Law Commons^™

The Case For An African Investment Court (Aic), Won L. Kidane

Faculty Publications

No abstract provided.

(Re)Individualizing Criminal Law, Itay Ravid

Faculty Publications

Criminal law purports to care about the individual culpability of those committing crimes. Individual mental states or defenses based on one’s beliefs are considered foundational to moral responsibility and criminal conviction. The expansion of algorithmic risk assessment tools in the criminal legal system, however, threatens these principles, changing the criminal law subject from an autonomous individual to merely a predicted object. This Article argues that risk assessment tools—now functioning as gatekeepers at both the entry and exit stages of the criminal process, from predictive policing to compassionate release eligibility—have shifted the criminal system away from its foundation in individual culpability. …

Originalism, Methodolatry, And The Only Guarantee Of Wisconsin, Chad M. Oldfather

Faculty Publications

Originalism, loosely defined, commands a majority on the Supreme Court and dominates legal discourse in a way that would have been unrecognizable a generation ago. Yet its actual constraining effect on judicial behavior remains doubtful. This Article offers two contributions to the long-running debate. First, it identifies a pathology in both originalist scholarship and practice that it terms "methodolatry"—a preoccupation with methodological refinement that threatens to elevate method over the purposes interpretation is meant to serve. Second, and more importantly, it argues that debates over interpretive method, however vigorous, fail to address the core problem. Text and history offer relatively …

Toddlers, Investors, And Tax Policy, Lauren Shores Pelikan

Faculty Publications

There is a continuing childcare crisis that worsens every year. Congress has historically used tax incentives aimed at parents and employers to try to alleviate the lack of affordable childcare. However, with private equity's increasing investment in the childcare sector, this Article advocates for an entirely new approach: Congress should encourage more people to work in the childcare sector by enacting a tax benefit for the individual childcare service provider.

Childcare is a broken market. The labor-intensive nature of the industry results in razor thin profit margins, and wages remain low due to entrenched racial and gender norms. There is …

Turning Risks Of Cheating With Ai Into Opportunities For Better Teaching, John M. Lande

Faculty Publications

Many law school faculty are concerned that students may misuse artificial intelligence (AI) tools to undermine their learning and violate academic integrity policies.  Although some students will inevitably cheat, faculty can reduce the risk – and improve student learning – by rethinking assignment design and classroom communication.

This article frames the risk of AI-related cheating as an opportunity for pedagogical improvement.  It offers practical strategies to help faculty design assignments that enhance student learning, promote good decision-making, discourage inappropriate AI use, and foster responsible AI literacy.  It outlines approaches consistent with the ABA’s new requirement for formative assessment throughout the …

The Bankruptcy Judge And The Generalist Tradition, Alexander Gouzoules

Faculty Publications

The prevailing academic consensus is that bankruptcy judges are specialists presiding over specialized courts. This Article contends that this description is incomplete and, in some respects, inaccurate. Drawing on scholarly models of judicial specialization and historical surveys of the field, this Article contends that bankruptcy judges reflect a hybrid design choice: procedural specialization combined with substantive generalism. This model delivers many of the observed benefits of judicial specialization (including efficiency and technical competence) while preserving the cross-pollination of ideas and other benefits associated with the generalist tradition of American judging.

This Article also reflects on contemporary developments—most notably the rise …

Expert Report On Valuation Of Controlling Shares Of Publicly Traded Companies Under The California Billionaire Tax Act (Cbta), David Gamage, Brian D. Galle, Emmanuel Saez, Darien Shanske

Faculty Publications

This short memo addresses concerns that have been raised under the proposed California Billionaire Tax Act (CBTA or Act) about the valuation of "voting" or "special control" shares, particularly with regard to shares held in publicly traded companies. A misreading of the CBTA is circulating that claims that voting shares of all assets will be taxed in full regardless of their actual value. This is false, as shown by a straightforward reading about the provision relating to voting and special control shares in context.

Access To Primary Care And Health Care Fragmentation, Sharona Hoffman, Ishani Ganguli

Faculty Publications

This Article examines the growing crisis of long primary care wait times and the health care fragmentation that is associated with them. Patients who feel ill or are worried about new symptoms must often wait weeks or longer for appointments. In the wake of excessive wait times for primary care physician (PCP) appointments, patients increasingly turn to convenience care models such as urgent care centers, retail clinics, direct-to-consumer telemedicine, and at-home testing. While these alternatives offer prompt attention, they sacrifice other core functions of primary care and may exacerbate poor health outcomes and inequities. The Article argues that long wait …

Correcting The Record: Responding To Some Legal Arguments About The 2026 Billionaire Tax Act, David Gamage, Brian D. Galle, Darien Shanske

Faculty Publications

If adopted by California voters in November of 2026, the 2026 California Billionaire Tax Act (CBTA) would impose a one-time 5% tax on the net worth of California billionaires, payable in five annual installments of 1% over 5 years (plus a small deferral charge). Critics have raised several arguments suggesting that the Act would not bring in the expected $100 billion in projected revenues because, the critics say, key parts of the Act are unconstitutional and would be subject to legal challenge. In fact, the supposed new legal challenges critics identify are mostly just very old arguments that courts have …

Expert Report On The California 2026 Billionaire Tax: Revenue, Economic, And Constitutional Analysis, David Gamage, Brian D. Galle, Emmanuel Saez, Darien Shanske

Faculty Publications

This report summarizes key provisions of the California Billionaire Tax Act. It also answers some frequently asked questions.

The Trial Of Socrates, Jonathan Van Patten

Faculty Publications

In many important ways, the trial of Socrates was not just the trial of the century, nor even the trial of the millennium. It predated the trial of Jesus, which is important for many other reasons, but Socrates’ contribution to how we think about justice and the rule of law is without equal. This Article explores the ways that this fifth-century B.C. trial, located geographically on the margin of what came to be known as the West, is at the center of what makes us a civilization. It is not simply about the drama, nor the politics of free inquiry, …

Regulatory History And Judicial Review, Todd Phillips, Anthony L. Moffa

Faculty Publications

The Administrative Procedure Act requires federal agencies to simply "incorporate in the rules adopted a concise general statement of their basis and purpose" after they receive comments from the public, and the Supreme Court ruled in Overton Park that courts are to adjudicate whether rules are arbitrary and capricious based on agencies' contemporaneous rationales. Judge-created doctrines incentivize agencies to rely on these "concise" statements to elucidate their rationales, and as a result, rulemaking preambles have ballooned in size as agencies seek to insulate themselves from critical courts.

This article contends that although the APA's statutory requirement is in tension with …

The Non-Punishment Principle And Restorative Justice, Rachel J. Wechsler

Faculty Publications

The non-punishment principle is a legal norm that has increasingly gained legitimacy over the past quarter-century within international, regional, and domestic law on human trafficking. At its core, this principle opposes the punishment of human trafficking victims for unlawful conduct they engage in as a consequence of their trafficking victimization. Little is known about the presence and operation of the non-punishment principle within U.S. law. This Article fills this gap as the first to comprehensively map and analyze the principle’s instantiation across state and federal law.

From this new map, three key themes emerge. First, the non-punishment principle has a …

Taxing Dynasties, David Gamage, Brian D. Galle, Bob Lord

Faculty Publications

The estate tax and the broader wealth-transfer-tax system are even more broken than is commonly understood. Over the past two decades, researchers and policy experts have identified a handful of key tactics that mega-rich families use to pass wealth from generation to generation without paying tax. These tax dodges are notorious enough to be known by their acronyms, such as the IDGT and the GRAT. Scholars and policymakers have proposed reforms to block these tactics, or at least to make them more difficult.

In this Article, we present new analysis, backed by new empirical findings, to show that these proposed …

Fda After Loper Bright, Erika Lietzan

Faculty Publications

Loper Bright, which overruled the Chevron decision from 1984, tells us that a court should determine the meaning of all statutory provisions for itself, rather than deferring to the views of the federal agencies that implement those provisions. But the overruling of Chevron may have less of an impact on the U.S. Food and Drug Administration than conventional wisdom supposes. Most challenges to FDA action do not concern its statutory interpretations. And the agency prevailed in most cases involving statutory interpretation, before the Chevron doctrine took hold. After 1984, when the doctrine did apply, the agency often lost cases at …

Why Ai May Be Your Best Negotiation And Mediation Coach, John Lande

Faculty Publications

This article explores the role of artificial intelligence (AI) tools as negotiation and mediation coaches.  Drawing on research from negotiation, mediation, and consumer behavior, the article explains why bots can sometimes coach more effectively than humans.  In this role, they offer on-demand support that can help users prepare strategically and reflect honestly.  This support is especially valuable when seeking help from a human would feel too risky or awkward.

The article cautions against use of AI for roles requiring emotional intelligence, discretion, or legitimacy, such as negotiators, mediators, or arbitrators.  It distinguishes between AI as a thinking partner and AI …

Desperation Finance: Merchant Cash Advances In Bankruptcy And Beyond, Kara J. Bruce

Faculty Publications

Over the last several years, Merchant Cash Advances (“MCAs”) have risen in prominence as a form of short-term financing for distressed small businesses. MCA transactions are distinct from most small-business lending because they are not structured as loans at all. Rather, in exchange for a lump sum of cash, the merchant purports to sell to the funder an unidentified percentage of its future receipts or receivables. This structure allows funders to sidestep the application of lending regulations and usury protections, but it strains the foundations of commercial law and generates a host of interpretive challenges.

Bankruptcy, district, and circuit courts …

Does Voluntary Manslaughter Exist In South Dakota?, Gregory Brazeal

Faculty Publications

The American legal tradition generally distinguishes between cold-blooded, premeditated intentional killing and hot-blooded, spontaneous intentional killing. The former has traditionally been categorized as murder and the latter as the lesser crime of “voluntary manslaughter.” South Dakota’s homicide statutes, interpreted based on their plain meaning, depart from this deeply rooted tradition. The closest equivalent to the crime of voluntary manslaughter appears in South Dakota’s first-degree manslaughter statute, which includes a prohibition on homicide “[w]ithout any design to effect death . . . and in a heat of passion, but in a cruel and unusual manner.” The phrase “heat of passion” suggests …

Limits On Damages For Breach Of A Forum Selection Clause, John F. Coyle, Tanya Monestier

Faculty Publications

When a plaintiff sues in a court other than the one designated in a forum selection clause, the defendant’s remedial options are limited. It can ask the court to dismiss the case outright. Or it can ask the court to transfer the case to the designated forum. The defendant typically cannot, however, recover money damages—in the form of attorneys’ fees and related expenses—that it incurs in the course of persuading the court that transfer or dismissal is appropriate. This is because the conventional wisdom among judges has long been that damages are not available for breach of a forum selection …

A First Amendment Right To Know, David S. Ardia

Faculty Publications

This Article tackles an increasingly important question: Can police round up people on American streets and keep secret the names of those they detain without violating the First Amendment? Alarmingly, the government made this very argument in the summer of 2020 when it sought to break up Black Lives Matter protests occurring in cities across the country. Based in part on a Supreme Court decision from the 1970s involving access to prisons, the government argued that the First Amendment imposes no constraints on government secrecy. If it is true that the government can shield its exercise of police power from …

Private Prosecution And The State, Anna Arons

Faculty Publications

The modern family regulation system is paradigmatically public. In the common account, the state plays a monopolistic role. It decides which families to investigate and which to prosecute, which families to surveil and which to separate, and which services and benefits to provision for families entangled in the system. Yet, this public family regulation paradigm obscures the role of private prosecution. Nearly half of states permit private individuals to initiate dependency prosecutions. In these cases, private prosecutors allege that parents have neglected or abused their children and seek state intervention on the fundamental right to family integrity.

This Article surfaces …

Education Theory Integrated In Business Law, Robin Boyle-Laisure

Faculty Publications

Education theorists have identified three pedagogical techniques that enhance student learning and retention of knowledge, namely, scaffolding, interleaving, and schema-building. These techniques help students transfer knowledge from short-term to long-term memory, where it is best retained for future use. Scaffolding involves part-task sequencing and whole-task sequencing. By interleaving tasks, professors present steps out of order or new material before the prior material is fully understood. Assisting students in developing schemas can help them store their knowledge in long-term memory. This article explains and explores these techniques as applied in an undergraduate business law course. The appendices provide detailed exercises that …

The Right To Seek Joy, Tyler Rose Clemons

Faculty Publications

Within the past three years, roughly half of American states have restricted access to gender-affirming medical treatment for children. In this article, I argue that these bans violate transgender children’s right to liberty guaranteed by the Fourteenth Amendment’s Due Process Clause. I do so by excavating the Framers’ understanding of liberty as the right to seek joy. Rooted in the philosophies of John Locke and Epicurus, the Framers understood liberty as the right to make important life decisions according to one’s subjective preferences without undue interference from the government. Based on this understanding, I develop a new framework for substantive …

Abuse Of Contract: A Proposal For A New Cause Of Action, Miriam A. Cherry

Faculty Publications

With the growth of online commerce and the platform economy, many companies are including provisions in their online terms and conditions that extend far beyond what reasonable consumers would expect. Some terms and conditions purport to bind customers to separate contracts in future transactions that have little to do with the first contract. Other boilerplate purports to cover family members of the customer who created an account. Some retailers have argued that people shopping in their brick-and-mortar stores are subject to terms and conditions because those shoppers had at some point previously created an online account. For example, Disney argued …

Treatment Sentences, Evelyn Malavé

Faculty Publications

One of the most common mandates of a non-incarceratory sentence is to submit to treatment. Across the criminal legal system, from problem-solving courts to probation, millions of defendants sentenced to non-incarceratory sentences—including people not diagnosed with a substance abuse disorder—are required to attend drug treatment programs. After decades of policies that criminalized drug use, non-incarceratory sentences that match people with treatment may appear to be a step forward—or at least not the most pressing problem.

But criminal law scholarship has not fully reckoned with the harms of treatment sentences, including the harms of mandated treatment itself. Analysis of treatment sentences …

Systemic Racism As Negligence, Taifha Natalee Alexander

Faculty Publications

(Excerpt)

If negligence doctrine can hold polluters liable for foreseeable toxic harm, should it not also hold schools liable for the racial toxins their policies foreseeably cause? Negligence serves as a critical doctrinal vehicle for redressing harm resulting from failures to exercise care. Embedded in common law traditions, negligence doctrine has evolved significantly through application to new contexts where systemic, rather than individualized, failures produce harm. Some courts have applied negligence doctrine to an expanding range of institutional responsibilities, from medical malpractice to corporate liability. Yet, despite the doctrine’s flexibility, courts have not applied the framework to address one of …

At The Intersection Of Property And Disaster Recovery, Jeanne Ortiz-Ortiz

Faculty Publications

(Excerpt)

When disaster strikes, communities rally to meet urgent, short-term needs—food, shelter, and medical care that keep people alive and safe in the immediate aftermath. For days, we see images of flooded streets, emergency shelters, and calls to support fundraising campaigns in the media cycle. Long-term recovery after a disaster often depends on something less visible: the ability of people, especially those experiencing economic insecurity, to rebuild or return to stable, functional homes.

The outcome of this largely depends on whether families can navigate and access assistance programs like those offered by the Federal Emergency Management Agency (FEMA). Can you …

Building Shields: Accreditation, Insurance, And Public-Private Partnerships As Tools To Safeguard Critical Race Theory And Democracy In Higher Education, Taifha Natalee Alexander

Faculty Publications

(Excerpt)

Following the racial justice uprisings of 2020, universities have become increasingly vulnerable to coordinated political campaigns aimed at dismantling antiracist teaching, training, and research. These attacks, ranging from legislative bans on Critical Race Theory (“CRT”) to executive efforts to dismantle the U.S. Department of Education, expose the fragility of higher education’s role as a guardian of democratic pluralism. This Essay demonstrates that universities cannot rely solely on moral suasion or First Amendment litigation to resist these escalating, structural assaults. Instead, colleges and universities must build a multilayered legal strategy that renders the teaching of CRT and the pursuit of …

Against Doctrinal Siloing: Harmonizing Fiscal Federalism And The U.S. Constitution, David Gamage, Darien Shanske

Faculty Publications

This Essay argues that constitutional law’s treatment of fiscal federalism has fractured into a bewildering collection of doctrinal silos. Federal spending that pressures states, federal preemption of state taxes, the Dormant Commerce Clause, sovereign immunity, Section 5 of the Fourteenth Amendment, and the federal taxing power are all analyzed through distinct tests, even when they implicate the same basic conflict between federal authority and state fiscal autonomy. The result is not just theoretical confusion but inconsistent constitutional answers. Current doctrine can protect states from comparatively modest liabilities while leaving uncertain whether Congress may displace large swaths of state revenue authority. …

My Negotiation Chatbot Toby And Pedagogical Governance, Renee Henson

Faculty Publications

The use of artificial intelligence (AI) chatbots is exploding. Adolescents increasingly prefer interactions with AI companions over peers. Adults rely on these systems for health planning, therapy, administrative assistance, nutrition guidance, and even simulated “romantic relationships.” Individuals and institutions are adopting AI tools at a pace that far exceeds the development of governance frameworks.

I developed Toby for use in my first-year Lawyering: Problem-Solving and Dispute Resolution (“Lawyering”) course to expose students to the dynamics of negotiating against an opposing counsel with a difficult personality—a type of adversary all too common in legal practice, yet difficult to prepare for. Toby …