Digital Commons Network^™

Pursuing Restorative Justice For The Legacy Of Federal Indian Boarding Schools, Jilly Horowitz

Cardozo Journal of Conflict Resolution

This Note examines the United States’ federal boarding school policy, designed to eliminate Native populations, and the federal government’s efforts from June 2021 to December 2024 to acknowledge and address its harms. For 150 years, Native children were subjected to this brutal policy and were removed from their communities and placed in boarding schools. These schools were focused less on providing education and opportunity for Native students, and instead were tools to carry out a concentrated federal policy of cultural assimilation and forcible removal from Native lands. The federal government implemented this policy throughout the country, operating or funding 451 …

Blazing A New Path: How Regulatory Negotiation Can Resolve Cannabis Legalization’S Shortcomings, Natalie Pearson

Cardozo Journal of Conflict Resolution

New York’s ambitious cannabis legalization effort has fallen short of its promises, burdened by regulatory confusion, industry roadblocks, and an unchecked illicit market. Despite state-level approval, legalization remains riddled with contradictions and obstacles, leaving businesses and policymakers struggling to navigate an unstable framework. This Note explores how regulatory negotiation, an alternative dispute resolution (“ADR”) mechanism, can address key industry challenges, particularly those arising from conflicting federal and state laws.

Much Ado About Critical Race Theory, Matthew Patrick Shaw

Vanderbilt Law School Faculty Publications

This Article offers novel observation and critical intervention in the challenge to state laws which have been adopted, allegedly, to prevent the teaching of critical race theory

(CRT) in public schools. Against the trend of recent scholarship that understands these laws as curricular censorship of topical subjects and seeks to contest their validity on those grounds, this Article more accurately identifies them as pedagogical censorship: Limits on teaching methods, which raise different, potentially more dispositive questions about the states’ educational decision-making authority—questions that the U.S. Supreme Court has long sought to avoid. But exposing these so-called “anti-CRT” laws as neither …

Interpreting The Private‑ And Public‑Sector Service Criteria For Singapore’S Aspiring Presidential Candidates, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The Singapore President's role is not only ceremonial: from 1991, it has encompassed the substantive function of serving as a guardian of public reserves and the integrity of the public service. A person must meet certain qualifying criteria in order to run in a Presidential election. This article focuses on one set of qualifying criteria, namely, the "service criteria": the requirement that candidates have had certain experience in serving in certain roles in the public sector or the private sector. The service criteria were last amended in 2016, and came to the fore in the 2023 Presidential Election following George …

Do Civil Penalties Punish? The Fbar Penalty And The Case For An Emboldened Excessive Fines Clause, Scott Oatkin

Cardozo Law Review

The Report of Foreign Bank and Financial Accounts (FBAR) regime authorizes the IRS to impose severe penalties—up to the greater of $100,000 or fifty percent of the account balance—for failure to report foreign bank accounts exceeding $10,000. While the Eighth Amendment protects Americans from “excessive fines,” circuit courts are split on whether the FBAR penalty constitutes a fine and is subject to constitutional scrutiny. Some courts have found that the FBAR penalty is wholly remedial and beyond the reach of the Excessive Fines Clause, but this Note argues that such an interpretation is inconsistent with the history and case law …

Beyond Democracy: How A Free Press Supports The Rule Of Law, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Widespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: the rule of law.

Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can create friction against the erosion of both rule of law …

Rights In The Eyes Of The Beholder: The Lived Hierarchy Of Rights In India's Democracy, Sehar Abdullah, Keerthana Satheesh, Prashant Narang

Socio-Legal Review

This paper examines how citizens in India perceive and prioritise fundamental rights, with particular attention to the six freedoms under Article 19(1) and the property right. While the freedoms of Article 19(1) remain central to democratic citizenship, the Forty-Fourth Constitutional Amendment of 1978 reclassified the right to property as a constitutional right under Article 300A. This shift prompts an important question: Does the diminished constitutional rank of property correspond to its place in popular hierarchies of rights? Our in-depth interviews with 26 respondents, whose livelihoods make them especially sensitive to changes in both categories of rights, reveal that citizens continue …

Two Wrongs Don't Make A Right: The Fourth Circuit Sidesteps Supreme Court Precedent In Upholding An Assault Weapon Ban In Bianchi V. Brown, Gabriella Mudd

Villanova Law Review (1956 - )

No abstract provided.

The Section 32(1) Analysis: Clarifying Eldridge In Light Of York Region District School Board, Kate Glover Berger

All Papers

The Eldridge framework, a stable feature of Canadian Charter jurisprudence for decades, sets out part of the framework for determining when entities or activities qualify as “government” under section 32(1), the Charter’s application section. In light of this stability, the Supreme Court of Canada’s analysis of the section 32(1) issue in York Region District School Board v Elementary Teachers Federation of Ontario was surprising. It raised the question: Why did the Court in York Region deviate from well-settled law on the Eldridge framework and, in the process, seemingly change the framework’s thresholds? This question arises because the Court in …

Tribal Sovereign Immunity: Absolute Authority Or Accountability, Kekek Jason Stark

Public Land & Resources Law Review

In the wake of the recent United States Supreme Court decision of Trump v. United States, the Court determined that the President as Chief Executive is immune from conduct associated with official acts.3 The question that emanates from this opinion is how will this decision affect Indian Country and tribal court determinations of tribal sovereign immunity? This article will attempt to address this question. I begin with the Anishinaabe story of Bebaamosed miinawaa Gawigoshko’iweshiinh (The Trickster and the Little Scary Bird)5 in an attempt to understand the complicated nature of tribal sovereign immunity.

Discovering The Doctrine Of Discovery, Douglas Lind

Public Land & Resources Law Review

The doctrine of discovery is a concept in crisis. A principle of public international law associated with the so-called Age of Discovery, the doctrine of discovery is commonly said to have authorized European nations to claim the lands of indigenous peoples and establish settlements on the basis of “discovery” alone. Today, with good reason, the doctrine is widely condemned. The United Nations has denounced it as “the very foundation of genocide.” Describing its manifest injustices against indigenous cultures, dominion, and sovereignty as “devastating, far-reaching and intergenerational,” the UN Economic and Social Council has called for the doctrine to be categorically …

Uses And Abuses Of Johnson V. M’Intosh In Native American Land Rights Cases: Investigative Insights From The Indian Law Justice Files, John P. Lavelle

Public Land & Resources Law Review

The 200th anniversary of the foundational Indian law decision Johnson v. M’Intosh has come and gone, with many scholars contributing criticism and commentary. The dominant focus has been the case’s notorious embrace of the so-called “doctrine of discovery,” an odious theory for rationalizing European nations’ claims of superior rights to lands occupied by Indigenous Native American peoples. Commanding less attention, however, is the Johnson decision’s core protective legal feature, i.e., its reinforcing the United States government’s duty to guard against the alienation of Indian lands through private, unauthorized acquisitions.

Indian Casinos Under The Big Sky: Why Tribes In Other States Have Been More Successful With Gaming And The Path Forward For Montana’S Tribes, Trevor Funseth

Public Land & Resources Law Review

The most successful method of economic development for many Indian tribes in the United States has been gaming. Tribes across the country have risen out of poverty through their casino operations and have been able to use the profits to diversify their investments and improve tribal infrastructure, education, and social programs.

Damned If You Do, Dammed If You Don’T: Solutions For The Snake River And The Nez Perce Tribe, Meridian S. Wappett

Public Land & Resources Law Review

No abstract provided.

Indian Water Rights Settlements And The Animas-La Plata Project: A Self-Fulfilling Prophecy Of Dependency, Sidney Paulina Williams

Public Land & Resources Law Review

No abstract provided.

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Defendants-Appellants: Roy V. Darren Patterson Christian Academy, Catherine Smith, Tanya M. Washington, Robin Walker Sterling, Jeremiah Chin, Sara S. Hildebrand

Scholarly Articles

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the harms that four-year-olds in the LGBT community – LGBT children and children with LGBT parents – would bear should state-funded religious schools be granted a license to discriminate against them. An exemption to the Colorado Universal Preschool Program’s equal opportunity requirement would allow plaintiffs to discriminate against these children and raise unfair barriers in their paths to a high-quality education. An exemption would also inflict dignitary, psychological, and familial harms upon an entire class of young people – …

Restoring Chevron Deference By Statute, Scott Dodson

Duke Law Journal Online

This paper details a solution for legislatively restoring Chevron deference: amend the APA to direct lower federal courts to give deference to reasonable agency decisions but retain nondeferential judicial review by the U.S. Supreme Court. This solution restores most of the practical benefits of Chevron by giving agencies flexibility to implement congressional policy directives with the expertise they have acquired, by maintaining stability in administrative regulation, and by relieving lower federal courts of the burdens of nondeferential review. And retaining nondeferential judicial review in the Supreme Court will preserve the constitutional role of the judicial branch to say what the …

Chapter 9 Bankruptcy: The Solution That Causes Problems, Peter C. Alexander

Brooklyn Journal of Corporate, Financial & Commercial Law

There is a little-known form of bankruptcy called a “Chapter 9,” reserved for insolvent cities, villages, and other municipalities. Occasionally, one reads about a city or a county that has filed for Chapter 9 relief, like Detroit, Michigan, or Orange County, California; however, it is very hard to file a Chapter 9 case, in part, because existing law requires a municipality to obtain permission from its home state before it can file for relief in the U.S. Bankruptcy Court. An additional constraint is that the only option municipalities have when seeking bankruptcy relief is to file a Chapter 9 because …

Wine Unwelcome: The Constitutional Contours Of Wine Regulation, Alexander Fallone

Brooklyn Journal of Corporate, Financial & Commercial Law

Wine retail shops face a dizzying labyrinth of state laws that severely restrict their ability to ship wine to out-of-state consumers. While the dormant Commerce Clause would normally strike down laws that impose restrictions on interstate commerce, wine (and alcoholic beverages) must contend with Section Two of the Twenty-first Amendment, which gives the states control over the importation and distribution of wine intending to be consumed within their borders. Court of Appeals cases interpreting Supreme Court precedent on the tension between the dormant Commerce Clause and Section Two have practically stripped the dormant Commerce Clause of any power. This Note …

Who Owns Your Adventure? A Need For Legislative Clarity For Streamed Performances Of Video Games, Harrison Busalacchi

Brooklyn Journal of Corporate, Financial & Commercial Law

Video games contain copyrighted material that could easily be infringed upon by people streaming a performance of them playing the game. However, the streamers can protect themselves from infringement liability by transforming the content in some form or fashion such that their performance constitutes “fair use” of the copyrighted material. This is often accomplished by the streamer providing commentary while playing the game or adding a small video of themselves in the corner of the stream so that the viewers can see the streamers’ reactions to the content. With artificial intelligence seeing exponential growth in the past couple of years …

Emission Impossible: Challenging The Imposition Of New York City’S Local Law 97, Daniel Lopiccolo

Brooklyn Journal of Corporate, Financial & Commercial Law

New York City’s Local Law 97 was passed by the City Council in 2019 with the goal of reducing citywide carbon emissions. The law imposes civil penalties on property owners whose buildings fail to comply with carbon emissions limits stipulated by the city. While the law admirably aims to minimize New York’s carbon footprint, its present burden is excessive and disproportionate to the offense committed, making the cost of affording lower and middle-class housing units increasingly untenable for many New Yorkers, especially for property owners in co-op and condo communities. Many such as Glen Oaks Village Owners, Inc., the plaintiffs …

Compelled Contraception, Lars Noah

West Virginia Law Review

Can the federal government insist that people use contraceptives? It may come as a surprise to learn that the U.S. Food and Drug Administration (FDA) has done just that as a condition for allowing access to some pharmaceutical products that create a serious risk of birth defects. Over the last few decades, the agency has demanded that patients using certain teratogenic agents—now numbering over a dozen drugs prescribed for a variety of conditions, ranging from severe acne and psoriasis to multiple myeloma and pulmonary hypertension—agree to avoid becoming pregnant, sometimes for years after completing their course of treatment. Undoubtedly the …

Superfluous Slot Machines: A Legal Analysis Of The Overly-Strict Rules Of Slot Machine Retail, Sean Jarchow

UNLV Gaming Law Journal

No abstract provided.

303 Creative For Everyone?, Mark Satta

West Virginia Law Review

Does the holding in 303 Creative v. Elenis give businesses open to the public a constitutional right to refuse to provide expressive services for interracial couples’ weddings, interfaith couples’ weddings, or for couples’ weddings in which one or both partners are disabled? As indicated by questions raised during oral arguments, this is one of the troubling new legal questions created by the Supreme Court’s 303 Creative decision where the Court held that a Colorado web design business had a First Amendment free speech right to refuse to provide wedding website services for same-sex couples’ weddings. Understandably, both the Court’s conservative …

(Re)Birth Of A Nation: Reconstruction’S Unfinished Business, Zanita E. Fenton

Michigan Journal of Race and Law

The irony, alluding to the title of the 1915 silent movie Birth of a Nation, seeks to make conspicuous the counter-stories that more authentically account for the “birth” and development of American society. Ku Klux Klan-sponsored propaganda designed to evoke hyper-racist fearmongering and perpetuate sexual paternalism over White women, the plot from Birth of a Nation reflects the paradigmatic race-bait: relentless pursuit of a White woman by a Black man. This storyline was fictionalized, culturally unrealistic and deliberately omitted the very real sexual exploitation of Black women and girls. Birth of a Nation parallels Constitutional history that marginalizes supplemental …

Immigration Detention Expansion By Stealth, Denise Gilman

Nevada Law Journal

No abstract provided.

Civil Servant Disobedience: An Alternative Legal Strategy To Prevent Bureaucratic Pathology, Richo Andi Wibowo

The Indonesian Journal of Socio-Legal Studies

This paper seeks to provide conceptual and empirical justifications for civil servants to engage in disobedience to curb bureaucratic pathology. Various civil servants have long complained that they face illegal instructions from their superiors. The cases discussed here are from public procurement, which has a dimension of political corruption, a recurring problem in many places in Indonesia. Thus, the problem shall be seen as a bureaucratic pathology rather than as maladministration. As the reporting of superiors to legal enforcers may be too risky, the disobedience can be accomplished by refusing to cooperate with superiors who give illegal instructions. The term …

Reconciling Tenure And Faculty Accountability, Stuart Chinn

West Virginia Law Review

Part of the very identity of the American university is its insulation from society—a crucial contributor, at least in some instances, toward facilitating the search for knowledge and the disruption of established orthodoxies. Yet American higher education does not exist and cannot function separately from societal pressures. This is most obviously true in the context of public institutions that directly rely on state governmental entities for financial support and that may be subject to some mechanisms of control by governmental actors or their appointees. But it is also obviously true in the context of private institutions that may rely on …

The Defamation-To-Bankruptcy Pipeline In The United States And Around The World, Christopher D. Hampson

UF Law Faculty Publications

It has never been easier to ‘go viral’. With nothing more than a microphone, a smartphone, and some computer software, an influencer in today’s media landscape can reach millions. But that ease comes with risk: defamation lawsuits are on the rise, sending content creators to bankruptcy courts with judgments that far exceed everything they own. Last year, I analysed this trend in American law, which I call the ‘defamation-to-bankruptcy pipeline’, in Defamation, Bankruptcy & the First Amendment, published in the Journal of Free Speech Law.

A Democracy Denied—Act 236’S Unconstitutional Restriction On Arkansas’S Initiative And Referendum Rights, Megan Prettyman Halford

University of Arkansas at Little Rock Law Review

No abstract provided.