Law Commons^™

Source & Solidarity, Sari Mazzurco

Faculty Journal Articles and Book Chapters

Trademark law has become the new frontier of unionbusting. Companies like Trader Joe's, Starbucks, and Medieval Times have brought unprecedented suits against their employee unions for trademark infringement in relation to their organizing activities. This sort of litigation puts courts in the difficult position of reconciling trademark protection with unionization rights. Their attempts to apply standard trademark doctrines in this context reveal a deeper problem: Current trademark law is incoherent when applied to labor unions.

This incoherence stems from a disconnect between current trademark law and the original purpose behind its application to labor unions. This Article recovers that basis …

Race, Memory, And Authority In Constitutional Interpretation, Henry L. Chambers Jr.

Law Faculty Publications

This Essay considers how America’s history and memory regarding race complicate constitutional interpretation. If scholars interpreted the Constitution merely to determine what the majority view of the Constitution may have been when it was ratified—its original public meaning (“OPM”)—the loose use of history and memory to interpret the Constitution might be acceptable. What the People—whose membership is contested—thought the Constitution meant when it was framed is interesting, so long as it does not bind us today. However, as Jack Balkin notes in Memory and Authority: The Uses of History in Constitutional Interpretation, lawyers and judges attempt to use history and …

Community Influence In Streamlined Siting Regimes, Danielle Stokes, Uma Outka

Law Faculty Publications

Siting energy infrastructure has long been contentious, but growing local opposition to new energy projects in the U.S. – notably, wind and solar facilities – has drawn nationwide headlines. The legal context for energy siting varies across U.S. states, with local control being a dominant model. Against this backdrop, several states have adopted legislation to facilitate renewable energy siting by adjusting decisional authority between the local and state level.

This article evaluates these reforms at a time marked by change and uncertainty within the energy sector. Bipartisan support for infrastructure permitting reform generally has gained momentum in recent years, often …

Copyright Eligibility For Ai Works Under United States Law, Roger V. Skalbeck

Law Faculty Publications

This article examines copyright eligibility for works that incorporate generative AI elements under United States law, explaining that such works may be protected only to the extent they contain human-authored expression.  This expression can appear as creative selection, arrangement, editing, or other expressive contributions, while unedited or autonomously generated AI output is not copyrightable. The article highlights how the U.S. Copyright Office’s registration and review system, through disclosure requirements, refusals, and public registration records, creates meaningful evidence about boundaries of copyright protection for AI-assisted works. The article contrasts this U.S. registration framework with other legal systems, including European jurisdictions such …

Lethal Injection Then And Now: A Topsy-Turvy Moment For The Abolition Movement, Corinna Barrett Lain

Law Faculty Publications

At first glance, how states execute prisoners is an entirely unattractive question for those who think that states shouldnot be executing prisoners at all. Indeed, one might reasonably take the position that discussions about how states execute presume that executions can be carried out in ways that are acceptable and unacceptable, which is antitheticalto the very core of the abolitionist position. As the renowned Henry Schwarzschild-longtime director of the ACLU's Capital Punishment Project and founder of the National Coalition to Abolish the Death Penalty-wrote in 1980, "Theworst sin of all is to do well that which should not be done …

Two Cheers For Cox V. Sony, James Gibson

Law Faculty Publications

There’s a lot to dislike about the Supreme Court’s opinion in Cox Communications, Inc. v. Sony Music Entertainment. It mischaracterizes, oversimplifies, and ignores precedent. It fails to engage with important arguments. It mangles the meaning of “intent.” And it introduces uncertainty into the workings of secondary liability across other intellectual property regimes.

For these reasons, the decision doesn’t deserve three cheers. But it deserves two. Because in two important ways, the Supreme Court has succeeded. First, the opinion fixes some misguided appellate court holdings by articulating a relatively workable standard for future copyright cases involving secondary liability. Second, despite …

Trial By Character, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

In this Article, I argue that courts regularly deviate from Federal Rule of Evidence 404(b), which prohibits character evidence—evidence of a defendant’s past misdeeds offered to prove that the defendant acted in conformity with a certain character trait on the occasion in question. These deviations undermine the fairness of a trial and the presumption of innocence. The Article addresses this problem in three ways. First, it explains how courts have misinterpreted Rule 404(b)—an error that I call the permitted-purpose fallacy—and how they have fortified this misinterpretation with a body of flawed principles and precedent. Second, it reports the results of …

1981, Carliss N. Chatman

Faculty Journal Articles and Book Chapters

42 U.S.C. § 1981 should have solved a pervasive problem in American capitalism—when white economic interests do not converge with the contract rights of Black people, they are excluded from the market in a way that causes systemic harm. This Article proposes that the failure to enforce 1981 in the past may render it more harmful than beneficial in the present climate of retrenchment. The realities of racism combine with the lack of economic interest convergence to make combatting contract inequality on a contract-by-contract basis legally precarious, nearly impossible to properly evaluate, and difficult to economically incentivize. This is in …

Performing Democracy, Carliss N. Chatman

Faculty Journal Articles and Book Chapters

American universities are frequently portrayed as stewards of democracy—sites where dissent is protected, truth is pursued, and diversity is championed. Yet these institutions often betray these ideals, especially under the pressures of donor influence, reputational risk, and political retrenchment. This Essay interrogates the internal contradictions of the university by centering one of its most guarded rituals: faculty hiring. Building on my 2021 article The Soft Shoe and Shuffle of Law School Hiring Committee Practices, I argue that hiring serves as both a performance of inclusion and a mechanism for preserving institutional whiteness, elite networks, and gatekeeping norms. I extend …

Facilitating Mortgage Modification To Save Homes And Mitigate Lender Losses, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

Homeowners in financial distress or whose homes have been damaged by natural disaster may avoid foreclosure if their lender agrees to modify the loan to reduce payments. Commercial loans may also be modified to avoid foreclosure or in response to changed circumstances or changing market conditions. Although loan modifications are generally beneficial to both borrowers and lenders, barriers to modification exist. The Consumer Financial Protection Bureau (CFPB) has addressed some of the roadblocks to residential loan modifications by regulating the procedures that mortgage servicers must follow in dealing with delinquent borrowers, but the CFPB and its regulations are at risk …

Let’S Modify Safety Valve To Value Family Ties, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

Federal sentencing law has long struggled to balance the breadth of drug conspiracy liability with the prin­ciple of proportional punishment. The statutory “safety valve” provision, codified at 18 U.S.C. § 3553(f) and mirrored in the U.S. Sentencing Guidelines, was designed to provide relief from mandatory minimum sentences for low- level, nonviolent offenders. Yet its requirement that defendants disclose all information concerning the offense sometimes places family-member codefendants in an untenable position: they may avoid harsh penalties only by incriminating loved ones. The requirement also conflicts with other provisions of the Guide­lines that provide guidelines reductions, but not relief from mandatory …

Values Primacy & Total Governance Through Activism, Carliss N. Chatman, Sergio Alberto Gramitto Ricci

Faculty Journal Articles and Book Chapters

In the aftermath of George Floyd’s murder, public companies swift-ly pledged sweeping equity commitments—only to abandon them under political and market pressure. These reversals were not aberrations. They were opportunistic, performative, and reactionary marketing responses. They expose a governance regime in which stakeholder interests are structurally reversible because they remain doctrinally optional, lacking the institutional interlock needed to create binding accountability across stakeholder roles.

This Article explores how stakeholder power is already embedded in corporate governance through interlocking initiatives grounded in shared values. Stakeholder activism—boycotts, proxy votes, viral campaigns—is not merely expressive; it is an overlooked form of governance. Drawing …

Rethinking Courtroom Presence In The Virtual Era, Jenia Iontcheva Turner

Faculty Journal Articles and Book Chapters

Technological innovation has made virtual appearances by criminal defendants increasingly common. These appearances have advanced efficiency but also raised questions about the scope of both the right and the duty of defendants to be physically present in court. Should judges, for example, be allowed to hold virtual arraignments, even if a defendant wishes to appear in person? Can defendants opt for virtual appearances at will? While courts are beginning to address these questions, they have yet to develop a coherent framework to evaluate when virtual appearances are constitutional and appropriate. This Article seeks to contribute to this project by examining …

A New View Of Taxation, Christopher H. Hanna

Faculty Journal Articles and Book Chapters

Tax scholars have made a number of breakthrough discoveries in tax law going back to at least Thomas Hobbes and his observations on a consumption tax almost 400 years ago. In more recent times, in the 1970 and 1980s, a number of tax law scholars made very important contributions in understanding the similarities and differences between an income tax, a consumption tax and a wage tax, as well as developing a greater understanding in a related area—the time value of money. It seems, however, that in the last 30 years or so, the only breakthrough or significant discovery in tax …

Negotiated Outcomes And Abbreviated Trials In Criminal Cases: Balancing Fairness And Efficiency In Three Legal Systems, Michele Caianiello, Jenia I. Turner, Thomas Weigend

Faculty Journal Articles and Book Chapters

Facing expanded criminal dockets, justice systems around the world are looking for ways to expedite proceedings and save resources while still offering credible procedures for adjudicating criminal cases. In the United States, defendants tend to face an all-or-nothing choice between two alternatives: a full trial at which all relevant evidence is presented and examined; or a plea bargain leading to a conviction without any presentation of evidence and the waiver of the defendant’s procedural rights in exchange for a reduced sentence. Even in routine misdemeanor cases, a full trial requires substantial expenditures of resources, and its procedural complexity may be …

Liberty As Entitlement In The Common Law, Joshua C. Tate

Faculty Journal Articles and Book Chapters

In recent decades, some Justices of the U.S. Supreme Court have questioned the broad definition of liberty that is the basis for the doctrine of substantive due process. In his dissenting opinion in Obergefell v. Hodges, for example, Justice Thomas argued that liberty in the common-law tradition “has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.” This Article will argue that such a narrow definition excludes many instances in which the common law used “liberty” as a synonym for “privilege” or “entitlement.” Treatises that were well-known to the Framers …

Digital Assets And The Property Question, Andrea Tosato, Christopher K. Odinet

Faculty Journal Articles and Book Chapters

Is crypto property? The proliferation of digital assets such as cryptocurrencies, stablecoins, meme coins, and non-fungible tokens (NFTs) has confronted legal systems worldwide with three interdependent challenges: determining whether they are property, identifying their appropriate classification within property taxonomies, and establishing rules for their circulation in commerce. Our Article addresses this tripartite question—the “Property Question”—within American law.

The stakes here are significant. Billions of dollars in digital assets are traded daily, used as collateral, and held by custodial platforms. Yet all these transactions rest on an unresolved premise: that digital assets can be owned and are governed by established property …

The Federalism Canons As Ordinary Interpretation, Anthony J. Bellia, Bradford R. Clark

Journal Articles

From the article

Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign …

Rebooting Administrative Enforcement For The Information Economy, Nina-Simone Edwards

Library Scholarship

This concept paper considers how to strengthen the enforcement of public mandates to deter harmful practices and business models. The paper offers principles for reinvigorated enforcement such as enhanced visibility, the increased use of design as a remedial lever, and personal responsibility for responsible individuals, not only the corporations that employ them.

To advance these principles, we call for new or amended laws that require companies to document how policy becomes code, grant agencies authority to order design changes to products and services, create pathways for charging responsible individuals, and cabin some forms of prosecutorial discretion. We would support these …

Legitimacy And Accountability In The Information-Era Administrative State, Nina-Simone Edwards

Library Scholarship

The current assault on administrative institutions and the rapid influx of automated “solutions” have exacerbated the problems of a system that was already buckling under the strains of functional opacity, technical opacity, unequal access and influence, process proliferation and paralysis, and inaction. An overarching reason for the legitimacy and accountability challenges confronting the administrative state is a paradigm for administrative legitimacy and accountability that is court-centered and no longer fit for purpose.

In this concept paper, we describe two core requirements of legitimacy and accountability–which, as we will explain, are interdependent concepts–and then articulate three component requirements–transparency and demystification, care …

Parity In Practice: The Defender's Duty To Ethically Use Ai, Mason R. Clark

Faculty Articles

This white paper provides a framework for ethical and practical AI use across all types of criminal defense practice, grounded in the ABA Model Rules of Professional Conduct and best practices as described by practitioners, academics, and other experts. While AI tools can meaningfully improve efficiency and expand analytical capacity, those benefits are highly contingent on tool selection, implementation, and oversight. The white paper also recognizes that cost, access to training, and institutional resources remain significant barriers — particularly for solo practitioners, small firms, and under-resourced public defense offices — and discusses AI throughout as a set of tools whose …

Environmental Protection In War: Beyond Humans And Nature, Alexandra Huneeus, Pablo Rueda-Saiz

Articles

War is not just a human tragedy-it is an environmental catastrophe. Across the globe, armed conflicts leave behind oil-slickened rivers, poisoned soils, and forests reduced to barren landscapes. These harms last for generations, but they are not borne equally. The peoples who live most intimately with the land-drawing from it food, water, culture, and identity-suffer the most enduring losses. Their very existence as a people may be put at risk.

This Article asks: How have the laws of war addressed environmental destruction, and, more specifically, what protection do they afford to communities whose very existence is bound to the places …

Throwing The Supreme Court/Free Speech A Bone, Leah Litman

Reviews

Too often, our “free speech culture” gloms together private censorship and state-sponsored censorship. These things are not the same. Only one of them is prohibited by the First Amendment, and failing to differentiate between the two runs the risk of collapsing the distinction between censorship, on one hand, and on the other, private citizens exercising their own First Amendment rights (sometimes by choosing who to associate with or who to support).

Home Rule, Dillon’S Rule, And The Legal Shape Of Local Governance, Bradon J. Rothschild

National Policy Consensus Center Publications

Public policy in common law democracies such as the United States is dictated by many factors, which you might call streams or strands. While on the one hand the vox populi may insist on a certain action, governing coalitions of political leaders may deign another direction, or policy researchers may conclude a third option is better yet. All such options, however, are constrained by the legal parameters of governance as defined by constitutional, statutory, and case (jurisprudence, or stare decisis) law. Where these streams meet, public policy actions which are popularly supported, politically advantageous, technically effective, and (importantly) legal may …

Procedural Apartheid? How Racial Harassment Cases And Their Proponents Are Subject To Separate And Unequal Due Process, Suzette M. Malveaux

Scholarly Articles

This article makes three unique contributions. First, it introduces the theoretical framework and coins the term “procedural apartheid.” Simply put, when race is invoked as the basis for misconduct, procedural protection is meted out inequitably, often to the detriment of people of color. This phenomenon is situated in the law’s larger project to preference colorblindness over race-conscious ameliorative efforts. The article invites the reader to broadly consider where separate and unequal proceduralism exists because of the centrality of race. This article deploys the term “apartheid”—not literally, but strategically—to highlight the systemic legal and racial nature of this hierarchical divide.

Second, …

Against Audiepistemic Injustice: Claiming Deaf Futurity, Pamela R. Conley

Antioch University Dissertations & Theses

This dissertation proposes a new theoretical framework: Audiepistemic Injustice (AEI). Expanding upon existing theories of epistemic injustice (EI), I identify AEI as the systemic marginalization and dismissal of deaf ways of knowing. AEI is a multidimensional phenomenon rooted in the nineteenth century, when auditory and linguistic biases became codified across education, law, and literature. This interdisciplinary study interrogates three nineteenth-century literary narratives as primary case studies to examine AEI: (1) Ivan Turgenev’s “Mumu,” (2) Guy de Maupassant’s “The Deaf Mute,” and (3) Abigail Bradley Hyde’s “The Deaf and Dumb Child: A True Narrative.” I synthesize these literary works with legal …

Adequate Representation In Group Litigation, Elizabeth Chamblee Burch

Scholarly Works

This article examines the inherent tension between the legal system's desire for "global peace" (finality) and the constitutional requirement for adequate representation in collective lawsuits. While Rule 23 class actions provide structural safeguards—such as judicial oversight of counsel and settlement, and opt-out rights—alternative mechanisms like multidistrict litigation (MDL) and parens patriae suits often lack these protections . Using the In re National Prescription Opiate Litigation as a primary case study, the article illustrates how informal, "backroom" leadership selection in MDLs empowers a small circle of elite "repeat players" at the expense of marginalized groups, such as Native American tribes and …

Taxing Ai, Assaf Harpaz

Scholarly Works

Artificial intelligence (AI) is poised to transform the distribution and sources of income, with some experts predicting widespread job displacement. Even under optimistic projections, AI is expected to exacerbate wealth inequality, given that the technology’s ownership and immense value are concentrated within a subset of Big Tech companies and AI startups. These outcomes will have far-reaching impacts on the federal tax system, which heavily relies on taxing individual labor income and payroll, rather than capital or consumption.

This Article argues that AI threatens to disrupt the tax system’s ability to fulfill its fundamental goals of raising revenue, redistributing income, and …

From Privacy To The Data Economy: The Ftc’S Reframing Of Its Regulatory Priorities, Maria P. Angel

Scholarly Works

This Article argues that the Federal Trade Commission’s turn to “commercial surveillance” reflects a strategic shift away from traditional privacy frameworks toward addressing structural power dynamics in the data economy. Drawing on an analysis of 112 FTC documents, it identifies three core commitments: tackling systemic harms, adopting a political economy lens, and constraining corporate power. The Article contends that this reframing is both necessary in the AI age and should influence the future of privacy regulation in the United States, even amid efforts to limit the FTC’s authority.

Qui Tam Legislation And Article Ii: State Constitutional Precursors To The “Take Care” Clause, Randy Beck

Scholarly Works

Anglo-American legislation since the fourteenth century has often authorized “popular” or “qui tam” enforcement, in which an uninjured “common informer” litigates to collect a forfeiture for violation of a statute. Popular enforcement has become considerably less common than in earlier centuries, but remains important because of the qui tam provisions of the federal False Claims Act (FCA). In Vermont Agency of Natural Resources v. United States ex rel. Stevens, the Supreme Court rejected an Article III standing challenge to qui tam litigation, concluding that the long history of popular enforcement means qui tam suits present cognizable “cases and controversies of …