Law Commons^™

From Trauma To Transformation: Trauma-Informed Pedagogy In Law School, Angela P. Harris, Monika B. Kashyap

University of Pennsylvania Journal of Law and Social Change

In this essay, we seek to expand the meaning of “trauma” by aligning trauma-informed pedagogy with principles of disability justice and progressive critiques of legal education. We argue first that the existence of trauma is not a sign of individual brokenness or deficiency, but rather should be taken as a warning about broken or deficient social institutions or practices. This approach to trauma recognizes the potential of those who experience trauma—whose bodies and minds bear the marks of both subordination and resilience—to contribute to institutional and structural transformation. We use as an example the trauma too often experienced in law …

Walking The Line: The Politics Of Federalism And Environmental Change, Allan C. Hutchinson

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

This short paper looks at the Greenhouse Gas Pollution Pricing Act decision through a wider and more critical jurisprudential lens. In so doing, I demonstrate that the courts are no less political than legislatures in making decisions about who has the constitutional capacity to decide on how the challenges of climate change should be met. This is not so much a criticism of the Supreme Court of Canada, but an inevitable feature of constitutional law. After introducing the traditional and received explanation of the differences between political decision-making and judicial decision-making, I delve deeper into the Court’s opinions and show …

The Hazy Employment Protections For Medical Marijuana Users In The Pennsylvania Medical Marijuana Act, Kathryn M. Capizzi

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Anti-Carceral Human Rights Advocacy, Chi Adanna Mgbako, Nate Johnson, Vivienne Bang Brown, Megan Cheah, Kimya Zahedi

University of Pennsylvania Journal of Law and Social Change

The theory of carceral abolition entered the mainstream during the 2020 global protests for Black lives. Abolition calls for divestment from carceral institutions like police and prisons in favor of the expansion of social and economic programs that ensure public safety and nurture community well-being. Although there is little scholarship explicitly linking abolition to international human rights, there are scholars and advocates who implicitly echo abolitionist theories by critiquing the international human rights regime's overreliance on criminal law. These critics argue that relying on carceral institutions to address impunity for human rights abuses and promote gender justice does little to …

Tort Reform In Florida: The Impact Of Hb837, Kara E. Burns

Honors Undergraduate Theses

Legislative policies play a pivotal role in shaping the socio-political landscape of a nation, addressing critical issues, and reflecting the values and priorities of its citizens. This case study examines the implementation of Florida's House Bill 837 (HB837), a significant piece of legislation that has generated substantial interest and debate. The study aims to shed light on the practical implications of this policy within the context of its introduction, passage, and subsequent results. The research of this case study explores the historical and political backdrop against which HB837 was enacted. It examines the motivations behind the bill, the debates that …

Disarmament Is Good, But What We Need Now Is Arms Control, Daniel H. Joyner

Articles

This article aims to correct a number of misconceptions held by both scholars and activists about the United Nations Treaty on the Prohibition of Nuclear Weapons (TPNW), and international nuclear weapons law generally. It first reviews the development of international law related to nuclear weapons, and provides a novel taxonomy of legal obligations divided into three substantive categories. It then examines the TPNW within that taxonomy, and considers how it should be understood to fit within this legal context. It concludes that the TPNW is essentially a nuclear disarmament treaty. While it should be welcomed as a contribution to nuclear …

Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll

Articles

Speech is more than just an individual right-it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights - either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines …

The Public Voice Of The Defender, Russell M. Gold, Kay L. Levine

Articles

For decades police and prosecutors have controlled the public narrative about criminal law. The news landscape features salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets. Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about the overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations-all of which inflict severe harm on defendants and …

Corporate Fiduciary Duty In The Age Of Algorithms, Alfred R. Cowger Jr.

Journal of Law, Technology, & the Internet

The Age of Algorithms will soon have a seismic impact on fiduciary law and thus, on the fiduciary duty of directors and officers. On one hand, corporate fiduciaries will have access to Artificial Intelligence-based tools which may make their jobs more efficient, more accurate, and more effective. As a result, fulfilling fiduciary duties will be easier, and the use of these tools may significantly lower the exposure of corporate fiduciaries to claims of breaching fiduciary duties. However, artificial intelligence (AI) may be a double-edged sword because those attractive tools will create new standards corporate fiduciaries must meet to fulfill their …

Video Game Currency: Taming The Wild West Of Video Game Economies, Josh Khorsandi

Journal of Law, Technology, & the Internet

Do you know the value of digital currency? No, not bitcoin, but rather value generated in online gaming. While on the surface, online video gaming may seem like just another form of entertainment, the value these games are creating is intersecting with the real-world marketplace. The exchange of virtual wealth to real-life wealth is a tumultuous problem that has remained unaddressed by law since the inception of video games. This legal ignorance has left the market for videogame currency in a state reminiscent of the wild west; the wealth is guarded only by those who can protect themselves. Those who …

A Meta-Critique Of Frontier Scholarships On The Laws Of Peacetime Espionage: Towards A Systemic Framework For Lex Specialis, Yang Liu

Journal of Law, Technology, & the Internet

No abstract provided.

Dall-E Does Palsgraf, Bryant Walker Smith

Journal of Law, Technology, & the Internet

What happens when we ask a leading artificial intelligence (AI) tool for image generation to illustrate the facts of a leading law school case? This article does just that. I first introduce this tool specifically and machine learning generally. I then summarize the seminal case of Palsgraf v. Long Island Railroad. For the main event, I show the images that the tool created based on the facts as the majority and dissent recount them. Finally, I translate this exercise into lessons for how lawyers and the law should think about AI.

Interplanetary Constitutionalism: A Martian Constitution, Mia Bonardi

Journal of Law, Technology, & the Internet

“Mars has been our mirror, our foil, a telltale reflection of what has been deepest in our hearts. We have seen in Mars a utopia. A wilderness. A sanctuary. An oracle. With so few landmarks, guideposts, or constraints, all is possible; without data that could be used to cabin our inquiry or limit our imagination, Mars has been a blank canvas. And tenderly, our human seeking has rushed to fill it.” – Sarah Stewart Johnson, Planetary Scientist

With humans currently in orbit around Earth on the International Space Station and targets to put them back on the Moon in this …

Burdens Of Proof In Establishing Negligence: A Comparative Law And Economics Analysis, Francesco Parisi, Giampaolo Frezza

Articles

Inherent in any judicial system is the need to allocate the burden of proof on one party. Within the realm of negligence torts, that burden is traditionally placed on the plaintiff, meaning that the plaintiff must bring forth sufficient evidence to establish negligence by the defendant. In effect, this is a legal presumption of non-negligence in favor of the defendant. In some jurisdictions for specific torts, defendants are, instead, presumed negligent, therefore requiring defendants to come forth with sufficient evidence to prove their due diligence. In this paper, we discuss the legal origins and effects of these differences in a …

Copyright Infringement And Enforcement In Ghana: A Comparative Study, Doreen Adoma Agyei

SJD Dissertations

Copyright infringement is a widespread problem in developed and developing nations and particularly concerning in Ghana. Many talented creators in Ghana have a strong desire to produce original creative works and are enthusiastic about committing themselves to this pursuit. Additionally, many more aspire to pursue these endeavours into professional careers. However, upon releasing their works, they are unfortunately immediately faced with infringements in nearly all copyright industries. These violations have become so common that they have unfairly placed rightsholders’ original works in competition with the infringers. Within this context, many talented creators, mostly self-funded, lack the incentive to pursue their …

The Business Of Securities Class Action Lawyering, Jessica M. Erickson, Stephen J. Choi, Adam C. Pritchard

Law Faculty Publications

Plaintiffs’ lawyers in the United States play a key role in combating corporate fraud. Shareholders who lose money as a result of fraud can file securities class actions to recover their losses, but most shareholders do not have enough money at stake to justify overseeing the cases filed on their behalf. As a result, plaintiffs’ lawyers control these cases, deciding which cases to file and how to litigate them. Recognizing the agency costs inherent in this model, the legal system relies on lead plaintiffs and judges to monitor these lawyers and protect the best interests of absent class members. Yet …

Liability Or No Liability? Promoting Safety By Shifting Accident Losses Onto Third Parties, Francesco Parisi

Articles

In a recent article, Guerra et al. considered the problem of liability for accidents caused by the activity of robots, proposing a novel liability regime, which they referred to as ‘manufacturer’s residual liability.’ Under this regime, injurers (robot operators) and victims are liable for accidents due to their negligence (hence, they are incentivised to act diligently), and third-party robot manufacturers bear all remaining accident losses, even when the accident is not caused by a defect or malfunction of the robot. In this article, I explore the possibility of extending this framework of liability to other tort scenarios. I refer to …

The Virtuous Executive, Alan Rozenshtein

Articles

As currently conceived, executive power law and scholarship detach the identity of the President from the powers and duties of the presidency. Whether an official was properly dismissed without cause, whether a pardon was validly issued, whether a foreign policy debacle rose to the level of an impeachable offense—the answers to all these questions are not supposed to depend on the President’s personal characteristics.

This Article argues that this veil of ignorance is incompatible with a correct understanding of Article II. To properly empower good Presidents and constrain bad ones, constitutional actors must take into account the President’s personal characteristics. …

Front Matter

SMU Law Review

No abstract provided.

Crimes Against Probate, Kevin Bennardo, Mark Glover

Faculty Publications

Policymakers have increasingly turned their attention to wrongdoing that affects wills, such as the forgery of wills, the procurement of wills through coercion or deceit, and the destruction or suppression of wills. In particular, they have attempted to deter this misconduct by punishing wrongdoers through new forms of criminal and civil liability. Because the United States is on the precipice of the largest intergenerational wealth transfer in history, a significant portion of which will take place through wills, these attempts of deterrence are well-intentioned. However, their implementation has been flawed.

These implementation difficulties stem from the fact that a will …

The Fraternity Of Legal Style, Alexa Z. Chew

Faculty Publications

This article reports the findings of an empirical study of writing experts mentioned in popular legal style books. The study shows that these experts are overwhelmingly men. This study complements the many other studies showing that gender and racial bias exists throughout the legal profession, but it focuses on one area that has not yet been examined: bias in books that give writing advice to lawyers. I call these books “legal style books.” The area of legal writing advice books is admittedly niche. However, it is worth studying because writing is central to lawyering.

Reimagining Langdell's Legacy: Puncturing The Equilibrium In Law School Pedagogy, Laura A. Webb

Law Faculty Publications

For more than 150 years, legal education has largely followed the course charted by Christopher Columbus Langdell when he became dean of Harvard Law School in 1870. Langdell’s innovations included the case method, high-stakes summative assessments, and preferences for faculty members with experience in “learning law” rather than practicing it. His proposals were innovative and responsive to challenges in legal education at the time, but this Article argues that taking Langdell’s approach to reform—including a willingness toimplement radical changes in the face of institutional shortcomings—requires reimagining his methods for the benefit of today’s students. We identify key deficiencies of the …

High Time For Change: How Federal Cannabis Prohibition Dooms The Legal Cannabis Industry, Abraham Kruger

Journal of Business & Technology Law

No abstract provided.

“The Glorious Liberty Of The Children Of God”: Toward A Christian Defense Of Human Rights, John Witte Jr.

Faculty Articles

It will come as a surprise to some human rights lawyers to learn that Christianity was a deep and enduring source of human rights and liberties in the Western legal tradition. Our elementary textbooks have long taught us that the history of human rights began in the later seventeenth and eighteenth centuries. Human rights, many of us were taught, were products of the Western Enlightenment—creations of Grotius and Pufendorf, Locke and Rousseau, Montesquieu and Voltaire, Hume and Smith, Jefferson and Madison. Rights were the mighty new weapons forged by American and French revolutionaries who fought in the name of political …

Why School Choice Is Necessary For Religious Liberty And Freedom Of Belief, Richard F. Duncan

Nebraska College of Law: Faculty Publications

The government school monopoly for funding K–12 education creates a coercive system that commandeers a captive audience of impressionable children for inculcation in secular ideas, beliefs, and values concerning matters of truth, moral character, culture, and the good life. The brutal bargain imposed on parents by this monopoly requires them to choose between the single largest benefit most families receive from state and local governments and educating their children in a curriculum that is consistent with the preferred educative speech of the parents. To choose the latter is to sacrifice hundreds of thousands of dollars of tax-funded support for K–12 …

Sb 129 - Amendments Regarding Time Off For Advance Voting, Cody A. Choi, Devan K.T. Knapp

Georgia State University Law Review

The Act amends several Code sections pertaining to voting, including broadening the individuals eligible to serve on an independent performance review board; allowing for employees to request time off for advance in person voting; specifying which elections may be audited; and providing election superintendents more time to report required election information.

Equity In Legal Education, Deo, Meera E.

Santa Clara Law Review

The pandemic has brought to light myriad inequities, in legal education as elsewhere in society. Many of these barriers have existed for decades; while they have been exacerbated due to COVID, they will likely linger even as the pandemic subsides. This Article draws from both quantitative and qualitative data collected from students and faculty to reveal how the pandemic has heightened existing challenges in legal education, in particular ways and with distinctive effects on different populations. While inequities are a hallmark of legal education, the fissures and fault lines of these hierarchies have expanded during COVID. People of color, women, …

Misinformation And Covid-19, Reiss, Dorit R

Santa Clara Law Review

The COVID-19 pandemic’s impact on our world cannot be overstated. One of its noticeable features was the prominence of misinformation generally, and anti-vaccine misinformation more specifically. This article provides a breakdown of the five major themes of antivaccine misinformation and the way they were used to create fear, uncertainty, and doubt about COVID- 19 vaccines. Long before the pandemic, anti-vaccine activists argued using a five-part playbook. They argued that (1) vaccine preventable diseases were not really dangerous, (2) vaccines were dangerous and ineffective, (3) there were alternative treatments that were better than (dangerous and ineffective) vaccines, (4) there was a …

Leading Law Firms In The “New Normal”: Recovering From Crises Through Leadership Development, Polden, Donald J.

Santa Clara Law Review

Beginning in 2008, the first of three major crises hit the nation and had global implications and effects, including significant ones for the legal profession. Those crises were the financial crisis of 2008, followed by the social justice movements reflecting outrage at several highly-publicized police killings of Black men and women, and, most recently, the 2020-2022 COVID-19 pandemic. The crises created significant challenges for lawyers and legal institutions but they also created opportunities for enhanced access to justice, more efficient law organization practices, and new workplace requirements. The Article considers several difficult questions about where the legal profession is at …

Employers As Information Fiduciaries, Bodie, Matthew T.

Santa Clara Law Review

In order to better protect users from the predations of large tech companies amassing their data, commentators have argued that these companies should be considered information fiduciaries for the purposes of collection, use, storage, and disclosure of that data. This Essay considers the application of the “information fiduciary” label to employers in the context of employee data. Because employers are handling ever greater quantities of employee data, and because that data is becoming more sensitive and potentially damaging to workers if misused, the law should account for this expanded role with expanded protections. The beginnings of how such a set …