Digital Commons Network^™

Antitrust Antitextualism, Daniel A. Crane

Notre Dame Law Review

Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon: judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and …

What Is Shared In The Sharing Economy? Ethics And Externalities In Public-Private Partnerships, Nicholas Browning

Indiana Journal of Law and Social Equality

No abstract provided.

Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney

Washington and Lee Law Review Online

What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more …

Laypeople As Learners: Applying Educational Principles To Improve Juror Comprehension Of Instructions, Max Rogers

Northwestern University Law Review

The U.S. Constitution enshrines the jury in a sacred space within the American judicial system. Yet there are troubling signs that, notwithstanding their best efforts, jurors struggle to fulfill their duties. In particular, substantial empirical research indicates that jurors struggle to understand and, consequently, to apply the instructions given to them by the judge just prior to deliberations. Various mechanisms have been proposed— and in some cases adopted—to improve jurors’ comprehension of instructions and the quality of the deliberations that follow. Among these are rewriting jury instructions in “plain English,” permitting jurors to take notes and ask questions of witnesses, …

Why Judicial Independence Fails, Aziz Z. Huq

Northwestern University Law Review

Judicial independence seems under siege. President Trump condemns federal courts for their political bias; his erstwhile presidential opponents mull various court-packing plans; and courts, in turn, are lambasted for abandoning a long-held constitutional convention against institutional manipulation. At the same time, across varied lines of jurisprudence, the Roberts Court evinces a deep worry about judicial independence. This preoccupation with threats to judicial independence infuses recent opinions on administrative deference, bankruptcy, patent adjudication, and jurisdiction-stripping. Yet the Court has not offered a single, overarching definition of what it means by the term “judicial independence.” Nor has it explained how its disjointed …

Article 6.21, Tatiana Stolpovskaya

Theses and Dissertations

Article 6.21 is a short documentary film that aims to examine the state of censorship around queerness in Russia today and its effects on personal lives in the queer community.

Twenty years after Russia decriminalized homosexuality, on June 30th in 2013, President Vladimir Putin signed Article 6.21 "for the Purpose of Protecting Children from Information Advocating for a Denial of Traditional Family Values", also known as the "Gay Propaganda Law". Its broad and ambiguous wording allows the government significant leeway in deciding what kind of public queerness is punishable.

In 2020 Russia passed multiple constitutional amendments that affect many areas …

Searching For “Superchief” And Other Fictional Indians: A Narrative And Case Comment On R V Bernard, Naiomi Metallic

Osgoode Hall Law Journal

In R v Bernard, 2017 NBCA 48, the New Brunswick Court of Appeal upheld the lower courts’ reasoning that a Mìgmaw man living in the traditional Mìgmaq hunting territory of St. John, New Brunswick could not exercise his Aboriginal rights to hunt because he could not prove he descended from the particular subgroup of Mìgmaq who were at St. John at the time of contact with Europeans. In deciding so, the Court of Appeal rejected the argument that the Mìgmaq, as a nation, are the appropriate rights holders and ought to be the body deciding who can exercise the Mìgmaw …

Towards An Account Of Linguistic Equality, Érik Labelle Eastaugh

Osgoode Hall Law Journal

The Canadian Charter of Rights and Freedoms contains not one but two kinds of equality rights—general equality rights, set out in section 15, and linguistic equality rights, set out in sections 16 to 23—but the relationship between them is not well understood. Do official language rights rest on a distinct set of values, or do they simply instantiate the same general principle expressed in section 15? If the former, what are these values, and how do they relate to other principles of constitutional justice? The matter is further complicated by the need to account for the special constitutional status of …

Understanding The Ongoing Dialogues On Indigenous Issues In Canadian Legal Education Through The Lens Of Institutional Cultures (Case Studies At Uqam, Ualberta, And Umoncton), Adrien Habermacher

Osgoode Hall Law Journal

This article offers an empirical study of the discourses and attitudes at three law faculties regarding Indigenous issues in legal education. After the catalyst effect of the TRC report, law faculties across Canada are facing the great challenge of fulfilling their role in the process of reconciliation. This article highlights how the modalities of the dialogue in each faculty correspond to each institution’s culture, approached through their history, social space, and sense of mission. Through interviews with faculty members and observations at public events at UQAM, UAlberta, and UMoncton, this article reveals the stark contrasts between the three case studies …

Hunting Down A Lasting Relationship With Canada—Will Undrip Help?, Sara Mainville

Osgoode Hall Law Journal

If Indigenous law is understood at the time of treaty-making, it will reinforce the procedural aspects of dispute resolution through diplomacy and the settlement of “interpretative” difficulties in living within a treaty relationship. The author, who is an Anishinaabe lawyer from Treaty 3, recounts her understanding of how the treaty relationship was to be an experience of using both Indigenous law and principles alongside Canadian law and principles to restore relationships and treaty responsibilities. A Treaty 3 commitment to provide the “Queen’s Government’s ear” to the Anishinaabe treaty partners is explored, along with the United Nations Declaration on the Rights …

Islam And Democracy: Appreciating The Nuance And Complexity Of Legal Systems With A Basis In Religion, Massimo Campanini, Mohamed Arafa

Barry Law Review

No abstract provided.

“I Am Better At Narrative Than Analytical History”: Schlegel’S Version Of Intellectual History, G. Edward White

Buffalo Law Review

No abstract provided.

The Tale Of Two Harts; A Schlegelian Dialectic, Charles L. Barzun

Buffalo Law Review

No abstract provided.

Saying Thanks With Some Self-Reflection, John Henry Schlegel

Buffalo Law Review

No abstract provided.

Twitter, Parody, And The First Amendment: A Contextual Approach To Twitter Parody Defamation, Emma Lux

Loyola of Los Angeles Entertainment Law Review

Twitter parody defamation cases raise novel questions about how to translate defamation law to Twitter’s interactive platform. What constitutes a “reasonable” reader on Twitter? What content is relevant to interpreting the meaning of a tweet from a parody account? The answers to these questions will have far-reaching effects for online speech. Parody authors are already vulnerable to defamation liability, particularly on Twitter where their statements often appear with very little context. Twitter parody accounts, which produce important political and social commentary, risk defamation lawsuits, as well as, in some states, criminal liability for online impersonation. This Note proposes a methodology …

Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt

Faculty Scholarship

Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches …

The Use And Disuse Of The Magna Carta: Due Process, Juries, And Punishment, Robert W. Emerson, John W. Hardwicke

North Carolina Journal of International Law

No abstract provided.

The Just Prosecutor, Brandon Hasbrouck

Scholarly Articles

As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. This was and is by design. Prosecutorial power derives from our constitutional structure--prosecutors are given almost unfettered discretion to determine who to charge, what to charge, and, often, what the sentence will be. Within that structure, the prosecutor's duty is to ensure that justice is done. Yet, in exercising their outsized power, some prosecutors have fully embraced a secondary, adversarial role as a partisan advocate at the significant cost of seeking justice.

The necessary reforms of our …

Practical Abolition: Universal Representation As An Alternative To Immigration Detention, Matthew Boaz

Scholarly Articles

A federally funded universal representation program can serve as a practical first step toward the abolition of immigration detention and the other harsh enforcement mechanisms that are utilized today. While abolition is typically an ideology espoused by a small subsection of the general population, its purpose can be achieved through a less partisan and broader reaching ideal -- fiscal efficiency and responsibility. By demonstrating that the provision of counsel and other wrap around services is significantly less costly than immigration detention, while also showing that providing counsel and wrap around services is an extremely effective way to ensure compliance, this …

The Role Of Transnational Legal Process In Enforcing Wto Law And Competition Policy, Weimin Shen

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Comparative Legal Rhetoric, Lucille A. Jewel

Scholarly Works

This paper theorizes a new discipline, comparative legal rhetoric, which can accomplish two important goals. First, in a society broken down by intractable polarization and win/lose dichotomies, comparative legal rhetoric identifies alternative, nontraditional and non-Western ways to communicate and persuade. How we talk is deeply connected to how we see the world. If we take a break from the win/lose argument structure that defines Western legal communication, we can uncover opportunities for understanding and healing. Second, a study of comparative legal rhetoric can generate cross-cultural understanding. This new discipline contains a trove of knowledge about how persuasion works in different …

Watch Your Language: How A School District's Failure To Provide Meaningful Communication Has Impacted Students During The Pandemic, Amy Leipziger

BYU Education & Law Journal

This article examines some of the obstacles that LEP parents have experienced with the NYCDOE during the pandemic, the impact these obstacles have had on their children’s education, and whether the NYCDOE’s refusal to provide language access amounts to a denial of a sound basic education under state constitutional law.12 I chose to focus primarily on New York City because it boasts the nation’s largest school system, with nearly 1.1 million students, and is comprised of 1,876 schools.13 A large share of these students have significant language needs. In New York state, forty-six percent of children in low-income families have …

Representation In Representation: How The Path To End Racial Injustice Begins With The Legal System, Kia Vernon

North Carolina Central Law Review

No abstract provided.

Because I Said So: The (Re)Production Of White, Ableist Narratives Through Legal Discourse In Endrew F. V. Douglas County Re-1, Stephen F. Fusco

Electronic Theses and Dissertations

As families and advocates of students of color labeled with dis/abilities face mounting inequities they turn to the courts seeking protection. Unfortunately, even after courts issue written decisions ostensibly designed to protect students labeled dis/abled, these students continue to experience systematic oppression in school. This is due, in part, to the discourse used by the courts when addressing issues affecting students labeled dis/abled and the elitism of the judicial system. The purpose of this study was to examine the legal discourse used in the most recent Supreme Court case concerning the education of students labeled dis/abled, Endrew F. v. Douglas …

Let's Talk About Gender: Nonbinary Title Vii Plaintiffs Post-Bostock, Meredith R. Severtson

Vanderbilt Law Review

In Bostock v. Clayton County, the Supreme Court held that Title VII’s sex-discrimination prohibition applies to discrimination against gay and transgender employees. This decision, surprising from a conservative Court, has engendered a huge amount of commentary on both its substantive holding and its interpretive method. This Note addresses a single question arising from this discourse: After Bostock, how will courts address allegations of sex discrimination by plaintiffs whose gender identities exist outside of traditional sex and gender binaries? As this Note explores, some have argued that Bostock’s textualist logic precludes sex-discrimination claims by nonbinary plaintiffs. While such arguments fail to …

Bolstering The Role Of U.N. Treaty Bodies: A Possible Solution To The Chinese Uighur Crisis With Potentially Far-Reaching Implications, Ayat G. Hamza

North Carolina Journal of International Law

No abstract provided.

Practical Abolition: Universal Representation As An Alternative To Immigration Detention, Matthew Boaz

Tennessee Law Review

No abstract provided.

Joking, Exaggerating Or Contracting?, William A. Drennan

Tennessee Law Review

We love the funny, and that's no exaggeration. In a joke, a duck is the funniest animal, you'll get more laughs in a red room than a blue room, 103 characters is the optimal length for a joke, and we know all this statistically because scholarly researchers often study humor. Litigators, courts, and commentators also focus on the funny when deciding whether promissory language created a binding contract. They frequently debate and decide enforceability based on whether a party was joking.

This Article asserts, for the first time, that in many of these cases the focus should be on whether …

Choice Of Court Agreements: Selected Common-Law Jurisdictions And Indian Laws Compared - Time For The Convention Of 30 June 2005 On Choice Of Court Agreements?, Poomintr Sooksripaisarnkit, Sai Ramani Garimella

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Becoming Global Lawyers? A Comparative Study Of Civic Professionalism, John Bliss

Sturm College of Law: Faculty Scholarship

Through their professional education and training, new lawyers are generally encouraged to adopt a civic vision of professional identity. This article explores convergences and diverges in how new lawyers entering an increasingly globalized legal profession conceive of their civic roles in different national contexts. In particular, I examine corporate lawyers-in-training in the U.S. and China, drawing on interviews and a cross-cultural identity mapping method to compare their accounts of the lived experiences of civic professionalism. I find that professional identity formation in the U.S. sample is largely marked by role distancing and a sense of constrained public-interest expression. In contrast, …