Law Commons^™

Why Insurance Needs A Restatement: The Case Of Settlement Decision Law, Chaim Saiman

Faculty Publications

Even before its publication, the Restatement of the Law, Liability Insurance had been subjected to withering wholesale criticism that it creates aspirational and pro-policyholder insurance law. This view continues to be forcefully promoted by insurers and their advocates in the legal literature and by governors and state legislatures in the political areas.

This Article finds these wholesale criticisms unwarranted. Liability insurance law is not a field where law is simply found and restated. In fact, settlement law offers the most vivid examples of why the Restatement of the Law, Liability Insurance is possible, useful, and justified. It is possible because …

The Online Criminal Trial As A Public Trial, Stephen Smith

Faculty Publications

There are two ways of favorably conceiving online trials in Sixth Amendment terms. One is that an online trial is a public trial, by its terms. The other is that an online trial may not be public, for Sixth Amendment purposes, but may nonetheless satisfy applicable constitutional demands for trials considered “closed.” This Essay proposes both: that an online trial is fundamentally “public” for Sixth Amendment purposes and, if it is not, it may still be a constitutional accommodation of the Sixth Amendment’s public trial guarantee, in appropriate circumstances.

The constitutionality of an online trial may be largely an idle …

Moby-Dick As Corporate Catastrophe: Law, Ethics, And Redemption, David Yosifon

Faculty Publications

Herman Melville’s Moby-Dick serves here as a vehicle through which to interrogate core features of American corporate law and excavate some of the deeper lessons about the human soul that lurk behind the pasteboard mask of the law’s black letter. The inquiry yields an illuminating vantage on the ethical consequences of corporate capital structure, the law of corporate purpose, the meaning of voluntarism, the ethical stakes of corporate fiduciary obligations, and the role of lawyers in preventing or facilitating corporate catastrophe. No prior familiarity with the novel or corporate law is required.

Trusts From A To Z: Legal Ethics, Thomas Simmons

Faculty Publications

No abstract provided.

Evidentiary Inequality, Sandra F. Sperino

Faculty Publications

Federal employment discrimination law is rife with evidentiary inequality. Courts allow employers to draw from a broad palette of evidence to defend against discrimination claims, while highly restricting the facts from which plaintiffs can prove their claims. This Article draws from hundreds of cases to show how judges favor the employer's evidence and disfavor the plaintiff's evidence across multiple dimensions, such as time, witnesses, documents, relevance, and reliability. Judges have created a host of named doctrines that severely restrict the evidence plaintiffs are allowed to use to prove their discrimination claims. At the same time, a host of unnamed, and …

The Charitable Continuum, Eric Kades

Faculty Publications

There are powerful fairness and efficiency arguments for making charitable donations to soup kitchens 100% deductible. These arguments have no purchase for donations to fund opulent church organs, yet these too are 100% deductible under the current tax code. This stark dichotomy is only the tip of the iceberg. Looking at a wider sampling of charitable gifts reveals a charitable continuum. Based on sliding scales for efficiency, multiple theories of fairness, pluralism, institutional competence and social welfare dictate that charitable deductions should in most cases be fractions between zero and one. Moreover, the Central Limit Theorem strongly suggests that combining …

The Temptation Of Cosmic Private Law Theory, Nathan B. Oman

Faculty Publications

It’s a heady time to be a theorist of private law. After decades of vague post-Realist functionalism or reductive economic theories, the latest generation of private law theorists have provided a proliferation of new philosophies of tort, contract, and property. The result has been a tremendous burst of intellectual creativity. While Kant and Hegel have been dragooned into debates over torts and contracts and even such supposedly wooly headed thinkers as Coke and Blackstone have been rehabilitated, there have been fewer efforts to generate natural law accounts of private law than one might expect, particularly in light of the revival …

"Yogi-Isms" In The Courts, Douglas E. Abrams

Faculty Publications

The versatility of Lawrence Peter (Yogi) Berra, a native of St. Louis,5 appears unparalleled in the annals of professional sports. His stellar on-the-field performance earned him election to the Hall of Fame in 1972, and his vast collection of off-the-field sayings earned him a secure place in American folklore. Some Yogi-isms are cited and quoted in federal and state judicial opinions. Topping the judicial ledger is “It’s déjà vu all over again,” which appears in Shurtleff and a few dozen other decisions.

Weaponizing En Banc, Neal Devins, Allison Orr Larsen

Faculty Publications

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party …

Election Observation Post-2020, Rebecca Green

Faculty Publications

The United States is in the midst of a crisis in confidence in elections, despite the many process protections baked into every stage of election administration. Part of the problem is that few Americans know just how rigorous the protections in place are, and most Americans have no concept of how modern elections are run. Election observation statutes are intended to provide a window for members of the public to learn about and oversee the process and to satisfy themselves that elections are fair and that outcomes are reliable. Yet in 2020, in part due to unforeseen pandemic conditions, election …

Tort Remedies In Military Prisons And Brigs, Brenner M. Fissell, Max Jesse Goldberg

Faculty Publications

Symposium on Military Justice October 2021.

Hosted by National Institute of Military Justice (In honor of NIMJ's 30th Anniversary)

Legal Implications Of The Coming Zombie Apocalypse, Thomas Simmons

Faculty Publications

No abstract provided.

Deciding For Others, Thomas Simmons

Faculty Publications

No abstract provided.

Crisis, Rupture And Structural Change: Re-Imagining Global Learning And Engagement While Staying In Place During The Covid-19 Pandemic, Shruti Rana, Hamid Ekbia

Faculty Publications

The COVID-19 pandemic led to unprecedented closures of national borders and the withdrawal of much of the social and cultural activities of society into the walls of the home. For us, educators focused on global engagement and analyzing international law and society, the abrupt retreat into the shelter of domestic walls disrupted the very subjects we were studying-inside and outside the classroom. In the pandemic 's first wave, most study abroad and international experiential programs were cancelled indefinitely, and the programs that continued had to operate in an environment of social distancing and uncertainty. We were forced to scramble to …

It's None Of Your Business: State Regulation Of Tribal Business Undermines Sovereignty And Justice, Robin M. Rotman, Sam J. Carter

Faculty Publications

The U.S. Constitution grants the federal government plenary power over American Indian affairs, yet states are increasingly attempting to assert regulatory and tax jurisdiction over tribal businesses. This overreach threatens tribal sovereignty and contravenes the terms of treaties entered between the United States and American Indian tribes. This Article begins by examining the legal foundations of federal, state, and tribal relations. It then examines recent cases across four business sectors - gaming, tobacco sales, petroleum sales, and online lending - in order to illustrate the pervasive jurisdictional challenges faced by courts in cases involving tribal businesses. This Article offers three …

Declaring, Exploring, Instructing, And (Wait For It) Joking: Tonal Variation In Majority Opinions, Lisa A. Eichhorn

Faculty Publications

British literary critic I.A. Richards once defined “tone” as a literary speaker’s attitude toward his or her listener. Borrowing that definition, this article posits that the genre of the majority judicial opinion leaves more room for tonal variation than many scholars have previously theorized. The article first elaborates on the concept of “tone,” distinguishing it from “voice” and “style.” It then reviews the existing scholarship on tone in legal writing and describes the specific dynamics of tone in majority opinions. At that point, the article closely analyzes tonal variation in two 2020 Supreme Court opinions: the majority opinion in Chiafalo …

Democracy Avoidance In Tax Lawmaking, Clint G. Wallace

Faculty Publications

The Tax Cuts and Jobs Act was the most significant tax law in more than three decades, but the strategy for getting it enacted included a variety of maneuvers to avoid public scrutiny. As a result, many taxpayers did not know how they would be affected until they filed their own tax returns more than a year later. This Article identifies this lack of transparency as part of a persistent pathology of avoiding and constraining democratic inputs and responsiveness in U.S. federal tax lawmaking. Indeed, some scholars and policy makers have sought to channel tax lawmaking away from democratically grounded …

How Analogizing Socio-Legal Responses To Organ Transplantation Can Further The Legalization Of Reproductive Genetic Innovation, Myrisha S. Lewis

Faculty Publications

The Nobel Foundation emphasized the significance of genetic innovation to society, science, and medicine by awarding the 2020 Nobel Prize in Chemistry to “the CRISPR/Cas9 genetic scissors.” This Article focuses on “reproductive genetic innovation,” a term that includes cytoplasmic transfer, mitochondrial transfer, and germline or heritable gene editing techniques that are all categorized as “experimental” in the United States. These techniques all use in vitro fertilization, a legal and widely available practice. Yet reproductive genetic innovation has resulted in controversy and numerous barriers including a recurring federal budget rider, threats of federal enforcement action, and the unavailability of federal funding. …

Marginal Benefits Of The Core Securities Laws, Kevin S. Haeberle

Faculty Publications

To every thing there is a season. In the area of securities regulation in the United States, it is the season for expansion. This article shows why such expansion should not involve use of the core issuer disclosure, fraud, and insider trading laws to reduce information asymmetry in the stock market in the name of investor protection. I argue that any expansion of these laws focused on this secondary market should therefore be justified by distinct concerns (namely, efficiency ones). Moreover, any push to better serve and protect investors should be focused on other areas of securities law (such as …

Corporate Venture Capital, Darian M. Ibrahim

Faculty Publications

This Article makes the case for corporate venture capital as a potentially game-changing entrant into entrepreneurial finance. Part II begins by retracing the ancillary players in entrepreneurial finance and their roles in the startup ecosystem. After finding each of them incapable of denting the venture capitalist’s current dominance, Part III introduces the large corporation as venture capitalist. Part III discusses the growing scale of corporate venture capital and why it may be desirable for startups, innovation, and society as a whole. Part IV looks at legal differences that may become important for corporate venture capitalists to consider, including securities, antitrust, …

Reattribution, The Poison Pill And Inventorship, Dennis D. Crouch

Faculty Publications

Brian Frye's Right of Reattribution proposes a mechanism for loosening the strictures of attribution associated with creative works of authorship and giving the law of attribution a pro-property spin. Authors regularly receive attribution recognizing their authorship role. Frye transforms this norm of attribution into a fully alienable property right. An author would receive original rights of attribution, but those rights could then be sold or transferred to another person seeking accolades. This secondary transfer process is knows as reattribution. Frye recognizes that a right of reattribution would require congressional action since the current scope of attribution rights is limited by …

The Impact Of Separate Opinions On International Criminal Law, Nancy Amoury Combs

Faculty Publications

Dissents have had a tumultuous history in national and international courts throughout the world. Initially reviled, dissents have come to be a well-accepted, even praiseworthy, component of the American judicial system, and they have traversed the same trajectory in other countries as well as in international courts and tribunals. Particularly noteworthy among international courts are those created to prosecute perpetrators of mass atrocities, such as genocide, crimes against humanity, and war crimes. And nowhere are dissents more common than in these mass atrocity courts. Yet, as prevalent as these dissents are, they have received virtually no scholarly or practical attention. …

Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese

Faculty Publications

The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.

The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's progeny …

The Modest Impact Of The Modern Confrontation Clause, Jeffrey Bellin, Diana Bibb

Faculty Publications

The Sixth Amendment's Confrontation Clause grants criminal defendants the right "to be confronted with the witnesses against" them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution's use of hearsay at trial. But until recently, the Supreme Court's interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court's longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.

The Supreme Court's 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the …

We Have To Tell Them What?: The New Corporate Transparency Act And Forming Business Entities In Massachusetts, James J. Wheaton, Gustavo De La Cruz Reynozo

Faculty Publications

The details and requirements of business entity formation have traditionally been the sole province of state law. Most states, like Massachusetts, maintain corporate annual report filing requirements that involve the public disclosure of corporate officers and directors, and some impose similar requirements for LLCs or other business entities. Those requirements focus on active managers of the entities, not information about the beneficial ownership of entities formed under their laws. However, the recently enacted federal Corporate Transparency Act (CTA) will fundamentally change entity disclosure.

By January 1, 2022, the Treasury Department will be promulgating regulations that will require every state filing …

Exploring Performance In Air Force Science And Technology Programs, Eric A. Plack, Jonathan D. Ritschel, Edward D. White, Clay M. Koschnick

Faculty Publications

Science and technology (S&T) programs serve an important function in the defense acquisition process as the initial phase leading to discovery and development of warfighting technology. The results of these programs impact the larger major defense acquisition programs, which integrate the technologies in subsequent phases of the life cycle. Despite this important role, little prior research has examined the performance of S&T programs. In this study, the authors investigate the impact of technological maturation as a critical success factor in Air Force S&T programs. The results suggest that S&T programs with mature technologies are more likely to experience above average …

Nudging Humans, Brett Frischmann

Faculty Publications

Behavioral data can and should inform the design of private and public choice architectures. Choice architects should steer people toward outcomes that make them better off (according to their own interests, not the choice architects’) but leave it to the people being nudged to choose for themselves. Libertarian paternalism can and should provide ethical constraints on choice architects. These are the foundational principles of nudging, the ascendant social engineering agenda pioneered by Nobel Prize winning economist Richard Thaler and Harvard law professor Cass Sunstein.

The foundation bears tremendous weight. Nudging permeates private and public institutions worldwide. It creeps into the …

Diversity In Innovation Best Practices Guide, Laura Norris, Mary Fuller, Joy Peacock, Sydney Yazzolino

Faculty Publications

In 2020, the USPTO collaborated with the HTLI to propose a study designed to increase diversity in the patenting process, specifically targeted to in-house legal / IP department and their practices. The goal of the study was simple - harvesting the collective knowledge of nationwide IP professionals and producing an “insanely practical” guide to expand inventorship to a more diverse inventor population. By “diverse” we mean underrepresented or historically marginalized groups in the United States patent system. The term "diversity" can be interpreted differently in different countries. The HTLI research team collected this extensive list of over 90 best practice …

Dreams Interrupted: A Mixed-Methods Research Project Exploring Latino College Completion, Kate Sablosky Elengold, Jess Dorrance, Amanda Martinez, Patricia Foxen, Paul Mihas

Faculty Publications

Latino students are entering college at record numbers; Today, almost 3.8 million Latinos are enrolled in colleges and universities across the United States. Yet Latino students trail their White and Asian peers in attaining college degrees. The overall completion gap exceeds ten percentage points.

Although scholars and advocates have pointed to several different barriers facing Latino college students, a persistent narrative focuses on Latino students’ aversion to taking on student debt. In response, researchers at the University of North Carolina-Chapel Hill and UnidosUS undertook a multi-year mixed-method study to test and interrogate whether and how debt aversion affects Latino college …

Eleven Observations About Legal Writing, Douglas E. Abrams

Faculty Publications

This Article collects 11 observations about legal writing that I have shared with law students since I began teaching in the late 1970s.