Law Faculty Publications (public)

Penal Incapacitation: a Situationist Critique

Binder, Guyora; Notterman, Ben (American Criminal Law Review, 2017)

Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying ...

Justice Brennan and the Foundations of Human Rights Federalism

Gardner, James A. (Ohio State Law Journal, 2016)

In a well-known and widely cited 1977 law review article, Justice William J. Brennan called on state courts to "step into the breach" and use their authority as independent interpreters of state constitutions to continue ...

Defending and Developing Critical Feminist Theory as Law Leans Rightward

McCluskey, Martha T. (Routledge, 2011)

As part of an anthology marking twenty-five years of the Feminism and Legal Theory Project, this essay explores how the rise feminism in law has been accompanied by the simultaneous rise in rightward leaning legal theory ...

Constitutionalizing Class Inequality: Due Process in State Farm

McCluskey, Martha T. (Buffalo L. Rev., 2008)

This essay takes a step toward building a story of economic class in U.S. constitutional law, as part of a special essay issue of the Buffalo Law Review developed from a series of workshops titled ClassCrits: Toward a ...

The Myth of 'Conquered Provinces': Probing the Extent of the Voting Rights Act's Intrusion on State and Local Autonomy

Halberstam, Michael (Hastings L.J., 2011)

This Article advances the controversial thesis that the preclearance provision under section 5 of the Voting Rights Act (VRA) is not as intrusive as is generally assumed. It shows that the architecture of the preclearance ...

The American Advantage in Civil Procedure? An Autopsy of the Deutsche Telekom Litigation

Halberstam, Michael (Connecticut L. Rev., 2015)

This article examines the influence of civil procedure on the legal framework that supports securities markets in the U.S. and in Germany, two very different legal systems. It does so by way of comparing parallel shareholder ...

Process Failure and Transparency Reform in Local Redistricting

Halberstam, Michael (Election L.J., 2012)

Redistricting reform during this cycle has pushed for greater transparency, more public participation, the removal of redistricting from the hands of legislatures, and the design of more legitimate institutions and decision ...

Litigation Discovery and Corporate Governance: The Missing Story About the 'Genius of American Corporate Law'

Halberstam, Michael (Emory L.J., 2014)

Strikingly absent from the entire corporate governance and corporate litigation debate is a unique feature of American civil procedure that deserves special attention: the modern civil discovery regime. This Article attempts ...

Knowledge Inputs, Legal Institutions and Firm Structure: Towards a Knowledge Based Theory of the Firm

Halberstam, Michael (Northwestern L. Rev., 2007)

Corporate scholars rely on traditional theories of the firm to analyze corporate organization and corporate contracting. However, traditional theories of the firm, as the authors argue, are incomplete in that they neglect ...

Globalizing Trust? Transferring Anglo-American Minority Shareholder Protections to Civil Law Germany

Halberstam, Michael (SSRN, 2008)

This paper critically examines the conventional view that the lack of fiduciary duty protections for corporate shareholders in civil law systems explains crucial differences in corporate structure and finance. It questions ...

Business Lobbying as an Informational Public Good: Can Tax Deductions for Lobbying Expenses Promote Transparency?

Halberstam, Michael (Election L.J., 2014)

The view that “lobbying is essentially an informational activity” has persistently served the suggestion that lobbying provides a public good by educating legislators about policy and the consequences of legislation. In ...

Beyond Transparency: Rethinking Election Reform from an Open Government Perspective

Halberstam, Michael (Seattle U. L. Rev., 2015)

During the past decade, “transparency” has become a focus of democratic governance. Open government and right to know regimes have been around at least since the 1970s. They include measures, like open meeting laws, campaign ...

Time: An Empirical Analysis of Law Student Time Management Deficiencies

Bartholomew, Christine P. (Cincinnati L. Rev., 2013)

This Article begins the much needed research on law students’ time famine. Time management complaints begin early in students’ legal education and generally go unresolved. As a result, practicing attorneys identify time ...

Saving Charitable Settlements

Bartholomew, Christine P. (Fordham L. Rev., 2015)

This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning ...

Redefining Prey and Predator in Class Actions

Bartholomew, Christine P. (Brooklyn L. Rev., 2015)

Aggregate litigation’s potential as a tool for the disempowered is not being realized. Class actions have come under serious attack in the last decade as critics have successfully worked to change traditional notions of ...

Death by Daubert: The Continued Attack on Private Antitrust

Bartholomew, Christine P. (Cardozo Law Revew, 2014)

In 2011, with five words of dicta, the Supreme Court opened Pandora’s box for private antitrust enforcement. By suggesting trial courts must evaluate the admissibility of expert testimony at class certification, the Court ...

Sexual Epistemology and Bisexual Exclusion: A Response to Russell Robinson's "Masculinity as Prison: Race, Sexual Identity, and Incarceration"

Boucai, Michael (California Law Review Circuit, 2011)

In an effort to curb sexual assault behind bars, the Los Angeles County Jail currently houses inmates deemed homosexual and transgender in a special unit called “K6G.” Professor Russell Robinson’s Article, "Masculinity as ...