Law Commons^™

The Mosaic Theory In Fourth Amendment Jurisprudence: The Last Bastion Of Privacy In A Camera-Surveilled World, Auggie Alvarado

St. Mary's Law Journal

No abstract provided.

How Close Is Close Enough: A Step-By-Step Analysis To Resolve The Circuit Split Created By Misunderstanding The Spokeo Ruling, Cason Shipp

St. Mary's Law Journal

No abstract provided.

Cyberspace And The Jus Ad Bellum: The State Of Play, Michael N. Schmitt, Anusha S. Pakkam

International Law Studies

This article examines how States are interpreting one aspect of the international law governing cyber activities, the jus ad bellum. The article focuses on two issues: (1) the prohibition on the use of force found in Article 2(4) of the UN Charter, and (2) the right of self-defense in Article 51. The critical unsettled question regarding the first issue is the threshold at which a hostile cyber operation can be characterized as a “use of force” subject to the prohibition of Article 2(4). Concerning the second issue, a number of unresolved questions plague the application of the right of …

Defiance, Lackland H. Bloom Jr

St. Mary's Law Journal

No abstract provided.

A Model Of Evidence-Based Practice For Law Schools To Improve System Outcomes, Chance Meyer

St. Mary's Law Journal

No abstract provided.

The Politics And Consequences Of State Secession, Olawale Olumodimu

St. Mary's Law Journal

This Article argues that the non-express prohibition of state secession in the Nigerian Constitution does not automatically allow component states to break away unilaterally. It appears the framers of the Constitution wanted to ensure political continuity and national unity rather than allow for Nigeria’s disintegration. Beyond Nigeria, international law only allows unilateral secession in the context of decolonization and the people’s right to self-determination.

Nigeria has a responsibility to provide self-determination to its citizens; however, secession is not a legal channel to seek self-determination in the absence of targeted, widespread, or systemic criminal acts committed by or on behalf of …

Charge The Cockpit Or Die: An Anatomy Of Fear-Driven Political Rhetoric In American Conservatism, Daniel Hostetter

Senior Honors Theses

Subthreshold negative emotions have superseded conscious reason as the initial and strongest motivators of political behavior. Political neuroscience uses the concepts of negativity bias and terror management theory to explore why fear-driven rhetoric plays such an outsized role in determining human political actions. These mechanisms of human anthropology are explored by competing explanations from biblical and evolutionary scholars who attempt to understand their contribution to human vulnerabilities to fear. When these mechanisms are observed in fear-driven political rhetoric, three common characteristics emerge: exaggerated threat, tribal combat, and religious apocalypse, which provide a new framework for explaining how modern populist leaders …

Foiled Foia: The Excessive Exemption, Edward L. Wilkinson Jr.

St. Mary's Law Journal

The Freedom of Information Act permits requestors access to government information unless an exemption applies. Exemption (b)(3)(B) permits the government to protect information if there is a specific reference to a FOIA exemption in the withholding statute. Congress created this new requirement in 2009 in order to remove decision making power from administrative agencies and courts and reserve the power to disclose or withhold information with the legislative branch. This exemption poses problems to courts when there is a clear intent to protect information in the withholding statute without a clear reference to Exemption (b)(3)(B). As a result, courts have …

National Pork Producers Council V. Ross And The Dormant Commerce Clause, Jeffrey C. Tuomala

Liberty University Law Review

National Pork Producers Council v. Ross is a dormant Commerce Clause case in which petitioners challenged a California law that restricts the instate sale of pork that comes from breeding pigs “confined in a cruel manner.” Because California comprises 13% of the national pork market, and because most pork consumed in California is raised in other states, the cost of compliance with the law falls largely on out-of-state producers. Pork Producers claimed that the California law placed an excessively heavy burden on interstate commerce, but they did not claim that California targeted out-of-state producers. The Court of Appeals dismissed the …

Groff V. Dejoy And Title Vii's "Undue Hardship" Standard, Natalie C. Rhoads

Liberty University Law Review

In June 2023, the Supreme Court issued its decision in Groff v. DeJoy, where it clarified the standard governing an employer’s obligation to make a religious accommodation under Title VII. For over 50 years, lower courts had been using the Court’s language in Trans World Airlines, Inc. v. Hardison, that a religious accommodation constitutes an “undue hardship” under Title VII if it would cause the employer to incur “more than a de minimis cost.” This Article explains the flawed Hardison standard and analyzes the Court’s decision in Groff, including the Court’s statement that an “undue hardship” under …

Reassessing Tyler V. Hennepin County: A Critical Examination Of The Supreme Court’S Federalist Overreach In Discovering A Constitutionally Protected Property Right In A Takings Case Involving A Sovereign State’S Real Property Tax-Foreclosure Sale, Tory L. Lucas

Liberty University Law Review

This Article features the case of a real property owner who disclaimed all her burdens under state law for over six years yet later claimed substantial benefits under federal law. Because this distorts any rational burden-benefit analysis, this Article scrutinizes the U.S. Supreme Court’s groundbreaking decision in Tyler v. Hennepin County that radically reinterpreted the Takings Clause of the U.S. Constitution. In Tyler, a unanimous Supreme Court departed from the consensus among the lower federal courts and discovered a novel property right—the constitutional entitlement to surplus proceeds from a sovereign State’s real property tax-foreclosure sale. Despite Minnesota’s clear and …

303 Creative And The Question Of Governmental Authority To Dictate Commercial Transactions, Rena M. Lindevaldsen

Liberty University Law Review

In June 2023, the nation awaited a decision from the United States Supreme Court in 303 Creative LLC v. Elenis. At its core, the case presented the question of whether free speech rights outweighed a state’s interest in prohibiting discrimination through its public accommodation laws. If the Supreme Court had ruled against 303 Creative and compelled its owner, Lorie Smith, to design a website for same-sex weddings despite Ms. Smith’s sincerely-held religious beliefs that such marriages are not biblical, free speech rights in America would have been at the mercy of what the majority deemed acceptable speech.

Although the …

Biden V. Nebraska: Student Loan Debt Forgiveness And The Dangers Of The Administrative State, Rodney D. Chrisman

Liberty University Law Review

In April of 2020, then-candidate Joe Biden promised that, if he were elected to the Presidency, he would “[i]mmediately cancel a minimum of $10,000 of student debt per person, as proposed by Senator Warren in the midst of the coronavirus crisis.” Once in office, the Biden administration found that Congress would not pass the type of extensive student loan debt forgiveness that the President wanted. Accordingly, President Biden did what has become all too common in recent presidential administrations— he acted by executive fiat through an administrative agency to accomplish a policy goal that he could not get passed through …

Climate Change And Implications For National Security And International Law In The Arctic

Texas A&M Journal of Property Law

Climate change threatens national security due to the potential it carries to destabilize fragile regions, damage military installations, and exacerbate existing tensions between countries. While these effects will be global, the Arctic region represents a microcosm of a future where climate change affects the strategic priorities of states and renders existing governing institutions inadequate. Moreover, climate change will challenge the collage of “soft” international law that governs the Arctic, administered primarily through the Arctic Council’s collaborative forum. While this system has been effective, the opening of the Far North to increased sea passage, commercial exploitation, and great powers’ interests necessitates …

Gambling On Housing: Is Adverse Possession A Valid Tool For The Reallocation Of Vacant Property?

Texas A&M Journal of Property Law

Adverse possession, a staple of first-year law school property classes, never fails to shock the conscience of unsuspecting law students. Some are surprised to learn that a squatter can acquire legal title to another person’s property by moving in and using it for a period of years. In recent years, housing activists have begun to view the doctrine as an outside-the-box solution to our nation’s housing crisis. There are dozens of vacant homes for every person experiencing homelessness in America. Why not give those properties to people who actually use them?

However, this well-intended impulse does not square with reality. …

Royalty Wars: The Dark Side To Raising The Minimum Royalty Rate For Oil And Gas Leasing On Federal Land

Texas A&M Journal of Property Law

In 2022, the Inflation Reduction Act took marked steps toward changing the course of the oil and gas industry for the first time in over 100 years, requiring that all federal oil and gas leases issued for the following decade have a minimum royalty rate of 16.67%. This paved the way for a major adjustment in the oil and gas industry, which has seen a 12.5% minimum royalty for the past century. In 2023, the Department of the Interior proposed to permanently codify these changes, citing purposes of ensuring a fair return to taxpayers and protecting the environment.

This Article …

Discharging Equity: Harrington V. Purdue Pharma L.P. And The Validity Of Nonconsensual Third-Party Releases, Andrew Klauber

Duke Journal of Constitutional Law & Public Policy Sidebar

In September 2019, Purdue Pharma L.P. petitioned for bankruptcy in the Southern District of New York. Purdue, which the Sackler family had owned and operated for decades, developed and aggressively marketed addictive opioid products, contributing to the modern opioid epidemic. The tsunami of litigation arising from the opioid epidemic gave rise to claims against Purdue and the Sackler family estimated to total more than $40 trillion, causing Purdue to petition for Chapter 11 bankruptcy.

In Purdue’s plan of reorganization, it employed a nonconsensual third-party release to discharge claims against the Sackler family. Nonconsensual third-party releases controversially enjoin parties to a …

A Retrospective Analysis Of Police And Legal Procedure In The West Memphis Three Murders, Nathan Scolaro

Scholars Day Conference

Presentation covering an overview of the West Memphis Three, key police and legal failings in the process and investigation, before concluding with policy suggestions.

Confronting Cosmetic Carcinogens: A Proposal Regarding The Dangers Of Talcum Powder, Rachael Howell

Helm's School of Government Conference - American Revival: Citizenship & Virtue

The Federal Government needs to stop the import, export, mining, and distribution of talcum powder in the United States. This is an issue that affects all Americans, especially active-duty military members.

Since 2013, there have been over 38,000 lawsuits against Johnson & Johnson, which allege that their talcum-based baby powder caused cancer. The plaintiffs in the very first talc case in the U.S. have died. All four of the plaintiffs from a 2019 suit have died. Yet, the 2019 case has been reversed and remanded. The FDA has redacted the names of scientist(s) that conduct “safety tests” on talc samples. …

The European Case For Kosovo, Serbia, And North Macedonia: A Western Balkan Focus, Logan Michael Kase

Helm's School of Government Conference - American Revival: Citizenship & Virtue

European integration of Western Balkan territories currently faces high-tension ethnic and religious antagonism between Serbia, Kosovo, and North Macedonia. The Balkans have been dealing with a cauldron of simmering ethnic internal battles that have lingered for decades. Years of Serbian and Kosovo contention severely setback the accession timeline, therefore, affecting further the integration of its neighbor North Macedonia. The European Union demands all disputes and corruption measures settled, per regulation standards set by the enlargement package from the commission. Key regional players’ sphere of influence becomes an interesting variable during policy discussions leaving a path to full European integration reliant …

Rethinking Supply Chains: Mitigating The Risk Of Chinese Dependence And Protecting Us Semiconductor Intellectual Property, Jamison Finnamore

Helm's School of Government Conference - American Revival: Citizenship & Virtue

This paper explores the complex economic interdependence between the US, China, and Taiwan, specifically in the semiconductor industry. China’s increased aggression and intellectual property (IP) theft threatens to unbalance the iron triangle of US, China, and Taiwan trade relations. The problem overview elaborates on Taiwan’s crucial role in the semiconductor supply chain, and China’s threat against it. The argument is made that the US must take a nuanced and multifaceted approach to solving the diplomatic, economic, and military policy problem. Criteria for success are outlined, emphasizing the need to address root causes and not compromise US commitment to a free …

Break Their Lineage, Break Their Roots: Investigating The Chinese Government’S Relationship With The Uyghur Population To Determine The Potential For Terrorism And Genocide, Anya Veinberg

Helm's School of Government Conference - American Revival: Citizenship & Virtue

History is wrought with war, crime, and persecution. After nearly every conflict, world leaders vow to never let something similar happen again. Yet, history seems to repeat itself, and so do its conflicts. The Holocaust claimed the lives of millions of Jews and seemed to set a precedent of a modern threshold of evil. How many people would argue that an event strikingly similar to the Holocaust is happening right now in China?

The Chinese government is currently committing acts of violence and faith and race-based discrimination against the Uyghur population.

This work analyzes the interaction between the Chinese government …

Analysis Of Sun Tzu's Art Of War, Hannah Marchiny

Helm's School of Government Conference - American Revival: Citizenship & Virtue

America faces troubling times with various countries presenting unique threats. Few are more troubling than China. Now more than ever the U.S. needs effective strategies to combat global threats. To that end, I use Sun Tzu’s book Art of War as my main source for strategic wisdom. Sun Tzu’s principles have endured as long as they have because of their continued relevance in every generation and situation. In my paper, I discuss a few of the main tenets of Sun Tzu’s famous Art of War and how China is currently employing them against the U.S. I explain how China’s masterful …

State Compacts Vs. Emergency Powers, Ann Melise Mullins

Helm's School of Government Conference - American Revival: Citizenship & Virtue

It has been a continuous battle between state governments and the federal government on which party is best suited to provide relief and aid to citizens in times of natural disasters and public health crises. This paper will analyze the history of the state and federal government’s involvement in providing aid and relief in times of national crises, as well as the Constitutional provisions for which party should take responsibility.

Democratizing Administrative Law, Joshua D. Blank, Leigh Osofsky

Duke Law Journal

When agencies make statements about the law, people listen. This insight yields a fundamental tension. According to one set of views, such agency statements, and their ability to influence public behavior, are critical not only for a well-functioning bureaucracy but also for our entire system of government. According to another set of views, this agency power, if left unchecked, could border on tyranny.

Administrative law responds to this tension through an extensive, purportedly comprehensive, framework that attempts to police agency statements. The framework places different types of agency statements into different legal categories. On the one hand, legislative rules make …

Regulatory Body Shops, Bridget C.E. Dooling, Rachel Augustine Potter

Duke Law Journal

Agencies do not always write their own rules. Contractors assist agencies in nearly all tasks relating to rulemaking, including reviewing public comments, conducting specialized research, and writing regulatory text. Despite perceptions that contractors’ roles are entirely ministerial, the reality is that contractors fulfill many more functions in the rulemaking process than is commonly understood, including everything right “up to pushing the big red policymaking button,” as one agency employee put it. The use of contractors in rulemaking fits within a broader pattern of increased government reliance on service contractors. Scholars have documented a bevy of governance concerns relating to ethics, …

Admininstrative Reliance, Haiyun Damon-Feng

Duke Law Journal

Presidential regime change and the federal policy shifts that accompany it raise significant questions concerning continuity, stability, and governance in the administrative state. Presidential policymaking through the administrative state may generate serious reliance interests recognized under administrative law (what this Article calls “administrative reliance”), which agencies must consider prior to enacting policy change. Administrative reliance has developed into a robust form of judicial review over agency action. Administrative reliance has been invoked in highly politicized contexts, such as immigration law, to challenge a sitting administration’s termination of a prior administration’s policies. Despite its powerful and consequential effects, the doctrine of …

Journal Staff

Duke Law Journal

No abstract provided.

The Driving Impact Of Artificial Intelligence On Global Expansion, Aleksandra Drozd

Senior Honors Theses

The invention and continual growth of artificial intelligence (AI) on the global stage have significantly shaped the world’s economies, governments, societies and their cultures. The new industrial revolution and the subsequent race of the world’s leading powers have led to increased international joint efforts and exchange of information, simultaneously reducing barriers to trade and communication. Meanwhile, emerging technologies deploying AI have led to changes in human behavior and culture and challenged the traditional nation-state model. Although several implications of the proliferation of AI remain unknown, its widening application may be tied with accelerating globalization, referred to interchangeably as global expansion. …

The Dueling First Amendment Clauses: Are They In Tension, Or Do They Work Together?, James Black

Helm's School of Government Conference - American Revival: Citizenship & Virtue

The Establishment and Free exercise clauses of the First Amendment respectively state that Congress does not have the ability to pass a law that would either establish a national religion or prohibit the free exercise of any religion. While some legal scholars have given a more secular interpretation of the Establishment Clause, suggesting that there is no place for Christianity or any other religion in the public square or to influence American government, this is in conflict with interpretation by a substantial number of legal experts and constitutional scholars living both in and before the modern era, some of whom …