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Faculty Scholarship

2017

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Full-Text Articles in Law

Pov: Scotus Should Not Permit “Boycott Of Same-Sex Marriage”, Linda C. Mcclain Dec 2017

Pov: Scotus Should Not Permit “Boycott Of Same-Sex Marriage”, Linda C. Mcclain

Faculty Scholarship

On December 5, 2017, the Supreme Court heard oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which baker (self-described cake artist) Jack Phillips, owner of Masterpiece Cakeshop, asked the court to decide “whether applying Colorado’s public accommodations law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.”


Is There A Right To Life For The Colorado River?, Reed D. Benson Dec 2017

Is There A Right To Life For The Colorado River?, Reed D. Benson

Faculty Scholarship

A recent lawsuit, declaring the Colorado River has legal rights of its own, received national attention in the New York Times and High Country News. While the lawsuit had no chance of success, it highlighted important issues.


Book Review: Justice Triage, Milan Markovic Dec 2017

Book Review: Justice Triage, Milan Markovic

Faculty Scholarship

Benjamin Barton and Stephanos Bibas’s new book, Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law, is an eloquent exemplar of the deregulation literature. What sets Rebooting Justice apart from other works in the genre is that Barton and Bibas do not treat deregulation as a panacea. Their starting point is that Americans are not well served by lawyers’ monopoly over the legal services market, but they do not envision a world in which every legal problem is resolved ably and efficiently. Their goal is much more modest: a less complex legal system in which lawyer …


Plenary Power In The Modern Administrative State, Catherine Y. Kim Dec 2017

Plenary Power In The Modern Administrative State, Catherine Y. Kim

Faculty Scholarship

No abstract provided.


Sympathy For The Devil: Gawker, Thiel, And Newsworthiness, Amy Gajda Dec 2017

Sympathy For The Devil: Gawker, Thiel, And Newsworthiness, Amy Gajda

Faculty Scholarship

No abstract provided.


Making The Most Of Cooperative Federalism: What The Clean Power Plan Has Already Achieved, Gabriel Pacyniak Dec 2017

Making The Most Of Cooperative Federalism: What The Clean Power Plan Has Already Achieved, Gabriel Pacyniak

Faculty Scholarship

The fate of the EPA's Clean Power Plan-the signature Obama Administration action to reduce greenhouse gas ("GHG") emissions from existing power plants under the Clean Air Act-is uncertain at best given pending litigation and the opposition of President Donald Trump. Despite this uncertainty, the development of the Clean Power Plan provides an important case study of how rulemaking under a cooperative federalism statutory structure can prompt broad, beneficial policy engagement by states and stakeholders, even in a contentious regulatory action. In the development of the Clean Power Plan, active state and stakeholder engagement and an iterative process of "trying on" …


Community Engagement And Social Activism In Legal, Aliza Organick Dec 2017

Community Engagement And Social Activism In Legal, Aliza Organick

Faculty Scholarship

Organick encourages new law faculty to reach out to the clinicians on your faculty for support, potential collaborative projects. This benefits students, and lays the foundation for meaningful friendships.


American Contract Law For A Global Age, Franklin G. Snyder, Mark Burge Dec 2017

American Contract Law For A Global Age, Franklin G. Snyder, Mark Burge

Faculty Scholarship

American Contract Law for a Global Age by Franklin G. Snyder and Mark Edwin Burge of Texas A&M University School of Law is a casebook designed primarily for the first-year Contracts course as it is taught in American law schools, but is configured so as to be usable either as a primary text or a supplement in any upper-level U.S. or foreign class that seeks to introduce American contract law to students.


The Audacity Of Protecting Racist Speech Under The National Labor Relations Act, Michael Z. Green Dec 2017

The Audacity Of Protecting Racist Speech Under The National Labor Relations Act, Michael Z. Green

Faculty Scholarship

This Article, written for a symposium hosted by the University of Chicago Legal Forum on the Disruptive Workplace, analyzes the most recent failures of the National Labor Relations Board (NLRB) to determine a thoughtful and balanced approach in addressing racist speech. Imagine two employees in the private sector workplace are discussing the possibility of selecting a union to represent their interests regarding wages and working conditions. During this conversation, a black employee notes the importance of using their collective voices to improve working conditions and compares the activity of selecting a union with the Black Lives Matter protests aimed at …


Comments On Preliminary Draft 3 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek Dec 2017

Comments On Preliminary Draft 3 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

The absence of stated principles underlying the articulation of the black letter and comments – principles that the Reporters have said they will provide at the end of the process – continues to trouble the Draft. It remains unclear whether the Reporters are synthesizing positive law, or seeking to reform it. We are not contending that ALI should not push for law reform (even though Principles or some other form might provide a preferable and more transparent vehicle for aspirational endeavors), but we do think the objectives and methodology should be clear from the outset. We remain concerned that ALI’s …


Comment On Brewer: Form And Content In Legal Proof (Or Why Everybody Wins - Or At Least Gets A Participation Trophy), Gary S. Lawson Dec 2017

Comment On Brewer: Form And Content In Legal Proof (Or Why Everybody Wins - Or At Least Gets A Participation Trophy), Gary S. Lawson

Faculty Scholarship

In 1980, I was in a Contracts class taught by the incomparable Arthur Leff. It became very clear very quickly that one student in that class was (apart from Professor Leff) the smartest and most interesting person in the room. That person was Scott Brewer. More than three and a half decades later, when I thought about who I would most like to invite to comment on my book Evidence of the Law: Proving Legal Claims, one name immediately shot into my mind: Scott Brewer. He was, as the saying goes, at the very top of my draft board. He …


A Vatcoin Proposal Following On The 2017 Eu Vat Proposals - Mtic, Vatcoin, And Blockchain, Richard Thompson Ainsworth, Musaad Alwohaibi, Michael Cheetham, Camille Tirand Dec 2017

A Vatcoin Proposal Following On The 2017 Eu Vat Proposals - Mtic, Vatcoin, And Blockchain, Richard Thompson Ainsworth, Musaad Alwohaibi, Michael Cheetham, Camille Tirand

Faculty Scholarship

The following proposal for an EU VATCoin was presented at the Digital Tax Transformations Conference, December 18 & 19, 2017 in Vienna, Austria at WU Global Tax Policy Center (WU GTPC) at the Institute for Austrian and International Tax Law of Vienna University of Business and Economics.

The EU Commission has proposed “far-reaching reforms” to solve some of the fraud in the EU VAT. It hopes to capture €50 billion lost annually to MTIC fraud in goods. It hopes to do this without addressing tradable services, a MTIC mutation which by all accounts is running strong.

Fortunately, the Commission is …


Exploring The Meaning Of Experiential Deaning, Peggy Maisel, Margaret Martin Barry, Robert Dinerstein, Phyllis Goldfarb, Linda Morton Nov 2017

Exploring The Meaning Of Experiential Deaning, Peggy Maisel, Margaret Martin Barry, Robert Dinerstein, Phyllis Goldfarb, Linda Morton

Faculty Scholarship

This article explores the position of associate dean of experiential education in law schools across the country and the central role associate deans play in the changing landscape of legal education. Experiential deans have broad responsibility for overseeing law schools’ experiential education programs. Additional responsibilities differ between institutions, but range from leading efforts to comply with new ABA standards to overseeing the integration of experiential education into the broader curriculum. Analyzing survey data collected from associate experiential deans across the country, the authors find the structure, content, and authority of the position is under-developed. The authors make recommendations on how …


Ai And Jobs: The Role Of Demand, James Bessen Nov 2017

Ai And Jobs: The Role Of Demand, James Bessen

Faculty Scholarship

In manufacturing, technology has sharply reduced jobs in recent decades. But before that, for over a century, employment grew, even in industries experiencing rapid technological change. What changed? Demand was highly elastic at first and then became inelastic. The effect of artificial intelligence (AI) on jobs will similarly depend critically on the nature of demand. This paper presents a simple model of demand that accurately predicts the rise and fall of employment in the textile, steel, and automotive industries. This model provides a useful framework for exploring how AI is likely to affect jobs over the next 10 or 20 …


Courts Also Won (Albuquerque) Mayoral Election, Kevin Washburn Nov 2017

Courts Also Won (Albuquerque) Mayoral Election, Kevin Washburn

Faculty Scholarship

In the 2017 Albuquerque mayoral election, one of the candidates sought to make the election a referendum on the New Mexico judiciary and was soundly defeated. In this respect, in addition to candidate and now Mayor-elect Time Keller, the courts also won the election.


The Antitrusting Of Patentability, Saurabh Vishnubhakat Nov 2017

The Antitrusting Of Patentability, Saurabh Vishnubhakat

Faculty Scholarship

Deciding a patent’s validity is costly, and so is deciding it incorrectly. Judges and juries must expend significant resources in order to reach a patent validity determination that is properly informed by the relevant facts. At the same time, patent validity determinations reached quickly and cheaply may conserve resources today while creating future costs. Wrongly preserving an invalid patent can distort the competitive market and enable abuses, such as nuisance litigation. Meanwhile, wrongly striking down a valid patent can undermine incentives for continued investment and commercialization in knowledge assets. Courts facing patent validity issues have begun to strike this balance …


Reducing Transportation Emissions In The Northeast And Mid-Atlantic: Fuel System Considerations, Gabriel Pacyniak, Drew Veysey, James Bradbury Nov 2017

Reducing Transportation Emissions In The Northeast And Mid-Atlantic: Fuel System Considerations, Gabriel Pacyniak, Drew Veysey, James Bradbury

Faculty Scholarship

In support of states interested in learning more about market-based policy options, the Georgetown Climate Center developed Reducing Transportation Emissions in the Northeast and Mid-Atlantic: Fuel System Considerations to explore technical aspects of a possible regional cap-and-invest policy, as an illustrative example of a market-based approach to a multi-state transportation policy. The paper focuses on two subjects: which fuels might be covered under a policy, and which entities in the transportation fuel supply chain might be responsible for reducing emissions.

The recommendations made in this paper are intended to support robust market-based policies that provide flexibility and enable innovation while …


The Gifts Of Athanassios N. Yiannopoulos: Ever To Excel!, David D. Meyer Nov 2017

The Gifts Of Athanassios N. Yiannopoulos: Ever To Excel!, David D. Meyer

Faculty Scholarship

No abstract provided.


Manual On Pro Bono Appeals Programs For State Court Appeals, Verónica C. Gonzales-Zamora Nov 2017

Manual On Pro Bono Appeals Programs For State Court Appeals, Verónica C. Gonzales-Zamora

Faculty Scholarship

Throughout the country, appellate bench, bar, and court staff have designed pro bono programs for state court appeals to help litigants of modest means who cannot afford quality appellate representation. The aim of this manual is to serve as a practical tool for appellate pro bono programs and for the expansion of and cross-pollination between existing programs. The manual provides a basic framework and then provides specific information on programs in 24 states.

Veronica Gonzales-Zamora worked on the sections covering Arizona, Colorado, Massachusetts, Nevada, New Mexico, Virginia, and Washington D.C.


Florida's "Cruises To Nowhere" Industry: Current Status And Future Prospects, Robert Jarvis Nov 2017

Florida's "Cruises To Nowhere" Industry: Current Status And Future Prospects, Robert Jarvis

Faculty Scholarship

Obtaining Reliable Information about the "cruises to nowhere" CTN industry in Florida always has been difficult.


The Admissibility Of Confessions Under Israeli Law: Procedural And Substantive Differences Between The “Free And Voluntary” Standard And The Judicial Exclusionary Rule For Unlawfully Obtained Evidence, Binyamin Blum, Yoram Rabin, Barak Ariel Nov 2017

The Admissibility Of Confessions Under Israeli Law: Procedural And Substantive Differences Between The “Free And Voluntary” Standard And The Judicial Exclusionary Rule For Unlawfully Obtained Evidence, Binyamin Blum, Yoram Rabin, Barak Ariel

Faculty Scholarship

No abstract provided.


Introduction: Perceived Legitimacy And The State Judiciary, G. Alexander Nunn Nov 2017

Introduction: Perceived Legitimacy And The State Judiciary, G. Alexander Nunn

Faculty Scholarship

Professor Nunn provides an introduction for the Symposium: The Least Understood Branch: The Demands and Challenges of the State Judiciary.


To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez Nov 2017

To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez

Faculty Scholarship

When a government official defends a case before an international court, whose interest should he/she be representing? In today’s era of expanding international treaties that give standing to individual claimants, international courts review the actions of different government actors through the yardsticks of international law. The state is not unitary; alleged victims can bring international claims against various government entities including the executive, the legislature, the administrative branch, and the judiciary. Yet, the international legal defense of government actions is in the hands of the executive power. This paper focuses on the consequences of this centralization for inter-branch politics. It …


Thinking About The Trans-Pacific Partnership (And A Mega-Regional Agreement On Life Support), Peter K. Yu Nov 2017

Thinking About The Trans-Pacific Partnership (And A Mega-Regional Agreement On Life Support), Peter K. Yu

Faculty Scholarship

Commissioned for a conference on the Trans-Pacific Partnership (TPP) at VNU University of Economics & Law in Vietnam, this article provides a retrospective analysis of the partnership. It begins with a historical overview of the TPP. The article then examines the partnership’s status in light of the United States' withdrawal and contends that the TPP will exert considerable influence regardless of whether it is dead or alive.

The second half of this article identifies three interrelated but distinct aspects of the TPP: (1) as a TRIPS-plus intellectual property agreement; (2) as a regional investment agreement; and (3) as a plurilateral …


Decomposing The “Tacit Knowledge Problem:” Codification Of Knowledge And Access In Crispr Gene-Editing, Neil Thompson, Samantha Zyontz Nov 2017

Decomposing The “Tacit Knowledge Problem:” Codification Of Knowledge And Access In Crispr Gene-Editing, Neil Thompson, Samantha Zyontz

Faculty Scholarship

No abstract provided.


Equality, Sovereignty, And The Family In Morales-Santana, Kristin Collins Nov 2017

Equality, Sovereignty, And The Family In Morales-Santana, Kristin Collins

Faculty Scholarship

In Sessions v. Morales-Santana, 3 the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.4 The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.5 When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.6 Over …


The New York Times Interviews Kastenberg On The History Of The Military Charge: Misbehavior Before The Enemy, Joshua E. Kastenberg Oct 2017

The New York Times Interviews Kastenberg On The History Of The Military Charge: Misbehavior Before The Enemy, Joshua E. Kastenberg

Faculty Scholarship

The New York Times interviews Joshua Kastenberg on the Military Charge, Misbehavior Before the Enemy, regarding a Navy Seal. Kastenberg provides history and context for previous uses of this charge.


Restating International Torts: Problems Of Process And Substance In The Ali's Third Restatement Of Torts, Nancy J. Moore Oct 2017

Restating International Torts: Problems Of Process And Substance In The Ali's Third Restatement Of Torts, Nancy J. Moore

Faculty Scholarship

The American Law Institute’s Third Restatement of Torts was initially conceived as a series of separate projects, each with its own reporters. From 1998 through 2010, the ALI completed and published three different segments: Products Liability, Apportionment of Liability, and Liability for Physical and Emotional Harm. Initially, the ALI did not intend to restate the intentional torts, believing that the Second Restatement’s treatment of these torts was clear and largely authoritative. It was ultimately persuaded that there were numerous unresolved issues that needed to be addressed. As a result, it authorized a new project on Intentional Torts---a project that is …


The Law And The Human, Laura Spitz Oct 2017

The Law And The Human, Laura Spitz

Faculty Scholarship

The law plays a role in the social construction of what it means to be human. The stakes are high, especially for those, like the Indigenous Peoples of North America, whose bodies and cultures have been both humanized and dehumanized through law.

Listen on Soundcloud.

Full hyperlink: https://soundcloud.com/cornellcas/the-law-and-the-human


The Technology Requirements Of The First Electronic Monitoring Agreement In Us For Zappers, Phantomware, And Other Sales Suppression Devices, Richard Thompson Ainsworth, Robert Chicoine Oct 2017

The Technology Requirements Of The First Electronic Monitoring Agreement In Us For Zappers, Phantomware, And Other Sales Suppression Devices, Richard Thompson Ainsworth, Robert Chicoine

Faculty Scholarship

On August 30, 2017, a plea was entered in the case of case of State of Washington v. Wong, Wash. Super. Ct., No. 16-1-00179-0, and as a result the first electronic monitoring agreement of sales transactions in the US (the “Monitoring Agreement”) was legislatively imposed on a retail business.

The Monitoring Agreement was negotiated between the State of Washington Department of Revenue (the “WA DOR”) and the taxpayer over a period of several months and is comprised of two parts: the basic agreement, which covered the obligations and rights of the parties, and an appendix, which defines the scope of …