This article argues that mixed income housing is a policy response to racial segregation structured around managing discrimination – building affordable housing in a way that takes into account the discriminatory preferences of wealthier residents. Deciding whether “discrimination management” is acceptable requires confronting racism as a permanent condition in our society and the costs of catering to discriminatory preferences in order to seek to achieve a possibly greater good.
Forum selection clauses are ubiquitous. Although the federal courts traditionally were hostile to agreements limiting a plaintiff’s venue options, recently the tide has turned. The lower courts now routinely enforce such clauses. This article challenges this recent trend in the special context of ERISA cases.
There is a growing scholarly consensus in favor of family autonomy. But while scholars largely agree on this abstract goal, they do not agree on how to promote family choice. For example, the conventional doctrine treats nonmarital partners as legal strangers with regards to their economic rights. By carefully mining the law of nonmarital parentage, this article demonstrates that the conventional doctrine undermines rather than furthers family autonomy.
This essay explores Janus’s implications in light of the Supreme Court’s apparent adherence to “the doctrine of one last chance,” which requires the Court to give notice of its willingness to issue disruptive decisions before doing so.
Concerns over the use of online bots to foment political strife, skew online discourse, and manipulate the marketplace have led legislators to draft laws that would require bots to clearly indicate that they are not human. This article considers how such disclosure requirements might run afoul of the First Amendment and inadvertently curtail a novel and still emerging form of expression.
The Supreme Court promulgates rules of procedure pursuant to the Rules Enabling Act. This statute provides that “Such rules shall not abridge, enlarge or modify any substantive right.” The Court has not taken the opportunity to refine the precise contours of the Act and has never invalidated a rule under it. This article takes up that enterprise, articulating an understanding of the Rules Enabling Act that will clarify the scope of the Supreme Court’s rulemaking authority.
This article confronts a dangerous contemporary trend: the escalating political harassment of public university scholars through the use of public records requests. This phenomenon impedes academic enterprises as diverse as climate change research and biomedical experiments. The article argues that most of professors’ records should not be subject to laws that exist to promote democratic accountability, both because professors do not govern, and because open records laws conflict with the academic freedom necessary for knowledge generation.
The familiar ideal is that the remedy should “fit the wrong”. This article reveals that in copyright law, the remedies actually create the wrong. Conducting a novel study of infringement claims and case law involving statutory damages, the author explains how plaintiffs routinely employ enhanced damage claims to threaten and subdue alleged infringers into making settlement concessions. The article concludes that copyright’s statutory damage framework is a remedy in dire need of reform and provides a number of substantive and procedural policy suggestions.