Digital Commons Network^™

Lawclinics@50: 50 Years Of Clinical Legal Education At Georgia Law, Alex Scherr

Scholarly Works

Director of the Veterans Legal Clinic Alex Scherr penned this blog post announcing the LawClinics@50 celebration plans as well as the collaboration with the Georgia Law Review Online platform and sharing the first in a series of articles related to the fiftieth anniversary of legal clinical education at the School of Law.

50 Years Of Clinical And Experiential Learning At Georgia Law, Eleanor Lanier

Scholarly Works

This note serves as an introduction of the partnership between the Georgia Law Review Online Platform and the School of Law's Clinical Programs and Experiential Learning faculty to celebrate the fiftieth anniversary of clinical legal education at the University of Georgia's law school. It provides a brief history of the program beginnings in 1967 and discusses the program expansions to present which reached a total of 18 different options when the note was published.

The Politics Of Selecting Chevron Deference, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

Scholarly Works

In this article, we examine an important threshold question in judicial behavior and administrative law: When do federal circuit courts decide to use the Chevron deference framework and when do they select a framework that is less deferential to the administrative agency's statutory interpretation? The question is important because the purpose of Chevron deference is to give agencies-not judges-policy-making space within statutory interpretation. We expect, nonetheless, that whether to invoke the Chevron framework is largely driven by political dynamics, with judges adopting a less deferential standard when their political preferences do not align with the agency's decision. To provide insight, …

Making Existing Homes Greener, James Smith

Scholarly Works

The environmental movement that has taken hold in the last half-century includes the objective of reducing the adverse impacts buildings have on the natural environment. In the United States, this has manifested itself in changes in the design and construction of buildings. Modern buildings-those built recently-perform better with respect to some, but not all, environmental criteria than older buildings. The most prominent characteristic is the efficiency of energy use for heating, cooling, and appliances.

Even when the combination of building codes and voluntary standards work effectively to promote the construction of new green homes, they cannot provide a solution with …

Unintended Consequences: The Link Between Judge Friendly's Texas Gulf Sulphur Concurrence And Recent Supreme Court Decisions Misconstruing Rule 10b-5, Margaret V. Sachs

Scholarly Works

In his Texas Gulf Sulphur concurrence, Judge Henry J. Friendly coun- seled the federal district courts concerning the numerous pending satellite class actions that had been filed under Section 10(b) of the Securities Ex- change Act and Rule 10b-5. In the course of so doing, he argued forcefully that private Rule 10b-5 litigation should be curtailed. Finding his argument convincing, the Supreme Court issued four major decisions restricting the Rule between 1975 and 1994, while nonetheless expanding it in Basic Inc. v. Levinson. Congress responded by blessing both aspects of the Court’s jurisprudence – imposing its own set of …

Qualified Immunity After Ziglar V. Abbasi: The Case For A Categorical Approach, Michael Wells

Scholarly Works

Qualified immunity protects officers from liability for damages unless they have violated clearly established rights, on the ground that it would be unfair and counterproductive to impose liability without notice of wrongdoing. In recent years, however, the Supreme Court has increasingly applied the doctrine to cases in which it serves little or no legitimate purpose. In Ziglar v. Abbasi, for example, the rights were clearly established but the Court held that the officers were immune due to lack of clarity on other issues in the case. Because holdings like Ziglar undermine the vindication of constitutional rights and the deterrence of …

Information Literacy In A Fake/False News World: An Overview Of The Characteristics Of Fake News And Its Historical Development, Carol A. Watson

Scholarly Works

Prior to designing strategies and information literacy programs to combat the dissemination and proliferation of fake/false news, it is instructive for legal information professionals to understand the characteristics of fake news and the context of its historical development.

Due Process Of War, Nathan Chapman

Scholarly Works

The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords …

The Difficulty Of Discerning The Effect Of Neuroscience: A Peer Commentary Of Shen Et Al. 2018, John B. Meixner Jr.

Scholarly Works

Neuroscience is often considered to have a certain ‘seductive allure’.1 Its mystique should not besurprising. Seeking to understand the network of nearly 100 billion neurons that make up the human brain, neuroscience examines some of the most difficult questions imaginable. And yet, it is also a deeply personal discipline—questions like, ‘How do we create memories?’ and ‘What causes emotions?’ touch on experiences shared by all people.

Does the mystique of neuroscience cause individuals to ascribe undue weight to neuroscientific findings, or assume that neuroimages indicate research quality? Over the past decade, a literature has sprung up seeking to answer questions …

All For Copyright Stand Up And Holler! Three Cheers For Star Athletica And The U.S. Supreme Court’S Perceived And Imagined Separately Test, David E. Shipley

Scholarly Works

In March 2017 the United States Supreme Court held in Star Athletica L.L.C. v. Varsity Brands Inc. that an artistic feature incorporated into the design of a useful article could be protected by copyright when that feature could be perceived as a two- or three-dimensional work of art separate from the useful article, and imagined separately as a protectable pictorial, graphic, or sculptural work. This two-part test replaces a variety of tests which courts and commentators proposed and applied during the last 40 years. The Star Athletica decision is predicted to be a boon to the fashion and apparel industry, …

A Transformative Use Taxonomy: Making Sense Of The Transformative Use Standard, David E. Shipley

Scholarly Works

The transformative use standard, which is an important aspect of copyright law’s fair use doctrine, has been confusing and uncertain since 1994 when it was first introduced by the United States Supreme Court in Campbell v. Acuff-Rose Music. To try to make some sense of this standard, this article extends the work of several scholars who have argued that the massive amount of fair use case law generally divides itself into categories, patterns or policy clusters which have their own internal coherence. This article contends that these observations apply as well to transformative use decisions more particularly, which similarly fit …

Submarine Statutes, Christian Turner

Scholarly Works

I define as “submarine statutes” a category of statutes that affect the meaning of later-passed statutes. A submarine statute calls for courts to apply future statutes differently than they would have otherwise. An example is the Religious Freedom Restoration Act, which requires, in some circumstances, exemptions for religious exercise from otherwise compulsory statutory requirements. A new statute can only be understood if its interaction with RFRA is also understood. While scholars have debated the constitutionality of some statutes like these, mainly analyzing the legitimacy of their entrenching quality, I argue that submarine statutes carry an overlooked cost. Namely, they add …

How Dreamland Colored My Summer Vacation And Thinking About The Opioid Epidemic, Elizabeth Leonard

Scholarly Works

Book Review of Dreamland: The True Tale of America’s Opiate Epidemic by Sam Quinones,(2018).

Administrative Law's Political Dynamics, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

Scholarly Works

Over thirty years ago, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. This Chevron deference doctrine was based in part on the Court’s desire to temper administrative law’s political dynamics by vesting federal agencies, not courts, with primary authority to make policy judgments about ambiguous laws Congress charged the agencies to administer. Despite this express objective, scholars such as Frank Cross, Emerson Tiller, and Cass Sunstein have empirically documented how politics influence circuit court review of agency statutory …

Judicial Review Of Disproportionate (Or Retaliatory) Deportation, Jason A. Cade

Scholarly Works

This Article focuses attention on two recent and notable federal court opinions considering challenges to Trump administration deportation decisions. While finding no statutory bar to the noncitizens’ detention and deportation in these cases, the court in each instance paused to highlight the injustice of the removal decisions. This Article places the opinions in the context of emerging immigration enforcement trends, which reflect a growing indifference to disproportionate treatment as well as enforcement actions founded on retaliation for the exercise of constitutional rights. Judicial decisions like the ones considered here serve vital functions in the cause of immigration law reform even …

Neil Gorsuch And The Ginsburg Rules, Lori A. Ringhand, Paul M. Collings Jr.

Scholarly Works

Supreme Court nominees testifying before the Senate Judiciary Committee frequently invoke the so-called “Ginsburg Rule” to justify not answering questions posed to them. According to this “rule,” nominees during their testimony must avoid signaling their preferences about previously decided Supreme Court cases or constitutional issues. Using empirical data on every question asked and answered at every hearing from 1939–2017, we explore this “rule,” and its attribution to Justice Ruth Bader Ginsburg. We demonstrate three things. First, the Ginsburg Rule is poorly named, given that the practice of claiming a privilege to not respond to certain types of questions predates the …

Corporate Governance Reform In Post-Crisis Financial Firms: Two Fundamental Tensions, Christopher Bruner

Scholarly Works

The manner in which financial firms are governed directly impacts the stability and sustainability of both the financial sector and the "real" economy, as the financial crisis and associated regulatory reform efforts have tragically demonstrated. However, two fundamental tensions continue to complicate efforts to reform corporate governance in post-crisis financial firms. The first relates to reliance on increased equity capital as a buffer against shocks and a means of limiting leverage. The tension here arises from the fact that no corporate constituency desires risk more than equity does, and that risk preference only tends to be stronger in banks, and …

Multilateralism’S Life-Cycle, Harlan G. Cohen

Scholarly Works

Does multilateralism have a life-cycle? Perhaps paradoxically, this essay suggests that current pressures on multilateralism and multilateral institutions, including threatened withdrawals by the United Kingdom from the European Union, the United States from the Paris climate change agreement, South Africa, Burundi, and Gambia from the International Criminal Court, and others, may be natural symptoms of those institutions’ relative success. Successful multilateralism and multilateral institutions, this essay argues, has four intertwined effects, which together, make continued multilateralism more difficult: (1) the wider dispersion of wealth or power among members, (2) the decreasing value for members of issue linkages, (3) changing assessment …

Towards A Jurisprudence (And Pedagogy) Of Access: A Reflection On 25 Years Of The Public Interest Practicum, Alex Scherr, Elizabeth M. Grant, Graham Goldberg

Scholarly Works

The Public Interest Practicum (PIP), a course at the University of Georgia School of Law, fosters awareness among law students of the demand for access to justice. For more than 25 years, PIP has served many purposes: to explore a street level jurisprudence; to challenge students’ professional identities; to generate new models of clinical legal education; to inculcate the habit of public service; and to help individuals with legal problems. Through its many iterations, PIP has consistently exposed future lawyers to ways of helping those in need. This reflection traces the history of PIP as a course, contextualizes it within …

Due Process Of War, Nathan Chapman

Scholarly Works

The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords …

Models Of Law, Christian Turner

Scholarly Works

The more we examine what is behind our most difficult legal questions, the more puzzling it can seem that we continue both to disagree strongly and, yet, to cooperate. If law is a reasoned enterprise, how is it that we are neither torn apart nor homogenized by our long social practice of it? I resolve this puzzle, and arrive at a richer understanding of law, using the idea of modeling familiar from the natural sciences and mathematics. I show (a) that theorists can model legal systems as abstract systems of institutions, information flows, and institutional processing or reasoning and (b) …

Postal Banking's Public Benefits, Mehrsa Baradaran

Scholarly Works

The basic idea of postal banking is to have a public bank that would offer a wide range of transaction services, including deposit-taking and small lending. Post offices could offer these services at a much lower cost than banks and the fringe banking industry because (1) they can use natural economies of scale and scope to lower the costs of the products; (2) their existing infrastructure significantly reduces overhead costs, and (3) they do not have profit-demanding shareholders and would be able to offer products at cost.

The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson

Scholarly Works

This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 than …

Athens Access To Justice Initiative: Judicial Leadership + Bar Support + Local Resources = Powerful Synergy, Eleanor Lanier

Scholarly Works

No abstract provided.

International Lobbying Law, Melissa J. Durkee

Scholarly Works

An idiosyncratic array of international rules allows nonstate actors to gain special access to international officials and lawmakers. Historically, many of these groups were public-interest associations like Amnesty International. For this reason, the access rules have been celebrated as a way to democratize international organizations, enhancing their legitimacy and that of the rules they produce. But a focus on the classic public-law virtues of democracy and legitimacy produces a theory at odds with the facts: The international rules rules also offer access to industry and trade associations like the World Coal Association, whose principal purpose is to lobby for their …

Qualified Immunity And Statutory Interpretation: A Response To William Baude, Hillel Y. Levin, Michael Wells

Scholarly Works

In his article, Is Qualified Immunity Unlawful?, Professor Baude argues that the doctrine of qualified immunity under section 1983 is unlawful because the doctrine did not exist at the time section 1983 was enacted. We disagree. Section 1983 is a common law statute. Consequently, its meaning and application was not fixed at the time of original passage. In this article, we explain why.

Although we are sympathetic to Professor Baude’s implicit policy-based critique of the doctrine of qualified immunity, we believe his analysis is flawed. The better and more likely way to improve the doctrine is through the common law …

Admissibility And Constitutional Issues Of The Concealed Information Test In American Courts: An Update, John B. Meixner Jr.

Scholarly Works

The use of physiological tools to detect incidentally acquired concealed knowledge about crime-related information has been a controversial and well-researched topic among scholars for well over 100 years. This chapter focuses on potential legal hurdles for courtroom use of concealed information tests, including admissibility issues and constitutional issues under the Fourth and Fifth Amendments to the US Constitution.

Life In The Sweatbox, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Scholarly Works

The time before a person files bankruptcy is sometimes called the financial “sweatbox.” Using original data from the Consumer Bankruptcy Project, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. We also describe the depletion of wealth and well-being that defines people’s time in the sweatbox. For those people who struggle for more than two years before filing bankruptcy — the “long strugglers” — their time in the sweatbox is particularly damaging. During their years in the sweatbox, long strugglers deal with persistent collection calls, go without healthcare, food, and …

Jevic's Promise: Procedural Justice In Chapter 11, Pamela Foohey

Scholarly Works

In this Response to Jonathan Lipson's article, The Secret Life of Priority: Corporate Reorganization After Jevic, 93 Wash. L. Rev. 631 (2018)), I focus on Czyzewski v. Jevic Holding Corp.'s implications for procedural justice and corporate reorganization. In his article, Lipson explicitly links the chapter 11 process with the Bankruptcy Code’s substantive rules about priority, crafting a forceful argument about what procedural values the U.S. Supreme Court sought to uphold when it penned Jevic. In doing so, Lipson expounds on a broader truth about the co-option of corporate reorganization’s process in the name of value preservation. Procedural justice teaches that …

Access To Consumer Bankruptcy, Pamela Foohey

Scholarly Works

This essay examines the state of access to justice in the context of consumer bankruptcy from two vantage points: (1) how people decide that their money problems are legal problems addressable by filing bankruptcy; and (2) the barriers people face in using the consumer bankruptcy system. To shed new light on how people decide to use bankruptcy to address their financial troubles, I analyze a sample of narratives accompanying consumers' complaints about financial products and services submitted to the Consumer Financial Protection Bureau. I also chronicle the evolution of research regarding consumer bankruptcy’s “local legal culture,” systemic racial bias, and …