Past Issues

Elizabeth Ann Kronk Warner. Justice Brandeis first famously wrote of a system of federalism where states would serve as laboratories of regulatory experimentation, allowing other states and the federal government to benefit from successful regulatory experiments. Although likely beyond the contemplation of Brandeis, tribes, as separate sovereigns existing within the United States, are well-placed to experiment in new and interesting ways. In particular, given their unique connection to the land and the intensified threat of some modern environmental challenges, many tribes are already engaged in regulatory innovation related to environmental law. This is the first scholarly work to fully develop the idea of tribes as “laboratories” for examining environmental law, demonstrating that tribal experimentation can generate the same benefits typically ascribed to the system of federalism. This is also the…

Joanna M. Shepherd & Judd E. Stone II. Despite a rapid increase in economic significance and substantial increase in international use, third-party litigation financing remains poorly understood. No academic consensus takes account of the multiple economic conundrums that third-party litigation financing arises to solve, nor do legal scholars adequately consider obvious public and private substitutes for litigation financing that society rightfully recognizes as innocuous or outright beneficial. In this Article, we explore the economic challenges driving both business plaintiffs and sophisticated law firms to seek external litigation financing. We examine closely the key elements of the litigation financing arrangement itself, focusing on eligible cases and clients, devices financiers employ to ensure repayment without meaningful control over the litigation, and theorize conditions under which third-party litigation financing will be attractive to companies…

Donald P. Harris. Imagine this scenario. Mary Saint Francis was a longtime librarian of limited means. She had always dreamed of becoming a successful writer and living the way “the other half” lived, retiring from the library and traveling around the world. At 56, and after a number of unsuccessful and little known short stories, she was beginning to believe this would never happen. In March 2013, things changed. Mary wrote a saucy and stimulating novel about being a librarian: The Real Life of a Librarian. Surprisingly, Real Life became an instant success. Over the next year, Mary’s novel achieved critical acclaim, was the subject of Oprah’s Book of the Month, was the topic of numerous talk shows, and was discussed on various news and radio spots. Mary also traveled…

D. Alex Winkelman, David V. Yokum, Lisette C. Cole, Shelby C. Thompson & Christopher T. Robertson. Trials are often imperfect. When inadmissible evidence is introduced or the jury is incorrectly instructed, judges must determine whether the error was prejudicial or merely harmless. In making that assessment, judges resort to speculation about the counterfactual question of whether the error changed the outcome, compared to the decision of a properly informed and instructed jury. These decisions are likely colored by confirmation and status quo biases, along with “mental contamination” of the error itself. Even when appellate judges perform these analyses accurately, their decisions appear conclusory. Scholars and judges have roundly criticized this doctrine, but no solution has emerged. We developed and piloted an unbiased and transparent method for making harmless error determinations, using randomized experiments with simulated jurors. To pilot this method on…

Brian M. McCall. Warren Buffett once referred to derivatives as “financial weapons of mass destruction.” Academics, analysts, politicians and regulators have argued that one form of derivative contract was responsible, at least in significant part, for the mass destruction of the financial system in 2008: credit default swaps (“CDSs”). Eric Dinallo, the New York Superintendent of Insurance, compared the 2008 Financial Crisis to the 1907 Panic because in his opinion both were caused by unregulated betting on markets by people who did not own assets in those markets. He explained: “Many compare this financial crisis to the stock market crash of 1929, but it is closer to the credit freeze and bank panic of 1907 . . . . What has been forgotten is one major cause of the crisis—unregulated speculation on the prices of securities by people who did not…

Perry Thomas Klauber. The federal courts are divided concerning the interpretation of the general, federal removal statute 28 U.S.C. § 1441(a). The statute states that a defendant can remove any civil action from state court to a federal district court so long as the federal court has original jurisdiction. Some courts use a functional test to interpret the meaning of “state court,” while other courts use the plain meaning test and exclude state administrative courts from the “state court” definition. Thus, in some jurisdictions certain cases can be removed from a state administrative court to a federal district court if the federal court applies the functional test and finds that the administrative court functions as a “court” that provides judicial, binding, enforceable decisions. In contrast, other jurisdictions require cases to continue in administrative court until adjudication is complete, before there is…

Trina Jones. "Janet’s perfect for that job . . . [b]ecause for that job, you have to have no life. Janet has no family. Perfect. She can devote, literally, 19, 20 hours a day to it." Former Pennsylvania Governor Ed Rendell made the above statement following President Obama’s nomination of Janet Napolitano to head the Department of Homeland Security. Rendell’s observations about Napolitano, who is unmarried and childless, reflect concerns being raised in the United States by some single workers without children. These workers, referred to herein as SWOCs, maintain that their employers assume they have no lives and therefore can and should devote all of their waking hours to work, meaning employers expect single workers without children to travel with little notice, to work evening hours, and to be available on weekends and holidays. SWOCs contend that these expectations are…

Kit Johnson. Legal scholarship lacks a comprehensive account of the theoretical underpinnings of immigration law. This Article attempts to fill that void by identifying four theories to explain various aspects of immigration law and the arguments advanced in support of such law: (1) individual rights theory, which turns on the prospective migrant’s right of entry into the United States, (2) domestic interest theory, which considers whether and to what degree allowing migrants into the United States will benefit the country as a whole, (3) national values theory, which focuses on whether the admission of migrants promotes the fundamental values of the country, and (4) global welfare theory, which considers how immigration decisions at the domestic level affect the political, social, and economic makeup of the global community. This Article argues that the universe of theoretical arguments must be employed to evaluate immigration policy proposals. This conceptual…

Oren Gross. Many regard the Constitution as part of the holy trinity of American secular religion. A venerated document, it is often referred to in religious terms. A “kind of Ark of the Covenant of the New Israel that is America,” this “most wonderful instrument ever drawn by the hand of man,” was “divinely inspired,” and ought to be safeguarded with a “holy zeal.” A President and a Chief Justice exhorted the teaching of the principles of the Constitution in terms that in the Jewish prayer book referred to divine commandments: “[T]each them to your children, speak of them when sitting in your home, speak of them when walking by the way, when lying down and when rising up, write them upon the doorplate of your home and upon your gates.” The Constitution is the most recent chapter in a…

Derek Funk. The legal definition of marriage is currently a prominent issue in political debates and courtrooms across the nation.  Up until the late 1990s, state and federal law universally defined marriage as between a man and a woman.  The push for recognition of same-sex marriages began to gain momentum in 2000, when Vermont became the first state in the U.S. to legalize same-sex civil unions and registered partnerships.  In the next few years, several other states across the nation changed their definitions of marriage to include same-sex couples.  Nevertheless, the federal definition of marriage under the Defense of Marriage Act (“DOMA”), enacted in 1996, continued to define marriage as meaning only a legal union between a man and a woman as husband and wife. As more and more states changed their definitions of marriage, same-sex marriage advocates criticized the federal…