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Articles 1 - 30 of 19287
Full-Text Articles in Law
Teaching "Is This Case Rightly Decided?", Steven Arrigg Koh
Teaching "Is This Case Rightly Decided?", Steven Arrigg Koh
Faculty Scholarship
“Is this case rightly decided?” From the first week of law school, every law student must grapple with this classroom question. This Essay argues that this vital question is problematically under-specified, creating imprecision in thinking about law. This Essay thus advocates that law professors should present students with a three-part framework: whether a case is rightly decided legally, morally, or sociologically.
Additionally, this Essay argues that disaggregating the question exposes deeper deficiencies in legal education. Many law professors do not provide students with serious grounding to engage in rigorous thinking about the relationship between law, morality, and justice, not to …
Brief For Amici Curiae Legal Scholars Supporting Respondent, Nicole Huberfeld, Timothy S. Jost, Linda C. Mcclain, Wendy E. Parmet, Erwin Chemerinsky, Elizabeth Mccuskey, Danielle Pelfrey Duryea, Gabriel Scheffler, George J. Annas
Brief For Amici Curiae Legal Scholars Supporting Respondent, Nicole Huberfeld, Timothy S. Jost, Linda C. Mcclain, Wendy E. Parmet, Erwin Chemerinsky, Elizabeth Mccuskey, Danielle Pelfrey Duryea, Gabriel Scheffler, George J. Annas
Faculty Scholarship
QUESTION PRESENTED: Whether the Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd, preempts Idaho law in the narrow but important circumstance where terminating a pregnancy is required to stabilize an emergency medical condition that would otherwise threaten serious harm to the pregnant woman’s health but the State prohibits an emergency-room physician from providing that care.
Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker
Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker
Faculty Scholarship
Social media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law, and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence …
Charging Abortion, Milan Markovic
Charging Abortion, Milan Markovic
Faculty Scholarship
As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.
Prosecutors have broad charging discretion, …
Four Futures Of Chevron Deference, Daniel E. Walters
Four Futures Of Chevron Deference, Daniel E. Walters
Faculty Scholarship
In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …
Evolving Sovereignty Relationships Between Affiliated Jurisdictions: Lessons For Native American Jurisdictions, Vaughan Carter, Charlotte Ku, Andrew P. Morriss
Evolving Sovereignty Relationships Between Affiliated Jurisdictions: Lessons For Native American Jurisdictions, Vaughan Carter, Charlotte Ku, Andrew P. Morriss
Faculty Scholarship
Though sovereignty is principally associated with governance over a territory and freedom to act in the international arena, this article examines sovereignty as empowerment. The study tests the applicability to Native American jurisdictions of the experiences of fifteen case study jurisdictions presently associated with the United Kingdom, the Netherlands, and France in shared sovereign relationships. The focus is on the evolution of those relationships and opportunities for development where jurisdictions do not attain full control over their affairs. The case studies examine the relationships from the perspectives of political, economic, and cultural sovereignty. The article further examines the relationships in …
Consumer Law For Gen Z Law Students, Neil Sobol
Consumer Law For Gen Z Law Students, Neil Sobol
Faculty Scholarship
Whether they are consumers, representing consumers, or advising clients dealing with consumers, law school graduates will inevitably confront numerous consumer law issues. Moreover, most students entering law school are members of Generation Z and face a new wave of consumer laws arising from the 2007–2009 recession and the rapid growth of new technologies. Clickwrap agreements, email spoofing, cybercrimes, cryptocurrencies, fintech, identity theft, online disparagement, data privacy, artificial intelligence, robocalling, and autonomous vehicles are among the evolving topics in modern consumer law. Despite the growth in consumer law concerns, many law students have limited access to consumer law options, with almost …
The Ideology Of Press Freedom, Hannah Bloch-Wehba
The Ideology Of Press Freedom, Hannah Bloch-Wehba
Faculty Scholarship
This Article offers a critical account of the law of press freedom. American law and political culture laud the press as an institution that plays a vital role in democracy: guarding against corruption, facilitating self-governance, and advocating for free expression. These democratic functions provide justification for the law of press freedom, which defends the media’s autonomy and shields the press from outside interference.
But the dominant accounts of the press’s democratic role are only partly accurate. The law of press freedom is grounded in large part in journalism’s professional commitments to objectivity, public service, and autonomy. These idealized characterizations, flawed …
Against Monetary Primacy, Yair Listokin, Rory Van Loo
Against Monetary Primacy, Yair Listokin, Rory Van Loo
Faculty Scholarship
Every passing month of high interest rates increases the chances of massive job cuts and a devastating recession that still might come if the Fed maintains interest rates at their current levels for long enough. Recessions impose not only widespread short-term pain but also lifelong harms for many, as vulnerable populations and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the sacrifice that ensues. We call this inflation-fighting paradigm monetary primacy. …
Getting Merger Guidelines Right, Keith N. Hylton
Getting Merger Guidelines Right, Keith N. Hylton
Faculty Scholarship
This paper is on the new Merger Guidelines. It makes several arguments. First, that the Guidelines should be understood as existing in a political equilibrium. Second, that the new structural presumption of the Merger Guidelines (HHI = 1,800) is too strict, and that an economically reasonable revision in the structural presumption would have increased rather than decreased the threshold. Whereas the new Guidelines lowers the threshold to HHI 1,800 from HHI 2,500, an economically reasonable revision would have increased the threshold to HHI 3,200. I justify this argument using a bare-bones model of Cournot competition. Third, it seems unlikely, …
Online Disinhibited Contracts, Wayne R. Barnes
Online Disinhibited Contracts, Wayne R. Barnes
Faculty Scholarship
There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). The second force has been the rise of e-commerce and the purchase of goods and services via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, …
The Short And Troubled History Of The Printed State Administrative Codes And Why They Should Be Preserved, Kurt X. Metzmeier
The Short And Troubled History Of The Printed State Administrative Codes And Why They Should Be Preserved, Kurt X. Metzmeier
Faculty Scholarship
This article makes a case for the historical importance of early state administrative codes and urges that law libraries preserve them for future researchers of state administrative law and policy.
Transaction-Specific Tax Reform In Three Steps: The Case Of Constructive Ownership, Thomas J. Brennan, David M. Schizer
Transaction-Specific Tax Reform In Three Steps: The Case Of Constructive Ownership, Thomas J. Brennan, David M. Schizer
Faculty Scholarship
Similar investments are often taxed differently, rendering our system less efficient and fair. In principle, fundamental reforms could solve this problem, but they face familiar obstacles. So instead of major surgery, Congress usually responds with a Band-Aid, denying favorable treatment to some transactions, while preserving it for others. These loophole-plugging rules have become a staple of tax reform in recent years. But unfortunately, they often are ineffective or even counterproductive. How can Congress do better? As a case study, we analyze Section 1260, which targets a tax-advantaged way to invest in hedge funds. This analysis is especially timely because a …
Silencing Jorge Luis Borges The Wrongful Suppression Of The Di Giovanni Translations, Wes Henricksen
Silencing Jorge Luis Borges The Wrongful Suppression Of The Di Giovanni Translations, Wes Henricksen
Faculty Scholarship
No abstract provided.
The Ncaa's Challenge In Determining Nil Market Value, Meg Penrose
The Ncaa's Challenge In Determining Nil Market Value, Meg Penrose
Faculty Scholarship
This Article proceeds in three parts. Part II discusses the changes that NIL has wrought in college athletics. It briefly explains collectives and their impact on NIL. Part III discusses the impossibility of limiting athletes’ “fair market value” given market value depends on what the market is willing to pay. Congress has failed to pass national legislation. Yet the mosaic of state laws is simply unfit to stand in for national legislation. And, following multiple litigation losses, the NCAA cannot be trusted to “value” the athletes themselves. Market value, if one is to be established, must be uniform and assessed …
A Reputational View Of Antitrust’S Consumer Welfare Standard, Murat C. Mungan, John M. Yun
A Reputational View Of Antitrust’S Consumer Welfare Standard, Murat C. Mungan, John M. Yun
Faculty Scholarship
A reform movement is underway in antitrust. Citing prior enforcement failures, deviations from the original intent of the antitrust laws, and overall rising levels of sector concentration, some are seeking to fundamentally alter or altogether replace the current consumer welfare standard, which has guided courts over the past fifty years. This policy push has sparked an intense debate over the best approach to antitrust law enforcement. In this Article, we examine a previously unexplored potential social cost from moving away from the consumer welfare standard: a loss in the information value to the public from a finding of liability. A …
The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters
The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters
Faculty Scholarship
The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …
Public Primacy In Corporate Law, Dorothy S. Lund
Public Primacy In Corporate Law, Dorothy S. Lund
Faculty Scholarship
This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …
The Administrative State, Financial Regulation, And The Case For Commissions, Kathryn Judge, Dan Awrey
The Administrative State, Financial Regulation, And The Case For Commissions, Kathryn Judge, Dan Awrey
Faculty Scholarship
Administrative law is under attack, with the Supreme Court reviving, expanding, and creating doctrines that limit the authority and autonomy wielded by regulatory agencies. This anti-administrative turn is particularly alarming for financial regulation, which already faces enormous challenges stemming from the dynamism of modern finance, its growing complexity, and fundamental contestability. Yet that does not mean that defending the current regime is the optimal response. The complexity and dynamism of modern finance also undercut the efficacy of established administrative procedures. And the panoply of financial regulators with unclear and overlapping jurisdictional bounds only adds to the challenge. Both these procedural …
Restating The Law In A Child Wellbeing Framework, Elizabeth S. Scott
Restating The Law In A Child Wellbeing Framework, Elizabeth S. Scott
Faculty Scholarship
The Restatement of Children and the Law is scheduled for formal adoption by the American Law Institute in 2024. When this project was first proposed, it was met with some skepticism, on the view that the regulation of children was not a coherent field of law. But after eight years of work on this Restatement, the Reporters have produced a comprehensive account of the law’s treatment of children and clarified that it is, indeed, an integrated and coherent area of law. Our work has uncovered a deep structure and logic that shapes the legal regulation of children in the family, …
Manipulating Citadel: Profiting At The Expense Of Retail Stock Traders' Market Makers, Merritt B. Fox, Lawrence R. Glosten, Sue S. Guan
Manipulating Citadel: Profiting At The Expense Of Retail Stock Traders' Market Makers, Merritt B. Fox, Lawrence R. Glosten, Sue S. Guan
Faculty Scholarship
This Article considers whether securities market strategies designed to profit at the expense of so-called “internalizers” should properly be considered illegal manipulation. An internalizer acquires from a brokerage firm the right to be the market maker for the broker’s full order flow from its retail customers, promising in return to execute each order at a price slightly better than the best price available on any exchange (“price improvement”) as well as to pay the broker a fee for each executed order (“payment for order flow”). Almost all retail trading — about 29% of the country’s total share volume — is …
War Powers Reform: A Skeptical View, Matthew C. Waxman
War Powers Reform: A Skeptical View, Matthew C. Waxman
Faculty Scholarship
Debates about war powers focus too much on legal checks and on the President’s power to start wars. Congressional checks before and during crises work better than many reform-ists suppose, and there are ways to improve Congress’s political checking without substantial legal reform.
The Harm Of "Nothing Burgers", Joshua Gupta-Kagan
The Harm Of "Nothing Burgers", Joshua Gupta-Kagan
Faculty Scholarship
Child protective services (CPS) agencies subject a wide scope of families to investigation, and the vast majority do not lead to family separations or family court cases. A 2017 study, for instance, showing that 37% of all children and 53% of Black children are the subject of CPS investigations in their childhoods, has now been cited hundreds of times. Kelley Fong’s new book, Investigating Families, is based on the months she spent embedded with CPS investigators responding to allegations that parents abused or (more often) neglected their children, and the interviews she conducted with both investigators and the parents …
Legal Issues In Oceanic Transport Of Carbon Dioxide For Sequestration, Carolina Arlota, Michael B. Gerrard, Pria Deanna Mahadevan
Legal Issues In Oceanic Transport Of Carbon Dioxide For Sequestration, Carolina Arlota, Michael B. Gerrard, Pria Deanna Mahadevan
Faculty Scholarship
A number of large facilities intended for the permanent sequestration of carbon dioxide are being developed in the United States. Several of them will be located in Texas and Louisiana on or near the coast of the Gulf of Mexico, making them easily accessible to ships. At the same time, there is substantial interest in Europe in installing equipment to capture carbon dioxide from certain industrial operations before it is emitted into the atmosphere, but currently there are inadequate facilities existing in Europe to sequester much of this carbon dioxide. Therefore, there is interest in the possibility of using ships …
Intimate Partner Violence And Family Dispute Resolution – Coercion, Capacity, And Control, Kelly Browe Olson
Intimate Partner Violence And Family Dispute Resolution – Coercion, Capacity, And Control, Kelly Browe Olson
Faculty Scholarship
Intimate partner violence (IPV) is one of the most complex issues that family dispute resolution (FDR) professionals encounter. Over one-third of women and one-quarter of men in the United States have experienced physical violence, rape, and/or stalking by an intimate partner in their lifetime (Black et al., 2011), and a majority of separation- and divorce-related cases involve IPV allegations (Ballard et al., 2011; Beck et al., 2010; Belzer, 2003). IPV often escalates, and is most dangerous, during and after separation and creates unique challenges for mediation and other collaborative processes (Beck & Raghaven, 2010; Kelly & Johnson, 2008). Therefore, all …
Teaching Critical Use Of Legal Research Technology, Jennifer E. Chapman
Teaching Critical Use Of Legal Research Technology, Jennifer E. Chapman
Faculty Scholarship
No abstract provided.
Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role Of Barnette In 303 Creative Llc V. Eleni, Linda C. Mcclain
Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role Of Barnette In 303 Creative Llc V. Eleni, Linda C. Mcclain
Faculty Scholarship
This article addresses the U.S. Supreme Court’s embrace, in 303 Creative LLC v. Elenis, of a First Amendment objection to state public accommodations laws that the Court avoided in Masterpiece Cakeshop v. Colorado Civil Rights Commission: such laws compel governmental orthodoxy. These objections invoke West Virginia Board of Education v. Barnette’s celebrated language: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.” They also …
A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey
A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey
Faculty Scholarship
The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …
Counseling Oppression, Angelo Petrigh
Counseling Oppression, Angelo Petrigh
Faculty Scholarship
Critical scholars and public defenders alike have grappled with the contradictions at the heart of counseling clients in a carceral system. Systems of oppression operate within the public defender - client relationship because the defender’s role in translating the law also enforces its inequities. Counseling can obscure the workings of the system, providing an illusion of choice despite privileging certain forms of knowledge and tactics.
But the counseling site is also where defenders become exposed to client’s lived experiences, encounter collectivist tactics, and critically examine the tension of their role in the system. Likewise, through counseling defenders can pull back …
New York Environmental Legislation In 2023, Michael B. Gerrard
New York Environmental Legislation In 2023, Michael B. Gerrard
Faculty Scholarship
In 2023, New York enacted laws to aid the state in achieving the renewable energy and greenhouse gas emissions reduction mandates of the 2019 Climate Leadership and Community Protection Act (CLCPA).The state also now has new laws to reduce exposure to lead in drinking water and paint; to ban natural gas furnaces and stoves in new buildings; to restrict neonicotinoid pesticides; and to encourage “nature-based solutions” for stabilizing tidal coastlines. These and other new and amended environmental and energy laws—as well as notable vetoes—are discussed in this article.