Category: CLR Print Volume 103

Article

Degrees of Deference: Applying vs. Adopting Another Sovereign’s Law

Kevin M. Clermont, Ziff Professor of Law, Cornell University

Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of…

Aug 2020

Article

Lawyers’ Abuse of Technology

Cheryl B. Preston, Edwin M. Thomas Professor of Law, Emerita, J. Reuben Clark Law School, Brigham Young University

The Article is a thorough analysis of how the current scheme for regulating lawyers has failed to adapt to technology and why that failure is disastrous. It discusses (1) why technology, electronic communications, and social media require specialized attention in lawyer regulation, (2) what mechanisms can be harnessed to meet this need, and (3) the…

Jul 2020

Article

Divide & Concur: Separate Opinions & Legal Change

Thomas B. Bennett, Associate, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.

Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law

Andrew D. Martin, Chancellor, Washington University in St. Louis, School of Law

Susan Navarro Smelcer, Assistant Professor of Law, Georgia State Law

To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for…

Jul 2020

Article

International Cybertorts: Expanding State Accountability in Cyberspace

Rebecca Crootof, Assistant Professor of Law, University of Richmond School of Law

States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not cybercrimes and do not constitute cyberwarfare, nor are states extending existing definitions of wrongful acts permitting countermeasures to cyberoperations…

Jul 2020

Note

The Partiality Norm: Systematic Deference in the Office of Legal Counsel

Adoree Kim

 

The Office of Legal Counsel within the Department of Justice counsels the president on the legality and constitutionality of proposed executive action. In the early 2000s, the OLC authorized the Bush administration’s torture of foreign combatants. Scholars have deemed this an act of excessive deference and an aberration, attesting that the OLC has since reformed….

Jul 2020

Note

Using Daubert to Evaluate Evidence-Based Sentencing

Charlotte Hopkinson

Jack and Jill went up the hill,to steal a pail of water,Both were caught and sentenced to jail,But Jack came out two years later. Why? Assume that both Jack and Jill’s cases are identical in facts, procedure, jury composition, and verdict. The only relevant difference is that Jack is a man and Jill is a…

Jul 2020

Article

The Central Claiming Renaissance

Andres Sawicki, Associate Professor, University of Miami School of Law

The Supreme Court has recently reinvigorated the law of patentable subject matter. But beneath the headlines proclaiming the return of limits to patent eligibility, a more profound shift has taken place: central claiming is reborn. The Court’s eligibility cases are significant outliers compared to today’s run-of-the-mill patent law because claim language plays little role in…

Jul 2020

Article

The Maternal Dilemma

Noya Rimalt, Professor of Law, University of Haifa.

This article questions the sufficiency of contemporary parental policies in undermining the gendered division of care-work at home. It reveals that despite the optimistic expectations that accompanied the enactment of gender-neutral leave legislation such as the FMLA, and the provision of equal care opportunities for men, a marked gap separates the law’s target of equal…

Jul 2020

Note

“Making America Safe Again”: The Proper Interpretation § 1101(A)(43)(S) of the Immigration and Nationality Act From both Immigration and Nationality Act From both a Chevron and a Public Policy Perspective

Jon Derenne

A recent Ninth Circuit decision, Valenzuela Gallardo v. Lynch, has created a three-pronged circuit split over the proper interpretation of statutory language in the Immigration and Nationality Act (INA). In Gallardo, the government initiated a deportation action against a Mexican alien residing in the U.S. due to his conviction as an accessory after the fact…

Jul 2020

Note

Benefit Corporations: A Proposal for Assessing Liability in Benefit Enforcement Proceedings

Jaime Lee

There has been a growing trend of more socially conscious consumption as a new generation of consumers and business leaders rises to the forefront. This trend has elicited a response from existing corporations and entrepreneurs starting new businesses such that socially-minded goals are taken into account in addition to profit-maximizing goals. Because the traditional corporation…

Jul 2020

Note

Stricken: The Need For Positive Statutory Law To Prevent Discriminatory Peremptory Strikes Of Disabled Jurors

Jordan Benson

This Note will explore the Supreme Court’s decision in Batson v. Kentucky and the gradual expansion of its protections to other categories such as gender, ethnicity, and (at the circuit level) sexual orientation. I will show that, despite recent expansions of the Batson challenge to sexual orientation in the SmithKline v. Abbott Laboratories decision, achieving…

Jul 2020

Article

The Rights of Marriage: Obergefell, Din, and the Future of Constitutional Family Law

Kerry Abrams, Professor of Law, University of Virginia School of Law

In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the…

Jul 2020

Note

A First Amendment Right to Corrupt your Politician

Eugene Temchenko

Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless,…

Jul 2020

Article

Prioritizing Privacy in the Courts and Beyond

Babette Boliek, Pepperdine University School of Law

Big data has affected American life and business in a variety of ways — inspiring both technological development and industrial change. However, the legal protection for a legal person’s right to his or her own personal information has not matched the growth in the collection and aggregation of data. These legal shortcomings are exacerbated when…

Jul 2020

Article

Antitrust and the Designing of Production

Herbert Hovenkamp, James G. Dinan University Professor, University of Pennsylvania Carry Law School

Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it…

Jul 2020

Article

The Constitutional Law of Incarceration, Reconfigured

Margo Schlanger, Wade H. and Dores M. McCree Collegiate Professor of Law, University of Michigan.

As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment…

Jul 2020

Article

What is Discriminatory Intent?

Aziz Z. Huq, Frank and Bernice J. Greenberg Professor of Law, Mark Claster Mamolen Teaching Scholar.

The Constitution’s protection of racial and religious groups is organized around the concept of discriminatory intent. But the Supreme Court has never provided a crisp, single definition of ‘discriminatory intent’ that applies across different institutions and public policy contexts. Instead, current jurisprudence tacks among numerous, competing conceptions of unconstitutional intent. Amplifying the doctrine’s complexity, the…

Jul 2020

Note

“Mob-Legislating”: JASTA’s Addition to the Terrorism Exception to Foreign Sovereign Immunity

Rachel E. Hancock

This Note explores the issues with the Foreign Sovereign Immunities Act that JASTA attempts to address, the likelihood of JASTA’s success, and whether or not JASTA is a desirable solution. Though the relatively recent nature of this addition renders the long-term impact difficult to assess, an examination of foreign sovereign immunity doctrine’s origins, evolution, and…

Jul 2020

Article

Semi-confidential Settlements in Civil, Criminal, and Sexual Assault Cases

Saul Levmore, the William B. Graham Distinguished Service Professor at the University of Chicago Law School.

Frank Fagan, Associate Professor of Law, EDHEC Business School, France.

Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine-in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay…

Jul 2020

Article

Degrees of Deference: Applying vs. Adopting Another Sovereign’s Law

Kevin M. Clermont, Ziff Professor Law, Cornell University.

Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of…

Jul 2020