Law Commons^™

New Tech, Old Problem: The Rise Of Virtual Rent-To-Own Agreements, Carrie Floyd

Faculty Publications

This Article examines how fintech has transformed the traditional rent-to-own (RTO) industry by enabling the rise of virtual rent-to-own agreements (“VirTOs”), which now extend high-cost RTO-style financing into services and unconventional products such as vehicle repairs, pet ownership, and medical devices. It explains how VirTOs differ from classic RTO arrangements by involving hidden online transactions between retailers and third‑party VirTO providers, making termination through return of the item—central to the legal status of RTOs—practically impossible. As a result, the Article argues that VirTOs function as disguised credit rather than true rentals, forming a legal fiction designed to evade consumer protection …

Why Study State Constitutional Law?, Marcus A. Gadson

Faculty Publications

In light of the Supreme Court retrenching on certain rights in recent years, more Americans are paying attention to state constitutions. This moment therefore offers an opportunity to explain why scholars, lawyers, and ordinary citizens should take state constitutions as seriously as they do the U.S. Constitution, and consider studying them an intellectually rewarding and important endeavor. In this essay, I attempt to do that. Earlier in our history, state constitutions helped define what it meant to be American. Through the process of drafting and interpreting constitutions, prior generations decided what popular sovereignty meant, who qualified as part of “the …

Sound Marks, Deborah R. Gerhardt, Jon J. Lee

Faculty Publications

A lion roars just before a film rolls. A doughboy giggles. A giant green man laughs a hearty, "Ho, Ho, Ho." These iconic sounds are all federally registered as trademarks. They identify specific brands and distinguish their products and services from the competition. Human brains treat sounds like these as categorization tools and cognitive shortcuts—ideal trademark symbols. But what about the sounds your favorite toys or electronic devices make? Or those made by a fictional character in the latest blockbuster?

This Article tackles these issues and others. We push back against the widely-held belief that all unconventional trademarks—product designs, colors, …

Labor Law’S Impact On The Post-Dobbs Workplace, Jeffrey M. Hirsch

Faculty Publications

The Supreme Court’s Dobbs decision has left many workers, especially in states with restrictive abortion-related laws, in a precarious position. Labor laws and unions, however, provide one avenue for providing these workers with more protections. Unions can demand bargaining to protect or expand health care, leave, and other terms of employment that give workers with means to obtain abortion-related care. Unions can also provide members legal defense and other support if they face prosecutions. Additionally, both union and non-union workers who make up the vast majority of workers in states with restrictive laws may have labor law protection for discussing …

Legal Gender Recognition In Nepal And Comparative Context, Holning S. Lau, Mara Malagodi

Faculty Publications

The Supreme Court of Nepal was a groundbreaker when it ruled in Pant v. Nepal (2007) that people have the right to change their gender on identity documents based on “self-feelings” and “self-determination” rather than medical or other criteria; at the time, no other national apex court or government had so clearly prioritized self-determination for gender identity. Pant, however, centered “third gender” persons (neither male nor female), and now the Court is considering the case of a transgender woman, Ms. Kapali, who seeks to be identified as female on her documents and is challenging authorities that rejected her requests. …

Democratizing Administrative Law, Joshua D. Blank, Leigh Osofsky

Faculty Publications

When agencies make statements about the law, people listen. This insight yields a fundamental tension. According to one set of views, such agency statements, and their ability to influence public behavior, are critical not only for a well-functioning bureaucracy but also for our entire system of government. According to another set of views, this agency power, if left unchecked, could border on tyranny.

Administrative law responds to this tension through an extensive, purportedly comprehensive, framework that attempts to police agency statements. The framework places different types of agency statements into different legal categories. On the one hand, legislative rules make …

Medical Board Discipline Of Physicians For Spreading Medical Misinformation, Richard S. Saver

Faculty Publications

IMPORTANCE False medical information disseminated dangerously during the COVID-19 pandemic, with certain physicians playing a surprisingly prominent role. Medical boards engendered widespread criticism for not imposing forceful sanctions, but considerable uncertainty remains about how the professional licensure system regulates physician-spread misinformation.

OBJECTIVE To compare the level of professional discipline of physicians for spreading medical misinformation relative to discipline for other offenses.

DESIGN, SETTING, AND PARTICIPANTS This cross-sectional study analyzed and coded publicly reported medical board disciplinary actions in the 5 most populous US states. The analysis included data from January 1, 2020, through May 30, 2023, for California, Florida, New …

History And The School Prayer Cases, Mark Storslee

Faculty Publications

In a series of two decisions known as the School Prayer Cases, the Supreme Court famously held that the Establishment Clause forbids state-sponsored prayer in public schools—even where the government provides opt-outs for dissenters. Yet subsequent legal developments have rendered those decisions unstable. And with the Court’s recent turn to “historical practices and understandings,” many question whether the School Prayer Cases can possibly survive.

It is too soon to tell where the Court’s renewed focus on Founding-era history might lead. But this Article contends, contrary to both some originalist Justices and their critics, that a focus on history does …

Designing Sanctuary, Rick Su

Faculty Publications

In recent decades, a growing number of cities in the United States have adopted “sanctuary policies” that limit local participation in federal immigration enforcement. Existing scholarship has focused on their legality and effect, especially with respect to our nation’s immigration laws. Largely overlooked, however, is the local process through which sanctuary policies are designed and the reasons why cities choose to adopt them through city ordinances, mayoral orders, or employee handbooks. This Article argues that municipal sanctuary policies are far from uniform, and their variation reflects the different local interests and institutional actors behind their adoption and implementation. More specifically, …

Predictive Analytics & The Tax Code, Jay A. Soled, Kathleen Delaney Thomas

Faculty Publications

Congress last reformed the nation’s current tax penalty regime ap-proximately three decades ago, long before the rise of big data and the advent of predictive analytics. With predictive analytics now gaining preeminence and its accuracy constantly improving, it is time for Congress to weave this technological innovation into the fabric of the Internal Revenue Code and, more specifically, the civil tax penalty regime. Doing so would enhance taxpayer compliance, augment transparency, and simultaneously ease many administrative burdens commonplace under the tax law.

Multibillion-Dollar Tax Questions, James Alm, Jay A. Soled, Kathleen Delaney Thomas

Faculty Publications

Tax compliance in the United States historically hovers in the 80 percent range, costing the nation approximately half a trillion dollars annually in uncollected tax revenue. To foster greater tax compliance, the Internal Revenue Service (IRS) should employ whatever tools are at its disposal. Standard deterrence theory argues that increasing the audit rate and imposing stiffer penalties would foster greater tax compliance. There are political headwinds, however, that strongly suggest that these approaches are not currently viable. Instead, there is a low-cost method that could yield greater tax compliance. Drawing on recent and compelling social science research, the IRS should …

The Uptake And Measurement Of Alternative Approaches To Domestic Violence Intervention Programs: A Scoping Review, Julia K. Campbell, Sydney Nicolla, Deborah M. Weissman, Kathryn E. Moracco

Faculty Publications

This scoping review explores the breadth and depth to which Domestic Violence Intervention Programs (DVIPs) in the United States and globally: (a) incorporate components that address the relationship between intimate partner violence (IPV) and social injustice, racism, economic inequality, and adverse childhood experiences (ACEs); (b) use restorative (RJ)/ transformative justice (TJ) practices, individualized case management, partnerships with social justice actors, and strengths-based parenting training in current programming; and (c) measure effectiveness. In 2021, we searched 12 academic databases using a combination of search terms and Medical Subject Headings. In all, 27 articles that discussed at least one key concept relative …

Natural Objects And Testamentary Freedom, Kevin Bennardo

Faculty Publications

This Article explores the tension between inheritance law’s designation of certain beneficiaries as natural and unnatural for certain purposes and its organizing principle of testamentary freedom. Either inheritance law is primarily concerned with effectuating the preference of the decedent or it is primarily concerned with safeguarding the economic health of the family. It cannot be both. Ultimately, one of these two must yield. Either we acknowledge that decedents don’t have the level of dispositional freedom that is advertised or we change the law’s designation of some devises as natural and other as unnatural.

This Article proposes a pathway to relieve …

Crypto Failure In The Shadows, Kara J. Bruce

Faculty Publications

This Article examines the tension between bankruptcy law’s strong transparency norms and the extensive sealing of records in major cryptocurrency bankruptcy cases following the 2022–2023 “crypto winter.” Through analysis of cases including FTX, Celsius, Voyager, and BlockFi, the Article shows how crypto debtors have secured broad protective orders shielding creditor identities and internal documents. It argues that these secrecy practices depart from bankruptcy’s traditional information‑forcing function, inhibiting oversight and creditor participation. While valid privacy concerns exist, courts have too readily accepted expansive sealing without rigorous evidentiary support. The Article proposes a normative framework for evaluating sealing requests under §107, emphasizing …

Masking Identity At Public Protests, Deborah R. Gerhardt

Faculty Publications

This Article will explore these issues to assist those seeking to enact constitutionally valid mask policies. To situate today’s mask regulation challenges in the context of American history, Part I reviews events that led to enactment of anti-mask laws many years ago. Part II explains when the First Amendment protects the right to wear a mask in public and when such permission may be lawfully abridged. The section explains the importance of analyzing whether wearing a mask in public is sufficiently expressive to merit First Amendment protection. When it is, the next challenge is to identify the constitutional standard for …

Rational Investing Or Speculative Fever?: Spacs, Robinhood, And Digital Assets—Securities Markets Or Casinos?, Thomas Lee Hazen

Faculty Publications

This Article focuses on one of the recurring themes, not only in Professor Markham’s most recent volume but also in the earlier ones as well—speculation in the financial markets. The 2010–2020 decade set the stage for a new round of speculative activity starting in 2021. In the Article that follows, I reflect on a new wave of speculation and three current examples of speculative activity. The Article concludes that regulators should be cautious about over-regulation of special-purpose acquisition companies (“SPACs”) and gamified trading. The article also supports the regulation of digital assets (cryptocurrencies and NFTs) as securities.

Against Associational Standing, Michael T. Morley, F. Andrew Hessick

Faculty Publications

This Article calls for the abandonment, or at least serious modification, of associational standing. Even without associational standing, groups may still sue to enforce their own rights. And they could continue to help vindicate their members’ rights by providing legal representation for member plaintiffs in individual or class action suits (filed anonymously, if necessary), covering members’ litigation costs, and providing expert witnesses and other guidance. In short, associational standing is a largely unnecessary deviation from both Article III’s injury-in-fact requirement and the fundamental principles underlying our justice system. Eliminating associational standing would not limit public law and other important collective …

Standing And Criminal Law, F. Andrew Hessick, Sarah Benecky

Faculty Publications

According to the Supreme Court, the “irreducible constitutional minimum of Article III standing” is a concrete, particularized injury in fact that is traceable to the defendant and redressable by a favorable judgment. But this set of requirements does not apply in criminal cases. The federal government has authority to bring prosecutions for any violation of federal criminal law, regardless of whether the crime caused concrete harm to the United States or anyone else, and even though the punishment for the crime does not redress an injury in any conventional sense. This Article argues that the difference in standing requirements between …

Rethinking Tax Information: The Case For Quarterly 1099s, Kathleen Delaney Thomas

Faculty Publications

When an electricity provider wants customers to pay their bills monthly, it sends them a bill each month. Yet, this is not how the tax system works— at least not for independent contractors. Their taxes are due quarterly, but they receive a tax statement (Form 1099) only one time a year. It is up to the individual, then, to know when their taxes are due and how to pay them, and it is on that individual to estimate how much they owe each quarter. As a result, compliance for independent contractors—particularly for online platform workers—tends to be lacking. Failure to …

Dobbs, Abortion Laws, And In Vitro Fertilization, Kerry L. Macintosh

Faculty Publications

Health Organization1 has upended abortion jurisprudence. The case concerned a Mississippi law barring most abortions when the probable gestational age of the fetus was greater than fifteen weeks.2 Holding that the U.S. Constitution did not protect a right to abortion through the Due Process Clause of the Fourteenth Amendment,3 the Court overruled Roe v. Wade4 and Planned Parenthood of Southeastern Pennsylvania v. Casey.

5 Abortion, it explained, differed from other protected acts because abortion destroyed potential life.6 Deeming rational basis review appropriate,7 the Court concluded that the Mississippi law was rationally related to what the Court accepted as legitimate state …

Appealing Magna Carta, Thomas J. Mcsweeney

Faculty Publications

In 1999, Professor Richard Helmholz published Magna Carta and the Ius Commune, in which he argued that some of the ideas and language found in Magna Carta provide evidence that the early common law was engaging with the ius commune, the ancestor of modern civil law traditions. This Essay examines one piece of evidence highlighted by Helmholz and more recently by Professor Charles Donahue: that the Articles of the Barons, a preparatory document for Magna Carta, uses a phrase borrowed from canon law, appellatione remota (without possibility of appeal). Helmholz and Donahue pointed to its use as evidence that …

The Crisis Of Unrepresented Immigrants: Vastly Increasing The Number Of Accredited Representatives Offers The Best Hope For Resolving It, Michele R. Pistone

Faculty Publications

The U.S. immigration system is exceedingly complex, and access to legal representation is the primary determinant in obtaining a just immigration outcome. Immigrants must navigate a byzantine, burdensome, and high-stakes legal process, conducted in a language they often do not speak. They often must do so without any legal representation. Unlike criminal defendants, immigrants are not entitled to government-funded lawyers. Legal services organizations, such as Legal Services Corporation, that receive any federal funding are prohibited from providing legal representation to most immigrants. Faith-based and charitable legal services organizations provide some legal representation to immigrants through attorneys, staff members, and volunteer …

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Publications

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95% of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors—who control plea terms—as the deciders of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, examining state and federal plea-bargaining rules and doctrines, …

Laundering Police Lies, Adam Gershowitz, Caroline E. Lewis

Faculty Publications

Police officers—like ordinary people—are regularly dishonest. Officers lie under oath (testilying), on police reports (reportilying), and in a myriad of other situations. Despite decades of evidence about police lies, the U.S. Supreme Court regularly believes police stories that are utterly implausible. Either because the Court is gullible, willfully blind, or complicit, the justices have simply rubber-stamped police lies in numerous high-profile cases. For instance, the Court has accepted police claims that a suspect had bags of cocaine displayed in his lap at the end of a police chase (Whren v. United States), that officers saw marijuana through a …

Identifying And Supporting Financially Vulnerable Women Experiencing Economic Abuse: A Grounded Theory Approach, Leslie Book, Ann Kayis-Kumar, Youngdeok Lim, Jack Noone, Michael Walpole, Jan Breckenridge

Faculty Publications

This study extends the literature by exploring the role of pro bono tax clinics within the social impact ecosystem with a focus on the experiences of women in financial distress who are otherwise unable to access professional tax advice. Using clinic data derived from a pro bono tax advisory clinic, this article finds that 58 per cent of financially vulnerable women seeking pro bono tax services have experienced domestic and family violence (DFV), confirming again the link between financial stress and economic abuse. Yet only 3 per cent of these women were receiving domestic and family violence-related support, highlighting the …

The Superfluous Rules Of Evidence, Jeffrey Bellin

Faculty Publications

There are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project’s uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence. Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules.

Given the superfluous rules’ covert mission, it should not be surprising that the …

Second Amendment Exceptionalism: Public Expression And Public Carry, Timothy Zick

Faculty Publications

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court recognized a right to carry firearms in public places. The scope of that right will depend on where, why, and how governments regulated public carry during the eighteenth and perhaps nineteenth centuries. The Court claimed that its turn to history for determining the scope of Second Amendment rights “accords with” and “comports with” how the Court has interpreted First Amendment rights. This Article examines and rejects that claim, both in general and specifically as it applies to the public exercise of Second Amendment rights. Although Bruen …

The Independent Agency Myth, Neal Devins, David E. Lewis

Faculty Publications

Republicans and Democrats are fighting the wrong fight over independent agencies. Republicans are wrong to see independent agencies as anathema to hierarchical presidential control of the administrative state. Democrats are likewise wrong to reflexively defend independent agency expertise and influence. Supreme Court Justices also need to break free from this trap; the ongoing struggle over independent agencies should be about facts, not partisan rhetoric.

This Article seeks to reframe the fight over independent agencies. By surveying executive branch and independent agency department heads and supervisors during the Obama (2014) and Trump (2020) administrations, we have assembled unique and expansive data …

Leveraging Technology To Promote Access To Justice, Amy Emerson

Faculty Publications

No abstract provided.

140 Characters To Justice? The Promise And Perils Of Using Social Media To Reveal Lay Punishment Perspectives, Itay Ravid, Rotem Dror

Faculty Publications

For centuries, penal theorists have debated two key criminal justice questions: justifying state punishment power and determining proper punishment levels. Moral philosophers offered several theories to address these questions. Over time, calls emerged to move beyond theories and to consider community views on punishment rationales in criminal law and policy design, an approach that gained support alongside meaningful critique. Concurrently, social science advancements enabled empirically deepening understanding of public attitudes about punishment, largely through surveys and experiments.

One domain, however, remained untouched by those calling to assess lay intuitions of justice: social media. Such oversight is puzzling in light of …