A Blueprint for States To Solve the Mandatory Arbitration Problem While Avoiding FAA Preemption
By Sam Cleveland. Full Text. Employers are increasingly using mandatory pre-dispute arbitration clauses in employment contracts. Doing so gives employers benefits, such as privacy, the ability to select the arbitrators, and repeat players benefits, but they often leave employees without meaningful recourse when they are wronged, especially when class action waivers are used. This effect…
Continue ReadingSoft Law as Governing Law
By Steven L. Schwarcz. Full Text. International business transactions increasingly are being conducted under “soft law”—a term referring to non-state rules that may be aspirational or reflect best practices but are not yet legally enforceable. In part, this shift reflects a decline in cross-border treaty-making, which needs widespread consensus and is subject to lengthy negotiations.…
Continue ReadingContracting Our Way to Inequality: Race, Reproductive Freedom, and the Quest for the Perfect Child
By Camille Gear Rich. Full Text. This Article asks a fundamental question: Why does a society ostensibly committed to racial equality allow players in the assisted reproductive technology (ART) market to buy and sell race? As consumers in the ART market well know, human gametes (both eggs and sperm) are packaged, marketed, and sometimes priced…
Continue ReadingJumping Hurdles To Sue the Police
By Sunita Patel. Full Text. The view that the Supreme Court has limited judicial review of unconstitutional government practices is evident in varied quarters of legal scholarship. With respect to structural reform litigation against the police there are good reasons for pessimism, particularly when considering three particular lines of Supreme Court case law. City of…
Continue ReadingFighting for Attention: Democracy, Free Speech, and the Marketplace of Ideas
By G. Michael Parsons. Full Text. The marketplace of ideas features prominently in First Amendment doctrine, with the Supreme Court invalidating laws that purportedly interfere with the free flow of information through society. Yet, the modern version of the market metaphor rests entirely upon contradictory conceptual assumptions, false empirical premises, and an unsupported historical narrative.…
Continue ReadingThe Public Use of Reparations: How Land-Based Reparations Can Satisfy the Public Use Requirement of the Takings Clause
By Jack Davis. Full Text. After the horror of slavery, African Americans faced another obstacle to equality. Their lack of property created an intergenerational wealth problem that persists today. A Congressional act of reparations designed with housing in mind could strengthen our nation’s moral fabric while supporting economic activity for beneficiaries both in the present…
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Space: The Final Next Frontier
By Bonny Birkeland. Full Text. This Note explores the implications of the use of force in outer space under the current space and jus in bello regimes. By looking at the use of kinetic and direct energy ASATs under a proportionality calculus, this Note proposes a new consideration framework which outlines what a State actor…
Continue ReadingA [Relational] Theory of Procedure
By Justin Sevier. Full Text. Policymakers continue to grapple with the fundamental question of how to maximize the institutional legitimacy of legal conflict resolution. Recently, prominent scholars have begun advocating for a value-based approach to legal regulation, which seeks to maximize voluntary compliance with the law because members of the public believe that legal institutions…
Continue ReadingOrganizational Justice and Antidiscrimination
By Bradley A. Areheart. Full Text. Despite eighty years of governmental interventions, the legal system has proven ill-equipped to address workplace discrimination. Potential plaintiffs are reluctant to file discrimination claims for a host of social and economic reasons, and the relatively few who do file face steep structural barriers. This Article argues that the most…
Continue ReadingDeal Insurance: Representation and Warranty Insurance in Mergers and Acquisitions
By Sean J. Griffith. Full Text. Efficient contracting depends upon imposing risk on the party with superior access to information. Yet the parties in mergers and acquisitions transactions now commonly use Representation and Warranty Insurance (“RWI”) to shift this risk to a third-party insurer. Because liability and trust go together, RWI would seem to give…
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