Law Commons^™

The Corporation Reborn: From Shareholder Primacy To Shared Governance, Grant M. Hayden, Matthew T. Bodie

Faculty Journal Articles and Book Chapters

The consensus around shareholder primacy is crumbling. Investors, long assumed to be uncomplicated profit-maximizers, are looking for ways to express a wider range of values in allocating their funds. Workers are agitating for greater voice at their workplaces. And prominent legislators have recently proposed corporate law reforms that would put a sizable number of employee representatives on the boards of directors of large public companies. These rumblings of public discontent are echoed in recent corporate law scholarship, which has cataloged the costs of shareholder control, touted the advantages of nonvoting stock, and questioned whether activist holders of various stripes are …

Brief Of Professor Jeffrey D. Kahn As Amicus Curiae In Support Of Plaintiffs-Appellees, Jeffrey D. Kahn, Andrew T. Tutt

Faculty Journal Articles and Book Chapters

This is an amicus brief that in support of plaintiffs-appellees in Elhady v. Kable, an important terrorist watchlisting case in the United States Court of Appeals for the Fourth Circuit.

Brief Of Jeffrey D. Kahn As Amicus Curiae In Support Of Respondents (Tanzin V. Tanvir), Andrew T. Tutt, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This is an amicus brief filed in the United States Supreme Court in support of the respondents in Tanzin v. Tanvir, a case concerning the Religious Freedom Restoration Act and allegations of egregious conduct by FBI agents retaliating against individuals who resist their encouragement to become informants in their religious communities by using the No Fly List.

Race, Space, And Surveillance: A Response To #Livingwhileblack: Blackness As Nuisance, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

This article is an invited response to an American University Law Review article titled “#LivingWhileBlack: Blackness as Nuisance” that has been widely discussed in the news media and in academic circles.

Disarming Domestic Abusers, Natalie Nanasi

Faculty Journal Articles and Book Chapters

Guns and domestic violence are a deadly combination. Every sixteen hours, a woman is fatally shot by her intimate partner in the United States; the mere presence of a gun in a domestic violence situation increases the risk of homicide for women by 500 percent.

Recognizing these risks, federal law and some states prohibit domestic abusers from possessing firearms. But these laws are not being enforced. Perpetrators of domestic violence are rarely ordered to surrender firearms, and even when they are, there are often no mechanisms to ensure that weapons are safely relinquished.

This Article proposes strategies to disarm domestic …

Law, Race, And The Epistemology Of Ignorance, George A. Martinez

Faculty Journal Articles and Book Chapters

Philosophers and other theorists have developed the field of epistemology which is the study of human knowledge. Critical race theorists have begun to explore how epistemological theory and insights may illuminate the study of race, including the analysis of race and the law. Such use of epistemology is appropriate because theoretical work on knowledge can be used to advance one of the key goals of critical race theory which is to understand how a regime of white supremacy and its subordination of people of color have been created and maintained in America. In this regard, philosophers and other theorists have …

Rebuilding The Texas Railroad Commission, James W. Coleman

Faculty Journal Articles and Book Chapters

This article explains how the Railroad Commission of Texas became the world’s most prominent oil and gas regulator and how it can become the world’s role model again. It explains how the Railroad Commission built the world’s modern oil and gas industry by stopping oil and gas waste and ensuring stable prices. And it describes the crisis now facing the industry—overproduction of oil and gas is wasting resources that will be worth more in the future. The United States is emerging from the biggest oil and gas boom that the world has ever seen and its production now dwarfs that …

Science And The Eighth Amendment, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

As time hurtles forward, new science constantly emerges, and many scientific fields can shed light on whether a punishment is unconstitutionally cruel and unusual, or even on whether bail or fines are unconstitutionally excessive under the Eighth Amendment. In fact, in recent years, science has played an increasingly important role in the Court’s Eighth Amendment jurisprudence. From the development of an offender’s brain, to the composition of lethal injection drugs, even to measurements of pain, knowledge of various scientific fields is becoming central to understanding whether a punishment is unconstitutionally cruel and unusual. There are a number of limits to …

Secret Algorithms, Ip Rights, And The Public Interest, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The secrecy surrounding the algorithms that play a central role in American life today is proving to have alarming effects. Judges and juries are convicting defendants based on secret evidence. Major advertisers like Facebook are discriminating against minorities seeking housing. And Russians may very well be hacking our voting machines to change election outcomes. The algorithm secrecy underlying these results obscures whether such legal outcomes are actually accurate and fair or whether they were based on faulty evidence, affected by bias, or manipulated by outside influences. These are just a handful of the public-interest perils of algorithm secrecy. This Article …

Criminal (Dis)Appearance, Pamela R. Metzger, Janet C. Hoeffel

Faculty Journal Articles and Book Chapters

Across the United States, thousands of newly arrested people disappear. They languish behind bars for days, weeks, or even months without ever seeing a judge or an attorney. Yet, the Supreme Court requires more constitutional process for the seizure “of a refrigerator, the temporary suspension of a public school student, or the suspension of a driver’s license,” than it does for a person who has just been arrested. A new arrestee has no clearly established constitutional right to a prompt initial appearance procedure. As a result, there is no constitutional doctrine that guarantees her the right to appear promptly before …

An International Approach To Maritime Conflicts Of Law, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Essay seeks to answer two interrelated questions about regnant maritime choice of law analysis in the United States: Does it descriptively capture international law as the United States claims? And, if so, is such an approach a good one? In so doing, it aims principally to provide national and international decision makers with a robust and fresh resource for resolving these disputes in a manner, I argue, beneficent to overall social welfare and peaceful relations among states. For only by analyzing the United States’ claim can we tell whether it is true and thus, whether it needs to be …

Patent Eligibility And Investment, David O. Taylor

Faculty Journal Articles and Book Chapters

Have the Supreme Court’s recent patent eligibility cases changed the behavior of venture capital and private equity investment firms, and if so how? This Article provides empirical data about investors’ answers to those important questions. Analyzing responses to a survey of 475 investors at firms investing in various industries and at various stages of funding, this Article explores how the Court’s recent cases have influenced these firms’ decisions to invest in companies developing technology. The survey results reveal investors’ overwhelming belief that patent eligibility is an important consideration in investment decisionmaking, and that reduced patent eligibility makes it less likely …

The Third Age Of Oil And Gas Law, James W. Coleman

Faculty Journal Articles and Book Chapters

History’s biggest oil boom is happening right now, in the United States, ushering in the third age of oil and gas law. The first age of oil and gas law also began in the United States a century ago when landowners and oil companies developed the oil and gas lease. The lease made the modern oil and gas industry possible and soon spread as the model for development around the world. In the second age of oil and gas law, landowners and nations across the globe developed new legal agreements that improved upon the lease and won these resource owners …

Covid-19 And The Ruralization Of U.S. Criminal Court Systems, Pamela R. Metzger, Gregory J. Guggenmos

Faculty Journal Articles and Book Chapters

The COVID-19 pandemic is imposing typically rural practice constraints on the United States' urban and suburban criminal court systems. This "ruralization" of criminal practice offers lawyers, policymakers, and researchers a window into the challenges and opportunities that inhere in rural systems. This is no small matter. For decades, lawmakers, researchers, reformers, and philanthropists have overlooked, undertheorized, and underfunded rural criminal legal

systems-and have done so at great peril. Nearly 20 percent of the nation's population lives in nonmetropolitan areas, where the opioid addiction crisis rages. Rural incarceration increasing dive mass incarceration. The U.S. countryside warehouses the nation's prison populations, and …

The Cultural Logic Of Legal Collaboration: Enduring Lessons From Hopewell, Anna Offit

Faculty Journal Articles and Book Chapters

No abstract provided.

Reproducing Inequality Under Title Ix, Deborah L. Brake, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

Digging Into Algorithms: Legal Ethics And Legal Access, Carla L. Reyes, Jeff Ward

Faculty Journal Articles and Book Chapters

The current discussions around algorithms, legal ethics, and expanding legal access through technological tools gravitate around two themes: (1) protection of the integrity of the legal profession and (2) a desire to ensure greater access to legal services. The hype cycle often pits the desire to protect the integrity of the legal profession against the ability to use algorithms to provide greater access to legal services, as though they are mutually exclusive. In reality, the arguments around protecting the profession from the threats posed by algorithms represent an over-fit in relation to what algorithms can actually achieve, while the visions …

Corporate Lawyers: Ethical And Practical Lawyering With Vanishing Gatekeeper Liability, Marc I. Steinberg

Faculty Journal Articles and Book Chapters

No abstract provided.

Eighth Amendment Values, William W. Berry Iii, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

As with many constitutional provisions, the language of the Eighth Amendment is open-ended and vague in its proscription of excessive bail, excessive fines, and cruel and unusual punishments. Because the language of the Constitution does not provide any additional descriptive information concerning what might make bail or fines excessive, or punishments cruel and unusual, courts must look beyond the text itself to ascertain the meaning of the Eighth Amendment. With respect to the prohibition on cruel and unusual punishments, the U.S. Supreme Court has, over the course of several decades, articulated a number of relevant underlying values that offer some …

Making Sure Pregnancy Works: Accommodation Claims After Young V. United Parcel Service, Inc., Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The Supreme Court’s 2015 ruling in Young v. United Parcel Service, Inc. outlined a new analytical framework for Pregnancy Discrimination Act (PDA) claims that challenge employers’ failure to “accommodate” pregnant workers. That framework was intended to lessen the evidentiary burden on plaintiff-employees in showing that others “similar in their ability or inability to work” were accommodated and to increase the burden on defendant-employers in justifying such differential treatment. In the five years since Young, however, lower courts have been inconsistent in their application of this mandate. In this Article, we survey the precedent that set the stage for Young, …

(Un)Common Law And The Female Body, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

A dissonance frequently exists between explicit feminist approaches to law and the realities of a common law system that has often ignored and even at times exacerbated women’s legal disabilities. In The Common Law Inside the Female Body, Anita Bernstein mounts a challenge to this story of division. There is, and has long been, she asserts, a substantial interrelation between the common law and feminist jurisprudential approaches to law. But Bernstein’s central argument, far from disrupting broad understandings of the common law, is in keeping with a claim that other legal scholars have long asserted: decisions according to precedent, …

Lgbt Equality, Religious Liberty, And Masterpiece Cakeshop, Dale Carpenter

Faculty Journal Articles and Book Chapters

No abstract provided.

The New Oil And Gas Governance, Tara K. Righetti, Hannah Jacobs Wiseman, James W. Coleman

Faculty Journal Articles and Book Chapters

As technologies change and the scale of human activity grows, so too does the law. The surge of oil and gas production in the United States, spurred by hydraulic fracturing in shale formations, has fomented a sea change in oil and gas law, substantially infusing this area with more complex environmental and property principles. Widespread demands for legal and policy-based solutions to the environmental and social impacts of oil production and fracking have transformed the field from one focused on maximizing fossil fuel production into one of environmental conservation. This is dramatically demonstrated by sweeping Colorado legislation in 2019, changes …

Kirsten Swinth. Feminism’S Forgotten Fight: The Unfinished Struggle For Work And Family, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

Secret Conviction Programs, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.

Escaping The Fingerprint Crisis: A Blueprint For Essential Research, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

There is a fingerprint crisis in the courts. Judges and jurors regularly convict criminal defendants based on fingerprint evidence, but there are serious questions about the accuracy and reliability of this evidence. The few studies delving into the accuracy and reliability of fingerprint examiners’ work suggest a high error rate and demonstrate that, when faced with the same prints under different conditions, fingerprint examiners frequently reach different results than they previously reached. Further, there is no scientific basis for fingerprint matching. It is unknown whether and to what extent fingerprints are unique; the degree to which fingerprints change under various …

(Un)Corporate Crypto-Governance, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Public blockchain protocols face a serious governance crisis. Thus far, blockchain protocols have followed the path of early Internet governance. If the architects of blockchain protocols are not careful, they may suffer a similar fate — increasing governmental control, greater centralization, and decreasing privacy. As blockchain architects begin to consider better governance structures, there is a legal movement underway to impose a fiduciary framework upon open source software developers. If the movement succeeds, the consequences for open source software development could be dire. If arbitrarily imposed upon blockchain communities without consideration of variances among communities or the reality of how …

“Lawyers’ Work”: Does The Court Have A Legitimacy Crisis?, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

No abstract provided.

An Unstable Core: Self-Defense And The Second Amendment, Eric Ruben

Faculty Journal Articles and Book Chapters

In District of Columbia v. Heller, the Supreme Court announced for the first time that self-defense, not militia service, is the “core” of the right to keep and bear arms. However, the Court failed to articulate what that means for the right’s implementation. After Heller, most courts deciding Second Amendment questions have mentioned self-defense only superficially or not at all. Some courts, however, have run to the opposite extreme, leaning heavily on the platitude that firearms have utility for lawful self-defense as a rationale for effectively immunizing them from regulation. This Article examines that inconsistency and considers whether self-defense law …