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Certifying Questions In First Amendment Cases: Free Speech, Statutory Ambiguity, And Definitive Interpretations, Clay Calvert 2019 University of Florida

Certifying Questions In First Amendment Cases: Free Speech, Statutory Ambiguity, And Definitive Interpretations, Clay Calvert

Boston College Law Review

In the First Amendment-based speech cases of both Minnesota Voters Alliance v. Mansky in 2018 and Expressions Hair Design v. Schneiderman in 2017, Justice Sonia Sotomayor forcefully contended that the United States Supreme Court should have certified questions about statutory meaning to the highest relevant state court. This Article examines certification—its purposes, its pros, and its cons—in cases pivoting on whether ambiguous state statutes violate the First Amendment. Mansky and Expressions Hair Design provide timely analytical springboards. The Article argues that certification carries heightened importance today. That is because the justices now frequently fracture along perceived political lines ...


Sports Betting And Indian Gaming: Overcoming Barriers To Market Entry And Integration Of Sports Books Into Tribal Casinos, Steve Light 2019 University of North Dakota

Sports Betting And Indian Gaming: Overcoming Barriers To Market Entry And Integration Of Sports Books Into Tribal Casinos, Steve Light

International Conference on Gambling & Risk Taking

Abstract

Even before the U.S. Supreme Court issued its decision In Murphy v. NCAA (2018) permitting states to legalize sports wagering, the biggest brand-names in gaming worldwide were positioning themselves to capitalize on the fan base for America’s most recognizable sports leagues.

Sports wagering already is up and running in five states; analysts predict that more than half the states will legalize it within five years. Many will be among the 29 states that currently have casinos owned and operated by American Indian tribes in this $32.4 billion market segment.

There is no firm sense and little ...


In Search Of A Unified Theory Of The Duties Flowing From Property Ownership In Virginia: A Response To Mcelhaney’S If A Tree Falls, E. Kyle McNew 2019 MichieHamlett Attorneys at Law

In Search Of A Unified Theory Of The Duties Flowing From Property Ownership In Virginia: A Response To Mcelhaney’S If A Tree Falls, E. Kyle Mcnew

Washington and Lee Law Review

In his Note, Ian McElhaney concludes that the Court got it right in Cline v. Dunlora South, LLC—that the landowner owes no duty to protect travelers on adjoining roadways from natural conditions on the landowner’s property—because the Court also got it right in Cline v. Commonwealth when it held that the Commonwealth of Virginia may have that duty instead. In the narrowest view, that is certainly a defensible position. If the case is just about natural conditions and roads, then there is intuitive appeal in saying that they are the Commonwealth’s roads; so, it is the ...


If A Tree Falls In A Roadway, Is Anyone Liable?: Proposing The Duty Of Reasonable Care For Virginia’S Road-Maintaining Entities, Ian J. McElhaney 2019 Washington and Lee University School of Law

If A Tree Falls In A Roadway, Is Anyone Liable?: Proposing The Duty Of Reasonable Care For Virginia’S Road-Maintaining Entities, Ian J. Mcelhaney

Washington and Lee Law Review

This Note considers whether a duty for road-maintaining entities is tenable under Virginia law. It also explores the rationale for imposing differing liabilities between landowners and road-maintaining entities. Part III reviews the various duties other states use with respect to dangerous roadside trees and concludes that the duty of reasonable care is most appropriate for Virginia. Sovereign immunity is a companion issue and is addressed in Part IV. The Part provides a brief overview of the policy arguments for sovereign immunity, before reviewing immunity’s impact at the state, county, and municipal levels. The Part also addresses a government employee ...


A Few Thoughts On “If A Tree Falls In A Roadway . . . .”, David Eggert 2019 Washington and Lee University School of Law

A Few Thoughts On “If A Tree Falls In A Roadway . . . .”, David Eggert

Washington and Lee Law Review

This Response to Ian McElhaney’s note examines (1) the background legal context that got us to where we are on falling-tree liability; (2) how this peculiar issue fits into Virginia’s general approach to the law; and (3) presents some thoughts on Mr. McElhaney’s reasoning and ultimate conclusions in urging liability for road maintainers.


If A Fetus Is A Person, It Should Get Child Support, Due Process And Citizenship, Carliss Chatman 2019 Washington and Lee University School of Law

If A Fetus Is A Person, It Should Get Child Support, Due Process And Citizenship, Carliss Chatman

Carliss Chatman

Alabama has joined the growing number of states determined to overturn Roe v. Wade by banning abortion from conception forward. The Alabama Human Life Protection Act, as the new statute is called, subjects a doctor who performs an abortion to as many as 99 years in prison. The law, enacted Wednesday, has no exceptions for rape or incest. It redefines an “unborn child, child or person” as “a human being, specifically including an unborn child in utero at any stage of development, regardless of viability.” We ought to take our laws seriously. Under the laws, people have all sorts of ...


When Death Becomes An Option: How Aedpa’S Opt-In Provisions Will Violate The Constitutional Rights Of Habeas Corpus Petitioners, Alexander Brock 2019 Brooklyn Law School

When Death Becomes An Option: How Aedpa’S Opt-In Provisions Will Violate The Constitutional Rights Of Habeas Corpus Petitioners, Alexander Brock

Journal of Law and Policy

For centuries, the writ of habeas corpus has allowed imprisoned men and women to challenge the validity of their detention as the final source of relief from criminal sentences. For those convicted of the death penalty, it is the last resource standing between life and death. Despite its monumental significance in America’s legal history, the “Great Writ” was dealt a devastating blow with the introduction of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996. Designed to expedite the legal processes from sentencing to execution, AEDPA drastically limited the avenues of relief sought by habeas petitioners. Yet, the ...


Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane 2019 University of Michigan

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

Articles

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against ...


Commencement Calls For Review Of Annual Milestones, Austen L. Parrish 2019 Indiana University Maurer School of Law

Commencement Calls For Review Of Annual Milestones, Austen L. Parrish

Austen Parrish (2014-)

This weekend is a time of celebration in Bloomington, as we welcome friends and family of the Class of 2019 for our annual commencement ceremony. It’s an important milestone in our students’ lives. Commencement is also a time for looking back. The past year saw several significant milestones for the IU Maurer School of Law. I’d like to touch on just a few of them in this month’s column.


Air Banned And Barred: Why New York City's Affordable Housing Crisis Has No Room For Short-Term Rentals, Wilson Chow 2019 Brooklyn Law School

Air Banned And Barred: Why New York City's Affordable Housing Crisis Has No Room For Short-Term Rentals, Wilson Chow

Brooklyn Journal of Corporate, Financial & Commercial Law

In August 2018, New York City passed a law that required short-term rental websites to disclose information about their users who host in the city. Airbnb, the largest short-term rental company, filed suit with hopes of having short-term rentals legalized. The law stems from the city’s efforts to amelioerate its affordable housing crisis. With over 8.5 million residents living in a tight housing market, New York City should not allow home owners or rental tenants to commercialize their property into de facto hotels that will likely provide accommodations to tourists. This Note will examine the recent law’s ...


Offshore Drilling: Combating Regulatory Uncertainty With Contract Law Protection, Jordan M. Steele 2019 Brooklyn Law School

Offshore Drilling: Combating Regulatory Uncertainty With Contract Law Protection, Jordan M. Steele

Brooklyn Journal of Corporate, Financial & Commercial Law

Offshore drilling accounts for billions of dollars in tax revenue every year. It is a pillar of the energy industry and is crucial to the economy. A recent flurry of deregulation, accelerating with the arrival of the Trump administration, highlights the tremendous impact politics has upon the profitability of this sector. The Secretary of the Interior, under the direction of the President, wields the power to regulate and make determinations into where, when, and how private companies can drill offshore. These private companies have contracts with the government for the opportunity to produce and develop oil or gas on the ...


Congress Prescribes Preemption Of State Tort-Reform Laws To Remedy Healthcare "Crisis": An Improper Prognosis?, Jason C. Sheffield 2019 Texas A&M University School of Law

Congress Prescribes Preemption Of State Tort-Reform Laws To Remedy Healthcare "Crisis": An Improper Prognosis?, Jason C. Sheffield

Journal of Law and Health

Say what you want about the tort-reform debate, but it has staying power. Over the last half-century, legislators and commentators have extensively debated every aspect of tort reform and the litigation "crisis" arguably giving rise to it, without resolving much of anything. Despite this ideological stalemate, tort-reform proponents have managed to push measures through every state legislature. With fifty tries come fifty results, and for the most part, fifty failures. But have all these efforts been in vain? As of yet, no. Although the healthcare system does not appear to be improving, the numerous tort-reform measures states have adopted provide ...


Solving The Opioid Epidemic In Ohio, Lacy Leduc 2019 Cleveland-Marshall College of Law

Solving The Opioid Epidemic In Ohio, Lacy Leduc

Journal of Law and Health

On May 31, 2017, Ohio Attorney General Mike DeWine took a step in fighting Ohio's opioid epidemic, bringing the first of many lawsuits against five top pharmaceutical companies. However, under Federal and State law, there is an exception called the Learned Intermediary Doctrine, which can absolve drug manufacturers of liability from any misconduct that might be found and transfer that liability to a treating physician. This exception is the way many drug manufacturers were able to avoid being held responsible in the past. This Note proposes that with the current pending lawsuit in the State of Ohio, an exception ...


Local Evidence In Constitutional Interpretation, Brandon L. Garrett 2019 Duke University School of Law

Local Evidence In Constitutional Interpretation, Brandon L. Garrett

Cornell Law Review

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look to local law. Although it has gone largely unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. Local evidence may inform the decision whether to recognize a constitutional right, it may inform the interpretation of the right, and it may inform the remedies for a constitutional violation. For example, the Supreme Court has examined local enforcement patterns ...


Forward: Some Puzzles Of State Standing, Tara Leigh Grove 2019 William & Mary Law School

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 ...


Properly Accounting For Domestic Violence In Child Custody Cases: An Evidence-Based Analysis And Reform Proposal, Debra Pogrund Stark, Jessica M. Choplin, Sarah Elizabeth Wellard 2019 The John Marshall Law School

Properly Accounting For Domestic Violence In Child Custody Cases: An Evidence-Based Analysis And Reform Proposal, Debra Pogrund Stark, Jessica M. Choplin, Sarah Elizabeth Wellard

Michigan Journal of Gender & Law

Promoting the best interests of children and protecting their safety and well-being in the context of a divorce or parentage case where domestic violence has been alleged has become highly politicized and highly gendered. There are claims by fathers’ rights groups that mothers often falsely accuse fathers of domestic violence to alienate the fathers from their children and to improve their financial position. They also claim that children do better when fathers are equally involved in their children’s lives, but that judges favor mothers over fathers in custody cases. As a consequence, fathers’ rights groups have engaged in a ...


Reconciling Police Power Prerogatives, Public Trust Interests, And Private Property Rights Along Laurentian Great Lakes Shores, Richard K. Norton, Nancy H. Welsh 2019 University of Michigan

Reconciling Police Power Prerogatives, Public Trust Interests, And Private Property Rights Along Laurentian Great Lakes Shores, Richard K. Norton, Nancy H. Welsh

Michigan Journal of Environmental & Administrative Law

The United States has a north coast along its ‘inland seas’—the Laurentian Great Lakes. The country enjoys more than 4,500 miles of Great Lakes coastal shoreline, almost as much as its ocean coastal shorelines combined, excluding Alaska. The Great Lakes states are experiencing continued shorefront development and redevelopment, and there are growing calls to better manage shorelands for enhanced resiliency in the face of global climate change. The problem is that the most pleasant, fragile, and dangerous places are in high demand among coastal property owners, such that coastal development often yields the most tenacious of conflicts between ...


Unintentional Irony In Landmark Decisions Of The Delaware Supreme Court Regarding Corporate Law, Steven J. Cleveland 2019 University of Oklahoma

Unintentional Irony In Landmark Decisions Of The Delaware Supreme Court Regarding Corporate Law, Steven J. Cleveland

Michigan Business & Entrepreneurial Law Review

Three landmark decisions of the Delaware Supreme Court exhibit unintentional irony: Beam v. Stewart, Smith v. Van Gorkom, and Paramount Communications Inc. v. Time Inc. In Beam, the court concluded that, regarding the decision of whether to seek remedy against Martha Stewart, her fellow directors would not have jeopardized their reputations for the minimal gain of continuing their business and personal relationships with her. Ironically, the court failed to acknowledge that Martha Stewart—in trading on material nonpublic information, which gave rise to the corporate claim against her—jeopardized her reputation (ultimately losing hundreds of millions of dollars and her ...


Domestic Asset Protection Trusts: A Debtor's Friend And Creditor's Foe, Nora Hood 2019 Brooklyn Law School

Domestic Asset Protection Trusts: A Debtor's Friend And Creditor's Foe, Nora Hood

Brooklyn Journal of Corporate, Financial & Commercial Law

In 1997, Alaska enacted the first law in the United States legalizing Domestic Asset Protection Trusts (DAPTs), also referred to as self-settled asset protection trusts, as valid legal entities. Under traditional trust law, a debtor cannot shield assets from creditors by placing them in a trust for his or her own benefit. Alaska’s statute allowing DAPTs calls the traditional rule into question. This Note will examine use of DAPTs in the United States, including whether or not the recently amended Uniform Voidable Transaction Act would consider any transfer to a DAPT voidable per se, and discuss an approach that ...


Ohio's Targeted Community Alternative To Prison Program: How A Good Idea Is Implemented Through Bad Policy, Samantha Sohl 2019 Cleveland-Marshall College of Law

Ohio's Targeted Community Alternative To Prison Program: How A Good Idea Is Implemented Through Bad Policy, Samantha Sohl

Cleveland State Law Review

Just because a legislature can make a law doesn’t mean that they should. The Ohio General Assembly enacted the Targeted Community Alternatives to Prison (T-CAP) program to decrease the number of convicted defendants sent to state prison and to increase funding for community control efforts. While the law may be upheld under the Ohio Constitution’s Uniformity Clause, the law should still be repealed because legislative control and financial influence have no place in the judicial branch, specifically the criminal sentencing process. However, the law is rooted in good intentions, and many judges have found the additional funding useful ...


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