Law Commons^™

The Right To Counsel In A Neoliberal Age, Zohra Ahmed

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Legal scholarship tends to obscure how changes in criminal process relate to broader changes in society at large. This article offers a modest corrective to this tendency. By studying the Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to how the Court …

Collected Wisdom On Selecting Leaders And Managing Mdls, Elizabeth Chamblee Burch, Stephen Bough

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Today, nearly one out of every two new suits filed in federal civil court is part of a multidistrict litigation (MDL). Initially designed to organize antitrust cases against electrical equipment manufacturers, MDL’s adaptability and minimal requirements made it the preferred approach for coordinating pretrial process for all manner of cases, from securities, employment, intellectual property, and antitrust to sales practices, common disasters, and products liability. Yet, the simplicity of MDL’s technical requirements—that cases are pending in different districts and share a common factual question—belie the complexity of the proceedings themselves. Governed principally by insiders’ unwritten but longstanding norms, both newly-appointed …

Perceptions Of Justice In Multidistrict Litigation: Voices From The Crowd, Elizabeth Chamblee Burch, Margaret S. Williams

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With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was an MDL case, and 97% of those were products liability like opioids, talc, and Roundup.

Ordinarily, civil procedure puts tort plaintiffs in the driver’s seat, allowing them to choose who and where to sue, and what claims to bring. Procedural justice tells courts to ensure …

Introducing Students To Ethics And Professionalism Challenges In Virtual Communication, Carol Morgan, Katherine M. Koops, James E. Moliterno, Carol Newman

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As the practice of law, and the conduct of business generally, focuses increasingly on virtual communication, the ethics and professionalism challenges inherent in email, videoconference, text, and telephone communication continue to evolve. These challenges are particularly prevalent in transactional practice, which involves frequent communication with a variety of parties through a variety of communication channels. Exposing law students to these challenges through exercises and simulations contributes to the continued development of their professional identity as lawyers.

This article presents a variety of exercises that introduce students to client confidentiality, inadvertent disclosure, and other ethical issues that often arise in the …

International Environmental Law At Its Semicentennial: The Stockholm Legacy, Melissa J. Durkee

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The 1972 United Nations Conference on the Human Environment produced the Stockholm Declaration, an environmental manifesto that forcefully declared a human right to environmental health and birthed the field of modern international environmental law. The historic event powerfully “dramatized . . . the unity and fragility of the biosphere,” sparking a remarkable period of international legal innovation and cooperation on environmental protection in the decades to come.

The Stockholm Declaration can be rightly celebrated for putting environmental issues on the international legal agenda and driving the development of environmental law at the domestic level around the world. At the same …

Panel Three: How Should Spacs Be Treated Going Forward (Ipos, Mergers, Or Distinctly Different?), Usha Rodrigues, Gregg A. Noel, Rick Flemming, Michael Stegemoller

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From the Symposium: Here to Stay: Wrestling with the Future of the Quickly Maturing SPAC Market

Panel addressing and examining the policy concerns around special purpose acquisition companies (SPACs).

Recovering Contingency Within American Antimonopoly And Democracy, Laura Phillips-Sawyer

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*This is the fourth post in a symposium on William Novak’s New Democracy: The Creation of the Modern American State. For other posts in the series, click here.

In his chapter on antitrust law and the American antimonopoly tradition, the penultimate substantive chapter of the book, Novak covers much familiar ground. Yet, he is not focused on the conventional areas of debate in antitrust history, which have included recovering the congressional intent behind the Sherman Antitrust Act of 1890, recreating the economic logic of early antitrust jurisprudence, or surveying the doctrinal shift from “literalism” to the rule of …

Uzuegbunam V. Preczewski, Nominal Damages, And The Roberts Stratagem, Michael Wells

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In Uzuegbunam v. Preczewski the Supreme Court held for the first time that federal-court jurisdiction exists over a § 1983 case that presents only a claim for nominal damages. As a result, such claims remain subject to adjudication even when the plaintiff’s request for prospective relief, targeting an allegedly unlawful practice, has been mooted by the government’s discontinuance of the thus-challenged behavior. In dissent, Chief Justice Roberts maintained that the majority’s ruling clashed with Article III’s “personal stake” requirement and also unwisely permitted plaintiffs to sidestep controlling jurisdictional rules by adding a meaningless claim for nominal damages to a complaint …

Journeys Through Space And Time While Reading International Law And The Politics Of History, Found On A Palimpsest, Translated For You, The Reader, Harlan G. Cohen

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I was invited to a symposium on Anne Orford’s book, International Law and the Politics of History. On my way there, my mind wandered, and I found myself lost in a forest of half-remembered stories and unfinished thoughts. Searching for a way out, this is what I discovered.

Righting A Reproductive Wrong: A Statutory Tort Solution To Misrepresentation By Reproductive Tissue Providers, Yaniv Heled, Hillel Y. Levin, Timothy D. Lytton, Liza Vertinsky

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Fraud, misrepresentation, and other unfair trade practices plague the market for human reproductive tissue. The sale of sperm, eggs, and embryos is virtually unregulated in almost all states, and courts have been inhospitable to victims. As a result, children are born with genetic disorders that impose extreme financial and personal hardship. Proposals for direct government oversight have, for the most part, failed to gain traction, and litigation has yielded inadequate remedies.

This Article assesses these problems and proposes model legislation that would eliminate doctrinal obstacles to holding unscrupulous reproductive tissue providers liable. By making it easier for parents to bring …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

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In 2021, the United States District Court for the Southern District of Alabama, in an issue of first impression, concluded that the United States is not a "person" under the contribution provision of the Oil Pollution Act (OPA),2 and therefore the provision did not waive the sovereign immunity of the United States. For this and other reasons a plaintiff could not recover in contribution from the United States for the plaintiffs costs of cleaning up an oil spill, even where the plaintiff alleged the spill was the result of the sole negligence of the United States. The United States District …

Race-Ing Antitrust, Bennett Capers, Greg Day

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Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Csec Treatment Courts: An Opportunity For Positive, Trauma-Informed, And Therapeutic Systems Responses In Family And Juvenile Courts, Emma Hetherington, Allison Dunnigan, Hannah Elias Sbaity

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In an effort to improve outcomes for CSEC (commercial and sexual exploitation of children) youth and to facilitate accurate identification of survivors through the implementation of multidisciplinary, survivor-focused responses, jurisdictions have increasingly looked towards treatment courts to serve as a model for prevention, intervention, diversion, and treatment. Juvenile and family courts are uniquely positioned to intervene in cases involving CSEC. Several jurisdictions have already created treatment courts to specifically address the needs of survivors and those at risk of CSEC, particularly those who are involved in the child welfare or juvenile justice systems. The goal of treatment courts for survivors …

Tributes To Family Law Scholars Who Helped Us Find Our Path, Thomas Oldham, Paul M. Kurtz

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At some point after the virus struck, I had the idea that it would be appropriate and interesting to ask a number of experienced family law teachers to write a tribute about a more senior family law scholar whose work inspired them when they were beginning their careers. I mentioned this idea to some other long-term members of the professoriate, and they agreed that this could be a good project. So I reached out to some colleagues and asked them to participate. Many agreed to join the team. Some suggested other potential contributors, and some of these suggested faculty members …

Clean Air Act Section 115: Is The Ipcc A 'Duly Constituted International Agency'?, Adam D. Orford

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Does EPA’s receipt of the Assessment Reports of the Intergovernmental Panel on Climate Change (IPCC) trigger the agency’s duties under Clean Air Act § 115? The law requires EPA to take action to prevent or eliminate air pollution endangering the public health or welfare of foreign nationals under certain circumstances. If triggered, the argument goes, the law could justify, or compel, EPA’s imposition of nationwide greenhouse gas regulation to combat climate change. One way to justify this, or compel it, is to trigger EPA’s duties “upon receipt of reports, surveys or studies from any duly constituted international agency.” This article …

Artificially Intelligent Boards And The Future Of Delaware Corporate Law, Christopher Bruner

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This article argues that the prospects for Artificial Intelligence (AI) to impact corporate law are at once over- and under-stated, focusing on the law of Delaware – the predominant jurisdiction of incorporation for US public companies. Claims that AI systems might displace human directors not only exaggerate AI’s foreseeable technological potential, but ignore doctrinal and institutional impediments intrinsic to Delaware’s competitive model – notably, heavy reliance on nuanced applications of the fiduciary duty of loyalty by a true court of equity. At the same time, however, there are discrete AI applications that might not merely be accommodated by Delaware corporate …

Why Conflict Between International Economic And Rights-Based Governance Is Inevitable, Desiree Leclercq

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International organizations mandated to govern social rights are colliding with international organizations mandated to govern economic development. While disagreeing with the nature of fragmentation and conflict across international organizations, legal and social science scholars offer various proposals to unify global governance. Those proposals assume that unification will come naturally. That assumption is wrong.
/="/">
/="/">The distinct legal instruments that govern and control international organizations render conflict inevitable and unification improbable. By closely examining the pandemic-related activities carried out by the International Labor Organization, the World Bank, and the International Monetary Fund in the same 41 countries, the implications of …

The Informed Jury, Daniel Epps, William Ortman

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The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …

Shadow Contracts, Jessica S. Jeffers, Anne M. Tucker

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This project explores side letters in private market funds. Side letters, separate agreements between a fund and an investor, act as an invisible amendment to the main contract. This article introduces a new use case for side letters: impact invest- ments, where funds target social, as well as financial returns. Using a hand-col- lected data set, we examine the scope and role of side letters in this growing space. Side letters as "shadow contracts" demonstrate the Easterbrook/Fischel theories in action, namely that parties "write their own tickets," tailoring agreement terms to their specific needs within the framework of corporate governance …

Prepaid Death, Victoria J. Haneman

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No abstract provided.

Land Costs And New Housing, Michael Lewyn

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Restrictive zoning limits housing supply, which (according to the law of supply and demand) increases housing costs. But some commentators argue that more permissive zoning would actually increase housing costs by increasing land costs. This article points out that if the latter claim was true, land costs would have risen in places that allowed lots of new housing and fallen in more restrictive regions such as San Francisco. In fact, land costs increased in both types of metro areas. More importantly, overall housing costs increased more rapidly in more restrictive metros.

Does Democracy Justify Zoning?, Michael Lewyn

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One common argument for restrictive zoning is that zoning is more democratic than allowing landowners to build what they please. This article critiques that claim, suggesting that free markets are equally democratic because they allow for self-rule. Moreover, zoning is less democratic than other forms of government decisionmaking, because zoning hearings are often sparsely attended, and commenters at public meetings are unrepresentative of the public as a whole.

Crisis Pregnancy Centers: An Inherently Unjust Limitation To Reproductive Rights, Rebecca Feinberg, Danielle Pacia

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This paper’s purpose is two-fold. First, it presents an ethical analysis that details why the current practices of Crisis Pregnancy Centers (CPCs) are unethical and violate women’s reproductive freedom. Second, it proposes policy solutions to mitigate inequities and disinformation caused by the practices of CPCs, in an attempt to protect the women who, fall prey to their services

Negotiating Social Change: Backstory Behind The Repeal Of Don’T Ask, Don’T Tell, Linell A. Letendre, Hal Abramson

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This Article is about negotiating social change in the largest U.S.institution, the Military and its five Services. Inducing social change in any institution and society is notoriously difficult when change requires overcoming clashing personal values among stakeholders. And, in this negotiation over the repeal of Don’t Ask, Don’t Tell (DADT), clashing values over open service by gays and lesbians were central to the conflict.

In response to President Obama’s call to repeal DADT, the Secretary of Defense selected a Working Group to undertake studies, surveys and focus groups to inform the debate. During the nine-month process of gathering a massive …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

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Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement's presence squarely in the racist history of policing and school policing the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools must …

Miranda In Taiwan: Why It Failed And Why We Should Care, Shih-Chun Steven Chien

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No abstract provided.

The Color Of Local Government: Observations Of A Brown Buffalo On Racial Impact Statements In The Movement For Water Justice, Tom I. Romero Ii

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This Article advocates for the adoption of racial impact statements ("RIS") in local government decision making, particularly among water utilities. Situated in the larger history of water and climate injustice in Colorado and the arid American West, this Article examines ways that racially minoritized communities engage and contest legal and political water regimes. The Article then explores how water utilities could use RISs in the acquisition, treatment, and delivery of drinking water. If made a part of the everyday work of water utilities, RISs provide a useful tool to center the history and lived experiences of racially minoritized communities battling …

A Brown Buffalo's Observations On Color (Blindness), Legal History, And Racial Justice In The Rocky Mountain West, Tom I. Romero Ii

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No abstract provided.

Access To A.I. Justice: Avoiding An Inequitable Two-Tiered System Of Legal Services, Drew Simshaw

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Artificial intelligence (AI) has been heralded for its potential to help close the access to justice gap. It can increase efficiencies, democratize access to legal information, and help consumers solve their own legal problems or connect them with licensed professionals who can. But some fear that increased reliance on AI will lead to one or more two-tiered systems: the poor might be stuck with inferior AI-driven assistance; only expensive law firms might be able to effectively harness legal AI; or, AI's impact might not disrupt the status quo where only some can afford any type of legal assistance. The realization …

A Deeper Dive Into Nautilus: Differentiating Insurer Efforts To Recover Defense Costs And Assessing Recoupment In The Wake Of The Ali Restatement, Jeffrey W. Stempel

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Insurers and Policyholder have for decades contested whether the typical general liability policy requires policyholders to reimburse insurers for defense costs where a claim is ultimately held not to be one for which a defense is required. Although a slight majority of decisions favors insurers, the recent trend has favored policyholders, as reflected in §21 of the American Law Institute Restatement of the Law, Liability Insurance (“RLLI”), one of several contested portions of the RLLI. In Nautilus Insurance v. Access Medical, the Nevada Supreme Court provided the most extensive post-RLLI analysis of the dispute, ruling in favor of the …