Law Commons^™

The New Orleans Transformation: Foster Care As A Rare, Time-Limited Intervention, Joshua Gupta-Kagan, Christopher Church, Melissa Carter, Vivek S. Sankaran, Andrew Barclay

Faculty Scholarship

This Article offers an initial evaluation of one reformed child protection system — New Orleans, Louisiana — and describes how a system that dramatically reduces the number of children in foster care might look. This system shows how a major metropolitan area can shrink its daily population of children in foster care to the low double digits, which would correspond to a reduction of the national daily foster care population by about 360,000. This reduction was mostly due to sending children home — usually to the homes from which they were removed — within days or weeks of removal, raising …

Patent's New Salience, Janet Freilich

Faculty Scholarship

The vast majority of patents do not matter. They are almost never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has a tremendous impact on patent policy. In particular, while there are many aspects of patent law that are potentially troubling—including grants of unmerited patents, high transaction costs in obtaining necessary patent licenses, and patents’ potential to block innovation and hinder economic growth—these problems may be insignificant in practice because patents are under-enforced and routinely infringed without consequence.

This Article argues that technological developments are greatly increasing the …

Unfair Competition Under The Usmca: The Case Of Migrant Workers On Us Farms, Jennifer Gordon

Faculty Scholarship

No abstract provided.

Tax Benefits And Fairness In K–12 Education, Linda Sugin

Faculty Scholarship

This Article examines the tax law’s subsidies for inequality and segregation in primary and secondary education, analyzing the federal charitable deduction and education savings plans, and state tax credits for education. It argues that the tax system diverts funds from traditional public education into private education, fostering economic, racial, religious, and political separation. The tax law also operates to increase resource inequality within public education by subsidizing schools that affluent children attend. In a novel analysis, the Article contends that the jurisprudence around the charitable deduction for education—though longstanding—is legally incoherent, and argues that no deduction should ever be allowed …

`Representing And Being Represented In Turn’ – A Symposium On Hélène Landemore’S Open Democracy, Ethan J. Leib

Faculty Scholarship

No abstract provided.

When Donor Meets Purpose, Atinuke O. Adediran

Faculty Scholarship

This Essay addresses a gap in law and the Restatement of the Law Charitable Nonproít Organizations regarding the relationship between a charitable nonproít’s donors and its purpose. I argue that charitable nonproíts can align their purposes with the personal or professional identities of their donors, and it may be in the best interest of some charities to do so. Charities whose purposes are to address racial or economic inequality should seriously consider aligning their donor identity with their purpose as a way of improving their legitimacy in the communities they serve, and to reach previously untapped sources of funding.

Civil Justice At The Crossroads: Should Courts Authorize Nonlawyers To Practice Law?, Bruce A. Green

Faculty Scholarship

No abstract provided.

Measuring Follow-On Innovation, Janet Freilich, Sepehr Shahshahani

Faculty Scholarship

How patents affect follow-on innovation is a key question for the patent system. We disaggregate follow-on innovation into activities that infringe patents and others that do not infringe but can be indirectly affected by patents. Replicating an important study using our disaggregated measure, we find that 87 percent of followon innovation is not patent infringement. Supplementing the study’s empirical strategy with data on patent expiration dates, we find that gene patents which are not close to expiration cause an increase in noninfringing follow-on research, but the effect disappears for patents close to expiration. Our nuanced measure helps better identify the …

Black Liberty In Emergency, Norrinda Brown

Faculty Scholarship

COVID-19 pandemic orders were weaponized by state and local governments in Black neighborhoods, often through violent acts of the police. This revealed an intersection of three centuries-old patterns— criminalizing Black movement, quarantining racial minorities in public health crises, and segregation. The geographic borders of the most restrictive pandemic order enforcement were nearly identical to the borders of highly segregated, historically Black neighborhoods.

The right to free movement is fundamental and, as a rule, cannot be impeded by the state. But the jurisprudence around state power in public health emergencies, deriving from the 1905 case Jacobson v. Massachusetts, has practically resulted …

Megalopolis Bound?, Nestor M. Davidson

Faculty Scholarship

Since ancient Greece’s “megalopolis,” the concept of vast cities has loomed in the urban discourse. A century ago, English planner Patrick Geddes warned about a growing imbalance between traditional society and ever-larger conurbations, an anxiety that Lewis Mumford later invoked to predict that urban hubris would inevitably collapse of its own weight. In 1961, by contrast, the geographer Jean Gottman surveyed the interconnected agglomeration stretching from Washington, D.C. up the east coast of the United States to the cities of southern New England, and more optimistically highlighted this new urban form’s governance potential.

Today, the question is not whether urbanism …

Class Action Settlements As Contracts?, Howard M. Erichson, Ethan J. Leib

Faculty Scholarship

Courts routinely declare that class action settlement agreements are contracts, and when called on to interpret and enforce such settlements, courts invoke principles of contract law. But is a class action settlement really a contract? The relevant agreement in a class settlement is struck between a defendant and class counsel or class representatives; it is not an agreement with class members. What binds class members to the deal is not that they agreed to it, nor even that they agreed to be represented, but rather that a judge found the matter suitable for class treatment and entered judgment approving the …

Testing Political Antitrust, Nolan Mccarty, Sepehr Shahshahani

Faculty Scholarship

Observers fear that large corporations have amassed too much political power. The central fact that animates this concern is growing economic concentration—the rise in the market share of a small number of top firms. These firms are thought to use their enhanced economic power to capture the government and undermine democracy by lobbying. Many scholars and activists have urged the use of antitrust law to combat this threat, leading a “political antitrust” movement that advocates explicit incorporation of political considerations into antitrust enforcement. Political antitrust has sparked great debate not only in academic circles but also among policymakers.

But the …

Tragedy Of The Digital Commons, Chinmayi Sharma

Faculty Scholarship

Google, iPhones, the national power grid, surgical operating rooms, baby monitors, surveillance technology, and wastewater management systems all run on open-source software. Open-source software, or software that is free and publicly available, powers our day-to-day lives. As a resource, it defies economic logic; it is built by developers, many of whom are volunteers, who build projects with the altruistic intention of donating them to the digital commons. Developers use it because it saves time and money and promotes innovation. Its benefits have led to its ubiquity and indispensability. Today, over ninety-seven percent of all software uses open source. Without it, …

Depoliticizing Federal Prosecution, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

There is broad agreement that federal prosecutors should not use their power to pursue partisan political objectives, but there is stark disagreement about how to prevent them from abusing their power in this way. Geoffrey Berman, a former U.S. Attorney for the Southern District of New York, recently argued that U.S. Attorneys should have complete autonomy and independence from the Attorney General and administration. Attorney General Bill Barr, in contrast, has insisted that Attorneys General should have full control over prosecutors so the administration can be held politically accountable. Neither view fully addresses the problem. Barr minimizes the significant risk …

Democracy And Law In The New American Antitrust, Zephyr Teachout

Faculty Scholarship

There is an inverse relationship between those who argue that judges, guided by economists, are well suited to the task of determining the ultimate social value of an individual merger or business practice, and those who believe that antitrust law plays a central role in the protection of human freedom and democracy.

The more one is concerned with private sector threats to freedom, the more one treats antitrust as a public enterprise and seeks simple, publicly legible rules, with less discretion for judges, and a limited role for case-specific economic analysis. Conversely, if one is relatively unconcerned with democratic threats …

Sherman V. Department Of Public Safety: Institutional Responsibility For Sexual Assault, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

This article addresses the intersection of three important topics: sexual assault, police misconduct, and employer liability for employee torts. As to the last of these, while there have long been debates among jurists in the U.S. concerning the proper scope of respondeat superior liability, courts have mostly adhered to an approach that focuses on whether the employee acted for the purpose of serving the employer’s interests. The narrowness of this purpose-based test, as compared to available alternatives, makes it imperative for lawyers, judges, and scholars to be attentive to other, less well-known, bases for employer liability. In Sherman v Department …

Getting The Law Right: An Essay In Honor Of Aaron Twerski, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

Written in honor of the great torts scholar Aaron Twerski, this article critically analyzes disturbing developments in New York negligence law as it applies to police who injure innocent bystanders. With the New York Court of Appeals’ 2022 decision in Ferreira v. City of Binghamton as a focal point, it argues that Ferreira and other contemporary decisions have largely betrayed the promise of the 1929 Court of Claims Act, which waived state and municipal immunity for police torts. While courts may be warranted in recognizing certain limits on police negligence liability that do not apply to private actors, the current …

Family Law For The One-Hundred-Year Life, Naomi R. Cahn, Clare Huntington, Elizabeth Scott

Faculty Scholarship

Family law is for young people. To facilitate child rearing and help spouses pool resources over a lifetime, the law obligates parents to minor children and spouses to each other. Family law’s presumption of young, financially interdependent, conjugal couples raising children privileges one family form—marriage—and centers the dependency needs of children.

This age myopia fundamentally fails older adults. Families are essential to flourishing in the last third of life, but the legal system offers neither the family forms many older adults want nor the support of family care older adults need. Racial and economic inequities, accumulated across lifetimes, exacerbate these …

Disclosing Corporate Diversity, Atinuke O. Adediran

Faculty Scholarship

This Article’s central claim is that disclosures can be used instrumentally to increase diversity in corporate America in terms of race, gender, sexual orientation, and disability. Until recently, scholars and policymakers have underappreciated this possibility because diversity was often omitted from the larger Environmental, Social, and Governance (“ESG”) disclosures context, even though, as this Article empirically shows, public companies make diversity disclosures in that context.

Diversity disclosures are important not only for shareholders’ interests in transparency, but also for the benefit of other stakeholders, including employees, customers, and the communities in which companies operate, who want to know whether companies …

A Fiduciary Theory Of Progressive Prosecution, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Progressive prosecutors differ from their more traditional counterparts primarily in the way in which they make decisions. They tend to bind their discretion by announcing categorical policies rather than making fact-based decisions case by case. This Article catalogs the unusual degree of pushback progressive prosecutors have encountered from the public, legislatures, courts, police, and their own subordinate prosecutors. Drawing on fiduciary theory, it explains this reaction as a response to progressive prosecutors’ abdication of their fiduciary role. As a public fiduciary, prosecutors are entrusted with protecting the public’s abstract interest in justice, and an integral part of this role is …

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

Faculty Scholarship

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Camey v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware's requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue "will likely be raised again." The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state's "nonpartisan" …

Cryptic Patent Reform Through The Inflation Reduction Act, Arti K. Rai, Rachel E. Sachs, W. Nicholson Price Ii

Faculty Scholarship

If a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (“IRA”) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to …

Social Cognitive Processes Explain Bias In Juror Decisions, Jaime J. Castrellon, Shabnam Hakimi, Jacob M. Parelman, Lun Yin, Jonathan R. Law, Jesse A.G. Skene, David A. Ball, Artemis Malekpour, Donald H. Beskind, Neil Vidmar, John M. Pearson, J. H. Pate Skene, R. Mckell Carter

Faculty Scholarship

Jury decisions are among the most consequential social decisions in which bias plays a notable role. While courts take measures to reduce the influence of non-evidentiary factors, jurors may still incorporate biases into their decisions. One common bias, crime-type bias, is the extent to which the perceived strength of a prosecutor’s case depends on the severity of the crime. Moral judgment, affect and social cognition have been proposed as core processes underlying this and other biases. Behavioral evidence alone has been insufficient to distinguish these explanations. To identify the mechanism underlying crime-type bias, we collected functional magnetic resonance imaging patterns …

Corporate Governance And Risk-Taking: A Statistical Approach, Steven L. Schwarcz

Faculty Scholarship

Because prudent corporate governance often requires managers to take risks based on statistically expected outcomes, corporate failures that have a small but finite chance of occurring cannot always be prevented. This Article makes three related claims about risk-taking in corporate governance.

This Article’s first claim is that managers should not automatically be presumed to be at fault for corporate failures that result from risk-taking decisions based on statistical methodologies that reasonably justify the decisions ex ante. Conceptually, the business judgment rule should protect corporate managers for engaging in a reasonable decision-making process, including one that is statistically based. Jurisdictionally, however, …

Next-Generation Securitization: Nfts, Tokenization, And The Monetization Of ‘Things’, Steven L. Schwarcz

Faculty Scholarship

For decades, businesses have used securitization to monetize assets by selling to investors interests in the assets’ future value. Traditionally, securitization has monetized so-called financial assets, which generate cash flow to pay the investors. That payment source, coupled with the ability of investors to resell their interests, can create a highly liquid and attractive investment. Even so, securities laws generally restrict these investments to sophisticated and institutional investors.

In recent years, securitization has spawned a new generation of transactions that monetize nonfinancial assets and other rights that do not ordinarily generate cash flow, such as art, collectible cars, access to …

What We Talk About When We Talk About Tax Shelters, Lawrence A. Zelenak

Faculty Scholarship

This Response to Jonathan H. Choi’s recent Article, Beyond Purposivism in Tax Law, endorses Choi’s preference for purposivist approaches to the interpretation of tax statutes, but notes and explains three areas of disagreement. First, this Response proposes a different definition of a tax shelter, under which the “puzzle” motivating Choi’s analysis disappears. Second, this Response explains how an inductive approach to tax shelter analysis can produce important insights likely to be missed by Choi’s preferred deductive approach. Finally, this Response criticizes Choi’s conclusion that “the normative [policy] preferences of tax experts” should prevail over legislative intent; this Response instead urges …

No Peace Without Punishment? Reintegrating Islamic State “Collaborators” In Iraq, Mara R. Revkin, Kristen Kao

Faculty Scholarship

How does variation in the severity of punishment affect public opinion toward the reintegration of former enemy “collaborators” after war? We study this question in the context of Iraq where the Islamic State, an armed rebel group, captured and governed a population of more than five million Iraqi citizens between 2014 and 2017. Building upon extensive fieldwork and interviews in Iraq, we designed a survey experiment that randomly varied the severity of sentences in hypothetical scenarios of civilians who supported the Islamic State in non-violent roles (e.g., cleaners, cooks, and wives of fighters). The experiment allows us to estimate the …

Climate Change Adaptation And The Protection Of Indigenous Peoples’ Land & Resources In Latin America, Terrence Neal

Faculty Scholarship

No abstract provided.

Toxic Masculinity And Gender-Based Gun Violence In America: A Way Forward, Hayley N. Lawrence

Faculty Scholarship

No abstract provided.

Plea Tracking In The Durham County District Attorney’S Office: One-Year Report, Kevin Dahaghi, Catherine Grodensky, Elizabeth Gifford, Brandon L. Garrett, William Crozier, Adele Quigley-Mcbride, Jennifer Teitcher, Lauren Clatch

Faculty Scholarship

No abstract provided.