Law Commons^™

Food, Freedom, Fairness, And The Family Farm, Robin M. Rotman, Sophie Mendelson

Faculty Publications

The concept of the “family farm” holds powerful sway within the American narrative, embodying both nostalgia for an imagined past and anxiety for a future perceived to be under threat. Since the founding of the United States, this cultural ideal has been invoked in support of a rosy vision of agrarian democracy while obscuring the ways in which the U.S. Department of Agriculture’s codified definition of “family farm” has unfairly aggregated advantages for the benefit of a particular kind of family (nuclear) and farmer (white, male, straight). At the same time, consumers are misled by an under-interrogated conflation of family …

New York's Requirements For Contractual Definiteness With Application To The Formation Of Investment Vehicles, Royce De R. Barondes

Faculty Publications

A review of 82 modern New York cases reveals an unexpected frequency of authority requiring contractual definiteness as to what may reasonably appear to be minor terms.
Illustrative are cases holding inadequately definite ordinary ways preliminary agreements may express compensation on a percentage of net basis. Other unexpected authority (i) is less willing than expected to allow subsequent actions to provide sufficient definiteness to initially indefinite agreements and (ii) denies the enforceability of confidentiality provisions and a right of first refusal.
The survey includes some unexpected support for contracts specifying a plausibly material portion of the consideration with inadequate definiteness …

State Rejection Of Federal Law, Thomas B. Bennett

Faculty Publications

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …

Charles Dickens' Novels In The Courts, Douglas E. Abrams

Faculty Publications

This article examines written judicial opinions that contain references to novels by Charles Dickens (1812-1870), the British novelist and social critic who is widely regarded as one of the greatest writers of the Victorian Age. Americans today still read Dickens’ best-known novels, and the U.S. Supreme Court and the lower federal and state courts have cited and quoted from them.

The Estimated Size And Lost Earnings Of New York’S Second Chance Sealing Gap, Colleen Chien, Navid Shaghaghi, Hithesh Bathala, Sarah-Mae Sanchez, Evan Hastings

Faculty Publications

As states pass reforms to reduce the size of their prison populations, the number of Americans physically incarcerated has declined. However, the number of people whose employment and related opportunities are limited due to their criminal records continues to grow. Another sanction that curtails economic opportunity is the loss of one’s driver’s license for reasons unrelated to driving. While many states have “second chance” laws on the books that provide, e.g. expungement or driver’s license restoration, a growing body of research has documented large “second chance gaps” between eligibility and delivery of relief due to the poor administration of second …

Frenemey Federalism, Scott P. Bloomberg

Faculty Publications

This article introduces the concept of Frenemy Federalism. The term “frenemy” is a portmanteau of “friend” and “enemy” that is defined as a person with whom one is friendly despite a fundamental dislike or rivalry. A frenemy relationship develops between the federal and state governments when the governments work together despite having conflicting objectives in an area of policy. In such situations, mutual incentives make cooperation between the governments conducive to achieving their respective goals, allowing what may otherwise be a contentious relationship to find stability. Amidst the growing body of federalism scholarship, I situate Frenemy Federalism as a point …

Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott P. Bloomberg

Faculty Publications

Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets. In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana. However, the states’ reprieve from the doctrine may soon come to an end. Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate. This Article serves as a wake-up call. It provides the most extensive analysis to date of …

Termination Of Parental Rights As A Private Remedy: Rationales, Realities, And Remedies, Deirdre M. Smith

Faculty Publications

Terminating a parent’s rights—a drastic measure—is commonly associated with public child welfare proceedings, where a state or county child protective services agency has removed a child from their home based on findings of abuse or neglect. In fact, state laws across the country also permit private individuals to petition a court to terminate another person’s parental rights. While private termination actions are not uncommon, there has been scant scholarly examination of these matters, their underlying purposes, and their role in contemporary family law. Termination of parental rights orders in any context interfere with parents’ fundamental constitutional rights, but parents in …

Taxing Creativity, Jeffrey A. Maine

Faculty Publications

The recent sell offs of song catalogs by Bob Dylan, Stevie Nicks, Neil Young, and Mick Fleetwood for extraordinarily large sums of money raise questions about the law on creativity. While patent and copyright laws encourage a wide array of creative endeavors, tax laws governing monetization of creative works do not. The Songwriters Capital Gains Equity Act, in particular, solidifies creativity exceptionalism, exacerbates tax inequities among creators, and perpetuates racial disparities in the tax Code. This Article asserts that the law must encourage creativity from all creators. It is time to eliminate tax exceptionalism for musical compositions or expand its …

The Boundaries Of Multi-Parentage, Jessica Feinberg

Faculty Publications

Multi-parentage has arrived. In recent years, a growing number of courts and legislatures have recognized that a child may have more than two legal parents. A number of significant societal, medical, and legal developments have contributed to the trend toward multi-parentage recognition. The traditional family structure of a married different-sex couple and their biological children currently represents only a minority of U.S. families. Stepparents, non-marital partners of legal parents, and extended family members often play a significant role in children’s lives, and it has become increasingly common for same-sex couples to welcome children into their families. In addition, advancements in …

Courts As Auditors Of Legislation?, Daniel Pi, Giampaolo Frezza, Francesco Parisi

Faculty Publications

Sources of law vary greatly across geography and human history. Some legal systems identify democratic lawmaking with political deliberation, while others rely on judicial process and judge-made law. This Essay argues that the normative problem of determining a hierarchy of legal sources may be usefully understood in terms of mechanism design, and that legislation and judicial precedent operate complementarily. If the ultimate policy objective is to create legal rules that reflect the "will of the people," judge-made law can function as an audit on the rules promulgated by elected legislatures. The two sources of law, working in conjunction, thereby correct …

Healthcare Education Leaves The Hills: Frontier Nursing University’S Move From Appalachia, Hannah Haksgaard

Faculty Publications

Rural communities lack maternity and childbirth services, and access is getting worse. Despite the serious need for more rural-focused childbirth services, Frontier Nursing—the most famous rural-focused childbirth healthcare provider and educator—recently left the historic rural location it had called home since its inception nearly a century ago. Frontier Nursing, established in the Appalachian Mountains in 1925, initially provided nursing and midwifery care focused on the residents of Leslie County, Kentucky, and in 1939 established a school in Leslie County to train future rural nurse-midwives. Despite success over nearly 100 years deep in the remote and rural Appalachian foothills, Frontier Nursing …

Inconceivability, Horror, And The Mercy Seat, Thomas Simmons

Faculty Publications

In an ordinary home in Huron, South Dakota-sometime in the very early morning hours of Sunday, April 5, 1987-a young girl was murdered in her crib. By March of the next year, her mother, Debra Jenner, had been convicted of second-degree murder. She was sentenced to life in prison. Although she became eligible for parole in 2003 after Governor Janklow commuted her sentence, her applications for discretionary parole were consistently denied. She remained incarcerated until last year, when she was finally granted parole. This essay embarks on a retelling of Debra Jenner's trial, her subsequent post-conviction proceedings, and her numerous …

Book Review: A Civility-Based Model For New Lawyers: Understanding Your Moral Compass, Interpersonal Skills, And Ethical Inventory Before Practicing Law, Sarah Kammer

Faculty Publications

No abstract provided.

Reflections On Teaching Constitutional Law In The Midst Of A Constitutional Crisis, Sean Kammer

Faculty Publications

No abstract provided.

The Merits Of Merit: Book Review, Neil Fulton

Faculty Publications

No abstract provided.

The Appellate Judge As The Thirteenth Juror: Combating Implicit Bias In Criminal Convictions, Andrew S. Pollis

Faculty Publications

Research has documented the effect that implicit bias plays in the disproportionately high wrongful-conviction rate for people of color. This Article proposes a novel solution to the problem: empowering individual appellate judges, even over the dissent of two colleagues, to send cases back for retrial when the trial record raises suspicions of a conviction tainted by the operation of implicit racial bias.

Factual review on appeal is unwelcome in most jurisdictions. But the traditional arguments against it, which highlight the importance of deference to the jury’s fact-finding powers, are overly simplistic. Scholars have already demonstrated the relative institutional competency of …

Trademark Law And Consumer Constraints, Laura A. Heymann

Faculty Publications

Trademark law’s focus is on the consumer. Both the trademark literature and the marketing literature, however, tend to assume a consumer with few constraints on economic or cognitive processing resources. For example, scholars have argued that some confusion in the marketplace is not only inevitable but is also an overall positive in that encountering confusion trains consumers to be more resourceful and to learn how to interpret marketing communications more carefully. But not all consumers have the same level of cognitive and economic resources. Disadvantaged consumers—such as those not literate in the English language, those with lower socioeconomic status, and …

Old Age As The Hidden Sentencing Factor, Adam M. Gershowitz

Faculty Publications

Imagine two doctors who illegally sold opioids in exchange for cash. Both doctors sold roughly the same quantity of pills, had no prior criminal convictions, and accordingly faced the same sentencing guidelines range. The major difference was that one doctor was in his sixties and considerably older than the other doctor. The Federal Sentencing Guidelines provide that judges should consider a defendant's age only in atypical cases. Yet, this Article demonstrates that older defendants received sentencing discounts far more often than younger defendants convicted of the same crime.

This Article gathers sentencing data for almost 130 doctors convicted in federal …

Whose Progress?, Laura A. Heymann

Faculty Publications

Article I, Section 8, Clause 8 of the U.S. Constitution provides that Congress shall have power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” These words have been the subject of countless books and scholarly articles. Professor Silbey’s engaging contribution [in Against Progress: Intellectual Property Law and Fundamental Values in the Internet Age] to the conversation focuses on one word—progress—and what it should mean as we think about intellectual property law’s motivations and justifications in the twenty-first century.

But even …

Election Surveillance, Rebecca Green

Faculty Publications

For most of this country's history, we have relied on human eyes and ears to oversee our system of elections. Modern surveillance tools, from cell phones to video streaming platforms, are now cheap and ubiquitous. Technology holds great promise to increase election transparency. But the 2020 election confirmed what has become quite clear: the use of technology to record election processes does not always serve the goal of reassuring the public of the integrity of elections; in fact, it can do the opposite. As legislatures around the country reexamine rules governing elections following the 2020 election, an underexplored question is …

Fencing The Wind: Property Rights In Renewable Energy, Martin Lockman

Faculty Publications

In the face of global warming, the rapid development of carbon-neutral energy resources is utterly imperative. However, even environmentally friendly energy production like wind power has real externalities. Those who live in the shadow of wind turbines and suffer the immediate effects of wind development can be disenfranchised by municipal and state-level siting processes. Meanwhile, absent or ad hoc governance of windstreams prevents the efficient economic use of renewable energy resources when upwind development can doom a nascent windfarm. As windstream development intensifies, each of these conflicts will only become more frequent and more severe.

This article proposes a novel …

Super Deference And Heightened Security, Jonathan H. Adler

Faculty Publications

Judicial review of federal agency action is systematically deferential. Such deference is arguably at its peak where agencies address scientific and highly technical matters within their area of expertise. This is what some call “super deference.” While there may be strong arguments for deferential review of agency scientific determinations as a general matter, there are reasons to question such deference when agency action implicates constitutional concerns. In particular, where agency actions trigger heightened scrutiny, such as occurs when agency actions intrude upon expressly enumerated or otherwise recognized fundamental rights or adopt constitutionally suspect classifications, courts should not apply traditional levels …

Our New Normal? How Covid-19 Accelerated Pre-Pandemic Trends In State Court Litigation, Paula Hannaford-Agor

Faculty Publications

This Article briefly summa­rizes thirty years of research conducted by the National Center for State Courts (NCSC) on civil litigation in state courts, highlighting the most important trends for contemporary civil justice stakeholders. It then describes the impact of the COVID-19 pandemic on civil caseloads and its implications for civil case processing. It concludes with a description of the civil justice reforms endorsed by the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) to address pandemic-related backlogs and to ensure a more effective civil justice system.

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

Eliminating Shadows And Ghosts: Findings From A Study Of Inclusiveness, Representativeness, And Record Accuracy In Master Jury Lists And Juror Source Lists In Three States, Paula Hannaford-Agor, Miriam Hamilton, Erika Bailey

Faculty Publications

In 2021, the National Center for State Courts (NCSC) obtained grant funding from the State Justice Institute to assess the inclusiveness, representativeness, and accuracy of the juror source lists for Missouri, New Jersey, and Tennessee and the resulting master jury lists for Missouri and Tennessee. Each jurisdiction volunteered to be part of the project. For its analyses of inclusiveness, the NCSC compared the total number of records on the master jury list with the total number of adult residents in each county reported by the U.S. Census Bureau on the 2020 Census. To assess the accuracy of address records generally …

Developing Police, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.

Disaggregating Legislative Intent, Jesse M. Cross

Faculty Publications

In statutory interpretation, theorists have long argued that the U.S. Congress is a “they,” not an “it.” Under this view, Congress is plural and nonhierarchical, and so it is incapable of forming a single, institutional intent. Textualists contend that this vision of Congress means interpreters must move away from concerns about intent altogether, and that they instead should speak in the register of textualism and its associated constitutional values, such as notice and congressional incentivization.

However, even if legislators’ intentions never coalesce into an institutional intent, a disaggregated-intent theory of legislation remains possible. Under this theory, statutes are understood as …

Unequal Investment: A Regulatory Case Study, Emily R. Winston

Faculty Publications

Growing economic inequality in the United States has reduced social mobility, placing financial security farther out of reach for a growing number of Americans. During the COVID-19 pandemic, U.S. stock prices have grown simultaneously with unemployment and food insecurity, highlighting the fact that prosperity is unequally distributed in the U.S. economy.

Many Americans do not benefit when the stock market soars because they do not have the means to invest. However, even ordinary American families who do have wealth to invest in the capital markets will face enormous obstacles in narrowing the wealth divide through investment. This is because ordinary …

Rural Estrangement And The Regulatory State, Ann M. Eisenberg

Faculty Publications

In today’s polarized social and political climate, rural alienation from government is often dismissed as “just more politics” or a symptom of problematic cultural norms. This Article takes rural disaffection from government seriously, with a focus on rural relationships with the federal regulatory state. The Article argues that rural disaffection from the regulatory state is not solely a cultural or political phenomenon among white conservatives. Rural disaffection is also a broader structural issue that stems in part from the regulatory state’s crisis of legitimacy.

Two factors show that rural disaffection from the regulatory state is more diffuse and profound than …

Freedom, Democracy, And The Right To Education, Derek W. Black

Faculty Publications

While litigation continues in an effort to establish a fundamental right to education under the U.S. Constitution, the full historical justification for this right remains missing—a fatal flaw for many jurists. This Article fills that gap, demonstrating that the central, yet entirely overlooked, justification for a federal right to education resides in America’s education story during the era of slavery and Reconstruction.

At that time, education was first and foremost about freedom. The South had criminalized education to maintain a racialized hierarchy that preserved slavery. Many African Americans, seeing education as the means to both mental and physical freedom, made …