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Averting Plausibility Pleading’s Threats to Novel FHA Legal Claims
Get PDFPlausibility pleading requirements articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal continue to confound even well-intentioned courts. But for courts inclined to avoid grappling with modern applications of existing law, they provide ideal camouflage: a way of relying on procedural justifications to ostensibly side-step substantive law decisions—while in effect creating de facto law that robs litigants of their day in court. These negative, unintended consequences of Twombly and Iqbal are vividly illustrated in recent federal litigation brought under the Fair Housing Act involving claims of landlord liability for tenant-on-tenant harassment.This Article demonstrates how plausibility pleading, when improperly applied in cases involving unsettled law, creates substantive law sub silentio with powerful consequences. These decisions, couched as procedural rulings, in fact impose substantive limits on the rights of both the parties and future litigants, insulate courts from potentially critical appellate review, and hinder the development of legal protections. After all, absent explicit splits in authority, the already small likelihood of attracting Supreme Court or congressional attention becomes infinitesimal. In response, this Article recommends a framework for analyzing novel legal claims that promotes the development of a more coherent body of substantive law while limiting judicial time spent on objectively meritless claims. This approach is consistent with the policies underlying the Supreme Court’s adoption of plausibility pleading and, in the specific example we address, with Congress’s broad remedial goals in enacting the Fair Housing Act
Punishment menus and their deterrent effects: an exploratory analysis
No full textConventional wisdom suggests that allowing offenders to choose alternative punishments to a previously existing punishment cannot enhance deterrence, because offenders can simply select the least costly option available. After reviewing the deterrence research literature, we argue that punishment menus may encourage individuals to focus more on how they construe the wrongdoing and view the ethical gravity of their actions. We experimentally test whether people may perceive punishment menus as more deterrent than stand-alone sanctions available within the same menu. Our results suggest that this is possible, and that changes in people’s perceptions are often mediated by the mindset (e.g., calculative, ethical) they adopt to evaluate punishment schemes as well as their impressions of the seriousness of the illegal act
Deploying Blockchain Technology in the Copyright Office
No full textFrom cryptocurrencies to non-fungible tokens, blockchain technology has been widely discussed among policymakers, commentators and mainstream media. Although the discussion of cryptoassets has slowed down in the past three years, blockchain technology remains important and has the potential to revolutionize the operation of the intellectual property system—the copyright system, in particular.This chapter explores the possibility for copyright offices to harness blockchain technology to improve their operation and to advance the future development of the copyright system at both the domestic and international levels. It begins by identifying the benefits provided by blockchain technology. It further discusses the challenges posed by greater deployment of this technology in copyright offices. This chapter then identifies the different policy or technological choices confronting these offices. It concludes by providing suggestions on how to advance development and discussion of this emerging technology
Understanding Secured Transactions
No full textThe sixth edition of this clear and concise Understanding treatise thoroughly incorporates and explains the 2022 Amendments to the Uniform Commercial Code. These amendments created a new Article 12 governing the holding and transfer of digital assets such as virtual currencies and non-fungible tokens.
Significant portions of Article 9, the main subject of the book, were amended to facilitate the use of these assets as collateral for loans and other obligations. In describing these amendments, this edition explains inherently complex topics related to emerging technologies clearly, so that those without a background in technology may readily understand them.
The new edition also expands its coverage of existing concepts, providing numerous examples to help the reader apply legal principles to many different types of commercial finance transactions. The chapter on the effects of bankruptcy on secured transactions has been thoroughly revised and expanded and provides the most comprehensive explanation of that topic available anywhere
Pizza Hut L.L.C. v. Pandya: Exploring the Validity of Pre-Dispute Jury Waivers
Get PDFThis Note analyzes a 2023 Fifth Circuit opinion concerning whether a contractual pre-dispute jury waiver is enforceable utilizing the knowing and voluntary factors and when challenged under general fraud allegations. The Fifth Circuit incorrectly weighed two of the voluntary and knowing factors—conspicuousness and unequal bargaining power—to be in favor of enforcing the jury waiver when the facts of the case and prior case law prove otherwise. The Fifth Circuit should have first applied a historical analysis in analyzing a constitutional right, but the court was reasonable in applying the arbitration rule to jury waiver provisions because waiving a jury right compromises fewer constitutional rights than an arbitration clause
Administrative Arrest Warrants: Armed Encounters Outside the Judicial Process
Get PDFThis Article considers three related questions. First, is a person “seized” under the Fourth Amendment when law enforcement restricts a person’s movements in their home and limits their ability to leave or go about their business? Second, does the answer to this seizure inquiry turn on the person’s citizenship status? And third, how do lawyers ensure that courts discard bad law? This last question is not a qualitative assessment— with good and bad law being tied to one’s legal ideology. Rather, certain legal holdings, dating back over half a century, have been whittled away if not entirely eroded. When this happens, how do lawyers ensure that judges do not rely on outdated law that has not been directly overruled? Worse still, how do lawyers ensure that judges avoid dicta from such cases when the entire case should be jettisoned for being at odds with current legal doctrine?
This Article proceeds in four parts. Part I restates the opening hypothetical by explaining how ICE officers are legally permitted to issue, without judicial oversight, administrative arrest warrants. This statutory authority should, nonetheless, be evaluated using Fourth Amendment doctrine that limits exceptions to judicial warrants when law enforcement acts in, or just outside, the home. Part II introduces Abel v. United States to explain how arrests for alleged immigration violations could occur prior to Katz. Part III provides an overview of how modern Fourth Amendment doctrine has eroded Abel and justifies its outright reversal. Part IV concludes by asserting that all law enforcement officers, including ICE, should be bound by traditional Fourth Amendment doctrine when conducting seizures in, or just outside, the home. The Fourth Amendment protects all people, not just citizens. And its text should be given the full effect the Framers drafted and intended. For this reason, the Supreme Court should take an opportunity to explicitly overrule Abel
Capital Trifurcation
Get PDFThe death penalty is disappearing in the United States. Annual executions remain under 25 per year, and new capital sentences per year have not exceeded 75 in over a decade.
Over the past two decades, however, a new kind of death sentence has emerged—life without parole (“LWOP”). In practice, LWOP and death sentences are functionally equivalent, as most death row inmates die of natural causes in prison, not execution. For both economic and moral reasons, most states are not actively executing prisoners.
Therefore, capital sentencing proceedings that focus on life versus death neglect the more consequential question—life without parole versus life with parole. That decision shapes whether one has a chance at life after prison or will die in prison, two very different outcomes.
But the capital sentencing process obscures this reality at best, and at worst does not even give the jury a choice. It makes little sense to focus the jury on a hypothetical question of life and death while ignoring the real dilemma. To that end, this Article argues for a rethinking of the sentencing procedure in capital cases.
First, the Article explains why mandatory LWOP sentences violate the Eighth Amendment, and why even if they don’t, states should abolish them. Then, the Article advances its central proposal—the trifurcation of capital trials. In short, states should split the sentencing phase of capital cases into two parts. In the first, the jury decides between life and death. If the jury chooses life, a second sentencing phase ensues, with the jury choosing between life with parole and LWOP.
Part II of the Article describes the LWOP problem of capital sentencing— that the procedures either (1) obscure the choice between life with parole and LWOP or (2) remove that decision from the jury’s discretion altogether. Part III addresses the central barrier to capital trifurcation—mandatory LWOP sentences. To that end, it argues for the elimination of mandatory LWOP sentences, either by constitutional or statutory means. Finally, in Part IV, the Article proposes capital trifurcation, explaining the procedural nuances of and the theoretical justifications for this approach
Doe v. Geller and Personal Jurisdiction Over Internet Activities
Get PDFPersonal jurisdiction is fundamental in American jurisprudence since it gives a court the power to bind parties with its ruling. Despite this subject’s mundane veneer, the concept is so complicated that it has inspired thousands of academic articles. A brief search on Westlaw under Law Reviews & Journals for the term “personal jurisdiction” yields nearly 10,000 results, while Lexis+ yields 14,662 for the same term. Even so, as the nature of human interaction has changed from in person, to in writing, to over the phone, and, most recently, to over the internet, the doctrine of personal jurisdiction has accommodated. Recent cases involving internet disputes have proven especially complicated, and, as such, federal courts have done their best to adapt personal jurisdiction to make it fair and effective in these novel circumstances. The following Note begins by reviewing the history of personal jurisdiction. Next, this Note covers the federal courts’ ongoing attempt to address the complexities of personal jurisdiction in the context of the internet in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. (“Zippo”). Then, the Note discusses Zippo’s weaknesses and compares them with the analysis of Doe v. Geller. Finally, this Note proposes that courts return to the classical personal jurisdictional analysis for cases involving internet actions
Introduction to Intellectual Property, Innovation and Economic Inequality
Get PDFThis chapter provides an introduction to Intellectual Property, Innovation and Economic Inequality. It begins by discussing the problem of economic inequality, including the scale of that problem, types of economic inequality, and extant research on such inequality. The chapter then outlines the structure of this volume, which is divided into three parts: (1) theoretical, empirical, and policy issues; (2) intellectual property and national inequality; and (3) intellectual property and global inequality
United States Constitutional Law
No full textUnited States Constitutional Law guides law students, political science students, and engaged citizens through the complexities of U.S. Supreme Court doctrine—and its relationship to constitutional politics—in key areas ranging from federalism and presidential power to equal protection and substantive due process. Rather than approach constitutional law as a static structure or imagine the Supreme Court as acting in isolation from society, the book elaborates and clarifies key constitutional doctrines while also drawing on scholarship in law and political science that relates the doctrines to large social changes such as industrialization, social movements such as civil rights and second-wave feminism, and institutional tensions between governmental actors. Combining legal analysis with historical narrative and sensitivity to political context, the book provides deeper understanding of how constitutional law arises, functions, and changes in a complex, often-divided society. This second edition documents the profound changes in judge-made constitutional law that have occurred in the five years since the first edition was published