Introduction A story to start: I applied for a federal court of appeals clerkship after my graduation from Yale Law School in 1971. I was a feminist and a women’s rights activist; I was a participant in one of the first courses on women and the law, organized and run by women law students. There…
Abstract. While nondisclosure/non-disparagement agreements (NDAs) can beneficially protect privacy and facilitate settlement of sexual misconduct claims, these agreements have come under attack—especially since the rise of the #MeToo movement—because NDAs can also facilitate repeat offending. While some academics and policy makers have proposed making NDAs unenforceable, this Essay searches for intermediate legal interventions which preserve…
Introduction Professors who study harassment are in demand by the media. As allegations unsettle Hollywood, Silicon Valley, Washington, D.C., and various state capitals, reporters covering the #MeToo movement seek academic perspectives on the problem. Those who call me often mention two articles I published over fifteen years ago, which questioned the embrace of sex harassment…
The first reports emerged in October 2017 in the New York Times and the New Yorker that dozens of women had accused movie producer Harvey Weinstein of sexual violence. Since then, hundreds of women and men have come forward to accuse famous men in entertainment, politics, and other industries. #MeToo emerged as an online movement…
For Law Professors Rachel Arnow-Richman, Ian Ayres, Susan Bisom-Rapp, Tristin Green, Rebecca Lee, Ann McGinley, Angela Onwuachi-Willig, Nicole Porter, Vicki Schultz, and Brian Soucek Introduction We, the undersigned legal scholars and educators with expertise in employment discrimination law, seek to offer a new vision and agenda for eliminating sexual harassment and advancing workplace equality. We…
Introduction On March 23, President Trump signed the CLOUD Act, thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the…
Introduction In the wake of the mass shooting in Parkland, Florida, more lawmakers may be willing to concede that 18-to-20-year-olds are ill suited to keep and bear firearms. Under current federal law, an 18-to-20-year-old may purchase a long gun from a federally licensed or unlicensed dealer, may purchase a handgun from an unlicensed dealer, and…
Introduction The sweeping tax reform enacted in December 2017 will significantly increase the tax cost of executive compensation in publicly held corporations where the compensation for each of the top five executives exceeds $1 million. Nonetheless, it is unlikely that these corporations will reduce the executive compensation to offset the increased tax cost, which will…
Last year, an article in The Guardian highlighted the disparities inherent in California’s pretrial detention system. Reporter Sam Levin compared the cases of Tiffany Li, accused of murder for hire, who was released under house arrest after satisfying the $35 million bail set in her case, and Joseph Warren, who at the time was in custody…
Introduction The world of internet commerce was shaken to its foundations in January this year, when the Supreme Court granted certiorari in South Dakota v. Wayfair, Inc., in effect agreeing to reconsider its landmark holding in Quill Corp. v. North Dakota. For more than twenty-five years, Quill has barred states from imposing tax-collection obligations on retailers that…
New tax legislation enacted in December 2017 exacerbates the extent to which various itemized deductions, such as the charitable contribution deduction and the home mortgage interest deduction, disproportionately benefit high income individuals. This essay develops this critique and concludes by suggesting paths for reform that should be considered by a future Congress.
Can Congress command a federal court to rule in favor of a particular party in a pending case? The answer to this seemingly simple question is unsettled. The Constitution permits Congress to enact rules of law that courts must follow; and it permits the courts to decide cases pending before them. Constitutional conflict arises when…
Introduction Aggregation has emerged in the past few years as a critical tool by which agencies can quickly resolve groups of claims that would otherwise languish for years in bureaucratic limbo. The idea is simple: Consolidating many similar claims in a single proceeding would help agencies process claims more quickly, efficiently, and fairly. But aggregation…
Introduction Promising to inject empirical rigor into the enterprise of statutory interpretation, corpus linguistics has, over the past couple years, taken the legal academy by storm. A product of linguistics departments, corpus linguistics is an empirical approach to the study of language through the use of large, electronic, and searchable databases of text called corpora.…
Blockchain technology can maintain accurate chains of title to securities and other legal instruments in a reliable electronic form. As private industries begin to recognize the cost-saving and risk-reducing potential of this technology, state legislatures are responding. Arizona’s H.B. 2417 is a prototypical state solution. In essence, the law requires parties to treat blockchain-secured records,…
For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a…
Certain state governments have adopted statutes that are designed to prevent city governments from eliminating memorials to Confederate forces and leaders. Critics of these controversial statutes generally focus on the moral issue of preserving statues honoring white supremacy. This Essay highlights a different set of concerns: These statutes suppress the speech of cities while compelling…
The words lawyers choose can change the decisions people make. Psychologists call the mechanics of this change “framing.” They’ve found, for example, that more people will decide to have a surgery if they are told that the “survival rate is 90%” than if they are told that the “mortality rate is 10%”—even though a survival…
Introduction Government hacking is everywhere. Hackers working for the Russian government broke into computers run by the Democratic National Committee and stole e-mails relating to the 2016 Presidential election. Hackers traced to the Chinese government broke into U.S. government computers and copied personnel files of over 22 million employees. North Korean hackers intruded into Sony…
Henry Vanderlyn, an antebellum lawyer from the small town of Oxford, New York, whom I discuss in Inventing American Exceptionalism, kept a daily diary for a thirty-year period and was in the habit of regaling visitors with selected readings from his collected thoughts. Confident that his visitors eagerly attended to his every word, Vanderlyn never…
