Law Commons^™

Restoring Faith In Military Justice, Eleanor T. Morales, John W. Brooker

Faculty Publications

The military justice system was designed to maintain good order and discipline, strengthen national security, and achieve justice. After military leaders failed to effectively address the sexual assault crisis within the armed forces, Congress lost faith in this system. In response, Congress enacted sweeping legislative reform, transferring prosecutorial discretion for the most serious offenses from commanders to military lawyers. Unlike civilian prosecutions, most decisions within the military justice system have overwhelmingly favored one consideration: maintaining good order and discipline in the unit. While Congress’s reforms change who makes the decisions in many cases, they will have little effect unless military …

Beyond The Marketplace Of Ideas: Bridging Theory And Doctrine To Promote Self-Governance, David S. Ardia

Faculty Publications

This article proceeds in three parts. Part I examines the longstanding debate over the First Amendment’s purpose and explains why the marketplace of ideas theory has come to dominate both judicial and public understanding of the First Amendment’s speech and press clauses. The marketplace theory’s ascendancy, however, has proven to be problematic. It rests on an overly simplified account of public discourse, treating speech as merely a commodity that can be allocated through market-style transactions, and it has come to embody an extreme version of libertarian economic thinking that is undermining the very democratic processes the First Amendment was intended …

The Gender Gap In Academic Patenting, W. Michael Schuster, Miriam Marcowitz-Bitton, Deborah R. Gerhardt

Faculty Publications

The gender gap in academia has long been the focus of public discourse regarding the role of universities in promoting social values. In this study, we consider women’s participation in transferring knowledge from the academy to industry. A prominent model for such transfer is reflected in patent registration for inventions developed through scholarly research. And while academic patenting is a significant component of the professional activities of many faculty members, the extent to which women’s scientific discoveries are patented and commercialized has received relatively little attention.

The U.S. academy is a leader in science and a pioneer of technology transfer. …

Qualified Sovereignty, Kate Sablosky Elengold, Jonathan D. Glater

Faculty Publications

Sometimes acts of the federal government cause harm; sometimes acts of contractors hired by the federal government cause harm. In cases involving the latter, federal contractors often invoke the sovereign’s constitutionally granted and doctrinally expanded supremacy to restrict avenues for the injured to recover even from private actors. In prior work, we analyzed how federal contractors exploit three “sovereign shield” defenses—preemption, derivative sovereign immunity, and derivative intergovernmental immunity—to evade liability, accountability, and oversight.

This Article considers whether, when, and how private federal contractors should be held accountable in a court of law. We argue that a contractor should be required …

Constraining Criminal Laws, F. Andrew Hessick, Carissa Byrne Hessick

Faculty Publications

This Article challenges the modern statutory interpretation of criminal laws. In doing so, it makes two distinct, but related contributions. First, it demonstrates that courts historically played a significantly more active role in interpreting criminal laws than they currently play. In particular, courts routinely interpreted statutes to reach no further than the text or the purpose, and they treated broadly written laws as ambiguous and in need of narrowing constructions. Put simply, courts used their interpretive powers to deliberately favor criminal defendants and constrain the criminal law. Second, it explains how a more active judiciary would combat some of the …

Revisiting Health Care Fraud In The Biden Administration, Joan H. Krause

Faculty Publications

Although not one of the Biden administration’s initial priorities, health care fraud inevitably will be a major concern. First, the federal government’s response to the COVID-19 pandemic—including the disbursement of more than $175 billion in provider relief funds and the loosening of traditionally strict rules on Medicare reimbursement for telehealth services—has created new opportunities to divert health care funds for fraudulent purposes. Second, President Joseph Biden took office in the midst of the incomplete transition from volume-based to value-based payment in the federal health care programs, which will allow fraud to flourish in the gaps between multiple reimbursement systems. Third, …

Public Investment In Climate Resiliency: Lessons From The Law And Economics Of Natural Disasters, Donald T. Hornstein

Faculty Publications

This Article takes issue with an important claim in the public choice and climate disaster literature: that American political markets will not allow appropriate investments in disaster preparedness and prevention, even when those investments are cost-benefit bargains. The claim is significant because the costs of climate disasters in the twenty-first century are estimated to be in the trillions of dollars due to the presence of legacy greenhouse gases in the atmosphere. Thus, even assuming a sustained, successful global campaign to limit future greenhouse gases, the ingredients for decades of droughts, wildfires, storms, and floods are already locked into the atmosphere. …

Nonmarriage And Choice In South Africa And The United States, Holning Lau, Suzanne A. Kim

Faculty Publications

In this Article, we examine three insights about free choice that emerge from studying the development of South Africa’s law of nonmarriage. First, South African jurisprudence advances understandings of nonmarriage as a valid choice. Unlike U.S. jurisprudence, which has been accused of overprivileging marriage and demeaning nonmarriage, South African jurisprudence draws attention to people’s legitimate reasons for choosing not to marry and the dignity interests attached to that choice. South African law helps to broaden the imagination of what is possible when nonmarriage is respected as a valid choice.

Second, South African jurisprudence illuminates the fact that the choice whether …

Pricing Plastics Pollution: Lessons From Three Decades Of Climate Policy, Jonas J. Monast, John Virdin

Faculty Publications

Plastic is now the most widely used human-made substance on the planet, and plastics pollution impacts marine and coastal ecosystems, local economies, and human health. Local and national governments are increasingly responding by banning plastic bags and other specific plastic products, taxing the use of certain plastics, and improving waste management and recycling. These are important steps, but alone they will not result in a meaningful reduction in cumulative plastics pollution or encourage development of sufficient alternatives to plastic. Additional policy measures are necessary.

This Article argues that climate change and plastic pollution share numerous similarities, and these similarities allow …

Precautionary Ratemaking, Jonas J. Monast

Faculty Publications

For more than one hundred years, states have relied on ratemaking to ensure that electric utilities deliver affordable and reliable power to their customers. This process helped keep costs down, but it also produced an electricity system that is a cause of, and vulnerable to, some of the most pressing challenges now facing society: climate change, catastrophic wildfires, extreme storms, and air and water pollution.

This Article argues that risk regulation is an alternate legal foundation for interpreting bedrock principles of ratemaking, such as prudency, reasonableness, least cost, and the public interest. The traditional economic regulator view of ratemaking evaluates …

Preemption Of Police Reform: A Roadblock To Racial Justice, Rick Su, Marissa Roy, Nestor Davidson

Faculty Publications

In 2020, nearly half of the largest U.S. cities reoriented municipal spending priorities by directing money from their police budgets to social services; for many cities, these budgetary changes reversed decades of increases. Cities began implementing additional police reforms as well: New York City became the first municipality to end qualified immunity for police officers while San Francisco shifted to deploying crisis response teams, rather than police officers, to respond to mental health calls.

Instead of supporting these critical reforms, some states targeted cities that prioritized racial justice by preempting those cities’ ability to engage in meaningful change. In the …

Defunding Police Agencies, Rick Su, Anthony O'Rourke, Guyora Binder

Faculty Publications

This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, …

A Debt Of Dishonor, Kim Oosterlinck, Ugo Panizza, W. Mark C. Weidemaier, Mitu Gulati

Faculty Publications

In 1825, France conditioned its grant of recognition to the new nation of Haiti on the payment of 150 million francs plus trade benefits. The payments were, at least in part, compensation for the losses that French plantation owners suffered, a key part of which was the loss of enslaved Haitians, who took their freedom via revolution. France has officially apologized and acknowledged a “moral debt” that it owes the Haitian people. But is there a legal debt that Haiti, one of the poorest nations in the world, could claim today from France, one of the richest?

Racialized Religious School Segregation, Erika Wilson

Faculty Publications

Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education.

Social Justice As Desistance: Rethinking Approaches To Gender Violence, Deborah M. Weissman

Faculty Publications

Part I of this Article describes most domestic violence intervention programs (DVIPs) as they currently function with regard to gender violence. It critiques the structure of these programs, their close partnership with criminal legal system actors, perceived deficiencies, and it identifies missed opportunities to provide meaningful intervention strategies with those who have harmed. It demonstrates the ways that laws, regulations, and policies governing DVIPs constrain most programs from moving beyond established practices informed by punitive approaches to address the structural conditions that situate gender violence within a political economic framework.

Part II begins with a brief overview of the research …

Other Judges' Cases, Melissa B. Jacoby

Faculty Publications

After documenting the role of mediating judges in today’s federal courts, Part I considers both reform narratives and power narratives explaining their use. To add context and specificity, Part I presents case studies based on original research. While these examples have unusual features, they illustrate the breadth of potential mediating judge activities and offer more of a citable record than can be found for other cases. The first involves the largest municipal bankruptcy in American history. 10 The second starts with the bankruptcy of a founder of a nationwide assisted living facility enterprise, who also solicited retirees to make “can’t …

Amar’S The Words That Made Us, Michael J. Gerhardt

Faculty Publications

Our generation’s preeminent constitutional scholar, Professor Akhil Amar of the Yale Law School, is, like the Constitution itself, a national treasure. His most recent book, The Words that Made Us, is another masterpiece of constitutional and historical exegesis, the first of three volumes that illuminate in what ways the American Constitution has defined, energized, united, and divided the nation and its people through constitutional conversations and engagements over its meaning throughout our history. The book is awash with stories about the incremental broadening of “We the People,” the hero, authority, casualty, and beneficiary of the words that made us. …

Prosecutorial Discretion And Immigration Arrest: How Criminal Arrests Set Immigration Enforcement Priorities, Eisha Jain

Faculty Publications

Prosecutorial discretion is once again at the forefront of immigration enforcement debates. In June 2022, a federal district court effectively rescinded Executive guidelines for prosecutorial discretion in immigration enforcement. The court struck down these guidelines – longstanding as a means of establishing priorities for the arrest, detention, and removal of noncitizens– on the basis that they conflicted with provisions of the INA. According to the district court, the “core” of the legal dispute centered on “whether the Executive Branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress.” The district court …

White Injury And Innocence: On The Legal Future Of Antiracism Education, Osamudia James

Faculty Publications

In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased visibility of antiracism education engendered sustained critique and opposition, resulting in executive orders prohibiting its adoption in the federal government, the introduction or adoption of over sixty state-level bills attempting to control how race is taught in schools, and a round of lawsuits challenging antiracism education as racially discriminatory. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, …

A Silver Lining To Russia’S Sanctions-Busting Clause, Michael Bradley, Irving De Lira Salvatierra, W. Mark C. Weidemaier, Mitu Gulati

Faculty Publications

In 2018, Russia began inserting an unusual clause into euro and dollar sovereign bonds, seemingly designed to circumvent future Western sanctions. The clause worked by letting the government pay in roubles if sanctions cut off access to dollar and euro payment systems. The clause received little scrutiny at the time, perhaps because Russia used a state-owned bank, rather than a global investment bank, as underwriter. But with the invasion of Ukraine and the ensuing sanctions imposed by the United States and other governments, the relevance of the clause has become clear. This Essay examines how the market reacted to the …

The Mystery Of The Missing Choice-Of-Law Clause, John F. Coyle

Faculty Publications

There is widespread agreement among experienced contract drafters that every commercial contract should contain a choice-of-law clause. Among their many virtues, choice-of-law clauses facilitate settlement and reduce litigation costs. While most modern contracts contain these provisions, some do not. In many instances, the absence of these clauses may be attributed to outdated forms, careless drafting, inattentive lawyers, or some combination of the three. In a few instances, however, it appears that sophisticated contract drafters purposely omit choice-of-law clauses from their agreements. If these clauses add value to a contract — and there is nearuniversal agreement that they do — then …

The Anti-Parent Juvenile Court, Barbara A. Fedders

Faculty Publications

This Article identifies and analyzes features of the juvenile delinquency court that harm the people on whom children most heavily depend: their parents. By negatively affecting a child’s family—creating financial stress, undermining a parent’s central role in rearing her child, and damaging the parent-child bond—these parent-harming features imperil a child’s healthy growth and development. In so doing, the Article argues, they contravene the juvenile court’s stated commitment to rehabilitation.

In juvenile court, fees and fines are assessed against parents, who also often must incur lost wages to comply with court orders. In addition, while youths of all economic backgrounds and …

Automated Legal Guidance At Federal Agencies, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

When individuals have questions about Federal benefits, services, and legal rules, they are increasingly seeking help from government chatbots, virtual assistants, and other automated tools. Current forms of automated legal guidance platforms include the U.S. Citizenship and Immigration Services’s “Emma,” the U.S. Department of Education’s “Aidan,” and the Internal Revenue Service’s “Interactive Tax Assistant.” Most scholars who have studied artificial intelligence and Federal government agencies have not focused on the government’s use of technology to offer guidance to the public. The absence of scholarly attention to automation as a means of communicating government guidance is an important gap in the …

How Impeachment Works, Michael J. Gerhardt

Faculty Publications

This Article rejects the common view of the two Trump impeachments as a constitutional debacle. It asserts, instead, that the federal impeachment process retains significant vitality as a mechanism for holding presidents accountable for misconduct in office. If we take a step back from the tiny set of presidential impeachment trials in American history and adopt a more panoramic view of their effects and connections to other disciplinary mechanisms for presidential misconduct, it is easier to see that presidential impeachments still have bite. In fact, they can and do cripple legacies and reputations, create permanent evidentiary records of presidential misconduct, …

Not Child’S Play: A Constitutional Game Of Pass The Story In Dobbs, Shurtleff, And Kennedy, John V. Orth, Paul T. Babie

Faculty Publications

This Article suggests that in the effort to find fixed standards for rights, working with vague, indeterminate, silent text, the Supreme Court engages in a constitutional game of pass the story. No one outcome concludes the story; it merely adds another chapter, to which the next set of judges will add their own installment. The quest for standards never ends. The Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Shurtleff v. City of Boston, and Kennedy v. Bremerton School District are merely the latest installments in stories that began with the founding. And as with any such story, …

Superior Status: Relational Obstacles In Law To Racial Justice And Lgbtq Equality, Osamudia James

Faculty Publications

Animus and discrimination are the two legal lenses through which in-equality is typically assessed and understood. Insufficient attention, however, is paid to the role of status in animating inequality, even in landmark cases thought to be equality-promoting. More than an animating force between intractable po-litical conflicts, status also informs the development of equality law in the United States. When courts, advocates, and policymakers affirm, ignore, miss, or con-cede to status hierarchies instead of dismantling them, those groups that perceive a decrease in their status relative to others will only use “equality-promoting” doctrine to rebalance status hierarchy in their favor. Public …

Dreams Interrupted: A Mixed-Methods Research Project Exploring Latino College Completion, Kate Sablosky Elengold, Jess Dorrance, Amanda Martinez, Patricia Foxen, Paul Mihas

Faculty Publications

Latino students are entering college at record numbers; Today, almost 3.8 million Latinos are enrolled in colleges and universities across the United States. Yet Latino students trail their White and Asian peers in attaining college degrees. The overall completion gap exceeds ten percentage points.

Although scholars and advocates have pointed to several different barriers facing Latino college students, a persistent narrative focuses on Latino students’ aversion to taking on student debt. In response, researchers at the University of North Carolina-Chapel Hill and UnidosUS undertook a multi-year mixed-method study to test and interrogate whether and how debt aversion affects Latino college …

Teaching Leadership In American Law Schools: Why The Pushback?, Martin H. Brinkley

Faculty Publications

In September 2020, I participated in a panel discussion with several other deans at Baylor Law School’s 2020: Vision for Leadership Conference. The subject was “Leadership Programming in Law Schools.”

My assignment was to account for why teaching leadership might meet with resistance from inside law schools, despite widespread agreement that lawyer-leaders have always been and are always likely be critical to the survival of American democracy, as well as our fellow citizens’ hopes of living meaningful, satisfying lives.

This essay endeavors to memorialize and expand on the views I expressed on the panel.

The "Innocence" Of Bias, Osamudia James

Faculty Publications

No abstract provided.

Risky Education, Osamudia James

Faculty Publications

No abstract provided.