Digital Commons Network^™

Thinking About The Public Trust Doctrine In A Modern Context As Applied To Non-Fungible Tokens, Dustyn Sams

Natural Resources Journal

This paper discusses two popular concepts in the legal world, the public trust doctrine and non-fungible tokens (NFTs). For the first time, it explores whether litigants could successfully use the doctrine to protect valuable NFTs. The public trust doctrine is the legal principle that the government holds and manages land under navigable water and closely associated natural resources in trust of the people. NFTs, on the other hand, are unique collections of cryptographical data that represent ownership of a digital artwork. This paper reconsiders the question of what exactly the scope of the public trust doctrine is and how its …

Critical Race Theory Bans And The Changing Canon: Cultural Appropriation In Narrative, Susan Ayres

William & Mary Journal of Race, Gender, and Social Justice

Thirty-five states have enacted critical race theory (CRT) bans at the level of elementary and secondary public education, and eleven states have extended these to the university level. One way to resist these attempts to repress a healthy democracy by whitewashing history is through a pedagogy of anti-racism, including literary works. The question of what that would look like involves questions of cultural appropriation, which occurs when one takes from another culture, such as a writer creating a narrative about a character outside of the writer’s cultural identity. This Article considers the story of Ota Benga, brought from the Congo …

Cracking Down On Egg Law: Legal Discrepancies Impacting Sales Of Ungraded Eggs In Texas, Parker Benton

St. Mary's Law Journal

No abstract provided.

Defunding Cities: Reconsidering The Fiscal Sanctioning Measures Of State Punitive Preemption Statutes, Eliza Martin

University of Chicago Legal Forum

In an effort to deter and punish cities for passing ordinances that conflict with state priorities, states are utilizing a new form of legislative power: punitive preemption. It is generally considered a legitimate use of state power to utilize statutes to preempt local measures and ordinances deemed inconsistent with state policy. State legislatures, however, are attaching punitive mechanisms to preemption legislation that, in the event of local noncompliance, create criminal and civil liability for local officials, provide removal mechanisms for elected officials, and allow for the fiscal sanctioning of local governments.

This Comment considers whether local governments are legally protected …

Domestic Terror Across State Lines: A Failed Federal Framework, Sophia Houdaigui

University of Chicago Legal Forum

As white supremacist violence has substantially increased over the last two decades, calls to combat associated attacks have intensified. This Comment outlines the impact of the events of September 11, 2001 on domestic and international terrorism policy, contextualizing the subsequent invocation of international terrorism charges at significantly higher rates than those of domestic terrorism. It introduces the lack of a general criminal statute prohibiting acts of terrorism and discusses the issues associated with the varying definitions of domestic terrorism employed by the federal government.

Due to the lack of common terminology in referencing domestic terrorism, a number of white supremacists …

International Borders: Yours, Mine, And Ours, Beth Simmons

University of Chicago Legal Forum

International borders have become divisive issues in international and domestic politics. They have also become sites where the human rights of vulnerable persons have increasingly been documented as at risk. Policies of border hardening in the face of growing human mobility and other external threats—real and imagined—have made international borders focal sites of conflict at many levels. This Article argues that international law can reframe our understanding of bordering, leading to a more constructive approach to border management and greater respect for human rights. Borders are essentially institutions with the potential to settle coordination problems over territory. But of growing …

The Unwritten Norms Of Civil Procedure, Diego A. Zambrano

Northwestern University Law Review

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and …

Respect My Authority: The Past, Present, And Future Of The Public Authority, Tom J. Letourneau

Ocean and Coastal Law Journal

This comment synthesizes various historical aspects of motor vehicle infrastructure in the United States. The network of issues at play involves centuries of public policy decisions made at the local, state, and federal level, which twentieth century legal innovations hastened and curdled into the car culture we are all a part of today. The public authority is the paradigm of these legal innovations, but it has outlived its usefulness in the face climate change and burgeoning issues relating to urbanism.

30 Years Removed, Oil-Spill Liability Insurance's Evolution Since The 1989 Exxon Valdez Incident, Rejo Mathew

Ocean and Coastal Law Journal

In the thirty years since the Exxon Valdez incident, much has changed. This article looks back at the events of the accident and the subsequent changes to the marine pollution insurance industry, from the statutes regulating oil tankers in 1989 to the Oil Pollution Act of the 1990. The regulatory framework resulting from the Exxon Valdez is examined and compared to the litigation deriving from the spill.

It's A Soft Shell Life For Me: The Case For Expanding Npdes Permitting To Include Causes Of Ocean Acidification, Natalie L. Nowatzke

Ocean and Coastal Law Journal

Ocean acidification, a lesser-known counterpart to climate change, is primarily caused by the ocean’s absorption of carbon dioxide from the atmosphere. This absorption, in turn, reduces the ocean’s pH, and has detrimental effects on the health of the entire ecosystem. This Comment examines the applicability of the “functional equivalent test,” coined by the Supreme Court in County of Maui v. Hawaii Wildlife Fund, to the causes of ocean acidification. Using this test, this Comment proposes expanding NPDES permitting under the Clean Water Act to cover some landbased sources emitting carbon dioxide.

When Fines Don't Go Far Enough: The Failure Of Prison Settlements And Proposals For More Effective Enforcement Methods, Tori Collins

Maine Law Review

The Eighth Amendment’s Punishments Clause provides the basis on which prisoners may bring suit alleging unconstitutional conditions of confinement. Only a small number of these suits are successful. The suits that do survive typically end in a settlement in which prison authorities agree to address the unconstitutional conditions. However, settlements such as these are easily flouted for two primary reasons: prison authorities are not personally held liable when settlements are broken, and prisoners largely lack the political and practical leverage to self-advocate beyond the courtroom. Because of this, unconstitutional prison conditions may linger for years after prison authorities have agreed …

Progressivism, Conservatism, And Democracy, William Voegeli

The Journal of Contemporary Legal Issues

“Conserve” is a transitive verb, one that conveys little unless followed by a direct object. The meaning of conservatism then, depends on what conservatives want to conserve: why it’s valuable, therefore meriting conservation; and why it’s vulnerable, therefore requiring conservation.

The answer to that question will vary from one time and place to another. During the Cold War, American conservatives bristled when newspapers referred to the most inflexible, doctrinaire Soviet leaders as the Kremlin’s “conservatives.” But this journalistic shorthand wasn’t absurd: it’s hard to identify a conservative essence discernible in all political settings. A skeptical, wary attitude regarding change …

Virtual Stardom: The Case For Protecting The Intellectual Property Rights Of Digital Celebrities As Software, Alexander Plansky

University of Miami Business Law Review

For the past several decades, technology has allowed us to create digital human beings that both resemble actual celebrities (living or deceased) or entirely virtual personalities from scratch. In the near future, this technology is expected to become even more advanced and widespread to the point where there may be entirely virtual celebrities who are just as popular as their flesh-and-blood counterparts—if not more so. This raises intellectual property questions of how these near-future digital actors and musicians should be classified, and who will receive the proceeds from their performances and appearances. Since, in the near-term, these entities will probably …

Conservatism, Ideology, Skepticism, Brandon Turner

The Journal of Contemporary Legal Issues

The occasion for this essay concerns the prospects of modern conservative political philosophy; more directly, it calls for the provision of “a systematic and comprehensive account of conservatism.” Given our present moment, at which the political parties and institutions of the political right seem increasingly unmoored from any philosophical anchor, such an occasion appears altogether appropriate. Yet there is good reason to think that accounts of conservatism will not be systematic in the way desired and will in fact tend to rule out entirely systematic approaches—at least according to the commonplace understanding of “systematic”—to government or political philosophy. The belief—often …

Contemporary Conservative Thought: The View From San Diego, William A. Galston

The Journal of Contemporary Legal Issues

At the conference on “Modern Conservative Political Philosophy” convened at the University of San Diego on September 16–17, 2022, eleven authors presented papers. They fall into four broad categories.

Three of the papers offer broad defenses of conservatism as it has been theorized and practiced in the United States since the 1950s. William Voegeli observes—accurately—that “by following their own premises, an increasingly postmodern Left and an increasingly premodern Right have ended up questioning the worth and feasibility of republican self-government.” This leaves the beleaguered Center, long the common ground between traditional liberals and traditional conservatives. According to Voegeli, this “increasingly …

Animal Liberation Front: Threat To Kentucky, Zoe E. Hunt

Posters-at-the-Capitol

The Animal Liberation Front (ALF) is a global terrorist organization that was founded in 1976. Since the creation of ALF, the group has spread rapidly as well as turned into a domestic terrorist organization in the United States. With this project, the group's potential threat to Kentucky was evaluated. ALF was evaluated using four structured analytic techniques and an intelligence collection plan. A better understanding of what ALF is was formed by the discussion of the group’s origins, ideology, and organization. In addition, the group's goals, objectives, and capabilities were discussed. Using the information gathered during the threat profile, the …

Sacred Nutrition: Asserting Indigenous Sovereignty And Rights Of Women And Nature To Ensure The Right To Food In The United States, Mariana Chilton, Phd, Mph

University of Miami International and Comparative Law Review

This Paper is a provocation to move beyond a standard human rights and right to food framework to encourage scholars, activists, and political leaders to engage in full throttle societal transformation. Ending hunger in the United States demands nothing less. The modern human rights framework is enshrined in the modern nation-state system that is rooted in the transatlantic slave trade, colonization, and genocide.1 Three primary ways in which these roots took hold were through land theft, rape, and starvation. Hence, to assert that integrating the right to food and freedom from hunger into nation-state constitutions or into national plans to …

State Of Utah Plaintiff/ Appellee V. Alan Dudley Hamberlin Defendant/ Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Sixth Judicial District Court, Kane County, Honorable Mandy Larsen, District Court No. 211600067

Sean Reyes, Counsel for Appellee

Freyja Johnson, Rachel Phillips Ainscough, Counsel for Appellant

Epigenetics And Reparations: How Epigenetics Can Help Federal Plaintiffs Meet The Constitutional Article Iii Standing Requirements In Reparation Lawsuits, William Chin

Seattle Journal for Social Justice

No abstract provided.

Forever Chemicals Are Infiltrating America, And The Nation Is Letting Impoverished And Marginalized Communities Take The Brunt Of The Contamination, Elizabeth Troutman

Seattle Journal for Social Justice

No abstract provided.

Innovative Virtual Wellness Interventions At An Academic Medical Center: A Pilot Feasibility Study, Ritika Baweja, Michael Hayes, Aditya Joshi, Raman Baweja

Journal of Wellness

Introduction: There is generally a concerning likelihood of burnout in healthcare workers. Given the impact of COVID-19 on healthcare workers, our institution identified the need for wellness interventions to foster adaptive functioning and mitigate burnout. The purpose of this pilot project was to assess the feasibility of virtual holistic interventions like meditation, art, laughter therapy and dance and their impact on overall well-being of physicians and advanced practice providers (APPs).

Methods: A series of 12 virtual sessions (art therapy, dance therapy, mindfulness-based practices/meditation and laughter therapy) were offered to providers over a 6-month period. Participants completed an online survey reporting …

“Zealous” Professional Ethics: The Transcendence Of Natural Law, Legal Positivism, And The Ethical Stage In The U.S. Legal Ethics System And The Moral Dilemma That Surround Zealous Representation, Sudarsanan Sivakumar, Marshall Maina

St. Mary's Journal on Legal Malpractice & Ethics

The zealous pursuit of law has its own ideals and dogma that sets it apart from the other rules in the Model Rules of Professional Conduct. Decades after many enactments and amendments, there still exists many debates considering its operation as to whether an attorney owes a duty toward society over the representation of the client. This is a Delphi method that has made even the best seasoned ‘Justiciar’ and ‘Legislator’ unable to find the proper guidelines to implement upon the Legal Superstructure. The Model Rules of Professional Conduct attempt to clear the fog around the existing principle of Zealous …

The Futures Of Law, Lawyers, And Law Schools: A Dialogue, Benjamin H. Barton, Sameer M. Ashar, Michael J. Madison, Rachel F. Moran

Scholarly Works

On April 19 and 20, 2023, Professors Bernard Hibbitts and Richard Weisberg convened a conference at the University of Pittsburgh School of Law titled “Disarmed, Distracted, Disconnected, and Distressed: Modern Legal Education and the Unmaking of American Lawyers.” Four speakers concluded the event with a spirited conversation about themes expressed during the proceedings. Distilling a lively two days, they asked: what are the most critical challenges now facing US legal education and, by extension, lawyers and the communities they serve? Their agreements and disagreements were striking, so much so that Professors Hibbitts and Weisberg invited those four to extend their …

Amended Expert Disclosure Report: Navahine V. Dept. Of Transportation, State Of Hawai’I, Catherine Smith

Scholarly Articles

From a historical and sociological legal perspective, children in America, including in Hawai'i, require extraordinary legal protection from the harm of climate change and the government actions causing them harm. Hawai'i has a long history and tradition of leading the way on broadening rights and protections under state law, particularly for children. The principles of intergenerational justice and equity at the heart of the public trust doctrine in Hawai'i similarly require that courts accord special attention and protection for children.

On June 20, 2024, the youth-powered Navahine case settled, resulting in the first constitutional climate settlement of its kind in …

‘Resisting’ While Collaboratively Informing In Communist Czechoslovakia, Mark A. Drumbl, Barbora Holá

Scholarly Articles

Informers in the service of state secret police collaborate with authorities and thus contribute to the power of repressive regimes. Through a case-study of Communist Czechoslovakia (1945–1989)—and drawing from secret police archives– this article presents selected stories of informers who in one way or another also ‘resisted’ collaboration with the Czechoslovak State Security (StB). By doing so, we try to further complexify the notions of ’everyday resistance’, on the one hand, and ‘collaboration’ on the other. We demonstrate that resistant acts, similar to collaborative acts, can be apolitically devoid of ideology, highly idiosyncratic, and motivated by private drivers. Informing can …

Does Minnesota’S Red Flag Bill Violate The Second Amendment?, Sherian Anikie

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Brazil’S Role In Global Climate Treaties, Uven Chong

International Program Papers

Since the 1992 United Nations Conference on Environment and Development, Brazil has asserted an influential role in shaping international climate change treaties. The purpose of this paper is to assess Brazil’s contributions in three major climate conferences: 1992 in Rio de Janeiro, 1997 in Kyoto, and 2015 in Paris. Brazil’s negotiating strategy at these conferences reveal two powerful tactics. First, Brazil approached these political events with a view that science and technology were paramount. Second, Brazil successfully injected economic development priorities into environmentally focused negotiations. These two noteworthy tactics have shaped the climate change diplomatic discourse for the past three …

When Originalism Failed: Lessons From Tort Law, Donald G. Gifford, Richard C. Boldt, Christopher J. Robinette

Faculty Scholarship

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first …

The Bias Presumption, Bradley A. Areheart, Dave Hall

Scholarly Works

The American workplace is a fractured sphere of public life, in which white men often wield power at the expense of women and people of color. However, that power imbalance is no longer fully imbued with the active animus that characterized the first few centuries of American life; now, much of the damage done by discrimination is done structurally and implicitly. Consequently, the operation of bias and disadvantage is often invisible to employers and employees alike. The problem of discrimination in American life is thus larger and deeper than a few bad actors, and it will be impossible to solve …

Fleeing Terror In Southern Mexico: Why Numerous Guerrero Refugees Qualify For Asylum, International Human Rights Clinic Of Seattle University School Of Law, Kino Border Initiative

International Human Rights Clinic

This report sheds light on the crisis confronting residents of Guerrero, a state in Southern Mexico plagued by rampant, indiscriminate violence and human rights violations. It utilizes research and first-person interviews to methodically provide a rationale for granting these refugees asylum under U.S. law.