Law Commons^™

Race, Gatekeeping, Magical Words, And The Rules Of Evidence, I. Bennett Capers

Faculty Scholarship

Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence—what is deemed relevant, what is deemed trustworthy—to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.

One area that has escaped racialized scrutiny—at least of the type I am interested in—is that of expert testimony. In this brief Essay written for the Vanderbilt Law Review Symposium, Reimagining the Rules of Evidence at …

The Uncertain Future Of Restorative Justice: Anti-Woke Legislation, Retrenchment And Politics Of The Right, Thalia Gonzalez, Mara Schiff

Faculty Scholarship

As diverse forms of anti-democratic and anti-inclusionary politics escalate in the United States, public education is increasingly a site for retrenchment and contestation with targeted efforts to silence and erase civil rights victories for equity and access. Addressing a critical, yet unattended issue at the intersection of education law and policy and civil rights, this Article joins with the growing discourse interrogating the “parental rights” movement and racially regressive legislation. Employing a case study analysis of social movement activism and education policy legislation from 2018–2023 in Florida, it aims to provoke critical praxis emanating from essential inquiry— what is the …

Rights Violations As Punishment, Kate Weisburd

Faculty Scholarship

Is punishment generally exempt from the Constitution? That is, can the deprivation of basic constitutional rights—such as the rights to marry, bear children, worship, consult a lawyer, and protest—be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not “cruel and unusual” under the Eighth Amendment? On one hand, such state intrusion on fundamental rights would seem unconstitutional. On the other hand, such intrusions are often less harsh than the restriction of rights inherent in prison. If a judge can sentence someone to life in prison, how can a judge not …

Athletic Scholarships And Title Ix: Compliance Trends And Context, Erin E. Buzuvis

Faculty Scholarship

This Article evaluates enforcement practices and compliance trends related to Title IX's requirement for gender equity in the distribution of athletic financial aid. It confirms that universities in the most competitive athletic programs continue to underfund women's athletic scholarships relative to the proportionality standard required by law. It also confirms that the under-allocation of women's athletic opportunities at universities across divisions results in additional disparities in scholarship funding that is not captured by an analysis of compliance. This Article concludes with suggestions that the government clarifies its expectations and enforcement priorities. It further calls for regulators, scholars, and advocates to …

Data Property, Christina Mulligan, James Grimmelmann

Faculty Scholarship

No abstract provided.

Federalism, The Law Of Nations, And The Excluded Middle, Ryan Williams

Faculty Scholarship

No abstract provided.

The Ultimate Green Playbook For Condos And Coops, Robert B. Sobelman

Faculty Scholarship

No abstract provided.

The Case For Pausing Any Immediate Embrace Of The Social Inflation Argument For Legal System Reforms, Kenneth S. Klein

Faculty Scholarship

This paper brings a critical eye to the current conversation about "social inflation," reaching the conclusion that the current calls for legal system reform--whether that be controls on attorney advertising, clamping down on litigation financing, revisiting of fee recovery rules, or other similar reform proposals--currently lack the empirical support and analytical comprehensiveness for. regulators and legislators to act with confidence that the requested reforms will do more good than harm. In a variety of States, insurance premiums are rising faster than general inflation, some insurers are becoming insolvent, and some insurers are leaving markets entirely. Insurers are pointing to social …

Trauma-Informed (As A Matter Of) Course, Natalie Netzel

Faculty Scholarship

Law students are impacted by trauma and law professors are in a position to help by adopting a trauma-informed approach as a matter of universal precaution. The 2021 Survey of Law Student Well-Being (“SLSWB”) revealed that over twenty percent of responding law students meet criteria that indicate they should be evaluated for post-traumatic stress disorder (“PTSD”). The study also revealed that almost fifty percent of responding students reported an important motivation for attending law school was experiencing a trauma or injustice. Put differently, law schools are full of law students who have experienced trauma, many of whom are actively struggling …

Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker

Faculty Scholarship

Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the field of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

In our contribution to this Ensuring Democratic Accountability in the Administrative State Symposium, we make a modest intervention …

Bail And Mental Illness, Samuel Wiseman

Faculty Scholarship

In many parts of the United States, the bail system is strikingly unfair, imposing burdensome, and often unmeetable, financial conditions on pretrial liberty even for low-risk defendants. Reforms that reduce or eliminate cash bail and lower pretrial detention rates have made progress in recent years, but now face growing opposition even in generally progressive jurisdictions such as San Francisco and New York City. One source of this opposition is rising concern about crime—particularly crime associated with the unhoused, who disproportionately suffer from mental illness, including substance abuse disorder. This is not a coincidence, as one effect of a cash-bail system, …

Taking Office Hours On The Road: How Pop-Up Help Desks Help Students, Mandee Baumer

Faculty Scholarship

No abstract provided.

To Limit Air Pollution's Risks: A Law/Science Success Story, Jamison E. Colburn

Faculty Scholarship

This is the first major study of the National Ambient Air Quality Standards (NAAQS) in a generation. This study focuses on a unique co-evolution of science and law over more than a half-century of development. Our NAAQSs can be found everywhere from your phone’s air quality index to the trends of cardiovascular and respiratory disease in America. Yet no one has studied the ways in which law and the science of air pollution have reciprocally determined each other through them. Through a study of 26 reviews across seven presidencies and 21 reported opinions adjudicating 106 petitions challenging those reviews/revisions, this …

The Microsoft Litigation’S Lessons For United States V. Google, John E. Lopatka, William H. Page

Faculty Scholarship

The United States Department of Justice (“DOJ”) and three overlapping groups of states have filed federal antitrust cases alleging Google has monopolized internet search, search advertising, internet advertising technologies, and app distribution on Android phones. In this Article, we focus on the DOJ’s claims that Google has used contracts with tech firms that distribute Google’s search services in order to exclude rival search providers and thus to monopolize the markets for search and search advertising—the two sides of Google’s search platform. The primary mechanisms of exclusion, according to the DOJ, are the many contracts Google has used to secure its …

Stalling A Norm's Trajectory?: Revisiting U.N. Security Council Resolution 1973 On Libya And Its Ramifications For The Principle Of The Responsibility To Protect, Tiyanjana Maluwa

Faculty Scholarship

No abstract provided.

The Active Vices, Benjamin Johnson

Faculty Scholarship

Alexander Bickel's pathbreaking idea of the "passive virtues" attempted to explain and justify the Supreme Court's power to control its docket. He proposed that the Court's extensive discretion allows it to remain passive and avoid politically perilous cases, preserving its institutional legitimacy until such time as durable principles are at stake. This theory remains one of the most influential ideas in legal scholarship, but is dangerously incomplete. Discretion is a double-edged sword, empowering the Court not only to avoid politics, but also to engage in it. In other words, a policy-motivated Court can use its agenda-setting power to target highly …

Private Enforcement In The States, Diego A. Zambrano, Neel Guha, Austin Peters, Jeffrey Xia

Faculty Scholarship

Scholarship on U.S. litigation and civil procedure has scarcely studied the role of private enforcement in the states. Over the past two decades, scholars have established that, almost uniquely in the world, the U.S. often relies on private parties rather than administrative agencies to enforce important statutory provisions. Take your pick of any area in American governance, and you will find private rights of action: environmental law, civil rights, employment discrimination, antitrust, consumer protection, business competition, securities fraud, and so on. In each of these areas, Congress has deliberately empowered private plaintiffs instead of, or in addition to, government agencies. …

China In The Wto Twenty Years On: How To Mend A Broken Relationship?, Petros C. Mavroidis, André Sapir

Faculty Scholarship

China’s participation in the World Trade Organization (WTO) has been a rollercoaster of milestones and frictions. China has emerged as a leading trading nation, which has contributed to the expansion of world trade. Some of its trading partners, however, and most vocally the United States, complain that China has reached its new status by eluding its WTO commitments. Under President Trump, the United States reacted strongly against China, almost bringing the WTO(but not China!) to its knees. These actions have been criticized in different ways: Some underline their unilateral character (and the ensuing legal issues they raise), whereas others focus …

The Rise And Fall Of A Reproductive Right: Dobbs V. Jackson Women’S Health Organization, Carol Sanger

Faculty Scholarship

Although the phrase “Post-Roe Era” is still used by those who want to underscore the loss wrought last June by Dobbs v. Jackson Women’s Health Organization, it is only a matter of time before the present state of reproductive constitutionalism solidifies into the more authoritarian “Dobbs Era.” In these early days of transition, states are still figuring out what they want the legal status of abortion to be, ever since Dobbs overruled both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, thus tossing the issue of abortion’s legality back to the states for …

Family Moves And The Future Of Public Education, Elizabeth Chu, James S. Liebman, Madeleine Sims, Tim Wang

Faculty Scholarship

State laws compel school-aged children to attend school while fully funding only public schools. Especially following the COVID-19 pandemic, this arrangement is under attack — from some for unconstitutionally coercing families to expose their children to non-neutral values to which they object and from others for ignoring the developmental needs of students, particularly students of color and in poverty whom public schools have long underserved. This Article argues that fully subsidized public education is constitutional as long as public schools fulfill their mission to model and commit people to liberal democratic values of tolerance and respect for all persons as …

The Uncitral Model Law At The Us State Level, George A. Bermann

Faculty Scholarship

The arbitration law of the United States remains, regrettably, the Federal Arbitration Act (FAA), enacted in 1925 and essentially unchanged. Despite its age, it has been significantly amended only once, in order to transpose into law the New York and Panama Conventions. Otherwise, it reads just as it did when enacted almost a century ago. Given its age and the remarkable developments in the law of arbitration over past decades, the FAA unsurprisingly fails to address a very large number of issues that have arisen in arbitral proceedings and judicial decisions on arbitration in the many intervening years. Even the …

Cardozo And Uncertainty In The Common Law, Shyamkrishna Balganesh

Faculty Scholarship

Benjamin Cardozo’s The Nature of the Judicial Process is best understood as one of the most successful contributions to this category of work defending the common law on the basis of its process. In the book, Cardozo offers a spirited and principled defense of the judicial process, all in an effort to highlight the manner in which judges manage the seemingly pervasive uncertainty of the common law method in the discharge of their duties. All the same, it is obvious that he considered the project to be necessarily incomplete. Just a few years after the publication of the Judicial Process …

Section 5 In Action: Reinvigorating The Ftc Act And The Rule Of Law, Lina M. Khan

Faculty Scholarship

The Federal Trade Commission Act of 1914 didn’t just create a new agency. It created new law for that agency to enforce. The heart of that law is Section 5, which provides that ‘unfair methods of competition in or affecting commerce’ are ‘hereby declared unlawful’. In passing this law, Congress also tasked the FTC with identifying the range of methods of competition that qualify as unfair, since lawmakers recognized they could not specify them all prospectively.

This is a straightforward reading of the statute, and yet it is somewhat controversial. There is a school of thought that considers Section 5’s …

Pragmatic Family Law, Clare Huntington

Faculty Scholarship

Family law is a central battleground for a polarized America, with seemingly endless conflict over abortion, parental control of school curricula, gender-affirming health care for children, and similar flash points. This is hardly surprising for an area of law that implicates fundamental concerns about equality, bodily autonomy, sexual liberty, gender norms, parenting, and religion. Polarization poses significant risks to children and families, but centering contestation obscures another important reality. In many areas of doctrine and policy, family law has managed to avoid polarization, even for politically and socially combustible issues. Instead, states are converging on similar rules and policies, working …

Survey Of 2022 Cases Under State Environmental Quality Review Act, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The courts in New York issued 43 opinions in 2022 under the State Environmental Quality Review Act (SEQRA). Of these, the largest number — 27 — upheld agency decisions not to prepare an environmental impact statement (EIS), and eight overturned such decisions. Six cases upheld actions that had been the subject of an EIS; none overturned such actions. Two cases can’t be classified in this fashion.

These numbers are in line with the longstanding pattern that a project’s greatest litigation vulnerability under SEQRA is the failure to prepare an EIS; if an EIS has been prepared, very rarely will the …

Contract Production In M&A Markets, Stephen J. Choi, Mitu Gulati, Matthew Jennejohn, Robert E. Scott

Faculty Scholarship

Contract scholarship has devoted considerable attention to how contract terms are designed to incentivize parties to fulfill their obligations. Less attention has been paid to the production of contracts and the tradeoffs between using boilerplate terms and designing bespoke provisions. In thick markets everyone uses the standard form despite the known drawbacks of boilerplate. But in thinner markets, such as the private deal M&A world, parties trade off costs and benefits of using standard provisions and customizing clauses. This Article reports on a case study of contract production in the M&A markets. We find evidence of an informal information network …

Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee

Faculty Scholarship

Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …

Red White And Blue – And Also Green: How Energy Policy Can Protect Both National Security And The Environment, David M. Schizer

Faculty Scholarship

Too often, energy policy protects the environment while neglecting national security, or vice versa. Since each goal is critical, this Article shows how to advance both at the same time.

For national security, the key is to avoid depending on the wrong suppliers. If they are vulnerable to attack (like some Middle Eastern producers), they need to be defended. Or, if they are themselves geopolitical threats (like Russia and Iran), their energy exports fund harmful conduct. This Article breaks new ground in showing why suppliers tend to be insecure or menacing: authoritarian regimes — which are more likely to pose …

Rolling Back Transparency In China's Courts, Benjamin L. Liebman, Rachel E. Stern, Xiaohan Wu, Margaret Roberts

Faculty Scholarship

Despite a burgeoning conversation about the centrality of information management to governments, scholars are only just beginning to address the role of legal information in sustaining authoritarian rule. This Essay presents a case study showing how legal information can be manipulated: through the deletion of previously published cases from China’s online public database of court decisions. Using our own dataset of all 42 million cases made public in China between January 1, 2014, and September 2, 2018, we examine the recent deletion of criminal cases from the China Judgements Online website. We find that the deletion of cases likely results …

When Judges Were Enjoined: Text And Tradition In The Federal Review Of State Judicial Action, Alexandra Nickerson, Kellen R. Funk

Faculty Scholarship

It is virtually a tenet of modern federal jurisdiction that judges, at least when they are acting as judges, are inappropriate defendants in civil suits. Yet on rare but salient occasions, state judges might be the sole or primary party responsible for violating the constitutional rights of citizens, for instance by imposing excessive bail or by opening their courtrooms to oppressive private suits like those under Texas’s Senate Bill 8 bounty regime. In such cases, injunctive relief against judicial officers may be the only or most effective remedy against constitutional violations, but federal courts from the trial level up to …