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An Abolitionist Critique Of Violence, Allegra Mcleod

University of Chicago Law Review

The violence experienced by young people of color in the city is multidimensional—both interpersonal and structural. So many of the young have to swallow their rage as they are surveilled in stores and on the streets, as they are targeted by cops for endless stops and frisks, as they are denied jobs, as their schools are closed, and as they are locked in cages by the thousands. For some, the violations and the deprivation turn outward. The instrumental use of violence by some young people becomes a rational adaptive strategy in response to racial and economic oppression. For some of …

The Unbearable Emptiness Of Formalism: Autonomy, Equality, And The Future Of Affirmative Action, Rachel F. Moran

Faculty Scholarship

Debates over affirmative action in higher education generally focus on equality interests under the Fourteenth Amendment but ignore liberty interests under the First Amendment. That tendency persists, even though the academic freedom to enroll a diverse student body has allowed colleges and universities to defend race-conscious admissions programs against legal challenges for decades. Today, the rise of formalism in judicial interpretation poses new perils for these programs. Justice Powell’s seminal decision in Regents of the University of California v. Bakke was a pragmatic compromise that used diversity to temper the polarized debate over equality that sharply divided the Court. In …

Queer And Convincing: Reviewing Freedom Of Religion And Lgbtq+ Protections Post-Fulton V. City Of Philadelphia, Arianna Nord

Washington Law Review

Recent increases in LGBTQ+ anti-discrimination laws have generated new conversations in the free exercise of religion debate. While federal courts have been wrestling with claims brought under the Free Exercise Clause of the First Amendment since the nineteenth century, city and state efforts to codify legal protections for LGBTQ+ individuals in the mid-twentieth century birthed novel challenges. Private individuals who do not condone intimate same-sex relationships and/or gender non-conforming behavior, on religious grounds seek greater legal protection for the ability to refuse to offer goods and services to LGBTQ+ persons. Federal and state courts must determine how to resolve these …

Decitizenizing Asian Pacific American Women, Shoba Sivaprasad Wadhia, Margaret Hu

Faculty Publications

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws …

Against Political Speech, John M. Kang

Nevada Law Journal

No abstract provided.

Table Of Contents

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Farm And Food Policies For A Sustainable Future, John Ikerd

The Business, Entrepreneurship & Tax Law Review

United States government policies have incentivized and supported the unsustainable agri-food system of the present and fundamental changes in farm and food policies will be necessary for a sustainable future. US farm policies, initiated in the 1930s, were designed to ensure long run domestic food security by ensuring the economic viability of independent family farms. New mechanical, chemical, and biological technologies of the 1950s made it possible to increase agricultural productivity by applying industrial production strategies to farming. A shift in farm policy during the 1960s made the shift from family farms to industrial agriculture inevitable.

The New Bailments, Danielle D’Onfro

Washington Law Review

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Under-Enforcement Of Federal Animal Protection Laws: Agencies Abdicating Enforcement Authority, And An Outlier Eleventh Circuit ‘Serious Harm’ Rule, Rebekah Green

Catholic University Law Review

Congress enacted the Endangered Species Act, Animal Welfare Act, and the Marine Mammal Protection Act to protect and preserve endangered and threatened fish and wildlife, animals, and marine mammals. The United States Department of Agriculture (“USDA”) is the primary administrative agency in charge of regulating zoos, wildlife centers, and aquariums, yet fails to consistently enforce the Animal Welfare Act, which this Comment reviews. This means that private animal advocacy agencies are left suing zoos, wildlife centers, and aquariums under the “taking” clause of the Endangered Species Act in order to ensure animal safety and care. While most circuits agree upon …

Roadside Zoo: A Term In Search Of Legal Definition?, Virginia C. Thomas

Library Scholarly Publications

This article uses the example of “roadside zoo” to highlight the importance of clear definition for terms used in a legal context.

The Glocal Net: Standing On Joel Reidenberg’S Shoulders, Michael Birnhack

Fordham Law Review

Information technology and digital networks are global, and information can easily cross borders. Laws, however, are territorial, local, and specific. This is the meeting of the global and the local. Imposing local laws on global technology can result in a conflict, but it may give birth to a new condition, the “glocal net”: the fusion of the global and the local. Under the condition of the glocal net, as a matter of practice, people experience the internet differently in different places around the globe. As an ideal, the glocal net would strive to enable both the global and the local …

The Unbearable Emptiness Of Formalism: Autonomy, Equality, And The Future Of Affirmative Action, Rachel F. Moran

North Carolina Law Review

No abstract provided.

How Should Inheritance Law Remediate Inequality?, Felix B. Chang

Washington Law Review

This Article argues that trusts and estates (“T&E”) should prioritize intergenerational economic mobility—the ability of children to move beyond the economic stations of their parents—above all other goals. The field’s traditional emphasis on testamentary freedom, or the freedom to distribute property in a will as one sees fit, fosters the stickiness of inequality. For wealthy settlors, dynasty trusts sequester assets from the nation’s system of taxation and stream of commerce. For low-income decedents, intestacy (i.e., the system of property distribution for a person who dies without a will) splinters property rights and inhibits their transfer, especially to nontraditional heirs.

Holistically, …

See Something; Say Something: Model Rule 8.4(G) Is Not Ok, William Hodes

Hofstra Law Review

The article focuses on American Bar Association (ABA) adopted Model Rule of Professional Conduct 8.4(g), which confront the issues that harassment and discrimination. It mentions ABA House of Delegates placed—for the first time—a direct and enforceable prohibition against discrimination and harassment by lawyers into the black-letter text of the Model Rules. It also mentions anti-discrimination and anti-harassment principles from the comments to the directly enforceable black-letter text.

Classification Of Indigenous Data Sovereignty And Data Privacy: Indigenous And Common Law Patterns, Tang (Cindy) Tian

Journal Articles

On February 23, 2022, Jolande Goldberg, Senior Law Classification Specialist at the Library of Congress, gave a presentation for the Legal Cataloging Forum on the classification aspect of indigenous data sovereignty entitled Information & Data: Information Society and Personal Rights & Interests. A Review of Indigenous, Common & Civil Law Classification Patterns. In this presentation, Jolande discussed the changes and updates proposed to Library of Congress Classification K schedules for works on data sovereignty and information privacy. The presentation covered an extensive discussion on the subject matter including terminology, relationships, and hierarchies in the classification schedules (both global and regional …

Neuroscience And Criminal Justice: Time For A "Copernican Revolution"?, John S. Callender

William & Mary Law Review

The main purpose of this Article is to argue for a fundamental change in the conceptual orientation of criminal justice: from one based on concepts such as free will, desert, and moral responsibility, to one based on empirical science. The Article describes research in behavioral genetics, acquired brain injuries, and psychological traumatization in relation to criminality. This research has reached a level of development at which the traditional approach to criminality is no longer tenable and should be discarded. I argue that mental health legislation provides a model that could be adapted and applied to offenders.

More Cowbell: Freeing Insider-Trading Liability For Mere-Thieves From The Supreme Court’S Twentieth-Century Devotion To The Cult Of Common-Law Doctrinal Analysis, Robert Steinbuch

Nevada Law Journal

No abstract provided.

Trustworthy Digital Contact Tracing, Emily Berman, Leah R. Fowler, Jessica L. Roberts

University of Richmond Law Review

This Article takes a closer look at digital contact tracing in the United States during the coronavirus pandemic and why it failed. It begins by explaining the shortcomings of traditional analog methods and the resulting need for digital contact tracing. It then turns to the norms regarding consent, the scope of the data collected, and the limits on subsequent use necessary for cooperative surveillance. We argue that any successful digital contact-tracing program must incorporate these elements. Yet while necessary, those strategies alone may not be sufficient. People justifiably lack trust in public health authorities, in new technologies, and in the …

The Consensus Rule: A New Approach To Scientific Evidence, Edward K. Cheng

Vanderbilt Law School Faculty Publications

Founded on good intentions but unrealistic expectations, the dominant Daubert framework for handling expert and scientific evidence should be scrapped. Daubert asks judges and jurors to make substantively expert determinations, a task they are epistemically incompetent to perform as laypersons. As an alternative, this Article proposes a new framework for handling expert evidence. It draws from the social and philosophical literature on expertise and begins with a basic question: How can laypersons make intelligent decisions about expert topics? From there, it builds its evidentiary approach, which ultimately results in an inference rule focused on expert communities. Specifically, when dealing with …

The Future Of Law And Neuroscience, Owen D. Jones

Vanderbilt Law School Faculty Publications

I was asked to speculate about where the field of Law and Neuroscience may be ten years from now. In that spirit (and while recognizing that the future rarely complies with our predictions) I attempt here some extrapolations. I first consider potential advances in the technologies for monitoring and manipulating brain states, the techniques for analyzing brain data, and the efforts to further integrate relevant fields. I then consider potential neurolaw developments relevant to: (1) detecting things law cares about; (2) individualizing developmental states and brain states; (3) evidence-based legal reforms; (4) legal decision-making; and (5) brain-brain interfaces.

Nohwere, Peter A. Alces, Robert M. Sapolsky

William & Mary Law Review

Imagine the frustration of Samuel Butler’s protagonist, Higgs, with the strange society he encounters in Erewhon:

"Was there nothing which I could say to make them feel that the constitution of a person’s body was a thing over which he or she had had at any rate no initial control whatever, while the mind was a perfectly different thing, and capable of being created anew and directed according to the pleasure of its possessor? Could I never bring them to see that while habits of mind and character were entirely independent of initial mental force and early education, the body …

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

William & Mary Law Review

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

The Role Of Artificial Intelligence In Pushing The Boundaries Of U.S. Regulation: A Systematic Review, Gutierrez Gaviria, Carlos Ignacio

Santa Clara High Technology Law Journal

Artificial Intelligence’s (AI) growing catalog of applications and methods has the potential to profoundly affect public policy by generating instances where regulations are not adequate to confront the issues faced by society, also known as regulatory gaps. The objective of this article is to improve our understanding of how AI influences U.S. public policy. It does so by systematically exploring, for the first time, this technology’s role in the generation of regulatory gaps. Specifically, it addresses two research questions:

1. What U.S. regulatory gaps exist due to AI methods and applications?

2. When looking across all of the gaps identified in the …

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The Broken Fourth Amendment Oath, Laurent Sacharoff

Hofstra Law Faculty Scholarship

The Fourth Amendment requires that warrants be supported by "Oath or affirmation." Under current doctrine, a police officer may swear the oath to obtain a warrant merely by repeating the account of an informant. This Article shows, however, that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the oath, by its very nature, required a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones …

Nonparty Jurisdiction, Aaron D. Simowitz, Linda J. Silberman

Vanderbilt Journal of Transnational Law

The Supreme Court's recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must …

Opposition To Renewable Energy Facilities In The United States: March 2022 Edition, Hillary Aidun, Jacob Elkin, Radhika Goyal, Kate Marsh, Neely Mckee, Maris Welch, Leah Adelman, Shane Finn

Sabin Center for Climate Change Law

Achieving lower carbon emissions in the United States will require developing a very large number of wind, solar, and other renewable energy facilities, as well as associated storage, distribution, and transmission, at an unprecedented scale and pace. Although host community members are often enthusiastic about renewable energy facilities’ economic and environmental benefits, local opposition often arises. This report updates a previous Sabin Center report, published in February 2021, and documents local restrictions on and opposition to siting renewable energy projects for the period from 1995 to early 2022. Importantly, the authors do not make normative judgments as to the legal …

Chans-Law: Preventing The Next Pandemic Through The Integration Of Social And Environmental Law, Kirsten Davies, Michelle Mei Ling Lim, Tianbao Qin, Philip Riordan

Research Collection Yong Pung How School Of Law

Zoonotic viruses have sacrificed hundreds of millions of people throughout human history. There are currently 1.7 million unidentified viruses estimated to be circulating in mammal and bird populations. It is foreseeable that in the near future, another of these will transmit to people, heralding the start of the next pandemic—one potentially more deadly than COVID-19. At the core of this article is a call for pre-emptive protection of the natural environment and its regenerative systems as the first fundamental step in the prevention of future epidemics and pandemics. While zoonoses originate in nature, the predominant legal discipline, managing these crises, …

Mapping Sustainable Development In Investment Treaties: An Analysis Of Asean States' Practice, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

The interaction between sustainable development and international investment treaties is of growing concern. Could investment protection stymie health regulation? Will States be sued for introducing measures to tackle climate change? A growing body of sustainability-related case law is evidence that arbitral tribunals balance investment obligations against States’ ability to regulate for national security, health, the environment, labour rights, transparency, and corporate social responsibility. Against this background, this paper maps sustainable development issues in 371 bilateral investment treaties (hereinafter “BITs”) concluded by the Association of Southeast Asian Nations (ASEAN) States. It finds that only 26% of these treaties make any reference …

Surviving The Field: Providing The Bare Minimum For Farmworkers In New Mexico, Annie Swift

New Mexico Law Review

People have cultivated the land now known as New Mexico for millennia. Throughout the last century, however, state law has denied important protections to agricultural workers and thereby contributed to the creation of an agrarian working class that is especially vulnerable to political majorities and powerful interests. For example, the New Mexico legislature explicitly exempted certain farm workers from the Workers’ Compensation Act in 1937, and from the Minimum Wage Act in 1966. Nationally, farm workers have faced exclusion from various labor, health, and safety laws. Consequently, farm workers have enjoyed few legal safeguards against the risk of injury and …

Sebastian Faulks’ Human Traces:A Journey Into The Depths Of The Human Psyche, Essam Fattouh

BAU Journal - Society, Culture and Human Behavior

Sebastian Faulk’s novel, Human Traces (2006), embarks on a new trend in contemporary English fiction. Through its representations of two main protagonists, pioneers in the field of psychology between the 1870s and 1918, Faulks traces the formative years of the development of the young discipline of psychiatry. Even though Faulks works in the realist traditions of Charles Dickens and George Eliot, yet he delves into such major questions as the role of unconscious motivations in human individual behaviour, the causes of mental illness, and the very attempt to understand the nature of the human being. The time frame of the …