Law Commons^™

The Challenge Of Regulatory Excellence, Cary Coglianese

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Regulation is a high-stakes enterprise marked by tremendous challenges and relentless public pressure. Regulators are expected to protect the public from harms associated with economic activity and technological change without unduly impeding economic growth or efficiency. Regulators today also face new demands, such as adapting to rapidly changing and complex financial instruments, the emergence of the sharing economy, and the potential hazards of synthetic biology and other innovations. Faced with these challenges, regulators need a lodestar for what constitutes high-quality regulation and guidance on how to improve their organizations’ performance. In the book Achieving Regulatory Excellence, leading regulatory experts …

The Dna Default And Its Discontents: Establishing Modern Parenthood, Katharine Baker

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Most contemporary family law scholarship assumes that propriety of a DNA default for establishing parenthood - a presumption that, in the absence of marriage, whoever had the sex with the mother that resulted in the child should be the father of the child. This article problematizes that DNA default. It demonstrates how the DNA default necessarily magnifies the legal and social importance of sex, discounts the legal significance of women's reproductive labor, and marginalizes all children living outside the binary, heteronormative norm that a genetic regime necessarily edifies. When scrutinized, the DNA default looks just as moralistic and exclusionary as …

1911 Triangle Factory Fire — Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

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Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …

Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen

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Big Data is the vast quantities of information amenable to large-scale collection, storage, and analysis. Using such data, companies and researchers can deploy complex algorithms and artificial intelligence technologies to reveal otherwise unascertained patterns, links, behaviors, trends, identities, and practical knowledge. The information that comprises Big Data arises from government and business practices, consumer transactions, and the digital applications sometimes referred to as the “Internet of Things.” Individuals invisibly contribute to Big Data whenever they live digital lifestyles or otherwise participate in the digital economy, such as when they shop with a credit card, get treated at a hospital, apply …

Open Source, Modular Platforms, And The Challenge Of Fragmentation, Christopher S. Yoo

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Open source and modular platforms represent two powerful conceptual paradigms that have fundamentally transformed the software industry. While generally regarded complementary, the freedom inherent in open source rests in uneasy tension with the strict structural requirements required by modularity theory. In particular, third party providers can produce noncompliant components, and excessive experimentation can fragment the platform in ways that reduce its economic benefits for end users and app providers and force app providers to spend resources customizing their code for each variant. The classic solutions to these problems are to rely on some form of testing to ensure that the …

Hearsay And The Confrontation Clause, Lynn Mclain

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This speech was delivered to the Wicomico Co. Bar Association on October 28th, 2016. It is an updated version of the 2012 speech, available at http://scholarworks.law.ubalt.edu/all_fac/924/ .

Overview: Only an out-of-court statement ("OCS") offered for the truth of the matter that was being asserted by the out-of-court declarant ("declarant") at the time when s/he made the OCS ("TOMA") = hearsay ("HS"). If evidence is not HS, the HS rule cannot exclude it. The Confrontation Clause also applies only to HS, but even then, only to its subcategory comprising "testimonial hearsay." Cross-references to "MD-EV" are to section numbers of L. MCLAIN, …

Defending Breakthrough Innovation: The History And Future Of The State Of Patent Law, Max Oppenheimer

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Congress, while enacting at least six major revisions to patent law since 1793, has left the definition of patentable subject matter essentially unchanged. The Supreme Court, on the other hand, has been uncomfortable with the concept for more than a century. Despite this long-standing discomfort, it has struggled to advance a theoretical basis for its concern. In a series of recent cases, it has finally developed a theory as to why certain types of inventions, although embraced by the statutory definition, are nonetheless unpatentable. The theory, in effect, abandons the federal government’s role in protecting those inventions. This article explores …

Testimony Before The House Committee On Science, Space And Technology, Charles Tiefer

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Thank you for the opportunity to testify today. I served in the House General Counsel’s office in 1984-1995, becoming General Counsel (Acting). (Since 1995, I have been Professor at the University of Baltimore School of Law,)

So, I have lengthy fulltime experience, including extensive work on Congressional subpoenas. My work takes in whether the House, or this Committee, may justifiably try to enforce subpoenas against state Attorneys General (the answer being: no). I have had more years of experience than almost anyone else in House history focused on this area. While the other professors on this panel have done various …

Exploring Federal Diversity Jurisdiction: Testimony In Front Of The House Of Representatives Committee On The Judiciary, Subcommittee On The Constitution And Civil Justice, Ronald Weich

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Good morning Chairman Franks, Ranking Member Cohen and members of the Subcommittee. My name is Ronald Weich and I am the dean of the University of Baltimore School of Law. Thank you for the opportunity to testify at this hearing entitled “Exploring Federal Diversity Jurisdiction.”

The subject of today’s hearing is technical, complex, little-understood by the general public, and yet fundamental to the administration of justice in this country. Federal diversity jurisdiction touches on profound questions of federalism, state sovereignty and the proper functioning of the federal courts.

The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, Jonah B. Gelbach

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In this paper I introduce what I call the reduced form approach to studying the plaintiff's win rate in litigation selection models. A reduced form comprises a joint distribution of plaintiff's and defendant's beliefs concerning the probability that the plaintiff would win in the event a dispute were litigated; a conditional win rate function that tells us the actual probability of a plaintiff win in the event of litigation, given the parties' subjective beliefs; and a litigation rule that provides the probability that a case will be litigated given the two parties' beliefs. I show how models with very different-looking …

Sovereignty Considerations And Social Change In The Wake Of India's Recent Sodomy Cases, Deepa Das Acevedo

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American constitutional law scholars have long questioned whether courts can really drive social reform, and this position remains largely unchallenged even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India — spurred by developments in a special type of legal action developed in the late 1970s known as “public interest litigation,” or “PIL” — have only recently begun questioning the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged, and optimism that …

The Role Of Personal Laws In Creating A “Second Sex”, Rangita De Silva De Alwis, Indira Jaising

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The cultural construction of gender determines the role of women and girls within the family in many societies. Gendered notions of power in the family are often shrouded in religion and custom and find their deepest expression in Personal Laws. This essay examines the international law framework as it relates to personal laws and the commonality of narratives of litigators and plaintiffs in the cases from the three different personal law systems in India.

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

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Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

Hedge Fund Activism, Poison Pills, And The Jurisprudence Of Threat, William W. Bratton

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This chapter reviews the single high profile case in which twentieth century antitakeover law has come to bear on management defense against a twenty-first century activist challenge—the Delaware Court of Chancery’s decision to sustain a low-threshold poison pill deployed against an activist in Third Point LLC v. Ruprecht. The decision implicated an important policy question: whether a twentieth century doctrine keyed to hostile takeovers and control transfers appropriately can be brought to bear in a twenty-first century governance context in which the challenger eschews control transfer and instead makes aggressive use of the shareholder franchise. Resolution of the question …

Who Cares How Congress Really Works?, Ryan David Doerfler

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Legislative intent is a fiction. Courts and scholars accept this by and large. As this Article shows, however, both are confused as to why, and, more importantly, as to what this entails.

This Article argues that the standard account of why legislative intent is a fiction—that Congress is a “they,” not an “it”—rests on an overly simplistic conception of shared agency. Drawing on contemporary work in philosophy of action, this Article contends that Congress as such has no intentions not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure …

New Wine In Old Wineskins: Metaphor And Legal Research, Amy E. Sloan, Colin Starger

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We construct our conceptual world using metaphors. Yet sometimes our concepts are flawed and our metaphors do damage. This Article examines a set of metaphors currently doing damage in law – those for legal research. It shows that while technology has radically altered the material world of legal research, our dominant metaphors have remained static, and thus, become outmoded. Conceptualizing today’s reality using old metaphors fails; it is like pouring new wine in old wineskins. To address this problem, this Article first surfaces unwarranted assumptions buried in the metaphors we use when talking about research and then proposes new metaphors …

Neutralizing The Stratagem Of "Snap Removal": A Proposed Amendment To The Judicial Code, Joan E. Steinman, Arthur Hellman, Lonny Hoffman, Thomas Rowe, Georgene Vairo

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The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule. The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

How Being Right Can Risk Wrongs, Paul H. Robinson, Sarah M. Robinson

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This is a chapter from the new book The Vigilante Echo. Previous chapters have made clear that some vigilantism can be morally justified where the government has failed in its promise under the social contract to protect and to do justice. But this chapter explains how even moral vigilante action can be problematic for the larger society. Vigilantes may try to do the right thing but are likely to lack the training and professional neutrality of police. They may be successful, but only on pushing the crime problem to an adjacent neighborhood. Because their open lawbreaking may seem admirable …

Shadow Vigilante Officials Manipulate And Distort To Force Justice From An Apparently Reluctant System, Paul H. Robinson, Sarah M. Robinson

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The real danger of the vigilante impulse is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways, by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the operation of the system in a host of important ways. For example, when people act as classic vigilantes …

A Study Of Social Security Disability Litigation In The Federal Courts, Jonah B. Gelbach, David Marcus

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A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set of procedural rules …

The Limits Of Isomorphism: Global Investment Law And The Asean Investment Regime, Sungjoon Cho, Jurgen Kurtz

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This article probes the unique ontogenetic path of ASEAN’s regulation of foreign investment by juxtaposing global investment law and the ASEAN context. While the former delivers a powerful heuristic on isomorphism that ASEAN exhibits in its strong reflection of global investment norms, the latter sheds critical light on ideological and analytical blind spots by exploring distinct heterogeneities in ASEAN’s investment regulation. Those heterogeneities are not simply outliers but reflect important historical and cultural values inherent to ASEAN and its members. The insights uncovered in this article invite scholars and policymakers to define a new form of global investment law that …

Capturing Regulatory Reality: Stigler’S The Theory Of Economic Regulation, Christopher Carrigan, Cary Coglianese

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This paper offers a retrospective assessment of economist George Stigler’s classic article, The Theory of Economic Regulation. Stigler argued that regulation is a product that, just like any other product, is produced in a market, and that it can be acquired from the governmental “marketplace” by business firms to serve their private interests and create barriers to entry for potential competitors. He challenged the idea that regulation arises solely to serve the public interest and demonstrated that important political advantages held by businesses can contribute to industry capture of the regulatory process. Although his argument was largely based on …

Administrative Law: The U.S. And Beyond, Cary Coglianese

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Administrative law constrains and directs the behavior of officials in the many governmental bodies responsible for implementing legislation and handling governance responsibilities on a daily basis. This field of law consists of procedures for decision making by these administrative bodies, including rules about transparency and public participation. It also encompasses oversight practices provided by legislatures, courts, and elected executives. The way that administrative law affects the behavior of government officials holds important implications for the fulfillment of democratic principles as well as effective governance in society. This paper highlights salient political theory and legal issues fundamental to the U.S. administrative …

Worse Than Pirates Or Prussian Chancellors: A State's Authority To Opt-Out Of The Quid Pro Quo, Michael C. Duff

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Privatization of public law dispute resolution in workplaces has been under intense scrutiny in the context of arbitration. Another kind of workplace dispute privatization is presently underway, or under serious consideration, in several states. In connection with state workers’ compensation statutes, one state has implemented, and others are considering, a dispute resolution model in which employers are explicitly authorized to opt out of coverage. “Alternative benefit plans,” created under such statutes, permit employers to, among other things, unilaterally and without limitation designate private fact-finders, whose conclusions are subject to highly deferential judicial review. This model is arbitration on steroids. While …

Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse

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This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the …

Campus Sexual Misconduct As Sexual Harassment: A Defense Of The Doe, Katharine Baker

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This article explains and defends the Department of Education’s campaign against sexual misconduct on college campuses. It does so because DOE has inexplicably failed to make clear that their goal is to protect women from the intimidating and hostile environment that results when men routinely use women sexually, without regard to whether women consent to the sexual activity. That basic point, that schools are policing harassing and intimidating behavior, not necessarily rape, has been lost on both courts and commentators. Boorish, entitled, sexual behavior that stops well short of rape, if pervasive enough, has been actionable as sexual harassment for …

Is The Government Fiscally Blind? An Empirical Examination Of The Effect Of The Compensation Requirement On Eminent-Domain Exercises, Ronit Levine-Schnur, Gideon Parchomovsky

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We empirically test the fiscal-illusion hypothesis in the takings context in Israel. Israeli law allows local governments to expropriate up to 40 percent of any parcel without compensation. In 2001, the Israeli Supreme Court created a carve out for takings of 100 percent, requiring full compensation in such cases. We analyze data for 3,140 takings cases in Tel Aviv between 1990 and 2014. There was no disproportionate share of takings of just under 40 percent. Nor was there a long-term drop in the share of 100 percent takings after 2001. Although a short-term drop in the share of 100 percent …

Foundling Fathers: (Non-)Marriage And Parental Rights In The Age Of Equality, Serena Mayeri

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The twentieth-century equality revolution established the principle of sex neutrality in the law of marriage and divorce and eased the most severe legal disabilities traditionally imposed upon nonmarital children. Formal equality under the law eluded nonmarital parents, however. Although unwed fathers won unprecedented legal rights and recognition in a series of Supreme Court cases decided in the 1970s and 1980s, they failed to achieve constitutional parity with mothers or with married and divorced fathers. This Article excavates nonmarital fathers’ quest for equal rights, until now a mere footnote in the history of constitutional equality law.

Unmarried fathers lacked a social …

The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo

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What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution’s separation of powers. That ever‐growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two‐day conference held late last year at the University of Pennsylvania Law School, a conference organized …

Defending A Mixed Economy, Herbert J. Hovenkamp

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This essay reviews Jacob S. Hacker's and Paul Pierson's very engaging book, American Amnesia: How the War on Government Led Us to Forget what Made America Prosper (2016).