Law Commons^™

Value-Centered Lawyering: Reshaping The Law School Curriculum To Promote Well-Being, Quality Client Representation, And A Thriving Legal Field, Katya S. Cronin

GW Law Faculty Publications & Other Works

For three long and harrowing years in law school, students learn to think like lawyers, to put their clients first, to interpret the law as it stands, to deftly advocate for positions they do not believe in, and to strive for successful and prestigious careers. These lessons help them develop analytical and advocacy skills, creativity and perseverance, a strong work ethic, and ambition. But there is a darker side to these learning objectives. What law students often take away from their time in law school is that their own personal beliefs, values, and experiences are irrelevant to the practice of …

The "Second Amendment Of Food": Some Reflections On American Liberalism, Mathilde Cohen, Amy J. Cohen

Faculty Articles and Papers

In 2021, the State of Maine became the first in the nation to constitutionalize a right to food via a bipartisan coalition supported by legislators, small-scale food producers, and advocates. In its final iteration, the amendment was sponsored by a Republican state representative who dubbed it the "Second Amendment of food" to invoke an individual right to care and provide for oneself and one's family with minimal state oversight and regulation. In 2024, a Republican congressional representative proposed a similar amendment to the Federal Constitution. This Article explores the tensions in the idea of a right to food elaborated in …

Ai Malpractice, Bryan H. Choi

Publications

No abstract provided.

Book Challenges Popping Up All Over: What Do School Principals Need To Know?, Samantha Laine Hull, Sue Kimmel

STEMPS Faculty Publications

This chapter provides practical advice and reasons for school leaders to support students' intellectual freedom through their support of school libraries and school librarians. The chapter begins with a short but critical literature review that includes case law on the topic of censorship in schools. The concerns of teachers and librarians from a recent study are summarized and help build the foundation for practical and ready to use advice for any school leaders to uphold the intellectual freedom of all students.

Pleading Failures In Monell Litigation, Nancy Leong, Katelyn Elrod, Matthew Nilsen

Emory Law Journal

The doctrine of municipal liability in cases brought under 42 U.S.C. § 1983 has been extensively criticized through widespread agreement that municipal liability claims are difficult for plaintiffs to win. Commentators generally blame stringent doctrinal and pleading standards for plaintiffs’ low rates of success.

This Article reveals another important contributing factor: the poor quality of many pleadings filed on behalf of civil rights plaintiffs. We present original empirical research documenting widespread pleading failures, or omissions of basic doctrinal elements. Our research demonstrates that pleading failures are common: an analysis of the complaint in every case that resulted in a …

Narrowing The Police Accountability Gap In Civil Rights Prosecutions, Daniel W. Xu

Emory Law Journal

The absence of police accountability has never been more visible. High-profile police brutality has resulted in high-profile disappointment, where culpable officers walk away undisciplined, unprosecuted, and undeterred from committing the same atrocity again. Such impunity has exposed longstanding deficiencies within the United States’ two-tiered and multipolar system of civil rights enforcement. Chief among these failures is 18 U.S.C. § 242, an oft-overlooked statute that imposes criminal liability upon officers who “willfully” deprive others of any federal constitutional right. The statute’s threshold requirement of willful intent has confused courts and discouraged enforcement, resulting in the heavy underdeterrence of civil rights violations. …

Mythical Adverse Effect, Naveen Thomas

Emory Law Journal

The material adverse effect (MAE) definition in mergers and acquisitions agreements is one of the most intensely negotiated, litigated, and studied contract provisions ever. Practitioners and scholars alike encourage attorneys to bargain extensively over these definitions, which have inexorably grown in length and complexity over the past two decades.

Challenging this longstanding conventional wisdom, this Article shows that endemic efforts to customize MAE definitions’ language are in fact inefficient and counterproductive. Each of the purported benefits commonly attributed to extensive MAE negotiation—most notably, risk allocation and renegotiation incentives—is illusory under Delaware law, which governs most major M&A agreements. Careful analysis …

Animating A Statutory Right: Access To Counsel For Noncitizens In Reasonable Fear Review, Reese Wilking

Emory Law Journal

When a noncitizen in an expedited removal proceeding has a colorable claim to delay their deportation for fear of torture in their home country, a special review process occurs. Certain noncitizens face an especially stringent procedure—the reasonable fear review hearing, where a noncitizen must navigate a complex legal argument before an immigration judge to show that they meet specific statutory and regulatory criteria for relief from or delay of deportation. Congress has specified that noncitizens are entitled to access counsel at this reasonable fear review hearing; yet, all too often, the hearing takes place without attorneys present who were already …

Data In Distress: Effectuating State Data Privacy Laws During Bankruptcy, Cameron Love

Emory Law Journal

In 2000, an online toy retailer, Toysmart.com, attempted to liquidate consumer data to pay creditors in its bankruptcy case. The attempted sale drew objections from the Federal Trade Commission and forty-seven state attorneys general. Five years later, Congress attempted to resolve privacy concerns in bankruptcy, amending the Bankruptcy Code to provide clear procedures for the liquidation of “personally identifiable information.” Recently, scholars have criticized these amendments, characterizing them as “limited,” “outdated,” and “privacy theater.” This Comment adds to these criticisms, arguing the amendments’ failure to mandate consideration of relevant nonbankruptcy law puts these permissive sales procedures on a collision course …

Playing Fair, Paying Fair: A Comprehensive Federal Scheme For The Regulation Of Collectives And The Student-Athlete Name, Image, And Likeness Market, Josh Blackman

Emory Law Journal

College athletics have transformed with the advent of new name, image, and likeness (NIL) policies, permitting student-athletes to earn compensation in exchange for the use of their NILs. This development was driven by a series of court decisions, ultimately constraining the National Collegiate Athletic Association’s (NCAA) authority and capacity to enforce its compensation-prohibiting rules. State legislatures have adopted NIL laws in an effort to obtain competitive advantages for in-state educational institutions (“institutions”), resulting in a patchwork of NIL regulations across the United States. In the midst of this varied NIL regulatory landscape, the NCAA is ill-equipped to enforce NIL rules, …

The Missing Millions: Cy Pres In Federal Securities Class Actions, Scott Dodson, Joseph A. Grundfest

Emory Law Journal

Under prevailing cy pres doctrine, class-action-settlement residuals that cannot efficiently or fairly be distributed to the class may be distributed to a third party that represents the “next best” recipient consistent with class interests. Judges embrace cy pres despite theoretical concerns over inattention, conflicts, and abuse. We shed empirical light on the cy pres debate by examining an original, hand-collected dataset of 373 class-action settlements entered between 2010 and 2018. We document that the theoretical concerns have empirical merit. More than 57% of the settlements lack any evidence in the public record of the identity or court approval of cy …

Structural Sex Discrimination: Why Gynecology Patients Suffer Avoidable Injuries And What The Law Can Do About It, Christopher T. Robertson, Annabel Kupke, Louise P. King

Emory Law Journal

Nearly four million Americans undergo gynecological surgeries each year, but these procedures are unnecessarily risky, as many suffer avoidable lifelong, painful, and disabling injuries. This Article diagnoses the root cause in our legal framework for healthcare finance. It then identifies solutions.

America’s public–private system for reimbursing healthcare pays for procedures rather than outcomes, and it pays substantially more for work on male rather than female anatomies. This disparity is due to the federal government’s reliance on a secretive industry committee to set those rates, and the committee’s reliance on junk science surveys, allowing self-interested and gender-biased responses, contrary to objective …

The Right To Know: Putting Public Health And Safety Above Trade Secret Protections, Maranda L. Johnston

Emory Law Journal

Trade secret protection is granted by the government to provide entities with an actionable right against the theft and misuse of their secrets. The government provides this protection to compensate for wrongful acts of competitors. However, the lack of checks on trade secret protections has instead provided a pathway for private entities to hide harmful information from the public.

From water usage in a drought area to using toxic chemicals for fracking, there are countless examples of trade secret abuses. While not every use of trade secret protection is malicious, awarding unchecked trade secret protection can still have grave consequences. …

Don't Go Changing To Try To Please Me: Understanding Sebelius Via The Unconstitutional Coercion Of Medicaid Estate Recovery Programs, Isabella M. Ryan

Emory Law Journal

National Federation of Independent Businesses v. Sebelius reshaped unconstitutional coercion jurisprudence: creating a three-part test for unconstitutional coercion while leaving the limits of the test undefined. Courts and commentators, faced with the confusion of applying Sebelius, have struggled to determine when and if Sebelius should apply. Stepping into this quagmire, this Comment applies the Sebelius rationale to Estate Recovery Programs (ERPs), a mandatory feature of Medicaid.

Every year, millions of Americans are impacted by ERPs. The main feature of ERPs is the seizure of a Medicaid patient’s estate following their death to repay the cost of providing medical care. …

Nudging Diversity: Merging Law And Behavioral Science To Reduce Workplace Discrimination And Increase Diversity, Leora F. Eisenstadt, Todd Haugh

Emory Law Journal

Today’s employers find themselves in a complicated bind when it comes to workplace diversity and antidiscrimination initiatives. On one side is the lasting confluence of the #MeToo and Black Lives Matter movements, which rightly caused many organizations to reevaluate and reinvigorate their diversity and inclusion efforts. On the other side is employment law’s increasing inability to support such efforts. As workplace discrimination has moved from overt, intentional manifestations of prejudice to unconscious bias and structural discrimination, traditional employment law solutions have become less effective. The Supreme Court’s recent affirmative action decision striking down virtually all race-based considerations in college admissions—and …

Mass Accommodations: Signposts To A Hidden Jurisprudence, Shirley Lin

Emory Law Journal

In the early years of COVID-19, our willingness to swiftly modify workplaces, classrooms, and other commons generated access at unprecedented scale. These de facto accommodations belied conventional thought about whether institutions can dismantle environments, structures, and practices known to exclude or harm. Decision-makers nationwide improvised under traditional disability law—even if unevenly—generating mass accommodations that represented tens of millions of people problem-solving, experiencing structural access and safety, and intensively collaborating on organizational design over a concerted period. This Article’s argument is two-fold. First, by applying an experiential analysis, legal and non-legal audiences may understand them as disability-informed phenomena that spanned diverse …

Shareholder Direct Democracy, Geeyoung Min

Emory Law Journal

This Article explores the ongoing tension between what shareholders want and what corporate management perceives as beneficial for the shareholders. Beyond the fundamental right to elect directors, federal regulation enables shareholders to engage directly with management on various issues by adding their proposals to a proxy ballot for shareholder voting. However, this unique form of shareholder direct democracy has transformed into a fierce battleground between shareholders and management, as exemplified in ExxonMobil’s litigation against its shareholders to block their proposal. Why do many companies emphasize their efforts to engage with shareholders yet resist shareholder proposals?

This Article argues that companies’ …

Applying The Model Rules Of Professional Conduct To Attorneys Who Draft Unenforceable Noncompete Agreements, Nicole A. Faria

Emory Law Journal

Noncompete agreements in the employment context have become increasingly controversial. For almost a decade, there has been an ongoing national debate about their enforceability and legality. This debate initially culminated in a proposed, and ultimately final, rule by the Federal Trade Commission (FTC) to completely ban noncompete agreements. Despite increased state and federal regulation of noncompete agreements, workers still incur detrimental consequences due to restraints imposed by the agreements. One reason workers continue to endure negative effects from noncompetes is that some employers disregard state statutes governing noncompete agreements and include unenforceable provisions in their employment contracts. As a result, …

Reforming Community Advocacy Letters To Counteract The Unfair Advantages For Typical White-Collar Defendants, Hope F. Kagan

Emory Law Journal

Most criminal cases end in conviction by jury or guilty plea, making the sentence—for many defendants—the most critical part of their case. Sentencing allows defendants to humanize themselves, make legal arguments based on the Sentencing Guidelines, and advocate for leniency from the sentencing judge. One tactic white-collar defendants use for mitigation is asking their community to send advocacy letters to the judge that humanize them, contextualize their offense, and highlight their good works. White-collar defendants often have social connections with privileged, well-connected people that put them at an advantage over differently situated criminal defendants in seeking and receiving community advocacy …

A Major Question For The Sec: Analyzing Constitutional Limits On Regulatory Authority, Matthew Diller, Meredith Berger, Samuel W. Buell, John M. Golden, Suzanne Ashley, Coy Garrison, Aaron Saiger, Suman Naishadham, Mary Jo White

Fordham Journal of Corporate & Financial Law

No abstract provided.

Why Do Banks Fail Together? Evidence From Executive Compensation, Deniz Anginer, Jinjing Liu, Cindy A. Schipani, H. Nejat Seyhun

Fordham Journal of Corporate & Financial Law

Recent bank failures have elicited extensive interest about the causes, focusing on incompetence of bank executives, policymakers, bank regulators and supervisors and even uninsured depositors. Yet, before we can prescribe solutions to bank failures, we need to identify the correct causes of the underlying problems. We argue that the problem is not so much with incompetence of executives, depositors, or regulators per se, but rather with managerial incentives.

We provide both a conceptual basis as well as empirical evidence to show that bank executives have incentives to increase systemic risks in order to maximize the benefits of bank bailouts. Consequently, …

A Bona Fide Dispute: Can Bankrupt Debtors Sell Assets Free And Clear Of Federal Civil Forfeiture Claims?, Joseph Peter Gomez

Fordham Journal of Corporate & Financial Law

Auctions are wheeling-dealing extravaganzas in which frenzies of bidders fight over shiny objects. What would happen if the government busted down the doors of the auction house, took the shiny objects, and sold them online? An asset sale through section 363(b) of the Bankruptcy Code provides a court-supervised opportunity to maximize economic value for the bankruptcy estate. To sell estate assets, the debtor must either (1) pay off each creditor holding an interest in the assets or (2) strip the creditor’s interest and attach it to the proceeds of the sale. When the government asserts a civil forfeiture claim against …

Another Major Question: The Department Of Labor Should Retire The Tiebreaker Rule And Reemploy Pecuniary Language In Erisa, Brandon Chesner

Fordham Journal of Corporate & Financial Law

The Employee Retirement Income Security Act of 1974 (“ERISA”) soon turns 50. Instead of celebrating with cake, retirees and future retirees alike get to witness a new chapter in the debate over the consideration of Environmental, Social, or Governance (“ESG”) factors in investing with plan assets. As employees cross the bridge into retirement, they look to their 401(k)s and pension plans for peace of mind, for it is ERISA that has been working silently in the background establishing minimum standards, practices, and fiduciary duties to protect participants. In recent years, the U.S. Department of Labor (“DOL”) has passed three regulations—two …

Speech Without Speakers: Eliminating Artificial Barriers To Pleading Corporate Scienter In Securities Fraud Claims, Jennifer Ligansky

Fordham Journal of Corporate & Financial Law

To successfully plead securities fraud claims under Rule 10b–5, the Private Securities Litigation Reform Act (“PSLRA”) requires that plaintiff-investors raise a “strong inference” that the defendant acted with scienter when issuing a false statement. But pleading scienter presents a challenging issue when the defendant is not a person, but an entity. When the defendant is a corporation, U.S. Circuit Courts of Appeals have adopted different approaches for determining whether the plaintiff has pleaded a strong inference of scienter. Some circuits hold that plaintiffs can raise a strong inference of corporate scienter only if the complaint identifies a speaker who knew …

The Lease Of All Evils: How A Middle-Ground Approach Can Resolve The Bankruptcy Code Conflict Between Section 363(F) Sales And Section 365(H) Lessee Protections, Kate Christensen

Fordham Journal of Corporate & Financial Law

The Fifth Circuit’s recent decision in In re Royal St. Bistro, LLC has awakened an unsettled issue in the Bankruptcy Code that has divided the bankruptcy community for over two decades. The question examined by the Fifth Circuit was whether a non-debtor lessee with a right to continued possession through section 365(h) of the Bankruptcy Code loses this right if the debtor-lessor can sell its property “free and clear” under section 363(f). While early decisions held that section 365(h) always protects lessees against debtors’ free and clear sales, some subsequent decisions created a circuit split by ruling that section 365(h) …

Multi-Parent Custody, Jessica Feinberg

Minnesota Law Review Vols. 106:2 onward (2021-present)

In recent years, a number of jurisdictions have enacted laws recognizing that a child may have more than two legal parents (multi-parentage). Recognition of multi-parentage represents a significant change to the legal framework governing parentage— for most of U.S. history, it was well established that a child could have a maximum of two legal parents. While commentators undoubtedly will continue to debate the wisdom of multi-parentage recognition, it is clear both that multi-parentage has arrived and that its arrival raises many novel and important questions across a variety of areas of the law. Proponents and opponents of multi-parentage agree that …

Awards And Prizes, University Of Notre Dame

Commencement Programs

The University's listing of Awards and Prizes for 2024, including the full descriptions of each award, could not be printed and included in the Commencement Program for 2024. [It was later included in the Official Program posted by the University Archives.]

A Critical Assessment Of The First Step Act's Recidivism-Reduction Measures, Raquel Wilson

Law Faculty Scholarly Articles

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually. The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons …

Tools Do Not Create: Human Authorship In The Use Of Generative Artificial Intelligence, Michael D. Murray

Law Faculty Scholarly Articles

Artistic tools, from brushes to complex algorithms, don’t create art; human artists do. The advent of generative AI tools like Midjourney, DALL-E, and Stable Diffusion has blurred this understanding, causing observers to believe these tools are the authors of the artworks they produce, even so far as to imagine that the artworks are “created” by the AI in the copyright sense of the word. Not so.

The U.S. Copyright Office recently issued guidance on the copyrightability of works produced using generative AI tools. The Office has accepted the narrative that AI tools perform the steps of authorship, conceiving of the …

Media + Vigilante Violence: The Formula For American Atrocity, Tiffany D. Atkins

Law Faculty Scholarly Articles

This Article provides an overview of the international and domestic responses to media-fueled violence and demonstrates how both legal systems have failed to provide meaningful protections for Black Americans from vigilante violence and atrocity. Part I explores the history of media as a propaganda tool against underrepresented groups, detailing how it has promoted atrocity domestically and internationally. There are parallels between the historical and contemporary use of media as a method to fuel atrocity against minority groups; illustrating these examples indicates the continued risk of violence and atrocity faced by Black Americans due to these models of persuasive communication. Part …