Law Commons^™

Remote Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay. The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over. To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020. The survey responses were supplemented with direct observations of remote plea hearings …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

Selling Out: An Instrumentalist Theory Of Legal Ethics, Keith N. Hylton

Faculty Scholarship

Legal ethics has received attention mostly from scholars who view it as a field for the application of moral philosophy. However, economic analysis is also useful in the study of legal ethics, because it can illuminate the incentives that generate ethical dilemmas and controversies. This is especially true in the subfield this paper devotes its attention to, lawyer conflict of interest rules. The problem I focus on is the incentive of the lawyer to "sell out" his client-for example, by providing confidential information to a potential adversary or by providing legal misinformation to the client in order to aid the …

A Guide For Certifying Agencies: Mgl 258f Certification For Victims Of Violent Crime And Human Trafficking, Alexandra Bonazoli, Julie A. Dahlstrom, Emily Leung, Sarah Leidel, Jennifer Ollington, Ashleigh Pelto, Jamie Sabino

Faculty Scholarship

This guide provides information to certifying agencies about the new law, M.G.L. 258F Certification for Victims of Violent Crime and Human Trafficking, which went into effect on July 1, 2021. The law provides victims of violent crime and human trafficking equal access to justice throughout the Commonwealth and establishes transparent and consistent processes for victims seeking certifications from law enforcement agencies.

Copyright And Parody: Touring The Certainties Of Intellectual Property And Restitution, Wendy J. Gordon

Faculty Scholarship

The essay that follows examines the boundary between two sets of rules. The first set arises under the law of Restitution, particularly the rule that volunteers ordinarily need not be rewarded. (Another way to state this same Restitution rule is to say that the retention of benefit voluntarily conferred is ordinarily not "unjust enrichment".) The second set of rules are those of Intellectual Property law, which creates property in a special kind of volunteer. My argument is simply that the law of Restitution leads almost directly to the law of Intellectual Property, though the two areas are premised on diametrically …

Ten Truths About Tax Havens: Inclusion And The "Liberia" Problem, Steven A. Dean, Attiya Waris

Faculty Scholarship

There has been a decades-long effort to repair an increasingly fragile international tax system. One reason it has foundered has been what we identify as the "Liberia problem." In 2000, the powerful Organization for Economic Cooperation and Development identified Liberia but not Switzerland as a tax haven and targeted it for sanctions. It did not go well. During the two decades since, everything has changed; yet seemingly from this lens of inclusion, nothing has changed at all. Awkwardly similar "blacklists" still target "Black" and "Brown" jurisdictions despite the fact that experts mean something quite different when they speak of the …

A Constitutional Moment In Cross-Border Taxation, Steven Dean

Faculty Scholarship

The complex pattern of formal and informal rules that governs the taxation of cross-border transactions tends to be thought of as rigidly path dependent. (Rixen, 2011) In truth, the Classification and Assignment Constitution has repeatedly undergone sudden changes initiated by influential actors. A failure to acknowledge the power wielded by a handful of states and organizations nurtures an evolutionary myth of cross-border taxation, but a close examination reveals traces of intelligent design, with repeated interventions altering the course of its development.

A century ago a material constitution coalesced around an elegant but flawed algorithm providing for the "classification and assignment …

Tribute To Doug Rendleman, Victoria Sahani

Faculty Scholarship

Part of a compilation of tributes to Professor Doug Rendleman.

Legacies Of Pragmatism, Robert L. Tsai

Faculty Scholarship

Pragmatism has triumphed in the law by becoming all things to all people—or has it? This essay, prepared for a symposium at Drake University Law School's Constitutional Law Center, examines the future of pragmatism in constitutional thought. First, I revisit the work of William James to recover the ideal disposition of a pragmatist decision maker. Second, I analyze pragmatism's impact on constitutional theory from Richard Posner to Cass Sunstein, from Philip Bobbitt to Willy Forbath and Joey Fishkin. I show that pragmatism lives on in constitutional theories that don't self-consciously characterize themselves in such terms. I also contend that pragmatism …

Antibiotic Development Incentives That Reflect Societal Value Of Antibiotics, Helen Boucher, Thomas M. File, Vance Fowler, Amanda Jezek, John Rex, Kevin Outterson

Faculty Scholarship

TO THE EDITOR—Rome and Kesselheim [1] claimed that rewarding developers of novel antibiotics with transferable exclusivity vouchers is an expensive approach to promoting antibiotic development. This analysis is incomplete as it focuses only on the cost of bringing new antibiotics to market without acknowledging their societal value. The authors also did not suggest an alternative approach. With patients running out of treatment options for resistant infections, failing to strengthen the antibiotic pipeline is not a reasonable option.

(Hypothetical) Communication In (Hypothetical) Context, Gary S. Lawson

Faculty Scholarship

This article is from the "Multimember Legislative Bodies and Intended Meaning" portion of a Symposium on Two Problems of Group Authorship. This essay is a response to the the two questions addressed at the symposium. These questions have been attached as an additional file to this submission. It is recommended that those questions be read before reading Lawson's response.

Rethinking "Political" Considerations In Investment, David H. Webber

Faculty Scholarship

Five years ago, Professor David H. Webber was invited to deliver an address both to our Delaware Law School community and to the Delaware Bench and Bar as Visiting Scholar in Residence of Corporate and Business Law. Webber's Speech, "Rethinking 'Political' Considerations in Investment," made several predictions about the rise of politicized investment which were quite prescient. As relevant today as when it was delivered, this piece explores the consideration of investment factors outside the traditional realm of shareholder profit maximization, both in its current state and in the future. Webber's analysis of how investors balance the role of capital …

The Future Of Facts: The Politics Of Public Health And Medicine In Abortion Law, Aziza Ahmed

Faculty Scholarship

While a great deal of public scrutiny has focused on how information circulates through online outlets including Twitter and Facebook, less attention has been devoted to how more traditional institutions traffic in factual assertions for the sake of setting a particular distributional agenda into motion.[1] Of these more traditional institutions, courts play a central role in legitimating legal and factual claims in the process of applying and clarifying legal rules. In public health-related adjudication, courts play at least two important roles: first, judges and juries make decisions between competing sets of public health and medical claims and second, courts …

Sexual Harassment In The Post-Weinstein World, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The 2017 iteration of the #MeToo movement has brought tremendous attention to the problem of sexual harassment in the workplace, as well as in a variety of other contexts. We learned that sexual harassment is rampant, varied in form, and harmful, or, more accurately, that it is still all of these things. Sexual harassment at work has existed as long as women have worked, whether paid, valued, or enslaved. The law of sexual harassment has a much more recent provenance. Courts began to recognize harassment as a form of sex discrimination in the early 1980s, and the entire current structure …

Race-Conscious Jury Selection, Anna Offit

Faculty Journal Articles and Book Chapters

Among the central issues in scholarship on the American jury is the effect of Batson v. Kentucky (1986) on discriminatory empanelment. Empirical legal research has confirmed that despite the promise of the Batson doctrine, both peremptory strikes and challenges for cause remain tools of racial exclusion. But these studies, based on post facto interviews, transcript analysis, and quantitative methods offer little insight into Batson’s critical impact on real-time decision-making and strategy in voir dire. If we increasingly know what kinds of juries are produced in the post-Batson world, we know very little about how they are produced.

This Article addresses …

Benevolent Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

The American jury system holds the promise of bringing commonsense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the diversity …

Framing Individualized Sentencing For Politics And The Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment’s prohibition on cruel and unusual punishments. In recent years, though, the Court has expanded the Amendment’s scope to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to for-bid life-without-parole sentences for juveniles when that punishment was mandatorily imposed or imposed on non-homicide offenders. With changing politics and a changing Court, any further expansion of Eighth Amendment protections will likely be difficult for years to come. With the recent confirmation of Amy …

A Unified Theory Of Code Connected Contracts, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Smart contracts and their promise of automatic performance capture legal and entrepreneurial imaginations. But the excitement around the technology led to some confusing legal responses. Several legal scholars use chronology to help reduce the confusion and place smart contracts within what is already familiar about computational contracting. According to this line of thinking, blockchain-based smart contracts simply represent the next technological advancement in a long history of computable contracting technologies. However, other scholarly work suggests that such a chronological explanation under-simplifies the nature of the linkages between smart contracts and other forms of code-connected contracts. This Article offers a unified …

Autonomous Business Reality, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Society tends to expect technology to do more than it can actually achieve, at a faster pace than it can actually move. The resulting hype cycle infects all forms of discourse around technology. Unfortunately, the discourse on law and technology is no exception to this rule. The resulting discussion is often characterized by two or more positions at opposite ends of the spectrum, such that participants in the discussion speak past each other, rather than to each other. The rich context that sits in the middle ground goes disregarded altogether. This dynamic most recently surfaced in the legal literature regarding …

Death Of The Particular Social Group, Natalie Nanasi

Faculty Journal Articles and Book Chapters

Applicants seeking asylum in the United States must demonstrate that they fear persecution on account of one of five protected grounds—race, religion, national origin, political opinion, or membership in a particular social group (PSG). The PSG ground has long been the most complex and challenging avenue for relief, and in the Trump era, already precarious protections for vulnerable people such as survivors of intimate partner and gang violence were further impaired.

The Board of Immigration Appeals’ first, and longstanding, definition of a PSG in Matter of Acosta required members to possess “common immutable characteristics,” those that, like the other statutory …

Facilitating Capital Raising: The Sec’S 2020 Amendments To The Exempt Offering Framework, Marc I. Steinberg, Taylor E. Santori

Faculty Journal Articles and Book Chapters

No abstract provided.

Law Of The Gun: Unrepresentative Cases And Distorted Doctrine, Eric Ruben

Faculty Journal Articles and Book Chapters

There is a familiar saying, “If all you have is a hammer, everything looks like a nail.” The so-called Law of the Hammer takes a distinctive form in adjudication. If all judges see is one repeating fact pattern for a given area of law, they might perceive it as archetypical and build the law around it. If that fact pattern does not accurately reflect the field, however, the result can be analytical distortion in terms of both the choice of doctrine and its implementation.

This Article uses Second Amendment jurisprudence to illustrate this phenomenon. It reveals how District of Columbia …

Creating Cryptolaw For The Uniform Commercial Code, Carla L. Reyes

Faculty Journal Articles and Book Chapters

A contract generally only binds its parties. Security agreements, which create a security interest in specific personal property, stand out as a glaring exception to this rule. Under certain conditions, security interests not only bind the creditor and debtor, but also third-party creditors seeking to lend against the same collateral. To receive this extraordinary benefit, creditors must put the world on notice, usually by filing a financing statement with the state in which the debtor is located. Unfortunately, the Uniform Commercial Code (U.C.C.) Article 9 filing system fails to provide actual notice to interested parties and introduces risk of heavy …

State Energy Cartels, James W. Coleman

Faculty Journal Articles and Book Chapters

Fracking has made America the center of global oil production and the engine of the world’s economy. But haste makes waste. America’s new oil wells are releasing natural gas as well, which is prized as a clean and reliable fuel around the world, but must be simply burned off or “flared” if there are no pipelines to bring it to the customers that need it. The pace of the oil boom, and the challenges of building new pipe-lines have forced oil companies to flare staggering quantities of natural gas. Texas and North Dakota are now flaring—that is, wasting—more gas than …

Exploring The Implications Of Artificial Intelligence, Kristin N. Johnson, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Emerging technologies promise to play a transformative role in our society, enabling driverless cars, enhanced accuracy and efficiency in disease mapping, greater and less expensive access to certain consumer services, including consumer financial services. Discussions regarding the role of emerging technologies increasingly center on the development and integration of artificial intelligence technologies or AI-an assemblage of technologies that rely on a variety of computational techniques. This Essay offers a modest primer outlining a general understanding of the contours and contributions of Al, as well as introducing the articulated benefits and limits

of these technologies.

This Essay examines the increasingly pervasive …

Covid-19 And Law Teaching: Guidance On Developing An Asynchronous Online Course For Law Students, Yvonne Dutton, Seema Mohapatra

Faculty Journal Articles and Book Chapters

Most law schools suspended their live classroom teaching in March 2020 due to the COVID-19 pandemic and quickly transitioned to online programming. Although professors can be commended for rapidly adapting to an emergency situation, some commentators have nevertheless suggested that the emergency online product delivered to students was substandard. Based on our own experiences in designing and delivering online courses, we caution against embracing a broad-reaching, negative conclusion about the efficacy of online education. Indeed, much of this emergency online programming would be more properly defined as “emergency remote teaching,” as opposed to “online education.” Delivering online education to students …

The Perfect Storm: Coronavirus And The Elder Catch, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

The global COVID-19 pandemic has exacerbated an already growing phenomenon: the Elder Catch. This term defines the caregiving dilemma faced by adults who are simultaneously working, caring for elder parents or relatives, and in some cases, raising children at the same time. Few scholars have explored how the state uses the traditional family framework to resist providing comprehensive government support for elder care. Women typically bear the brunt of caregiving costs within the family and become physically and mentally vulnerable in the process. COVID-19 has pushed women caught in the Elder Catch to the brink while sheltering at home, and …

Autonomous Corporate Personhood, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Virtual Guilty Pleas, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The coronavirus pandemic led criminal courts across the country to switch to virtual hearings to protect public health. As the pandemic subsides, many policymakers have called for the continued use of the remote format for a range of criminal proceedings. To guide decisions whether to use remote criminal justice on a regular basis, it is important to review the advantages and disadvantages of the practice.

Remote criminal proceedings have been praised for their convenience and efficiency, but have also raised concerns. Many have worried that videoconferencing inhibits effective communication between defendants and their counsel, hinders defendants’ understanding of the process, …

A Comparative Analysis Of Mortgage Loan Assignments And A Call For Reform In The United States, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

The flow of capital into mortgage loans depends heavily on the ability to transfer those loans. In the United States, Germany, and other countries, mortgage loans are transferred on the secondary market. A loan originator may sell loans to a purchaser who intends to hold the loans and collect payments or to a third party who will pool the loans and issue mortgage-backed securities to investors.

In the United States, assignments of mortgage loans have created legal challenges and have been the subject of much litigation. The transfer and storage of large volumes of paper promissory notes, still the prevailing …