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Category: Articles

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

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

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

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

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