Law Commons^™

Pharmaceutical-Telehealth Confederacies, Michael S. Sinha

All Faculty Scholarship

Access to prescription pharmaceuticals has historically been controlled by a physician’s pen. As a result, pharmaceutical companies spend billions of dollars on advertising and promotion to mitigate this barrier: first and primarily, to physicians and other prescribers, and more recently, to the general public through direct-to-consumer advertising. The success of these promotional efforts can be seen in greater prescribing of costly brand-name medicines, even in settings where lower-priced generic alternatives exist. Brand-name prescriptions now make up only 10% of all prescriptions written yet account for 87% of drug spending. Despite these substantial returns on investment, companies continue to seek opportunities …

Bar Examination: A Verb, Not A Noun, Marsha Griggs

All Faculty Scholarship

The legal profession, long steeped in tradition, is witnessing a transformative shift in the protocols for licensing new attorneys. Multiple jurisdictions are moving away from reliance on standardized testing as the sole gateway to law practice and are developing individualized (and potentially reciprocal) systems of state licensure. Ironically, the planned launch of a new standardized exam—the NextGen bar exam—appears to be a major catalyst in the transformation of state licensure pathways. This shift has the potential to realign the regulatory hierarchy in attorney admission. Such a realignment is vital to the preservation of lawyer self-governance, and it offers great promise …

Dirty Water, Breanna Booker, Michael S. Sinha

All Faculty Scholarship

Plastics are taking over. Every day, humans are exposed to plastic pollutants in a variety of ways. From the water we use to water crops in the field, to the water in our taps, to the liquids we drink from plastic containers, it can be found virtually anywhere you look. Not only is it everywhere in the environment, but it is also within us. It builds up in our bodies. Plastics have become a major public health concern; researchers estimate that the total healthcare cost related to plastic chemicals may be as much as $250 billion.[1]

Water has always …

An Indecent Exposure Of The Rules Of Legal Ethics, Lauren E. Bartlett

All Faculty Scholarship

Thousands of attorneys experience rape and sexual assault by clients, as well as indecent exposure, public masturbation, unwanted touching, verbal threats, and stalking. These incidents are not often publicly reported, but client sexual violence against attorneys is not uncommon. The ethical rules currently fail to account for an attorney who has experienced client sexual violence, whether to allow for termination of representation or to mitigate future harm to other lawyers. While the ethical rules are usually thought of as neutral, this Article critically examines the gender stereotypes and structures of oppression corseting the rules. Relying on a fifty-state survey of …

Preface, Prianka Nair, Saskia Valencia

Articles

No abstract provided.

Law, Conflict, And Hybrid Warfare: A Teaching Imperative For A Changing World, Cynthia Alkon, Andrea K. Schneider

Articles

Lawyers increasingly find themselves at the frontlines of the battlefield, just not in the traditional sense. Hybrid warfare is a conflict form that combines traditional military offensive measures with nontraditional methods, including the harnessing of legal systems to achieve strategic goals. Lawyers have always been at the frontline of typical legal risk assessment, thinking about a client's risk of liability or regulation costs generally. Now, lawyers must stand at the ready for a lot more: lawyers must be prepared for cyber-attacks, disinformation campaigns using artificial intelligence, the use of court systems to suppress reporting or shield bad actors, and so …

Cross-Talk, Alicia Bannon, John Q. Barrett, Tyler Rose Clemons, Wilfred U. Codrington Iii, Mark C. Niles

Articles

The symposium examines the Supreme Court's recent trend of overturning precedent, arguing that this practice undermines the principle of *stare decisis* and the Court's legitimacy. Historically, the Court has used precedent to protect marginalized groups, but recent decisions suggest a shift toward benefiting non-marginalized interests, such as big businesses and conservative groups. This change is seen as a departure from the Court's traditional role and raises concerns about judicial humility and the politicization of the judiciary.

Rejecting The Racialization Of Indianness, Andrea J. Martin

Faculty Scholarship

No abstract provided.

Promoting Financial Empowerment Via 401(K) Plan Domestic Abuse Victim Distributions, Samantha Prince

Faculty Scholarship

Domestic violence is sadly and shockingly all too prevalent in the United States. According to the U.S. Centers for Disease Control, more than one in four women and one in seven men in this country are subject to domestic abuse “affecting an estimated 10 million people every year.”

Finances and financial abuse play a significant role in 99% of domestic abuse cases. “[L]acking financial knowledge or resources is the number one indicator of whether a domestic violence victim will stay, leave, or return to an abusive relationship.”When abusers have control over financial assets, victims are monetarily paralyzed and have little …

From Ambiguity To Accountability: The Case For A Legal Definition Of Antisemitism In Academia, Andrea Martin

Faculty Scholarship

Following the October 7, 2023, Hamas attacks on Israel, U.S. college campuses experienced a sharp rise in antisemitic incidents, driven by an antizionism movement aimed at demonizing and delegitimizing the Jewish state and its supporters. A congressional investigation found that antisemitism persisted at prominent universities because administrators repeatedly failed to denounce antizionist conduct that functions as a vehicle for harassment of Jewish students and neglected to enforce their own nondiscrimination policies. The congressional committee, as well as several university antisemitism task forces, identified antizionism as a primary driver of campus antisemitism and strongly recommended that university leaders recognize and address …

Border Decriminalization As A State Project: Lessons From Marijuana And Assisted Suicide Legalization Across The United States, Victor C. Romero

Faculty Scholarship

My prior work argued for the decriminalization of border crossings without proof of specific intent to violate another law (like drug trafficking), which is even less likely to happen now than it was when the piece was published, given the current presidential administration’s zealous deportation strategy and Congress’s seeming acquiescence. As such, I advocate for a second-best solution involving federal-state cooperative agreements wherein border states abutting both Mexico and Canada are given the option by the federal government to pass local legislation decriminalizing border crossings into their states as their communities desire. To the extent that the current presidential administration …

Embracing A New Approach To Academic Success: How The Adoption Of A Growth Mindset Can Enhance Legal Education, Titichia M. Jackson

Faculty Scholarship

No abstract provided.

On Entityness And Takeovers: Acquisition Valuation, Theory Of The Firm, And Coase’S Error, Robert J. Rhee

Vanderbilt Law Review

This Article advances a theory of entityness that theorizes the firm and its relationship to the acquisition premium. This theory is the first scholarly analysis to construct a general model of takeover valuation by integrating the modern finance theory of asset value and a corrected Coasean theory of the firm. The acquisition premium is an enigma. Acquirers must pay it. But why? Isn’t the market price tethered to fundamental value through an efficient market? This enigma reveals a key insight about firms. The theory of entityness postulates that the acquisition premium is compensation for a capitalized asset intrinsic in the …

Discharging Government Debt, Nicole Langston

Vanderbilt Law Review

The bankruptcy system tries to strike a balance between a fresh economic start through debt forgiveness, or discharge, and the need to repay creditors. When the debt is owed to the government, however, the scale seemingly tips toward repayment because of the government’s role in providing essential services to society. But there are certain debts owed to the government that can be forgiven in bankruptcy and some that cannot. The consumer bankruptcy system does not forgive government-owed child support debt, penal debt, and student loan debt, which are disproportionally carried by poor women and racial minorities, but the system does …

Fighting Mass Arbitration: An Empirical Study Of The Corporate Response To Mass Arbitration And Its Implications For The Federal Arbitration Act, Richard Frankel

Vanderbilt Law Review

Mass arbitration represents the newest battleground between corporations and consumer and employee advocates over mandatory arbitration and access to justice. Companies thought they had finally won the arbitration wars after the U.S. Supreme Court ruled that they could insert class action bans into their arbitration clauses, bestowing companies with widespread immunity from a large swath of consumer and employee claims.

Recently, however, consumer and employee advocates have responded to class action bans by filing thousands of individual arbitration demands, which have exposed companies to millions of dollars in filing fees and resulted in large settlements. This practice has become known …

Original Discontent, William Magnuson

Vanderbilt Law Review

There are many theories of constitutional interpretation. Most, but not all, assert that, in interpreting the U.S. Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders, and ratifiers. This Article argues that, in doing so, judges, scholars, and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the …

Keynote Address For The 2025 University Of The Pacific Law Review Symposium: The Crime Victims' Rights Movement: Historical Foundations, Modern Ascendancy, And Future Aspirations, Paul Cassell

Utah Law Faculty Scholarship

This article, which serves as the keynote address for the 2025 University of Pacific Law Review Symposium, explores the past, present, and future of America's crime victims' rights movement-one of the most successful social movements in modern history.

Historically, crime victims played a central role in criminal justice processes through private prosecutions-i.e., the ability of victims to initiate or participate in criminal prosecutions. Today, while private prosecutions have been largely supplanted by public prosecutions, the victims' rights movement has successfully restored the victims' voice in criminal processes. The movement has reformed contemporary American criminal justice so that criminal processes now …

The Reality Of The Good Faith Exception, Matthew Tokson, Michael Gentithes

Utah Law Faculty Scholarship

The Fourth Amendment’s primary remedy is the exclusion of unlawfully obtained evidence at trial. But not every defendant whose rights are violated gets a remedy. The most substantial obstacle for defendants is the good faith exception, which directs courts to admit unlawfully collected evidence if the police can show they relied in good faith on existing authority. If the police rely on a statute that turns out to be unconstitutional, or a warrant or precedent that turns out to be invalid, the evidence they obtain will nonetheless be admitted under the good faith exception. The Supreme Court has justified this …

Loper Bright’S Deregulatory Synergies, Renee Farmer, Daniel G. Aaron

Utah Law Faculty Scholarship

For over 40 years, Chevron U.S.A. v. National Resources Defense Council stood as a keystone of administrative law. It infused agencies with the discretion to leverage the edges of statutory language and granted them the security that day-to-day agency actions would survive judicial review. Although Chevron’s demise in Loper Bright Enterprises v. Raimondo elicited rebuke from many legal scholars, it struck some as unsurprising, unimportant, or unconcerning, whether due to the narrowing of Chevron over time, the Supreme Court’s disuse of it in recent years, or the belief that its holding flew in the face of the Administrative Procedure Act. …

Discriminatory Censorship Laws, Jonathan Feingold, Joshua Weishart

Faculty Scholarship

The summer of 2020 ignited global protests for racial justice. Across the United States, millions marched with a modest plea: that America reckon with its racism. For K-12 schools, this moment pushed local communities and district leaders to create more inclusive classrooms and curricula. Yet before the summer had ended, America's antiracist turn provoked a backlash campaign that has proven far more impactful and enduring.

This campaign has featured the rise and spread of "discriminatory censorship laws"-a term we apply to government action designed to demean inclusionary values and to deny students access to critical knowledge, inquiry, and thinking. As …

Law As A Lamp Post, Janet Freilich

Faculty Scholarship

Law produces all manner of public information: court documents, securities filings, patents, property records, and much more. This information is used in a multitude of ways—it teaches readers about individual cases, transactions, or entities, and is also aggregated to inform policymaking, set priorities, and drive predictive analytics and artificial intelligence.

But choices about the information produced (or hidden) by law are often unintentional. Doctrines and institutions that appear facially unrelated to information production—like subject matter jurisdiction—nonetheless affect the shape and quantity of data produced. And even doctrines focused on information— like property recordation—create data used for purposes never envisioned by …

Gig Work At What Cost? Exploring Privacy Risks Of Gig Work Platform Participation In The U.S., Amogh Pradeep, Johanna Gunawan, Álvaro Feal, Woodrow Hartzog, David Choffnes

Faculty Scholarship

In recent years, "gig work" platforms have gained popularity as a way for individuals to earn money; as of 2021, 16% of Americans have at some point earned money from such platforms. Despite their popularity and their history of unfair data collection practices and worker safety, little is known about the data collected from workers (and users) by gig platforms and about the privacy dark pattern designs present in their apps.

This paper presents an empirical measurement of 16 gig work platforms' data practices in the U.S. We analyze what data is collected by these platforms, and how it is …

Preventing Unjust Enrichment And Copyright Opportunism: An Equitable Interpretation Of Section 103(A), Pamela Samuelson, Jessica Silbey

Faculty Scholarship

A stealth issue in many close copyright fair use cases is the potential invalidity of second comers’ copyrights under 17 U.S.C. § 103(a) if the secondary use is ultimately held to infringe the derivative work right. Section 103(a) of the Copyright Act says, in effect, that no copyright exists in any part of a derivative work in which the first work’s expression was “used unlawfully.” Courts have largely ignored § 103(a). But recent cases, such as Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023), have raised the profile of § 103(a). This Article traces the origins, history, …

Contested Criminalization, Steven Arrigg Koh

Faculty Scholarship

How does the U.S. government decide to deploy criminal justice abroad? From the Syrian civil war to the Israel-Gaza conflict, Russia-Ukraine War, and U.S.-China relations, criminal law sits at the heart of contemporary U.S. foreign relations. And yet legal scholarship has never precisely explained how the U.S. government deploys or supports criminal prosecutions abroad, often defaulting to simplistic labels of the United States as exceptionalist, carceral, or isolationist. This Article rectifies this by introducing a theory of contested criminalization, piercing the veil of U.S. government decisionmaking in its use of criminal law in foreign policy. According to this process, …

How Theories Of Art Can Inform Debates About Ai, Jessica Silbey

Faculty Scholarship

Debates about artificial intelligence (AI) tend to swing between the optimistic and the apocalyptic. I propose a less binary approach that frames conversations about AI from the perspectives of theories of art and creativity. Whether we agree that AI is artificial or intelligent, whether it should be constrained or liberated, we cannot deny its influence on literary, artistic, and innovative production. AI may be described as simply a new tool to produce art and science, like the camera or the microscope, or it may transform art and science, the way the internet transformed global communication. Either way, these debates about …

Unequal Ownership, Ofer Eldar, Rory Van Loo

Faculty Scholarship

Market concentration and weak competition do not just lead to lower efficiency but also result in corporate profits flowing primarily to wealthy households that own a disproportionate share of public corporations. We demonstrate that this is a growing distributional problem not only due to familiar reasons in the literature, most notably shifts in market power, but also due to changes in the socio-economic makeup of ownership. Over the past twenty years, households in the bottom 90 percent of wealth have seen their share of stock ownership decline by half. That is, the ownership of corporations has become increasingly concentrated among …

Consumer Agents, Rory Van Loo

Faculty Scholarship

In the twenty-first century economy, individuals need market help that they are not getting. The technology has long existed for a browser plug-in that would filter out toxic social media content or a virtual shopping assistant that would find and even purchase the best deals online without having to go to many different websites and product pages. Yet tech platforms have used lawsuits and data control to stifle such tools. The lack of digital helpers has potentially profound consequences. Social media use is linked to alarming increases in teenage depression and anxiety. Businesses’ ability to manipulate consumers into paying higher …

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Faculty Scholarship

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Book Review: Biglaw's Race Problem, Angela Onwuachi-Willig, Anthony V. Alfieri

Faculty Scholarship

Ever since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, …

Foundations For Platform Liability, Kathryn E. Spier, Rory Van Loo

Faculty Scholarship

From spreading misinformation to selling deadly products, bad actors use technology platforms to their advantage while causing devastating harms to privacy, health, and even democracy. Despite their central role in enabling these bad actors, the platforms almost entirely escape liability. This legal immunity is purportedly grounded in economics. From the beginning, courts and legislatures feared that liability would chill innovation, growth, and user access. They also speculated that platforms have sufficient market incentives to voluntarily police bad actors, making liability unnecessary.

Whereas many scholars have argued that platform immunity is blind to justice, this Article shows that it is also …