Law Commons^™

Understanding Our Digital Fingerprints: Metadata, Competency, And The Future Practice Of Law, Stacey Lane Rowland

Faculty Publications

Metadata, often referred to as “data about data,” plays a crucial role in the digital world. It encompasses embedded information within electronic documents that reveals details about their creation, modification, and transmission. In legal proceedings, metadata can be both helpful and controversial, as it can expose sensitive information and potentially support or refute claims of fabricated evidence. With the widespread use of smartphones and other electronic devices, individuals generate vast amounts of personal data, including metadata, that can provide detailed insights into their lives.

This Article explores the significance of metadata in various contexts, such as digital photographs, and highlights …

The Gender Of Gideon, Kathryn A. Sabbeth, Jessica Steinberg

Faculty Publications

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the U.S. Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article …

Understanding Uncontested Prosecutor Elections, Carissa Byrne Hessick, Sarah Treul, Alexander Love

Faculty Publications

Prosecutors are very powerful players in the criminal justice system. One of the few checks on their power is their periodic obligation to stand for election. But very few prosecutor elections are contested, and even fewer are competitive. As a result, voters are not able to hold prosecutors accountable for their decisions. The problem with uncontested elections has been widely recognized, but little understood. The legal literature has lamented the lack of choice for voters, but any suggested solutions have been based on only anecdote or simple descriptive analyses of election data.

Using a logistic regression analysis, this Article estimates …

Pregnancy Advance Directives, Joan H. Krause

Faculty Publications

Part I of this Article provides a general introduction to the various types of advance directives available in the United States, including their goals and limitations. Part II provides a detailed overview of pregnancy restrictions, including comparisons of the substantive restrictions, procedural issues, and rationales for restricting the application of advance directives during pregnancy. Part III offers a critical analysis of both the scholarship addressing pregnancy restrictions and the litigation seeking to challenge the restrictions, demonstrating that the existing legal framework has not been satisfactory in resolving the issues—a situation that will only be exacerbated by the Supreme Court’s recent …

Mcconnell’S Gamble, Peter Nemerovski

Faculty Publications

Part I of the Article discusses the recent history of Supreme Court nominations, beginning with President Ronald Reagan’s unsuccessful nomination of Judge Robert Bork in 1987. It attempts to explain how the Senate, in just a few decades, went from confirming three justices unanimously to confirming four consecutive justices with fewer than 55 votes, amidst increasing partisan rancor. Part II summarizes the new rules of the game in light of the actions taken by both parties, and their justifications for those actions, in the years since Scalia’s death. Part III explores what the future of Supreme Court nominations will look …

Gender Violence As Legacy: To Imagine New Approaches, Deborah M. Weissman

Faculty Publications

This essay considers gender violence as a consequence of systemic problems rooted in patriarchal structures, transacted through poverty and inequality, and embedded in a historically conditioned political economy. It is informed by the scholarship that propounds the need to develop community responses independent of the carceral system as a means to address the systemic source factors that contribute to Intimate Partner Violence (“IPV”), with attention to restorative and transformative justice approaches (RJ/TJ). This essay advances anti-violence scholarship to suggest the need to reconceptualize gender discrimination, poverty, and inequality as cause and consequence of social ills, and, moreover, to contribute to …

Fake News And The Tax Law, Kathleen Delaney Thomas, Erin Scharff

Faculty Publications

The public misunderstands many aspects of the tax system. For example, people frequently misunderstand how marginal tax rates work, misperceive their own average tax rates, and believe they benefit from tax deductions for which they are ineligible. Such confusion is understandable given the complexity of our tax laws. Unfortunately, research suggests these misconceptions shape voter preferences about tax policy which, in turn, impact the policies themselves.

That people are easily confused by taxes is nothing new. With the rise of social media platforms, however, the speed at which misinformation campaigns can now move to shape public opinion is far faster. …

Ai, Taxation, And Valuation, Jay A. Soled, Kathleen Delaney Thomas

Faculty Publications

Virtually every tax system relies upon accurate asset valuations. In some cases, this is an easy identification exercise, and the exact fair market value of an asset is readily ascertainable. Often, however, the reverse is true, and ascertaining an asset’s fair market value yields, at best, a numerical range of possible outcomes. Taxpayers commonly capitalize upon this uncertainty in their reporting practices, such that tax compliance lags and the IRS has a difficult time fulfilling its oversight responsibilities. As a by-product of this dynamic, the Treasury suffers.

This Article explores how tax systems, utilizing artificial intelligence, can strategically address asset-valuation …

Gender Violence As A Penalty Of Poverty, Deborah M. Weissman

Faculty Publications

The matter of gender violence, including intimate partner violence (IPV), has long been categorized as a particularly egregious crime. The consequences of IPV are profound and affect all members of the household, family members near and far, and the communities where they live. Gender violence impacts the national economy. Costs accrue to workplaces, health care institutions, and encumber local and state coffers. Survivors are deprived of income, property, and economic stability: conditions that often endure beyond periods of physical injuries. Offenders also experience economic hardship as a result of involvement with the legal system. They often face significant obstacles when …

Mass Sovereign Debt Litigation: A Computer-Assisted Analysis Of The Argentina Bond Litigation, Gregory Makoff, W. Mark C. Weidemaier

Faculty Publications

This Article presents a computer-assisted analysis of the first large-scale mass litigation of sovereign debt claims. Between 2002 and 2016, hundreds of lawsuits were filed against Argentina in the United States, virtually all in the Southern District of New York. Historically, litigation against a foreign government would have involved a few hedge funds that had invested in debt at distressed prices. Argentina faced thousands of investors, including small retail bondholders, in litigation that more closely resembled a mass tort or federal multidistrict litigation than any prior episode involving a sovereign’s debt default.

To study this sprawling litigation, this Article combines …

Crimes Against Probate, Kevin Bennardo, Mark Glover

Faculty Publications

Policymakers have increasingly turned their attention to wrongdoing that affects wills, such as the forgery of wills, the procurement of wills through coercion or deceit, and the destruction or suppression of wills. In particular, they have attempted to deter this misconduct by punishing wrongdoers through new forms of criminal and civil liability. Because the United States is on the precipice of the largest intergenerational wealth transfer in history, a significant portion of which will take place through wills, these attempts of deterrence are well-intentioned. However, their implementation has been flawed.

These implementation difficulties stem from the fact that a will …

The Fraternity Of Legal Style, Alexa Z. Chew

Faculty Publications

This article reports the findings of an empirical study of writing experts mentioned in popular legal style books. The study shows that these experts are overwhelmingly men. This study complements the many other studies showing that gender and racial bias exists throughout the legal profession, but it focuses on one area that has not yet been examined: bias in books that give writing advice to lawyers. I call these books “legal style books.” The area of legal writing advice books is admittedly niche. However, it is worth studying because writing is central to lawyering.

Teaching Law And Science Fiction At The University Of Mississippi, Ellie Campbell, Antonia Eliason

Faculty Publications

No abstract provided.

Unleashing Pets From Dead-Hand Control, Kaity Emerson, Kevin Bennardo

Faculty Publications

Many pet owners feel strongly about their animals. Some feel so strongly that they desire their pets to accompany them to the grave. This Article addresses the validity of pet euthanasia provisions in decedents’ wills.

Pet owners generally have the legal power to humanely euthanize their pets. In addition, the primary focus of the law of wills is to effectuate the wishes of the decedent. These two facts seem to counsel in favor of carrying out a testamentary instruction to humanely euthanize a companion animal. Yet courts generally decline to enforce pet euthanasia provisions whenever an objection is raised by …

The Last Breakfast With Aunt Jemima And Its Impact On Trademark Theory, Deborah R. Gerhardt

Faculty Publications

The generally-accepted law and economics theory of trademarks fails to explain why a brand owner would ever walk away from a trademark that generates financially lucrative returns. In 2020, that is exactly what happened again and again as brand owners pledged to abandon racially explicit marks in the weeks following George Floyd’s murder. As citizens became more attuned to the experiences of those depicted in racial marks, the owners of Aunt Jemima, Uncle Ben’s, the Cleveland Indians, the Redskins, the Dixie Chicks, Lady Antebellum and others announced these brands’ days were numbered. By evoking racist stereotypes, they became a moral …

“Shall Not Be Construed”: Reversal Of Supreme Court Decisions By Constitutional Amendment, John V. Orth

Faculty Publications

This Article considers the way in which small changes of wording can signal large changes of thought in the United States Constitution (Constitution). Drawing upon examples found in the Eleventh and Sixteenth Amendments, and in the Reconstruction Amendments, the Article shows that there are two ways to reverse a U.S. Supreme Court decision by constitutional amendment. The first type of amendment may reverse the decision by instructing the Court on the proper construction of a particular provision, as in the case of the Eleventh Amendment. The second means involves reversing the decision by altering the constitutional provision in question, rather …

Turducken™ Legal Writing: Deconstructing The Multi-State Performance Test Genre, Kaci Bishop, Alexa Chew

Faculty Publications

The Multistate Performance Test (MPT) has been praised as the most redeeming part of the otherwise unredeemable bar exam because it most aligns with what new attorneys do in practice. It has also been praised, along with other performance tests, as a useful teaching tool throughout the law school curriculum. This article builds on prior scholarship about the MPT by analyzing the MPT as a tool for teaching and testing legal writing and professional communication skills.

The new insight that this article brings is that the testing aspect of the MPT tends to engulf the teaching aspect; understanding both of …

The Inequity Of Informal Guidance, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

The coexistence of formal and informal law is a hallmark feature of the U.S. tax system. Congress and the Treasury enact formal law, such as statutes and regulations, while the Internal Revenue Service offers the public informal explanations and summaries, such as taxpayer publications, website frequently asked questions, virtual assistants, and other types of taxpayer guidance. Throughout the COVID-19 pandemic, the IRS increased its use of informal law to help taxpayers understand complex emergency relief rules implemented through the tax system.

In contrast to many other legal scholars who have examined important administrative law issues regarding informal tax guidance, in …

Saying The Quiet Parts Out Loud: Teaching Students How Law School Works, Alexa Z. Chew, Rachel Gurvich

Faculty Publications

The summer of 2020 was an inflection point for legal education’s relationship with racial and other inequities. After Minneapolis police murdered George Floyd, faculty, administrators, and students spoke out with increased urgency about the need to address race in law school curricula. For example, professors sought to give race context to cases found in law school casebooks by not presenting judicial opinions as neutral statements of the law. Many law schools, including our own, formally (re)dedicated themselves to helping students recognize and analyze structural inequalities and how the law perpetuates them.

Law schools focused on what their faculty and graduates …

Racial Capitalism In The Civil Courts, Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg, Lauren Sudeall

Faculty Publications

This Essay explores how civil courts function as sites of racial capitalism. The racial capitalism conceptual framework posits that capitalism requires racial inequality and relies on racialized systems of expropriation to produce capital. While often associated with traditional economic systems, racial capitalism applies equally to nonmarket settings, including civil courts.

The lens of racial capitalism enriches access to justice scholarship by explaining how and why state civil courts subordinate racialized groups and individuals. Civil cases are often framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants enter the civil legal system involuntarily, and the state …

Simplicity Lost, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

Policymakers, government officials, and scholars have long described tax complexity as one of the most serious problems affecting tax administration and tax compliance in the United States. Some of the costs of tax complexity include billions of hours of “paperwork and other headaches” that taxpayers face each year as they attempt to comply with complex tax law, monetary costs that taxpayers bear when they hire advisors and purchase software to report their tax liability and file their tax returns, difficulties that taxpayers encounter when attempting to claim tax credits and other tax benefits, and challenges the Internal Revenue Service (IRS) …

Eviction Courts, Kathryn A. Sabbeth

Faculty Publications

This Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact.

The Article identifies ten groups of laws that structure critical design features of eviction courts: (1) filing fee statutes that make …

Citation Stickiness, Computer-Assisted Legal Research, And The Universe Of Thinkable Thoughts, Aaron S. Kirschenfeld, Alexa Z. Chew

Faculty Publications

This article seeks to answer two main questions. The first is whether courts cited the same cases as the parties more often during the print era than during the digital era. The second is what, if anything, the answer to the first question can contribute to the debate about how print-era forms of organizing and describing case law influenced researchers’ behavior. To that end, we sampled cases from 1957, 1987, and 2017, and used “citation stickiness” to study the differences in how parties and judges cited authorities during each of those years. In short, we found that there is less …

Policing The Polity, Eisha Jain

Faculty Publications

The era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full …

The Law According To She-Hulk, Kevin Bennardo

Faculty Publications

First introduced in Marvel comics in 1979, Jennifer Walters is the fictional character best known as the She-Hulk. Her profession is an attorney. While this article occasionally draws from source material elsewhere in the Marvel comics, its primary focus is the third She-Hulk series, which was published in twelve issues from 2014 to 2015. This series is considered to be the most legally focused of the She-Hulk series and was written by an attorney, Charles Soule. Soule himself describes the series as “a book starring a superhero who rarely super heroes. Instead of that, she *gulp* lawyers.”

As is normal …

Implicit Legislative Bias: The Case Of The Mortgage Interest Deduction, Kathleen Delaney Thomas, Leigh Z. Osofsky

Faculty Publications

The home mortgage interest deduction is over 100 years old. The deduction has been subject to increasing and, at times, withering criticism from commentators. Scholars have argued that the mortgage interest deduction may be a particularly ineffective and regressive way to subsidize homeownership. Other scholars have made the important point that the mortgage interest deduction has a disparate racial impact: homeowners are disproportionately white, so the deduction disproportionately benefits white people at the expense of people of color. Yet, the mortgage interest deduction has retained remarkable and costly staying power despite all the critiques.

How has the mortgage interest deduction …

Automated Video Interviewing As The New Phrenology, Ifeoma Ajunwa

Faculty Publications

This Article deploys the new business practice of automated video interviewing as a case study to illuminate the limitations of traditional employment antidiscrimination laws. Employment antidiscrimination laws are inadequate to address the unlawful discrimination attributable to emerging workplace technologies which gatekeep employment opportunities. The Article maintains that the practice of automated video interviewing is based on shaky or unproven social scientific principles that disproportionately impact racial minorities. In this way, the practice of automated video interviewing is analogous to the pseudoscience of phrenology, which enabled societal and economic exclusion through the legitimization of eugenicist and racist attitudes. After parsing the …

Covid-19 And The Perils Of Free-Market Parenting, Maxine Eichner

Faculty Publications

U.S. public policy has for decades rested on the expectation that parents will privately provide the cash and conditions their children need. This expectation is exceptional: most other wealthy countries’ public policies support children through a mix of public and private funds. The COVID-19 pandemic, however, radically changed U.S. policy. The severe economic dislocation that resulted led Congress to pass a series of measures that funneled trillions of public dollars to families and parents. Whether these measures should represent a temporary deviation from the nation’s free-market expectations during an unprecedented emergency or the first step in a long-term shift toward …

Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails, There Is The Possible Application Of Bostock V. Clayton County, Kevin Brown, Lalit Khandare, Annapurna Waughray, Kenneth Dau-Schmidt, Theodore M. Shaw

Faculty Publications

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …

“Contractually Valid” Forum Selection Clauses, John F. Coyle

Faculty Publications

In Atlantic Marine Construction Company v. United States District Court, the Supreme Court held that a “contractually valid” forum selection clause should be enforced by federal courts absent extraordinary circumstances. Unfortunately, the Court provided no guidance on how to assess whether a clause is “contractually valid.” This Article fills the gap. It argues that the answer to this question turns on three separate inquiries. First, a court should determine whether the forum selection clause is valid. Second, the court should interpret the forum selection clause to determine whether it is exclusive and applies to the claims asserted. Third, the …