Law Commons^™

The Due Process Bona Fides Of Executive Self-Pardons And Blanket Pardons, Peter Brandon Bayer

Scholarly Works

Contrary to much commentary and possibly some seemingly settled law, this essay argues that an American President (or a similarly situated state officer or office) may issue individual and "blanket"-or mass-clemency benefiting classes of named or unnamed individuals, and in addition may pardon himself, but only if doing so comports with the principles of fundamental fairness that define due process of law under the Constitution's Fifth and Fourteenth Amendments. Accordingly, the Constitution permits acts of clemency to foster mercy, compassion, and forgiveness, or to promote the purported best interests of the nation, or even to further an executive's political advantages, …

Deontological Originalism: Moral Truth, Liberty, And, Constitutional Due Process: Part I - Originalism And Deontology, Peter Brandon Bayer

Scholarly Works

This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation …

Intimate Liberties And Antidiscrimination Law, Deborah A. Widiss

Articles by Maurer Faculty

In assessing laws that regulate marriage, procreation, and sexual intimacy, the Supreme Court has recognized a “synergy” between guaranteeing personal liberties and advancing equality. Courts interpreting the antidiscrimination laws that govern the private sector, however, often draw artificial and untenable lines between “conduct” and “status” to preclude protections for individuals or couples who face censure because of their intimate choices. This Article exposes how these arguments have been used to justify not only discrimination against the lesbian and gay community, but also discrimination against heterosexual couples who engage in non-marital intimacy or non-marital childrearing.

During the 1980s and 1990s, several …

Deontological Originalism: Moral Truth, Liberty, And, Constitutional Due Process: Part Ii - Deontological Constitutionalism And The Ascendency Of Kantian Due Process, Peter Brandon Bayer

Scholarly Works

This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation …

Judicial Power, The Judicial Power Project And The Uk, Paul Craig

Articles by Maurer Faculty

It is axiomatic that all power requires justification, and that is equally true for judicial power as for other species thereof. This article is primarily concerned with judicial power in the UK. The subject will be approached through consideration of the Judicial Power Project, which has been critical of the courts, much of this being sharp-edged, and fierce. There is repeated talk of judicial overreach and consequent legitimacy crisis, as the courts are said to encroach on terrain that is properly the preserve of the political branch of government.

It is by the same token important that the critics are …

Laws, Norms, And The Institutional Analysis And Development Framework, Daniel H. Cole

Articles by Maurer Faculty

Elinor Ostrom’s Institutional Analysis and Development (IAD) framework has been described as ‘one of the most developed and sophisticated attempts to use institutional and stakeholder assessment in order to link theory and practice, analysis and policy’. But not all elements in the framework are sufficiently well developed. This paper focuses on one such element: the ‘rules-in-use’ (a.k.a. ‘rules’ or ‘working rules’). Specifically, it begins a long-overdue conversation about relations between formal legal rules and ‘working rules’ by offering a tentative and very simple typology of relations. Type 1: Some formal legal rules equal or approximate the working rules; Type 2: …

Introduction: The American Law Institute's Restatement Of Employment Law: Comments And Critiques, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

No abstract provided.

Predictive Analytics' Punishment Mismatch, Jessica M. Eaglin

Articles by Maurer Faculty

No abstract provided.

A Regulatory Theory Of Legal Claims, Maria J. Glover

Vanderbilt Law Review

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve "substantive justice" and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims-are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions …

The Prisonization Of America's Public Schools, Maryam Ahranjani

Scholarly Works

No abstract provided.

End Of The Racial Age: Reflections On The Changing Racial And Ethnic Ancestry Of Blacks On Affirmative Action, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Charitable Trademarks, Leah Chan Grinvald

Scholarly Works

Charity is big business in the United States. In 2015, private individuals or entities donated over $350 billion, which accounted for approximately two percent of the gross domestic product in the United States. Even though this seems like big money, these donations were split among over 1.5 million organizations. And each year, the number of charitable organizations grows and therefore, the competition for public donations increases. In part to succeed in such competition, some charitable organizations have turned to branding and trademarks as a way to differentiate their entities and to encourage donations. Drawing from the for-profit branding and trademarking …

Constructing Citizenship Through War In The Human Rights Era, Timothy W. Waters

Articles by Maurer Faculty

War's historical relationship to the creation of territorial nation-states is well known, but what empirical and normative role does war play in creating the citizen in a modern democracy? Although contemporary theories of citizenship and human rights do not readily acknowledge a legitimate, generative function for war - as evidenced by restrictions on aggression, annexation of occupied territory, expulsions, denationalization, or derogation of fundamental rights - an empirical assessment of state practice, including the interpretation of international legal obligations, suggests that war plays a powerfully transformative role in the construction of citizenship, and that international law and norms implicitly accept …

Corporate Masters & Low-Wage Servants: The Social Control Of Workers In Poverty, Nantiya Ruan

Scholarly Works

The Article describes and analyzes how the state’s control over low-wage workers has been relegated to private employers. While the state has historically controlled and limited the lives of poor people, today, people in poverty are subjugated through the privatizing of poverty governance by corporate masters who control the lives and shape the behaviors of their low-wage worker servants. The policies of these employers ensures that low-wage work is precarious, unpredictable, and insufficient.

This Article starts an important conversation about how today’s low-wage employers are corporate masters that control their servants through poverty-level pay and precarious positions. Work is scheduled …

President Trump, Trade Policy, And American Grand Strategy: From Common Advantage To Collective Carnage, David P. Fidler

Articles by Maurer Faculty

As a candidate for president of the United States, Donald J. Trump promised to abandon longstanding U.S. approaches to trade and pursue strategies anchored in protectionism and nationalism. This article examines President Trump’s trade policy ideas and proposals and highlights the extent to which he intends to disrupt traditions of U.S. policymaking on trade. The article also analyzes whether domestic and international politics might shift the Trump administration away from a radical approach back towards trade policies that approximate how the United States has managed trade for decades. If such a shift does not occur, the Trump administration’s trade policy …

Discovering Forensic Fraud, Jennifer Oliva, Valena Beety

Articles by Maurer Faculty

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny.

In the criminal system, the near absence of any pretrial discovery means …

Courtesy Paratexts, Informal Publishing Norms And The Copyright Vacuum In Nineteenth-Century America, Robert Spoo

Articles, Chapters in Books and Other Contributions to Scholarly Works

In response to the failure of U.S. copyright law to protect foreign authors, nineteenth-century American publishers evolved an informal practice called the “courtesy of the trade” as a way to mitigate the public goods problem posed by a large and ever-growing commons of foreign works. Trade courtesy was a shared strategy for regulating potentially destructive competition for these free resources, an informal arrangement among publishers to recognize each other’s wholly synthetic exclusive rights in otherwise unprotected writings and to pay foreign authors legally uncompelled remuneration for the resulting American editions. Courtesy was, in effect, a makeshift copyright regime grounded on …

In Praise Of Legal Scholarship, Tamara R. Piety

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Role Of Prejudice In Resolving Insurance Condition Clause Disputes: The Good; The Bad; The Ugly, Johnny Parker

Articles, Chapters in Books and Other Contributions to Scholarly Works

This Article examines the legal consequences that flow out of an insurance company’s denial of coverage based on an insured’s failure to comply with policy conditions. Specifically, this Article examines the various methods used by courts to strike a balance between the principle of freedom of contract and policy norms associated with resolving condition clause disputes. The pros and cons of the historical condition precedent vs. condition subsequent analysis and the modern day functional approach to contractual interpretation are dissected and discussed in the insurance contract context. The prejudice rule, which is associated with the functional approach to contract interpretation, …

Active Judging And Access To Justice, Anna E. Carpenter

Articles, Chapters in Books and Other Contributions to Scholarly Works

“Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …

Inconsistent Rationales For Capital Punishment Plus, Russell Christopher

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Retributivism And Criminal Procedure, Stephen Galoob

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Involuntarily Committed Patients As Prisoners, Matt Lamkin, Carl Elliott

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Tribal Labor Sovereignty Act: Do Indian Tribes Finally Hold A Trump Card?, Vicki J. Limas

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Exculpation As Inculpation, Russell L. Christopher

Articles, Chapters in Books and Other Contributions to Scholarly Works

Should a criminal defendant who contrives, creates, or causes the conditions of her own defense forfeit the defense? For example, suppose a provocateur taunts a provocatee into unlawfully attacking so that the provocateur may justifiably kill in self-defense. There are two competing approaches. Under the principle that defense-contrivers have "unclean hands," the predominant approach of the criminal law is to bar the defense (the Legal approach). Disagreeing, most criminal theorists advocate both granting the contrived defense and, seemingly paradoxically, imposing criminal liability for culpably contriving the defense (the Theoretical approach). That is, seeking exculpation is itself inculpatory. The Theoretical approach …

Efficiency Engines: How Managed Services Are Building Systems For Corporate Legal Work, William D. Henderson

Articles by Maurer Faculty

No abstract provided.

Reproductive Selection Bias, Lauren R. Roth

Scholarly Works

Decades after the advent of assisted reproductive technology (ART) that allows prospective parents to deselect embryos with grave genetic illnesses – a procedure called preimplantation genetic diagnosis (PGD) – it remains a tool largely of upper class whites. In the wake of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, I argue that the time has come to focus on access in this area of reproductive rights. The next logical step is to rebut the presumption that reproductive liberty is only a negative right that prevents government interference with decisions about whether and how to procreate or not …

Redefining Medical Care, Lauren R. Roth

Scholarly Works

President Donald J. Trump has said he will replace the Affordable Care Act (ACA) with health savings accounts (HSAs). Conservatives have long preferred individual accounts to meet social welfare needs instead of more traditional entitlement programs. The types of “medical care” that can be reimbursed through an HSA are listed in § 213(d) of the Internal Revenue Code (Code) and include expenses “for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.”

In spite of the broad language, regulations and court interpretations have narrowed this definition substantially. …

The Definition Of Negotiation: A Play In Three Acts, Noam Ebner, John Lande, David Matz, Andrea Kupfer Schneider

Journal of Dispute Resolution

This Article is based on a conversation between Andrea, Noam, and David as they drove to the airport following the Tower of Babel symposium. Then, John metaphorically joined the ride and participated in the quest to find a good definition of negotiation.

Using The Terms Integrative And Distributive Bargaining In The Classroom: Time For Change?, Rishi Batra

Journal of Dispute Resolution

The terms “integrative bargaining” and “distributive bargaining” have been with us in the dispute resolution literature since at least the 1960's, when A Behavioral Theory of Labor Negotiations was first published in 1965 by Richard Walton and Robert McKersie. While the terms were popularized by these two authors, the authors themselves acknowledged the long line of predecessors, including Mary Parker Follett, who led them to promote these categories. Since that time, “integrative” and “distributive” have been with us, and have captured the imagination of scholars, trainers, and practitioners, while remaining popular in the dispute resolution literature today. Despite the proliferation …