Digital Commons Network^™

Paternalism In International Human Rights Law, Lucas Lixinski, Noam Peleg

Duke Journal of Comparative & International Law

This article argues that international human rights law (IHRL) at a system-wide level produces paternalistic effects that undermine the work it is meant to do for rightsholders. Analyzing the work of four key United Nations human rights treaty bodies, we show how institutional arrangements exclude rightsholders from having a say on their own interests in what IHRL should mean for them, and we are instead left with a body of norms, guidelines, and institutions with self-serving dynamics that reinforce the position of IHRL institutions and only secondarily benefit rightsholders.

The Misunderstood History Of Textualism, Tara Leigh Grove

Northwestern University Law Review

This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish “modern textualism” from the so-called “plain meaning school” of the late nineteenth and early twentieth centuries—an approach that both textualists and non-textualists alike have long viewed as improperly “literal” and “wooden.” This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term “plain meaning” or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to …

Forgotten "People": Reviving Textualism In The Fourth Amendment, Peter C. Douglas

San Diego Law Review

For more than a century, the Supreme Court has struggled to develop a coherent and sustainable theory of the Fourth Amendment. Before the ink is dry on a new Fourth Amendment opinion, it is cabined, abrogated, or outright overruled. As one scholar has commented, the “evolution of Fourth Amendment doctrine over the past century bears a striking resemblance to Hamlet’s descent into insanity.” While the Court vacillates between “theories” of the Fourth Amendment that might bring clarity to a difficult body of constitutional law, the rights it bespeaks lie vulnerable and unprotected. This Article argues that the problem flows from …

The Impact Of The Canva Program On The Learning Of The Ninth Grade Students In Jordanian Schools Of Html, Maha Abu Maizer

Al-Balqa Journal for Research and Studies البلقاء للبحوث والدراسات

This is a semi-experimental study that aims at measuring the impact of CANVA on the learning of ninth graders in a Jordanian school of HTML. 50 female ninth graders were randomly selected from 72 students in Aisha Bint Abi Baker school, and were distributed to two groups; control, which was taught traditionally, and experimental, which was taught with CANVA to learn HTML as a part of their computer curriculum. The researcher used a set of 20 multiple choice questions to test their knowledge achievement and skills. After checking the validity and reliability of the test. The results showed that there …

The Puzzle Of Procedural Originalism, Mila Sohoni

Duke Law Journal

On a daily basis, lawyers and judges consult and apply the rules of subject matter jurisdiction and personal jurisdiction. These doctrines—the workhorses of procedural law—ostensibly spring from the Constitution’s text, but their substance owes more to considerations of fairness, efficiency, and sound policy than it does to original meaning. Indeed, these doctrines are among the most openly and obviously nonoriginalist doctrines in constitutional law. Curiously, the originalist movement has almost totally ignored this everyday terrain. That is beginning to change. Recent overtures by Supreme Court Justices suggest that originalists are now poised to advance into the field of civil procedure. …

Comparative Rights To Counsel And Access To Justice: The American And Brazilian Approaches And Realities, Fernanda Antunes Marques Junqueira, Flavio Da Costa Higa, Benjamin H. Barton

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

“Alexa, Am I A Murderer?”: An Analysis Of Whether The First Amendment Protects Smart Speaker Communications, Josie A. Bates

Arkansas Law Review

State v. Bates poses interesting First Amendment questions that go far beyond the case itself, such as whether communications to and from smart speakers are protected under the First Amendment and, if so, whether the government must therefore meet a heightened standard before obtaining information from these devices. But currently, there are no definite answers. Thus, this analysis will attempt to answer these questions as well as offer general guidance for the future of First and Fourth Amendment law in the age of ever-changing technological advancements and never-ending criminal accusations.

Faculty List

Tulsa Law Review

No abstract provided.

Ihl's Reasonable Military Commander Standard And Culture: Applying The Lessons Of Icl And Ihrl, Jonathan Hasson, Ariel H. Slama

Tulsa Law Review

No abstract provided.

Modernizing Textualism: How To Better Interpret The Work Of Congress, Matthew J. Razzano

Tulsa Law Review

No abstract provided.

The 2022 Alabama Executions And The Crisis Of American Capital Punishment, Alexandra L. Klein

Scholarly Articles

The Death Penalty Information Center described 2022 as “the year of the botched execution” in its 2022 Annual Report. Alabama’s execution errors were especially serious: it attempted to execute four people, botched three of its four executions, and ultimately called off two executions. Alabama’s 2022 executions and its errors are the culmination of common problems in capital punishment across the United States. A full understanding of capital punishment requires an analysis of individual cases, including executions, and analysis of how that case fits within the system of capital punishment. Evaluating a single case may reveal unfairness and arbitrariness, but tracking …

Black Lives Monitored, Chaz Arnett

Faculty Scholarship

The police killing of George Floyd added fuel to the simmering flames of racial injustice in America following a string of similarly violent executions during a global pandemic that disproportionately ravaged the health and economic security of Black families and communities. The confluence of these painful realities exposed deep vulnerabilities and renewed a reckoning with the long unfulfilled promise of racial equality, inspiring large-scale protests around the country and across the globe. As with prior movements for racial justice, from slavery abolition to the civil rights movement’s demand to end Jim Crow, protests have been met with extreme force, either …

When Originalism Failed: Lessons From Tort Law, Donald G. Gifford, Richard C. Boldt, Christopher J. Robinette

Florida State University Law Review

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes. This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first …

Democracy's Other Boundary Problem: The Law Of Disqualification, Tom Ginsburg, Aziz Z. Huq, David Landau

Scholarly Publications

Almost all national constitutions contain one or more ways to disqualify specific individuals from political office. Indeed, the U.S. Constitution incorporates at least four overlapping pathways toward disqualification. This power of disqualifying specific individuals or groups stands at the heart of the complex project of maintaining democratic rule. In practice, disqualification can work both as an instrument for preserving democratic rule and also as a knife against it. This Article is the first to systematically analyze the complex positive and normative questions raised by disqualification. We offer both a positive account of the function that disqualification plays in constitutional ordering …

Doctrinal Destruction And Chevron's Extinction Debt, James Ming Chen

Florida State University Law Review

Chevron, the landmark Supreme Court case urging judicial deference to reasonable agency interpretations of vague or ambiguous statutes, has dominated federal administrative law since 1984. The sudden rise of the major questions doctrine, however, has destroyed Chevron’s jurisprudential habitat. Conservation biology suggests that habitat destruction is most devastating to dominant species, often imposing a biological “debt” that must be repaid through extinction. As with biology, so with law: “Major questions” having displaced agency deference, Chevron is doomed.

Disregarding Uncertainty, Marginalizing Patients, Elissa Philip Gentry

Scholarly Publications

No abstract provided.

History's Speech Acts, Jessie Hill

Faculty Publications

This Essay considers the historic relationship between symbolic public expressions of racial and religious identity—in particular, Confederate symbols and Christian religious displays. These displays sometimes comprise shared symbology, and the adoption of this symbology overlaps at distinct moments in U.S. history in which Confederate and Christian symbolism converged to express messages of combined religious and racial superiority. This Essay argues that these forms of expression can best be understood as “speech acts” that seek to construct a particular social reality, often in defiance of political and social fact. They thus not only express but also enact social hierarchies. It further …

§230 And Tinfoil Hats: What Conspiracy Theories Teach Us About The Marketplace Of Ideas And Online Speech, Connor B. Flannery

Catholic University Journal of Law and Technology

Famously imputed into First Amendment jurisprudence by Justice Oliver Wendell Holmes, the Marketplace of Ideas is a foundational paradigm in free speech theory. However, current trends in social discourse suggest the Marketplace has crashed. Conspiracy theories illustrate this crash as a story of unintended consequences and, paradoxically, a consequence of judicial and legislative efforts to prevent it. Acknowledging the popularity and widespread use of the internet and social media, I explore solutions to rejuvenate the Marketplace of Ideas and better align its prominence in First Amendment doctrine with the reality of the current speech landscape.

Forensic Science; Far From "Scientific Certainty", Kathleen Dewitt

Hofstra Law Student Works

No abstract provided.

Square-Peg Frauds, Miriam Baer

Faculty Scholarship

No abstract provided.

Constructing The Establishment Clause, Vincent Phillip Muñoz, Kate Hardiman Rhodes

Loyola University Chicago Law Journal

In this Article, we attempt to document how the history of the Supreme Court’s Establishment Clause jurisprudence is a history of constructionism, much of it—though not all—originalist in flavor. We use “construction” in a technical sense and in contradistinction to “interpretation.” Construction is the act of importing meaning into the constitutional text. To document and explain how leading Supreme Court justices have engaged in originalist constructionism, we employ the interpretation-construction distinction as well as two additional analytical concepts recently discussed by leading legal scholars: Sam Bray’s recovery of “the mischief rule” and Jack Balkin’s textual typology of principles, standards, and …

Blank Space: The Legal Gray Area Created By Police Abuse Of Copyright Law, Connor Druhan

Loyola University Chicago Law Journal

Music, a universal language sung and heard around the world, is a powerful force for bringing people together. It is also afforded a great deal of protection under United States copyright law. As the way we listen to music has evolved throughout history, so too have the ways that laws protect the rights of musicians and entertainers. However, due to the changing technological landscape and our methods for protecting music, law enforcement officials have found a loophole at the intersection of copyright law, free speech, and the tools we use to enforce the rights of copyright holders. The Digital Millennium …

Pass For Some, Fail For Others: An Empirical Analysis Of Law School Grading Changes In The Early Covid-19 Pandemic, David Sandomierski, John Bliss, Tayzia Collesso

Sturm College of Law: Faculty Scholarship

Legal education has a long and shameful history of excluding women, people of colour, and people from working-class backgrounds.1 Quantitative diversity measures have shown gradual improvement, recently reaching parity on gender, while racial diversity continues to lag behind. Beneath the surface of this numerical story, a large body of literature has illuminated systemic inequalities in students’ lived experiences of law school.2 This article asks how historically under-represented groups experience one of the key features of legal education: grading. We examine this issue by exploring the singular moment in the history of the modern JD program when law schools across North …

Administration As Democratic Trustee Representation, Katharine Jackson

Faculty Articles and Other Publications

The “folk” theory of democracy that typically justifies the administrative state cannot help but lead to a discourse of constraint. If agency action is only legitimate when it mechanically applies the will of the voters as transposed by Congress through statutes, then the norms guiding that action will inevitably restrain agency discretion. As a result, attempts to establish the democratic credentials of the administrative state ironically obstruct the application of collective power. But this “folk” theory of democracy is bad theory. It is empirically incredible and, alarmingly, facilitates dangerous populist politics. Political theory instead suggests that a theory of democratic …

Is It Science Or Storytime? Expert Testimony Evaluating Child Witness Credibility In Sexual Assault Cases, Elizabeth I. Boals

American University Law Review

While jurors struggle with determining any witnesses’ credibility, an even more arduous task is determining the credibility of a child victim in a sexual assault case. Due to developmental immaturity, children lack important recall and communication skills, and the well-established procedures of direct and cross examination are ineffective at producing accurate and complete trial testimony. Despite the adversarial system being proven ineffective in these contexts, American courts remain hesitant to admit expert testimony based on established psychology tools. Specifically, courts have questioned the application of Statement Validity Assessments (“SVAs”), to assist jurors in evaluating witness credibility, as they believe such …

The Dialogic Function Of I.C.J. Provisional Measures Decisions In The U.N. Political Organs: Assessing The Evidence, Michael Ramsden, Jiang Zixin

American University International Law Review

The aim of this article is to consider the degree to which provisional measures ordered by the International Court of Justice (I.C.J.) have influenced United Nations (U.N.) diplomacy and the exercise of functions by its political organs in the areas of international peace, security, and human rights. This article evaluates this influence by examining decisions in which the I.C.J. indicated provisional measures, denoting the remedy available to the Court, on an interim basis, to restrain or instruct the parties to take certain measures to preserve either or both parties’ rights pending the outcome of the case. In doing so, this …

Criminalizing Environmental Degradation And Devastation: New Prospects For The Icc Rome Statute, Kelly Pisimisi

American University International Law Review

Over the last decade, steadily increasing voices are ringing the tocsin to the international community for the impact of human activities on climate and their potential consequences on human life and dignity. The Intergovernmental Panel on Climate Change (IPCC), in its recent (6th) Assessment Report, confirmed this assertion. Greenhouse gas concentrations and emissions (particularly CO2), as well as the retreat of arctic glaciers and the subsequent sea level rise causing—among other issues—the acidification of the oceanic waters, are some of the most evident human-induced implications on climate and the environment.

Decolonizing Legal Influence: China's Role In The Changing Landscape Of The Ethiopian Legal Profession, 2000-2018, Mekonnen Ayano

Notre Dame Journal of International & Comparative Law

Over the last two decades, the legal profession in Ethiopia has changed fundamentally. The government has increased the number of law schools from one in 1993 to more than three dozen by 2021. It has introduced strict licensure rules to formalize and regulate legal services and, more recently, in 2022, it has proclaimed the creation of law firms and an independent bar association. The market for legal services has expanded, allowing lawyers to reach out to clients in the country’s peripheries and move onward to attract global clients. These changes are inextricably tied to global currents that have diffused Anglo-American …

The Child Vanishes: Justice Scalia's Approach To The Role Of Psychology In Determining Children's Rights And Responsibilities, Aviva Orenstein

Articles by Maurer Faculty

This Article explores how Justice Antonin Scalia’s hostility to psychology, antipathy to granting children autonomous rights, and dismissiveness of children’s interior lives both affected his jurisprudence and was a natural outgrowth of it. Justice Scalia expressed a skeptical, one might even say hostile, attitude towards psychology and its practitioners. Justice Scalia’s cynicism about the discipline and the therapists who practice it is particularly interesting regarding legal and policy arguments concerning children. His love of tradition and his rigid and unempathetic approach to children clash with modern notions of child psychology. Justice Scalia’s attitude towards psychology helps to explain his jurisprudence, …

How The Supreme Court Ghosted The Phosita: Amgen And Legal Constructs In Patent Law, Timothy R. Holbrook, Mark D. Janis

Articles by Maurer Faculty

This Essay is an invited response to The Ghost in the Patent System: An Empirical Study of Patent Law’s Elusive “Skilled Artisan,” by Professors Laura Pedraza-Fariña and Ryan Whalen. In their piece, Pedraza-Fariña and Ryan Whalen offer an empirical study and use it to argue for a new conception of the Person Having Ordinary Skill in the Art (“PHOSITA”), patent law’s nod to the “reasonable person” construct.

As Professors Pedraza-Fariña and Whalen suggest, the PHOSITA should be understood as a crucial concept in patent law, warranting more scholarly attention. Pedraza-Fariña and Whalen provide that attention. They assert, based on an …