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Full-Text Articles in Law

The Potential Utility Of Disciplinary Regulation As A Remedy For Abuses Of Prosecutorial Discretion, Samuel J. Levine Jan 2017

The Potential Utility Of Disciplinary Regulation As A Remedy For Abuses Of Prosecutorial Discretion, Samuel J. Levine

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This Essay is part of a larger project exploring the possibility that, contrary to much of the prevailing scholarship, judicial supervision of the prosecutor’s charging decision—through both expansive judicial interpretation of current ethics rules and judicial enactment and enforcement of more extensive ethics rules—might serve as a viable and effective mechanism for meaningful review and regulation.

In a forthcoming article, Bruce Green and I identify and respond to some of the reasons scholars have generally steered clear of considering the option that judges might play a more robust role in supervising prosecutors’ charging discretion by implementing enhanced ...


Introduction, Legal Scholarship In Jewish Law, Samuel J. Levine Jan 2017

Introduction, Legal Scholarship In Jewish Law, Samuel J. Levine

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In recent years, Jewish law has gained significant prominence in American legal scholarship, producing a substantial body of literature exploring the Jewish legal system, both on its own terms and in comparative perspective. In particular, the past few decades have seen a marked increase in the number of articles published in American law reviews addressing substantive, procedural, and conceptual aspects of Jewish law, often in the context of broader considerations of important, unsettled, and controversial issues in American legal thought.

In the past, a number of scholars have compiled bibliographies collecting and, at times, briefly annotating, lists of selected works ...


Public Pension Reform And The Takings Clause, Michael B. Kent Jr. Jan 2017

Public Pension Reform And The Takings Clause, Michael B. Kent Jr.

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This Article seeks to fill the gap left open by previous judicial and scholarly treatment and begin a more robust conversation about the role of the Takings Clause in public pension reform litigation.


The Color Of Fear: A Cognitive-Rhetorical Analysis Of How Florida’S Subjective Fear Standard In Stand Your Ground Cases Ratifies Racism, Elizabeth Berenguer Jan 2017

The Color Of Fear: A Cognitive-Rhetorical Analysis Of How Florida’S Subjective Fear Standard In Stand Your Ground Cases Ratifies Racism, Elizabeth Berenguer

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No abstract provided.


Murder For Life Insurance Money: Protecting The Children, Johnny C. Chriscoe Jan 2017

Murder For Life Insurance Money: Protecting The Children, Johnny C. Chriscoe

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Children are being murdered for life insurance proceeds.

Of course, if a beneficiary murders a child for the recovery of life insurance money and if he is apprehended, he will surely face numerous legal consequences. He will not recover the insurance money, he will be prosecuted and likely sentenced to life imprisonment or execution, he may be sued for the wrongful death of the child and he may be prosecuted for insurance fraud. However, all of these legal responses are triggered by the death of the child and, therefore, do not serve to protect the child from being murdered in ...


Jurisprudence And Structural Realism, Kevin Lee Jan 2017

Jurisprudence And Structural Realism, Kevin Lee

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Some Anglophone legal theorists look to analytic philosophy for core presuppositions. For example, the epistemological theories of Ludwig Wittgenstein and Willard Quine shape the theories of Dennis Patterson and Brian Leiter, respectively. These epistemologies are anti-foundational since they reject the kind of certain grounding that is exemplified in Cartesian philosophy. And, they are coherentist in that they seek to legitimate truth-claims by reference to entire linguistic systems. While these theories are insightful, the current context of information and communication technologies (ICT) has created new informational concepts and issues. As a result, the analytic epistemologies are increasingly challenged by alternative perspectives ...


Trademark Boundaries And 3d Printing, Lucas S. Osborn Jan 2017

Trademark Boundaries And 3d Printing, Lucas S. Osborn

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No abstract provided.


Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine Jan 2017

Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine

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In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed—and seemed to resolve—a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered ...


A Reply To The National Conference Of Bar Examiners: More Talk, No Answers, So Keep On Shopping, Suzanne Darrow Kleinhaus Jan 2017

A Reply To The National Conference Of Bar Examiners: More Talk, No Answers, So Keep On Shopping, Suzanne Darrow Kleinhaus

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In Let the Games Begin: Jurisdiction-Shopping for the Shopaholics (Good Luck With That) Mark Albanese defends the National Conference of Bar Examiners’ grading practices as essential to assuring reliability given the variability in grading between UBE jurisdictions. In addressing the claim that it is possible to achieve different outcomes on the same test by the same candidate if taken in different UBE jurisdictions, he describes how NCBE monitors jurisdiction variation to ensure grading consistency. Those of us concerned, however, with the possibility that the jurisdiction in which a candidate takes the Uniform Bar Examination (UBE) may make the difference between ...


The Use And Abuse Of Mutual-Support Programs In Drug Courts, Sara G. Gordon Jan 2017

The Use And Abuse Of Mutual-Support Programs In Drug Courts, Sara G. Gordon

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There is a large gap between what we know about the disease of addiction and its appropriate treatment, and the treatment received by individuals who are ordered into treatment as a condition of participation in drug court. Most medical professionals are not appropriately trained about addiction and most addiction treatment providers do not have the education and training necessary to provide appropriate evidence-based services to individuals who are referred by drug courts for addiction treatment. This disconnect between our understanding of addiction and available addiction treatment has wide-reaching impact for individuals who attempt to receive medical care for addiction in ...


Rhetoric & Reality In The Aba Standards, Linda L. Berger Jan 2017

Rhetoric & Reality In The Aba Standards, Linda L. Berger

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The rhetoric of Chapters 3 and 4 of the ABA Standards creates, maintains, and perpetuates hierarchies in law school faculties. Those hierarchies subordinate some categories of faculty members and the courses they teach. Without change in the Standards or their implementation, these hierarchies will remain, and the values and norms of traditionally privileged faculty and subject matters will become even more firmly embedded as representing the best of the legal academy. By adopting the 405(c) “best practices” policy statement, individual law schools and law faculties take upon themselves the power to demonstrate that the ABA Standards are the floor ...


Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum Jan 2017

Trial And Error: Legislating Adr For Medical Malpractice Reform, Lydia Nussbaum

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The U.S. healthcare system has a problem: hundreds of thousands of people die each year, and over a million are injured, by medical mistakes that could have been avoided. Furthermore, over ninety percent of these patients and their families never learn of the errors or receive redress. This problem persists, despite myriad reforms to the medical malpractice system, because of lawmakers' dominant focus on reducing providers' liability insurance costs. Reform objectives are beginning to change, however, and the vehicle for implementing these changes is alternative dispute resolution ("ADR"). Historically, legislatures deployed ADR to curb malpractice litigation and restrict patients ...


Using Feminist Theory To Advance Equal Justice Under Law, Linda L. Berger, Bridget J. Crawford, Kathryn M. Stanchi Jan 2017

Using Feminist Theory To Advance Equal Justice Under Law, Linda L. Berger, Bridget J. Crawford, Kathryn M. Stanchi

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This essay provides an overview of the purposes, themes and scholarly methodologies evidenced at the October 2016 conference, The U.S. Feminist Judgments Project: Writing the Law, Rewriting the Future, a two-day conference hosted by the Center for Constitutional Law at the University of Akron School of Law. This essay provides some of the background to the development of the path-breaking book, Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press, 2016). It also focuses attention on the importance of diversity on the bench, with a particular need for judges who understand or experience the intersecting ...


Five Myths About Public Sector Labor Law In Nevada, Ruben J. Garcia Jan 2017

Five Myths About Public Sector Labor Law In Nevada, Ruben J. Garcia

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The forces of collective bargaining reform in the 78th Nevada Legislative Session primarily set about to: (1) make it easier for employees not to pay anything to the unions that are required to represent them in negotiations and grievance handling and (2) eliminate the kinds of agreements and practices that purportedly have caused financial turmoil to the state as it emerges from the depths of the Great Recession. Unfortunately, many of these “reforms” were based on misconceptions about the role and effects of public sector collective bargaining in Nevada and in American society generally. In this article, I describe five ...


Racial Anxieties In Adoption: Reflections On Adoptive Couple, White Parenthood, And Constitutional Challenges To The Icwa, Addie C. Rolnick Jan 2017

Racial Anxieties In Adoption: Reflections On Adoptive Couple, White Parenthood, And Constitutional Challenges To The Icwa, Addie C. Rolnick

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The Indian Child Welfare Act (ICWA) is under fire from people who argue that it interferes with adoptions and violates the constitution by doing so. The current crop of lawsuits is an outgrowth of a 2012 case in which the Supreme Court heard its second-ever challenge to the law. While the Court sidestepped the most far-reaching anti-ICWA arguments, the majority opinion evidenced a deep skepticism about the law. This skepticism led the Court to narrow the law’s application so that it didn’t apply to the family involved, and it seemed to invite further challenges to the law.


Judicial Federalism In The European Union, Michael Wells Jan 2017

Judicial Federalism In The European Union, Michael Wells

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This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples ...


Patent Working Requirements: Historical And Comparative Perspectives, Marketa Trimble Jan 2017

Patent Working Requirements: Historical And Comparative Perspectives, Marketa Trimble

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At the beginning of the 20th century, commentators referred to patent working requirements as the most contentious contemporary concept in patent law, and working requirements were at the center of discussions about revisions to the Paris Convention. By the end of the 20th century it seemed that working requirements attracted less attention; the TRIPS Agreement did not expressly mention working requirements at all. However, some TRIPS provisions do arguably relate to such requirements; in fact, some commentators believe that the TRIPS Agreement prevents countries from maintaining such requirements, at least in some forms. Although the lack of interest in working ...


Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards Jan 2017

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

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On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of ...


When Less Is More: An Ideological Rhetorical Analysis Of Selected Aba Standards On Curricula And Faculty, Linda L. Berger Jan 2017

When Less Is More: An Ideological Rhetorical Analysis Of Selected Aba Standards On Curricula And Faculty, Linda L. Berger

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This chapter undertakes an ideological rhetorical analysis of several key provisions of Chapters 3 and 4 of the American Bar Association’s Standards for Approval of Law Schools, specifically, the interrelated provisions that regulate the curriculum and specify the required conditions of employment for the faculty of a law school. The analysis of selected ABA Standards regulating curricula and faculty supports rhetorical analyst Sonja Foss’s conclusion that the “dominant ideology controls what participants see as natural or obvious by establishing the norm. . . . [and] provides a sense that things are the way they have to be as it asserts that ...


Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf Jan 2017

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

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Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn ...


Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf Jan 2017

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

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This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single technology, such ...


Teaching The Hipaa Privacy Rule, Stacey A. Tovino Jan 2017

Teaching The Hipaa Privacy Rule, Stacey A. Tovino

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Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include, but certainly are not limited to, a final rule published on January 25, 2013, governing the use and disclosure of protected health information by covered entities and their business associates (the ...


The Supreme Court’S Limited Public Forum, Sonja R. West Jan 2017

The Supreme Court’S Limited Public Forum, Sonja R. West

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When discussing the issue of transparency at the United States Supreme Court, most commentators focus on the line between public and private. Yet, transparency is not always such a black-or-white issue. There are, in fact, a surprising number of significant Court moments that occur neither wholly in public nor completely in private. Through policies that obstruct access by the general public and exploit real-world limitations on the press and practitioners, the justices have crafted a grey area in which they can be “public,” yet only to select audiences. The effect is that few outside the courtroom ever learn about these ...


Tribute To Sam Davis: A Georgia Perspective, Ronald L. Carlson Jan 2017

Tribute To Sam Davis: A Georgia Perspective, Ronald L. Carlson

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Sam Davis had a twenty-seven year history at Georgia, commencing in 1970. After a distinguished record as a student at the University of Mississippi School of Law, he joined the Georgia law faculty. Sam moved through the academic ranks, ultimately becoming Allen Post Professor of Law. Along the way he served, at various times, as Assistant Dean, as Associate Dean, and he was for a time the University's Associate Vice President for Academic Affairs. In 1997 he took over as Dean at the University of Mississippi School of Law. This article comments on his life and professional career, with ...


Judging Immigration Equity: Deportation And Proportionality In The Supreme Court, Jason A. Cade Jan 2017

Judging Immigration Equity: Deportation And Proportionality In The Supreme Court, Jason A. Cade

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Though it has not directly said so, the United States Supreme Court cares about proportionality in the deportation system. Or at least it thinks someone in the system should be considering the justifiability of removal decisions. As this Article demonstrates, the Court’s jurisprudence across a range of substantive and procedural challenges over the last fifteen years increases or preserves structural opportunities for equitable balancing at multiple levels in the deportation process. Notably, the Court has endorsed decision makers’ consideration of the normative justifiability of deportation even where noncitizens have a criminal history or lack a formal path to lawful ...


Monopolies In Multidistrict Litigation, Elizabeth Chamblee Burch Jan 2017

Monopolies In Multidistrict Litigation, Elizabeth Chamblee Burch

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When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again.

Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves ...


How The Supreme Court Derailed Formal Rulemaking, Kent H. Barnett Jan 2017

How The Supreme Court Derailed Formal Rulemaking, Kent H. Barnett

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Based on archival research, this Essay explores the untold story of how the Supreme Court in the 1970s largely ended “formal” trial-like rulemaking by federal agencies in two railway cases. In the first, nearly forgotten decision, United States v. Allegheny-Ludlum Steel Corp., the Court held sua sponte that an agency was not required to use formal rulemaking, despite its significant historical provenance. That unpersuasive decision all but decided the second, better-known decision, United States v. Florida East Coast Railway, the following term. In response to both decisions, agencies abandoned formal rulemaking—one of only four broad categories of agency action ...


Dictation And Delegation In Securities Regulation, Usha Rodrigues Jan 2017

Dictation And Delegation In Securities Regulation, Usha Rodrigues

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When Congress undertakes major financial reform, either it dictates the precise contours of the law itself or it delegates the bulk of the rulemaking to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rulemaking to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling and more vulnerable than statutes to judicial challenge.

This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine pieces of ...


A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen Jan 2017

A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen

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The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny ...


Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley Jan 2017

Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley

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The primary focus of this article is whether California’s forty-year old droit de suite statute; the California Resale Royalty Act (CRRA), is subject to federal preemption under the Copyright Act. This issue is now being litigated in the Ninth Circuit, and this article concludes that the CRRA is preempted under section 301(a) of the Copyright Act and under the Supremacy Clause because it at odds with copyright’s well-established first sale doctrine.

The basic idea of droit de suite is that each time an artist’s work is resold by a dealer or auction house, the artist is ...