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Benefit or Burden?: \u3cem\u3eBrackeen v. Zinke\u3c/em\u3e and the Constitutionality of the Indian Child Welfare Act
Get PDFBefore \u3cem\u3eLoving\u3c/em\u3e: The Lost Origins of the Right to Marry
Get PDFFor almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: onjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed in Loving’s wake to lose its exclusive claims to licit sex and legitimate procreation, personal autonomy in those very domains gained independent constitutional protection. Drained of its conjugal essence, today’s constitutional right to marry is thus an anachronism, the vestige of a bygone consensus about what, if anything, “marriage” fundamentally is
An Approach to Improving Judicial Review of the APA’s “Good Cause” Exception to Notice-and-Comment Rulemaking
Get PDFMay It Please the Court: A Longitudinal Study of Judicial Citation to Academic Legal Periodicals
Get PDFPart I of this article examines the proportion of reported opinions from U.S. federal and state courts between 1945 and 2018 that cite at least one academic legal periodical, while Part II applies that data beginning in 1970 to compare the proportion of opinions that cite to the flagship journals of 17 law schools selected and hierarchically categorized based on their U.S. News & World Reports rankings. Representing the most elite schools are Harvard Law Review and Yale Law Journal, the two longest running student-edited journals at arguably the two most prestigious law schools in the United States, followed by journals from three exemplar schools from the “Top 14,” and three law schools from each of the rankings\u27 four tiers. This article explores these trends in the context of changes in technology, the judiciary, legal scholarship, and academic legal publishing
Mark Bartholomew discusses contact tracing
Get PDFEpisode 1 of the podcast features UB School of Law professor Mark Bartholomew. Professor Bartholomew discusses the pandemic, contact tracing, and the tension between public health security and privacy in using technology to track the coronavirus. Mark Bartholomew received a 2018-2019 research grant from the Baldy Center for Law and Social Policy to help support his research, “The Law of Advertising Outrage.
Copyright and the Brain
Get PDFThis Article exploresthe intersection of copyright law, aesthetic theory, and neuroscience. The current test for copyright infringement requires a court or jury to assess whether the parties’ works are “substantially similar” from the vantage point of the “ordinary observer. ”Embedded within this test are several assumptions about audiences and art. Brain science calls these assumptions into question. The substantial similarity test posits that aesthetic reactions are unmeasurable and uniform. In actuality, they can be quantified and vary depending on audience and artistic medium. Neuroscience has already reconfigured the law in many areas, from tort damages to the death penalty. Now it may offer copyright law a way forward, opening up the black box of aesthetic encounters to reveal what is most salient when making the comparison at the heart of copyright infringement. Three suggested reforms—admitting expert testimony to tailor the substantial similarity test to different kinds of artistic works, using survey evidence to better understand the aesthetic responses of specialized audiences, and reordering the infringement analysis to debias judges and jurors—deploy the insights of neuroaesthetics to improve the law of copyright infringement
The Law and Political Economy of a Student Debt Jubilee
Get PDFThe notion of a student debt jubilee has begun its march from the margin of policy debates to the center, yet scholarly debate on the value of canceling student debt is negligible. This article attempts to jump start such debate in part by presenting a novel policy proposal for implementing a jubilee. In addition to reviewing the history of student debt and the arguments for canceling much or all of it, it presents a detailed legal argument that canceling public student debt (which accounts for 95% of student debt outstanding) could be undertaken by the Executive Branch without further legislation. The Secretary of Education has already been given the authority to “modify” and to “compromise, waive, or release” its claims against students. There is a strong argument under current case law that this authority is a grant of prosecutorial discretion, which would be unreviewable by courts. Even if a court were to rule otherwise, at least some cancellation plans would likely survive “arbitrary and capricious” review. In any case, this litigation risk is not a good enough reason for a President not to try to relieve the burdens of student debt if Congress cannot agree on a bill that will do so
\u3cem\u3eMorrison v. National Australia Bank\u3c/em\u3e and the Growth of the Global Securities Class Action Under the Dutch WCAM
Get PDFIn 2010 the U.S. Supreme Court fundamentally reset the jurisdictional sweep of U.S. securities law in Morrison v. National Australia Bank. No longer could foreign plaintiffs access the U.S. courts if a defendant engaged in conduct in the U.S. affecting securities prices outside the U.S., or conduct outside the U.S. had a significant effect on securities prices inside the U.S. Under Morrison’s new “transactional test” only purchasers of securities on a U.S. exchange or in a U.S. transaction would be able to bring securities fraud claim under Section 10(b). The Morrison decision therefore greatly heightens the importance of alternative non-U.S. jurisdictions hosting securities fraud lawsuits. Prior to Morrison, however, the Netherlands had already begun to host global securities settlements under its statute allowing for the settlement of mass claims, the Wet Collectieve Afwikkeling Massaschade (WCAM). As of 2019, the WCAM has been used to settle global securities fraud claims in four major cases, including the 1.2 billion euro settlement in the Fortis case, the largest ever outside the United States. The WCAM differs in crucial ways from the U.S. securities fraud class action regime, however. Most importantly, because the WCAM does not afford plaintiff shareholders a collective means to sue, the balance of power shifts decisively towards the defendant as compared to the American system. A close look at Morrison and the WCAM settlements to date illustrates that to some extent the development of this law is an example of regulatory competition. Indeed, both the U.S. Supreme Court and the Dutch courts have understood their role as affording differing, though complementary, systems for solving securities fraud claims. The theory of regulatory competition is not the only cause driving the development of a global class action mechanism under Dutch law, however. The jurisprudential commitments of the Supreme Court’s conservative wing, as well as principles of justice and the workings of chance, have also shaped the development of this new body of law. This Article surveys the WCAM as a mechanism to settle securities fraud claims, with an eye towards comparing it to its American counterpart. While critics of the American system will be heartened by the fact that plaintiffs are deprived of the ability to launch in terrorem litigation, the Dutch system fails to improve on the more trenchant flaws of the American securities fraud class action regime