Law Commons^™

Innovation Challenges In The Air Force Sbir Program: From The Small Businesses’ Perspective, Hart J. Holt, Amy M. Cox, Scott Drylie, David S. Long, Alfred E. Thal Jr., R. David Fass

Faculty Publications

Every year the United States invests $3.2 billion in the Small Business Innovation Research (SBIR) program to promote innovation among the nation’s small businesses. Half of this investment is from the DoD. This research considers the challenges faced by small businesses innovating with the DoD, particularly those awarded SBIR contracts with the United States Air Force. The authors surveyed 286 unique small businesses that were previously awarded an Air Force SBIR contract. By asking the survey respondents open-ended questions and categorizing their responses, they pinpoint unaddressed challenges from the small business perspective. By categorizing survey responses through Qualitative Content Analysis, …

The Elephant In The Dark Room: A Response To Fair Notice, The Rule Of Law And Reforming Qualified Immunity, Teressa E. Ravenell

Faculty Publications

In response to Professor Chapman’s Fair Notice, the Rule of Law, and Reforming Qualified Immunity, this article examines the viability of Chapman’s proposal to reform qualified immunity by focusing on the “fair notice” rationale. Chapman argues that government officials should not be shielded from liability in cases where they acted in bad faith, violated criminal laws, or engaged in conduct malum in se. This article explores whether such a proposal could meaningfully alter qualified immunity litigation and concludes that significant procedural and historical barriers make this reform unlikely to succeed.

Theory And Practice Of Mediation Representation, John Lande

Faculty Publications

These days, American attorneys regularly represent clients in mediation. This representation is a complex process, and attorneys and law students need guidance about how to serve clients well in this context. This article offers a theoretical framework for analyzing mediation representation based on Real Practice System Theory. It reviews books that outline elements of mediation representation and identify practical techniques that attorneys can use when representing clients in mediation. It supplies several suggestions for faculty who teach mediation, including teaching courses combining the perspectives of both mediators and mediation representatives.

Real Practice Systems Project Menu Of Checklists For Attorneys In Mediation, John Lande

Faculty Publications

This is a detailed menu of checklists for attorneys representing clients in mediation, including actions before, during, and after mediation sessions. The checklists include items about information to provide on websites, compliance with ethical requirements, and reflection and improvement of techniques. They are intended to prompt attorneys to become more conscious and intentional in their work, helping them to develop routines and strategies for dealing with recurring problems.

The checklists are extensive but not exhaustive. They are not recipes to follow strictly, thoughtlessly, or completely. Instead, they should help attorneys decide what to do in any specific case or in …

Adr In The Ongoing Experiment Of American Law, Carli N. Conklin

Faculty Publications

To engage in the development of American law— past or present—is to engage in a great and ongoing experiment. It is an exercise of the imagination. And one place where American law has been most imaginative is in the field of alternative dispute resolution. It is an area of law that, in its creativity and emphasis on the person as a whole, is particularly well-suited to respond to the guiding question of our constitutional democracy: how might we live well together?

Addressing The Gender Wage Gap For Native American Women, Danielle Digrazia, Ann C. Juliano

Faculty Publications

No abstract provided.

Continuing Education For Directors Of Public Companies, Jennifer O'Hare

Faculty Publications

Directors of public companies are responsible for overseeing complex organizations in a rapidly changing business environment, but they are not required to engage in continuing education. This creates a danger that directors will not have the knowledge they need to meet the significant demands of overseeing public companies. To address this, public companies should adopt mandatory continuing education policies for their boards, and the Securities and Exchange Commission should require public companies to disclose basic information about their continuing education programs in their proxy statements.

This is the first scholarly article to address the issue of mandatory continuing education for …

The Important Role Of Attorneys In Promoting Parties' Self-Determination In Mediation, John Lande

Faculty Publications

This short article analyzes the meaning of self-determination, and it demonstrates that attorneys generally have much greater ability than mediators to promote parties’ self-determination. I argue that “self-determination” is an admirable but unattainable ideal.

Instead, attorneys and mediators should focus on promoting parties’ best possible decision-making under the circumstances. To optimally promote the quality of parties’ decision-making during mediation sessions, they must be well-prepared before mediation sessions. At that stage, attorneys are in the best position to counsel clients, when they have more time to carefully consider their situation and they are not under pressure to respond to the …

The Voice Of Criminal Law, Michelle Madden Dempsey

Faculty Publications

In whose voice does the criminal law speak, and why does it matter? Miriam Gur-Arye argues that the answer to the first question depends on the kind of duty violated by the crime at issue. In some cases (say, election fraud or tax evasion), the criminal law speaks in the voice of the polity—but in other cases (say, murder or rape), it speaks in the voice of human beings. Or so argues Gur-Ayre. Not surprisingly, perhaps, a lot depends on what one means by the voice of the criminal law. In this paper, I defend two related arguments. First, the …

The Case For Mediation Representation Clinics And Externships, John Lande

Faculty Publications

This article recommends that law schools offer mediation representation clinics and externship courses to assist self-represented litigants in cases with legally-represented parties. These courses would prepare law students to practice in the modern world. Students would get experience working with real clients, conduct interviews, help clients assess their goals and interests, analyze claims, perform legal research, prepare documents, coordinate with mediators, and negotiate with counterpart attorneys.

The courses would address the needs of multiple stakeholders including self-represented litigants, law students, law schools, courts, attorneys, mediators, and society in general. Law schools would develop these courses in collaboration with many potential …

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

Faculty Publications

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

The Case For Strategic Case Evaluation And Management Courses, John Lande

Faculty Publications

This short article argues that law schools should substantially increase instruction in pretrial litigation, teaching students how to strategically evaluate and manage cases. Law school graduates generally are unprepared to work with clients, have difficulty communicating with clients, and don’t understand the “big picture” of client matters. They generally aren’t well trained in negotiation, which is essential in modern legal practice. The problem for law students and law schools is exacerbated by the transition to the NextGen bar exam and a movement in various states to use alternative mechanisms for licensing that would require demonstration of practical skills.

To address …

It's Time To Make Important Upgrades To Our Mediation Curriculum, John Lande

Faculty Publications

In the past five decades, mediation practice and teaching have grown in size and sophistication. Inevitably, some ideas that made sense early in this development need revision and updating to reflect evolving realities and improved understandings. This is a moment deserving reflection about what faculty should teach about mediation, especially in light of the NextGen bar exam and changes in various states’ licensing regimes.

This article suggests various upgrades of our mediation instruction. Change is hard but can be worth the effort. The article includes numerous specific suggestions and links to handy resources that faculty can incorporate in their courses …

Oxymorons R Us, John Lande

Faculty Publications

This short article riffs on comments at a program at the ABA Section of Dispute Resolution’s annual conference to illustrate how oxymoronic the terms “facilitative,” “evaluative,” and “empowerment” have become. It suggests ways that dispute resolution academics and practitioners can avoid speaking oxymoron.

Modern Mediation Practice In American Legal Cases, John Lande

Faculty Publications

This article provides excerpts of It's Time to Make Important Upgrades to Our Mediation Curriculum. It notes significant changes in mediation practice in the past five decades and highlights the nature of modern mediation practice in American legal cases. It suggests that law school faculty upgrade of our mediation instruction to reflect the realities of modern practice.

Murder On The Hearsay Trail, Jeffrey Bellin

Faculty Publications

Judges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature—the hearsay prohibition. The problem is that hearsay is difficult to master and somewhat dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own.

That is just the …

Legal Support For Local Election Officials, Rebecca Green

Faculty Publications

Local election officials (“LEOs”) face enormous pressure. They must administer elections when a wide swath of the American public has grown mistrustful of their work; they increasingly face ominous personal attacks and threats; they cope with chronic underfunding of elections; and they must navigate frequent changes in the law governing elections. Lawyers provide a critical avenue of support for local election officials. They provide guidance on how to implement legislative mandates and judicial orders; they anticipate and prevent disputes from arising; and they represent election officials when they or their offices are sued—a more common occurrence today than ever. Although …

"The Law Doesn't Work Like A Computer": Exploring Software Licensing Issues Faced By Legal Practitioners, Nathan Wintersgill, Trevor Stalnaker, Laura A. Heymann, Oscar Chaparro, Denys Poshyvanyk

Faculty Publications

Most modern software products incorporate open source components, which requires compliance with each component’s licenses. As noncompliance can lead to significant repercussions, organizations often seek advice from legal practitioners to maintain license compliance, address licensing issues, and manage the risks of noncompliance. While legal practitioners play a critical role in the process, little is known in the software engineering community about their experiences within the open source license compliance ecosystem. To fill this knowledge gap, a joint team of software engineering and legal researchers designed and conducted a survey with 30 legal practitioners and related occupations and then held 16 …

Moving Slow And Fixing Things, Hannibal Travis

Faculty Publications

No abstract provided.

The Policy And Politics Of Alternative Minimum Taxes, David Gamage, Ari Glogower

Faculty Publications

This paper contributes to a literature offering qualified justifications for alternative minimum tax (AMT) structures. We conclude that there is a narrow case for justifying AMTs even from the social planner perspective and that the proposed Billionaire’s Minimum Income Tax satisfies that narrow case. Next, incorporating governance collective action problems and electoral political constraints, we conclude that these considerations support a broader case for justifying AMTs that potentially also supports both preference-disallowance AMTs and the new corporate alternative minimum tax enacted in 2022.

A Snapshot Of How Mediators Use Technology These Days, John Lande

Faculty Publications

All professional mediators inevitably use technology these days. Indeed, they use it more than they realize. And, with the accelerating rate of technological developments, they generally will use it a lot more in the future. But it's not easy to incorporate technological developments into daily practice and keep up with the rapid pace of change. Part of the challenge is that mediators have their own unique complex practice systems that they aren't fully conscious of. And technology is integrated throughout their systems.

New Vision, Old Model: How The Ftc Exaggerated Harms When Rejecting Business Justifications For Noncompetes, Alan J. Meese

Faculty Publications

The Federal Trade Commission has rejected consumer welfare and the Rule of Reason—standards that drove antitrust for 50 years—in favor of a “NeoBrandeisian” vision. This approach seeks to enhance democracy by condemning abuses of corporate power that restrict the autonomy of employees and consumers, regardless of impact on prices or wages. Pursuing this agenda, the Commission has proposed banning all employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the FTC Act.

The Notice of Proposed Rulemaking (“NPRM”) articulating the Commission’s rationale found that NCAs reduce aggregate wages, harm traditionally recognized by the Rule of Reason. …

A Theory Of Genetic Dimensions In The Law, Yaniv Heled, Liza Vertinsky, Ana Santos Rutschman

Faculty Publications

Since the biotechnology revolution of the 1970s, genetic science and genetic technology have captured the public imagination. They have become a centerpiece of how we understand ourselves, our relationship with other humans, other living beings, our environment, and—indeed—with the universe. Through this evolution of understanding, genetic phenomena have acquired many meanings, some rooted in objective reality and others subjective and dependent on individual perceptions and sentiments.

However, legal decision-making and policymaking have not kept pace and reflect only a partial understanding of the multiple dimensions of genetic phenomena, which are forced into narrowing legal pathways, neglecting vital interests. As the …

Squeezing Blood From Stones? A Comparative Analysis Of Tax Relief For Victim-Survivors In Australia And The United States, Christine Speidel, Leslie Book, Ann Kayis-Kumar

Faculty Publications

Women who leave abusive relationships generally do so with increased debt, reduced assets, insecure housing and longer-term economic insecurity. Most of these women will be experiencing economic abuse even after the relationship has ended, and many cite financial instability as a key factor driving them back into abusive relationships. So, it is imperative that the tax and transfer system helps rather than hinders (albeit inadvertently) this cohort of financially vulnerable taxpayers. However, this is not always the case, with victim-survivors of economic abuse often liable for tax debts incurred by former partners operating businesses in the victim-survivor's name.

This article …

The Business Of Abortion: Access To Capital Post Dobbs, Itay Ravid, Jonathan Zandberg

Faculty Publications

Access to credit—that is, the ability to receive financial leverage that could help jump-start businesses—is one of the most significant barriers preventing millions of American women from opening new businesses. Congress has attempted to address this issue since the 1970s, with legislation like the Equal Credit Opportunity Act (ECOA). Nevertheless, studies continue to show a persistent gender gap in access to credit. Scholars have offered a host of explanations for this gap, focusing on both the supply and demand sides of the equation.

This Article contributes to this growing scholarly exploration by offering a new, overlooked explanation for this gap: …

Police-Made Law, Brenner M. Fissell

Faculty Publications

This Article presents evidence that police are writing laws that they enforce. This newly discovered phenomenon compounds the existing understanding of police “making” law through the exercise of discretion. They make law in a far more direct way, functioning as quasi-legislators at the local level—identifying a social problem, drafting an offense to address it, and directly proposing their offense for enactment. The conduct targeted, and the reasons for doing so, are diverse. For example, in one city a police chief successfully criminalized public intoxication so that intoxicated people would go to jails instead of hospitals; in another, a chief pushed …

Infrastructure Finance For The Public Good: How Asset Recycling Can Untangle The New York Mta's $50 Billion Debt Load, Lev E. Breydo

Faculty Publications

Systematic infrastructure underinvestment - a $2.6 trillion 'gap' - and accelerating climate change have become facts of life in the United States. Though typically attributed to politics, this Article posits the circumstances as a market disequilibrium rooted in an interplay between unique dimensions of infrastructure and distinctive features of the U.S. approach. Recently-passed legislation, including the Infrastructure Investment and Jobs Act, is insufficient to overcome these longstanding challenges.

Based on a broad, global study of effective approaches to infrastructure finance, as well as a multi-disciplinary analysis of the economics, engineering and finance literature, this Article proposes addressing the U.S. infrastructure …

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Faculty Publications

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

Constitutional Rights And Remedial Consistency, Katherine Mims Crocker

Faculty Publications

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and …

Inequitable Infrastructure: An Empirical Assessment Of Federalism, Climate Change, And Environmental Racism, Lev E. Breydo

Faculty Publications

This Article explains a critical, yet unexplored issue: How are some communities like Jackson—the 80% Black capital of Mississippi—often left without water or electricity, while their mostly white neighbors are not? The Article maps uncharted territory by interrogating the underlying causes of this disparity, untangling how three seemingly unrelated factors interplay with the accelerating effects of climate change to perpetuate systemic inequities.

First, and somewhat uniquely, the U.S. federalist construct allocates infrastructure responsibility to the states, which, under the guise of autonomy, subdelegate to often under-resourced local authorities. Second, this capital mismatch requires governmental units to borrow using complex municipal …