Law Commons^™

Equality And Justice: An Essay In Memory Of Dan Markel, Carissa Byrne Hessick

Faculty Publications

One of the traits that I admired most about Dan Markel was that he held legal scholarship to a very high standard. Whether it was his own work or the work of others, he believed that our work could only improve if we insisted on giving each other critical feedback.

It has been a decade since Dan’s tragic death. And while a Festschrift is ordinarily seen as an opportunity to praise the work of one’s colleagues, I want to celebrate Dan Markel in the way that I imagine he would respect most—by providing critical feedback about his work. In particular, …

Generative Identity Theft: Criminalizing Deepfakes Using The Right Of Publicity, Dustin Marlan

Faculty Publications

The right of publicity grants individuals control over the commercial use of their identity, particularly name, image, and likeness. Currently, publicity laws are a fragmented patchwork of state statutes and case law, leading to frequent calls for reform, including the establishment of a federal right of publicity. This issue has gained renewed urgency amid the rise of generative artificial intelligence and deepfake technologies. In response, Congress has introduced multiple bipartisan proposals—most prominently, the Senate’s No FAKES Act and the House’s No AI FRAUD Act—that seek to create federal protections against unauthorized digital replicas of likeness, voice, and other aspects of …

Sealed Justice: Federal Courts' Inconsistent Record-Sealing Rules And Their Impact On Judicial Transparency, David S. Ardia

Faculty Publications

Public access to court records is a cornerstone of democratic governance, enabling public oversight of the judiciary and fostering confidence in the rule of law. Despite a strong presumption in favor of openness under both the First Amendment and common law, the sealing of federal court records has become widespread, often with minimal judicial scrutiny. Re-cent investigations have revealed that excessive court secrecy shields government and corporate misconduct, conceals vital public-safety information, and erodes public confidence in the courts.

This Article presents the first comprehensive analysis of the local rules governing sealing in all 94 federal districts, reviewing more than …

Freedom Of Expression, Collection Management, And Ethical Decision-Making: Censorship Of The Good, The Bad, The Ugly, And Our Obligations To Preserve A Culture's Story, Caroline L. Osborne

Faculty Publications

Libraries, archives, and museums are cultural memory organizations responsible for preserving and conveying a culture’s story. While they have broad editorial discretion in collection management, they also bear significant responsibility, relying on professionals with the expertise to make complex decisions. Practical constraints—such as space, finances, and biases—necessitate content-based limitations and collection policies. This article examines collection management through legal concepts like pure speech, expressive conduct, and state actor status under the First and Fourteenth Amendments, distinguishing viewpoint discrimination from content-based discrimination. It also explores ethical decisionmaking through the lenses of justice, virtue, and the common good.

Wellness And The Tax Law, Leigh Z. Osofsky

Faculty Publications

The tax law has long provided extensive subsidies for “medical care.” These subsidies cost the government hundreds of billions of dollars a year. The definition of medical care, which is at the heart of these subsidies, originated many decades ago at a time when there was little to no conception of wellness.

Times have changed in the medical world. Medical science now emphasizes that wellness practices, like exercise, meditation, and social connection, have an important impact on physical as well as mental health, including by playing a significant role in preventing and treating disease. Under the tax statute, medical care …

Administrability Over Testamentary Freedom Of Disposition, Kevin Bennardo

Faculty Publications

This Article challenges the widely accepted view that testamentary freedom is the dominant principle of American inheritance law. It argues that administrability—the need for a predictable, efficient probate system—frequently overrides freedom of disposition. Examining executor selection, procedural constraints, contest doctrines, settlement mechanisms, and the pervasive role of judicial and statutory oversight, the Article shows that testators have far less control over the disposition of their estates than traditional rhetoric suggests. Because process shapes outcomes, limits on testators’ ability to control the probate process constitute significant limits on testamentary freedom. The Article also demonstrates how doctrines such as intestacy and settlement …

Death And Debts, Kevin Bennardo

Faculty Publications

This Article analyzes how inheritance law treats debts owed to and by a decedent, focusing on the Uniform Probate Code’s treatment of unpaid purchase-price balances associated with specifically devised property. While UPC §2‑606(a)(1) automatically gives the outstanding balance to the specific devisee, the Article argues that this rule is inconsistent with modern intent‑based ademption doctrine and with the Code’s treatment of debts owed by the estate. It contends that only outstanding balances secured by the devised asset reflect a meaningful connection to the testator’s likely intent. Unsecured balances, by contrast, should not automatically avoid ademption. The Article proposes amending the …

A Patent System For Temple Grandin, Andrew Chin

Faculty Publications

This article explores the intersection of neurodiversity and innovation through the lens of Temple Grandin’s contributions to livestock handling systems and her philosophical alignment with the U.S. patent system. Drawing on cognitive research by Simon Baron-Cohen, archaeological insights from Penny Spikins, and personal reflections, I argue that autistic cognitive styles—characterized by heightened “folk physics” aptitudes and visual thinking—have historically driven technological progress. Grandin’s patented inventions, motivated by sensory-based empathy for animals, exemplify how neurodivergent inventors seek to embed their conceptions of ethical utility into the nation’s technological infrastructure. The article critiques modern patent litigation trends, advocating instead for a system …

The Curious Case Of The Law Review Editor: A Study Of Higher Education's Peculiarly Powerful Students, David R. Wright

Theses and Dissertations--Educational Policy Studies and Evaluation

Many law students in their second or third year enroll in student-led, high-impact co-curricular programs such as law journals, moot court teams, and trial competition teams. Law journals particularly demand significant portions of students’ time and energy, especially for students holding Editor-in-Chief positions on a journal. Much has been written about law journals as institutions or about their utility in modern legal education; but little is known about the actual expectations and experiences of the students leading them. Few, if any, studies exist examining the student experience in law journal leadership. How student editors spend their time running their journal …

Making Headway On Sports Concussion: Sport-Specific Strategies For Concussion Prevention, Marcus Moore

All Faculty Publications

Concussions in sports are a significant public health concern worldwide. Concussion is a traumatic brain injury (‘TBI’) resulting from biomechanical forces transmitted to the head that disrupt normal neurological function. Globally, an estimated 69 million TBIs occur annually. Concussive effects can persist as long-term syndromes (post-concussion syndrome), or compound themselves into life-threatening emergencies (second-impact syndrome). Chronic, even subconcussive, impacts can ultimately lead to degenerative neurological conditions (chronic traumatic encephalopathy). Troublingly, to date, there remains no medical cure for concussions. Prevention is thus paramount, as well as management, to avoid the compounding of injury or dangerous complications, as noted. Sports and …

A Right To Be Born?: What Dobbs Could Mean For Artificial Reproductive Technologies, Stewart Chang

Scholarly Works

No abstract provided.

Restorative Justice And Building Communities Of Radical Belonging In The Law School Classroom, Aparna Polavarapu

Scholarly Works

No abstract provided.

A Faster Way To Yes: Re-Balancing American Asylum Procedures, Michael Kagan

Scholarly Works

The United States asylum system, like many other asylum systems, is under immense pressure to process asylum applications faster. The primary response to this pressure is negative, namely to deny asylum claims quickly by categorizing them as manifestly unfounded. In the United States, this is done through the “credible fear” process. This negative orientation leads to a structural imbalance in which denials can be fast and easy for the system, but approvals take time and extensive effort. Using domestic and international comparative examples, this Article proposes re-balancing the asylum system by establishing a process for expedited approvals of clearly eligible …

Presumed Guilt: Epistemic Closure In Pregnancy Prosecutions, M. Eve Hanan

Scholarly Works

Criminal law and reproductive justice scholars are calling attention to the increase in prosecutions for pregnancy outcomes in the United States. Trace amounts of controlled substances in newborns are prosecuted as child abuse. Miscarriages are prosecuted as illegal abortions or homicides. This area of criminal law existed side-by-side with Roe v. Wade for late-term pregnancy outcomes. The Dobbs decision has further emboldened these prosecutions by removing the protections of the Due Process Clause from the pre-viability phase of the pregnancy.

Using a case study of a woman who was pressured to plead guilty to manslaughter and sentenced to eight years …

Unpunishment Purposes, Meredith B. Esser

Scholarly Works

Sentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation. However, little scholarship exists addressing how these four punishment purposes apply in the post sentencing or second-look contexts. Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how violent, disproportionate, and dehumanizing the actual experience of incarceration is for many people, and tend to downplay the impact of incarceration on the families and communities of those who are incarcerated. This Article attempts to reconceptualize the traditional purposes of punishment to meet the current historical moment, and it does …

Structural Originalism: A Second Amendment Case Study, Ian C. Bartrum

Scholarly Works

“Originalism” is having a national moment, even if it is not entirely clear what the word means. What should we be originalist about? The leading academic approach asks us to parse the communicative content of text ratified in a very different linguistic culture; then construct a modern legal meaning consistent with our semantic speculations. Too often the result enforces policy judgments made in a radically different moral and technological world. This makes very little sense.

In this paper I recommend a more perspicuous and coherent use of constitutional history, which I call “structural originalism.” Rather than saddle ourselves with the …

Ecarrots: Prison Control And Profits From Correctional Tablets, Justin Iverson

Scholarly Works

In recent years, tablets have gained tremendous popularity behind bars for their ability to expand access to educational and rehabilitative services for people in prison. However, there are downsides to tablet implementation, including high costs at the expense of a captive population and shifting power dynamics resulting in possible volatility. This Article examines the use of correctional tablets in jails and prisons as mechanisms for administrative control and profit-making in an era of beleaguered correctional budgets. It also considers legal and policy implications related to the disproportionately negative impact of the introduction of tablets on people in poverty, increased dependency …

Copyright, Ebooks, And The Future Of Digital Lending, Mary Lafrance

Scholarly Works

Public libraries face a digital lending crisis. Even as library patrons demand greater access to digital materials, eBook publishers have subjected libraries to onerous licensing terms. These include prices substantially higher than those charged to the general public, as well as stringent constraints on license duration and/or loan volume, forcing many libraries to repurchase their eBooks every one or two years. Some publishers are releasing new books only in digital formats, making it even more costly for libraries to maintain robust collections. eBook publishers also compel libraries to use specific digital lending platforms which pose risks to patron privacy. At …

Constitutional Law: First Amendment Disequilibrium, Christina Koningisor

The Judges' Book

No abstract provided.

Refugee Law: Human Rights, Refugee Law, And Border Crossing, Moria Paz

The Judges' Book

No abstract provided.

Menstruation, Menopause, And The Pregnant Workers Fairness Act, Marcy L. Karin, Deborah Widiss

Articles by Maurer Faculty

Some workplaces are extraordinarily inhospitable to menstruators, especially those in low-wage jobs. Workers have been denied restroom breaks and then harassed or fired after menstrual blood leaked onto their clothes or their employer’s property. Employers routinely refuse to provide accommodations for menopause symptoms or time off for menstruation-related medical care. The failure to support menstruators is a significant barrier to ensuring workplace equality. This Article explains how federal laws, including the landmark Pregnant Workers Fairness Act (PWFA), can—and should—be interpreted to help address these inequities. PWFA requires employers to provide “reasonable accommodations” for “pregnancy, childbirth, or related medical conditions.” Menstruation …

Keynote Address: Envisioning Wage Justice, Ruben J. Garcia

Scholarly Works

In this Keynote address for the Minnesota Journal of Law & Inequality’s Symposium, “Not Just Wages,” held at the University of Minnesota Law School on April 11, 2025, I discuss the evolving concept of wage justice, using the lens of Critical Wage Theory and its origins in pioneering theories of race, labor and justice. The Article outlines the legal frameworks that have defined the content of wage justice in the twenty-first century, particularly for marginal workers. This Article raises the alarm about the impact of political change on low-wage workers, using case studies and analysis of administrative agency enforcement of …

Alternatives To Delaware? Evaluating Corporate Law In Nevada, Texas, And Wyoming, Joseph Landau, Bailey Swartz, Anthony Rickey, Robert Ragazzo, Benjamin P. Edwards, George A. Mocsary

Scholarly Works

No abstract provided.

The Solicitor General, Consistency, And Credibility, Margaret H. Lemos, Deborah A. Widiss

Articles by Maurer Faculty

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on …

Facial Recognition Technology And The First Amendment, Joseph A. Tomain

Articles by Maurer Faculty

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written regarding harmful private actor use. This Article helps fill a gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create faceprints for inclusion in FRT databases violate the First Amendment rights of private actors.

In May 2025, a multidistrict litigation against Clearview AI, an FRT company, offered …

Climate Change And Corporate Law In The United States: Not "Woke" But Eyes Open., Cynthia A. Williams

Articles by Maurer Faculty

This Essay discusses the evidence that climate change and nature loss create financially material risks for corporations that must be carefully considered by officers and directors pursuant to their fiduciary duties of loyalty and care. This analysis concludes that under the current state of fiduciary duty law and the known financial risks presented by climate change and nature loss, officers and directors of corporations may breach their fiduciary duties by failing to implement and monitor a robust system to identify and manage each type of industry-specific climate-related and nature related risk. Risk of breach is particularly acute for entity-specific compliance …

"17 Going On 23": Sentencing Young People To Life In Canada, Debra Parkes

All Faculty Publications

This paper analyzes reported Canadian cases from 2008 to 2022 in which young people were sentenced for murder. It shows that, at least in these reported decisions, sentencing young people as adults for murder is not rare. The Crown routinely seeks life sentences for young people and the court orders them in the vast majority of cases in which they are sought. Life sentences for young people have become normalized and expected in murder cases, rather than exceptional. This paper delves into the case law to get a better picture of why and how this is happening.

Old Habits Die Hard: Precedent, Psychology, And The Admissibility Of Forensic Evidence, Sara Gordon

All Faculty Publications

Forensic evidence, long considered a cornerstone of criminal justice, has faced increasing scrutiny as recent studies and reports expose significant flaws in its scientific foundation. Techniques such as latent fingerprint analysis, microscopic hair comparison, and ballistics matching, which had been widely accepted for decades, are now being challenged for their lack of empirical validation. Reports by the National Research Council and the President’s Council of Advisors on Science and Technology have highlighted the deficiencies in these forensic methods, calling into question their reliability and the weight they are given in courtrooms. Yet despite the growing acknowledgement of widespread issues affecting …

Streaming, Copyright And Creators: A Canadian Perspective, Graham Reynolds

All Faculty Publications

This paper will provide an introduction to streaming and copyright in Canada. It will proceed in five parts. Following this introduction, Part 2 of this paper will define streaming, discuss some of the benefits that flow from the widespread use of streaming services, and outline the extent to which streaming technologies are in use in Canada today. In so doing, this paper will distinguish between three types of streaming services: streaming services that secure authorization from rights-holders before making content available; streaming services that rely on technological measures or liability exemptions in order to host content in a non-infringing manner; …

Policy Forum: Are Carbon Contracts For Difference Well Suited For Canada?, Wei Cui

All Faculty Publications

At least up to the release of the federal 2024 budget, many Canadian politicians, climate policy think tanks, and industry groups promoted carbon contracts for difference (CCfD) to complement carbon pricing. This commentary urges caution against the broad adoption of CCfDs. The author begins by noting that the current designs of provincial output-based pricing systems (OBPS) are not consistent with the expectation of the systems delivering robust price signals. He argues that CCfDs depend on such price signals, and they are not a plausible policy for encouraging the emergence of such signals. The author then argues that it is hard …