Law Commons^™

Multibillion-Dollar Tax Questions, James Alm, Jay A. Soled, Kathleen Delaney Thomas

Faculty Publications

Tax compliance in the United States historically hovers in the 80 percent range, costing the nation approximately half a trillion dollars annually in uncollected tax revenue. To foster greater tax compliance, the Internal Revenue Service (IRS) should employ whatever tools are at its disposal. Standard deterrence theory argues that increasing the audit rate and imposing stiffer penalties would foster greater tax compliance. There are political headwinds, however, that strongly suggest that these approaches are not currently viable. Instead, there is a low-cost method that could yield greater tax compliance. Drawing on recent and compelling social science research, the IRS should …

The Uptake And Measurement Of Alternative Approaches To Domestic Violence Intervention Programs: A Scoping Review, Julia K. Campbell, Sydney Nicolla, Deborah M. Weissman, Kathryn E. Moracco

Faculty Publications

This scoping review explores the breadth and depth to which Domestic Violence Intervention Programs (DVIPs) in the United States and globally: (a) incorporate components that address the relationship between intimate partner violence (IPV) and social injustice, racism, economic inequality, and adverse childhood experiences (ACEs); (b) use restorative (RJ)/ transformative justice (TJ) practices, individualized case management, partnerships with social justice actors, and strengths-based parenting training in current programming; and (c) measure effectiveness. In 2021, we searched 12 academic databases using a combination of search terms and Medical Subject Headings. In all, 27 articles that discussed at least one key concept relative …

Natural Objects And Testamentary Freedom, Kevin Bennardo

Faculty Publications

This Article explores the tension between inheritance law’s designation of certain beneficiaries as natural and unnatural for certain purposes and its organizing principle of testamentary freedom. Either inheritance law is primarily concerned with effectuating the preference of the decedent or it is primarily concerned with safeguarding the economic health of the family. It cannot be both. Ultimately, one of these two must yield. Either we acknowledge that decedents don’t have the level of dispositional freedom that is advertised or we change the law’s designation of some devises as natural and other as unnatural.

This Article proposes a pathway to relieve …

American Association Of Law Libraries Academic Special Interest Section White Paper On Continuing Status And Tenure Of Law Librarians, Aall Special Interest Section On Academic Law Libraries Subcommittee On Continuing Status And Tenure, Stephanie Davidson, Cindy Hirsch, Caroline Osborne, Brian Quigley, Jessica Whytock

Faculty Publications

In 2023 the ALL-SIS Continuing Status/Tenure Committee was charged with developing a white paper to provide information on the status, rights, and responsibilities of academic law librarian positions. The information provided in this paper is intended to allow law librarians to make informed career choices, increase knowledge of the rights and obligations of librarian positions, and ensure the development of necessary skills and education for future new positions. Clarity on how positions are structured, their required skills, and credentials is essential at all levels of experience for planning and development for future career growth.

This White Paper does not advocate …

Data Controllers As Data Fiduciaries: Theory, Definitions & Burdens Of Proof, Noelle Wilson, Amanda Reid

Faculty Publications

No abstract provided.

Understanding Our Digital Fingerprints: Metadata, Competency, And The Future Practice Of Law, Stacey Lane Rowland

Faculty Publications

Metadata, often referred to as “data about data,” plays a crucial role in the digital world. It encompasses embedded information within electronic documents that reveals details about their creation, modification, and transmission. In legal proceedings, metadata can be both helpful and controversial, as it can expose sensitive information and potentially support or refute claims of fabricated evidence. With the widespread use of smartphones and other electronic devices, individuals generate vast amounts of personal data, including metadata, that can provide detailed insights into their lives.

This Article explores the significance of metadata in various contexts, such as digital photographs, and highlights …

Crypto Failure In The Shadows, Kara J. Bruce

Faculty Publications

This Article examines the tension between bankruptcy law’s strong transparency norms and the extensive sealing of records in major cryptocurrency bankruptcy cases following the 2022–2023 “crypto winter.” Through analysis of cases including FTX, Celsius, Voyager, and BlockFi, the Article shows how crypto debtors have secured broad protective orders shielding creditor identities and internal documents. It argues that these secrecy practices depart from bankruptcy’s traditional information‑forcing function, inhibiting oversight and creditor participation. While valid privacy concerns exist, courts have too readily accepted expansive sealing without rigorous evidentiary support. The Article proposes a normative framework for evaluating sealing requests under §107, emphasizing …

Erie And Forum Selection Clauses, John F. Coyle, F. Andrew Hessick

Faculty Publications

This article argues that federal courts should apply state law to determine the enforceability of outbound forum selection clauses in diversity cases. Using a hand-collected dataset comparing hundreds of state and federal decisions, the authors show that federal courts enforce such clauses at significantly higher rates, creating incentives for forum shopping and uneven contract rights. They contend that enforceability is a substantive contract issue under Erie and that federal courts lack authority to create federal common law in this area outside §1404(a). The article concludes that applying state law uniformly would prevent inequitable administration and restore coherence to forum selection …

Reflections On Purpose And Professional Identity Formation, Harmony Decosimo

Faculty Publications

This essay explores how law students and lawyers develop, lose, or reorient their sense of purpose, using the author’s own trajectory through law school and practice to illustrate structural barriers—competition, lack of reflection, limited mentorship, and ideological homogeneity—that complicate identity formation. Identifying common lawyer archetypes whose work aligns differently with purpose, the author argues that legal education must make space for reflection, diverse viewpoints, and virtue-based development to enable students to integrate purpose meaningfully into their professional identities.

Border Trouble: Critical Reflections On The Canada-Us Safe Third Country Agreement Litigation, Efrat Arbel

All Faculty Publications

The Canada-US Safe Third Country Agreement (STCA) has been subject to two different legal challenges before three different Canadian courts and considered in five different judicial decisions. This notwithstanding, the litigation surrounding its legal validity is not yet conclusively determined. This article analyses all five STCA decisions to develop a critical reading of the leading decision as issued by the Supreme Court of Canada in 2023. It posits that the Supreme Court of Canada, like the appellate courts before it, erred in its understanding of the STCA. Specifically, the Court did not engage the facts on record in sufficient detail, …

The Future Of Unfair Terms Regulation In Commercial Contracts, Marcus Moore

All Faculty Publications

What is the future of unfair contract terms regulation? To date, regimes of unfair terms regulation have shared several key operational features, but have diverged on the question of the scope of regulation: some regimes focus on consumer contracts or exemption clauses, while other regimes include all commercial standard form contracts. Both domestic and transnational commerce would be well served by broader harmonisation of unfair terms regulation. But divergence on the basic question of the scope of regulation has hindered such harmonisation. Some important recent developments suggest a possible trend towards regulation of a scope which includes all standard form …

The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrine, Steven M. Goldstein --

Vanderbilt Law Review

In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment’s prohibition of “unreasonable” seizures does not bar legally mistaken seizures because “[t]o be reasonable is not to be perfect.” Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be “exceedingly rare.” In a solo dissent, Justice Sotomayor fairly “wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized …

The Impact Of Banning Confidential Settlements On Discrimination Dispute Resolutio, Blair D. Bullock, Joni Hersch -- Cornelius Vanderbilt Professor Of Law And Economics

Vanderbilt Law Review

The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop "secret settlements" by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.

But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public …

Access To Justice For Black Inventors, Jordana R. Goodman, Khamal Patterson

Vanderbilt Law Review

To receive a patent, an inventor must meet certain inventive and procedural standards. Their invention must be novel, nonobvious, and written in such a way that any person skilled in the inventive subject can make and use the invention without undue experimentation. This process is far from objective.

An inventor is not always communicating within their own social circle. An inventor is required to communicate their invention so that a patent examiner believes a person having ordinary skill in the art ("PHOSITA") would recognize the invention as nonobvious. Moreover, a fictitious skilled person must be able to make and use …

The Financialization Of Frequent Flyer Miles: Calling For Consumer Protection, Ari Goldfine

Vanderbilt Law Review

Airlines' frequent flyer programs operate more like a monetary system, with points as a form of currency, than a typical discount or rewards plan. In fact, airlines' power over points is even more extensive than that of a central bank over currency beyond simply determining how many points are in circulation, airlines also control the value of points at redemption, how many points consumers can accumulate, and when points expire. This financialized form of frequent flyer programs has proven to be lucrative. For the Big Four airlines, frequent flyer programs are worth markedly more than the business of providing air …

The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrin, Wayne A. Logan

Vanderbilt Law Review

In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment's prohibition of "unreasonable" seizures does not bar legally mistaken seizures because "[t]o be reasonable is not to be perfect." Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be "exceedingly rare." In a solo dissent, Justice Sotomayor fairly "wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized …

Do Dyslexia Laws Help Students With Visual Impairments Receive Needed Reading Supports? A Mixed-Methods Approach., Lindsay N. Harris, Johnnie Jones, Molly Pasley, Lisa Liberty, Tiffany Puckett

CISLL Publications

Teachers of students with visual impairments (TSVIs) have long expressed frustrations about the difficulty of getting a dyslexia diagnosis for students with visual impairments, but there is limited data to validate their concerns. Moreover, although most U.S. states have passed dyslexia laws that require universal screening and/or intervention for students with dyslexia, the laws may not be applied equally across all populations of students. A mixed-methods approach can validate TSVIs’ perspectives by revealing whether dyslexia legislation is associated with TSVIs’ perceptions of how their students’ needs are being met. To this end, we conducted a qualitative analysis of TSVI survey …

Environmental Law: The Negotiable Implementation Of Environmental Law, Dave Owen

The Judges' Book

No abstract provided.

Predictability And Adaptation In Law And Other Markets (Chapter In A Coming Book: Research Handbook On Law And Time), Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

People and enterprises that are subject to the law find it useful to know what the law is at present, but then also to anticipate future rules. If laws are stable this is easily done. Stability is more common where the judicial branch is concerned, because precedents are often valued, and for good reason. They are more often followed by judges than by those involved in other methods of lawmaking. But in all of lawmaking, and even in the private sphere, there is value to consistency and certainty. And yet, surprises can be attractive if they are not confronted on …

Extraordinary Punishment: Conditions Of Confinement And Compassionate Release, Meredith B. Esser

Scholarly Works

People experience severe forms of harm while incarcerated, including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills. But civil rights litigation under the Eighth Amendment the most common vehicle through which people seek to redress these harms presents significant practical and doctrinal barriers to incarcerated plaintiffs. Most notably, the Eighth Amendment's "deliberate indifference" standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials. Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately …

Who Bears The Burden When Prison Guards Rape?, Meredith B. Esser

Scholarly Works

Several recent scandals have highlighted the continued problem of institutional sexual abuse within the federal Bureau of Prisons ("BOP"). Most notoriously, the rampant sexual abuse of women incarcerated at Federal Correctional Institution ("FCI") Dublin, also known as the "rape club," resulted in the prosecution and conviction of several high-ranking officials within FCI Dublin, including both the former Warden and former Chaplain who worked there for several years. In response to these patterns of misconduct, the Federal Sentencing Commission's new guidelines, which went into effect on November 1, 2023, now allow for victims of custodial sexual assault to apply for early …

A Rpl In Time: A Brown Buffalo's Observations On The Ongoing Struggle Of Civic And Racial Nationalism In Higher Education - Circa 2023, Tom I. Romero Ii

Scholarly Works

No abstract provided.

Access To Ai Justice: A Global Response To A Global Crisis, Drew Simshaw

Scholarly Works

No abstract provided.

Building Resilience: The Role Of Public Private Partnerships In Disaster Management For Vulnerable Communities, Latisha Nixon-Jones

Scholarly Works

This essay provides a compelling historical analysis of the legislative developments that have shaped the current framework of disaster management in the United States. By tracing the evolution of these laws, it highlights a crucial shift in disaster responsibility—from centralized government agencies to a shared burden with the communities they aim to protect. In response to this shift, I propose that disaster management agencies adopt a socio-legal framework designed to guide the formation of public- private partnerships (PPPs). Such a framework would offer a structured approach to balancing transparency with the profitability goals that often characterize private involvement in public …

Is Now A(Nother) Teachable Moment Honoring The Memory Of Dr. William S. Spriggs, Francine J. Lipman

Scholarly Works

No abstract provided.

Taxing Undocumented Immigrants Redux, Francine J. Lipman

Scholarly Works

No abstract provided.

Nextgen Licensure & Accreditation, Nachman Gutowski

Scholarly Works

No abstract provided.

Religious Accommodations In The Dobbs Era, Ann C. Mcginley

Scholarly Works

Given the deep political divide in the U.S. and the emotional response to the abortion issue, workplaces may become hostile environments that harm workers based on their pro- or anti-abortion views or their out-of-work activism. Besides hostile environments, some workers may suffer workplace discipline based on their speech at work or refusals to engage in certain job requirements. Disciplining employees for engaging in workplace speech or refusal to perform parts of their jobs may violate workers’ rights under Title VII of the Civil Rights Act of 1964, which requires that employers grant religious accommodations in the workplace if doing so …

Dicta Mines, Pretext, And Excessive Force: Toward Criminal Procedure Futurism, Frank Rudy Cooper

Scholarly Works

Scholars have recently criticized Fourth Amendment pretext doctrine for leading to more police contact with Black and Brown people and thus to racially disproportionate uses of excessive force. This Essay reveals the intersection of the Court’s pretext and excessive force doctrines by unearthing their shared roots in the 1973 United States v. Robinson search-incident-to-arrest opinion.

This Essay’s new insight is that Robinson contains what it calls a “dicta mine.” A dicta mine is (1) an unnecessary statement that (2) a Court silently recharacterizes as having already resolved an issue, (3) exploding it into a significant doctrine. The Robinson dicta mine …

La Fin Du Droit National A L'Interruption Volontaire De Grossesse Aux Etats-Unis: Quels Enseignements Pour L'Etude Comparative Des Droits?, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.