Child Abuse and Cannabis Use: How a Prima Facie Standard Mischaracterizes Parental Cannabis Consumption as Child Neglect

A parent’s right to raise their child without state interference is a fundamental, constitutional right. However, the state’s parens patriae power allows the state to occasionally intervene, so long as the state has evidence that the parent is abusive or is unable to adequately provide for their child in a way that creates harm. Drug use, sales, or manufacturing are often included in state statutes under definitions of neglect, but professionals agree that many interventions are inappropriate and ultimately unnecessary.

Contracting Away Your Career: An Interstate Comparison of Noncompete Law and a Proposal for Optimal Legislation in New York

In the late twentieth century, Silicon Valley became the epicenter of the great American technological explosion involving companies such as Apple, Hewlett Packard, and Google. At the same time across the country, Route 128, a Massachusetts Corridor famous for the Massachusetts Institute of Technology, had a significant head-start in the tech race with roughly triple the number of employees in the industry; however, it began to fall behind rapidly. By 1995, Silicon Valley had the highest export sales (primarily of electronics products and software) of any American metropolitan area. Route 128 did not make the top five. California’s ban on noncompete clauses, and Route 128’s embrace of them, are a popular explanation for this significant disparity in each region’s industrial development.

Competing Free Speech Rights: Evaluating Compelled Disclosures on Food Packaging in a Way that Reflects Scientific Realities–Or a Lack Thereof

Science changes. And not just a general understanding of science, but new truths in science come to light that run counter to long-held beliefs of what was thought to be true. These changes can arise unexpectedly or as a result of the scientific advancements we actively seek and achieve through research. Such principles, often prevalent in relation to medicine or climate change, for example, also apply to the scientific study of the food we eat. Scientific and technological explorations are becoming increasingly common in the food and beverage industry. In addition to the longstanding efforts by major food and crop companies, venture capital funds have invested two billion dollars in food-tech firms through mid-September 2018, up from $1.5 billion annually in 2016 and 2017. Contrast those numbers to the amount of funds invested in food technology ten years ago, when only tens of millions of venture capital funds were invested in such companies.

Money for Justice: Plaintiffs’ Lawyers and Social Justice Tort Litigation

Tort lawsuits brought in response to social injustice occasionally generate incentives for entrepreneurial plaintiffs’ lawyers to get involved in the litigation. What ethical responsibilities do such lawyers navigate in this space? And to what extent are they interested in, and well-positioned to produce, social change? The Article addresses these questions using a previously uncharted case study on civil actions for damages filed by Palestinians against the Israeli government. Through fifty-five in-depth, semi-structured interviews with the various types of lawyers involved in the litigation, alongside quantitative analysis of an original dataset of 300 judicial opinions, the Article reveals how fee-for-service plaintiffs’ lawyers stepped into a void left by human rights organizations—well-versed in impact litigation, but less so in tort lawsuits. While these plaintiffs’ lawyers notched achievements on the individual client level, their involvement shaped the litigation as a stream of particularized claims rather than a systematic struggle to alter the status quo. It also inadvertently—and ironically—supported lawmakers’ initiatives to discourage anti-government tort litigation. Through this case study, the Article allows us to rethink the cause lawyering framework—defined as the set of practices engaged in by lawyers to mobilize the law to promote or resist social change—and its role in conceptualizing where social change comes from. Questioning conventional scholarly focus on lawyers’ motivations, the Article shows that plaintiffs’ lawyers’ practices—such as using confidential settlements and the contingent fee structure—are just as important as motivations in determining their function as agents of change. It also argues that personal injury lawyers should not generally be considered “cause lawyers,” given their practice’s limited capacity to challenge the status quo. Yet, in the current political climate, when civil society organizations are under constant attack and social justice is an ever-waning resource, plaintiffs’ lawyers and traditional cause lawyers should join hands to mobilize civil society and leverage tort litigation to effect change.

Claim Preclusion and the Problem of Fictional Consent

The doctrine of claim preclusion promotes fairness and finality by preventing parties from raising claims that already were (or could have been) raised in a prior proceeding. This strict consequence can be imposed only when the litigant received minimal due process protections in the initial proceeding, including notice and direct or indirect participation. Modern litigation has caused a new problem. In some cases, a party may be precluded from ever raising a claim on the grounds of “fictional consent” to a prior court’s decisionmaking authority. Litigation devices have expanded the potential reach of judgments through aggregation and broad jurisdictional grants, and certain environments—such as bankruptcy—require that the parties consent to the initial court’s authority to decide a dispute. Applying claim preclusion to unraised claims in such environments poses a serious due process threat. Subsequent courts satisfy the claim preclusion standard by relying on fictional consent, i.e., by presuming that the litigant would have consented to the court’s power to decide the claim if she had brought the claim in her initial proceeding. But the litigant did not actually bring the claim, and therefore did not actually consent to the initial court’s exercise of authority.

Selling Out

When bankruptcy policy competes with other federal and state regulatory policies, which should take priority? Bankruptcy law, provided it is used to save a struggling business from having to close its doors. Bankruptcy’s supremacy, then, can preserve the debtor’s going concern value, save jobs, and limit the collateral damage from a business failure. But should this bankruptcy supremacy apply only when the debtor is pursuing a traditional reorganization under chapter 11, or should it also apply when bankruptcy is used to bring about a quick sale of substantially all of the debtor’s assets?

Redeeming Globalization Through Unfair Competition Law

Globalization’s seamless integration of manufacturing across extended supply chains has brought unprecedented efficiency to global economic production. The results often seem magical. Components sourced from dispersed suppliers in multiple countries are assembled into finished goods that arrive miraculously on our doorsteps at the click of a mouse. Globalization’s magic has a less savory side, however. Outsourcing production to overseas suppliers allows manufacturers to save money while rendering the human and environmental costs invisible. Not only do such externalities magically disappear with distance, but a sophisticated corporate shell game ensures that legal accountability for such harms vanishes as well.

Long-Term Incarceration and the Moral Limits of Punishment

Hundreds of thousands of Americans are serving decades-long prison sentences. While scholars have established that these sentences are both economically inefficient and destructive of minority communities, a fundamental question remains: Is long-term incarceration ever morally permissible? Understandably, the economists and sociologists of prison have not addressed this moral question. But neither have the philosophers of criminal law, who rarely consider sentencing issues. This Article seeks to fill this lacuna. It does so by reviving the moral and legal prohibition on degrading punishment. The Article argues that long-term incarceration is impermissibly degrading, on a par with the death penalty and penal torture.

Black Market Law Firms

In business and in competition, value exists in striking first. Accountants, the so-called hawks of the professional world, have made the first move. In September 2017, the global accounting giant PwC opened a law firm in Washington, D.C. called ILC Legal. ILC Legal not only provides legal services on non-domestic matters, but also acts as a multidisciplinary provider (MDP) and offers other professional services, such as tax-planning, business consulting, and marketing, throughout its ninety-country network. In June 2018, Deloitte quickly followed suit, the second of the Big Four accounting firms to enter the U.S. MDP market, partnering with a U.S. immigration law firm in San Francisco. With accountants now having the “first mover” advantage, the legal profession must respond.

The Efficacy of Choice-of-Law and Forum Selection Provisions in Third-Party Litigation Funding Contracts

Anyone with an interest in litigation—parties and lawyers alike—must reckon with the implications of third-party litigation finance (TPLF). In short, TPLF involves financial investment in a lawsuit by a disinterested third-party in exchange for a share of the judgment. For many in the United States, litigation is cost-prohibitive, preventing them from obtaining civil justice. Since the advent of TPLF, it no longer must be the case that defendants with deep pockets can make plaintiffs’ cases disappear by burying them in legal fees. If there is a case with meritorious claims that also has the potential for a substantial judgment, third-party funders can provide plaintiffs with the opportunity to force a fairer settlement. Typically, a third-party funder will provide money for a litigant’s living and legal expenses during pending litigation and will only expect a return upon a successful verdict for the litigant. The commercial practice began in the late eighties and has blossomed into a multi-billion dollar industry involving large banks and hedge funds.