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Remedies For Unreasonable Administrative Action After Vavilov, Kate Glover Berger

Articles & Book Chapters

This article comments on Pepa v. Canada (Citizenship and Immigration), arguing that it departs from the Supreme Court's previous guidance on remedies in an unprincipled manner. The article outlines the remedial framework established in Canada (Minister of Citizenship and Immigration) v. Vavilov, traces its development over the past five years, discusses key departures from the general rule of remittal, and highlights the principles these departures reflect. It then examines the approach to remedies adopted in Pepa. This assessment shows that the Pepa majority's invocation of the "single reasonable interpretation" exception to the general rule of remittal departs from the core …

Peculiarities Of Europeanisation Of State Aid Control In Ukraine During Martial Law, Bohdan Veselovskyi, Kseniia Smyrnova

Yearbook of Antitrust and Regulatory Studies

Ukraine's European integration necessitates the alignment of its state aid control framework with EU competition law. The full-scale invasion by Russia in 2022 significantly disrupted this alignment, prompting Ukraine to temporarily suspend standard state aid oversight procedures under martial law. In response, Ukraine has undertaken comprehensive legislative reforms, including the adoption of sector-specific state aid criteria, enhanced administrative accountability measures, and systematic inventorying of existing aid schemes. This article analyses these developments, demonstrating Ukraine's ongoing commitment to restore regulatory certainty, transparency, and competitive neutrality, despite wartime constraints. Judicial practices incorporating EU-derived standards, particularly the Altmark criteria, highlight Ukraine's substantial progress …

Replacement Reply Brief For Plaintiff-Appellant Mona Salcida Murillo, Madeline H. Meth

Faculty Scholarship

Defendants’ response brief contains a laundry list of all the ways they think Mona Murillo fell short in trying to vindicate her rights to be free from sex discrimination and retaliation while incarcerated at Salinas Valley State Prison. They devote page after page to cataloging the regulations that govern her claims, describing the intricacies of the three-tiered grievance system, and recounting her repeated efforts to navigate that morass. And from all of that, they draw the conclusion that Murillo’s lawsuit should be thrown out of court.

In the process, Defendants take the exhaustion requirement to an extreme that even the …

Rule Or Reason? The Role Of Balancing In Antitrust Law, Michael A. Carrier, Mark A. Lemley

Notre Dame Law Review Reflection

In this Essay, we argue that the proper test for antitrust’s rule of reason is a four-step, burden-shifting framework that ends with a balancing of the likely harms and benefits of particular conduct. One reason balancing has become rare even in circuits that permit it is that it seems hard. Antitrust is shot through with economic theory and evidence, and courts aren’t experts in economics. So they tend to look for shortcuts that allow them to resolve the case without having to apply that economic evidence to assess the likely net effect of a defendant’s conduct. But those shortcuts themselves …

Structurally Harmless: Why Brecht Should Apply On Collateral Review Of Structural Errors, Jaden M. Lessnick

Notre Dame Law Review Reflection

Even when a prisoner has overcome all of AEDPA’s requirements and the Supreme Court’s equitable bars to relief, the writ of habeas corpus may issue only as “law and justice” require. The Court has recognized in recent Terms that the habeas statute thus confers on courts discretion to deny relief notwithstanding the satisfactions of the statutory and equitable preconditions. This discretion, the Court has said, is not boundless. A judge may grant the writ only after considering the principles of finality and federalism. Whatever else that includes, the Supreme Court has made clear that a judge must apply Brecht’s …

Uniformity, Loper Bright, And The National Labor Relations Board: Can The Board’S Nonacquiescence Policy Survive In A Post-Chevron World?, Alexander Macdonald

Notre Dame Law Review Reflection

As chairman of the National Labor Relations Board, Donald Dotson was nothing if not controversial. Though he headed the Board for five years, he was never shy about criticizing the Board’s practices. He often argued that the Board had skewed its policies toward organized labor and inserted itself in disputes best left to private negotiation. That criticism put him at odds with his fellow Board members and frequently landed him on the wrong side of divided opinions. Even members who shared his core philosophy sometimes shied away from joining his assaults on the Board itself.

So it was on September …

What Is Trump Immunity?, Carlos M. Vázquez

Notre Dame Law Review Reflection

By definition, the immunity of a former President is not an immunity ratione personae, as this sort of immunity applies only to current officeholders. It is an immunity ratione materiae extending only to certain types of acts. The Court in Trump made clear that the immunity a former President enjoys is at least an immunity from judicial proceedings. It is for this reason that she is entitled to an immediate appeal from the denial of a motion to dismiss the claim against her. The Court left unclear whether the President’s immunity is also an immunity from primary obligations or an …

The Best We Can Hope For: The Irony Of The Best Interest Standard, Alesondra Cruz

Notre Dame Law Review Reflection

Laws are often designed with an eye toward precision. Specific words are chosen, others deliberately removed, with each revision seeking to bring a rule closer to its intended purpose. Despite this deliberate process, even the most curated laws at times fail to serve their intended ends, and instead become sources of harm. This reality, unfortunate and unavoidable, is the irony of law.

This tension is particularly evident in the context of family law, where negative ramifications are felt personally and intimately, and in child custody cases, where the stakes are incredibly high. The best interest of the child standard was …

Gold & Blue Law Edition, Fall 2025, St. Mary's University - San Antonio, Texas

Gold & Blue Law Edition

This is the Fall 2025 edition of Gold & Blue Law Edition which is St. Mary's University's official School of Law publication.

Original Public Meaning And The Rule Of Recognition, Andrew Jensen Kerr

William & Mary Bill of Rights Journal

Framer intent no longer possesses the same cachet it once held. But Framer influence still matters for public meaning originalism, particularly for communications like The Federalist Papers, in which Alexander Hamilton, John Jay, and James Madison marketed the work of the Philadelphia Constitutional Convention to state ratifying conventions and the constituencies they represented. Contemporary originalists posit that what the Constitution meant to this public audience at the time of ratification is cemented in time forever (the fixation thesis). The starting point for my analysis is the prosaic observation that our Framers occasionally changed their minds about the meaning of …

The Right To Rest: An Examination Of Maryland’S Patchwork Laws On Sepulcher, Burial Grounds, Human Remains, Derek Van De Walle

University of Baltimore Law Forum

No abstract provided.

Reforming Maryland’S Loss Of Chance Doctrine: Expanding Recovery For Cancer Patients With Survival Chances Below Fifty Percent, Iman Aziz

University of Baltimore Law Forum

No abstract provided.

Recent Developments: Walton V. Premier Soccer Club, Inc., Katelin Carter

University of Baltimore Law Forum

No abstract provided.

Annotated Legal Bibliography

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Much Ado About Critical Race Theory, Matthew Patrick Shaw

Washington and Lee Law Review

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 …

The Roberts Court Paradox, John C. P. Goldberg, Benjamin C. Zipursky

Fordham Law Review

As perhaps the most conservative Supreme Court of the past century, the Roberts Court regularly touts its commitment to traditional ideals, including the rule of law. Yet Trump v. United States seems ready to place presidents entirely or largely above the law by granting them absolute or near absolute immunity from criminal prosecutions for official conduct. And Trump is not a one-off: from judicial recusal to qualified immunity to due process decisions, the Court frequently seems to display indifference to values of accountability and impartiality that have long been thought integral to the rule of law. What is going on? …

Fixing The Fix: The Case For Unifying The Remedial Framework Of Apa Rulemaking Challenges, Dea Devlin

Fordham Law Review

Vacatur is the default remedy for successful administrative rulemaking challenges brought under the Administrative Procedure Act (APA). Yet its broad and sweeping effects raise critical questions regarding its appropriateness as a one-size-fits-all remedy. Unlike injunctive relief, which is subject to a rigorous heightened standard, and remand without vacatur, which has a comparable standard of its own, vacatur is routinely awarded without similar scrutiny, leading to inconsistencies in the judicial application of remedies in APA challenges.

Although vacatur can provide a plaintiff with relief, its award conflicts with underlying principles of equity and proportionality. In rulemaking challenges, vacatur can create regulatory …

Reclaiming Sound: Copyright Restoration As Cultural And Economic Justice For Black Musicians, James Roberts Jr.

Senior Theses

This paper examines copyright restoration as both a legal mechanism and a form of cultural reparations for Black musicians historically excluded from ownership and profit in the American music industry. It traces the evolution of U.S. copyright law from its earliest forms to the Music Modernization Act of 2018, highlighting how shifting statutory frameworks have gradually extended protection and restoration rights to artists who were once denied them. The analysis situates this legal trajectory within a broader history of racialized exploitation in the recording industry, where inequitable contracts and systemic power imbalances functioned as modern forms of artistic sharecropping. Through …

Texas S.B. 8 V. Rights: Restoring Judicial Power With The State Action Remedy, Kobi J. Grossman

Undergraduate Honors Theses

While the constitutional right to an abortion was the law of the land in the U.S., Texas sought to restrict that right in line with their political agenda by passing S.B. 8 (2021), referred to as the “Texas Heartbeat Act”. This statute made access to abortions illegal past six weeks, or once a heartbeat is detected. The enforcement structure created in the law did not look to the state to exercise its role as the executor of the public good, but rather, to private citizens in creating a right of action for individuals to sue anyone who “aids or abets” …

The Jurisprudence Of Constitutional Entitlement, David Schraub

William & Mary Bill of Rights Journal

Lawyers are accustomed to thinking of constitutional law as a familiar binary: Either a given governmental policy or practice is constitutional and therefore permitted, or unconstitutional and forbidden. But not all constitutional laws are created equal. A state practice which may be constitutional in concept (such as the death penalty) may, in some or many applications, violate specific constitutional rules and become impermissible. When a policy which has been affirmed to be constitutional in general repeatedly runs up against problems as-applied, a legal tension emerges: can the state implement the policy or not? This dilemma illuminates a third constitutional category: …

Ten Commandments In The Public Square And Public Schools, Mark David Hall, Andrea Picciotti-Bayer

William & Mary Bill of Rights Journal

The Ten Commandments are of paramount importance to the Jewish and Christian faiths, and they are viewed by many as a source of Western law. In America, they have been (and are) taught in churches and synagogues, and throughout much of this nation’s history they have been taught by parents, tutors, and teachers in private and public schools. They are regularly displayed in courthouses and statehouse grounds, and some states have desired to display them in public schools. Predictably, those who would scrub religion from the public square have argued that Ten Commandment displays on public property violate the First …

Regulating Deception To Protect Democracy: Global Election Misinformation Regulations Analyzed Under U.S. First Amendment Doctrine, Stephanie Hoke

William & Mary Bill of Rights Journal

This Note argues that the marketplace of ideas may not always be a workable theory for the election misinformation that pervades social media platforms. Social media is a unique medium because it does not have the same safeguards as television, radio, and newspapers that are used to filter out false claims and information. Due to the lack of safeguards and the algorithms that promote misinformed posts, social media platforms provide a thriving environment for election misinformation. In addition, the presence of online “echo chambers” and the speed at which misinformation can spread calls for some form of government regulation. In …

Unveiling Injustice: An Analysis Of Four Prosecutor-Led Conviction Integrity Units, Erin M. Daneker

University of Baltimore Law Review

No abstract provided.

Changing The Game Plan: Using Section 504 To Protect Transgender Athletes From Title Ix’S Shortcomings, Christina Charikofsky

University of Baltimore Law Review

No abstract provided.

Compassionate Causation In The Domestic Violence Survivors Justice Act, Zoë Lewis Ewing

University of Chicago Law Review

This Comment evaluates the implementation of the Domestic Violence Survivors Justice Act (DVSJA), a New York law passed in 2019 to provide shortened sentencing ranges for domestic violence survivors convicted of crimes. It identifies an inconsistency in sentencing courts’ application of the law’s causation standard, which requires that a petitioner’s experience of domestic violence be a “significant contributing factor” to their criminal conduct. Some courts interpret the prong narrowly, while others apply a broad causation standard. This Comment argues that courts should opt for the latter approach and consider causation in the DVSJA satisfied if domestic violence was “sufficiently significant …

Disclosure Puzzles In Patent Law, Jonathan S. Masur, Lisa Larrimore Ouellette

University of Chicago Law Review

Since its inception, patent law has required that inventors publicly disclose information about their inventions in exchange for receiving patent rights. This foundational requirement is policed through multiple doctrines: patents fail “enablement” if “undue experimentation” is needed to practice the invention, and they lack adequate “written description” when they fail to establish the inventor’s “possession” of the invention.

Despite disclosure doctrines’ centrality, fundamental puzzles about their application remain unresolved. What are the boundaries between enablement and written description? Do equivalents claimed via the doctrine of equivalents have to be enabled or described? Are the rules different for after-arising technologies? Federal …

Last Chance Lawyers: Mercer's Habeas Project And Lessons Learned From A New Generation Of Service Learners, Meagan R. Hurley

Articles

Late on a Sunday night, the conference table in Mercer Law’s Habeas Project classroom was buried under transcripts, cases and drafts of a soon-to-be finished appellate brief. Third-year law students Chyna Carter and Valerie Pallos sat shoulder-to-shoulder, tightening arguments, double-checking citations and calculating word counts yet again. They’d spent weeks working with classmates, meticulously researching their client’s case and poring over a voluminous record, in preparation of filing a habeas appeal with the Supreme Court of Georgia.

“We thought we had a convincing argument and just needed to get it reflected on paper,” Carter, now an associate at McLain & …

Innovation Interrupted: Legal And Institutional Risks Of Undermining Public-Private Partnerships, Jennifer S. Fan, Xuan-Thao Nguyen

Articles

Part I traces the development of the Bayh–Dole Act and discusses public–private partnership collaboration. Part II focuses on intellectual property generation by universities, illustrating the benefits of public– private partnership. Then Part III highlights the Trump administration’s federal funding cuts to universities that jeopardize the established public–private partnerships. Finally, Part IV details the consequences of how federal funding cuts impact the venture capital sector and the legal architecture of innovation, eroding the United States’ standing in the innovation race.

A State Constitutional Challenge To Washington’S Denial Of Minimum Wage To Incarcerated Workers, Cailin Dahlin

Washington Law Review

This Comment challenges as unconstitutional Washington’s exemption of incarcerated individuals from the state Minimum Wage Act. Incarcerated people in Washington, unprotected by minimum wage guarantees, earn low wages in state-run inmate work programs. This statutory carveout is contrary to the rehabilitative purpose of Washington’s prisons because it impedes incarcerated people’s ability to afford necessities, participate in rehabilitative programs, and reintegrate into society. This exemption is unconstitutional under the state’s cruel punishment clause, because it is disproportionately cruel punishment and an excessive fine that incarcerated workers cannot afford. The exemption is also unconstitutional under the state’s privileges and immunities clause, because …

Religious Conflicts In Disguise: The Limits Of The Law In Tackling Conflicts With Religious Dimensions, Yael Efron

Cardozo Journal of Conflict Resolution

In previous publications, we have established the crucial differences between conflicts with religious dimensions (CRDs) and other types of conflicts. We claim that a legal solution to CRDs is rarely sufficient to terminate the conflict and often might lead to further damage to communities and persons, sometimes even harsher than the original dispute. Since not all CRDs are similar, a theorized model of their distinguishing elements—time, intensity, and proximity to core values—assists us in differentiating them. By analyzing the elements of CRDs in accordance with the TIV model, we can more easily determine which conflicts are suitable for legal process …