Digital Commons Network^™

The Emergence Of Neutrality, Jud Campbell

Law Faculty Publications

This Article traces two interwoven jurisprudential genealogies. The first of these focuses on the emergence of neutrality in speech and press doctrine. Content and viewpoint neutrality are now the bedrock principles of modern First Amendment law. Yet the history of these concepts is largely untold and otherwise misunderstood. Scholars usually assume that expressive-freedom doctrine was mostly undeveloped before the early twentieth century and that neutrality was central to its modern rebirth. But this view distorts and sometimes even inverts historical perspectives. For most of American history, the governing paradigm of expressive freedom was one of limited toleration, focused on protecting …

The Law And Gospel Of Human Rights And Duties: John Paul Ii And Michael Perry On Sacredness And Intentional Killing, Timothy P. Jackson

Emory Law Journal

No abstract provided.

Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters

Emory Law Journal

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the …

Richmond Law Magazine: Winter 2022, University Of Richmond

Richmond Law Magazine

Free Britney (and other legal lessons from the headlines)

The Making of a More Perfect Union

Richmond Law: A Story in 7 Objects

Covid-19, Churches, And Culture Wars, John D. Inazu

Scholarship@WashULaw

The First Amendment’s Free Exercise Clause often requires courts to balance competing interests of the highest order. On the one hand, the Constitution recognizes the free exercise of religion as a fundamental right. On the other hand, the government sometimes has compelling reasons for limiting free exercise, especially in situations involving dangers to health and safety. The shutdown and social distancing orders issued during the early phases of the COVID-19 pandemic not only restricted free exercise but also limited what many people consider to be the core of that exercise: religious worship. But the orders did so in order to …

Una Solució, Si Us Plau: Self-Determination And The Catalan Crisis, Jared Skinner

Emory International Law Review

Nestled in the corner of Spain is the birthplace of a people and a political conflict as old as the history of the peninsula itself. Catalonia, long a bastion for independence movements around the world, is caught at the center of tensions between traditional regionalism and political centrality in Spain. As internal unrest continues to intensify, miring discussion and dialogue, the crisis creeps closer to a point of drastic political uncertainty. Exhausted with the enduring lethargy of domestic and European legal fora, the Catalans have often thought of turning to international law for a solution. This Comment draws upon decades …

U.S.-China 'Phase One' Trade Deal: Implications For The World Trade Organization, Austin Lowe

Notre Dame Journal of International & Comparative Law

No abstract provided.

Restorative Justice: Uplifting Human Rights For The Marginalized, Vulnerable, Victimized, And The United States As A Whole, Meghana Vodela

Human Rights Brief

No abstract provided.

The Minds Behind The Movement: The Role Of Academics In East Asia’S War Reparations Litigation, Timothy Webster

Case Western Reserve Journal of International Law

No abstract provided.

Responding To Claims Of Atrocities Against The Rohingya: Behind The Scenes Of The 2018 Rohingya Documentation Project, Andrew C. Mann, Nicole Carle

Case Western Reserve Journal of International Law

No abstract provided.

Caliphs, Jinns, And Sufi Shrines: The Protection Of Cultural Heritage And Cultural Rights Under Islamic Law, Eleni Polymenopoulou

Emory International Law Review

This Article examines the position of the Islamic legal tradition on arts and cultural heritage, including its pitfalls, and argues that a better understanding of Muslim state practice is needed to enhance the protection of cultural rights in the Muslim world. This can further facilitate collaboration between Muslim states and inter-governmental bodies working in the field of culture; implement better accountability mechanisms under international criminal law, as well as; to contribute to the fight against terrorism. In addition, the author submits that Islamic law is not necessarily an appropriate platform to enhance cultural rights and cultural heritage in the Muslim …

Eiser Infrastructure Ltd V Kingdom Of Spain: The Icsid Convention, Sovereign Immunity, And Federal Court Of Australia Dealing With A Supposed "Zombie Judgment", Ylli Dautaj

The International Lawyer

This extended case note underscores a perplexing contemporary issue of public international law as it interacts or intersects with international arbitration law. The Federal Court of Australia was recently tasked to adjudicate an issue that once again exposed the nuanced question of whether the ICSID Convention preserves immunity from enforcement and execution, or only for the latter. The international case law on this point has been sparse, whereas one of the leading cases in comparative international law dates back to 1986 and comes from the Southern District of New York-the case of Liberian Eastern Timber Corporation (LETCO) v. The Government …

International Law: Corpus Linguistics And Ordinary Meaning, Eric Talbot Jensen, James Lee Rex

Faculty Scholarship

The application of corpus linguistics to clarify ambiguity or provide insight in legal interpretation is quickly gaining recognition within the United States, especially among the judiciary. However, very little has been done to assess its application to international law, particularly as a means of assisting international courts and tribunals. In the international legal system—where ambiguity inevitably arises from the great diversity of linguistic and cultural systems throughout the world—the norm for understanding contested terms within a treaty or agreement is to look for the “ordinary meaning to be given to the terms of the treaty in their context and in …

The Construction Of Minorities: Self-Determination And The Legal Politics Of Religious Difference In Late Northern Nigeria, Circa 1949-1960, Rabiat Akande

All Papers

No abstract provided.

Bargaining For Abolition, Zohra Ahmed

Fordham Law Review

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories. Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes. The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor to keep …

Small Gestures And Unexpectedconsequences: Textualist Interpretationsof State Antidiscrimination Lawafter Bostock V. Clayton County, Anastasia E. Lacina

Fordham Law Review

The U.S. Supreme Court’s landmark decision in Bostock v. Clayton County expanded Title VII’s coverage of victims of sex discrimination in employment by interpreting the statute to also protect LGBTQ+ employees who were discriminated against because of their sexual orientation and/or gender identity. Although Bostock only applies precedentially to Title VII, the long and interwoven history of state antidiscrimination statutes shows that the ruling may reach beyond federal law. This Note examines state court cases that have considered whether to apply Bostock’s reasoning to the interpretation of state antidiscrimination statutes. Furthermore, this Note argues in favor of a path …

Archiving The Pandemic: What It Has Meant To Chronicle What We Wish To Forget, Katyayani Suhrud

FIU Law Review

In the summer of 2020, when the Covid-19 pandemic and all that it brought it with was still very new, Jindal Global University, where I am a law student, began putting together an archive of this time for the university community. This piece explores what it meant to archive the pandemic while simultaneously living through it, and how other people’s stories and experiences affected my own. Attempting to distance myself from the pandemic did nothing to aid its everyday struggles. Rather, choosing to be intimately involved with how it was affecting the lives of others and also my own proved …

Crisis, Rupture And Structural Change: Re-Imagining Global Learning And Engagement While Staying In Place During The Covid-19 Pandemic, Shruti Rana, Hamid R. Ekbia

FIU Law Review

The COVID-19 pandemic led to unprecedented closures of national borders and the withdrawal of much of the social and cultural activities of society into the walls of the home. For us, educators focused on global engagement and analyzing international law and society, the abrupt retreat into the shelter of domestic walls disrupted the very subjects we were studying—inside and outside the classroom. In the pandemic’s first wave, most study abroad and international experiential programs were cancelled indefinitely, and the programs that continued had to operate in an environment of social distancing and uncertainty. We were forced to scramble to accommodate …

Critical Review Of The Use Of The Rorschach In European Courts, Igor Areh, Fanny Verkampt, Alfred Allan

Research outputs 2014 to 2021

In relation to the admissibility of evidence obtained using projective personality tests arose in F v. Bevándorlási és Állampolgársági Hivatam (2018). The Court of Justice of the European Union has held that an expert’s report can only be accepted if it is based on the international scientific community’s standards, but has refrained from stipulating what these standards are. It appears timely for European psychologists to decide what standards should be applied to determine whether or not a test is appropriate for psycholegal use. We propose standards and then apply them to the Rorschach because it was used in this case …

Developing Standards For Gender-Responsive Human Rights Due Diligence, Constance Z. Wagner, Nancy Kaymar Stafford

All Faculty Scholarship

This article addresses the current state of gender-responsive human rights due diligence (GR-HRDD) standards and advocates for greater attention to be paid to women’s human rights in the due diligence process. The 2011 United Nations Guiding Principles on Business and Human Rights (UNGPs) created a global framework for recognizing, preventing, and addressing the risk of adverse impacts of human rights violations linked to business activities. The responsibility of businesses to respect human rights under the UNGPs includes implementing a human rights due diligence process. Although the UNGPs do not provide guidance on the process for integrating women’s rights into human …

Notes Toward A Supreme (Legal) Fiction, Emily Kidd White

All Papers

Maksymilian Del Mar’s new book, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication offers a finely drawn map of various ways of reasoning in and through law. The book is about the ways that thoughts, values, commitments and ways of seeing, move, take hold, settle, startle and – at times – release grip, reorient, and/or transmute. It is a book that is teeming with references. There are threads to pull at everywhere.

Taking Corwin Seriously, Itai Fiegenbaum

Lewis & Clark Law Review

Corporate law’s most important development is founded on a misunderstanding of the channels and consequences of shareholder empowerment. The Article’s title references the seminal Delaware Supreme Court decision that ruled that a positive shareholder vote effectively insulates a friendly sale from judicial oversight. Central to Corwin’s reasoning is the notion that the shareholder vote provides an effective restraint against insider overreaching. Yet every deal that includes a premium over the market price is assured of shareholder approval. The doctrinal lynchpin’s real-life insignificance exposes a baffling inconsistency in contemporary takeover jurisprudence.

This Articles makes two novel contributions to the bourgeoning scholarship …

Africana Legal Studies: A New Theoretical Approach To Law & Protocol, Angi Porter

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: In 1743, a group of enslaved Africans from various estates in French colonial New Orleans gathered, held a musical ceremony sung in their native language, and discussed the actions and fate of a slaveholder named Corbin. Earlier, Corbin had threatened to shoot one of the enslaved Africans in this group, and Corbin’s brother then actually shot that person with a gun loaded with salt. Now, as the group of Africans gathered, they determined that Corbin had to die. Two months later, Corbin disappeared and was never found.

If we use a traditional (Western) legal framework to describe this …

Metasoftware: Building Blocks For Legal Technology, Houman Shadab

Articles & Chapters

This Article develops a novel concept in information technology called metasoftware. It then applies the concept of metasoftware to developing legal technology.

Metasoftware enables users to create the software of their choosing and stands in sharp contrast to traditional, functional software that is intended for a particular purpose or a defined range of tasks. Functional software is the default type of software that is currently produced and includes word processing, email, social networking, enterprise resource management, online marketplaces, and video game software. Metasoftware, by contrast, is not functional. Metasoftware presents the user with a blank slate upon which to build …

How To Bring Your Kids Up Queer: Family Law Realism, Then And Now, Kris Franklin, Noa Ben-Asher

Articles & Chapters

This essay, in honor of Paula Ettelbrick’s vast contributions to family law, examines a new site of conflict - the legal treatment of transgender children and youth - for which Ettelbrick’s work, alongside Eve Kosofsky Sedgwick’s seminal essay, How to Bring Your Kids up Gay (1991) are fundamental. We apply what we believe to be Ettelbrick’s emphasis on having legal structures recognize the reality and lives of queer people – what we call “family law realism” – to the current social and legal struggles that are unfortunately being fought upon the bodies of transgender identified children and youth. We recommend …

Culture And Fair Use, Michael Goodyear

Articles & Chapters

The intersections of race and copyright have been underexamined in legal scholarship, despite repeated calls for further scrutiny. The scholarship has so far focused primarily on identifying where copyright has fallen short in protecting the creative works of artists of color. This Article, instead, hopes to offer one viable solution for creating more inclusivity of different cultures in copyright: the approval of cultural adaptations under fair use.
Cultural adaptations—the transforming of preexisting works to reflect the cultural and social mores and norms of a different group—would appear on first glance to be prohibited as derivative works, which, under the Copyright …

Synchronizing Copyright And Technology: A New Paradigm For Sync Rights, Michael Goodyear

Articles & Chapters

Embedded in a copyright owner’s musical work or sound recording is the synchronization, or sync right. One of the least discussed aspects of music copyright, considerations about sync have come to the fore as the world has increasingly moved from the real world to the virtual. The COVID-19 pandemic has spurred thousands of activities and events to go online. With many of these involving music, the shift to the virtual world has raised new questions about the extent of sync rights.

Traditionally, sync rights were meant to require licenses for the use of music in timed-relation to a film or …

The Textual Canons In Contract Cases: A Preliminary Study, Ethan J. Leib

Faculty Scholarship

This Essay is a first effort to explore how linguistic canons function in contract cases. Most lawyers know about ejusdem generis, expressio unius, and noscitur a sociis from their work in statutory interpretation, but no one has attempted any systematic inquiry into how these canons figure in contract interpretation. Looking at two jurisdictions’ use of textual canons in contract cases over time and in careful detail, this Essay reports findings and offers preliminary conclusions, about the specific jurisdictions under review and more generally in a comparative vein, both inter-jurisdictionally and as compared to what we know about the same canons’ …

Emerging Technology’S Language Wars: Smart Contracts, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Work at the intersection of blockchain technology and law represents a highly interdisciplinary area of inquiry. Often, researchers, law-makers, lawyers, and other stakeholders unnecessarily debate issues because of linguistic misunderstandings. As the third of four studies examining the impact of clashes of linguistic meaning on law and policy around emerging technologies, this Essay uses smart contracts as a case study to demonstrate the real legal harm that arises from a failure to communicate. Specifically, this Essay uses techniques from corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates as to whether the law should “accommodate” …

"Should Supreme Court Justices Fear Access To Their Papers? An Empirical Study Of The Use Of Three Archival Collections", Susan Demaine, Benjamin J. Keele

Books & Book Chapters by Maurer Faculty

Susan deMaine's contribution to this volume is "Should Supreme Court Justices Fear Access to Their Papers? An Empirical Study of the Use of Three Archival Collections." Co-authored by Benjamin J. Keele.

US. Supreme Court justices typically donate their working papers to archives upon their retirement, often with lengthy embargoes. 1 Researchers have debated whether the justices should be required to retain and disclose their papers as government · records, but there has been little study of how the papers are used in scholarly and journalistic discussions of the Court.· This empirical study examines how the papers of Justices William Brennan, …