Forthcoming Articles

Charles W. “Rocky” Rhodes, Over the Threshold of Constitutional Adjudicative Retroactivity

Professor Rhodes’s article addresses potential retroactivity issues facing same-sex marriages. After some experimenting, the Supreme Court pronounced that its constitutional decisions overruling prior precedents or applying new legal rules govern all pending and future adjudicative proceedings on direct review, even if the underlying operative events occurred under a different legal framework. But, the application of Obergefell v. Hodges to retroactively backdate same-sex relationships into ceremonial or common law marriages in certain contexts has the potential to disrupt settled understandings and expectations, such as in property transactions with third parties or in divorce actions predicated on the parties’ cohabitation beginning and ending before legal recognition was afforded to their union. Building on the insights of prior scholars, this Article constructs a more comprehensive typology of the institutional, remedial, and procedural doctrines that serve to protect reliance, fairness, and efficiency interests in a regime of retroactive application of judicial decisions.

 
Catherine M. Christopher, The Bridging Model: Exploring the Roles of Trust and Enforcement in Banking, Bitcoin, and the Blockchain
 
This article addresses the issue that bitcoin has long been touted as a currency and a payment system that relies on cryptography and mathematics rather than trust. But, is Bitcoin really trustless? And if so, would that be a good thing? Professor Christopher proposes a new conceptualization of the role of trust in business and contracting: the bridging model, which allows for a more nuanced understanding of the interplay between enforcement and trust in contract formation. This article undertakes a critical deconstruction of Bitcoin and the blockchain, their themes of democracy and transparency, and the idea that they are trustless. The bridging model is applied first to traditional banking, to illustrate and analyze the enforcement mechanisms underpinning the U.S. dollar as currency and the banking system as a whole, and demonstrate that the enforcement mechanisms (government backing and regulation) are not as robust as generally believed. The bridging model is then applied to Bitcoin, to show not only that the system requires more trust than is generally understood, but also that in both currency and payment systems, some trust might actually be a good thing.
 

Marc J. Randazza, The Freedom to Film Pornography

Broadly, Mr. Randazza’s article addresses misconceptions of commercial pornography, and the overarching question of whether it is legal to film pornography throughout the United States. Both California and New Hampshire Supreme Courts have held that pornography is not prostitution, but the question remains murky for other states. This article breaks that analysis down by first asking whether commercial pornography fits the definition of “prostitution” under state law. If it does, then the question is whether the state’s free speech clause, or the First Amendment would tolerate prosecution of a commercial pornographer under that law. Randazza claims one analysis answers both questions, concluding that pornography does not fit the definition of prostitution, and even if it did, it could not be constitutionally prohibited as such.

 

Rebecca Flanagan, Pre-Competencies as Precursors: Enhanced Admissions Criteria in the Age of Seat-Deposit Anxiety

Professor Flanagan states that law schools have begun only recently to admit that law student preparedness is a problem. It does not affect all law schools in the same measure. However, common factors such as falling bar pass rates and continuing negative press coverage of law schools have galvanized law school administrations to admit that law student under preparedness is a problem that is not going away. The article proposes the solution of adopting pre-competencies in admissions, looking to the medical school model for development and implementation. Pre-competencies would serve as precursors to legal learning; they are the skills and knowledge that provide a foundation for legal analysis, reasoning, and professional development. Although the idea of an additional admissions requirement would strike fear into the hearts of enrollment administrators still struggling to fill seats, adopting more transparent and thorough admissions requirements could potentially enlarge and enrich the applicant pool. 

 

Martin H. Malin, The Three Phases of the Supreme Court’s Arbitration Jurisprudence: Empowering the Already-Empowered

Professor Malin addresses states that arbitration agreements coupled with class-action waivers and other onerous provisions have become common in employment, consumer, and other transactions.  The Supreme Court’s decisions enforcing such agreements have encouraged their use.  Scholars have largely critiqued the Court’s decisions. This article finds that the Court’s arbitration jurisprudence has not been so monolithic.  Rather it has evolved through three phases. In Phase I, the Court overruled older case law and held that pre-dispute agreements to arbitrate statutory claims were enforceable pursuant to the Federal Arbitration Act (FAA).  Phase II substantially undermined the effective vindication doctrine, but state contract law doctrines used to police overreaching adhesive contracts continued to support the vision of arbitration as an accessible forum.  In Phase III, however, the Court has held that the FAA mandates enforcement of class-action waivers, premising its holding on an FAA policy of enforcing arbitration agreements according to their terms. The article demonstrates how the latest phase of the Court’s arbitration jurisprudence is obliterating state contract-law doctrines that policed overreaching by dominant parties, elevating the interests of the parties imposing the terms, and enshrining the imposing party’s interests in the FAA and the Supremacy Clause of the Constitution. 

 

Christopher C. French, Insuring Landslides: America’s Uninsured Natural Catastrophes

This article states that landslides occur in all fifty states and cause approximately $3.5 billion in property damage annually. Yet, in America, “all risk” homeowners and commercial property insurance policies exclude coverage for landslides, and there is only limited availability of expensive, stand-alone “named peril” insurance policies that cover landslide losses. Consequently, the affected homeowners are often left financially devastated homeless with a mortgage to pay on an unsaleable piece of property.  This Article analyzes the problem of insuring landslide losses in America and proposes ways to help solve it. It describes both historical and recent landslide events, discusses the insurance industry’s response to the problem of insuring landslides, and considers how other countries such as Belgium, France, New Zealand, Norway, Romania, Switzerland, Iceland and Australia address the issue of insuring landslide losses. It concludes by offering two ways to transform the insurance market for landslide losses in America.