Law Commons^™

Private Security And Public Police, Ben Grunwald, John Rappaport, Michael Berg

Coase-Sandor Institute for Law & Economics Research Paper Series

Private security officers outnumber police by a wide margin, and the gap may be growing. As cities have claimed to defund the police, many have quietly expanded their use of private security, reallocating spending from the public to the private sector. It is difficult to know what to make of these trends, largely because we know so little about what private security looks like on the ground. On one prevalent view of the facts, a shift from public to private security would mean little more than a change of uniform, as the two labor markets are deeply intertwined. Indeed, academics, …

Property Moves: Assembling Service Streams, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

In this essay, I consider how we might retrofit property rights to meet modern urban and environmental challenges, which have foundationally rewritten property’s job description. The way forward requires attending to the beneficial services that resources provide, and to the central role of assembly (and reassembly) in generating and sustaining those service streams. To that end, I catalog a repertoire of “property moves” aimed at the moving target of resource optimization. While these moves can be pursued in limited ways within our current property framework, pursuing them in concert at scale requires ownership that is built for ongoing reconfiguration. I …

Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Coase-Sandor Institute for Law & Economics Research Paper Series

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

Restructuring Support Agreements: An Empirical Analysis, Katherine Waldock, Anthony Casey, Frederick Tung

Coase-Sandor Institute for Law & Economics Research Paper Series

Restructuring support agreements (RSAs), or contracts that commit bankruptcy parties to supporting a plan of reorganization that will conform to certain requirements, are now a common feature of Chapter 11. Parties utilize these agreements in nearly half of all large cases. While prior literature has debated the normative value of RSAs, we take an empirical approach to look at what provisions the parties include in these agreements and how those provisions have changed over time.

Our analysis looks at all RSAs associated with large bankruptcies through the end of 2020. We characterize the types of firms with RSAs, the parties …

Invisible Work And Labor Market Power; Or, Why Labor Should Be Commodified, Eric A. Posner

Coase-Sandor Institute for Law & Economics Research Paper Series

Certain types of work-like behavior are not treated as paid labor in the law—and thus are not taxed or given workplace protections, for example—and often are not understood to be work by ordinary people. This kind of “invisible work” is exceedingly common. It encompasses not only the frequently discussed example of household labor, but also the work, or some of the work, of (for example) athletes, soldiers, students, artists, volunteers, religious and political figures, and consumers who implicitly trade work as well as money for products and services. Invisible work is the product of cultural understandings left over from the …

Jack Daniel’S And The Unfulfilled Promise Of Trademark Use, Stacey Dogan, Jessica Silbey

Faculty Scholarship

In Jack Daniel’s v. VIP Products, the Supreme Court announced a bright-line rule: whatever speech protections govern the use of trademarks in artistic works, no such rule applies “when an alleged infringer uses a trademark in the way the Lanham Act most cares about: as a designation of source for the infringer’s own goods.” Those who engage in “trademark use,” in other words, must face the usual likelihood-of-confusion standard, regardless of whether their use also has expressive dimensions. The Jack Daniel’s defendant conceded that it was engaged in trademark use, so the opinion did not do the hard work …

Roads Not Taken On Affirmative Action, Robert L. Tsai

Faculty Scholarship

The law of affirmative action is a mess. In the short term, legal doctrine is constrained by path dependence, but its long-term future is murkier due to the many unforeseen contingencies. To regain a sense of the possible, this Article looks forward to the future of equality jurisprudence by looking backward. It recovers three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right …

The Chicago School’S Coasean Incoherence, Madison Condon

Faculty Scholarship

This comment traces the divergent legal academic interpretations of the Chicago School's Ronald Coase and where their influence lands--revealing the law’s inconsistent conception of just what a corporation is or should be. By following Alyssa Battistoni's investigation of the origin of the "externality," we can see the late 60s and early 1970s as a pivotal era. People were waking up to the collective costs of industrialization and pushing back against corporate power. Against this democratic wave, the writings of the Chicago School worked to separate one human person into her different roles in the economy—consumer, worker, shareholder. They used the …

The War On Higher Education, Athena Mutua, Jonathan Feingold, Angela Harris, Emily Houh, Matthew Patrick Shaw, Frank Valdes

Faculty Scholarship

Academic freedom is under assault in the United States.¹ Like the authoritarian populism rising across the globe, domestic attacks on individual professors and academic institutions buttress a broader and multifaceted campaign to undermine multiracial democracy and the institutions that sustain and safeguard it.² The individuals and entities driving this antidemocratic movement have also targeted the electoral process; public education; the right to bodily autonomy; the civil rights and liberties of minoritized and marginalized communities; and freedom of speech and expression (increasingly marshaled against pro-Palestinian advocacy).³ Their openly stated goal is to delegitimize, defund, and “lay siege to” …

Confronting Structural Inequality In State Labor Law, Andrew Elmore

Faculty Scholarship

Low-wage workers face a structural problem in seeking to improve their work standards: While companies have substantial labor market power to impose work terms and conditions, workers require affirmative state support to collectively press their workplace demands. But their employers can mobilize private capital and property rights, often with judicial deference, to fend off state intrusions into the workplace. While the National Labor Relations Act aims to resolve this structural problem by protecting the rights of workers to join unions, strike, and collectively bargain, employers, backed by judicial support for managerial prerogatives and property rights, can often leverage NLRA weaknesses …

Strategic Incentives For Adopting The Global Minimum Tax, Wei Cui

All Faculty Publications

The USA, alongside many other nations, presently faces a vital policy choice: should it adopt the global minimum tax proposed by the Organization for Economic Cooperation and Development, purportedly to ensure basic levels of corporate taxation of large multinationals? I set out a framework for analyzing and predicting global minimum tax adoption by self-interested, national-income maximizing governments. Contrary to both popular and prior scholarly claims, the global minimum tax is incentive incompatible: countries from which multinationals originate will likely suffer deep losses; the tax’s purported enforcement tool, even read in an aggressive, controversial fashion, is ineffective. The global minimum tax …

The Role Of Pornography In The “Rough Sex” Defence In Canada, Lisa Gotell, Isabel Grant, Elizabeth Sheehy

All Faculty Publications

Drawing upon the authors’ earlier research studying the consent defence when it is used to suggest that the complainant agreed to “rough sex” involving violence, this paper develops an extended analysis of the complex role of pornography in these decisions. This paper focuses on a subset of “rough sex” cases, where pornography played a role in “scripting” the accused’s behaviour. Thematically, these cases included: those where the accused had a substantial history of consumption of violent pornography; cases in which the accused forced the complainant to view pornography as part of the assault; cases where the accused recorded the attack, …

The Governance Of Public Space By Legally Unique Bodies: A Case Study Of Vancouver’S Granville Island, Alexandra Flynn, Claire Stevenson-Blythe

All Faculty Publications

This paper focuses on the governance of Granville Island, a former industrial stretch of land that operates as an arts destination abutting the city’s waterfront. While Granville Island might look like any other neighbourhood in Vancouver, it is in fact owned and managed by the Canada Mortgage and Housing Corporation, a federal agency, on behalf of the Government of Canada. This paper examines what it means, democratically speaking, for the federal government to operate public space in a city. Public entities are each legally unique, raising questions as to how public entities and their relationships with other entities can be …

“A Hot Day In Iqaluit”? Environmental Rights In Canada’S Constitutional Cul-De-Sac, Stepan Wood

All Faculty Publications

Proposals to include an explicit right to a healthy environment in Canada’s constitution have been advanced since the early 1970s, but Canada is stuck in a decades-long impasse that precludes substantial constitutional amendment. This article uses the metaphor of the cul-de-sac to explore the prospects for legal recognition of environmental rights in this situation. It canvasses past efforts to entrench general and Indigenous environmental rights in Canada’s constitution, introduces culs-de-sac metaphorical and real, and highlights the irony of one commentator’s 2005 quip that it will be “a hot day in Iqaluit” when Canada’s constitution undergoes significant amendment. It then surveys …

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 …

Broadening The Community, Strengthening The Movement: An Introduction To The Innocence Project "Just Data" 2024 Scholarship Issue, Vanessa Meterko, Jaime S. Henderson, Ngozi Ndulue, Tebah Browne, Valena Beety

Articles by Maurer Faculty

This special issue of The Wrongful Conviction Law Review features a collection of seven research papers presented at the Innocence Project’s 2023 Just Data: Advancing the Innocence Movement conference. This annual event, organized by the Innocence Project and partners in the larger Innocence Network, brings together a diverse group of scholars and advocates, including those who have been wrongfully convicted themselves, to share the latest social science, discuss emerging issues, and make connections to inform our collective work and promote new applied research. Social science research, often conducted quietly and behind the scenes, is critical to data-driven litigation and policy …

Silencing The Sex Worker, Yvette Butler

Articles by Maurer Faculty

This Article argues that sex workers are silenced when they attempt to contribute to lawmaking processes. As a result, they are unable to contribute their knowledge in a meaningful way. The consequence is that laws reflect only one perspective of life in the sex trades: the prostitution abolitionist position that all sex work is inherently a form of violence against women. Without the ability to help shape this narrative, sex workers will continue to be silenced by the allegation that they are a danger to the feminist movement, courts will make harmful rulings, and legislatures will continue to enact laws …

Private Climate Governance Of Finance: "Net Zero" Prospects And Politics., Cynthia A. Williams

Articles by Maurer Faculty

In 2021, as part of the COP26 climate negotiations in Glasgow, the Glasgow Financial Alliance for Net Zero (“GFANZ”) was announced. This Alliance of banks, asset managers, and insurance companies, among other financial institutions, with more than $130 trillion of assets under management when announced, was based on a pledge by the participating companies to work towards net-zero status in their businesses by 2050 or sooner. Led by former UK Bank of England Governor Mark Carney, who is now the U.N.’s Special Envoy on Climate, it seemed to have some promise as a “soft law” governance mechanism to develop voluntary …

Antitrust Standing For Umbrella Purchasers, Ahmed Alfaris

University of San Francisco Law Review

No abstract provided.

Strict Liability For Defective Products Sold On Amazon's E-Marketplace: Is The Tide Turning?, John R. Dorogak, Ann Johnson, Thomas Mcweeny, Breena Coates, Montgomery Van Wart

University of San Francisco Law Review

No abstract provided.

Moving Forward Together: Asian Americans And Allyship In A Non-Black-And-White America, Harvey Gee

University of San Francisco Law Review

No abstract provided.

Certificates Of Public Advantage: A Valuable Tool Or Diminishing Allure?, Abdur Rahman Amin

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Black Maternal Mortality Rate: Improving Outcomes For Black Mothers Using Legislation That Reverses The Effects Of Structural Racism In Medicine, Ashley Pattain

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.