Law Commons^™

Judge–Scholar Collaboration And The Second Amendment, Andrew Willinger, Eric Ruben

SMU Law Review

Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the classic critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.

We raise several explanations for the distinctive scholarly role in …

Artificial Intellectual Property, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The year is 2031. You just got up. Your smartwatch has registered the movement, and the coffee maker is on. After your shower, you pick up your phone or read the latest news on the New York Times app on your VR goggles or palm. Except for a few remaining columnists, the news is all written by AI machines. At work, you are responsible for a report on a new product for your company, and you use Al to design the product and prepare the pitch, including the visuals and text of your presentation to the C-suite. The Al system …

Chancery Court Rejects Argument That Corwin Is Inapplicable To Post-Signing Board, Robert S. Reder, Jonathan Rose

Vanderbilt Law School Faculty Publications

No abstract provided.

Delaware Supreme Court Rules That Officer Exculpation Amendments Do Not Require Separate Class Vote Of Non-Voting Shares, Robert S. Reder, Ricky Bayon-Barrera

Vanderbilt Law School Faculty Publications

Before 2022, Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL") permitted corporations, via amendments to their corporate charters, to exculpate corporate directors from personal liability for breaches of their duty of care ("& 102(b)(7)"). Delaware amended & 102(b)(7) in 2022 to allow corporations to extend exculpation to officers (the "2022 Amendment").

Carceral Firms In Disguise: Prison Labor, Human Rights, And The Public-Private Divide, Mao-Hong Lin

Emory International Law Review

The prohibition of forced labor is a globally recognized principle. International laws such as the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights explicitly ban all forms of slavery, including forced labor, with an exception for forced labor behind bars. Further, ILO asserts that forced prison labor must be conducted solely under the control of public authorities, explicitly excluding private entities from involvement. ILO’s prohibition against private use of prison labor is based on two main concerns: abuse of power over inmates and unfair competition between inmates and …

Frandship Ended With Anti-Suit Injunctions? U.S. And European Responses To Chinese Anti-Suit Injunctions In Standard-Essential Patent Litigation, Richard Li

Emory International Law Review

No abstract provided.

Prof. Peter Hay: Private International Law’S Transatlantic Bridge, Patrick J. Borchers

Emory International Law Review

No abstract provided.

Josef Bohatec: The First Historian Of The Calvinist Reformation Of Rights, John Witte Jr., Thomas Jared Farmer

Emory International Law Review

This Article analyzes the pioneering work of the first great historian of Calvinist rights talk, Josef Bohatec (1876–1954), a Moravian-born and Vienna-based church historian. Bohatec built on the earlier efforts of several German scholars who were excavating pre-Enlightenment sources of human rights going back to antiquity. But Bohatec placed strong new emphasis on the original rights contributions of sixteenth-century Protestant reformer John Calvin (1509-1564) and his followers. Bohatec showed how Calvin’s legal training shaped the many new statutes and rights ordinances that he crafted for Geneva. He also showed how Calvin’s theological training shaped his highly innovative Protestant legal and …

From Litigation To Arbitration: Empirical Insights Into The Dmca Notice-And-Takedown System In Cross-Border E-Commerce Copyright Disputes, Baichuan Huang

Emory International Law Review

In cross-border disputes, the Digital Millennium Copyright Act (DMCA) notice-and-takedown system’s reliance on federal litigation as its final step faces serious procedural obstacles. An empirical analysis of twenty-four lawsuits filed in the Southern District of New York (SDNY) reveals non-appearing defendants, protracted proceedings, and Amazon’s occasional reinstatement of infringing products based on statutorily defective counter-notices. SDNY’s routine approval of email service on foreign defendants raises additional concerns about treaty violations and inconsistent application of legal standards. To address these inefficiencies, this Comment proposes a public, arbitration-like mechanism as an alternative to litigation. While private arbitration models—such as Amazon’s Patent Evaluation …

The Erie Scoop, Barry Cushman

Journal Articles

APRIL 25, 1938 WAS A BUSY DAY at the Supreme Court of the United States. The Court decided twelve cases by full opinion and six cases per curiam, granted certiorari in two cases and denied it in twenty-eight others, and denied two petitions for rehearing. The decision that received the most attention sustained a challenge to a directive of Secretary of Agriculture Henry A. Wallace setting maximum rates to be charged by commission men working at the Kansas City Stockyards. The Court found that the regulated parties had not been afforded a “full,” “fair and open hearing” before the rate …

Lobbying By Brief: Unveiling The Dominance Of Amicus Lobbying In The Development Of Business Law, W. C. Bunting, Tomer Stein

SMU Law Review

This Article uncovers the pervasive and significant impact of business law amicus lobbying, a strategic tactic whereby lobby groups have commandeered the amicus curiae filing process in state courts to shape business law according to their interests.

This Article makes three primary contributions to the literature. First, it presents the only comprehensive dataset of amicus curiae filings in business law cases. This hand-collected dataset encompasses nearly all business law amicus curiae filings from 2005 to 2022 in the key jurisdictions of New York, California, Delaware, Texas, and Nevada. Second, it reveals a striking empirical finding: lobby groups account for 67% …

Exploring The Dynamics And Outcomes Of Family Engagement In Child Welfare Services: A Structural Equation Modeling Approach, Jianchao Lai, Michelle Graef, Todd Franke

Center on Children, Families, and the Law: Faculty Publications

Background: Engaging families effectively in child welfare services remains a persistent challenge, shaped by complex interactions between agency practices and family circumstances. While existing research has explored this issue, it has predominantly relied on data from agency and caseworker perspectives, often overlooking the crucial viewpoint of the families. Objectives: This study investigates families’ subjective experiences and perceptions within the child welfare system, focusing on their satisfaction with child welfare workers and overall engagement. Methods: The study draws on data collected through an evaluation of the implementation of Alternative Response in a Midwestern state. Agency administrative data is integrated with additional …

The Historic Superfund Listing Of The Lukachukai Mountains Mining District, Nadine Padilla

Faculty Scholarship

President Biden’s 2021 Bipartisan Infrastructure Law included, among its many provisions, a historic investment of $3.5 billion to be allocated toward cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This investment will help in addressing the problem of legacy pollution that impacts communities across the country. Approximately $1 billion will go towards clearing the backlog of 49 previously unfunded Superfund sites and will accelerate cleanup at over 85 current Superfund sites. Remaining funds will go towards launching cleanup efforts at 25 new Superfund sites. In a development that aligns with these broader cleanup …

Understanding The Mechanisms Of Interpretative Change, Aaron-Andrew P. Bruhl

Faculty Publications

Interpretive methodology changes over time, and we appear to be in a period of particular ferment. In federal statutory interpretation, which is the focus of this Article, several important changes in interpretive methods have occurred in recent decades or are underway. There has been a gradual, decades-long shift away from intentionalist tools like legislative history. In addition, as the culmination of a series of smaller steps, the Supreme Court has just reshaped the doctrine governing deference to agency interpretations, a move that will require years of further clarification. And, although this shift is still taking shape, it appears that some …

Mired In Meyer'S Mischief A Century After Fabrication Of Constitutional Parents' Rights, James G. Dwyer

Faculty Publications

The seminal Supreme Court decisions Meyer v. Nebraska and Pierce v. Society of Sisters, now commemorated on their centenary anniversary, are odd doctrinal ducks. They are both still routinely cited as the foundation for ascribing to persons on whom the state has conferred legal parent status a right under the Fourteenth Amendment Due Process Clause of the United States Constitution. (According to Westlaw, judicial citation count for Meyer now nears 3000, and secondary-source citations have surpassed 7000.) It is a constitutional right to force states to confer on them greater legal power than the state is otherwise inclined to …

Troubling Trends: Ada Definition-Of-Disability Cases 2019-2023, Nicole Buonocore Porter

Faculty Publications

This empirical Article continues my every-five-year tradition of examining every federal case discussing the definition of disability since the Americans with Disabilities Act (ADA) was amended, effective 2009. The results of this research from the third five-year period (2019–2023) are disappointing in both familiar and surprising ways. Similar to the 2014–2018 period, we continue to see way too many courts incorrectly applying (or not even citing to) the ADA Amendments Act. Moreover, I discovered several new troubling trends in this dataset that raise the possibility that we might be heading toward another backlash against ADA plaintiffs. This Article presents my …

Rebuilding The Foundation: Addressing A Crisis In Juror Participation, Paula Hannaford-Agor

Faculty Publications

Courts are experiencing dramatic decreases in juror response and appearance rates, threatening the future of jury trials and the legitimacy of the American justice system. Effective strategies exist to reverse this trend, if justice system stakeholders are willing to employ them.

Preserving The Future Of Juries And Jury Trials, Paula Hannaford-Agor

Faculty Publications

Amid rapid technological and social change, a new initiative explores how judges, court staff, trial lawyers, and other justice system stakeholders can preserve juries and jury trials, strengthen public trust, and remain a pillar of democracy.

In 2024, the National Center for State Courts (NCSC) launched Preserving the Future of Juries and Jury Trials, a project that built on Just Horizons’ methodological foundation of strategic foresight and its premise that data-driven public services and sociopolitical discord have the greatest potential impact on court operations. For this project, NCSC imagined how these trends would affect juries and jury trials in each …

In Through The Side Door: Anti-Asian Nativism, U.S. Immigration, And Foreign Policy—A Legal History And Case Study, Deenesh Sohoni, Vivian E. Hamilton, Chinua Thelwell

Faculty Publications

The 19th- and early 20th-centuries were marked by pervasive anti-Asian sentiment, and antipathy towards people of color more generally. Giving legal effect to the anti-Asian nativism prevalent at the time, U.S. policies prohibited most Asian immigration and naturalization. In particular, immigration laws sought to exclude Asian laborers and working-class immigrants from entry. During the same period, however, the federal government determined that other Asian visitors—especially Chinese government officials, merchants, religious leaders, and students—could be useful in advancing U.S. political and economic interests abroad. Thus, in marked contrast to its inhospitable treatment of their working-class counterparts, U.S. policy facilitated the entry …

Patent Law: An Open-Access Casebook, Sarah Fackrell, Sarah R. Wasserman Rajec, Andres Sawicki

Faculty Publications

No abstract provided.

Climate Change And Constitutional Overreach, Jonathan H. Adler

Faculty Publications

The failure of the political process to produce meaningful climate mitigation policies has encouraged activists to pursues aggressive and innovative litigation strategies. An increasing number of climate-related lawsuits seek to control greenhouse gas emissions, impose liability on fossil fuel producers, or otherwise force greater action on climate change. In many of these cases, litigants have made aggressive constitutional claims that stretch the bounds of existing constitutional doctrine and threaten to entrench climate policies outside of the traditional political process. This Article critically assesses some of the constitutional arguments made in climate cases, including Massachusetts v. EPA and Juliana v. U.S. …

Crypto And The Fiduciary Investor, Eric D. Chason

Faculty Publications

Without much aid from MPT [modern portfolio theory], how should courts approach claims of imprudent investment in cryptocurrency? Courts might take this lack of aid as itself relevant. If MPT cannot place cryptocurrency in a portfolio, then perhaps fiduciary investors should refrain from doing so. Taking this approach would, however, overextend the prudent investor rule’s reliance on MPT. While the creators of the prudent investor rule certainly relied on MPT, the prudent investor rule does expressly adopt it. Moreover, courts should be wary of fixing investment practices in place. It would be ironic if the prudent investor rule, which intended …

Undercover Investigations, Deception, And Democracy, Helen Norton

Publications

No abstract provided.

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Publications

No abstract provided.

Tribal Health Self-Determination: The Role Of Tribal Health Systems In Actualizing The Highest Attainable Standard Of Health For American Indians And Alaska Natives, Vanessa Ann Racehorse

Publications

In this Article, I explore the concept of Tribal self-determination in the context of systems that serve American Indian and Alaska Native communities. I investigate the vast health disparities that exist in Tribal communities, as well as the history and current legal framework for the provision of health care in Indian Country. Part of this discussion also provides information on the federal laws and policies that have fractured the traditional lifeways of Native communities and contributed to the disparate health outcomes that now exist. I also provide background on the fundamental federal laws and policies, particularly the Indian Self-Determination and …

From Gods To Google, Rebecca Aviel, Margot Kaminski, Toni M. Massaro, Andrew Keane Woods

Publications

The First Amendment has become a significant barrier to sensible technology regulation. The conventional explanation for this is the Court's deregulatory turn in free-speech law. But the Lochnerization story is incomplete. The Court's profound solicitude for religious speakers plays a central role in the current digital-free-expression landscape. By protecting the speech of certain religious dissidents, the Court has created a set of constitutional entitlements that logically extend to technology firms. Along the way, the Court has eroded its ability to apply the First Amendment sensibly to novel technologies.

This Feature draws the doctrinal through line from gods to Google. We …

Unseating The Israeli Government From The Un General Assembly In Case Of Non-Compliance With The Advisory Opinion Of 19 July 2024, Maryam Jamshidi

Publications

No abstract provided.

Loyalty Disarmament And The Undocumented, Pratheepan Gulasekaram

Publications

Since the Supreme Court's District of Columbia v. Heller decision in 2008, lower federal courts have wrestled with Second Amendment claims raised by categories of people excluded from gun possession. Among those cases, several have been brought by noncitizens challenging their prosecutions under 18 U.S.C. § 922(g)(5), the federal criminal ban on possession by unlawfully present noncitizens. In the post-Heller § 922(g)(5) cases, judges have opined on whether unlawfully present noncitizens were among "the people" who had the right to bear arms and whether the government regulation met the appropriate level of constitutional scrutiny. More recently, however, the Supreme Court …

A Transformational Agenda For National Security, Maryam Jamshidi

Publications

Past efforts to "reimagine" national security in legal scholarship have largely avoided systematic engagement with the foundational assumptions and presumptions of the field. Challenging and critiquing those assumptions is, however, necessary to producing scholarly work that reimagines, rather than reproduces, status quo approaches to U.S. national security. This Article presents an agenda for reimagining national security through legal scholarship, which is premised on the view that challenging the national security status quo should be part of those efforts. In doing so, this agenda explores seven premises central to how U.S. national security is currently conceived of, practiced, and implemented. Moving …

What Copyright Can't Do, Blake Reid

Publications

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law's powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers.

But …