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Full-Text Articles in Law

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 ...


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 ...


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 ...


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 ...


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.


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.


Justice Scalia And Sherman Act Textualism, Alan J. Meese May 2017

Justice Scalia And Sherman Act Textualism, Alan J. Meese

Faculty Publications

No abstract provided.


Property As A Management Institution, Lynda L. Butler Apr 2017

Property As A Management Institution, Lynda L. Butler

Faculty Publications

No abstract provided.


The Return Of The Unprovided-For Case, Michael S. Green Apr 2017

The Return Of The Unprovided-For Case, Michael S. Green

Faculty Publications

No abstract provided.


The Vanishing Common Law Judge, Neal Devins, David Klein Feb 2017

The Vanishing Common Law Judge, Neal Devins, David Klein

Faculty Publications

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic ...


An All-Volunteer Force: Law Students And Pro Bono Lawyers Helping Veterans, Patricia E. Roberts Dec 2016

An All-Volunteer Force: Law Students And Pro Bono Lawyers Helping Veterans, Patricia E. Roberts

Faculty Publications

No abstract provided.


Ptsd, Tbi, And Oth Discharges: A Case Study Of A Young Service Member, Patricia E. Roberts Oct 2016

Ptsd, Tbi, And Oth Discharges: A Case Study Of A Young Service Member, Patricia E. Roberts

Faculty Publications

No abstract provided.


Information-Dissemination Law: The Regulation Of How Market-Moving Information Is Revealed, Kevin S. Haeberle, M. Todd Henderson Sep 2016

Information-Dissemination Law: The Regulation Of How Market-Moving Information Is Revealed, Kevin S. Haeberle, M. Todd Henderson

Faculty Publications

No abstract provided.


Biology, Genetics, Nurture, And The Law: The Expansion Of The Legal Definition Of Family To Include Three Or More Legal Parents, Myrisha S. Lewis Apr 2016

Biology, Genetics, Nurture, And The Law: The Expansion Of The Legal Definition Of Family To Include Three Or More Legal Parents, Myrisha S. Lewis

Faculty Publications

No abstract provided.


God’S Uses Of The Law And The Effort To Establish A Constitutional Right To The Means To Live, Marie A. Failinger, Patrick R. Keifert Jan 2016

God’S Uses Of The Law And The Effort To Establish A Constitutional Right To The Means To Live, Marie A. Failinger, Patrick R. Keifert

Faculty Publications

No abstract provided.


Post 9/11 Veterans: Welcoming Them Home As Colleagues And Clients, Patricia E. Roberts Jul 2015

Post 9/11 Veterans: Welcoming Them Home As Colleagues And Clients, Patricia E. Roberts

Faculty Publications

No abstract provided.


Fifty States, Fifty Attorneys General, And Fifty Approaches To The Duty To Defend, Neal Devins, Saikrishna B. Prakash Apr 2015

Fifty States, Fifty Attorneys General, And Fifty Approaches To The Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. Instead, whether a state attorney general must defend state law turns on her own state’s laws. Each state has its own constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys general vary across the states. To simplify somewhat, we believe that there are three types of duties. One set of ...


The Pond Betwixt: Differences In The U.S.-Eu Data Protection/Safe Harbor Negotiation, Richard J. Peltz-Steele Jan 2015

The Pond Betwixt: Differences In The U.S.-Eu Data Protection/Safe Harbor Negotiation, Richard J. Peltz-Steele

Faculty Publications

This article analyzes the differing perspectives that animate US and EU conceptions of privacy in the context of data protection. It begins by briefly reviewing the two continental approaches to data protection and then explains how the two approaches arise in a context of disparate cultural traditions with respect to the role of law in society. In light of those disparities, Underpinning contemporary data protection regulation is the normative value that both US and EU societies place on personal privacy. Both cultures attribute modern privacy to the famous Warren-Brandeis article in 1890, outlining a "right to be let alone." But ...


Stock-Market Law And The Accuracy Of Public Companies’ Stock Prices, Kevin S. Haeberle Jan 2015

Stock-Market Law And The Accuracy Of Public Companies’ Stock Prices, Kevin S. Haeberle

Faculty Publications

The social benefits of more accurate stock prices—that is, stock-market prices that more accurately reflect the future cash flows that companies are likely to produce—are well established. But it is also thought that market forces alone will lead to only a sub-optimal level of stock-price accuracy—a level that fails to obtain the maximum net social benefits, or wealth, that would result from a higher level. One of the principal aims of federal securities law has therefore been to increase the extent to which the stock prices of the most important companies in our economy (public companies) contain ...


A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele Jan 2015

A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele

Faculty Publications

In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis ...


Educación Legal En Los Estados Unidos I: Facultades De Derecho Y El Juris Doctor, Maria Elena Cobas Cobiella, M C. Mirow Jan 2015

Educación Legal En Los Estados Unidos I: Facultades De Derecho Y El Juris Doctor, Maria Elena Cobas Cobiella, M C. Mirow

Faculty Publications

This series of two articles describes the most important features of legal education in the United States. Part I, found here, discusses law schools and the juris doctor. Part II, published later in the same journal, discusses graduate legal education, continuing legal education, and some comparative aspects of U.S. legal education in light of the Bologna Plan.


Educación Legal En Los Estados Unidos Ii: Educación De Postgrado, Educación Continuada, Y Consideraciones Comparativas, Maria Elena Cobas Cobiella, M C. Mirow Jan 2015

Educación Legal En Los Estados Unidos Ii: Educación De Postgrado, Educación Continuada, Y Consideraciones Comparativas, Maria Elena Cobas Cobiella, M C. Mirow

Faculty Publications

This series of two articles describes the most important features of legal education in the United States. Part I, published previously in this journal, discusses law schools and the juris doctor. Part II, published here, discusses graduate legal education, continuing legal education, and some comparative aspects of U.S. legal education in light of the Bologna Plan.


A View From The Sky: A General Overview About Civil Litigation In The United States With Reference To The Relief In Small And Simple Matters, Manuel A. Gómez, Juan Carlos Gómez Jan 2015

A View From The Sky: A General Overview About Civil Litigation In The United States With Reference To The Relief In Small And Simple Matters, Manuel A. Gómez, Juan Carlos Gómez

Faculty Publications

This article, which is based on the research conducted for the General Report ‘Relief in Small and Simple Matters in an Age of Austerity’ presented at the XV World Congress of Procedural Law, provides a contextualised and broad overview of these phenomena in the United States. After describing the general features of the federal and state judiciaries, including its adversarial model of judging, and the importance of the jury system, the article turns its attention to discuss the factors that affect the cost of litigation in the United States, the different models of litigation funding, the available legal aid mechanisms ...


Symposium On The Challenges Of Electronic Evidence, Daniel J. Capra, Sidney A. Fitzwater, Peter Pitegoff, Jeffrey S. Sutton, Paul Grimm, John Haried, Richard W. Vorder Bruegge, Jeffrey Bellin, Paul Scechtman, Deirdre M. Smith, Shira A. Scheindlin, David Shonka, Daniel Gelb, Andrew Goldsmith, George Paul, Paul Lippe Dec 2014

Symposium On The Challenges Of Electronic Evidence, Daniel J. Capra, Sidney A. Fitzwater, Peter Pitegoff, Jeffrey S. Sutton, Paul Grimm, John Haried, Richard W. Vorder Bruegge, Jeffrey Bellin, Paul Scechtman, Deirdre M. Smith, Shira A. Scheindlin, David Shonka, Daniel Gelb, Andrew Goldsmith, George Paul, Paul Lippe

Faculty Publications

No abstract provided.


Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl Jan 2014

Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl

Faculty Publications

A number of researchers have recently published new measures of the Supreme Court’s behavior in resolving conflicts in the lower courts. These new measures represent an improvement over prior, cruder approaches, but it turns out that measuring the Court’s resolutions of conflicts is surprisingly difficult. The aim of this methodological comment is to describe those difficulties and to establish several conclusions that follow from them. First, the new measures of the Court’s behavior are certainly imprecise and may reflect biased samples. Second, using the Supreme Court Database, which some studies rely on to assemble a dataset of ...


Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl Dec 2013

Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl

Faculty Publications

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case—Chevron, Skidmore, or something else—all courts in the judicial hierarchy are supposed to apply that same standard.

This ...


The Normative & Historical Cases For Proportional Deportation, Angela M. Banks Jul 2013

The Normative & Historical Cases For Proportional Deportation, Angela M. Banks

Faculty Publications

Is citizenship status a legitimate basis for allocating rights in the United States?

In immigration law the right to remain in the United States is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in the United States regardless of their actions. Noncitizens’ right to remain is less secure because they can be deported if convicted of specific criminal offenses. This Article contends that citizenship is not a legitimate basis for allocating the right to remain. This Article offers normative and historical arguments for a right to remain for noncitizens. This right should be granted to ...


Judicial Activism And The Problem Of Induction, Aaron-Andrew P. Bruhl Jul 2013

Judicial Activism And The Problem Of Induction, Aaron-Andrew P. Bruhl

Faculty Publications

A comment on Suzanna Sherry’s "Why We Need More Judicial Activism."