Law Commons^™

Local Governments As Modern Day Robin Hoods: Solving The Mortgage Crisis With Eminent Domain, Yasmany Barroso

Yasmany Barroso

Abstract

This article addresses one of the most critical, ongoing issues of the twenty-first century, the current mortgage crisis. This crisis is one of the worst disasters in American history, leaving hundreds of thousands homeless. In response, the federal government has legislated fiercely, hoping to help struggling homeowners. However, many programs have failed to fix this problem.

This article flexes scholarly knowledge of the fifth amendment’s taking clause in proposing municipalities buy foreclosed homes to sell back to initial and prospective homeowners. The proposal is firmly rooted in reality, however, solving financing issues by further proposing that homeowners seek financing …

The Second Amendment: A Reasonable Interpretation In The 21st Century, Kaleb D. Wingate

Kaleb D Wingate

The interpretation of the Second Amendment has been the subject of increased litigation throughout the last several years. Challenges to the Second Amendment and related legislation tend to create polarized responses from various political organizations. These responses, commonly in the form of votes in our legislative branch, impede the progress of reasonable measures to reduce instances of violence across the country. Addressing gun violence in our country must be a goal which exceeds the interest of any political affiliate or lobby. This article suggests reasonable measures our government can take to address the growing problems with gun violence in the …

After Caronia: First Amendment Concerns In Off-Label Promotion, Stephanie Greene

Stephanie Greene

After Caronia: First Amendment Concerns in Off-Label Promotion by Stephanie M. Greene* Abstract The government has successfully prosecuted pharmaceutical companies for off-label promotion of drugs, maintaining that such promotion impermissibly undermines the FDA’s pre-market approval process and jeopardizes the public health. In several recent cases, however, pharmaceutical companies have alleged that regulations prohibiting such promotion are unconstitutional because off-label promotion is protected under the First Amendment. Two recent Supreme Court cases contain language that gives broad protection to advertising and marketing in the pharmaceutical field. This paper questions the reach of these cases as applied to the practice of off-label …

The Forgotten Nuremberg Hate Speech Case: Otto Dietrich And The Future Of Persecution Law, Gregory S. Gordon

Gregory S. Gordon

Among international jurists, the conventional wisdom is that atrocity speech law sprang fully formed from two judgments issued by the International Military Tribunal at Nuremberg (IMT): the crimes against humanity conviction of Nazi newspaper editor Julius Streicher, and the acquittal on the same charge of Third Reich Radio Division Chief Hans Fritzsche. But the exclusive focus on the IMT judgments as the founding texts of atrocity speech law is misplaced. Not long after Streicher and Fritzsche, and in the same courtroom, the United States Nuremberg Military Tribunal (NMT) in the Ministries Case, issued an equally significant crimes against …

Islamic Flextime, Liaquat Ali Khan

Ali Khan

Islamic flextime is derived from a divine decree that convenience is the organizing principle of cosmic construction. Rigid temporal frameworks restrict freedom and may even impede human happiness, social harmony, and economic efficiency. This essay explains the foundation of Islamic temporality. Islam teaches that human beings can use temporality but they have no control over time, just as they can benefit from sunlight but cannot conquer the sun. A flexible notion of temporality facilitates the performance of obligations, without repudiating the core concepts of punctuality and time commitments. Islamic flextime is an accommodation principle that respects individual needs and mitigates …

The Viability Of The $30 Casebook: Intellectual Property, Voluntary Payment, Open Distribution, And Author Incentives, Lydia P. Loren

Lydia P Loren

It is not uncommon for a new hardbound copy of today’s law school casebooks to exceed $200. And, each year, the prices inch ever higher. After exploring the various dynamics in the traditional publishing market that have led to the current prices for casebooks, this article describes the experiences of Semaphore Press, a publisher of law school casebooks that offers a very different approach to providing law school casebooks. Semaphore Press offers digital copies of required textbooks for law school classes (in pdf format with no digital rights management (DRM) restrictions) at a suggested price of $30. In addition, students …

A Market For Tax Compliance, Walter E. Afield Iii

Walter E Afield III

It is becoming increasingly clear that, due to political realities and budgetary constraints, the IRS is going to have to attempt to enforce the tax laws by doing more with less. Current enforcement efforts have yielded a tax gap (i.e., the difference between the amount of taxes that should be paid and the amount that are collected) of roughly $450 billion annually. Faced with this task, one of the steps that the IRS has recently taken is to try to improve the quality in services performed by paid tax preparers, a group that historically has been subject to little IRS …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theftv, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

The Dangerousness Of The Status Quo: A Case For Modernizing Civil Commitment Law, Daniel A. Moon

Daniel C Moon

The states, private healthcare organizations, and those with psychiatric disorders are poorly served by the vague “dangerousness” standard endorsed by the United States Supreme Court in O’Connor v. Donaldson, as well as the state statutes that adhere to the high bar set in its holding. This paper explores involuntary civil commitment from a variety of perspectives in order to highlight these issues and to identify where improvements can be made. Specifically, this article proposes that the American Law Institute or the American Bar Association promulgate model rules intended to correct the system’s shortcomings and protect the various interested parties.

Reburying An Injustice: Indigenous Human Remains In Museums And The Evolving Obligations To Return Remains To Indigenous Groups, Alex Bernick

Alex Bernick

No abstract provided.

The Apocalyptic Presidential Right Of Publicity, Michael G. Bennett

Michael G. Bennett

The Apocalyptic Presidential Right of Publicity

Michael G Bennett Associate Professor Northeastern School of Law

Abstract

This article critically examines publicity rights doctrine as applied to celebrity political figures. It is particularly concerned with the prominence of science fictional concepts, theoretical frameworks and tropes in cases that mark the extreme scope of the doctrine and in the scholarship that aims to render case law rationally meaningful. And it situates President Obama and the difficult doctrinal issues his candidacy and subsequent election highlighted at the center of its analysis.

Part one of the article briefly describes the right of publicity and …

Some Other Men's Rea? The Nature Of Command Responsibility In The Rome Statute, Joshua Root

Joshua L. Root

The Rome Statute of the International Criminal Court provides for Command Responsibility. The provision addressing this is ambiguous and raises a number of interpretive issues. Command responsibility can either be understood as a mode of liability – a way of holding commanders vicariously responsible for the acts of their subordinates, or it can be understood as a separate, distinct crime based on the commander’s dereliction of his supervisory duties. The Rome Statute is not clear on the matter and points in both directions. In recent years, the mode of liability approach has come under increasing scrutiny by academics and by …

Lost In The Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Margaret C Tarkington

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity—ranging from core free speech protection to extremely limited protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for …

Moving Money: International Financial Flows, Taxes, Money Laundering & Transparency, Richard Gordon, Andrew P. Morriss

Andrew P Morriss

Recent publicity over enormous estimates of “missing” wealth and the use of sophisticated tax strategies by companies like Apple, Google, and Starbucks have produced a demand that the wealthy pay a “fair” amount of tax regardless of their compliance with the letter of tax laws. In particular, the Tax Justice Network’s claim that $21-$32 trillion of “hidden” wealth remains untaxed has garnered considerable attention. In this paper we argue that these claims rest on poor data and analysis and mistakes about how financial transactions work. We further argue that the disputes are about fundamentally conflicting visions of how financial transactions …

Activism, Attitudes, And The Citation Of Precedent In Supreme Court Opinions, Robert R. Robinson

Robert R Robinson

Adherence to precedent provides a legitimizing function for judges. Recent scholarship supports this contention, demonstrating that Supreme Court justices are more likely to cite well-grounded precedent when their opinions face greater scrutiny. In this paper, I continue this line of research by examining whether citation practice varies along individual-level characteristics such as judicial ideology, a propensity for activism, judicial background, and judicial roles. I find that most individual-level factors have little or no impact on how justices ground their opinions in prior precedent, with the exception of judicial activism, which has a moderate negative impact on the centrality of the …

Weather Permitting: Incrementalism, Animus, And The Art (And Sometimes Artifice) In Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

Jeremiah A Ho

Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animus-focused jurisprudence for lifting the discrimination against …

The Uncertain Promise Of Predictive Coding, Dana Remus

Dana Remus

No abstract provided.

Social Framework Studies Such As “Women Don’T Ask” And “It Does Hurt To Ask” Show Us The Next Step Toward Achieving Gender Equality—Eliminating The Long Term Effects Of Implicit Bias—But Are Not Likely To Get Cases Past Summary Judgment, Andrea Doneff

Andrea Doneff

Social Framework evidence has been used for many years to explain how statements or actions indicate discriminatory motive. For example, social framework evidence helps us understand how statements that a woman should dress more femininely or attend charm school near the time of a decision not to offer her partnership demonstrate stereotyped behavior and therefore indicate discriminatory motives for the employment decision. Recent social framework studies show that women often do not negotiate on their own behalf and, when they do, they are perceived negatively by both men and women. Complementary studies show that negative perceptions play out over the …

Is Brown Holding Us Back? Moving Forward, Sixty Years Later, Palma Joy Strand

palma joy strand

Brown v. Board of Education brought the democratic value of equality to U.S. democracy, which had previously centered primarily on popular control. Brown has not, however, resulted in actual educational equality—or universal educational quality. Developments since Brown have changed the educational landscape. While the social salience of race has evolved, economic inequality has risen dramatically. Legislative and other developments have institutionalized distrust of those who do the day-to-day work of education: public schools and the teachers within them. Demographic and economic shifts have made comprehensive preschool through post-secondary education a 21st-century imperative, while Common Core Standards represent a significant step …

Systemic Harms And Shareholder Value, Jeffrey N. Gordon

Jeffrey N Gordon

The financial crisis has demonstrated serious flaws in the corporate governance of systemically important financial firms. In particular, the Shareholder Value norm, which has guided corporate governance reform for a generation, proves to be a faulty guide for managerial action in systemically important firms. This is not only because the failure of such firms will have spillovers that defy the cost-internalization of the tort system but also because these spillovers will harm their own majoritarian shareholders. The interests of diversified shareholders fundamentally diverge from the interests of managers and other controllers because the failure of a systemically important financial firm …

Will The Income-Based Repayment Program Enable Law Schools To Continue To Provide "Harvard-Style" Legal Education?, Greg Crespi

Greg Crespi

ABSTRACT Legal education provided in the prevailing “Harvard-style” now costs students on average between $160,000 and $250,000 for their three years of study, the precise amount depending on the law school attended, the alternative employment opportunities foregone, and the amount of scholarship assistance provided. However, the median starting salary for full-time, entry-level legal positions has declined in recent years to only $60,000/year, and upwards of 45% of recent law graduates are now unable to obtain full-time legal employment within 9 months of their graduation, and this dismal employment situation is unlikely to significantly improve over the next few years. While …

One Toke Over The (State) Line: Constitutional Limits On "Pot Tourism" Restrictions, Brannon P. Denning

Brannon P. Denning

Among the myriad legal issues confronting states like Colorado that are experimenting with the legalization of marijuana is the need to regulate “pot tourism” by persons from other states where marijuana is not legal. In Colorado, the final recommendations from the Amendment 64 Implementation Task Force included a proposal “to limit purchases by state residents to an ounce at a time and to a quarter of an ounce for out-of-state visitors.” The lower restrictions for nonresidents are designed to deter pot tourists from “smurfing”—visiting a number of different dispensaries to accumulate larger amounts of marijuana with a view to illegally …

Stabilizing Low-Wage Work: Legal Remedies For Unpredictable Work Hours & Income Stability, Nantiya Ruan, Charlotte Alexander, Anna Haley-Lock

Nantiya Ruan

Low-wage, hourly-paid service workers are increasingly subject to employers’ “just-in-time” scheduling practices. In a just-in-time model, employers give workers little advance notice of their schedules, call workers in to work during non-scheduled times to meet unexpected customer demand, and send workers home early when business is slow. The federal Fair Labor Standards Act, the main guarantor of workers’ wage and hour rights, provides no remedy for the unpredictable work hours and income instability caused by employers’ last minute call-in and send-home practices. This Article examines two alternative sources of legal protection that have received little attention in the literature on …

Slaves To Copyright: Branding Human Flesh As A Tangible Medium Of Expression, Arrielle S. Millstein

Arrielle S Millstein

This paper argues why human flesh, because of its inherent properties and its necessity for human survival, should not qualify as a tangible medium of expression under the Copyright Act of 1976. Through policy concerns and property law this paper demonstrates why the fixation requirement, necessary to obtain copyright protection of a “work,” must be flexible and eliminate human flesh as an acceptable, tangible medium of expression, to avoid the disastrous risk of the court falling into the role of “21st Century judicial slave masters.”

Improving Parity In Personal Jurisdiction And Judgment Enforcement In International Cases: A Domestic Proposal To Help Revive The Hague Judgments Convention, Eric Porterfield

Eric Porterfield

Two aspects of American law inadvertently discriminate against American consumers and businesses to the benefit of foreign nationals. Restrictive personal jurisdiction rules often prevent American courts from exercising jurisdiction over foreign nationals on the grounds that they lack sufficient “contact” with the forum. Foreign product manufacturers can use this to their advantage, structuring their business dealings to take advantage of confusing constitutional constraints on personal jurisdiction, reducing, if not eliminating, the risk of potential tort liability in American courts, often leaving American consumers without a remedy and disadvantaging American businesses. American companies, in contrast, cannot avoid American tort law at …

Creating A Six-Semester Writing Requirement: Using Legal Writing's "Hobble" To Solve Legal Education's Problem", Kristen Konrad Robbins-Tiscione

Kristen Konrad Robbins-Tiscione

The attached article argues that the best way to solve the current crisis in legal education is for law schools to commit to teaching writing by creating a six-semester writing requirement. In a 2011 article published in the Journal of Legal Education, John Lynch urged legal writing faculty to return to an outmoded and ineffective writing pedagogy, the “product approach,” on the grounds that it would make teaching legal writing easier. This article demonstrates that what Lynch calls legal writing’s hobble has become legal education’s problem. By failing to commit to teaching writing, law students are graduating without adequate preparation …

The Underutilized Foreign Investor, Griffin Weaver

Griffin Weaver

For most states, if not all, the push for economic advancement is at the front of every administration’s agenda. This is especially true for developing countries in the Middle East whose standard of living and international power is largely tied to its economic condition. An important indicator, if not condition, of a state’s economic health is the level of foreign direct investment (FDI) received by the state. This inflow of money is essential for the growth and stability of a state’s economy. As one U.S. official once noted, the United States “need[s] a net inflow of capital of $3 billion …

State Fertilizer Bills: The Greenest Way To A More Natural Landscape?, Catherine M. Janasie

Catherine M Janasie

Abstract: State Fertilizer Bills: The Greenest Way to a More Natural Landscape?

By: Catherine Janasie, J.D., LL.M.

Ocean and Coastal Law Fellow

Mississippi-Alabama Sea Grant Legal Program at The University of Mississippi School of Law

Because the Federal Clean Water Act focuses mostly on point source pollution, states consider nonpoint source pollution to be the leading cause of water pollution in their waterways. Until recently, many thought that the regulation of fertilizer use by individual homeowners would invade too much on personal choice, which would make a fertilizer statute too unpopular for state legislators to pass. However, in an attempt …