Law Commons^™

Death Penalty Exceptionalism And Administrative Law, Corinna Lain

Law Faculty Publications

"In the world of capital punishment, the oft-repeated refrain “death is different” stands for the notion that when the state exercises its most awesome power—the power to take human life—every procedural protection should be provided. Every safeguard should be met. Granted, doing so makes the death penalty cumbersome. And granted, it slows what Justice Blackmun famously called “the machinery of death.” But when the stakes are literally life and death, the idea is that we ought to make sure that whatever the state does, it does right.

Scholars have lamented the way that this idea of death penalty exceptionalism has …

Changing Lanes: Tax Relief For Commuters, Hayes R. Holderness

Law Faculty Publications

Tax law reaches all parts of life, and societal expectations about life's activities often affect how the law is applied. As those expectations change, application of the law should be expected to change in turn. This essay highlights changing societal views about commuting, particularly as a result of the COVID-19 pandemic, to demonstrate how even long-standing positions under the tax law can be quickly uprooted. Specifically, as working from home becomes standard, taxpayers should be afforded tax relief when required to commute into the workplace, despite the fact that the tax law traditionally has rejected such relief.

The Problem Of Problem-Solving Courts, Erin Collins

Law Faculty Publications

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively — at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

Covid-19'S Impact On Renewable Energy, Joel B. Eisen

Law Faculty Publications

"In keeping with this Symposium's focus on accelerating clean energy growth and nations' ability to meet climate goals, this Article examines recent trends during the COVID-19 pandemic that at least temporarily set back the pace of growth, although conditions have rebounded somewhat since a disastrous spring of 2020. This Article supports several near-term policy prescriptions aimed at promoting a speedier return to the upward trajectory renewable energy enjoyed before the pandemic. These include extending the tax policies that support renewables beyond their short-term extensions in pandemic relieflegislation and establishing robust programs to help workers in renewable energy industries who have …

Entrenched Racial Hierarchy: Educational Inequality From The Cradle To The Lsat, Kevin Woodson

Law Faculty Publications

For my contribution to this special issue of the Minnesota Law Review, I will attempt to situate the problem of black underrepresentation at America’s law schools within the broader context of racial hierarchy in American society. The former has generated an extensive body of legal scholarship and commentary, centering primarily on the racial impact of law schools’ admissions criteria and procedures, particularly the substantial weight placed upon the Law School Admissions Test (“LSAT”). This focus is understandable: given the substantial racial disparities in LSAT performance and the test’s relatively limited value in predicting academic and professional outcomes, it makes sense …

How Biden Began Building Back Better The Federal Bench, Carl Tobias

Law Faculty Publications

In October 2020, Democratic presidential nominee Joseph Biden famously expressed regret that the fifty-four accomplished, conservative, and young federal appellate court jurists and the 174 comparatively similar district court judges whom former– Republican President Donald Trump and the recent pair of analogous Grand Old Party Senate majorities in the 115th and 116th Congress appointed had left the courts of appeals and the district courts “out of whack.” Lamentable were the numerous detrimental ways in which President Trump and these Republican Senate majorities attempted to undercut the appeals courts and district courts, which actually constitute the tribunals of last resort in …

Structuring Techlaw, Rebecca Crootof, Bj Ard

Law Faculty Publications

Technological breakthroughs challenge core legal assumptions and generate regulatory debates. Practitioners and scholars usually tackle these questions by examining the impacts of a particular technology within conventional legal subjects — say, by considering how drones should be regulated under privacy law, property law, or the law of armed conflict. While individually useful, these siloed analyses mask the repetitive nature of the underlying questions and necessitate the regular reinvention of the regulatory wheel. An overarching framework — one which can be employed across technologies and across subjects — is needed.

The fundamental challenge of tech-law is not how to best regulate …

Three Observations About The Worst Of The Worst, Virginia-Style, Corinna Lain

Law Faculty Publications

Much could be said about Virginia’s historic decision to repeal the death penalty, and Professor Klein’s essay provides a wonderful starting point for any number of important discussions. We could talk about how the decision came to be. Or why the move is so momentous. Or what considerations were particularly important in the decision‑making process. Or where we should go from here. But in this brief comment, I’ll be focusing not on the how, or the why, or the what, or the where, but rather on the who. Who are condemned inmates, both generally and Virginia‑style?

Filling Judge Flaum's Vacant Seventh Circuit Seat, Carl Tobias

Law Faculty Publications

"On November 30, 2020, United States Court of Appeals for the Seventh Circuit Judge Joel Flaum assumed senior status after completing more than forty years in public service as one of the nation’s preeminent jurists. By then, Judge Flaum had compiled the longest active status tenure provided by a federal appellate court jurist, serving over practically thirty-eight years, six as chief judge of the prominent tribunal. On this day, the Senate also promptly resumed Congress’ lame duck session, which the upper chamber had begun after voters chose Joe Biden as President yet concomitantly appeared to retain a close Grand Old …

Virginia Renews Its Faith In Second Chances, The Honorable Jerrauld C. Jones, Julie E. Mcconnell

Law Faculty Publications

"On January 1, 1995, in the early morning hours, 17-year-old A.M. committed a crime in Virginia that would change his life forever. Tragically, he and two co-defendants took a man’s life. He will live the rest of his life regretting that day and working to become a better person. Something else significant happened on January 1, 1995˗˗Virginia’s legislation to abolish discretionary parole went into effect. (See Va. Code §53.1-165.1) If he had committed the crime one day earlier, A.M. would have been eligible for parole years ago. Under the new law, however, any person sentenced to a term of incarceration …

Bostock, The Crown Acts, And A Possible Right To Self-Expression In The Workplace, Henry L. Chambers, Jr.

Law Faculty Publications

Employment at-will is the default rule in American law. In the absence of an employment contract, employers are generally free to discharge workers for any reason not barred by statute or public policy. Typically, an employee can be fired when an employer dislikes an employee's self-expression that is not specifically protected by law. However, recent developments in employment discrimination law may provide the foundation for a burgeoning right to self-expression in the workplace. In its recent case Bostock v. Clayton County, the Supreme Court ruled sexual orientation discrimination and transgender discrimination necessarily involve sex discrimination under Title VII. The Court's …

Striking The Right Balance: Following The Doj's Lead For Innovation In Standardized Technology, Kristen Osenga

Law Faculty Publications

Today’s technology standards are the result of an extraordinary amount of innovation, collaboration and competition. These concepts are interrelated, and each is enhanced or enabled by intellectual property. Where these three concepts come together in standards development, it is unsurprising that antitrust concerns are also present. Specifically, the interests of contributors, participants, and implementers must be fairly balanced to ensure that the appropriate types and levels of innovation, collaboration, and competition can occur—and that the public will benefit. It is important that antitrust enforcement involving standards development organizations and owners of standards essential patents recognize the careful balance of these …

Strictly Speaking, What Needs To Change? A Review Of How Statutory Changes Could Bring Strict Products Liability To Virginia, Ryan C. Fowle

Law Student Publications

Virginia remains one of five states that refuse to adopt strict products liability. To date, the Supreme Court of Virginia has declined to follow the path Justice Traynor set out nearly a century ago, as its recent decisions confirm its resistance to strict liability. However, given the change in control of the General Assembly following the elections of 2017 and 2019, the General Assembly is in new hands and may remain that way for some time. This new legislative majority, among its plans for new policies, may soon consider establishing strict products liability by statute. In doing so, Virginia would …

Patents As Signals Of Quality In Crowdfunding, Christopher A. Cotropia

Law Faculty Publications

Patents and crowdfunding both attempt to foster early stage innova-tions. In theory, patents signal quality and value to attract investment and buyers and ultimately facilitate commercialization. Crowdfunding allows multiple individuals to make small contributions to finance start-up ven-tures. This Article reports on two related studies investigating the interac-tion between these two innovation tools by determining the impact of a crowdfunding campaign’s patent status on the campaign’s success and de-livery. The first study examines 9,184 Kickstarter campaigns in patent-eli-gible categories to determine whether patented or patent-pending labeled projects are more likely to reach their funding goal and in turn achieve actual, …

Better Than A Discharge, David G. Epstein, Tevin Bowens

Law Faculty Publications

"“It’s the Cadillac of . . .” Chilli Palmer. Traditionally, discharge has been regarded as the “Cadillac” of success in bankruptcy. Getting a discharge is as good as it can get.

When an individual debtor files for Chapter 7 or Chapter 13 and receives a discharge then, in the language of the South, the attorney for that individual has “done good.” Or, in more academic verbiage, the lawyer has achieved Chapter 7 and Chapter 13’s “end goal.” Similarly, if a business entity files for Chapter 11 and its plan is confirmed which triggers a discharge, the attorney for the business …

Law's Ability To Further The "Menstrual Movement", Christopher A. Cotropia

Law Faculty Publications

"The current menstrual movement calls for overcoming the cultural stigma associated with menstruation, achieving “menstrual equity,” and ending “period poverty.” The stigma the movement seeks to address is that menstruation is seen as taboo, unclean, and impure. The movement’s aims are twofold: First, it wants to increase awareness of menstruation and remove discrimination against those who menstruate, thus achieving menstrual equity. Second, it intends to provide greater access to menstrual hygiene products (“MHPs”), particularly for homeless and lower income people, thus eliminating period poverty. To achieve these goals, the movement is advocating to legislatively eliminate the “tampon tax” and increase …

Reports Of Cases By Lord Hardwicke, William Hamilton Bryson

Law Faculty Publications

Philip Yorke, earl of Hardwicke (1690-1764) was the Lord Chancellor of Great Britain from 1737 to 1756. He had a brilliant legal mind, and his memory is still celebrated today.

These reports are taken from Lord Hardwicke's opinions in other cases. Thus, being statements by Lord Hardwicke of these cases, in that sense, they are his reports of these cases. The text published here has been massaged into the standard format for law reports. However, originally, it was Lord Hardwicke's treatment of these reports as legal precedents for other cases that were before him for decision, which precedents he followed …

How Judicial Application Of Cda § 230 And Fha § 3604 Have Created Safe Havens For Online Housing Discrimination, Sophia A. Studer

Law Student Publications

This article analyzes how the anti-discrimination language of Fair Housing Act section 3604 is currently out of reach for people being discriminated against online through the exclusionary language of Communications Decency Act section 230(c). The exclusionary language in CDA section 230(c) prevents liability from attaching to interactive computer service providers so long as the interactive computer service provider is not a creator or developer of information. Through the decisions of Zeran, Craigslist, and Roommate, the federal appellate courts created broad shield of immunity for interactive computer service providers, leading to a safe haven for discrimination online. Together the courts and …