Faculty Scholarship

The Business of Intimacy: Bridging the Private-Private Distinction

Martha M. Ertman — Tue, 18 Jun 2013 12:01:35 PDT

Book Review: Legal Tenderness

Martha M. Ertman — Tue, 18 Jun 2013 11:17:30 PDT

The Elasticity of Contract

Martha M. Ertman — Tue, 18 Jun 2013 11:11:25 PDT

Love and Work: A Response to Vicki Schultz's Life's Work

Martha M. Ertman — Tue, 18 Jun 2013 10:43:49 PDT

Contract Sports

Martha M. Ertman — Tue, 18 Jun 2013 10:40:22 PDT

What's Wrong with a Parenthood Market? A New and Improved Theory of Commodification

Martha M. Ertman — Tue, 18 Jun 2013 10:32:03 PDT

Accepting the Court's Invitation

Martha M. Ertman — Tue, 18 Jun 2013 10:19:28 PDT

Twombly is the Logical Extension of the Mathews v. Eldridge Test to Discovery

Andrew Blair-Stanek — Thu, 30 May 2013 05:33:52 PDT

The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both practitioners and scholars, casting aside the well-settled rule for evaluating motions to dismiss in favor of an amorphous “plausibility” standard. This Article argues that Twombly was not revolutionary but simply part of the Court’s ever-expanding application of the familiar three-factor Mathews v. Eldridge test. Misused discovery can deprive litigants of property and liberty interests, and in some cases Mathews requires the safeguard of dismissing the complaint. This Article’s insight explains Twombly’s origins and structure, while also suggesting a source for lower courts to draw on in developing post-Twombly jurisprudence.

Profits as Commercial Success

Andrew Blair-Stanek — Thu, 30 May 2013 05:25:59 PDT

Courts often use the extent of a patented invention’s commercial success as crucial nontechnical proof of the patent’s validity. Relying on misguided economic reasoning, most courts use revenue as the primary yardstick for commercial success. This Note argues that courts instead should use profits as the proper measure of an invention’s commercial success. Current jurisprudence’s use of revenue reflects the flawed premise that firms maximize revenues rather than maximizing profits. As a result, courts will often find commercial success when the financial data suggest otherwise and vice versa. This Note finds the accounting and economic issues involved to be insubstantial, while requiring a threshold profit showing could materially further judicial economy.

Using Insurance Law and Policy to Interpret the Tax Code's Loss and Medical Expense Provisions

Andrew Blair-Stanek — Thu, 30 May 2013 05:18:21 PDT

Prior scholarship recognized that I.R.C. § 165 (allowing a deduction for casualty losses) and I.R.C. § 165 (authorizing a deduction for medical expenses) are a free partial insurance scheme, providing tax benefits that partially offset the losses or medical expenses. Courts have long wrestled with determining eligibility for these deductions. This Note proposes that courts should look to the well-developed body of insurance case law to interpret eligibility for these deductions. It further proposed that the government, which effectively acts as an insurer via these deductions, could raise additional revenue using subrogation, which traditional insurers have long used to partially recoup payouts.

Increased Market Power as a New Secondary Consideration in Patent Law

Andrew Blair-Stanek — Thu, 30 May 2013 05:14:30 PDT

Courts have developed nine non-technical secondary considerations to help juries and judges in patent litigation decide whether a patent meets the crucial statutory requirement of being non-obvious. This article proposes a new, tenth secondary consideration: increased market power. If a patent measurably increases its holders’ market power, that should weigh in favor of finding the patent non-obvious. This new secondary consideration incorporates the predictive benefits of several existing secondary considerations, while increasing the accuracy and availability of evidence for fact-finders to determine whether a patent is non-obvious.

The New Rules for Law Schools

Barbara S. Gontrum — Wed, 29 May 2013 04:58:28 PDT

Touched by Greatness

Shruti Rana — Thu, 23 May 2013 05:45:36 PDT

One Small Step for Legal Writing, One Giant Leap for Legal Education: Making the Case for More Writing Opportunities in the "Practice-Ready" Law School Curriculum

Sherri Lee Keene — Wed, 22 May 2013 09:48:28 PDT

Legal writing is more than an isolated practical skill or a law school course; it is a valuable tool for broadening and deepening law students’ and new attorneys’ knowledge and understanding of the law. If experienced legal professionals, both professors and practitioners alike, take a hard look back at their careers, many will no doubt remember how their work on significant legal writing projects advanced their own knowledge of the law and enhanced their professional competence. Legal writing practice helps the writer to gain expertise in a number of ways: first, the act of writing itself promotes learning; second, close work on legal writing assignments provides a unique opportunity for less-experienced attorneys to engage in meaningful dialogue with more-experienced attorneys, with the assignment acting as a catalyst for the transfer of knowledge of law and legal practice from expert to novice; and lastly, meaningful feedback on legal writing provides an opportunity for more-experienced attorneys to evaluate and critique a less-experienced attorney’s thinking, including her analysis of substantive law and legal concepts, as well as her professional decision-making. Indeed, legal writing projects afford legal novices an invaluable opportunity to apply their knowledge of the law, engage legal experts through work on discrete matters, and receive useful individual guidance on the substance of their work and their judgment on practice matters.

While legal writing classes are well-established as fundamental courses in the modern law school curriculum, particularly during the first year, the many benefits of legal writing have not been fully realized in law school teaching. Given recent demands for law schools to produce students who are better prepared to meet the demands of legal practice, the time has come for law schools to take a fresh look at the role of writing in legal education. This Article articulates a plan for law schools going forward that will help bridge the gap that currently exists between legal theory and practice in legal education. The author argues that to better prepare law students for practice, law school teaching must consistently go beyond the acquisition of knowledge of the law, and more frequently include the application of this knowledge to a client’s legal problem. As legal writing provides a particularly useful opportunity for students to engage in the meaningful study of law and to apply their knowledge of law in a practice context, this article brings legal writing into the current “practice-ready” debate. This Article urges law schools to rethink the role that legal writing can play in preparing students for the challenges of today’s legal practice, and increase the quantity and quality of legal writing practice opportunities in their curriculums.

The Unfinished Journey - Education, Equality and Martin Luther King, Jr., Revisited

Taunya Lovell Banks — Fri, 17 May 2013 07:23:41 PDT

An educated society is important to the survival of a democracy, a sentiment echoed by the Supreme Court in Brown v. Board of Education. Today most commentators concede that the implementation of Brown was a failure and that over the years there has been retrenchment. Although America’s schools are no longer racially segregated by law, a substantial percentage of school children are consigned to racially isolated schools. While commentators continue to argue for racially integrated schools, this article argues that racial integration alone is insufficient--schools must receive adequate financial resources and be even more diverse socio-economically to adequately prepare America’s youth for the diverse world in which they will live and work. Legal rulings alone are insufficient to achieve this objective; rather a combination of approaches, and more importantly a change in societal attitudes about public education are needed.

The Politics of Religious Establishment: Recognition of Muslim Marriages in South Africa

Peter G. Danchin — Fri, 17 May 2013 05:19:00 PDT

This paper explores the normative dissonances and antinomies generated by the politics around religious establishment by examining post-apartheid law reform efforts in South Africa to recognize Muslim marriages. Since the late 1990s, the South African Law Reform Commission has initiated various projects to recognize the claims of and redress past discrimination against different religious communities, including tribal groups living under customary law and religious minorities with their own family and personal status laws. It is striking how the norms and assumptions underpinning this debate differ from engagements involving the claims of religious communities in Europe and North America where broadly Protestant genealogies of the right to freedom of conscience have become naturalized. The value-pluralist nature of the post-apartheid constitutional order is transforming the politics between religious communities and opening new spaces for legal and social reform. We are thus seeing new and intense debates on questions of legal pluralism and the tensions between individual and group rights and identities. This dynamic provides important insights into the meaning and scope of religious freedom as a human right. The paper argues that these law reform efforts have exposed critical ambivalences and normative resistance to the two great transformations which together define the modern politics of religious freedom: the first relating to the emergence of a “secular” public realm imagined to be independent of and in some new relation to “religion,” now viewed as solely a matter for private life (the so-called public/private divide); and the second relating to the redefinition of religion itself as conscience or belief in an age of secular equality where the unstable convergence between conscience and autonomy has gradually reversed in the secular imaginary such that religious liberty is today viewed as autonomy.

Hosanna-Tabor in the Religious Freedom Panopticon

Peter G. Danchin — Tue, 07 May 2013 08:39:34 PDT

The Tort Foundation of Duty of Care and Business Judgment

Robert J. Rhee — Tue, 07 May 2013 05:24:30 PDT

This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says that the tort analogy fails. This dismissal of tort prinicples is wrong. Although shareholder derivative suits and ordinary tort cases properly yield systemically antipodal outcomes, they are bound by a common analytical framework. The principles of board liability are rooted in tort doctrines governing duty, customs, and pure economic loss. Properly applied, they produce a duty “to care” (vis-à-vis duty of care), based on a good faith undertaking of care, but upon such undertaking no liability for negligently inflicted economic loss – the exact result achieved by the fiduciary duty of care and the business judgment rule. A sound tort analysis not only theorizes the enigmatic relationship between the duty of care and the business judgment rule, but it also explains Delaware’s puzzling procedural-substantive divide. Fiduciary duty in corporation law rests on a tort foundation. Lastly, the thesis of this Article has a broader implication. The contractarian view of corporation law seeks to relegate the role of courts to passive custodians of the corporate contractual terms provided by the legislature and the corporation’s constituents. However, this view is constrained by a tort framework wherein courts do and should play a robust, albeit reserved, role in regulating important aspects of corporate governance through the continued common law process of doctrinal development of the idea of a wrong.

Religious Freedom in the Jurisprudence of the Egyptian and European Court of Human Rights

Saba Mahmood et al. — Fri, 03 May 2013 04:58:57 PDT

The Tangled Law and Politics of Religious Freedom

Peter G. Danchin — Thu, 02 May 2013 08:20:26 PDT

This symposium Essay comments on four interrelated themes regarding the right to religious liberty in international law that emerge from Seval Yildirim's article Global Tangles: Laws, Headcoverings and Religious Identity, 10 SANTA CLARA J. INT’L L. 52 (2012). The first is the paradoxical language of freedom in struggles over attempts to proscribe the wearing of the hijab, especially regarding the principles of gender equality and women’s rights. The second is the apparent comfort that governance feminism exhibits with the state imposition of new (presumably woman liberationist) norms and how institutions such as courts may act not only as independent protectors of rights but also as instruments of a particular managerial culture of rights as têchne. The third theme follows directly from the second: the normative power of liberal rights discourse, especially in relation to the claims of religious minorities in Western European nation-states and the danger of rights managerialism in instrumentalizing certain substantive conceptions of both the scope of religious freedom and the nature of the public sphere through state or, in the case of the ECHR itself, supranational power. And finally, the need critically to interrogate not just the claims of Muslim communities and individuals to religious freedom but also the normative structure and underlying assumptions of international human rights norms themselves. The Essay concludes by suggesting that it is only by gaining a better appreciation of the plural normativity of the right and the contingent history of its emergence that space may conceivably be found to re-imagine the current limits and contours of contemporary international discourse on religious freedom.