Law Commons^™

Land Use Law Update: Will Reed V. Town Of Gilbert Require Municipalities Throughout The Country To Rewrite Their Sign Codes?, Sarah Adams-Schoen

Scholarly Works

The author discusses the imminent Supreme Court decision in Reed v. Town of Gilbert. Depending on how the Court decides the case, municipalities may need to act quickly to amend their sign regulations.

A Response To The Ipcc Fifth Assessment, Sarah Adams-Schoen, Deepa Badrinarayana, Cinnamon Pinon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan D. Rosenbloom, Inara K. Scott, David Takacs

Scholarly Works

This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result …

The Role Of The Dean In Ensuring A Sustainable Law School: Everything Comes Down To What I Learned In Land Use Planning And Sustainable Development Law, Patricia E. Salkin

Scholarly Works

This article offers advice for anyone preparing to interview for a deanship - go back to what you are passionate about to really express how you might approach serving as a law dean. In this case, the passion centers on the subject of land use planning and sustainable development law. When interviewing for the position of dean of a law school, Academics who rise through the ranks to a deanship have a background in legal scholarship that often marries theory and practice. Faculty spend countless hours, even years, developing theories and concepts to advance the law in a particular discipline. …

Trial By Water: Reflections On Superstorm Sandy, Thomas Maligno, Benjamin R. Rajotte

Scholarly Works

Superstorm Sandy devastated thousands of homes in some of the most densely populated areas of the country. It created extensive and diverse property losses in the Northeast, resulting in an unprecedented need for disaster recovery assistance in affected communities. As we pass the storm's two-and-a-half year anniversary, complex challenges remain for many of these households. This article documents how one law school has responded. It reflects on how we have approached our educational and public interest missions throughout the recovery process, and how these experiences have shaped our views of the future. Disasters know no boundaries, and coastal floods are …

Getting Paid In The Naked Economy, Meredith R. Miller

Scholarly Works

“It’s the end of work as we know it,” reports consulting firm Accenture in a paper about the “rise of the extended workforce.” (Gartside, Silverstone, Farley & Cantrell, Trends Reshaping the Future of HR: The Rise of the Extended Workforce, at 3 (Accenture 2013). The report predicts that, “[i]n the future, organizations’ competitive success will hinge on...workers who aren’t employees at all.” The legal nature of employment is changing and has been changing for quite some time; fewer and fewer workers are “employees.”

It is not new or novel to recognize that, from a legal perspective, there are many benefits …

Designing A Solo And Small Practice Curriculum, Meredith R. Miller

Scholarly Works

There is a reality commonly ignored by the curriculum in most law schools: the largest segment of law graduates will eventually be solo or small firm practitioners. Even before the Great Recession, nearly two thirds of lawyers in the United States practiced in solo or small firms. Since 2008, trends show an increase in the number of recent law graduates that “hang a shingle.” According to a 2012 report of the American Bar Association, about three-quarters of lawyers in the United States work in private practice. Of those attorneys, about seventy percent are in solo or small firms. Many find …

Further Developments In Land Use Ethics, Patricia E. Salkin, Darren Stakey

Scholarly Works

Ethical considerations continue to play a fundamental role in shaping the course of land use and developmental regulatory proceedings throughout the country. From an innocuous donation by one public official to his alma mater, to the outright bribery of a former mayor, the past year has been rife with a range of conduct implicating professional responsibility and land use.

Concept And Contract In The Future Of International Law, John Linarelli

Scholarly Works

This is an article written for a symposium on Joel Trachtman’s book, The Future of International Law. I first deal with the contractarian features of Trachtman’s approach to understanding international law. Using the tools of new institutional economics and constitutional economics, Trachtman seeks to describe the features of an international legal system. This is positive political theory or at least relates substantially to the methods of positive political theory. I explore a different approach, one connecting to normative political theory. In its ambitious sense, my approach would see international law as a form of moral argument, but in its modest …

Overvaluing Employer-Sponsored Health Insurance, Lauren R. Roth

Scholarly Works

Although positive and negative assessments of tying health insurance to employment abound, most scholars and policymakers have acknowledged that our long history in this area predicts our future. What they have largely ignored, however, is the extent to which individual attachment to employment-based insurance is at the root of our inability to make broader health reforms. The attachment (1) harms exchange-based insurance and (2) denies employers the ability to use Health Reimbursement Arrangements (“HRAs”) to subsidize the purchase of insurance by their employees on the exchanges.

This Article advocates reducing or eliminating workers’ overvaluation of their health insurance and increasing …

A Quantum Congress, Jorge R. Roig

Scholarly Works

This article tries to address the problem of a corrupt and broken electoral system that has been captured by special interests through big money spending in political campaigns, while at the same time preserving the spirit of the Free Speech Clause of our Constitution. In doing so, this article first reviews and summarizes the different alternatives proposed as potential fixes for the campaign finance problem. It then explains why none of the proposed alternatives can accomplish the dual goals set out above. Finally, the article briefly sketches a proposal for a fundamental reworking of our representative democracy by substituting legislative …

No Parking Anytime: The Legality And Wisdom Of Maximum Parking And Minimum Density Requirements, Michael Lewyn, Judd Schechtman

Scholarly Works

This article focuses on two aspects of smart growth policy that have thus far received little attention: maximum parking and minimum density requirements. To ascertain the frequency of such regulations, we examine the zoning regulations of twenty-four mid-sized cities, defined as those with populations between 500,000 and one million residents. The article concludes that the first type of regulation is somewhat common, but is usually restricted to certain types of land uses or sections of a city. Minimum density requirements, by contrast, are quite rare and quite lenient. Because these types of regulations have received little scholarly attention and are …

Internally Buffered Districts: A New Technique To Make Zoning Less Exclusionary, William Leaf, Michael Lewyn

Scholarly Works

Proposes creating a new kind of zone called an "internally buffered district." Within these zones, intensive land uses like stores and apartments are allowed, so long as the latter uses are physically separated from nearby residential districts. The article suggests that developers compensate homeowners for rezoning their property to the internally buffered classification, thus allowing for both more compact development and more protection of homeowners' interests.

Robotic Marriage And The Law, Mark Goldfeder, Yosef Razin

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The United States, and the world at large, is in the midst of a family law revolution that will fundamentally change our very conception of family. Ethical challenges to age-old ideas have prompted people to ask foundational questions, such as how and why our most important personal relationships evolved. In a world where same-sex marriage has been legalized, it is only natural to wonder who marriage may include in the future. This essay explores the question of whether a human and a robot could ever legally marry in the United States. Through a thought experiment, it examines the legal and …

Defending American Religious Neutrality, Mark Goldfeder

Scholarly Works

Scholars who write about the US Supreme Court's religious liberty jurisprudence typically lambaste the Court for its supposedly secularist or allegedly religious sympathies, or for inconsistencies in its rulings and norms. Andrew Koppelman takes a different approach in this aging but still timely book about the tradition and enduring relevance of religious "neutrality" in American constitutional law.

Catholic Social Thought And Human Rights, Zachary R. Calo

Scholarly Works

As the dominant moral vocabulary of modernity, the language of human rights establishes significant points of contact between the religious and the secular. Yet, the human rights movement increasingly finds itself in a contested relationship with religious ideas and communities. Even as it draws on the inherited moral resources of religion, the human rights movement, at least in its dominant institutional and intellectual expressions, presents itself as a totalizing moral theory that challenges countervailing theological accounts of human rights. This article considers the distinctive account of human rights that has emerged within Catholic social teaching. Particular attention is given to …

Review Of Corruption In America: From Benjamin Franklin's Snuff Box To Citizens United By Zephyr Teachout, Robert L. Tsai

Faculty Scholarship

This is a review of Zephyr Teachout's book on the anticorruption principle, "Corruption in America" (Harvard 2014).

Three Arguments About War, Robert L. Tsai

Faculty Scholarship

The rise of the United States as a military power capable of mounting global warfare and subduing domestic rebellions has helped produce a corresponding shift in the language of liberal constitutionalism. Arguments invoking war have become prevalent, increasingly creative and far-reaching, and therefore an emerging threat to rule of law values. It is not only legal limits on the capacity to wage war that have been influenced by the ascendance of war-inspired discourse; seemingly unrelated areas of law have also been reshaped by talk of war, from the constitutional rules of criminal procedure to the promise of racial and sexual …

The Impact Of Law On The Right To Water And Adding Normative Change To The Global Agenda, Michael Ulrich

Faculty Scholarship

A resolution was passed at the United Nations Water Conference in 1977 to achieve universal access to sufficient water by 1990. This bar was lowered significantly as part of the Millennium Development Goals (MDGs). However, as the MDGs come to an end this year, even this reduced benchmark will not be reached. Water is inescapably intertwined with every other MDG, as well as the ability to exercise any human right. Consequently, the failure to achieve this goal implores an exploration of its causes. As the global community embarks on setting a new post-MDG agenda, one currently overlooked aspect is the …

The Scope And Potential Of Ftc Data Protection, Woodrow Hartzog, Daniel J. Solove

Faculty Scholarship

For more than fifteen years, the FTC has regulated privacy and data security through its authority to police deceptive and unfair trade practices as well as through powers conferred by specific statutes and international agreements. Recently, the FTC’s powers for data protection have been challenged by Wyndham Worldwide Corp. and LabMD. These recent cases raise a fundamental issue, and one that has surprisingly not been well explored: How broad are the FTC’s privacy and data security regulatory powers? How broad should they be?

In this Article, we address the issue of the scope of FTC authority in the areas of …

Unfair And Deceptive Robots, Woodrow Hartzog

Faculty Scholarship

Robots, like household helpers, personal digital assistants, automated cars, and personal drones are or will soon be available to consumers. These robots raise common consumer protection issues, such as fraud, privacy, data security, and risks to health, physical safety and finances. Robots also raise new consumer protection issues, or at least call into question how existing consumer protection regimes might be applied to such emerging technologies. Yet it is unclear which legal regimes should govern these robots and what consumer protection rules for robots should look like.

The thesis of the Article is that the FTC’s grant of authority and …

Increasing The Transaction Costs Of Harassment, Woodrow Hartzog, Evan Selinger

Faculty Scholarship

Wouldn’t it be nice if the rules, agreements, and guidelines designed to prevent online harassment were sufficient to curb improper behavior? As if. Wrongdoers are not always so easily deterred. Sometimes these approaches are about as effective as attacking tanks with toothpicks.

As Danielle Citron contends in her critically important work, Hate Crimes in Cyberspace, the design of the Internet facilitates vitriol and abuse, even when it is legally, contractually, and normatively prohibited. Communicating almost effortlessly at distance—sometimes anonymously and typically with minimized body language—can heighten emotional detachment and blunt moral sensitivity. Tragically, when a mediated environment makes it …

Shareholder Litigation Without Class Actions, David H. Webber

Faculty Scholarship

In this Article, I imagine a post-class action landscape for shareholder litigation. Assuming, for the sake of this exercise, an environment in which both securities-fraud and transactional class actions are hobbled by procedural or substantive reforms — most likely through the adoption of mandatory-arbitration provisions or fee-shifting provisions — I assess what shareholder litigation would disappear, what would remain, and what a post-class action landscape would look like. I argue that loss of the class action would remove a layer of legal insulation that prevents institutional investors from having to pursue positive value claims against companies. Currently, the class action …

Class-Based Adjudication Of Title Vii Claims In The Age Of The Roberts Court, Michael C. Harper

Faculty Scholarship

This article considers two barriers to class-based adjudication of Title VII claims erected by the Roberts Court: (1) the Court's interpretation of Rule 23, primarily in Wal-Mart v. Dukes; and (2) the Court's interpretation of the Federal Arbitration Act (FAA) in a series of decisions, both employment-related and not. The article contends that it is the latter group of decisions that are the more significant for Title VII private aggregate litigation as well as for other types of private litigation. The Wal-Mart Court predictably did not expand an employer's obligations to avert discrimination by its agents, and its predictable interpretations …

The Return Of The King: The Unsavory Origins Of Administrative Law, Gary S. Lawson

Faculty Scholarship

Philip Hamburger’s Is Administrative Law Unlawful? is a truly brilliant and important book. In a prodigious feat of scholarship, Professor Hamburger uncovers the British and civil law antecedents of modern American administrative law, showing that contemporary administrative law “is really just the most recent manifestation of a recurring problem.” That problem is the problem of power: its temptations, its dangers, and its tendency to corrupt. Administrative law, far from being a distinctive product of modernity, is thus the “contemporary expression of the old tendency toward absolute power – toward consolidated power outside and above the law.” It represents precisely the …

Does The Quality Of The Plaintiffs' Law Firm Matter In Deal Litigation?, Adam B. Badawi, David H. Webber

Faculty Scholarship

This Article examines how the stock market reacts to the filing of lawsuits against mergers and acquisitions targets as the quality of the plaintiffs’ law firm varies. Our primary dataset includes all cases of this type filed in the Delaware Chancery Court from November 2003–September 2008. We group the law firms that file these suits into higher and lower quality categories using several quantitative and qualitative measures. We hypothesize that target firm share value should reflect the likelihood that litigation will result in an increase in merger consideration. This effect is likely to depend, at least in part, on law …

Is It Time To Rewrite The Constitution? Fidelity To Our Imperfect Constitution, James E. Fleming

Faculty Scholarship

This essay considers arguments that the U.S. Constitution is so imperfect — and the constitutional and political system so dysfunctional or otherwise failing — that it is time to rewrite the Constitution through amendment or constitutional convention. I argue that if we adopt and maintain an attitude of fidelity to our imperfect Constitution, it may be unnecessary to formally amend the Constitution unless there is good reason to believe that something better might come out of this process. The better approach is to maintain an attitude of fidelity to the imperfect Constitution and to apply a Constitution-perfecting theory — to …

Income Taxation, Wealth Effects, And Uncertainty: Portfolio Adjustments With Isoelastic Utility And Discrete Probability, Theodore S. Sims

Faculty Scholarship

The expected utility formulation of the problem of a risk-averse agent’s allocating a portfolio between a safe and a risky asset is widely taken as standing for the proposition that if α* ε (0, 1) is the optimal allocation to the risky asset in the absence of tax, α*/(1-t) is the optimal allocation in the presence of tax at rate t, a finding obtained on the assumption that the return r to the riskless asset is (or is taxed as though it were) zero. In this paper I model the agent as exhibiting constant relative risk aversion and the probability …

Punishment And Blame For Culpable Indifference, Kenneth Simons

Faculty Scholarship

In criminal law, the mental state of the defendant is a crucial determinant of the grade of crime that the defendant has committed and of whether the conduct is criminal at all. Under the widely accepted modern hierarchy of mental states, an actor is most culpable for causing harm purposely, and progressively less culpable for doing so knowingly, recklessly, or negligently. Notably, this hierarchy emphasizes cognitive rather than conative mental states. But this emphasis, I argue, is often unjustified. When we punish and blame for wrongful acts, we should look beyond the cognitive dimensions of the actor’s culpability, and should …

Puzzles Of Proportion And The Reasonable Military Commander: Reflections On The Law, Ethics, And Geopolitics Of Proportionality, Robert D. Sloane

Faculty Scholarship

This article offers modest reflections on jus in bello proportionality. It suggests that the law of armed conflict (LOAC) build on the only consensus legal standard that exists: that of the good-faith reasonable military commander. The difficulty — here, as with any reasonableness standard — is to identify factors that realistically can, and legally should, guide adherence to it and to consider the objective and subjective dimensions of judgments under the standard. Part II scrutinizes the content and status of Additional Protocol I’s (API) canonical definition of proportionality. It analyzes its text and context to bring out the extent to …

Fidelity To Our Living Constitution, James E. Fleming

Faculty Scholarship

This essay explores the arguments of Bruce Ackerman, who decries the Roberts Court’s “shattering judicial betrayal” of our living constitution’s Civil Rights Revolution. He argues for a broader conception of the constitutional canon: The higher law of the Constitution includes not only formally adopted provisions but also “landmark statutes” and judicial “superprecedents,” for example, those of the Civil Rights Revolution. He also argues for a broader conception of popular sovereignty: We the People manifest our will not only through the formal amending procedures but also through higher lawmaking procedures outside Article V. He exhorts us to fidelity to our living …