Law Commons^™

No-Poach Agreements: An Overview Of Us, Eu, And National Case Law, Donald J. Polden

Faculty Publications

The United States, European Union, and many other international jurisdictions have antitrust and competition laws that seek to prevent anticompetitive conduct concerning labor and employment relationships. However, for many years these prohibitions on restraints of trade in labor markets and employment relationships were not routinely and rigorously enforced by those jurisdictions. The lack of governmental attention to these labor market practices has changed in important ways in recent years. Across many jurisdictions, we are now seeing more intense attention to conduct that suppresses wages of workers and their freedom of job mobility to other comparable positions. From an international perspective, …

Dobbs, Abortion Laws, And In Vitro Fertilization, Kerry L. Macintosh

Faculty Publications

Health Organization1 has upended abortion jurisprudence. The case concerned a Mississippi law barring most abortions when the probable gestational age of the fetus was greater than fifteen weeks.2 Holding that the U.S. Constitution did not protect a right to abortion through the Due Process Clause of the Fourteenth Amendment,3 the Court overruled Roe v. Wade4 and Planned Parenthood of Southeastern Pennsylvania v. Casey.

5 Abortion, it explained, differed from other protected acts because abortion destroyed potential life.6 Deeming rational basis review appropriate,7 the Court concluded that the Mississippi law was rationally related to what the Court accepted as legitimate state …

Doctors’ Duty To Provide Abortion Information, Michelle Oberman, Lisa Soleymani Lehmann

Faculty Publications

With abortion remaining legal in over half of the country and a proliferation of websites offering information on how to access abortion medications, ending an unwanted early-stage pregnancy remains surprisingly easy. That is, easy for those who know where to look. But not all patients have equal access to reliable information. This Article addresses the urgent downstream harms caused by the lack of access to abortion information, particularly among the most vulnerable Americans, and argues that, in view of these consequences, regardless of abortion’s legal status, clinicians have a duty to provide their patients with abortion information.

We begin with …

Against Silence: Why Doctors Are Obligated To Provide Abortion, Michelle Oberman

Faculty Publications

As a lawyer, I have long been interested in the gap between law and the books and law in practice. In 2008, this curiosity led me to Latin America, where I began studying the impact of the world's most restrictive abortion bans. My first stop was Chile, which at the time banned abortion under all conditions–– there was not even an exception to save women's lives. Raised on the history of what happened when abortion was illegal in the United States prior to Roe v. Wade, I knew asking doctors to share their experiences was one way to gauge the …

Abortion Counseling, Liability, And The First Amendment, Michelle Oberman, Katie Watson

Faculty Publications

No abstract provided.

Marvin Claims At Death, Patricia A. Cain

Faculty Publications

In 1976, the California Supreme Court handed down its decision in Marvin v. Marvin, recognizing the enforcement of contract and equitable claims that could be asserted when an unmarried partnership was dissolved. Most states have followed the basic holding in Marvin, although important differences in state law have developed over time. Recently, the Uniform Law Commission has approved a uniform act dealing with these issues, the Uniform Cohabitants' Economic Remedies Act (UCERA)

Much has been written about the rights that unmarried partners can assert against each other. Most of the scholarship has focused on the rights that arise …

The New Ali Restatement And The Doctrine Of Non-Self-Executing Treaties, David Sloss

Faculty Publications

No abstract provided.

Does Mitochondrial Replacement Therapy Violate Laws Against Human Cloning?, Kerry L. Macintosh

Faculty Publications

All human beings have mitochondria within their cells that produce energy.1 Most of us inherit healthy mitochondria through the eggs of our mothers,2 but some of us are not so lucky. Mutations in mitochondrial DNA (mtDNA) can cause these tiny organelles to function improperly and disrupt tissues that require a lot of energy, like the brain, kidney, liver, heart, muscle, and central nervous system.3 For example, a specific mtDNA mutation induces Leigh syndrome, a condition in which seizures and respiratory failure lead to decline in mental and motor skills, disabil- ity, and death.4 Mitochondrial replacement therapy (MRT) offers a solution …

The Texas Second Chance Non-Disclosure/Sealing Gap, Colleen Chien

Faculty Publications

Texas Gov. Code Chap. 411 allows individuals whose criminal records meet certain conditions to non-disclose or seal their records. Ascertaining, then applying the law to the criminal profiles of Texans with convictions or deferred adjudications, as reflected in the Texas Computerized Criminal History System database (CCH) obtained from the Texas Department of Public Safety (described in Appendix B), as well as a sample of 2,362 criminal histories, and then 4 extrapolating to the estimated population of 4.8M individuals in the state with conviction records and estimated population of 7M individuals in the state with any record we estimate the share …

The Financial Impact Of Lost Licenses In Texas, Colleen Chien

Faculty Publications

No abstract provided.

Restrictions On Worker Mobility And The Need For Stronger Policies On Anticompetitive Employment Contract Provisions, Donald J. Polden

Faculty Publications

There is increasing concern in the United States about the difficulties that American workers are facing including concerns about limits on worker job mobility and how those limits affect workers’ wages and compensation, employee benefits, and finding their next job.2 Workers believe the challenges they face in changing jobs for better salary and benefits should be addressed so they have greater job mobility and opportunities for advancement. Workers are subject to restraints on job mobility across the spectrum of jobs, including those in executive-level positions as well as minimum- wage employees. Workers complain that they are not constrained in getting …

The Minnesota Second Chance Expungement Gap, Colleen Chien

Faculty Publications

Minnesota Statute Sections 609A, 243.166, and 609.02 define conditions under which individuals with criminal records can expunge their records. Ascertaining, then applying the law to a sample of 581,478 criminal histories of people with convictions records, and then extrapolating to the estimated population of 1.1M individuals in the state with criminal records , 2 we estimate the share and number of people who are eligible for relief but have not received it and therefore fall into the “second chance gap,” the difference between eligibility for and receipt of records relief. Importantly, we assumed that all who met the threshold criteria …

The New York Second Chance Sealing Gap, Colleen Chien

Faculty Publications

No abstract provided.

The Missouri Second Chance Expungement Gap, Colleen Chien

Faculty Publications

No abstract provided.

The Financial Impact Of Suspended Licenses In Illinois, Colleen Chien

Faculty Publications

No abstract provided.

The Illinois Second Chance Expungement/Sealing Gap, Colleen Chien

Faculty Publications

No abstract provided.

The Oregon Second Chance Set-Aside Gap, Colleen Chien

Faculty Publications

No abstract provided.

The California Way: An Analysis Of California’S Immigrant-Friendly Changes To Its Criminal Laws, Evangeline G. Abriel

Faculty Publications

Immigration falls exclusively within the federal government’s purview, and states are generally prohibited from legislating in the area of immigration. At the same time, however, a large number of individuals are subject to deportation, denial of admission, and denial of immigration benefits based upon convictions of state crimes, over which states generally have exclusive authority. At a time when both the federal government and some states seem determined to expand the immigration consequences of even relatively minor criminal con- duct, is there anything states can do to protect their noncitizen re- sidents? Surprisingly, yes, quite a bit. California, for example, …

The Right To A Public Trial, Conditional Courtroom Entry And Tiers Of Constitutional Scrutiny, Stephen Smith

Faculty Publications

The constitutional test the SupremeCourt has prescribed to review courtroom closures for compliance with the Sixth Amendment’s right to a public trial is in the nature ofstrictscrutiny. The Courtrequires an “overriding interest” to justify the closure, and a narrow, minimally restrictive scope to the closure. Many lower courts have imposed a less demanding test for “partial” closures, which admit to the courtroom some, but not all, of the public. These courts require a less demanding justification before closing the courtroom to certain individuals—the justification need be only “substantial,” ratherthan “overriding.” Thisstandard is in the nature of intermediate scrutiny, as applied …

Reconciling Copyright "Restoration" For Pre-1972 Foreign Sound Recordings With The Classics Protection And Access Act, Tyler T. Ochoa

Faculty Publications

When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: …

"The Rule” And The Constitution: Witness Exclusion And The Right To A Public Trial, Stephen E. Smith

Faculty Publications

Federal and state rules of evidence provide for the exclusion of potential witnesses from the courtroom. But, in criminal proceedings, the Sixth Amendment’s right to a public trial presumes that a courtroom will be open. The public trial right has been widely interpreted to restrict even “partial closures” – the exclusion of an individual or group from a criminal courtroom. The rule on witnesses is potentially at odds with the right to a public trial. Witness exclusion, by rule, is almost automatic. The Sixth Amendment, on the other hand, requires heightened scrutiny before individuals may be excluded from the courtroom. …

United States V. Allen And Judicial Review Of Early Pandemic Courtroom Closures, Stephen E. Smith

Faculty Publications

Trial court judges in 2020 were faced with a remarkable new problem. They were asked to accommodate both public health concerns (preventing trial participants, jurors, and spectators from contracting COVID-19) and criminal defendants’ Sixth Amendment right to a public trial. As courts of appeal begin their review of cases alleging violations of the Sixth Amendment’s right to a public trial arising during the early pandemic, they should be careful to consider conditions as they were at the time. We have learned much about COVID-19 and its management since then. But reviewing courts should not demand that trial courts possess public …

Redefining Progress And The Case For Diversity In Innovation And Inventing, Colleen Chien

Faculty Publications

In the United States, women represent 50% of the workforce, but only 27% of STEM workers and 13% of inventors. This article surveys the scientific literature to make the empirical case for diversity in innovation and inventing, finding a growing body of research to show how diverse innovators expand the reach, quality, and quantity of innovation. It then surveys the history of patent law to make the legal case for prioritizing diversity in inventing, and for expanding conventional notions of “progress” in the patent system to include the promotion of a diverse set of innovators, rather than just innovation. It …

The Inequalities Of Innovation, Colleen Chien

Faculty Publications

Over the last few decades, the United States has become more innovative, but the gains have been distributed unequally. In 2020, over 50% of new U.S. patents went to the top 1% of patentees, and more than 50% of all patents of U.S. origin were generated by just five states, all coastal. Less than 13% of inventors were women. The economic, geographic, and demographic concentration of innovation highlight how the intersections between two traditionally discrete topics—innovation and inequality—have become increasingly relevant. But rather than any single inequality, this Article argues, multiple inequalities—of income, opportunity, and access—have relevance to innovation. Examining …

How Abortion Laws Do And Don't Work, Michelle Oberman

Faculty Publications

The US Supreme Court appears ready to permit states to re-criminalize abortion. When the “law on the books” changes in the United States, what might the “law on the ground” look like? One answer lies in examining what happens today, in countries with restrictive abortion laws. Israel’s 1977 law bars abortion unless approved by a “pregnancy termination committee.” Drawing on interviews with committee members, lawmakers, advocates and others, this Article presents an ethnographic study of one country’s experience with a law criminalizing abortion.

Israel’s approach, limiting abortion access to those with qualifying conditions, is likely to be in play for …

Integrated Nonmarital Property Rights, E. Gary Spitko

Faculty Publications

Nonmarital cohabitation has become a mainstream family structure in the United States. Yet, despite the increasing prevalence of nonmarital cohabitants, American family property law generally fails to support nonmarital couples. This inequality under the law disproportionately disadvantages persons of color, those with relatively less education, and couples with relatively fewer economic resources. This Article considers the post-Obergefell need for law reform to better support nonmarital families, examines the principles that should ground nonmarital property rights reform, and proposes a novel approach to nonmarital property rights that integrates the law of dissolution with the law of succession, unifies the law governing …

What Will And Won’T Happen When Abortion Is Banned, Michelle Oberman

Faculty Publications

For the past fifty years, abortion opponents have fought for the power to ban abortion without little attention to how things might change when they won. The battle to make abortion illegal has been predicated on three nebulous assumptions about how abortion bans work. First, supporters believe banning abortion will deter it. Second, they hope bans will send a message about abortion—specifically, that abortion is immoral. And third, they expect bans to be competently implemented and enforced.

Drawing on empirical work from within and outside of the U.S., this Article offers an evidence-based assessment of each of these assumptions. Part …

Estimating The Earnings Loss Associated With A Criminal Record And Suspended Driver’S License, Colleen Chien, Alexandra George, Srihari Shekhar, Robert Apel

Faculty Publications

No abstract provided.

The Estimated Size And Lost Earnings Of New York’S Second Chance Sealing Gap, Colleen Chien, Navid Shaghaghi, Hithesh Bathala, Sarah-Mae Sanchez, Evan Hastings

Faculty Publications

As states pass reforms to reduce the size of their prison populations, the number of Americans physically incarcerated has declined. However, the number of people whose employment and related opportunities are limited due to their criminal records continues to grow. Another sanction that curtails economic opportunity is the loss of one’s driver’s license for reasons unrelated to driving. While many states have “second chance” laws on the books that provide, e.g. expungement or driver’s license restoration, a growing body of research has documented large “second chance gaps” between eligibility and delivery of relief due to the poor administration of second …

The Online Criminal Trial As A Public Trial, Stephen Smith

Faculty Publications

There are two ways of favorably conceiving online trials in Sixth Amendment terms. One is that an online trial is a public trial, by its terms. The other is that an online trial may not be public, for Sixth Amendment purposes, but may nonetheless satisfy applicable constitutional demands for trials considered “closed.” This Essay proposes both: that an online trial is fundamentally “public” for Sixth Amendment purposes and, if it is not, it may still be a constitutional accommodation of the Sixth Amendment’s public trial guarantee, in appropriate circumstances.

The constitutionality of an online trial may be largely an idle …