Law Commons^™

Saying What The Law Should Be, F. Andrew Hessick

Faculty Publications

Recent years have seen a resurgence of the view that the role of the federal courts is to declare what the law is, not what the law should be. Scholars and judges, including a majority of the current U.S. Supreme Court justices, have expressed this view that the law is fixed at its creation and the function of courts is to declare its meaning. But this view is inaccurate. Descriptively, federal courts often say what the law should be. Judges fashion common law, inject their views into interpretations, and issue opinions that do not merely describe the law but have …

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 …

Nonmarriage And Choice In South Africa And The United States, Holning Lau, Suzanne A. Kim

Faculty Publications

In this Article, we examine three insights about free choice that emerge from studying the development of South Africa’s law of nonmarriage. First, South African jurisprudence advances understandings of nonmarriage as a valid choice. Unlike U.S. jurisprudence, which has been accused of overprivileging marriage and demeaning nonmarriage, South African jurisprudence draws attention to people’s legitimate reasons for choosing not to marry and the dignity interests attached to that choice. South African law helps to broaden the imagination of what is possible when nonmarriage is respected as a valid choice.

Second, South African jurisprudence illuminates the fact that the choice whether …

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

Faculty Publications

This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, …

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 …

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, …

Precautionary Ratemaking, Jonas J. Monast

Faculty Publications

For more than one hundred years, states have relied on ratemaking to ensure that electric utilities deliver affordable and reliable power to their customers. This process helped keep costs down, but it also produced an electricity system that is a cause of, and vulnerable to, some of the most pressing challenges now facing society: climate change, catastrophic wildfires, extreme storms, and air and water pollution.

This Article argues that risk regulation is an alternate legal foundation for interpreting bedrock principles of ratemaking, such as prudency, reasonableness, least cost, and the public interest. The traditional economic regulator view of ratemaking evaluates …

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 …

Local Power, Alexandra B. Klass, Rebecca Wilton

Vanderbilt Law Review

This Article is about “local power.” We use that term in two distinct but complementary ways. First, local power describes the authority of local governments to enact regulatory policies in the interests of their citizens. Second, local power describes the authority of local governments to exercise proprietary control over the sources and delivery of electric power to their citizens. This dual meaning of local power is particularly important today, as an increasing number of local governments are seriously considering “municipalizing”--taking control of local electric power systems-—at the same time that, outside the electric power sector, many states are constraining local …

Preliminary Damages, Gideon Parchomovsky, Alex Stein

Vanderbilt Law Review

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well-off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource-constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing …

Dynamic Corporate Purpose: Decentralizing The Choice Over Director Orientation, Fields Pierce

Vanderbilt Law Review

The debate over corporate purpose has turned into a “gordian knot” where parties with entrenched beliefs about what the corporation should or should not be within society refuse to waver. There are inherent flaws with the governance models proposed by academics, politicians, and practitioners alike, so a novel method for setting and maintaining corporate purpose is required. This Note asks why there must be a one-size-fits-all approach to purpose and proposes a solution: dynamic corporate purpose.

This Note argues that states should not mandate all corporations hold the same corporate purpose but instead should use the logic of the public …

The Expanding Universe Of Bilateral Labor Agreements, Adam Chilton, Bartosz Woda

Coase-Sandor Institute for Law & Economics Research Paper Series

In the seventy-five years since the end of World War II, pairs of countries have entered into over a thousand bilateral labor agreements (BLAs) to regulate the cross-border flow of workers. These agreements have received little public or academic attention. This is likely, in part, because there is limited data or easily available information on BLAs. This Article hopes to change that by introducing three new resources: (1) a dataset documenting the formation of over 1,200 BLAs; (2) a corpus including the texts of over 800 BLAs; and (3) a dataset coding whether over 500 BLAs mention twenty topics that …

In Defense Of Chapter 11 For Mass Torts, Anthony J. Casey, Joshua C. Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

This Essay argues that bankruptcy proceedings are well-suited to resolving mass tort claims. Mass tort cases create a collective action problem that encourages claimants who are worried about available recoveries to race to the courthouse to collect ahead of others. This race can destroy going concern value and lead to the dismemberment of valuable firms. Coordination among them is difficult as each claimant seeks to maximize its own recoveries. These are the very collective action and hold-out problems that bankruptcy proceedings are designed to solve. As such, bankruptcy proceedings are appropriate means of resolving mass torts as long as they …

The Bankruptcy Tribunal, Anthony J. Casey, Joshua C. Macey

Coase-Sandor Institute for Law & Economics Research Paper Series

The United States Bankruptcy Code (the Code)¹ and the Federal Arbitration Act (FAA)² are powerful statutory schemes. Each one demands a broad scope of influence and preempts many other fields of law, state and federal. The capacious nature of these statutes creates a challenging tension when they come into conflict. On the one hand, bankruptcy law is in its very essence a collective multiparty dispute resolution procedure that cannot be waived or altered by private contract. On the other hand, the FAA embodies a general federal policy in favor of allowing parties to contract into private dispute resolution …

Streaming Property, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

People acquire property rights in objects and real estate in order to capture the stream of services that these assets can provide over time. The thing or parcel itself is merely a delivery mechanism, a way of packaging and protecting rights to that value stream. And, significantly, these assets cannot stream services to anyone without a set of facilitating conditions and complementary goods, such as public infrastructure, that do not lie within the asset owner’s individual control. This Essay argues that we can gain fresh traction on inequality by recasting property as service streams rather than as owned things. Doing …

The Language Of Power: An Investigation Of How The Macropolitics Of Education Policy Affects The Micropolitics Of Schooling English Learners, Catherine E. Vannatter

Theses and Dissertations--Education Sciences

The population of English Learners (ELs) continues to increase across the United States, and these students persistently perform below their native English-speaking peers in measures of academic achievement. Federal government leaders passed the Every Student Succeeds Act (ESSA) in 2015, which modified how state and local educational agencies identify, instruct, assess, and reclassify ELs and revised what funding EL programming could receive. In this multiphase study, I investigated how the macropolitics of federal and state policy became enacted in the micropolitics of a mid-sized school district in Kentucky. Through an initial phase of document review followed by a mixed methods …

Masthead

UC Law Journal

No abstract provided.

What Got Us Here, Won’T Get Us There: Why U.S. Commercial Space Policy Must Lie In An Independent Regulatory Agency, Gerardo Inzunza Higuera

UC Law Journal

This Note addresses the need for a comprehensive, centralized independent agency designated solely for the management of commercial space activities. The current commercial “space rush” promises unimaginable possibilities and profits for a burgeoning sector, yet no single federal agency has been entrusted with the regulation of this nascent industry. Currently, the United States has settled into an inefficient, fragmented regulatory approach that unduly burdens commercial players and frustrates its national objective of fostering a robust commercial low- Earth orbit economy. This Note analyzes proposals by Congress for such a new regulatory agency and concludes by proposing a new framework that …

The Federal Response To Covid-19: Lessons From The Pandemic, Nancy J. Knauer

UC Law Journal

When the first suspected human-to-human transmission of the novel coronavirus was reported in January 2020, the United States had in place an elaborate set of pandemic disaster and response plans that spanned hundreds of pages. The George W. Bush administration spearheaded national pandemic planning in 2005 as part of the post-September 11 efforts to modernize the country’s disaster response capabilities. Subsequent administrations revisited and revised the various pandemic plans, including the Trump administration as recently as 2017 and 2018.

Despite these detailed plans, the Trump administration was slow to respond to the emerging public health crisis or implement any of …

How Can I Ever Repay You? The Borrower’S Dilemma And A Tax-Based Solution To The Student Debt Problem, Kate Souza

UC Law Journal

The growing cost of higher education relative to wage growth means that college is no longer the sure path to financial security it once was. While the cost of tuition ballooned over the past several decades, government funding for higher education diminished. Students have made up the difference by borrowing more. For many borrowers, large student loans result in unmanageable debt that makes their financial futures less secure. Student debt also harms society and the economy. If the government wants Americans to continue to have access to higher education, it must find ways to make higher education more affordable.

Politicians …

Faculty List

Journal of Dispute Resolution

No abstract provided.

Masthead

Journal of Dispute Resolution

No abstract provided.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Abuse Just Out Of Frame: The Impact Of Online Dispute Resolution On Domestic Violence, Haley Benson

Journal of Dispute Resolution

“This is a[n] issue we didn’t have when we had live court.” It was a chilling day for prosecutor Deborah Davis when she discovered a victim of domestic violence was in the same apartment as her abuser during a session of Zoom court. In this case, the survivor had done the hardest part; she had made the decision to prosecute her abuser. As court began, Davis saw that her client had a similar virtual background to the alleged abuser and noticed that her client was looking away from the camera while answering questions. This prompted Davis to request that police …

Charting A Middle Course For Court-Connected Mediation, John Lande

Journal of Dispute Resolution

Court-connected mediation programs have produced important benefits for parties, practitioners, courts, and society generally. These programs have helped lawyers settle tough cases and generally manage their workload while their clients retain the power to litigate if they cannot reach an acceptable agreement. Courts have created and enforced rules to protect the integrity of process so that parties’ time and money in mediation are well spent.

Questions Of Arbitrability In The World: Comparing The Jurisprudence Of The United States And India, Henry Sivils

Journal of Dispute Resolution

If a matter is not arbitrable, then it may not be arbitrated.2 Arbitrability, generally, refers to the authority that an arbitrator possesses to decide a matter.3 A challenge to that authority is considered a “question of arbitrability.”4 There are three types of questions of arbitrability: (1) substantive challenges that a dispute is not arbitrable under the terms of an arbitration clause; (2) the contention that, despite substantive arbitrability, procedural circumstances exist that prevent arbitration; and (3) “post-award attacks on an arbitrator’s decision.”5 Of those three, “whether a matter is arbitrable under a given arbitration clause” has had recent developments in …

Preserving The Relationship: Addressing The Covid Eviction Crisis Through Equitable Mediation, Cade Jones

Journal of Dispute Resolution

Not only has the coronavirus pandemic (“COVID-19”) has taken many lives, another substantial side effect are that many Americans are at risk of eviction because of the current COVID-19 pandemic. Since the pandemic began, more than 20 million renters have suffered job loss because of COVID-19. One particular aspect of daily life the pandemic has impacted is landlord-tenant relationships because tenants cannot make rent payments to the landlord which then leads to a landlord filing for bankruptcy. With tenants not making rent payments due to job loss, it has produced a detriment with landlord-tenant relationships that could produce a ripple …

Restorative Justice: An Alternative Dispute Resolution Approach To Criminal Behavior, Kayla Welch

Journal of Dispute Resolution

Beginning with the end of the Mass Prison Era in the late 1800s, Americans have looked for a better way to respond to crime and those who commit it. Since the Reformatory Era, the United States has swayed between punitive models based on either the Reformatory or Retributive theories. Despite the changes we have made, our criminal justice system suffers from long waiting periods for a trial, overburdened public defenders, overcrowded jails and prisons that often lead to unsafe conditions for the inmates and corrections officers, and many other problems.

Review Of Daniel Farber, Inequality And Regulation: Designing Rules To Address Race, Poverty, And Environmental Law, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

Dan Farber’s wide-ranging article, Inequality and Regulation, makes two core arguments. First, Farber argues that using a uniform value of statistical life (VSL) in cost-benefit analysis is justified not only as a pragmatic compromise but also as a matter of first principles. In particular, he argues that a uniform VSL can be based on a theory of equality that he calls harm egalitarianism, which holds that individuals have equal entitlements to protection against harm. Second, Farber, looking for ways to address environmental justice concerns through regulations, argues that “a heightened focus on differences in exposure and vulnerability [in the cost-benefit …