Law Commons^™

Justice Scalia And Sherman Act Textualism, Alan J. Meese

Faculty Publications

No abstract provided.

Grid Modernization And Energy Poverty, Shelley Welton

Faculty Publications

Grid modernization holds the alluring promise of rationalizing electricity pricing, saving consumers money, and improving environmental quality all at the same time. Yet, we have seen only limited and patchwork regulatory initiatives towards significant grid modernization in the United States. Outside of a few leading states, state energy regulators appear loath to embrace fullthroated versions of the project. This article argues that the underdiscussed problem of energy poverty in the United States is a critical contributing factor in the gap between grid modernization’s possibilities and our regulatory reality. Only by explicitly understanding how the issues of grid modernization and energy …

Reading Together And Apart: Juries, Courts, And Substantial Similarity In Copyright Law, Laura A. Heymann

Faculty Publications

No abstract provided.

Rights Dynamism, Timothy Zick

Faculty Publications

No abstract provided.

A First Amendment Deference Approach For Reforming Anti-Bullying Laws, Emily Suski

Faculty Publications

This Article examines the anti-bullying laws and their response to the problem of bullying in light of both the nature of the problem itself, the interventions the laws call for, and the laws’ First Amendment implications. Bullying has many varied, negative consequences, some tragic, and is widespread. Yet, the anti-bullying laws disproportionately focus schools’ responses to bullying on school exclusion, meaning suspending, expelling or otherwise excluding students who bully from school. This is so even though social science literature has found school exclusion ineffective and sometimes counterproductive as a method for addressing bullying. What is more, because much of bullying …

Public Energy, Shelley Welton

Faculty Publications

Many scholars and policy makers celebrate cities as loci for addressing climate change. In addition to being significant sources of carbon pollution, cities prove to be dynamic sites of experimentation and ambition on climate policy. However, as U.S. cities set climate change goals far above those of their federal and state counterparts, they are butting up against the limits of their existing legal authority, most notably with regard to control over energy supplies. In response, many U.S. cities are exercising their legal rights to reclaim public ownership or control over private electric utilities as a method of achieving their climate …

If Its Walks Like Systematic Exclusion And Quacks Like Systematic Exclusion: Follow-Up On Removal Of Women And African-Americans In Jury Selection In South Carolina Capital Cases, 1997-2014, Ann M. Eisenberg, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume

Faculty Publications

No abstract provided.

The Blurred Blue Line: Reform In An Era Of Public & Private Policing, Seth W. Stoughton

Faculty Publications

In April 2017, the Alabama Senate voted to authorize the formation of a new police department. Like other officers in the state, officers at the new agency would have to be certified by the Alabama Peace Officers Standards and Training Commission. These new officers would be “charged with all of the duties and invested with all of the powers of law enforcement officers.” Unlike most officers in Alabama, though, the officers at the new agency would not be city, county, or state employees. Instead, they would be working for the Briarwood Presbyterian Church, which Senate Bill 193 authorized to “appoint …

Amnesty For Even The Worst Offenders, Jay Butler

Faculty Publications

In recent years, global policy makers have declared that heads of state must be held accountable through criminal prosecution for internationally wrongful acts. Scholars too have insisted that the international system’s embrace of accountability excludes or renders illegal the granting of amnesty. This Article argues that that position is too narrow and uses the ongoing conflict in Syria, as well as other contemporary examples, to examine some of consequences of the clamor for prosecution.

The Article rejects the binary juxtaposition of amnesty and accountability in current international legal scholarship, and instead seeks to broaden the terms of the conversation by …

Introduction: Still In Search Of The Pro-Business Court, Jonathan H. Adler

Faculty Publications

Business and the Roberts Court was an effort to get beyond pure quantitative analysis and unpack the ways in which the Roberts Court is—and is not—pro-business. Among other things, the book highlighted how exogenous factors, including the increased specialization of the Supreme Court bar and broader political trends, have influenced the Supreme Court’s approach to business issues. The collected essays also unpacked the Court’s handling of specific types of cases in an effort to understand why it has ruled the way it does.

Business and the Roberts Court was not the last word on the Roberts Court’s approach to business …

A Tactical Fourth Amendment, Brandon L. Garrett, Seth W. Stoughton

Faculty Publications

What rules regulate when police can kill? As ongoing public controversy over high-profile police killings drives home, the civil, criminal, and administrative rules governing police use of force all remain deeply contested. Members of the public may assume that police rules and procedures provide detailed direction for when officers can use deadly force. However, many agencies train officers to respond to threats according to a force “continuum” that does not provide hardedged rules for when or how police can use force or deadly force. Nor, as recent cases have illustrated, does a criminal prosecution under state law readily lend itself …

The Elephant In The Room Or The Elephant In The Mousehole? The Legal Risks (And Promise) Of Climate Policy Under §115 Of The Clean Air Act, Nathan Richardson

Faculty Publications

Climate policy in the United States is near an inflection point. With Congress uninterested in new legislation, focus at the federal level for most of the last decade has been on the Clean Air Act, but whether regulation under that old statute can successfully address carbon emissions remains unclear. Under President Obama, the EPA has focused on two core programs-vehicle emissions standards and the Clean Power Plan, aimed at fossil fuel power plants. But with the latter of these programs under legal challenge, and both falling short of the flexible, economy-wide policy many believe is necessay, academic and policy attention …

The Care And Feeding Of Law Student Research Assistants, Alyssa Dragnich, Rachel H. Smith

Faculty Publications

(Excerpt)
Hiring, training, managing, and mentoring research assistants can be highly gratifying. When it works well, the relationship between a professor and a research assistant (RA) can be a distillation of all the best parts of teaching legal writing. It benefits professor and student. It results in a bond of friendship and collegiality. It produces useful and thoughtful work.

But it can also go horribly wrong. The relationship can be a waste of student and professor time and energy. The professor can feel burdened, rather than assisted. The student can feel confused and underappreciated. As any professor knows who has …

The Myth Of Strategic And Tactical Airlift, Jacob D. Maywald, Adam D. Reiman, Alan A. Johnson, Robert E. Overstreet

Faculty Publications

In the 21st century, our ability to quickly and decisively deliver combat forces and equipment is of the utmost importance in achieving our national security objectives. The swiftness and flexibility of the US Air Force’s mobility airlift fleet is the key to executing a rapid global mobility strategy. The operational effectiveness and efficiency of military air transportation relies on the expertise and intuition of Air Mobility Command’s (AMC) mobility planners. Working in coordination with the United States Transportation Command (USTRANSCOM) and geographic combatant commands (GCC), AMC is responsible for the tasking and tracking of almost 900 daily mobility sorties worldwide. …

Justice Scalia And Abortion Speech, Timothy Zick

Faculty Publications

No abstract provided.

Liberty In Loyalty: A Republican Theory Of Fiduciary Law, Evan J. Criddle

Faculty Publications

Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law’s core features.

The normative foundations of fiduciary loyalty come into sharper focus when viewed …

Property As A Management Institution, Lynda L. Butler

Faculty Publications

No abstract provided.

The Return Of The Unprovided-For Case, Michael S. Green

Faculty Publications

No abstract provided.

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Faculty Publications

Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts …

Neuroscience Changes More Than You Can Think, Paul S. Davies, Peter A. Alces

Faculty Publications

In this Essay, we consider the contribution of a startling new book, Law & Neuroscience (L&N), by Owen Jones, Jeffrey Schall, and Francis Shen. It is a law school course book (a genre not often the focus of a scholarly review essay) that supports fundamental inquiry into the relationship between emerging neuroscientific insights and doctrinal conceptions in the law. We believe that the book shifts the paradigm and so may profoundly affect the course of normative evaluation of law. In this Essay, we trace and evaluate the “argument” of the book and suggest ways in which its contribution to the …

Free Speech And Terrorist Speech: An Essay On Dangerous Ideas, Thomas P. Crocker

Faculty Publications

Response to Alexander Tsesis, Terrorist Speech on Social Media, 70 Vand. L. Rev. 651 (2017).

Tort Law Inside Out, Cristina Carmody Tilley

Faculty Publications

For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms.

This Article takes its cue from the New Doctrinalists, who urge that extralegal normative insights from fields such as economics or philosophy aid adjudication only when they are directly tethered to legal concepts; that is, …

Players Remember: A Coach's Impact Remains Long After The Game Ends, Douglas E. Abrams

Faculty Publications

No abstract provided.

Review Essay: Charity For The Autonomous Self, Carl H. Esbeck

Faculty Publications

Review essay for "Charity Law and the Liberal State", by Matthew Harding and "Religion, Charity and Human Rights", by Kerry O'Halloran.

The Jurisdiction Canon, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most …

Future Interests? Meet Chattels!, Thomas Simmons

Faculty Publications

No abstract provided.

Court Transparency And The First Amendment, David S. Ardia

Faculty Publications

This is a critical time for court transparency because the courts, like so many institutions of government, are in the midst of a transformation from the largely paper-based world of the twentieth century to an interconnected, electronic world where physical and temporal barriers to information are disappearing. Not surprisingly, the shift to electronic access to the courts raises significant privacy concerns. As a result of these and other concerns, a number of courts and legislatures are considering sharply limiting public access to certain court proceedings and records.

The Vanishing Common Law Judge, Neal Devins, David Klein

Faculty Publications

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in …

Understanding The Department Of Defense's Policy Regarding Transgender Servicemembers, A. Benjamin Spencer

Faculty Publications

In June 2016, the Secretary of Defense (SECDEF) issued Directive-type Memorandum (DTM) 16-005, "Military Service of Transgender Service Members." This DTM announced that, based on the premise that the "military should be open to all who can meet the rigorous standards for military service and readiness," "transgender individuals shall be allowed to serve in the military." The attachment to the memo declared that servicemembers could no longer be "involuntarily separated, discharged or denied reenlistment or continuation of service, solely on the basis of their gender identity." The core purpose of the new policy was to ensure that transgender persons would …

Tweeting #Justice: Audio-Visual Coverage Of Court Proceedings In A World Of Shifting Technology, Itay Ravid

Faculty Publications

The debate over whether to allow cameras into courtrooms refuses to fade away. In 2015 alone, U.S. federal courts completed a five-year experiment with cameras in courts, New Zealand published new guidelines for audio-visual coverage, and Scotland completely revised its former broadcast policy. These jurisdictions, and others around the globe, constantly struggle to design model practices that successfully balance freedom of the press, transparency, and public access to information, with rights to a fair trial and privacy. The constant need to rethink coverage policies can be attributed in large part to the advancement of technology, providing the media innovative tools …