Author: Mahler, Samuel

Parenting Under Siege: Reckoning with Coercive Control

Posted on by

Courtney Cross & Gillian Chadwick

Coercive control is a pervasive form of domestic violence in which one partner engages in a prolonged and multifaceted campaign of abuse in order to gain and maintain dominance over the other partner. While some coercively controlling partners employ physical violence to ensure compliance with their demands, others use exclusively non-violent tactics. In co-parenting relationships, coercive control not only inflicts severe harm on the targeted parent but also affects children as co-victims of both direct and indirect abuse. As a result, co-victim children suffer significant emotional, developmental, and social harm, and adverse health outcomes, even in the absence of physical abuse. Yet legal frameworks addressing domestic violence typically focus on discrete acts of physical violence, adhering to what scholars term the “violent incident model.” Continue reading →

The New Reliability Override

Posted on by

Benjamin Rolsma

Section 202(c) of the Federal Power Act grants the Secretary of Energy a sweeping authority to exempt electric generation and transmission facilities from any federal, state, or local environmental laws. When Congress first adopted § 202(c) in 1935, it designed the provision as an emergency power that federal regulators could use to force fractious utilities to work together to preserve electricity reliability in times of war or natural disaster. But in the last decade things changed.
This Article, drawing on a novel catalog of all § 202(c) emergencies from the provision’s nearly ninety-year history, is the first to comprehensively describe § 202(c). The Article shows that new pressures on the reliability of the American electrical grid, along with an obscure 2015 amendment to the Federal Power Act, transformed § 202(c). No longer is it used to nudge reluctant utilities into action. Instead, starting in the first Trump administration and continuing in the Biden administration, grid operators facing impending blackouts used § 202(c) orders to allow them to run power plants in excess of Clean Air and Clean Water Act pollution limits. And § 202(c) is set to become even more important. Both the Trump and Biden administrations leaned on the provision in proposed policies for the electrical grid—the former to hinder the energy transition and the latter to push it along. This Article tells § 202(c)’s history, describes its transformation, and critically examines some methods for supervising the Department of Energy’s use of § 202(c).

Read more here.

Locating Timbre in Copyright Law’s Modern Musical Work

Posted on by

Lauren Wilson

Copyright law requires courts deciding music infringement cases to locate two copyrights within a single song: one in the “musical work” and another in the “sound recording.” But songs do not naturally divide into such pieces. Instead, judges untrained in music must parse from a unified song the musical elements belonging to each copyright and to whom those copyrights belong. They have historically approached the task as a simple matter of identifying elements notated on a score as belonging to the musical work and placing “everything else” on the sound recording, but such a formalistic approach does not suit the modern popular music at the center of most infringement lawsuits. Continue reading →

Let it Flow: Information Exchange in Video Conferences versus Let it Flow: Information Exchange in Video Conferences versus Face-to-Face Meetings Face-to-Face Meetings

Posted on by

Hadar Y. Jabotinsky & Roee Sarel

When the COVID-19 pandemic hit, policymakers faced a seemingly difficult choice. On the one hand, health considerations required imposing restrictions on face-to-face meetings. On the other, intuition suggested that switching to video conferencing might lead to information loss. As the pandemic progressed, in-person meetings largely turned digital, including court hearings, lawyer-client consultations, board meetings, and more. But did this turn actually cause an information loss? Continue reading →

Ethical Investments: Correcting ERISA’s Misinterpretation

Posted on by

Yifat Naftali Ben Zion

The market for socially responsible investing—commonly referred to as ESG
(environmental, social, and governance) investing—is experiencing rapid growth.
Yet a crucial question, that could shape this market’s potential to better our world,
remains unresolved: can institutional investors consider ESG factors when making
investment decisions? These investors hold a significant portion of global
corporate equity, currently valued in the trillions of dollars. Consequently, they
stand in a unique position from which they can influence the actions of
corporations. Continue reading →

First Amendment Protection Under Connecticut’s Free Speech Statute: Inconsistent Interpretations and Disappointing Results

Posted on by

Elizabeth C. Anderson

Connecticut has taken unique strides in safeguarding employees’ constitutional rights by granting private employees the same First Amendment protections offered to public employees. However, the definition of “discipline” adopted by most courts permits employers to punish employees for exercising their free speech through non-affirmative acts like retracting promised promotions and bonuses. Continue reading →

The (Quorum) Call is Coming from Inside the House: Incongruity Between the Current Interpretation of the Quorum Clause and the Supreme Court’s First Congress Canon

Posted on by

Sam Mahler

Since the start of the twenty-first century, Congress members have faced more threats to their safety than at any other point in American history. Up to this point, none of the attacks have been successful in killing a majority of the members. However, such a prospect comes with the possibility of a reality where all Congressional action is stalled until replacement elections are held and new members are seated. Continue reading →

On “Self” Care

Posted on by

Suzanne A. Kim

The dominant answer to popular calls for self care in everyday discourse is a thriving eleven billion dollar industry. The self care economy encompasses workplace wellness programs, consumer goods and services, and entrepreneurship. This infrastructure revolves around commercial consumers and providers and advances through conceptions of health and well-being centered on individuals.
Despite their prevalence, the concept and provision of self care have gone underexamined in legal critiques of societal underinvestment in care. This Article fills this gap by exploring the social construction of the dominant contemporary conception of self care in the United States, one that continues to be construed within a solely individualized framework. Within this model, individuals’ encounters with care appear to arise in a vacuum— both in how care needs emerge and how care needs are addressed. Continue reading →

Un-fathering the Constitution

Posted on by

Lorianne Updike Toler

Constitutional law turns on Madison’s vision. This because Madison is universally acclaimed by the Supreme Court and legal academe as the Constitution’s father. However, Madison’s constitutional parentage sounds more in lore than logic.
A careful review of recent historiography, Madison’s own writings, and new analytics tools available on the Quill Project reveal Madison as much less important to the Constitution than previously thought. He did not bring about the Convention, did not write the Virginia Plan, and was not that influential at the Constitutional Convention. Continue reading →

Scènes à Faire: Cliché as Legislative Fact

Posted on by

Sarah Louise Bishop

In the last ten years, federal courts have quietly begun to apply copyright’s scènes à faire doctrine to dismiss infringement claims before party discovery has occurred. This move theoretically should not be possible, because applying the doctrine requires evidence of the conventions and tropes of the artistic genres at issue—something unlikely to be reflected in the parties’ pleadings.
This Article identifies this trend and explores the workarounds district courts use to achieve these dismissals without a factual record before them. The most common methods courts use are inconsistent with both the Federal Rules of Civil Procedure and Evidence and risk bias and baseless decisions. Continue reading →