Law Commons^™

Transforming Constitutional Doctrine Through Mandatory Appeals From Three-Judge District Courts: The Warren And Burger Courts And Their Contemporary Lessons, Michael E. Solimine

Faculty Articles and Other Publications

Judicial interpretations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment underwent significant change, both expanding and retrenching in various ways, in Supreme Court doctrine during the Warren and Burger Courts. An underappreciated influence on the change is the method by which those cases reached the Court’s docket. A significant number of the cases reached the Court’s docket not by discretionary grants of writs of certiorari, as occurred in most other cases, but by mandatory appeals directly from three-judge district courts. This article makes several contributions regarding the important changes in these doctrines during the Warren Court …

No Peeking: Addressing Pretextual Inspection Demands By Competitor-Affiliated Shareholders, Lin (Lynn) Bai, Sean Meyer

Faculty Articles and Other Publications

This article exposes how Delaware private companies are vulnerable to pretextual inspections under the guise of valuation by shareholders who are affiliated with competitors of the companies. The Delaware Court of Chancery’s 2020 decision in Woods v. Sahara Enterprises, Inc., which deviated from established law by switching the initial burden of proof of the shareholder’s motive to the target company, exacerbated this vulnerability. This article argues for reversing that decision and proposes changes in multiple areas of law to help companies fend off prying competitors who abuse statutory shareholder inspection rights for unfair advantages in competition.

Shareholder Inspection Rights: From Credible Basis To Rational Belief, Lin (Lynn) Bai

Faculty Articles and Other Publications

Jurisdictions are split on the standard of proof for shareholder inspection lawsuits when inspections are for the purpose of investigating managerial misconduct. Delaware and its followers apply a credible basis standard that calls for extrinsic evidence, beyond mere suspicion, curiosity, or disagreement with management, to permit an inference of misconduct. A minority of jurisdictions require shareholders to show merely a rational belief that mismanagement likely happened. Rational belief can be satisfied by sound logic without referencing extrinsic evidence. The Delaware Supreme Court rejected rational belief for fear that a permissive standard would lead to a cascade of frivolous inspections, although …

Leveraging Professional Identity Formation In The Doctrinal Law School Class, Louis D. Bilionis

Faculty Articles and Other Publications

American law schools are paying increased attention to the professional identity formation of their students. The trend should grow now that the American Bar Association’s Section of Legal Education and Admissions to the Bar has revised its accreditation standards to prescribe that “a law school shall provide substantial opportunities to students for … (3) the development of a professional identity.”

As law school faculty and staff proceed, professors who teach traditional doctrinal classes may doubt they can do much if anything differently in their courses to support professional identity formation. Questions about course coverage and their own competency to focus …

Did The Supreme Court In Transunion V. Ramirez Transform The Article Iii Standing Injury In Fact Test?: The Circuit Split Over Ada Tester Standing And Broader Theoretical Considerations, Bradford Mank

Faculty Articles and Other Publications

Some commentators have criticized the Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins and especially the Court’s 2021 decision in TransUnion LLC v. Ramirez for limiting Congress’ authority to confer standing by statute. For example, in his article, Injury in Fact Transformed, Professor Cass Sunstein argues that TransUnion is a “radical ruling” that uses the injury in fact standing requirement to limit the authority of Congress to enact only statutes that address harms that have a close relationship to traditional or common law harms. By contrast, Professor Ernst Young argues that the Supreme Court’s injury in fact doctrine is …

Three-Judge District Courts, Direct Appeals, And Reforming The Supreme Court’S Shadow Docket, Michael E. Solimine

Faculty Articles and Other Publications

The “shadow docket” is the term recently given to a long-standing practice of the United States Supreme Court, in granting or denying requests for stays of lower court decisions, often on a hurried basis with rudimentary briefing and no oral argument, and with little if any explanation by the Court or individual Justices. Recently the practice has received unusual attention inside and outside the legal community, because of its seemingly greater use by the Court in high-profile cases, with the emergency orders sought by the federal government or state officials. Scholars have advanced various reforms to ameliorate the perceived problems …

Clearing The Way To Renminbi Domination: Cips, Antitrust, And Currency Competition, Felix B. Chang

Faculty Articles and Other Publications

China watchers have decried the emergence of the Cross-Border Interbank Payment System (“CIPS”) as a turning point in the move to dethrone the U.S. dollar. This Article situates CIPS, which clears and settles Chinese renminbi transactions, with other financial market infrastructures, drawing lessons from how those entities have thrived or failed.

In recent conversations, CIPS has been conflated with other infrastructures (e.g., the SWIFT payment messaging system) and currency trends (e.g., de-dollarization and sanctions evasion). However, a currency clearinghouse is very different than most financial institutions. For CIPS, the market-maker in the adjacent trading market is the Chinese government, a …

How Should Inheritance Law Remediate Inequality?, Felix B. Chang

Faculty Articles and Other Publications

This Essay argues that trusts and estates (“T&E”) should prioritize intergenerational economic mobility—the ability of children to move beyond the economic station of their parents—above all other goals. The field’s traditional emphasis on testamentary freedom fosters the stickiness of inequality. For wealthy settlors, dynasty trusts sequester assets from the nation’s system of taxation and stream of commerce. For low-income decedents, intestacy splinters property rights and inhibits their transfer, especially to nontraditional heirs.

Holistically, this Essay argues that T&E should promote mean regression of the wealth distribution curve over time. This can be accomplished by loosening spending in ultrawealthy households and …

Recognition And Enforcement Of Foreign Judgments In American Courts And The Limits Of The Law Market Model, Michael E. Solimine

Faculty Articles and Other Publications

The law market model posits that the most appropriate resolution of choice of law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to a healthy competition among jurisdictions to supply the most efficient law. This model has been followed in several areas, most notably in the widespread enforcement, at least within …

Facebook, Welfare, And Natural Monopoly: A Quantitative Analysis Of Antitrust Remedies, Felix B. Chang, Seth Benzell

Faculty Articles and Other Publications

This Article advances a novel theoretical model for assessing policy interventions against Facebook. As prosecutors barrel forward against digital platforms, soon it will fall upon courts and, eventually, regulators to devise remedies. We argue that any sensible solution must include quantification of the welfare effects on the platform’s various constituents. Our model prioritizes the effects upon total societal welfare—or, in economists’ terms, social welfare. Applied to Facebook, the model calculates social welfare as the sum of four components: (i) consumer welfare; (ii) advertising profits; (iii) tax revenues; and (iv) the value of a large user base.

Drawing on surveys of …

Racially Collusive Boycotts: African American Purchasing Power In The Wigs And Hair Extensions Market, Felix B. Chang, Janelle Thompson, Anisha Rakhra

Faculty Articles and Other Publications

This Essay analyzes expressive boycotts in the market for wigs and hair extensions, where consumers are primarily African Americans and producers are almost uniformly Korean Americans. This type of ethnically segmented and misaligned (“ESM”) market raises unique doctrinal and theoretical questions. Under antitrust caselaw, the treatment of a campaign to divert business from Korean American–owned to African American–owned hair stores is uncertain because of the campaign’s mixed social and economic motives. Delving into the theoretical implications of this ESM market can help steer the doctrine appropriately. Along the way, such an exercise illuminates the nuances of racial solidarity and market …

Shareholder Appraisal Rights: Delaware’S Flawed Market-Out Exception, Lin (Lynn) Bai, William A. Murphy

Faculty Articles and Other Publications

State statutes give dissenting shareholders an appraisal right in some, but not all corporate mergers. A widely adopted market-out exception denies appraisal if the shares are publicly traded. The rationale for market-out is that the public market offers a reliable valuation of the stocks and a convenient exit to dissenting shareholders. A major criticism of market-out is that market prices may not reflect the full value of the shares due to information asymmetry in mergers involving conflicts of interests. Delaware’s market-out approach is drastically different from that adopted by the Model Business Corporation Act (MBCA), but both have a significant …

Do Seven Members Of Congress Have Article Iii Standing To Sue The Executive Branch?: Why The D.C. Circuit’S Divided Decision In Maloney V. Murphy Was Wrongly Decided In Light Of Two Prior District Court Decisions And Historical Separation Of Powers Jurisprudence, Bradford Mank

Faculty Articles and Other Publications

The D.C. Circuit’s divided decision in Maloney v. Murphy granting standing to minority party members of the House Oversight Committee appears questionable in light of two prior district court decisions in Waxman and Cummings that had denied standing in similar circumstances. Most importantly, Maloney is inconsistent with Supreme Court precedent regarding standing for individual members of Congress. In Raines v. Byrd, the Supreme Court held that individual members of Congress generally do not have standing to enforce institutional congressional interests such as whether a statute is constitutional, but that one or both Houses of Congress must sue as an institution. …

Reclaiming Safety: Participatory Research, Community Perspectives, And Possibilities For Transformation, Janet Moore

Faculty Articles and Other Publications

This paper offers the first known interdisciplinary, community-based participatory research study to focus directly on two questions that have drawn increased attention in the wake of global protests over racialized police violence: 1) What is the definition of safety? and 2) How can safety be made equally accessible to all? The study is part of a larger project that was co-designed by community members and academic researchers. The project aimed to strengthen local justice reform efforts by adding new data literacy skills to existing community-organizing capacity among Black residents of the Cincinnati, Ohio metropolitan area. Community-led roundtable discussions offered community …

What Law Schools Must Change To Train Transactional Lawyers, Stephanie Mcmahon

Faculty Articles and Other Publications

Not all lawyers litigate, but you would not know that from the first-year curriculum at most law schools. Despite 50% of lawyers working in transactional practices, schools do not incorporate its legal doctrines or skills in the foundational first year. That the Progressives pushed through antitrust laws and the New Dealers founded the modern administrative state reframed how people use the law, particularly in transactional practices, and should be given equal weight as the appellate-based common law in any legal introduction. Nevertheless, the law school model created by Christopher Columbus Langdell in the 1870s remains dominant. As this review of …

Limited Liability Partnerships: An (Overlooked) Hole In The Shield, Lin (Lynn) Bai, Sarah Harden

Faculty Articles and Other Publications

There is a split of judicial authority on whether limited liability applies when the creditor is a partner of a limited liability partnership. The New York Court of Appeals narrowly interpreted the partnership statute and denied the applicability, but the California Court of Appeals upheld it. The difference has been overlooked by the legal and business communities. This paper shows that the narrow interpretation is inconsistent with the legislative intent, laden with procedural obstacles in enforcement, and inharmonious with settled legal doctrines and tenets of law-making.

Inmates May Work, But Don't Tell Social Security, Stephanie Mcmahon

Faculty Articles and Other Publications

This Article examines the ways in which inmates are carved out of the protections offered by the Social Security and Medicare systems. By statute, inmates are unable to receive Social Security or disability benefits while incarcerated. Additionally, in many circumstances, their labor does not constitute employment for purposes of calculating quarters of employment for benefits. Therefore, inmates may work their entire prison sentence and, yet, on release discover that they no longer have sufficient years left in their working lives to earn the benefits of Social Security for themselves or their dependents. As the United States grapples with its mass …

The Strange Career Of The Three-Judge District Court: Federalism And Civil Rights, 1954-76, Michael E. Solimine

Faculty Articles and Other Publications

The three-judge district court has had a long and strange career in the history of the federal court system. Congress created the court in 1910 as a response to the canonical decision of Ex parte Young two years earlier, which permitted federal court suits against state officials to facilitate constitutional challenges to state laws. The three-judge court statute was a reaction by Progressive Era politicians to such perceived judicial overreach, and required any such challenges to be brought before a specially convened trial court of three judges, with a direct appeal to the Supreme Court available. First established as a …

Confessions And Redemption—And Politics—For An Un-Neutral Person Who Mediates, Marjorie Corman Aaron

Faculty Articles and Other Publications

Within ADR’s house, and now in our arbitration and mediation rooms, we mediators, court ADR administrators, process designers,and arbitrators can construct and conduct processes that reflect moral values our law makers seem to have abandoned.

Reflections On Untethered Philosophy, Settlements, And Nondisclosure Agreements, Marjorie Corman Aaron

Faculty Articles and Other Publications

The potentially harmful consequences of nondisclosure agreements in private settlements are troubling. They are a legal system problem, however, for which ADR is not to blame. Unless NDAs were prohibited for all legal claims, prohibiting them in mediated settlements would create greater incentives for pre-litigation direct settlements. The result would be less, not more, public awareness of (alleged) misdeeds.

Mining The Harvard Caselaw Access Project, Felix B. Chang, Erin Mccabe, James Lee

Faculty Articles and Other Publications

This Essay illustrates how machine learning can disrupt legal scholarship through the algorithmic extraction and analysis of big data. Specifically, we utilize data from Harvard Law School’s Caselaw Access Project to model how courts tackle two thorny question in antitrust: the measure of market power and the balance between antitrust and regulation.

The Regulation Of Equity Index Futures, Lin (Lynn) Bai

Faculty Articles and Other Publications

Equity index futures are one of the most actively traded derivative instruments in financial markets around the world. Advancements in trading and clearing technologies transformed the marketplace over the past two decades. Regulation drastically changed to keep pace with the market’s development. New rules have been implemented covering trading activities, risk management, market surveillance, and customer protection. Legal literature on the regulation of this important financial instrument is surprisingly antiquated. Existing papers were written decades ago and do not reflect the true metes and bounds of today’s regulatory landscape. This paper fills the void. It provides a comprehensive discussion of …

Ethnically Segmented Markets, Felix B. Chang

Faculty Articles and Other Publications

Races often collide in segmented markets where buyers belong to one ethnic group while sellers belong to another. This Article examines one such market: the retail of wigs and hair extensions for African Americans, a multi-billion-dollar market controlled by Korean Americans. Although previous scholarship attributed the success of Korean American ventures to rotating credit and social capital, this Article ascribes their dominance in wigs and extensions to collusion and exclusion, tactics scrutinized under antitrust.

This Article is the first to synthesize the disparate treatment of ethnically segmented markets in law, sociology, and economics into a comprehensive framework. Its primary contribution …

Institutional Loyalty And The Design Of Partisan Gerrymandering Adjudication In The Federal Courts, Michael E. Solimine

Faculty Articles and Other Publications

In 2019 the Supreme Court held in Rucho v. Common Cause that challenges in federal court to partisan gerrymandering were nonjusticiable political questions. Writing for the 5-4 majority, Chief Justice John Roberts expressed concern that frequently deciding such cases would politicize the Court itself. Such expressions seem to fit well within the characterization of the Chief Justice as an institutionalist concerned with the legitimacy and reputation of the federal courts. This article addresses how the unique design and procedures of gerrymandering litigation in federal courts ought to inform such institutional loyalty arguments. Those features include that such cases are litigated …

Combating Stress & Promoting Wellness At Uc's College Of Law, Rachel J. Smith

Faculty Articles and Other Publications

Lawyers are stressed out, and so are law students. For decades, we have been saying that law students arrive at law school with the same level of mental wellness as the general population, but by the time they graduate from law school, law students have surpassed the general population in depression, anxiety and stress. To counteract this trend at the University of Cincinnati (UC) College of Law, we offer an extra-curriculum mind-body class.

Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino

Faculty Articles and Other Publications

This Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose. Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here. Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court should read …

Conditionality And Constitutional Change, Felix B. Chang

Faculty Articles and Other Publications

The burgeoning field of Critical Romani Studies explores the persistent subjugation of Europe’s largest minority, the Roma. Within this field, it has become fashionable to draw parallels to the U.S. Civil Rights Movement. Yet the comparisons are often one-sided; lessons tend to flow from Civil Rights to Roma Rights more than the other way around. It is an all-too-common hagiography of Civil Rights, where our history becomes a blueprint for other movements for racial equality.

To correct this trend, this Essay reveals what American scholars can learn from Roma Rights. Specifically, this Essay argues that the European Union’s Roma integration …

Does The Evolving Concept Of Due Process In Obergefell Justify Judicial Regulation Of Greenhouse Gases And Climate Change?: Juliana V. United States, Bradford Mank

Faculty Articles and Other Publications

Justice Kennedy’s Obergefell opinion, which held that same sex marriage is a fundamental right under the Constitution’s due process clause, reasoned that the principles of substantive due process may evolve because of changing societal views of what constitutes “liberty” under the clause, and that judges may recognize new liberty rights in light of their “reasoned judgement.” In Juliana v. United States, Judge Aiken used her “reasoned judgement” to conclude that evolving principles of substantive due process in the Obergefell decision allowed the court to find that the plaintiffs were entitled to a liberty right to a stable climate system capable …

Reviving Escobedo, Janet Moore

Faculty Articles and Other Publications

This Symposium Essay reflects on the fifty years that have passed since the Chicago Eight trial by highlighting a new development in criminal procedure that has drawn little scholarly attention: Judges are reviving the right of stationhouse access to defense counsel along lines previously envisaged in Escobedo v. Illinois. The Essay also offers fresh historical and theoretical perspective on the need for stationhouse counsel. First, the Essay draws on a series of events occurring during and after the Chicago Eight trial to illustrate the interrelationship of violence and silence in criminal legal systems, the distinctive coerciveness of custodial interrogation for …

Attorney-Client Communication In Public Defense: A Qualitative Examination, Janet Moore, Vicki L. Plano Clark, Lori A. Foote, Jacinda K. Dariotis

Faculty Articles and Other Publications

This article presents a qualitative research approach to exploring attorney-client communication in an urban public defense system. The study drew upon procedural justice theory [PJT], which emphasizes relationships between satisfaction with system procedures and compliance with system demands. Interpretive analysis of interview data from 22 public defense clients revealed four major themes. PJT accounted well for three themes of communication time, type, and content, highlighting relationships between prompt, iterative, complete communication and client satisfaction. The fourth theme involved clients exercising agency, often due to dissatisfaction with attorney communication. This theme was better accommodated by legal consciousness theory, which emphasizes that …