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Full-Text Articles in Law

Delimiting Fiduciary Status, Julian Velasco May 2018

Delimiting Fiduciary Status, Julian Velasco

Journal Articles

A familiar problem to scholars of fiduciary law is that of definition. Fiduciary law has been called “messy,” “elusive,” and “unusually vexing.” In part, this is because fiduciary law principles appear in many areas of law, but are applied differently in each. This has made the development of a unified theory difficult. Some scholars have doubted whether it is even possible; others have insisted that it is not possible. Nevertheless, scholars continue to try to bring order to the perceived chaos. My goal in this short paper will be to sketch out the contours of a reasonably coherent theory that ...


Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps May 2018

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Journal Articles

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an ...


The #Buffalo 25 And The New Era Of Immigration Enforcement, Nicole Hallett May 2018

The #Buffalo 25 And The New Era Of Immigration Enforcement, Nicole Hallett

Journal Articles

No abstract provided.


Secret Law, Jonathan Manes Apr 2018

Secret Law, Jonathan Manes

Journal Articles

The law cannot be a secret hidden from the public. This proposition strikes most of us as uncontroversial—a basic premise of any legal order committed to democratic accountability and the rule of law. Yet in this country secret law not only exists, but has become an entrenched feature of contemporary national security governance. From NSA surveillance to terrorist watch lists to targeted killings, the most controversial national security programs of our time have all been governed by secret rules, secret directives, and secret legal interpretations.

This Article sheds new light on this deeply unsettling state of affairs. It pushes ...


To Dress For Dinner: Teaching Law In A Bureaucratic Age, John Henry Schlegel Apr 2018

To Dress For Dinner: Teaching Law In A Bureaucratic Age, John Henry Schlegel

Journal Articles

No abstract provided.


Unforeseen Land Uses: The Effect Of Marijuana Legalization On Land Conservation Programs, Jessica Owley Apr 2018

Unforeseen Land Uses: The Effect Of Marijuana Legalization On Land Conservation Programs, Jessica Owley

Journal Articles

This Article explores the tension between land conservation and marijuana cultivation in the context of legalization. The legalization of marijuana has the potential to shift the locations of marijuana cultivation. Where cultivation need no longer be surreptitious and clandestine, growers may begin to explore sanctioned growing sites and methods. Thus, the shift to legalization may be accompanied by environmental and land-use implications. Investigating commercial-scale marijuana cultivation, this Article details how, in some ways, legalization can reduce environmental impacts of marijuana cultivation while also examining tricky issues regarding tensions between protected lands and marijuana cultivation. If we treat cultivation of marijuana ...


Unicorns, Guardians, And The Concentration Of The U.S. Equity Markets, Amy Deen Westbrook, David A. Westbrook Mar 2018

Unicorns, Guardians, And The Concentration Of The U.S. Equity Markets, Amy Deen Westbrook, David A. Westbrook

Journal Articles

No abstract provided.


Economic Analysis In Labor Regulation, Hiba Hafiz Jan 2018

Economic Analysis In Labor Regulation, Hiba Hafiz

Journal Articles

No abstract provided.


Picketing In The New Economy, Hiba Hafiz Jan 2018

Picketing In The New Economy, Hiba Hafiz

Journal Articles

No abstract provided.


The States' Interest In Federal Procedure, Diego Zambrano Jan 2018

The States' Interest In Federal Procedure, Diego Zambrano

Journal Articles

No abstract provided.


The Political Economy Of Celebrity Rights, Mark Bartholomew Jan 2018

The Political Economy Of Celebrity Rights, Mark Bartholomew

Journal Articles

This essay discusses how the right of publicity became such a robust property right — much more far-reaching than analogous rights in copyright or trademark. One cannot explain the accretion of celebrity publicity rights as a matter of legal logic or simple reaction to the growing economic value of celebrity endorsements. Instead, the essay explains the right's expansion from the perspective of political economy. Critical innovations to the right of publicity occurred in the particular political environment of the 1980s and 1990s. Despite some groups' resistance to new, specialized entitlements for celebrities, the conditions were right for a particular coalition ...


Characterizing Constitutional Inputs, Michael Coenen Jan 2018

Characterizing Constitutional Inputs, Michael Coenen

Journal Articles

No abstract provided.


Defining The Economic Pie, Not Dividing Or Maximizing It, Martha T. Mccluskey Jan 2018

Defining The Economic Pie, Not Dividing Or Maximizing It, Martha T. Mccluskey

Journal Articles

This essay challenges the question that drives much of legal analysis: whether to maximize or divide the “economic pie.” Regardless of the answer, this question skews legal analysis and rests on dubious economics. This framing binary inherently presents economic maximizing as the presumptive norm, represented as superior to socioeconomic distribution in both spatial and temporal dimensions. By definition, economic “maximizing” stands larger in scope and first in order. The essay first critiques the idea that legal analysis can aim to make the economy bigger without engaging contested questions of value and politics, showing how this misleading separation of quantity from ...


The Vatican View On Sport At The Service Of Humanity, Ed Edmonds Jan 2018

The Vatican View On Sport At The Service Of Humanity, Ed Edmonds

Journal Articles

Participation in sport, particularly the opportunity for children to enjoy and learn through play, is a human right and strongly supported by the goals of Catholic social teaching and the efforts of the Olympic Movement and the United Nations. On October 5-6, 2016, the Vatican held the Sport at the Service of Humanity Conference, the first global conference on sport and faith, an initiative promoted by Pope Francis and supported by the International Olympic Committee and the United Nations. This essay focuses on the conference, its vision and goals, and a challenge to use sport to advance human development and ...


Biting The Hands That Feed “The Alligators”: A Case Study In Morbid Obesity Extremes, End-Of-Life Care, And Prohibitions On Harming And Accelerating The End Of Life, Michael J. Malinowski Jan 2018

Biting The Hands That Feed “The Alligators”: A Case Study In Morbid Obesity Extremes, End-Of-Life Care, And Prohibitions On Harming And Accelerating The End Of Life, Michael J. Malinowski

Journal Articles

Obesity, recognized as a disease in the U.S. and at times as a terminal illness due to associated medical complications, is an American epidemic according to the Centers for Disease Control and Prevention (“CDC”), American Heart Association (“AHA”), and other authorities. More than one third of Americans (39.8% of adults and 18.5% of children) are medically obese. This article focuses on cases of “extreme morbid obesity” (“EMO”)—situations in which death is imminent without aggressive medical interventions, and bariatric surgery is the only treatment option with a realistic possibility of success. Bariatric surgeries themselves are very high ...


Globalization Without A Safety Net: The Challenge Of Protecting Cross-Border Funding Of Ngos, Lloyd H. Mayer Jan 2018

Globalization Without A Safety Net: The Challenge Of Protecting Cross-Border Funding Of Ngos, Lloyd H. Mayer

Journal Articles

More than 50 countries around the world have sharply increased legal restrictions on both domestic non-governmental organizations (“NGOs”) that receive funding from outside their home country and the foreign NGOs that provide such funding and other support. These restrictions include requiring advance government approval before a domestic NGO can accept cross-border funding, requiring such funding to be routed through government agencies, and prohibiting such funding for NGOs engaged in certain activities. Publicly justified by national security, accountability, and other concerns, these measures often go well beyond what is reasonably supported by such legitimate interests. These restrictions therefore violate international law ...


Uniform Enforcement Or Personalized Law? A Preliminary Examination Of Parking Ticket Appeals In Chicago, Randall K. Johnson Jan 2018

Uniform Enforcement Or Personalized Law? A Preliminary Examination Of Parking Ticket Appeals In Chicago, Randall K. Johnson

Journal Articles

This Article is one in a series of papers that sets the record straight about the type, quality, and quantity of information that U.S. cities may employ, so as to make more informed policy decisions. It does so, specifically, by examining information that is collected by the City of Chicago: in order to gauge the uniformity, as well as the relative cost effectiveness, of the parking ticket appeals process. The Article has six (VI) parts. Part I is the introduction, which sets the stage for a preliminary examination of the parking ticket appeals process in Chicago. Part II describes ...


Revisiting Seminole Rock, Jeffrey A. Pojanowski Jan 2018

Revisiting Seminole Rock, Jeffrey A. Pojanowski

Journal Articles

The rule that reviewing courts must defer to agencies’ interpretations of their own regulations has come under scrutiny in recent years. Critics contend that this doctrine, often associated with the 1997 Supreme Court decision Auer v. Robbins, violates the separation of powers, gives agencies perverse regulatory incentives, and undermines the judiciary’s duty to say what the law is.

This essay offers a different argument as to why Auer is literally and prosaically bad law. Auer deference appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock. A closer look at Seminole ...


Reconstructing An Administrative Republic, Jeffrey A. Pojanowski Jan 2018

Reconstructing An Administrative Republic, Jeffrey A. Pojanowski

Journal Articles

The book Constitutional Coup, by Professor Jon D. Michaels, offers a learned, lucid, and important argument about the relationship between privatization, constitutional structure, and public values in administrative governance. In particular, Michaels argues that the press toward privatization in this domain poses a serious threat to the United States' separation of powers and the public interest. This review essay introduces readers to Michaels' argument and then raises two questions: First, it asks whether Michaels’ method of constitutional interpretation and doctrinal analysis accelerate the trend toward privatization and consolidation of power in agency heads, the very evils he seeks to avoid ...


Precedent And Constitutional Structure, Randy J. Kozel Jan 2018

Precedent And Constitutional Structure, Randy J. Kozel

Journal Articles

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion. Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and ...


How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It, David H. Kaye Jan 2018

How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It, David H. Kaye

Journal Articles

A recent report of the President’s Council of Advisors on Science and Technology questioned the validity of several types of criminalistics identification evidence and recommended “a best practices manual and an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.” This article supplies information on why and how judicial bodies concerned with possible rules changes—and courts applying the current rules—can improve their regulation of criminalistics identification evidence. First, it describes how courts have failed to faithfully apply Daubert v. Merrell Dow Pharmaceutical’s criteria ...


Firearm-Mark Evidence: Looking Back And Looking Ahead, David H. Kaye Jan 2018

Firearm-Mark Evidence: Looking Back And Looking Ahead, David H. Kaye

Journal Articles

This article, written as a contribution to a festschrift for Paul Giannelli, surveys the development of the law on one type of feature-matching evidence that repeatedly attracted Professor Giannelli’s attention — “firearm-mark evidence.” By inspecting toolmarks on bullets or spent cartridge cases, firearms examiners can supply valuable information on whether a particular gun fired the ammunition in question. But the limits on this information have not always been respected in court, and a growing number of opinions have tried to address this fact.

The article explains how the courts have moved from a position of skepticism of the ability of ...


Immigration Enforcement And The Future Of Discretion, Shoba Wadhia Jan 2018

Immigration Enforcement And The Future Of Discretion, Shoba Wadhia

Journal Articles

No abstract provided.


Improving Tax Rules By Means-Testing: Bridging Wealth Inequality And "Ability To Pay", James M. Puckett Jan 2018

Improving Tax Rules By Means-Testing: Bridging Wealth Inequality And "Ability To Pay", James M. Puckett

Journal Articles

The federal income tax can and should do more to address wealth disparities and income inequality. The income tax does not directly count wealth, and the realization rule and basis "step-up" at death exclude substantial amounts of income for the wealthy. The Constitution limits Congress's ability to tax wealth. Despite these serious challenges, this Article considers how to potentially bridge the gap between wealth and the income tax. For example, asset-based phase-outs in the income tax should pass muster without apportionment, although their bite would necessarily be limited. The Article posits that the public would be more receptive to ...


Moral Commitments In Cost-Benefit Analysis, Eric A. Posner, Cass R. Sunstein Dec 2017

Moral Commitments In Cost-Benefit Analysis, Eric A. Posner, Cass R. Sunstein

Journal Articles

No abstract provided.


Interpreting Contracts Via Surveys And Experiments, Lior Strahilevitz, Omri Ben-Shahar Dec 2017

Interpreting Contracts Via Surveys And Experiments, Lior Strahilevitz, Omri Ben-Shahar

Journal Articles

No abstract provided.


More Restrictive Alternatives, Michael Coenen Dec 2017

More Restrictive Alternatives, Michael Coenen

Journal Articles

No abstract provided.


Continuing Derrick Bell's Devotion In Creative Action, Angela Mae Kupenda Nov 2017

Continuing Derrick Bell's Devotion In Creative Action, Angela Mae Kupenda

Journal Articles

I remember my first time seeing Derrick Bell in person and hearing him speak, just a few years before he passed away. I was in awe of him for many reasons, but primarily for two reasons. First, I noted from watching him with his devoted students, how mutual was the devotion coming from him—devotion to them as people and as those who would surely carry on his great work of seeking to forge equality in America and beyond. And second, I was in awe of him because of his devotion to the elimination of racism, while at the same ...


Hidden Law: Taking The Comments More Seriously, Melissa T. Lonegrass Nov 2017

Hidden Law: Taking The Comments More Seriously, Melissa T. Lonegrass

Journal Articles

No abstract provided.


Embracing Our First Responder Role As Academics - With Inspiration From Langston Hughes, Angela Mae Kupenda Oct 2017

Embracing Our First Responder Role As Academics - With Inspiration From Langston Hughes, Angela Mae Kupenda

Journal Articles

In the midst of the post-2016 political crisis, our role as academics is that of First Responders. In physical crises, like a fire, First Responders play an important role. They intentionally put themselves in harm’s way to fulfill an overarching purpose of helping others, even at their own risk. They strategically prepare, train, and work for years to prepare for this role in the midst of crisis. As academics who care about equality, we are First Responders.