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 →

Anna Christie

The prevailing rhetoric associated with hedge fund activism is almost universally negative. This Article provides new evidence of activist hedge fund behavior that contradicts this dominant narrative. The principal argument of the Article is that the conventional picture of hedge fund activism requires updating to account for the phenomenon of activist board representation. Continue reading →

Stephanie Richard & Suzanne S. La Pierre

Human trafficking survivors not only suffer physical and psychological harm during the commission of the crimes against them, but also are often further harmed through forced involvement in the criminal justice system. With the current focus on apprehending and punishing perpetrators as the primary tool promoted in the United States to prevent trafficking, survivors forced to be witnesses against their perpetrators lose their self-determination in ways replicating the abusive patterns of their traffickers. To aid investigation and prosecution of traffickers, they are required to provide testimony reliving their experiences. Forced testimony is also often the only option available for avoiding prosecution for crimes they were coerced to commit by their traffickers. Tragically, evidence-based research and interviews with survivors and those involved in combatting trafficking conclusively demonstrate that this carceral approach has failed. Continue reading →

Alexis Klimaszewski

In the area of mergers and acquisitions (“M&A”), a buyer “sandbags” a seller when, knowing the seller has breached—intentionally or unintentionally—a representation or warranty prior to closing, the buyer nonetheless closes the sale and subsequently brings a post-closing indemnification claim. Parties to a merger or acquisition can negotiate a pro- or anti-sandbagging provision; however, the recent trend has been rising instances of silence in M&A agreements. Given the modern majority default rule, the result is that most buyers in the United States hold a sandbagging right; however, default rules are ambiguous, uncertain, and inconsistent across jurisdictions. While sandbagging at first glance appears unfair to the seller, the situation is far more nuanced, and there is potential for perverse disclosure incentives for both buyer and seller. The recent trend towards silence reflects not an acquiescence by sellers to the default rule of the governing jurisdiction, as scholars have previously suggested, but rather prohibitively high transaction costs and valuation issues faced by both parties that make negotiating over sandbagging language in the M&A agreement inherently inefficient. Continue reading →

Nantiya Ruan

Universities are workplaces replete with observed gender pay gaps despite the legal protections in place to mitigate against such a reality. This Article analyzes recent university gender pay equity lawsuits to examine their efficacy in four types of litigation: (1) Class and Collection Action; (2) Government Action; (3) Union Action; and (4) Individual Action. From these case studies of different types of litigation, we learn several important lessons about prosecuting equal pay laws and how to best protect against unequal pay. Continue reading →

Jonathan P. Feingold

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.
The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the Equal Protection Clause against equality itself. Even if normatively jarring, a right to inequality might seem a natural extension of SFFA and decades of conservative caselaw hostile to remedial reform. Continue reading →

Stephen Clowney

Rural communities are at a crossroads. On one hand, small towns continue to receive robust support from the federal government. Congress sends billions of dollars in agricultural support, homeownership subsidies, and infrastructure spending to rural places every year. Yet, despite ongoing federal investment, conditions in rural America have deteriorated. Economic growth, educational opportunities, and health outcomes in rural places all lag behind the rest of the country.

This Article asks what has gone wrong. Why do rural communities continue to lose ground despite such significant outlays from Congress? This Article contributes to the ongoing debate about the future of the countryside by highlighting one previously unexamined fault in the ongoing efforts to revitalize rural America: proponents of rural communities—in both think tanks and government agencies— have rarely been forced to enumerate the benefits that the countryside provides. Defenders of small towns simply assume that saving rural places is worthwhile. But why? The lack of clarity matters. Rural people are suffering, at least in part, because policymakers do not have a clear view of why small towns are important or how they can compete with cities. Continue reading →

Jeffrey Omari, Pablo Rueda-Saiz & Richard Ashby Wilson

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR’s unique methodological and substantive contributions, we explore the movement’s relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, crossnational exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of “looking up, down, and sideways.” Notably, NLR embraces both “top-down” and “bottom-up” methods, providing comprehensive insights into the intricate interactions and competition between various actors and legal institutions. In contrast to perspectives that narrow the law to a mere instrument of social control, NLR recognizes that the law is a complex and nuanced social phenomenon with relative autonomy that often leads to unintended consequences. Continue reading →

E. Gary Spitko

This Article explores the important but largely unexplored relationship between workplace artificial intelligence (AI) and human flourishing. More specifically, the Article examines the potential impact of workplace AI decision tools on such critical matters as workers’ human dignity, workplace and personal autonomy, and the opportunity for upward mobility. AI can analyze data far more quickly and efficiently than humans. Moreover, AI computer models are far superior to people in uncovering subtle correlations in large amounts of data and learning from those correlations. Thus, workplace AI decision tools teach themselves to choose the criteria for recruitment, hiring, compensation, promotion, and termination of workers and ground their employment decisions firmly in empirical data that humans fail even to perceive. At the same time, these AI tools may insult human dignity, threaten worker autonomy, and serve as an agent of social ossification. Continue reading →

William S. Fallon

Government technology that exclusively detects illegal conduct is per se constitutional. Today, the Fourth Amendment provides no protection—zero—against government technology that identifies illegality without also revealing private, innocent behavior.

Meanwhile, alarmingly, government is rapidly developing—and deploying— technology that bypasses the need to examine private, innocent behavior in its detection of wrongdoing. Government can know there is contraband in your bedroom drawer without the need to rummage through that drawer, your home, or any of your private information and possessions. Government can know there is illegal content on your phone without the need to search through that phone or any of your private accounts and data. If enforcement technologies continue to develop apace, under existing law, government will be able to detect—and punish—every instance of illegal behavior, every time, without violating the Fourth Amendment. This imminent, staggering government power is called “perfect enforcement of law.” Continue reading →