Law Commons^™

What Jurors Want To Know: Motivating Juror Cognition To Increase Legal Knowledge & Improve Decisionmaking, Sara Gordon

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What do jurors want to know? Jury research tells us that jurors want to understand the information they hear in a trial so they can reach the correct decision. But like all people, jurors who are asked to analyze information in a trial—even jurors who consciously want to reach a fair and accurate verdict—are unconsciously influenced by their internal goals and motivations. Some of these motives are specific to individual jurors; for instance, a potential juror with a financial interest in a case would be excluded from the jury pool. But other motivations, like the motive to understand the law …

The Curious Case Of Legislative Prayer: Town Of Greece V. Galloway, Ian C. Bartrum

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This essay explores the Supreme Court's decision to reenter the debate over legislative prayers, and the Solicitor General's curious decision to enter the case in defense of Greece, New York's (somewhat dubious) practice. I suggest that the Court's decision, and the Solicitor's brief, can best be understood as part of larger conflict over Establishment Clause doctrine moving forward.

Buying Time? False Assumptions About Abusive Appeals, Michael Kagan, Fatma Marouf, Rebecca Gill

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The federal government has expressed fear that immigrants abuse the appellate process to delay their deportations by filing meritless petitions for review with the federal courts. Some courts have responded to these concerns by imposing stricter standards for issuing stays of removal, so that the government can more easily deport petitioners even while their appeals remain pending. The risk with this approach is that immigrants who ultimately prevail may be erroneously deported. What is often overlooked is that the potential for abuse is really a function of time, with longer appeals posing a greater threat to immigration enforcement. This study …

Foreigners In U.S. Patent Litigation: An Empirical Study Of Patent Cases Filed In Nine U.S. Federal District Courts In 2004, 2009, And 2012, Marketa Trimble

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One of the greatest challenges facing patent holders is the enforcement of their rights against foreign (non-U.S.) infringers. Jurisdictional rules can prevent patent holders from filing patent infringement suits where they have the greatest likelihood of success in enforcement, such as where the infringer is located, has his seat, or holds his assets; instead, patent holders must file lawsuits in the country where the infringed patent was issued. But filing a patent lawsuit in a U.S. court against a non-U.S. infringer may be subject to various difficulties associated with the fact that U.S. substantive patent law (particularly as regards its …

Justice On The Fly: The Danger Of Errant Deportations, Fatma Marouf, Michael Kagan, Rebecca Gill

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The government may deport an immigrant appealing a deportation order in federal court even before the court rules on the case, unless the court issues a stay of removal. In its 2009 decision in Nken v. Holder, the Supreme Court clarified that the legal standard for stays of removal is the same test courts use for preliminary injunctions. Yet Justice Kennedy expressed frustration that the Court had little data to inform its decision. The Court will likely need to revisit this issue, as doubts cloud the meaning of Nken’s main holdings, in part because the government misled the …

Flexible Feminism And Reproductive Justice: An Essay In Honor Of Ann Scales, Lynne Henderson

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Professor Ann Scales began her distinguished career by taking feminism and reproductive justice seriously. She became a leading feminist voice and influence on a number of topics. In later years, she returned to concerns about reproductive justice by presciently emphasizing the need to preserve women’s access to abortions.

This Essay discusses Professor Scales’s concerns and feminist method and then turns to reproductive justice. The Essay notes that, with Scales, a right to abortion is foundational for reproductive justice. The Essay then examines the increasing narrowing of access to abortion through law. The Essay next examines a current crisis over access …

The Territoriality Referendum, Marketa Trimble

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Many Internet users have encountered geoblocking tools – tools that prevent users from accessing certain content on the Internet based on the location from which the users are connecting to the Internet. Because at least some users want to access such content, they turn to tools that enable them to evade geoblocking, to appear on the Internet as if they were located in another location, and to access the content that is available in this other location. So far these activities appear to be under the radar of intellectual property (“IP”) owners, perhaps because geoblocking evasion by users for the …

The Ninth Circuit’S Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian C. Bartrum

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When the Ninth Circuit handed down Witt v. Department of the Air Force, President Obama and then-Solicitor General Kagan declined to take an appeal to the Supreme Court. At the time, it seemed that most advocates of “Don’t Ask, Don’t Tell” believed that the administration made that decision because it was afraid the Supreme Court would reverse the Ninth Circuit. If that fear was perhaps well-founded in 2009, it is certainly less so now. In the wake of SmithKline Beecham Corp. v. Abbott Laboratories, as well as recent District Court decisions, opponents of federal constitutional protection for gay people …

Lost In The Shuffle: How Health And Disability Laws Hurt Disordered Gamblers, Stacey A. Tovino

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Gambling disorder is not a legally sympathetic health condition. Health insurance policies and plans have long excluded treatment for gambling disorder from health insurance coverage. Individuals with gambling disorder who seek disability income insurance benefits from public and private disability income insurers also tend not to be successful in their claims. In addition, federal and state antidiscrimination laws currently exclude individuals with gambling disorder from disability discrimination protections. This Article is the first law review article to challenge the legal treatment of individuals with gambling disorder by showing how health insurance and antidiscrimination laws hurt problem gamblers. Using neuroscience, economics, …

Must Israel Accept Syrian Refugees?, Michael Kagan

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In this article, Professor Michael Kagan discusses Israel's policy to refuse asylum to "subjects of enemy or hostile states," in the context of a 2004 asylum case filed by a Syrian girl. A decade later, Israel has not accepted a single Syrian refugee. Professor Kagan examines the moral and legal responsibilities of Israel and how they conflict with its current policy.

The Trouble With Categories: What Theory Can Teach Us About The Doctrine-Skills Divide, Linda H. Edwards

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We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction.

This article does not exactly take sides in the typical skills …

I Need A Doctor: A Critique Of Medicare Financing Of Graduate Medical Education, Stacey A. Tovino

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In its broadest sense, this Article examines the complex relationship between population booms, doctor shortages, and United States government financing of graduate medical education (GME). More specifically, this Article argues that current rules governing the calculation of Medicare payments to teaching hospitals for the costs of GME are based on cost, population, and other data that are no longer relevant. As applied, these formulas discriminate in favor of the nation's oldest teaching hospitals, located in New England and the Middle Atlantic, and against current and future teaching hospitals located in growing population centers, especially regions in the South and West. …

How Masculinities Distribute Power: The Influence Of Ann Scales, Ann C. Mcginley, Frank Rudy Cooper

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Ann Scales's scholarship on masculinities in relation to sexual assault and militarism prompted us to consider exactly how power is distributed by assumptions about what is masculine. For instance, men privileged by association with hegemonic masculinities — those most dominant and preferred — are sometimes excused for acts of violence against people who are denigrated as unmasculine or excessively masculine. In one set of examples, communities excuse football players for sexual assaults on grounds that "boys will be boys." The implication is that boys should be allowed to act out before taking on adult responsibilities, and that they need to …

The Fourth Era Of American Civil Procedure, Thomas O. Main, Stephen N. Subrin

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Every contemporary American lawyer who has engaged in litigation is familiar with the now fifty-four-volume treatise, Federal Practice and Procedure. Both of that treatise’s named authors, Charles Alan Wright and Arthur Miller, have mourned the death of a Federal Rules regime that they spent much of their professional lives explaining and often celebrating. Wright shared a sense of gloom about federal procedure that he compared to the setting before World War I. Miller has also published a series of articles that chronicled his grief.

We agree that something has fundamentally changed. In fact, we believe that we are in …

Religion And The Restatements, Ian C. Bartrum

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This essay is a contribution to the symposium entitled "Restatement of ..." held at Brooklyn Law School in January of 2013. It examines the role that conceptions of religious liberty play in the various Restatements, and suggests a few places where the ALI might consider expanding its discussion of these principles.

Silence Is Golden . . . Except In Health Care Philanthropy, Stacey A. Tovino

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No abstract provided.

Secondary Liability, Isp Immunity, And Incumbent Entrenchment, Marketa Trimble, Salil K. Mehra

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More than fifteen years have passed since the two major U.S. statutes concerning the secondary liability of Internet service providers were adopted--the Communications Decency Act and the Digital Millennium Copyright Act. The statutes have been criticized; however, very little of the criticism has come from Internet service providers, who have enjoyed the benefits of generous safe harbors and immunity from suit guaranteed by these statutes. This Article raises the question of whether these statutes contribute to incumbent entrenchment--solidifying the position of the existing Internet service providers to the detriment of potential new entrants. The current laws and industry self-regulation may …

The Sincerest Form Of Flattery: Examples And Model-Based Learning In The Law School Classroom, Terrill Pollman

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Responding to a changing landscape of law practice, law schools are searching for ways to structure the classroom experience and broader curriculum to promote more efficient and better learning outcomes. Although imitation, modeling, and the use of examples have become pre-eminent features of modern legal education, these pedagogies have remained largely unexamined. This article shows the power of teaching with examples in both the traditional and legal writing classroom, as well as how skillfully to limit the use of such pedagogy for maximum effect. Specifically, this article applies the findings of cognitive load research and composition theory to show that …

Giving Thanks: The Ethics Of Grateful Patient Fundraising, Stacey A. Tovino

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Grateful patient fundraising, defined as the solicitation of philanthropic donations by health care providers from current and former patients, raises a number of legal and ethical issues. Elsewhere, I detailed the confidentiality issues raised by the use and disclosure of patient identifiable information by hospital development officers, major gifts officers, institutionally-related foundations, and commercial fundraisers, and proposed corrections to federal health information confidentiality regulations to better balance the competing aims of health care philanthropy and health information confidentiality. In this Article, I analyze several outstanding issues raised by physician involvement in grateful patient fundraising. That is, physicians who solicit philanthropic …

Heal The Suffering Children: Fifty Years After The Declaration Of War On Poverty, Francine J. Lipman, Dawn Davis

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Fifty years ago, President Lyndon B. Johnson declared the War on Poverty. Since then, the federal tax code has been a fundamental tool in providing financial assistance to poor working families. Even today, however, thirty-two million children live in families that cannot support basic living expenses, and sixteen million of those live in extreme poverty. This Article navigates the confusing requirements of an array of child-related tax benefits including the dependency exemption deduction, head of household filing status, the Earned Income Tax Credit, and the Child Tax Credit. Specifically, this Article explores how altering the definition of a qualifying child …

The Client Who Did Too Much, Nancy B. Rapoport

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Using Hitchcock's MacGuffin as a theme, I discuss the dynamics between client and lawyer when the client so obsesses over the issue driving him that he persuades (or attempts to persuade) the lawyer to do things that are inadvisable from the lawyer's point of view.

"Nudging" Better Lawyer Behavior: Using Default Rules And Incentives To Change Behavior In Law Firms, Nancy B. Rapoport

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This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers.

In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive …

Dean's Column: Health Law At Unlv, Anne R. Traum, Daniel W. Hamilton

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No abstract provided.

Chapter Introduction: Pay Inequality, Access To Work, And Discrimination, Nantiya Ruan

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No abstract provided.

Hours Equity Is The New Pay Equity, Nantiya Ruan, Nancy Reichman

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At the dawning of the fifty-year anniversary of the Equal Pay Act of 1963, and as the same anniversary of Title VII of the Civil Rights Act of 1964 draws near, it is time to change the way we think about pay equity. Workplace fairness between women and men should no longer be framed merely by total disparities in pay, but also by disparities in hours given to women seeking as much work as their male counterparts. Doing so recognizes the realities of many female workers in today’s workplace and addresses the shortfalls thus far absent from the civil rights …

Student, Esquire?: The Practice Of Law In The Collaborative Classroom, Nantiya Ruan

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Law faculty and non-profit lawyers are working together in a variety of partnerships to offer students exposure to "real life" clients in the first year of law school, as well as in advanced courses in substantive areas. Teachers engaged in this client-centered advocacy through experiential frameworks have broken out of their isolated silos in the law school (e.g., legal writing, clinical, externship, and doctrinal) and begun to work together. To help students develop a sense of professional identity, cultivate professional values, and tap into key intrinsic motivations for lawyering, such as serving the public good, collaborative classrooms have an important …

Neoliberalism And The Good Daddies And Bad Daddies Of Academic Freedom, Stewart Chang

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In this micro symposium article, Professor Stewart Chang joins his colleagues in addressing the questions posed by Stanley Fish, in his article, "Versions of Academic Freedom: From Professionalism to Revolution." Professor Chang specifically seeks to answer "What is the relationship between academic freedom and democracy?" as applied to Singapore.

The Postcolonial Problem For Global Gay Rights, Stewart Chang

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As the United States and Europe have progressed to the issue of same-sex marriage, countries that are still working through antecedent issues, such as the decriminalization of anti-sodomy laws, are regarded by international gay rights advocates as lagging behind the times. This often leads to pressures from the Western-dominated international community for reform. Through this Article, Professor Stewart Chang contributes to the ongoing scholarly debate between international human rights activists who desire to advance gay rights by utilizing the same rights-based models that prevail in the United States and Europe and critics of this approach who deem the universal imposition …

Dreams Of My Father, Prison For My Mother: The H-4 Nonimmigrant Visa Dilemma And The Need For An "Immigration-Status Spousal Support", Stewart Chang

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In this article, Professor Stewart Chang uses the situation of H-4 visa derivatives in the Asian Indian immigrant community as a case study to expose and critique larger incongruities within current American immigration policy, which on the one hand has historically extolled individuality, equality, and workforce participation as avenues to the American Dream, while enforcing gender hierarchy and dependency through requirements that prioritize family unity on the other. These incongruities remain largely unnoticed because the culture of dependency is often attributed to traditional ethnic culture, which then becomes the site of scrutiny and blame. The H-4 visa dilemma in the …

Racial Upside: Deconstructing The "Merits" Of Jeremy Lin's Nba Contract, Stewart Chang

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In this Article, Professor Stewart Chang disputes the common misperception that sports are a colorblind meritocracy that should serve as a model for the rest of society. The capacity of players to break into and succeed in professional sports is believed to be based purely on merit, with no consideration of race. Controversies that surfaced around the rise of professional basketball player Jeremy Lin, an Asian American not expected to succeed in a sport dominated by blacks and whites, challenged this popularly-held notion. He argues, not in a derisive way, that Lin's ability to secure a lucrative $28.8 million contract, …