Law Commons^™

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

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

Josh Eagle

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

Eric Biber

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

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

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

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

Natural Resources Journal

No abstract provided.

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

John Griffith

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

#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.

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

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

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 ...

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.

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

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

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

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 ...

State Adverse Health Incident Reporting Systems In The United States, In Global Patient Safety: Law, Policy And Practice, Barbara A. Noah

Faculty Scholarship

In the United States, the multiple overlapping adverse event reporting systems for patient safety reflect the country’s fragmented, inefficient, and inequitable health care finance and delivery system. This Chapter provides a brief description of the United States' health care environment and its impact on the frequency of adverse events. It includes an overview and the progress in state-by-state adverse event reporting systems and a discussion of the role of the Joint Commission's "Speak Up" initiative. The Author concludes that, in spite of the system's gaps and failings, the efforts of many physicians, health care institutions, regulatory bodies ...

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

Scott Dodson

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

Michael C Duff

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

Daniel Harris Brean

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

Alyssa Thurston

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

Alec Stone Sweet

No abstract provided.

Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 2.Pdf, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.