Law Commons^™

Religious Freedom And (Other) Civil Liberties: Is There A Middle Ground?, Abner S. Greene

Faculty Scholarship

There appears to be an intractable debate between those who favor religious accommodations and those who favor civil liberties such as abortion rights and equality rights for same-sex couples. Many take firm positions of truth about one matter or the other. Here, I sketch a middle ground, continuing my endorsement of a robust normative or value pluralism. I canvass some arguments for this position, while also describing and critiquing some works of intellectual history that seem too wedded to one teleological posture or another. Despite my support for the Religious Freedom Restoration Act, I critique the Court’s Hobby Lobby ruling, …

Family Law And Nonmarital Families, Clare Huntington

Faculty Scholarship

No abstract provided.

Postmarital Family Law: A Legal Structure For Nonmarital Families, Clare Huntington

Faculty Scholarship

Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital …

Children’S Health In A Legal Framework, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have …

Federal Sentencing In The States: Some Thoughts On Federal Grants And State Imprisonment, John F. Pfaff

Faculty Scholarship

As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control. In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try …

Due Process And The Non-Citizen: A Revolution Reconsidered, Joseph Landau

Faculty Scholarship

Mathews v. Eldridge is typically understood to be a ruling limiting due process protections in benefits determinations, but this case of judicial restraint in ordinary domestic law has activist features where non-citizens are concerned. The transplantation of Mathews into the critical areas of immigration and national security has produced a body of law that is slowly ushering in rights-affirming outcomes and weakening conventional doctrines of exceptionalism in immigration and national security. There are two chief reasons for this. First, ever since Mathews required an explicit judicial determination of private interests, courts have used an increasingly particularistic, case-by-case analysis in immigration …

Disappearing Legal Black Holes And Converging Domains: Changing Individual Rights Protection In National Security And Foreign Affairs, Andrew Kent

Faculty Scholarship

This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution provided protections and those where they did not. The institutional design and operating rules of the national security state tracked these formal, categorical rules about the boundaries of protection. There have …

Legitimacy And Expertise In Global Internet Governance, Olivier Sylvain

Faculty Scholarship

Over the course of the past decade or so, attention among Internet policymakers and scholars has shifted gradually from substantive design principles to the structure of Internet governance. The Internet Corporation for Assigning Names and Numbers in particular now faces a new skepticism about its legitimacy to administer the essential Internet Assigned Numbers Authority function. ICANN has responded to these doubts by proposing a series of major governance reforms that would bring nation-states more into the organization's decisionmaking. After all, transnational governance institutions in other substantive areas privilege nation-states as a matter of course. This Symposium Essay shows that these …

Disagreeable Privacy Policies: Mismatches Between Meaning And Users’ Understanding, Joel R. Reidenberg, Travis Breaux, Lorrie F. Cranor, Brian M. French, Amanda Grannis, James T. Graves, Fei Liu, Aleecia Mcdonald, Thomas B. Norton, Rohan Ramanath, N. Cameron Russell, Norman Sadeh, Florian Schaub

Faculty Scholarship

Privacy policies are verbose, difficult to understand, take too long to read, and may be the least-read items on most websites even as users express growing concerns about information collection practices. For all their faults, though, privacy policies remain the single most important source of information for users to attempt to learn how companies collect, use, and share data. Likewise, these policies form the basis for the self-regulatory notice and choice framework that is designed and promoted as a replacement for regulation. The underlying value and legitimacy of notice and choice depends, however, on the ability of users to understand …

Learning And Lawyering Across Personality Types, Ian Weinstein

Faculty Scholarship

Personality theory illuminates recurring problems in law school teaching. While the roots of modern personality theory extend back to Hippocrates and the theory of the four humors, contemporary ideas owe much to Carl Jung's magisterial book, Psychological Types. Jung's work gave us the categories of introvert and extrovert, as it explored what has come to be understood as the cognitive bases for our habits of mind. These are powerful ideas but also complex and sometimes obscure. Applying them to law school teaching and learning (and law practice) can be very fruitful, if we pay careful attention to ourselves and colleagues, …

Reasonableness In And Out Of Negligence Law, Benjamin C. Zipursky

Faculty Scholarship

The word "reasonable" and its cognates figure prominently in innumerable areas of the law – from antitrust and contract law to administrative and constitutional law, from the common law of nuisance to an assortment of rules in statutes and regulations. While some thinkers have equated "reasonableness" with "rationality," others have looked to "justifiability," and others still have decided that "reasonableness" means virtually nothing at all, but serves the important function of allocating decisionmaking authority. The reality is that the term "reasonable" is both vague and ambiguous, and thus plays many different roles in the law. As with terms such as …

The Golden Or Bronze Age Of Judicial Selection?, Jed H. Shugerman

Faculty Scholarship

This Essay questions Gerhardt and Stein’s interpretation of the golden age and whether there were meaningful differences in the politics of the nomination and confirmation processes of the antebellum era as compared with the contemporary era. In Part II, I suggest that one hallmark of the contemporary judicial selection process is the intense inquiry into the nominees’ personal lives and ethics (whether through confirmation hearings or the media). Gerhardt and Stein do not find much evidence of these practices in the antebellum era, even though historians have noted the nastiness of that era’s presidential election campaigns. Thus, some aspects of …

Mediation: The Best And Worst Of Times, Jacqueline Nolan-Haley

Faculty Scholarship

At this period in the evolution of dispute resolution, mediation is in a unique time zone, similar to what Dickens described in a Tale of Two Cities, as the best and worst of times, the seasons of Light and Darkness. It is the best of times, the season of Light and a time of joy in honoring human connections, as mediation is widely embraced in the public and private sectors. From government agencies and courts to corporations and United Nations peacemaking units, mediation offers a vision of hope in the midst of drowning bureaucracies, clogged dockets, corporate scandals and ethnic …

Legal Reform In The Xi Jinping Era, Carl F. Minzner

Faculty Scholarship

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The plenum decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This article attempts to do three things: (1) analyze how and why China’s …

Contra Proferentem And The Role Of The Jury In Contract Interpretation, Ethan J. Leib, Steve Thel

Faculty Scholarship

Revisiting Bill Whitford’s work on the role of the jury in contract interpretation and his work on consumer form contracting inspired us to take a careful look at a doctrine of contract interpretation that is usually thought to help consumers in interpretive battles with those who draft their contracts unilaterally. But we found that contra proferentem -- the canon that requires construing or interpreting a contract against the drafter when ambiguities arise -- is more confusing than we expected. What we have done here is lay out some of the complexities of the doctrine, focusing on its broader application outside …

Lift Not The Painted Veil! To Whom Are Directors’ Duties Really Owed?, Martin Gelter, Geneviève Helleringer

Faculty Scholarship

In this article, we identify a fundamental contradiction in the law of fiduciary duty of corporate directors across jurisdictions, namely the tension between the uniformity of directors’ duties and the heterogeneity of directors themselves. American scholars tend to think of the board as a group of individuals elected by shareholders, even though it is widely acknowledged (and criticized) that the board is often a largely self-perpetuating body whose inside members dominate the selection of their future colleagues and eventual successors. However, this characterization is far from universally true internationally, and it tends to be increasingly less true even in the …

Mediation And Access To Justice In Africa: Perspectives From Ghana, Jacqueline Nolan-Haley

Faculty Scholarship

Mediation and other ADR processes have been promoted vigorously in developing countries under the banner of access to justice. As a result, many African countries are experiencing a transformation of their civil justice systems with modern dispute resolution gaining a strong foothold throughout the African continent. Influenced by promises of increased flexibility and efficiency in resolving disputes, greater access to justice, and in some cases, promotion of foreign investment, legislators and policy-makers have become active both in promoting and in privatizing modern dispute resolution processes.

There is nothing new about the use of informal and non-adversarial dispute resolution processes in …

Patents And Small Participants In The Smartphone Industry, Joel R. Reidenberg, N. Cameron Russell, Maxim Price, Anand Mohand

Faculty Scholarship

For intellectual property law and policy, the impact that patent rights may have on the ability of small companies to compete in the Smartphone market is a critically important issue for continued robust innovation. Open and competitive markets provide vitality for the development of Smartphone technologies. Nevertheless, the impact of patent rights on the smart phone industry is an unexplored area of empirical research. Thus, this Article seeks to show how patent rights affect the ability of small participants to enter, compete, and exit smart phone markets. The study collected and used comprehensive empirical data on patent grants, venture funding, …

The Myth Of The Double- Edged Sword: An Empirical Study Of Neuroscience Evidence In Criminal Cases, Deborah W. Denno

Faculty Scholarship

This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience …

The War On Drugs And Prison Growth: Limited Importance, And Limited Legislative Options, John F. Pfaff

Faculty Scholarship

No abstract provided.

Colorism And The Law In Latin America—Global Perspectives On Colorism Conference Remarks, Tanya K. Hernandez

Faculty Scholarship

Today, persons of African descent make up more than forty percent of the poor in Latin America and have been consistently marginalized and denigrated as undesirable elements of the society since the abolition of slavery across the Americas. However, Latin Americans still very much adhere to the notion that, because racial mixture and the absence of Jim-Crow racial segregation are such a marked contrast to the United States’ racial history, the region is what I term “racially innocent” and thus resistant to proposals that institutions use public policies of inclusion to address the entrenched racial disparities. This resistance exists despite …

You Didn't Even Notice! Elements Of Effective Online Privacy Policies, Amanda Grannis

Fordham Urban Law Journal

No abstract provided.

Confronting The Peppercorn Settlement In Merger Litigation: An Empirical Analysis And A Proposal For Reform, Jill E. Fisch, Sean J. Griffith, Steven D. Solomon

Faculty Scholarship

Shareholder litigation challenging corporate mergers is ubiquitous, with the likelihood of a shareholder suit exceeding 90%. The value of this litigation, however, is questionable. The vast majority of merger cases settle for nothing more than supplemental disclosures in the merger proxy statement. The attorneys that bring these lawsuits are compensated for their efforts with a court-awarded fee. This leads critics to charge that merger litigation benefits only the lawyers who bring the claims, not the shareholders they represent. In response, defenders of merger litigation argue that the lawsuits serve a useful oversight function and that the improved disclosures that result …

Moving Forward The Un Guiding Principles For Business And Human Rights: Between Enterprise Social Norm, State Domestic Legal Orders, And The Treaty Law That Might Bind Them All, Larry Catá Backer

Fordham International Law Journal

No abstract provided.