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HELPING LAW STUDENTS DEFINE AND PURSUE SUCCESS
No full textThis post collects prior posts about how to help law students define and pursue professional success
Unlicensed to Work: An Analysis of the United States\u27 Human Rights Violation Against Asylum Seekers Due to the Unreasonable Waiting Period for Work Authorization, and How the Nation Forfeits an Economic Opportunity in the Process
No full textGentile v. 2400 Johnson Ave. Owner, Inc.
No full textTenant sued landlord for retaliatory eviction and breach of fiduciary duty after complaining about water quality in their apartment. The court found the tenant sufficiently pleaded both causes of action and denied the landlord\u27s motion for summary judgment. However, the court dismissed the tenant\u27s claim for inspection of the building\u27s books and records. Key legal points: 1) Tenants can sue for retaliation if they are evicted in response to good-faith complaints about habitability issues. 2) Board members of cooperatives owe fiduciary duties to the shareholders. 3) Landlords must meet a high burden of proof to win summary judgment on retaliation claims
Yao Wen Lei v. Yu Hin Chan
No full textIn this holdover proceeding, tenants appealed from an order denying various motions including to sanction the judge, for discovery, to recuse the judge, for leave to reargue, to strike a jury demand, to strike landlords\u27 answer to their counterclaims, to reconsider signing subpoenas, and to stay the trial. However, the appeal was dismissed as the right of direct appeal terminated upon the subsequent entry of a final judgment. Key legal points include the requirement for timely appeal and the termination of the right of direct appeal upon the entry of a final judgment
After the Demise of Affirmative Action, Ensuring Equitable Access to Educational Opportunities
No full textOn June 29, 2023, the United States Supreme Court held in two related cases that race-based affirmative action in college admissions is unconstitutional, because it violates the Equal Protection Clause of the 14th Amendment. What is next in (higher) education after the Supreme Court’s rulings in two related cases brought by Students for Fair Admissions? The decisions may dramatically transform college admissions and even how universities think about allocating their resources and about their role in a democratic society. Even now, the Court’s holdings are rippling past highly selective college campuses to corporate boardrooms, non-profits, and state legislatures.
Despite the Court banning race-based affirmative action in college admissions, new empirical analysis of a novel big data set demonstrates that Asian American applicants to highly selective colleges are 28% less likely to be admitted than white students with similar standardized test scores, high school GPAs, and extracurricular activities. This Asian American admissions penalty is primarily due to legacy admissions and preferences for geographical balance. This Essay advocates that highly selective colleges end legacy admissions to diversify America’s economic, political, and social leadership. This Essay also advocates ending the recruiting of athletes in such elite sports as fencing, rowing, sailing, and water polo. This Essay suggests ending the practice of early decision. This Essay also endorses effectively cloning highly selective colleges. Finally, this Essay offers practical and pragmatic answers to questions about how to change education for the better
Rulemaking 3.0: Incorporating AI and ChatGPT Into Notice and Comment Rulemaking
No full textArtificial intelligence, including ChatGPT, is the latest tech trend to create opportunities to transform notice and comment rulemaking. If ChatGPT is only used by members of the public and organizations as a tool to draft comments, it may increase the involvement of the public in the process and assist them in drafting clear and intelligible comments. However, it is unlikely to improve the quality of public comments that they provide to agencies, because it will not help them understand the type of information that agencies are seeking in public comments. In addition, if ChatGPT is used to any significant extent in drafting comments, it could create challenges for agencies by flooding agencies with significantly greater numbers of seemingly unique comments, most of which merely express sentiment, values or preferences, and many of which may include false information
Democratic Erosion and the United States Supreme Court
No full textFor many decades, confidence in American institutions and political culture consistently led scholars to sideline questions about “regime change” in the United States. And for many years, that approach seemed justified. Democratic institutions were firmly rooted and stable, and American voters participated in free and fair elections that resulted in the peaceful transfer of power between parties and candidates. Then came the campaign of Donald Trump and all that has followed since, including open challenges to the most basic and fundamental democratic norms. These changes have led many voters, commentators, and scholars to ask: Is democracy eroding in the United States?
This Article is the first to employ its novel approach to the examination of democratic erosion in the United States by adopting a comprehensive method from the comparative politics literature. Through identification of four key areas for studies of democratic erosion— electoral rules, executive aggrandizement, income inequality, and speech rights—and an examination of how the Supreme Court has intervened in each area between the 2016 and 2022 terms, this Article provides a new perspective on the Court’s role in democratic erosion. The key question for this project is thus empirical, not doctrinal. What has the Court done when it has confronted issues central to democratic erosion?
Part I of the Article provides a brief survey of the comparative politics literature to identify the categories that will guide the analysis of Supreme Court caselaw. Part II of the Article examines the opinions in each category—sixty-four cases—with a focus on the Court’s impact on erosion. This snapshot of Supreme Court intervention in areas that are crucial to democratic stability is a worrisome one. Though the wide range of cases examined permits room for much nuance, generally speaking, the Article finds the Court abets democratic erosion more than democratic stability
Contractual Landmines
No full textConventional wisdom is that the standardized boilerplate terms used in large commercial markets survive unchanged because they are an optimal solution to the contracting problems facing parties in these markets. As Smith and Warner explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals numerous instances of harmful landmines — some are deliberate changes to standard language that increase a creditor’s nonpayment risk, others are blatant drafting errors, and yet others are inapt terms that have been carelessly imported from corporate transactions. Moreover, these landmines differ from each other in important respects: deliberate changes to the standard form reflect strategic lawyering on behalf of sovereign clients, while errors that only benefit subsequent activists reflect haste in adapting precedents to new transactions. Using both quantitative data and interviews with market participants, we find that the conventional view fails to recognize the unique and distorting role that lawyers play in the drafting of standard form contracts. Systematic asymmetries in the market for the lawyers who negotiate and draft these contracts explain why real-world contracts depart from the efficient contract paradigm