Law Commons^™

After Janus, Martin Malin, Catherine Fisk

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The Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31 upended public sector labor law by finding a novel First Amendment right of public employees to refuse to pay union fees and declaring unconstitutional scores of laws and thousands of labor contracts. This Article assesses the constraints on public sector labor law post-Janus, examines the variety of legislative responses, and proposes a path forward.Janus makes it difficult to address the collective action problem facing all large groups. Although it is in the interest of every member of a group to engage in collective action …

The Special Norms Thesis: Why Congress's Constitutional Decision-Making Should Be Disciplined By More Than The Usual Norms Of Politics, Mark Rosen

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No abstract provided.

Complexity Cubed: Partnerships, Interest, And The Proposed Regs, Walter D. Schwidetzky

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New section 163(j) strictly limits business interest expense (BIE) deductions to large (and possibly not-so-large) taxpayers. Generally, BIEs may only be deducted to the extent that they do not exceed 30 percent of adjusted taxable income plus business interest income. Section 163(j)(4) requires partnerships to calculate this limitation at the partnership level. In this report, I focus on how section 163(j) applies to partnerships. Given my focus, I leave to others a more comprehensive review of section 163(j) as a totality,1 as well as the coverage of S corporations. I will tend to give fairly short shrift to the portions …

Role Of Knowledge Networks And Boundary Organizations In Coproduction: A Short History Of A Decision Support Tool And Model For Adapting Multiuse Reservoir And Water-Energy Governance To Climate Change In California, Sonya Ziaja

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Climate adaptation relies on theoretical frameworks of coproduced science and knowledge networks to produce acceptable outcomes for politically contentious resources. As adaptation moves from theory to implementation, there is a need for positive case studies to use as benchmarks. Building from literature on actionable science this paper presents one such positive case—the development of a hydropower and reservoir decision-support tool. The focus of this history is on the multiple phases of interaction (and noninteraction) between researchers and a semidefined community of stakeholders. The lessons presented from the Integrated Forecast and Reservoir Management (INFORM) system project stress that collaborations between managers …

The Technology Enterprise: Systemic Bias Against Women, Lori Andrews

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No abstract provided.

Algorithms And Human Freedom, Richard Warner, Robert Sloan

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Predictive analytics such as data mining, machine learning, and artificial intelligence drive algorithmic decision making. Its "all-encompassing scope already reaches the very heart of a functioning society". Unfortunately, the legal system and its various tools developed around human decisionmakers cannot adequately administer accountability mechanisms for computer decision making. Antiquated approaches require modernization to bridge the gap between governing human decision making and new technologies. We divide the bridge-building task into three questions. First, what features of the use of predictive analytics significantly contribute to incorrect, unjustified, or unfair outcomes? Second, how should one regulate those features to make outcomes more …

The Internet Adopts Two-Way Radio, Henry Perritt

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The Internet, having displaced conventional correspondence with email, having displaced traditional libraries with online ones, having revolutionized shopping, having uprooted television and movies, now is absorbing police, fire, ambulance, and public utility two-radio systems.Digital radio technologies combine with Internet switching of transmitters, receivers, and networks, so that a police officer can talk to an ambulance driver or a train dispatcher across the state or across the country. Specialized cellphones are becoming indistinguishable from walkie-talkies. Cellular telephone channels replace two-way-radio air links.Integration of “private mobile radio” into the Internet is the result of specific advances in radio and networking technology that …

Does Crime Pay? Cartel Penalties And Profits, John M. Connor, Robert H. Lande

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This article seeks to answer a fundamental antitrust question: does crime pay? Do the current overall levels of U.S. cartel sanctions adequately discourage firms from engaging in illegal collusion? Seven years ago our research showed that the unfortunate answer was clearly that, yes, criminal collusion usually is profitable! The expected costs (in terms of criminal fines and prison time, civil damages, etc.) was significantly less than expected gains to the price fixers. Sadly, the most recent data re-affirm this conclusion.

The great majority of companies participating in illegal cartels make a profit even after they pay all the penalties. The …

[Dis]Integration: Second-Order Diversity And Schools, Anders Walker

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This article challenges the prevailing definition of diversity in schools. Borrowing from legal theorist Heather Gerken, it argues that diversity is best understood not simply as a rationale for creating integrated spaces, but also [dis]integrated ones, places where minority students and faculty can occupy majority positions, and are able to exercise majority control. Such spaces serve legitimate pedagogical goals that are different from those associated with statistical integration, and therefore warrant consideration by courts tasked with reviewing the use of race in university admissions.

State Report Cards: Grading Criminal Record Relief Laws For Survivors Of Human Trafficking, Jessica Emerson

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Many survivors of human trafficking exploited in the commercial sex industry or other labor sectors have been arrested for offenses stemming from their victimization. Resulting criminal records – both arrest and court documents – then follow survivors and create barriers that impact their independence, stability, and safety. In 2010, New York became the first state to allow trafficking survivors to clear certain charges from their criminal records. In the years since, almost every state has enacted some form of criminal record relief for trafficking survivors. However, these laws vary greatly. Many are too limited to offer meaningful relief. Others include …

Age, Time, And Discrimination (Forthcoming), Alexander Boni-Saenz

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Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule or private discrimination will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact that …

Crowdfunding Capital In The Age Of Blockchain Based Tokens, Patricia H. Lee

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Less than three years ago, the Securities and Exchange Commission (“SEC”) adopted investment crowdfunding regulations (“Reg. CF”) to facilitate small companies’ efforts to raise capital and jumpstart employment, providing companies potentially one of the most disruptive transformations in capital markets.

As the lion share of securities are offered under public offerings or Reg. D safe harbor exemptions, outcomes and impacts of Reg. CF offerings are not studied or monitored to the same extent. One line of inquiry is the scope of Reg. CF, including questions about the level of company participation, the types of businesses seeking capital formation, and the …

Knowledge Of Practicing Physicians About Their Legal Obligations When Caring For Patients With Disability, Nicole Agaronnik, Elizabeth Pendo, Julie Ressalam, Eric G. Campbell, Lisa Iezzoni

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doi: 10.1377/hlthaff.2018.05060 HEALTH AFFAIRS 38, NO. 4 (2019): 545–553

Menstrual Justice, Margaret E. Johnson

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Menstrual injustice is the oppression of menstruators, women, girls, transgender men and boys, and nonbinary persons, simply because they menstruate. Acts of menstrual injustice occur every day in the United States. The narrative of menstruation is that it is a taboo, shameful, and that menstruators are dirty, impure, even dangerous. Menstruation has been shunned generally from public discourse as a result. This narrative negatively impacts menstruators. Menstruators are essentialized as women, often of means, excluding transgender men and nonbinary persons, and menstruators who experience poverty or are young. Menstruating workers, especially low-wage workers, are harassed, penalized, or fired for heavy …

The Harm Of Child Removal, Shanta Trivedi

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When the state proves or even merely alleges that a parent has abused or neglected a child, family courts may remove the child from the parent’s care. However, research shows separating a child from her parent(s) has detrimental, long-term emotional and psychological consequences that may be worse than leaving the child at home. This is due to the trauma of removal itself, as well as the unstable nature of, and high rates of abuse in, foster care. Nevertheless, the child welfare system errs on the side of removal and almost uniformly fails to consider the harms associated with that removal. …

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John Bessler

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The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of …

An Examination Of The Lethality Assessment Program (Lap): Perspectives On Implementation, Helpseeking, And Victim Empowerment, Margaret E. Johnson

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The Lethality Assessment Program (LAP) aims to empower law enforcement officers to screen victims of domestic violence for potential lethality and connect them to service providers. This research surveyed domestic violence victims seeking legal services (n = 141) to assess whether LAP receipt is associated with greater rates of self-protective measures, service use, or empowerment, and to examine victims’ perspectives on the LAP process. Findings indicate no relationship between receipt of the LAP and use of self-protective measures or victim empowerment, mixed evidence between receipt of the LAP and service utilization, and room for improvement regarding how law enforcement …

The Future Of Clinical Legal Scholarship, Michele E. Gilman

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The legal academy is questioning the future of legal scholarship given its costs and perceived disconnect from law practice. However, the future of clinical legal scholarship is typically left out of these debates, although it offers a powerful rejoinder to these recurring critiques – it is deeply engaged with real-world problems, and it has demonstrable impacts. In addition, clinical scholars are an overlooked conduit for disseminating scholarship outside the ivory tower. Doctrinal faculty are unaware how much clinical faculty can ensure their work has an impact beyond SSRN citation counts. As law schools consider how to implement the new accreditation …

States Diverting Funds From The Poor, Daniel L. Hatcher

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While the United States continues to recover from the 2008 Great Recession, the country still faces unprecedented inequality as increasing numbers of poor families struggle to get by with little assistance from the government. Holes in the Safety Net: Federalism and Poverty offers a grounded look at how states and the federal government provide assistance to poor people. With chapters covering everything from welfare reform to recent efforts by states to impose work requirements on Medicaid recipients, the book avoids unnecessary jargon and instead focuses on how programs operate in practice. This timely work should be read by anyone who …

The Ideal Collaborative Partner: A Tribute To Jana Singer, Jane C. Murphy

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Collaboration has been defined as a “pervasive, long-term relationship in which participants recognize common goals and objectives, share more tasks, and participate in extensive planning and implementation.” I feel most fortunate to have had a collaborative partnership with Jana Singer for almost three decades. I am fortunate because such relationships are uncommon among legal scholars, given the “individualistic culture” of law schools and law professors. Even more unusual, I found in Jana a scholarly partner with all the qualities of the ideal collaborator: strong intellect, enthusiasm, curiosity, generosity, and humility. Since the early days of our academic careers, Jana and …

St. Louis Vacancy Collaborative: 2019-2021 Work Plan, Dana M. Malkus

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Our City has a serious vacant property challenge. To effectively address vacancy, we must understand and respond to the factors that cause and perpetuate it. Much of the story of vacancy in our city, like other cities, includes a legacy of racism, disinvestment, and disengagement that has led to a breakdown in trust. We know that vacancy can result from incomplete foreclosure, bankruptcy, prolonged probate or lack of proper probate, investors with little incentive to care, judgment proof owners, bank ownership, lack of resources to repair or redevelop, lack of value, the foreclosure crisis, sprawl and weak markets.¹ In …

From Venetian Glass To Contemporary Intellectual Property: Revisiting Tailored Patent Regimes (Book Review), Ana Santos Rutschman

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This piece reviews Stefania Fusco's “Murano Glass Vase" and "Lessons from the Past." In Murano Glass Vase, Fusco recounts the history of the glassmaking industry in Venice, framing it as the natural experiment from which the patent system sprang into the world. Fusco emphasizes the mix of exclusionary rights and trade secrecy that formed the backbone of Venetian innovation policy against the backdrop of a heavily regulated and protectionist economy. In “Lessons from the Past,” Fusco draws on original research performed at the Venetian State Archives to further the Murano narrative by looking at how the Venetian government fueled an …

Permitted Incentives For Workplace Wellness Plans Under The Ada And Gina: The Regulatory Gap, Elizabeth Pendo, Brandon Hall

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Although workplace wellness plans have been around for decades, they have flourished under the Patient Protection and Affordable Care Act (“PPACA”) into a $6 billion-dollar industry. Under PPACA, a “wellness plan” is a program of health promotion or disease prevention offered by an employer that is designed to promote health or prevent disease and which meets the other applicable requirements of that subsection. Employers look to these programs to promote healthy lifestyles, improve the overall health of employees and beneficiaries, and reduce rising healthcare costs. PPACA’s amendments to the Health Insurance Portability and Accountability Act (“HIPAA”) permit employers to offer …

On The Judicialization Of Health, Ana Santos Rutschman

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The provision of health care has long been at the forefront of domestic and international debates, philosophical inquiries, and political agendas. A growing body of legal scholarship has added to the debate by examining the role of judicial review in the context of health-related litigation. What role, if any, should courts play in compelling the provision of health care or in furthering access to potentially life-saving medicines?

This question intersects with multiple strands of the law. For instance, it has an institutional component that interrogates the function(s) of courts within systems of checks and balances. It ties into constitutional design …

The Costs Of Uncertainty: The Doj’S Stalled Progress On Accessible Medical Equipment Under The Americans With Disabilities Act, Elizabeth Pendo

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Imagine seeking medical care for serious pressure sores for a year, but your doctor never examining the sores because you could not get on the examination table in her office. Or imagine going more than fifteen years without an annual well-woman examination for the same reason, or your doctor guessing at the right dosage for a prescription because there was no scale that she could use to weigh you.

Although these scenarios may be difficult for many to imagine, they are common experiences for individuals with mobility disability.¹ The Trump administration’s attacks on the Patient Protection and Affordable Care …

The Vaccine Race In The 21st Century, Ana Santos Rutschman

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In a world in which infectious diseases are spreading increasingly faster, the development of new human vaccines remains a priority in biopharmaceutical innovation. Legal scholars have addressed different aspects of vaccine regulation and administration, but less attention has been paid to the role of laws governing innovation during the stages of research and development (R&D) of vaccines.

This Article explores the race to develop new vaccines from its beginnings through the early 21st century, with a particular focus on the progressively pervasive role of intellectual property in governing vaccine innovation. It describes the insufficiencies of current innovation regimes in promoting …

Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker

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Critics of structural racism frequently miss structuralism as a field of historical inquiry. This essay reviews the rise of structuralism as a mode of historical analysis and applies it to the mass incarceration debate in the United States, arguing that it enriches the work of prevailing scholars in the field.

Promoting Permanency And Human Rights, Lauren Bartlett

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An increasing number of children are being cared for exclusively by grandparents or extended family. The majority of these caregivers are raising children outside of the foster care system without a formal legal status. In fact, kinship diversion, placing children whose parents cannot or will not care for them with family or friends outside of the foster care system, is encouraged by state and federal law. Informal kinship caregivers face many obstacles to providing care for children and they are more likely to be unemployed, receive government benefits, and be less educated, as compared with parents raising their own children. …

Jury Trial Disparities Between Class Actions And Shareholder Derivative Actions In State Courts, Ann M. Scarlett

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Class actions and shareholder derivative lawsuits are both forms of representative litigation that historically had to be brought in the equity courts to be decided by a judge, rather than in the common-law courts to be decided by a jury. In 1938, the federal courts merged law and equity by passing the Federal Rules of Civil Procedure, which allowed both legal and equitable claims to be heard within the same civil action. After law and equity merged, the Supreme Court interpreted the Seventh Amendment’s preservation of the right to jury trial as including not just actions recognized at common law, …

Eradicating The Label “Offender” From The Lexicon Of Restorative Practices And Criminal Justice, Lynn S. Branham

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This Essay enumerates three reasons for abandoning the prevailing practice of utilizing the label “offender” when referring to a person who has committed a crime. The Essay next identifies and debunks reasons that have been cited for persisting in referring to a person as an “offender.” The Essay then explores the question of what term or terms could supplant this label and profiles signs of emerging support for desisting from the convention of calling people “offenders.” One of the themes that permeates this Essay is that the language we use when referring to people can thwart systemic and cultural change …