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Articles in Law Reviews & Other Academic Journals

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James Oakes's Treatment Of The First Confiscation Act In Freedom National: The Destruction Of Slavery In The United States, 1861-1865, Angi Porter Oct 2023

James Oakes's Treatment Of The First Confiscation Act In Freedom National: The Destruction Of Slavery In The United States, 1861-1865, Angi Porter

Articles in Law Reviews & Other Academic Journals

In his work, Freedom National: The Destruction of Slavery in the United States, 1861-1865, James Oakes provides an overview of several Civil War era legal instruments regarding enslavement in the United States. One of the statutes he examines is An Act to Confiscate Property Used for Insurrectionary Purposes, passed by the Thirty Seventh Congress in August, 1861. This law, popularly known as the First Confiscation Act (FCA), is one of the several "Confiscation Acts" that contributed to the weakening of legal enslavement during the War. Fortunately, scholars have contextualized and deemphasized President Lincoln's role as the "Great Emancipator" by examining …


Interest Rates, Venture Capital, And Financial Stability, Hilary J. Allen Jul 2023

Interest Rates, Venture Capital, And Financial Stability, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

Following several prominent bank failures and as central banks continue to tighten interest rates to fight inflation, there is increasing interest in the relationship between monetary policy and financial stability. This Article illuminates one path through which the prolonged period of low interest rates from 2009-2021 has impacted financial stability: it traces how yield-seeking behavior in the wake of the Global Financial Crisis and Covid pandemic led to a bubble in the venture capital industry, which in turn spawned a crypto bubble as well as a run on the VC-favored Silicon Valley Bank. This Article uses this narrative to illustrate …


Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton Jul 2023

Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Advances in information technology have irrevocably changed the nature of war crimes investigations. The pursuit of accountability for the most serious crimes of concern to the international community now invariably requires access to digital evidence. The global reach of platforms like Facebook, YouTube, and Twitter means that much of that digital evidence is held by U.S. social media companies, and access to it is subject to the U.S. Stored Communications Act.

This is the first Article to look at the legal landscape facing international investigators seeking access to digital evidence regarding genocide, war crimes, crimes against humanity, and aggression. It …


Natural Law, Assumptions, And Humility, Ezra Rosser May 2023

Natural Law, Assumptions, And Humility, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This review of Natural Property Rights celebrates Eric Claeys’s efforts to resuscitate natural law as a viable approach to property law. Although readers unlikely to be convinced that natural law is the way to best understand property rights, Claeys succeeds in breathing new life into natural law. Natural Property Rights’ emphasis on use as property law’s fundamental value creates space to reconceptualize the rights of property owners and the place of non-owners within a just theory of property rights. The main critiques of Natural Property Rights offered in this review center around the choice to prioritize rights over duties and …


Reconstruction's Lessons, Susan D. Carle May 2023

Reconstruction's Lessons, Susan D. Carle

Articles in Law Reviews & Other Academic Journals

In the current moment in the legal struggle for racial justice in the United States, the Nation appears at risk of repeating its history. The country stands at a time of some hope but more cause for pessimism. The current United States Supreme Court has exhibited hostility towards key legal priorities of the racial justice movement, and all indications point to this trend continuing or getting even worse. Leading commentators on race issues have suggested that the United States is headed back to the post Reconstruction era, sometimes referred to as “Redemption” in reference to southern states’ reassertion of white …


Comments On Federal Trade Commission Non-Compete Ban Proposed Rule, Matter No. P201200, Chaz D. Brooks Apr 2023

Comments On Federal Trade Commission Non-Compete Ban Proposed Rule, Matter No. P201200, Chaz D. Brooks

Articles in Law Reviews & Other Academic Journals

Within signed law professors and law students submitted this letter to the Federal Trade Commission, writing in their individual capacities, not as agents of their affiliated institutions, in support of the Federal Trade Commission’s proposed rule to ban most non-compete clauses (the “Proposal”) as an unfair method of competition.

This letter offers comments in response to areas where the FTC has requested public comment. To make our views clear, this letter contains the following sections: I. Summary of the Proposal; II. The Commission Should Consider Expanding Its Definition of Non-Compete Clauses to Prevent Employers from Requiring Workers to Quit Before …


Raising The Threshold For Trademark Infringement Protect Free Expression, Christine Haight Farley, Lisa P. Ramsey Apr 2023

Raising The Threshold For Trademark Infringement Protect Free Expression, Christine Haight Farley, Lisa P. Ramsey

Articles in Law Reviews & Other Academic Journals

The First Amendment right to free speech limits the scope of rights in trademark law. Congress and the courts have devised various defenses and common law doctrines to ensure that protected speech is exempted from trademark infringement liability. These defensive trademark doctrines, however, are narrow and often vary by jurisdiction. One current example is the speech-protective test first articulated by the Second Circuit in Rogers v. Grimaldi, expanded by the Ninth Circuit, and recently restricted by the Supreme Court in Jack Daniel’s Properties v. VIP Products to uses of another’s mark within an expressive work that do not designate the …


The Court And The Private Plaintiff, Elizabeth Beske Apr 2023

The Court And The Private Plaintiff, Elizabeth Beske

Articles in Law Reviews & Other Academic Journals

Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …


Regulatory Managerialism Inaction: A Case Study Of Bank Regulation And Climate Change, Hilary J. Allen Feb 2023

Regulatory Managerialism Inaction: A Case Study Of Bank Regulation And Climate Change, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

In November of 2029, Hurricane Penelope struck New York City as a category two storm. Work had started on a wall to protect Manhattan from rising sea levels and storm surges, but the work was incomplete, and significant damage to Manhattan real estate was sustained. While almost all that real estate was insured, insurance companies were compromised by the sheer magnitude of the losses. Even with significant federal subsidies, they were unable to meet their full commitments on insurance policies. Some commercial real estate firms, who had never really recovered from the shift to remote working during the Covid pandemic, …


Corporate Consolidation Of Rental Housing & The Case For National Rent Stabilization, Brandon Weiss Jan 2023

Corporate Consolidation Of Rental Housing & The Case For National Rent Stabilization, Brandon Weiss

Articles in Law Reviews & Other Academic Journals

Rental housing in the United States is increasingly owned by corporate landlords that operate under a different set of incentives, behind a level of anonymity previously unavailable, and pursuant to practices that often exacerbate an already precarious housing landscape for tenants. Marketsensitive and nuanced rent stabilization laws have reemerged at the state and local level as a viable policy option to help regulate escalating rents and prevent tenant displacement. These laws, when well drafted, can address outdated critiques of strict rent caps and can complement alternative approaches, like those of the politically popular Yes In My Backyard (YIMBY) movement, which …


Reevaluating Regional Law Reform Strategies After Dobbs, Jamie Abrams Jan 2023

Reevaluating Regional Law Reform Strategies After Dobbs, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

This article studies the triad of 2016 social media campaigns known as “#AskDr.Kasich,” “#askbevinaboutmyvag,” and “#PeriodsforPence.” While these campaigns, each located in the regional mid-South, were motivated by restrictive state abortion bills, they uniquely positioned menstruation and women’s bodies at the center of their activism—not abortion alone. They leveraged, as a political fault line, the contradiction of these states’ governors’ perceived disgust relating to basic women’s reproductive health, relative to their patriarchal assuredness in regulating and controlling women’s bodies.

In so doing, they tapped into meaningful disruptions in the geographies, religiosities, and masculinities of abortion politics. These campaigns achieved regional …


Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck Jan 2023

Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck

Articles in Law Reviews & Other Academic Journals

During a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at …


A Critical Jeffersonian Mind For A Community Reinvestment Bind, Chaz Brooks Jan 2023

A Critical Jeffersonian Mind For A Community Reinvestment Bind, Chaz Brooks

Articles in Law Reviews & Other Academic Journals

The Community Reinvestment Act of 1977 ("CRA") primarily sought to remedy decades of government sanctioned disinvestment in so-called “redlined communities.” Through the Home Owners’ Loan Corporation and later the Federal Housing Administration, the United States of America created from whole cloth a structure that encouraged and subsidized the explosion of homeownership in white American households. Following decades of racialized wealth generation, the United States had a change of heart. Congress determined that financiers needed a gentle push to invest fairly. Additionally, Congress wanted one thing clear in the drafting of this remedy—it must not allocate credit.

This essay considers how …


Navajo Statehood: From Domestic Dependent Nation To 51st State, Ezra Rosser Jan 2023

Navajo Statehood: From Domestic Dependent Nation To 51st State, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

The Supreme Court’s recent holding in Oklahoma v. Castro-Huerta that “Indian country is part of the State, not separate from the State” is a reminder of tribal sovereignty’s precarious foundation under U.S. law. The Court’s holding not only broke with longstanding precedent regarding the relationship between tribes and states, but it is also incompatible with the lived experience of those living in the Navajo Nation. The Navajo Nation, not the states and not the federal government, has primary responsibility for governing an area roughly the size of West Virginia. Yet most maps of the United States demarcate only state boundaries, …


The Values-Based Trade Agenda, Fernanda Giorgia Nicola Dr., Michelle Egan Jan 2023

The Values-Based Trade Agenda, Fernanda Giorgia Nicola Dr., Michelle Egan

Articles in Law Reviews & Other Academic Journals

With the increasing trade tensions between the United States and China, pressures created by Brexit, and the COVID-19 pandemic, most trade scholars have focused on rising protectionism exhibited through defensive strategies such as tariffs and export controls. However, this focus ignores the fundamental shift in international trade goals of the United States and the European Union towards a values-based trade agenda.

Instead of merely focusing on free trade based on efficiency and market access, trade regulators on both sides of the Atlantic have independently pursued measures designed to address environmental sustainability and social equity. These policies resonate with their domestic …


Freedom Not To See A Doctor: The Path Toward Over-The-Counter Abortion Pills, Lewis Grossman Jan 2023

Freedom Not To See A Doctor: The Path Toward Over-The-Counter Abortion Pills, Lewis Grossman

Articles in Law Reviews & Other Academic Journals

American courts and lawmakers are engaged in an epic struggle over the fate of abortion pills. While some anti-abortion activists are attempting to drive the pills off the market entirely, supporters of reproductive rights are striving to make them more easily accessible. This Article advances the latter mission with a bold proposal: FDA should consider allowing abortion pills to be sold over the counter (OTC). Abortion rights supporters argue that FDA should repeal the special distribution and use restrictions it unnecessarily imposes on mifepristone, one of two drugs in the medication abortion regimen. Even if FDA removed these restrictions, however, …


The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian Jan 2023

The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian

Articles in Law Reviews & Other Academic Journals

The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy.

This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …


Securing Patent Law, Charles Duan Jan 2023

Securing Patent Law, Charles Duan

Articles in Law Reviews & Other Academic Journals

A vigorous conversation about intellectual property rights and national security has largely focused on the defense role of those rights, as tools for responding to acts of foreign infringement. But intellectual property, and patents in particular, also play an arguably more important offense role. Foreign competitor nations can obtain and assert U.S. patents against U.S. firms and creators. Use of patents as an offense strategy can be strategically coordinated to stymie domestic innovation and technological progress. This Essay considers current and possible future practices of patent exploitation in this offense setting, with a particular focus on China given the nature …


Defi: Shadow Banking 2.0?, Hilary J. Allen Jan 2023

Defi: Shadow Banking 2.0?, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

The growth of so-called “shadow banking” was a significant contributor to the financial crisis of 2008, which had huge social costs that we still grapple with today. Our financial regulatory system still hasn’t fully figured out how to address the risks of the derivatives, securitizations, and money market mutual funds that comprised Shadow Banking 1.0, but we’re already facing the prospect o fShadow Banking 2.0in the form of decentralized finance, or “DeFi.” DeFi’s proponents speak of a future where sending money is as easy as sending a photograph–but money is not the same as a photograph. The stakes are much …


Digital Habit Evidence, Andrew Guthrie Ferguson Jan 2023

Digital Habit Evidence, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.

While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …


Affirmatively Resisting, Ezra Rosser Jan 2023

Affirmatively Resisting, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This Article argues that administrative processes, in particular rulemaking’s notice-and-comment requirement, enable local institutions to fight back against federal deregulatory efforts. Federalism all the way down means that state and local officials can dissent from within when challenging federal action. Drawing upon the ways in which localities, states, public housing authorities, and fair housing nonprofits resisted the Trump Administration’s efforts to roll back federal fair housing enforcement, this Article shows how uncooperative federalism works in practice.

Despite the fact that the 1968 Fair Housing Act requires that the federal government affirmatively further fair housing (AFFH), the requirement was largely ignored …


Regulatory Innovation And Permission To Fail: The Case Of Suptech, Hilary J. Allen Jan 2023

Regulatory Innovation And Permission To Fail: The Case Of Suptech, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

The recent U.S. Supreme Court decision West Virginia v. EPA has cast a pall over the discretion of administrative agencies at a very inopportune time. The private sector is currently adopting new technologies at a rapid pace, and as regulated industries become more technologically complex, administrative agencies must innovate technological tools of their own in order to keep up. Agencies will increasingly struggle to do their jobs without that innovation, but the private sector is afforded something that is both critical to the innovation process, and often denied to administrative agencies: “permission to fail.” Without some grace for the inevitable …


Ukraine's Push To Prosecute Aggression: Implications For Immunity Ratione Personae And The Crime Of Aggression, Rebecca Hamilton Jan 2023

Ukraine's Push To Prosecute Aggression: Implications For Immunity Ratione Personae And The Crime Of Aggression, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Russia’s aggression against Ukraine dates back to its 2014 annexation of Ukraine’s southern peninsula, Crimea. It was Russia’s brazen full-scale invasion of Ukraine on February 24, 2022, however, that captured global attention and put the crime of aggression – the resort to war in violation of the UN Charter3 – in the spotlight.


The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle Jan 2023

The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle

Articles in Law Reviews & Other Academic Journals

This essay examines the intellectual history of the idea of judicial restraint, starting with the early debates among the US Constitution’s founding generation. In the late nineteenth century, law professor James Bradley Thayer championed the concept and passed it on to his students and others, including Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, and Felix Frankfurter, who modified and applied it based on the jurisprudential preoccupations of a different era. In a masterful account, Brad Snyder examines Justice Frankfurter’s attempt to put the idea into practice. Although Frankfurter arguably made a mess of it, he passed the idea of …


Fleeing The Land Of The Free, Jayesh Rathod Jan 2023

Fleeing The Land Of The Free, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

This Essay is the first scholarly intervention, from any discipline, to examine the number and nature of asylum claims made by U.S. citizens, and to explore the broader implications of this phenomenon. While the United States continues to be a preeminent destination for persons seeking humanitarian protection, U.S. citizens have fled the country in significant numbers, filing approximately 14,000 asylum claims since 2000. By formally seeking refuge elsewhere, these applicants have calculated that the risks of remaining in the United States outweigh the bundle of rights that accompany U.S. citizenship. Given the United States’ recent flirtation with authoritarianism, and the …


Transformative Immigration Lawyering, Jayesh Rathod Nov 2022

Transformative Immigration Lawyering, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

Movement actors have long sought expansive reforms in U.S. immigration law, but two deep-seated tendencies are obstructing those efforts: incrementalism and path dependence. This Essay recommends that law clinics counter these forces by setting ambitious goals for structural change and by equipping students with knowledge and skills needed for transformative lawyering.


Sunshine Laws Behind The Clouds: Limited Transparency In A Time Of National Emergency, Ira P. Robbins Nov 2022

Sunshine Laws Behind The Clouds: Limited Transparency In A Time Of National Emergency, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

The COVID-19 pandemic dramatically changed the way citizens lived their lives, businesses operated, and governments functioned. With most people forced to stay home, the pandemic also disrupted how people received their news and other essential information. Public records and public meetings had to adapt to face the growing challenges in a locked-down world. While some governmental bodies were able to keep up with the threat that COVID-19 posed against transparency, others either failed to acclimate to the new normal or actively took advantage of the circumstances to limit how much the public knew not only about the crisis, but about …


The Law Of Friends, Ezra Rosser Oct 2022

The Law Of Friends, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

A serious law professor would not write an article about the TV show Friends, but having just written a book and an article, I’m on a “break.” Besides, I’m not that serious a law professor. And Friends is as good a topic as any. For those of us of a certain age—too young to have watched M.A.S.H. when it came out and old enough to remember watching broadcast TV and not just through a streaming service on a device—Friends was and is a big deal. It both captured a particular moment in history and helped make that moment.

Looking back …


The Obsolescence Of Blue Laws In The 21st Century, Ira P. Robbins Oct 2022

The Obsolescence Of Blue Laws In The 21st Century, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

Depending on where in the United States one is located on any given Sunday or Christian holiday, it is against the law to buy a beer or a car, go shopping, hunt, or even play Bingo. This prohibition is a direct result of Blue Laws, alternatively called Sunday Closing Laws or Lord’s Day Acts. Blue Laws frustrate commerce and recreational activities. While at one time they might have aligned with societal values or served a practical secular purpose, such as providing workers with a day of rest, modern society renders Blue Laws obsolete and nonsensical.

Due to rapid change in …


Teaching Case Theory, Binny Miller Oct 2022

Teaching Case Theory, Binny Miller

Articles in Law Reviews & Other Academic Journals

As the key means of framing a case, case theory is the central problem that lawyers confront in constructing a case, and many of the decisions made during the life of a case are decisions that rest on case theory. Building on the author's earlier scholarship on case theory, this essay articulates a concept of case theory called "storyline," and sets out a framework for teaching this concept. The framework for this process has three basic stages - imagining case theory, evaluating (and constructing) case theory, and choosing case theory. The material for this process is stories, which are the …