Law Commons^™

Against The Sliding Scale, Alan J. Meese

Faculty Publications

Gavil and Salop claim that the Chicago School’s “conservative critique of antitrust law” has peddled numerous pro-defendant economic assumptions, misleading courts in their assessment of alleged exclusionary conduct. The resulting legal standards, they say, require plaintiffs to adduce too much evidence to establish a prima facie case, for instance, producing false negatives and thus allowing restraints that injure purchasers to avoid condemnation. Drawing on decision theory, they propose reforms to the rule of reason analysis applied to exclusionary agreements to extirpate the Chicago School’s baneful influence. In suggesting these reforms, they hope sometimes to alter the parties’ respective burdens of …

The Kincare Craze In Child Protection: Romanticism, Subterfuge, And Racial Separatism, James G. Dwyer

Faculty Publications

Among recent developments in family law, the most prevalent issue on legislative agendas has been Kincare as an alternative to non-relative foster care when maltreated children cannot remain with parents. Long an available option legally but traditionally regarded with skepticism by child protection workers, Kincare is now idealized. A steady stream of state legislative bills aims to encourage or command child protection and foster care agencies to place maltreated children in the home of relatives or friends of their parents whenever one is available, ostensibly based on an assumption that this is categorically better for children than living with unrelated …

History's Identity Crisis, Allison Orr Larsen

Faculty Publications

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning— weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of …

Patenting The Taboo: Sex, Drugs, And Abortion, Andrew Gilden, Sarah R. Wasserman Rajec

Faculty Publications

The patent system provides a surprisingly rich archive of the interplay between social norms and technological change. Patent law requires applicants to publicly disclose the novelty and usefulness of their inventions, thereby bringing to light areas of innovation that may have previously lived in the shadows. In other words, patent law encourages public disclosure of technologies that are taboo—developed and practiced in secret, for reasons such as social approbation, illegality, or religious sanctity. To obtain a patent for a taboo technology, patentees must establish their legitimacy as innovators while navigating cultural norms that are hostile to their fields of innovation. …

Fairness Writ Large Or Small In International Criminal Justice, Nancy Amoury Combs

Faculty Publications

For this symposium, I was not assigned to talk about Megan [Fairlie]’s work per se, and so I initially planned to discuss something completely different. In the end, however, I came back to Megan’s work because I believe her scholarship provides a new way of thinking about the entrenched challenges currently facing our collective field of study: international criminal law and procedure.

As we all know, Megan was an accomplished comparativist, and her area of expertise was criminal procedure. Even more particularly, Megan specialized in the criminal procedure of the still relatively new international criminal courts and tribunals. She focused …

By Any Other Name: Dei Is Not What You Think It Is, Nicole Porter

Faculty Publications

In this moment, Diversity, Equity, and Inclusion (DEI) programs are hotly debated and very misunderstood. Contrary to popular belief, DEI programs do not drastically change an employer’s hiring practices. They are, to some extent, performative. In this essay, I explain what DEI really is and why a rebranding (or at least a new name) might be in order.

Carceral Bonds, Tyler E. Dougherty

Faculty Publications

Over the past 50 years, the U.S. financed a massive physical and fiscal expansion of prisons via the municipal bond market—with devastating results. This project is the first to shine a light on the role of municipal debt in state-level carceral decision making, spotlighting the ways that the municipal bond market affects states’ capacities to incarcerate.

This Article argues that the two primary controls of states’ use of the carceral bond market—(1) market discipline and (2) states’ fiscal constitutions—are particularly ineffective at limiting states’ spending on prisons. This failure to restrain states’ spending through the carceral bond market enables private …

Debt, Work, And The State, Kate Sablosky Elengold

Faculty Publications

In every state and the District of Columbia, an individual who owes a debt to the state can lose their license to work. Without the ability to make a living, it is much harder to pay off debt. Although using occupational license restrictions as a debt collection tool appears nonsensical, it has never before been the subject of scholarly debate. This Article thus begins an important conversation about debt, work, and the state.

This Article identifies the pervasive authority that state and local governments have to revoke an individual’s occupational license solely because that person owes a debt to the …

Text, Fairness, And Efficiency: The Case Against The Plausibility Standard For Affirmative Defenses, Jessica Marks, Marcus A. Gadson

Faculty Publications

Lower federal courts have struggled to answer the following question without any guidance from the U.S. Supreme Court: Does the Iqbal and Twombly plausibility standard apply to affirmative defenses? In this essay, we explain why the answer is no. We aim to provide practical guidance to the countless judges deciding whether to strike an affirmative defense. First, we argue that Rule 8’s text makes using the plausibility standard to evaluate affirmative defenses improper. Judges should pay especially careful attention to our textual analysis because the Supreme Court has placed great weight on the text’s plain meaning in recent civil procedure …

Flooding The Zone: The State Of Federal Flood Insurance At The Beginning Of Trump 2.0, Maggie Caudle, Jacob Dowler, Donald T. Hornstein

Faculty Publications

The risks of flooding in the United States have never been more apparent, making all the more significant the state of flood insurance and the legal and political volatility of the National Flood Insurance Program. In this Article we discuss the details of “Risk Rating 2.0,” the most significant change to federal flood insurance in half a century, and its legal and political future in the new world of Trump 2.0. And, in addition to describing the details of this new change to federal flood insurance, we describe its advantages and disadvantages in both the newfound political environment in which …

Government Lawyers, Ethical Dilemmas: The Case Of Herbert Wechsler And Japanese American Incarceration, Eric L. Muller

Faculty Publications

This essay examines ethical dilemmas facing government agency lawyers through two episodes from Herbert Wechsler’s wartime service as head of the DOJ War Division: overseeing the Supreme Court brief in Korematsu v. United States and administering the Renunciation Act of 1944 amid turmoil at the Tule Lake Segregation Center. In the Korematsu matter, Wechsler managed a brief that skirted the Army’s problematic “Final Report” claims (including shore-to-ship signaling), privileging institutional role fidelity over disclosure, and helping sustain a framework that justified mass removal of Japanese Americans. In the renunciation program, he chose to accept any “voluntary” citizenship renunciation regardless of …

Arrest Unbound, Eisha Jain

Faculty Publications

Arrest has long been legally defined as a seizure, or temporary restraint on liberty, under the Fourth Amendment. But when the government arrests someone today, it imposes far more than a seizure. The government also marks individuals with arrest records, which enable wide-ranging penalties, such as deportation, civil detention, loss of a professional license, and disruption of custody. One consequence is that this regulatory structure unravels arrest from the key institutional checks that would permit the public or key actors to examine whether the government-imposed consequences stemming from arrest are fair and justified. Proportionality depends on the public at large …

Developing Lawyering Skills In The Age Of Artificial Intelligence: A Framework For Legal Education, Julie Kimbrough

Faculty Publications

This Article explores the emergence of generative artificial intelligence technology in legal education and law practice. It first offers historical perspective by examining the development of online legal research systems and other existing law practice technology tools that leverage artificial intelligence. This Article then proposes a framework for legal education based on twenty-first-century competencies that advance human interaction with legal technology tools. Next, this Article recommends that law schools incorporate these competencies into learning outcomes along with a holistic approach to teaching technology-driven lawyering skills as a strategy to narrow the learning gap between legal education and law practice. It …

Suspending The Truancy Paradigm, Barbara A. Fedders, Lucy Carlson, Max Parker

Faculty Publications

In the aftermath of the COVID-19 pandemic, school absences have skyrocketed. While racially minoritized, disabled, and low-income students have historically been, and remain, most likely to experience absence, white and affluent students’ rates of attendance have also declined. To respond to this new universality of student absenteeism, some policymakers have begun to seek alternatives to what we term “the truancy paradigm.”

We define the truancy paradigm as the range of coercive and often punitive interventions deployed by states and school districts to enforce compulsory attendance statutes. This paradigm, we argue, wrongly assumes (a) that strict enforcement of compulsory attendance laws …

Reproductive Innovation And Reproductive Exceptionalism: How Private Health Insurance Coverage Of Fertility Treatment Complements Hostile Governmental Action And Expands Access To Assisted Reproduction In The United States, Myrisha S. Lewis

Faculty Publications

The use of fertility treatment and assisted reproductive technology (ART) in the United States and globally is increasing over time. As of April 2023, the World Health Organization estimates that approximately one in six individuals have faced infertility globally. Fertility treatment includes the use of drugs to stimulate egg production, in vitro fertilization (IVF), and, for some, the use of gestational surrogacy to aid in childbirth. Debates have abounded and continue to abound in federal legislatures, state legislatures, and society more broadly about the morality of abortion, contraception, and assisted reproduction, as well as whether governments, public insurers, and private …

"We Can't Allow Iot Vendors To Pass Off All Such Liability To The Consumer": Investigating The U.S. Legal Perspectives On Liability For Iot Product Security, Prianka Mandal, Amit Seal Ami, Iria Giuffrida, Daniel Shin, Ella Sullivan, Adwait Nadkarni

Faculty Publications

As the regulatory landscape for the Internet of Things (IoT) evolves, vendors are moving towards certifying their products for security. Thus, we need to understand who is liable when certification failures result in harm, i.e., when certified products have vulnerabilities that are exploited to cause harm to users. This paper addresses the fundamental and timely question that has significant implications for vulnerability detection in certified products: who is liable for harm resulting from vulnerabilities in certified products, and who should be so liable? Through a qualitative analysis of contractual documents from 20 IoT vendors, this paper investigates how liability is …

The Military's Constitutional Role, Brenner M. Fissell

Faculty Publications

A basic principle of the American constitutional order is that civilian authority must be supreme over that of the military. The violation of this principle by the British was one of the grievances enumerated in the Declaration of Independence, and the Framers responded with a Constitution that made military rule impossible. But why is so-called “civilian control” of the military so important? This deep normative question has yet to be thoroughly answered by scholars, most of who assume it away as a given. This Article takes up that task, using contemporary political theory to defend the principle of civilian control. …

From Myriad To Moderna: The Modern (Bio)Pharmaceutical Company, Ana Santos Rutschman

Faculty Publications

This Article examines the emergence of two modern pharmaceutical companies: Myriad and Moderna. After providing a brief background on each company, this Article contrasts them across the following areas: the technologies they have brought to market; their location; their start-up stages and the role that venture capital played in catalyzing their evolution from start-ups to large corporate structures; their relationships with other entities in the private sector, in academia and in the public sector; and their intellectual property and licensing strategies.

Scrutinizing Transgender Healthcare Bans Through Intersex Exceptions, Holning Lau, Barbara A. Fedders

Faculty Publications

Major professional medical organizations—for example, the American Academy of Pediatrics, American Medical Association, and Endocrine Society—consider gender-affirming care to be safe and, at times, essential for vulnerable transgender youth. Despite these benefits, 26 states have banned gender-affirming care for minors. Proponents of these bans raise concerns about potential medical harms, the irreversibility of treatments, and the adequacy of informed consent.

Every state ban includes an exception for so-called gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary. The procedures are rarely medically necessary, but proponents of the surgeries contend …

Retrenchment By Division: The New Law And Politics Of Parental Rights, Mary Ziegler, Maxine Eichner, Naomi Cahn

Faculty Publications

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent?

This Article …

Plastics, Carbon, Politics, And Experimentation In Environmental Governance, Donald T. Hornstein

Faculty Publications

This Article analyzes two major international environmental negotiations that concluded in late 2024 and uses them to explore emerging directions in plastics policy, carbon markets, and experimental forms of environmental governance. It examines the redesign of global carbon offset markets following the adoption of Article 6 mechanisms at COP 29, highlighting how new international standards and domestic U.S. initiatives seek to address longstanding concerns about offset quality while insulating climate policy from drastic federal political swings. The Article then evaluates the failed Busan negotiations toward a global plastics treaty, explaining how disagreements over production caps, consensus procedures, and the complexity …

Reflections On The Ferguson Report, Eisha Jain

Faculty Publications

This Essay reflects on the significance of the Investigation of the Ferguson Police Department by the Civil Rights Division of the Department of Justice (“Ferguson Report”). The Ferguson Report is a valuable teaching tool for criminal procedure because it documents detailed cases of police misconduct. But it also reveals how many deeply intrusive and over-reaching policing practices are not, in fact, unconstitutional. Reading the Report offers a window into how the law can enable misconduct, and it reveals how little opportunity the community affected had to create change.

Winning By Losing: The Strategy Of Adverse Private Letter Rulings, Noah Hertz Marks

Faculty Publications

Every year, the Internal Revenue Service (IRS) issues hundreds of Private Letter Rulings (PLRs) responding to formal taxpayer inquiries about how tax law will apply to their proposed situations and transactions, which functionally bind the IRS with respect to the taxpayer. Although the Internal Revenue Code formally forbids relying on PLRs as precedent, taxpayers and practitioners closely monitor and structure their operations and advice around PLRs. Taxpayers can withdraw a PLR request at any time for any—or no—reason, and they generally know in advance whether the PLR will be favorable or adverse. Conventional wisdom assumes adverse PLRs should be extremely …

The Lawyer's Obligation As Public Citizen, Gene R. Nichol

Faculty Publications

This essay by Gene R. Nichol examines the lawyer’s duty as a “public citizen,” drawing from the ABA Model Rules’ preamble and historical, civic, and religious touchstones to argue that legal professionals bear a unique obligation to sustain democracy, the rule of law, and public confidence in justice. Situating the discussion in contemporary struggles—particularly in North Carolina—the essay details court-documented gerrymandering, voter suppression, and politicization of the judiciary, and laments the comparative silence of the institutional legal community, including bar associations, law schools, and leading firms.

Nichol juxtaposes today’s reticence with past episodes of vocal resistance (and support) from the …

Where Torrens Failed, John V. Orth

Faculty Publications

The early days of the Torrens system in the United States looked promising. Its spread through the country was rapid — by the early 20th century, it had been adopted in almost half of America’s states. Today, however, Torrens is all but obsolete in America. This article examines what went wrong. For one thing, a workable, if cumbersome, system of title assurance — relying on recorded deeds, warranties of title, and title insurance — already existed. For title holders, the process of petitioning for Torrens registration was unfamiliar, often expensive and protracted, and invited risk from adverse claimants. Pragmatic factors …

The Art Belongs To The Artists, Deborah M. Weissman, Louis A. Pérez

Faculty Publications

This Article examines the rights of detainees interned at the Guantánamo Bay Naval Station to claim ownership of cultural work produced during their imprisonment. Through a series of arbitrary policies, the U.S. government alternately punished detainees for creating works of art, confiscated paintings and drawings, and otherwise denied detainees’ rights to control their creative works. This Article suggests the need to understand these policies as acts akin to plunder—that is, as a practice long associated with colonialism as a means through which the artifacts of the material culture of conquered peoples were expropriated and claimed as “trophies” of conquest. It …

Tax Compliance, Social Norms, And Influencers, James Alm, Jay A. Soled, Kathleen Delaney Thomas

Faculty Publications

While attaining perfect tax compliance is unachievable, more can and must be done. In the past, the country has relied primarily on a traditional system of sticks (e.g., audits and penalties) and carrots (e.g., refunds and whistleblower awards) to help narrow the “tax gap,” or the difference between what taxpayers owe in taxes and what they actually pay. Now, in the social media era, Congress and the Internal Revenue Service (IRS) should look beyond these traditional enforcement mechanisms. To achieve an even higher voluntary compliance rate, this Article advocates for policymakers to invest greater resources to enhance the social norm …

Tax And The Myth Of The Family Farm, Kathleen Delaney Thomas

Faculty Publications

With income and wealth inequality at historically high levels, policymakers have looked to the tax system as a potential road to reform. Specifically, new taxes on wealth or inheritances could raise much-needed revenue and reduce intergenerational wealth disparities. Yet looming behind recent proposals to strengthen the progressivity of the tax system is the specter of taxing family farms out of existence.

In the minds of voters, the family farmer is a sympathetic taxpayer who is cash poor but holds valuable property. Federal taxes that are based upon property values (like a wealth tax or an estate tax), rather than on …

Notice, Consent, And Choice-Of-Jurisdiction Clauses In The United States, John F. Coyle

Faculty Publications

Although choice-of-jurisdiction clauses are routinely enforced by courts in the United States, there are circumstances where they are subject to special scrutiny. One of these circumstances is when the party resisting the clause was not provided with proper notice as to the existence of the clause or the identity of the chosen jurisdiction. This Article first reviews the existing case law in this area and shows that while some U.S. courts have refused to enforce clauses for lack of notice, others do so as a matter of course. It then discusses several decisions where U.S. courts have held that notice …

The Nuances Of Prosecutorial Nonenforcement, Meighan R. Parsh, Carissa Byrne Hessick

Faculty Publications

The academic literature on prosecutors is divided: Some commentors believe that prosecutors should more aggressively use their ability to decline to bring charges, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration. Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and public safety. While the visibility of this debate has increased—spilling over from the pages of law reviews into political campaigns and headlines—the terms of this debate are at times unclear. Prosecutorial nonenforcement is a multifaceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs …