?" "Again And Again!", Evan D. Bernick

College of Law Faculty Publications

A review of FROM PARCHMENT TO DUST: THE CASE FOR CONSTITUTIONAL SKEPTICISM. Louis Michael Seidman.* New York: The New Press. 2021. Pp. viii + 311. $27.99 (Hardcover).

You’d be forgiven for assuming that Louis Michael Seidman’s estimation of the U.S. Constitution had improved over the course of the last decade. In his 2012 book, On Constitutional Disobedience, he asked whether anyone should “feel obligated to obey [a] deeply flawed, eighteenth-century document,” and answered (emphatically) “No.”2 Now he has published From Parchment to Dust: The Case for Constitutional Skepticism. At first blush, skepticism seems rather different and less radical than disobedience. …

Norm-Breakers, Rights-Makers: Legislative Norms, Democratization, And The Fight For Civil Rights, Gregory A. Elinson

College of Law Faculty Publications

Norms, the conventional wisdom goes, help to keep our democracy stable. And breaking norms, scholars believe, puts democracy at risk of backsliding. This Article challenges that consensus. The original historical evidence marshaled here shows that norm-breaking by civil rights reformers in Congress was critical to jumpstarting the democratization of the United States in the mid-twentieth century, ensuring passage of both the Civil Rights Act of 1964 and Voting Rights Act of 1965. Norm-breaking, the Article makes clear, is sometimes essential to democratic reform.

Leveraging these detailed case studies, the Article explains why. In preserving the status quo, norms protect existing …

In The Room Where The Constitution Happens, Lorianne Updike Toler

College of Law Faculty Publications

Constitution-writing, according to the United Nations, should be participatory, non-exclusionary, and transparent. Recent scholarship has identified group inclusion, or ensuring that a broad swath of enfranchised groups is welcomed into the drafting room, as the lodestar of constitutional process. In making this comparative case--one which has important implications for modern constitution-writing--scholarship provides precious little empirical evidence, particularly from the historical genre. This ignores the benefit of studying the oldest constitution-writing traditions in America and all that can be learned by tracing a practice or idea to its roots.

This study, the first monogram on New Hampshire’s five constitution-writing processes between …

Jane Crow Constitutionalism, Evan D. Bernick

College of Law Faculty Publications

On June 24, 2022 The United States Supreme Court issued its decision on Dobbs v. Jackson Women’s Health Organization; overturning Roe v. Wade, and destroying fifty years of precedent to protect the constitutional right to abortion in the United States. This overturning sets a dangerous, new precedent that reinforces the State’s control of reproduction, and criminalizes a woman’s right to choose, with very few exceptions. In states like Mississippi, Black women are already experiencing the highest rates of maternal mortality, incarceration, and poverty.

This article posits that Dobbs operates to maintain a racialized and gendered underclass, and names this phenomenon …

The Constraint Of History, Lorianne Updike Toler, Robert Capodilupo

College of Law Faculty Publications

Accepted wisdom dictates that history does not constrain the behavior of the Supreme Court. Rather, it is merely a tool used to legitimize legal outcomes predetermined by policy. Recent studies claim to have confirmed this state of play, providing “proof” for the cynic and impelling apologists to fashion new justifications. Yet this study of all cases referencing the Constitutional Convention provides evidence that history can constrain judicial interpretation of the Constitution.

As proof of concept, this Article analyzes the extent to which Justices’ use of primary and secondary sources when referencing the Constitutional Convention is associated with casting cross-partisan votes …

There Is Something That Our Constitution Just Is, Evan D. Bernick, Christopher R. Green

College of Law Faculty Publications

Historian Jonathan Gienapp has launched a collection of widely celebrated attacks on originalism. He charges originalists with culpable neglect of the legal and political context in which the Constitution was framed and claims that the idea of a written Constitution was not prevalent in 1787 or 1788. Indeed, he goes so far as to call it a "myth."

This Article critiques Gienapp's arguments, contending that he is perpetuating myths of his own. It is not true that originalists haven't seriously investigated what sort of thing the Constitution is. It is not true that there was widespread, fundamental disagreement during the …

The Prospect And Perils Of Climate Preemption For Public Health, Sarah Fox

College of Law Faculty Publications

Climate change is disrupting many communities in the United States and around the world. Climate events like heat waves, hurricanes, drought, fire, and flooding will become much more frequent, and with them will come the need for robust health care responses. Given the widespread and boundary-crossing nature of the problem, an ideal response would possibly originate at the federal or state level. As illustrated by the COVID-19 pandemic, however, there is little guarantee that such a response will be forthcoming. Recent foreclosures of federal options for handling climate change make such a response even less likely. Instead, it seems likely …

Movement Administrative Procedure, Evan D. Bernick

College of Law Faculty Publications

On April 4, 1946, The Potters Herald, a Thursday weekly dedicated to labor and union news, published an editorial warning readers of pending legislation “which may seriously affect labor” despite not containing a “single word about labor” in its text. This legislation would empower “anti-labor judges” to overturn decisions by the National Labor Relations Board. Despite its neutral appearance, it was in reality designed to “kick [labor and the NLRB] in the teeth” and would result in “a field day for the corporation lawyers.”

The complained-of legislation was the Administrative Procedure Act of 1946 (APA). From today’s vantage point, the …

What Is The Object Of The Constitutional Oath?, Evan D. Bernick, Christopher R. Green

College of Law Faculty Publications

How and why are public officials today obliged to follow the Constitution? Article VI gives us a crystal-clear answer: They are bound “by oath or affirmation, to support this Constitution.” But what is “this Constitution”? American constitutional culture today describes its Constitution in ways that presuppose that the Article VI oath binds officeholders to an external, objective, common object: the same commitment for all oath-takers today, and the same commitment today as in the past. Justices on the Supreme Court took their constitutional oaths at different times, spread out over 31 years from 1991 to 2022, but they claim to …

Equal Protection Against Policing, Evan D. Bernick

College of Law Faculty Publications

A White police officer pins his knee against a Black man’s neck. The Black man lies prone. He says he can’t move. He says he can’t breathe. He says he’s through. He pleads for his mama. He moans, gasps, and writhes. Blood runs out of his nose and mouth. After eight minutes and forty-six seconds, George Floyd is dead.

Videos of the killing went viral. All four of the Minneapolis Police Department officers who arrested Floyd for allegedly using a counterfeit $20 bill at a convenience store were fired. Derek Chauvin—who held his knee to Floyd’s neck—was initially charged by …

Brief For Lorianne Updike Toler As Amicus Curiae Supporting Neither Party, Gorge Design Group, Llc V. Xuansheng, Lorianne Updike Toler, Lawrence A. Stein

College of Law Faculty Publications

The Patent and Copyright Clause in the Constitution was designed to stimulate the economy by promoting “the Progress of Science and useful Arts,” and was also limited to that purpose. Insofar as the economy was not stimulated and promoted in the United States, the Clause had a limit. Thus the Patent and Copyright Clause was not thought to be absolute by its Framers, and was bounded geographically, temporally, and to those inventions that were useful. Under the Fifth Amendment, both the Takings and Due Process Clauses protecting property derived from the Magna Carta of 1215. Since this time, the Takings …

What Web3 Means For Lawyers' Ethical Duties, Heidi L. Frostestad

College of Law Faculty Publications

Evolving technologies are one of the greatest issues of our time and continue to affect legal practice at a rapid rate, exponentially changing the structure of law firms and traditional practice.

Applying Universal Design In The Legal Academy, Matthew L. Timko

College of Law Faculty Publications

Too often barriers to access in the form of physical, technological, and cognitive environments play a large role in keeping many people out of law school. While federal and state laws address these barriers, universal design provides the clearest policy change for law schools to remedy these issues.

Fourteenth Amendment Confrontation, Evan D. Bernick

College of Law Faculty Publications

Mr. Haley is one of the most memorable villains in all of American fiction. A “coarse” slave-trader whose “swaggering air of pretension” enrages readers of Harriet Beecher Stowe’s Uncle Tom’s Cabin from his appearance in the opening scene, Haley does his part to fulfill the novel’s purpose of strengthening the abolitionist cause. He is also not entirely fictional, and his creation is part of the constitutional history of the United States.

The real Haley was John Caphart, a slave-catcher hired by John DeBree of Norfolk, Virginia to capture Shadrach Minkins—an enslaved man who in 1851 fled from Virginia to Boston. …

Presuit Lawyer Information Duties Relevant To Civil Litigation, Jeffrey A. Parness

College of Law Faculty Publications

In both federal and state courts in the United States, there are significant civil procedure, professional responsibility, and substantive laws addressing presuit lawyer duties on creating, preserving, producing, and protecting information relevant to later civil litigation. These laws speak to lawyer conduct both in personally handling information and in overseeing the information acts of others. To date, the challenges these laws pose to lawyers have not been well examined, or even largely perceived. And, to date, lawyers have been left unaccountable for their personal violations of these duties.

Irrationalities In Legal Parentage: Gender Identity And Beyond, Jeffrey A. Parness

College of Law Faculty Publications

This Article is the first to outline the irrationalities in many new and old parentage laws. Irrationalities often arise when the laws employ gendered terms like mother and father, husband and wife, man and woman, and male and female. These terms require a parent to be gender identified by the state, even when such an identity clashes with the parent’s own gender identification. More importantly, these gendered terms frequently clash with public policies underlying parentage laws, new and old, that are not dependent upon any form of gender identity.

Beyond gender identity, irrationalities also arise when there are distinctions without …

Presuit Civil Protective Orders On Discovery, Jeffrey A. Parness

College of Law Faculty Publications

There are few civil procedure laws broadly authorizing trial courts in the United States to consider presuit requests seeking protection from discovery sanctions or spoliation claims in later civil actions. There should be more laws on presuit protective orders addressing information maintenance, preservation, and production.

New presuit protective order laws are most apt where there have been demands by potential adversaries involving alleged information preservation duties under civil discovery laws or under substantive spoliation laws; where the recipients have strong reasons to secure early judicial clarifications; and where the availability and use of presuit protective orders will serve both private …

Who Is A Parent? Intrastate And Interstate Differences, Jeffrey A. Parness

College of Law Faculty Publications

When the parental status of one or more people involved in a civil action is contested in a court in the United States, the need for a legal parentage determination arises. In these contests, legal parentage can differ from personally and/or publicly perceived parentage. Legal parentage can also differ by context, as between child custody and child support settings. Legal parentage most often varies by context in a single American state where the purposes behind varying parentage laws differ, as where biology is key in one setting and parental like acts are key in another setting.

Parental status laws are …

Abortion And Safe Haven Laws, Jeffrey A. Parness

College of Law Faculty Publications

Notwithstanding the assertions of the State of Mississippi, of one amicus, and of Justice Amy Coney Barrett in Dobbs v. Jackson Women’s Health Organization, abortion laws and safe haven laws are oil and vinegar. Not only do they not mix, but safe haven laws in some ways support the continuing validity of the balance on individual privacy interests and legitimate governmental interests struck in the Roe v. Wade decision on abortion. Both abortion availability laws and safe haven laws advance the interests of women who choose not to parent children within their existing family structures. But safe haven laws, …

Choosing Parentage Laws In Multistate Conduct Cases, Jeffrey A. Parness

College of Law Faculty Publications

This paper explores choosing parentage laws in multistate conduct cases in varying contexts, including cases involving parentage for childcare purpose and for such nonchildcare purposes as tort, probate and child support. Choice of law may be compelled by Full Faith and Credit. Where there is no compulsion, the forum choice of law rules typically apply. These rules, of course, can vary in a single state between contexts, as with parenthood in childcare and in probate settings. These rules can also vary between states in a single context, as with parentage in tort settings. The paper seeks to provide guidance to …

State Spoliation Claims In Federal District Courts, Jeffrey A. Parness

College of Law Faculty Publications

The increasing amounts of electronically stored information (ESI) relevant to civil litigation, and the ease of their loss, caused federal lawmakers explicitly to address the possible consequences of certain pre-suit or post-suit ESI losses. These lawmakers acted in both 2006 and 2015 through Federal Civil Procedure (FRCP) 37(e). But they acted only on certain ESI. Their actions have prompted increasing attention to the significant risks of pre-suit and post-suit losses of all ESI, and of non-ESI, otherwise discoverable in civil actions. In addition, their actions have spurred increasing attention to the availability of substantive law claims involving spoliation of information …

The Roberts Court And Lost Esi, Jeffrey A. Parness

College of Law Faculty Publications

John G. Roberts, Jr. was confirmed as Chief Justice of the U.S. Supreme Court in September 2005. Since then, there have been two major changes in the Federal Rules of Civil Procedure (FRCP) involving losses of discoverable electronically stored information (ESI). These changes address the duties of preserving some ESI for federal civil litigation and the sanctions available for preservation failures. The changes were embodied in FRCP 37, once in 2006 and once in 2015. The current Rule 37(e) provisions have always been accompanied by other FRCP discovery provisions on ESI, with some predating any version of Rule 37(e). To …

American Constitutions And Artificial Insemination Births, Jeffrey A. Parness

College of Law Faculty Publications

Childcare parentage issues arising from assisted reproduction births are subject to constitutional guidance, including due process, equal protection, and privacy dictates. Constitutional rights, however, sometimes go unrecognized in assisted reproduction laws, particularly for same sex couples, wed and unwed, as well as for single women. Upon a brief review of contemporary American state assisted reproduction laws, current and future constitutional precedents are explored. This analysis shows that constitutional, as well as public policy, reforms are particularly needed for same-sex female couples and single women employing assisted reproduction as intended parents.

Diy Artificial Insemination: The Not-So-Great Gatsby, Jeffrey A. Parness

College of Law Faculty Publications

Increasingly, intended parentage by female couples, married and unmarried, and by single women, is pursued via do-it-yourself (DIY) artificial insemination (AI) that utilizes sperm donors (who may be unknown). A recent ruling illustrates the difficulties arising from incomplete AI statutes. In Gatsby v. Gatsby in 2021, the Idaho Supreme Court determined legal parentage for a child born via AI to a married female couple who later divorced. The Gatsby ruling is troublesome on several fronts. Its problems highlight the difficulties facing intended childcare parents employing AI in the United States, especially for those without significant financial resources and women, coupled …

Expanding State Parent Registry Laws, Jeffrey A. Parness

College of Law Faculty Publications

As with state recognized voluntary acknowledgements of parentage (VAPs) and state recognized assisted reproduction pacts (SRARPs) on childcare parentage for future or current children, state parent registries (PRs), often labeled putative paternity registries or putative father registries, embody declarations of expecting or current legal parenthood. Yet declarations on children in PRs often involve unilateral assertions, unlike dual parenthood declarations in VAPs. Actual parenthood under law for many PR declarants is never recognized because there are no simultaneous assertions by a second expecting or existing legal parent on the declarant’s parenthood, as with an assertion by an expecting or existing birth …

Civil Procedure And The New Bar Exam, Jeffrey A. Parness

College of Law Faculty Publications

In 2022 the National Conference of Bar Examiners (NCBE) issued its “Content Scope Outlines” for public comment, soliciting input on “significant oversights. The outlines were designed to inform the public “of the scope of the topics to be assessed in the eight Foundational Concepts and Principles (FCP) and the scope of the lawyering tasks to be assessed in the seven Foundational Skills (FS) on the next generation of the bar exam.” One of the eight FCP was “Civil Procedure” (including constitutional protections and proceedings before administrative agencies).

This comment addresses some “significant oversights” (solicited by the NCBE) on the topic …

The Right To Access Legal Information: Progress And Evolving Norms In A Digital Age, Heidi L. Frostestad

College of Law Faculty Publications

The right to access information is a historically fundamental right according to international legal norms. During an era of increasingly complex innovation and burgeoning digital legal information, the tension between access and barriers to easily accessible legal information like encryption and privacy have changed the landscape of open access. This article addresses the traditional international law facilitation of open access to legal information and current legislative efforts for protection of these norms. It also offers a matrix of international and national initiatives as model regimes for this important right to access information and, especially, preserving open access to legal information.

Adapting To A 4°C World, Sarah Fox, Karrigan Börk, Karen Bradshaw, Cinnamon Piñon Carlarne, Robin Kundis Craig, Joshua Galperin, Keith H. Hirokawa, Shi-Ling Hsu, Katrina Fischer Kuh, Kevin J. Lynch, Michele Okoh, Jessica Owley, Melissa Powers, Shannon Roesler, J. B. Ruhl, James E. Salzman, David Takacs, Clifford Villa

College of Law Faculty Publications

The Paris Agreement’s goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.

When A Statute Comes With A User Manual: Reconciling Textualism And Uniform Acts, Gregory A. Elinson, Robert H. Sitkoff

College of Law Faculty Publications

This Article develops an interpretive theory for statutes that originate as Uniform Acts promulgated by the Uniform Law Commission. Although overlooked in the literature on statutory interpretation, state-enacted Uniform Acts are ubiquitous. They shape our life cycles—governing marriage, parentage, divorce, and death—and structure trillions of dollars in daily commercial transactions.

Largely focusing on textualism, today’s dominant form of statutory interpretation, we analyze the interpretive consequences of two unusual features of state-enacted Uniform Acts. First, the text of every Uniform Act directs courts to interpret it to “promote uniformity.” Second, each provision is accompanied by an official explanatory comment, analogous to …