Law Commons^™

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …

Justice Scalia's Bottom-Up Approach To Shaping The Law, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Justice Antonin Scalia is among the most famous Supreme Court Justices in history. He is known for his originalism and conservative positions, as well as his witty and acerbic legal opinions. One of the reasons Justice Scalia's opinions are so memorable is his effective use of rhetorical devices, which convey colorful images and understandable ideas. One might expect that such powerful opinions would be effective in shaping the law, but Justice Scalia's judicial philosophy was often too conservative to persuade a majority of his fellow Justices on the Supreme Court. Further, his regular criticisms of his Supreme Court colleagues were …

Confusing Patent Eligibility, David O. Taylor

Faculty Journal Articles and Book Chapters

Patent law — and in particular the law governing patent eligibility — is in a state of crisis. This crisis is one of profound confusion. Confusion exists because the current approach to determining patent eligibility confuses the relevant policies underlying numerous discrete patent law doctrines, and because the current approach lacks administrability. Ironically, the result of all this confusion is seemingly clear: the result seems to be that, when challenged, patent applications and issued patents probably do not satisfy the requirement of eligibility. At least that is the perception. A resulting concern, therefore, is that the current environment substantially reduces …

Further Thoughts On Race, American Law, And The State Of Nature: Advancing The Multiracial Paradigm Shift And Seeking Patterns In The Area Of Race And Law, George A. Martinez

Faculty Journal Articles and Book Chapters

In his article, the author seeks to use philosophical theory - state of nature theory - as a way to understand American law and issues of race. This project, consistent with a recent trend in legal scholarship, seeks to uncover hidden meanings in law through historical analysis, cultural critique, or philosophical contemplation.

The author argues that there is a tendency for the dominant group to relate to racial minorities as if they were in the state of nature - i.e., a tendency to act as if they were in a situation without legal or moral constraints. The article examines this …

Reply To Miriam Baer And Michael Doucette’S Reviews Of Two Models Of Pre-Plea Discovery In Criminal Cases, Jenia I. Turner, Allison D. Redlich

Faculty Journal Articles and Book Chapters

No abstract provided.

How Cheap Is Corporate Talk? Comparing Companies' Comments On Regulations With Their Securities Disclosures, James W. Coleman

Faculty Journal Articles and Book Chapters

When companies face adverse proposed rules, they may want to convince regulators that the proposed rules are unworkable and should be changed while, at the same time, reassuring investors that the rules will be manageable. These conflicting incentives may lead to inconsistent messages in regulatory comments and securities disclosures, fueling a perception that corporate submissions to regulators are cheap talk. Despite this perception, there has been no empirical study comparing statements to these two audiences. This project performs such a study, taking the example of comments submitted on the Environmental Protection Agency's Renewable Fuel Standard. This standard provides an ideal …

Miranda'S Truth: The Importance Of Adversarial Testing And Dignity In Confession Law, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The landmark decision of Miranda v. Arizona focuses on the important values of adversarial testing and human dignity. These values can be found among a constellation of values ordinarily aligned with constitutional criminal procedure cases like Miranda. The constellation also includes values such as truth-finding and equality. With the regularization of DNA analysis and the realization that a large number of innocent people have been convicted, however, there has been a recent fixation on truth-finding. Other values have been overshadowed. The myopic pursuit of truth-finding may be somewhat misguided, as certainty of truth is generally impossible. This is recognized by …

Patent Assertion Entities, Reasonable Royalties, And A Restitution Perspective, W. Keith Robinson

Faculty Journal Articles and Book Chapters

No abstract provided.

Plea Bargaining And Disclosure In Germany And The United States: Comparative Lessons, Jenia I. Turner

Faculty Journal Articles and Book Chapters

This article analyzes recent trends in plea bargaining and disclosure of evidence in Germany and the United States. Over the last two decades, a number of U.S. jurisdictions have adopted rules requiring broader and earlier discovery in criminal cases. This development reflects a growing consensus that, in a system that resolves most of its cases through guilty pleas, early and extensive disclosure is necessary to ensure fair and informed outcomes.

The introduction of broader discovery in criminal cases in the United States aligns our rules more closely with German rules on access to the investigative file. At the same time, …

The Frankenstein’S Monster Of Extraterritoriality Law, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

The judge-made presumption against extraterritoriality has recently become a motley patchwork of eccentric and sometimes contradictory doctrines seemingly stitched together for one, and only one, mission: to deprive plaintiffs the right to sue in U.S. courts for harms suffered abroad. It lumbers along, blithely squashing precedent, principle, statutory text, and legislative intent — all to heed its abiding and single-minded obsession. The Supreme Court has so far mangled the scope of the Securities Exchange Act1 and the Alien Tort Statute (ATS),2 and, in RJR Nabisco v. European Community, has placed another statute — The Racketeer Influenced and Corrupt Organizations Act …

The Obama Administration's New 'Repaye' Plan For Student Loan Borrowers: Not Much Help For Law School Graduates, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

In response to President Obama’s 2014 directive the DOE has proposed a new student loan repayment option, labeled the Repay As You Earn Plan (“REPAYE Plan”). The DOE on July 9, 2015 requested comments on their proposed REPAYE Plan rules, and the Plan will probably be open for enrollment in early 2016 for up to 6 million student loan borrowers who are not eligible for enrollment in the generous Pay As You Earn Plan (“PAYE Plan”) because of their pre-October 1, 2007 federal student loan debts. I estimate that approximately 72,000 of those 6 million persons are law graduates. However, …

Clearing The Air: How Canadian Lng Exports Could Help Meet World Greenhouse Gas Reduction Goals, James W. Coleman, Sarah Marie Jordaan

Faculty Journal Articles and Book Chapters

With a glut of natural gas in North America, Canada’s natural gas sector is looking to reach new global markets for liquefied natural gas (LNG) exports. The federal government will likely rule soon on environmental assessments of LNG exports facilities on Canada’s west coast.

If LNG from Canada serves coal-dependent countries, mostly in Asia, Canadian LNG will likely lower global greenhouse gas emissions. However, LNG exports to less coal-dependent countries could result in a net emissions increase.

It is impractical for regulators to assess how individual LNG export facilities will affect overseas greenhouse gas emissions because of uncertainty in markets, …

Transfer Pricing Challenges In The Cloud, Orly Mazur

Faculty Journal Articles and Book Chapters

Cloud computing - the provision of information technology resources in a virtual environment - has fundamentally changed how companies operate. Companies have quickly adapted by moving their businesses to the cloud, but international tax standards have failed to follow suit. As a result, taxpayers and tax administrations confront significant tax challenges in applying outdated tax principles to this new environment. One particular area that raises perplexing tax issues is the transfer pricing rules. The transfer pricing rules set forth the intercompany price a cloud service provider must charge an affiliate using its cloud services, which ultimately affects in which jurisdiction …

Expanding The Core: Pregnancy Discrimination Law As It Approaches Full Term, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The advocates behind the Pregnancy Discrimination Act (PDA) of 1978 had one very specific mission: to override the Supreme Court’s 1976 decision in General Electric v. Gilbert, in which it had curiously held that pregnancy discrimination had nothing to do with gender and was thus not a form of actionable sex discrimination under Title VII of the Civil Rights Act of 1964. The Court was not acting on a blank slate; it had used the same reasoning two years earlier to hold, in Geduldig v. Aiello, that pregnancy discrimination was not sex discrimination for equal protection purposes and therefore was …

Sampling And Reliability In Class Action Litigation, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

It is often argued that the use of sampling to prove classwide liability and damages in class action litigation serves purposes of efficiency, but only at the cost of reliability. Concern for reliability is central to the permissibility of such methodologies. This article explains certain conclusions regarding sampling and reliability — and, particularly, that sampling may improve the reliability of legal outcomes — and discusses these conclusions in light of the Supreme Court’s recent decision in Tyson Foods, Inc. v. Bouaphakeo.

Absolute Conflicts Of Law, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article coins the term “absolute conflicts of law” to describe situations of overlapping laws from different states that contain simultaneous contradictory commands. It argues that absolute conflicts are a unique legal phenomenon in need of a unique doctrine. The Article extensively explores what absolute conflicts are, how they qualitatively differ from other doctrines like true conflicts of law, act of state, and comity, and classifies absolute conflicts’ myriad doctrinal manifestations through a taxonomy that categorizes absolute conflicts as procedural, substantive, mixed, horizontal, and vertical.

The Article then proposes solutions to absolute conflicts that center on the rule of law …

A Systems Theory Of Fragmentation And Harmonization, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

International law’s accelerating “fragmentation” presents the international legal system with what looks like a multilayered existential threat. Theoretically, how can we conceive of international law as a unitary system if its rules are becoming progressively frayed and pixilated to the point of incoherence? Doctrinally, what is “the law” if different, purportedly authoritative, bodies interpret it so differently? And practically, how are actors increasingly subject to the ever-expanding universe of international law supposed to behave when the law itself is so splintered that it may point them in many, perhaps contradictory, directions at once?

The prevailing view so far among international …

Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Jenia I. Turner, Allison D. Redlich

Faculty Journal Articles and Book Chapters

Our criminal justice system resolves most of its cases through plea bargains. Yet the U.S. Supreme Court has not required that any evidence, even exculpatory or impeachment evidence, be provided to the defense before a guilty plea. As a result, state rules on pre-plea discovery differ widely. While some jurisdictions follow an “open-file” model, imposing relatively broad discovery obligations on prosecutors early in the criminal process, others follow a more restrictive, “closed-file” model and allow the prosecution to avoid production of critical evidence either entirely or until very near the time of trial. Though the advantages and disadvantages of both …

Should We Defuse The 'Tax Bomb' Facing Lawyers Who Are Enrolled In Income-Based Student Loan Repayment Plans?, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Starting in 2033 first thousands and then later tens of thousands of mid-career lawyers who have previously incurred large student loan debts, and who unfortunately have been able to earn only relatively modest annual incomes in the 20 or 25 years following their law school graduation, will be subject each year to large cancellation of indebtedness-based federal and sometimes also state income tax obligations. These obligations will result because a large portion of the substantial student loan debts that have been incurred by many law school graduates will eventually be forgiven under one or another variant of the increasingly popular …

Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry

Faculty Journal Articles and Book Chapters

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if …

Taking Dignity Seriously: Excavating The Backdrop Of The Eighth Amendment, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on …

False Rubicons, Moral Panic & Conceptual Cul-De-Sacs: Critiquing & Reframing The Call To Ban Lethal Autonomous Weapons, Chris Jenks

Faculty Journal Articles and Book Chapters

Casting into the indeterminate future and projecting visions of so-called killer robots, The Campaign to Stop Killer Robots (The Campaign) has incited moral panic in an attempt to stimulate a discussion and ultimately a ban on lethal autonomous weapons (LAWS). Their efforts have been superficially successful but come at a self-defeating substantive cost. In the hope of shifting the dialogue from the hyperbolic to a constructive dialogue on the interaction between human and machine abilities in both current and future weapon systems, this article explores the conceptual paradox implicit in The Campaign and proposes an alternative.

Having provoked the international …

A Rose By Any Other Name: How The United States Charges Its Service Members For Violating The Laws Of War, Chris Jenks

Faculty Journal Articles and Book Chapters

This chapter examines the US practice of not charging its service members with war crimes. The chapter briefly explains how the United States asserts criminal jurisdiction over its service members before turning to how the US military reports violations of the laws of war. It then sets out the US methodology for charging such violations as applied to its service members, and compares this methodology to that applied to those tried by military commissions. The chapter then discusses the varied meanings of the term ‘war crimes’ and the way in which the 1949 Geneva Conventions can provide a benchmark against …

Detention Under The Law Of Armed Conflict, Chris Jenks

Faculty Journal Articles and Book Chapters

Despite recent hard-earned experience during international and non-international armed conflicts in places like Afghanistan and Iraq, and in peacekeeping missions around the world, the international community continues to struggle practically and conceptually with detention of belligerents. The struggle includes questions ranging from when individuals may be detained and for how long, to determining the applicable legal regime. While this myriad of issues is vexing, they are neither as new, nor the applicable law as lacking, as has been argued.

This chapter takes a pragmatic approach to detention and suggests that the 1949 Geneva Conventions and the 1977 Additional Protocols, outmoded …

Reimagining The Wheel: Detention And Release Of Non-State Actors Under The Geneva Conventions, Chris Jenks

Faculty Journal Articles and Book Chapters

After more than a decade of sustained armed conflict, the international community continues to struggle with the issues posed by non-State actors participating in hostilities. Issues range from the micro, of if and when individuals may be targeted and detained, to the macro if not meta level of which legal regime to apply. This chapter considers detention from a pragmatic approach and proposes that the 1949 Geneva Conventions and Additional Protocols I and II, outmoded and seemingly inapplicable though they are in some respects, offer the most thorough, humane, realistic and readily available option for determining how to treat and …

Sexual Assault As A Law Of War Violation & U.S. Service-Members’ Duty To Report, Chris Jenks, Jay Morse

Faculty Journal Articles and Book Chapters

This Essay considers when U.S. service members deployed to Afghanistan are obligated to report allegations of sexual assault by Afghan security forces against Afghan nationals to the U.S. military. The answer requires applying a longstanding Department of Defense policy for reporting law of war violations and hinges on whether there is a nexus between the sexual assault and the armed conflict in Afghanistan. Although recent attention on this topic has brought much-needed visibility to sexual assault in conflict zones, the overbroad assertions of the media and the military have unfortunately fostered more confusion than clarity. This Essay does not attempt …

Parentage Without Gender, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

Dramatic changes in the family form over the last several decades have put increasing pressure on the parent-child relationship. This elevation of the parent-child relationship in law and policy means that parents have both greater rights and more onerous obligations than in a system that spreads responsibility for children more broadly. The question of what constitutes a legal parent-child relationship under American law has become increasingly important because of its primacy in the determination of rights and obligations, but also increasingly complex because of reproductive technology and changing patterns of childbearing. The complexity and lack of cohesion that characterizes modern …

Sins Of Omission: Abstention In Democratic Institutions, Grant M. Hayden

Faculty Journal Articles and Book Chapters

Assumptions regarding the effect of an abstention guide the theory and practice of abstention across the full range of democratic decisionmaking. Sometimes, however, these assumptions are false, and may prevent voters from achieving their objectives. This Article examines the effect that abstention has under common voting procedures, dispelling many assumptions that voters make about the effect of an abstention.

An Historical Overview Of Ucc Article 9, Peter Winship

Faculty Journal Articles and Book Chapters

This book chapter traces the history of Article 9 (Secured Transactions) of the U.S. Uniform Commercial Code. After setting out the pre-1940 legal setting in the United States for the use of movable property in secured transactions, the chapter studies three stages in the evolution of Article 9: (1) the drafting of the first “official” text (1947-1951), (2) the continuing revision of the text and its slow adoption by states (1952-1990), and (3) the thorough-going revision that lead to the present 1998 official text and subsequent minor amendments (1990-present). The chapter notes the growing complexity of the text and the …

Collection Texas-Style: An Analysis Of Consumer Collection Practices In And Out Of The Courts, Mary B. Spector, Ann Badour

Faculty Journal Articles and Book Chapters

As many as forty-four percent of Texans with credit files have non-mortgage debt in collection; this is more than ten percent above the national average. The Authors provide a snapshot of collection practices employed in Texas over a two-year period following the enactment of new court rules governing the litigation of most collection cases. Using a combination of quantitative and qualitative methods, they consider data in three general categories:

(1) consumer complaints to the state and federal agencies;

(2) court outcomes over a two-year period along with related demographic data; and

(3) court observations conducted in five counties with a …