Law Commons^™

Supreme Court Litigators In The Age Of Textualism, Aaron-Andrew P. Bruhl

Faculty Publications

The Supreme Court’s approach to statutory interpretation has moved in a textualist direction over the last several decades, but there is little systematic information on how litigators’ briefing practices have changed during this era of textualist ascendancy. This Article examines thirty-five years’ worth of party briefs (over 8,000 briefs total), explores the briefs’ use of interpretive tools (including differences across categories of attorneys), and compares the briefs to the Court’s opinions.

This examination yields several valuable findings. Although the briefs show a textualist shift, they differ from the Court’s opinions in a few ways. The magnitude of the textualist shift …

Mothers With Disabilities In The Workplace Post-Pandemic & Post-Dobbs, Nicole Buonocore Porter

Faculty Publications

Between when I wrote Mothers with Disabilities and Fall 2023, two major developments have occurred that justify revisiting this topic. The first is the COVID-19 pandemic, which dramatically changed all aspects of our work lives and home lives. The second is the Supreme Court’s landmark decision in 2022, Dobbs v. Jackson Women’s Health Organization, which overturned a woman’s constitutional right to have an abortion. Both of these developments have unique, sometimes conflicting effects on mothers with disabilities.

Accordingly, this Article explores the workplace effects of the pandemic and the Dobbs decision on mothers with disabilities. Drawing on my prior …

Mercy For The Masses: A Default Rule For Automatically Triggered Commutations, Adam Gershowitz

Faculty Publications

This Essay considers how governors who are interested in reducing mass imprisonment can provide “mercy for the masses” who are in the middle of the criminal justice punishment spectrum. It draws on the successful mass pardons for misdemeanor marijuana offenses, as well as the aspects of the Obama Clemency Initiative that worked well. The proposals that follow offer four variations on a default rule for automatic, but modest, mass commutations.

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This Essay proceeds as follows. First, Part I explains how the modern clemency power has often been focused on death penalty cases and low-level misdemeanors. Part II then recounts …

Public Protest And Government Immunities, Timothy Zick

Faculty Publications

This Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental immunities in the context of public protest. Relying on three unique datasets of federal court decisions examining First Amendment and Fourth Amendment claims, the Article concludes that public protester plaintiffs face an array of obstacles when suing state, local, and federal officials for constitutional injuries. Quantitative findings show that protesters’ claims are frequently dismissed under qualified immunity doctrines and that plaintiffs also face strict limits on municipal liability, new restrictions on First Amendment retaliation claims, and the possible extinction of …

Learning To Disagree Agreeably, Allison Orr Larsen

Faculty Publications

But the most important lesson I learned from Judge Wilkinson—out of many important lessons—is the one brought home to me by witnessing his friendship with Judge Michael: the law works only when lawyers learn to “disagree agreeably.” This is a phrase the Judge taught me—and he always attributed to people from whom he learned it—but for me it encapsulates the Judge in every way. It is easy to talk about being collegial in the abstract, but Judge Wilkinson practices what he preaches.

In this brief Essay, on the occasion of celebrating a man who shaped my career and life in …

Becoming A Doctrine, Allison Orr Larsen

Faculty Publications

On the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does …

Tarnished Gold: The Endangered Species Act At 50, Jonathan H. Adler

Faculty Publications

This Article aims to take stock of the [Endangered Species Act] ESA’s success and failures during its first fifty years, particularly with regard to the conservation of species habitat on private land. While the ESA authorizes powerful regulatory tools for species conservation, there are serious questions as to whether such tools are the most effective means of conserving species and the habitats on which they rely. Given that most species rely upon private land for their survival, the ESA’s ability to foster private land conservation will affect the law’s overall success.

This abstract has been taken from the author's introduction.

The Broken Token Problem: Why Crypto Classification Remains Elusive, Lev E. Breydo

Faculty Publications

Crypto is at a crossroads. After trillions in value destruction, a cascade of bankruptcies and millions of defrauded believers, many are wondering whether the sector has a future. Regulators, meanwhile, are not taking chances, “carpet bombing” crypto with legal actions. Notwithstanding the stakes, consensus remains elusive regarding first-order questions—including, what is crypto?

Part of the problem, this Article posits, is that we have largely been thinking about crypto incorrectly. Rather than a simple, uniform asset, crypto represents a highly heterogenous ten-thousand-instrument universe. One size cannot possibly fit all.

This Article introduces a novel unifying taxonomy for the sector based …

Aggressor Status And Its Impact On International Criminal Law Case Selection, Nancy Amoury Combs

Faculty Publications

The laws of war apply equally to all parties to a conflict; thus, a party that violates international law by launching a war is granted the same international humanitarian law rights as a party that is required to defend against the illegal war. This doctrine—known as the equal application doctrine—has been sharply critiqued, particularly by philosophers, who claim the doctrine to be morally indefensible. Lawyers and legal academics, by contrast, defend the equal application doctrine because they reasonably fear that applying different rules to different warring parties will sharply reduce states’ willingness to comply with the international humanitarian law system …

Permitting The Future, Jonathan H. Adler

Faculty Publications

Introduction to the research colloquium, "Permitting the Future" (2023) sponsored by the Coleman P. Burke Center for Environmental Law and the Property and Environment Research Center.

Papers "explore the ways in which the extensive permitting and review requirements adopted at the federal and state level are constraining needed development and infrastructure and suggest possible avenues of reform."

Foia-Flooded Elections, Rebecca Green

Faculty Publications

After the 2020 election, the United States has witnessed a crisis in confidence in election outcomes. The crisis has fueled massive public pressure on election offices to release election records via state 'freedom of information act" (FOIA) requests. This deluge of records requests places enormous strain on already overburdened and underfunded state and local election offices. Operating under strict statutory FOIA response deadlines, election officials spend hundreds of hours on records requests to the detriment of election preparedness potentially further exacerbating criticism of their offices. Making matters worse, election officials often lack guidance on which records may and may not …

Reimagining The Inclusive Jury, Anna Offit

Faculty Publications

At the height of the COVID-19 pandemic, everyday life for many Americans was upended. And yet, the jury trial remained viable — even vital. Faced with an era-defining public health disaster, courts innovated, embracing novel technologies and techniques to reimagine where and how justice might be made. But why did it take a pandemic to spur this kind of institutional creativity? Prior to the outbreak of COVID-19, people who were otherwise eligible to participate as jurors were routinely — and uncontroversially — struck or exempted from service due to limited mobility, vision and hearing loss, and caregiving responsibilities. Recent experience …

The Delegation Doctrine, Jonathan H. Adler

Faculty Publications

Despite the focus on the Court’s recent major questions cases, signs of an emergent delegation doctrine can also be found elsewhere. Most significantly, seeds of a delegation doctrine have been planted within the Court’s Chevron jurisprudence. The Court’s increased reluctance to grant Chevron deference to administrative agencies--and its insistence that courts first conclude that interpretive authority has been delegated before deferring to any agency interpretation—rests on the same core premise as the Court’s recent major questions doctrine decisions. It also suggests that the “new” major questions doctrine is not as new as it might seem, but rather a logical outgrowth …

Naming, Expressive Interests, And The Law: The Implications Of Governmental Form Design, Laura A. Heymann

Faculty Publications

The design of governmental forms can result in restrictions on the ability of individuals to submit truthful personal naming choices, such as when a form field has character limitations or does not accept diacritics. In some instances, form design operationalizes government policy. But in other instances, form design can itself create law by limiting the ability to submit accurate names on the front end. Awareness of the legal implications of form design is critically important. A more inclusive and accurate approach toward the legal documentation of naming choices means that forms should adapt to people, not the other way around.

Patent Term Tailoring, Sarah R. Wasserman Rajec

Faculty Publications

Patent rights are designed to encourage innovation with both the promise of a patent and with its expiration. Currently, patent term lasts from issuance until twenty years from the application date, with minor exceptions. The patent term is limited so that rewards for past invention do not overly hinder future progress. Although the goal is laudable, a uniform patent term is a blunt instrument to achieve such a nuanced balance. Historically, the patent system was not averse to tailoring terms through, for example, individually granted extensions to undercompensated inventors or term curtailment when a foreign patent holder failed to “work” …

The Game, The Players, And The Board, Bruce E. Boyden

Faculty Publications

Christopher Seaman and Thuan Tran’s fascinating article, Intellectual Property and Tabletop Games, raises important questions about the role of intellectual property in developing and distributing innovative products. The market for tabletop games, Seaman and Tran argue, is able to sustain a high level of creativity at a high up-front cost, all while protected by some but not all of the IP rights that other industries’ outputs receive. Is that evidence of IP’s necessity or its superfluousness? In this Response, I argue that the answer is a little bit of both. Whereas prior scholarship has shown the lack of an …

Regulation By (Bad) Proxy: How Selective Application Of Transaction Cost Economics Tainted The Ftc's Proposed Ban Of Employee Noncompete Agreements, Alan J. Meese

Faculty Publications

Agencies have imperfect information about conduct they regulate. This problem is particularly acute when identical conduct has differing effects in various markets. Determining the economy-wide impact of such conduct can be difficult or impossible.

The FTC faces such a challenge. The Commission has announced a rule banning the nation’s 30 million employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the FTC Act. The Commission determined that NCAs likely reduce aggregate wages, helping to establish a presumptive violation. The Commission also found that nearly all NCAs are both procedurally coercive—because employers use overwhelming bargaining power to …

The Reno Court Of Inquiry, Albert Winkler

Faculty Publications

Following the Battle of the Little Big Horn, there had been many accusations of poor conduct, neglect of duty, or outright cowardice leveled chiefly at both Major Marcus Reno and Captain Frederick Benteen for their actions or inactions at the engagement, which could have led to the destruction of Custer's command. Most significantly, Frederick Whittaker's attack on Reno and Benteen in his A Complete Life of Gen. George Armstrong Custer published in December 1876 was simply scathing.

Democratic Accountability And Tax Enforcement, Joshua D. Blank, Leigh Osofsky

Faculty Publications

One of the most powerful charges that can be leveled against the IRS is that it is targeting taxpayers. Charges of political targeting have dogged the IRS for over a century, including in major controversies such as the alleged Tea Party auditing scandal in 2013. Commentators and scholars have long critiqued the IRS for focusing audit resources on some of the lowest-income Americans. And, most recently, a group of researchers estimated that the IRS audits Black taxpayers at a 2.9 to 4.7 times greater rate, as compared to non-Black taxpayers. In response, legislators demanded action, there was widespread public consternation, …

Understanding Our Digital Fingerprints: Metadata, Competency, And The Future Practice Of Law, Stacey Lane Rowland

Faculty Publications

Metadata, often referred to as “data about data,” plays a crucial role in the digital world. It encompasses embedded information within electronic documents that reveals details about their creation, modification, and transmission. In legal proceedings, metadata can be both helpful and controversial, as it can expose sensitive information and potentially support or refute claims of fabricated evidence. With the widespread use of smartphones and other electronic devices, individuals generate vast amounts of personal data, including metadata, that can provide detailed insights into their lives.

This Article explores the significance of metadata in various contexts, such as digital photographs, and highlights …

American Association Of Law Libraries Academic Special Interest Section White Paper On Continuing Status And Tenure Of Law Librarians, Aall Special Interest Section On Academic Law Libraries Subcommittee On Continuing Status And Tenure, Stephanie Davidson, Cindy Hirsch, Caroline Osborne, Brian Quigley, Jessica Whytock

Faculty Publications

In 2023 the ALL-SIS Continuing Status/Tenure Committee was charged with developing a white paper to provide information on the status, rights, and responsibilities of academic law librarian positions. The information provided in this paper is intended to allow law librarians to make informed career choices, increase knowledge of the rights and obligations of librarian positions, and ensure the development of necessary skills and education for future new positions. Clarity on how positions are structured, their required skills, and credentials is essential at all levels of experience for planning and development for future career growth.

This White Paper does not advocate …

Data Controllers As Data Fiduciaries: Theory, Definitions & Burdens Of Proof, Noelle Wilson, Amanda Reid

Faculty Publications

No abstract provided.

From The Great Recession To The Covid-19 Pandemic: A Financial History Of The United States 2010-2020: A Comparison Of The Government’S Response To The Two Financial Crises That Bookended The 2010 To 2020 Decade, Lissa Lamkin Broome

Faculty Publications

This Article compares the U.S. government’s responses to the 2008 Financial Crisis and the economic crisis triggered by the COVID‑19 pandemic, examining both legislative action and regulatory intervention. It evaluates how the Dodd‑Frank Act reshaped emergency tools and how Congress and regulators adapted or temporarily suspended those constraints in 2020. The analysis focuses on Section 13(3) Federal Reserve lending, the FDIC’s systemic-risk exception, and the Treasury’s Exchange Stabilization Fund, showing how their roles differed significantly across the two crises. The Article highlights the far larger and more direct pandemic‑era relief directed to households and small businesses, contrasting it with the …

Erie And Forum Selection Clauses, John F. Coyle, F. Andrew Hessick

Faculty Publications

This article argues that federal courts should apply state law to determine the enforceability of outbound forum selection clauses in diversity cases. Using a hand-collected dataset comparing hundreds of state and federal decisions, the authors show that federal courts enforce such clauses at significantly higher rates, creating incentives for forum shopping and uneven contract rights. They contend that enforceability is a substantive contract issue under Erie and that federal courts lack authority to create federal common law in this area outside §1404(a). The article concludes that applying state law uniformly would prevent inequitable administration and restore coherence to forum selection …

The Puzzle Of Floating Forum Selection Clauses, John F. Coyle, Robin J. Effron

Faculty Publications

This essay examines floating forum selection clauses—provisions linking the litigation forum to a post-contractual fact such as a party’s future principal place of business, an assignee’s location, or a unilateral designation. Categorizing floating clauses into three types, the authors analyze divergent judicial approaches to enforceability and the underlying tension between waiver and submission as theories of consent. They argue that floating clauses expose conceptual inconsistencies in personal jurisdiction doctrine, especially regarding foreseeability and due process, and highlight how courts struggle to reconcile contract principles with constitutional limits.

Reflections On Purpose And Professional Identity Formation, Harmony Decosimo

Faculty Publications

This essay explores how law students and lawyers develop, lose, or reorient their sense of purpose, using the author’s own trajectory through law school and practice to illustrate structural barriers—competition, lack of reflection, limited mentorship, and ideological homogeneity—that complicate identity formation. Identifying common lawyer archetypes whose work aligns differently with purpose, the author argues that legal education must make space for reflection, diverse viewpoints, and virtue-based development to enable students to integrate purpose meaningfully into their professional identities.

Using Content And Tone To Deliver Effective Feedback On Legal Research, Nicole Downing

Faculty Publications

This article reviews the important role feedback has in teaching legal research. It draws on educational scholarship to provide an overview of strategic considerations in planning for feedback. By focusing on written feedback as a mode of providing comments to law students, this article applies research on how to use content and tone to deliver effective feedback that engages students by being specific, positive, constructive, and personalized. Examples of how content and tone may be used to improve comments on legal research assessments are provided.

Children At Work, Parental Rights–And Rhetoric, Naomi Cahn, Maxine Eichner, Mary Ziegler

Faculty Publications

This Article examines the resurgence of child labor law rollbacks across the United States and argues that legislators and business‑aligned advocates increasingly deploy the rhetoric of “parental rights” to mask deregulatory efforts that primarily advance industry interests rather than children’s wellbeing or family autonomy. Tracing the historical tension among parental authority, state parens patriae power, and children’s welfare, the Article shows how contemporary invocations of parental rights—echoing arguments used a century ago to resist child labor reforms—operate as political cover for expanding hazardous work, extending hours, and reducing oversight in ways that endanger children and undermine their educational and economic …

Debt, Race, And Physical Mobility, Kate Sablosky Elengold

Faculty Publications

Residents in every state in the United States can lose their driver’s license or car registration because they owe debt to the state. At least eleven million people across the United States suffer these debt-based driving restrictions at any given time. Because Americans overwhelmingly rely on personal automobiles for transportation, states, by controlling access to driver’s licenses and vehicle registrations, use debt policy to control where and how people travel. And because these laws disproportionately affect people of color, primarily Black people, this kind of regulation props up racial segregation in both location and opportunity. This Article’s first contribution is …

Bad For Adults, Worse For K-12 Students: A Response To Josephine Ross’S Abolishing Police Consent Searches Through Legislation, Barbara A. Fedders

Faculty Publications

This invited Response to Josephine Ross's Abolishing Police Consent Searches Through Legislation: Lessons from Scotland applies Professor Ross's insights about consent searches to the context of K-12 schools. Even more than the adults she discusses, minors in schools are especially susceptible to state displays of authority. As a result, what police and courts refer to as "consent" to a search is more likely to be mere acquiescence. In school with students, as in public with adults, a consent search constitutes a legal fiction.

Nonetheless, this Response suggests that abolition of consent searches in public schools is unlikely. Because administrators have …