Law Commons^™

Abuse Of Power In The Workplace: The New Gender Discrimination Claims, June R. Carbone, Nancy Levit, Naomi Cahn

Articles

This article draws on our book, Fair Shake: Women and the Fight to Build a Just Economy, to show how the fight for gender equality has changed. Antidiscrimination laws took hold during an era of relative economic equality; the fight for gender equality was a fight to gain access to the rights of white men. Today’s economy creates much greater inequality and reserves the greatest rewards for a much smaller group, again predominately white and male, who can defy the rules and get away with it. In such contexts, anti-discrimination law premised on a fight for equality can provide only …

Bribery Law: Is Anything Left?, Richard W. Painter

Articles

No abstract provided.

Phyllis Schlafly And How Forgetting Women's Struggles For Equality Perpetuates Inequality, Jill Elaine Hasday

Articles

In a nation whose Constitution purports to speak for “We the People,” too many of the stories that powerful Americans tell about law and society include only We the Men. A long line of judges, politicians, and other influential voices have ignored women’s struggles for equality or distorted them beyond recognition by wildly exaggerating American progress. Even as sexism continues to warp constitutional law, political decisionmaking, and everyday life, prominent Americans have spent more than a century proclaiming that the United States has already left sex discrimination behind.

This symposium essay draws on my book, We the Men, to …

Narrowing The Frame: Consumer Insurance Policies And The Limits Of The Restatement Of Consumer Contracts, Daniel Benjamin Schwarcz

Articles

No abstract provided.

Avoision: When Government Lawyers Turn The Sovereign Against Itself, Richard Painter

Articles

Lawyers sometimes use legally permissible but ethically dubious strategies to avoid the law and at other times they cross the line into illegal law evasion. Between the two is a gray area of conduct highly likely, but not certain, to be illegal known as law “avoision.” Lawyering at the outer limits of the law is controversial in the private sector when lawyers represent clients against the government or against other private parties. The better interpretation of the law may stand on the other side, and the lawyer must decide how far to go in an arguably illegal direction on behalf …

Obamacare For Homeowners Insurance: Fixing America's Broken Insurance Markets In A Time Of Climate Change, Daniel Benjamin Schwarcz

Articles

Over the last decade, homeowners insurance markets nationwide have experienced unprecedented instability due to climate change. These disruptions, which are likely to accelerate in the coming years, risk destabilizing real estate markets, triggering financial instability, and undermining the nation’s resilience to climate change. Despite these massive stakes, federal and state reforms to date have largely failed to result in more accessible and affordable homeowners insurance coverage that promotes climate change resilience. This Article offers a new way forward, arguing that today’s troubled homeowners insurance markets resemble the broken, state health insurance markets that pre-dated the 2010 passage of the Affordable …

Applying The Regulatory Report Card To Tax Regulations, Kristin E. Hickman, Bridget C.E. Dooling

Articles

An invited contribution to an issue of the Journal of Benefit–Cost Analysis honoring the work of the late Dr. Jerry Ellig, this essay recognizes and draws upon the Regulatory Report Card methodology developed by Ellig and Dr. Patrick McLaughlin to evaluate the quality of regulatory impact analysis published by federal government agencies in conjunction with notice-and-comment rulemaking. The essay anticipates a forthcoming study of changes to tax regulatory practices as a result of a 2018 Memorandum of Agreement between the Treasury Department and the Office of Information and Regulatory Affairs – a study the authors discussed and hoped to conduct …

The Necessary And Proper Clause And The Law Of Administration, Ilan Wurman

Articles

The Necessary and Proper Clause authorizes Congress to establish and shape the administrative state. But the Necessary and Proper Clause is rarely cited in the relevant Supreme Court opinions or litigant briefs. This is a mistake. In several of the Court’s recent prominent cases, the Necessary and Proper Clause’s meaning and effect could have been dispositive. This Article makes that case. It demonstrates that there are plausible arguments against the Supreme Court’s removal and Seventh Amendment jurisprudence as they relate to public administration, though this Article takes no strong position on those arguments. The Court recently and correctly held, on …

Economic History And The Remaking Of Family Law, June R. Carbone, Naomi Cahn

Articles

In looking at the history of family law, we locate family law – and the status of women and children within it – as a function of political economy. That is, family law is shaped by a societal system that allocates access to, and control of, sources of wealth, decision-making power, and responsibility for dependents. As the nature of family assets has changed from land to male wage labor to two incomes and a complex set of complementary employer and state-provided benefits, so too have family dynamics and, ultimately, family law. They have evolved into the contemporary system, with a …

Ai Assistance In Legal Analysis: An Empirical Study, Jonathan H. Choi, Daniel Benjamin Schwarcz

Articles

No abstract provided.

Legal Civil War, June Carbone, Nancy Levit, Naomi Cahn

Articles

In an era of partisan polarization in which each side sees the other as illegitimate and a threat to the nation and its values, the term “civil war” is often brandished, from state and federal immigration battles to abortion access to election disputes. Civil war, as used in these contexts, does not necessarily raise the specter of armed confrontation between rival armies but does suggest divisions so deep that they threaten the nation’s ability to endure. This Essay introduces the concept of a legal civil war to describe conflicts within a country where rival factions defy the established rule of …

The Magna Carta, Jarkesy, And The Constitutional Jury Requirement In Crime-Based Deportation, Linus Chan, Hans Frank-Holzner

Articles

No abstract provided.

Executive Clemency And Immigration Federalism: Reconsidering Presidential Power Over Deportation Orders, Linus Chan, Emma Wittmer, Lauren Butler

Articles

No abstract provided.

Liability, Property, And Inalienability Rules In Employee Data Regulation, Matthew T. Bodie

Articles

Legal protections for workers’ data have usually taken the form of privacy protections designed to deter data processing that is excessive or invasive. Such protections generally fall into the category of liability rules, under which rights can be infringed as long as compensation is provided for the violation. As Guido Calabresi and A. Douglas Melamed have described in “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” liability rules are contrasted with either property rules that prevent the involuntary transfer of rights or inalienability rules that prohibit rights transfers altogether. This article explores how property rules and inalienability …

In Memoriam: Robert D. Cooter, Francesco Parisi

Articles

The International Review of Law & Economics is publishing these notes in memory and celebration of Robert D. Cooter—its Editor from 1988 to 2004—offering brief reflections on him as teacher, scholar, and exemplar. A giant of law and economics, Robert D. Cooter combined breadth with creative insight: he helped build a systematic economic understanding of torts, contracts, and property, a novel approach to public law and Constitutional design, and opened new frontiers on the interaction between law and social norms and on the expressive power of law. His humanity and scholarly ethos—curiosity, humor, and intellectual honesty—left a lasting mark on …

Collegiate Nil Collectives: Context, Structure, And Future, Matthew T. Bodie, Esdras D. Camacho

Articles

Since its inception, the NCAA has championed the principle of amateurism in college sports-the idea that collegiate athletes may not receive monetary compensation for their athletic performance. In its 2021 decision in National Collegiate Athletic Association v. Alston, however, the Supreme Court found the NCAA had violated antitrust law with its restrictions on certain benefits provided to athletes. With the possibility of much greater liability to follow, the NCAA soon thereafter enacted a radical departure from past practice, enabling athletes to profit from their names, images, and likenesses ("NIL") while maintaining their amateur status. There were important limitations on this …

Free Speech And Incorporation: A Reassessment, Ilan Wurman

Articles

Many of the Supreme Court’s most controversial free speech decisions involve state laws. In Gitlow v. New York, the Court assumed that the First Amendment’s guarantee of freedom of speech applied directly against the states via the Fourteenth Amendment, a doctrine today referred to as incorporation. Yet there is reason to doubt incorporation is correct as a matter of the original meaning of the Fourteenth Amendment. Indeed, much of the historical evidence involves debates over the freedom of speech, but none of the historical actors seemed to think the First Amendment applied against the states. This short essay evaluates the …

Reclaiming The Genius Of A Free State, Tennessee's Forgotten Anti-Monopolies Clause, Braden H. Boucek

Belmont Law Review

This article argues that Tennessee’s Anti-Monopolies Clause—enshrined in Article I, Section 22 of the Tennessee Constitution since 1796—has been systematically underenforced and misconstrued by Tennessee courts. Although the constitutional text unequivocally provides that “monopolies are contrary to the genius of a free State and shall not be allowed,” judicial interpretation has diluted this categorical prohibition by importing deferential federal rational basis review and engaging in “lockstepping” with federal substantive due process doctrine. The author contends that this approach is doctrinally unsound because the U.S. Constitution contains no analogous anti-monopoly provision, rendering federal precedent inapposite. Through historical analysis grounded in originalist …

Regulating Artificial Elections, Courtney A. Barclay

Belmont Law Review

This Article examines the growing role of artificial intelligence in shaping modern election discourse and the resulting tensions with First Amendment doctrine. Focusing on generative AI, deepfakes, chatbots, and synthetic media, the Article evaluates whether existing campaign finance laws—particularly disclosure and disclaimer requirements—adequately address AI-driven distortions in the electoral marketplace of ideas. Surveying the Federal Election Commission’s 2024 interpretive rule on fraudulent misrepresentation, emerging state legislation regulating synthetic media, and proposed federal reforms, the Article argues that current legal frameworks are both constitutionally constrained and practically insufficient. Drawing on the AdChoices model from data privacy regulation, it proposes a hybrid …

Pure Imagination: A World Of Agentive Ai And Anti-Adhesion Contracting, Jeff Lingwall, Steven Hyde

Belmont Law Review

Jeff Lingwall and Steven J. Hyde’s Pure Imagination: A World of Agentive AI and Anti-Adhesion Contracting examines the transformative—and destabilizing—effects of large language models (LLMs) on contract law. The Article situates LLM-mediated contracting within the historical evolution of contractual formalities, arguing that agentive AI introduces a new phase in which negotiation, offer, acceptance, performance, and even litigation may be conducted without meaningful human mediation. The authors develop a model of legal risk that increases as LLMs shift from human-reviewed drafting tools to autonomous agents purporting to negotiate or bind parties. They then explore the possibility of “anti-adhesive” mass-bespoke contracts, in …

Harvesting Humans, Joanmarie Ilaria Davoli

Belmont Law Review

This Article examines allegations of systematic forced organ harvesting by the People’s Republic of China and argues that existing U.S. federal criminal law provides an underutilized mechanism to deter American participation in that industry. Tracing the historical development of China’s transplant system—from the use of executed prisoners to the alleged targeting of prisoners of conscience, including Falun Gong practitioners and Uyghurs—the Article situates organ procurement practices within broader human rights and genocide concerns. It contends that despite congressional hearings, resolutions, and proposed sanctions, meaningful deterrence has been limited. The Article advances a novel enforcement theory: prosecution of U.S. persons under …

But-For Or Not But-For, The Question Is Answered, Samuel Rawlings Barnett Jr.

Belmont Law Review

In But-For or Not But-For, the Question Is Answered, Samuel Rawlings Barnett Jr. examines the ongoing federal circuit split regarding the appropriate causation standard for retaliation claims under the Family and Medical Leave Act (FMLA). While some circuits apply a “motivating factor” standard, others require plaintiffs to prove “but-for” causation. The Note situates this division within the Supreme Court’s broader shift in employment discrimination jurisprudence from the mixed-motive framework of Price Waterhouse v. Hopkins to the stricter “but-for” standard articulated in Gross, Nassar, and Comcast. Through close statutory analysis of 29 U.S.C. § 2615(a)(1) and § …

Coerced Into Confession: Prosecutorial Pressure And The Misuse Of Plea Bargaining, Molly Mceachern

Belmont Law Review

This Note examines the coercive dynamics embedded in modern plea bargaining and argues that prosecutors’ reliance on conviction rates as a primary measure of success distorts the administration of justice. Tracing the historical evolution of plea bargaining from early English common law skepticism to its constitutional legitimization in Brady v. United States, the article demonstrates how plea bargaining has shifted from a pragmatic case-management tool to a dominant and often coercive mechanism of criminal adjudication,

The First Thing We Do Is Kill All The Lawsuits, Kenneth S. Klein

Faculty Scholarship

As insurance premiums spike across the Nation, insurers are (yet again) pointing the finger at lawyers and lawsuits as an explanation. This Article offers new and important data on whether, in fact, currently there is a crisis of litigation in the United States. Neither the assertion of a litigation crisis, nor legislatures adopting systemic reform in response to the perception of one, is anything new. For almost two hundred years, there have been recurring cycles of complaints about lawyers, lawsuits, and their impact on society. Yet each time independent researchers have looked at the assertion, they have found the data …

Volume 49 (2025), Canada-United States Law Journal

Canada-United States Law Journal

No abstract provided.

Conference Speakers, Canada-United States Law Journal

Canada-United States Law Journal

Proceedings…48th CUSLI annual conferrence

Closing Remarks, Chios Carmody

Canada-United States Law Journal

No abstract provided.

Welcome And Opening Remarks, Amb. Mark Green, Stephen Petras

Canada-United States Law Journal

No abstract provided.

Panel I: Intellectual Property, Copyright, And Ai, Stephen D. Burns, Jamie Simpson, Heather West, Stephen Paille

Canada-United States Law Journal

No abstract provided.

Panel Ii: Disinformation, Deepfakes, And The Law, Rachel Freedman Lyngaas, Michael Cass-Antony

Canada-United States Law Journal

No abstract provided.