Law Commons^™

Confining Cases To Their Facts, Daniel P. Rice, Jack Boeglin

Faculty Publications

Stare decisis is the mainstay of doctrinal stability. But through the little-known expedient of “confining a case to its facts,” courts can evade the pull of stare decisis by overruling everything a decision stands for except its precise result. This doctrinal workaround has enabled courts to sidestep the formal requirements that attend overruling and quietly undermine precedent without stirring public interest. But confining’s conveniences are offset by its considerable dangers: it cuts courts loose from the constraints of stare decisis; it requires judges to engage in unprincipled, fact-bound adjudication; it dilutes the integrity of the law by enshrining contradictory legal …

Location, Location, Vocation? Toward A Post-Recession Analysis Of Law School Choice, Elizabeth Chambliss

Faculty Publications

No abstract provided.

Unwinding Irrevocable Trusts, Thomas Simmons

Faculty Publications

No abstract provided.

Communication Addressing North Carolina’S Role In The Cia’S Extraordinary Rendition And Torture Program And Request For Coordinated Measures Including State Visit, Investigations, And International Condemnation, Deborah M. Weissman

Faculty Publications

No abstract provided.

The Prosecutors And Politics Project Study Of Campaign Contributions In Prosecutorial Elections, Carissa Byrne Hessick, Prosecutors And Politics Project

Faculty Publications

The Prosecutors and Politics Project has compiled a database that identifies who contributed to prosecutor elections and the amount of their donations. Campaign contribution information is often publicly available, but the format of that information varies from state to state, the information is often scattered across multiple sources and the information is sometimes incomplete. The Project has compiled this fragmented data into a single nationwide database that will allow sustained study about who contributes to prosecutor campaigns and the amount of contributions.

This report summarizes and analyzes some of the data from the database. The report will be updated as …

Equality Opportunity And The Schoolhouse Gate, Derek Black, Michelle Adams

Faculty Publications

Public schools have generated some of the most far-reaching cases to come before the Supreme Court. They have involved nearly every major civil right and liberty found in the Bill of Rights. The cases are often reflections of larger societal ills and anxieties, from segregation and immigration to religion and civil discourse over war. In that respect, they go to the core of the nation’s values. Yet constitutional law scholars have largely ignored education law as a distinct area of study and importance.

Justin Driver’s book cures that shortcoming, offering a three-dimensional view of how the Court’s education law jurisprudence …

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Faculty Publications

No abstract provided.

Giving Taxpayer Rights A Seat At The Table, Leslie Book

Faculty Publications

How can Congress’s codification of the Taxpayer Bill of Rights (TBOR) make a meaningful difference in tax administration? This question will likely confront academics, policymakers, and judges in the coming years. In late 2015, Congress codified the rights that the Internal Revenue Service (IRS) administratively adopted in 2014, explicitly requiring that the Commissioner ensure that IRS employees receive training and act in accord with the codified rights. A recent article by Professors Alice Abreu and Richard Greenstein refers to the codification of TBOR as having the power to “transform the tax practice and the relationship between taxpayers and the IRS.” …

Report On Reparations For Victims Of Extraordinary Rendition And Torture, Deborah M. Weissman

Faculty Publications

No abstract provided.

Owning Colors, Deborah R. Gerhardt, John Mcclanahan Lee

Faculty Publications

Part I of this article explores how different disciplines have contended with understanding color as a signifier of embodied and referential meaning. As a path towards understanding embodied meaning, we summarize what scientific literature teaches about the process behind color vision and biological responses to different color wavelengths. We then turn to the referential or learned meaning of colors. The scholarly literature from psychology, art, religious history, marketing, political science, and behavioral economics overwhelmingly supports the proposition that color sends varied and contradictory expressive signals that are elastic over time and cultural context. Given the many possible and contradictory messages …

Outside The Echo Chamber: A Response To The “Consensus Statement On Abusive Head Trauma In Infants And Young Children, Randy Papetti, Paige Kaneb, Lindsay Herf

Faculty Publications

No abstract provided.

No Right To Counsel, No Access Without: The Poor Child's Unconstitutional Catch-22, Lisa V. Martin

Faculty Publications

In the midst of the push for universal access to counsel in civil cases and the increasing proportion of litigants who represent themselves, a critical barrier to access to justice for children has been overlooked. Federal courts have created a catch-22 for child litigants. Children cannot bring claims themselves, so parents must bring the claims on their behalf. Federal courts refuse to allow parents to pursue these claims pro se, stating that parents cannot provide adequate legal representation. Yet, there is no right to counsel in civil cases, and these same courts typically conclude the children’s cases do not warrant …

Bar Bytes: Phishing Update - A Whale Of A Tale, Aaron Glenn

Faculty Publications

No abstract provided.

American Democratic Deficit In Assisted Reproductive Technology Innovation, Myrisha S. Lewis

Faculty Publications

In many areas of innovation, the United States is a leader, but this characterization does not apply to the United States' position in assisted reproductive technology innovation and clinical use. This article uses a political science concept, the idea of the "democratic deficit" to examine the lack of American public discourse on innovations in ART. In doing so, the article focuses on America's missing public consultation in health care innovation. This missing discourse is significant, as political and ethical considerations may impact regulatory decisions. Thus, to the extent that these considerations are influencing the decisions of federal agency employees, namely …

Have Academic Libraries Overcome The Gender Wage Gap? An Analysis Of Gender Pay Inequality, Quinn Galbraith, Adam Callister, Heather Kelley

Faculty Publications

This report draws upon two data sets to examine the gender wage gap among member institutions of the Association of Research Libraries (ARL). The first data set consists of 35 years of salary survey data collected by ARL and is used to provide trend data on the gender wage gap from 1980 to 2014 as well as present an in-depth look at the wage gap in 2014. After controlling for variables such as years of experience, position, and type of library in the 2014 ARL Salary Survey data, results revealed that women on average made approximately 2 percent less than …

Forward: Some Puzzles Of State Standing, Tara Leigh Grove

Faculty Publications

When should states have standing? In recent years, there has been an explosion in literature on that question.1 Yet, even today, there seem to be as many questions as answers. In this Foreword to the Notre Dame Law Review’s 2019 Federal Courts, Practice, and Procedure Symposium on state standing, I discuss a few such puzzles. First, should states have “special” standing when they sue the federal government—that is, greater access to federal court than private parties? Second, and conversely, should states have at least “equal” access to federal court, or should they face more barriers than private parties? These questions …

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Faculty Publications

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …

Access Before Evidence And The Price Of The Fda's New Drug Authorities, Erika Lietzan

Faculty Publications

Sometimes drug innovation seems to happen in reverse. Patients enjoy a treatment for years even though the treatment has not been approved by the FDA or proven safe and effective to the FDA's standards. (Sometimes this happens because the FDA has declined to take enforcement action.) The agency encourages companies to perform the work necessary to satisfy the United States "gold standard" for new drug approval, however, by promising exclusivity in the marketplace. When a company does this work, at considerable expense, the results are predictable. The new drug is expensive, and patients and payers (and sometimes policymakers) are outraged. …

Frozen Pre-Embryo Practice In Missouri, Mary M. Beck, L. "Joanna" Beck Wilkinson

Faculty Publications

McQueen v. Gadberry was an Eastern District dissolution dispute over frozen pre-implantation embryos formed from McQueen’s eggs and Gadberry’s sperm. The St. Louis County trial court found the pre-embryos to be marital property of a special character and awarded them jointly to each of the former spouses. The appellate court affirmed. McQueen is an important decision because the finding that embryos are marital property was an issue of first impression that affects many Missouri families. Infertility is a common problem, couples frequently utilize assisted reproductive technologies (ART) to form families, and the extra frozen pre-implantation embryos (hereinafter pre-embryos) have fueled …

The Power Of Prosecutors, Jeffrey Bellin

Faculty Publications

One of the predominant themes in the criminal justice literature is that prosecutors dominate the justice system. Over seventy-five years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.” In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors—not legislators, judges, or police—“are the criminal justice system’s real lawmakers.” And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence. It reveals a curious …

An Organizational Account Of State Standing, Katherine Mims Crocker

Faculty Publications

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one …

Quasi-Sovereign Standing, F. Andrew Hessick

Faculty Publications

This essay proceeds in five Parts. Part I describes the three strands of state standing. It focuses particularly on parens patriae standing to assert quasi-sovereign interests. Part II criticizes the parens patriae framework. It argues that states hold quasi-sovereign interests and accordingly should have direct standing to assert them. Part III argues that states should be able to assert these interests against the United States because of the unique role that states play in our federal system. Part IV argues that recognizing state standing to bring these suits is consistent with the separation of powers theories underlying standing doctrine. Part …

America's Founding Editors: Writing The Declaration Of Independence, Douglas E. Abrams

Faculty Publications

On Congress’ behalf, one of its members, 33-year-old Virginia lawyer Thomas Jefferson, drafted the Declaration of Independence. For the next half century, Jefferson’s fierce pride of authorship, unrestrained by humility, kept him from crediting Congress for skilled editing that helped make him a national icon by sharpening his powerful, but less than polished, draft. The irony of lawyer Jefferson’s enduring bitterness and ingratitude can stimulate today’s lawyers to sharpen their own drafts by respecting cooperative editors as valuable allies, not as troublesome adversaries.

The Interior Structure Of Immigration Enforcement, Eisha Jain

Faculty Publications

Deportation dominates immigration policy debates, yet it amounts to a fraction of the work the immigration enforcement system does. This Article maps the interior structure of immigration enforcement, and it seeks to show how attention to its structure offers both practical and conceptual payoffs for contemporary enforcement debates. First, deportation should not be conceptualized as synonymous with immigration enforcement; rather, it is merely the tip of a much larger enforcement pyramid. At the pyramid’s base, immigration enforcement operates through a host of initiatives that build immigration screening into common interactions, such as with police and employers. Second, this enforcement structure …

Supbrime Lending/Foreclosure Crisis, Jacob Rugh

Faculty Publications

Subprime mortgage lending in the USA rose alongside home prices and lasted about 15 years, ending abruptly in late 2007, setting off a national foreclosure crisis. Between 2007 and 2012 there were 9 to 12 million foreclosures filings and 4 to 5 million completed foreclosures. The ensuing foreclosure crisis stemmed more from falling home prices but its unequal distribution across society by race and space was also the product of legacies of exclusion and a shared consensus on the expansion of mortgage credit and home ownership. Modest federal interventions to buffer communities and homeowners from the crisis likely reinforced the …

Reevaluating School Searches Following School-To-Prison Pipeline Reforms, Josh Gupta-Kagan

Faculty Publications

The Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue ruled in the 1990s and 2000s that T.L.O. applied to SRO-involved …

Data-Driven Law: Data Analytics And The New Legal Services, Eve Ross

Faculty Publications

No abstract provided.

Substance, Procedure, And The Rules Enabling Act, A. Benjamin Spencer

Faculty Publications

The Supreme Court promulgates rules of procedure (based on the proposals of subordinate rulemaking committees) pursuant to the Rules Enabling Act. This statute empowers the Court to prescribe "general rules of practice and procedure," with the caveat that "[s]uch rules shall not abridge, enlarge or modify any substantive right." The Act is supposed to stand as a real constraint on what rules or alterations thereof the subordinate rulemaking bodies will consider or propose, as well as on how the Court will choose to interpret any given codified Federal Rule. However, the Act has not-to date-been employed to invalidate a promulgated …

Mandatory Multilateralism, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

This Article challenges the conventional wisdom that states are always free to choose whether to participate in multilateral regimes. International law often mandates multilateralism to ensure that state laws and practices are compatible with sovereign equality and joint stewardship. The Article maps mandatory multilateralism's domain, defines its requirements, and examines its application to three controversies: the South China Sea dispute, the United States' withdrawal from the 2015 Paris Agreement, and Bolivia's case against Chile in the International Court of Justice.

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …