Volume 2023, No. 1

PDF link Table of Contents


PDF link Geography as Due Process in Immigration Court

Valeria Gomez

Using the procedural due process framework set forth by the Supreme Court in Mathews v. Eldridge, I argue that the current geographic distribution of immigration courts violates respondents’ rights to procedural due process by inhibiting their ability to appear, present evidence, and secure counsel. In so doing, I highlight the detrimental effects that geography has on remote communities, such as their ability to build pipelines towards access to counsel. Finally, I weigh and propose alternative solutions that balance the government’s interests in efficiency with the respondents’ interests in having a meaningful opportunity to avoid the harsh consequences of deportation.

PDF link A Copyright Restored: Mark Twain, Mary Ann Cord, and How to Right a Longstanding Wrong

Timothy J. McFarlin

Did Mark Twain and the Atlantic infringe a copyright belonging to Mary Ann Cord in the telling of how enslavers tore her family apart and how her son returned years later, as a Union soldier, to liberate her from bondage? If so, could that long-ignored infringement be remedied today? This Article answers these questions and, in so doing, provides wide- ranging insights into how the doctrines of consent, estoppel, laches, abandonment, adverse possession, escheat, and the statute of limitations apply in copyright law. Cord’s case—nearly a century-and-a-half-old but examined for the first time in this project—can also help chart a course for how to address other longstanding wrongs in intellectual property and beyond. This includes those raised in recent lawsuits against Harvard for its exploitation of enslaved people’s images and Tulsa for the 1921 race massacre on Black Wall Street.

PDF link Defining Unfair Methods of Competition in the Federal Trade Commission Act

Samuel Evan Milner, P.h. D., J.D.

Section 5 of the Federal Trade Commission Act of 1914 declares “unfair methods of competition” to be unlawful, but the precise meaning of that phrase has long been contested. Both the FTC and courts have generally deemed Section 5 to be textually ambiguous and have hence interpreted the agency’s powers in light of the Act’s legislative history and the overall goals of competition policy. This Article provides the missing piece to this interpretive puzzle by demonstrating that “unfair methods of competition” has a clear meaning based upon the substantive law of intentional torts as it developed in the late nineteenth and early twentieth centuries. Rejecting the English view that only independently wrongful conduct could constitute harm to a competitor, American courts also condemned malicious acts that lacked any justification beyond naked self-interest. Through the influence of economists, treatise writers, and state legislatures, this type of intentional tort became known as “unfair competition” or, as the Supreme Court influentially deemed it in 1911, “unfair methods of competition.” By interpreting the text of the FTC Act, its legislative history, and the Commission’s modern objectives against this historic context, this Article concludes that, while Section 5 extends beyond the letter and spirit of statutory antitrust law, the Commission’s most recent guidance departs in several respects from the authority with which Congress imbued it.

PDF link Is Corporate Law Nonpartisan?

Ofer Eldar & Gabriel Rauterberg

This Article offers a framework for analyzing the role of political partisanship in corporate law. It begins by showing that there is suggestive evidence of a relationship between political partisanship and the substance of corporate law at the state level. When corporate law materially differs across states, those differences are often predicted by which party controls the state’s government. Political party entrepreneurs also lobby for corporate law reforms at the state level. Yet, Delaware adopts a conspicuously nonpartisan approach to corporate law. It is widely observed that how Delaware makes corporate law—from its constitution, to its legislature, to its judiciary—is unusual. It is designed to insulate that law from political partisanship. More surprisingly, this began when Delaware first became a leading home to incorporations a century ago. In fact, the same thing was true of New Jersey during its brief period of prominence before Delaware. Why? We suggest that the answer relates to corporate law’s central debate regarding the “market for corporate law.”

PDF link The Benefit of the Bargain

Mark A. Lemley

Contract law has lost its way. Designed as a way to allow people to agree, it has over time become a means for large businesses to unilaterally impose terms and conditions on others. Ironically, courts are more willing than ever to defer to the words of those documents even as the documents are less and less likely to reflect any agreement between the parties. That deference is not justified by the realities of modern contract law. We have a set of default rules for contracts in the Uniform Commercial Code and the common law of contracts. Parties can and should be able to agree to change some (though not all) of those rules. But doing so should require a mutual intention to do so. And in the modern world most contracts don’t involve any actual agreement. I propose a presumption that standard form contracts are subject to and cannot vary the default rules of contract law. The parties can vary those rules only by express agreement and only when the parties make an informed choice to do so. Except in a negotiated contract setting between sophisticated parties, that informed choice should require the party offering the form contract to offer a choice between their proposed terms and the basic default rules of contract law.

PDF link Does Mens Rea Matter?

Matthew L. Mizel, Michael Serota, Jonathan Cantor & Joshua Russell-Fritch

Does mens rea matter to the criminal legal system? Our study addresses this question by performing the first-ever empirical analysis of a culpable mental state’s impact on administration of a criminal statute. We focus on the U.S. Supreme Court’s 2019 decision in Rehaif v. United States, which applied a culpable knowledge requirement to the federal felon-in-possession statute, 18 U.S.C. § 922(g).


PDF link Let Them Play Ball: Seeking Solutions to the Recent Spate of Trans Sports Bans

Sophia R. Pfander

This Comment describes the current state of trans inclusion in athletics and aims to forge a path forward for policymakers, activists, and allies alike. By analyzing methods for legal changes and barriers to equality at the federal, state, and local levels, this Comment concludes that a simple approach to trans inclusion in sports is not evident. Rather, to achieve greater inclusion and protect the lives of LGBTQ+ youth, policymakers must work for change at the national, state, and local levels to realize true equality for trans children. By prioritizing strategic litigation and reworking federal statutes, advocates have the power to turn the tide on discrimination, avoid health disparities, and defend transgender youth.

PDF link Protecting All Parties in Compensated Gestational Surrogacy Agreements: Adopting the New York State (of Mind) Approach

Kiara Butler

For the past thirty years, New York State statutorily banned all surrogacy agreements. Not only were surrogacy agreements void and unenforceable as contrary to public policy, but parties to these agreements faced civil and criminal penalties, including imprisonment. But recently New York’s law radically changed. On February 15, 2021, New York State enacted the Child-Parent Security Act (CPSA), lifting the ban on compensated gestational surrogacy agreements. The CPSA transformed New York into one of the most—if not the most—surrogacy-friendly states. The CPSA codifies novel provisions unlike any other state’s laws: it creates an unalterable Surrogates’ Bill of Rights, it requires licensure for surrogacy agencies, it enumerates eligibility requirements for intended parents and surrogates, and it implements a consent-based standard to establish legal parenthood of surrogacy-born children.

A comprehensive analysis of state surrogacy legislation—namely New York, Michigan, and Wisconsin laws—underscores this Comment’s assertion that the CPSA creates the gold-standard approach to protect all parties in compensated gestational surrogacy agreements. Though Michigan and Wisconsin each have distinct surrogacy laws, the legislative effect is the same: both states’ laws exacerbate surrogate exploitation and preclude clear paths to establish legal parentage of surrogacy-born children. By contrast, the CPSA eliminates exploitation by codifying surrogates’ rights and streamlines the process to establish parentage by expanding the traditional definition of “parent.” The CPSA exemplifies model legislation for regulating and enforcing gestational surrogacy agreements; this New York State (of mind) approach should be adopted nationwide.

PDF link News of the School