Law Commons^™

The Open Access Advantage For American Law Reviews, Carol A. Watson, James M. Donovan, Caroline Osborne

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Open access legal scholarship generates a prolific discussion, but few empirical details have been available to describe the scholarly impact of providing unrestricted access to law review articles. The present project ills this gap with specific findings on what authors and law reviews can expect.

Articles available in open access formats enjoy an advantage in citation by subsequent law review works of 53%. For every two citations an article would otherwise receive, it can expect a third when made freely available on the Internet. This benefit is not uniformly spread through the law school tiers. Higher tier journals experience a …

What Do We Owe The Pro Se Litigant?, Nathan A. Preuss

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No abstract provided.

Embracing A Rich Diversity Promoting Diversity Among Patrons And Staff, Shamika Dalton

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No abstract provided.

Sink Or Swim: In Search Of A Model For Coastal City Climate Resilience, Sarah Adams-Schoen

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New York City, like other major cities around the world, has acknowledged the problem of climate change, undertaken a comprehensive risk assessment, created a suite of adaptation and mitigation planning initiatives, and begun to implement policies to decrease the city’s contribution to the problem and to make the city less vulnerable to the effects of climate change. This detailed analysis of the city’s climate change resilience initiatives concludes that, although many of the city’s initiatives provide a model for other coastal communities, the initiatives likely still fall short of what is required to sufficiently moderate harm from dangerous interference with …

Getting Paid In The Naked Economy, Meredith R. Miller

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“It’s the end of work as we know it,” reports consulting firm Accenture in a paper about the “rise of the extended workforce.” (Gartside, Silverstone, Farley & Cantrell, Trends Reshaping the Future of HR: The Rise of the Extended Workforce, at 3 (Accenture 2013). The report predicts that, “[i]n the future, organizations’ competitive success will hinge on...workers who aren’t employees at all.” The legal nature of employment is changing and has been changing for quite some time; fewer and fewer workers are “employees.”

It is not new or novel to recognize that, from a legal perspective, there are many benefits …

Digital Patent Infringement In An Era Of 3d Printing, Lucas S. Osborn, Timothy R. Holbrook

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The digital revolution has now moved beyond music and video files. A person can now translate three-dimensional objects into digital files and, at the press of a button, recreate those items via a 3D printer or similar device. Just as digitization placed pressure on the copyright system, so will these digital computer-aided design (“CAD”) files stress the patent system. Patents directed to physical objects can now have their value appropriated not only by the transfer of physical embodiments but also by the transferring of CAD files designed to print the invention. We term this phenomenon digital patent infringement.

In this …

Making Space For Good Things To Happen: A Restorative Approach To The School To Prison Pipeline, Jon Powell

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No abstract provided.

Redefining Attention (And Revamping The Legal Profession?) For The Digital Generation, Lauren A. Newell

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No abstract provided.

Concept And Contract In The Future Of International Law, John Linarelli

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This is an article written for a symposium on Joel Trachtman’s book, The Future of International Law. I first deal with the contractarian features of Trachtman’s approach to understanding international law. Using the tools of new institutional economics and constitutional economics, Trachtman seeks to describe the features of an international legal system. This is positive political theory or at least relates substantially to the methods of positive political theory. I explore a different approach, one connecting to normative political theory. In its ambitious sense, my approach would see international law as a form of moral argument, but in its modest …

Return Of The Jrad, Jason A. Cade

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Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors. And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar, he recommended that the government not deport him, even though no legal rules provided him with a route to that result. This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime. Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability. …

One Of The Perfect People, Ann Puckett

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This Article eulogizes Nancy P. Johnson.

Discoverymania: Plausibility Pleading As Misprescription, Fabio Arcila Jr.

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In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly …

Jack B. Weinstein: Judicial Entrepreneur, Jeffrey B. Morris

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The University of Miami Law Review's 2014 Symposium, Leading from Below, honored Judge Jack B. Weinstein for his extraordinary career as a private practitioner, government lawyer, advisor to legislators and executive officials, major legal scholar, and federal district judge for over forty-seven years. It also offered the possibility of pausing for several days to consider the significance of the federal district courts more generally.

This article is intended to look at the career of one very well regarded judge through spectacles that offer a different vantage point on a judicial career. Those spectacles-the concept of judicial entrepreneurship-seem to be particularly …

A Comparison Of The New York Bar Examination And The Proposed Uniform Bar Examination, Suzanne Darrow-Kleinhaus, Mary Campbell Gallagher

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The New York Board of Law Examiners (BOLE) proposes adopting the Uniform Bar Exam (UBE), substituting it for the current New York Bar Exam (NYBE). The BOLE proposal is currently under active consideration, and it is the subject of public hearings. This article examines some of the issues the proposal raises. First, we look at the history of the proposal, and at the differences between the UBE and the NYBE as it is currently administered. Then we look in detail at the proposal for New York: a combination of the UBE plus a stand-alone one-hour multiple-choice New York test. Finally, …

Land Use Law Update: Reed V. Town Of Gilbert Redux, Sarah Adams-Schoen

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The Winter 2015 Land Use Law Update asked whether the Supreme Court’s decision in Reed v. Town of Gilbert would require municipalities throughout the country to rewrite their sign codes. The short answer is “yes.”

At a minimum, following the Supreme Court’s decision that the Town of Gilbert’s temporary directional sign regulations violated petitioners Good News Community Church’s and Pastor Clyde Reed’s First Amendment rights, municipalities will want to act quickly to amend their sign codes if they regulate different categories of signs differently. A code that places fewer restrictions on political or ideological signs than on directional signs likely …

Land Use Law Update: The 2015 Mid-Year Roundup, Sarah Adams-Schoen

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This update summarizes New York cases related to land use and zoning that were decided in the first half of 2015.

Land Use Law Update: Will Reed V. Town Of Gilbert Require Municipalities Throughout The Country To Rewrite Their Sign Codes?, Sarah Adams-Schoen

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The author discusses the imminent Supreme Court decision in Reed v. Town of Gilbert. Depending on how the Court decides the case, municipalities may need to act quickly to amend their sign regulations.

The Role Of The Dean In Ensuring A Sustainable Law School: Everything Comes Down To What I Learned In Land Use Planning And Sustainable Development Law, Patricia E. Salkin

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This article offers advice for anyone preparing to interview for a deanship - go back to what you are passionate about to really express how you might approach serving as a law dean. In this case, the passion centers on the subject of land use planning and sustainable development law. When interviewing for the position of dean of a law school, Academics who rise through the ranks to a deanship have a background in legal scholarship that often marries theory and practice. Faculty spend countless hours, even years, developing theories and concepts to advance the law in a particular discipline. …

Trial By Water: Reflections On Superstorm Sandy, Thomas Maligno, Benjamin R. Rajotte

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Superstorm Sandy devastated thousands of homes in some of the most densely populated areas of the country. It created extensive and diverse property losses in the Northeast, resulting in an unprecedented need for disaster recovery assistance in affected communities. As we pass the storm's two-and-a-half year anniversary, complex challenges remain for many of these households. This article documents how one law school has responded. It reflects on how we have approached our educational and public interest missions throughout the recovery process, and how these experiences have shaped our views of the future. Disasters know no boundaries, and coastal floods are …

American Dreams, American Realities, Michael Lewyn

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Review of Zoned In The USA, by Sonia Hirt.

Is An Apartment A Nuisance?, Michael Lewyn

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In an ongoing Texas lawsuit, some homeowners allege that a nearby apartment building will constitute a nuisance. This article asserts that courts should generally reject nuisance claims against multifamily housing, based on the public interest in favor of increased housing supply and infill development.

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

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The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …

Always Already Suspect: Revising Vulnerability Theory, Frank Rudy Cooper

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Martha Fineman proposes a post-identity "vulnerability" approach that focuses on burdens we all share; this article argues that theory needs to incorporate recognition of how invisible privileges exacerbate some people's burdens. Vulnerability theory is based on a recognition that we are all born defenseless, become feeble, must fear natural disasters, and might be failed by social institutions. It thus argues for a strong state that takes affirmative steps to insure substantive equality of opportunity. While vulnerability theory might help explain and remedy situations like Hurricane Katrina, it also might be susceptible to an argument that racial profiling is a necessary …

Navigating The Law Of Defense Counsel Ex Parte Interviews Of Treating Physicians, Joseph Regalia, V. Andrew Cass

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This article explores the issue of defense counsel ex parte interviews with treating physicians, and proposes a resolution to standardize the practice that is equitable for all parties involved. Courts and legal scholars have commonly recognized that treating physicians in personal injury litigation are usually fact witnesses, albeit with special expertise, and allow plaintiffs unfettered access while defendants are relegated to a formal deposition which creates a fundamental imbalance in informational power. Moreover, there are significant arguments raised by the defense bar concerning efficiency and fairness. However, allowing defense counsel unlimited and unregulated access to treating physicians creates clear risks …

Andrew B. Arnold's Fueling The Gilded Age: Railroads, Miners, And Disorder In Pennsylvania Coal Country, Laura Phillips Sawyer

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Andrew Arnold’s Fueling the Gilded Age explores the struggles for managerial control and economic power that erupted among coal miners, coal operators, and railroad executives in central Pennsylvania between 1872 and 1902. Rather than presenting an unassailable triumph of the railroads’ interests over labor, Arnold argues that the “coal industry defied order” (p. 3) and laborers exhibited “unexpected agency ” (p. 4, emphasis in original) by thwarting the plans of railroad executives to impose managerial capitalism from the top down. Instead, wage earners “refused to accept their designated fate as commodities” (p. 222) and thereby exerted influence on the institutional …

Formalism And Distrust: Foreign Affairs Law In The Roberts Court,, Harlan G. Cohen

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When it comes to foreign relations, the Roberts Court has trust issues. As far as the Court is concerned, everyone — the President, Congress, the lower courts, plaintiffs — has played hard and fast with the rules, taking advantage of the Court’s functionalist approaches to foreign affairs issues. This seems to be the message of the Roberts Court foreign affairs law jurisprudence. The Roberts Court has been active in foreign affairs law, deciding cases on the detention and trial of enemy combatants, foreign sovereign immunity, the domestic effect of treaties, the extraterritorial reach of federal statutes, the preemption of state …

The Responsible Corporation: Its Historical Roots And Continuing Promise, Larry D. Thompson

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The article focuses on the on the history of American corporations from the colonization period and its impact on private corporations such as venture capitalism. Topics discussed include legal and sustainable approach to corporate responsibility, role of laws in shaping corporate duties and behavior and devastating effect of excessive dividend payments. It also discusses the cases in which courts refuse to interfere with management's long-term decision making.

The Testamentary Foundations Of Commercial Arbitration, Peter B. Rutledge

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This Article offers the first systematic treatment of the relationship between commercial arbitration and testamentary arbitration. (By testamentary arbitration, I mean an arbitration clause contained in a will requiring beneficiaries to resolve differences over the estate by means of an enforceable decision by a private party rather than judicial resolution in a probate court.) Recent scholarship and jurisprudence have questioned the enforceability of these arrangements as incompatible with the requirement of a written "agreement" between parties to the arbitration. Contrary to these views, close examination of the historical record of testamentary arbitration leading to the Federal Arbitration Act's enactment reveals …

Rethinking Religious Minorities' Political Power, Hillel Y. Levin

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This Article challenges the assumption that small religious groups enjoy little political power. According to the standard view, courts, because of their countermajoritarian qualities, are indispensable for protecting religious minority groups from oppression by the majority. But this assumption fails to account for the many and varied ways in which the majoritarian branches have chosen to protect and accommodate even unpopular religious minority groups, as well as the courts’ failures to do so.

The Article offers a public choice analysis to account for the surprising majoritarian reality of religious accommodationism. Further, it explores the important implications of this reality for …

Superstar Judges As Entrepreneurs: The Untold Story Of Fraud-On-The-Market, Margaret V. Sachs

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This Article unites two disparate subjects of profound interest to legal scholars. One is fraud-on-the-market, reaffirmed late last term in Erica P. John Fund, Inc. v. Halliburton Co. (Halliburton II). Probably the most important claim in the securities litigation universe, fraud-on-the-market is the sine qua non of almost every securities class action that is filed. The other subject consists of the work of Judges Frank Easterbrook and Richard Posner, the “superstars” of the current federal appellate bench.

My purpose is several-fold: first, to show that fraud-on-the-market’s evolution, up through and culminating in Halliburton II, has been driven in significant measure …