Digital Commons Network^™

Asking The Rights Questions: An Emgerency Action Exception To The Major Questions Doctrine, Mark Hager

Minnesota Law Review Vols. 106:2 onward (2021-present)

Congress delegates broad discretionary power to administrative agencies to respond to emergency situations, taking advantage of their extraordinary expertise and response speed. Yet these delegations are defined by a judicial rule known as the “Major Questions Doctrine.” The Major Questions Doctrine seeks to protect the separation of powers by preventing excessive use of executive power without clear delegation by Congress. Where a “major question” of vast economic or political significance is raised, it requires “clear” authorization in the delegating statute. During COVID-19, the Supreme Court used the doctrine to strike down several response programs, including: the Center for Disease Control’s …

Liability Considerations For Marine Carbon Dioxide Removal Projects In U.S. Waters, Korey Silverman-Roati, Martin Lockman, Romany M. Webb

Sabin Center for Climate Change Law

Scientists have identified a number of land- and ocean-based carbon dioxide removal (“CDR”) approaches. Ocean-based approaches, also known as marine CDR, hold great potential for uptake and sequestration of carbon dioxide. However, controlled field trials in the ocean are needed to better understand the efficacy and impacts of several marine CDR approaches. Legal considerations will have a major bearing on whether, when, where, and how such field research goes forward. Previous studies have analyzed the potential international and domestic legal framework applicable to marine CDR research and subsequent deployment (if that is ultimately deemed appropriate). However, relatively little research has …

State Constitutional Rights, Naturally, Daniel B. Rodriguez

UMKC Law Review

No abstract provided.

Whatever Happened To Queenie's Law?, Virginia C. Thomas

Library Scholarly Publications

This column illustrates how the history of a specific legislative measure that has been introduced over multiple legislative sessions can deepen our understanding of its legislative purpose.

Regionalism And The Federal Reserve Banks, Kathryn Judge, Lev Menand

University of Chicago Law Review

Regionalism is central to our country’s central banking system. Rather than rely on a single organization to set monetary policy and oversee banks, Congress created a multiplicity of bodies including twelve Federal Reserve Banks (FRBs), each designed to operate in a different part of the country. These FRBs are an early and undertheorized example of how the federal government uses regional bodies to formulate and administer federal policy. When they were first authorized in 1913, their regional character assuaged concerns about centralizing power over the economy. Today, the FRBs continue to play a number of important roles, helping to shape …

Zero-Sum Environmentalism: Competing Tax Incentives For Solar Farms And Wildlife Conservation Land, Nathaniel Swigart

North Carolina Law Review

No abstract provided.

Trauma-Informed Judicial Practice Meets Therapeutic Jurisprudence: Compassionate Written Judgments In Child Protection Cases, Shelley Kierstead

Articles & Book Chapters

Trauma arises from profoundly distressing life events, and manifests in a range of often overwhelming physical and psychological symptoms. The legal community is increasingly recognizing that clients living with trauma need trauma-informed services—that is, services that “recognize, understand and minimize” the long-term impact of trauma. A trauma-informed approach acknowledges that “effective interventions with people require both the avoidance of retraumatization and the presence of respectful and supportive interventions that help people rebuild their lives.”

Real Concerns For An Artificial Threat: Artists, Ai, And The Battle To Script Hollywood’S Future, Evan Sommer

Nevada Law Journal

No abstract provided.

Protecting The Presumption Of Innocence: Tiktok Detectives, Misinformation And Private Content Moderation, Paige Sanders

Utah Law Review

The presumption of innocence is a fundamental component of the American legal system, but modern media platforms undermine its effectiveness. Platforms like TikTok have become popular sites for true crime content, allowing online detectives to spin their own narratives about high-profile crimes, often with little regard for the truth. This trend undermines the integrity of the legal system and causes irreversible harm to those being baselessly accused on social media. While TikTok and other social media platforms employ guidelines to moderate users’ content, they consistently fall short in preventing the spread of unverified true crime content. This Note explores TikTok’s …

Cannabis In The Clink: An Argument In Favor Of Medical Marijuana For Disabled Inmates, Sophia Dechurch

Journal of Law and Health

In recent decades, medical marijuana programs have become commonplace, and most states in the United States of America are ready to accept marijuana as a natural alternative to treat symptoms of certain conditions such as chronic pain, cancer, mental illness, multiple sclerosis (MS), HIV/AIDS, and substance use disorder; as such, medical marijuana is readily accessible to those who have a qualifying diagnosis – the exception being those who are incarcerated. Although disability, substance abuse, and mental illness are prevalent among those under state supervision, these individuals are effectively prohibited from enjoying the benefits of medical marijuana. This Note will provide …

Navigating Job Security In Turbulent Times: Challenges In The Entertainment, Airline, And Auto Industries, Joshua M. Javits

Hofstra Labor & Employment Law Journal

No abstract provided.

Accommodating Transportation To Work: How Courts Fail To Protect People With Disabilities By Inconsistently Interpreting The Ada’S Requirements To Provide Reasonable Accommodations To Employees, Tara Kniep

Marquette Benefits and Social Welfare Law Review

The Americans with Disabilities Act (ADA) has played a critical role in helping people with disabilities function with greater ease in an inaccessible world. However, it is not perfect and leaves many people without the accommodations they need. One of the many accommodations not directly and consistently protected by the ADA is transportation to and from work. While many Americans have enjoyed the work-from-home boom caused by the pandemic, there are many others that are forced to take remote jobs simply because they cannot secure safe and reliable transportation to and from work due to disability. This significantly narrows their …

Law, Music, Statutory Interpretation, And Schubert, Norman P. Ho

Hofstra Law Review

The law and humanities field has been dominated by law and literature. Legal scholars have, for example, analogized judges to literary authors and have tried to show how the study of literature and law can enrich both subjects. Law and music, however, has received relatively less attention. This Article argues, on its most macroscopic level, that the relationship between law and music is very close, just like the close relationship between law and literature. Previous scholarly literature in the law and music field has spoken about the affinities between law and music, but mostly on a general level and with …

Retaliation And Confrontation Of The State, Jon Mcneal

Vanderbilt Law Review

Popular resistance to the weaponization of government has eroded in America. On the political Right, the post-Reagan consensus favoring limited government has given way to a new generation of leaders—like Vice President J.D. Vance and Florida Governor Ron DeSantis—who openly advocate for using state power against their political opponents. Collectively they are the New Right: a populist, antiestablishment, conservative movement opposing pluralistic systems, institutions, and cultural elites. While both political liberals and conservatives have wielded state power against their adversaries, leveraging state power to reward friends and punish enemies is fundamental to the New Right’s worldview. Following German jurist Carl …

Race, The Academy, And The Constitution Of The War On Drugs, Jeffrey Bellin, Bennett Capers

Vanderbilt Law School Faculty Publications

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only in- creased since the war was declared in 1971. David Pozen's new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a "right" to use drugs with surprising, if fleeting, suc- cess. Pozen asks what might have been, exploring why the courts backtracked and effectively re- moved the Constitution as a meaningful obstacle to drug prohibitions. …

Policing’S Free-Speech Problem, G. Alex Sinha

Utah Law Review

The central claim of this Article is that a significant share of typical policing activity is wildly and egregiously unconstitutional. More precisely, police regularly, predictably, and systematically violate the hardest, most settled core of free-speech law under the First Amendment. We have grown to tolerate these violations—we have not even noticed them!—because they are difficult to litigate. But they are inescapable. Having seen them, we cannot abide these violations without entirely overturning the modern understanding of free-speech rights under the First Amendment.

It is well-settled that, under the First Amendment, the government generally may not discriminate against (or in favor …

Race, The Academy, And The Constitution Of The War On Drugs, Bennett Capers, Jeffrey Bellin

Faculty Publications

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions.

This Review …

Regulating Hidden Ai Authorship, Jacob Noti-Victor

Articles

With the rapid emergence of high-quality generative artificial intelligence (“AI”), some have advocated for mandatory disclosure when the technology is used to generate new text, images, or video. But the precise harms posed by nontransparent uses of generative AI have not been fully explored. While the use of the technology to produce material that masquerades as factual (“deepfakes”) is clearly deceptive, this Article focuses on a more ambiguous area: the consumer’s interest in knowing whether works of art or entertainment were created using generative AI. In the markets for creative content—fine art, books, movies, television, music, and the like—producers have …

Regionalism And The Federal Reserve Banks, Kathryn Judge, Lev Menand

Faculty Scholarship

Regionalism is central to our country’s central banking system. Rather than rely on a single organization to set monetary policy and oversee banks, Congress created a multiplicity of bodies including twelve Federal Reserve Banks (FRBs), each designed to operate in a different part of the country. These FRBs are an early and undertheorized example of how the federal government uses regional bodies to formulate and administer federal policy. When they were first authorized in 1913, their regional character assuaged concerns about centralizing power over the economy. Today, the FRBs continue to play a number of important roles, helping to shape …

A New Way For Justice For Families Of Schoolchildren With Disabilities? A Case Note On Luna Perez V. Sturgis Public Schools, Kevin R. Hart

New Mexico Law Review

For years, the majority of courts have ruled that parents of children with disabilities were required to exhaust special education due process procedures before filing civil actions under other disability statutes. Change would come through Luna Perez v. Sturgis Public Schools. In Luna Perez, a deaf student, Miguel Luna Perez, was denied a free and appropriate education for eleven years. After settling the case under the Individuals with Disabilities Education Act (IDEA), Mr. Luna Perez (initially through his mother, but later continuing on his own) filed a claim for compensatory damages under the Americans with Disabilities Act (ADA) and Section …

A Natural Law Approach To Parental Rights, Richard A. Epstein

The Journal of Contemporary Legal Issues

The modern interest in the twin cases of Meyer v. Nebraska, and Pierce v. Society of Sisters has sparked a renewed curiosity in the intellectual foundations and current applicability of those two cases. In this instance, I stress less the constitutional underpinnings of the cases in order to focus more on their natural law approach to the parent-child relationship. Based on Lockean principles, I conclude that the standard rules of abuse and neglect offer the sole justification for such intervention, where the state is put to a high standard of proof for intervention. This framework has had only an …

Parental Rights, Parental Choice, And State Public Education Mandates, Nicole Stelle Garnett

The Journal of Contemporary Legal Issues

Pierce v. Society of Sisters and Meyer v. Nebraska were cases about parental rights in general, and parental choice in particular. Both centered on a challenge to a state’s legal effort to reduce or eliminate the educational choices available to parents—in the former, by requiring students to attend public schools, in the latter, by requiring instruction in all schools, public and private, be conducted in English. Pierce and Meyer also were about state efforts to forge a homogeneous American citizenry by limiting the educational choices available to parents. As Justice McReynolds observed in Meyer, “The desire of the Legislature …

The Centennial Of Meyer And Pierce: Parents’ Rights, Gender-Affirming Care, And Issues In Education, Ira C. Lupu

The Journal of Contemporary Legal Issues

This paper was prepared for a Symposium, held in March 2024, marking the centennial of the Supreme Court’s decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). At their inception, Meyer and Pierce reflected constitutional principles of economic freedom and parental control of their children’s education. Part I traces the path of ideas put in motion by Meyer and Pierce. These include the decline of their economic freedom component and the broader grounding of their doctrines of parental authority. Eventually, the chameleon-like legacy of Meyer and Pierce stretched to include First Amendment concerns of religious …

The Conservative Response To Transformative Disruption: Voice Or Exit 100 Years After Meyer And Pierce?, Neal Mccluskey

The Journal of Contemporary Legal Issues

In 1923 and 1925, respectively, the U.S. Supreme Court rulings in Meyer v. Nebraska and Pierce v. Society of Sisters established limits on the ability of government to constrain what children’s education contains and where it occurs. The Court recognized the “right” of parents to exercise basic control over those things. One hundred years later, we are seeing a renewed emphasis on “parental rights,” both with booming growth of “school choice” programs that allow government-connected funding to follow children to educational options their parents select and efforts to constrain what public schools do. The position of conservatives on such parental …

Standing To Enforce The Future: Citizen Suits And Climate Change, Jordan Budd, Margaret Sova Mccabe

Law Faculty Scholarship

This Article takes as its starting point the premise that Congress, facing an existential climate catastrophe, might choose to impose direct and significant restrictions on greenhouse gas (GHG) emissions. Were it to do so, federal policy would require powerful enforcement mechanisms to reach the myriad emission sources fueling the nation’s vast contribution to global warming.

Among the most potent and far-reaching enforcement tools available to Congress are citizen suits—actions brought by private litigants to enforce federal regulations and to hold agencies accountable for related inaction. Private enforcement in the context of climate change, however, faces a nearly insurmountable barrier—Article III …

Wipo Negotiations On Intellectual Property, Genetic Resources And Associated Traditional Knowledge, Peter K. Yu

Akron Law Review

This article examines the ongoing negotiations at the World Intellectual Property Organization (WIPO) regarding the protection of genetic resources, traditional knowledge (TK), and traditional cultural expressions (TCEs). It provides a comprehensive overview of the historical background, key provisions, challenges, and reflections on the diplomatic efforts leading to the establishment of the WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge (GRATK Treaty). It explores issues surrounding disclosure obligations, including the lack of a clear definition for "confidential information" and the debate over sanctions and remedies. The article examines the challenges and implications of key provisions in the Basic …

Let’S Be Cool About It: Anticipating Proper, Whole-Human Cryopreservation And The Necessary Oversight For Adequate Consumer Protection, Peter Lyon

Minnesota Journal of Law, Science & Technology

No abstract provided.

Guardians Of Cyberspace: Censorship, Ai-Generated Child Imagery & The Role Of Online Platforms, Derick A. Kalt

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Future Of Higher Education: Reconciling Freedom Of Expression With Trauma-Informed Practices And Relationship-Building, Michael J. Kaufman, Jennifer R. Stukenberg

Widener Commonwealth Law Review

Our nation’s universities face significant challenges, including providing greater access and affordability, managing a business model heavily dependent on tuition revenue in an era of shifting demographics and declining enrollment, integrating technology and artificial intelligence, and mitigating serious enterprise risks.

The United States' Recycling Model Is In Desperate Need Of A Makeover, Lindsay A. Williamson

Widener Commonwealth Law Review

Most Americans do not hesitate to throw something away, but a lack of recycling is causing landfills to overflow with products that could be reused and repurposed. In 2017, it was estimated that the average American creates 4.51 pounds of garbage per day, nearly double the amount of the 2.68 pounds Americans produced on average in 1960. Recycling in the United States has become problematic as recycling companies turn away recyclables that have been contaminated with food and other nonrecyclables. The effect is that not nearly enough recyclable products are being repurposed, with many of them ending up in landfills. …