Law Commons^™

Jailhouse Immigration Screening, Eisha Jain

Faculty Publications

Within the past decade, U.S. interior immigration enforcement has shifted away from the street and into the jailhouse. The rationale behind jailhouse screening is to target enforcement efforts on those who fall within federal removal priorities. This Article shows how a program undertaken with the stated aim of targeting immigration enforcement has had precisely the opposite effect: it has massively expanded the reach of immigration enforcement and created extended carceral treatment within the criminal justice system based on suspected immigration status. This approach, in turn, leads to removals that lack adequate process, are inaccurate, or that reflect underlying racial biases …

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

Faculty Publications

Since the killing of George Floyd, a national consensus has emerged that reforms are needed to prevent discriminatory and violent policing. Calls to defund and abolish the police have provoked pushback, but several cities are considering disbanding or reducing their police forces. This Essay assesses disbanding as a reform strategy from a democratic and institutionalist perspective. Should localities disband their police forces? One reason to do so is that discriminatory police departments are often too insulated from democratic oversight to be reformed. But can localities succeed in disbanding and replacing their forces with something better? Unfortunately, the structural entrenchment of …

The Surprising Significance Of De Minimis Tax Rules, Leigh Z. Osofsky, Kathleen Delaney Thomas

Faculty Publications

De minimis tax rules — rules that eliminate tax burdens for low-income taxpayers or low-dollar transactions — abound in the tax law. Despite the prevalence of such rules, legal scholarship has treated them as — well — de minimis, or as mere rounding errors that do not merit sustained attention. This perspective is understandable. If de minimis rules address insignificant taxpayers or tax liabilities, aren’t the rules themselves likely to be insignificant? Recent tax law developments have revealed that this conception of de minimis tax rules is deeply misguided. Major allocations of tax law liability, as well as accompanying questions …

Gender Violence, The Carceral State, And The Politics Of Solidarity, Deborah M. Weissman

Faculty Publications

Part I of this Article examines gender violence committed by the State. It does so within the context of recent initiatives to address abusive police practices to demonstrate that issues of gender violence have been omitted from reform efforts. To that end, it provides a critical review of anti-carceral campaigns, including recent challenges to “stop-andfrisk” practices. Litigation addressing abusive police conduct has failed to identify stop-and-frisk as a particular form of gender violence. Similarly, community campaigns to oversee police body-worn camera policies have overlooked the differential ways in which survivors of gender violence are impacted by these police devices. This …

Occupational Hazard: A Critique Of California Elections Code § 13107(A)(3), Peter Nemerovski

Faculty Publications

This Article argues that California’s occupational designation option should be abolished, having outlived whatever usefulness it may have had in 1931. Today, it is a source of headaches for elections officials across the state. It often leads to litigation over whether a candidate’s chosen designation is inaccurate or might mislead voters. It is inconsistently enforced. It is frequently used by candidates not to provide voters with helpful information but to gain an electoral advantage over their opponents. The time has come for California to join the forty-nine states that do not automatically allow candidates to include their occupations on the …

Electoral Change And Progressive Prosecutors, Ronald F. Wright, Jeffrey L. Yates, Carissa Byrne Hessick

Faculty Publications

While it is clear that a debate is happening about new approaches to the prosecutor's work, it is less clear how deep the changes go. Given the large number of prosecutor offices in the United States, it is possible that much of the change that the media documents is limited to only a few offices; it is also possible that newsworthy stories of recent prosecutor campaign debates are merely the most visible layer of a change that goes deeper. Do the media accounts focus on vivid but exceptional election campaigns, or do news stories over the' last decade reflect a …

Power Sector Carbon Reduction: An Evaluation Of Policies For North, Kate Konschnik, Martin Ross, Jonas J. Monast, Jennifer Weiss, Gennelle Wilson

Faculty Publications

The North Carolina power sector is poised for transition. Economics have driven big changes on the grid, making cleaner options for electricity generation cost competitive with traditional resources. North Carolina clean energy policies have further enabled the shift into renewable resources. Building on this momentum, Duke Energy Corporation and our state’s rural electric cooperatives have set ambitious climate goals, including “net zero” carbon emissions by 2050.

Well-designed policies can accelerate pollution reduction, make change more affordable for state residents and business, and stimulate job growth. For this reason, the North Carolina Clean Energy Plan (CEP)—developed pursuant to Governor Cooper’s Executive …

No Amendment? No Problem: Judges, "Informal Amendment," And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie

Faculty Publications

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …

Corporate And Securities Law Impact On Social Responsibility And Corporate Purpose, Thomas Lee Hazen

Faculty Publications

The role of social responsibility in corporate governance has been the subject of debate for nearly ninety years. That debate has been reframed over the decades. Several recent events have resulted in increased focus on corporate so-cial responsibility, especially with respect to publicly held corporations. This Ar-ticle explores the law’s two different paths for impacting social responsibility. The current iteration of the corporate responsibility movement has implications for both state law chartering of corporations and federal securities regulation. This Article analyzes the ways in which stated purpose clauses in a corporation’s articles of incorporation may be useful in addressing social …

Nondelegation And Criminal Law, Carissa Byrne Hessick, F. Andrew Hessick

Faculty Publications

Although the Constitution confers the legislative power on Congress, Congress does not make most laws. Instead, Congress delegates the power to make laws to administrative agencies. The Supreme Court has adopted a permissive stance towards these delegations, placing essentially no limits on Congress’s ability to delegate lawmaking power to agencies.

In its recent decision, Gundy v. United States, the Court relied on this unrestrictive doctrine to uphold a statute delegating the power to write criminal laws. In doing so, the Court did not address whether greater restrictions should apply to delegations involving criminal law. Instead, it applied the same …

Taxing Nudges, Kathleen Delaney Thomas

Faculty Publications

Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often produce significant responses at a low cost. The theory behind nudges is that, rather than mandating certain behaviors or providing costly economic subsidies, modest initiatives may “nudge” individuals to choose desirable outcomes by appealing to their behavioral preferences. For example, automatically enrolling workers into savings plans as a default, rather than requiring them to actively sign up, has dramatically increased enrollment in such plans. Similarly, allowing individuals to …

Reading Magna Carta: Textualist Or Originalist?, John V. Orth

Faculty Publications

Debates concerning the proper method for reading legal texts did not begin in the modern era. In fact, they have been going on in our legal tradition for hundreds of years. One of the oldest, and most consequential, debates concerns the meaning of Magna Carta, the “big charter,” reluctantly granted by King John in 1215 in response to the demands of his rebellious barons. Many of its provisions, called chapters, resolved disputes that quickly became dated – very dated.

Although Magna Carta has by now receded too far into the past for us to be confident of its exact meaning, …

When Therapy Goes Public: Copyright Gatekeepers And Sharing Therapeutic Artifacts On Social Media, Amanda Reid, Pablo Miño

Faculty Publications

No abstract provided.

The "Innocence" Of Bias, Osamudia James

Faculty Publications

No abstract provided.

Forum Selection Clauses, Non-Signatories, And Personal Jurisdiction, John F. Coyle, Robin J. Effron

Faculty Publications

Who is bound by a forum selection clause? At first glance, the answer to this question may seem obvious. It is black letter law that a person cannot be bound to an agreement without her consent. In recent years, however, courts have not followed this rule with respect to forum selection clauses. Instead, they routinely enforce these clauses against individuals who never signed the contract containing the clause. Courts justify this practice on the grounds that it promotes litigation efficiency by bringing all of the litigants together in the chosen forum. There are, however, problems with enforcing forum selection clauses …

The End Of School Policing, Barbara A. Fedders

Faculty Publications

Police officers have become permanent fixtures in public schools. The sharp increase in the number of school police officers over the last twenty years has generated a substantial body of critical legal scholarship. Critics question whether police make students safer. They argue that any safety benefits must be weighed against the significant role the police play in perpetuating a school-to-prison pipeline that funnels Black and Brown students and students with disabilities out of schools and into courts, jails, and prisons. In suggesting remedies for this problem, commentators have proposed several regulatory fixes. These include changes to the standards for evaluating …

No More Old Boys’ Club: Institutional Investors’ Fiduciary Duty To Advance Board Gender Diversity, Anat Alon-Beck, Michal Agmon-Gonnen, Darren Rosenblum

Faculty Publications

As the benefits of gender equality for governance become more apparent, boardroom diversity initiatives abound. At the same time, institutional investors play an increasingly central role in the corporate world. This Article takes a novel approach to achieve this necessary change. Institutional investors already oversee firm leadership quite closely. This Article suggests that institutional investors hold a fiduciary duty to ensure there is gender diversity in leadership. As objections to state mandates persist, institutional investors can bring the benefits of private ordering to play a central role in ensuring equality.

Institutional investors play a dominant role over firms as principal …

Power And Pay In The C-Suite, Afra Afsharipour, Darren Rosenblum

Faculty Publications

(Excerpt)

The debate over executive pay has gripped corporate law scholars, regulators, and the national public for decades. A C-Suite position provides uniquely lucrative financial benefits to executives, especially to Chief Executive Officers (CEOs). Over the past few decades, CEO pay has risen spectacularly, as has debate regarding why this has occurred and whether policy should or can correct it. The reasons why CEO pay has increased exponentially in the last 30 years are complex, and the solutions for reigning in executive compensation have been incomplete at best.

Yet one glaring fact about the C-Suite eludes much of the corporate …

The Canada Trademarks Dataset, Jeremy N. Sheff

Faculty Publications

This article discloses and describes a new research dataset representing the Canadian Intellectual Property Office's historical archive of trademark applications. This individual-application-level dataset includes all applications since approximately 1980, and many preserved applications and registrations dating back to the beginning of Canada's trademark registry in 1865, totaling over 1.6 million application records. It includes comprehensive bibliographic and lifecycle data; trademark characteristics; goods and services claims; identification of applicants, attorneys, and other interested parties (including address data); detailed prosecution history event data; and data on application, registration, and use claims in countries other than Canada. Both the dataset and the code …

The New Skill On The Block: Using Social Media In The Law School Classroom To Facilitate Learning, Rosa Castello

Faculty Publications

(Excerpt)

The emergence and rapid growth of technology has dramatically changed society, including the way we communicate and interact. People are gravitating toward shorter forms of written communication, like blogs and tweets. And it seems everyone interacts with others in some way on an online social media platform, exchanging ideas, connecting with friends and colleagues, and offering support.

As a Legal Writing professor, I wonder how this change in written communication will impact legal education and the profession and how I can better prepare my students for a professional environment that embraces these changes. Communication is an essential lawyering skill. …

Chopped & Screwed: Hip Hop From Cultural Expression To A Means Of Criminal Enforcement, Taifha Natalee Alexander

Faculty Publications

Take the word “overseer” like a sample. Repeat it very quickly in a crew, for example. Overseer, overseer, overseer, overseer. Officer, officer, officer, officer. Yeah, officer from overseer. You need a little clarity? Check the similarity! The overseer rode around the plantation. The officer is off, patrollin’ all the nation. The overseer could stop you, “what you’re doing?” The officer will pull you over just when he’s pursuing. The overseer had the right to get ill. And if you fought back, the overseer had the right to kill. The officer has the right to arrest. And if you fight back …

A Love Letter To My Unborn Black Daughter, Taifha Natalee Alexander

Faculty Publications

(Excerpt)

It is difficult to imagine that my life has led me to this point because, honestly, I was not supposed to make it this far. And unfortunately, darling, neither are you.

By the time we meet, I will have earned my law degree from Georgetown University Law Center and joined the ranks of the most educated group in the country, Black women. At the same time, I will have invited you into the same world where Black girls are criminalized, under protected, and overlooked in schools.

Thoughts of what can happen to you during school hours when I am …

Coercion, Consent, And Time, Michelle Madden Dempsey

Faculty Publications

This article sets out a framework for distinguishing three kinds of norms governing past sexual (mis)conduct and our responses to it: wrongfulness norms,excusability norms, and accountability norms. The framework provides conceptual tools for making sense of (and understanding the limits of ) three distinct responses commonly offered by those accused of past sexual misconduct: “But that used to be okay!” “But everybody used to think that was okay!” and “But thatwas so long ago!”

Properties Of Intimacy, Emily J. Stolzenberg

Faculty Publications

Today, nearly nineteen million U.S. adults are cohabiting with an intimate partner. Yet family law continues to struggle with the question whether these unmarried partners should have relationship-based rights in one another’s property. Generally speaking, states answer “no.” Because cohabitants are not spouses, they’re treated like strangers. As a result, their property rights usually follow title, and richer partners tend to walk away with a large proportion of the property acquired during the relationship. This Article shows the “cohabitant problem” to be no anomaly, but rather the clearest manifestation of family law’s overarching structure. In marital property regimes as well …

The Law Wants To Be Formal, Chaim Saiman

Faculty Publications

No abstract provided.

Does Tax Matter? Evidence On Executive Compensation After 162(M)'S Repeal, Andrew Lund, Brian Galle, Gregg D. Polsky

Faculty Publications

No abstract provided.

Difficulty Of Care: Alligning Tax And Health Care Policy For Family Caregiving, Christine S. Speidel

Faculty Publications

In the United States millions of people live with disabilities, many of whom require assistance with activities of daily life to remain in their homes and communities. However, financial support for this assistance is limited. Many caregivers forgo working outside the home in order to provide care to a family member. And while state and federal programs provide some compensation for caregiving, caregivers frequently face problems including poverty, lack of health insurance, lack of Social Security and Medicare credits, and lack of retirement savings. Our nation’s paltry support for caregiving threatens the practical ability of people with disabilities to choose …

Use Of Factors In Development Estimates: Improving The Cost Analysis Toolkit, Matthew R. Markman, Jonathan D. Ritschel, Edward D. White

Faculty Publications

Factor Estimating is a technique commonly used by defense acquisition analysts to develop cost estimations. However, previous studies developing factors for the Engineering and Manufacturing Development (EMD) phase of the life cycle are limited. This research expands the current toolkit for cost analysts by developing cost factors in previously unexplored areas. More specifically, over 400 cost reports are utilized to create new standard cost factors that are delineated by five categories: commodity type, contract type, contractor type, development type, and Service. The factors are developed for those elements that are common in a wide array of projects such as program …

Contractual Procurement Alternatives Of Air Force Contingency Pharmaceuticals: A Cost-Benefit Analysis, Adam J. Brubakken, John M. Dickens, Jason Andrerson, William A. Cunningham Iii

Faculty Publications

Purpose — This paper aims to explore effective supply chain principles, through the theory of transaction cost economics, as measures to improve current contingency pharmaceutical item shortfalls in the Air Force Medical Service (AFMS) Contingency Pharmaceutical Programme. Design/methodology/approach — In this research, AFMS contingency pharmaceutical data was collected from various databases, including the Joint Medical Asset Repository, Medical Contingency Requirements Workflow and the Medical Requirements List. Through the methodology of cost-benefit analysis, alternative sourcing and fulfilment practices are evaluated. Findings — The findings of this research indicate that the application of centralized purchasing principles, in an effort to leverage prime …

Local Offenses, Brenner M. Fissell

Faculty Publications

Criminal law is generally thought to exist within two jurisdictional levels: federal and state. Neglected in the legal mind, and in legal scholarship, is the vast body of criminal law promulgated by local governments. While one should ask “what” is being criminalized by cities, towns, and villages, one should also ask “how” these offenses are written. The offense-drafting practices reflected in state criminal law have been extensively studied, but this has never been attempted for local offenses. This Article undertakes that task. After surveying a large number of local criminal codes, this Article concludes that local offenses routinely fail to …