Digital Commons Network^™

Kid Clickbait: Online Privacy Concerns For The Children Of Today's Social Media Movement, Kiara Green

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Guilty Until Proven Innocent: An Analysis Of Racial Disparities In Civil Asset Forfeiture Seizures, Kelsey O'Callaghan

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Front Matter

Canadian Journal of Family Law

No abstract provided.

Intersecting Abuse Of People And Animals In Practice: Implications Of The Connection Between Intimate Partner Violence And Animal Abuse For Family Justice Professionals, Amy Fitzgerald, Valerie Monckton, Kerri Thomson, Kendra Coulter

Canadian Journal of Family Law

According to recent estimates, 60% of Canadian homes have at least one cat or dog, and the number continues to climb. Often considered family members, these animals are vulnerable to family violence. Their presence can also render human victims of violence more vulnerable: research indicates many victims delay leaving their abuser out of concern for their animals or consider returning to the abusive relationship because their abuser has the animal companions. Despite a substantial body of literature documenting the link between intimate partner violence (IPV) and animal abuse, research has not examined how family law professionals encounter and deal with …

Surrogacy Agencies In Canada: Intended Parents' Experiences, Stefanie Carsley

Canadian Journal of Family Law

This article sheds new light on intended parents’ experiences working with surrogacy agencies—businesses that match surrogates with prospective parents. These agencies contravene the Assisted Human Reproduction Act, a federal law that prohibits commercial surrogacy. Interviews with intended parents suggest that some agencies are taking advantage of surrogates and intended parents and lend support to calls to regulate agencies’ practices. This piece will interest scholars and lawmakers advocating for evidence-based law and policy responses to surrogacy in Canada. It broadens the frame relevant to addressing surrogacy beyond relations between surrogates, intended parents, and children to include a commercial sector.

Sorting Out Surrogacy: Three Considerations For Evidence-Informed Law Reform, Vanessa Gruben, Alana Cattapan

Canadian Journal of Family Law

This article draws on novel survey research with surrogates in Canada—the Exploring Surrogates Experiences and Insights Survey—to examine three critical issues for potential law reform: (1) reimbursement and compensation (i.e., payment); (2) the work of surrogacy agencies; and (3) surrogacy arrangements involving foreign intended parents. Following a brief history of the regulation of surrogacy in Canada and a description of the survey’s methods, it explores each of these areas in turn, using the survey results to identify considerations for law reform. It argues that while the current legislative and regulatory framework largely addresses key issues related to commercialization and commodification, …

§1983 And The Federal Nursing Home Reform Act: A Perfect Fit, Sandra H. Johnson

Saint Louis University Journal of Health Law & Policy

The Supreme Court rarely takes a case involving federal quality standards for nursing home care, and that alone would make Health and Hospital Corporation of Marion County v. Talevski (Talevski) a significant case for those interested in long-term care. The Court’s decision in Talevski, however, reaches far beyond long-term care with implications for every federally funded program that relies on the states for administration, delivery of benefits, or enforcement of standards.

Much about the Talevski case signaled that a significant change in law may be coming. The plaintiff’s cause of action relied on a statutory instrument (§1983) frequently used by …

Whose “Best Interests”? Concerns About The Use Of Fiduciary Framing In Long-Term Care Decisions, Jennifer L. Herbst

Saint Louis University Journal of Health Law & Policy

As part of reimagining America’s long-term care system, this article will explain how today’s system is, in many ways, the logical extension of historical presumptions that are foundational to our understanding of family, medical, and organizational governance as “fiduciary” in nature. More specifically, much of our current language (operating in someone’s “best interests,” acting consistent with their “substituted judgment” if now incapacitated) and jurisprudence (parens patriae, trusts, guardianships, conservatorships, and corporate governance) descends from centuries of equity and law centered on the management of property, not people or health.

This legal framework is firmly rooted in English statutes, court opinions, …

Keynote: Promoting Disability Equality Behind Bars, Margo Schlanger

Articles

A few years back, I finished a five-year appointment as a “settlement monitor” in a state prison system for a civil rights case about deaf and hard-of hearing people incarcerated there. With the consent of the parties, I had been appointed by a federal court to spend time in the state’s prisons, talking to prisoners and staff, and reviewing records and facilities. I saw some obvious problems. I recall one deaf prisoner; he used American Sign Language to communicate and could not speak at all. He was found to have committed a disciplinary infraction at a proceeding where he could …

Social Media, Populism, And Militant Democracy: An Argument For A Change In First Amendment Doctrine, Arvid Kerschnitzki

Chapman Law Review

The First Amendment is often hailed as the cornerstone of American self-government, but the digital age has transformed the public discourse it was meant to protect. Social media platforms, once envisioned as a modern marketplace of ideas, now amplify misinformation, entrench echo chambers, and enable mass manipulation, threatening the democratic ideal of an informed citizenry.

While the current First Amendment doctrine rightly emphasizes the importance of public discourse, that discourse must be inclusive, rational, and reliable to serve its democratic function. Drawing on the concept of militant democracy, this Article argues that contemporary doctrine has lost sight of free speech’s …

In Search Of A State, Maeve Glass

Faculty Scholarship

This article offers a legal history of one of America’s earliest campaigns of state legislative resistance: the effort in Massachusetts to protest the national government’s perceived dismantling of an old Atlantic commercial order from 1803 to 1815. To date, scholars have either condemned this protest as a dangerous harbinger of the Civil War or vindicated it as an inevitable and salutary extension of the Founding. This article steers a different course. By focusing on the evolving language of protest and the complex hybrid of ideas and material realities from which this language emerged, this article illuminates how Federalist leaders who …

Loper Bright And The Great Writ, Anthony G. Amsterdam, James S. Liebman

Faculty Scholarship

Chevron deference is dead. The Court’s forty-year, seventy-decision experiment with Article-III-court deference to “reasonable” agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed the “judicial Power” to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decision-making.

“AEDPA deference” lives. The Court’s twenty-five-year, seventy-two decision experiment with Article-III-court deference to “reasonable” state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges’ independent judgment that the state courts have misread or misapplied …

The Resurgence Of Massive Resistance, Danielle Wingfield

Law Faculty Publications

“Massive Resistance” to equal access to good quality public education is resurging across the nation. First employed by segregationists in Virginia, Massive Resistance spread across the South to oppose school desegregation. This extreme push to suppress equitable education occurred most notably post-Brown. Although 2024 marked Brown’s seventieth anniversary, Massive Resistance is again surging. In fact, the last few years have witnessed increasing resistance to publicly funded education. Some areas where anti-public education resistance strategies have manifested include political rhetoric around Critical Race Theory, library censorship, and renewed parental rights debates.

To devise the most effective response to …

History's Identity Crisis, Allison Orr Larsen

Faculty Publications

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning— weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of …

Preserving The Future Of Juries And Jury Trials, Paula Hannaford-Agor

Faculty Publications

Amid rapid technological and social change, a new initiative explores how judges, court staff, trial lawyers, and other justice system stakeholders can preserve juries and jury trials, strengthen public trust, and remain a pillar of democracy.

In 2024, the National Center for State Courts (NCSC) launched Preserving the Future of Juries and Jury Trials, a project that built on Just Horizons’ methodological foundation of strategic foresight and its premise that data-driven public services and sociopolitical discord have the greatest potential impact on court operations. For this project, NCSC imagined how these trends would affect juries and jury trials in each …

In Through The Side Door: Anti-Asian Nativism, U.S. Immigration, And Foreign Policy—A Legal History And Case Study, Deenesh Sohoni, Vivian E. Hamilton, Chinua Thelwell

Faculty Publications

The 19th- and early 20th-centuries were marked by pervasive anti-Asian sentiment, and antipathy towards people of color more generally. Giving legal effect to the anti-Asian nativism prevalent at the time, U.S. policies prohibited most Asian immigration and naturalization. In particular, immigration laws sought to exclude Asian laborers and working-class immigrants from entry. During the same period, however, the federal government determined that other Asian visitors—especially Chinese government officials, merchants, religious leaders, and students—could be useful in advancing U.S. political and economic interests abroad. Thus, in marked contrast to its inhospitable treatment of their working-class counterparts, U.S. policy facilitated the entry …

Reproductive Innovation And Reproductive Exceptionalism: How Private Health Insurance Coverage Of Fertility Treatment Complements Hostile Governmental Action And Expands Access To Assisted Reproduction In The United States, Myrisha S. Lewis

Faculty Publications

The use of fertility treatment and assisted reproductive technology (ART) in the United States and globally is increasing over time. As of April 2023, the World Health Organization estimates that approximately one in six individuals have faced infertility globally. Fertility treatment includes the use of drugs to stimulate egg production, in vitro fertilization (IVF), and, for some, the use of gestational surrogacy to aid in childbirth. Debates have abounded and continue to abound in federal legislatures, state legislatures, and society more broadly about the morality of abortion, contraception, and assisted reproduction, as well as whether governments, public insurers, and private …

Restructuring Ruritania: Bankruptcy, Sovereign Debt, And The Equity Receivership, Nathan B. Oman

Faculty Publications

The traditional legal story of sovereign restructuring goes something like this: foreign governments cannot file for bankruptcy under domestic law. When faced with the need to restructure unsustainable debts, they must negotiate with each of their creditors. Since the late 1980s, private debt has been held by increasingly diverse and dispersed bondholders, making renegotiation more difficult. Defaulting debtors face two basic problems: first, they have no process analogous to the automatic stay in bankruptcy, which can pause litigation by creditors and buy time for an orderly reorganization; second, and more importantly, they have no process analogous to the cramdown provisions …

Understanding The Mechanisms Of Interpretative Change, Aaron-Andrew P. Bruhl

Faculty Publications

Interpretive methodology changes over time, and we appear to be in a period of particular ferment. In federal statutory interpretation, which is the focus of this Article, several important changes in interpretive methods have occurred in recent decades or are underway. There has been a gradual, decades-long shift away from intentionalist tools like legislative history. In addition, as the culmination of a series of smaller steps, the Supreme Court has just reshaped the doctrine governing deference to agency interpretations, a move that will require years of further clarification. And, although this shift is still taking shape, it appears that some …

The State Of The Russian Media Through The Lens Of Democratization: 1991 As The Peak Of Openness In Russia’S Media Laws, Antonina Semivolos

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Justice Requires The Freedom To Play, Heavenly Possum

Seattle Journal for Social Justice

No abstract provided.

Common Law Executive Privilege(S), Jonathan Shaub

Law Faculty Scholarly Articles

There are few Supreme Court cases that enjoy as much widespread support as the unanimous decision in United States v. Nixon. The recent pitched battles between Congress and the executive branch have made apparent the vast disagreement between the two branches over access to information. But that disagreement does not extend to Nixon, the unquestioned jurisprudential foundation for the doctrine of executive privilege. Closer inspection shows, however, that this foundation is not a stable one, but one constructed from unnecessary, ill-considered dicta.

As this Article demonstrates, Nixon conflated the constitutional question about one branch’s power vis-à-vis another branch with an …

Visual Legal Rhetoric In The Age Of Generative Ai And Deepfakes: Renaissance Or Dark Ages?, Michael D. Murray

Law Faculty Scholarly Articles

The paradoxical development of visual generative AI tools, such as OpenAI’s DALL-E 3, Midjourney, and Stable Diffusion, simultaneously signals a renaissance and a potential dark age in visual rhetoric and communication. On the one hand, these tools democratize the creation of visual content, empowering attorneys and others to become artists and illustrators of their legal communications without needing to learn how to draw. These AI systems can simplify complex legal concepts, bridge language barriers, and enhance advocacy. But on the other hand, the proliferation of deepfakes presents significant challenges for visual rhetoric. Deepfakes can quickly and easily create realistic but …

Bail-Ing Out Of Cash Bail: Navigating The Pretrial Fairness Act And Illinois’ Cashless Frontier, Sara Worrell

Saint Louis University Law Journal

Cash bail, once a tool intended to ensure appearances in court, has evolved into a system that disproportionately incarcerates marginalized and economically disadvantaged communities. This national reckoning with the failures of the cash bail system necessiates a critical reevaluation of pretrial justice in the United States. Calls for bail reform have been ringing across the nation and Illinois has answered.

This note critically examines the Pretrial Fairness Act (PFA), a landmark reform in the Illinois SAFE-T Act which abolishes cash bail and restores the presumption of innocence to pretrial detention decisions in Illinois. In response to the systemic inequities of …

Originalism And The Chronological Separation Of Powers, Daniel Kiel

Saint Louis University Law Journal

Inspired by the 2024 Childress Lecture, this essay considers originalism in two distinct guises: first, as a method of constitutional interpretation and then, as a politically-coded signal used to ensure predictability of judicial behavior. Regarding interpretation, the essay critiques originalism and its claim as a determinative source of constitutional understanding as a violation of the oft-overlooked chronological separation of powers embedded in the Constitution. Though originalism is often styled as a way of checking the power of judges, it threatens to impose a tyranny of the past that runs counter to a constitutional structure built upon the diffusion of power. …

Prosecuting Transnational Disinformation, Abdul Mahir Hazim

Saint Louis University Law Journal

Disinformation, along with related terms such as fake news and misinformation, has dominated U.S. media and public discourse over the past decade. It has emerged as a persistent and growing global threat to democratic societies, particularly the United States. Since the 2016 elections, authoritarian regimes and U.S. adversaries, including China, Russia, and Iran, have increasingly leveraged disinformation as a strategic tool to damage public trust in institutions, undermine political processes such as elections, and weaken public confidence in the healthcare system. These efforts are also designed to sow division and erode democratic governance. The breakthroughs in generative artificial intelligence further …

Profess, Apply, Pickle, And Trash: Four Legal Educators' Approaches To The Law, David Ray Papke

Saint Louis University Law Journal

Outsiders might assume that law professors at a given school teach their students all of the laws. But alas, an undertaking of that sort would be impossible. The laws are simply too numerous and variable to be presented in full. What law professors can and do convey, meanwhile, are approaches to the selected laws they might be teaching. After graduation from law school, many lawyers will hold onto and use their professors’ approaches for the rest of their professional lives.

A Comparative Analysis Of Third-Party Litigation Funding In The United States And The United Kingdom, Gary Myers

Saint Louis University Law Journal

Third-Party Litigation Funding (“TPLF”), which is also known as litigation finance, involves a financial arrangement in which a third party provides funding to support the plaintiff’s pursuit of a civil lawsuit. The third party, in return, receives a portion of the proceeds if the litigation is successful. Like a contingent-fee agreement, this type of funding model enables a party to bring a lawsuit even if that party does not have the resources to pay the up-front costs of the litigation. The important difference is that the litigation funder is not counsel to a party in the case, and that TPLF …

Bitcoin As Federal Tax Payment: Historical Comparison And Modern Challenges, Haozheng Jiang

Saint Louis University Law Journal

On June 25, 2024, H.R. 8822 was introduced in the House, directing the Department of the Treasury to develop and implement a method for allowing the payment of certain federal taxes using bitcoin. Bitcoin, launched in 2009, is a cryptocurrency widely regarded as the first digital asset. It serves both as an investment vehicle and a medium of exchange for transactions. As cryptocurrencies have evolved from niche digital assets to globally traded commodities, their potential to integrate into formal financial systems, including for tax payments, has grown.

How Theories Of Art Can Inform Debates About Ai, Jessica Silbey

Emory Law Journal

Debates about artificial intelligence (AI) tend to swing between the optimistic and the apocalyptic. I propose a less binary approach that frames conversations about AI from the perspectives of theories of art and creativity. Whether we agree that AI is artificial or intelligent, whether it should be constrained or liberated, we cannot deny its influence on literary, artistic, and innovative production. AI may be described as simply a new tool to produce art and science, like the camera or the microscope, or it may transform and reshape art and science, the way the internet transformed global communication. Either way, these …