Law Commons^™

The Age Of Marital Capacity: Reconsidering Civil Recognition Of Adolescent Marriage, Vivian E. Hamilton

Faculty Publications

Age at marriage has for decades been the strongest and most unequivocal predictor of marital failure. The likelihood of divorce nears eighty percent for those who marry in mid-adolescence, then drops steadily. Delaying marriage until the mid-twenties reduces one’s likelihood of divorce to thirty percent. Women who marry at age twenty-one or younger, moreover – and one in ten U.S. women do – experience worse mental and physical health, attain less education, and earn lower wages than those who marry later. Post-divorce, they and their children tend to endure even greater economic deprivation and instability than do never-married mothers, who …

Reverse-Commandeering, Margaret Hu

Faculty Publications

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anticommandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration …

The Incredible Shrinking Confrontation Clause, Jeffrey Bellin

Faculty Publications

Sharp turns in the Supreme Court’s recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded as the Court’s decisions in Davis v. Washington and Bryant v. Michigan revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.

Recent scholarship strives to reanimate the jurisprudence by expanding the doctrinal definition of “testimonial” statements – the sole form of evidence that the Court now recognizes as implicating the Confrontation Clause. …

Markets As A Moral Foundation For Contract Law, Nathan B. Oman

Faculty Publications

No abstract provided.

The Law School Critique In Historical Perspective, A. Benjamin Spencer

Faculty Publications

Contemporary critiques of legal education abound. This arises from what can be described as a perfect storm: the confluence of softness in the legal employment market, the skyrocketing costs of law school, and the unwillingness of clients and law firms to continue subsidizing the further training of lawyers who failed to learn how to practice in law school. As legal jobs become increasingly scarce and salaries stagnate, the value proposition of law school is rightly being questioned from all directions. Although numerous valid criticisms have been put forth, some seem to be untethered from a full appreciation for how the …

The Scope Of Trademark Law In The Age Of The Brand Persona, Laura A. Heymann

Faculty Publications

No abstract provided.

Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib

Faculty Publications

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …

Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin

Faculty Publications

No abstract provided.

Making Sex The Same: Ending The Unfair Treatment Of Males In Family Law, Myrisha S. Lewis

Faculty Publications

No abstract provided.

Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches, Adam M. Gershowitz

Faculty Publications

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. …

Confronting Supreme Court Fact Finding, Allison Orr Larsen

Faculty Publications

No abstract provided.

Party Polarization And Judicial Review: Lessons From The Affordable Care Act, Neal Devins

Faculty Publications

Congress paid nearly no attention to the Constitution when enacting the Affordable Care Act (ACA) in 2010. Legislative hearings and committee reports ignored the Constitution altogether; legislative debates largely did the same. This Essay both highlights Congress’s indifference to the Constitution when enacting the ACA and examines the reasons behind this legislative failure. In particular, this Essay advances three explanations. First, Congress is generally uninterested in “public goods” like constitutional interpretation. Second, the polarization of Democrats and Republicans in Congress further depresses Congress’s interest in thinking about the Constitution; instead, the majority party seeks to limit opportunities for the minority …

Subverting Symbolism: The Matthew Shepard And James Byrd, Jr. Hate Crimes Prevention Act And Cooperative Federalism, Kami Chavis Simmons

Faculty Publications

Hate crimes continue to persist in the United States and undermine the traditions and values to which the country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the "HCPA"). The HCPA significantly expands the federal government's authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many such crimes. The HCPA also represents an expansion …

Informal Institutions And Property Rights, Lan Cao

Faculty Publications

No abstract provided.

The Political Puzzle Of The Civil Jury, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates over the civil justice or tort system—debates over punitive damages, preemption, and tort reform more broadly—are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.

The debate over the jury—in both the academic literature and the …

Property Before Property: Romanizing The English Law Of Land, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

Promise And Private Law, Nathan B. Oman

Faculty Publications

This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried's Contract as Promise and revisits Fried's theory in light of two developments in the private-law scholarship: the rise of corrective justice and civil-recourse theories. The structural features that motivate these theories-the bilateralism of damages and the private standing of plaintiffs-are both elements of the law of contracts that Contract as Promise sets out to explain. I begin with the issue of bilateralism. Remedies--in particular the defense of expectation damages--occupy much of Fried's attention in Contract as Promise, and he insists that this particular …

English Justices And Roman Jurists: The Civilian Learning Behind England's First Case Law, Thomas J. Mcsweeney

Faculty Publications

Article looks at a historical problem—the first use of case law by English royal justices in the thirteenth century—and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and canon law, …

Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Rethinking Microfinance, Lan Cao

Faculty Publications

No abstract provided.

A Name I Call Myself: Creativity And Naming, Laura A. Heymann

Faculty Publications

In recent years, various disputes involving the use of creative works have demonstrated how trademark-related concerns lurk at the heart of what are ostensibly copyright-related claims. When recording artists such as Jackson Browne or the members of Heart object to the unauthorized use of their songs in connection with a political campaign, they are most likely not troubled about the loss of revenue resulting from the use; rather, they are likely concerned that the public will wrongly assume that the use of the song indicates that they have endorsed the political candidate. But because it is sometimes easier for them …

The Parental Choice Fallacy In Education Reform Debates, James G. Dwyer

Faculty Publications

Some tout parental school choice as a strategy for promoting, among other school-related goods, educational innovation. This Article offers clarifying and skeptical thoughts about that position. It first explains what “educational innovation” and “parental choice” mean. It then considers what limitations on this strategy might arise from existing legal regulations, from market forces, or from ethical obligations to children. Finally, the Article explains why parental choice is also unlikely to improve education for the children most in need of a better academic environment and suggests an alternative approach to student reassignment that is much more likely to do so.

Regulatory And Judicial Implementations Of Patent Law Flexibilities, Sarah R. Wasserman Rajec

Faculty Publications

No abstract provided.

Interest-Balancing Vs. Fiduciary Duty: Two Models For National Security Law, Evan Fox-Decent, Evan J. Criddle

Faculty Publications

No abstract provided.

Private Policing Of Environmental Performance: Does It Further Public Goals?, Sarah L. Stafford

Faculty Publications

Over the past two decades the role of private parties in the policing of environmental regulation has grown dramatically. In some cases the Environmental Protection Agency (EPA) has led this effort. In other situations, private parties have provided the impetus for new policing activities that are conducted independently from the EPA. Private policing can be beneficial when the increased involvement of the private sector either decreases the costs of achieving a particular level of environmental performance or increases environmental performance in a cost-effective manner. Private parties, however, could also divert regulated entities away from regulatory objectives. This Article explores the …

Panel On Prosecutorial Immunity: Deconstructing Connick V. Thompson, Dane Ciolino, Gary Clements, Bennett L. Gershman, Adam M. Gershowitz, Kathleen Ridolfi, Samuel R. Wiseman, Stephen Singer

Faculty Publications

In November 2011, the Journal hosted a symposium on prosecutorial immunity at Loyola University New Orleans College of Law. The symposium included an in-depth analysis of Connick v. Thompson. As part of the symposium, the Journal organized a Panel, the transcript of which follows. This transcript consists of the speakers' remarks along with audience participation and questions. The Journal has attempted to preserve the character and substance of the discussion. While this is not a traditional article, the Journal felt that it would be fitting to include it in its spring volume.

A (Modest) Separation Of Powers Success Story, Tara Leigh Grove

Faculty Publications

No abstract provided.

The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By …

Mediation And Post-Election Litigation: A Way Forward, Rebecca Green

Faculty Publications

No abstract provided.

Tailoring Remedies To Spur Innovation, Sarah R. Wasserman Rajec

Faculty Publications

An emerging rule in the district courts—thus far endorsed by the United States Court of Appeals for the Federal Circuit—allows a victorious patent holder to receive a permanent injunction against an infringer if she is able to show that she has suffered a loss of market share due to the infringement. The larger the loss of market share the patent holder can prove, the more likely the court will issue an injunction. This “market share rule” is a response to the Supreme Court’s ruling in eBay Inc. v. MercExchange, L.L.C., exhorting lower courts to engage in equitable balancing before awarding …