Faculty Bibliography
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Are Americans making under $50,000 a year compelled to navigate the legal system on their own, or do they simply give up because they cannot afford lawyers? We know anecdotally that Americans of median or lower income generally do without legal representation or resort to a sector of the legal profession that - because of the sheer volume of claims, inadequate training, and other causes - provides deficient representation and advice. This book poses the question: can we - at the current level of resources, both public and private - better address the legal needs of all Americans? Leading judges, researchers, and activists discuss the role of technology, pro bono services, bar association resources, affordable solo and small firm fees, public service internships, and law student and nonlawyer representation.
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Open government data policies have become a significant part of innovation strategies in many countries, allowing access, use and re-use of government data to improve government transparency, foster civic engagement, and expand opportunities for the creation of new products and services. Rarely, however, do open data policies address intellectual property rights that may arise from free access to government data. Ownership of knowledge goods created from big data is governed by the default rules of intellectual property laws which typically vest ownership in the creator/inventor. By allowing, and in some cases actively encouraging, private capture of the downstream goods created as a result of open data policies, governments may fail to appropriate optimal returns to the public for its investment in big data. This Essay argues for coherence between open data policies and rules governing government ownership of intellectual property. It highlights the rule in US copyright law proscribing copyright in federal government works, arguing that public domain status is not invariably welfare-enhancing. The rule is sufficiently malleable to permit the federal government to assert ownership over knowledge assets developed from access to data that it owns or controls. Claiming copyright to engineer greater protection of the public interest could foster economic growth and facilitate the distributive welfare goals of intellectual property law more effectively than the public domain status that presumptively attaches to federal government works.
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This article critically examines two doctrines that States have used to declare exceptional maritime sovereignty: Historic Waters and Ancient Title. Despite their long pedigree in customary international law, I argue that both doctrines are largely irrelevant in the modern regime of maritime delimitation established by the United Nations Convention on the Law of the Sea (UNCLOS). Analysis of the negotiating record shows that UNCLOS was negotiated as a package deal, creating a novel and holistic regime for maritime delimitation that was responsive to the international community's pressing concern with overfishing, pollution, freedom of navigation, and greater equality of economic rights. Both historic waters and ancient title would derogate from this negotiated regime as they are incompatible with the objective criteria UNCLOS uses to demarcate maritime sovereignty and jurisdiction. Furthermore, I argue that historic water and ancient title can only be applied in the context of historic bays as this is explicitly allowed in UNCLOS article 10. Additionally, provisions in which UNCLOS allows consideration of 'historic title' should not be understood to incorporate the doctrines of historic waters and ancient title into modern maritime delimitation. Instead, they should be interpreted as allowing States and tribunals room for limited equitable consideration of historic practice when contemplating minor adjustments to maritime boundaries established by UNCLOS' objective principles. These conclusions are far from a theoretical curiosity. For example, the limited degree to which international law countenances exceptional maritime claims based on historic waters and ancient title will have profound implications for States claiming broad historic entitlement in the South China Sea.
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Historical explanations are a form of counterfactual history. To offer an explanation of what happened, historians have to identify causes, and whenever they identify causes, they immediately conjure up a counterfactual history, a parallel world. No one doubts that there is a great deal of distance between science fiction novelists and the world’s great historians, but along an important dimension, they are playing the same game.
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Oren Bar-Gill, Information and Paternalism, in Choice Architecture in Democracies, Exploring the Legitimacy of Nudging (Alexandra Kemmerer, Christoph Mollers, Maximilian Steinbeis & Gerhard Wagner eds., Hart/Nomos 2016).
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Elizabeth Papp Kamali, Law and Equity in a Medieval English Manor Court, in Texts and Contexts in Legal History: Essays in Honor of Charles Donahue 257 (John Witte, Sara McDougall & Anna di Robilant eds., Robbins Collection 2016).
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J. Mark Ramseyer, Liability for Defective Products: Comparative Hypotheses and Evidence from Japan, in Products Liability: Problems and Process 550 (James Henderson, Aaron Twerski & Douglas Kysar eds., 8th ed. 2016).
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Products Liability: Problems and Process offers a problem-based approach that balances doctrine with in-depth exercises that prompt students to apply the law in realistic fact scenarios. Rules and comments from the Restatement (Third) of Torts: Products Liability—for which two of the authors, James Henderson and Aaron Twerski, have served as co-reporters—are fully integrated throughout the text. Brief dialogs among the three authors present a range of perspectives on controversial issues within the field to help stimulate reflection and discussion. The book concludes with a chapter on products liability in a global context. New to the 8th Edition: • substantial reorganization of material resulting in a slimmer, more user-friendly volume; • fully updated notes and cases in every chapter, including the latest scholarly commentary; • several new problem exercises and author dialogues throughout the book; • complete revision of preemption coverage and analysis; and • addition of a new co-author, Doug Kysar.
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"First published in 1974, Charles Fried's Medical Experimentation is a classic statement of the moral relationship between doctor and patient, as expressed within the concept of personal care. This concept is then tested in the context of medical experimentation and, more specifically, the randomized controlled trial (RCT). Regularly referred to as a point of departure for ethical and legal discussions of the RCT, the book has long been out of print. This new, second edition includes a general introduction by Franklin Miller and the late Alan Wertheimer, a reprint of the 1974 text, and an in-depth analysis by Harvard Law School scholars I. Glenn Cohen and D. James Greiner which discusses the extension of RTCTs to social science and public policy contexts. The volume concludes with a new essay by Charles Fried that reflects on the original text and how it applies to the contemporary landscape of medicine and medical experimentation." -- Back cover.
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This article clarifies why optimal corporate governance generally excludes monetary liability for breach of directors’ and managers’ fiduciary duty of care. In principle, payments predicated on third-party investigations of directors’ and managers’ business decisions could usefully supplement payments predicated on stock prices or accounting figures in the provision of performance incentives, including risk-taking incentives. Consequently, the reason not to use liability incentives is not absolute but a cost-benefit trade-off: Litigation is expensive, while the benefits from refining incentives are limited. The analysis rationalizes many existing exceptions from non-liability but also leads to novel recommendations, particularly for entities other than public corporations.
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Open Book: The Inside Track to Law School Success, Second Edition is a book that every JD and LL.M. law student needs to read, either before classes start or as they get going in their 1L year. Now in an expanded second edition, the book explains in a clear and easygoing, conversational manner what law professors expect from their students both in classes and exams. The authors, award-winning teachers with a wealth of classroom experience, give students an “inside” look at law school by explaining how, despite appearances to the contrary, classes connect to exams and exams connect to the practice of law. Open Book introduces them to the basic structure of our legal system and to the distinctive features of legal reasoning. To prepare students for exams, the book explains in clear and careful detail what exams are designed to test. It then devotes a single, clearly written chapter to each step of the process of answering exams. It also contains a wealth of material, both in the book and digitally, on preparing for exams. Finally, and perhaps most importantly, Open Book comes with a free suite of 18 actual law school exams in Civil Procedure, Constitutional Law, Contracts, Criminal Law, Property and Torts, written and administered by law professors. These exams include not only questions, but: (1) annotations from the professors explaining what they were looking for; (2) model answers written by the professors themselves; and (3) actual student answers, with professor comments that explain why certain answers were stronger of weaker. As Open Book explains, there is no better way to prepare for exams than by practicing, and these unique materials will enable students to get the most out of their pre-exam practice.
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Mark Tushnet, Politics as Rational Deliberation or Theater: A Response to ‘Institutional Flip-Flops’, 94 Tex. L. Rev. See Also 82 (2016).
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The Federal Constitution and nearly all state constitutions include takings clauses providing that private property shall not be taken for public use without just compensation. To the extent that scholars have considered the role of state courts with regard to these takings clauses, they have focused around constitutional limits on judicial restrictions of what constitutes property. Little attention has been paid, however, to how state courts can expand the definition of private property — and the problems and possibilities associated with that capability. Through an original case study derived from unexamined historical sources, this Article explores the complex questions raised by constitutional property creation. It tells the story of a series of nineteenth- and twentieth-century cases on street grading, in which property owners sought relief when municipal officials vertically shifted streets — sometimes in excess of a hundred feet — to improve transportation. Though these regrades often loomed over people’s homes or left them stranded on inaccessible cliffs, government officials contended that because the regrades did not physically take any property, abutting owners could not bring takings claims. In response, state courts created a novel “right of access” to land and treated this right as constitutional property confiscated by the regrades, an innovation which entitled affected owners to compensation for the serious damages their land suffered. As this history demonstrates, state courts have played an important role in takings law by recognizing new forms of constitutional property. By neglecting constitutional property innovation, scholars who argue that legislatures should be responsible for changes in property rules have missed a significant piece of the puzzle. Consequently, the history of court-made constitutional property rights carries implications for institutional choice analyses in property law. While there may be good reasons to prefer that legislatures allocate and define novel property interests as a general matter, courts have been overlooked as sites where constitutional property rights are created and debated in response to perceived political failures.
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White Supremacy pervades American history. Moreover, notwithstanding landmark civil rights gains and egalitarian aspirations, America remains segregated and unequal. This book examines the role of law in reinforcing and ameliorating racial injustice. Although surveying key historical precedents, its primary focus is the present. The book examines contemporary controversies across a variety of settings, animated by three fundamental questions: What is the current racial order? To what extent is it unjust? How can law and legal actors advance a more racially just order? The book uses cases, statutes and other sources of law, supplemented by problems and exercises, to equip students to both critique and construct pragmatic solutions to race-related controversies.
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This article uses simple numerical examples to study the relationship between interest rates and the familiar problem of "lock-in" that arises from deferred taxation of unrealized appreciation. In the cases we study, lock-in comes about because of positive taxpayer borrowing costs, and realization and deferral remain significant problems for income taxation even in periods of low government borrowing rates. We also find that it is the relative size, rather than the absolute size, of the borrowing costs that matters. Specifically, lock-in prevents a taxpayer from selling an asset and buying another with a higher pre-tax return only when the incremental after-tax return increase is greater than the borrowing cost necessary to pay the tax triggered as a result of the sale. Thus the magnitude of the lock-in problem does not necessarily diminish as borrowing costs fall, but rather it depends upon a complex relationship between and among the falling interest rates, the incremental increased returns that are available, and the amount of unrealized appreciation in assets.
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In all countries, a work is eligible for copyright protection only if it is "original." However, the manner in which that requirement is interpreted varies by country. This article first surveys the ways in which "originality' is currently construed, then proposes a reorientation of the doctrine that would advance more effectively than any of the extant interpretations the proper objectives of the copyright system.
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Richard J. Lazarus, Reviewing the Clean Power Plan – and the Fate of the Paris Agreement 33 Env't F., Mar.-Apr. 2016, at 13.
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Gamete donor anonymity has become an increasingly active area of legislative, bioethical, and empirical interest over the last decade or so. This chapter begins by detailing the very different status of gamete donor anonymity, contrasting the United States (where the law does not prohibit it) with the rest of the world (where it has been largely prohibited by law) and examining the effects of these policies. The chapter then examines the major arguments that have been offered in favor of and against mandating nonanonymous gamete donation. In particular, it focuses on the effects of removing anonymity on supply and arguments in favor of ending sperm donor anonymity based on the welfare of donor-conceived children or rights claims by them. The chapter also more briefly considers ethical and legal issues related to donor compensation, accidental incest, information reciprocity between donors and recipients, and reproductive tourism.
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With this essay, Professor Goldsmith provides a tour of the horizon of the Obama administration's international law record in order to identify the distinctiveness of its approach and to tie it in to some general themes in international and foreign relations law. He describes what is interesting and distinctive about the Obama administration's approach to international law by considering its practices through the lens of the two mechanisms through which a president and his team can influence international law: the interpretation of international law commitments, and the use of tools of diplomacy to contribute to the making of new international agreements.
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Findings in behavioral science, including psychology, have influenced policies and reforms in many nations. Choice architecture can affect outcomes even if material incentives are not involved. In some contexts, default rules, simplification, and social norms have had even larger effects than significant economic incentives. Psychological research is helping to inform initiatives in savings, finance, highway safety, consumer protection, energy, climate change, obesity, education, poverty, development, crime, corruption, health, and the environment. No nation has yet created a council of psychological advisers, but the role of behavioral research in policy domains is likely to grow in the coming years, especially in light of the mounting interest in promoting ease and simplification (“navigability”); in increasing effectiveness, economic growth, and competitiveness; and in providing low-cost, choice-preserving approaches.
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T. Keith Fogg, The Federal Tax Lien, in Enforcement of Liens and Judgments in Virginia ch. 8 (Tyler P. Brown ed., Virginia CLE 5th ed. 2004, 6th ed. 2009, 7th ed. 2016).
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The pursuit of justice is a large part of the law of contracts, but in recent years most of the discussion about contract law has emphasized other values, such as freedom or economic efficiency. "Justice"-as used, for example, in the Restatement (Second) of Contracts-has become a flabby word denoting unexamined intuitions or random contingencies. This article tries to restore justice to its proper place in contract law by providing an analytic framework for discussing its role. It sets out five principles of justice embedded in contract law: (1) Justice as the equal exchange; (2) Justice as the honest wager; (3) Justice as the term that fits; (4) Justice as the deserved return; and (5) Justice as the advantage not to be taken. Each of these "Justices" responds to a distinct social sense of justice, and each helps explain a considerable swath of the actual law of contracts. But they are not always mutually consistent, so together they define a realm of debate rather than of demonstrable outcomes. The concluding section of the article looks at the mechanisms by which that debate works to produce results, and how it fits together with other forces also shaping the law.