Law Commons^™

Revitalizing The Meaning Of Diversity For Racial Justice In Education, Tanya K. Hernandez

Faculty Scholarship

The concept of diversity undermines the true spirit of any affirmative action policy, which is to remedy society's racism and promote racial justice and equality. This is because “diversity” detached from racial justice can signify any human difference unrelated to social inequality. Infusing the notion of “diversity” with the insights from implicit bias research would mean instead considering the goal of “diversity” as a device for making admissions procedures more equitable and justified amidst the continuing implicit bias that can be actually measured. Furthermore, connecting the diversity goal as a device for procedurally addressing

implicit bias in admissions decisions and …

The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation, David Kamin, David Gamage, Ari Glogower, Rebecca Kysar, Darien Shanske, Reuven Aviyonah, Lily Batchelder, J. Clifton Fleming, Daniel Hemel, Mitchell Kane, David Miller, Daniel Shaviro, Manoj Viswanathan

Faculty Scholarship

No abstract provided.

Statutory Interpretation As “Interbranch Dialogue”?, James J. Brudney, Ethan J. Leib

Faculty Scholarship

Much in the field of statutory interpretation is predicated on “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This Article attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.

The Article itself proceeds by using a dialogic and dialectical method. It first develops various positions against “interbranch dialogue.” By invoking arguments from textualism, public choice, and positive political theory, it advances …

The New State Preemption, The Future Of Home Rule, And The Illinois Experience, Nestor M. Davidson, Laurie Reynolds

Faculty Scholarship

This article examines the rise of new forms of state preemption of local government legal authority in states across the nation, a trend that is prompting scholars, advocates, and officials to re-examine the underlying nature of home rule. The article lays out core components of a new approach to home rule that might remedy contemporary shortcomings in the doctrine, then reflects on lessons for reforming home rule from the Illinois experience.

The Tactics Of Title Ix, Aaron J. Saiger

Faculty Scholarship

No abstract provided.

Latin American Racial Equality Law As Criminal Law, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.

State Punishment And Meaning In Life, Youngjae Lee

Faculty Scholarship

No abstract provided.

Fiduciary Constitutionalism: Implications For Self- Pardons And Non-Delegation, Ethan J. Leib, Jed H. Shugerman

Faculty Scholarship

The idea that public servants hold their offices in trust for subject-beneficia-ries and that a sovereign’s exercise of its political power must be constrained by fiduciary standards—like the duties of loyalty and care—is not new. But scholars are collecting more and more evidence that the framers of the U.S. Constitution may have sought to constrain public power in ways that we would today call fiduciary. In this article, we explore some important legal conclu-sions that follow from fiduciary constitutionalism.

After developing some historical links between private fiduciary instruments and state and federal constitutions, we opine on what a fiduciary constitution …

Unraveling The Tax Treaty, Rebecca Kysar

Faculty Scholarship

Coordination among nations over the taxation of international transactions rests on a network of some 2,000 bilateral double tax treaties. The double tax treaty is, in many ways, the roots of the international system of taxation. That system, however, is in upheaval in the face of globalization, technological advances, taxpayer abuse, and shifting political tides. In the academic literature, however, scrutiny of tax treaties is largely confined to the albeit important question of whether tax treaties are beneficial for developing countries. Surprisingly little consideration has been paid to whether developed countries, like the United States, should continue to sign tax …

Deconstitutionalizing Dewey, Aaron J. Saiger

Faculty Scholarship

No abstract provided.

Risk-Averse Contract Interpretation, Aditi Bagchi

Faculty Scholarship

No abstract provided.

Lenders' Roles And Responsibilities In Sovereign Debt Markets, Susan Block-Lieb, W. Mark C. Weidemaier

Faculty Scholarship

Academic and policy debates about the multi-trillion-dollar sovereign debt markets presume these markets are unique. The reason is that sovereigns differ from other borrowers. To the extent observers look elsewhere for guidance, they turn to corporate debt as a comparison. For example, official actors have repeatedly intervened in sovereign debt markets by prodding market participants to draft loan contracts that simulate aspects of corporate bankruptcy. We argue that the conventional view of sovereign debt—though useful to a point—has substantially and unjustifiably limited the academic and policy agenda. Rather than dwell on the unique characteristics of sovereign borrowers, we examine the …

Prosecutors In The Court Of Public Opinion, Bruce A. Green

Faculty Scholarship

No abstract provided.

A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …

Unbundling School, Aaron J. Saiger

Faculty Scholarship

No abstract provided.

A Jewish Perspective On Tom Shaffer: Zecher Tzadik Livracha (May The Memory Of The Righteous Be A Blessing), Russell G. Pearce

Faculty Scholarship

No abstract provided.

Recovering Tech's Humanity, Olivier Sylvain

Faculty Scholarship

No abstract provided.

Contract Creep, Tal Kastner, Ethan J. Leib

Faculty Scholarship

Scholars and judges think they can address the multiple purposes and values of contract law by developing different doctrinal regimes for different transaction types. They think if we develop one track of contract doctrine for sophisticated parties and another for consumers, we can build a better world of contract: protecting private ordering for sophisticated parties and protecting consumers’ needs all at once. Given the growing enthusiasm for laying down these separate tracks and developing their infrastructures, this Article brings a necessary reality check to this endeavor by highlighting for scholars and judges how doctrine in contract law functions in fact: …

America Is Selling Its Seniors Short, Constantine N. Katsoris

Faculty Scholarship

No abstract provided.

Voluntary Obligation And Contract, Aditi Bagchi

Faculty Scholarship

Absent mistake or misrepresentation, most scholars assume that parties who agree to contract do so voluntarily. Scholars tend further to regard that choice as an important exercise in moral agency. Hanoch Dagan and Michael Heller are right to question the quality of our choices. Where the fundamental contours of the transaction are legally determined, parties have little opportunity to exercise autonomous choice over the terms on which they deal with others. To the extent that our choices in contract do not reflect our individual moral constitutions — our values, virtues, vices, the set of reasons we reject and the set …

The Appearance Of Professionalism, Elizabeth B. Cooper

Faculty Scholarship

The dominant image of a lawyer persists: a neatly dressed man wearing a conservative dark suit, white shirt, and muted accessories. Many attorneys can conform to this expectation, but there are a growing number of “outsider” lawyers for whom compliance with appearance norms can challenge their fundamental identities. People of color, women, LGBTQ individuals, religiously observant persons, and those who inhabit intersectional identities are among those who disproportionately remain excluded from the dominant culture and centers of power in the legal profession. Expectations of appearance conformity create profound concerns that go well beyond style preferences, raising questions of autonomy and …

Physician Participation In Lethal Injection, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Neuroscience And The Personalization Of Criminal Law, Deborah W. Denno

Faculty Scholarship

While objective standards of reasonableness permeate most legal disciplines, criminal law has trended toward personalization since the 1960s, when the Model Penal Code introduced conceptions of mental states based on Freudian psychoanalytic theory. Today, advancements in neuroscience offer previously inconceivable insights into living brain structures and damage. This Essay contends that a criminal justice system that uses personalizing neuroscientific evidence will yield better outcomes. This Essay contributes two unique tools to the personalized law debate. First are the results of my two-decade-long Neuroscience Study, in which I have compiled eight hundred criminal cases that addressed neuroscientific evidence in any capacity. …

A Better Approach To Urban Opportunity, Nestor M. Davidson

Faculty Scholarship

No abstract provided.

Mdl And The Allure Of Sidestepping Litigation, Howard M. Erichson

Faculty Scholarship

No abstract provided.

The Role Of Arbitration Counsel In Ensuring Legitimacy And Efficiency, John D. Feerick, Linda Gerstel

Faculty Scholarship

No abstract provided.

Prophetic Patents, Janet Freilich

Faculty Scholarship

In most contexts, making up data is forbidden - considered fraudulent, even immoral. Not so in patents. Patents often contain experimental data, and it is perfectly acceptable for these experiments to be entirely fictional. These so-called “prophetic examples” are not only explicitly permitted by both the Patent Office and federal courts, but are considered equivalent to factual data in patent doctrine. Though prophetic examples are thought to be common, there are no in-depth studies of the practice, nor any explanation for why fictional data are allowed in patents.

Here, I provide the first historical, theoretical, and empirical analysis of prophetic …

The Twenty-Fifth Amendment: Its Crafting And Drafting Process, John D. Feerick

Faculty Scholarship

No abstract provided.

Remarks: Presidential Succession And Impeachment: Historical Precedents, From Indiana And Beyond, John D. Feerick

Faculty Scholarship

No abstract provided.

Science Fiction: Fictitious Experiments In Patents, Janet Freilich, Lisa L. Ouellette

Faculty Scholarship

No abstract provided.