Law Commons^™

Housing Justice Pipeline: Harnessing Housing Clinics To Transform The Right To Counsel Movement, Erica Braudy, Thomas Honan, Tuhfa Begum

Articles & Chapters

No abstract provided.

Restoring Unanimity To The Alabama Death Penalty, Daniel Butler Friedman

Articles & Chapters

In Alabama, one of the jurisdictions most responsible for executions in the United States, the death penalty statute contains a very unusual provision: juries can sentence defendants to death even if they are not unanimous. This is a surprising fact to many people, including lawyers, who largely believe that the U.S. Supreme Court eliminated non-unanimous juries in 2020. That provision is enormously important to the capital punishment regime in Alabama, where 80% of people on death row were sentenced non-unanimously. The law's history, however, is poorly understood. This article lays out that history, showing it to be part of the …

Overcoming Judicial Innumeracy: A Proposal To Bring The Venerable Process Of Peer Review To The Enduring Problem Of Courts’ Scientific Illiteracy, David L. Faigman

Faculty Scholarship

Lawyers are not known for their proficiency in math and science. Most of us who went to law school reached a point in our math and science studies when we realized that neither medicine nor engineering were likely to be successful career paths. It is these lawyers who become judges. Yet, the United States Supreme Court has increasingly put the burden for deciding complex scientific and technical questions in the hands of judges. This Article explores this trend of putting greater responsibility for deciding scientific and technical issues on judges, particularly in the areas of evidence law, administrative law, and …

Criminal Procedure Without Consent, Kate Weisburd

Faculty Scholarship

Scholars and advocates have long argued that a person’s consent to a warrantless police search is often so inherently coerced, uninformed, and shaped by race, class, gender, citizenship status, and disability that to call it a “choice” is fiction. This critique is not limited to police searches based on consent. Waiving rights and consenting to otherwise unconstitutional state action permeates criminal procedure. The definition of a seizure, the third-party doctrine, custodial confessions, plea bargains, and agreements to alternatives to incarceration (such as GPS ankle monitoring) all hinge on the idea of voluntary choices—choices that are often just as coerced and …

The Complexities Of Consent To Personal Jurisdiction, Scott Dodson

Faculty Scholarship

Mallory v. Norfolk Southern Railway Co., decided in June 2023, held that consent remains a method of establishing personal jurisdiction independent of the “minimum contacts” test established by International Shoe Co. v. Washington. To many, the decision resolved ambiguity in personal jurisdiction doctrine and represented a straightforward way of establishing personal jurisdiction. But Mallory failed to consider the many complexities underlying consent. In this Article, I showcase those complexities and demonstrate that Mallory is just the tip of the iceberg: A host of questions, some fundamental to both consent theory and personal-jurisdiction doctrine, lurk beneath the surface. I argue that …

Incremental Innovation, George Horvath

Faculty Scholarship

Transformative innovations—the ones that use new technologies to disrupt the world—command our attention. But most new products are the result of a more mundane process of incremental iterative innovation, evolving through a long series of small modifications of existing technologies. Although both kinds of innovation can result in improved safety and utility, both can also create new dangers. We tend to be more aware of this in transformative innovations (as current worries over artificial intelligence show); by contrast, dangers created by incremental iterative innovation often go unrecognized, because the process itself is easy to overlook. Policymakers and regulators need to …

Court Ordered Sorriness: Judicial Perspectives In Discrimination Cases, Joshua Aston, Kenneth Yin, Prafula Pearce

Research outputs 2022 to 2026

While the power to order an apology is not in doubt, whether courts should order an apology involves complex legal, ethical and practical considerations. Drawing on recent human rights cases, the article offers a view on how the courts have addressed the tension that arises in ordering an apology against a reluctant litigant despite recognising the role of an apology in redressing the grievance. The preponderance of judicial authority leans away from ordering an apology against a reluctant litigant; the court is also not disposed to ordering an apology against a public officer who is reluctant to give one.

From The Editors, Łukasz Gołąb, Mateusz Chołodecki, Leszek Borowiec

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Editorial

Funkcjonowanie Doręczeń Elektronicznych W Ujęciu Technicznym, Michał Tabor

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article provides a legal-technical and market analysis of electronic delivery in Poland, concluding that while the system complies with the basic requirements of the eIDAS Regulation, it needs significant organizational and technical improvements. The author reviews the National Electronic Delivery System, the role of the designated operator and qualified trust service providers, and highlights issues with interoperability, address registration and portability, delivery mailboxes, and the hybrid delivery service. Recommended legal reforms include granting the public delivery service qualified status, enabling multiple delivery addresses for public and complex organizations, partly opening the market to commercial qualified providers, and moving supervision …

Doręczenie Wydruku Pisma Uzyskanego Z Systemu Teleinformatycznego Na Podstawie Art. 393 K.P.A. Uwagi Na Temat Miejsca W Nowej Strukturze Doręczeń, Agnieszka Skóra

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Article 393 of the Polish Administrative Proceedings Act (k.p.a.) has played an important role in the digitization of Polish public administration bodies, as a solution to facilitate the functioning of these institutions in the face of technological change. It also ensured that documents could be delivered to people who are digitally excluded, or otherwise not ready to use electronic means of communication. However, in the context of the change in the wording (from 1 January 2025) of Articles 39 and 391 k.p.a., with which Article 393 k.p.a. was immanently linked, its functioning is questionable. In this study, the author characterizes …

Czy Unijne Przepisy Zapewniają Równą Ochronę Praw Pasażerów Kolei I Lotnictwa? Analiza Porównawcza Rozporządzeń (We) 261/2004 I (Ue) 2021/782 W Zakresie Prawa Do Opieki I Pomocy, Zuzanna Kornacka

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The purpose of this article is to examine and compare the level of protection afforded to, respectively, airline and railroad passengers in terms of their right to care and assistance on the basis of Regulations (EC) 261/2004 and (EU) 2021/782. The scope of these two legal acts is analyzed, in order to verify whether the protection they provide is comprehensive. The competencies comprising the right to assistance in these EU Regulations are discussed to identify whether they provide similar support for passengers experiencing difficulties in traveling via both modes of transportation. The analysis draws on doctrinal views and the case …

Transport A Kryzys Klimatyczny: Wyzwania, Bariery I Rekomendowane Kierunki Transformacji Systemu Mobilności W Polsce, Stefan A. Jarecki, Jakub Majewski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article addresses the regulatory challenges facing the transport sector in the context of the climate crisis. It presents a comprehensive set of recommendations, emphasising the role of central and local governments in establishing relevant legal frameworks, spatial planning, and promoting sustainable mobility. Special importance is given to the development of rail transport as the most efficient alternative to road transport – both for freight and passenger services. The need to enhance the competitiveness of rail, and ensure a level playing field for all modes of transport, is also highlighted.

Informowanie O Najniższej Cenie W Okresie 30 Dni Przed Obniżką W Praktyce Polskiego Sektora Bankowego, Monika Brzeska-Kozerska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article analyzes the implementation of the information obligation regarding the lowest price in the last 30 days before a reduction, arising from Article 4(2) of the Act on Informing about the Prices of Goods and Services (Act on Prices), in the context of the banking sector. The implementation of the so-called Omnibus Directive into the Polish legal system, aimed at preventing consumer deception, has raised doubts about its application to financial institutions. The purpose of the analysis was to determine whether, and to what extent, banks are obliged to fulfill this information obligation in relation to the products and …

Entire Issue Vol. 14 No. 3

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Vol 14(3)

Impact Of Expert Witness Gendered Appearance And Emotion On Perceptions Of Credibility And Verdicts, Audrey Molter

Honors College Theses

Past research has highlighted biases in how individuals are perceived based on their gender and expressed emotions. The current study assessed how the perceived femininity or masculinity of expert witnesses impact credibility and verdicts in a jury decision making task. Additionally, it investigated how the presence or absence of emotional expression, specifically, anger versus neutral presentations, affects the perception of expert credibility and verdict outcomes. One hundred and eighteen undergraduate participants assumed the role of jurors in a criminal trial involving ambiguous evidence, with the expert witness serving as the primary source of testimony for the defense. Four versions of …

What Might Contract Theory Be?, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Few contract theories begin with so comprehensive a discussion of method as does Stephen Smith’s book, Contract Theory. In the first chapter, “What Is Contract Theory,” Smith describes an interpretive approach guided by four goals: fit with the existing law, internal coherence, moral attractiveness, and transparency to legal actors.

This chapter in Understanding Private Law: Essays in Honour of Stephen A. Smith, does a deep dive into Smith’s description and defense of those goals. Smith pictures the contract theorist as an observer standing outside legal practice, interpreting the law but not participating in it. That picture results in …

The Abuse Of Neutrality, Rebecca Ingber

Articles

Neutrality law is a musty and obsolete body of international law that nevertheless rears its creaky head now and again in dangerous ways, most recently in the Russia-Ukraine conflict. The law of neutrality is a study in contradictions. It is obsolete yet remains on the books in treaties and military manuals. It purports to keep the peace and protect non-warring states yet today is invoked to expand conflict and protect aggressors. The legal benefits of neutrality have been entirely overtaken by other regimes. And yet neutrality law has not lost its luster despite losing its value. Instead of letting it …

Undo Process: Examining Agency Procedural Levers To Access To Counsel, Haiyun Damon-Feng

Articles

Every day, through internal adjudicative proceedings, agencies make thousands of rights determinations that affect critical matters such as financial security, family unity, personal safety, and individual liberty. Scholars and policymakers have recognized the significant impact that representation can have on adjudicative outcomes across the administrative state. Many agencies have implemented policies affirmatively seeking to boost an individual's ability to bring an advocate to assist with the adjudication process. In the immigration context, however, agencies have enacted procedural hurdles that have made it more difficult for individuals to reap the benefits of this assistance.

This Essay uses recent developments in the …

Rectifying The Rome Statute And Draft Articles On Prevention And Punishment Of Crimes Against Humanity To Include The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

The slave trade is commonly misperceived as a historical crime. Yet, the scourge of the slave trade is present throughout the world today. Combatting these ongoing atrocity crimes is essential to ensure that human rights are upheld by the international community. The crime of the slave trade fills an impunity gap, especially in light of recentharms perpetuated by the Islamic State of Iraq and Syria (ISIS) against the Yazidi in Iraq. Revitalization of the conceptualization of the slave trade as a crime under international law might ensure greater enforcement of one of the oldest core international crimes. Critical proposed amendments …

Coopting Disruption, Mark A. Lemley, Matthew Wansley

Articles

Our economy is dominated by five aging tech giants – Alphabet, Amazon, Apple, Meta, and Microsoft. In the last twenty years, no company has commercialized a new technology in a way that threatens them. Why?

We argue that the tech giants have learned how to coopt disruption. They identify potentially disruptive technologies, use their money to influence the startups developing them, strategically dole out access to the resources the startups need to grow, and seek regulation that makes it harder for the startups to compete. When a threat emerges, they buy it off. And after they acquire a startup, they …

Towards The Faa's Next Century: Clarifying Disclosure Requirements In Arbitration, Andrea K. Schneider, Brian Farkas

Articles

This essay provides a roadmap to the current landscape of neutrality and disclosure. It then suggests three possible reforms to the FAA that would provide better guidance to arbitrators, parties, and courts. Moreover, this essay argues that if the FAA cannot be sufficiently amended, states should take the lead. States can continue to more clearly outline disclosure requirements and enforce clearer standards than the current version of the FAA.

The Violence Of Bright Lines, Terrell Woolfolk, Kathryn E. Miller

Articles

The U.S. Supreme Court interprets the Eighth Amendment to prohibit members of certain groups from serving extreme punishments, such as the death penalty and life without parole. For example, the Court has long banned death sentences for people with intellectual disability and for those who were under eighteen years old at the time of their crime. More recently, in Graham v. Florida and Miller v. Alabama, the Court extended this reasoning to sentences of life without parole for those under eighteen—prohibiting the sentence altogether for nonhomicide crimes and barring its mandatory imposition for homicides.

Many scholars and advocates have applauded …

Response: Diagonal Representation, Alma Magaña

Articles

A lot has been written about the crisis of indigent defense and the plethora of factors that have led to the crisis, like the lack of guidance on how indigent defense providers can most efficiently distribute their insufficient resources. This lack of guidance has left jurisdictions across the country to their own devices, resulting in a national landscape of very different models, each with its own variations of the same problems plaguing indigent defense.

Doubting Thomas And Questioning Stare Decisis Under The Roberts Court, Wilfred U. Codrington Iii

Articles

The article critically examines the erosion of stare decisis under the Roberts Court, highlighting concerns about the Supreme Court's increasing willingness to overturn established precedents. While acknowledging the importance of stare decisis in maintaining stability and equality, the author argues that its practical value is being undermined by ideological polarization and a departure from traditional legal reasoning. The article questions the Court's recent approach to precedent, particularly in cases like Dobbs v. Jackson Women's Health Organization and Students for Fair Admissions v. Harvard, and critiques the conservative majority's aggressive use of judicial power.

An Alternate History Of Chevron, With A Lesson For Today, Michael E. Herz

Articles

It is a banal truism that judicial deference to agency decisionmaking enables the executive branch to pursue its agenda, whatever that agenda may be. That was obvious to all in the early years of the Chevron decision, which was greeted enthusiastically on the right and skeptically on the left. In Chevron itself, and for a while thereafter, deference advanced the Reagan deregulatory program. Over the years, a subtler conclusion gained consensus: overall and in the long haul, judicial deference is likely to have a net pro-regulatory impact. Hence the right’s hardened opposition to Chevron leading up to its demise. But …

Property And Information, Jeanne L. Schroeder, David G. Carlson

Articles

The article proceeds as follows. As the information theory is a reaction to legal realism, Part I explores its antecedents in the work of Wesley Newcomb Hohfeld and Ronald H. Coase. Part II presents the information theory as arising from Professor Smith’s interpretation of the Coase theorem.11 In the imaginary world of TC0, we are supposedly indifferent to organizing by property and organizing by contract. Property eclipses contract as the organon of the economy because property reduces the cost of delineation and processing—of speaking and comprehending. We show that this theory is founded on a misunderstanding of Coase. Part III …

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.

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 …

Mapping Human Rights Obligations In Investment Treaty Arbitration: Decoupling By Tribunals, Animesh Das

Indian Journal of International Economic Law

The progressive approach of investment arbitration tribunals in some recent cases represents a gradual development in reconciling human rights law and international investment law. This position finds support in recent scholarly literature, through analyses of cases such as Urbaser, Bear Creek Mining and David Aven. What if the reality is otherwise? For decades, investment arbitral tribunals have maintained a grey area governing the relationship between human rights law and international investment law. The institutional caution has resulted in the decoupling of these two normative orders. Consequently, investment treaty arbitrations face a legitimacy deficit in their ability to uphold human rights …