Law Commons^™

Citation Stickiness, Computer-Assisted Legal Research, And The Universe Of Thinkable Thoughts, Aaron S. Kirschenfeld, Alexa Z. Chew

Faculty Publications

This article seeks to answer two main questions. The first is whether courts cited the same cases as the parties more often during the print era than during the digital era. The second is what, if anything, the answer to the first question can contribute to the debate about how print-era forms of organizing and describing case law influenced researchers’ behavior. To that end, we sampled cases from 1957, 1987, and 2017, and used “citation stickiness” to study the differences in how parties and judges cited authorities during each of those years. In short, we found that there is less …

The Law According To She-Hulk, Kevin Bennardo

Faculty Publications

First introduced in Marvel comics in 1979, Jennifer Walters is the fictional character best known as the She-Hulk. Her profession is an attorney. While this article occasionally draws from source material elsewhere in the Marvel comics, its primary focus is the third She-Hulk series, which was published in twelve issues from 2014 to 2015. This series is considered to be the most legally focused of the She-Hulk series and was written by an attorney, Charles Soule. Soule himself describes the series as “a book starring a superhero who rarely super heroes. Instead of that, she *gulp* lawyers.”

As is normal …

Simplicity Lost, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

Policymakers, government officials, and scholars have long described tax complexity as one of the most serious problems affecting tax administration and tax compliance in the United States. Some of the costs of tax complexity include billions of hours of “paperwork and other headaches” that taxpayers face each year as they attempt to comply with complex tax law, monetary costs that taxpayers bear when they hire advisors and purchase software to report their tax liability and file their tax returns, difficulties that taxpayers encounter when attempting to claim tax credits and other tax benefits, and challenges the Internal Revenue Service (IRS) …

Automated Legal Guidance At Federal Agencies, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

When individuals have questions about Federal benefits, services, and legal rules, they are increasingly seeking help from government chatbots, virtual assistants, and other automated tools. Current forms of automated legal guidance platforms include the U.S. Citizenship and Immigration Services’s “Emma,” the U.S. Department of Education’s “Aidan,” and the Internal Revenue Service’s “Interactive Tax Assistant.” Most scholars who have studied artificial intelligence and Federal government agencies have not focused on the government’s use of technology to offer guidance to the public. The absence of scholarly attention to automation as a means of communicating government guidance is an important gap in the …

Implicit Legislative Bias: The Case Of The Mortgage Interest Deduction, Kathleen Delaney Thomas, Leigh Z. Osofsky

Faculty Publications

The home mortgage interest deduction is over 100 years old. The deduction has been subject to increasing and, at times, withering criticism from commentators. Scholars have argued that the mortgage interest deduction may be a particularly ineffective and regressive way to subsidize homeownership. Other scholars have made the important point that the mortgage interest deduction has a disparate racial impact: homeowners are disproportionately white, so the deduction disproportionately benefits white people at the expense of people of color. Yet, the mortgage interest deduction has retained remarkable and costly staying power despite all the critiques.

How has the mortgage interest deduction …

Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails, There Is The Possible Application Of Bostock V. Clayton County, Kevin Brown, Lalit Khandare, Annapurna Waughray, Kenneth Dau-Schmidt, Theodore M. Shaw

Faculty Publications

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …

Beyond The Marketplace Of Ideas: Bridging Theory And Doctrine To Promote Self-Governance, David S. Ardia

Faculty Publications

This article proceeds in three parts. Part I examines the longstanding debate over the First Amendment’s purpose and explains why the marketplace of ideas theory has come to dominate both judicial and public understanding of the First Amendment’s speech and press clauses. The marketplace theory’s ascendancy, however, has proven to be problematic. It rests on an overly simplified account of public discourse, treating speech as merely a commodity that can be allocated through market-style transactions, and it has come to embody an extreme version of libertarian economic thinking that is undermining the very democratic processes the First Amendment was intended …

Automated Video Interviewing As The New Phrenology, Ifeoma Ajunwa

Faculty Publications

This Article deploys the new business practice of automated video interviewing as a case study to illuminate the limitations of traditional employment antidiscrimination laws. Employment antidiscrimination laws are inadequate to address the unlawful discrimination attributable to emerging workplace technologies which gatekeep employment opportunities. The Article maintains that the practice of automated video interviewing is based on shaky or unproven social scientific principles that disproportionately impact racial minorities. In this way, the practice of automated video interviewing is analogous to the pseudoscience of phrenology, which enabled societal and economic exclusion through the legitimization of eugenicist and racist attitudes. After parsing the …

Covid-19 And The Perils Of Free-Market Parenting, Maxine Eichner

Faculty Publications

U.S. public policy has for decades rested on the expectation that parents will privately provide the cash and conditions their children need. This expectation is exceptional: most other wealthy countries’ public policies support children through a mix of public and private funds. The COVID-19 pandemic, however, radically changed U.S. policy. The severe economic dislocation that resulted led Congress to pass a series of measures that funneled trillions of public dollars to families and parents. Whether these measures should represent a temporary deviation from the nation’s free-market expectations during an unprecedented emergency or the first step in a long-term shift toward …

How Impeachment Works, Michael J. Gerhardt

Faculty Publications

This Article rejects the common view of the two Trump impeachments as a constitutional debacle. It asserts, instead, that the federal impeachment process retains significant vitality as a mechanism for holding presidents accountable for misconduct in office. If we take a step back from the tiny set of presidential impeachment trials in American history and adopt a more panoramic view of their effects and connections to other disciplinary mechanisms for presidential misconduct, it is easier to see that presidential impeachments still have bite. In fact, they can and do cripple legacies and reputations, create permanent evidentiary records of presidential misconduct, …

Amar’S The Words That Made Us, Michael J. Gerhardt

Faculty Publications

Our generation’s preeminent constitutional scholar, Professor Akhil Amar of the Yale Law School, is, like the Constitution itself, a national treasure. His most recent book, The Words that Made Us, is another masterpiece of constitutional and historical exegesis, the first of three volumes that illuminate in what ways the American Constitution has defined, energized, united, and divided the nation and its people through constitutional conversations and engagements over its meaning throughout our history. The book is awash with stories about the incremental broadening of “We the People,” the hero, authority, casualty, and beneficiary of the words that made us. …

Public Investment In Climate Resiliency: Lessons From The Law And Economics Of Natural Disasters, Donald T. Hornstein

Faculty Publications

This Article takes issue with an important claim in the public choice and climate disaster literature: that American political markets will not allow appropriate investments in disaster preparedness and prevention, even when those investments are cost-benefit bargains. The claim is significant because the costs of climate disasters in the twenty-first century are estimated to be in the trillions of dollars due to the presence of legacy greenhouse gases in the atmosphere. Thus, even assuming a sustained, successful global campaign to limit future greenhouse gases, the ingredients for decades of droughts, wildfires, storms, and floods are already locked into the atmosphere. …

White Injury And Innocence: On The Legal Future Of Antiracism Education, Osamudia James

Faculty Publications

In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased visibility of antiracism education engendered sustained critique and opposition, resulting in executive orders prohibiting its adoption in the federal government, the introduction or adoption of over sixty state-level bills attempting to control how race is taught in schools, and a round of lawsuits challenging antiracism education as racially discriminatory. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, …

Nonmarriage And Choice In South Africa And The United States, Holning Lau, Suzanne A. Kim

Faculty Publications

In this Article, we examine three insights about free choice that emerge from studying the development of South Africa’s law of nonmarriage. First, South African jurisprudence advances understandings of nonmarriage as a valid choice. Unlike U.S. jurisprudence, which has been accused of overprivileging marriage and demeaning nonmarriage, South African jurisprudence draws attention to people’s legitimate reasons for choosing not to marry and the dignity interests attached to that choice. South African law helps to broaden the imagination of what is possible when nonmarriage is respected as a valid choice.

Second, South African jurisprudence illuminates the fact that the choice whether …

Precautionary Ratemaking, Jonas J. Monast

Faculty Publications

For more than one hundred years, states have relied on ratemaking to ensure that electric utilities deliver affordable and reliable power to their customers. This process helped keep costs down, but it also produced an electricity system that is a cause of, and vulnerable to, some of the most pressing challenges now facing society: climate change, catastrophic wildfires, extreme storms, and air and water pollution.

This Article argues that risk regulation is an alternate legal foundation for interpreting bedrock principles of ratemaking, such as prudency, reasonableness, least cost, and the public interest. The traditional economic regulator view of ratemaking evaluates …

Defunding Police Agencies, Rick Su, Anthony O'Rourke, Guyora Binder

Faculty Publications

This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, …

Racialized Religious School Segregation, Erika Wilson

Faculty Publications

Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education.

A Taxonomy Of Professional Identity Formation, Harmony Decosimo

Faculty Publications

Following the ABA’s mandate requiring law schools provide students with opportunities for “professional identity formation,” this article seeks to clarify and loosely taxonomize the field of professional identity formation as it is being advanced by scholars and employed in U.S. law schools. By organizing this varied and somewhat muddled field into three dominant types or approaches and examining the primary and sometimes hidden goals of each, this article raises for review the potential pitfalls in this project, including the possibility of coercion, impotence, or waste. Ultimately, this article aims to pave the way for more constructive, transparent, and fruitful dialogue …

Systemically Important Platforms, Caleb N. Griffin

Faculty Publications

Regulating Big Tech is now a matter of intense public debate. We ask how well Big Tech companies fulfill their role as gatekeepers of the public square. We ponder whether their dominant market positions merit an antitrust response. We assess their culpability and complicity in spreading online misinformation and hate. However, in the many normative debates over how Big Tech should use its power, the source of that power remains largely unexamined.

Big Tech, like Big Tobacco before it, is an industry founded on addiction. Although typically “free” to use, the world’s largest digital platforms exploit users’ dopamine pathways to …

Judges And Mass Incarceration, Carissa Byrne Hessick

Faculty Publications

This Article argues that judges—long overlooked in contemporary explanations of mass incarceration—have played a central role both through affirmative decisions that increased punishment and through failures to act as a check on prosecutorial power. It traces how judicial choices such as imposing the trial penalty, deferring to sentencing guidelines, allowing coercive plea bargaining, expanding pretrial detention, and adopting narrow or delayed statutory interpretations have structurally reshaped the criminal justice system to favor conviction and incarceration. The Article then proposes practical steps trial judges could implement immediately to reverse these trends, including reducing reliance on pretrial detention, eliminating the trial penalty, …

Saying What The Law Should Be, F. Andrew Hessick

Faculty Publications

Recent years have seen a resurgence of the view that the role of the federal courts is to declare what the law is, not what the law should be. Scholars and judges, including a majority of the current U.S. Supreme Court justices, have expressed this view that the law is fixed at its creation and the function of courts is to declare its meaning. But this view is inaccurate. Descriptively, federal courts often say what the law should be. Judges fashion common law, inject their views into interpretations, and issue opinions that do not merely describe the law but have …

Saying The Quiet Parts Out Loud: Teaching Students How Law School Works, Alexa Z. Chew, Rachel Gurvich

Faculty Publications

The summer of 2020 was an inflection point for legal education’s relationship with racial and other inequities. After Minneapolis police murdered George Floyd, faculty, administrators, and students spoke out with increased urgency about the need to address race in law school curricula. For example, professors sought to give race context to cases found in law school casebooks by not presenting judicial opinions as neutral statements of the law. Many law schools, including our own, formally (re)dedicated themselves to helping students recognize and analyze structural inequalities and how the law perpetuates them.

Law schools focused on what their faculty and graduates …

Eviction Courts, Kathryn A. Sabbeth

Faculty Publications

This Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact.

The Article identifies ten groups of laws that structure critical design features of eviction courts: (1) filing fee statutes that make …

Other Judges' Cases, Melissa B. Jacoby

Faculty Publications

After documenting the role of mediating judges in today’s federal courts, Part I considers both reform narratives and power narratives explaining their use. To add context and specificity, Part I presents case studies based on original research. While these examples have unusual features, they illustrate the breadth of potential mediating judge activities and offer more of a citable record than can be found for other cases. The first involves the largest municipal bankruptcy in American history. 10 The second starts with the bankruptcy of a founder of a nationwide assisted living facility enterprise, who also solicited retirees to make “can’t …

“Contractually Valid” Forum Selection Clauses, John F. Coyle

Faculty Publications

In Atlantic Marine Construction Company v. United States District Court, the Supreme Court held that a “contractually valid” forum selection clause should be enforced by federal courts absent extraordinary circumstances. Unfortunately, the Court provided no guidance on how to assess whether a clause is “contractually valid.” This Article fills the gap. It argues that the answer to this question turns on three separate inquiries. First, a court should determine whether the forum selection clause is valid. Second, the court should interpret the forum selection clause to determine whether it is exclusive and applies to the claims asserted. Third, the …

The Anti-Parent Juvenile Court, Barbara A. Fedders

Faculty Publications

This Article identifies and analyzes features of the juvenile delinquency court that harm the people on whom children most heavily depend: their parents. By negatively affecting a child’s family—creating financial stress, undermining a parent’s central role in rearing her child, and damaging the parent-child bond—these parent-harming features imperil a child’s healthy growth and development. In so doing, the Article argues, they contravene the juvenile court’s stated commitment to rehabilitation.

In juvenile court, fees and fines are assessed against parents, who also often must incur lost wages to comply with court orders. In addition, while youths of all economic backgrounds and …

Review: Wendy A. Bach, Prosecuting Poverty, Criminalizing Care, Anna Arons

Faculty Publications

(Excerpt)

“Lock ’em up, clean ’em up, and start over” (145). This is how a drug treatment coordinator in a court in East Tennessee sums up her approach to provisioning substance use services to poor Tennesseans. If someone needs treatment, the most expeditious route—often, the only route—is through the criminal legal system. First, the court administrator casts about for a criminal charge, hopefully a “little charge,” that the person can be arrested on. Then, once they are arrested, they can be brought to jail where they can detox, with no medical supervision and no medication to ease the detox. And …

The Kids Are Alright, Rachel H. Smith, Rosa Castello

Faculty Publications

(Excerpt)

As with the law itself, law students are always changing. And law professors should regularly consider how those changes will impact the classroom and our pedagogical approach. For our year-long Legal Writing course, the law students of 2021-22 surprised us with the careful and nuanced way they thought about language. Our 1L students were more interested in parsing the meaning, effect, and approach to potentially offensive language than any students we had taught before. We learned a lot from them. And what we learned will have a lasting impact on how we teach legal writing and design our legal …

Arbitration Case Law Updates 2021–2022 (June 2022), Sandra D. Grannum, Elissa Germaine

Faculty Publications

(Excerpt)

This article summarizes leading arbitration cases and related issues that are of particular relevance to the securities arbitration practitioner. There appears to be a move away from compelling arbitration and federal jurisdiction of motions to confirm or vacate. The courts have decided several cases specifically involving FINRA arbitrations, discussing who can bring them and what courts have jurisdiction over them.

In addition, the Federal Arbitration Act was amended by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, the title of which speaks for itself.

Unincorporating Qualified Immunity, Teressa Ravenell

Faculty Publications

Scholars, judges, activists, and policymakers alike have criticized the doctrine of qualified immunity, which emerged in Pierson v. Ray to shield government actors from monetary liability in a wide range of suits filed under 42 U.S.C. § 1983, derived from the Civil Rights Act of 1871. These criticisms have ranged from the practical to the principled, but they largely ignore the question of statutory interpretation: is it valid to read § 1983, which makes no mention of any defense or immunity, as incorporating a qualified defense for government officials who acted in good faith and with probable cause? The Court …