Law Commons^™

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Liberty University Journal of Statesmanship & Public Policy

The United States bureaucracy began as only four departments and has expanded to address nearly every issue of public life. While these bureaucratic agencies are ostensibly under congressional oversight and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founding Fathers’ design of balancing legislative power in a bicameral Congress.

The Supreme Court holds an indispensable role in mitigating the overreach of executive agencies, yet the courts’ inability to hold bureaucrats accountable has diluted voters’ voices. Since the Supreme Court’s 1984 ruling in Chevron, U.S.A. v. Natural Resources Defense …

Texans Shortlisted For The U.S. Supreme Court: Why Did Lightning Only Strike Once?, The Honorable John G. Browning

St. Mary's Law Journal

No abstract provided.

An Historical And Empirical Analysis Of The Cyprès Doctrine, Christopher J. Ryan

ACTEC Law Journal

Cy près is a pivotal doctrine in estate law and indeed American jurisprudence. It places courts in the shoes of settlors of charitable trusts to discern not only their original intent but also affords the possibility of continuing the material purpose for which settlors created enduring legacies of philanthropy benefitting society. For this reason, it may well be that no other legal doctrine is as closely tied to the interests of the individual and the collective as cy près. And my first-of-its kind study puts the cy-près doctrine front and center, while providing three major contributions to the field. First, …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Helm's School of Government Conference - American Revival: Citizenship & Virtue

Although only four departments at the United States’ founding, the American bureaucracy has expanded to address nearly every issue of public life. While these agencies are ostensibly under congressional oversight through monetary allowance and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founders’ design of legislative power vested solely in a bicameral legislature.

The Supreme Court holds an indispensable role in mitigating the overreach of bureaucratic agencies. However, despite their obligation to protect the rights of the American people, the courts’ inability to hold bureaucrats accountable has diluted …

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

The Emerging Jurisprudence Of The African Human Rights Court And The Protection Of Human Rights In Africa, John M. Mbaku, Professor Of Economics

Vanderbilt Journal of Transnational Law

During most of the post-independence period, many African countries have either been unwilling or unable to protect human rights or relegated this important function to a small group of poorly funded but brave and courageous non-state actors. Most importantly, some African governments have either actively engaged in human rights violations or failed to bring to justice those who have committed atrocities against their fellow citizens. In the 1970s and 1980s, many African heads of state were more concerned with national sovereignty in an effort to hide the violation of human rights committed within their jurisdictions than participating in the building, …

Religion As Disobedience, Xiao Wang

Vanderbilt Law Review

Religion today offers plaintiffs a ready path to disobey laws without consequence. Examples of such disobedience abound. In the past few years alone, courts have enjoined vaccine mandates, invalidated stay-at-home orders, and set aside antidiscrimination laws protecting same-sex couples. During the 2021-2022 Term, plaintiffs relied once again on free exercise to subvert laws governing public education, capital punishment, and school prayer. Some hospitals have begun denying fertility treatment to LGBTQ employees on this same basis.

How did religion become a skeleton key for lawbreaking without repercussion? The conventional wisdom is that, after decades of neglect, the Supreme Court finally began …

Law Library Blog (March 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

The Family Values: Is It Really About The Family? Analyzing The Family In The Egyptian Discourse Through A Sociological Lens, Taher Sabala

Theses and Dissertations

The Egyptian state has put on its shoulders the responsibility of protecting the family and its values. But how this family, in a massive society like Egypt, can be defined? In this paper, I argue that it has never been about protecting the family. However, it is an attempt to shape the citizens into small separate hives which give the State the power to gain access to the intimate details of its citizens’ lives through which they can be easily monitored, managed, and controlled. By analyzing Michel Foucault’s work on government, power, sexuality, and family, I travel through a historical …

Sanitation: Reducing The Administrative State’S Control Over Public Health, Lauren R. Roth

Scholarly Works

On April 18, 2022, in Health Freedom Defense Fund, Inc. v. Biden, United States District Judge Kathryn Kimball Mizelle vacated the mask mandate issued by the Centers for Disease Control and Prevention. Following a framework laid out in other decisions restricting CDC actions in response to COVID-19, the court found that the agency lacked statutory authority to protect the public from the virus by requiring mask wearing during travel and at transit hubs because Congress did not intend such a broad grant of power. Countering decades of public health jurisprudence, the federal district court failed to defer to experts and …

A Wrong Turn With The Rights Of Nature Movement, Noah M. Sachs

Law Faculty Publications

Environmentalists have long dreamed of granting enforceable legal rights to nature, and their vision has recently become reality. Governments in the United States and abroad are enacting Rights of Nature laws, and many scholars have championed this burgeoning movement as one of the best hopes for preserving the environment.

Legal rights for nature seem visionary, but policymakers and scholars are overlooking considerable problems with this approach. This Article spotlights these problems, including the vague and incoherent content of nature’s rights, the difficulty of defining the boundaries of natural entities, the absence of limiting principles for the rights, and the legislation’s …

Changemakers: Elevating Conversations Around Indigenous Peoples' Rights, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Views Of The Irish Judiciary On Technology In Courts: Results Of A Survey, Brian M. Barry Dr, Rónán Kennedy Dr

Articles

Technology continues to transform how judges perform their functions, both in Ireland and elsewhere. This article reports the results of a survey of Irish judges on their use of technology in their role, their attitudes towards technology, and their views on how it impacts on the judicial function. The survey, part of a global survey, found that Irish judges habitually used digital technologies, and were broadly satisfied with the technology available in chambers, but less so with what was provided in courtrooms. Although generally happy to embrace change, the majority of respondents were concerned with, and did not prefer, online …

Reviewing Mixed Questions Of Fact And Law In Administrative Adjudications: Why Courts Should Move To “Substantially Established Facts”, Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

Courts are inconsistent in how they review mixed questions of fact and law in administrative adjudications. Many courts simply and unquestioningly review the entire mixed issue using only substantial evidence review. This grants extreme and unquestioning deference to any legal interpretation used by the agency, far more than would be available to it under the increasingly besieged Chevron doctrine, despite the fact that the adjudications being reviewed in this manner generally would not even be entitled to Chevron deference if the legal component of the mixed question were analyzed separately. Courts should therefore analyze the different components of a mixed …

Commentary: Dan Mandelker—A Land-Use Legacy Unlike Any Other, Patricia E. Salkin

Scholarly Works

It is an honor to share thoughts about the importance of Professor Daniel Mandelker’s legacy to the field of land-use and zoning law. The word “legacy” means, among other things, “something that is part of your history or that remains from an earlier time.” At ninety-two, he was the longest actively teaching land use law professor in the United States. His academic career began in 1949 when he was appointed an Assistant Professor at Drake Law School, with relatively short stints at the University of Indiana Law School and Columbia Law School, followed by his appointment at Washington University School …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

Character Evidence As A Conduit For Implicit Bias, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

The Federal Rules of Evidence purport to prohibit character evidence, or evidence regarding a defendant’s past bad acts or propensities offered to suggest that the defendant acted in accordance with a certain character trait on the occasion in question. However, courts regularly admit character evidence through an expanding set of legislative and judicial exceptions that have all but swallowed the rule. In the usual narrative, character evidence is problematic because jurors place excessive weight on it or punish the defendant for past behavior. Lawmakers rely on this narrative when they create exceptions. However, this account arguably misses a highly troublesome …

Binding Hercules: A Proposal For Bench Trials, Maggie Wittlin

Faculty Scholarship

Should the Federal Rules of Evidence apply at bench trials? By their own terms, they apply, but courts have been reluctant to enforce them on themselves with the same rigor that they enforce them on juries. Scholarship on the issue has been mixed. Although McCormick deemed the rules of evidence "absurdly inappropriate" outside of the jury context, more recently, scholars have suggested that many reasons for imposing exclusionary rules on jurors also apply to judges. Yet practical problems persist. For one, once judge evaluate the admissibility of evidence, they can’t “unring the bell” and ignore evidence they've decided to exclude. …

Race-Ing Antitrust, I. Bennett Capers, Gregory Day

Faculty Scholarship

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Theorizing Corroboration, Maggie Wittlin

Faculty Scholarship

A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.

This Article argues that there is a key problem with using corroboration to evaluate …

There Is No Such Thing As Circuit Law, Thomas B. Bennett

Faculty Publications

Lawyers and judges often talk about “the law of the circuit,” meaning the set of legal rules that apply within a particular federal judicial circuit. Seasoned practitioners are steeped in circuit law, it is said. Some courts have imagined that they confront a choice between applying the law of one circuit or another. In its strong form, this idea of circuit law implies that each circuit creates and interprets its own body of substantive law that is uniquely applicable to disputes that arise within the circuit’s borders.

This article argues that the notion of circuit law is nonsensical and undesirable …