Law Commons^™

The Duties Of Occupying Powers In Relation To The Prevention And Control Of Contagious Diseases Through The Interplay Between International Humanitarian Law And The Right To Health, Dr. Marco Longobardo

Vanderbilt Journal of Transnational Law

This Article explores the rules governing the prevention and control of contagious diseases in occupied territory under international law. Although the Article refers to the ongoing COVID-19 pandemic, its scope is broader and encompasses instances of state practice that have occurred over the last two centuries. After a careful analysis of the relevant treaties and episodes of state practice, the Article concludes that occupying powers have duties under international humanitarian law and international human rights law to prevent and control contagious diseases, through cooperating with the local authorities and bringing the necessary medical supplies in the occupied territory. The Article …

Facing The Sunset: An Egalitarian Approach Against Taxing Couples As A Unit, James M. Puckett

Faculty Scholarship

With the sunset of marriage penalty relief in 2025, Congress has a bittersweet opportunity to align the taxable unit with the guiding norm of taxation according to "ability to pay." The federal income tax brackets have been designed around a misguided and poorly targeted assumption that comparing married couples is appropriate, whether because of pooling income, economies of scale, or untaxed housework and caregiving. This Article argues that the individual, rather than (married) couples, should emerge as the unit for income taxation under an egalitarian approach to distributive justice.

Welfarist insights and egalitarian arguments sometimes align on solutions to tax …

Frozen Embryos, Male Consent, And Masculinities, Dara Purvis

Faculty Scholarship

Picture two men facing the possibility of unwanted fatherhood. One man agreed to go through in vitro fertilization with his partner, but years later has changed his mind. Despite the fact that the embryos created through IVF are his partner’s last chance to be a genetic parent, a court allows him to block her use of the embryos.

By contrast, another couple’s sexual relationship broke the law. The woman was a legal adult and her partner was a child, under the age of eighteen. Their encounter was thus statutory rape. Her crime led to pregnancy, and after she gave birth, …

The Uncertain Foundations Of Public Law Theory, Jud Mathews, Emad Atiq

Faculty Scholarship

No abstract provided.

Decitizenizing Asian Pacific American Women, Shoba Sivaprasad Wadhia, Margaret Hu

Faculty Scholarship

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws …

Race And The Criminal Law Curriculum, Cynthia Lee

GW Law Faculty Publications & Other Works

This chapter briefly sketches a few places in the substantive criminal law curriculum where law professors can include discussion of race to enrich students’ understanding of the law. These include racially based jury nullification, the void-for-vagueness doctrine, hate crimes and the actus reus requirement, voluntary manslaughter and the defense of provocation, involuntary manslaughter, rape, the doctrine of self-defense, the “Black rage” defense, and the “cultural defense.” The chapter also discusses the Guerilla Guides to Law Teaching project, which suggests that criminal law professors introduce the concept of abolition of the carceral state as a framework through which students can “question …

Introduction, Scott Dodson

The Judges' Book

No abstract provided.

Foreword, Daniel Bress The Honorable

The Judges' Book

No abstract provided.

Evidence: A Brief Guide To Differential Etiology, David L. Faigman

The Judges' Book

No abstract provided.

Tort Litigation: Brave New World: Technology And Tort Practice, Richard Marcus

The Judges' Book

No abstract provided.

Duty And Diversity, Chris Brummer, Leo E. Strine, Jr.

Vanderbilt Law Review

In the wake of the brutal deaths of George Floyd and Breonna Taylor, lawmakers and corporate boards from Wall Street to the West Coast have introduced a slew of reforms aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope, and degree of legal obligation and practical effects.

In this Article, we provide an old answer to the new questions facing DEI policy and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we …

Extraordinary Writ Or Ordinary Remedy? Mandamus At The Federal Circuit, Jonas Anderson, Paul R. Gugliuzza, Jason Rantanen

Utah Law Faculty Scholarship

Ordinarily, in federal court, only case-ending judgments can be appealed. The writ of mandamus is one exception to that so-called final judgment rule. Mandamus permits a litigant who is dissatisfied with a lower court ruling to obtain immediate reversal if, among other things, the ruling was indisputably wrong and the party seeking mandamus has no other way to get relief. This exacting standard stems from mandamus’s origin as one of the common law’s “extraordinary” writs. Federal courts of appeals typically issue mandamus once or twice per year at most. 

In patent cases, however, mandamus is a remarkably ordinary form of …

Privacy Pretexts, Rory Van Loo

Faculty Scholarship

Data privacy’s ethos lies in protecting the individual from institutions. Increasingly, however, institutions are deploying privacy arguments in ways that harm individuals. Platforms like Amazon, Facebook, and Google wall off information from competitors in the name of privacy. Financial institutions under investigation justify withholding files from the Consumer Financial Protection Bureau by saying they must protect sensitive customer data. In these and other ways, the private sector is exploiting privacy to avoid competition and accountability. This Article highlights the breadth of privacy pretexts and uncovers their moral structure. Like most pretexts, there is an element of truth to the claims. …

Civil Rights Catch 22s, Jonathan Feingold

Faculty Scholarship

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or overincarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial stereotypes and regressive theories of inequality. When this occurs, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to …

Legislating Data Loyalty, Woodrow Hartzog, Neil Richards

Faculty Scholarship

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our …

Of Afrofuturism, Of Algorithms, Ngozi Okidegbe

Faculty Scholarship

Algorithms are proliferating in criminal legal structures. The predictions produced by these algorithms inform life-altering decisions around surveillance and incarceration. Their continued use poses a challenge to ongoing racial justice efforts. Contesting how algorithms of today maintain the racial status quo requires a fundamental rethinking of the algorithm project. This essay explores how Afrofuturism can facilitate such a rethinking. It imagines how applying an Afrofuturist paradigm to the adoption, construction, implementation, and oversight of algorithms could radically change the kind of algorithms developed and the purposes for which they are developed. Tapping into this potential offers the chance for members …

Empathic Solidarity On The Frontline, Julie A. Dahlstrom

Faculty Scholarship

Jacqueline Bhabha's important article, The Imperative of Sustaining (Rather Than Destroying) Frontline Empathic Solidarity for Distress Migrants, highlights the pivotal role that "frontline communities" now play in international migration. Bhabha explores how frontline communities frequently lack the infrastructure, political will, and resources to respond adequately to "distress migrants." Yet, she unearths the potential of "empathic solidarity" to counteract bias and, more optimistically, provide a "welcoming and humanizing experience" to migrants. Indeed, in this hopeful, ambitious article, Bhabha posits that empathic solidarity can play a significant generative role for migrants' rights.

The 1876 Election: A Fictionalized Account, Jack M. Beermann

Faculty Scholarship

After the 1985 death of Robert Todd Lincoln Beckwith extinguished the Lincoln line a lengthy manuscript, containing this episode, was found among his papers. The manuscript was inscribed with these words: “This is a history of what might have been. Real places and names have been used but many of the details, including widely-known events and personalities, have been fictionalized. My hope is that someday, many years from now, historians might discover this manuscript and become confused.” The identity of the author is not revealed.

This is a fictionalized version of the Electoral Commission’s proceedings and the proceedings in Congress …

Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Ronald A. Cass, Jack M. Beermann

Faculty Scholarship

The Supreme Court’s decision in United States v. Arthrex opens a window on a set of issues debated in different contexts for decades. These issues—how to interpret statutes and constitutional provisions, what sources to look to, whether so far as possible to adopt interpretations that avoid declaring actions of coordinate branches unconstitutional, and where such actions are deemed to have been unconstitutional whether to provide remedies that cabin the most significant implications of such a declaration—go to the heart of the judicial role and the division of responsibilities among the branches of government.

Our principal focus, however, is on the …

Ms. Attribution: How Authorship Credit Contributes To The Gender Gap, Jordana Goodman

Faculty Scholarship

Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers is, to many, unethical. But it presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.

This Article fills that space by offering a quantitative analysis …

Who Benefits?: How The Aia Hurt Deceptively Non-Joined Inventors, Jordana N. Goodman

Faculty Scholarship

Congress enacted the America Invents Act (“AIA”) to bolster economic development, sustain American innovation, and protect American jobs. This pro-business legislation, however, overlooked one actor critical to any successful innovation endeavor: the inventor. The AIA created access barriers, preventing inventors from efficiently and effectively seeking the entire remedy spectrum to which they are entitled. Paul Morinville and others have opined that the new first-to-file system put small inventors out of business, naming the AIA the single worst disaster in the history of the U.S. patent system. Beyond the filing and subject matter changes, the AIA created fundamental access to justice …

Homography Of Inventorship: Dabus And Valuing Inventors, Jordana Goodman

Faculty Scholarship

On July 28, 2021, the Device for the Autonomous Bootstrapping of Unified Sentience ("DAB US") became the first computer to be recognized as a patent inventor. Due to the advocacy of DAB US's inventor, Dr. Stephen Thaler, the world's definition of "inventor" has finally fractured - dividing patent regimes between recognition of machine inventorship and lack thereof This division has sparked many scholarly conversations about inventorship contribution, but none have discussed the implications of a homographic inventorship.

This Article addresses the implications of international homographic inventorship - where countries have different notions and rules concerning patent inventorship - and the …

Delaware's Dominance, Wyoming's Dare: New Challenge, Same Outcome?, Pierluigi Matera

Faculty Scholarship

Despite increasing criticism, Delaware's dominance in corporate law has not experienced a significant decline: as of today, 67.8 percent of Fortune 500 companies are still incorporated in its jurisdiction. Nevada is known as Delaware's most important competitor, with an aggressive strategy that has overridden the efforts of any other jurisdiction. Yet, its success has been limited to a specific market segment: small firms with low institutional shareholding and high insider ownership.

Scholars suggest several explanations for both the rise and the staying power of Delaware. These explanations are essentially subsumed under the credible commitment theory and the network theory. According …

Esg And Private Ordering, Michal Barzuza, Quinn Curtis, David H. Webber

Faculty Scholarship

Easterbrook and Fischel’s seminal book The Economic Structure of Corporate Law has taught us the crucial role of markets in shaping the corporate contract. With the rise of ESG, the nature of that contract is changing, but the importance of markets (and of their limitations) is not. In this piece, building on our previous work that traces the remarkable growth of ESG to a shift in demand, primarily, but not solely, among millennials, we discuss the role of markets in shaping ESG, as well as their limitations. The rise of social values, and the increasing willingness of millennials to act …

Escaping The Allure Of Joint Employment: Using Fault-Based Principles To Impose Liability For The Denial Of Employee Statutory Rights, Michael C. Harper

Faculty Scholarship

Using joint employment alone to impose liability requires an extension of the strict imputed liability theory embodied in respondeat superior. Employers, including incorporated businesses, under the common law are strictly liable for harms to their employees, as they are for harm to third parties, because of actions of their agents or other employees taken within the scope of their employment. The liability is strict because it does not depend on a finding that the employer, the principal, was negligent or otherwise at fault. Expanding liability through joint employment, even if based on a demonstration of joint control of statutorily protected …

Ethical Duties Of Class Counsel Also Representing Class Representatives, Nancy J. Moore

Faculty Scholarship

In their excellent article entitled May Class Counsel Also Represent Lead Plaintiffs?,¹ Professors Bruce Green and Andrew Kent explore a particular aspect of two broader questions I have also addressed: (1) who should regulate class action lawyers;² and (2) who will regulate class action lawyers?³ I, too, focused on lawyers' conflicts of interest; however, Professors Green and Kent focus even more specifically on conflicts arising from class counsel's simultaneous representation of both the class and individual clients who are serving or will serve as class representatives. Their concern is with three particular scenarios in which the class …

Should Labor Abandon Its Capital? A Reply To Critics, David H. Webber

Faculty Scholarship

Several recent works have sharply criticized public pension funds and labor union funds (“labor’s capital”). These critiques come from both the left and right. Leftists criticize labor’s capital for undermining worker interests by funding financialization and the growth of Wall Street. Laissez-faire conservatives argue that pension underfunding threatens taxpayers. The left calls for pensions to be replaced by a larger social security system. The libertarian right calls for them to be smashed and scattered into individually-managed 401(k)s. I review this recent work, some of which is aimed at my book, The Rise of the Working-Class Shareholder: Labor’s Last Best Weapon, …

A Critique Of Expertise For Health Law, Aziza Ahmed

Faculty Scholarship

A health justice approach requires a progressive critique of expertise. This article considers two recent high-profile cases – the mask mandate and medication abortion -- to understand how we should think the mobilization of expertise in the context of public health law. Following from this, the article offers news ways to better understand how to think of the relationship between health law, expertise, and politics.

Introduction: Amr Belongs In The Pandemic Instrument, Susan Rogers Van Katwyk, Kevin Outterson

Faculty Scholarship

In the wake of COVID-19, the World Health Organization established an Intergovernmental Negotiating Body to negotiate a new instrument for pandemic prevention, preparedness, and response. This special issue of the Journal of Law, Medicine & Ethics brings together multidisciplinary scholarship to address the question of whether antimicrobial resistance should be included in this new instrument. Drawing from disciplines including law, anthropology, history, public health, public policy, economics, and veterinary medicine, this special issue explores the inclusion of AMR within the Pandemic Instrument from three perspectives: first, through the lens of global AMR governance, second, from the perspective of technical governance …

Abortion Experts, Aziza Ahmed

Faculty Scholarship

The COVID-19 pandemic, and the overturning of Roe v. Wade,¹ has intensified the fight for access to medication abortion. ² As state governors put emergency orders into place limiting health care provisions to essential services, some also limited access to abortion, designating it a nonessential service. ³ In the face of these challenges, women's health advocates, in keeping with prior advocacy, have called for greater access to medication abortion.⁴ The increased reliance on telemedicine during the COVID-19 pandemic provides new possibilities for the provision of abortion medication that do not rely on a patient engaging in-person at a …