Law Commons^™

By Any Other Name: Rational Basis Inquiry And The Federal Government's Fiduciary Duty Of Care, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

Under modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something very similar to substantive due process, however, is easily justifiable as a matter of original constitutional meaning once one understands that the Constitution, for interpretative purposes, is best seen as a kind of fiduciary instrument. Fiduciary instruments operate against a background of legal norms that notably include a duty of care on the part of agents. All federal actors …

Restating International Torts: Problems Of Process And Substance In The Ali's Third Restatement Of Torts, Nancy J. Moore

Faculty Scholarship

The American Law Institute’s Third Restatement of Torts was initially conceived as a series of separate projects, each with its own reporters. From 1998 through 2010, the ALI completed and published three different segments: Products Liability, Apportionment of Liability, and Liability for Physical and Emotional Harm. Initially, the ALI did not intend to restate the intentional torts, believing that the Second Restatement’s treatment of these torts was clear and largely authoritative. It was ultimately persuaded that there were numerous unresolved issues that needed to be addressed. As a result, it authorized a new project on Intentional Torts---a project that is …

Frozen Charters, Scott Hirst

Faculty Scholarship

In 2012, the New York Stock Exchange changed its policies to prevent brokers voting shares on corporate governance proposals where they had not received instructions from beneficial owners. Although the change was intended to protect investors and improve corporate governance, it has had the opposite effect: a significant number of U.S. public companies are no longer able to amend important parts of their corporate charters, despite the support of their boards of directors and overwhelming majorities of shareholders. Their charters are frozen.
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/="/">This paper provides the first empirical and policy analysis of the broker voting change and its …

No Restoration, No Rehabilitation: Shadow Detention Of Mentally Incompetent Noncitizens, Sarah R. Sherman-Stokes

Faculty Scholarship

This article examines the burgeoning mental competency regime in immigration removal proceedings, as well as its shortcomings. While some strides have been made in the last six years to identify noncitizen detainees who are incompetent, and to implement safeguards, including appointed counsel, to protect their rights, the current mental competency framework fails to protect some of the most vulnerable. Specifically, this article explains that mentally incompetent, noncitizen detainees for whom no adequate safeguards are available, face a kind of shadow, prolonged and potentially indefinite detention. These detainees’ continued detention is wholly without process – despite their incompetence, they are not …

Confronting Crawford: Justice Scalia, The Judicial Method, And The Adjudicative Limits Of Originalism, Gary S. Lawson

Faculty Scholarship

If you conduct an online search for something like “Justice Scalia’s most important opinions” or “Justice Scalia’s most influential opinions,” you will (or at least I did) almost always end up with a list that is top-heavy with dissents. That is not surprising. Dissenting opinions gave Justice Antonin Scalia the most freedom to exercise his considerable skills as a writer and were therefore more likely to produce memorable one-liners. They were also the best occasions for him to express his views can­didly and forcefully and thus served as the best vehicles for elaboration of his jurisprudential and doctrinal positions. Majority …

Towards Patent Standardization, Janet Freilich, Jay P. Kesan

Faculty Scholarship

Among the most important purposes of patents are to provide clear notice to third parties of the patent's boundaries and to disclose helpful information to researchers seeking to replicate or further develop the patented invention. Unfortunately, patents often fail at both of these tasks, in part because of lack of uniformity of language and format.' Use of idiosyncratic language in patent claims renders it difficult to find relevant patents and, once a patent is found, to interpret its claims. As there is no customary set of information that must always be included in a patent, researchers often find reading a …

The Future Of Fast Food Governance, Andrew Elmore

Faculty Scholarship

The Fast Food Forward movement has swelled into one of the largest protests by low‐wage workers in U.S. history, animating efforts at all levels of government to raise and enforce workplace standards. One such strategy is to hold fast food franchisors accountable as joint employers of their franchisees’ employees. In what may be a watershed moment, New York Attorney General Eric Schneiderman (NYAG) recently filed suit against Domino’s Pizza, the franchisor, for wage‐and‐hour‐law violations in its franchisees’ stores across New York State.

Fast food store employees report widespread wage‐and‐hour law violations, and the NYAG’s Domino’s lawsuit appears to confirm this …

Original Foreign Affairs Federalism, Gary S. Lawson

Faculty Scholarship

Two of the most doctrinally bewildering topics in American constitutional law are federalism and foreign affairs. Put the two together and it requires the patience of Job and the wisdom of Solomon to navigate, never mind make sense of, the judicial and political accommodations that have arisen over the course of more than two centuries concerning the relative roles of the national, state, and local governments in matters that implicate American involvement with foreign countries and citizens. I will not go so far as to say that Mike Glennon and Rob Sloane’s new book, Foreign Affairs Federalism: The Myth of …

Tip Of The Iceberg Ii: How The Intended-Uses Principle Produces Medical Knowledge And Protects Liberty, Christopher Robertson, Victor Laurion

Faculty Scholarship

In recent years, the Food and Drug Administration’s pre-market approval process has come under increasing scrutiny as an infringement on liberty and a regulation of speech. In the first part of this symposium contribution, we offer a case study of Seroquel XR, showing how the FDA’s premarket approval process – and the restrictions on “off-label” promotion in particular – caused the drug company to produce and disseminate knowledge about safety and efficacy for new uses. The law successfully resolved the collective action problem of producing knowledge, even while the law protected the liberty of individual doctors and patients to use …

Enhanced Damages For Patent Infringement: A Normative Approach, Keith N. Hylton

Faculty Scholarship

This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society's welfare. Patent damages should therefore balance society's interest in encouraging innovation against the need to regulate infringement incentives. This balancing approach generates an optimal standard for awarding enhanced damages and guidelines for determining the size of the damages multiplier. On the legal standard, the approach developed here illuminates the factors that should be taken into consideration in the enhancement analysis, and, more importantly, the reasons those factors should be considered. On the precise size …

Nfib V. Sebelius At 5, Nicole Huberfeld

Faculty Scholarship

Keeping up with health care reform is like running up a mountain of sand - every time you reach the top, -the terrain starts shifting. In this talk, I offer a snapshot of where we are in implementing the Patient Protection and Affordable Care Act ("ACA") to aid in understanding the significance of NFIB v. Sebelius' at five. I will situate the ACA2 within historical patterns in American health care reform. I have been asked to discuss the key points of the NFIB decision, after which I will share some of the research that I have performed for the past …

Teaching The Law Of American Health Care, Elizabeth Weeks, Nicole Huberfeld, Kevin Outterson

Faculty Scholarship

In writing our casebook, The Law of American Health Care, we started from scratch, rethinking the topics to include and themes around which to organize them. Like many health law professors, we were schooled in and continued to propound the traditional themes of cost, quality, access, and choice. While those concerns certainly pervade many areas of health care law, our casebook's overarching themes emphasize different issues, namely: federalism, individual rights, fiduciary relationships, the modem administrative state, and market regulation. These new themes, we believe, better capture the range of issues and topics essential forthe new generation of health lawyers. When …

Brief Of Amici Curiae Scholars Of The Constitutional Rights And Interests Of Children In Support Of Respondents In Masterpiece Cakeshop Ltd, Et Al V. Colorado Civil Rights Commission, Angela Onwuachi-Willig, Catherine E. Smith, Lauren Fontana, Tanya Washington, Barbara Bennett Woodhouse

Faculty Scholarship

Masterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission is about much more than a wedding cake. It is about the rightful place of LGBT people and their families in the commercial and public sphere. In fact, children are already bearing the brunt of exclusionary practices in the public marketplace because of their relationship to or association with their LGBT parents. In Michigan, a pediatrician refused to treat an infant based solely on the fact that the child had lesbian mothers. In Kentucky, a judge refused to hear adoption cases of children involving LGBT adoptive-parents-to-be. In Tennessee, a nondenominational …

Before Interpretation, Anya Bernstein

Faculty Scholarship

What is it that a judge interprets in a statutory interpretation case? This Article shows that the answer to this question is surprisingly complex. First, the text that a judge interprets is not simply given. Rather, judges must select texts to interpret. Second, the background against which a judge views that text is also not given. Rather, judges situate the texts they interpret within unique, case-specific contexts that they construct from a diverse and unpredictable variety of factors. Selecting and situating: these form the infrastructure of interpretation. Each requires judges to exercise creativity and choice. But opinions tend to present …

Comment On "Error And Regulatory Risk In Financial Institution Regulation", Keith N. Hylton

Faculty Scholarship

I agree with just about everything Jonathan Macey (2017) says in his symposium contribution. His claim that bureaucratic tendencies toward regularity—specifically, treating like cases alike—generate errors in categorization seems appropriate to me. His explanations of the pathologies in financial regulation should fall in the category of essential or required reading for anyone who chooses to write on the topic. Where I differ from Macey is in the choice of framework, or perspective from which to view the pathologies. Whereas Macey adopts an “error cost” framework, which is clearly appropriate for this symposium, I would build explicitly on a “public choice” …

Recognizing Women's Rights At Work: Health And Women Workers In Global Supply Chains, Erika R. George, Candace D. Gibson, Rebecca Sewall, David Wofford

Faculty Scholarship

The Guiding Principles mandate that businesses respect the human fights enshrined in the International Bill of Human Rights and in the International Labour Organization (ILO)'s Declaration on Fundamental Principles and Rights at Work. Due diligence processes and risk impact assessments are the main recommended means for ensuring compliance with companies' commitments to respect international human fights. Because OSH as a conceptual framework and regulatory order is not sufficient to identify the risk of health fights violations to women workers, we argue companies should not anchor their due diligence and risk assessment in OSH conventions and settle for a check-the-box solution …

A (Very Thin) Market For Sovereign Control, W. Mark C. Weidemaier

Faculty Publications

No abstract provided.

Resistance, Resonance And Restoration: How Generative Stories Shape Organisational Futures, Michelle Lebaron, Nadja Marie Alexander

All Faculty Publications

Stories are powerful. They reflect our past and shape our futures, but are never complete. Stories connect us to people in organisations – present and past – with whom we feel belonging, and disconnect us from others. Always abstractive, they give incomplete pictures of what was, weaving past accounts into what is and what will be. Because choice-points in storytelling are mostly unconscious, biases and perceptions are always part of narration, tending to reinforce preferred images, identities and trajectories. Storytelling habits, in turn, often accent negative histories and escalate conflict.

Because stories are so powerful, it is essential to critically …

R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore

All Faculty Publications

The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …

Privacy And Court Records: Online Access And The Loss Of Practical Obscurity, David S. Ardia

Faculty Publications

Court records present a conundrum for privacy advocates. Public access to the courts has long been a fundamental tenant of American democracy, helping to ensure that our system of justice functions fairly and that citizens can observe the actions of their government. Yet court records contain an astonishing amount of private and sensitive information, ranging from social security numbers to the names of sexual assault victims. Until recently, the privacy harms that attended the public disclosure of court records were generally regarded as insignificant because court files were difficult to search and access. But this “practical obscurity” is rapidly disappearing …

Maintaining Power By Manipulating Memory In Rwanda, Thomas A. Kelley Iii

Faculty Publications

No abstract provided.

Marriage Equality And Family Diversity: Comparative Perspectives From The United States And South Africa, Holning S. Lau

Faculty Publications

No abstract provided.

The Free Speech Rights Of University Students, Mary-Rose Papandrea

Faculty Publications

No abstract provided.

Court Fines And Fees: Criminalizing Poverty In North Carolina, Heather Hunt, Gene R. Nichol Jr.

Faculty Publications

No abstract provided.

Reverse Passing, Khaled A. Beydoun, Erika K. Wilson

Faculty Publications

No abstract provided.

Civilizing Criminal Settlements, Russell M. Gold, Carissa Byrne Hessick, F. Andrew Hessick

Faculty Publications

No abstract provided.

Sedimentary Innovation: How Regulation Should Respond To Incremental Change, Cristie Ford

All Faculty Publications

As captivating as paradigm-changing "radical" innovations may be, “sedimentary”, or incremental, innovation – incremental improvements based on imitation, tweaking, bricolage and diffusion – are in fact the main way in which innovation actually develops. In finance, sedimentary innovation is shaped by forces including structural and social networks, a strong first mover advantage, and collective action problems. This piece, which is Chapter 8 in a forthcoming book that considers financial innovation as a regulatory challenge, examines sedimentary innovation in particular. Like innovation generally, sedimentary innovation can profoundly undermine regulation across time. It can bury structures designed to contain it and can …

Tripping The Light Fantastic: A Comparative Analysis Of The European Commission's Proposals For New And Interim Financing Of Insolvent Businesses, Jennifer Payne, Janis P. Sarra

All Faculty Publications

The European Commission published a draft Directive in November 2016, with the aim of ensuring that all Member States have in place an effective mechanism for dealing with viable, but financially distressed, businesses. The draft Directive includes provisions designed to encourage financing for the debtor company, both interim financing to “keep the lights on” for a brief period while the debtor negotiates with its creditors for a resolution to its financial distress, and where possible, to finance implementation of a restructuring plan, called “new financing” in the draft Directive. Creating such a financing regime is a complex and difficult issue, …

Property And Sovereignty: An Indian Reserve And A Canadian City, Douglas C. Harris

All Faculty Publications

Property rights, wrote Morris Cohen in 1927, are delegations of sovereign power. They are created by the state and operate to establish limits on its power. As such, the allocation of property rights is an exercise of sovereignty and a limited delegation of it. Sixty years later, Joseph Singer used Cohen’s conceptual framing in a critical review of developments in American Indian law. Where the US Supreme Court had the opportunity to label an American Indian interest as either a sovereign interest or a property interest, he argued, it invariably chose to the disadvantage of the Indians. Within Canada, Indigenous …

Property In The City: Special Edition Introduction, Douglas C. Harris, Graham Reynolds

All Faculty Publications

Cities concern themselves with the organization of space. Their principal work involves the mapping, zoning, regulating, taxing, developing, owning, protecting, patrolling, and servicing of land. As a result, cities exert considerable control over the rights of use that property owners enjoy, but they also make many uses possible through the building of infrastructure and the provision of services. However, the effects are not unidirectional; the institution of property is not simply inert clay in the hands of a city. Cities govern the actions of owners and, by extension, shape the institution of property, but this multidimensional institution is, in turn, …