Law Commons^™

The Empty Promise Of The Fourth Amendment In The Family Regulation System, Anna Arons

Faculty Publications

Each year, state agents search the homes of hundreds of thousands of families across the United States under the auspices of the family regulation system. Through these searches—required elements of investigations into allegations of child maltreatment in virtually every jurisdiction—state agents invade the home, the most protected space in Fourth Amendment jurisprudence. Accordingly, federal courts agree that the Fourth Amendment’s warrant requirement applies to family regulation home searches. But almost universally, the abstract recognition of Fourth Amendment protections runs up against a concrete expectation on the ground that state actors should have easy and expansive access to families’ homes. Legislatures …

The Beauty Of Shorts: Ten Tips On Writing A Publishable Short Piece, Robin Boyle-Laisure, Brooke J. Bowman

Faculty Publications

(Excerpt)

Based upon our experience serving on editorial boards of peer-reviewed law journals for over twenty years combined, we encourage faculty who teach legal research and writing to write short scholarly pieces. While books have been written on how to write scholarly articles, and law schools offer students courses on writing journal articles, there is little information about how to write a scholarly piece that is short. This Essay fills that gap and provides advice for constructing a publishable short.

Undoing Undue Influence: How The Doctrine Can Avoid Judicial Subjectivity By Omitting The Vulnerability Element, Robin Boyle-Laisure

Faculty Publications

(Excerpt)

The utility of the doctrine of undue influence has been declining for several decades because of its inclusion of the element of vulnerability or, put another way, inquiry into the mind of the one allegedly being influenced. I argue that the courts’ inquiry into the mind of the influencee to determine whether this person was vulnerable is not a useful construct as an element of the doctrine. This Article addresses three contexts in which assessing one’s vulnerability is problematic: (1) in the contract formation process occurring in the general population (meaning not within a high-control group), such as the …

Judge Frankel’S Fifty-Year-Old Invitation To Reconstruct Sentencing, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

America was a different place at the time Judge Marvin Frankel penned his now-famous text Criminal Sentences: Law without Order in 1973. Richard Nixon was the U.S. president. The Vietnam War was ending. The Watergate scandal was unfolding. There was much to grab the public’s attention, and criminal sentencing was not a national or international headline. Just two years earlier, President Nixon had declared a war on drugs and targeted drug abuse as “public enemy number one,” but it would be over a decade before punitive mandatory minimum drug sentences would become our sentencing norm. At the time of …

Thompson V. Clark And The “Reasonable” Policing Of Marginalized Families, Anna Arons

Faculty Publications

This Article uses the experience of Larry Thompson, the plaintiff in Thompson v. Clark, 142 S. Ct. 1332 (2022), to examine the absence of privacy for poor families, particularly poor Black, Latinx, and Native families, in the United States. Mr. Thompson may end up remembered in legal history as a victor, as the Supreme Court lowered the barriers to bringing malicious prosecution claims and reinstated Mr. Thompson’s own previously dismissed malicious prosecution claim. Yet before securing this victory, Mr. Thompson lost a slew of other Fourth Amendment claims against the police. Mr. Thompson’s claims arose from state agents’ warrantless …

Justice Lazansky On “Repose” At Chief Judge Cardozo’S New York Court Of Appeals, John Q. Barrett

Faculty Publications

(Excerpt)

In 1948, Edward Lazansky of Brooklyn wrote a long letter to his friend Jacob Billikopf of Philadelphia. It included an amusing story that Lazansky had heard at some point about his friend Benjamin N. Cardozo, who had died ten years earlier. Billikopf liked the story. He retyped it and mailed it to prominent people who had known Cardozo.

Lazansky and Billikopf had it right. The story, which generally checks out, should be shared. It gives a glimpse of Cardozo’s talents and virtues, including his judicial sense of humor.

Bridging The Legal Writing Skills Gap: Pre-Mediation Statements, Elayne E. Greenberg

Faculty Publications

(Excerpt)

In our settlement-dominated legal culture, it is no longer sufficient for legal writing courses to teach students how to write for the court alone. Instead, to be considered practice-competent it is necessary for students to also be able to write for non-adversarial, collaborative settings such as mediation. Mediation has become the primary dispute resolution process to settle legal cases, and it has become common practice for judges to strongly encourage litigating parties to try to settle their case in mediation. While the current legal writing curriculum teaches students how to draft legal memoranda, motions, and appellate briefs for court, …

Four Essential Tips For New Attorneys Working With Children And Families, Jennifer Baum

Faculty Publications

(Excerpt)

Congratulations! You’ve started your first legal job working with children and families. Perhaps you work for an institutional provider of legal services for children or as a prosecutor of dependency cases, or perhaps you are defending such cases on behalf of parents and guardians. Or maybe you are in private practice, and this is your first pro bono experience working on a family, immigration, or juvenile court matter. Whatever your role, your job is the same: to represent your client and seek as favorable an outcome as possible.

But you are new, or new to this area of the …

Deliberate Indifference: Respondeat Superior Liability For Municipalities In Civil Rights Cases As An Alternative To Qualified Immunity Reform, Mark C. Niles

Faculty Publications

The police killing of George Floyd in Minneapolis, Minnesota, has resulted in a renewed focus on adjudication of civil rights claims against government officials and the perceived inadequacy of the legal resolution of these claims. Calls for reform or complete removal of the defense of qualified immunity for government officials have been central to these discussions.

This Article argues that while arguments for qualified immunity reform are convincing and vital, the exclusive focus on this aspect of civil rights adjudication is misplaced and serves as a distraction from a more basic and consequential flaw in the constitutional tort jurisprudence: the …

Investing In Abolition, Sandeep Singh Dhaliwal

Faculty Publications

This Article situates the prison within a broader macro-financial trend, what I call “community capture.” As private equity firms have consolidated the market for carceral services, they have also gained control over other essential social infrastructure, like housing and healthcare. By layering debt, fees, and aggressive profit expectations over companies or assets that provide for basic needs, their strategies intensify the economic pressures communities face. These strategies rely on various forms of coordination and legal protection from contestation. To demonstrate this process in the context of mass incarceration, this Article tells the story of Securus, a dominant carceral service company …

Humanizing Corporate Governance, Caleb N. Griffin

Faculty Publications

American corporate governance evolved in a different era, for a type of investor who is no longer typical today. Roughly half of Americans own investment funds, but legal and structural impediments prevent these “human investors” from fully participating in corporate democracy.

One response—“so what?”—is based on the assumption that investors are rationally apathetic. Most investors have so little at stake, the argument goes, that it is economically irrational for them to vote in corporate elections. What this argument misses is that investors’ rational apathy is not fixed. Instead, it is a function of the costs and benefits of voting. If …

The Trump Impeachments: Lessons For The Constitution, Presidents, Congress, Justice, Lawyers, And The Public, Michael J. Gerhardt

Faculty Publications

The conventional wisdom is that the two impeachments of Donald Trump demonstrated the ineffectiveness of impeachment as a remedy for serious presidential misconduct. Meeting the constitutional threshold for conviction and removal requiring at least two-thirds approval of the Senate is practically impossible so long as the members of the President’s party in Congress control at least a third of the seats in the Senate and are united in opposition to his impeachment and conviction. This Article challenges this conventional wisdom and argues instead that the two Trump impeachments have enduring effects on Trump’s political future and legacy, especially in light …

The Private Law Of Stablecoins, Kara J. Bruce, Christopher K. Odinet, Andrea Tosato

Faculty Publications

Stablecoins are one of the cornerstones of the crypto world. They’ve attracted significant attention from major players over the past few years, ranging from Wall Street to kitchen-table investors, and even the White House. As a less volatile alternative to crypto-assets like bitcoin, stablecoins have the potential to change the way we make payments, unlock the groundwork needed for more blockchain-based applications, and even reorient the economy toward private money. But how stable are these stablecoins, really? Can they be relied upon in the way their many proponents claim? And how much of the popular beliefs about stablecoins match their …

Andy Warhol Foundation For The Visual Arts, Inc. V. Goldsmith, A Narrow Ruling Or A Transformational Decision? An Essay, Caroline L. Osborne, Stephen Wolfson

Faculty Publications

The 2023 United States Supreme Court decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith is the first copyright decision in decades to visit the concept of fair use and transformative use. In a fiery majority decision with an even fiercer dissent, the court restricts the concept of fair use creating a lasting impact on derivative works, licensing, and appropriation art. Arguably restoring balance to factor one, purpose and character of the use, it questionably conflates the analysis of factor four, market effect, in favor of affirming factor one’s analysis as the justification premise as originally posed …

Automated Agencies, Joshua D. Blank, Leigh Osofsky

Faculty Publications

This article presents the first comprehensive study of how federal agencies use automated legal guidance tools—such as chatbots, virtual assistants, and decision-tree systems—to explain complex law to the public. The authors show that while automation offers administrative efficiency and wider reach, it often simplifies or distorts underlying legal rules. Through detailed analysis of agency tools and ten semi-structured interviews with officials, the article demonstrates that automated systems can portray unsettled or complex law as clear, omit exceptions, and answer too narrowly, thereby influencing user behavior in ways agencies neither fully appreciate nor monitor.

The study further finds that agencies lack …

The Prosecutor Lobby, Carissa Byrne Hessick, Ronald F. Wright, Jessica Pishko

Faculty Publications

Prosecutors shape the use of the criminal law at many points during criminal proceedings but there is an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in legal scholarship is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this Article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all fifty states, we analyze how frequently prosecutors lobbied, the issues on …

Nonconsensual Family Obligations, Emily Stolzenberg

Faculty Publications

Even as the pandemic has both highlighted and compounded the challenges many U.S. families face in meeting their members’ basic needs, efforts to expand public subsidies for caretaking have gained little traction. Scholars have identified many historical and practical reasons for Americans’ entrenched skepticism toward the welfare state. Ideas matter, too, and this Article uncovers and critiques one that works to limit collective financial responsibility for families: the conviction that family support obligations must be legitimated through consent.

In family law, as in liberal political theory, consent works to reconcile state regulation with individual freedom. But because consent is a …

Pregnancy Advance Directives, Joan H. Krause

Faculty Publications

Part I of this Article provides a general introduction to the various types of advance directives available in the United States, including their goals and limitations. Part II provides a detailed overview of pregnancy restrictions, including comparisons of the substantive restrictions, procedural issues, and rationales for restricting the application of advance directives during pregnancy. Part III offers a critical analysis of both the scholarship addressing pregnancy restrictions and the litigation seeking to challenge the restrictions, demonstrating that the existing legal framework has not been satisfactory in resolving the issues—a situation that will only be exacerbated by the Supreme Court’s recent …

Mass Sovereign Debt Litigation: A Computer-Assisted Analysis Of The Argentina Bond Litigation, Gregory Makoff, W. Mark C. Weidemaier

Faculty Publications

This Article presents a computer-assisted analysis of the first large-scale mass litigation of sovereign debt claims. Between 2002 and 2016, hundreds of lawsuits were filed against Argentina in the United States, virtually all in the Southern District of New York. Historically, litigation against a foreign government would have involved a few hedge funds that had invested in debt at distressed prices. Argentina faced thousands of investors, including small retail bondholders, in litigation that more closely resembled a mass tort or federal multidistrict litigation than any prior episode involving a sovereign’s debt default.

To study this sprawling litigation, this Article combines …

Gender Violence As Legacy: To Imagine New Approaches, Deborah M. Weissman

Faculty Publications

This essay considers gender violence as a consequence of systemic problems rooted in patriarchal structures, transacted through poverty and inequality, and embedded in a historically conditioned political economy. It is informed by the scholarship that propounds the need to develop community responses independent of the carceral system as a means to address the systemic source factors that contribute to Intimate Partner Violence (“IPV”), with attention to restorative and transformative justice approaches (RJ/TJ). This essay advances anti-violence scholarship to suggest the need to reconceptualize gender discrimination, poverty, and inequality as cause and consequence of social ills, and, moreover, to contribute to …

Gender Violence As A Penalty Of Poverty, Deborah M. Weissman

Faculty Publications

The matter of gender violence, including intimate partner violence (IPV), has long been categorized as a particularly egregious crime. The consequences of IPV are profound and affect all members of the household, family members near and far, and the communities where they live. Gender violence impacts the national economy. Costs accrue to workplaces, health care institutions, and encumber local and state coffers. Survivors are deprived of income, property, and economic stability: conditions that often endure beyond periods of physical injuries. Offenders also experience economic hardship as a result of involvement with the legal system. They often face significant obstacles when …

The Fraternity Of Legal Style, Alexa Z. Chew

Faculty Publications

This article reports the findings of an empirical study of writing experts mentioned in popular legal style books. The study shows that these experts are overwhelmingly men. This study complements the many other studies showing that gender and racial bias exists throughout the legal profession, but it focuses on one area that has not yet been examined: bias in books that give writing advice to lawyers. I call these books “legal style books.” The area of legal writing advice books is admittedly niche. However, it is worth studying because writing is central to lawyering.

A License To Play: Regulating Location-Based Augmented Reality Gameplay On Public Property, Kate Johnson, Evan Ringel, Amanda Reid

Faculty Publications

This novel research sits at the intersection of augmented reality gameplay and government licenses for use of public property. Governments have long used licensing schema to assure public safety and order. Augmented reality gameplay on public lands presents a new, contested use of public property. Under our proposed licensing scheme, those wishing to engage in location-based augmented reality (LoBAR) gameplay on public lands would need a license. This proposal is akin to how governments—federal, state, and municipal—have authorized permit schema for use of public property, including rock climbing, geocaching, street performing, and film photography. Our Article offers sample legislation for …

Supreme Myth Busting: How The Supreme Court Has Busted Its Own Myths, Michael J. Gerhardt

Faculty Publications

This Essay challenges various myths of the Supreme Court, including the myth of the Supreme Court as the only branch in the federal government capable of neutral, non-partisan, juridical interpretations of the Constitution. Through various means, I show how the Supreme Court fails to live up to that myth, especially in its failure to abide by the same code of ethics that other judges follow. The Court’s excuse is that it is not like other courts, but, if we take that excuse at face value, then there is more, not less, reason to require the Supreme Court adhere to the …

Critical Legal Research, Artificial Intelligence, And Systemic Racism: Teaching With Jim Crow Text-Mining, Ellie Campbell

Faculty Publications

On the Books: Jim Crow and Algorithms of Existence is a text-mining project undertaken by University of North Carolina–Chapel Hill libraries to identify racially based laws passed in the state between 1865 and 1967. In the fall 2022, I used the On the Books project to teach a module in my Advanced Legal Research class on critical legal research and artificial intelligence and legal analytics. This article examines the benefits of those modules for teaching critical thinking about legal research structures and legacies of racism in the American legal system.

Contracting As A Class, Caleb N. Griffin

Faculty Publications

Contract law is stuck in a loop of path dependency and stale precedent. Its metaphors, like “the meeting of the minds,” are today laughably implausible. Its values, like “consent,” have been stripped of any real meaning. No one reads or understands the overwhelming majority of contracts to which they agree. And no one should. Reading them is meaningless, because it simply does not matter what they say. Individuals must agree to them— indeed, are effectively forced to agree to them—if they wish to participate in the modern world.

Modern digital contracting is not a collaborative process. Today, most “contracting” involves …

The Real Problem With Plea Bargaining, Carissa Byrne Hessick

Faculty Publications

This Response critiques Jeffrey Bellin’s argument that plea‑bargaining reform should focus solely on problems uniquely caused by plea bargaining and instead contends that the practice has fundamentally reshaped American criminal justice in ways that extend far beyond Bellin’s narrow framework. The Response argues that plea bargaining exacerbates systemic issues—including harsh sentencing, coercive leverage, and inaccurate convictions—by insulating legislative excess, weakening trial incentives, and pressuring even innocent defendants to plead guilty. It further maintains that Bellin understates how plea bargaining distorts legislative behavior, affects statutory design, and suppresses political pressure for reform. Most importantly, the Response identifies plea bargaining’s central harm …

Pitfalls Of Progressive Prosecution, Carissa Byrne Hessick

Faculty Publications

This Essay examines the political vulnerabilities facing the progressive prosecution movement, arguing that two core features of its public brand—emphasizing a fundamental break from traditional prosecution and pledging to “do less” by shrinking the criminal justice footprint—have inadvertently exposed reform‑oriented prosecutors to intensified backlash. Drawing on recent examples, the Essay shows how framing progressive prosecution as radically different obscures the long-standing prosecutorial tools these offices still rely on, enabling critics to portray routine exercises of discretion as unprecedented or dangerous. It further explains how decarceral commitments make progressive prosecutors easy targets when crime or disorder rises, both because voters may …

Fake And Real People In Bankruptcy, Melissa B. Jacoby

Faculty Publications

This essay explores the bankruptcy system’s structural bias in favor of artificial persons—for-profit companies, non-profit enterprises, and municipalities given independent life by law—relative to humans. The favorable treatment extends to foundational issues such as the scope and timing of debt relief, the conditions to receiving any bankruptcy protections, and the flexibility to depart from the Bankruptcy Code by asserting that doing so will maximize economic value. The system’s bias also contributes to the “bad-apple-ing” of serious policy problems, running counter to other areas of law that have deemed harms like discrimination to be larger institutional phenomena rather than merely the …

Sorting Bugs And Features Of Mass Tort Bankruptcy, Melissa B. Jacoby

Faculty Publications

In 1997, after two years of study, the National Bankruptcy Review Commission recognized bankruptcy’s potential as a forum to address mass tort problems. It emphasized, however, that Congress needed to do much more to ensure due process, address major risks of under-compensation and inconsistent compensation, and reduce uncertainty about the lawfulness of these cases. United States Supreme Court cases invalidating particular limited-fund class actions raised the stakes, casting doubt on certain analogous bankruptcy practices.

Congress adopted neither the Commission’s proposals nor others on the topic. Mass tort bankruptcy practice continued without legislative clarifications or improvements, culminating in recent high-profile and …