Law Commons^™

Gains, Losses, And Judges: Framing And The Judiciary, Jeffrey J. Rachlinski, Andrew J. Wistrich

Cornell Law Faculty Publications

Losses hurt more than foregone gains-an asymmetry that psychologists call "loss aversion." Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people's preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are so pervasive …

Hb 701 - Public Officers And Employees, Michael C. Freeman Jr., Monica Laredo Ruiz

Georgia State University Law Review

The Act amends Georgia’s statute to give state employers the authority to drug test certain applicants to various public positions. The Act adds opioids, opioid analgesics, and opioid derivatives to the list of drugs for which state employers may screen.

The Private Insurance Market: Not Very Big And Not Insuring Much, Either, Jacqueline R. Fox

Faculty Publications

Creating a single national health insurance pool is not likely to destabilize the economy by supplanting the private health insurance industry. This industry insures a relatively small percentage of the population and holds very little of the risk such insurance implies. In effect, insurance companies function as middlemen, bundling risk packages to distribute to other, larger companies and so serve a limited purpose. Were insurers to handle claims for a national pool as they do for the Medicare program, any destabilization to the economy more broadly would be further minimized.

Plea Agreements As Constitutional Contracts, Colin Miller

Faculty Publications

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes. Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion. No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes. This gap is concerning given that ninety-five percent of criminal cases …

Reinvigorating The Perceived Potential Competition Theory: An Analysis Of The Potential Competition Doctrine And Ftc V. Steris Corp., Henry S. Klimowicz

Seton Hall Law Review

No abstract provided.

Standing A Chance: Does Spokeo Preclude Claims Alleging The Violation Of Certain State Data Breach Laws?, Taryn Elliott

Seton Hall Law Review

No abstract provided.

Board Of Officers - Vol. 49, No. 1 2018

Seton Hall Law Review

No abstract provided.

History And Harvard Law School, Bruce A. Kimball, Daniel R. Coquillette

Fordham Law Review

In their seminal article, Alfred Konefsky and John Henry Schlegel saw institutional histories of law schools as the graveyard of academic reputations. So why write institutional histories? Due to the leadership of Robert Kaczorowski and William Nelson, and the generosity of Fordham University School of Law and New York University School of Law, an important conference took place between July 2 and July 4, 2018, at New York University’s Villa La Pietra outside of Florence. The purpose was to encourage good institutional history and to define its value. We had recently published the first volume of a new history of …

Essay: Developing Appropriate Standards For Achieving Diversity In Faculty Appointments, Guido Calabresi

Fordham Law Review

I am writing today to talk about diversity within law school faculties. And when I say “diversity,” I mean all sorts of diversities, not just the ones that most of those who address the issue tend to focus on. I have, for many years, been thinking about the different types of diversities that seem crucial to a law school, and the appropriate ways of achieving them. Part I lists the categories of diversity that I think are important to considering diversity within law school faculties. It then indicates a problem that inheres with this list. Part II suggests how different …

Front Matter, North Carolina Journal Of Law & Technology

North Carolina Journal of Law & Technology

No abstract provided.

Juries In U.S. Patent Cases: A Comparative Portrait Of The Boundaries Of Democracy, M. Neil Browne, Nancy K. Kubasek, Alex Q. Jacobs

North Carolina Journal of Law & Technology

“It is clear that juries will necessarily differ in ‘competence,’ but it is at best incongruous to suggest that a society that sends its citizens routinely into space could never produce a jury competent to determine a case some judge might consider too ‘complex’ for people with ‘common experience’ to decide.”

Subject Matter Eligibility And Functional Claiming In Software Patents, Michael Xun Liu

North Carolina Journal of Law & Technology

Subject matter eligibility and functional claiming are considered separate doctrines in patent law. Conceptually, subject matter eligibility relates to the types of ideas that can be patented, whereas limits on functional claiming constrain how patentees can claim their inventions. In practice, however, patents that recite functional claims are also more likely to be invalidated for failing to recite patentable subject matter. This trend is especially prevalent in the software field, where courts often hold the function or end result of a computer program represents an unpatentable abstract idea.

Critics argue this judicial approach to software patents improperly conflates “what is …

Carpenter V. United States: A New Era For Protecting Data Generated On Personal Technology, Or A Mere Caveat?, Aaron L. Dalton

North Carolina Journal of Law & Technology

In deciding Carpenter, a majority of United States Supreme Court Justices recognized that, at a fundamental level, historical cell-site location information (CSLI) differs from other categories of business records in terms of deserving Fourth Amendment protection. However, the majority’s opinion is unclear about the precise source of this distinction, and about how, or whether, to protect other data generated from personal technology in the future. Although the majority opinion purports to be limited to CSLI, this narrow scope is not in the best interest of consumers. At best, Carpenter presents the opportunity to establish a predictable and comprehensive system for …

Parametric Payouts And Evironmental Conservation: How A Tech-Based Insurance Policy Could Pave The Way For Economically Viable Conservation Efforts, Hannah M. Petersen

North Carolina Journal of Law & Technology

This year, the state government of Quintana Roo, Mexico, the Nature Conservancy, and the reinsurance company, Swiss Re, created the first parametric insurance policy to be taken out on a natural resource; the Mesoamerican Reef. This innovative policy creates a technology-based approach to establishing economically viable environmental conservation by assigning a quantitative value to a vulnerable resource that protects the $10 billion tourism industry in the Caribbean. It also creates an entirely new and unregulated subsector of the insurance field. Although this type of policy sets the stage for innovative environmental conservation efforts, parameters and payout mechanisms might not align …

La Crypto Nostra: How Organized Crime Thrives In The Era Of Cryptocurrency, Chelsea Pieroni

North Carolina Journal of Law & Technology

The advent of Bitcoin and other forms of cryptocurrency has left a permanent mark on the world as we know it, regardless of what percentage of the populace will ever touch or comprehend cryptocurrency in its lifetime. Thanks to the advent of blockchain technology, cryptocurrency has given rise to expedited international exchanges, increased protection of consumer identity, and secured methods for logging transactions. But cryptocurrency’s nebulous nature makes it inherently vulnerable to a slew of hacks, cyberattacks, and run-of-the-mill theft. Moreover, its indeterminate qualities make cryptocurrency incredibly difficult for federal law to wrangle. But, perhaps most chillingly, the rise of …

Tracking Predators: Microchip Implants, A Constitutional Alternative To Gps Tracking For North Carolina?, Alex Rutgers

North Carolina Journal of Law & Technology

The North Carolina Court of Appeals’ recent decision in State v. Grady held that the State of North Carolina failed to prove the reasonableness of continuing Satellite Based Monitoring (SBM) for the lifetime of a sex offender. It is the State’s burden to prove the necessity, and looking at the totality of the circumstances, the court found two factors significant in determining that lifetime SBM is unreasonable: the physical intrusion of the SBM device, and the continuous GPS monitoring. In light of the court’s holding that SBM affected a Fourth Amendment search (which was unreasonable even for a convicted sex …

Munchee Inc.: A Turning Point For The Cryptocurrency Industry, Matthew J. Higgins

North Carolina Law Review

No abstract provided.

The First Amendment In The Second Gilded Age, Jack M. Balkin

Buffalo Law Review

How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a …

The Orwell Court: How The Supreme Court Recast History And Minimized The Role Of The U.S. Sentencing Guidelines To Justify Limiting The Impact Of Johnson V. United States, Brandon E. Beck

Buffalo Law Review

In recent years, federal criminal defendants have enjoyed great success in challenging “residual clauses” within the United States Code as unconstitutional. This began in 2015 when the United States Supreme Court, in Johnson v. United States,1 struck a portion of the Armed Career Criminal Act2 as void for vagueness. Johnson’s holding at first appeared monumental because it invalidated a provision commonly used to enhance the prison sentences of offenders with certain qualifying prior convictions. Subsequent developments, however, significantly dulled the impact of Johnson, thwarting the dramatic reduction in sentences it once foreshadowed.

This Article is about how Johnson came to …

Palsgraf-Ian Proximate Cause And Insurance Law: The State Of New York Additional Insured Coverage Following Burlington Insurance Co. V. Nyc Transit Authority, Ryan P. Maxwell

Buffalo Law Review

No abstract provided.

Finding A Better Way Around Employment At Will: Protecting Employees’ Autonomy Interests Through Tort Law, William R. Corbett

Buffalo Law Review

No abstract provided.

No.45 - December 2018, Center Of Civil Law Studies

The Center of Civil Law Studies Newsletter

No abstract provided.

The Purpose (And Limits) Of The University, John Inazu

Utah Law Review

Scholars of the university have produced volumes about growing pressures on the coherence and purpose of institutions of higher education. Meanwhile, legal scholars’ writing about the university has typically focused on its First Amendment dimensions. This Article links insights from these two groups of scholars to explore the purpose of the university and defend it against increasing technological, ideological, and cultural pressures. It argues that a better understanding of the relationship between the First Amendment and the university can help strengthen the coherence of the university’s purpose against these pressures. The connection between the First Amendment and institutional purpose is …

Tax Law’S Loss Obsession, Emily Cauble

Utah Law Review

This Article will address tax law’s inconsistent treatment of gains and losses—focusing in particular on certain instances in which a taxpayer is prevented from shifting a built-in loss to another taxpayer but would be allowed to shift a built-in gain to another taxpayer. The article will explore whether any legitimate justification can explain the inconsistency. Finding no such legitimate justification for at least some of the examples, this Article will conclude that lawmakers ought to have also addressed gains and the failure to do so results from lawmakers crafting an overly narrow response that addressed only the most recent, high-profile …

How To Sue A Robot, Roger Michalski

Utah Law Review

We are entering the age of robots where autonomous robots will drive our cars, milk cows, drill for oil, invest in stock, mine coal, build houses, pick strawberries, and work as surgeons. Robots, in mimicking the work of humans, will also mimic their legal liability. But how do you sue a robot? The current answer is that you cannot. Robots are property. They are not entities with a legal status that would make them amendable to sue or be sued. If a robot causes harm, you have to sue its owner. Corporations used to be like this for many procedural …

Halted Innovation: The Expansion Of Federal Jurisdiction Over Medicine And The Human Body, Myrisha S. Lewis

Utah Law Review

Modern medical innovations are blurring the line between medical practice and medical devices and drugs. Historically, many techniques have been developed in medicine, without any interference from the federal government, as medical practice is (and has historically been) an area of state jurisdiction. Over the past two decades, however, the U.S. Food and Drug Administration (FDA) has been exerting jurisdiction over the human body and the practice of medicine by targeting new medical techniques for oversight and subjecting the continued use of those treatments to onerous and legally questionable regulatory requirements that hinder the use of those treatments in practice. …

Applying Tort Law To Fabricated Digital Content, Michael Scott Henderson

Utah Law Review

Advances in computer technologies have led to the development of new tools to edit and disseminate digital media. Some of these new tools allow users to fabricate digital media by editing video and audio recordings of individuals to make it appear as if they are saying or doing things they have not actually said or done. The rise of these new technologies will lead to litigation by individuals who are harmed by the misuse of fabricated digital media. These individuals will be able to rely on several common law torts—such as defamation, misappropriation, false light, and intentional infliction of emotional …

The Theory And Practice Of Contestatory Federalism, James A. Gardner

Journal Articles

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed …

Neuromarks, Mark Bartholomew

Journal Articles

This Article predicts trademark law’s impending neural turn. A growing legal literature debates the proper role of neuroscientific evidence. Yet outside of criminal law, analysis of neuroscientific evidence in the courtroom has been lacking. This is a mistake given that most of the applied research into brain function focuses on building better brands, not studies of criminal defendants’ grey matter. Judges have long searched for a way to measure advertising’s psychological hold over consumers. Advertisers already use brain imaging to analyze a trademark’s ability to stimulate consumer attention, emotion, and memory. In the near future, businesses will offer a neural …

Mens Rea In Comparative Perspective, Luis E. Chiesa

Journal Articles

This Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. …