Digital Commons Network^™

Reverberations Of Magna Carta: Work Injuries, Inkblots, And Restitution, Michael C. Duff

All Faculty Scholarship

This article argues that workers in the United States have been unconstitutionally undercompensated for their work injuries for at least a century. This provocative fact, coupled with statistics showing that over 120,000 people per year die from workplace injury and occupational disease, suggests a looming post-pandemic struggle for better injury remedies and safer workplaces. Workers’ compensation, the current state-based system by which American workers receive compensation for work-related injury and death, was obtained from legislatures as a “Grand Bargain,” the value of which has significantly deteriorated over time; and the constitutional coherence of which has been impacted by the obvious …

The Imposition Of Constitutional Rights, Alvin Padilla-Babilonia

Faculty Publications

One of the central principles of constitutionalism is that citizenship stands for equal rights under the law. According to this ideal, a U.S. citizen living in Puerto Rico or Guam should have the same constitutional rights as a citizen living on the mainland. However, throughout U.S. history, constitutional rights have been neither uniform nor centralized. While constitutional rights held im- portance, they coexisted with ideals of democratic self-governance and legal pluralism. Today, Supreme Court justices and legal scholars argue that all constitutional rights should apply in the territories. This view upholds citizenship, equal rights, and the rule of law. But …

The Illusion Of Stability In Family Law, Kaiponanea T. Matsumura

Vanderbilt Law Review

Stability is universally accepted as a central value in family law. Within the context of adult relationships, stability determines which relationships the law will recognize and support. Within the context of parent child relationships, stability determines who will be recognized as a parent, whose parental rights will be terminated by the state, and who, among fit parents, will receive custody. This Article challenges stability’s pride of place in family law, identifying three problems with the law’s use of stability.

First, stability is often used in a circular way. Lawmakers treat stability as a requirement—a trait to which the law responds—even …

Do Bans On Conversion Therapy Impose A Governmental "Orthodoxy" About Sex And Gender?, Linda C. Mcclain

Faculty Scholarship

In Part I, this Essay evaluates how orthodoxy arguments featured in Mr. Tingley’s challenge to Washington’s ban on conversion therapy. Part II offers a preliminary analysis of Chiles v. Salazar, ⁴² which the Court will hear during its 2025-2026 Term. I illustrate how the arguments made against Washington’s law by Chiles and her amici draw from the anti-orthodoxy and marketplace of ideas rhetoric found not only in Justice Thomas’s Tingley dissent and his NIFLA opinion but also in Justice Gorsuch’s majority opinion in the 303 Creative decision.⁴³ Woven together with these speech arguments are appeals to the Court’s …

Antiracist Expert Evidence, Jasmine Gonzales Rose, Asees Bhasin, Spencer Piston

Faculty Scholarship

Since 2020, when mass protests against racism swept across the United States, scholars, lawyers, and the general public have become increasingly aware that racism permeates society and the criminal legal system, from overt racial animus to the nuanced effects of structural racism. Demonstrating the influence of racism is therefore vital to the practice of criminal defense, yet many attorneys do not know how to prove racism in court. We surveyed over seven hundred criminal-defense attorneys across the United States, and nearly half had never heard of expert witnesses testifying or submitting written reports on racism—what we call “antiracist expert evidence.” …

The Fda’S Role In Regulating Access To Gender-Affirming Care Medications, Ryan P. Knox

UC Law Journal

Over the last decade, many states have passed laws seeking to restrict or ban certain medications approved by the United States Food and Drug Administration (FDA). One of the most recent examples: gender-affirming care medications for transgender youth and young adults. As of January 2025, twenty-six states have passed laws banning or restricting the provision of genderaffirming care to minors. Proponents of these laws challenge the procedures and prescription drugs as “experimental,” while critics of these laws characterize both as best-practice medical care. In either case, these laws demonstrate a second-guessing of the FDA’s long-established authority in determining the safety …

Trade Integration, Petros C. Mavroidis

Faculty Scholarship

Accounts concerning the world trading system usually start the debate from the negotiation of the GATT. Trade integration before the First World War, though, had been quite remarkable, and the study of this era enriches our understanding of modern institutions in at least two ways. First, a number of GATT provisions had already been shaped during discussions following the advent of the League of Nations. Second, trade integration before the First World War did not manage to put a brake on belligerent behaviour, putting to rest the old Montesquieuan idea of doux commerce. Recent developments (like the invasion of …

Administrative Law And The Pandemic, Gillian E. Metzger

Faculty Scholarship

American administrative law’s relationship to change is, as they say, compli­cated. On the one hand, continual evolution has been an endemic feature of American administrative law. Doctrines such as Chevron deference to agency statutory interpretations were born, grew, and declined in just the period from the 1980s to today. On the other, the United States (US) Supreme Court regularly rejects such common law development in administrative law as illegitimate and insists that federal judges must adhere to the original terms of the 1946 Administrative Procedure Act (APA) and other statutes, unless the Constitution requires otherwise. And to this day scholars …

Working To Death: Labor Law In The 100 Year Life, Kate Andrias

Faculty Scholarship

Without significant changes in labor law, the 100-year life will almost certainly be defined by deep inequities. Working-class people, and workers of color in particular, are least likely to enjoy extended life spans. And if they do live longer, they are unlikely to enjoy a leisurely retirement in which they decide how they spend their extra years. Instead, they will face more toil and precarity. This chapter imagines a different future. It asks: What would the 100-year life look like if working people had a greater hand in shaping it? What would a legal regime look like that gave working …

The Right To Grow Old, Jamal Greene

Faculty Scholarship

This chapter considers the status of a constitutional “right to grow old” under the US Constitution. Understood as a “positive” right – ensuring a certain minimum quality of life to people as they face the challenges of aging – such a right may seem unavailing given the austerity in respect to such rights that many lawyers associate with the US constitutional tradition. This chapter shows this view to be premature, at least. Unlike the kinds of positive rights overtly rejected in prior cases, such as rights to certain forms of social welfare or to racial equality, a right to grow …

The 100-Year Life And The New Family Law, Naomi Cahn, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

This chapter reflects on the future of family law in an era of longer lives. Our analysis leads us to conclude that the 100-year life is indeed likely to have an impact on the nature, scope, and definition of family law, but that families will continue to function as the primary setting for intimacy and for caregiving and caretaking, whatever form those families take. Further, the importance to both individual and social welfare of family support throughout life points to a need for reform of current family law doctrine. The impact of longer life on doctrines regulating the relationship of …

Trump Attacks On Climate Science May Violate Numerous Federal Laws, Michael B. Gerrard

Faculty Scholarship

Starting on its first day on January 20, 2025, the second Trump administration has launched an unprecedented rollback of efforts to fight climate change. The Sabin Center for Climate Change Law’s Climate Backtracker already has 117 items.

Much of this is aimed at scientific research on climate change, or has the effect of inhibiting the conduct and dissemination of this research. Many of these actions may also violate federal laws.

This article discusses these actions, some of their legal implications, and the litigation challenges that have already been brought. It begins with actions that are specifically aimed at climate research, …

Restating The Law Of Children And Youth: The Evolution Of Reform, Elizabeth S. Scott

Faculty Scholarship

A brief roadmap of this article may be helpful. Part I describes the emergence of the Child Wellbeing framework and its powerful role in shaping twenty-first-century youth justice reforms captured by the Restatement. Part II shows how this framework has begun to have a far broader influence on the law affecting children and how the framework and the developmental approach embodied in the Restatement can guide courts and shape the trajectory of the law in the future. Part III explores potential challenges to the Restatement’s effectiveness in attaining a fully integrated system based on the Child Wellbeing framework.

From Manuscripts To Monopsonies: Revisiting United States V. Bertelsmann Se & Co. Kgaa, Matthew Petrouskie

Cardozo Law Review

United States v. Bertelsmann SE & Co. KGaA is a unique antitrust case that has reframed decades of precedent. In November 2020, Bertelsmann SE & Co. KGaA ("Bertelsmann"), the parent company of PRH, announced its plan to acquire S&S from its parent company, Paramount Global ("Paramount'). This announcement positioned the merged entity ("S&S + PRH") to control a third of the book market, the largest market share held by a publishing house. The following year, the Department of Justice Antitrust Division ("DOJATR") sued to block the merger. In United States v. Bertelsmann SE & Co. KGaA, the DOJATR's case …

Evaluating Accuracy In Legal Research: A Comparative Analysis Of Traditional And Artificial Intelligence-Driven Methods, Lily Collins

Honors Theses

Legal professionals are challenged with performing accurate legal research to meet professional standards. The use of artificial intelligence (AI) presents a potential for enhanced efficiency. However, knowledge and process gaps exist, questioning the accuracy of results generated by AI. The uncertainty of accurate results poses a risk for poor outcomes for all stakeholders. This thesis aimed to quantitatively measure the accuracy of AI legal research in comparison to traditional legal research. Accuracy and relevance were measured by analyzing case precedent results using three legal research platforms, Westlaw, Nexis Uni, and Chat GPT. The three platforms represented traditional and AI-driven research, …

A Qualitative Study Exploring Senior Leaders’ Experiences And Perceptions In Addressing Workplace Sexual Harassment In The U.S. Federal Government: A Systems Perspective, Karen Jane Dean

Electronic Theses and Dissertations

Sexual harassment (SH) is a prevalent, costly, and often unreported problem in the U.S. Federal Government. Despite decades of research from multiple perspectives and recommendations to address SH, the problem persists and remains complex. While some researchers and U.S. Government agencies have called upon leaders to commit to eliminating workplace SH, others have suggested using an integrated conflict management system (ICMS) to manage the complexity, nuances, and conflicts. Even though there is a call for leadership to address SH, there is limited documentation in the literature about leaders’ experiences and perceptions in addressing the problem. Therefore, this qualitative study was …

A Holistic Case Study On Leaders In The Division Of Enrollment Services’ Experiences Implementing Interdepartmental Partnerships In Higher Education, Christopher A. Almond

Doctoral Dissertations and Projects

The purpose of this holistic case study was to understand the experiences of higher education leaders in the division of enrollment services at a public research university who experienced departmental realignments or mergers because of performance-based funding initiatives. The study addresses the gap in the literature on the effect of change on interpersonal relationships in higher education. The theory guiding the study is Tierney’s theory on organizational behavior among college employees. The research methodology consisted of three phases. I conducted focus groups, individual interviews, and document analyses. The setting was a large research university in an urban city. There were …

“The Gun’S Not Mine!”: The Admissibility Of Defendants’ Exculpatory Hearsay Statements Under Federal Rules Of Evidence 803(2) & (3), Faustino S. Galante

Fordham Law Review Online

Exculpatory hearsay statements made by criminal defendants often warrant admission under the Federal Rules of Evidence (FRE) as excited utterances, under Rule 803(2), or as statements reflecting a then-existing state of mind, under Rule 803(3). Nevertheless, defendants often struggle to have their exculpatory statements admitted pursuant to these rules—even when those statements fulfill their categorical requirements.

This Comment surveys the different approaches courts take to determine whether exculpatory hearsay statements made by criminal defendants are admissible under Rules 803(2) and (3). It argues that courts too often misapply these rules to exclude defendants’ exculpatory statements. In particular, courts counteract the …

The Gilded Approach: A Critique Of Constitutional Originalism, Banks T. Eidson

Honors College Theses

The method from which we approach Constitutional interpretation would obviously hold a great deal of significance in our government structure, yet the modern judiciary is plagued by a constant debate between Living Constitutionalism and Originalism. The latter of these ideas has become rather prominent amongst the justices, with six of the nine current Supreme Court justices being self-proclaimed practitioners of originalism. An idea which portrays itself as the only logical way to approach a Constitution, this thesis seeks to prove that despite its popularity, originalism is little more than a tool to expand conservative policies within the courts in precisely …

Exploring Education Policy And Resources In Virginia Secondary Education, Gabrielle Lyon

Departmental Honors & Graduate Capstone Projects

The study examines the intersection of federal special education policy within Virginia's secondary schools, specifically focusing on teachers’ compliance with the Individuals with Disabilities Education Act (IDEA). The study explores educators' awareness and usage of the Virginia Department of Education's hearing decisions index, which documents IDEA violations and due process decisions. Through analyzing federal education legislation, state implementation practices, and teacher perspectives, this study reveals critical gaps in educator preparation and resource awareness regarding special education policy compliance. The findings suggest that while the IDEA violations are being tracked and documented, there remains a significant disconnect between available resources and …

The Revolving Door Of Industry Standards, Zachary Kester, Spencer Rehn

St. Mary's Law Journal

No abstract provided.

Mitigating Discrimination By Businesses: Adopting A "Substantial Amount Of Expression" Test In The Wake Of The Court's 303 Creative Decision, Caleb Kunde

St. Mary's Law Journal

The Supreme Court’s recent decision in 303 Creative LLC v. Elenis[1] balanced Colorado’s anti-discrimination public accommodations law and its burden on a website designer’s right to be free from compelled speech.[2] Choosing to hold for the website designer, the Court decided that Ms. Smith was free to refuse her wedding website service to same-sex couples.[3] Put another way, the Court’s decision granted businesses that are open to the public a license to discriminate through the Free Speech Clause. Not only is this the first time that a business’s First Amendment rights overrode a public accommodations law’s compelling …

De-Weaponizing Snap Removal, Philip Weiss

St. Mary's Law Journal

No abstract provided.

Dynamics Of The Penitentiary System, Transparent And Accountable Handling Of Criminal Cases In Criminal Execution Law In Southeast Asia: Convergence And Divergence Of International Perspectives, Anis Widyawati, Ade Adhari, Ali Masyhar, Bearlly Deo Syahputra, Didik Purnomo

Indonesia Law Review

This research examines the dynamics of the penitentiary system transparent, and accountable criminal case handling in criminal execution law in Southeast Asia, focusing on the convergence and divergence of international perspectives. These countries have diverse approaches to the penitentiary system and criminal law enforcement, including in terms of the implementation of the death penalty and the treatment of prisoners. Some countries, such as Singapore and Malaysia, maintain strict death penalty practices, which often contradict international human rights standards, while others such as the Philippines show inconsistencies in implementing criminal execution laws. This research also examines the three main stages in …

The Role Of Race In Howard Law School's Rankings, Michael Conklin

St. Mary's Law Journal

No abstract provided.

Papering Justices, Michael L. Smith

BYU Law Review

Supreme Court reform is a lively topic of discussion and debate, with scholars, commentators, and politicians debating a variety of proposed Court reforms, such as term limits, additional Justices, and jurisdiction stripping. This Article adds a new idea to the mix: papering Justices. Several states permit each side to a dispute to file one motion to automatically disqualify the judge overseeing their case. These requests are to be granted automatically without any showing of facts, hearings, or further briefing. This is known as “papering” the judge. Drawing from these practices, I propose that each side to a dispute before the …

Artificial Intelligence, Autonomous Creation, And The Future Path Of Copyright Law, Peter K. Yu

BYU Law Review

Most literature at the intersection of copyright and artificial intelligence (AI) has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country’s economic and technological future. This Article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentivebased. The Article then discusses a third line of arguments— harmonization-based arguments—and …

Your Spotify Wrapped Year In Review – Data Privacy Edition, Saba Amid

Loyola of Los Angeles Entertainment Law Review

No abstract provided.

Thinly Veiled Greed: What Is Really Hindering Railroad Disaster Prevention In America, Arthur J. Meaney Iv

St. Mary's Law Journal

No abstract provided.

No Rights To A Healthful Environment: Children Warrant Class Standing To Inhibit Climate Change Related Harm, Keira Kramer

San Diego Journal of Climate & Energy Law

Current laws in the United States stand at odds with children’s interests in a clean and healthful environment. Children deserve a healthful environment because of their constitutional right to life. This Article will analyze why courts have denied children’s right to a healthful environment. State and federal Courts have found that the environmental rights of children are a political question and, therefore, that children do not have standing to sue under the theory that they have a right to a healthy climate. This Article suggests that the courts are the best area of law for redressability for children affected by …