Law Commons^™

Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

Why The Legal Strategy Of Exploiting Immigrant Families Should Worry Us All, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

This article applies a family law lens to explore the systemic and traumatic effects of modern laws and policies on immigrant families. A family law lens widens the scope of individuals harmed by recent immigration laws and policies to show why all families are affected and harmed by shifts in state power, state action, and state rhetoric. The family law lens reveals a worrisome shift in intentionality that has moved the state from a bystander to family-based immigration trauma to an incendiary agent perpetrating family trauma.

Modern immigration laws and policies are deploying legal and political strategies that intentionally sever …

Academy On Human Rights And Humanitarian Law Articles And Essays On Gender Violence And International Human Rights: Introduction, Claudia Martin, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

We are delighted to present this year's publication of the Academy on Human Rights and Humanitarian Law, which includes the three best essays in English and in Spanish recognized in the 2018 Human Rights Essay Award competition. It is satisfying to think that this competition allowed a number of participants an opportunity to expound their thoughts on so many important topics and areas of the world. We hope these participants are able to use their articles as mechanisms for change.

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Faculty Scholarship

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

Tinder Lies, Irina D. Manta

Hofstra Law Faculty Scholarship

The rise of Internet dating—in recent years especially through the use of mobile-based apps such as Tinder or Bumble—forces us to reexamine an old problem in the law: how to handle sexual fraud. Many people with romantic aspirations today meet individuals with whom they do not share friends or acquaintances, which allows predators to spin tales as to their true identities and engage in sexual relations through the use of deceit on a greater scale than was previously practicable. Indeed, according to some studies, about eighty percent of individuals lie on at least some part of their online dating profiles, …

A Pluralistic Approach To Mediation Ethics: Delivering On Mediation's Different Promises, Robert A. Baruch Bush

Hofstra Law Faculty Scholarship

The article explores a pluralistic approach to mediator ethics by examining a hypothetical case involving a classic dilemma confronted by practicing facilitative and transformative mediators. In the case, a divorced couple fight over full custody of their 11-year-old daughter. Also cited are the dilemma confronting the mediator as s/he is against the agreement reached by the couple, the nature of ethical dilemma, as well as the mediation codes and models.

The Need For Peer Mentoring Programs Linked To The Legal Writing Class: An Analysis And Proposed Model, Amy R. Stein

Hofstra Law Faculty Scholarship

No abstract provided.

Knitting 101: Why Law Professors Should Share Their Hobbies With Their Students, Susan Greene

Hofstra Law Faculty Scholarship

For many students, adrift in a sea of outlines and anxiety over the pressures of being a law student, cultivating a hobby or even developing a new one seems a luxury in time and energy that they cannot afford. Therefore, it is incumbent upon law professors to lead by example.

Why Congress Drafts Gibberish, Richard K. Neumann Jr.

Hofstra Law Faculty Scholarship

We are so used to Congressional gibberish that we take it for granted as though it were caused by nature. Congress doesn’t know how to create logically coherent statutes.

An example is the Vacancies Reform Act of 1998. If, while violating the Act, a President purportedly appoints a person — perhaps to be an Acting Attorney General or Acting Deputy Attorney General — every decision and action of that person is void because the person does not actually hold the office. The Act is crystal-clear that such a person would have no power, for example, to fire a Special Counsel. …

A Real-Property Model Of Privacy, G. Alex Sinha

Hofstra Law Faculty Scholarship

Privacy has been a significant subject of scholarly attention for decades, but it has never been more confusing than it is today. As myriad social pressures inexorably corral an ever-growing share of the world’s population down the digital rabbit hole, more and more people become both users and targets of new technologies. The complexity of these technologies and their unprecedented interactions with one another have completely outstripped the ability of the populace as a whole to understand the privacy implications of our new and shifting reality. Confronting privacy questions in this context is all but paralyzing.

This Article offers a …

Judge Damon Keith: The Judicial Antidote To Judge Julius Hoffman - Challenging Claims Of Unilateral Executive Authority, Ellen Yaroshefsky

Hofstra Law Faculty Scholarship

From some of the highly-publicized trials of the 1960's - namely the trials of the Chicago Eight, Panther Twenty-One, Weathermen - we can draw indispensable lessons about the role of the judges in upholding and promoting a fair justice system. The contract to Judge Julius Hoffman's notorious injudicious conduct in the Chicago 8 case is the courageous, thoughtful Judge Damon Keith, in the less publicized White Panther case in Detroit in the early 1970's. Judge Keith's overriding sense of fairness, exemplified the best of judicial independence in considering President Nixon's claims of unilateral executive authority in US v. Ayers and …

Explaining Criminal Sanctions In Intellectual Property Law, Irina D. Manta

Hofstra Law Faculty Scholarship

This symposium piece first seeks to unpack the relationship between intellectual property infringement and property offenses, and then to understand how the connection between the two has informed when the former is criminalized. The piece examines the porous nature of the boundary line between intangible and tangible resources, showing the at-times uncomfortable fit of the non-rivalrous label to intellectual property. An analysis of the respective harms of the two types of violations follows. This symposium contribution shows how lawmakers have treated patents differently from other forms of intellectual property by choosing not to criminalize their infringement, due both to utilitarian …

Nobody Knew How Complicated: Constraining The President's Power To Re(Shape) Health Reform, Sallie Thieme Sanford

Articles

Beginning on inauguration day, President Trump has attempted an executive repeal of the Affordable Care Act. In doing so, he has tested the limits of presidential power. He has challenged the force of institutional and non-institutional constraints. And, ironically, he has helped boost public support for the ACA’s central features. The first two sections of this article respectively consider the use of the President’s tools to advance and to subvert health reform.

The final two sections consider the forces constraining the administration’s attempted executive repeal. I argue that the most important institutional constraint, thus far, is found in multifaceted actions …

Health Reform And Higher Ed: Campuses As Harbingers Of Medicaid Universality And Medicare Commonality, Sallie Thieme Sanford

Articles

Between 2010 and 2016, the percentage of uninsured higher education students dropped by more than half. All the Affordable Care Act’s key access provisions contributed, but the most important factor appears to be the Medicaid expansion. This article is the first to highlight this phenomenon and ground it in data. It explores the reasons for this dramatic expansion of coverage, links it to theoretical frameworks, and considers its implications for the future of health reform.

Drawing on Medicaid universality scholarship, I discuss potential consequences of including the educationally privileged in this historically stigmatized program. Extending this scholarship, I argue that …

Informed Trading And Cybersecurity Breaches, Joshua Mitts, Eric L. Talley

Faculty Scholarship

Cybersecurity has become a significant concern in corporate and commercial settings, and for good reason: a threatened or realized cybersecurity breach can materially affect firm value for capital investors. This paper explores whether market arbitrageurs appear systematically to exploit advance knowledge of such vulnerabilities. We make use of a novel data set tracking cybersecurity breach announcements among public companies to study trading patterns in the derivatives market preceding the announcement of a breach. Using a matched sample of unaffected control firms, we find significant trading abnormalities for hacked targets, measured in terms of both open interest and volume. Our results …

Big Data And Discrimination, Talia B. Gillis, Jan L. Speiss

Faculty Scholarship

The ability to distinguish between people in setting the price of credit is often constrained by legal rules that aim to prevent discrimination. These legal requirements have developed focusing on human decision-making contexts, and so their effectiveness is challenged as pricing increasingly relies on intelligent algorithms that extract information from big data. In this Essay, we bring together existing legal requirements with the structure of machine-learning decision-making in order to identify tensions between old law and new methods and lay the ground for legal solutions. We argue that, while automated pricing rules provide increased transparency, their complexity also limits the …

Exemplary Legal Writing 2018: Four Recommendations, Jed S. Rakoff, Lev Menand

Faculty Scholarship

In an age of mass incarceration, it is not so easy to find good in the U.S. criminal justice system. But The Secret Barrister makes you appreciate the better aspects of our system by showing just how dysfunctional the corresponding English system has become. The book — written by an anonymous junior barrister — is a devastating, sometimes hilarious, and frequently heart-breaking account of how the criminal justice system in England and Wales is not only broke financially but broken in its ability to deliver justice, whether to prosecutors, defendants, victims, or the public.

Price And Prejudice: An Empirical Test Of Financial Incentives, Altruism, And Racial Bias, Kristen Underhill

Faculty Scholarship

Many argue that paying people for good behavior can crowd out beneficial motivations like altruism. But little is known about how financial incentives interact with harmful motivations like racial bias. Two randomized vignette studies test how financial incentives affect bias. The first experiment varies the race of a hypothetical patient in need of a kidney transplant (black or white), an incentive ($18,500 or none), and addition of a message appealing to altruism. Incentives encouraged donation but introduced a significant bias favoring white patients. The second experiment assesses willingness to donate to a patient (black or white) without an incentive and …

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

Adding Risk Assessment And Negotiation To A Drafting Course, Richard K. Neumann Jr.

Hofstra Law Faculty Scholarship

No abstract provided.

Citizens United As Bad Corporate Law, Leo E. Strine Jr., Jonathan Macey

All Faculty Scholarship

In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is predicated on a fundamental misconception about the nature of the corporation. Specifically, Citizens United v. FEC, which prohibited the government from restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory that corporations are “associations of citizens” rather than what they actually are: independent legal entities distinct from those who own their stock. Our contribution to the literature …

(Un)Civil Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.

Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends …

Effect Of Religious Legislation On Religious Behavior: The Ramadan Fast, Hannah M. Ridge

Political Science Faculty Articles and Research

State laws compelling citizens to comply with elements of religious law – also known as religious legislation – are globally pervasive. Previous research has well documented the incidence of myriad examples of religious legislation. These laws’ practical effect on citizens’ behavior, however, has been less examined. This article looks at the effect of one piece of religious legislation: state laws enforcing the Ramadan fast. It demonstrates that the use of state power to sanction violations of religious law significantly increases citizens’ compliance with this religious law.

Understanding The Interaction In Mediation Caucuses: Negotiation Positions, Disputant Assessments, Bias And Neutrality, Angela Cora Garcia

Natural & Applied Sciences Faculty Publications

Previous research on how mediation helps disputing parties to reach resolution has not addressed the interaction in caucuses (i.e. separate meetings) between mediators and individual disputants which may be held in addition to the joint mediation sessions. This discourse-analytic study of videotaped mediation caucuses reveals both constructive and potentially problematic aspects of participants’ interaction during the caucuses. While some disputants engaged in constructive actions, such as articulating their bottom line negotiating position or sharing information with the mediator which had not been revealed in the joint session, others produced negative assessments of the opposing disputants. Also, mediators’ openness in expressing …

The Hague Rules On Business And Human Rights Arbitration, Bruno Simma, Diane Desierto, Martin Doe Rodriguez, Jan Eijsbouts, Ursula Kriebaum, Pablo Lumerman, Abiola Makinwa, Richard Meeran, Sergio Puig, Steven Ratner, Giorgia Sangiuolo, Martijn Scheltema, Anne Van Aaken, Katerina Yiannibas

Other Publications

The Hague Rules on Business and Human Rights Arbitration provide a set of procedures for the arbitration of disputes related to the impact of business activities on human rights. The Hague Rules are based on the Arbitration Rules of the United Nations Commission on International Trade Law (with new article 1, paragraph 4, as adopted in 2013) (the “UNCITRAL Rules”), with modifications needed to address certain issues likely to arise in the context of business and human rights disputes. Each article is accompanied by a commentary, which includes background on the drafting of various provisions in the Rules, explaining in …

St. Louis Vacancy Collaborative: 2019-2021 Work Plan, Dana M. Malkus

All Faculty Scholarship

Our City has a serious vacant property challenge. To effectively address vacancy, we must understand and respond to the factors that cause and perpetuate it. Much of the story of vacancy in our city, like other cities, includes a legacy of racism, disinvestment, and disengagement that has led to a breakdown in trust. We know that vacancy can result from incomplete foreclosure, bankruptcy, prolonged probate or lack of proper probate, investors with little incentive to care, judgment proof owners, bank ownership, lack of resources to repair or redevelop, lack of value, the foreclosure crisis, sprawl and weak markets.¹ In …

Statutory Interpretation As “Interbranch Dialogue”?, James J. Brudney, Ethan J. Leib

Faculty Scholarship

Much in the field of statutory interpretation is predicated on “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This Article attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.

The Article itself proceeds by using a dialogic and dialectical method. It first develops various positions against “interbranch dialogue.” By invoking arguments from textualism, public choice, and positive political theory, it advances …

Assessing The Potential Impacts Of The Tax Reform For Acceleration And Inclusion And The Build Build Build Program, Caesar Cororaton, Marites Tiongco, Justin S. Eloriaga

Angelo King Institute for Economic and Business Studies (AKI)

The Tax Reform for Acceleration and Inclusion (TRAIN) Act has prompted key changes in the personal income tax regime through excise taxes on most goods such as petroleum, sugar-sweetened beverages, and automobiles. The TRAIN was implemented to generate funds for the Build Build Build (BBB) program and at the same time to address income inequality and poverty. This paper aims to assess the potential growth, poverty, and distributional effects of the TRAIN Package 1 and the BBB Program using a computable general equilibrium model with poverty simulation. Results suggest that TRAIN I has prompted additional revenue in social programs and …

The Rules Of #Metoo, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do—such as purchasing a car seat, finding a pediatrician, or choosing a daycare—as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have …

The Poverty Of Clinical Canonic Texts, Anthony V. Alfieri

Articles

No abstract provided.