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Full-Text Articles in Law

Secrets On The Texas-Mexico Border: Leiva Et Al. V. Ranch RescuE And Rodriguez Et Al. V. Ranch Rescue And The Right Of Undocumented Aliens To Bring Suit, Brooke H. Russ Mar 3004

Secrets On The Texas-Mexico Border: Leiva Et Al. V. Ranch RescuE And Rodriguez Et Al. V. Ranch Rescue And The Right Of Undocumented Aliens To Bring Suit, Brooke H. Russ

University of Miami Inter-American Law Review

No abstract provided.


Brock Turner: Sorting Through The Noise, Michael Vitiello Jan 2108

Brock Turner: Sorting Through The Noise, Michael Vitiello

McGeorge School of Law Scholarly Articles

PART I. THE MEDIA’S ROLE ............................................................................... 634

A. Six Months for Rape? ............................................................................ 634

B. Okay, But Sixth Months for Sexual Assault? ......................................... 638

C. But Vitiello, You are Cherry-Picking the Facts ..................................... 643

D. But Judge Persky Showed Bias, Racial or Otherwise ........................... 646

PART II: TAKING THE WRONG PATH TOWARDS RECALL ................................... 649

A. Existing Checks on Judicial Misconduct ............................................... 650

B. What’s Not to Like About Recall? ......................................................... 652

III. CONCLUDING THOUGHTS ............................................................................. 659


When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle Nov 2105

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle

Josh Eagle

Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility—reduced procedural requirements for administrative agency decision making and less rigid substantive standards—would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and ...


When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle Nov 2105

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle

Eric Biber

Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility—reduced procedural requirements for administrative agency decision making and less rigid substantive standards—would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and ...


All Things To All People, Part One, Peter J. Aschenbrenner Dec 2104

All Things To All People, Part One, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic has identified the fundamental predicate of Government I, which operated, more or less, under Constitution I, the Constutiton of the year One, as a disposable government. See The Standard Model at War, 17 OCL 350. if government asserts, affirmatively, that it is disposable, isn’t it also asserting that it can replicate its systems (= structures political society) at will? OCL builds on its assertion of political society as a three-goaled contrivance. See Why Do Political Societies Exist? 2 OCL 883. Isn’t such a government asserting the primacy of the needs of civil society? By offering to ...


Does The Second Amendment Protect Firearms Commerce?, David B. Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


How Do We Know When Political Societies Change?, Peter Aschenbrenner Jan 2104

How Do We Know When Political Societies Change?, Peter Aschenbrenner

Peter J. Aschenbrenner

Predicates, features, attributes and properties of a system are liable to change. How does the change get marked down? For this purpose what facet of a system should command our attention? Any system worth the name, Our Constitutional Logic argues, is aware of its own standing in civil society. OCL considers the issues raised.


Teschner V. Commissioner, 38 T.C. ... No. 101 (1962), Harry A. Haines Jan 2063

Teschner V. Commissioner, 38 T.C. ... No. 101 (1962), Harry A. Haines

Montana Law Review

Teschner v. Commissioner


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Reasonable Inference Of Authority To Control Hazardous Waste Disposal Results In Potential Liability: United States V. Aceto Agricultural Chemicals Corporation, Anita Letter Jan 2020

Reasonable Inference Of Authority To Control Hazardous Waste Disposal Results In Potential Liability: United States V. Aceto Agricultural Chemicals Corporation, Anita Letter

Natural Resources Journal

No abstract provided.


Workplace Bullying, Emotional Abuse And Harrassment In Fire Departments, John C. Griffith, Donna L. Roberts Apr 2019

Workplace Bullying, Emotional Abuse And Harrassment In Fire Departments, John C. Griffith, Donna L. Roberts

John Griffith

Firefighters are heroes who save lives and protect property. They are highly revered in societies all around the world and perform under the most stressful of conditions. Drawing on literature from the United States (USA), this chapter reviews the culture, demographics and changing mission of the fire service as a backdrop to workplace harassment and bullying issues. The fire service has unique organizational dynamics that can lead to harassment and bullying and, at the same time, are the critical reasons for working to eliminate intentional and unintentional unfair treatment of women and minorities. Recent literature and studies show that the ...


A. Harold Weber Writing Award, Notre Dame Law School Jan 2019

A. Harold Weber Writing Award, Notre Dame Law School

Student, Faculty, and Staff Awards

For Excellence in Legal Writing
What will it profit you to know all the law and the prophets if you lack the power to make these clear to others? – Lloyd T. Stryker


Unconstitutionally Illegitimate Discrimination, Brandon L. Garrett Jan 2019

Unconstitutionally Illegitimate Discrimination, Brandon L. Garrett

Faculty Scholarship

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is and should be enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as its stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that Constitutional doctrine, in its broad outlines ...


Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


(Un)Civil Denaturalization, Cassandra Burke Robertson, Irina D. Manta Jan 2019

(Un)Civil Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.


Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends ...


Social Networking Sites And Learning In International Relations: The Impact Of Platforms, Josh Pallas, Joakim Eidenfalk, Susan N. Engel Jan 2019

Social Networking Sites And Learning In International Relations: The Impact Of Platforms, Josh Pallas, Joakim Eidenfalk, Susan N. Engel

Faculty of Law, Humanities and the Arts - Papers

This article reports on a pilot undergraduate subject that incorporated a range of technology-enhanced learning approaches including online lectures, an online site for in and out of class communications, and strong encouragement for students to blog and use Twitter. This paper evaluates student engagement through the social networking sites (SNS), focusing on the online communication and content platform. We examine whether changing from an educationally oriented SNS platform to Facebook impacted on student engagement and feedback. To achieve this, both empirical data and qualitative student feedback were used.


Pipelines & Power-Lines: Building The Energy Transport Future, James W. Coleman Jan 2019

Pipelines & Power-Lines: Building The Energy Transport Future, James W. Coleman

Faculty Scholarship

The United States is in the middle of three profound energy revolutions — with booming production of renewable power, natural gas, and oil. The country is replacing coal power with renewable and natural gas power, reducing pollution while saving consumers money. And it has dramatically cut its oil imports while becoming, for the first time in half a century, an important oil exporter. The U.S. is on the cusp of an energy transformation that will provide immense economic and environmental benefits.

This new energy economy will require massive investment in energy transport — especially power lines to bring wind and solar ...


Energy Competition: From Commodity To Boutique & Back, James W. Coleman Jan 2019

Energy Competition: From Commodity To Boutique & Back, James W. Coleman

Faculty Scholarship

Energy products such as power, gas, and oil have long been the world’s premier commodities. Consumers demand that power and fuel are available when they want it and they prefer to pay less for it. Few know or care where their fuel or power comes from. So for years energy companies believed that efforts to differentiate their products were mostly ineffective — they were re-signed to compete on price in fierce global commodity markets. But in recent years, a new focus on regulating how energy commodities are produced has begun to splinter previously integrated energy markets, creating markets for boutique ...


Stylish Legal Citation, Alexa Z. Chew Jan 2019

Stylish Legal Citation, Alexa Z. Chew

Working Papers

Can legal citations be stylish? Is that even a thing? Yes, and this Article explains why and how. The usual approach to writing citations is as a separate, inferior part of the writing process, a perfunctory task that satisfies a convention but isn’t worth the attention that stylish writers spend on the “real” words in their documents. This Article argues that the usual approach is wrong. Instead, legal writers should strive to write stylish legal citations—citations that are fully integrated with the prose to convey information in a readable way to a legal audience.

Prominent legal style expert ...


Post-Crisis Economic And Social Policy: Some Thoughts On Structural Reforms 2.0., Philomila Tsoukala Jan 2019

Post-Crisis Economic And Social Policy: Some Thoughts On Structural Reforms 2.0., Philomila Tsoukala

Georgetown Law Faculty Publications and Other Works

Managing the euro crisis has been a process of institutional transformation for the EU. The European Semester has emerged as a powerful tool for economic policy coordination between the Member States. Beyond the new enforcement tools that the Semester affords the Commission and Council in case of non-compliance with country-specific recommendations, the management of the crisis has given the Commission experience in structural reforms. The Commission now regularly uses this experience in formulating its yearly country-specific recommendations to Member States. Far from a stalwart of untethered neoliberalism, the Commission has been fashioning itself as the manager with a human face ...


#Metoo Meets The Ministerial Exception: Sexual Harassment Claims By Clergy And The First Amendment's Religion Clauses, Ira C. Lupu, Robert W. Tuttle Jan 2019

#Metoo Meets The Ministerial Exception: Sexual Harassment Claims By Clergy And The First Amendment's Religion Clauses, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), the Supreme Court unanimously held that the Religion Clauses of the First Amendment create a “ministerial exception” to certain employment laws. The ministerial exception bars claims by clergy of wrongful dismissal by religious institutions. In the years before Hosanna-Tabor, however, courts had ruled in four prominent decisions – two state, and two federal – that suits by clergy for sexual harassment
based on a pervasively hostile environment could go forward, notwithstanding the ministerial exception. The rise of the #MeToo movement invites new and more detailed consideration of the tension between the policies behind sexual harassment law and the constitutional values protected by the ministerial exception.

Part I describes the contours of the ministerial exception, explains its constitutional provenance, and highlights the issues left open by Hosanna-Tabor. Part II addresses relevant developments in the law of sexual harassment, from the pioneering work of Professor Catherine MacKinnon, through and including the Supreme Court’s decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton.

Part III explores the leading judicial opinions on the relationship between sexual harassment law and the ministerial exception. These include the germinal state court decisions in Black v. Snyder (Minnesota) and McKelvey v. Pierce (New Jersey), and the path breaking 9th Circuit decisions in Bollard v. California Province of the Society of Jesus, and Elvig v. Calvin Presbyterian Church. In the law that has emerged, the ministerial exception bars adverse job action claims by clergy but does not bar hostile environment claims. That brief statement, however, masks the analytical complexities and constitutional concerns arising from the interplay between harassment law and the ministerial exception. The sources of tension include the affirmative defenses, requiring employer-created mechanisms for reasonable prevention and correction in sexual harassment cases, as well as matters of discovery and choice of remedies.

Part IV applies our theoretical and doctrinal insights to the major questions raised by this interplay. We explain why the ministerial exception is constitutionally sound, but nevertheless should not bar damage claims for pervasive, hostile environments based on sex. We offer a tort-based theory of harm as the underpinning of hostile environment doctrine; analyze the tenuous connection between religious belief and sexual harassment of clergy; and unpack constitutional questions of entanglement between church and state that may arise when religious institutions face hostile environment lawsuits. Our analysis should be of interest to scholars of employment law and the Religion Clauses, lawyers litigating such cases, and judges who must decide them.


The International Tax Environment And Simplification Of South African Tax Legislation: A Double-Edged Sword, Jinyan Li, Teresa Pidduck Jan 2019

The International Tax Environment And Simplification Of South African Tax Legislation: A Double-Edged Sword, Jinyan Li, Teresa Pidduck

Articles & Book Chapters

In this paper, we examine the relationship between the international tax environment and legislative complexity in South Africa’s international tax system. We suggest that the international tax environment is a double-edged sword. It causes complexity in South Africa’s tax legislation as it largely responds to the needs of OECD countries and produces tax rules to deal with ‘sophisticated’ tax problems and taxpayers (such as multinational enterprises). When such rules are transplanted into South Africa, they are typically more complex than local rules dealing with local taxpayers. On the other hand, the international tax environment offers ideas for ‘scientific ...


Carrying Little Sticks: Is There A ‘Deterrence Gap’ In Employment Standards Enforcement In Ontario, Canada?, Eric Tucker, Leah F. Vosko, Mark P. Thomas, Rebecca Casey, John Grundy, Andrea M. Noack Jan 2019

Carrying Little Sticks: Is There A ‘Deterrence Gap’ In Employment Standards Enforcement In Ontario, Canada?, Eric Tucker, Leah F. Vosko, Mark P. Thomas, Rebecca Casey, John Grundy, Andrea M. Noack

Articles & Book Chapters

This article assesses whether a deterrence gap exists in the enforcement of the Ontario Employment Standards Act (ESA), which sets minimum conditions of employment in areas such as minimum wage, overtime pay and leaves. Drawing on a unique administrative data set, the paper measures the use of deterrence in Ontario’s ESA enforcement regime against the role of deterrence within two influential models of enforcement: responsive regulation and strategic enforcement. The article finds that the use of deterrence is below its prescribed role in either model of enforcement. We conclude that there is a deterrence gap in Ontario.


California Divided: The Restrictions And Vulnerabilities In Implementing Sb 54, 26 Asian Am. L.J. ___ (Forthcoming In 2019)., Nicholas Pavlovic, Jerome Ma Dec 2018

California Divided: The Restrictions And Vulnerabilities In Implementing Sb 54, 26 Asian Am. L.J. ___ (Forthcoming In 2019)., Nicholas Pavlovic, Jerome Ma

Immigration Law & Policy Practicum Projects

United States Immigration and Customs Enforcement (“ICE”) significantly relies on state and local personnel and resources to carry out enforcement of immigration law. California Senate Bill 54 (“SB 54”), the “California Values Act,” is California’s attempt to disentangle local law enforcement from federal civil immigration enforcement.

This Article offers an in-depth evaluation of SB 54’s mechanics; identifies vulnerabilities that exist despite SB 54 and potential means for law enforcement agencies (“LEAs”) to combat these issues; and comments on how local individual LEAs and the California Department of Corrections and Rehabilitation have chosen to exercise the discretion to comply ...


Plaintiff Personal Jurisdiction And Venue Transfer, Scott Dodson Dec 2018

Plaintiff Personal Jurisdiction And Venue Transfer, Scott Dodson

Scott Dodson

Personal jurisdiction usually focuses on the rights of the defendant. That is because a plaintiff implicitly consents to personal jurisdiction in the court where the plaintiff chooses to file. But what if the defendant seeks to transfer venue to a court in a state in which the plaintiff has no contacts and never consented to personal jurisdiction? Lower courts operate on the assumption that, in both ordinary venue-transfer cases under 28 U.S.C. § 1404(a) and multidistrict-litigation cases under § 1407(a), personal-jurisdiction concerns for plaintiffs simply do not apply. I contest that assumption. Neither statute expands the statutory authorization ...


How The U.S. Supreme Court Deemed The Grand Bargain Adequate Without Defining Adequacy.Pdf, Michael C. Duff Dec 2018

How The U.S. Supreme Court Deemed The Grand Bargain Adequate Without Defining Adequacy.Pdf, Michael C. Duff

Michael C Duff

During the second and third decades of the twentieth century, the U. S. Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation and the National Association of Manufacturers, of European workers’ compensation systems during the first decade of the twentieth century. Some of those systems had been in existence since the 1870s and 1880s, and many employers preferred them to newly-emerging American employer liability statutes that retained ...


Taxed Out: Illegal Property Tax Assessments And The Epidemic Of Tax Foreclosures In Detroit (Forthcoming 2019), Bernadette Atuahene, Christopher Berry Dec 2018

Taxed Out: Illegal Property Tax Assessments And The Epidemic Of Tax Foreclosures In Detroit (Forthcoming 2019), Bernadette Atuahene, Christopher Berry

Bernadette Atuahene

No abstract provided.


Grading Patent Remedies: Dependent Claims And Relative Infringement, Daniel Harris Brean Dec 2018

Grading Patent Remedies: Dependent Claims And Relative Infringement, Daniel Harris Brean

Daniel Harris Brean

Patents define an inventor’s exclusive rights by reciting essential aspects of the invention in sentences called claims.  The claims are drafted in varying degrees of technical specificity, such that each claim is legally distinct—some may be valid or infringed while others are not.  Most commonly, this variation is accomplished by using a combination of “independent” and “dependent” claims. Independent claims stand alone, while dependent claims incorporate by reference all the features recited in the independent claims but go on to add further features or details.  The result is a range of potential infringing activity that triggers liability, from ...


Physician-Assisted Death: A Selected Annotated Bibliography, Alyssa Thurston Dec 2018

Physician-Assisted Death: A Selected Annotated Bibliography, Alyssa Thurston

Alyssa Thurston

This bibliography compiles selected secondary and primary materials on physician-assisted death. Secondary sources include books, book chapters, law review and law journal articles, bibliographies, websites, and current awareness materials, and are mostly limited to publication dates of 2007-2018. Most of the included materials focus on the United States, but a number of sources also discuss other countries and one section is devoted to international experiences with physician-assisted death.


Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 6.Pdf, Alec Stone Sweet Dec 2018

Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 6.Pdf, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.