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Full-Text Articles in Law

Rethinking Grid Governance For The Climate Change Era, Shelley Welton Feb 2021

Rethinking Grid Governance For The Climate Change Era, Shelley Welton

Faculty Publications

The electricity sector is often appropriately called the linchpin of efforts to respond to climate change. Over the next few decades, the U.S. electricity sector will need to double in size to accommodate electric vehicles, at the same time that it transforms to run entirely on clean energy. To drive this transformation, states are increasingly adopting 100% clean energy targets. But fossil fuel corporations are pushing back, seeking to maintain their structural domination of the U.S. energy sector. This article calls attention to one central but under-scrutinized way that these companies impede the clean energy transition: Incumbent fossil ...


Economic Regulation And Rural America, Ann M. Eisenberg Jan 2021

Economic Regulation And Rural America, Ann M. Eisenberg

Faculty Publications

Rural America today is at a crossroads. Widespread socioeconomic decline outside cities has fueled the idea that rural communities have been “left behind.” The question is whether these “left behind” localities should be allowed to dwindle out of existence, or whether intervention to attempt rural revitalization is warranted. Many advocate non-intervention because rural lifestyles are inefficient to sustain. Others argue that, even if the nation wanted to help, it lacks the law and policy tools to redirect rural America’s course effectively.

This Article argues that we do have the law and policy tools necessary to address rural socioeconomic marginalization ...


How The Fourth Amendment Frustrates The Regulation Of Police Violence, Seth W. Stoughton Jan 2021

How The Fourth Amendment Frustrates The Regulation Of Police Violence, Seth W. Stoughton

Faculty Publications

Within policing, few legal principles are more widely known or highly esteemed than the “objective reasonableness” standard that regulates police uses of force. The Fourth Amendment, it is argued, is not only the facet of constitutional law that governs police violence, it sets out the only standard that state lawmakers, police commanders, and officers should recognize. Any other regulation of police violence is inappropriate and unnecessary. Ironically, though, the Constitution does not actually regulate the use of force. It regulates seizures. Some uses of force are seizures. This Article explains that a surprising number of others—including some police shootings ...


Icwa’S Irony, Marcia A. Yablon-Zug Jan 2021

Icwa’S Irony, Marcia A. Yablon-Zug

Faculty Publications

The Indian Child Welfare Act (ICWA) is a federal statute that protects Indian children by keeping them connected to their families and culture. The Act’s provisions include support for family reunification, kinship care preferences, cultural competency considerations and community involvement. These provisions parallel national child welfare policies. Nevertheless, the Act is relentlessly attacked as a law that singles out Indian children for unique and harmful treatment. This is untrue but, ironically, it will be if challenges to the ICWA are successful. To prevent this from occurring, the defense of the Act needs to change. For too long, this defense ...


Subverting Title Ix, Emily Suski Jan 2021

Subverting Title Ix, Emily Suski

Faculty Publications

Thousands of sexual assaults happen to children in K–12 public schools each year, but the federal courts regularly allow the schools to do almost nothing in response. Title IX exists to ensure that public schools protect students from sexual assaults, harassment, and other forms of sex discrimination. Yet, the federal courts’ interpretations of Title IX drain its power. The Supreme Court has said that public schools will be liable under Title IX if they act with deliberate indifference to known sexual harassment. The Court’s explanation of “deliberate indifference” proscribes schools’ responses to sexual harassment that indirectly cause or ...


Immoral Trademarks After Brunetti, Ned Snow Oct 2020

Immoral Trademarks After Brunetti, Ned Snow

Faculty Publications

For more than a century, marks that were vulgar, profane, and obscene could not receive trademark protection. In 2019, however, the Supreme Court in Iancu v. Brunetti invalidated the statutory provision that had prevented such marks from receiving protection—the bars to “immoral” and “scandalous” marks. Those bars violated the First Amendment because they enabled the government to judge whether ideas in marks were inappropriate. Similarly, two years prior to Brunetti, the Court in Matal v. Tam struck down a bar to marks that could “disparage” others. The Court reasoned that to disparage is to offend, and the ability to ...


The Fourth Amendment At Home, Thomas P. Crocker Oct 2020

The Fourth Amendment At Home, Thomas P. Crocker

Faculty Publications

A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due ...


The Title Ix Paradox, Emily Suski Aug 2020

The Title Ix Paradox, Emily Suski

Faculty Publications

When Christine Blasey Ford explained to the Senate Judiciary Committee why she had not reported her sexual assault at age fifteen, she captured the struggle of many children who must decide whether to make such reports: “For a very long time, I was too afraid and ashamed to tell anyone the details.” Thousands of sexual assaults happen to children in school each year. Title IX, a potentially powerful civil rights law, should protect them. Title IX’s main purpose is to protect individuals from sex discrimination, including in the form of sexual harassment and assault, in public schools. Yet Title ...


Workplace Law, Social Neuroscience, And The Right To Be Different, Joseph Seiner Jul 2020

Workplace Law, Social Neuroscience, And The Right To Be Different, Joseph Seiner

Faculty Publications

No abstract provided.


Bar Bytes: Fastcase As A Supplement To Westlaw, Eve Ross Jul 2020

Bar Bytes: Fastcase As A Supplement To Westlaw, Eve Ross

Faculty Publications

No abstract provided.


Who Feels Entitled To Assert Legal Rights?, Elizabeth S. Chambliss Jun 2020

Who Feels Entitled To Assert Legal Rights?, Elizabeth S. Chambliss

Faculty Publications

No abstract provided.


Litigation As Parenting, Lisa Martin May 2020

Litigation As Parenting, Lisa Martin

Faculty Publications

Children have legal rights. Yet, children typically lack the legal capacity to represent their interests in courts. When federal courts are presented with children’s claims, the Federal Rules of Civil Procedure require courts to ensure that children’s legal interests are adequately protected. To do so, courts decide who can speak and make decisions for the child within the litigation. Federal Rule of Civil Procedure 17(c) maps out a loose process for addressing these concerns but fails to fully account for a critical factor in protecting child litigants: the decision making rights of parents.

Because parents have constitutionally ...


Managerial Fixation And The Limitations Of Shareholder Oversight, Emily R. Winston Apr 2020

Managerial Fixation And The Limitations Of Shareholder Oversight, Emily R. Winston

Faculty Publications

BlackRock’s recent public letters to the CEOs of the companies in which it invests have drawn substantial attention from stock market actors and observers for their conspicuous call on corporate CEOs to focus on sustainability and social impacts on non-shareholder stakeholders. This Article explores the market changes that propelled BlackRock into a position to make such a call, and whether institutional shareholders can be effective monitors of these broad social goals. It argues that while corporate attention to non-shareholder stakeholders can improve firm value, shareholder oversight of these stakeholder relationships will not succeed in having this effect.

In the ...


Decarbonization In Democracy, Shelley Welton Apr 2020

Decarbonization In Democracy, Shelley Welton

Faculty Publications

Conventional wisdom holds that democracy is structurally ill-equipped to confront climate change. As the story goes, because each of us tends to dismiss consequences that befall people in other places and in future times, “the people” cannot be trusted to craft adequate decarbonization policies, designed to reduce present-day, domestic carbon emissions. Accordingly, U.S. climate change policy has focused on technocratic fixes that operate predominantly through executive action to escape democratic politics — with vanishingly little to show for it after a change in presidential administration.

To help craft a more durable U.S. climate change strategy, this Article scrutinizes the ...


The Uniform Basis Rules And Terminating Interests In Trusts Early, F. Ladson Boyle, Howard M. Zaritsky, D. Ryan Wallace Apr 2020

The Uniform Basis Rules And Terminating Interests In Trusts Early, F. Ladson Boyle, Howard M. Zaritsky, D. Ryan Wallace

Faculty Publications

The resolution of income tax issues that may arise for trust beneficiaries who dispose of temporal interests in trusts remains relatively obscure. Additional issues exist for subsequent interest holders; the methods that the Code and Regulations prescribe for establishing, maintaining, and potentially recovering basis for successor owners of interests in a trust are not well developed.

In some instances, the trust instrument creating a temporal interest will supply a suitable path for early termination and distribution of assets. In those cases, Sub-chapter J of the Code typically governs the transaction and provides that terminating the trust and distributing its assets ...


Icwa International: The Benefits And Dangers Of Enacting Icwa-Type Legislation In Non-U.S. Jurisdictions, Marcia A. Yablon-Zug Feb 2020

Icwa International: The Benefits And Dangers Of Enacting Icwa-Type Legislation In Non-U.S. Jurisdictions, Marcia A. Yablon-Zug

Faculty Publications

For decades, the Indian Child Welfare Act (ICWA) has been considered the “gold standard” in Indigenous child protection. As a result, Indigenous advocates around the world have sought the passage of similar legislation. However, it is far from clear that the benefits of the ICWA are easily exported. The ICWA is based on a recognition of tribal sovereignty. Unfortunately, many of the countries that could benefit from ICWA-type protections do not recognize the sovereignty of their Indigenous populations.

This Article explores how the ICWA would have to be adapted to work in such countries and whether the needed changes would ...


Distributive Justice And Rural America, Ann M. Eisenberg Jan 2020

Distributive Justice And Rural America, Ann M. Eisenberg

Faculty Publications

Today’s discourse on struggling rural communities insists they are “dying” or “forgotten.” Many point to globalization and automation as the culprits that made livelihoods in agriculture, natural resource extraction, and manufacturing obsolete, fueling social problems such as the opioid crisis. This narrative fails to offer a path forward; the status quo is no one’s fault, and this “natural” rural death inspires mourning rather than resuscitation. This Article offers a more illuminating account of the rural story, told through the lens of distributive justice principles. The Article argues that rural communities have not just “died.” They were sacrificed. Specifically ...


Tax Policy And Our Democracy, Clint Wallace Jan 2020

Tax Policy And Our Democracy, Clint Wallace

Faculty Publications

No abstract provided.


New Technologies And Old Treaties, Bryant Walker Smith Jan 2020

New Technologies And Old Treaties, Bryant Walker Smith

Faculty Publications

Every road vehicle must have a driver able to control it while in motion. These requirements, explicit in two important conventions on road traffic, have an uncertain relationship to the automated motor vehicles that are currently under development—often colloquially called “self-driving” or “driverless.” The immediate legal and policy questions are straightforward: Are these requirements consistent with automated driving and, if not, how should the inconsistency be resolved? More subtle questions go directly to international law’s role in a world that artificial intelligence is helping to rapidly change: In a showdown between a promising new technology and an entrenched ...


Legislative History In The Modern Congress, Jesse M. Cross Jan 2020

Legislative History In The Modern Congress, Jesse M. Cross

Faculty Publications

A central debate in the field of legislation has asked: how reliable are the different types of legislative history? Yet there has been no understanding, throughout this debate, of who inside Congress drafts this legislative history. This is surprising, given the common intuition that authorship is a key indicator of reliability.

In response, this Article presents the results of an original empirical study—one that illuminates this unknown dimension of Congress, uncovering the actors and processes that produce modern legislative history. For this study, the author conducted interviews with congressional staffers drawn from both parties, both chambers of Congress, and ...


How Reporters Can Evaluate Automated Driving Announcements, Bryant Walker Smith Jan 2020

How Reporters Can Evaluate Automated Driving Announcements, Bryant Walker Smith

Faculty Publications

This article identifies a series of specific questions that reporters can ask about claims made by developers of automated motor vehicles (“AVs”). Its immediate intent is to facilitate more critical, credible, and ultimately constructive reporting on progress toward automated driving. In turn, reporting of this kind advances three additional goals. First, it encourages AV developers to qualify and support their public claims. Second, it appropriately manages public expectations about these vehicles. Third, it fosters more technical accuracy and technological circumspection in legal and policy scholarship.


Why States Must Consider Innocence Claims After Guilty Pleas, Colin Miller Jan 2020

Why States Must Consider Innocence Claims After Guilty Pleas, Colin Miller

Faculty Publications

The first DNA exoneree in this country was a man with a sub-70 IQ who pleaded guilty to avoid the death penalty, and a total of 139 out of 315 (44.1%) DNA and non-DNA exonerees in 2015 and 2016 had been convicted after guilty pleas. Nonetheless, a number of states have pleading defendant prohibitions in their postconviction statutes that preclude defendants who pleaded guilty from (1) seeking DNA testing; and/or (2) presenting freestanding claims of actual innocence based on non-DNA evidence. Existing Constitutional challenges to these statutes have been largely foreclosed by the Supreme Court’s opinion in ...


Rethinking The Conflicts Revolution In Personal Jurisdiction, Jesse M. Cross Jan 2020

Rethinking The Conflicts Revolution In Personal Jurisdiction, Jesse M. Cross

Faculty Publications

It is widely acknowledged that, from roughly 1940 to 1970, a revolution occurred in Conflicts of Law. Referred to as the “Conflicts revolution,” this movement remade nearly every legal test in the field. According to conventional wisdom, this revolution rejected the same idea in each instance: namely, that Conflicts tests should be grounded in a theory of sovereignty. Instead, the argument goes, it pivoted the field to pragmatic tests that focus on practicality, fairness, and convenience.

As this Article explains, this conventional wisdom is incorrect. It misunderstands the intellectual revolution that remade the field, and it has generated needless confusion ...


Platform Pleading: Analyzing Employment Disputes In The Technology Sector, Joseph Seiner Dec 2019

Platform Pleading: Analyzing Employment Disputes In The Technology Sector, Joseph Seiner

Faculty Publications

The technology sector has created thousands of new jobs for workers across the country in an emerging multi-billion dollar industry. Many companies in this platform-based sector are attempting to characterize their workers as independent contractors rather than employees, thus stripping them of both federal and state workplace protections—including the right to bargain collectively, receive fair compensation, and avoid discrimination. The federal courts, which have always grappled with the question of worker classification, are now struggling to define employment with respect to these gig sector jobs. The result has been scattered court decisions with inconsistent and conflicting analyses.

This Essay ...


Educational Gerrymandering: Money, Motives, And Constitutional Rights, Derek Black Dec 2019

Educational Gerrymandering: Money, Motives, And Constitutional Rights, Derek Black

Faculty Publications

Public school funding plummeted following the Great Recession and failed to recover over the next decade, prompting strikes and protests across the nation. Courts did almost nothing to stop the decline. While a majority of state supreme courts recognize a constitutional right to an adequate or equal education, they increasingly struggle to enforce the right. That right could be approaching a tipping point. Either it evolves, or risks becoming irrelevant.

In the past, courts have focused almost exclusively on the adequacy and equity of funding for at-risk students, demanding that states provide more resources. Courts have failed to ask the ...


The Quiet Undoing: How Regional Electricity Market Reforms Threaten Clean Energy Goals, Shelley Welton, Danny Cullenward Nov 2019

The Quiet Undoing: How Regional Electricity Market Reforms Threaten Clean Energy Goals, Shelley Welton, Danny Cullenward

Faculty Publications

In a series of largely unnoticed but extremely consequential moves, two regional electricity market operators are pursuing reforms to make it more difficult for states to achieve their clean energy goals. The federal energy regulator, FERC, has already approved one such reform and ordered a second market operator to go farther in punishing state-supported clean energy resources than it had initially proposed. In this Essay, we bring to light the ways in which the intricate, technical reforms underway in regional electricity markets threaten state climate change objectives and the durability of FERC’s regional market constructs. If FERC allows private ...


The Right To Evidence Of Innocence Before Pleading Guilty, Colin Miller Nov 2019

The Right To Evidence Of Innocence Before Pleading Guilty, Colin Miller

Faculty Publications

No abstract provided.


The Rule Of Law Collaborative: A Center For Practical, Interdisciplinary Research, And Engagement On Pressing Rule Of Law Issues Around The World, Joel H. Samuels Nov 2019

The Rule Of Law Collaborative: A Center For Practical, Interdisciplinary Research, And Engagement On Pressing Rule Of Law Issues Around The World, Joel H. Samuels

Faculty Publications

No abstract provided.


It's Not The Robot's Fault! Russian And American Perspectives On Responsibility For Robot Harms, Bryant Walker Smith, Andrey Neznamov Oct 2019

It's Not The Robot's Fault! Russian And American Perspectives On Responsibility For Robot Harms, Bryant Walker Smith, Andrey Neznamov

Faculty Publications

No abstract provided.


Bar Bytes: Social Media Benefits, Risks, And Best Practices, Eve Ross Sep 2019

Bar Bytes: Social Media Benefits, Risks, And Best Practices, Eve Ross

Faculty Publications

No abstract provided.