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Full-Text Articles in Law

The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett Jan 2019

The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett

Faculty Scholarship

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected ...


Rescuing Maryland Tort Law: A Tribute To Judge Sally Adkins, Donald G. Gifford Jan 2019

Rescuing Maryland Tort Law: A Tribute To Judge Sally Adkins, Donald G. Gifford

Faculty Scholarship

No abstract provided.


A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel Jan 2018

A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel

Faculty Scholarship

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit ...


State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young Jan 2018

State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young

Faculty Scholarship

Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to ...


Preemption And Commandeering Without Congress, Jessica Bulman-Pozen Jan 2018

Preemption And Commandeering Without Congress, Jessica Bulman-Pozen

Faculty Scholarship

In the “age of polarization” this Symposium addresses, states may introduce salutary pluralism into an executive-dominated regime. With partisan divisions sidelining Congress, states are at once principal implementers and principal opponents of presidential policies. As polarization makes states more central to national policymaking, however, it also poses new threats to their ability to act. This Essay cautions against recent efforts to preempt state control over state officials and to require states to follow other states’ policies, using sanctuary jurisdictions and the pending federal Concealed Carry Reciprocity Act as examples


Marijuana Appellations: The Case For Cannabicultural Designations Of Origin, Ryan Stoa Jul 2017

Marijuana Appellations: The Case For Cannabicultural Designations Of Origin, Ryan Stoa

Faculty Scholarship

An appellation is a certified designation of origin that may also require that certain quality or stylistic standards be met. Appellations are most commonly associated with the wine industry, but they can be applied to any agricultural product for which the geographic origin carries importance. The MMRSA [California Medical Marijuana Regulation and Safety Act] … may have far-ranging effects on the marijuana industry in the United States. [A provision of the act permits the state Bureau of Medical Marijuana Regulation to ‘establish appellations of origin for marijuana grown in California.’] As the most populous state in the Union and the most ...


Marijuana Agriculture Law: Regulation At The Root Of An Industry, Ryan Stoa Mar 2017

Marijuana Agriculture Law: Regulation At The Root Of An Industry, Ryan Stoa

Faculty Scholarship

Marijuana legalization is sweeping the nation. Recreational marijuana use is legal in eight states. Medical marijuana use is legal in thirteen states. Only three states maintain an absolute criminal prohibition on marijuana use. Many of these legalization initiatives propose to regulate marijuana in a manner similar to alcohol, and many titles are variations of the "Regulate Marijuana Like Alcohol Act." For political and public health reasons the analogy makes sense, but it also reveals a regulatory blind spot. States may be using alcohol as a model for regulating the distribution, retail, and consumption of marijuana, but marijuana is much more ...


Article Xiv, Section 3 Of The Illinois Constitution: A Limited Initiative To Amend The Article On The Legislature, 48 Loy. U. Chi. L.J. 899 (2017), Ann Lousin Jan 2017

Article Xiv, Section 3 Of The Illinois Constitution: A Limited Initiative To Amend The Article On The Legislature, 48 Loy. U. Chi. L.J. 899 (2017), Ann Lousin

Faculty Scholarship

No abstract provided.


Comparative Cannabis: Approaches To Marijuana Agriculture Regulation In The United States And Canada, Ryan Stoa Jan 2017

Comparative Cannabis: Approaches To Marijuana Agriculture Regulation In The United States And Canada, Ryan Stoa

Faculty Scholarship

The United States and Canada may be friends and allies, but the two countries' approaches to the regulation of marijuana agriculture have not evolved in tandem. On the contrary, their respective paths toward legalization and regulation of marijuana agriculture are remarkably divergent. In the United States, where marijuana remains a federally prohibited and tightly-controlled substance, legalization and regulation have remained the province of state legislatures and their administrative agencies for decades. In Canada, a succession of court cases paving the way toward medicinal marijuana use has prompted the federal government to develop a national framework committed to "legalize, regulate, and ...


Localist Administrative Law, Nestor M. Davidson Jan 2017

Localist Administrative Law, Nestor M. Davidson

Faculty Scholarship

To read the voluminous literature on administrative law is to inhabit a world focused almost exclusively on federal agencies. This myopic view, however, ignores the wide array of administrative bodies that make and implement policy at the local-government level. The administrative law that emerges from the vast subterranean regulatory state operating within cities, suburbs, towns, and counties has gone largely unexamined. Not only are scholars ignoring a key area of governance, but courts have similarly failed to develop an administrative jurisprudence that recognizes what is distinctive about local agencies. The underlying justifications for core administrative law doctrines at the federal ...


Regulatory Competition And The Market For Corporate Law, Ofer Eldar, Lorenzo Magnolfi Jan 2017

Regulatory Competition And The Market For Corporate Law, Ofer Eldar, Lorenzo Magnolfi

Faculty Scholarship

This article develops an empirical model of firms’ choice of corporate laws under inertia. Delaware dominates the incorporation market, though recently Nevada, a state whose laws are highly protective of managers, has acquired a sizable market share. Using a novel database of incorporation decisions from 1995- 2013, we show that most firms dislike protectionist laws, such as anti-takeover statutes and liability protections for officers, and that Nevada’s rise is due to the preferences of small firms.Our estimates indicate that despite inertia, Delaware would lose significant market share and revenues if it adopted protectionist laws. Our findings support the ...


Domicile Dismantled, Kerry Abrams, Kathryn Barber Jan 2017

Domicile Dismantled, Kerry Abrams, Kathryn Barber

Faculty Scholarship

No abstract provided.


Weed And Water Law: Regulating Legal Marijuana, Ryan Stoa Apr 2016

Weed And Water Law: Regulating Legal Marijuana, Ryan Stoa

Faculty Scholarship

Marijuana is nearing the end of its prohibition in the United States. Arguably the country’s largest cash crop, marijuana is already legal for recreational use in Colorado, Washington, Oregon, Alaska, and Washington DC. Between now and election day 2016, an additional 14 states may place marijuana legalization initiatives on their ballots. In addition, 23 states and Washington DC have legalized medical marijuana, with up to seven states pending legislation. The era of marijuana prohibition is rapidly coming to a close.

At the same time, traditional doctrines of water law are struggling to cope with the modern realities of water ...


Women On State Boards And Commissions: Is Idaho Where It Wants To Be?, Brenda M. Bauges Mar 2016

Women On State Boards And Commissions: Is Idaho Where It Wants To Be?, Brenda M. Bauges

Faculty Scholarship

Citing a Boise State University study, Grande, Kling, and Bauges state that public boards and commissions in Idaho are comprised of no more than 30% women, a figure which drops to 15% when one examines only boards and commissions that have "stereotypically masculine core functions"--e.g., banking commissions, boards of transportation, and economic development boards. The authors of the present article propose a number of legal reforms to address this disparity.


The New Elections Clause, Michael T. Morley Jan 2016

The New Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.


Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen Leacock Jan 2016

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen Leacock

Faculty Scholarship

No abstract provided.


The Privacy Policymaking Of State Attorneys General, Danielle Keats Citron Jan 2016

The Privacy Policymaking Of State Attorneys General, Danielle Keats Citron

Faculty Scholarship

No abstract provided.


Town Of Greece And City Of Saguenay: Non-Establishment Principles With Or Without An Establishment Clause, 14 First Amend. L. Rev. 343 (2016), Donald L. Beschle Jan 2016

Town Of Greece And City Of Saguenay: Non-Establishment Principles With Or Without An Establishment Clause, 14 First Amend. L. Rev. 343 (2016), Donald L. Beschle

Faculty Scholarship

No abstract provided.


Cooperative Federalism In Biscayne National Park, Ryan Stoa Jan 2016

Cooperative Federalism In Biscayne National Park, Ryan Stoa

Faculty Scholarship

Biscayne National Park is the largest marine national park in the United States. It contains four distinct ecosystems, encompasses 173,000 acres (only five percent of which are land), and is located within densely populated Miami-Dade County. The bay has a rich history of natural resource utilization, but aggressive residential and industrial development schemes prompted Congress to create Biscayne National Monument in 1968, followed by the designation of Biscayne National Park in 1980. When the dust settled, Florida retained key management powers over the Park, including joint authority over fishery management.

States and the federal government occasionally share responsibility for ...


Justice Brennan’S Call To Arms—What Has Happened Since 1977?, 77 Ohio St. L.J. 387 (2016), Ann Lousin Jan 2016

Justice Brennan’S Call To Arms—What Has Happened Since 1977?, 77 Ohio St. L.J. 387 (2016), Ann Lousin

Faculty Scholarship

We are about to observe the fortieth anniversary of the publication of a seminal law review article: State Constitutions and the Protection of Individual Rights by Associate Justice William J. Brennan. This Article was also the basis of a talk Justice Brennan later gave at The New York University Law School. It is often said that this article, one of the most-cited in American legal scholarship, sparked the “new judicial federalism.”

In 1986, I wrote in a tribute to Justice Brennan: “This one law review article, almost by itself, created the renaissance of state constitutionalism.” I have not really changed ...


The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene Jan 2016

The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene

Faculty Scholarship

In Walker, the Court deemed Texas’ specialty license plate program government speech, and thus applied no First Amendment review to the state’s refusal to allow a Confederate battle flag specialty plate, even though the reason for the refusal was that the plate was offensive. The dissent considered this unconstitutional viewpoint discrimination in a limited public forum. This article argues that the Walker result was correct, but for the wrong reason. Government should have the power to forbid hateful or vulgar speech from limited public forums such as specialty or vanity license plates, transit ads, and after-school extracurricular activities, even ...


Marriage On The Ballot: An Analysis Of Same-Sex Marriage Referendums In North Carolina, Minnesota, And Washington During The 2012 Elections, Craig M. Burnett, Mathew D. Mccubbins Jan 2016

Marriage On The Ballot: An Analysis Of Same-Sex Marriage Referendums In North Carolina, Minnesota, And Washington During The 2012 Elections, Craig M. Burnett, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.


Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young Jan 2016

Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young

Faculty Scholarship

No abstract provided.


Custom In Our Courts: Reconciling Theory With Reality, Nikki C. Gutierrez, Mitu Gulati Jan 2016

Custom In Our Courts: Reconciling Theory With Reality, Nikki C. Gutierrez, Mitu Gulati

Faculty Scholarship

One of the most heated debates of the last two decades in US legal academia centers on customary international law's domestic status after Erie Railroad v. Tompkins. At one end, champions of the "modern position" support CIL's wholesale incorporation into post-Erie federal common law. At the other end, "revisionists" argue that federal courts cannot apply CIL as federal law absent federal political branch authorization. Scholars on both sides of the Erie debate also make claims about what sources judges cite to when discerning CIL, which they then use to support their arguments regarding CIL's domestic status. Interestingly ...


Neighborhoods By Assessment: An Analysis Of Non-Ad Valorem Financing In California, Mathew D. Mccubbins, Ellen C. Seljan Jan 2016

Neighborhoods By Assessment: An Analysis Of Non-Ad Valorem Financing In California, Mathew D. Mccubbins, Ellen C. Seljan

Faculty Scholarship

Non-ad valorem assessments on property are a fiscal innovation born from financial stress. Unable to raise property taxes due to limitations, many localities have turned to these charges as an alternative method to fund local services. In this paper, we seek to explain differential levels of non-ad valorem assessment financing through the analysis of property tax records of a large and diverse set of single family homes in California. We theorize that assessments, as opposed to other forms of taxation, will be used when residents hold anti-redistributive preferences. We show that assessment financing is most common in cities with high ...


Brief For Professor Walter Dellinger As Amicus Curiae In Support Of Petitioners, Walter E. Dellinger Iii Jan 2016

Brief For Professor Walter Dellinger As Amicus Curiae In Support Of Petitioners, Walter E. Dellinger Iii

Faculty Scholarship

No abstract provided.


The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Denno W. Deborah Jan 2016

The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Denno W. Deborah

Faculty Scholarship

This Article does not address the medical debate surrounding the role of midazolam in executions; the problems associated with using the drug have been persuasively argued elsewhere. Nor does it question the soundness of the Glossip Court’s “alternative method of execution” requirement. Rather, this Article’s proposed reform is a constitutionally acceptable alternative that meets the Glossip Court’s standard, rendering moot—at least for the purposes of the following discussion—very real concerns regarding the validity of that dictate. Part I of this Article pinpoints several areas where the Glossip Court goes wrong in glaringly inaccurate or misleading ...


Under Containment: Preempting State Ebola Quarantine Regulations, Eang L. Ngov Jan 2015

Under Containment: Preempting State Ebola Quarantine Regulations, Eang L. Ngov

Faculty Scholarship

No abstract provided.


Remedial Equilibration And The Right To Vote Under Section 2 Of The Fourteenth Amendment, Michael T. Morley Jan 2015

Remedial Equilibration And The Right To Vote Under Section 2 Of The Fourteenth Amendment, Michael T. Morley

Faculty Scholarship

No abstract provided.


What’S Law Got To Do With It? Confronting Judicial Nullification Of Domestic Violence Remedies, 10 Nw. J. L. & Soc. Pol'y. 130 (2015), Debra Pogrund Stark Jan 2015

What’S Law Got To Do With It? Confronting Judicial Nullification Of Domestic Violence Remedies, 10 Nw. J. L. & Soc. Pol'y. 130 (2015), Debra Pogrund Stark

Faculty Scholarship

In 1982, the Illinois legislature passed the Illinois Domestic Violence Act (the Act) and most recently passed an updated version in 2012. This Article examines how the specialized domestic violence courthouse in Chicago implements these laws.

Where the courthouse falls short, this Article will explore why, what can be done, and consider implications for other jurisdictions seeking to implement similar resources for survivors of domestic violence. The results from this empirical study are mixed. On the positive side, the data reflect that judges are properly applying many important aspects of the new order of protection laws and granting a high ...