Working parents and caregivers in the United States struggle to balance the dual demands of work and care. Many working caregivers need flexible work arrangements (FWAs)—changes to their hours, schedule,
or location—to allow them to balance work and care. But access to flexibility remains out of reach for many workers and is least accessible to the most marginalized. The COVID-19 pandemic underscored this problem, as huge numbers of women dropped out of the workforce to care for family. While no federal or state law requires employers to grant FWAs to caregivers, several states and localities have passed “right to request” laws, which establish steps employers must follow when workers ask for flexibility. Several cities go further to provide caregivers with limited rights to FWAs. One city, San Francisco, responded to the pandemic by granting caregivers robust legal rights to FWAs.
This Article offers the first analysis of FWA laws since the start of the pandemic and since passage of the nation’s strongest FWA law in San
Francisco. This Article uses three case studies to interrogate how FWA statutes across the country protect or fail working caregivers and exposes gaps in protection. Using San Francisco’s law as a model, this Article argues that other states and cities should respond to the crisis of care exposed by the pandemic by passing comprehensive flexible workplace laws. This Article offers a roadmap for legislative action, recommending that future FWA laws should go beyond the right to request and grant broad, substantive protections that cover a diverse array of workers. Building on prior scholarship advocating for accommodation of care givers in the workplace, this Article argues that legislative intervention is needed to ensure access to flexibility irrespective of income, education,
race or gender.
The United States Sentencing Guidelines’ recidivism provisions recommend harsher punishment for defendants with a prior criminal record. The Guidelines authorize an accounting not only of a federal defendant’s criminal record as an adult, but also as a child. Prior offenses committed before age 18 enhance sentences for thousands of people each year, but the practice has not been widely explored in the academic literature. A federal defendant’s
juvenile record can lead to a higher Guidelines range through a variety of mechanisms: it can increase a defendant’s criminal history category, increase the crime’s total offense level, qualify the individual for “career offender” status, and deny relief from mandatory minimum sentences.
The use of pre-18 priors to enhance later federal sentences is both constitutionally suspect and misguided public policy. First, the practice stands in tension with Supreme Court precedent recognizing “that children are constitutionally different from adults for purposes of sentencing” in a way that makes them “less deserving of the most severe punishments.” Second, it is inequitable to people of color, who are more likely to be prosecuted for their pre-18 conduct than their white counterparts who commit similar acts. Third, it generates unequal treatment between similarly situated defendants, a result at odds with the Guidelines’ “primary goal” of fostering uniformity in sentencing. Finally, it raises problems of notice given that young people often are not told that their juvenile or youthful offender cases, which are not “convictions” under most states’ laws, can later be used against them to enhance a federal sentence. The United States Sentencing Commission has the power to end this unjust practice. This Article recommends that the Commission amend the Guidelines to stop counting defendants’ prior offenses committed before age 18.
I sold my first novel the summer after I taught my first year of law school as a tenure-track law professor.' After allowing myself a moment of celebration, panic set in. I would need to tell my dean and colleagues. They would wonder why the newest member of the tenure track faculty was writing a mystery novel. When I broke the news to my dean, I made sure to mention the recent placement of my first post-hire law review article in a top-tier journal. I emphasized that I had written most of the manuscript while I was in practice. I assured him that any work I did as a crime writer was for "fun,"2 completely "separate" from my academic work, no different than a colleague whose hobby was training for a marathon.3
Ageism is an unseen bias. It thrives on stereotyping that justifies stigma and discrimination against older people. The public sees older people as burdensome. The views of older people are often not “heard” or respected. Even if they are heard, ageist biases devalue those views. The law has been of limited use in responding to ageism. The term “ageism” was used first by Robert Butler in the mid-twentieth century. He used it in reference to “prejudice by one age group toward other age groups, or as any form of stereotyping and discriminating [against] people based on their chronological age.” Ageism is widespread—in politics, law, medicine, and society broadly. It is harmful to elderly people, their families, their caregivers, and, ultimately, to everyone. Despite the harm ageism creates, society views it less seriously than other biases. In contrast to a broad understanding that stereotyping people based on race, ethnicity, religion, disability, and gender are inappropriate, society too often assumes that ageism is justifiable—even a source of humor.
Does the Constitution’s promise of birthright citizenship to all born “in the
United States” cover the United States Territories? Residents of the Territories
have regularly sought judicial recognition of their equal birthright citizenship
under the Fourteenth Amendment, most recently in some prominent cases
reaching federal appellate courts. When rejecting these claims, the courts have
been unable or unwilling to articulate a unified theory of citizenship. Most
problematically, judicial decisions have continued relying on the Insular Cases,
whose reasoning over a century ago was explicitly based on a policy of racial
exclusion.
We argue that the time has come for unambiguous judicial recognition that
individuals born in the U.S. Territories form an integral part of the United States
citizenry. This outcome is the only one that comports with both constitutional
structure and historical practice. In analyzing why courts still deny claims for
constitutional citizenship in the Territories, we explore the covert norms of
belonging that shed light on the otherwise inexplicable logic of the courts’
opinions. For example, there is no legal reason to treat the citizenship of those
born in the U.S. Territories differently from that of those born in Washington,
D.C. Nevertheless, an asymmetrical perception of belonging has flowed into the
courts’ construction of legal status, influencing whose citizenship is questioned
and whose is assumed.
Although some judges and government officials have recently put forth new
arguments that citizenship recognition would risk interfering with indigenous
rights and endangering cultural practices, we argue that the opposite is more
likely to be true. Attempting to retrofit a doctrine built on the political and social
exclusion of racial minorities cannot offer durable cultural protection. By
contrast, a unified national civic identity that recognizes the Territories as a
fundamental part of the American fabric is more likely to foster the political will
to protect indigenous rights. Recognizing the Fourteenth Amendment’s promise
of integral citizenship ensures that anyone whose birth location entails
allegiance to the United States—be it the U.S. Territories or Washington, D.C.—
is equally American.
Abstract: The Fair Labor Standards Act (FLSA) and its state equivalents have proven a regulatory failure, as their minimum wage and overtime protections are widely violated with impunity. This Note attributes that failure partly to the overlooked issue of private injunctive relief. FLSA and most state laws reserve injunctive relief for agency actions—a remedial limitation that reflects New Deal regulatory attitudes presuming agency-centered enforcement, from which Title VII and other statutes have since diverged. Public enforcement is clearly insufficient to address the epidemic in wage and hour violations, and FLSA’s private enforcement regime of retrospective damages actions effectively treats wage theft as a matter of individualized malice. Yet, as Congress understood at FLSA’s passage, wage theft is more often a business model chosen by employers competing in a given market; minimum wage standards, then, are either secured or undermined collectively. This Note argues from policy and litigation perspectives that private injunctive relief would better address the systemic problem of wage theft than damages actions alone, and would help ensure that FLSA’s protections in fact serve as the baseline standards that Congress envisioned.
Health justice offers a theoretical framework for addressing health disparities through law and policy by responding to the structural causes of health disparities. This is a key feature of the health justice framework. Placing critical analyses of colorism in conversation with health justice, and even health law more broadly, offers space for contending with the complicated ways in which
skin-color-based discrimination harms
health.
Human Rights, ABA Section of Civil Rights and Social Justice
This article examines the implications of Loper Bright for IRS regulations.
Everyone has values which conflict with the sheer maximization of profit. When those conflicts occur, virtually no one will consistently choose profit over conflicting values, especially when the potential profit is small or conflicts with other economic values, promoting the common good or preserving a functioning ecosphere. This Article explores
a multi-stakeholder approach that will increase the quantum of humanity in the governance
of American large public companies in the era of social media and online communication.
This article examines a recent legislation discussion draft that would increase penalties on return preparers who omit their identification numbers from tax returns or refund claims, and they reach different conclusions on whether Congress should criminalize those failures.
In 2011 the American Bar Association's (ABA) House of Delegates (HOD) voted against endorsing the Uniform Collaborative Law Act (UCLA) drafted by the National Conference of Commissioners on Uniform State Law (NCCUSL). In 2024 the ABA HOD reversed position and endorsed the UCLA. This article explores why and how the change came about and its implications for the future of collaborative law. Collaborative Law is a dispute resolution process in which lawyers represent clients for a limited purpose—to negotiate settlement of a dispute. Parties and their counsel sign a participation agreement which requires counsel to disqualify him or herself from representation in litigation if the collaborative law process terminates short of settlement. The purpose of the disqualification provision is to focus the parties and counsel on formulating solutions to problems rather than threatening adversarial proceedings to resolve negotiation impasse. Collaborative law was first developed and is most used in divorce and custody disputes where problem solving negotiations are particularly important to the welfare of parents and children. In 2011, when NCCUSL first presented the UCLA to the ABA's HOD for endorsement, opponents (mostly litigators) characterized collaborative law as “unethical” because it created an alleged conflict of interest between lawyer and client. Opponents also characterized the UCLA as a threat to the independence of the legal profession as it was regulation by legislation rather than court rule. In 2024, the ABA HOD reversed its 2011 decision and endorsed the UCLA. By then over a majority of the states adapted the UCLA despite the ABA's 2011 disapproval. State enactments reflected greater public and lawyer acceptance of ADR in divorce and custody disputes. Another essential factor in the ABA ‘s change of heart was dedicated advocacy within the organization by committed members of the Section on Dispute Resolution. This article makes recommendations for the future integration of collaborative law into the mainstream of dispute resolution including more state enactments for the UCLA, expansion of collaborative law to fields in addition to family law and integration into legal education.
The rise of China to global preeminence is one of the most
important events affecting international relations in the 21st century. As former top U.S. diplomat Robert Zoellick noted in 2005, “How we deal with China’s rising power is a central question in American Law. The centrality of this question has only become more obvious in the intervening two decades as China’s relative economic and military power has continued to grow.
The Compendium is a unique resource that provides ethics information specifically focused on the work and issues impacting lawyers and organizations engaged in the practice of immigration law. The Compendium provides an in-depth analysis of the ABA Model Rules of Professional Conduct from the point of view of the immigration lawyer. Each chapter contains a different rule with a deep dive into the rule, real world hypotheticals, and analysis. There are other rules referenced as well, including those from the federal Professional Conduct for Practitioners Rules and Procedures promulgated by the Executive Office for Immigration Review (EOIR), Title 8 of the Code of Federal Regulations (CFR), and others. Because it is easy to fall behind in keeping up with current case law, regulations, and technology, and because the ethical dilemmas can arise from the complexity, high stakes, and relationships inherent in the profession, every immigration lawyer—new or experienced—needs a reference tool for ethical issues common to the practice of immigration law.
Eric M. Freedman
32 Wm. & Mary Bill Rts. J. 1049 (2024).
Congress has the authority to abolish the death penalty in the states, and good reason to exercise it.
This Article takes as a given the Supreme Court’s view that the death penalty is not itself unconstitutional.
But under existing law Congress would have no difficulty in compiling a record that would support the use of its enforcement power under Section Five of the Fourteenth Amendment to enact a statute forbidding the imposition of capital punishment by those states that retain the practice. The statute would be congruent and proportional legislation to remedy and prevent an amply documented history of violations of rights that the Court has long recognized as fundamental concerns.
Those violations include the states’: (1) denial of effective assistance of counsel to capital defendants, (2) racial discrimination in the selection of capital jurors and in charging and sentencing decisions, (3) failure to structure death penalty systems so as to reliably result in the execution of the most culpable of the potentially eligible defendants, (4) execution of the mentally impaired, (5) execution of prisoners contrary to the Constitution due to the fortuities of litigation timing, (6) execution of the innocent, and (7) use of torturous methods of execution.
Advocacy efforts supporting a federal statute abolishing capital punishment may achieve surprising success. Congressional representatives from abolitionist states may vote for one, and so may some legislators from retentionist states, buttressed by the growing number of political conservatives who support abolition. In any event, the campaign itself may strengthen the abolitionist cause.
Relevancy decisions, according to the prevailing view, are matters of probability, whether a given piece of evidence makes any legal proposition more (or less) likely to occur. This view has long held sway, from the early rationalist scholar James Bradley Thayer through the codification of formal rules of evidence, supplanting the common law’s acceptance of witness-framed narratives. But a purely logical analysis, one famously framed in terms of a mathematical equation, seems ill-suited for trial decisions. And the Probabilistic Paradigm often excludes context necessary for a party to present its case. This Article brings together two areas of scholarship that challenge a purely logical approach to relevancy decisions. Drawing on cognitive science and philosophy, the Explanatory Paradigm offers an effective critique of making admissibility decisions based on probabilistic formulas. This model also provides robust criteria for judging explanations. The Explanatory Paradigm, though, gives little attention to the role of narrative, a concern at the heart of Applied Legal Storytelling. This Article aims to correct this oversight. Applied Legal Storytelling’s insights on narrative and context, combined with the criteria of the Explanatory Paradigm, offer a workable alternative to the Probabilistic Paradigm. This project, in important ways, restores the common law’s embrace of witness stories as a way to determine the truth.
Thirty years after the adoption of the UN Convention of the Rights of the Child, this book provides diverse perspectives from countries and regions across the globe on its implementation, critique and potential for reform.
The book revolves around key issues including progress in implementing the CRC worldwide; how to include children in legal proceedings; how to uphold children’s various civil rights; how to best assist children at risk; and discussions surrounding children’s identity rights in a changing familial order. Discussion of the CRC is both compelling and polarizing and the book portrays the enthusiasm around these topics through contrasting and comparative opinions on a range of topics.
The work provides varying perspectives from many different countries and regions, offering a wealth of insight on topics that will be of significant interest to scholars and practitioners working in the areas of children’s rights and justice.
"This book is the latest development in YLDs efforts. The ten essays included here range from overviews of the need for pro bono disaster legal assistance and the roles of the organized bar and civil legal services providers in meeting it to informative, nut-and-bolts guides to specific issues in disaster legal aid-such as navigating flood insurance claims, dealing with post-disaster housing and tax issues, and understanding the specific needs of vulnerable populations. This volume is a valuable resource for the entire disaster response community-and the latest of many contributions from a leader of that community, the ABA Young Lawyers Division"--
Every state authorizes shareholder derivative litigation, and the vast majority extend this remedy to LLCs and limited partnerships. As the availability and incidence of derivative litigation has expanded over time, a number of procedural hurdles have evolved in an effort to limit nuisance or strike suits. The theory is that these strike suits are brought by small shareholders, and the need to post a bond may deter these shareholders from bringing these suits. As part of this effort, some states have enacted “security for expense” provisions, requiring owners to post a bond to cover the defendants’ expenses before they can proceed with their suit. A few state have also enacted such provisions for derivative suit by LLC members and/or limited partners.
The employer-employee relationship has been at the heart of what seems to be an ever-increasing amount of federal and state court litigation. A significant portion of this litigation involves claims of sexual harassment; indeed, a recent computer search discovered *50 an aggregate of about 100 reported federal district and circuit court decisions relating to sexual harassment claims over a mere six-month period.
Recent efforts to hold lawyers accountable for their actions-including lawyers who sought to overturn the 2020 Presidential election based on false evidence,and New York City prosecutors who have committed serious misconduct-failed to draw a significant number of legal ethics scholars. The authors of this Essay are troubled by this. We understand why practicing lawyers might be reluctant to join such an effort; calling out other lawyers inpositions of power can be had for clients. But it is less understandable when it comes to law professors who, except for those who teach in law clinics or otherwise engage in law practice, have no clients. Legal ethics scholars write and teach-often from a secure academic position-about the importance of legal ethics.
This book explores the development of both the civil law conception of the Legal State and the common law conception of the Rule of Law. It examines the philosophical and historical background of both concepts, as well as the problem of the interrelation between the two doctrines. The book brings together twenty-five leading scholars from around the world and provides both general and specific jurisdictional perspectives of the issue in both contemporary and historical settings. The Rule of Law is a legal doctrine the meaning of which can only be fully appreciated in the context of both the common law and the European civil law tradition of the Legal State (Rechtsstaat). The Rule of Law and the Legal State are fundamental safeguards of human dignity and of the legitimacy of the state and the authority of state prescriptions.
This casebook covers the entire range of land use law and related constitutional and environmental issues. The 8th edition has been thoroughly updated to reflect new caselaw as well as legislative and regulatory trends at the federal, state, and local levels. The 8th edition reflects modern land use policy goals, which include, among others, promoting sustainable development and addressing the extensive impact that land use segregation has had on the distribution of wealth in this country. Chapter One, which sets the stage for the rest of the book, includes nuisance law, restrictive covenants, with new cases on racial covenants and common interest communities, and the development and legal underpinnings of legislative zoning and comprehensive planning. Chapter Two covers the basics of zoning and the classic approach to zoning changes, flexible modern techniques, such as conditional zoning, floating zones, and planned unit developments, the process through which zoning changes are made, and the complexities of non-conforming uses, vested rights, and development agreements. Chapter Three examines federal constitutional issues in land use law, including challenges arising under the Takings Clause, the Due Process and Equal Protection Clauses, and the First Amendment. This Chapter includes the Supreme Court's decision in Knick v. Township of Scott and reflects the major jurisdictional impacts on ripeness, finality, and the exhaustion of remedies. Chapter Four offers concise coverage of subdivision regulation and infrastructure financing. Chapter Five focuses on housing and has been updated to reflect approaches to homelessness and its impact on local communities. Chapter Six explores strategies to revitalize the urban core, including the controversial use of eminent domain to clear land for redevelopment, as well as tax incentives, business improvement districts, public-private partnerships, land banking, and flexible housing codes. Chapter Seven examines growth management strategies, including land use moratoria and population caps that limit growth, as well as policies designed to prevent sprawl and preserve agricultural lands. Chapter Eight, which has been combined with Chapter Nine from the prior edition, addresses the impact of land use regulation on environmental resilience and sustainability and the move towards sustainable development.
The article delves into the systemic shortcomings within the realm of Supreme Court judicial ethics, underscoring the necessity for a comprehensive code of conduct complemented by robust enforcement measures. It elucidates how the erosion of public trust and the legitimacy of the Court stem from these deficiencies. It emphasizes the imperative of preserving the perception of impartiality, the discussion transcends partisan divides.
The legal writing class is the heart and soul of the first-year experience. This is largely so because much of the vital work legal writing professors do is outside of the actual curriculum. In addition to teaching substantive legal writing skills, legal writing faculty also teach process-based skills—how to manage time, how to study effectively, how to maintain mental well-being, and how to begin to develop a professional identity. The professional identity aspect has taken on increased urgency in light of new ABA standard 303(b)(3), which requires law schools to help students develop professional identity “during each year of law school.”1 The legal writing class, already the hub through which students gain information relating to managing other aspects of their law school experience, is a logical place to look for creative ways to foster the development of a professional identity. At the same time, legal writing faculty are keenly aware of the heavy curricular burden they already shoulder. Ideally, a creative way to foster professional identity development within the legal writing classroom will streamline rather than add to the already intense workload of legal writing faculty.
In late August 2009, after thirty years as a local and state prosecutor, I began a new position as a Visiting Assistant Professor at the Hofstra University School of Law. Within three weeks of my first class, I received a call from Professor Roy D. Simon, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra, inviting me to attend the conference he had organized, “Power, Politics & Public Service: The Legal Ethics of Lawyers in Government,” and to supervise a “breakout session” with other conference participants. When I saw the distinguished panel Professor Simon had assembled for the conference, I replied by thanking him for the opportunity but suggested that I had nothing to contribute compared to the other speakers. Professor Simon responded that I possessed something unique that would be a useful addition to the program: a perspective based on a three-decade career of public service as a prosecutor. I agreed to provide a career prosecutor's viewpoint on fairness in general and disclosure obligations in particular.
Although there is broad consensus on what constitutes procedural due process in criminal cases, in courtrooms around the country, those ideals are often disregarded. In the wake of rising public attention to misdemeanors, be it through marijuana decriminalization or concern over unduly punitive fees and surcharges, a few scholars have pointed to theories explaining the gulf between rights and reality for low-level defendants. Yet none have expressly considered the impact of administrative rules made (or not made) at the courthouse level. This Article analogizes the courthouse to an administrative agency and borrows the doctrine of “bureaucratic drift” to explain how Supreme Court, legislative, and ethical norms of due process get fltered through a courthouse bureaucracy that ultimately leaves poor defendants without access to basic rights. The argument draws on fndings of a fve-week court observation project, which documented the daily injustices — in violation of established law — that individuals charged with low-level crimes experienced as defendants in a New York court. To remedy the drift, the Article proposes the appointment of an independent due process ombuds to oversee procedural justice court-wide.
Slovin v. Slovin is a multifaceted matrimonial action that started when Rita Slovin sued her husband, Michael Slovin, for divorce under the jurisdiction's no-fault divorce provisions. Rita seeks sole custody of the couple's two children, while Michael seeks a significant equitable distribution award and sole custody of their children. Michael has also brought a separate action against Rita for battery and slander. Slovin is a multi-purpose case file divided into five modules. The first two modules focus on child custodythe negotiation and trial of the child custody case. The second two modules concern the trial and negotiation of financial issues, with sole consideration to equitable distribution. In addition to those traditional matrimonial litigation issues, there is an additional module that introduces the theory of marital tort as an offshoot of the matrimonial litigation. There are two causes of action, one for battery and the other for defamation. The insertion of those two tort claims allows for additional training in basic trial advocacy skills while developing more complex theories of the case. Further, the related battery and defamation actions allow participants to gradually develop their advocacy skills. Slovin v. Slovin features eleven witnesses, depositions and testimony, expert reports, and modern electronic evidence in the form of Twitter posts that are accessible on online "microsites."
Providing an excellent and current resource for understanding the complexities of ocean and coastal law and policy, this updated edition of an ABA bestseller brings together the expertise of the country's leading scholars and practitioners in the field of ocean and coastal law. Covering the full array of issues involved -- from maritime jurisdiction and boundaries to water quality protection to fisheries management and marine mammal protection to offshore energy development and climate change -- each chapter addresses the current state of the law for the topic, followed by analysis of the emerging and unresolved issues. The book's final chapters address the principles, legal authorities, and planning for a transition toward an ecosystem-based management approach to U.S. coastal and ocean areas. Among the topics covered in this updated edition of Ocean and Coastal Law and Policy are: Maritime jurisdiction and boundaries The Public Trust Doctrine The role of the states Regulation of coastal wetlands and other U.S. waters Managing coastal development National Environmental Policy Act (NEPA) Coastal water quality protection Ocean dumping and marine pollution Fisheries management and trade in fish and fisheries products The 1982 U.N. Convention on the Law of the Sea Offshore energy development
An inspiring and revelatory look at the document that has made our country the longest surviving democracy in the history of civilization: The Constitution of the United States. The history of democracy is a history of failure. The United States holds the record at 230 years, yet the document at the nation's center is one that we take for granted. Due to a combination of heightened frustration, moves to skirt the constitutional process, and a widespread disconnect between the people and their constitutional "conscience," Lane and Oreskes warn us our system is at risk. The Genius of America looks at the Constitution's history relative to this current crisis. Starting with the eleven years between the Declaration of Independence and the Constitution's adoption, they show how our near failure to create a loosely knit nation led the framers to devise a system that takes human nature into account. Next they provide examples of how we have weathered crises in the past, from early attempts at political tyranny to the Civil War. Finally they turn to two periods, one of great consensus (from Roosevelt's New Deal through Johnson's Great Society) and another of division (from Reagan through George W. Bush), both of which demonstrate the Constitution's effectiveness. In the final assessment, Lane and Oreskes challenge us to let this great document work as it was designed--in times of change and stasis. They hold our leaders accountable, calling on them to stop fanning the flames of division. And while evenhanded in its presentation, The Genius of America reminds us the Constitution is our national glue.
Despite the ever-growing number of exonerations in the U.S.— and the corresponding surge in scholarly interest in wrongful convictions in recent years—research on the carceral experiences of wrongfully-convicted persons remains strikingly limited. In this essay, we draw on in-depth interviews with 15 exonerated men to explore the moral dimensions of the experience of wrongful imprisonment. We argue that imprisonment entails what we refer to as “coerced moral degradation,” whereby innocent men’s self-preservation efforts in prison require them to feign being—and at times actually become— morally worse people. We argue that these findings speak to the fundamental question of what the law is for, and, further, that the coerced moral degradation that the men experienced in prison provides a compelling basis for conservative and progressive scholars to find some common ground on the moral purpose of the law.
Family courts throughout the United States have explicit statutory duties to aid families in crisis, to maintain families whenever appropriate, to protect children and safeguard their well-being, and to
provide children with permanency in their lives. These are not narrow obligations, and the judges, practitioners, and agencies involved in family courts must constantly adapt to serve the individual needs of all the families that come before them. The purpose of this Special Issue is to examine the
unique challenges presented by working with families and children who are immigrants-both documented and undocumented-and the complex interplay between immigration issues and the
family court's obligations to serve the families and children who come before it.
The article presents a compilation of papers and reflections from the Symposium on Freedom of Expression at American Law Schools.Topics include the importance of respectful and persuasive argumentation, the suppression of speech by state governments, and the role of free expression in legal education.
Water scarcity due to climate change is forcing the state and local government agencies that regulate water use to prioritize certain water uses and users above others. Water agencies could just stand pat and enforce existing priorities, even if doing so would cut off valuable collective uses of water that are lower in priority than uses by narrow private interests. Alternatively, the agencies could try to adapt water priorities to climate change by reducing water obligations owed to certain groups of users in order to free up water supplies for other groups of users, even if doing so would trigger a mass of litigation from users set to receive less water than they were promised. Anticipating these dynamics, water law scholars developed the concept of “water bankruptcy,” a set of principles for better resolving the multiparty lawsuits bound to follow adaptation of water priorities to climate change. To date, however, proponents of water bankruptcy in principle have urged lawmakers to amend their own state and local procedures, overlooking the possibility that water bankruptcy in practice is already available to water agencies through the federal law of municipal bankruptcy, Chapter 9 of the Federal Bankruptcy Code.
This Article is the first attempt to examine the promise of water bankruptcy through Chapter 9 of the Bankruptcy Code, which allows local government units to readjust their debt obligations into more sustainable arrangements. As it turns out, the Code makes available a litigation process that is readymade for water bankruptcy, maximizing flexibility for eligible water agencies to consolidate in a single forum all claims to specific water sources, to breach and compensate obligations owed to large groups of water users, and even to pay for emergency water supplies. Water bankruptcy through the Bankruptcy Code also would not implicate the efficacy or constitutional concerns raised by recent Chapter 9 bankruptcies of general municipalities. Faced with dwindling freshwater supplies, water agencies and advocates of water bankruptcy in principle should appreciate the promise of water bankruptcy through the Bankruptcy Code.
This Article argues that mediators are following distinct models of practice that are significantly different from each other, and that each model is itself internally coherent and integrated. In other words, within each model the mediator’s purpose, practices, and premises are all consistent and congruent; and when comparing each model to the others, these three levels are not only different but incompatible. Yet, although these models and their differences are recognized in the literature and identifiable in practice, many mediators and policymakers do not clearly acknowledge them; even more, they are often discounted and ignored. For example, proposals have been made recently to ignore these models in favor of a "toolbox" approach in which mediators select their practices on a case by case basis from a toolbox of methods shared by all. This Article explores the reasons for the insistence that good practice is a matter of using a common toolbox rather than following different coherent, purpose-driven models, and shows how the latter approach provides greater service to consumers and facilitates better regulation of mediation practice and ethics.
Feminist scholars critique food and drug law as a site of gender bias and regulatory neglect. The historical exclusion of women from clinical trials by the FDA prioritized male bodies as the object of clinical research and therapies. Likewise, the FDA’s prior restriction on access to contraceptive birth control illustrates how patriarchal and paternalistic attitudes within the Agency can harm women’s reproductive health. However, there is little analysis of how race and gender intersect in this domain.
Corporate directors are subject to the fiduciary duties of care and loyalty in the discharge of their responsibilities. The demands of these duties, from their precise contours to their application under a particular set of circumstances, is oftentimes far from obvious. In order to properly fulfill their duties of care and loyalty, corporate directors necessarily depend upon corporate counsel: specialized attorneys, whether in-house or external to the corporation, retained to advise and represent the corporation. As attorneys, corporate counsel are themselves subject to a wide array of professional responsibilities, ranging from the exhortations of codes of ethics to duties the breach of which could result in a finding of malpractice. These responsibilities can themselves be ambiguous when brought to bear upon specific situations, and hence the advent of the field of legal ethics, and the phenomenon of experts therein. This Article explores the potentially perilous confluence of these two sets of obligations in the person of a corporation’s general counsel. For it is, ultimately, the general counsel of a corporation, that specialist of specialists, with whom rests the duty to advise board members of their duties. This Article articulates what this duty entails and, informed by a 2022 survey of general counsel, sets forth suggested best practices to be adopted in order to confidently discharge it.
This review collects and critiques the academic literature on criminal defense lawyering, with an emphasis on empirical work. Research on criminal defense attorneys in the United States has traditionally emphasized scarcity of resources: too many people facing criminal charges who are “too poor to pay” for counsel and not enough funding to pay for the constitutionally mandated lawyers. Scholars have focused on the capacity of different delivery systems, such as public defender offices, to change the ultimate outcomes in criminal cases within their tight budgetary constraints. Over the decades, however, theoretical understandings of the defense attorney's work have expanded to include client interests outside the criminal courtroom, reaching the broader social conditions connected to the alleged criminal act. Researchers have responded by asking a broader range of questions about the effectiveness of defense counsel outside the courtroom and by using improved data to study the effectiveness of lawyers at discrete procedural stages.
In an age of social and political activism, speech has become an important corporate tool. This may be a profit-maximizing marketing strategy, as a cynic might say, or an initiative to use power for the greater good, as an idealist might say. Regardless, today's corporate speech extends far beyond the ambit of a company's services or expertise and well into caustic social and political terrain. And the more that companies speak, the more pressure there is for companies to continue to speak. As pressure to speak intensifies, corporate communications and public relations departments take on the unenviable task of wordsmithing statements that aim to say just enough to have substance, while dodging the many perils of misspeaking on fractious issues. Yet, for all that careful vetting, companies are comprised of employees, whose speech may be more impulsive than that of their employer.
This article poses that the real threat to the preeminent American markets is when budding AI models— already permeating the market —correctly infiltrate firewalls and procedures to provide unlawful trading asymmetry to investors, professional or otherwise. The integrity of the United States markets, a federal focus since at least 1933, may be more vulnerable than ever.
The proportions of Leonardo's Vitruvian Man allow the human figure to fit a circle and a square, which in Renaissance iconography represent respectively the secular and divine dimensions. Good canons allow for a proportionate and simultaneous coexistence of the two natures of humankind. Human shareholders have two natures, too: one as investors and one as human beings. Similar to the Vitruvian Man, a shareholder with good proportions fits a metaphorical circle and a metaphorical square: the former represents the human dimension, and the latter represents the investor. I dub retail investors who proportionately balance their interests as human beings who inhabit a shared planet with their interests as investors "Vitruvian Shareholders." In response to Caleb Griffin's Humanizing Corporate Governance, this Essay introduces the Vitruvian Shareholder paradigm as an innovative understanding of the canons that inform human shareholders' decision-making.
Perhaps the most remarkable feature of Lessons Learned, a fictional story about a long-time law professor and his relationships with students and colleagues over the course of fifty years of teaching, is that it feels nostalgic and modern at the same time. In the preface, longtime and now deceased Washington University School of Law Joseph H. Zumbalen Professor of the Law of Property Emeritus David M. Becker' acknowledged that either a "third person non-fiction" or "an embellished autobiography" would have been a more conventional approach to his subject, but he chose a fiction story because it allowed him "to depart from personal experience and real life, and to disguise and borrow from others, and especially to completely fabricate." What Becker did not acknowledge is that in using the first-person narrative form, he separated his work from the customary scholarly lens of most legal academics and deeply personalized the lessons taught throughout. In doing so, he exemplified one of the greatest of lawyering skills: the art of storytelling.
The federal government has made chronic absence a key criterion in evaluating the success of public school districts, and states have adopted it as a benchmark. Monitoring chronic absence, which encompasses excused and unexcused time away from school, rather than truancy, is rooted in the belief that any absence from school is unfavorable, regardless of the underlying reasons or situations. Congress has also established a threshold for the number of school days that can be missed without causing substantial learning setbacks; that threshold is generally calculated as a percentage of an academic calendar of around 180 days in most jurisdictions––a calendar established a century ago.
The central claim of this Article is that a significant share of typical policing activity is wildly and egregiously unconstitutional. More precisely, police regularly, predictably, and systematically violate the hardest, most settled core of free-speech law under the First Amendment. We have grown to tolerate these violations—we have not even noticed them!—because they are difficult to litigate. But they are inescapable. Having seen them, we cannot abide these violations without entirely overturning the modern understanding of free-speech rights under the First Amendment.
How does the legal profession understand new technology? Lawyers are involuntary experts in technology: we are not professionally trained in technology like engineers are but must know technology better than the typical citizen does, because the law must regulate how the typical citizen--that is, society--uses technology. The increasing complexity and variety of technologies that affect everyday life, such as artificial intelligence (AI), make our jobs as involuntary experts in technology all the more important. To prepare lawyers to regulate technology effectively, we must first examine how lawyers understand (or misunderstand) technology in the present.
This Article examines a cognitive shortcut for understanding new technology that comes naturally to the legal profession but induces both practitioners and academics to misperceive technology and warps outcomes in both procedural and substantive law. This error, which I call the faster horse fallacy, refers to misunderstanding a new technology as identical to an old one, only cheaper and performing better. While cars and horses can both haul people or cargo, a car is not a faster equivalent of a horse because cars have features that horses lack, meaning that cars create problems that horses do not. The fallacy causes scholars to view AI-assisted discovery as a faster and cheaper version of human-centric review, thereby distorting litigation outcomes. The fallacy also causes courts to perceive email as a faster and cheaper equivalent of mail, which undermines the right to notice, and causes regulators to present electric vehicles as cleaner and cheaper equivalents of gasoline cars, which exposes motorists to new safety risks.
In baseball, the 1845 Knickerbocker Rules were the first attempt at codification. In 1877, they were replaced by the Playing Rules of the National League of Professional Baseball Clubs. Over the following seven decades, the Rules were added to, tinkered with, rearranged, and renamed, but their quality as a code improved only incrementally. They weren't much better than the playing rules of other sports. But in 1949 the Rules were recodified into a model of law design. How that happened and why seems at first to be a mystery. But, as we shall see, circumstantial evidence points to one person who spent a lifetime in baseball, knew what elegantia means in Latin and in law, and is remembered today for something else, entirely unrelated to the Rules.
Meera Deo’s book Unequal Profession: Race and Gender in Legal Academia provides the empirical data for what legal academics of color have professed for decades. We knew it was so, and Deo now proves it is so—“it” being the slights, the biases, the inequity in treatment, the invisibility (or, in my case, hypervisibility) of women of color academics in predominantly white institutions of legal education. She does so masterfully by weaving in, with the raw data, the stories and lived experiences of these academics unduly burdened by “institutional discrimination” stemming from the “raceXgender” factor that she defines and expands upon throughout her book.
Foregrounding the importance of schemata in learning, Teaching Lawyering Skills presents an integrated approach to the overall pedagogical theory of law. Stefan Krieger challenges the traditional stark dichotomy between doctrinal analysis and practice skills, arguing that skills education requires development of strategic reasoning in practice. This fascinating book focuses on two main cross-cutting themes: effective investigation, analysis and presentation of facts; and effective questioning, listening and responding. Addressing these two themes in both dispute and transactional contexts, it outlines a unique course that centres the skills of fact investigation, interviewing, negotiation, deposition-taking, and direct and cross examination of witnesses. Ultimately, Krieger presents a storyboard method to teach trial advocacy, providing specific teaching guidance and suggesting practical exercises to use either in law school classes or office-based training. Utilising empirical research in the cognitive sciences and medical education pedagogy, this innovative book will be essential for law school instructors of simulation, clinical and externship skills courses. It will also appeal to trainers of new law graduates and paralegals at law firms, government law offices and nonprofits.
