Law Commons^™

Jurisdiction As Power, Ryan Williams

Faculty Scholarship

No abstract provided.

Transactional Clinical Support For Mutual Aid Groups: Toward A Theory Of Transactional Movement Lawyering, Michael Haber

Faculty Scholarship

No abstract provided.

Fit For Its Ordinary Purpose: Implied Warranties And Common Law Duties For Consumer Finance Contracts, Edward J. Janger, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Disgust And Guns: Conduct, Identity, And Second Amendment Animus, William D. Araiza

Faculty Scholarship

No abstract provided.

The Elastic Corporate Form In International Law, Julian Arato

Faculty Scholarship

No abstract provided.

Employment Status For “Essential Workers”: The Case For Gig Worker Parity, Miriam A. Cherry

All Faculty Scholarship

This Article explores what I call the “essential worker paradox”: During the pandemic, gig workers have been recognized as providing critical and important services. At the same time, the law has yet to recognize gig workers fully and to commit to providing them with the same basic protections as employees. The Article argues that the stark difference in treatment between gig workers and regular employees has long created unfairness. While views of gig work as a side hustle or work driven by customer convenience may have prevailed in the past, now the meal delivery driver and the on-demand grocery shopper …

Acknowledging The Racist Roots Of Disinvestment And Abandonment: How Local Government Can Set The Stage For Change, Dana M. Malkus

All Faculty Scholarship

Disinvestment and associated property abandonment are defining features of many post-industrial legacy cities. While the reasons are varied and complex, racist law and policy are at the root. Though abandoned properties negatively affect an entire city, their effects usually disproportionately fall on neighborhoods of color. Law and policy have been major drivers of how such neighborhoods look and feel today. Because law and policy have been part of the problem, they are also a necessary part of the solution.

This kind of large-scale, multi-disciplinary problem is beyond the ability of a single institution or sector to address. Stakeholders such as …

Block Rewards, Carried Interests, And Other Valuation Quandaries In Taxing Compensation, Henry M. Ordower

All Faculty Scholarship

In this article, Ordower contextualizes block rewards litigation with historical failures to tax compensation income paid in kind. Tax fairness principles demand current taxation of the noneconomically diluting block rewards’ market value.

Protecting Patients From Physicians Who Inflict Harm: New Legal Resources For State Medical Boards, Elizabeth Pendo, Tristan Mcintosh, Heidi Walsh, Kari Baldwin, James M. Dubois

All Faculty Scholarship

State medical boards (SMBs) protect the public by ensuring that physicians uphold appropriate standards of care and ethical practice. Despite this clear purpose, egregious types of wrongdoing by physicians are alarmingly frequent, harmful, and under-reported. Even when egregious wrongdoing is reported to SMBs, it is unclear why SMBs sometimes fail to promptly remove seriously offending physicians from practice. Legal and policy tools that are targeted, well-informed, and actionable are urgently needed to help SMBs more effectively protect patients from egregious wrongdoing by physicians.

Past reviews of SMB performance have identified features of SMBs associated with higher rates of severe disciplinary …

What Covid-19 Laid Bare: Adventures In Workers’ Compensation Causation, Michael C. Duff

All Faculty Scholarship

This essay performs a close analysis of workers’ compensation coverage of COVID-19 and arrives at the conclusion that it should not be “impossible” to prove in a legal sense that an employee’s COVID-19 was caused by work. Scientific proof is not the same as legal proof: workers’ compensation law has never required that claims must be supported by irrefutable scientific proof of workplace causation. Yet repeatedly one heard this suggestion during public discussion on workers’ compensation coverage of employees.

Still, there is good evidence that even when workers’ compensation undisputedly covers work-related disease employers seldom pay benefits (and states do …

Fifty More Years Of Ineffable Quo? Workers’ Compensation And The Right To Personal Security, Michael C. Duff

All Faculty Scholarship

During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its …

Fix Or Fox: Where Do We Go From Here?, Marsha Griggs

All Faculty Scholarship

Recently the National Conference of Bar Examiners (“NCBE”) announced that it will make sample questions from its proposed NextGen Bar Exam publicly available. NCBE is the entity that creates and sells all the questions used on the Uniform Bar Exam adopted in Kansas, Missouri, and thirty-six other states. In theory, the NextGen Exam is being developed in response to mounting critique that the bar exam is not a true measure of competence to practice law and claims that the exam disadvantages applicants based on socioeconomic status and race. But is the NextGen prototype a fix or a fox in the …

Book Review Of Shaping The Bar: The Future Of Attorney Licensing, Marsha Griggs, Andrea A. Curcio

All Faculty Scholarship

In Shaping the Bar: The Future of Attorney Licensing, Professor Joan Howarth issues a clarion call to the academy, the legal community, and the judiciary to reform the way we license lawyers in the United States. In this book Howarth identifies the current crisis in law licensing, the history of racism that created this crisis, and the tools available to address it. Shaping the Bar challenges our entrenched notions of professional identity, and it forces us to confront vulnerabilities in attorney self-regulation. It does so in a manner that will stir even those not immersed in the current debate about …

Every 66 Hours. Dead Or Disappeared. A Colonial Gendered Lens On Genocide: Case Study On Canada's Genocide Against Indigenous Women, Girls, And 2slgbtqqia People, Megan Uren

Denver Journal of International Law & Policy

Genocide is happening today, and it will be happening tomorrow. It is not yet time to tell volunteers to stop dredging the Red River for dead bodies of Indigenous women and girls nor time for red dresses to stop being hung on the Highway of Tears. There are dead bodies in the water. There are missing bodies who were taken along wooded highways...

This article evaluates the current rates of violence against Indigenous women in Canada within (1) the greater context of an ongoing colonial genocide against Indigenous peoples and (2) with a narrow-gendered lens on women. First, I will …

“Shall Not Be Construed”: Reversal Of Supreme Court Decisions By Constitutional Amendment, John V. Orth

Faculty Publications

This Article considers the way in which small changes of wording can signal large changes of thought in the United States Constitution (Constitution). Drawing upon examples found in the Eleventh and Sixteenth Amendments, and in the Reconstruction Amendments, the Article shows that there are two ways to reverse a U.S. Supreme Court decision by constitutional amendment. The first type of amendment may reverse the decision by instructing the Court on the proper construction of a particular provision, as in the case of the Eleventh Amendment. The second means involves reversing the decision by altering the constitutional provision in question, rather …

Policing The Polity, Eisha Jain

Faculty Publications

The era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full …

Restoring Faith In Military Justice, Eleanor T. Morales, John W. Brooker

Faculty Publications

The military justice system was designed to maintain good order and discipline, strengthen national security, and achieve justice. After military leaders failed to effectively address the sexual assault crisis within the armed forces, Congress lost faith in this system. In response, Congress enacted sweeping legislative reform, transferring prosecutorial discretion for the most serious offenses from commanders to military lawyers. Unlike civilian prosecutions, most decisions within the military justice system have overwhelmingly favored one consideration: maintaining good order and discipline in the unit. While Congress’s reforms change who makes the decisions in many cases, they will have little effect unless military …

The Mystery Of The Missing Choice-Of-Law Clause, John F. Coyle

Faculty Publications

There is widespread agreement among experienced contract drafters that every commercial contract should contain a choice-of-law clause. Among their many virtues, choice-of-law clauses facilitate settlement and reduce litigation costs. While most modern contracts contain these provisions, some do not. In many instances, the absence of these clauses may be attributed to outdated forms, careless drafting, inattentive lawyers, or some combination of the three. In a few instances, however, it appears that sophisticated contract drafters purposely omit choice-of-law clauses from their agreements. If these clauses add value to a contract — and there is nearuniversal agreement that they do — then …

Qualified Sovereignty, Kate Sablosky Elengold, Jonathan D. Glater

Faculty Publications

Sometimes acts of the federal government cause harm; sometimes acts of contractors hired by the federal government cause harm. In cases involving the latter, federal contractors often invoke the sovereign’s constitutionally granted and doctrinally expanded supremacy to restrict avenues for the injured to recover even from private actors. In prior work, we analyzed how federal contractors exploit three “sovereign shield” defenses—preemption, derivative sovereign immunity, and derivative intergovernmental immunity—to evade liability, accountability, and oversight.

This Article considers whether, when, and how private federal contractors should be held accountable in a court of law. We argue that a contractor should be required …

The Gender Gap In Academic Patenting, W. Michael Schuster, Miriam Marcowitz-Bitton, Deborah R. Gerhardt

Faculty Publications

The gender gap in academia has long been the focus of public discourse regarding the role of universities in promoting social values. In this study, we consider women’s participation in transferring knowledge from the academy to industry. A prominent model for such transfer is reflected in patent registration for inventions developed through scholarly research. And while academic patenting is a significant component of the professional activities of many faculty members, the extent to which women’s scientific discoveries are patented and commercialized has received relatively little attention.

The U.S. academy is a leader in science and a pioneer of technology transfer. …

Constraining Criminal Laws, F. Andrew Hessick, Carissa Byrne Hessick

Faculty Publications

This Article challenges the modern statutory interpretation of criminal laws. In doing so, it makes two distinct, but related contributions. First, it demonstrates that courts historically played a significantly more active role in interpreting criminal laws than they currently play. In particular, courts routinely interpreted statutes to reach no further than the text or the purpose, and they treated broadly written laws as ambiguous and in need of narrowing constructions. Put simply, courts used their interpretive powers to deliberately favor criminal defendants and constrain the criminal law. Second, it explains how a more active judiciary would combat some of the …

Prosecutorial Discretion And Immigration Arrest: How Criminal Arrests Set Immigration Enforcement Priorities, Eisha Jain

Faculty Publications

Prosecutorial discretion is once again at the forefront of immigration enforcement debates. In June 2022, a federal district court effectively rescinded Executive guidelines for prosecutorial discretion in immigration enforcement. The court struck down these guidelines – longstanding as a means of establishing priorities for the arrest, detention, and removal of noncitizens– on the basis that they conflicted with provisions of the INA. According to the district court, the “core” of the legal dispute centered on “whether the Executive Branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress.” The district court …

Revisiting Health Care Fraud In The Biden Administration, Joan H. Krause

Faculty Publications

Although not one of the Biden administration’s initial priorities, health care fraud inevitably will be a major concern. First, the federal government’s response to the COVID-19 pandemic—including the disbursement of more than $175 billion in provider relief funds and the loosening of traditionally strict rules on Medicare reimbursement for telehealth services—has created new opportunities to divert health care funds for fraudulent purposes. Second, President Joseph Biden took office in the midst of the incomplete transition from volume-based to value-based payment in the federal health care programs, which will allow fraud to flourish in the gaps between multiple reimbursement systems. Third, …

Pricing Plastics Pollution: Lessons From Three Decades Of Climate Policy, Jonas J. Monast, John Virdin

Faculty Publications

Plastic is now the most widely used human-made substance on the planet, and plastics pollution impacts marine and coastal ecosystems, local economies, and human health. Local and national governments are increasingly responding by banning plastic bags and other specific plastic products, taxing the use of certain plastics, and improving waste management and recycling. These are important steps, but alone they will not result in a meaningful reduction in cumulative plastics pollution or encourage development of sufficient alternatives to plastic. Additional policy measures are necessary.

This Article argues that climate change and plastic pollution share numerous similarities, and these similarities allow …

Not Child’S Play: A Constitutional Game Of Pass The Story In Dobbs, Shurtleff, And Kennedy, John V. Orth, Paul T. Babie

Faculty Publications

This Article suggests that in the effort to find fixed standards for rights, working with vague, indeterminate, silent text, the Supreme Court engages in a constitutional game of pass the story. No one outcome concludes the story; it merely adds another chapter, to which the next set of judges will add their own installment. The quest for standards never ends. The Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Shurtleff v. City of Boston, and Kennedy v. Bremerton School District are merely the latest installments in stories that began with the founding. And as with any such story, …

Preemption Of Police Reform: A Roadblock To Racial Justice, Rick Su, Marissa Roy, Nestor Davidson

Faculty Publications

In 2020, nearly half of the largest U.S. cities reoriented municipal spending priorities by directing money from their police budgets to social services; for many cities, these budgetary changes reversed decades of increases. Cities began implementing additional police reforms as well: New York City became the first municipality to end qualified immunity for police officers while San Francisco shifted to deploying crisis response teams, rather than police officers, to respond to mental health calls.

Instead of supporting these critical reforms, some states targeted cities that prioritized racial justice by preempting those cities’ ability to engage in meaningful change. In the …

A Silver Lining To Russia’S Sanctions-Busting Clause, Michael Bradley, Irving De Lira Salvatierra, W. Mark C. Weidemaier, Mitu Gulati

Faculty Publications

In 2018, Russia began inserting an unusual clause into euro and dollar sovereign bonds, seemingly designed to circumvent future Western sanctions. The clause worked by letting the government pay in roubles if sanctions cut off access to dollar and euro payment systems. The clause received little scrutiny at the time, perhaps because Russia used a state-owned bank, rather than a global investment bank, as underwriter. But with the invasion of Ukraine and the ensuing sanctions imposed by the United States and other governments, the relevance of the clause has become clear. This Essay examines how the market reacted to the …

A Debt Of Dishonor, Kim Oosterlinck, Ugo Panizza, W. Mark C. Weidemaier, Mitu Gulati

Faculty Publications

In 1825, France conditioned its grant of recognition to the new nation of Haiti on the payment of 150 million francs plus trade benefits. The payments were, at least in part, compensation for the losses that French plantation owners suffered, a key part of which was the loss of enslaved Haitians, who took their freedom via revolution. France has officially apologized and acknowledged a “moral debt” that it owes the Haitian people. But is there a legal debt that Haiti, one of the poorest nations in the world, could claim today from France, one of the richest?

The Visibility Trap, Kate Redburn

Faculty Scholarship

Vice Patrol offers a novel history of the visibility trap. It integrates interventions in legal history, history of sexuality, and queer theory with remarkable ease. Lvovsky brings new insight to a question that has puzzled scholars across several fields: Why and how does cultural representation lead to increased state repression? Blending impressive archival research with sophisticated theoretical analysis, Lvovsky follows cultural knowledge into the legal system to offer a fresh diagnosis of the problem and how it develops. In her discovery of “epistemic gaps,” she uncovers a key mechanism of the visibility trap. Disagreements between the police and the courts, …

Verification Dilemmas In Law And The Promise Of Zero-Knowledge Proofs, Kenneth A. Bamberger, Ron Canetti, Shafi Goldwasser, Evan J. Zimmerman

Faculty Scholarship

Individuals who wish to access a website or qualify for a loan are expected to expose personally identifying information, undermining their privacy and security. Firms share proprietary information in dealmaking negotiations which, if the deal fails, may be used by the negotiating partner for a competitive advantage. Regulators are expected to disclose their algorithmic tools to comply with public transparency and oversight requirements, a practice that risks rendering these tools circumventable and ineffective. Litigants might have to reveal trade secrets in court proceedings to prove a claim or defense. Such “verification dilemmas” — costly choices between opportunities that require the …