Law Commons^™

Environmental Law. Disrupted, Inara Scott, David Takacs, Rebecca Bratspies, Vasessa Casado Perez, Robin Kundis Craig, Keith Hirokawa, Blake Hudson, Sarah Krakoff, Katrina Fischer Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom

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The U.S. regulatory environment is changing rapidly, at the same time that visible and profound impacts of climate change are already being felt throughout the world, and enormous, potentially existential threats loom in the not-so-distant future. What does it mean to think about and practice environmental law in this setting? In this latest in a biannual series of postings and essays, the authors, members of the Environmental Law Collaborative (ELC), have taken on the question of whether environmental law as we currently know it is up to the job of addressing these threats; and, if not, what the path forward …

Restructuring Rebuttal Of The Marital Presumption For The Modern Era, Jessica Feinberg

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The marital presumption of paternity, which arose from English common law, has served as a core component of the law governing parentage in the United States since the nation’s inception. Pursuant to the marital presumption, a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage. Historically, the marital presumption was extremely difficult to rebut, generally requiring proof of the husband’s non-access to his wife during the time of conception, the husband’s sterility or impotence, or adultery on the part of the wife. As these early grounds for rebuttal …

Happily Ever After: Fostering The Role Of The Transactional Lawyer As Storyteller, Karen J. Sneddon

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Transactional documents do more than allocate the risk of loss or select the governing law. Transactional documents, whether employment contracts or lease agreements, encapsulate the wishes, hopes, and fears of the transacting parties. The documents share a series of events, identify the key actors in those events, and anticipate particular outcomes or future events. In other words, the transactional documents are narratives. The transactional lawyer is thus more than a transactional intermediary. The transactional lawyer is the narrative agent or storyteller.

The “narrative” is often associated with the following words: story, tale, fiction, and entertainment. These associations may appear to …

Law School And Professional Identity Formation, Patrick Emery Longan, Daisy Hurst Floyd, Timothy W. Floyd

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Law school is a transformative process. Students learn things that lawyers need to know and learn how to do some of the things that lawyers do. But that is not all. Beyond knowledge and skill, law students absorb lessons about the professional values that are supposed to guide the deployment of their newfound knowledge and skill.

A Few Grains Of Incense: Law, Religion, And Politics From The Perspective Of The "Christian" And "Pagan" Dispensations, Paul Horwitz

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No abstract provided.

Religious Slaughter And Animal Welfare Revisited: Cjeu, Liga Van Moskeeen En Islamitische Organisaties Provincie Antwerpen (2018), Anne Peters

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The article comments on a Grand Chamber judgment by the Court of the European Union on animal slaughter according to Islamic prescriptions. The relevant European Union laws prescribe that religious slaughter without stunning of the animal may only take place in approved slaughterhouses. This causes a shortage during the Muslim Feast of Sacrifice in the Belgian province ofAntwerp. The EU law provisions are in conformity with the animal welfare mainstreaming clause of the Treaty on the Functioning of the European Union. Moreover, the EU regulation and its application in the concrete case does not violate the fundamental right of free …

Employees As Regulators: The New Private Ordering In High Technology Companies, Jennifer S. Fan

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There is mounting public concern over the influence that high technology companies have in our society. In the past, these companies were lauded for their innovations, but now as one scandal after another has plagued them, from being a conduit in influencing elections (think Cambridge Analytica) to the development of weaponized artificial intelligence, to their own moment of reckoning with the #MeToo movement, these same companies are under scrutiny. Leaders in high technology companies created their own sets of norms through private ordering. Their work was largely unfettered by regulators, with the exception of the Securities and Exchange Commission’s oversight …

Disrupting Adhesion Contracts With #Metoo Innovators, Xuan-Thao Nguyen

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Adhesion contracts are everywhere. Take it or leave it, the dominant party holds the leverage while the weaker party adheres. Ninety percent of employment contracts contain mandatory arbitration clauses, and attempts to challenge arbitration requirements meet with judicial indifference or hostility. Ultimately, arbitration clauses eviscerate the employee's right to a jury trial and access to the court system in general. In recent years, employers in the tech sector have faced unexpected resistance from innovators. Just as innovators are known for disrupting old business models through technological innovations, #MeToo reformers are disrupting the seemingly insurmountable adhesion contract regime. They organize, protest, …

Attacking Innovation, Xuan-Thao Nguyen, Jeffrey A. Maine

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Economists generally agree that innovation is important to economic growth and that government support for innovation is necessary. Historically, the U.S. government has supported innovation in a variety of ways: (1) a strong legal system for patents; (2) direct support through research performed by government agencies, grants, loans, and loan guarantees; and (3) indirect support through various tax incentives for private firms. In recent years, however, we have seen a weakening of the U.S. patent system, a decline in direct funding of research, and a weakening of tax policy tools used to encourage new innovation. These disruptive changes threaten the …

Note: The Prisoner’S Dementia: Ethical And Legal Issues Regarding Dementia And Healthcare In Prison, David M. N. Garavito

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This Note will give an overview of the political and legal issues that lead to the underdiagnosing of dementias in prison populations and the problems associated with such underdiagnosing. Part I will discuss various forms of dementia that place the prison population at risk, providing general information about both pathology and symptomology of these disorders. Part II will provide an overview of the laws and policies surrounding the healthcare of prisoners and how these policies could lead to underdiagnosing problems specifically with neurological problems like dementia. Part III will describe how the symptomology of dementia, especially for those who remain …

Innovating Inclusion: The Impact Of Women On Private Company Boards, Jennifer S. Fan

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Eight percent—that is the percentage of women who serve on the boards of directors of private high technology companies. Private companies, particularly high technology companies, have transformed citizens’ daily lives, while the unprecedented availability of private capital has allowed those companies to remain private longer. This rise, however, has also obscured some of the weaknesses of private companies, which are not subject to public disclosure and regulatory oversight: rampant sexual harassment, the lack of women leaders in technology companies, the relative absence of female venture capitalists, and the dearth of female board members, to name a few. Yet thus far, …

Peace And Subjectivity, Louis E. Wolcher

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So long as there is law there can be no universal human right to peace. This is because legalized violence, whether in threat or in deed, constitutes the very antithesis of peaceful relations from the point of view of those whom law represses. Law cannot define peace as the absence of all violence—and still less as the absence of all legalized suffering—without gainsaying justice, for as Pascal says, “Justice without might is helpless; might without justice is tyrannical.” Although legal outcomes, like falling boulders and pouncing lions, can always be imputed to historical causes, experience teaches that legal actors generally …

Craft Beer And The Rising Tide Effect: An Empirical Study Of Sharing And Collaboration Among Seattle’S Craft Breweries, Zahr K. Said

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This qualitative empirical research project studies Seattle’s craft brewing industry as a thriving entrepreneurial ecosystem that displays widespread collaboration and innovation. Drawing on data collected in 22 face-to-face formal interviews conducted with industry participants, the Article explores the community’s attitudes, practices, and norms with respect to collaboration and intellectual property (IP). It joins a growing body of qualitative empirical IP scholarship that maps misalignments between law and practice “on the ground,” seeking to offer a more accurate and pluralistic account of an innovative industry. The craft brewing community in Seattle cooperates extensively while continuing to compete actively for consumers. In …

Us Supreme Court Bars Punitive Damages In Unseaworthiness Claims, Craig H. Allen

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To appreciate the reach of the Court's decision on punitive damages for unseaworthiness claims, it is important to understand the federal courts' steady expansion of the class of workers who now qualify as "seamen," the class of floating vessels and structures that now qualify as "vessels," and the strict liability standard for determining whether a vessel is seaworthy.

Woke Capital: The Role Of Corporations In Social Movements, Jennifer S. Fan

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Iconic companies such as Apple, BlackRock, Delta, Google (now Alphabet), Lyft, Salesforce, and Starbucks, have recently taken very public stances on various social issues. In the past, corporations were largely silent in the face of them. Now the opposite is true—corporations play an increasingly visible role in social movements and there are times when corporations have led the discussion, particularly in areas where they have a self-interest or public opinion supports it. The enormous influence corporations wield on both the economic and social fabric of our society due to the legal framework and norms under which they operate make them …

Law School In A Different Voice: Legal Education As A Work Of Mercy, Pamela A. Wilkins

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What might it mean for a law school to share this Mercy charism? More broadly, what would it mean for a law school to share the spiritual DNA of a female order, seeing the world from historically female perspectives and motivated by historically female concerns? More broadly still, in this #metoo era, in which women make up the majority of American law students, should it simply be business as usual at religiously affiliated law schools, or should we seize the opportunity to consider seriously, and in the light of faith, women’s perspectives on legal education, law, and justice?

This article …

From Clause A To Clause Z: The Transactional Reader And Narrative Transportation, Karen J. Sneddon

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You know the phrase “lost in a good book.” The book’s story is so compelling that you are absorbed by the characters, setting, actions, and plot. The book pulls you into the narrative such that you must continue to read—even if that means staying up all night to finish the book. Because many associate that immersive experience with reading a novel, the phrase “lost in a good book” is most often connected to reading for pleasure. But the experience of being transported by the words of a narrative can occur when reading a variety of texts, including legal texts. That …

The Poverty Of Clinical Canonic Texts, Anthony V. Alfieri

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No abstract provided.

Equal Protection And The Male Gaze: An Approach To New Hampshire V. Lilley, Nicholas Mignanelli

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This Article uses New Hampshire v. Lilley, a case recently decided by the New Hampshire Supreme Court, as a starting point for an equal protection analysis of indecent exposure laws that distinguish between women and men. After discussing contemporary equal protection jurisprudence and historicizing these laws, this Article uses the film theorist Laura Mulvey's concept of the "male gaze" to demonstrate how overbroad generalizations about sex and sexuality serve as the foundation for this legal distinction. This Article concludes by emphasizing that municipalities and states may continue to enact and enforce indecent exposure laws that reflect community standards, so …

The Modern Corporation And Private Property Revisited: Gardiner Means And The Administered Price, William Wilson Bratton

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No abstract provided.

Social Justice And Deposit Return Calculations: A Study Of Success And Failure In Commercial Law Reform, William H. Widen

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No abstract provided.

Home Sweet Home: How New York Courts Have Dealt With Daimler's "At Home" Requirement For General Jurisdiction, Burton N. Lipshie

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In this Article, we will first place the Daimler decision in its context, both historical and technological, in an attempt to understand the flow of Supreme Court jurisdiction jurisprudence, and how Daimler fits into that jurisprudence. Then, we will explore the issues in New York law that Daimler left open, and which, more than five years after it was decided, remain open, and, indeed, often confused.

Tribute To Judge Robert Katzmann, Lindsay Nash

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No abstract provided.

Measuring Selection Bias In Publicly Available Judicial Opinions, Alexander A. Reinert

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To have an informed discussion about judicial performance and efficiency, we will sometimes want to explore what judges actually do on an everyday level. But in many ways, courts have not always been paragons of transparency. Often the parties are the only people who are aware of what action a court has taken in a case.

This paper explores that dynamic, in the context of decisions made by federal trial courts at one particular procedural stage--decisions made on motions to dismiss for failure to state a claim--Rule 12(b)(6) motions. There is growing interest in the work of federal trial courts, …

Armed Conflict At The Threshold, Deborah Pearlstein

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Seventeen years into the United States’ engagement in what America has controversially understood as a global, non-international armed conflict against a shifting set of terrorist groups, a growing array of scholars has called for a reassessment of the significance of the “armed conflict” classification under international humanitarian law (IHL). The existence of an “armed conflict” has long been understood as a proxy on/off switch of inescapable importance. When an “armed conflict” exists, lethal targeting—without regard to particular self-defensive need or immediacy of threat—is permitted as a first resort. When an “armed conflict” does not exist, it is not. Challenging the …

Constructive Trusts And Fraudulent Transfers: When Worlds Collide, David G. Carlson

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When Ponzi schemes collapse and enter into bankruptcy liquidation, bankruptcy trustees assume that conveyances made by the debtor for no consideration are fraudulent conveyances. This Article argues that they are not. Virtually all the assets held by a Ponzi scheme are held in constructive trust for the victims of the fraud. If victims of the fraud can trace the proceeds of their investments into property transferred to a third party, the third party holds the asset transferred in trust for the relevant victim. When a bankruptcy trustee characterizes the asset as a fraudulently conveyed asset, the trustee expropriates the asset …

Applying The First Amendment To The Internal Revenue Code: Minnesota Voters Alliance And The Tax Law’S Regulation Of Nonprofit Organizations’ Political Speech, Edward A. Zelinsky

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On its face, Minnesota Voters Alliance v. Mansky is about which T-shirts, hats and buttons voters can wear at the polls. However, the U.S. Supreme Court’s First Amendment analysis in Minnesota Voters Alliance extends beyond apparel at polling places. That decision impacts the ongoing debate about the Johnson Amendment, the now controversial provision of the Internal Revenue Code which forbids Section 501(c)(3) organizations from intervening in political campaigns. Minnesota Voters Alliance also affects the proper construction of Section 501(c)(3)’s ban on lobbying by tax-exempt entities as well as other provisions of the tax law taxing and precluding campaign intervention by …

Commercial Speech Protection As Consumer Protection, Felix T. Wu

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The Supreme Court has long said that “the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides.” In other words, consumers—the recipients or listeners of commercial speech—are the ones the doctrine is meant to protect. In previous work, I explored the implications of taking this view seriously in three contexts: compelled speech, speech among commercial entities, and unwanted marketing. In each of those contexts, adopting a listener-oriented approach leads to the conclusion that many forms of commercial speech regulation should receive far less First Amendment scrutiny than …

Principles For State Prosecution Of Securities Crime In A Dual-Regulatory, Multi-Enforcer Regime, Wendy Gerwick Couture

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This article proposes principles for the exercise of prosecutorial discretion when prosecuting securities crime under state law. Securities transactions in the United States are subject to a dual-regulatory, multi-enforcer regime. Securities are dually regulated by the federal government and the states, with each regulatory scheme including both civil and criminal enforcement provisions. Those laws are multi-enforced at each level by a regulator, private parties, and prosecutors. And yet, the role of state prosecution of securities crime within this regime is undertheorized, and there is little guidance for state prosecutors about how their prosecutorial decisions affect this regime. This article, drawing …

University Of Idaho's Entrepreneurship Law Clinic: Providing Free Legal Services For Idaho Ventures, Timothy Murphy

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No abstract provided.