Digital Commons Network^™

Late-Stage Textualism, Ryan D. Doerfler

Public Law and Legal Theory Working Papers

No abstract provided.

Testing Privilege: Coaching Bar Takers Towards "Minimum Competency" During The 2020 Pandemic, Afton Cavanaugh

Faculty Articles

The year 2020 was challenging for the bar exam. The longstanding argument that the bar exam is not a fair measure of the minimum competence of someone to practice law was cast into harsh relief and the truth-that the bar exam tests the privilege of its examinees-became startlingly apparent. Not only did 2020 kick off with a devastating global pandemic, but we also saw the rage against systemic racial injustice reach a boiling point just as we were charged with staying in our homes to avoid contracting COVID-19. With a pandemic raging, overt White supremacy on the rise, and racial …

“Rule Of Inclusion" Confusion, Dora Klein

Faculty Articles

Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive …

Legal Pluralism And Analytical Jurisprudence: An Inapposite Contrast, Jorge Luis Fabra-Zamora

Journal Articles

The intellectual tradition of legal pluralism characterizes itself by way of a contrast to legal centralism or monism. Self-styled pluralists typically attribute centralist and monist views to mainstream theories of law, which I call here analytical jurisprudence. This article argues that the pluralist foundational contrast with analytical jurisprudence suffers from three recurrent defects. First, the pluralist opposition to analytical jurisprudence conflates conceptual questions with empirical, doctrinal, and politico-moral inquiries. Second, pluralists misattribute to analytical jurisprudents an equation between law and state that they do not hold and have the resources to reject. Third, pluralists address the conceptual problems of legal …

The Mischief Rule, Samuel L. Bray

Journal Articles

The mischief rule tells an interpreter to read a statute in light of the “mischief” or “evil”—the problem that prompted the statute. The mischief rule has been associated with Blackstone’s appeal to a statute’s “reason and spirit” and with Hart-and-Sacks-style purposivism. Justice Scalia rejected the mischief rule. But the rule is widely misunderstood, both by those inclined to love it and those inclined to hate it. This Article reconsiders the mischief rule. It shows that the rule has two enduringly useful functions: guiding an interpreter to a stopping point for statutory language that can be given a broader or narrower …

Racializing Environmental Justice, Eric K. Yamamoto, Jen-L W. Lyman, Susan K. Serrano

University of Colorado Law Review

No abstract provided.

Creating A More Diverse Workforce: How The Aall George A. Strait Minority Scholarship & Fellowship Program Is Supporting Future Minority Law Librarians, Shamika Dalton, Annalee Hickman, Trina Holloway

Publications

No abstract provided.

On The Domestication Of Critical Legal History, Justin Deystone, Samuel Moyn

Publications

Among many of today’s legal historians, there is a relatively new and generally unreflective understanding of the relationship between history and method. The landscape is everywhere marked by a tendency to eschew big thinking, grand theory, and programmatic approaches to historical explanation and social transformation. In the place of the grand theory approach to law and history, there is a preference for the minimalist, the pragmatic, the particularistic, and the quotidian. What this normal science of today’s legal historiography makes obvious is a kind of attachment to particular kinds of problems with particular sorts of built-in solutions. The result for …

A Prolegomenon To The Study Of Racial Ideology In The Era Of International Human Rights, Justin Deystone

Publications

There is no critical race approach to international law. There are Third World approaches, feminist approaches, economic approaches, and constitutional approaches, but notably absent in the catalogue is a distinct view of international law that takes its point of departure from the vantage of Critical Race Theory (CRT), or anything like it. Through a study of racial ideology in the history of international legal thought, this Article offers the beginnings of an explanation for how this lack of attention to race and racism came to be, and why it matters today.

Disaggregating Chevron, Lawrence B. Solum

Faculty Scholarship

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is widely regarded as the most important administrative law decision in the history of the United States. The scholarly literature is vast and defies summary or cataloging. Moreover, Chevron is contested and criticized, defended and derided, lauded and lamented—the source of “angst and rancor” in the words of Professor Kristin E. Hickman and R. David Hahn in their article, Categorizing Chevron. One might think that when it comes to Chevron, there is “no new thing under the sun,” but in fact, Chevron is still full of surprises. When we turn …

Race-Conscious Jury Selection, Anna Offit

Faculty Publications

Among the central issues in scholarship on the American jury is the effect of Batson v. Kentucky (1986) on discriminatory empanelment. Empirical legal research has confirmed that despite the promise of the Batson doctrine, both peremptory strikes and challenges for cause remain tools of racial exclusion. But these studies, based on post facto interviews, transcript analysis, and quantitative methods offer little insight into Batson’s critical impact on real-time decision-making and strategy in voir dire. If we increasingly know what kinds of juries are produced in the post-Batson world, we know very little about how they are produced.

This …

Utilizing Tort Law To Deter Misconduct In The Public Sector, Boaz Segal

Seattle Journal for Social Justice

No abstract provided.

Functional Statehood In Contemporary International Law, William Thomas Worster

Brooklyn Journal of International Law

The international community lacks a form of territorial-based, international legal personality distinct from statehood, and yet, non-state, territorial entities of varying degrees of autonomy or independence need to function within the international community in some form. Some of these entities cannot be recognized as states because their creation violates jus cogens norms, though others are not recognized based on an assessment that they may not fully qualify as a state or that there are political reasons to refuse recognition. However, existing states still need to engage with these territorial quasi-states through the only paradigm the international community has—statehood. For example, …

The Quality Of Peace In Post-Conflict Situation: A Comparative Study Between Armed Conflicts In Aceh And Bangsamoro, Ikhwan Rahmatika Latif, Dyah Mutiarin, Achmad Nurmandi

Global: Jurnal Politik Internasional

This article investigates the quality of peace in armed conflicts that occurred in the Southeast Asia region. The authors compared the cases of Aceh, where the armed conflict between the Free Aceh Movement or GAM and the government of Republic Indonesia ended peacefully with the Helsinki Memorandum of Understanding, with the conflict in the southern Philippines, where a peace agreement, the Comprehensive Agreement on the Bangsamoro, was successfully achieved between the government of Philippines and the Moro Islamic Liberation Front. This research employed document analysis to analyse the peace settlement documents of both parties and the derivative laws of the …

Harry Dondorp, David Ibbetson, And Eltjo J. H. Schrage (Eds.), Limitation And Prescription: A Comparative Legal History, Benjamin West Janke

Journal of Civil Law Studies

No abstract provided.

Retiring Corporate Retribution, Samuel W. Buell

Law and Contemporary Problems

No abstract provided.

The Body Corporate, Mihailis E. Diamantis

Law and Contemporary Problems

No abstract provided.

Alternative Data And Insider Trading: Are Investment Managers Assleep At The Wheel On Big Data Use?, William Montemarano

Brooklyn Journal of Corporate, Financial & Commercial Law

The rapid rise of “big data” has transformed the way that professional investors make investment decisions. In addition, the intersection of the United States federal securities laws and the use of “big data” to inform securities trading lies in uncharted waters. The nuanced and factually-dependent securities laws are far behind industry practices, and the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) have remained largely silent on the issue to date. This Note argues that this combination of murky laws and rapidly evolving business practices gives rise to legal and regulatory risk, and that investment managers leveraging …

Analytic Jurisprudence In Time, Dan Priel

Articles & Book Chapters

Friedrich Nietzsche had this to say about philosophers:

"You ask me which of the philosophers’ traits are really idiosyncrasies? For example, their lack of historical sense, their hatred of the very idea of becoming, their Egypticism. They think that they show their respect for a subject when they de-historicize it, sub specie aeterni – when they turn it into a mummy. All that philosophers have handled for thousands of years have been concept-mummies; nothing real escaped their grasp alive. When these honorable idolators of concept worship something, they kill it and stuff it; they threaten the life of everything they …

Peyote Crisis Confronting Modern Indigenous Peoples: The Declining Peyote Population And A Demand For Conservation, James D. Muneta

American Indian Law Journal

Once abundant, the wild growing peyote cactus plants in Texas and Mexico are being drastically reduced and becoming scarce. Peyote, a slow growing cactus contains the hallucinogenic drug mescaline, is a sacred sacrament used in the Native Americans Church (NAC). It is also used religiously by various Indian tribes throughout the country of Mexico. Although peyote is classified as a controlled substance under federal and state laws, U.S. Congress granted NAC members a “peyote exemption” pursuant to the American Indian Religious Freedom Act to legally use peyote for religious purposes. In U.S. v. Boyll, the federal district court interpreted the …

Proposed Federal Osha Standards For Wildfire Smoke, Keenan Layton

Seattle Journal of Technology, Environmental, & Innovation Law

With the rise of global temperatures, climatologists predict a corresponding increase in the frequency and severity of wildfires in the Pacific Northwest. Rising temperatures are expected to create drier conditions in forests, thereby creating environmental conditions more prone to forest fires. Wildfires have become a common enough occurrence in the Pacific Northwest that summers have become synonymous with smoky conditions, but the issue is not constrained to this region. Though the Pacific Northwest has recently acted as a harbinger of increasing wildfires, environmental scientists forecast an increase in fire risk throughout the Western United States. The predicted rise in forest …

Building Teacher Empathy And Culturally Responsive Practice Through Professional Development And Self-Reflection, Barbara S. Rieckhoff, Melissa Ockerman, Amira Proweller, James Wolfinger

Journal of Vincentian Social Action

Today’s teachers face growing demands and mandates to support every aspect of a student’s academic success, with additional expectations to support students’ social and emotional needs both inside and outside of the classroom. In the face of increasing student cultural, racial and linguistic diversity, the teaching pool remains relatively homogeneous, consisting largely of white, European-American educators. This disconnect between the lived experiences of teachers and their students makes it difficult for teachers to value and connect to a diverse student body. This qualitative study explores how a collaborative multi-tiered critical professional development model between a non-for-profit organization and a University, …

Symbolic Boundaries And The Clinical Preparation Of Teacher Candidates, Bilge Cerezci, Donald Mcclure

Journal of Vincentian Social Action

The purpose of this essay is to make sense of the two divides in the clinical preparation of teacher candidates: (1) between professional knowledge and skilled practice, and (2) between university-based courses and school-based field experiences. This essay extends the work of Lamont and Molnár (2002) to conceptualize symbolic boundaries related to these two divides. Within this framework, a review of the research highlights three main implications. First, teacher education programs need to design teaching and learning experiences that allow teacher candidates to use the professional knowledge they have gained through their university courses across multiple educational settings. Second, such …

Implementing The Rda Research Data Policy Framework In Slovenian Scientific Journals, Janez Štebe, Maja Dolinar, Sonja Bezjak, Ana Inkret

Copyright, Fair Use, Scholarly Communication, etc.

The paper aims to present the implementation of the RDA research data policy framework in Slovenian scientific journals within the project RDA Node Slovenia. The activity aimed to implement the practice of data sharing and data citation in Slovenian scientific journals and was based on internationally renowned practices and policies, particularly the Research Data Policy Framework of the RDA Data Policy Standardization and Implementation Interest Group. Following this, the RDA Node Slovenia coordination prepared a guidance document that allowed the four pilot participating journals (from fields of archaeology, history, linguistics and social sciences) to adjust their journal policies regarding data …

Free Speech Overrides, Frederick Schauer

University of Chicago Legal Forum

No abstract provided.

Twenty-First Century Formalism, Thomas B. Nachbar

University of Miami Law Review

Formalism is one of the most widely applied but misunderstood features of law. Embroiled in a series of conflicts over the course of the twentieth century, formalism’s meaning has become confused as formalism has been enlisted by both proponents and opponents of specific legal methodologies. For some, formalism has simply become an epithet used to describe virtually anything they dislike in legal thinking. Used often and inconsistently as a stand-in (and frequently a strawman), formalism’s distinct identity has been lost, its meaning merged with whatever methodology it is being used to support or attack.

This Article seeks to separate formalism …

The Middle Ground: A Meaningful Balance Between The Benefits And Limitations Of Artificial Intelligence To Assist With The Justice Gap, Katherine L. W. Norton

University of Miami Law Review

Access to justice continues to be an ongoing battle for those who cannot afford an attorney in civil legal matters. These civil legal matters touch issues that significantly impact daily life, from issues relating to health, such as advance directives, to family, such as custody of children. Lawyers, courts, and scholars have attempted to tackle this ongoing problem in our justice system. Some suggest that providing free counsel for all civil legal matters is the solution, while others suggest that self-help materials provide more immediate access to services and information. Regardless of the position one takes, the need is clear …

A New Governance Approach To Regulating Human Genome Editing, John M. Conley, Arlene M. Davis, Gail E. Henderson, Eric T. Juengst, Karen M. Meagher, Rebecca L. Walker, Margaret Waltz, Jean Cadigan

North Carolina Journal of Law & Technology

No abstract provided.

Representation For Removal? The Cherokee's Claim To A Congressional Delegate Assessed Under The Canons Of Construction, Patrick A. Wolf

North Carolina Law Review

No abstract provided.

Swanson V Citibank And The 1l Canon, William H.J. Hubbard

University of Chicago Law Review

Part of what’s special about teaching 1Ls is that 1L year initiates law students into the community of lawyers. This community not only shares a common set of professional commitments and qualifications. Thanks to their 1L courses, lawyers share familiarity with a pantheon of famous cases that have been taught for decades. These canonical cases connect the law school experiences of generations of lawyers.

Civil procedure has its share of these classics. Virtually every first-year law student learns the Strawbridge rule for federal diversity jurisdiction.¹ International Shoe is part of every 1L’s vocabulary.² And no law student who …