Law Commons^™

Fintech's Role In Exacerbating Or Reducing The Wealth Gap, Pamela Foohey, Nathalie Martin

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Research shows that Black, Latinx, and other minorities pay more for credit and banking services, and that wealth accumulation differs starkly between their households and white households. The link between debt inequality and the wealth gap, however, remains less thoroughly explored, particularly in light of new credit products and debt-like banking services, such as early wage access and other fintech innovations. These innovations both hold the promise of reducing racial and ethnic disparities in lending and bring concerns that they may be exploited in ways that perpetuate inequality. They also come at a time when policy makers are considering how …

Changing The Student Loan Dischargeability Framework: How The Department Of Education Can Ease The Path For Borrowers In Bankruptcy, Pamela Foohey, Aaron Ament, Daniel Zibel

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Our nation’s consumer bankruptcy system supposedly gives “honest but unfortunate” individuals “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Access to bankruptcy’s discharge of debt is especially important in the wake of the COVID-19 pandemic, which has resulted in a once-in-a-century economic crisis that is projected to increase consumer bankruptcy filings. The people who file bankruptcy will find a system that is already difficult to navigate and has long-recognized racial and gender disparities in access and outcomes. Student loan borrowers will find a system with even more …

Bursting The Auto Loan Bubble In The Wake Of Covid-19, Pamela Foohey

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Before the COVID-19 pandemic, auto loans outstanding in the United States had soared to record highs. The boom in lending spanned new and used cars and traditional and subprime loans. With loan delinquencies also hitting new highs almost every quarter, predictions that the auto lending market could burst soon abounded. When the economy came to a grinding halt and unemployment skyrocketed in the wake of the pandemic, auto lenders knew they were facing a crisis. Throughout 2020, auto lenders granted more payment forbearances to consumers, while slashing interest rates on new loans. Auto manufacturers similarly made promises to buyers, such …

Nestlé United States, Inc. V. Doe. 141 S. Ct. 1931 (2021), Desiree Leclercq

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On June 17, 2021, the United States Supreme Court reversed and remanded a suit filed against Nestlé USA and Cargill under the Alien Tort Statute (ATS) 1 for lack of jurisdiction. This case has already garnered attention over the nature of the dispute (child slaves in Africa), the Supreme Court’s treatment of jurisdiction under the ATS, and the finding shared by five of the nine Supreme Court justices that domestic corporations can potentially be sued under the ATS. This analysis focuses on the child slavery and global supply chain aspects of the decision.

Restoring Student Press Freedoms: Why Every State Needs A 'New Voices' Law, Clare R. Norins, Taran Harmon-Walker, Navroz Tharani

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Scholastic journalists across America have long provided vital reporting, commentary, and fresh perspective on issues of public concern to their readers. Never has this been more true than in the current age of dwindling print media, where scholastic journalists at both the high school and post-secondary levels are stepping in to populate what would otherwise be news deserts. Yet the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), allows school officials to censor both the content and style of school-sponsored media without offending the First Amendment. This essay traces the history of student speech rights …

Introduction To The Symposium On Frédéric Mégret, "Are There 'Inherently Sovereign Functions' In International Law?", Melissa J. Durkee

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Imagine a future in which the U.S. government has closed the postal service, shuttered its administrative apparatus, and stopped funding education. Confirmation battles have dismantled the federal judiciary, with most adjudication now performed by private arbitrators. After years of erosion of public standards, corporate environmental and labor practices are now left to voluntary self-regulation and market pressures. Private military and security companies command and regulate a vast military infrastructure, executing contracts to meet U.S. intelligence and defense requirements. Prisons have been fully privatized. After losing faith in elections, the U.S. populace no longer insists on them. The country is administered …

Diversity In Mdl Leadership: A Field Guide, Elizabeth Chamblee Burch

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Multidistrict litigation (MDL) includes some of the most high-profile torts of our day—opioids, talc, RoundUp, to name a few—but the attorneys who spearhead these proceedings often look a lot like they did fifty years ago: predominately white and predominately male.

A debate has emerged over whether attorneys best positioned to fill MDL leadership roles are the grizzled repeat players who appear time and again—and who are largely white, older, and male—or newcomers with fresh ideas and energy who may not always look like their predecessors. And if diversity is important, what kind of diversity matters?

In this short essay, I …

Mdl Revolution, Elizabeth Chamblee Burch, Abbe Gluck

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Over the past 50 years, multidistrict litigation (MDL) has quietly revolutionized civil procedure. MDLs include the largest tort cases in U.S. history, but without the authority of the class-action rule, MDL judges—who formally have only pretrial jurisdiction over individual cases—have resorted to extraordinary procedural exceptionalism to settle cases on a national scale. Substantive state laws, personal jurisdiction, transparency, impartiality, reviewability, federalism, and adequate representation must all yield if doing so fulfills that one goal.

Somehow, until now, this has remained below the surface to everyone but MDL insiders. Thanks to the sprawling MDL over the opioid crisis—and unprecedented opposition to …

Information For The Common Good In Mass Torts, Elizabeth Chamblee Burch, Alexandra D. Lahav

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In recent years, judges have privileged confidentiality over transparency in discovery, especially in large scale multidistrict litigation such as the Opiate litigation. By uncovering the assumptions underlying our current regime, this Article sheds light on the process that got us here as a first step towards re-envisioning the rules governing information in litigation. We investigate an untold history of discovery’s publicity to show that many of our assumptions about what is public and what is private is historically contingent, even accidental. So too are our assumptions about the best way to arrive at truth.

Accordingly, we suggest that courts ought …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

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In 2020,1 the United States Court of Appeals for the Eleventh Circuit held that a provision of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)2 that tolled statutes of limitation in state law claims did not apply to a claim brought under the Price-Anderson Act (PAA),3 providing an exclusive federal cause of action for harm resulting from exposure to radioactive materials, even though the PAA "borrows" all substantive law governing liability, including a relevant statute of limitation, from the law of the state where the harm occurred. 4 The United States District Court for the Northern District of Georgia …

How Journalists Think About The First Amendment Vis-À-Vis Their Coverage Of Hate Groups, Gregory Perreault, Jonathan Peters, Brett Johnson, Leslie Klein

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This study, based on in-depth interviews with U.S.-based journalists (n = 18), explores the increasingly fraught circumstances of reporting on hate groups. We examine how journalists think about the First Amendment vis-à-vis their coverage of such groups. Through the lens of media ecology and First Amendment principles and theories, we argue ultimately that journalists who cover hate groups use the First Amendment to identify their place in the journalistic environment.

Does The Supreme Court’S Decision In Wayfair Apply Retroactively?, Walter Hellerstein, Andrew D. Appleby

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A recent decision of the Oregon Tax Court suggests that it may be premature to dismiss the challenging questions raised by the retroactive application of Wayfair as entirely hypothetical. Accordingly, after providing an overview of the case law governing retroactive application of Supreme Court state tax decisions repudiating preexisting constitutional doctrine, we examine the Oregon Tax Court’s opinion in Global Hookah Distributors Inc. v. Department of Revenue, which addressed the question whether Wayfair applied retroactively to the state’s tobacco products tax.

Self-Defense To Cyber Force: Combatting The Notion Of 'Scale And Effect', Thomas Eaton

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The ability to reach out, with a few keystrokes or a couple lines of code, through the interconnected world of cyberspace and create militarily advantageous effects 10,000 miles away has changed warfare as previously conceived, perhaps more than any other advancement in any other domain of war. Cyber weapons are weapons, and whatever law applies to conventional weapons equally applies to cyber weapons. Long before cyber operations were even science fiction, there was much debate over what constituted a use of force that would justify force in response. In many ways, the debate over what constitutes cyber-attacks has been pasted …

International Law As Behavior: An Agenda, Harlan G. Cohen, Timothy Meyer

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Over the past few decades, scholars in a variety of fields – economics, psychology, sociology, anthropology, and international relations, among others – have made enormous strides studying the behavioral roots of international law by exploring individual motivations, describing organizational cultures, and mapping communities of practice. Taken together, the work of these scholars presents a complex, nuanced understanding of how international law works. However, these projects are rarely considered together: often separated by academic enclosures and focused on different subfields within international law, communication among scholars using different methodologies is restricted. The goal of this book is to break down some …

Tax Policy And Covid-19: An Argument For Targeted Crisis Relief, Assaf Harpaz

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The COVID-19 pandemic caused a sharp global economic decline. By the end of 2021, the U.S. government responded to the downturn with record fiscal legislation totaling over $5 trillion, which includes considerable tax relief. Most notably, the U.S. government distributed over $800 billion in three rounds of advanced refundable tax credits (known as recovery rebates, or stimulus checks) to most households. Tax relief has been unprecedented in scale but has often been the product of political circumstances rather than principled policy design. Tax relief thus remains largely undertheorized and politically motivated.

This Article examines the U.S. tax policy response to …

Taxation Of The Digital Economy: Adapting A Twentieth-Century Tax System To A Twenty-First-Century Economy, Assaf Harpaz

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This Article analyzes the tax challenges of digitalization and the potential solutions to address them. This Article argues in favor of a multilateral approach and proposes applying a new tax nexus based on market thresholds subject to a global de minimis amount. As more companies conduct business online, current international tax law and its principles have failed to adapt to global commercial practices. Digital-tech giants such as Facebook, Google and Amazon have been able to exploit the international tax framework by avoiding a physical presence in the jurisdiction of their consumers. As a result, profits of highly digitalized enterprises can …

The Disparate Treatment Of Rights In Trade, Desiree Leclercq

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Rights advocates are increasingly urging U.S. trade negotiators to include new binding and sanctionable provisions that would protect human rights, women’s rights, and gender equality. Their efforts are understandable. Trade agreements have significant advantages as a process for advancing global rights. Even though Congress and the Executive incorporate global environmental standards and labor rights in U.S. trade agreements, they have refused to incorporate gender rights and broader human rights. The rationale behind the United States’ disparate treatment of rights in trade has received almost no scholarly attention. That is a mistake.

Using labor rights as a case study, this Article …

Confrontation In The Age Of Plea Bargaining, William Ortman

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A defendant’s right to confront the witnesses against him is a cornerstone of our adversarial system of criminal justice. Or is it? Under current law, defendants can invoke their confrontation right only by going to trial. But trials account for about five percent of criminal convictions. That means that the overwhelming majority of defendants convicted in the United States never get to exercise their constitutional right to confront the government’s witnesses. This Essay argues that the Supreme Court should align its Confrontation Clause jurisprudence with the reality of contemporary criminal justice. The Sixth Amendment grants a criminal defendant the right …

"We Can't Breathe." Like George Floyd, Black Families In New York City Have A Knee On Their Necks, Shanée Brown

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While watching the murder of George Floyd, one thing should have remained imprinted in everyone's mind: he was a father. This racist officer permanently separated a father from his children when he recklessly, yet intentionally placed his knee on Mr. Floyd's neck for eight minutes and forty-six seconds. When the Administration for Children's Services ("ACS") removes Black children from their homes for unjust reasons, it places its knee on the necks of Black families.

Breathing as a family involves parents and children inhaling and exhaling the love shown to each other. To separate a family means to obstruct that family's …

Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy

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No abstract provided.

Rbg And Gender Discrimination, Eileen Kaufman

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No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

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No abstract provided.

Defining Antisemitism, Mark Goldfeder

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Antisemitic harassment is illegal, but without a standard definition of what ‘antisemitism’ includes, that idea is almost meaningless. That is why state legislatures and university administrators across the country are debating enacting policies that adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism. This Article will illustrate precisely how a state bill or a university policy utilizing the IHRA definition for assessing motivation when analyzing discriminatory conduct claims would actually function, so that critics can no longer vaguely claim that such policies would somehow offend the First Amendment. It will also explain the difference between protected political speech and …

Downtown Condos For The Rich: Not All Bad, Michael Lewyn

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Some new condominiums in urban neighborhoods are too expensive for anyone but the very wealthy. Buyers of these high-cost units include not only wealthy city residents, but also nonresidents who wish to use housing as an investment rather than a residence. Some commentators use this apparent fact as an argument against new market-rate housing generally; they claim that new housing will be purchased by out-of-town investors rather than used by local residents and that those investors will leave housing units empty, rather than renting them out. A related argument is that, even if market-rate condos are purchased by local residents, …

The Role Of Lawyers In Bridging The Gap Between The Robust Federal Rights To Education And Relatively Low Education Outcomes In Guatemala, Maryam Ahranjani

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Relative to other countries in the world and in Central America, the Guatemalan Constitution and the federal education law include a robust and detailed right to education. However, literacy rates and secondary educational attainment, particularly for Indigenous people and young women living in rural communities, remain low. The COVID-19 pandemic has only exacerbated disparities. Once children return to schools after the pandemic, the gaps will be even larger. Lawyers can play a critical role in making the strong Constitutional right to education more meaningful.

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

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In the wake of George Floyd's murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread "security" measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective-and constitutionally compliant-alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

Who Wants To Be A Prosecutor? And Why Care? Law Students' Career Aspirations And Reform Prosecutors' Goals, Shih-Chun Steven Chien, Stephen Daniels

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Often called "progressive" or "reform" prosecutors, a number of reform-minded prosecutors have been elected recently across the United States-promising a distinctive vision of criminal justice and signaling that their role will be more attuned to issues of race and equity than "law and order." Furthering this vision requires dramatic changes to the working cultures-the norms, practices, and even personnel-of their offices. Diversity plays a major role.

One central challenge is identifying, attracting, and hiring newly minted lawyers who can, over time, be socialized into and sustain a changing organizational culture. This article empirically examines that challenge, which involves two sides …

Law School Memories: Building Empathy By Connecting To One's Earlier Self, Drew Simshaw

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No abstract provided.

What Is The Meaning Of "Plain Meaning", Jeffrey W. Stempel

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The American approach to construing texts (statutes, regulations, contracts and documents generally) stresses decision through determining the “plain meaning” of the document based on the court’s reading of the text. Where the court finds plain meaning on the face of text, it generally refuses to consider additional contextual information or extrinsic evidence of meaning.

Notwithstanding its status as the dominant approach to interpretation, the plain meaning concept has not been well defined or operationalized. Despite judicial confidence in the plain meaning approach, courts have wisely been willing to sidestep it and eschew the rather clear facial meaning of text when …

Intersectionality, Police Excessive Force, And Class, Frank Rudy Cooper

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Recent uprisings over the failure to hold police officers responsible for killing civilians—from Ferguson, Missouri to nationwide George Floyd protests—show the importance of excessive force as a social problem. Some scholars have launched racial critiques of policing as resulting from explicit or implicit racial bias. This Essay is the first to demonstrate that an intersectional analysis of both race and class helps explain both aggressive policing and the Court’s permissive excessive force doctrine.

This Essay identifies several take-aways from intersectionality theory’s basic insight that unique senses of self-identity and unique stereotypes form at places where categories of identity meet. First, …