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Volume 71

A Taste of Their Own Medicine: Examining the Admissibility of Experts’ Prior Malpractice Under the Federal Rules of Evidence

Apr. 18, 2018—A-Taste-of-Their-Own-Medicine ABSTRACT Expert witnesses play an important role in medical malpractice cases by persuading juries to adopt a theory favorable to their party. Their credibility and competency influence the jury’s decision, so parties seek to discredit opposing experts through cross-examination about their own malpractice as a provider of medical care. This evidence suggests a propensity...

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Combating the Enemy Within: Regulating Employee Misappropriation of Business Information

Apr. 18, 2018—Combating-the-Enemy-Within ABSTRACT Technological advancements vastly improve efficiency and productivity in the workplace. However, technology also brings with it the ability to transmit mass amounts of business information with ease. As technology continues to evolve and become increasingly prevalent in the modern workplace, the insider presents a considerable threat to employers. In fact, employers increasingly face...

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Funding Restrictions and Separation of Powers

Mar. 13, 2018—Funding-Restrictions-and-Separation-of-Powers ABSTRACT Congress’s “power of the purse”—its authority to deny access to public funds—is one of its most essential constitutional authorities. A crucial check on executive overreaching, it may provide authority to stop presidents in their tracks. Yet Congress and the executive branch have developed widely divergent views on the scope of this authority. During the...

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The Origins (and Fragility) of Judicial Independence

Mar. 13, 2018—The-Origins-and-Fragility-of-Judicial-Independence ABSTRACT The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look...

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Interpreting an Unamendable Text

Mar. 13, 2018—Interpreting-an-Unamendable-Text ABSTRACT Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as...

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The Shifting Tides of Merger Litigation

Mar. 13, 2018—The-Shifting-Tides-of-Merger-Litigation ABSTRACT In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to...

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Sink or Sell: Using Real Estate Purchase Options to Facilitate Coastal Retreat

Mar. 13, 2018—Sink-or-Sell-Using-Real-Estate-Purchase-Options-to-Facilitate-Coastal-Retreat ABSTRACT Despite the political contention surrounding climate change, scientists almost universally agree that sea levels are rising and will continue to do so. In light of this inevitability, commentators and policymakers have begun to recognize that retreat—the withdrawal of people and development from coastal areas—will become necessary, at least in certain areas. Even so,...

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Invisible Bars: Adapting the Crime of False Imprisonment to Better Address Coercive Control and Domestic Violence in Tennessee

Mar. 13, 2018—Invisible-Bars-Adapting-The-Crime-of-False-Imprisonment-to-Better-Address-Coercive-Control-and-Domestic-Violence-in-Tennessee ABSTRACT On average, three or more women are murdered by their intimate partners in the United States every day. Despite the now well-known correlation between coercive control—the strategic use of oppressive behavior to control primarily female partners—and intimate partner homicide, most states continue to focus their criminal domestic violence laws solely on physical violence....

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The Transparency Tax

Jan. 18, 2018—The Transparency Tax ABSTRACT Transparency is critical to good governance, but it also imposes significant governance costs. Beyond a certain point, excess transparency acts as a kind of tax on the legal system. Others have noted the burdens of maximalist transparency policies on both budgets and regulatory efficiency, but they have largely ignored the deeper...

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Contract as Commodified Promise

Jan. 18, 2018—Contract as Commodified Promise ABSTRACT Many scholars assume that lawmakers should design contract law with the goal of facilitating commercial promises. But the question of which promises count as commercial remains neglected. This Article argues that this question matters more than one might initially expect. Once we understand commerciality in terms of commodification—roughly, treating something...

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Adminization: Gatekeeping Consumer Contracts

Jan. 18, 2018—Adminization Gatekeeping Consumer Contracts ABSTRACT Large companies and debt collectors frequently file unmeritorious claims against consumers. Recent high-profile actions brought by the Consumer Financial Protection Bureau against J.P. Morgan, Citibank, and other large debt collectors illustrate the breadth and importance of this phenomenon. Due to the limited financial power of individuals, consumers often do not...

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Borders and Bits

Jan. 18, 2018—Borders and Bits ABSTRACT Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data...

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Decoding Guilty Minds: How Jurors Attribute Knowledge and Guilt

Jan. 18, 2018—Decoding Guilty Minds ABSTRACT A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what...

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Signed, Sealed, Delivered—Not Yours: Why the Fair Labor Standards Act Offers a Framework for Regulating Gestational Surrogacy

Jan. 18, 2018—Signed, Sealed, Delivered ABSTRACT Over the past several decades, gestational surrogacy has emerged as a rapidly growing industry. Such growth has prompted an enormous amount of debate among scholars, human rights advocates, economists, and the media over a wide array of legal and ethical issues. This debate is perhaps most evident in the divergence of...

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Restore, Revert, Repeat: Examining the Decompensation Cycle and the Due Process Limitations on the Treatment of Incompetent Defendants

Jan. 18, 2018—Restore, Revert, Repeat ABSTRACT Though correctional facilities are one of the largest providers of mental health care in the country, the treatment provided often fails to address the needs of many mentally ill inmates. Indeed, after receiving treatment at a state mental health facility, many pretrial detainees who have been recently restored to competency revert...

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