Discrimination by Design?

2019, Current Issue, Print, Volume 51 (2019) Issue 1 (Spring)
Naomi Cahn, June Carbone & Nancy Levit. We increasingly live our lives in a digital world, buying textbooks, groceries, and travel on internet platforms, offering our own services as drivers or organizers or lawyers in the gig economy, and looking for professional connections and dating options on the Web. Computer programs oversee the transactions. They link parties in accordance with their preferences—whether for the cheapest e-reader or the right intimate partner. Full Article
Read More

Hey, Big Spender: Ethical Guidelines for Dispute Resolution Professionals when Parties Are Backed by Third-Party Funders

2019, Current Issue, Print, Volume 51 (2019) Issue 1 (Spring)
Elayne E. Greenberg. This first-of-its-kind paper introduces ethical guidelines and suggested practices for dispute resolution providers and neutrals when third-party funders provide financial backing for parties in U.S. domestic arbitrations and mediations. Sophisticated third-party funders have realized that litigation and dispute resolution are fast-growing, unregulated investment opportunities. Seizing these opportunities, third-party funders are now making billions of dollars in profits through their strategic investments in domestic and global litigation and dispute resolution with few ethical rules or regulations to curtail their investment behavior.3 Preferring to be secretive about the terms of their funding contracts and invisible in their work, third- party funders are flourishing, in large part, by operating below the regulatory radar.4 The funders’ behavior has been allowed to proceed invisible and unchecked because courts and dispute resolution providers…
Read More

Presidential Pardon Power: Are There Limits and, if Not, Should There Be?

2019, Current Issue, Print, Volume 51 (2019) Issue 1 (Spring)
Paul F. Eckstein, Mikaela Colby. Among the more specific and significant powers in the United States Constitution vested in the President is the power to pardon found in Article II, Section 2, Clause 1, which provides in relevant part that the President: shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. Although the Founders considered several limitations on the pardon power, such as requiring full consent of the Senate and prohibiting pardons in cases of treason, ultimately they adopted only one: prohibiting the President from issuing pardons in cases of impeachment. Full Article
Read More

Rewriting Arizona’s Revenge Porn Statute to Fill the Gap in Sex Crime Punishment

2019, Current Issue, Print, Volume 51 (2019) Issue 1 (Spring)
Hayden Hilliard. More and more often, women are stumbling across their own nude images on various websites, posted without their permission, and without their knowledge. Many women have come forward, sharing their personal stories, finding images taken several years ago, posted by past lovers who were long forgotten. One of the primary web services offering this lewd content is Anonymous Image Board, or Anon-IB. Websites like Anon-IB not only allow the public to post nude images without the depicted person’s consent, but also facilitate solicitation for images of certain people, known as “wins.” Anon-IB recently attracted widespread attention due to the discovery of specialized internet threads targeting and displaying nude images of female military members, taken by their male peers and posted online. Scandals like these serve as a public…
Read More

Put Up or Shut Up: L. Xia v. Tillerson and the Government’s End Run Around Judicial Denaturalization

2019, Current Issue, Print, Volume 51 (2019) Issue 1 (Spring)
Kathryn Boughton. The facts read like a movie plot: a broker with multiple aliases, a corrupt government employee, and a man with a stack of cash meet outside of Washington, D.C.1 They arrange how to funnel hundreds of thousands of dollars to purchase forged documents.2 But this was the not the opening scene of a political conspiracy blockbuster. It was the height of Robert Schofield’s multi-year scheme to produce fraudulent immigration and citizenship paperwork for hundreds of individuals. Full Article
Read More

Requiem for a Paradox: The Dubious Rise and Inevitable Fall of Hipster Antitrust

2019, Current Issue, Print, Volume 51 (2019) Issue 1 (Spring)
Joshua D. Wright, Elyse Dorsey, Jonathan Klick, Jan M. Rybnicek. For antitrust practitioners, scholars, and economists—those who work with antitrust in agencies, courts, or law firms—the development of the antitrust laws over the past half century has been a remarkable and positive development for the American economy and consumers. Over the last fifty years, antitrust has developed into a coherent, principled, and workable body of law that contributes positively not only to American competitiveness and societal well-being, but also helps to export the culture of market competition around the world. Although a healthy diversity of views governs the intellectual landscape in antitrust, and there is no shortage of ideas on how to improve its performance around the margins and within the paradigm of existing doctrine, there is consensus that modern…
Read More

Book Review: A Space Traveler’s Guide to Business Litigation

2019, Current Issue, Print, Volume 51 (2019) Issue 1 (Spring)
Reviewed by Jeffrey Willis. Is it possible to create a work that could inform virtually every aspect of any commercial case? The goal of the Fourth Edition of this treatise is exactly that. As explained by Editor-in-Chief Robert L. Haig: [T]his treatise is a step-by-step practice guide that covers every aspect of a commercial case, from the investigation and assessment that take place at the inception, through pleadings, discovery, motions, trial, appeal, and enforcement of judgment. Great emphasis is placed on strategic considerations specific to commercial cases. Full Article
Read More

Creative Constitutional Interpretation as Justification for Rule by the Supreme Court

2019, Current Issue, Print, Volume 51 (2019) Issue 1 (Spring)
Lino A. Graglia. Contemporary constitutional scholarship presents the puzzling phenomenon of scholars endlessly writing and debating methods of constitutional interpretation as the central issue to be decided despite the apparent fact that the Constitution plays very little role in the Supreme Court’s so-called constitutional decisions. Constitutional law is the product of judicial review, the extraordinary power, suspect in a democracy, of unelected judges to overturn social policy choices made by elected legislators and other officials of government ostensibly on the ground that they are prohibited by the Constitution. The reality is that our very old and very brief Constitution, even as amended, does not and cannot provide answers to contemporary controversial social problems. It precludes very few policy choices. The Supreme Court’s rulings of unconstitutionality are, therefore, necessarily almost always…
Read More

Legal Knowledge, Belief, and Aspiration

2019, Current Issue, Print, Volume 51 (2019) Issue 1 (Spring)
Arden Rowell. Do people know the law? On the one hand, it is a brocard, sometimes traced to Aristotle, that nemo censetur legem ignorare: “nobody is thought to be ignorant of the law.” The same intuition underlies the classic maxim that ignorance of the law is no excuse. The intuition behind these principles has both doctrinal and theoretical heft: it underlies important common law doctrines, including those of excuse and mistake, and informs theoretical accounts of law that presume that law guides behavior. Full Article
Read More

Assumption of Flood Risk

2019, Current Issue, Print, Volume 51 (2019) Issue 1 (Spring)
Alexander B. Lemann. After spending four days dumping an unprecedented quantity of water on the Houston area, Hurricane Harvey finally slid off the coast to the south, leaving the city to begin the gradual process of wringing itself out and evaluating the damage. Major storms are often treated as showing us something we should have known all along. For many, Hurricane Harvey’s lesson was that the era of climate change—the Anthropocene—is well under way. By the time Harvey reached Houston it was no longer a particularly powerful storm, by the traditional measure of sustained wind speed. But, thanks to the fact that warmer air can hold more moisture, the quantity of water it dropped was truly immense. Multiple rainfall gauges in Houston recorded quantities of water that exceeded previous records…
Read More