Law Commons^™

The Judge-Made Constitutional Penumbra: Why Anti-Bds Laws Unavoidably Implicate The First Amendment And How The Eighth Circuit Avoided Them, Tasneem Huq

Missouri Law Review

Freedom of speech and assembly, as protected by the First Amendment, has long been a defining character of “The Land of the Free.” Much of American history has been influenced by actions deemed protected by the First Amendment. Such protection offers American citizens power that the Constitution otherwise reserves for the three government branches: the power to change the law which all American citizens live under and by which they must abide. A commonly recognized form of expression protected by the First Amendment is participation in non-violent protests. The Palestinian advocacy movement is one such movement that utilizes this form …

Time For An Audible: Possible Solutions For Nil Collectives Seeking Tax-Exempt Status Following Irs Memo, Austin Siener

Missouri Law Review

The United States Supreme Court’s decision in NCAA v. Alston sent shockwaves throughout the world of college sports. The Court’s recognition of student athletes’ abilities to profit from their name, image, and likeness (“NIL”) revolutionized the landscape of collegiate athletics. Shortly thereafter, the National Collegiate Athletic Association (the “NCAA”) adopted its Interim NIL Policy, explicitly allowing opportunities for companies, entities, or individuals to pay student athletes for use of their NIL. Unsurprisingly, athletes capitalized on the opportunities immediately. For example, Hanna and Haley Cavinder, former women’s college basketball players with millions of followers on social media, completed an NIL deal …

The Rhetoric Of Abortion In Amicus Briefs, Jamie R. Abrams, Amanda Potts

Missouri Law Review

The amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women’s Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage …

Exploring Key Antirust Implications Of Conference Consolidation In College Football, Kamron Cox

Missouri Law Review

This paper explores a future in which two “super conferences” dominate college football. Considering the erosion of the PAC 12 Conference and the looming threats to the Atlantic Coast Conference against the skyrocketing media rights revenues of the Big Ten Conference and the Southeastern Conference (“Power Two”), thought leaders across college athletics anticipate that future industry changes will be characterized by a continued consolidation of valuable college football brands into fewer high major conferences than we see today. At the same time, the frequency and public sentiment toward legal attacks on student-athlete compensation restrictions are now such that major college …

Liking, Linking, And Tweeting: Mental Health, Mentoring, And Professional Responsibility In The Age Of Social Media, B. Summer Chandler

Missouri Law Review

It should come as no surprise that interaction through social media and other forms of technology mediated communications (“TMC”) has grown dramatically over the last two decades. The Covid-19 pandemic exacerbated this turn to technology. Communicating through some form of technology, rather than face-to-face, necessarily changes the methods we use to communicate (a smile emoji in a text replaces a smile you might give in a face-to-face discussion, for example). Studies support, however, that, in addition to changing the means by which we communicate, our increased reliance on TMC may also be changing us. Among other things, some studies show …

The Back-And-Forth Battle Of Defining Independent Contractors, Jessie O'Brien

Missouri Law Review

Gone are the times where employers automatically chain workers to cubicles and bind them to regimented schedules motivated by corporate America. Modern jobs come with new and liberating choices—choices to be your own boss, create your own schedule, and control your own time. Virtually all industries reflect these choices through specialized positions, such as freelancing, consulting, and “gig work.” These work arrangements are broadly referred to as independent contracting. Contracting arrangements offer greater flexibility and independence to workers than traditional employer-employee arrangements. To no surprise, these attractive features of independent contracting have led to a significant rise of independent contractors …

Turning From A Hire Power: Employment Discrimination And Faulty Ninth Circuit Procedure, Matthew Swords

Missouri Law Review

You just applied for your dream job. As anticipation for a response amounts, you become overwhelmed with a sense of optimism. You know you are overqualified, yet a few days later, you receive notification that the employer is no longer considering you for the position. Despite meeting all requisite qualifications, you feel slighted. You wonder if another factor is at play. Conversely, imagine you actually get the job. You accept, and you work at the company for a few years only to one day have your boss inform you that your employer is terminating your employment. Again, you feel slighted. …

Rigor Or Reach? Strictness Or Scope?: The Continuing Battle Over The Parameters Of The Supreme Court’S Daubert/Kumho Reliability/Validation Test For The Admissibility Of Expert Testimony, Edward J. Imwinkelried

Missouri Law Review

Expert testimony is offered at the overwhelming majority of trials conducted in the United States. In many of these cases, it is absolutely essential for the plaintiff or prosecutor to introduce such testimony. The plaintiff may need expert testimony to prove general causation in a toxic Tort case, and similarly the prosecutor may need to resort to expert testimony to establish the accused’s identity as the perpetrator of the charged crime. For decades, the proponents of expert testimony have mounted campaigns to lower the evidentiary barriers to expert testimony. For most of the 20th century, the governing American test for …

Law’S Impact On Collaboration: A Three-Case Study Of Federal Advisory Committees Managed By The U. S. Coast Guard, Brian K. Mcnamara

School of Public Service Theses & Dissertations

Much remains to be learned about law’s impact on collaboration. Although law is one of the foundational disciplines of public administration, scholars assert that the field focuses on management principles to the detriment of law. Whether this assertion is correct as a general matter for the field, collaboration scholarship lacks empirical examination of the law’s role in collaboration processes.

This three-case study of federal advisory committees managed by the U.S. Coast Guard examines law’s impact on collaboration through the lens of Thomson and Perry’s (2006) Process Model. A qualitative method is used to capture participants’ perceptions of law and their …

Understanding The Role Of Adverse Childhood Experiences On Resilience In Police Officers, Wayne F. Handley

Counseling & Human Services Theses & Dissertations

Police officers are subject to a variety of stressors not only from job-related events resulting from direct or vicarious trauma exposure (Andersen & Papazoglou, 2014; Brown et al., 1999; Iversen et al., 2008) but also from family and personal concerns (Burke, 1998; Page & Jacobs, 2011), and administrative pressures originating from within their own agencies (Violanti et al., 2018; White et al., 2016). Prior to their careers as police officers, individuals may also be exposed to traumatic events early in life. Adverse Childhood Experiences (ACEs) are described as negative events related to emotional, physical, or sexual abuse or neglect, exposure …

Partners In Crisis: A Phenomenological Exploration Of Collaboration Between Crisis Intervention Team Officers And Mental Health Professionals, Jessica L. Huffman

Counseling & Human Services Theses & Dissertations

Law enforcement officers (LEOs) are often the first responders to crisis situations, which increasingly include mental health crises. Collaborating with mental health professionals and organizations increases the likelihood that individuals will receive a response that is contextually and culturally informed by an understanding of mental health needs and considerations. For this reason, Crisis Intervention Teams (CIT) have been established to train LEOs and to unite efforts with mental health professionals, advocates, and community constituents. While there is existing and ongoing literature exploring the responses provided by CIT, there is limited research on the experiences of CITs related to their unique …

The Lack Of Responsibility Of Higher Educaiton Institutions In Addressing Phishing Emails And Data Breaches, Muxuan (Muriel) Wang

Duke Law & Technology Review

Higher education institutions (HEIs) are highly susceptible to cyberattacks, particularly those facilitated through phishing, due to the substantial volume of confidential student and staff data and valuable research information they hold. Despite federal legislations focusing on bolstering cybersecurity for critical institutions handling medical and financial data, HEIs have not received similar attention. This Note examines the minimal obligations imposed on HEIs by existing federal and state statutes concerning data breaches, the absence of requirements for HEIs to educate employees and students about phishing attacks, and potential strategies to improve student protection against data breaches.

The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw

Articles

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates …

Mapping The Jurisprudence Of The Facebook Court, Tao Huang

Buffalo Law Review

The Oversight Board of Facebook (now Meta) has been described as a “court.” Acting like a judicial body, it adjudicates disputes about content moderation decisions of Meta. In some sense, the Board is a great experiment: it enables us, for the first time, to observe, analyze, and assess how private platforms can borrow the model of judicial review to enhance their governance, how the new platform laws have differed from and interacted with the old State laws, and what new principles, rules, and methods will emerge in this process of interaction, accommodation, and innovation. These developments constitute a crucial part …

The Case For Waivable Employee Rights: A Contrarian View, William R. Corbett

Buffalo Law Review

No abstract provided.

The Gettysburg Address: Lincoln’S Model Legal Argument, Patrick J. Long

Buffalo Law Review

The Gettysburg Address does not appear to be a legal argument. One cannot find a rule anywhere in its few words. Nor does there seem to be any application of a rule to the facts of the case. There is a simple reason for this absence: the law in 1863 was wrong. Lincoln knew that, but he was too much the lawyer to advocate law-breaking. Instead, he used all the skills he had learned from his years in the courtroom to urge his listeners to look beyond the law’s flaws to find the truth of the Declaration’s “self-evident truth.”

A New Federalist Approach To Reducing Gun Violence: Model State Policy For Medicaid-Funded, Hospital-Based Violence Intervention Programs, Racquel Bozzelli

Buffalo Law Review

No abstract provided.

A Proposed Framework For A Federal Inevitable Disclosure Doctrine Under The Defend Trade Secrets Act, Michael J. Garrison, Dawn R. Swink, John T. Wendt

Buffalo Law Review

No abstract provided.

Resurrecting Weighted Voting, Norman R. Williams

Buffalo Law Review

No abstract provided.

Juristic Consideration On The Separation Of Religion And Politics And Civil Religion, Hiroshi Nitta

Japanese Society and Culture

The separation of church and state is the separation of state power from religion. It prohibits the establishment of a state religion and the suppression of other religions. Whereas the First Amendment to the US Constitution prohibits the establishment of a state religion, the Japanese Constitution does not stipulate the separation of church and state in the clear terms. The second sentence of Article 20,Paragraph 1,Article 20,Paragraph 3,and Article 89 are the basis for this provision.

The separation of church and state means a division between the church and state, or the abolition of a state religion, and not the …

A Framework For Thinking About The Future Of Japanese Society In The Face Of Declining Fertility And Population, Hirotaka Nagaishi

Japanese Society and Culture

Japanese society is facing declining birthrates and a shrinking population. According to Yoshinori Hiroi, what is indispensable for promoting regional and urban revitalization and seeking sustainability in this situation is the selection of values and concepts for a desirable society rooted in community. This society will ultimately be realized through policy integration/comprehensive policies.

Therefore, we must envisage a desirable future society, taking the current social situation as the starting point. Robert and Edward Skidelsky see the current capitalist society as a “rich enough, poor enough society,” while Hiroi sees the future society as a “post-capitalist/post-industrial society” and considers it as …

Legal Regulation Of Communication Wiretapping, Lian Chen, Wenyu Zhong

Japanese Society and Culture

No abstract provided.

Debates Over Whether Tenno Is A Monarch Or Not, Thomas Makoto Naruse

Japanese Society and Culture

Article 1 of the Japanese Constitution stipulates that Tenno is the " symbol of the State and of the unity of the people". Under Japanese Constitution, Tenno has deprived of political authorities, and prohibited from involving in the national politics. On the other hand, monarch's traditional merkmar includes a certain degree of governing power, which Tenno does not possess. Here arise the problem that Tenno is a monarch or not, and this problem also relates to the question of whether political system of Japan is a monarchy or a republic. This article introduces academic views on this topic, and shows …

Authentication Of Cybernetic Avatars And Legal System Challenges; With A View To The Trial Concept Of New Dimensional Domain Jurisprudence (Ai, Robot, And Avatar Law), Fumio Shimpo

Japanese Society and Culture

This article aims to illustrate the basis for the development of authentication, which will be the foundation of future cybernetic-avatar (CA) infrastructures, enabling the safe and secure use of CA’s. This will be realised by the authentication of CA operators (User Authentication Technology), identification and authentication of CA’s (CA Authentication), and ensuring connectivity and existence between operators (User Entities) and the CA’s themselves (CA Notarisation). An ELSI (Ethical, Legal, Social Implications) research platform will be established, to develop a new dimension of the legal field, that is, AI, Robot, and Avatar Law to solve the social issues and realise an …

Reinterpreting Article 9 Of Japanese Constitutional Law From The International Law Perspective, Hiroshi Saito

Japanese Society and Culture

This essay aims to demonstrate that the right of collective self-defense complements that of individual self-defense. Moreover, by exercising both rights of self-defense together, the ideals of the United Nations (UN) Charter and Japanese constitutional law can be implemented as stipulated.

However, this essay focuses on ensuring better consistency with the present time (synchronicity) rather than historical facts (historicity). Additionally, I have cited cases wherein the ideas and theories presented are controversial in academic circles. I cannot discuss them individually in this essay owing to space limitations, but I will consider them in a future opportunity. Finally, I would like …

Does Childcare Support Stimulate Women’S Employment?, Masako Kamada, Kazuyasu Kawasaki

Japanese Society and Culture

A childcare support policy was implemented as part of gender equality and countermeasures to the falling birthrate in Japan. One of the childcare support policies was provided preschool service free of charge in October 2019.

In this paper, we analyze whether this childcare cost reduction policy was effective or not. Especially, we focus on whether this childcare support policy contribute to accelerate female labor force participation or not. As a result of our analysis, we show childcare cost reduction policy is ineffective of female labor force participation.

The Legal Order In East Asian Family Law, Sai Sasaki

Japanese Society and Culture

No abstract provided.

The Dormant Commerce Clause And The Dubious Constitutionality Of State Regulation Of Social Media, Charles Bachmann

ERSJ Blog

There is growing recognition in the medical community that social media applications are harmful to mental health, particularly for young people. Researchers have observed an inverse relationship between social media use and various measures of psychological well-being. The testimony of former Meta insiders like Frances Haugen and Arturo Béjar has brought the issue into the political mainstream, highlighting the fact that social media operators are aware of the harmful effects of their products. Although the exact mechanisms are still under study, the prevailing theories suggest that the very structure of social media applications promotes unhealthy, and potentially addictive, habits among …

Cardozo Law News Brief: March 29, 2024, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2024

Featured Faculty:

• Jessica Roth
• Stewart Sterk
• Luis Calderon Gomez
• Emmanuel Arnaud
• Young Ran (Christine) Kim

Events:

• The 2024 Cardozo Colloquium on Global and Constitutional Theory
• The FAME Center Presents: A Conversation with Mark Weber

Public Health Consequences Of Appellate Standards For Hostile Work Environment Claims, Lauren Krumholz

Washington Journal of Social & Environmental Justice

No abstract provided.