Law Commons^™

Raising Up The Work Of (S)Hero Lawyers, Rachel A. Van Cleave

Publications

No abstract provided.

Understaffed And Overworked: Poor Working Conditions And Quality Of Care In Residential Care Facilities For The Elderly, Hina B. Shah

Publications

The United States is experiencing unprecedented growth in its elderly population. As Americans live longer and cope with chronic health conditions, the need for long term services and support (LTSS) has increased. The vast majority of elderly persons need assistance with activities of daily living (ADL) and instrumental activities of daily living (IADL) due to physical and mental impairments. LTSS are provided in a continuum of care from the individual’s home to institutional settings. There is a range of options from highly regulated skilled nursing facilities, also called nursing homes to residential care facilities for the elderly (RCFE), also called …

Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes

Publications

This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve …

Introducing Govinfo: A New Source For Federal Government Documents Online, Erik Beck

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No abstract provided.

Checking The Government’S Deception Through Public Employee Speech, Helen Norton

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No abstract provided.

Rules For Digital Radicals, Scott Skinner-Thompson

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No abstract provided.

Government Speech And The War On Terror, Helen Norton

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The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's role as …

Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, Margot E. Kaminski

Publications

Article III standing is difficult to achieve in the context of data security and data privacy claims. Injury in fact must be "concrete," "particularized," and "actual or imminent"--all characteristics that are challenging to meet with information harms. This Article suggests looking to an unusual source for clarification on privacy and standing: recent national security surveillance litigation. There we can find significant discussions of what rises to the level of Article III injury in fact. The answers may be surprising: the interception of sensitive information; the seizure of less sensitive information and housing of it in a database for analysis; and …

Damage To Fisheries By Dams: The Interplay Between International Water Law And International Fisheries Law, Paul Stanton Kibel

Publications

Following the introduction, Part One documents the effects of on-stream dams on fisheries, aquatic habitat and fishing-dependent communities. In Part Two, the Article examines how principles from international fisheries law (which has traditionally focused more on ocean fisheries than freshwater fisheries) apply in the transboundary river context. Part Three then identifies the rights of upstream/downstream nations under international water law pertaining to the impoundment and release of water from on-stream dams on waterways where fisheries are present. Next, in Part Four, the Article considers how international environmental impact assessment obligations relate to the construction and operation of on-stream dams. Finally, …

How Much Is Police Brutality Costing America?, Eleanor Lumsden

Publications

The criminal law of the United States fails to stop the unlawful killing of minorities by law enforcement. In fact, it was never meant to do so. Civil tort law is also unequal to the task. The consequences of not correcting these legal failures are far-reaching for the United States and for our neighbors, and have so far been underreported. This article explores the direct and indirect costs of these failings, positive measures already underway, and makes further sugges-tions for reform.

Going Native: Can Consumers Recognize Native Advertising? Does It Matter?, David Franklyn, David A. Hyman, Calla Yee, Mohammad Rahmati

Publications

Native advertising, which matches the look and feel of unpaid news and editorials, has exploded online. The Federal Trade Commission has long required advertising to be clearly and conspicuously labeled, and it recently reiterated that these requirements apply to native advertising. We explore whether respondents can distinguish native advertising and "regular" ads from unpaid content, using 16 native ads, 5 '"regular" ads, and 8 examples of news/editorial content, drawn from multiple sources and platforms. Overall, only 37% of respondents thought that the tested examples of native advertising were paid content, compared to 81% for "regular" advertising, with variation by platform, …

Venture Capital Contract Design: An Empirical Analysis Of The Connection Between Bargaining Power And Venture Financing Contract Terms, Spencer Williams

Publications

This Article presents an empirical analysis of the connection between bargaining power and contract design using an original dataset of over 5,500 equity and debt venture financings from 2004–2015. Using the total supply of venture capital in the U.S. as a measure of relative bargaining power between entrepreneurs and investors, this Article finds that venture capital supply has a statistically significant relationship with price and non-price terms in both equity and debt financings. These results contradict one of three theoretical accounts of bargaining power and support the other two.

A Comparative Consideration Of Development Charges In Cape Town, Colin Crawford, Julian C. Juergensmeyer

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This article, will look at the relatively new Cape Town development charge initiative in a comparative perspective. Part I will discuss the U.S. experience with development charges, including examples both effective and less so. The aim in Part I will be to demonstrate the achievements and shortcomings of development charges - or impact fees, as they are most commonly called in the U.S. - as utilized in the U.S., which was an early adopter of such practices globally. Part I will also suggest areas in which Cape Town practitioners (of whatever kind, whether lawyers, urban planners, engineers and so on) …

Density, Affordable Housing And Social Inclusion: Modest Proposal For Cape Town, Colin Crawford

Publications

What I would like to offer in this short article are some thoughts about ways Cape Town might benefit from lessons in the United States' long and still continuing struggle with racially segregated housing and to do so by promoting strategies that are not only inclusionary in aim but also more environmentally sustainable if developed properly. I do this in part from the conviction that this is a benefit of any comparative legal scholarship - to suggest different ways of looking at problems. In this, I will particularly examine density-focused incentives. Indeed, incentive-based practices, it seems to me, might have …

Academic Collaborations In The Americas: Some Reflections On The Political Economy Of Legal Knowledge, Colin Crawford, Daniel Bonilla Maldonado

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The article proceeds in three parts. The first, the articles’ analytical heart, considers the political economy of legal knowledge. It describes briefly the free market of legal ideas and the colonial model for the production of legal knowledge. It illustrates how these two models work using examples from our “South-North Partnerships” (SNP), that is, our collaborative practices in the creation of legal thought as they play out in the legal academies of the global North and South. The second part is both descriptive and reflective, focusing on four different SNP examples that illustrate challenges in the creation of truly collaborative …

A Função Social Da Propriedade E O Direito À Cidade: Teoria E Prática Atual, Colin Crawford

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No abstract provided.

Authorship, Disrupted: Ai Authors In Copyright And First Amendment Law, Margot E. Kaminski

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Technology is often characterized as an outside force, with essential qualities, acting on the law. But the law, through both doctrine and theory, constructs the meaning of the technology it encounters. A particular feature of a particular technology disrupts the law only because the law has been structured in a way that makes that feature relevant. The law, in other words, plays a significant role in shaping its own disruption. This Essay is a study of how a particular technology, artificial intelligence, is framed by both copyright law and the First Amendment. How the algorithmic author is framed by these …

Firearms In The Family, Carolyn B. Ramsey

Publications

This Article considers firearms prohibitions for domestic violence offenders, in light of recent Supreme Court decisions and the larger, national debate about gun control. Unlike other scholarship in the area, it confronts the costs of ratcheting up the scope and enforcement of such firearms bans and argues that the politicization of safety has come at the expense of a sound approach to gun control in the context of intimate-partner abuse. In doing so, it expands scholarly arguments against mandatory, one-size-fits-all criminal justice responses to domestic violence in a direction that other critics have been reluctant to go, perhaps because of …

Achieving American Retirement Prosperity By Changing Americans' Thinking About Retirement, Peter H. Huang

Publications

There are many decisions that Americans have to make about retirement before, at, and after retirement. For example, Americans have to decide when to start saving for retirement, how much to save, how to invest those savings, when to retire, when to claim social security, and how to take required minimum distributions from 401(k) plans or Individual Retirement Accounts. Different things can go wrong at each of these decisions for different reasons. Many Americans, for various reasons, including insufficient energy, money, motivation, time, and understanding, do no retirement planning. Some Americans do some retirement planning, yet worry they are doing …

Performative Privacy, Scott Skinner-Thompson

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Broadly speaking, privacy doctrine suggests that the right to privacy is non-existent once one enters the public realm. Although some scholars contend that privacy ought to exist in public, “public privacy” has been defended largely with reference to other, ancillary values privacy may serve. For instance, public privacy may be necessary to make the freedom of association meaningful in practice.

This Article identifies a new dimension of public privacy, supplementing extant justifications for the right, by arguing that many efforts to maintain privacy while in “public” are properly conceptualized as forms of performative, expressive resistance against an ever-pervasive surveillance society. …

The Chow: Depictions Of The Criminal Justice System As A Character In Crime Fiction, Marianne Wesson

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Having been honored by a request to contribute to a Symposium honoring my talented friend Alafair Burke, I composed this essay describing the various ways the criminal justice system has been depicted in English-language crime fiction. This survey, necessarily highly selective, considers portrayals penned by writers from Dickens to Tana French. Various dimensions of comparison include the authors’ apparent beliefs about the rule of law (from ridiculously idealistic to uncompromisingly cynical), the characters’ professional perspectives (private detective, police officer, prosecutor, defense lawyer, judge, victim, accused), and the protagonists’ status as institutional insiders or outsiders or occupants of the uncomfortable middle. …

Who Needs Contracts? Generalized Exchange Within Investment Accelerators, Brad Bernthal

Publications

This Article investigates why an expert volunteers on behalf of startups that participate in a novel type of small venture capital (“VC”) fund known as a mentor-driven investment accelerator (“MDIA”). A MDIA organizes a pool of seasoned individuals – called “mentors” – to help new companies. An obvi- ous organizational strategy would be to contract with mentors. Mentors in- stead voluntarily assist. Legal studies of norm-based exchanges do not explain what this Article calls the “mentorship conundrum”—i.e., the puzzling moti- vation of a mentor to volunteer within otherwise for-profit environments. This Article is the first to bridge the insights of …

Royalty Securitization, Kristelia García

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No abstract provided.

Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks

Publications

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to …

Can Practicing Mindfulness Improve Lawyer Decision-Making, Ethics, And Leadership?, Peter H. Huang

Publications

Jon Kabat-Zinn, the founder of mindfulness-based stress reduction, defines mindfulness as paying attention in a curious, deliberate, kind, and non-judgmental way to life as it unfolds each moment. Psychologist Ellen Langer defines mindfulness as a flexible state of mind actively engaging in the present, noticing new things, and being sensitive to context. Langer differentiates mindfulness from mindlessness, which she defines as acting based upon past behavior instead of the present and being stuck in a fixed, solitary perspective, oblivious to alternative multiple viewpoints. Something called mindfulness is currently very fashionable and has been so for some time now in American …

The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux

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No abstract provided.

Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss

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No abstract provided.

Envisioning 100% Access To Justice In Colorado, Daniel M. Taubman, Melissa Hart

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No abstract provided.

Conservatives And The Court, Robert F. Nagel

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No abstract provided.

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Publications

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …