Law Commons^™

Daca's Tax Benefits Highlight The Need For Broader Immigration Reform, Jacqueline Lainez Flanagan

Journal Articles

America’s aging population and declining birth rates are negatively affecting the nation’s Social Security and Medicare safety nets, reducing tax revenue, and weakening the broader economy.1 Meanwhile, immigration is increasing workforce participation by expanding the number of young adults in the United States.2 Despite political setbacks, the Deferred Action for Childhood Arrivals (DACA) program exemplifies the economic and tax benefits of immigration, providing data and the impetus for a better way forward. Although not all DACA-eligible youth have registered for it, it is estimated that in 2017 alone, more than $2.2 billion in federal taxes were paid by DACA-eligible youth …

The Under-Enforcement Of Crimes Against Black Women, Lisa Avalos

Journal Articles

It is well known that over-policing has a severe adverse impact on communities of color. What is less well known is that over-policing is accompanied by a corollary—a pervasive and systemic under-policing of violence against women of color. The refusal to see women of color as victims of crime who are worthy recipients of justice, and to minimize the severity of violence committed against them, are habits that are deeply embedded in the American system of [in]justice. From an 1855 Supreme Court decision refusing to recognize a female slave’s right to sexual autonomy to a prosecutor’s 2021 decision to prosecute …

Seeking Consent And The Law Of Sexual Assault, Lisa Avalos

Journal Articles

This article focuses on two neglected aspects of rape law. First, its tendency to presume sexual consent across a range of social contexts, overlooking the fact that much social life is predicated on a presumption against sexual contact. Second, its tendency to ignore a critical empirical fact: that an overwhelmingly large number of sexual assaults occur during the first-ever sexual contact between the specific parties involved—what I term “First Encounters.” The relationship between these two facets of rape law is crucial. Whereas much of social life operates with an underlying presumption that people have not consented to sex with others …

The Educated Retail Investor: A Response To "Regulating Democratized Investing", Christina M. Sautter, Sergio Alberto Gramitto Ricci

Journal Articles

The diffusion of mobile-first investing apps, like Robinhood, has increased retail investor participation in financial markets, particularly from the Millennial and GenZ generations, and has increased the diversity of retail investors. However, mobile-first investing apps are not free from controversy. In Regulating Democratized Investing, Abraham Cable tackles the debate on regulating mobile-first investing apps and largely opposes paternalistic regulation, which would raise unsurmountable barriers at the entrance of the stock market for retail investors. But it concedes to a form of regulation that in Cable’s own words “serves ultra-retail investors a modest portion of what they really want.” We strongly …

Sieracki Lives: A Portrait Of The Interplay Between Legislation And The Judicially Created General Maritime Law, Thomas C. Galligan Jr.

Journal Articles

In American maritime law, the interplay between the courts and Congress is complex and iterative. A significant body of American admiralty law, the general maritime law, has been judicially created and developed. But Congress has also enacted a number of important statutes governing maritime commerce and the rights of maritime workers, such as the Longshore and Harbor Worker’s Compensation Act (“LHWCA”). The back and forth between the courts and Congress in interpreting those statutes and gauging their impact on and consistency with the general maritime law is ongoing. One important area where the courts development of the general maritime law …

Stalling A Norm's Trajectory?: Revisiting U.N. Security Council Resolution 1973 On Libya And Its Ramifications For The Principle Of The Responsibility To Protect, Tiyanjana Maluwa

Journal Articles

No abstract provided.

Asian American Allyship, Victor C. Romero

Journal Articles

George Floyd's tragic death not only sparked numerous nationwide protests decrying the continued violence against Black people, but also resurrected conversations around the complicity of Asian Americans in Black oppression. Just as officer Tou Thao, a Hmong American, stood idly by while a white officer stepped on Floyd's neck, many Asian Americans have taken positions that run contrary to policies that foster inclusion, or what may be termed "integrative egalitarianism" -- the idea that "governmental programs . . . designed to overcome arbitrary inequalities stemming from accidents of birth are a worthwhile investment in society's future."

Using the Floyd-Thao narrative …

The Microsoft Litigation’S Lessons For United States V. Google, John E. Lopatka, William H. Page

Journal Articles

The United States Department of Justice (“DOJ”) and three overlapping groups of states have filed federal antitrust cases alleging Google has monopolized internet search, search advertising, internet advertising technologies, and app distribution on Android phones. In this Article, we focus on the DOJ’s claims that Google has used contracts with tech firms that distribute Google’s search services in order to exclude rival search providers and thus to monopolize the markets for search and search advertising—the two sides of Google’s search platform. The primary mechanisms of exclusion, according to the DOJ, are the many contracts Google has used to secure its …

By The Inch, It’S A Cinch: The Case For Go-Ing Slow In First-Year Legal Writing Courses, Patrick J. Long

Journal Articles

No abstract provided.

Let's Not Do Responsibility Skepticism, Ken M. Levy

Journal Articles

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminal, exacerbate mass incarcerations, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's 'illusionist' response to responsibility skeptics - that even if responsibility skepticism is correct, society should maintain a responsibility-realist/retributivist criminal justice system - is generally compelling, it would not work if a majority of society were to convert, theoretically and …

Statutory Interpretation And Agency Disgorgement Power, Caprice L. Roberts

Journal Articles

What happens when obstacles foreclose claims and threaten to leave parties without adequate relief? Or, when the cause of action escapes conventional classification? Or, when Supreme Court decisions frustrate private litigation causing pressure for public enforcement by agencies? Or, when individuals engage in novel forms of wrongdoing that the law may fail to reach? It becomes hard to resist the siren call of equity and its powerful remedies. This trend includes sweeping national injunctions, constructive trusts, and more. Disgorgement is also one such remedy, and its popularity is rising in terms of private and public applications and challenges. It is …

Does An Initial Public Offering (Ipo) Issuer's Securities And Exchange Commission Registration Fee Calculation Method Predict Pricing Revisions And Ipo Underpricing?, Patrick Corrigan

Journal Articles

This paper proposes a new proxy for the ex ante expectations of issuers and their underwriters about the direction of pricing revisions during the roadshows of an initial public offering (IPO): the way issuers elect to calculate the registration fees owed to the Securities and Exchange Commission. Consistent with fee-minimizing decision-making, I find that the choice of fee calculation method is associated with pricing revisions and IPO underpricing. This relationship suggests that issuers or their advisors may not incorporate economically significant private valuation information into the initial pricing range estimate and initial public offering price. The results provide empirical support …

Multicultural Populations And Mixed Legal Systems In The United States: Louisiana And Puerto Rico, Olivier Moréteau, Luis Muniz Arguelles

Journal Articles

No abstract provided.

Swimming With Broad Strokes: Publishing And Presenting Beyond The Lw Discipline, Robin Boyle-Laisure, Stephen Paskey

Journal Articles

No abstract provided.

Police Killings As Felony Murder, Guyora Binder, Ekow Yankah

Journal Articles

The widely applauded conviction of officer Derek Chauvin for the murder of George Floyd employedthe widely criticized felony murder rule. Should we use felony murder as a tool to check discriminatory and violent policing? The authors object that felony murder—although perhaps the only murder charge available for this killing under Minnesota law—understated Chauvin’s culpability and thereby inadequately denounced his crime. They show that further opportunities to prosecute police for felony murder are quite limited. Further, a substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police …

The Importance Of Looking Under The 'Administrative Hood': A Case Study Of The National Waters Protection Rule, Nicholas S. Bryner, Victor Byers Flatt

Journal Articles

In an era of legislative gridlock, policy by administrative action has expanded, with major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, both Republican and Democratic Administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.

The combination of the expansion of cost-benefit analysis and the increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the promulgation and revision of administrative actions. …

Antitrust Class Actions In The Wake Of Procedural Reform, Christine P. Bartholomew

Journal Articles

What is the current vitality of antitrust enforcement? Antitrust class actions—the primary mode of competition oversight—has weathered two decades of procedural reform. This Article documents the effects of those reforms. Relying on an original dataset of over 1300 antitrust class action settlements, this Article finds such cases alive but far from well. Certain suits do succeed on an impressive scale, returning billions of dollars to victims. But class action reform has made antitrust enforcement narrower, more time-consuming, and costlier than only a decade ago. And, as this Article’s sources reveal, new battle lines are forming. Across the political spectrum, people …

Segregation Autopilot: How The Government Perpetuates Segregation And How To Stop It, Heather R. Abraham

Journal Articles

Housing segregation is a defining feature of the American landscape. Scholars have thoroughly documented the government’s historic collusion in segregating people by race. But far from correcting its reprehensible past, the government continues to perpetuate housing segregation today. As if on autopilot, its spending and regulatory activities routinely reinforce housing segregation. Not only is this immoral and bad policy, it is against the law. The government has a statutory duty to conduct its business in a manner that reduces housing segregation. This duty arises from a unique civil rights directive passed by Congress over fifty years ago in the Fair …

Defunding Police Agencies, Rick Su, Anthony O'Rourke, Guyora Binder

Journal Articles

This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, …

Amazon As A Seller Of Marketplace Goods Under Article 2, Tanya J. Monestier

Journal Articles

You have probably purchased goods on Amazon. Did you know that if the goods you purchased on Amazon turn out to be defective and cause serious personal injury, Amazon is probably not liable for them? Did you know that even though you placed an order on Amazon, gave payment to Amazon, and received the goods in an Amazon box, there is a good chance that the goods are not “sold by” Amazon—but are instead sold by a third-party seller? Did you know that Amazon tries to avoid liability for goods sold on its platform on the technicality that it does …

Helpless By Law: Enduring Lessons From A Century-Old Tragedy, Raymond T. Diamond, Robert J. Cottrol

Journal Articles

This essay examines questions of violence and self-defense in African American history. It does so by contrasting historical patterns of racist anti-Black violence prevalent in the nineteenth and early twentieth century, as exemplified by the destruction of the Greenwood community in Tulsa Oklahoma in 1921, with the current phenomenon of Black-on-Black violence in modern inner-city communities. Although circumstances have changed greatly in the century since the destruction of Greenwood, two phenomena persist: 1. the failure of authorities to protect Black communities and their residents, and 2. efforts by authorities to use the law or law enforcement to disarm members of …

Classification Of Indigenous Data Sovereignty And Data Privacy: Indigenous And Common Law Patterns, Cindy Tian

Journal Articles

On February 23, 2022, Jolande Goldberg, Senior Law Classification Specialist at the Library of Congress, gave a presentation for the Legal Cataloging Forum on the classification aspect of indigenous data sovereignty entitled Information & Data: Information Society and Personal Rights & Interests. A Review of Indigenous, Common & Civil Law Classification Patterns. In this presentation, Jolande discussed the changes and updates proposed to Library of Congress Classification K schedules for works on data sovereignty and information privacy. The presentation covered an extensive discussion on the subject matter including terminology, relationships, and hierarchies in the classification schedules (both global and regional …

Regional Cooperative Federalism And The Us Electric Grid, Hannah Jacobs Wiseman

Journal Articles

The U.S. Constitution makes no direct mention of regional governing entities, yet they are an entrenched part of our federalist system. In the area of electric grid governance, the federal government enlists independent, private entities called regional transmission organizations (RTOs) to implement federal policy and achieve state energy goals. RTOs are the most prominent form of regional cooperative federalism, yet other policy spheres, such as opioid control, encompass a similar approach. This is a twist on the classic form of cooperative federalism, in which the federal government relies upon individual states to achieve federal mandates.

The regionally governed electric grid …

Statutory Interpretation And Chevron Deference In The Appellate Courts: An Empirical Analysis, Amy Semet

Journal Articles

What statutory methods does an appellate court use in reviewing decisions of an administrative agency? Further, in doing this review, are appellate judges more likely to use certain statutory methods when they expressly cite the Chevron two-step framework than if they do not? This Article explores the answers to these questions using an original database of over 200 statutory interpretation cases culled from more than 2,500 cases decided in appellate courts reviewing National Labor Relations Board (NLRB or the Board) adjudications from 1994 through 2020. In particular, the study examined the use of text, language canons, substantive canons, legislative history, …

Ethical, Legal, And Social Issues In The Earth Biogenome Project, Jacob S. Sherkow, Katharine B. Barker, Irus Braverman, Robert Cook-Deegan, Richard Durbin, Carla L. Easter, Melissa M. Goldstein, Maui Hudson, W. John Kress, Harris A. Lewin, Debra J. H. Mathews, Catherine Mccarthy, Ann M. Mccartney, Manuela Da Silva, Andrew W. Torrance, Henry T. Greely

Journal Articles

The Earth BioGenome Project (EBP) is an audacious endeavor to obtain whole-genome sequences of representatives from all eukaryotic species on Earth. In addition to the project’s technical and organizational challenges, it also faces complicated ethical, legal, and social issues. This paper, from members of the EBP’s Ethical, Legal, and Social Issues (ELSI) Committee, catalogs these ELSI concerns arising from EBP. These include legal issues, such as sample collection and permitting; the applicability of international treaties, such as the Convention on Biological Diversity and the Nagoya Protocol; intellectual property; sample accessioning; and biosecurity and ethical issues, such as sampling from the …

The Conceptual Problems Arising From Legal Pluralism, Jorge Luis Fabra-Zamora

Journal Articles

This paper argues that analytical jurisprudence has been insufficiently attentive to three significant puzzles highlighted by the legal pluralist tradition: the existence of commonalities between different types of law, the possibility of a distinction between law and non-law, and the explanatory centrality of the state. I further argue that the resolution of these questions sets the stage for a renewed agenda of analytical jurisprudence and has to be considered in attempts for reconciliation between the academic traditions of analytical jurisprudence and legal pluralism, often called “pluralist jurisprudence.” I also argue that the resolution of these problems affects the empirical, doctrinal, …

Cross-Statute Employment Discrimination Claims And The Need For A "Super Statute", William R. Corbett

Journal Articles

Employment discrimination law is almost sixty years old in the United States. The law has developed under several different statutes enacted by Congress at different times. Congress has amended the statutes over the years, almost always in reaction to Supreme Court decisions with which it disagrees. The Supreme Court and the lower courts then interpret these piecemeal repairs of the law. This approach has produced a body of employment discrimination law in which there are significant asymmetries among the protected characteristics and the several statutes. These asymmetries produce both practical and theoretical problems, creating employment discrimination law that is cumbersome …

Never Look Back: Non-Regression In Environmental Law, Nicholas S. Bryner

Journal Articles

Deregulatory advocates often frame environmental protection and economic well-being as a zero-sum tradeoff. During times of economic crisis, including the long-term fallout from the global covid-19 pandemic, policymakers may seek to withdraw or roll back environmental laws and regulations in an attempt to accelerate economic recovery. In order to safeguard the interests of vulnerable populations that suffer from pollution and other environmental harms, it is imperative to retain environmental regulations, removing or relaxing them only when there is a clear justification for doing so.

Built in environmental legal frameworks in both international and domestic law is a principle of non-regression—no …

Legal Uncertainties: Covid-19, Distance Learning, Bar Exams, And The Future Of U.S. Legal Education, Christine Corcos

Journal Articles

The COVID-19 pandemic forced the U.S. legal academy and legal profession to make changes to legal education and training very rapidly in order to accommodate the needs of students, graduates, practitioners, clients, and the public. Like most of the public, members of the profession assumed that most, if not all, of the changes would be temporary, and life would return to a pre-pandemic normal.

These assumed temporary changes included a rapid and massive shift to online teaching for legal education, to online administration of the bar exam in some jurisdictions, or the option to offer the diploma privilege in others. …

Discretion And Disobedience In The Chinese Exclusion Era, Shoba Sivaprasad Wadhia

Journal Articles

This Article examines the use of prosecutorial discretion from its first recorded use in the nineteenth century to protect Chinese subject to deportation, following to its implication in modern day immigration policy. A foundational Supreme Court case, known as Fong Yue Ting, provides a historical precedent for the protection of a category of people as well as a deeper history of prosecutorial discretion in immigration law. This Article also sharpens the policy argument to protect political activists through prosecutorial discretion and forces consideration for how modern immigration policy should respond to historical exclusions and racialized laws. This Article centers its …