Law Commons^™

Convictions As Guilt, Anna Roberts

Faculty Publications

A curious tension exists in scholarly discourse about the criminal legal system. On the one hand, a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions. These include factors whose influence is pervasive: the predominance of plea bargaining, for example, and the subordination of the defense. On the other hand, scholars often discuss people who have criminal convictions in a way that appears to assume crime commission. This apparent assumption obscures crucial failings of the system, muddies the role of academia, and, given the unequal distribution of criminal convictions, risks compounding …

Getting It Right By Writing It Wrong: Embracing Faulty Reasoning As A Teaching Tool, Patricia G. Montana, Elyse Pepper

Faculty Publications

(Excerpt)

In the early days of legal writing, we use exercises that have clear "right" answers. The rules are very simple and their meaning, even without looking at the cases, is usually clear. So, the "right" answer is often obvious. Indeed, it is intuitive. Though these exercises give students a sense of accomplishment and allow them to track achievement and understand success and failure, in some ways, they reinforce a common problem in first-year law students: their inability to see beyond the surface of a legal rule.

To ensure the "right" answer, students must distill not only a general rule, …

Ethical Compass: Celebration, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Let’s raise our glasses to toast our esteemed Chief Judge, the Honorable Janet DiFiore, for making Presumptive ADR a central part of the New York Office of Court Administration’s civil case management. In her February 26, 2019 State of the Judiciary Address, Chief Judge Janet DiFiore announced that the New York Office of Court Administration is formally adopting Presumptive ADR. Although all ADR processes such as settlement conferences, negotiations, arbitration and early neutral evaluation may be used to help settle cases, a focus will be on mediation. Presumptive ADR will apply to almost all civil cases filed in New …

The Life And Legal Legacy Of Justice Steven L. Zinter, Neil Fulton

Faculty Publications

Justice Steven L. Zinter was a vital part of South Dakota's legal landscape for decades. As a private practitioner, circuit court judge, supreme court justice, and in other official capacities, he forged a powerful legacy in South Dakota. Over the course of his time he worked on cases large and small in many areas of law. He was recognized as a brilliant legal mind, precise writer, and careful thinker. It is a challenge to capture the breadth and depth of such a career. This article takes a look at his personal formation, his legal work in several settings, and how …

The Homesteading Rights Of Deserted Wives: A History, Hannah Haksgaard

Faculty Publications

During the late nineteenth and early twentieth centuries, the federal government of the United States distributed 270 million acres of land to homesteaders. The federal land-grant legislation allowed single women, but not married women, to partake in homesteading. Existing in a “legal netherworld” between single and married, deserted wives did not have clear rights under the federal legislation, much like deserted wives did not have clear rights in American marital law. During the homesteading period, many deserted wives litigated claims in front of the Department of the Interior, arguing they had the right to homestead. This is the first article …

Mass Seizure And Mass Search, Gregory Brazeal

Faculty Publications

As courts attempt to develop Fourth Amendment doctrine to address the threats to privacy created by digital surveillance technologies, a valuable doctrinal resource has been largely neglected: the law governing the seizure of persons. Just as courts today struggle with the specter of mass search using digital technologies, courts in the 1960s were confronted with the problem of mass seizure through the growing use of stop-and-frisk by police departments. The responses to mass seizure developed by the Supreme Court in Terry v. Ohio, 592 U.S. 1 (1968), and its progeny provide lessons for courts today considering how to respond to …

Christian Purpose Trusts, Thomas Simmons

Faculty Publications

Noncharitable purpose trusts are recognized under the Uniform Trust Code and the non-uniform laws of many jurisdictions. In 2019, Oregon enacted a stewardship trust statutory scheme. A stewardship trust is a purpose trust which is designed to hold and preserve corporate stock. Properly drafted, a stewardship trust can soften the indefatigable pursuit of profits that drive corporate entities. A stewardship trust can substitute ethical ideals - at least in part - for shareholder return. The purpose trust statutes of other jurisdictionscould also partially permit ambitions similar to those which motivated the Oregon legislation to be realized. The concept of a …

Saint Paul’S Trial Narrative In Acts: Imperium Rōmānum Vs. Vasileía Tou Theoú, Thomas Simmons

Faculty Publications

Saul of Tarsus (alias Paul) encountered the resurrected Christ on the road to Damascus. Thereupon, Paul not only became a follower of "the Way," he went from an aggressive persecutor of early Christians to one of its most intellectual and influential apostles. Towards the end of his life, he went on trial. Saint Paul's trial in first century Judea before Felix and Festus receive a detailed fleshing-out in the Acts of the Apostles. A quasi-prosecutor even briefly appears. But Paul's subsequent legal proceedings in Rome and his execution there are excluded from the narrative. Meanwhile, Acts portrays Christianity as a …

The Trial Of Breaker Morant, Jonathan Van Patten

Faculty Publications

No abstract provided.

The Trial Of Jesus, Jonathan Van Patten

Faculty Publications

No abstract provided.

Twenty-Five Propositions For The Practice Of Law, Jonathan Van Patten

Faculty Publications

No abstract provided.

The Value Of An Academic Law Library In The 21st Century, Anne Klinefelter

Faculty Publications

Law school deans and university provosts may ask how law libraries can deliver value as new technologies, practices, and economic pressures inspire reassessment of legal education and of higher education more generally. The proliferation of information delivery systems, trends towards centralized management of higher education infrastructure, and changes in the law practice market suggest that the traditional law library may not meet current needs. But law libraries have the potential and opportunity to deliver strong value in this environment due largely to the sophistication of today's law librarians. The law library can be a center for expertise that can advance …

The Ends And Means Of Decarbonization: The Green New Deal In Context, Jonas J. Monast

Faculty Publications

Disputes about climate policy involve much more than whether or not to reduce greenhouse gas emissions. There is general agreement among proponents of climate policy that strategies should be cost effective, address distributional impacts, and incentivize investments in low-carbon technologies. Yet disagreements abound regarding additional goals of climate policy design.

Decarbonizing the economy means changing the sources of energy we use, how we transport people and products, how we produce food, and which resources we consume. Yet even among proponents of federal climate legislation there is strong disagreement regarding policy instruments. Recent proposals for a revenue-neutral carbon tax and a …

Protecting The Role Of The Press In Times Of Crisis, Mary-Rose Papandrea

Faculty Publications

Part I of this Article will discuss defamation law with a focus on the Court’s decision in New York Times Co. v. Sullivan. This decision “constitutionalized” the common law tort of defamation and dealt a death blow to a series of lawsuits by southern government officials aimed at silencing the publication.14 The decision has since provided an essential foundation for press freedom for over fifty years. At the same time, because the decision did not grant the press (or the public generally) absolute immunity for the publication of defamatory information about matters of public concern, speakers potentially face years …

Legal Writing's Harmful Psyche, Kevin Bennardo

Faculty Publications

This essay proceeds in four parts. It first supports the descriptive claim that many in the legal writing discipline perceive themselves as victims of unfair treatment within legal academia. Second, it explores the consequences of that self-perception, including the norm of protectionism that has developed within the discipline. The narrative that legal writing professors are mistreated by those outside the discipline has resulted in an internal culture in which many members of the discipline support their own no matter what.

Third, the essay explores how such protectionism is harmful to the development of the legal writing discipline. An academic discipline …

Bot Contracts, Deborah R. Gerhardt, David Thaw

Faculty Publications

In this Article, we explain why the transactions commonly known as “smart contracts” are better understood as “bot contracts.” Taking an interdisciplinary approach, we show why the “smart contracts” moniker is misdescriptive in two important ways. First, these transactions are automated, not smart. Second, they do not afford parties many enforcement rights and defenses that one expects from common law contractual relationships. To fully understand these transactions, it is important to appreciate how the term “smart contracts” differs from what the technology delivers.

Our review of the technology explains that these transactions have tremendous practical utility in reducing risk and …

Legal Calculators And The Tax System, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

Legal calculators often embody a characteristic that can be termed “simplexity.” As we have theorized, simplexity occurs when the government presents clear and simple explanations of the law without highlighting its underlying complexity or reducing this complexity through formal legal changes. In earlier work, we have argued that some elements of IRS publications (plain language summaries of the law for the general public) present contested tax law as clear tax rules, add administrative gloss to the tax law, and fail to fully explain the tax law.

In this Article, we show that simplexity also occurs when the government offers legal …

The First Anti-Sanctuary Law: Proposition 187 And The Transformation Of Immigration Enforcement, Rick Su

Faculty Publications

Anti-sanctuary efforts are sweeping the country, as the federal government and a growing number of states impose stringent restrictions on the ability of cities and other localities to limit their involvement in federal immigration enforcement. Many are now wondering how far this movement will go. But where and how did this movement begin? This Essay argues that the roots of the contemporary anti-sanctuary movement can be traced to Proposition 187, a ballot initiative adopted by California voters in 1994. As the nation’s first anti-sanctuary law, Proposition 187 established the basic provisions featured in nearly every anti-sanctuary measure enacted since. Moreover, …

The Death Of Custom: Winners And Losers In The Legal Transformation Of Peri-Urban Land In Niger, Thomas A. Kelley Iii

Faculty Publications

No abstract provided.

Future Work, Jeffrey M. Hirsch

Faculty Publications

The Industrial Revolution. The Digital Age. These revolutions radi-cally altered the workplace and society. We may be on the cusp of a new era -- one that will rival or even surpass these historical disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article …

Automated Legal Guidance, Leigh Z. Osofsky, Joshua D. Blank

Faculty Publications

Through online tools, virtual assistants, and other technology, governments increasingly rely on artificial intelligence to help the public understand and apply the law. The Internal Revenue Service, for example, encourages taxpayers to seek answers regarding various tax credits and deductions through its online “Interactive Tax Assistant.” The U.S. Army directs individuals with questions about enlistment to its virtual guide, “Sgt. Star.” And the U.S. Citizenship and Immigration Services suggests that potential green card holders and citizens speak with its interactive chatbot, “Emma.” Through such automated legal guidance, the government seeks to provide advice to the public at a fraction of …

The Supreme Court And The Illegitimacy Of Lawless Fourth Amendment Policing, Ayesha B. Hardaway

Faculty Publications

For more than half a century, documented police brutality has affected communities of color and the American legal system has largely failed to address it. Beginning with Rizzo v. Goode, Supreme Court decisions have allowed local police departments nearly unlimited discretion in their policies and practices. That decision and others demonstrate that the Supreme Court is misaligned with governmental initiated reforms. The Violent Crime Control and Law Enforcement Act of 1994, which allows the U.S. Attorney General and the U.S. Department of Justice (“DOJ”) to investigate law enforcement agencies’ practices and seek injunctive relief against agencies found to have engaged …

Uncooperative Environmental Federalism 2.0, Jonathan H. Adler

Faculty Publications

Has the Trump Administration made good on its pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This paper, prepared for the Hastings Law Journal symposium, “Revolution of Evolution? Administrative Law in the Age of Trump,” provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.

Dual Allegiance: Federal And State Treason Prosecutions, The Treason Clause, And The Fourteenth Amendment, Alexander Gouzoules

Faculty Publications

The Treason Clause creates an individual right at a criminal trial that could have logically been placed within the Fifth Amendment rather than Article III: “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” It has effectively prevented expansive uses of the charge at the federal level. But states may also charge citizens with treason against state governments, and many such prosecutions have played important roles in American history.

This article reviews the parallel histories of state and federal treason prosecutions. It then analyzes …

The Fine Art Of Rummaging: Successors And The Life Cycle Of Copyright, Eva E. Subotnik

Faculty Publications

This chapter argues that a possible justification for the extension of copyright beyond the death of the author is the key role that copyright successors may serve in the life cycle of artistic works. In particular, with respect to an artist’s unpublished work, a time-sensitive decision must be made about whether or not to keep the physical artifacts associated with copyrights—an obligation that often falls to these successors. Bulky canvases, sketches, negatives, and myriad other items must be sifted through in order to separate the wheat from the chaff. In this way, the post-death cleanup period offers a once-in-a-lifetime event …

Categorical Nonuniformity, Sheldon Evans

Faculty Publications

The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, …

Enabling The Best Interests Factors, Adrián E. Alvarez

Faculty Publications

(Excerpt)

For over a century, state courts and other child welfare agencies in the United States have been applying the “best interests of the child standard” to all decision-making concerning children. The standard is also enshrined within the UN Convention on the Rights of the Child (CRC)—a treaty that every nation in the world has ratified except the United States. Notwithstanding its widespread adoption in family law, the standard is, with only a few exceptions, noticeably missing from American laws and policies pertaining to children in the immigration system.

There is a rich literature arguing that children should enjoy special …

Misappropriation-Based Trademark Liability In Comparative Perspective, Jeremy N. Sheff

Faculty Publications

(Excerpt)

The anti-misappropriation principle, at its core, is that it is wrongful and therefore actionable for a competitor to gain a commercial advantage from the efforts of another, even if that advantage does not directly harm the person whose efforts have been misappropriated. This principle appears to be a deep theoretical commitment of modern intellectual property law. And nowhere in intellectual property law is the anti-misappropriation impulse more directly implicated than in the context of conspicuous consumption.

As I have written about elsewhere, modern consumers engage in conspicuous consumption of branded goods to signal social affiliation and identity, and to …

First Amendment Traditionalism, Marc O. Degirolami

Faculty Publications

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism's conceptual and normative foundations. It focuses on the Supreme Court's traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court's Speech and Religion Clause jurisprudence, highlighting its salience in the Court's recent Establishment Clause doctrine.

Part II develops two justfications for traditionalism: "interpretive" and "democratic-populist." The interpretive justification is that …

A Global System Of Work, A Global System Of Regulation?: Crowdwork And Conflicts Of Law, Miriam A. Cherry

Faculty Publications

(Excerpt)

The on-demand economy has truly gone global. Consider online platform TaskRabbit, a U.S.-based site for odd jobs. A high number of TaskRabbit’s users were seeking help with the construction of furniture they purchased at IKEA, and skilled carpenters started using the platform to find customers. Corporate management at Swedish company IKEA noticed the trend, and as a result acquired TaskRabbit in 2017. As a result, a Swedish company now owns a platform labor service in the United States and Britain, with plans to expand the TaskRabbit platform to twenty-seven more countries where IKEA currently owns brick and mortar stores. …