Law Commons^™

The Duke Model: A Performance-Based Solution For Compensating College Athletes, David A. Grenardo

Faculty Articles

The time has long come for the NCAA, its member institutions, and college athletes to sit down and discuss compensating college athletes for playing. Rather than continue a war of words with increasing animosity between college athletes and the NCAA, the parties should take advantage of the existing infrastructures to begin a discussion that would lead to the abandonment of the prohibition on compensating athletes and the adoption of a model for payment. Once the parties begin that conversation about compensation for college athletes above their scholarship amounts, this article sets forth a proposal, the "Duke Model," that serves as …

Recognizing Taxpayers As Stakeholders In Municipal Bankruptcies, Diane Lourdes Dick

Faculty Articles

No abstract provided.

The Ecclesiastical Tribunals Field Hospital For Wounded Marriages: The New Matrimonial Processus Brevoir, Roberto Rosas

Faculty Articles

This article will focus on explaining the new marriage annulment processes of the Latin Church, which are found in the Motu proprio Mitis ludex Dominus lesus, although the same processes apply to the processes in the Eastern Churches. Any differences that exist between the two processes are due to the distinct ecclesiastical structure between one Church and another.

This explanation will advance the following points: (1) marriage; (2) reasons for a new matrimonial process; (3) guiding principles for the new process; (4) pastoral footprint of service to the faithful in ecclesiastic tribunals; (5) actualization of the ecclesiastic structure; (6) the …

Blockchain's Treacherous Vocabulary: One More Challenge For Regulators, Angela Walch

Faculty Articles

No abstract provided.

International Environmental Law, Environmental Justice, And The Global South, Carmen Gonzalez, Sumudu Atapattu

Faculty Articles

No abstract provided.

The Cfpb Proposed Arbitration Ban, The Rule, The Data, And Some Considerations For Change, Ramona L. Lampley

Faculty Articles

Predispute consumer arbitration has sparked energetic debate and sharply divides the utility of the class action versus the utility of individual arbitration. Thus far, the U.S. Supreme Court’s jurisprudence has given a “thumbs up” approach to predispute consumer arbitration waivers, which almost always include a class waiver agreement. Congress showed little interest in amending the Federal Arbitration Act (“FAA”), even for consumer cases. It seems that consumer arbitration was the “wild west” of the law, in that it was largely unregulated and could direct claims to the black hole of private dispute resolution. In May 2016, the Consumer Financial Protection …

The Path Of The Blockchain Lexicon (And The Law), Angela Walch

Faculty Articles

The terminology around blockchain technology is notoriously confusing, with disputes over whether a blockchain is the same as a distributed ledger or whether an appcoin is the same as a protocol token. In this article, I examine the difficulties the rapidly shifting, contested vocabulary poses for regulators seeking to understand, govern, and potentially use blockchain technology, and I offer suggestions for how to fight through the haze of unclear language.

I provide examples of the fluctuating, contested language in the blockchain technology space and describe the forces at play in shaping the language. I then lay out the problems the …

Baseball's Conflict Of Law, Mark W. Cochran

Faculty Articles

There is a conflict of laws in Major League Baseball, resulting from the National League’s refusal to adopt the Designated Hitter Rule, and the American League’s refusal to abandon it. As is often the case when rules of two jurisdictions diverge, the conflict reflects a difference in priorities and philosophies between the two leagues. By adopting and maintaining the Designated Hitter Rule, the American League demonstrates its preference for offensive output at the expense of baseball tradition. The National League preserves tradition by adhering to the natural law of baseball.

Enhancing Cybersecurity In The Private Sector By Means Of Civil Liability Lawsuits - The Connie Francis Effect, Jeffrey F. Addicott

Faculty Articles

The purpose of this article is to explore the threats posed by cybersecurity breaches, outline the steps taken by the government to address those threats in the private sector economy, and call attention to the ultimate solution, which will most certainly spur private businesses to create a more secure cyber environment for the American people-a Connie Francis-styled cyber civil action lawsuit.

Political Ripples Ahead For Supreme Court Confirmation, Michael S. Ariens

Faculty Articles

No abstract provided.

Judging Law In Election Cases, Michael S. Kang, Joanna Shepherd

Faculty Articles

In Part I, we introduce our earlier work on election cases and judicial partisanship before setting forth our new approach to studying the influence of law on judicial decisionmaking. We describe the special nature of the election cases in our database that allow more persuasive inferences of judicial partisanship than typically derived in empirical work on judicial behavior. We then explain our new approach for measuring case strength based on counterpartisan decisionmaking by judges. In Part II, we apply our approach to case strength to our dataset and present our results. In a nutshell, partisanship appears to matter as expected …

Internet Safe Harbors And The Transformation Of Copyright Law, Matthew Sag

Faculty Articles

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made …

Vulnerability And Inevitable Inequality, Martha Albertson Fineman

Faculty Articles

The abstract legal subject of liberal Western democracies fails to reflect the fundamental reality of the human condition, which is vulnerability. While it is universal and constant, vulnerability is manifested differently in individuals, often resulting in significant differences in position and circumstance. In spite of such differences, political theory positions equality as the foundation for law and policy, and privileges autonomy, independence and self-sufficiency. This article traces the origins and development of a critical legal theory that brings human vulnerability to the fore in assessing individual and state responsibility and redefining the parameters of social justice. The theory arose in …

Addressing The Retirement Crisis With Shadow 401(K)S, Deepa Das Acevedo

Faculty Articles

The United States has been juggling a handful of socio-economic crises lately. The subprime mortgage crisis, the auto industry crisis, the education crisis, the obesity crisis—the list isn’t short and shows no signs of becoming so. Within this group of economically and socially disruptive developments, the “retirement crisis”—the idea that most Americans will lack the financial resources to be secure and relatively satisfied in their golden years—seems somewhat banal because, for the most part, it has yet to hit. Even though baby boomers first started to age out of the workforce in 2011,the real cost of underfunded retirement is far …

Sovereignty And Social Change In The Wake Of India's Recent Sodomy Cases, Deepa Das Acevedo

Faculty Articles

American constitutional law scholars have long questioned whether courts can truly drive social reform, and this uncertainty remains even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India—spurred by developments in a special type of legal action developed in the late 1970s known as public interest litigation (PIL)—have only recently begun to question the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged and optimism that public interest litigation can be returned …

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren L. Hutchinson

Faculty Articles

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

Autonomy And Accountability: Why Informed Consent, Consumer Protection, And Defunding May Beat Conversion Therapy Bans, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

Invisible Bosses For Invisible Workers, Or Why The Sharing Economy Is Actually Minimally Disruptive, Deepa Das Acevedo

Faculty Articles

Because the idea that sharing economy companies operate as invisible bosses is central to many critiques of this new approach to labor exchange, Part I begins by explaining just what it is about their authority that makes it “invisible.” Part II extends this discussion to two earlier developments that, like the sharing economy, also significantly transformed the way Americans work: the franchise explosion of the 1950s and the spread of the independent contractor model in the late twentieth century. This article is the first to offer a detailed comparison of work practices used by sharing economy companies, franchises, and some …

Reforming Military Justice: An Analysis Of The Military Justice Act Of 2016, David A. Schlueter

Faculty Articles

The 2016 amendments to the Uniform Code of Military Justice (“UCMJ”) amounted to a sea change in American military justice. The Military Justice Act of 2016—a major reform of the Uniform Code of Military Justice—is set out in Division E of the National Defense Authorization Act for Fiscal Year 2017, and was signed into law by the President on December 23, 2016. Most of the amendments to the UCMJ addressed in this article will not become effective for some time—perhaps not until January 1, 2019 and in the interim, the current provisions of the UCMJ will continue to apply. Overall, …

John Henry Wigmore And The Rules Of Evidence: The Hidden Origins Of Modern Law (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

The Other Rights Revolution: Conservative Lawyers And The Remaking Of American Government (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

State Bar Efforts To Deny Accreditation To Faith-Based Cle Ethics Programs Sponsored By Religiously Affiliated Law Schools, Bill Piatt

Faculty Articles

Religiously affiliated law schools focus on the integration of faith in the formation of future attorneys and leaders. Yet our students are only our students for three years. We can extend our influence and continue to provide a faith-based perspective to them and to other attorneys during the thirty, forty, or more years of their careers by offering continuing legal education (CLE) courses, which bring attorneys and judges together to provide a model for incorporating faith and morality into our professional roles. However, CLE programs must receive accreditation by state authorities if participants are to receive credit for them. Recently, …

The Texas Supreme Court Retreats From Protecting Texas Students, Albert H. Kauffman

Faculty Articles

The Texas Supreme Court has now fully retreated from a powerful line of previous Texas Supreme Court decisions protecting the rights of public school students and low-wealth districts.' Returning to Texas history's dual system of poor districts and wealthy districts, the Court removed itself from its constitutional role as a vital ingredient in progressing toward school finance equity and adequacy and has instead regressed to a dual school system in Texas that is divided between poor and wealthy districts.

This regression becomes evident by analyzing seven major school finance decisions: (1) Edgewood Independent School District v. Kirby (Edgewood I); (2) …

The Real Doctrine & Covenants, Chad J. Pomeroy

Faculty Articles

Developers have recently begun creating, and attaching to the property they sell to consumers, what is known as a "recovery fee." These recovery fees are "new" in that most lawyers are not familiar with them and in that they seem to operate in a novel manner and are bottomed on novel claims. In essence, they create and levy a fee on subsequent owners each time the property is transferred, which fee purports to reimburse developers for infrastructure and other development costs. Because they seem new, and because they involve transfers from relatively small and unsophisticated parties to relatively large and …

Resolving Civil Forfeiture Disputes, Rishi Batra

Faculty Articles

Under a legal process known as civil asset forfeiture, state and federal laws allow law enforcement officials and the government to seize assets from individuals who are not charged with a crime if the property is suspected of being involved in criminal activity. This is true even if the owner of the property is not charged with the underlying crime. Indeed, in 2014, The Washington Post analyzed 400 cases in seventeen states that were examples of civil forfeiture during traffic stops. Police stopped motorists under the pretext of a minor traffic infraction, analyzed the intentions of motorists by assessing nervousness, …

Improving The Uniform Partition Of Heirs Property Act, Rishi Batra

Faculty Articles

Johnny Rivers was born and had lived his whole sixty-nine-year life on the same seventeen-acre tract on Clouter Creek near the Cainhoy Peninsula of Charleston, South Carolina. His father owned the land since 1888, and his family had worked the land and paid taxes, never missing a tax payment. He thought he and his family would live on the land for the rest of his life.

However, in 2000, he received a letter telling him he was the subject of a legal action called a "partition.” A family member who was a part owner of the land and whom Rivers …

Reconsidering Pre-Indictment Publicity: Racialized Crime News, Grand Juries And Tamir Rice, Bryan Adamson

Faculty Articles

"This Article examines pre-indictment publicity or, more accurately, grand jury subject-matter relevant media publicity. It examines the Rice shooting and Loehmann-Garmback grand jury process to determine, from a legal and policy perspective, what should be done to safeguard the integrity of the grand jury process in which police officers are investigatory targets for alleget use of lethal force, when the controversy is racially-charged, and where the media demonstrates pro-law enforcement and anti-minority bias."

Article 7 Meets Chapter 11: Exploring The Debtor's Request To Pay Prepetition Claims Of Shippers And Warehouses, Diane Lourdes Dick

Faculty Articles

No abstract provided.

Who Owns Human Capital?, Lily Kahng

Faculty Articles

This Article analyzes the tax law's capital income preference through the lens of intellectual capital, an increasingly important driver of economic productivity whose value derives primarily from workers' knowledge, experience and skills. The Article discusses how business owners increasingly are able to "propertize" labor into intellectual capital-to capture the returns on their workers' labor by embedding it in intellectual property and to restrict workers' ability to employ their skills and knowledge elsewhere. The Article then shows how the tax law provides significant subsidies to the process of propertization and thereby contributes to the inequitable distribution of returns between business owners …

China And India's Differing Investment Treaty And Dispute Settlement Experiences And Implications For Africa, Won Kidane

Faculty Articles

This article examines China’s and India’s differing investment treaty and dispute settlement experiences and the resulting implications for Africa. It attempts to answer the question of whether there is evidence of China’s and India’s attempt to take advantage of the default structural imbalance enabled by centuries of international investment laws and institutions that favor the investor. The Article begins by presenting the background of the current economic reality and trends that necessitate the evaluation of the existing rules and institutions. It then presents a detailed assessment of this phenomenon by focusing on the investment cases brought against India for context, …