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Models Of Judicial Interpretation: From Marshall To Kavanaugh And How The Umpire Model Changed The Game, Beau Sullivan

Ohio Northern University Law Review

The three predominant modes of judicial interpretation are living constitutionalism, originalism, and the umpire model. The living constitutionalist believes the Constitution is a living document that must change and adapt over time. The living constitutionalist considers the history, text, precedent, and policy when deciding a case. This is in contrast to the originalist, who considers the history and text of the document when deciding a case. The originalist favors judicial restraint and seeks to limit the role of the judge. The devotee of the umpire model champions the independent judge whose function is to the law and does not consider …

Shadows Of Prejudice: The History Of The Right To Counsel And The Strickland's Pursuit Of Justice3 Amidst Forgotten Witnesses And Disregarded Evidence, Reem Haikal J.D., Ll.M

Ohio Northern University Law Review

In the United States’ criminal justice system, persistent problems with ineffective legal representation reveal significant systemic issues and injustices, underscoring the urgent need for meaningful reform. This paper argues that the United States’ criminal justice system faces deep-rooted problems due to ineffective legal representation, as evidenced by the evolution of the right to counsel, the challenges posed by the Strickland standard, and contemporary criticisms of legal defense practices. Through an analysis of historical developments, landmark legal decisions, and case studies, it becomes evident that meaningful reform is essential to address systemic injustices and ensure the constitutional guarantee of effective assistance …

Post West Virginia V. Epa The Administrative State’S Door Is Still Ajar, Jaclyn Lopez

St. John's Law Review

(Excerpt)

The Supreme Court’s decision in West Virginia v. EPA, which carves out a new rulemaking standard for Congress and federal agencies, may be as significant for its articulation of the Major Questions Doctrine (“MQD”) as it is for its treatment of Article III standing and jurisprudential mootness. This Essay examines lower courts’ subsequent treatment of West Virginia v. EPA to add dimension to the inquiry of whether the new MQD has upended the administrative state or if it is merely another arrow in the quiver for judges that prefer a weaker federal government or nondelegation altogether. It also …

“Major Questions” Malarkey: An Arbitrary And Capricious New Doctrine For Vetoing Controversial Agency Rules, Lars Noah

St. John's Law Review

(Excerpt)

In 2022, after years of hinting at the idea, the United States Supreme Court officially adopted the “major questions” doctrine in West Virginia v. EPA. Commentators have already spilled plenty of ink trying to make sense of what this might portend, but so far seemingly everyone has accepted at face value the Court’s framing of the issue that it confronted in that case. This essay offers a slightly different perspective on the decision and suggests that closer attention to the precise nature of the question posed therein might reveal a distinctive flaw at the heart of the majority’s newfangled …

Climate Change, Democracy, And The Major Questions Doctrine, Joshua Ulan Galperin

St. John's Law Review

(Excerpt)

This brief Essay progresses in four parts. I will first argue that climate change is impacting the Court’s decisionmaking. Next, I will show that the significance of climate change as a modern political issue has caused the Court to downplay the statutory arrangement Congress created in the Clean Air Act. Third, I will suggest that the Court is not genuinely failing to appreciate the design of the Clean Air Act. Instead, the Court is aware of that design and feels the design goes beyond a constitutionally acceptable delegation of legislative power. Confronting the Nondelegation Doctrine head-on, however, would force …

Town Hall On The Sustainable Development Goals And Racial Justice In Miami–Dade County, Tamar Ezer, Denisse Córdova Montes, Abigail L. Fleming, Lily Arslanian, Kristina Bergman, Jordan Brooks, Alexis Burns, Cassandra Hacker, Zoe Henderson, Estefania Hernandez, Alyssa Huffman, Photini Kamvisseli Suarez, Brianna Sanchez, Lakshmi Sanmuganathan, Gabrielle Thomas, Abigail Wettstein

University of Miami Race & Social Justice Law Review

No abstract provided.

Restoring The Soul To Birthing In Miami: A Call For Justice For Obstetric Racism In Miami–Dade County, Jordan Brooks, Jamarah Amani, Sannisha Dale, Dr. Karen A. Scott

University of Miami Race & Social Justice Law Review

For far too many Black mothers and birthing people, U.S. hospitals are dangerous and fail to keep our Black mothers and birthing people and their babies safe, alive, and thriving during and after childbirth. The confluence of medical racism and obstetric violence—obstetric racism—leads to a disproportionate rate of predictable, preventable, and unfair death, sickness, and trauma for Black birthing people and babies in the afterlife of slavery. Obstetric racism, as defined by Davis, is both an analytic and phenomenon that describes mechanisms of subordination, control, and dominance to which Black mothers and birthing people are subjected by health systems and …

An Examination Of The Standard Of Judgment For Court–Ordered Electroshock Therapy, Anna Irving

University of Miami Race & Social Justice Law Review

No abstract provided.

Brief For Religious Liberty Scholars In Support Of Petitioners, Mark S. Storslee, Kevin T. Baine, Richard S. Cleary Jr., Ian M. Swenson, Joshua A. Hanley, Richard W. Garnett

Court Briefs

No. 24-154
Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission

On Petition for a Writ of Certiorari to the Supreme Court of the State of Wisconsin

From the Summary of Argument

The First Amendment’s Religion Clauses prohibit the government from answering religious questions or discriminating among religions. At a minimum, that means courts may not dole out protection to some religious groups but not others based on favored or supposedly ‘typical’ religious activities. When administering statutory exemptions whose beneficiaries are religious organizations, courts may not gainsay organizations’ sincere religious beliefs to impose their own view …

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Civil Rights V The First Amendment, And The Erosion Of The Belief–Action Dichotomy, Elena Lacorte

University of Miami Race & Social Justice Law Review

No abstract provided.

Medicaid Unwinding: Due Process Violations And Impacts In Florida, Emma Page

University of Miami Race & Social Justice Law Review

No abstract provided.

Bank Fragility After Mergers, Jeffrey Jou, Teng Wang, Jeffery Y. Zhang

Law & Economics Working Papers

Do banks become more fragile after merging? By constructing a novel forward-looking measure of fragility and exploiting staggered interstate banking deregulation as exogenous shocks to bank mergers, we show that the loan portfolios of merged U.S. banks become more vulnerable to adverse economic conditions. However, merger size matters. The increase in fragility is driven almost entirely by mega-mergers of large banks, suggesting the presence of moral hazard. In addition, we find that increased geographic or portfolio diversification following mergers does not offset the increase in fragility. If anything, mergers between large banks that have significantly dissimilar portfolios can actually worsen …

Neurotechnology Works Its Way Forward, Jeremy Ben Merkelson, Wendy Kearns, David Rice, Elyse Sparks

Seattle University Law Review Online

Neurotechnology is an emerging and rapidly advancing field of technology used to collect, process, and analyze brain or nervous system activity. The market is expected to reach $21 billion by 2026.

In a previous article, published in October 2023, we explored the potential of neurotechnology applications in the workplace, like electroencephalogram (EEG) headbands that monitor fatigue and boost safety, software and EEG combination technologies that creates a shortcut to the human brain and optimizes complex decision-making, and earbuds that track focus and stress.

We have continued to study and speak about these issues in various forums, and meanwhile, technology and …

Reparations For Project One Hundred Thousand, Eleanor T. Morales

Duke Law Journal

During the Vietnam War, the U.S. Department of Defense (“DOD”) created a new program that targeted marginalized communities, resulting in thousands of deaths and adversely impacting the lives of more than one hundred thousand others. This Article—which draws on original archival research from obscure DOD files—uncovers the origins and effects of the program called “Project One Hundred Thousand.” This research reveals that the program drafted members of impoverished communities to serve in the place of more privileged men, who received draft exemptions. The program enabled the U.S. government to continue the war at scale without incurring an unacceptable loss of …

What The Hell Is The Major Questions Doctrine?, Jack M. Beermann

Faculty Scholarship

Anita S. Krishnakumar, What the New Major Questions Doctrine Is Not, 92 Geo. Wash. L. Rev. 1117 (2024).

When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence …

In Defense Of The Major Questions Doctrine, Louis J. Capozzi Iii

Notre Dame Law Review

The major questions doctrine, which requires agencies claiming important powers to identify clear authority from Congress, is transforming administrative law. Breaking with recent practice, the doctrine prevents the executive branch from issuing laws addressing pressing, novel issues without Congress’s affirmative consent.

In response, scholars have generally criticized the doctrine and questioned its legitimacy. Critics have alleged that the doctrine was fabricated by the Supreme Court without proper justification, is incapable of principled application, frustrates the intent of past Congresses to delegate broad power to agencies, aggrandizes judicial power, and hinders desirable executive branch lawmaking.

This Article disagrees with those criticisms …

The Solicitor General, Consistency, And Credibility, Margaret H. Lemos, Deborah A. Widiss

Notre Dame Law Review

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on …

Confronting Catastrophic Risk: The International Obligation To Regulate Artificial Intelligence, Bryan Druzin, Anatole Boute, Michael Ramsden

Michigan Journal of International Law

While artificial intelligence (“AI”) holds enormous promise, many experts in the field are warning that there is a non-trivial chance that the development of AI poses an existential threat to humanity. Existing regulatory initiatives do not address this threat but instead merely focus on discrete AI-related risks such as consumer safety, cybersecurity, data protection, and privacy. In the absence of regulatory action to address the possible risk of human extinction by AI, the question arises: What obligations, if any, does public international law impose on states to regulate its development?

At present there is no scientific consensus as to the …

What's The Matter With Batna? It's Misleading And Doesn't Help Advance Parties' Important Interests, John Lande

Faculty Publications

Many dispute resolution experts misunderstand the concept of BATNA (the best alternative to a negotiated agreement), believing that it is the most favorable possible outcome if the parties don’t settle. In fact, BATNA isn’t an expected result. It’s a course of action, not the value resulting from the course of action.

Attorneys often make unrealistic predictions of court outcomes because of inherent uncertainty and cognitive biases. Moreover, parties have many intangible interests that aren’t included in estimates of BATNA values.

This article offers suggestions for attorneys and mediators to advance clients’ interests by better understanding and valuing non-settlement outcomes.

Decriminalization Matters: Lgbtq Transnational Litigation Networks And Movement Lawyering In The Global South, Ayodeji Kamau Perrin

Faculty Scholarship

In the last decade, a distinct sociolegal phenomenon has been sweeping across the Global South—the judicial decriminalization of same-sex sexual conduct. On the other hand, progress on LGBTQ rights has occurred in parallel to transnational countermobilization and backlash against LGBTQ rights. Yet, neither the phenomenon of judicial decriminalization nor the countermobilization and backlash to decriminalization has attracted the attention that these phenomena deserve from doctrinal legal scholars, comparative and international law scholars, or legal mobilization scholars.

In this paper, I help to remedy this oversight by making three contributions to legal mobilization scholarship and to international law and relations scholarship. …

Forgotten Victims: Exploring The Right To Family Integrity As A Form Of Redress For Children Of Wrongfully Convicted Parents, Emily Byers Olson

Minnesota Law Review Vols. 106:2 onward (2021-present)

Almost five million children in the United States have had a parent incarcerated at some point in their lives. Children who grow up with an incarcerated parent face immense challenges, including mental health issues, problems at school, economic hardship, and the propensity to participate in criminal activity themselves. When it turns out that the child’s parent was wrongfully convicted and incarcerated for a crime they did not commit, the challenges faced by the child are even more devastating. One way that a child may be able to obtain a remedy in these instances is through their due process right to …

"Key" Tam: Giving Teeth To Federal Data Security Enforcement, Brandon Stottler

Minnesota Law Review Vols. 106:2 onward (2021-present)

Data breaches wreak havoc on data-handling entities, weigh heavily on the minds and hearts of breach victims, and elude the efforts of regulators and scholars alike. Since 2005, declared the “Year of the Data Breach,” every year has seen an increase in the number and impact of breaches. Data breaches cost United States companies billions of dollars, undermine consumer confidence, exacerbate geopolitical tensions, increase anxiety, and even result in bodily harm and death. Nevertheless, a suitable federal framework has yet to be enacted to address the perennial problem. Though the data breach epidemic may seem like a recent phenomenon—a biproduct …

Investor Justice, Nicole Iannarone

Minnesota Law Review Vols. 106:2 onward (2021-present)

There is a systemic flaw in the investor protection landscape. Unrepresented investors face off against well-resourced repeat- player firms that almost always have lawyers. While consumers face similar challenges in civil courts, in forced securities arbitration, the decisionmaker may not have a law degree, is prohibited from conducting any outside legal research, and has no monetary incentive to read materials the parties submit. These realities amplify already-existing informational and resource asymmetries between Main Street investors and stockbrokers and undermine the market-legitimizing function of securities arbitration. Despite being designed to permit investors to recoup losses without the aid of an attorney, …

Debt, Work, And The State, Kate Sablosky Elengold

Minnesota Law Review Vols. 106:2 onward (2021-present)

In every state and the District of Columbia, an individual who owes a debt to the state can lose their license to work. Without the ability to make a living, it is much harder to pay off debt. Although using occupational license restrictions as a debt collection tool appears nonsensical, it has never before been the subject of scholarly debate. This Article thus begins an important conversation about debt, work, and the state.

This Article identifies the pervasive authority that state and local governments have to revoke an individual’s occupational license solely because that person owes a debt to the …

150 Years Of Detox: How Inadequate Dietary Supplement Regulation Undermines Consumer Safety In The Weight Loss Industry, Chloe Chambers

Minnesota Law Review Vols. 106:2 onward (2021-present)

Prior to the passage of the Pure Food and Drug Act of 1906, the American food and drug market was a proverbial “wild west,” fraught with charlatans, snake oil salesmen, and manufacturers cutting costs at the expense of consumers. The Pure Food and Drug Act, along with the Food, Drug, and Cosmetics Act of 1938 took steps to address this problem, creating the modern food and drug regulatory scheme. While American food and drugs are markedly safer now than they were 150 years ago, the Dietary Supplement Health and Education Act of 1994 has prevented dietary supplement safety from keeping …

Reforming The Medical Expense Income Tax Deduction To Better Reflect "Crip Time", Diane Kemker

University of Michigan Journal of Law Reform Caveat

Extraordinary medical expenses— whether due to a one-time occurrence or a chronic condition— happen on their own time. These expenses, their causes, and their consequences (medical, personal, financial, or all of these) can rarely be neatly cabined into a single calendar year. Treatment requiring an expensive prescription medication or complex surgery not covered by insurance may address a condition that arose over years. That condition may have interfered with a taxpayer’s ability to work in prior years, the current year, and perhaps for years to come, even for the rest of the taxpayer’s earning life. The medical condition of a …

Institutionalized Ostracism, Danieli Evans

Articles

Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism.

Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe …

Abortion Ally Or Abettor: Accomplice And Conspiracy Liability After Dobbs, Mary Fan

Articles

The bristle of state laws criminalizing abortion after Dobbs v. Jackson Women’s Health Organization raises important questions about accomplice and conspiracy liability for helping people pursue reproductive freedoms out of state. Abortion funds, grassroots organizations, pilots, and other humanitarian volunteers are vital for people in need of abortions, who often are trapped by a lack of resources in abortion criminalization jurisdictions. Threats of prosecution are chilling and even shutting down assistance by abortion funds for travel to pursue reproductive freedoms. The liability questions after Dobbs arise against a backdrop of increasing prosecutions in Europe and the United States for crimes …

Tax In Law Schools, Michael Hatfield

Articles

At the 2023 Association of American Law Schools Tax Section meeting, professors discussed their impressions of a decline in the number of JD students studying tax. Their impressions were consistent with declines that have been documented in similar fields. Between 2011 and 2021, U.S. accounting programs saw an 18% drop in students, while new CPA candidates declined 39% from 2010 to 2022. In the United Kingdom, the number of law schools that teach tax has diminished by 43% since 2002. This Article examines tax education in 40 U.S. law schools, focusing on course offerings and enrollment trends from 2012 to …