Law Commons^™

Reevaluating Regional Law Reform Strategies After Dobbs, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

This article studies the triad of 2016 social media campaigns known as “#AskDr.Kasich,” “#askbevinaboutmyvag,” and “#PeriodsforPence.” While these campaigns, each located in the regional mid-South, were motivated by restrictive state abortion bills, they uniquely positioned menstruation and women’s bodies at the center of their activism—not abortion alone. They leveraged, as a political fault line, the contradiction of these states’ governors’ perceived disgust relating to basic women’s reproductive health, relative to their patriarchal assuredness in regulating and controlling women’s bodies.

In so doing, they tapped into meaningful disruptions in the geographies, religiosities, and masculinities of abortion politics. These campaigns achieved regional …

Affirmatively Resisting, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This Article argues that administrative processes, in particular rulemaking’s notice-and-comment requirement, enable local institutions to fight back against federal deregulatory efforts. Federalism all the way down means that state and local officials can dissent from within when challenging federal action. Drawing upon the ways in which localities, states, public housing authorities, and fair housing nonprofits resisted the Trump Administration’s efforts to roll back federal fair housing enforcement, this Article shows how uncooperative federalism works in practice.

Despite the fact that the 1968 Fair Housing Act requires that the federal government affirmatively further fair housing (AFFH), the requirement was largely ignored …

Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck

Scholarly Articles in Law Reviews & Journals

During a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at …

A Critical Jeffersonian Mind For A Community Reinvestment Bind, Chaz Brooks

Scholarly Articles in Law Reviews & Journals

The Community Reinvestment Act of 1977 ("CRA") primarily sought to remedy decades of government sanctioned disinvestment in so-called “redlined communities.” Through the Home Owners’ Loan Corporation and later the Federal Housing Administration, the United States of America created from whole cloth a structure that encouraged and subsidized the explosion of homeownership in white American households. Following decades of racialized wealth generation, the United States had a change of heart. Congress determined that financiers needed a gentle push to invest fairly. Additionally, Congress wanted one thing clear in the drafting of this remedy—it must not allocate credit.

This essay considers how …

Navajo Statehood: From Domestic Dependent Nation To 51st State, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

The Supreme Court’s recent holding in Oklahoma v. Castro-Huerta that “Indian country is part of the State, not separate from the State” is a reminder of tribal sovereignty’s precarious foundation under U.S. law. The Court’s holding not only broke with longstanding precedent regarding the relationship between tribes and states, but it is also incompatible with the lived experience of those living in the Navajo Nation. The Navajo Nation, not the states and not the federal government, has primary responsibility for governing an area roughly the size of West Virginia. Yet most maps of the United States demarcate only state boundaries, …

The Values-Based Trade Agenda, Fernanda Giorgia Nicola Dr., Michelle Egan

Scholarly Articles in Law Reviews & Journals

With the increasing trade tensions between the United States and China, pressures created by Brexit, and the COVID-19 pandemic, most trade scholars have focused on rising protectionism exhibited through defensive strategies such as tariffs and export controls. However, this focus ignores the fundamental shift in international trade goals of the United States and the European Union towards a values-based trade agenda.

Instead of merely focusing on free trade based on efficiency and market access, trade regulators on both sides of the Atlantic have independently pursued measures designed to address environmental sustainability and social equity. These policies resonate with their domestic …

The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian

Scholarly Articles in Law Reviews & Journals

The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy.

This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …

Securing Patent Law, Charles Duan

Scholarly Articles in Law Reviews & Journals

A vigorous conversation about intellectual property rights and national security has largely focused on the defense role of those rights, as tools for responding to acts of foreign infringement. But intellectual property, and patents in particular, also play an arguably more important offense role. Foreign competitor nations can obtain and assert U.S. patents against U.S. firms and creators. Use of patents as an offense strategy can be strategically coordinated to stymie domestic innovation and technological progress. This Essay considers current and possible future practices of patent exploitation in this offense setting, with a particular focus on China given the nature …

On The Appeal Of Drug Patent Challenges, Charles Duan

Scholarly Articles in Law Reviews & Journals

Administrative patent challenge proceedings, the most prominent form of which is inter partes review, have attracted much controversy. In particular, the pharmaceutical industry and its supporters have criticized the proceedings as unfairly biased toward canceling valuable drug patents. Yet there has been little study of the real-world, practical impact of these administrative proceedings on drug patents or pharmaceutical markets.

This Article reviews the universe of administrative challenges on drug patents that have proceeded through appeal to the Federal Circuit. The majority of patents challenged this way are deemed unpatentable at both the agency and appellate levels, and, that administrative cancellation …

Securing Patent Law, Charles Duan

Scholarly Articles in Law Reviews & Journals

A vigorous conversation about intellectual property rights and national security has largely focused on the defense role of those rights, as tools for responding to acts of foreign infringement. But intellectual property, and patents in particular, also play an arguably more important offense role. Foreign competitor nations can obtain and assert U.S. patents against U.S. firms and creators. Use of patents as an offense strategy can be strategically coordinated to stymie domestic innovation and technological progress. This Essay considers current and possible future practices of patent exploitation in this offense setting, with a particular focus on China given the nature …

In Memoriam: Paul R. Rice, Claudio Grossman, Wayne Brazil, Eldone E. Fallon, Robert K. Goldman, Geoffrey C. Hazard Jr.

Scholarly Articles in Law Reviews & Journals

We are all here together on a very sad and tragic moment—to honor the memory of our esteemed colleague and friend Paul Rice. As we mourn his passing we are all united by shared feelings and emotions.

Mandatory Infringement, Charles Duan

Scholarly Articles in Law Reviews & Journals

In 2005, the Food and Drug Administration required the use of chlorofluorocarbon-free propellants in albuterol inhalers. But 3M held patents on the only U.S.-approved chlorofluorocarbon-free inhaler. The agency’s regulations forced multiple generic albuterol manufacturers to choose between infringing 3M’s patents or exiting the market. This state of affairs was lucrative for 3M, perhaps good for the environment, bad for competition, and terrible for patients faced with high costs for essential medical devices. This is an example of a general phenomenon: mandatory infringement. Intellectual property prohibits certain activities, but sometimes the government also mandates these very same activities. Such situations arise …

Reasonable Accommodation Requests: Fair Evaluation And The Role Of Decision Makers, Mona Hawkins

Theses and Dissertations

The purpose of this qualitative study was to examine fair evaluations and the role of the decision-makers in the reasonable accommodation process. In many instances, fair evaluations in the reasonable accommodation process which disabled employees experienced, were challenging and looked upon as perceived discrimination in decision-making process. A review of the literature identified further clarification and insight into educating decision-makers about the disability laws, and then altering their behavior in granting reasonable accommodations. The literature progressed with discussions surrounding why every qualified disabled employee should be accommodated as long as the reasonable accommodation is not an undue hardship to the …

2022-2023 Annual Report, Heyman Center On Corporate Governance

Heyman Center Annual Reports

The 2022-2023 Annual Report of The Samuel & Ronnie Heyman Center on Corporate Governance at Cardozo Law School highlights key events, the Heyman Scholars Program, and the diverse curriculum offerings. Featuring insights from industry experts and faculty, the report showcases the Center's commitment to excellence in business and corporate law education.

The Death Of The Legal Subject, Katrina Geddes

Vanderbilt Law School Faculty Publications

The law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child.

Relative to other areas of law, criminal law is oversaturated with prediction. Almost …

Unenforceable Waivers, Edward K. Cheng, Ehud Guttel, Yuval Procaccia

Vanderbilt Law School Faculty Publications

Textbook tort law establishes that waivers of liability-—especially those involving physical harm-—are often unenforceable. This Essay demonstrates through an extensive survey of the case law that despite being unenforceable, such waivers remain in widespread use. Indeed, defendants frequently use waivers even when a court has previously declared their specific waivers to be void. So why do such waivers persist? Often the simple answer is to hoodwink would-be plaintiffs. Waivers serve as costless deterrents to tort claims: Either they dupe naïve victims into believing that their claims are barred, or if not, the defendant is no worse off than before. Such …

Spac Mergers, Ipos, And The Pslra's Safe Harbor: Unpacking Claims Of Regulatory Arbitrage, Amanda M. Rose

Vanderbilt Law School Faculty Publications

Communications in connection with an initial public offering (IPO) are excluded from the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 (PSLRA). Unsurprisingly, IPO issuers do not share projections publicly-—the liability risk is too great. By contrast, communications in connection with a merger are not excluded from the safe harbor, and special purpose acquisition companies (SPACs) routinely share their merger targets’ projections publicly. Does the divergent application of the PSLRA’s safe harbor in traditional IPOs and SPAC mergers create an opportunity for “regulatory arbitrage” and, if so, what should be done about it? …

Time To Slapp Back: Advocating Against The Adverse Civil Liberties Implications Of Litigation That Undermines Public Participation, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

Defamation law is a catchall term encompassing civil claims for reputational harm to an individual, including slander and libel. Defamation claims originated in English common law and have since evolved within the American legal system. Scholars have characterized the law of defamation as “a forest of complexities, overgrown with anomalies, inconsistencies, and perverse rigidities” and as a “‘fog of fictions, inferences, and presumptions.’” Amid these inherent variations and complexities of defamation law and litigation — including the largely state-specific nature of tort law development — emerges a disturbing trend across jurisdictions. In the modern era, defamation claims have been used …

Growth ≠ Density: Zoning Deregulation And The Enduring Problem Of Sprawl, Christopher Serkin, Kelsea Best

Vanderbilt Law School Faculty Publications

According to its many critics, zoning bears significant responsi- bility for the housing crisis in America andfor promoting unsustain- able development patterns. Reformers argue that zoning reduces the supply of new housing and therefore drives up prices in thriving communities. Zoning also increases carbon emissions by restricting density in the urban core and promoting carbon-intensive, land- consuming, automobile-dependent sprawl in single-family suburbs. A growing chorus calls for relaxing zoning limits in order to pro- mote growth in the urban core as a response to the twin crises of housing costs and climate change. Relaxing zoning limits will al- most certainly …

Surveillance Technologies And Constitutional Law, Christopher Slobogin, Sarah Brayne

Vanderbilt Law School Faculty Publications

This review focuses on government use of technology to observe, collect, or record potential criminal activity in real-time, as contrasted with “transaction surveillance” that involves government efforts to access already-existing records and exploit Big Data, topics that have been the focus of previous reviews (Brayne 2018, Ridgeway 2018). Even so limited, surveillance technologies come in many guises, including closed-circuit television, automated license plate and facial readers, aerial cameras, and GPS tracking. Also classifiable as surveillance technology are devices such as thermal and electromagnetic imagers that can “see” through walls and clothing. Finally, surveillance includes wiretapping and other forms of communication …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law School Faculty Publications

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an "element" that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

The Perils Of Asian-American Erasure, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Affirmative action, particularly its most well-known variant, race-conscious college admissions practices, has long occupied a precarious position in constitutional jurisprudence of equal protection and statutory antidiscrimination law. As a policy matter, affirmative action practices are necessary to reduce the impact of durable structural barriers to opportunity that have been imposed on members of identifiable racial groups because of their race. Legally, they’re on far less secure footing.

As a constitutional matter, these measures have been summarily divorced from any reparative purpose since the “diversity rationale” emerged from Regents of the University of California v. Bakke as the only compelling interest …

Concordance Of International Regulation Of Pediatric Health Research, Ellen W. Clayton, Mark A. Rothstein Jd, Et Al.

Vanderbilt Law School Faculty Publications

International, multi-site, pediatric health research has shown great promise by vastly increasing the amount and heterogeneity of biospecimens and clinical records. However, considerable impediments are created by the significant costs and delays associated with obtaining regulatory approval in numerous countries, which is often complicated by varying and sometimes opaque research ethics standards and procedures. Although it is unlikely that the global community could reach consensus on a single set of research ethics policies and procedures, voluntary policy pronouncements by countries agreeing to defer to the approval of research ethics bodies in other countries might be a way forward.

Deference is …

Education And Electronic Medical Records And Genomics Network, Challenges And Lessons Learned From A Large-Scale Clinical Trial Using Polygenic Risk Scores, Ellen Wright Clayton, John J. Connolly, Et Al.

Vanderbilt Law School Faculty Publications

Polygenic risk scores (PRS) have potential to improve health care by identifying individuals that have elevated risk for common complex conditions. Use of PRS in clinical practice, however, requires careful assessment of the needs and capabilities of patients, providers, and health care systems. The electronic Medical Records and Genomics (eMERGE) network is conducting a collaborative study which will return PRS to 25,000 pediatric and adult participants. All participants will receive a risk report, potentially classifying them as high risk (∼2-10% per condition) for 1 or more of 10 conditions based on PRS. The study population is enriched by participants from …

Differences By Race And Ethnicity In Title Ix's Effect On Women's Health, W. Kip Viscusi, Joni Hersch, Delaney Beck

Vanderbilt Law School Faculty Publications

Title IX greatly expanded adolescent females’ participation in athletic activities, which may have led to health benefits that extend into later life. Previous research has not explored whether health benefits arising from Title IX differ by race or ethnicity and has not examined women at older ages when health problems become more evident. This article examines the effect of Title IX on racial and ethnicity disparities in health outcomes by considering women aged 42–52 years. White women in these age groups exhibit declines in their self-assessed health status and increases in many health-related ailments, consistent with other evidence on temporal …

Compensating Differentials For Occupational Health And Safety Risks: Implications Of Recend Evidence, W. Kip Viscusi, Thomas J. Kniesner

Vanderbilt Law School Faculty Publications

The most enduring measure of how individuals make personal decisions affecting their health and safety is the compensating wage differential for job safety risk revealed in the labor market via hedonic equilibrium outcomes. The decisions in turn reveal the value of a statistical life (VSL), the value of a statistical injury (VSI), and the value of a statistical life year (VSLY), which have both mortality and morbidity aspects that we describe and apply here. All such tradeoff rates play important roles in policy decisions concerning improving individual welfare. Specifically, we explicate the recent empirical research on VSL and its related …

How Regulations Undervalue Occupational Fatalities, W. Kip Viscusi, Robert J. Cramer

Vanderbilt Law School Faculty Publications

The U.S. Occupational Safety and Health Administration establishes incentives for safety by setting and enforcing regulatorystandards. Using four and a half decades of inspection data, this article provides a comprehensive analysis of the factors underpinning penalties following fatalities. The “fatality premium” for regulatory violations following a worker death is quitemodest and is several orders of magnitude below the value-of-a-statistical-life figure needed to establish efficient levels of deterrence in the absence of all other financial incentives. Although there are low statutory caps on penalties, only 8% of thepenalties for violations involving fatalities are constrained by the cap, suggesting that current statutes …

The Visible Trial: Judicial Assessment As Adjudication, Tracey E. George, Albert H. Yoon

Vanderbilt Law School Faculty Publications

Only a small fraction of lawsuits ends in trial—a phenomenon termed the “vanishing trial.” Critics of the declining trial rate see a remote, increasingly regressive judicial system. Defenders see a system that allows parties to resolve disputes independently. Analyzing criminal and civil filings in federal district court for the forty-year period from 1980 to 2019, we confirm a steady decline in the absolute and relative number of trials. We find, however, this emphasis on trial rate obscures courts’ vital role and ignores parties’ goals. Judges adjudicate disputes directly by ruling or effectively through other assessments of the parties’ cases. Even …

Labor Law Unrealized: The Stifling Of Workers’ Collective Rights In The United States, Angela B. Cornell

Cornell Law Faculty Publications

No abstract provided.

Legal Innovation & Technology: A Practical Skills Guide For The Modern Lawyer, Dyane O'Leary

Suffolk University Law School Faculty Works

Plenty of people talk about technology changing the practice of law but what does it all mean for a lawyer’s everyday skills? The answers lie in Legal Innovation & Technology: A Practical Skills Guide for the Modern Lawyer. This book is the first student-centered coursebook of its kind. It is a comprehensive instructional source combining background explanation of changes to the legal industry with practical guidance on topics such as electronically stored information, document proficiency, advanced research analytics, cybersecurity, automation, client-centered law practice management technology, and remote lawyering.

Geared toward readers at the early stage of their careers, Legal …