Law Commons^™

Leaving Law Firms With Client Fees: Florida's Path, Donald J. Weidner

Scholarly Publications

No abstract provided.

The Inappropriateness Of The Bad Checks Penalty, Jeffrey H. Kahn, Douglas A. Kahn

Scholarly Publications

In this article, the authors argue that the penalty for sending a bad check to the IRS is excessive and that the reasonable cause exception should apply to any honest factual error.

Can Nonstatutory Federal Climate Litigation Drive Federal Climate Policy?, David L. Markell

Scholarly Publications

No abstract provided.

The Substitute And Complement Theories Of Judicial Review, David Landau

Scholarly Publications

Constitutional theory has hypothesized two distinct and contradictory ways in which judicial review may interact with external political and social support. One line of scholarship has argued that judicial review and external support are substitutes. Thus, "political safeguard" theorists of American federalism and the separation of powers argue that these constitutional values are enforced through the political branches, making judicial review unnecessary. However, a separate line of work, mostly composed of social scientists examining rights issues, argues that the relationship between courts and outside support is complementary-judges are unlikely to succeed in their projects unless they have sufficient assistance from …

Algorithmic Contracts, Lauren Henry Scholz

Scholarly Publications

Algorithmic contracts are contracts in which an algorithm determines a party’s obligations. Some contracts are algorithmic because the parties used algorithms as negotiators before contract formation, choosing which terms to offer or accept. Other contracts are algorithmic because the parties agree that an algorithm to be run at some time after the contract formation will serve as a gap-filler. Such agreements are already common in high speed trading of financial products and will soon spread to other contexts. However, contract law doctrine does not currently have a coherent approach to describing the creation and enforcement of algorithmic contracts. This Article …

False Massiah: The Sixth Amendment Revolution That Wasn't, Wayne A. Logan

Scholarly Publications

No abstract provided.

The Honorable Robert R. Merhige, Jr.: A Judge Ahead Of His Time, Wayne A. Logan

Scholarly Publications

No abstract provided.

Digital Surveillance And Preventive Policing, Manuel A. Utset

Scholarly Publications

No abstract provided.

Vulnerable Insiders: Constitutional Design, International Law And The Victims Of Armed Conflict In Colombia, David Landau

Scholarly Publications

This article, prepared for a conference on “The External Dimensions of Constitutions” held at the University of Cambridge in September 2016, explains how the Colombian Constitutional Court constructed a set of rights for a group of vulnerable insiders—victims of the country’s long-running internal armed conflict. The Court based its jurisprudence on a 1991 constitutional design that turned towards international law as a way of resolving a severe domestic crisis of violence and legitimacy. The Court has drawn heavily on principles of international human rights law and international humanitarian law to develop a set of protections for Colombia’s massive population of …

The Long Shadow Of Judicial Review, Mark Seidenfeld

Scholarly Publications

No abstract provided.

New Fasb Rules For Leases: A Sarbanes-Oxley Promise Delivered, Donald J. Weidner

Scholarly Publications

Congress responded to the first financial accounting scandals of the new millennium by enacting the Sarbanes-Oxley Act of 2002, which required the Securities and Exchange Commission (“SEC”) to study issuers’ filings and report on whether their financial statements reflect the economics of off-balance sheet arrangements to investors in a transparent fashion. In 2005, the SEC reported that there “may be approximately $1.25 trillion in non-cancellable future cash obligations committed under operating leases that are not recognized on issuer balance sheets, but are instead disclosed in the notes to the financial statements." Accordingly, the SEC requested that the Financial Accounting Standards …

The Military-Environmental Complex And The Courts: Comment To Sarah Light, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Judicial Review For The Public Lands: Comment To Eric Biber, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Agency Motivations In Exercising Discretion, David L. Markell

Scholarly Publications

No abstract provided.

Are Trademarks Ever Fanciful?, Jake Linford

Scholarly Publications

A fanciful trademark-a made-up word like Swiffer for mops or Xerox for photocopiers-is presumed to neither describe nor suggest any qualities of the product associated with the mark. This presumption is consistent with the theory of linguistic arbitrariness: there exists no connection between a given word (tree) and the thing signified by the word (a large woody plant). Because a fanciful mark is assumed to be an empty vessel, meaningless until used as a trademark, it qualifies for protection from first use and receives broader protection against infringement than other categories of trademarks.

Research into sound symbolism challenges the theory …

Carbon Tax Rising, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Nationwide Injunctions, Rule 23(B)(2), And The Remedial Powers Of The Lower Courts, Michael T. Morley

Scholarly Publications

No abstract provided.

Dismantling The Unitary Electoral System? Uncooperative Federalism In State And Local Elections, Michael T. Morley

Scholarly Publications

No abstract provided.

The Criminal Justice Black Box, Samuel R. Wiseman

Scholarly Publications

"Big data "-- the collection and statistical analysis of numerous digital data points -- has transformed the commercial and policy realms, changing firms' understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, …

Datamining The Meaning(S) Of Progress, Jake Linford

Scholarly Publications

No abstract provided.

Mass Monitoring, Avlana Eisenberg

Scholarly Publications

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry. Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes—a phenomenon which this Article terms “mass monitoring”—is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment. It finds that the origins and history of EM as a progressive alternative to incarceration—a punitive sanction—support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories. Yet new …

Vicarious Windfalls, Justin Sevier

Scholarly Publications

The vicarious liability doctrine, which holds third parties responsible for the legal obligations of their duly authorized agents, was designed in part to ensure that tort victims are not undercompensated by insolvent agent wrongdoers. But many legal scholars are highly critical of the doctrine and suggest that fact finders’ systematic biases-particularly with respect to corporate third parties-cause unworthy tort plaintiffs to be overcompensated at the expense of innocent, deep-pocket corporate defendants. These scholars have offered little empirical evidence for these claims and, in fact, behavioral research suggests that their predictions are incorrect.

This Article introduces the concept of the vicarious …

Technological Innovation, Data Analytics, And Environmental Enforcement, David L. Markell, Robert L. Glicksman, Claire Monteleoni

Scholarly Publications

Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the environment or on human health. They may also stimulate efforts to develop second-order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances.

This Article uses a different lens to consider the role of technological innovation. In …

The Fallacious Objections To The Tax Treatment Of Carried Interests, Jeffrey H. Kahn, Douglas A. Kahn

Scholarly Publications

No abstract provided.

Proponents' Standing To Defend Their Ballot Initiatives: Post-Hollingsworth Work-Arounds?, Nat Stern, John S. Caragozian

Scholarly Publications

No abstract provided.

Mcdonnell And Anti-Corruption's Last Stand, Jacob Eisler

Scholarly Publications

In McDonnell v. United States, the Supreme Court constrained the reach of federal anti-corruption law, declared the inevitability and even desirability of representatives aggrandizing favored constituents, and asserted patronage to be a hallmark of democracy. The unanimous decision is the latest and clearest indication that the Court will frustrate regulations that require officials to discharge their roles with disinterested neutrality. This article demonstrates the impact of the Court's minimalist view of integrity through political philosophy and game theory. Given the Court's hostility to regulatory prohibition of self-interested political behavior, the final bulwark of public-minded governance is the electorate, which must …

One Step Forward And Two Steps Back In Product Liability: The Search For Clarity In The Identification Of Defects, Jacob Eisler

Scholarly Publications

No abstract provided.

Democratic Erosion And Constitution-Making Moments: The Role Of International Law, David Landau

Scholarly Publications

No abstract provided.

The Uncertain Case For Appraisal Arbitrage, Jay B. Kesten

Scholarly Publications

No abstract provided.

Valuing Residual Goodwill After Tradmark Forfeiture, Jake Linford

Scholarly Publications

Trademarks contribute to an efficient market by helping consumers find products they like from sources they trust. This information-transmission function of trademarks can be upset if the law fails to reflect both how trademark owners communicate through marks and how consumers understand and use them. But many of trademark law’s forfeiture mechanisms (the ways a trademark can lose protection) ignore or discount consumer perception. This failure threatens not only to increase consumer search costs and consumer confusion, but also to distort markets.

For example, trademark protection may be forfeited when the mark owner interrupts or abandons use, even though consumers …