Law Commons^™

What War Did To The Academy, What The Academy Did To War: A 20-Year Retrospective On The Effects Of The Post-9/11 Wars, Deborah Pearlstein

Articles

The history of the legal academy’s impact on the way states fight wars is hardly one of unmixed glory. It was a law professor moonlighting for President Lincoln who authored “Instructions for the Government of Armies of the United States in the Field” during the Civil War, a code still recognized worldwide today for having laid critical groundwork for the modern law of war. It was likewise a law professor whose work came to serve as both theoretical and practical justification for the sweeping powers of the Nazi state. So it should perhaps be unsurprising that, two decades of engagement …

Pandemic Rules: Covid-19 And The Prison Litigation Reform Act’S Exhaustion Requirement, Betsy Ginsberg, Margo Schlanger

Articles

For over twenty-five years, the Prison Litigation Reform Act (PLRA) has undermined the constitutional rights of incarcerated people. For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win—regardless of merit. We have seen the result in the wave of litigation relating to the COVID-19 pandemic. Beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them. Time and again, …

Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck

Articles

A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …

Johnson V. M'Intosh: Christianity, Genocide, And The Dispossession Of Indigenous Peoples, Cynthia J. Boshell

Cal Poly Humboldt theses and projects

Using hermeneutical methodology, this paper examines some of the legal fictions that form the foundation of Federal Indian Law. The text of the U.S. Supreme Court’s 1823 Johnson v. M’Intosh opinion is evaluated through the lens of the Convention on the Prevention and Punishment of the Crime of Genocide to determine the extent to which the Supreme Court incorporated genocidal principles into United States common law. The genealogy of M’Intosh is examined to identify influences that are not fully apparent on the face of the case. International jurisprudential interpretations of the legal definition of genocide are summarized and used as …

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 …

Developing Standards For Gender-Responsive Human Rights Due Diligence, Constance Z. Wagner, Nancy Kaymar Stafford

All Faculty Scholarship

This article addresses the current state of gender-responsive human rights due diligence (GR-HRDD) standards and advocates for greater attention to be paid to women’s human rights in the due diligence process. The 2011 United Nations Guiding Principles on Business and Human Rights (UNGPs) created a global framework for recognizing, preventing, and addressing the risk of adverse impacts of human rights violations linked to business activities. The responsibility of businesses to respect human rights under the UNGPs includes implementing a human rights due diligence process. Although the UNGPs do not provide guidance on the process for integrating women’s rights into human …

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.

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 …

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 …

Why Insurance Needs A Restatement: The Case Of Settlement Decision Law, Chaim Saiman

Faculty Publications

Even before its publication, the Restatement of the Law, Liability Insurance had been subjected to withering wholesale criticism that it creates aspirational and pro-policyholder insurance law. This view continues to be forcefully promoted by insurers and their advocates in the legal literature and by governors and state legislatures in the political areas.

This Article finds these wholesale criticisms unwarranted. Liability insurance law is not a field where law is simply found and restated. In fact, settlement law offers the most vivid examples of why the Restatement of the Law, Liability Insurance is possible, useful, and justified. It is possible because …

Qualified Immunity And Unqualified Assumptions, Teressa Ravenell, Riley H. Ross Iii

Faculty Publications

No abstract provided.

Intragovernmental Speech And Sanction, Katherine A. Shaw

Articles

This Essay, prepared as part of a symposium on Professor Helen Norton’s The Government’s Speech and the Constitution, asks what role, if any, we should understand the Constitution to play in mediating disputes over speech between and among government entities. Focusing on the examples of impeachment and censure, the piece considers scenarios in which one arm of government takes action in response to the speech of another arm or entity of government, exploring what role the Constitution should play in shaping or constraining those responses.

Addictive Technology And Its Implications For Antitrust Enforcement, James Niels Rosenquist, Fiona M. Scott Morton, Samuel N. Weinstein

Articles

The advent of mobile devices and digital media platforms in the past decade represents the biggest shock to cognition in human history. Robust medical evidence is emerging that digital media platforms are addictive and, when used in excess, harmful to users’ mental health. Other types of addictive products, like tobacco and prescription drugs, are heavily regulated to protect consumers. Currently, there is no regulatory structure protecting digital media users from these harms. Antitrust enforcement and regulation that lowers entry barriers could help consumers of social media by increasing competition. Economic theory tells us that more choice in digital media will …

The Rules Of Professional Responsibility And Legal Finance: A Status Update, Anthony J. Sebok

Articles

Legal finance occurs when strangers fund litigation for profit. Traditionally looked upon with suspicion in the common law, and limited by the doctrines of champerty and maintenance, legal finance is now a thriving part of the American legal landscape. Legal finance has been promoted as a solution to the access-to-justice problems facing working and middle class Americans, as well as a new asset class for Wall Street. At the center of legal finance, however, are lawyers – not the lawyers who write the contracts for the financing – but the lawyers for the cases being financed.
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Moonshots, Matthew Wansley

Articles

In the last half-century, technological progress has stagnated. Rapid advances in information technology disguise the slow pace of productivity growth in other fields. Reigniting technological progress may require firms to invest in moonshots—long-term projects to commercialize innovations. Yet all but a few giant tech firms shy away from moonshots, even when the expected returns would justify the investment. The root of the problem is corporate structure. The process of developing a novel technology does not generate the kind of interim feedback that shareholders need to monitor managers and managers need to motivate employees. Managers who anticipate these agency problems invest …

Post-Grant Adjudication Of Drug Patents: Agency And/Or Court?, Arti K. Rai, Saurabh Vishnubhakat, Jorge Lemus, Erik Hovenkamp

Articles

The America Invents Act of 2011 (AIA) created a robust administrative system-the Patent Trial and Appeal Board (PTAB)-that provides a route for challenging the validity of granted patents outside of district courts. Congress determined that administrative adjudication of the validity of initial patent grants could be cheaper and more scientifically accurate than district court adjudication of such validity.

For private economic value per patent, few areas of technology can match the biopharmaceutical industry. This is particularly true for small-molecule drugs. A billion-dollar drug monopoly may be protected from competition by a relatively small number of patents. Accordingly, the social cost …

Legal Recognition Of Animal Sentience: The Case For Cautious Optimism, Jane Kotzmann

Animal Sentience

Rowan et al.’s target article provides a valuable indication of the work that was required to reach the point where animals are recognised as sentient in various laws. To ensure this work was not in vain, the language of sentience needs to be used as a moral currency to demand further cultural change involving greater human respect for animals.

Unincorporating Qualified Immunity, Teressa Ravenell

Faculty Publications

Scholars, judges, activists, and policymakers alike have criticized the doctrine of qualified immunity, which emerged in Pierson v. Ray to shield government actors from monetary liability in a wide range of suits filed under 42 U.S.C. § 1983, derived from the Civil Rights Act of 1871. These criticisms have ranged from the practical to the principled, but they largely ignore the question of statutory interpretation: is it valid to read § 1983, which makes no mention of any defense or immunity, as incorporating a qualified defense for government officials who acted in good faith and with probable cause? The Court …

Data Transfers After Schrems Ii: The Eu-Us Disagreements Over Data Privacy And National Security, Monika Zalnieriute

Vanderbilt Journal of Transnational Law

In the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement, which facilitated data transfers between the European Union and the United States. Schrems II illuminates long-lasting international disagreements between the EU and the United States over data protection, national security, and the fundamental differences between the public and private approaches to the protection of human rights in the data-driven economy and modern state. This Article approaches the decision via an interdisciplinary lens of international law and international relations and situates it …

The Divergent Designs Of Mandatory Takeovers In Asia, Umakanth Varottil, Wai Y. Wan

Vanderbilt Journal of Transnational Law

Optimal takeover regulation aims to promote efficient changes of corporate control while curbing inefficient takeovers. Viewed from a comparative perspective, the Anglo-American prototypes of takeover regulation spearhead not only the discourse but also the dissemination of takeover regulation globally. At one end of the spectrum, the law in the United States follows the "market rule," whereby transfers of corporate control benefit from a regulatory free hand. At the other end of the spectrum lies the "mandatory bid rule" (MBR), epitomized by takeover regulation in the United Kingdom. Under the United Kingdom's version of the MBR, an acquirer who acquires de …

Your Body, Your Cells? Direct-To-Consumer Marketing Of Autologous Stem Cell Therapies In The United States, Japan, And Australia, Kathleen C. Laird

Vanderbilt Journal of Transnational Law

Stem cell tourism has relocated; patients in search of stem cell therapies to treat nearly any disease can find clinics selling miracle cures without traveling beyond their national borders. Businesses marketing unproven autologous stem cell therapies are now plentiful in highly regulated, wealthy countries, including the United States, Japan, and Australia. Despite regulatory oversight of stem cell therapies and strong support for scientific innovation in these countries, the internet and social media have facilitated the rapid growth and success of a new industry selling unproven treatments directly to consumers. Clinics selling unproven autologous stem cell therapies have succeeded by developing …

Artificial Waterways In International Water Law: An American Perspective, Tamar Meshel

Vanderbilt Journal of Transnational Law

Freshwater is a fleeting natural resource that can never be fully harnessed or appropriated by humans. Nonetheless, under both domestic and international law, freshwater is a regulated resource and legal principles have developed to govern its allocation and use. But what of freshwater that, rather than flowing naturally, has been made to so flow by human intervention? Should artificial waterways be subject to the same legal principles that govern the ownership and use of waterways that are naturally occurring?

This Article takes a first step toward clarifying when and how international water law principles applicable to natural transboundary waterways should …

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 …