Law Commons^™

The Restoration Remedy In Private Law: A Novel Approach To Compensation For Emotional Harm, Omri Ben-Shahar, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

In Defense Of The Fee Simple, Katrina M. Wyman

Notre Dame Law Review

Prominent economically oriented legal academics are currently arguing that the fee simple, the dominant form of private landownership in the United States, is an inefficient way for society to allocate land. They maintain that the fee simple blocks transfers of land to higher value uses because it provides property owners with a perpetual monopoly. The critics propose that landownership be reformulated to enable private actors to forcibly purchase land from other private owners, similar to the way that governments can expropriate land for public uses using eminent domain. While recognizing the significance of the critique, this Article takes issue with …

Courting Disaster: Climate Change And The Adjudication Of Catastrophe, R. Henry Weaver, Douglas A. Kysar

Notre Dame Law Review

Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This Article examines global climate change adjudication to shed light on these questions, focusing particularly on cases that seek to invoke the norm articulation and enforcement functions of courts. The attempt to configure climate-related harms within such substantive frameworks as tort and constitutional law is fraught with analytical and practical difficulties. Yet the exercise, we argue, is essential. Against the backdrop …

The Privatized American Family, Maxine Eichner

Notre Dame Law Review

Part I of this Article describes the privatized-family model that dominates U.S. law and policy today, as well as the negative effects this model is having in the contemporary United States. Part II turns to U.S. history, investigating the national conversation regarding the appropriate relationship among the government-market-family triad. As historian Robert Self put it, competing narratives of the place of families are “deeply etched in competing narratives of national identity,” and are fundamental to our social contract. Part II first considers the narratives that supported the rise of the twentieth-century welfare state, which regulated the market to support families. …

Kingsley Breathes New Life Into Substantive Due Process As A Check On Abuse Of Government Power, Rosalie Berger Levinson

Notre Dame Law Review

Part I of this Article briefly summarizes the origin and judicial development of substantive due process, focusing on the lead cases that have led appellate courts to narrowly construe the substantive due process guarantee. Part II discusses the Kingsley opinion, both the majority’s analysis and the dissent’s objection to the use of an objective reasonableness test. Part III suggests how Kingsley can be used by litigators seeking to protect pretrial detainees, not only from excessive force, but also from an official’s failure to protect or failure to care for the medical and other needs of pretrial detainees. Part IV explains …

(Un)Common Law Protection Of Certification Marks, Michelle B. Smit

Notre Dame Law Review

Part I of this Note defines and examines the general principles of certification marks. From that foundation, Part II provides an overview of the case law on unregistered common law certification marks. Part III analyzes the reasons why abuses of certification marks would increase under a commonlaw regime and posits that certification marks, therefore, should only exist under federal law. Finally, Part IV proposes several adjustments that should be made to the current certification mark registration system in order to address existing shortcomings that affect both consumers and third-party businesses.

Cultivating Legal Research Skills, Jan B. Bissett, Margi Heinen

Library Scholarly Publications

No abstract provided.

Algorithmic Jim Crow, Margaret Hu

Faculty Publications

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …

Book Review: Choreographing Copyright: Race, Gender, And Intellectual Property Rights In American Dance By Anthea Kraut, Carys Craig

Articles & Book Chapters

Dance may be one of the world’s oldest art forms, but it is a relatively recent entrant into the sphere of copyright law—and remains something of an afterthought amongst copyright lawyers and scholars alike. For copyright scholars, at least, that should change with the publication of Anthea Kraut’s CHOREOGRAPHING COPYRIGHT: RACE, GENDER, AND INTELLECTUAL PROPERTY RIGHTS IN AMERICAN DANCE. Kraut performs a fascinating exploration of the evolution of choreographic copyright—sweeping, political, polemical—that should leave no one in doubt as to the normative significance of choreography as a subject matter of copyright law and policy. Nor should doubt remain as to …

Prisoners With Disabilities, Margo Schlanger

Book Chapters

A majority of American prisoners have at least one disability. So how jails and prisons deal with those prisoners’ needs is central to institutional safety and humaneness, and to reentry success or failure. In this chapter, I explain what current law requires of prison and jail officials, focusing on statutory and constitutional law mandating non-discrimination, accommodation, integration, and treatment. Jails and prisons have been very slow to learn the most general lesson of these strictures, which is that officials must individualize their assessment of and response to prisoners with disabilities. In addition, I look past current law to additional policies …

Improving Access To Justice In State Courts With Platform Technology, J. J. Prescott

Articles

Access to justice often equates to access to state courts, and for millions of Americans, using state courts to resolve their disputes—often with the government—is a real challenge. Reforms are regularly proposed in the hopes of improving the situation (e.g., better legal aid), but until recently a significant part of the problem has been structural. Using state courts today for all but the simplest of legal transactions entails at the very least traveling to a courthouse and meeting with a decision maker in person and in a one-on-one setting. Even minimally effective access, therefore, requires time, transportation, and very often …

Contracts Ex Machina, Kevin Werbach, Nicolas Cornell

Articles

Smart contracts are self-executing digital transactions using decentralized cryptographic mechanisms for enforcement. They were theorized more than twenty years ago, but the recent development of Bitcoin and blockchain technologies has rekindled excitement about their potential among technologists and industry. Startup companies and major enterprises alike are now developing smart contract solutions for an array of markets, purporting to offer a digital bypass around traditional contract law. For legal scholars, smart contracts pose a significant question: Do smart contracts offer a superior solution to the problems that contract law addresses? In this article, we aim to understand both the potential and …

Deterrence & Security Assistance: The South China Sea, Tommy Ross

The US Army War College Quarterly: Parameters

This article identifies how the United States can apply security assistance to support regional security in the South China Sea in order to counter China’s assertive expansion strategy.

Unprecedented? Judicial Confirmation Battles And The Search For A Usable Past, Josh Chafetz

Cornell Law Faculty Publications

Recent years have seen intense conflicts over federal judicial appointments, culminating in Senate Republicans' 2016 refusal to consider the nomination of Merrick Garland to the Supreme Court, Senate Democrats' 2017 filibuster of Neil Gorsuch's nomination to the same seat, and Republicans' triggering of the "nuclear option" to confirm Gorsuch. At every stage in this process, political actors on both sides have accused one another of "unprecedented" behavior.

This Essay, written for the 2017 Supreme Court issue of the Harvard Law Review, examines these disputes and their histories, with an eye toward understanding the ways in which discussions of (un)precedentedness …

State Criminal Appeals Revealed, Michael Heise, Nancy J. King, Nicole A. Heise

Cornell Law Faculty Publications

Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments. We focus on two subpools of state …

Caught In A Haze: Ethical Issues For Attorneys Advising On Marijuana, Anna El-Zein

Missouri Law Review

No abstract provided.

Narrative Reform Dilemmas, Mariela Olivares

Missouri Law Review

No abstract provided.

Research In The Jury Room, Ariel Monroe Kiefer

Missouri Law Review

No abstract provided.

The Hacking Of Employment Law, Charlotte S. Alexander, Elizabeth Tippett

Missouri Law Review

No abstract provided.

Shareholder Nomination Restrictions: A Corporate Governance Mystery, Aristotle A. Butler

Missouri Law Review

No abstract provided.

Table Of Contents

Missouri Law Review

No abstract provided.

Teamsters Local 222 And John And Jane Does 1-23 Appellees/Plaintiffs, Supreme Court No. 20170208-Sc Vs. Utah Transit Authority, Appellant/Defendant, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

On appeal from the Third Judicial District, Salt Lake County Honorable Ryan M. Harris, District Court No. 140902884

Honey Bees & Neonicotinoids: Why Pollinators Need More Protections, Katherine Headley

Northern Illinois University Law Review

Honey bees are essential for the pollination of copious amounts of fruits, vegetables, and nuts. However due to several factors, including the use of highly toxic pesticides like neonicotinoids, honey bee populations are decreasing at an alarming rate. This Note explores the history of neonicotinoids and their connection to honey bee health before examining several municipal, state, and federal actions taken to curb honey bee loss. This Note proposes that there be a federal baseline for restricting the use of neonicotinoids throughout the United States while allowing individual states to create additional standards based upon specific types of agriculture within …

Safeguarding Judicial Integrity By Making The Executive Branch's Unfettered Amicus Gateway Transparent: An Argument For The Supreme Court To Exercise Its Inherent Authority To Make Public The President's Tax And Investment Records, Joshua Kastenberg

Northern Illinois University Law Review

When the executive branch submits an amicus brief to the federal appellate courts, and most importantly, to the Supreme Court, it has the strength of being considered under a standard of "the best interest of the United States." This enables a considerable advantage, but without the safeguards commensurate for ensuring that the standard is maintained. Other amicus actors must file a corporate interest statement of other type of disclosure that the Solicitor General is exempt from doing. The history of the Solicitor General should also provide skepticism that the federal courts are immune from being used for nefarious reasons. This …

Terry V. Ohio At 50: What It Created, What It Has Meant, Is It Under Attack And Is The Court Opening The Door To Police Misconduct?, Jeffrey D. Swartz

Northern Illinois University Law Review

Fifty years ago, the United States Supreme Court issued their opinion in Terry v. Ohio. The underpinnings of this decision became the bedrock of Fourth Amendment jurisprudence. This article re-examines that decision, and its effect on the development of Fourth Amendment jurisprudence. What is the lasting effect, if any, of Utah v. Strieff and Heien v. North Carolina on Terry? Ultimately, this article is designed to bring the issues forward, and challenge the reader to examine what appears to be innocuous cases, the subtle attack on Terry's objective standards and the individual protections the case created, and whether, after fifty …

2017 Tax Conference Forms

William & Mary Annual Tax Conference

No abstract provided.

2017 Schedule

William & Mary Annual Tax Conference

No abstract provided.

Recent Changes To Rules Governing Disguised Sale And Debt Allocations, Blake D. Rubin, Andrea M. Whiteway, Maximilian Pakaluk

William & Mary Annual Tax Conference

No abstract provided.

Resolving Identity Theft Issues (Powerpoint), Diana Leyden, Keith Fogg, Craig D. Bell

William & Mary Annual Tax Conference

No abstract provided.

Don't Discount Discounts: Valuation Of Closely Held Businesses In A Changing Regulatory Environment, William I. Sanderson, Michael H. Barker

William & Mary Annual Tax Conference

No abstract provided.