Law Commons^™

Review Of Tammy Pettinato Oltz, Lawyering Skills In The Doctrinal Classroom: Using Legal Writing Pedagogy To Enhance Teaching Across The Law School Curriculum, Oscar J. Salinas

Faculty Publications

No abstract provided.

Like Sand From The Pyramids: Using Rare Books And Manuscripts To Facilitate Object-Based Learning In The Law School Classroom, Melissa M. Hyland

Faculty Publications

This article advocates adding object-based learning, utilizing rare legal books and manuscripts, to the legal education toolbox. Object-based learning is an educational methodology that explains the many learning benefits resulting from student engagement with tangible objects of material culture. Studies into the use of this methodology with undergraduate and graduate students are rather new, but research indicates that object-based learning produces measurable positive results across the curriculum.

Part I of this article provides an overview of object-based learning, with subsections addressing its relationship to active learning, its incorporation of multiple learning styles, and its ability to encourage affective learning. Part …

Copyright Publication On The Internet, Deborah R. Gerhardt

Faculty Publications

This Article tackles the question of when a work distributed over the Internet is published as a matter of copyright law. Copyright publication doctrine retains significant practical importance and can have a dispositive impact on the economic value of a work. Publication can also determine whether a court has jurisdiction over a copyright claim. For many twentieth century works, publication with observance of formalities was required if copyrights were to attach to creative works at all. Publication remains relevant in determining the length of copyright protection, but duration is far from the only copyright issue that turns on this concept. …

Korematzu, Hirabayashi, And The Second Monster, Eric L. Muller

Faculty Publications

It is a trope at least as old as Beowulf: the unexpected second monster. Beowulf arrives in Heorot to take on Grendel, the demon who has been terrorizing the Ring-Danes’ mead-hall. He bests the monster in battle and Grendel slinks off, one-armed and bloodied, to die. The Ring-Danes honor Beowulf with a great banquet; he has slaughtered their nemesis and there is much to celebrate. Full of mead and a newfound sense of safety, the revelers drift off to sleep. That is when a terrible new monster bursts upon the scene—Grendel’s mother, the beast that brought Grendel into the …

Jefferson’S Taper, Jeremy N. Sheff

Faculty Publications

This Article reports a new discovery concerning the intellectual genealogy of one of American intellectual property law’s most important texts. The text is Thomas Jefferson’s often-cited letter to Isaac McPherson regarding the absence of a natural right of property in inventions, metaphorically illustrated by a “taper” that spreads light from one person to another without diminishing the light at its source. I demonstrate that Thomas Jefferson likely copied this Parable of the Taper from a nearly identical passage in Cicero’s De Officiis, and I show how this borrowing situates Jefferson’s thoughts on intellectual property firmly within a natural law …

Arbitration Law Update: 2019–2020 (July 2020), Scott Eichorn, Elissa Germaine

Faculty Publications

(Excerpt)

This article summarizes leading arbitration cases during the last year that are of particular relevance to the securities arbitration practitioner, as well as cases on the horizon for the coming year. The decided cases focus on class arbitration, arbitrability, customer identification, discovery abuse, grounds to modify arbitration awards, enforceability of arbitration agreements, and challenges to Regulation Best Interest. The upcoming cases focus on class arbitration and arbitrability.

Platform Pleading: Analyzing Employment Disputes In The Technology Sector, Joseph Seiner

Faculty Publications

The technology sector has created thousands of new jobs for workers across the country in an emerging multi-billion dollar industry. Many companies in this platform-based sector are attempting to characterize their workers as independent contractors rather than employees, thus stripping them of both federal and state workplace protections—including the right to bargain collectively, receive fair compensation, and avoid discrimination. The federal courts, which have always grappled with the question of worker classification, are now struggling to define employment with respect to these gig sector jobs. The result has been scattered court decisions with inconsistent and conflicting analyses.

This Essay seeks …

Educational Gerrymandering: Money, Motives, And Constitutional Rights, Derek Black

Faculty Publications

Public school funding plummeted following the Great Recession and failed to recover over the next decade, prompting strikes and protests across the nation. Courts did almost nothing to stop the decline. While a majority of state supreme courts recognize a constitutional right to an adequate or equal education, they increasingly struggle to enforce the right. That right could be approaching a tipping point. Either it evolves, or risks becoming irrelevant.

In the past, courts have focused almost exclusively on the adequacy and equity of funding for at-risk students, demanding that states provide more resources. Courts have failed to ask the …

Pay Now, Play Later?: Youth And Adolescent Collision Sports, Vivian E. Hamilton

Faculty Publications

The routine and repeated head impacts experienced by athletes in a range of sports can inflict microscopic brain injuries that accumulate over time, even in the absence of concussion. Indeed, cumulative exposure to head impacts—not number of concussions—is the strongest predictor of sports-related degenerative brain disease in later life. The observable symptoms of disease appear years or decades after initial injury and resemble those of other mental-health conditions such as depression and dementia. The years-long interval between earlier, seemingly minor, head impacts and later brain disease has long obscured the connection between the two.

Risk of injury differs across demographics, …

Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen

Faculty Publications

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: they are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent the parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case …

The Great Unfulfilled Promise Of Tinker, Mary-Rose Papandrea

Faculty Publications

The most famous line from Tinker v. Des Moines Independent School District is that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 393 U.S. 503, 506. People who know only this line from Tinker—and the victory it gave to the Vietnam-war protesting students—likely think of it as an incredibly speech-protective decision. It turns out that although Tinker contains lofty language about the importance of student speech rights, it sowed the seeds for the erosion of those very same rights. In the past …

What’S The Point? The Missing Piece Of Criminal Justice Reform Through Consensus And Compromise, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Criminal justice reform has had a firm place in news headlines for more than a decade. When the mass incarceration crisis came to the fore in 2008, with reports that one in a hundred adults in America was behind bars, there had already long been cries for reducing the prison and jail populations. Reform has mainly been sought through two approaches: consensus through ballot initiative or legislative compromise. But these modes of reform share a fundamental failure: both often lack a clear articulation of the purpose of criminal sentencing. In other words, “What’s the point?” Without an agreement on …

How Can Congress Prevent The Issuance Of Poor Quality Patents? Questions For The Record For Colleen V. Chien, Colleen V. Chien

Faculty Publications

This is a submission of responses by Prof. Colleen Chien to questions for the record posed by Sen. Thom Tillis (R-N.C.) and Chris Coons (D-Del.) at a October 30th hearing of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, entitled, "Promoting the Useful Arts: How can Congress prevent the issuance of poor quality patents?"

The Quiet Undoing: How Regional Electricity Market Reforms Threaten Clean Energy Goals, Shelley Welton, Danny Cullenward

Faculty Publications

In a series of largely unnoticed but extremely consequential moves, two regional electricity market operators are pursuing reforms to make it more difficult for states to achieve their clean energy goals. The federal energy regulator, FERC, has already approved one such reform and ordered a second market operator to go farther in punishing state-supported clean energy resources than it had initially proposed. In this Essay, we bring to light the ways in which the intricate, technical reforms underway in regional electricity markets threaten state climate change objectives and the durability of FERC’s regional market constructs. If FERC allows private market …

The Rule Of Law Collaborative: A Center For Practical, Interdisciplinary Research, And Engagement On Pressing Rule Of Law Issues Around The World, Joel H. Samuels

Faculty Publications

No abstract provided.

Fourth Amendment Textualism, Jeffrey Bellin

Faculty Publications

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive Even the justices know they have a problem Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach Unfortunately, no viable alternatives appear on the horizon The justices themselves offer little in the way of a replacement And scholars’ proposals exhibit …

References To Movies In Judicial Opinions And Written Advocacy, Part 2, Douglas E. Abrams

Faculty Publications

In the Journal’s September- October issue, Part I of this article sampled recent federal and state judicial opinions that cite themes, scenes, or characters from movies listed on the American Film Institute (AFI) “100 Greatest American Films of All Time.” This Part II picks up where Part I left off. The discussion below samples recent judicial opinions that cite other well-known movies that have captivated American audiences without winning places on the “100 Greatest” list. Part II concludes by explaining why brief writers should feel comfortable following the judges’ lead by carefully using movie references to help make written substantive …

Information Asymmetry And The Protection Of Ordinary Investors, Kevin S. Haeberle

Faculty Publications

To some, the reductions in information asymmetry provided by the main securities-specific disclosure, fraud, and insider-trading laws help ordinary investors in meaningful ways. To others, whatever their larger social value, such reductions do little, if anything for these investors. For decades, these two sides of this investor-protection divide have mostly talked past each other.

This Article builds on economic theory to reveal something striking: The reductions in information asymmetry provided by the core securities laws likely impose a long-overlooked cost on buy-and-hold ordinary investors. More specifically, I explain why there is much reason to believe that the reductions take away …

Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida

Faculty Publications

No abstract provided.

The Right To Evidence Of Innocence Before Pleading Guilty, Colin Miller

Faculty Publications

No abstract provided.

A Political Interpretation Of Vagueness Doctrine, Brenner M. Fissell, Guyora Binder

Faculty Publications

The “void-for-vagueness” doctrine requires the specific definition of criminal offenses. In this Article, though, we claim it does more: it largely restricts criminalization decisions to legislatures, which are unlikely to criminalize conduct they see as both harmless and widespread. Thus, rather than constitutionalizing the harm principle and thereby assuming a judicial obligation to define harm, the Supreme Court has used the vagueness doctrine to constrain majorities to make their own assessments of harmfulness. While American law has no explicit requirements that criminal liability be created by legislation or conditioned on harm, the vagueness doctrine achieves those ends indirectly

A Private Enforcement Remedy For Information Misuse, Peter Ormerod

Faculty Publications

Misuse of users’ personally identifiable information is persistent and pervasive. This Article addresses two questions: why is information misuse so common and so severe and how could domestic law change to make it less so? I use a simple model to illustrate that companies externalize information misuse costs onto users, which has two related but distinct effects: chronic underinvest- ment in information security and excessive retention of user data. I then seize on this observation to propose a specific legal vehicle at the heart of this Article—a private enforcement remedy. This private enforcement remedy has four essential features. First, the …

Abstraction, Filtration, And Comparison In Patent Law, Michael Risch

Faculty Publications

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3232508

It's Not The Robot's Fault! Russian And American Perspectives On Responsibility For Robot Harms, Bryant Walker Smith, Andrey Neznamov

Faculty Publications

No abstract provided.

Uncertainty In Employee Status Across Federal Law, Ryan Vacca

Faculty Publications

Numerous federal statutes rely on a distinction between employees and independent contractors. Based on a series of Supreme Court decisions from 1968 through 2003, courts and administrative agencies have used a common law multifactor test to draw this distinction. In an effort to enhance predictability and certainty within and across legislation, these cases have rejected a purposive approach in applying the test. But the Supreme Court has never said which, if any, of the factors are the most important in the analysis, nor has anyone determined whether the underlying purpose-enhancing predictability and certainty-has been attained.

This empirical study uses content …

Responsible Devolution Of Affordable Housing, Andrea Boyack

Faculty Publications

The federal government has been heavily involved in promoting housing affordability since the 1930s and continues to have a critical role to play. Over the past several decades, the federal government has financed affordability by promoting development and income subsidies, but specific allocation decisions have devolved. Housing inequities can best be addressed locally, but only if localities are held to high standards of fairness and regional coordination is facilitated. Successful and sustainable local solutions to housing affordability will also require a substantial financial investment, one that the federal government can and should reliably and adequately provide. Each year, Congress permits …

It's Scandalous! - Limiting Profane Trademark Registrations After Tam And Brunetti, Gary Myers

Faculty Publications

Over the course of the last two years, the Supreme Court has engaged in a long-overdue assessment of the constitutionality of federal trademark law prohibitions on the registration of offensive marks. In its unanimous 2017 decision in Mata/ v. Tam, the Court held that the disparagement clause is a content-based provision that violates the First Amendment. In 2019, the Court in Iancu v. Brunetti held that the refusal to register the mark "FUCT" on grounds that it was immoral or scandalous would also violate the First Amendment. These cases offered an opportunity for the Court to clarify the proper role …

A Tax On The Clones: The Strange Case Of Bitcoin Cash, Eric D. Chason

Faculty Publications

No abstract provided.

Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer

Faculty Publications

Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler

Faculty Publications

This article examines the confusion surrounding constitutional protection of property under the substantive due process and takings clauses, using Murr as a springboard for reconsidering the substantive due process/takings distinction and asking whether the regulatory takings doctrine should remain a viable constitutional concept despite its muddled principles. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to physical takings, important differences between physical and regulatory takings need to be recognized as limits to the degree of equivalence possible and therefore to the regulatory takings doctrine. A look back at the evolutionary paths of substantive due process, …