Law Commons^™

Leadership... From A To Z, Anne Klinefelter

Faculty Publications

No abstract provided.

When Therapy Goes Public: Copyright Gatekeepers And Sharing Therapeutic Artifacts On Social Media, Amanda Reid, Pablo Miño

Faculty Publications

No abstract provided.

An Auditing Imperative For Automated Hiring, Ifeoma Ajunwa

Faculty Publications

The goal of this Article is neither to argue against or for the use of automated decision-making in employment, nor is it to examine whether automated hiring systems are better than humans at making hiring decisions. For antidiscrimination law, the efficacy of any particular hiring system is a secondary concern to ensuring that any such system does not unlawfully discriminate against protected categories. Therefore, the aim is to suggest collaborative regulatory regimes for automated hiring systems that will ensure that any benefits of automated hiring are not negated by (un)intended outcomes, such as unlawful discrimination on the basis of protected …

The Fantasy Of The Unchaste Mentality, Tara N. Summerville, Kevin Bennardo

Faculty Publications

For the past forty years, North Carolina’s rape-shield legislation has served as a laboratory of experimentation. Like the rape-shield legislation of every state, it generally prevents the admission of complaining witnesses’ past sexual history in sexual assault prosecutions. However, North Carolina’s rape-shield rule contains a unique exception not found elsewhere in the country. The exception, which we label the “fantasy exception,” permits the admission of a complaining witness’s past sexual behavior when it is offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the charged assault.

This Article is the first to rigorously …

Diversity From The Perspective Of Corporate Boards And Lawyer Disciplinary Boards, Lissa L. Broome, John M. Conley

Faculty Publications

This Article addresses the organizing question of this symposium—whether diversifying state medical boards (SMBs) would improve their effectiveness in disciplining doctors—by drawing on the comparable experiences of corporate boards of directors and lawyer disciplinary boards. Reexamining our own qualitative study of corporate board diversity conducted several years ago, we find that almost of all of the arguments for board diversity raised in the business literature or our own interviews also tend to support diversity on SMBs. Reviewing the legal profession’s experience with the diversity question on lawyer disciplinary boards, we find that many of these arguments have also been recognized, …

Forum Selection Clauses, Non-Signatories, And Personal Jurisdiction, John F. Coyle, Robin J. Effron

Faculty Publications

Who is bound by a forum selection clause? At first glance, the answer to this question may seem obvious. It is black letter law that a person cannot be bound to an agreement without her consent. In recent years, however, courts have not followed this rule with respect to forum selection clauses. Instead, they routinely enforce these clauses against individuals who never signed the contract containing the clause. Courts justify this practice on the grounds that it promotes litigation efficiency by bringing all of the litigants together in the chosen forum. There are, however, problems with enforcing forum selection clauses …

Cruise Contracts, Public Policy, And Foreign Forum Selection Clauses, John F. Coyle

Faculty Publications

A cruise ship contract is the prototypical contract of adhesion. The passenger is presented with the contract on a take-it-or-leave-it basis. If she refuses to sign, the ship sails without her. To ensure that cruise companies do not draft one-sided contracts that are unfair to passengers, Congress has enacted a number of statutes that regulate these agreements. One such statute is 46 U.S.C. § 30509. This law stipulates that any contract provision that limits the liability of the cruise company for personal injury or death is void as against public policy if the ship stops at a U.S. port.

In …

Enforcing Outbound Forum Selection Clauses In State Court, John F. Coyle, Katherine Richardson

Faculty Publications

Forum selection clauses are a staple of modern business law. Parties agree, ex ante, on where they can sue one another and then rely on the courts to enforce these agreements. Although the number of contracts containing forum selection clauses has skyrocketed in recent years, there is a dearth of empirical information about enforcement practice at the state level. Are there any states that refuse to enforce them? How frequently are they enforced? Under what circumstances, if any, will these clauses be deemed unenforceable? The existing literature provides few answers to these questions.

This Article aims to fill that gap. …

The Sovereign Shield, Kate Sablosky Elengold, Jonathan D. Glater

Faculty Publications

As the federal government has come to rely increasingly on private companies to perform government functions, more businesses are testing the power of the resulting contractual relationships to shield themselves from liability, regulation, and oversight. Such nongovernmental entities seek the benefit of what we call the federal government’s sovereign shield by exploiting three doctrines: preemption, derivative sovereign immunity, and intergovernmental immunity. Because these contractors provide services supporting every conceivable government action, allowing them to act with impunity puts citizens at risk across myriad aspects of their lives.

This Article untangles the doctrines that extend the sovereign shield to private actors …

The End Of School Policing, Barbara A. Fedders

Faculty Publications

Police officers have become permanent fixtures in public schools. The sharp increase in the number of school police officers over the last twenty years has generated a substantial body of critical legal scholarship. Critics question whether police make students safer. They argue that any safety benefits must be weighed against the significant role the police play in perpetuating a school-to-prison pipeline that funnels Black and Brown students and students with disabilities out of schools and into courts, jails, and prisons. In suggesting remedies for this problem, commentators have proposed several regulatory fixes. These include changes to the standards for evaluating …

Corporate And Securities Law Impact On Social Responsibility And Corporate Purpose, Thomas Lee Hazen

Faculty Publications

The role of social responsibility in corporate governance has been the subject of debate for nearly ninety years. That debate has been reframed over the decades. Several recent events have resulted in increased focus on corporate so-cial responsibility, especially with respect to publicly held corporations. This Ar-ticle explores the law’s two different paths for impacting social responsibility. The current iteration of the corporate responsibility movement has implications for both state law chartering of corporations and federal securities regulation. This Article analyzes the ways in which stated purpose clauses in a corporation’s articles of incorporation may be useful in addressing social …

No Amendment? No Problem: Judges, "Informal Amendment," And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie

Faculty Publications

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …

Unlawfully-Issued Sovereign Debt, W. Mark C. Weidemaier, Mitu Gulati

Faculty Publications

In 2016, its economy in shambles and looking to defer payment on its debts, the Venezuelan government of Nicolás Maduro proposed a multi-billion dollar debt swap to holders of bonds issued by the government’s crown jewel, state-owned oil company Petroleós de Venezuela S.A. (PDVSA). A new government now challenges that bond issuance, arguing that it was unlawful under Venezuelan law. Bondholders counter that this does not matter, that PDVSA freed itself of any borrowing limits by agreeing to a choice-oflaw clause designating New York law.

The dispute over the PDVSA 2020 bonds implicates a common problem. Sovereign nations borrow under …

You Can Call Me Al: Regulating How Candidates' Names Appear On Ballots, Peter Nemerovski

Faculty Publications

In electoral politics, names matter. Studies and anecdotal evidence show that candidates whose names suggest a certain ethnic heritage— for example, an Irish-sounding surname in Chicago, or a Hispanic name in South Florida—outperform candidates without such names, and that “American-sounding” names and names with positive connotations can give candidates a leg up. Therefore, candidates for public office often seek to run under the name they regard as most electorally advantageous. Election boards, secretaries of state, and ultimately courts are often called upon to decide whether a particular candidate can run for office under a particular name.

This Article looks at …

There Was Nothing “Neutral” About Executive Order 9066, Eric L. Muller

Faculty Publications

No abstract provided.

Taxing Nudges, Kathleen Delaney Thomas

Faculty Publications

Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often produce significant responses at a low cost. The theory behind nudges is that, rather than mandating certain behaviors or providing costly economic subsidies, modest initiatives may “nudge” individuals to choose desirable outcomes by appealing to their behavioral preferences. For example, automatically enrolling workers into savings plans as a default, rather than requiring them to actively sign up, has dramatically increased enrollment in such plans. Similarly, allowing individuals to …

Shocking Business Bankruptcy Law, Melissa B. Jacoby

Faculty Publications

The intersection of major crises and financial distress generates no shortage of stock stories. This Essay offers one more: how shocks can be used opportunistically in big Chapter 11 cases to unravel bankruptcy law, and to shift the system further away from the objective of responding to overindebtedness.

Barring Married Same-Sex Couples From Joint Adoption: Comparative Perspectives And The Case Of Taiwan, Holning S. Lau

Faculty Publications

Taiwan is the first country in Asia to legalize same-sex marriage, but it forbids married same-sex couples from jointly adopting children. This article examines this restriction through the lens of comparative law, which brings into focus two main insights. First, we see that, out of all countries that have legalized same-sex marriage, Taiwan is one of only two that bar married same-sex couples from joint adoption. As this article will explain, the fact that Taiwan’s policy is so anomalous should spur skepticism of the policy’s appropriateness. Second, judicial opinions from around the world contain persuasive reasoning that further calls into …

Disbanding Police Agencies, Anthony O'Rourke, Rick Su, Guyora Binder

Faculty Publications

Since the killing of George Floyd, a national consensus has emerged that reforms are needed to prevent discriminatory and violent policing. Calls to defund and abolish the police have provoked pushback, but several cities are considering disbanding or reducing their police forces. This Essay assesses disbanding as a reform strategy from a democratic and institutionalist perspective. Should localities disband their police forces? One reason to do so is that discriminatory police departments are often too insulated from democratic oversight to be reformed. But can localities succeed in disbanding and replacing their forces with something better? Unfortunately, the structural entrenchment of …

Monopolizing Whiteness, Erika K. Wilson

Faculty Publications

In racially diverse metropolitan areas throughout the country, school district boundary lines create impermeable borders, separating affluent and predominantly white school districts from low-income, predominantly nonwhite school districts. The existence of predominantly white and affluent school districts in racially diverse metropolitan areas has material consequences and symbolic meaning. Materially, such districts receive greater educational inputs such as higher per-pupil spending, higher teacher quality, and newer facilities than their neighboring more racially diverse districts. Symbolically, owing to the material and status-based value attached to whiteness, the districts are also viewed as elite, which creates a magnetic effect that draws white affluent …

The Final Act -- Deportation By Ice Air, Deborah M. Weissman, Angelina Godoy, Havan Clark

Faculty Publications

Deportation is a legal concept about which much has been written. But it is more complicated. For noncitizens, forced expulsion is a lived experience occurring in time and space — an act against the body, mostly black and brown bodies. In this Article, we part ways with the well-established narratives of deportation and the punishment/non-punishment paradigm to conceive of deportation not only as a legal concept, but as a physical act — the final act — that is, the culmination of the immigration enforcement dragnet. The physical removal of persons from the United States requires a complex system comprised of …

Gender Violence, The Carceral State, And The Politics Of Solidarity, Deborah M. Weissman

Faculty Publications

Part I of this Article examines gender violence committed by the State. It does so within the context of recent initiatives to address abusive police practices to demonstrate that issues of gender violence have been omitted from reform efforts. To that end, it provides a critical review of anti-carceral campaigns, including recent challenges to “stop-andfrisk” practices. Litigation addressing abusive police conduct has failed to identify stop-and-frisk as a particular form of gender violence. Similarly, community campaigns to oversee police body-worn camera policies have overlooked the differential ways in which survivors of gender violence are impacted by these police devices. This …

Occupational Hazard: A Critique Of California Elections Code § 13107(A)(3), Peter Nemerovski

Faculty Publications

This Article argues that California’s occupational designation option should be abolished, having outlived whatever usefulness it may have had in 1931. Today, it is a source of headaches for elections officials across the state. It often leads to litigation over whether a candidate’s chosen designation is inaccurate or might mislead voters. It is inconsistently enforced. It is frequently used by candidates not to provide voters with helpful information but to gain an electoral advantage over their opponents. The time has come for California to join the forty-nine states that do not automatically allow candidates to include their occupations on the …

Law In The Shadows Of Confederate Monuments, Deborah R. Gerhardt

Faculty Publications

Hundreds of Confederate monuments stand across the United States. In recent years, leading historians have come forward to clarify that these statues were erected not just as memorials but to express white supremacist intimidation in times of racially oppressive conduct. As public support for antiracist action grows, many communities are inclined to remove public symbols that cause emotional harm, create constant security risks and dishonor the values of equality and unity. Finding a lawful path to removal is not always clear and easy. The political power brokers who choose whether monuments will stay or go often do not walk daily …

Electoral Change And Progressive Prosecutors, Ronald F. Wright, Jeffrey L. Yates, Carissa Byrne Hessick

Faculty Publications

While it is clear that a debate is happening about new approaches to the prosecutor's work, it is less clear how deep the changes go. Given the large number of prosecutor offices in the United States, it is possible that much of the change that the media documents is limited to only a few offices; it is also possible that newsworthy stories of recent prosecutor campaign debates are merely the most visible layer of a change that goes deeper. Do the media accounts focus on vivid but exceptional election campaigns, or do news stories over the' last decade reflect a …

Amicus Brief Of Law And Religion Professors For Petitioners, Lippard V. Holleman, Leslie C. Griffin

Court Briefs

No abstract provided.

Downtown Condos For The Rich: Not All Bad, Michael Lewyn

Scholarly Works

Some new condominiums in urban neighborhoods are too expensive for anyone but the very wealthy. Buyers of these high-cost units include not only wealthy city residents, but also nonresidents who wish to use housing as an investment rather than a residence. Some commentators use this apparent fact as an argument against new market-rate housing generally; they claim that new housing will be purchased by out-of-town investors rather than used by local residents and that those investors will leave housing units empty, rather than renting them out. A related argument is that, even if market-rate condos are purchased by local residents, …

The Role Of Lawyers In Bridging The Gap Between The Robust Federal Rights To Education And Relatively Low Education Outcomes In Guatemala, Maryam Ahranjani

Scholarly Works

Relative to other countries in the world and in Central America, the Guatemalan Constitution and the federal education law include a robust and detailed right to education. However, literacy rates and secondary educational attainment, particularly for Indigenous people and young women living in rural communities, remain low. The COVID-19 pandemic has only exacerbated disparities. Once children return to schools after the pandemic, the gaps will be even larger. Lawyers can play a critical role in making the strong Constitutional right to education more meaningful.

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Scholarly Works

In the wake of George Floyd's murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread "security" measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective-and constitutionally compliant-alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

Who Wants To Be A Prosecutor? And Why Care? Law Students' Career Aspirations And Reform Prosecutors' Goals, Shih-Chun Steven Chien, Stephen Daniels

Scholarly Works

Often called "progressive" or "reform" prosecutors, a number of reform-minded prosecutors have been elected recently across the United States-promising a distinctive vision of criminal justice and signaling that their role will be more attuned to issues of race and equity than "law and order." Furthering this vision requires dramatic changes to the working cultures-the norms, practices, and even personnel-of their offices. Diversity plays a major role.

One central challenge is identifying, attracting, and hiring newly minted lawyers who can, over time, be socialized into and sustain a changing organizational culture. This article empirically examines that challenge, which involves two sides …