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Arbitration: An Unstoppable Wave?
No full textIn recent years, large companies have started favoring the use of compelled arbitration agreements. Arbitration is one of many mechanisms encompassed under alternative dispute resolution (“ADR”), a broad framework by which parties may seek alternatives to litigation. As a whole, ADR arose with the intent of avoiding the high costs of litigation. Arbitration became the “principal form of ADR” for a period of time, with cost savings in mind
Did Your Student or a Bot Write This Paper?: Teaching and Grading in the Age of AI
No full textGenerative artificial intelligence (AI) is disrupting traditional assumptions about law students’ authorship of their written assignments. Faculty are concerned about their ability to tell whether students are writing their own papers or simply using AI tools like ChatGPT. This article offers practical strategies for addressing this problem, focusing on teaching and grading practices that promote transparency, accountability, and learning.
It recommends that faculty require students to include AI use certification cover sheets with their papers, disclosing whether and how they used AI tools during the writing process. The article also explains how faculty can shift from purely summative to use more formative assessments, which provide insight into students’ thinking and help them improve their analysis and writing. It suggests that faculty assign shorter, staged tasks and require students to use AI for some of them. Faculty can review AI chat transcripts to better understand student thinking and provide well-focused feedback.
Rather than trying to determine whether students used AI tools, these approaches give faculty better methods to assess authorship and promote learning. They also help faculty adapt their teaching practices to the realities of AI-influenced writing. The article includes sample language for syllabi, grading rubrics, and assignment design
Second-Guessing the Jury: The Federal Circuit\u27s Flawed Take on Enhanced Damages in Halo v. Pulse
No full textThis article critically examines the Federal Circuit\u27s February 2025 decision in Halo v. Pulse, focusing on the court\u27s approach to enhanced damages in patent infringement cases. The analysis identifies a fundamental tension between jury findings of willful infringement under a clear and convincing evidence standard and the district court\u27s subsequent discretion to deny enhanced damages by essentially reconsidering the same evidence. The article argues that the Federal Circuit\u27s affirmation of this approach undermines the Supreme Court\u27s 2016 Halo decision, which sought to make enhanced damages more accessible in cases of egregious misconduct. By creating an artificial distinction between willful infringement and conduct warranting enhanced damages, the Federal Circuit has established a problematic two-tiered system that potentially diminishes the deterrent effect of willfulness findings. The article further critiques the appellate court\u27s unsupported inference that the district court viewed Pulse\u27s conduct as presenting a close question, highlighting how this judicial speculation creates problematic precedent for future willfulness cases and raises Seventh Amendment concerns about undermining the jury\u27s role in patent litigation
Comparative Lessons for Enhancing Representation in the U.S. Judiciary - And Countering Democratic Decline
No full textAt this precarious moment for democratic institutions and the rule of law in the United States, this Essay draws upon efforts to build more representative judiciaries in other countries and in international fora to identify promising strategies for enhancing representation in the U.S. judiciary, particularly with respect to gender and parity. 23 It argues that efforts to enhance judicial representation and parity in the United States could benefit from incorporating and building upon international legal principles and the practices of international courts, institutions, and organizations with respect to parity and representation. Crucially, at the same time, efforts to ensure greater representation and parity in U.S. courts could further support the rule of law and counter democratic decline during periods of intensifying contestation and erosion, just as we have seen from similar efforts in other nations
The Obviousness Paradox: Should Design and Utility Patents Play by the Same Rules?
No full textThe standard American grading system recognizes an A as the best possible grade, while an F represents failure. To achieve an A, the typical benchmark is anywhere above 90%. Falling well below this mark, any grade below 60% constitutes failure. Accordingly, a higher percentage in class equates to a better GPA. Following this same logic in the world of sports, the greatest free-throw shooter in NBA history holds the record at 91%. The greatest field goal kicker in NFL history holds the record at 89.1%. However, the highest batting average in MLB history sits at .366, or 36.6%. According to the American grading system, the best batting average in MLB history is a failing grade. A free-throw success rate of 50% falls well short of the mark, yet the same success rate in baseball would make for the greatest batting average in history. Should such a seemingly low success rate correspond to less of an achievement compared to that of the free-throw shooter who shoots 91%? Of course not. Athletes cannot easily compare success rates across different sports because making a free-throw is different from hitting a baseball
Vouching for Fair Housing: Landlords’ Duty to Accept Housing Vouchers as Reasonable Accommodations for Handicapped Tenants
No full textEarning enough income to afford housing is challenging. Maintaining a steady job that covers both housing and basic essentials requires significant time and energy. Now, imagine you have a physical disability affecting your mobility. Suddenly, your job options are limited, and your health care costs increase. Now, imagine you suffer from a psychological disability as well. Your health care costs skyrocket because you must pay for medications to alleviate both your physical and psychological disabilities, equipment to assist your mobility, therapy fees, and other essential health care costs. In addition, your already limited job opportunities have again been significantly reduced. Even if you do find a viable job, you continue to suffer from your disabilities every single workday. Your disabilities might even be so constraining that, regardless of whether you want to work, you are incapable of doing so. The already challenging task of affording housing becomes insurmountable
Time and Retribution
Get PDFTime is missing from discussions on the theory of retribution. A colossal body of scholarship has been devoted to exploring the theory of retribution, or “just deserts,” but much less has attempted to translate this theory into practice, explaining how to determine an actual offender’s desert in real life. The limited scholarship on this topic touches on who might best assess an offender’s desert. For example, should a judge, a juror, or the public itself be making these desert decisions? But there is also a temporal aspect to this decision-making that has thus far largely eluded exploration: When should the desert decision be made? The recently finalized Model Penal Code: Sentencing brings this question into relief by calling on legislatures to allow judges to reassess certain sentencing decisions made decades earlier. But do later sentencers really have a better sense of desert than the original sentencers in a case? This Article argues that the original sentencers, and in particular the original public and its representatives, are actually best positioned to decide an offender’s desert. They represent the original victims in the case; they are closer to the facts; they comprise the society that shaped the offender and the circumstances leading to the offense; and recognizing these original sentencers’ desert-deciding advantage furthers finality goals. Now, there may certainly be reasons to modify sentences after they have been imposed—primarily when new information justifies new sentences. But, in most cases, new sentencers are generally not more enlightened about what an offender actually deserves. Instead, when new sentencers have an edge over original sentencers, it often stems from consequentialist, rather than retributivist, principles. Under the theory of retribution, original sentencers are ordinarily best equipped to assess an offender’s desert
Time to REDRESS® Hazing: Changing the Way Universities Deal with Hazing Claims and Allegations
No full textEvery year, excited eighteen-year-olds step foot on a college campus ready to start a new chapter. Ready to try new things, these students join various organizations eager to make new friends and connections. Daniel Santulli was no different. He was an excited nineteen-year-old freshman at the University of Missouri in the fall of 2021. Santulli decided to join the Phi Gamma Delta fraternity and was ready to make lifelong friendships. However, on October 20, 2021, Santulli suffered a life-altering injury due to an alcohol-related hazing incident. Santulli was “marched, shirtless and blindfolded, into the basement of the Phi Gamma Delta fraternity house” and was subjected to finishing bottles of hard liquor. Security footage revealed Santulli drinking alcohol through a beer bong and then falling onto the floor. His supposed “brothers” left Santulli on a couch and then later as they moved his limp body, they dropped him on a tiled floor where he hit his head. That evening, Santulli experienced cardiac arrest and suffered damage to his occipital cortex. The severity of Santulli’s injuries resulted him being unable to walk or talk and in need of lifelong care
I Like My Litigation How I Like My Pie: Whole
Get PDFThere is a huge problem with the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”): it contains major ambiguities. The Act was signed into law by President Biden in 2022, and it has the potential to affect many Americans. It has been estimated that about 60 million workers—over half of the non-unionized private workforce—are subject to mandatory arbitration agreements as part of their employment. The Act states in relevant part that no arbitration agreement “shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” The fact that this portion of the EFAA uses the term “case” and not “claim” should not be taken lightly; it is evidence that Congress intended to keep at least some other claims out of the grasp of arbitration. Because Congress did not explicitly define what “case” means, it created confusion that only a few courts have even attempted to parse out
More Than a Coin Flip: Bielski v. Coinbase and the Presumption in Favor of Arbitration
Get PDFArbitration agreements are frequently found in consumer contracts, diverting disputes away from litigation and toward arbitration, in which a third party resolves the dispute and renders a binding award. Parties often challenge the enforceability of arbitration agreements and seek to bring the issue to court, where they believe litigation of a dispute would be advantageous under the circumstances. This can be viewed as a game, with arbitration on one side and litigation on the other. It seems obvious that, as with most games, both teams would begin on equal footing, each with the same chance of winning—think of the jump ball in basketball or the coin flip in football. However, challenges to arbitration agreements do not begin on a level playing field. Instead, arbitration starts with the ball— and that’s not a bad thing