Faculty Scholarship

Recent Scholarship January to August 2014

Below is a partial list of articles and other works written or published by members of the faculty. See previous articles here.

To download an individual article, you can click on the PDF link next to the article. To be able to download all past, present, and future articles written by members of the faculty, you can create a free account on the Social Science Research Network (SSRN) by clicking on this link: Create a Free Account on SSRN. Then, you can click on the SSRN hyperlink next to any article to download it.

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Derek W. Black Derek W. Black
Professor of Law
Teaches: Constitutional Law; Evidence; Civil Rights Seminar; Education Law and Policy

Education by Waiver? (August 22, 2014). Vanderbilt Law Review, Forthcoming. [SSRN]

Abstract: In the fall of 2012, the United States Secretary of Education told states he would use his statutory power to waive violations of the No Child Left Behind Act (NCLB), but only on the condition that they adopt his new education policies — policies that had already failed in Congress. Most states had no real choice but to agree because eighty percent of their schools were faced with statutory sanctions and fund termination. As a result, the Secretary was able to federalize two core aspects of public education over the next year. For the first time, school curriculum and the terms of teacher evaluation and retention came under the control of the federal government.

This Article demonstrates that this particular exercise of conditional waiver power was both unconstitutional and beyond the scope of the Secretary's statutory authority. First, NCLB contained no notice that states might face waiver conditions when they first agreed to participate in NCLB, much less notice of the substance of those conditions. Spending clause doctrine requires both. Second, states' inability to say no to these conditions raises serious questions of unconstitutional coercion. Third, the Secretary lacked explicit statutory authority to impose these conditions. At best, NCLB implies authority to condition waivers, but implied conditions would be limited to the scope of NCLB itself. The waiver conditions the Secretary imposed go well beyond the scope of NCLB. Fourth, to treat these particular waiver conditions as falling within the scope of the Secretary's authority would be to extend the Secretary the equivalent of law-making power, which separation of powers doctrines prohibit. The power to unilaterally impose open-ended policy through waiver conditions would be remarkable not just for its transformation of key aspects of education, but for the entire federal administrative state. It would open the door to the spread of a more expansive administrative power than ever seen before.

Elizabeth Chambliss Elizabeth Chambliss
Professor of Law and Director, Nelson Mullins Riley & Scarborough Center on Professionalism
Teaches: Problems in Professional Responsibility

Law School Training for Licensed 'Legal Technicians'? Implications for the Consumer Market (July 14, 2014). South Carolina Law Review, Vol. 65, No. 3, 2014; HLS Program on the Legal Profession Research Paper No. 2014-22. [SSRN]

Abstract: In January 2014, the ABA Task Force on the Future of Legal Education released its report calling, among other things, for limited licensing and the expansion of independent paraprofessional training by law schools. In Washington State, all three law schools are collaborating with community college paralegal programs to design and deliver specialized training for "Limited License Legal Technicians" (LLLTs), who will be licensed to deliver limited family law services beginning in 2015. At least three other states, including California and New York — which together contain nearly twenty-six percent of U.S. lawyers and seventy-six law schools — are actively seeking ways to expand nonlawyer training and licensing in high-need areas such as family law, immigration, landlord-tenant, foreclosure, and consumer credit.

The involvement of ABA-approved law schools in the delivery of paraprofessional training could play a key role in the standardization of titles and training for nonlawyer practitioners — that is, the creation of paraprofessional "brands." Such standardization could facilitate the development of a national consumer legal market by promoting quality assessment and professional mobilization, on the supply side, as well as consumer awareness of and demand for new paraprofessional roles.

This Article examines the status of the Washington LLLT initiative and its reception in other states. It argues that, while the Washington model faces strong headwinds in the form of lawyer resistance on the one hand and unregulated competition on the other, law school training for licensed legal technicians is a promising means for institutionalizing a nationally recognized, independent paraprofessional brand, which itself could promote broader consumer access to — and demand for — routine legal services.

Tessa Davis Tessa Davis
Assistant Professor of Law
Teaches: Income Tax

Taxing Modern Families Part I: Mapping the Families of Tax (April 30, 2014). [SSRN]

Abstract: The Tax Code contains not one, but two conceptions of family. Existing scholarship does not address this puzzle but instead takes one of two views on the family — either the family is a tool for avoiding taxes or it is a source of discrimination. Current scholars, motivated by the discrimination concern, reject the relevance of kinship to tax and argue for an increasing focus on the individual. This Article takes a different approach. Utilizing the status/contract distinction familiar to family law scholars, it explains the puzzle of the multiple families in the Code, identifying the two families of the Code and their respective functions. Specifically, this Article shows that when we convey benefits through the Code we understand family as broad and contract-based. On the other hand, when our goal is to root out or head off tax gaming and avoidance, we constrict our notion of family to that of the nuclear, status-based family. Current reform proposals undervalue the importance of family to the prevention of avoidance and evasion, make targeting beneficial provisions more difficult, and inhibit the challenging work of reforming the Code to be both administratively feasible and non-discriminatory. Contrary to the current scholarship, this Article argues we should neither cut kinship from the Code nor rely exclusively upon the contract family. Instead, this Article creates a framework for modernizing the tax treatment of the family that utilizes kinship and both the status and contract families to maintain fairness and administrability, testing that framework on the §32 Earned Income Tax Credit.

Josh Eagle Josh Eagle
Solomon Blatt Professor of Law
Teaches: Property Law, Environmental Law, Natural Resources Law, and Ocean & Coastal Law

The Lost Takings Test (August 1, 2014). [SSRN]

Abstract: In recent decades, the Supreme Court has used oceanfront property as a principal vehicle for the development of Fifth Amendment takings law. Cases alleging that a state government has taken oceanfront land have produced landmark opinions such as Nollan v. California Coastal Commission (1987), Lucas v. South Carolina Coastal Council (1992), and Stop the Beach Renourishment v. Florida Department of Environmental Protection (2010). In each of these cases, the Court has applied its standard, positivist takings analysis: first, identifying the rights of the landowner; then, weighing the extent to which the government's action has limited those rights. This Article argues that the use of this approach in claims involving oceanfront land is inconsistent with both the legal relationship between the parties and a substantial body of common law precedent.

In the nineteenth century, courts — including the Supreme Court — recognized that public-private disputes along the waterfront were unique because the upland owner and the state were both landowners. Moreover, these landowners shared a common boundary and a common interest in services, such as navigability, provided by rivers and the sea. To resolve disputes between states and upland owners, courts developed what I call "the lost takings test." Unlike the positivist approach used by the Court in modern oceanfront cases, the lost test de-emphasizes established rights and puts a premium on the use of public and private land in furtherance of activities that provide value to both parties. Consistent with the common interests of the state and upland owners, and along the lines of private nuisance law, the lost takings test seeks to harmonize uses by focusing on unreasonable interference. After examining the history and rationale of the lost takings test, the Article explains how the test would have produced more fitting results in the Court's recent oceanfront property decisions and why the Court should rediscover the lost takings test for use in future cases.

By providing the first detailed example of a property-specific takings test, the Article raises a host of interesting questions. For example, what are the implications of using unusual forms of property for the development of broadly applicable takings law? Could the post-positive approach embodied in the lost test be appropriate for use in other takings contexts? Are there other alternatives to the Court's traditional focus on state limitation of positive rights?

F. Patrick Hubbard F. Patrick Hubbard
Ronald L. Motley Distinguished Professor of Tort Law
Teaches: Torts, Jurisprudence, and Land Use Planning

'Sophisticated Robots': Balancing Liability, Regulation, and Innovation (March 6, 2014) Florida Law Review, Forthcoming. [SSRN]

Abstract: Our lives are being transformed by large mobile "sophisticated robots" with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely to impose requirements to reduce the number and severity of injuries.

This Article addresses the issue of whether the current liability and regulatory systems provide a fair, efficient method for balancing the concern for physical safety against the need to incentivize the innovation necessary to develop these robots. The Article provides context for analysis by reviewing innovation and robots' increasing size, mobility, autonomy, intelligence, and interconnections in terms of safety, particularly in terms of physical interaction with humans, and by summarizing the current legal framework for addressing personal injuries in terms of doctrine, application, and underlying policies. The Article argues that the legal system's method of addressing physical injury from robotic machines that interact closely with humans has provided an appropriate balance of innovation and liability for personal injury. It critiques claims that the system is flawed and needs fundamental change and concludes that the legal system will continue to foster the innovation of reasonably safe sophisticated robots fairly and efficiently.

Josh Gupta-Kagan Josh Gupta-Kagan
Assistant Professor of Law
Teaches: Juvenile Justice Clinic, Interviewing, Counseling, and Negotiation

Non-Exclusive Adoption and Child WelfareAla. L. Rev__ (forthcoming 2015). [SSRN]

Abstract: This article proposes that child welfare law permit the non-exclusive adoption of foster children who cannot reunify with their parents — that is, adoption by foster parents without severing children's legal relationships with their biological parents. Present law imposes a choice: extended family members or other foster parents may adopt foster children exclusively — and terminate the legal relationship between the child and biological parents — or they may become guardians — which preserves parent-child relationships but denies foster parents the legal title of "parent," even when they are long-term primary caretakers.

Non-exclusive adoption would respect the lived reality of many foster children by legally recognizing all parents in their lives. Biological parents, even those who cannot reunify with their children, retain an important role for many foster children. Foster parents serve as functional parents and often see themselves, and are seen by children, as parents. Moreover, creating an additional legal path for foster children to leave foster care to new permanent families may help many children and families find legal options that minimize unnecessary litigation.

Some courts and legislators have recognized multiple parenthood, especially for children conceived through assisted reproductive technology (ART) and raised by same-sex partners. Yet multiple parenthood faces a core challenge — multiplying the number of legally recognized parents can multiply legal conflicts over children. Non-exclusive adoption in child welfare has a compelling answer. Child welfare law's experience with guardianship demonstrates that the law can effectively allocate parental authority to avoid such conflicts by granting the adoptive parent legal and primary physical custody. This experience also shows one field where multiple parenthood is less radical than it appears at first. While this result raises equality concerns in ART cases, it is appropriate in child welfare cases which, by definition, involve biological parents who have been found unfit and unable to reunify with their children.

In re Sanders and the Resurrection of Stanley v. Illinois, __ Cal. L. Rev. Circuit __ (forthcoming 2014). [SSRN]

Abstract: In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care. Somewhat oddly, Stanley went on to be cited as a leading case regarding the rights of unwed fathers to object to private adoptions favored by mothers — an issue not present in Stanley. Odder still, most states routinely violated Stanley in child welfare cases — the context in which the Stanley rule arose. Most states apply the "one parent doctrine," which holds that finding one parent unfit justifies taking the child into foster care over the other parent's objections — even when that parent (usually the father) has seized his opportunity interest in the child and is thus entitled to the due process protections ordered in Stanley. Cases around the country adopting this doctrine ignored Stanley — many did not cite it at all and others noted it but offered no substantive discussion.

This article argues that this trend may be changing. The Michigan Supreme Court held earlier this year that the one parent doctrine is unconstitutional, explaining at length, and with heavy reliance on Stanley, that the state must prove its case against parents before taking their children. This decision — In re Sanders — hopefully portends a welcome resurrection of Stanley v. Illinois in the foster care context. Such a resurrection would impose a core due process protection in an important body of cases. It would reinforce the policy — also articulated in Stanley — that due process protections are essential to determine whether a child's interest in protection of maltreatment or remaining with her family trump. And it would attack the gender stereotypes and other unhelpful heuristics that too often lead to poor decisions in child welfare cases.

Towards a Public Health Legal Structure for Child Welfare, 92 Neb. L. Rev. 897 (2014). [SSRN]

Abstract: The present American child welfare system infringes upon the fundamental liberty interests of millions of children and parents, is adversarial and punitive, and fails to prevent child maltreatment or protect children adequately from its most severe forms. Many in the field now recognize that a public health model would more effectively support the parent-child relationship and protecting children from maltreatment than the current paradigm. Despite much attention to such an approach, the field has yet to develop a clear vision for how the law could or should support a public health approach or shape the actions of individuals and institutions best suited to lead a public health response. This Article is the first to identify the core legal reforms necessary to shape a public health approach to child welfare.

This Article identifies several legal pillars of the present parental fault paradigm which impede a public health approach, and conceptualizes new laws designed to foster a public health approach. First, mandatory reporting and mandatory investigation laws — requiring professionals to report and child protection agencies to investigate all instances of suspected neglect — inhibit a public health response by imposing a coercive legal regime on an overly broad category of cases, and preventing these professionals to make more effective interventions for millions of children.

Second, state laws' overly broad definition of "abuse" and "neglect" expand the range of situations subject to mandatory reporting and mandatory investigations laws, and permit coercive interventions to become the dominant means of responding to serious child welfare problems.

Third, the law should separate provision of services to children and families from findings of fault by CPS agencies. In the aggregate, families involved with CPS agencies have relatively high levels of needs and would benefit from services provided as soon as possible. Yet CPS agencies tie services to findings of fault, denying services to many families.

Fourth, federal funding law should cease preferred treatment of foster care and permit greater flexibility to provide a full spectrum of interventions.

Fifth, the law should identify institutions, such as schools, hospitals, and doctors, poised to implement a public health approach and develop legal reforms to push those institutions to do so.

Benjamin Means Benjamin Means
Associate Professor of Law
Teaches: Business Corporations, Business Crimes, Liberty Seminar, Mergers & Acquisitions

The Contractual Foundation of Family-Business Law (April 7, 2014). Forthcoming Ohio State Law Journal, vol. 75, 2014. [SSRN]

Abstract: Most U.S. businesses are family owned, and yet the law governing business organizations does not account adequately for family relationships. Nor have legal scholars paid sufficient attention to family businesses. Instead, legal scholars operate within a contractarian model of business organization law, which holds that a firm is comprised of a nexus of contracts among economically rational actors. Intimate relationships appear irrelevant except insofar as they affect contractual choices. Indeed, strictly speaking, there is no such thing as family-business law.

This Article lays the foundation for a law of family business by turning the contractarian model on its head: a firm includes not just business contracts, but all bargains among participants that affect the business enterprise. The payoff for including family considerations is two-fold. First, when family obligations introduce uncertainty, as when co-owners of a business divorce, contract offers an explanatory resource for resolving disputes consistent with the parties' expectations. Second, a contractual conception of the firm can guide the establishment of appropriate default rules for the interpretation and enforcement of family-business bargains.

Colin Miller Colin Miller
Associate Dean of Faculty Development & Associate Professor of Law
Teaches: Criminal Law, Criminal Adjudication, Evidence

Freedom of Character: Creating a Constitutional Character Evidence Test (August 5, 2014). Carolina Academic Press Book, Forthcoming. [SSRN]

Abstract: This essay seeks to fill a scholarly and judicial void by proposing a First Amendment test that courts should apply when prosecutors seek to introduce defendants' speech as character evidence. Under this constitutional character evidence test, assuming that the defendant can prove that his words are protected under the First Amendment, the prosecution would have to do more than simply satisfy the rules of evidence; it would also have to prove that application of the rules of evidence to the defendant's words is narrowly tailored to advance a compelling state interest.

Eboni S. Nelson Eboni S. Nelson
Professor of Law
Teaches: Contracts, Commercial Law (Sales and Negotiable Instruments), Consumer Law, and Race, Class and Education

Reading Between the Blurred Lines of Fisher v. University of Texas, 48 Valparaiso University Law Review 519 (2014). [SSRN]

Abstract: After more than eight months of anticipation and speculation, the Supreme Court finally issued its opinion in Fisher v. University of Texas at Austin. Contrary to fears held by some and hopes held by others, the Court did not use the case as an opportunity to overrule Grutter v. Bollinger, thereby prohibiting the consideration of race in higher education admissions decisions. Instead, the Court vacated the Fifth Circuit's decision upholding the University of Texas's race-based admissions policy and remanded the case for further proceedings consistent with [the] opinion.

At first glance, the majority opinion authored by Justice Anthony Kennedy appears to be a straight forward tutorial regarding the parameters of strict scrutiny by which courts are to examine the constitutionality of race-based admissions plans. After concluding that the Fifth Circuit failed to analyze the UT plan under the proper constitutional standard due to the deference shown to the University during its narrow tailoring analysis, the Court decided that fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis. While the University and other affirmative action supporters may view the Court's decision as an optimistic signpost for the future of race-based admissions policies, this Essay fears that, unfortunately, such optimism may be misplaced. It argues that a closer reading of the opinion reveals troubling language and sentiments that could detrimentally impact both the UT admissions plan, specifically, and the future of racial diversity in higher education, more broadly.

Nathan Richardson Nathan Richardson
Assistant Professor of Law
Teaches: Environmental Law & Policy

Managing the Risks of Shale Gas Development Using Innovative Legal and Regulatory Approaches (with Sheila Olmstead), forthcoming, William And Mary Environmental Law And Policy Review (2014). [Publisher]

Abstract: Booming production of oil and gas from shale, enabled by hydraulic fracturing technology, has led to tension between hoped-for economic benefits and feared environmental and other costs, with great associated controversy. Study of how policy can best react to these challenges and how it can balance risk and reward has focused on prescriptive regulatory responses and, to a somewhat lesser extent, voluntary industry best practices. While there is undoubtedly room for improved regulation, innovative tools are relatively understudied. The liability system predates environmental regulation yet still plays an important—and in some senses predominant—role. Changes to that system, including burden-shifting rules and increased bond requirements, might improve outcomes. Similarly, new regulation can and should incorporate modern understanding of the benefits of market-based approaches. Information disclosure requirements can benefit the liability system and have independent benefits of their own. Policymakers faced with a need for policy change in reaction to shale development should carefully consider alternatives to regulation and, when regulation is deemed necessary, consider which tool is best suited.

Joseph Seiner Joseph Seiner
Professor of Law
Teaches: Comparative Employment Discrimination Seminar, Employment Discrimination, Principles of Labor Law, Individual Employment Law, ADR in Employment Law Workshop

The Issue Class (April 4, 2014). 56 B.C. L. Rev. (2015 Forthcoming). [SSRN]

Abstract: In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation's largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court's decision. This paper does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored. Given that Wal-Mart is detrimental to plaintiffs, what is the best tool currently available for workers to pursue systemic employment discrimination claims?

Surveying the case law and federal rules, this paper identifies one little used procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims — issue class certification. Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure permits the issue class, allowing common issues in a class case to be certified while the remaining issues are litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation presented by many workplace class action claims.

This paper explains how the issue class is particularly useful for systemic discrimination claims. The paper further examines why traditional class treatment often fails in workplace cases, and addresses how the plaintiffs in Wal-Mart could have benefited from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the paper in the context of the broader academic scholarship. This paper seeks to fill the current void in the academic scholarship by identifying one overlooked way for plaintiffs to navigate around the Supreme Court's decision.

Bryan Walker Smith Bryan Walker Smith
Assistant Professor of Law
Teaches: Torts

Proximity-Driven Liability (November 1, 2013). 102 Georgetown Law Journal 1777 (2014). [SSRN]

Abstract: This working paper argues that commercial sellers' growing information about, access to, and control over their products, product users, and product uses could significantly expand their point-of-sale and post-sale obligations toward people endangered by these products. The paper first describes how companies are embracing new technologies that expand their information, access, and control, with primary reference to the increasingly automated and connected motor vehicle. It next analyzes how this proximity to product, user, and use could impact product-related claims for breach of implied warranty, defect in design or information, post-sale failure to warn or update, and negligent enabling of a third-party's tortious behavior. It finally flips the analysis to consider how the uncertainty caused in part by changing liability could actually drive companies to further embrace this proximity.

A Legal Perspective on Three Misconceptions in Vehicle Automation (January 1, 2014). Road Vehicle Automation Lecture Notes in Mobility, Springer, p. 85, June 2014.

Abstract: In this chapter I address three commonly misunderstood aspects of vehicle automation: capability, deployment, and connectivity. For each, I identify a myth pervading public discussion, provide a contradictory view common among experts, explain why that expert view is itself incomplete, and finally discuss the legal implications of this nuance. Although there are many more aspects that merit clarification, these three are linked because they suggest a shift in transportation from a product model to a service model, a point with which I conclude.

Seth Stoughton Seth Stoughton
Assistant Professor of Law
Teaches: Criminal Law, Criminal Procedure, and Regulation of Vice

The Incidental Regulation of Policing (August 22, 2013). 98 Minn. L. Rev. 2179 (2014); Harvard Public Law Working Paper No. 13-38. [SSRN]

Abstract: What do the laws governing municipal annexation, collective bargaining, and race-conscious employment decisions have in common? Each plays a significant and under-appreciated role in shaping local law enforcement practices even though each, on its face, has nothing to do with policing.

This Article explores the incidental regulation of policing, illustrating the concept with examples from different areas of state and federal law. Many legal decisions happen to include police as constituents of a broader regulatory ambit, and thus are not intended to have any particular effect on the unique functions of policing. Nevertheless, these laws have profound ramifications for police practices. Policing-neutral laws can alter the dynamics of inter-agency cooperation, encourage the adoption of a particular policing style, and change the way that police interact with the members of the communities they patrol. Each of these effects can change how rank-and-file officers go about their jobs. Some, for example, encourage officers to engage in aggressive criminal enforcement while others expand the range of tactics that officers can use to respond to potential problems and to non-criminal disorder.

This Article contends that recognizing the incidental effects of policing-neutral law is a necessary prerequisite to understanding and reforming police practices. The incidental regulation of policing is troubling when some broader legal decision affects unique policing functions. Here, the impact on officer behavior does not benefit from the deliberative process that protects the important societal interests that law enforcement implicates. This Article suggests mechanisms for identifying and addressing the potential problems of incidental regulation in the policing context. By taking a more comprehensive view of the legal environment in which police operate, we can more fully understand how the law shapes officer behavior. That understanding, in turn, can pave the way to a tighter regulatory regime and more effective police reform.

Policing Facts (August 22, 2013). 88 Tulane Law Review 847 (2014); Harvard Public Law Working Paper No. 13-39. [SSRN]

Abstract: The United States Supreme Court's understanding of police practices plays a significant role in the development of the constitutional rules that regulate officer conduct. As it approaches the questions of whether to engage in constitutional regulation and what form of regulation to adopt, the Court discusses the environment in which officers act, describes specific police practices, and explains what motivates officers. Yet the majority of the Court's factual assertions are made entirely without support or citation, raising concerns about whether the Court is acting based on a complete and accurate perception. When it comes to policing facts, the Court too often gets it wrong.

This Article explores the influence that the Court's conception of policing has on the creation and modification of constitutional norms. It demonstrates that misunderstandings about law enforcement have led to constitutional rules that fail to align with the world that they were designed to regulate. Confusion about the facts upon which a rule is built creates a gap between the conceptual justification of the rule and its practical consequences, between the effect that the rule was intended to have and the effect it actually has. Thus, misalignment results in the under- or overregulation of officer behavior and, correspondingly, the under- and overprotection of liberty and privacy interests. This observation offers one explanation for why the Court's constitutional pronouncements often fail to have the anticipated result. Having identified the effects that follow from basing a rule on a faulty factual premise, I explore ways to narrow the gap. When constitutional rules are predicated on empirical information, a more accurate understanding of police practices will better align those rules with reality, leading to both more precise constitutional rule making and more efficacious liberty protections.

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