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Full-Text Articles in Law

Do We Intend To Keep Our Republic?, John M. Greabe Feb 2020

Do We Intend To Keep Our Republic?, John M. Greabe

Law Faculty Scholarship

[Excerpt] Commentators recently have reminded us of a famous statement Benjamin Franklin allegedly made upon exiting Independence Hall on the final day of the 1787 Constitutional Convention. When asked whether the proposed Constitution would establish a monarchy or a republic, Franklin supposedly answered: "A republic, if you can keep it."

The anecdote, which both inspired the title of Supreme Court Justice Neil Gorsuch's recent book and was recounted by Speaker of the House Nancy Pelosi when she announced the impeachment inquiry into the conduct of the president, reminds us that our republican form of government is not to be ...


First Amendment (Un)Exceptionalism: A Comparative Taxonomy Of Campaign Finance Reform Proposals In The United States And United Kingdom, Lori A. Ringhand Jan 2020

First Amendment (Un)Exceptionalism: A Comparative Taxonomy Of Campaign Finance Reform Proposals In The United States And United Kingdom, Lori A. Ringhand

Scholarly Works

There is an urgent conversation happening among the world’s democracies about how to respond to the combined threat of online electioneering and foreign interference in domestic elections. Despite the shadow such activities cast over the 2016 presidential election in the United States, the US has been largely absent from comparative discussions about how to tackle the problem. This is not just because of a recalcitrant president. The assumption that America’s “First Amendment Exceptionalism” – the idea that American freedom of expression law is simply too much of an outlier to warrant useful comparative consideration – is strong on both sides ...


The Reemergence Of Vaccine Nationalism, Ana Santos Rutschman Jan 2020

The Reemergence Of Vaccine Nationalism, Ana Santos Rutschman

All Faculty Scholarship

This short essay explores the reemergence of vaccine nationalism during the COVID-19 pandemic. The essay traces the pre-COVID origins of vaccine nationalism and explains how it can have detrimental effects on equitable access to newly developed vaccines.


Jurisprudence—Merely Judgment: A Fallibilist Account Of The Rule Of Law, Bruce K. Miller Jan 2020

Jurisprudence—Merely Judgment: A Fallibilist Account Of The Rule Of Law, Bruce K. Miller

Faculty Scholarship

How should judges decide the cases presented to them? In our system the answer is, “according to law,” as opposed to the judges’ preferred outcomes. But for at least a century, skeptics have cast doubt on whether adjudication under law is possible. Judge Richard Posner, now retired from the U.S. Court of Appeals for the Seventh Circuit, has, for example, argued that the indeterminacy of legal argument and the influence of judges’ predispositions show that it is not. Judge Posner thus recommends that judges give up on the rule of law in contested cases and instead candidly base their ...


Forward: Some Puzzles Of State Standing, Tara Leigh Grove May 2019

Forward: Some Puzzles Of State Standing, Tara Leigh Grove

Faculty Publications

When should states have standing? In recent years, there has been an explosion in literature on that question.1 Yet, even today, there seem to be as many questions as answers. In this Foreword to the Notre Dame Law Review’s 2019 Federal Courts, Practice, and Procedure Symposium on state standing, I discuss a few such puzzles. First, should states have “special” standing when they sue the federal government—that is, greater access to federal court than private parties? Second, and conversely, should states have at least “equal” access to federal court, or should they face more barriers than private ...


Qualified Immunity And Constitutional Structure, Katherine Mims Crocker May 2019

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Faculty Publications

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a ...


The Banking/Commercial Separation Doctrine In Comparative Perspective, Cristie Ford Apr 2019

The Banking/Commercial Separation Doctrine In Comparative Perspective, Cristie Ford

Faculty Publications

This report, prepared for the Department of Finance, Government of Canada, summarizes research undertaken across five jurisdictions – Australia, Japan, Singapore, the United Kingdom (UK), and the United States (US, federal level only) – with respect to a particular kind of boundary on the business of banking: the separation of banking business from commercial business. “Commercial” here means the provision of non-financial goods and services. This separation exists under what in the United States has long been referred to as the “banking/commercial separation doctrine”. The report considers the historical justifications for the doctrine in the context of the modern “business of ...


Who Owns The Law? How To Restore Public Ownership Of Legal Publication, Leslie A. Street, David R. Hansen Apr 2019

Who Owns The Law? How To Restore Public Ownership Of Legal Publication, Leslie A. Street, David R. Hansen

Library Staff Publications

No abstract provided.


Naming Names: The Impact Of Supreme Court Opinion Attribution On Citizen Assessment Of Policy Outcomes, Scott S. Boddery, Laura P. Moyer, Jeff Yates Mar 2019

Naming Names: The Impact Of Supreme Court Opinion Attribution On Citizen Assessment Of Policy Outcomes, Scott S. Boddery, Laura P. Moyer, Jeff Yates

Political Science Faculty Publications

The manner in which political institutions convey their policy outcomes can have important implications for how the public views institutions' policy decisions. This paper explores whether the way in which the U.S. Supreme Court communicates its policy decrees affects how favorably members of the public assess its decisions. Specifically, we investigate whether attributing a decision to the nation's High Court or to an individual justice influences the public's agreement with the Court's rulings. Using an experimental design, we find that when a Supreme Court outcome is ascribed to the institution as a whole, rather than to ...


Don’T Steal My Recipe! A Comparative Study Of French And U.S. Law On The Protection Of Culinary Recipes And Dishes Against Copying, Claire M. Germain Feb 2019

Don’T Steal My Recipe! A Comparative Study Of French And U.S. Law On The Protection Of Culinary Recipes And Dishes Against Copying, Claire M. Germain

Working Papers

Food and gastronomy are at the heart of every culture. In 2010, The Gastronomic Meal of the French was listed as Intangible Cultural Heritage of Humanity by UNESCO. Interest in gastronomy became mainstream in the U.S. starting in the late ‘70s/early ‘80s. The emergence of cooking literature, television cooking, celebrity chefs, and competitive cooking programs have now permeated American and French popular culture like never before. It is also a huge business for restaurants. This article examines the legal status of recipes and culinary creations in U.S. and French law, and what can be done to stop ...


Religious Courts In Secular Jurisdictions: How Jewish And Islamic Courts Adapt To Societal And Legal Norms, Rabea Benhalim Jan 2019

Religious Courts In Secular Jurisdictions: How Jewish And Islamic Courts Adapt To Societal And Legal Norms, Rabea Benhalim

Articles

At first glance, religious courts, especially Sharia courts, seem incompatible with secular, democratic societies. Nevertheless, Jewish and Islamic courts operate in countries like the United States, England, and Israel. Scholarship on these religious courts has primarily focused on whether such religious legal pluralism promotes the value of religious freedom, and if so, whether these secular legal systems should accommodate the continued existence of these courts. This article shifts the inquiry to determine whether religious courts in these environments accommodate litigants’ popular opinions and the secular, procedural, and substantive justice norms of the country in which they are located. This article ...


The Case For American Muslim Arbitration, Rabea Benhalim Jan 2019

The Case For American Muslim Arbitration, Rabea Benhalim

Articles

This Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated ...


Retour Sur L’Affaire De L’Alabama: De L’Utilité Et De L’Histoire Pour L'Arbitrage International, William Park, Bruno De Fumichon Jan 2019

Retour Sur L’Affaire De L’Alabama: De L’Utilité Et De L’Histoire Pour L'Arbitrage International, William Park, Bruno De Fumichon

Faculty Scholarship

For any aficionado of international law and international arbitration, the 1872 Alabama case represents a rich historical landmark, as promising a mine as the wreck of the Confederate Ship Alabama itself, sunk off Cherbourg, in 1864, by the United States Ship Kearsarge. This arbitration represents a turning point in relations between the United States and Great Britain, from repeated conflict to a “Special Relationship” that has grown stronger during the past century and a half. The case also marked the revival of international arbitration, after centuries of uncertainty. Not least, the case introduced long-lasting procedural innovations: the neutral collegial tribunal ...


Intermediaries And Private Speech Regulation: A Transatlantic Dialogue - Workshop Report, Tiffany Li Jan 2019

Intermediaries And Private Speech Regulation: A Transatlantic Dialogue - Workshop Report, Tiffany Li

Faculty Scholarship

The Wikimedia/Yale Law School Initiative on Intermediaries and Information (WIII) at Yale Law School has released a comprehensive report synthesizing key insights from intermediary liability and online speech and expression experts in Europe and the United States.

The report focuses on the critical but complicated issue of private speech regulation on the internet and the connections between platform liability laws and fundamental rights, including free expression. The report reflects discussions held at “Intermediaries & Private Speech Regulation: A Transatlantic Dialogue,” an invitation-only workshop convened by WIII, featuring leading internet law experts from the United States and Europe.

This report highlights ...


Eugenics, Margaret Ann Donnell Dec 2018

Eugenics, Margaret Ann Donnell

History Class Publications

Naturally, and quite understandably, people avoid discussing the dark periods of human history, specifically the inconceivable acts of dehumanization imposed on their fellow man.

Individuals struggle to understand, sometimes simply because they cannot fathom, how a person—and in some cases, an institution—can manipulate and devalue another human being or groups of people. Often, the standards by which those with the “authority” to determine the lack of worth of the individual or population are arbitrary and subjective.

All of this is relevant in a conversation over the eugenics movement of the United States, occurring in the early to mid-twentieth ...


What Happens In Vagueness Stays In Vagueness: The United States Constitution's Ideas On Race, Austin Clements Dec 2018

What Happens In Vagueness Stays In Vagueness: The United States Constitution's Ideas On Race, Austin Clements

History Class Publications

The United States’ Constitution, while it may not explicitly discuss race in detail, has echoes of race throughout both its language and its history. Even during the origination of the Constitution, the inclusion of slavery was a hotly contested subject among the authors of the Constitution. The United States’ Constitution only uses the words “race” and “color” once and that is in the Fifteenth Amendment, which essentially gave black Americans the right to vote. While the US Constitution may not explicitly talk about race much, I argue that race is a present theme throughout the Constitution as well as behind ...


President Trump, The New Chicago School And The Future Of Environmental Law And Scholarship, Sarah B. Schindler Nov 2018

President Trump, The New Chicago School And The Future Of Environmental Law And Scholarship, Sarah B. Schindler

Faculty Publications

Recent presidents including Bill Clinton, G. W. Bush, and Barack Obama have refined how environmental law has been enacted and carried out. Under President Trump, the scope of public environmental law will most certainly narrow. It seems likely that the future of environmental law will depend not upon traditional federal command-and-control legislation or executive branch maneuvering, but instead upon activating environmentalism through expanded substantive areas and innovative regulatory techniques that fall outside the existing, traditional norms of environmental law and legal scholarship. This chapter is an attempt to acknowledge this monumental change, recognizing that these barriers to traditional environmental regulation ...


Infringement, Unbound, Sarah R. Wasserman Rajec Oct 2018

Infringement, Unbound, Sarah R. Wasserman Rajec

Faculty Publications

No abstract provided.


Too Ill To Be Killed: Mental And Physical Competency To Be Executed Pursuant To The Death Penalty, Linda A. Malone Oct 2018

Too Ill To Be Killed: Mental And Physical Competency To Be Executed Pursuant To The Death Penalty, Linda A. Malone

Faculty Publications

Mentally ill individuals are being housed in prisons and jails throughout the country. Due to decreased funding and overpopulation of correctional facilities, individuals with pre-existing illnesses, as well as others who develop illnesses, are in severe need of mental health services and punished for their ailments through the use of solitary confinement, long prison sentences, and lack of care. The stress created by such conditions is amplified for mentally ill prisoners who are awaiting execution or the dismissal of their death row sentences. These individuals must show that they are competent to stand trial, exhibit the mental state required for ...


Leaving The Devil You Know: Crime Victimization, Us Deterrence Policy, And The Emigration Decision In Central America, Jonathan T. Hiskey, Abby Córdova, Mary Fran Malone, Diana M. Orcés Sep 2018

Leaving The Devil You Know: Crime Victimization, Us Deterrence Policy, And The Emigration Decision In Central America, Jonathan T. Hiskey, Abby Córdova, Mary Fran Malone, Diana M. Orcés

Political Science Faculty Publications

Following a sharp increase in the number of border arrivals from the violence-torn countries of Guatemala, El Salvador, and Honduras in the spring and summer of 2014, the United States quickly implemented a strategy designed to prevent such surges by enhancing its detention and deportation efforts. In this article, we examine the emigration decision for citizens living in the high-crime contexts of northern Central America. First, through analysis of survey data across Guatemala, El Salvador, and Honduras, we explore the role crime victimization plays in leading residents of these countries to consider emigration. Next, using survey data collected across twelve ...


Managing Dissent, Timothy Zick Sep 2018

Managing Dissent, Timothy Zick

Faculty Publications

In his insightful new book, Managed Speech: The Roberts Court's First Amendment (2017), Professor Greg Magarian criticizes the Roberts Court for adopting a "managed speech" approach in its First Amendment cases. According to Professor Magarian, that approach gives too much power to private and governmental actors to manage public discourse, constrain dissident speakers, and instill social and political stability. This Article argues that at least insofar as it relates to many forms of public dissent, the managed speech approach is both deeply rooted in First Amendment jurisprudence and culturally prevalent. Historically, First Amendment jurisprudence has expressed support for narrowly ...


Why Doesn't The U.S. Mandate Paid Leave?, Donald Roth Jun 2018

Why Doesn't The U.S. Mandate Paid Leave?, Donald Roth

Faculty Work Comprehensive List

"The U.S. has vastly different guarantees when it comes to legislative mandates; however, the focus on laws skews the picture in important ways."

Posting about ­­­­­­­­factors affecting paid time off from In All Things - an online journal for critical reflection on faith, culture, art, and every ordinary-yet-graced square inch of God’s creation.

https://inallthings.org/why-doesnt-the-u-s-mandate-paid-leave/


How Subterranean Regulation Hinders Innovation In Assisted Reproductive Technology, Myrisha S. Lewis Apr 2018

How Subterranean Regulation Hinders Innovation In Assisted Reproductive Technology, Myrisha S. Lewis

Faculty Publications

Most scholars believe assisted reproductive technology is subject only to minimal regulation, especially by the federal government. This belief, I contend, is wrong. In this Article, I examine agency documents, statements by officials, and letters that the U.S. Food and Drug Administration (FDA) has sent to physicians and researchers over the past fifteen years to reveal an overlooked regulatory program. The FDA has been targeting new forms of assisted reproductive technology that involve small genetic modifications (advanced assisted reproductive technologies or AARTs) through regulatory actions that receive little public, media, or scholarly attention. I term this method of regulation ...


Citizens United V. Federal Election Commission, And The Inherent Unfairness To The “Un-United” American Citizen, Christopher J. Kantor Apr 2018

Citizens United V. Federal Election Commission, And The Inherent Unfairness To The “Un-United” American Citizen, Christopher J. Kantor

Writing Across the Curriculum

Among contemporary United States Supreme Court rulings that have impacted the structure of our nation, the 2010 case Citizens United v. Federal Election Commission resulted in significant political campaign finance reform that gave rise to an election system influenced by money, corporations, and powerful individuals. The ruling of Citizens United allows for the unlimited spending of corporations and labor unions on political expenditures and the limited disclosures of these campaign donors. This overturned precedent established in the 1990 case Austin v. Michigan Chamber of Commerce and the 2003 case McConnell v. Federal Election Commission, the respective rulings of which shaped ...


The Economics Of American Higher Education In The New Gilded Age, Paul Campos Jan 2018

The Economics Of American Higher Education In The New Gilded Age, Paul Campos

Articles

No abstract provided.


Collective Struggles: A Comparative Analysis Of Unionizing Temporary Foreign Farm Workers In The United States And Canada, Robert Russo Jan 2018

Collective Struggles: A Comparative Analysis Of Unionizing Temporary Foreign Farm Workers In The United States And Canada, Robert Russo

Faculty Publications

The use of temporary foreign migrant workers in the labor sector is part of a vibrant political and legal discussion in both the United States and Canada. Current reforms of temporary foreign worker programs in both countries call for an analysis of this workforce. This article focuses on documented temporary foreign workers performing agricultural labor in both countries. It is a comparative study of alleged violations of documented temporary foreign farm workers' rights relating to unionization in the United States and Canada.


Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew Jan 2018

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional ...


Bankruptcy Law—Rethinking The Discharge Of Late Filed Taxes In Consumer Bankruptcy, Justin H. Dion, Barbara Curatolo Jan 2018

Bankruptcy Law—Rethinking The Discharge Of Late Filed Taxes In Consumer Bankruptcy, Justin H. Dion, Barbara Curatolo

Faculty Scholarship

The 2005 amendments to the Bankruptcy Code, Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) was enacted in order to improve bankruptcy law. However, BAPCPA has made the issue of whether late-filed taxes are dischargeable even murkier than before the amendments. After BAPCPA, some courts continued to analyze claims as they had before the amendment. Others used a “one-day-late rule” that prevented late-filed taxes from being dischargeable—even if the taxes were filed only one day late. This Article suggests a different approach. It argues that the legislature intended tax debt associated with late-filed income tax returns be dischargeable if ...


Justice Scalia's Other Standing Legacy, Tara Leigh Grove Dec 2017

Justice Scalia's Other Standing Legacy, Tara Leigh Grove

Faculty Publications

No abstract provided.


Trending @ Rwu Law: Professor David Coombs's Post: The Immigrant Veteran: Service And Honor 11-14-2017, David Coombs Nov 2017

Trending @ Rwu Law: Professor David Coombs's Post: The Immigrant Veteran: Service And Honor 11-14-2017, David Coombs

Law School Blogs

No abstract provided.