Law Commons^™

The Charter School Network (Almost) No One Wants, Joni Hersch, Colton Cronin

Vanderbilt Law School Faculty Publications

Publicly funded, independently operated charter schools entered the public sector three decades ago with the promise of innovating public education to better serve students in underperforming schools. Despite limited evidence of improved educational outcomes, charter schools are now an established part of the education system, with around 7,800 charter schools serving more than seven percent of public, school students.

Although charter schools have long been associated with the controversial school choice movement, a recent entrant into the charter school arena has created new and urgent concerns. Hillsdale College, through its affiliate Barney Charter School Initiative, has been making escalating inroads …

Historicizing The War(S) On Drugs Across National (And Disciplinary) Borders, Sara Mayeux

Vanderbilt Law School Faculty Publications

Notwithstanding the title, The War on Drugs: A History, this illuminating book is not "a" history of "the" War on Drugs but an edited collection with a sampling of new research into the intertwined histories of drug regulation and criminalization, deregulation and decriminalization, both in the United States and around the world. To use the parlance of Jotwell, I like this book a lot.

But I am also writing this Jot because I worry that the title may mislead legal scholars into thinking that this is only a book for historians of criminal law or scholars of the "carceral state." …

The End Externalities Manifesto: Restatement, Loose Ends, And Unfinished Business, J. B. Ruhl

Vanderbilt Law School Faculty Publications

Don Elliott and Dan Esty were among the chief architects of Environmental Law 2.0-the shift that infused so-called command-and- control regulatory regimes with market-based tools in search of cost- effective solutions. The mix of incentives, trading, banking, reporting, bubbles, and other techniques revolutionized the way we think about how to attack environmental problems like pollution and habitat loss.

In their End Environmental Externalities Manifesto ("Manifesto") they are at it again. This time, however, their proposed revolution goes in a different direction. They argue that the guiding light of economic efficiency, which took environmental law far in improving environmental conditions, is …

The Future Of Natural Property Law: Comments On Eric Claeys's Natural Property Rights, Christopher Serkin

Vanderbilt Law School Faculty Publications

Professor Eric Claeys is among the most thoughtful modern proponents of natural property rights. His new book, provided to conference participants in draft form, is typical of his rigorously analytical approach. It is an impressive articulation of a natural rights-based account of property. It significantly advances the debate over natural rights and should be taken seriously even by those who do not find it entirely convincing.

There are real-world political stakes in abstract-seeming questions of property theory because natural rights are often deployed to limit government regulation of property. Natural rights contrast with positivist accounts that locate the content of …

Presumptive Use Of Pretrial Risk Assessment Instruments, Christopher Slobogin

Vanderbilt Law School Faculty Publications

One proposed reform of the pretrial detention system is the adoption of risk assessment instruments to assist courts in determining who is at risk of reoffending or a flight risk. This Response to Professor Melissa Hamilton's Article, Modelling Pretrial Detention, proposes that under most circumstances the results of well-validated instruments should not only inform pretrial outcomes but should dictate them, on the ground that such results are more likely to be accurate than judicial decision-making. The Response also provides evidence that this reform would significantly reduce pretrial detention rates and, consistent with Professor Hamilton's findings, avoid producing racially disparate results.

A Balanced Prescription For More Effective Environmental Regulations, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Government agencies increasingly base the structure and approval of environmental regulations on a benefit-cost test. For regulations that pass this test, total benefits exceed total costs. Under a benefit-cost framework, the degree of regulatory stringency is set at an economically efficient level whereby the tightness of the regulation is increased up to the point where the incremental benefits equal the incremental costs. Setting regulatory standards to achieve the efficient degree of pollution control does not fully discourage entry into polluting industries, provide compensation to those harmed by pollution, or establish meaningful incentives for effective enforcement. This article proposes that the …

How Far Does Natural Law Protect Private Property, James W. Ely Jr.

Vanderbilt Law School Faculty Publications

This Article first explores the ambiguous relationship between natural law and the rights of property owners in American history. It points out that invocation of natural law principles was frequently conflated with English common law guarantees of property rights in the Revolutionary Era. Reliance on natural law as a source of protection for private property faded during the nineteenth century and was largely rejected in the early twentieth century. The Article then considers the extent to which natural law principles are useful in addressing contemporary issues relating to eminent domain and police power regulation of private property. Taking a skeptical …

Comment, Francesca L. Procaccini

Vanderbilt Law School Faculty Publications

Let's start with the antecedent question that both the theme of this conference and all three papers in this session present. That is, before we ask how law schools might better advance the freedom of expression on campus, and even before asking what role law schools play in protecting or suppressing free speech more generally, we must ask the first order question: whether freedom of expression at U.S. law schools is indeed imperiled?

There is an underlying assumption in all three papers that something is amiss, that things are not quite at their optimal, that improve- ment is needed. And …

Disaster Discordance: Local Court Implementation Of State And Federal Eviction Policies, Lauren Sudeall, Elora L. Raymond, Philip M.E. Garboden

Vanderbilt Law School Faculty Publications

Eviction sits at the nexus of property rights and the basic human need for shelter-the former benefits from a strong framework of legal protection while the latter does not. In most eviction courts across the country, therefore, the right to housing is unrecognized, while landlords' economic interests in property are consistently vindicated.

The public health crisis unleashed by COVID-19 temporarily upended that (im)balance. Emergency federal and state eviction prevention policies issued in response to COVID-19 prioritized public health-and the need for shelter to prevent the spread of disease-over typically dominant property rights. In doing so, they presented courts with an …

Quasi-Experimental Evidence On The Impact Of State Recycling And Deposit Laws: Household Recycling Following Interstate Moves, W. Kip Viscusi, Joel Huber, Jasen Bell

Vanderbilt Law School Faculty Publications

This article estimates the effects on recycling behavior of state recycling laws and deposit laws based on changes in household recycling before and after interstate moves. Estimates from a national panel dataset of 1,498 households who moved between states provide a quasi-experimental test otherwise not possible given long-term stability of such laws in any state. Compared to national average recycling rates, moves to states with deposits for beverage containers increased the number of material types recycled by 41%. More stringent recycling laws are also effective, but they have a smaller impact. Recycling laws boosted the number of materials recycled by …

Turning Up The Heat On Public School Adminstrators: When Will Maryland Public Schools Finally Have Air Conditioning And Adequate Heating?, Leah Rowell

University of Baltimore Law Forum

No abstract provided.

Exploring The Relationship Between Civil Legal Assistance And The Outcomes Of Domestic And Intimate Partner Violence Victims: A Literature Review, Kailena E. Anderson

Honors Thesis

While there are a variety of services available to victims of Domestic and Intimate Partner Violence, the civil legal needs of victims often go unmet. In addition to this, these is a relatively small body of research from which programs that provide civil legal aid can discover best practices and use evidence-based approaches. This article aims to begin addressing these issues by examining available literature and program evaluations, connecting program factors to client outcomes. The two main conclusions found from the evaluation are that full representation provides the most benefits and that the type of law being practiced (i.e. protective …

Surviving Castro-Huerta: The Historical Perseverance Of The Basic Policy Of Worcester V. Georgia Protecting Tribal Autonomy, Notwithstanding One Supreme Court Opinion's Errant Narrative To The Contrary, John P. Lavelle

Faculty Scholarship

Oklahoma v. Castro‑Huerta is an unprecedented attack on the autonomy of Native American nations in the United States. The Supreme Court held that Oklahoma had jurisdiction over a crime committed by a non‑Indian perpetrator against an Indian victim within the Cherokee Reservation’s boundaries. The decision posits that states presumptively have jurisdiction, concurrent with the federal government, over crimes by non‑Indians against Indians in Indian country. But this proposition is at war with a bedrock principle of Indian law, namely, that reservations are essentially “free from state jurisdiction and control,” a policy that “is deeply rooted in the Nation’s history.” That …

The Gig-Economy War: The Drive Towards Regulating Rideshare Employment Misclassification, Inae Cavalcante

Brigham Young University Prelaw Review

With the emergence of the gig-economy, the doctrine distinguishing independent contractors from employees has never been more relevant in the state of California. Currently, the state faces a legal battle regarding employment misclassification of rideshare apps’ drivers, specifically Uber Technologies. While many believe that drivers should be entitled to the label of employee and receive benefits and protections under the California Labor Code, the law is not tailored to this new market and renders itself ambiguous. Although many solutions were presented in the past, such as the Borello Test, the ABC Test, Assembly Bill 5, and Proposition 22, no employment …

Health Of Nations: Preventing A Post-Pandemic Emerging Markets Debt Crisis, Lev E. Breydo

Faculty Publications

Sixty percent of low-income countries are currently at “high-risk” of insolvency, necessitating debt relief, according to the International Monetary Fund. The enormity of the problem cannot be overstated; a prospective sovereign debt crisis and economic collapse threatens hundreds of millions of people around the world.

At the same time, the tools to address these challenges are wholly inadequate. Typically, debt reduction is effectuated through statutory systems; sovereign debt is a critical exception, as there is no bankruptcy court for countries. Historically, this void was filled through a complex architecture based on custom, ‘soft law,’ and contractual mechanisms. However, that construct …

Menstrual Justice In Theoretical Context, Vivian E. Hamilton

Faculty Publications

This Essay reviews and places into theoretical contexts Bridget Crawford and Emily Waldman’s invaluable book Menstruation Matters. Although the authors themselves do not explicitly label the theoretical approach that undergirds their work, much of Menstruation Matters: Challenging the Law’s Silence on Periods falls within the liberal feminist legal tradition typical of post-civil rights second-wave feminism. Their work also embodies aspects of critical feminist approaches to law. Crawford & Waldman expose the discriminatory effects of facially neutral laws, the limits of formal equality, and the pitfalls of essentializing or making universal claims about categories of individuals—including women and menstruators. In …

Legal Order At The Border, Evan J. Criddle

Faculty Publications

For generations, the United States has grappled with high levels of illegal immigration across the U.S.-Mexico border. This Article offers a novel theoretical framework to explain why legal order remains elusive at the border. Drawing inspiration from Lon Fuller’s “interactional view of law,” I argue that immigration law cannot attract compliance unless it is general, public, prospective, clear, consistent, and stable; obedience with its rules is feasible; and the law’s enforcement is congruent with the rules as enacted. The flagrant violation of any one of these principles could frustrate the development of a functional legal order. Remarkably, U.S. immigration law …

The Supreme Court Review Act: Fast-Tracking The Interbranch Dialogue And Destabilizing The Filibuster, Aaron-Andrew P. Bruhl

Faculty Publications

This Essay presents an analysis of the Supreme Court Review Act, a bill that was recently introduced in Congress. The Act would create a streamlined legislative process for bills responding to new Supreme Court decisions that interpret federal statutes or restrict constitutional rights. By facilitating legislative responses to controversial cases, the Act would promote the “dialogue” that commentators and the courts themselves have used as a model for interbranch relations. The Essay describes how the proposed Supreme Court Review Act would work, discusses some of its benefits, addresses its constitutionality, and raises some questions about its implementation and effects.

The Trump Impeachments: Lessons For The Constitution, Presidents, Congress, Justice, Lawyers, And The Public, Michael J. Gerhardt

William & Mary Law Review

The conventional wisdom is that the two impeachments of Donald Trump demonstrated the ineffectiveness of impeachment as a remedy for serious presidential misconduct. Meeting the constitutional threshold for conviction and removal requiring at least two-thirds approval of the Senate is practically impossible so long as the members of the President’s party in Congress control at least a third of the seats in the Senate and are united in opposition to his impeachment and conviction. This Article challenges this conventional wisdom and argues instead that the two Trump impeachments have enduring effects on Trump’s political future and legacy, especially in light …

The Article Iii "Party" And The Originalist Case Against Corporate Diversity Jurisdiction, Mark Moller, Lawrence B. Solum

William & Mary Law Review

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this Article and a previous one, we develop the first sustained critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And …

Discovering Ebay's Impact On Copyright Injunctions Through Empirical Evidence, Matthew Sag, Pamela Samuelson

William & Mary Law Review

This Article reports on new empirical evidence discrediting the widely held view that judges have resisted applying the Supreme Court’s teachings in eBay Inc. v. MercExchange, L.L.C. about injunctive relief in copyright cases. That 2006 patent law decision ruled that courts should not automatically issue injunctions upon a finding of infringement; instead, plaintiffs must prove their entitlement to injunctive relief. eBay had a seismic impact on patent litigation and greatly reduced the threat that small infringements could be leveraged into billion-dollar settlements. Yet prior empirical work, at least one major copyright law treatise, and many articles assert that eBay had …

Smart Wearables: The Overlooked And Underrated Essential Worker, Rebekah Hill

William & Mary Law Review

This Note argues that the FDA should revamp its criteria for regulating medical devices to unambiguously include smart wearables. Specifically, this Note calls for the FDA to amend its definition of “medical device” to focus on what a device is technologically capable of rather than its intended use.

Part I will examine the established legislation regarding medical devices; in particular, it will examine the relationship between FDA regulations and the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule and argue that when taken together, HIPAA creates a strong presumption that smart wearables should be regulated by the FDA. This …

Toward A Tribal Role In Groundwater Management, Alexandra Fay

American Indian Law Journal

This Article considers the Agua Caliente groundwater litigation a decade since its inception. It recounts the most recent developments in the case, notably the move to mediation and the strategic work that brought the water districts to the table. The Article places this monumental case in context: in the history of colonization and tribal-state relations, the present climate crisis, and the State of California’s groundwater management regime. The Article ultimately outlines the present opportunity to reimagine the role of tribes in groundwater management.

Change By Drips And Drabs Or No Change At All: The Coming Undrip Battles In Canadian Courts, Kevin Gray

American Indian Law Journal

The enactment of the United Nations Declaration on the Rights of Indigenous Persons (“UNDRIP”) into Canadian law has long been a goal for Indigenous groups in Canada. Its enactment has been entailed as potentially game changing. Commentators have argued that the incorporation of UNDRIP into Canadian law will produce a wholesale transformation of Canadian law, including providing a veto to Indigenous groups to development on their traditional lands and eliminating the doctrine of discovery. In this paper, I consider various arguments that have been advanced as to how UNDRIP may require changes to Canadian law. I argue, conversely, …

Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

An update on American Indian case law from September 2021-October 2022.

Oil, Indifference, And Displacement: An Indigenous Community Submerged And Tribal Relocation In The 21st Century, Jared Munster

American Indian Law Journal

Coastal land loss driven by erosion and subsidence, and amplified by climate change, has forced the abandonment and resettlement of the remote Louisiana Indigenous community of Isle de Jean Charles. This relocation, to a relatively ‘safer’ site inland has led to division among the residents and will inevitably cause irreparable damage to the culture and traditions of the Houma and Biloxi Chitimacha Confederation of Muskogees peoples who called this small, isolated island home. Driven to the water’s edge by European colonization of south Louisiana, this community developed a dynamic subsistence lifestyle based on agriculture, hunting, and fishing which survived undisturbed …

Racial Justice And Marijuana, Steven Bender

Faculty Articles

Current legalization approaches for recreational marijuana fall short of performing and delivering racial justice as measured by materiality and outcomes rather than promises of formal legal equality. As a small first step for unwinding the War on Drugs, this Article considers how legalizing recreational marijuana can help move law and society toward true racial justice, measured by material and actual outcomes for systemically subordinated groups. In the same way that criminalization of marijuana was one of the tools for racial control, legalization of marijuana can be a revenue-based tool toward an anti-subordination future of material equality. While recognizing the shortcomings …

Doj Withdraws Healthcare Antitrust Protections, Lance Plunkett Jd, Llm

The New York State Dental Journal

DOJ has withdrawn longstanding antitrust guidance that provided safe harbors for specific conduct in the healthcare marketplace.

The Power Of Local: Nearby Innovators Dominate Patented Technology Development, Richard Gruner

Northwestern Journal of Technology and Intellectual Property

Advances by nearby innovators – close enough to interact in person – play key roles in patented technology development. Patents frequently cite nearby innovations, identifying these local innovations as the background for further patented inventions. Such citations reveal narrow geographic areas with intensely active innovation communities advancing similar projects and technologies. Local innovators – working within a commutable distance of 40 miles or less of each other – accounted for 25 percent of all patent citations between 2010 and 2019 and about 21 percent of citations by disinterested patent examiners reviewing patent applications. These percentages of citations to local advances …

Quantum Copyright Law: Schrödinger’S Cat, Banksy’S Shredder, And Art On The Edge, Richard Chused

Northwestern Journal of Technology and Intellectual Property

An object has been assembled by artists I know that presents a fascinating set of conundrums about the relationships between quantum physics, shredders, random surprises, the value of art, and copyright law. Seems fantastical, right? And so it is. The object of concern is a metal box a little under four feet tall, about eighteen inches deep, and a bit less than three feet wide. The box is welded together along all twelve of its edges. It has an opening across one side. And there is a small control panel on top.

Before the box was welded shut, a set …