Digital Commons Network^™

Valuing Worker Authenticity, Dallan F. Flake

William & Mary Law Review

Title VII of the Civil Rights Act of 1964 protects workers from discrimination because of their race, color, religion, sex, or national origin. Controversially, courts do not typically extend this protection to individual expression tied to a protected trait, such as a Black employee who wears their hair in dreadlocks or a Latino employee who speaks Spanish on the job. Judicial unwillingness to protect employee self-expression tied to a protected trait causes employees who identify with marginalized groups to suppress their identities to conform with mainstream culture—often at tremendous costs to themselves and the organizations they work for.

This Article …

Four Ways To Deconstruct Regulation And Undermine Democracy In The States, Glen Staszewski

William & Mary Law Review

A few years before the Supreme Court formally overruled Chevron, anti-administrative activists successfully prohibited judicial deference to reasonable exercises of interpretive discretion by regulatory agencies in a handful of receptive states. State governments’ treatment of this issue is likely to generate even more attention in Loper Bright’s wake. This Article presents novel case studies of four different ways in which state governments have prohibited deference to state agencies by state courts: (1) judicial decisions in Mississippi and Ohio, (2) a constitutional amendment proposed by an appointed commission and adopted pursuant to the initiative process in Florida, (3) statutes …

Chevron Was Not, And Cannot Be, Overruled: The Dullness Of Loper Bright, Edward L. Rubin

Vanderbilt Law School Faculty Publications

As expected, the Supreme Court declared, in Loper Bright Enterprises. v. Raimondo,' that "Chevron is overruled." The Court was notably vague about the principle that would replace it, declaring that "courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority," but providing little guidance about how this crucial task should be performed. This is an obvious defect in an opinion with innumerable defects, but the problems with the Court's decision go well beyond its specific flaws. The Court did not understand the decision that it claimed to overrule. Chevron is not simply a …

Sex & Startups, Jens Frankenreiter, Talia B. Gillis, Eric L. Talley

Faculty Scholarship

Private law offers a unique solution to the problem of long-term fiscal commitment. When Congress enacts a spending program that will take many years to reach fruition, there is a risk of a subsequent Congress or President cutting off funding in the interim. There is no escape from the problem within appropriations law itself. One solution, however, is to entrust private sector allies as vessels of long-term commitment. As a matter of political economy, that solution draws on policy-feedback theory. As a matter of law, the solution rests on a mechanism that Congress already uses but has not recognized its …

Addressing Gaps In Access: Examining Language Barrier Accommodations In Medicaid Member Handbooks, 2015-2019, Sanskruti Patel

Senior Theses

Objective: This study examines the linguistic accessibility of Medicaid Managed Care Organization (MCO) handbooks from 2015 to 2019 by analyzing the instructions provided to access interpreter and written translation services. Trends were compared over time, considering state and plan-level factors that impact equitable healthcare access for Limited English Proficiency (LEP) enrollees.

Methods: A systematic search using manual efforts and FOIA requests located all publicly available Medicaid handbooks from 2015-2019 (N=657) across 39 states with comprehensive MCO plans. These handbooks were coded by independent reviewers to assess the study outcome variables. Random mixed-effects logistic and linear regression models were conducted to …

Protecting The Freedom Of Movement For All: A Proposal For Complete Street Policies That Prioritize The Needs Of Travelers With Idds And Autism In The Wake Of N.J. Bill S147, Olivia Handelman

Cardozo Journal of Equal Rights & Social Justice

The note examines the groundbreaking implications of New Jersey Bill S147, which mandates the New Jersey Department of Transportation (NJDOT) to develop complete street designs specifically addressing the needs of individuals with intellectual and developmental disabilities (IDD) and Autism Spectrum Disorder (autism). This legislation represents a significant shift in complete streets policies, which traditionally focus on physical accessibility but rarely prioritize non-physical disabilities. The note argues that NJDOT’s implementation of these designs must include tailored strategies, such as mobility education, staff training, and improved signage, to ensure independent and safe travel for this population. By addressing these needs, New Jersey …

Springboard To Article V (Or Electoral Democracy And The End Of Constitutional Amendment In The Nation And States), Wilfred U. Codrington Iii

Articles

Drafted in exceedingly sparing terms and notoriously difficult to amend, the U S. Constitution is falling short in one of the most important functions of a government charter: establishing and maintaining a fair and just electoral framework-marked by rules that promote the values of equality, participation, competition, and transparency in elections. That is, the Constitution increasingly fails to preserve electoral democracy even as the nation's systems for voting and elections are plagued by a cascade of problems. State constitutions, though not uniform, are uniformly easier to amend than the national charter and tend to be better stewards of electoral democracy. …

The Case For Expanding The Right To An Interpreter Beyond The Courtroom, Ivy Tengge Xu

Journal of Law and Social Policy

For an accused who is not proficient in an official language, interpreter assistance is critical to ensure a basic level of understanding and participation in the criminal process. Section 14 of the Canadian Charter of Rights and Freedoms constitutionalizes the protection against linguistic prejudice in legal proceedings. The Supreme Court of Canada has given section 14 a generous interpretation in the criminal context, but the availability and quality of courtroom interpretation is often compromised in practice due to a shortage of qualified interpreters and concerns about delays. Outside the courtroom, however, neither the Charter nor any statutory right in Canada …

The Effect Of An ‘Appearance, Presentation And Demeanour’ Instruction On Credibility And Deception Judgments In Mock Refugee Status Decisions, Hilary Evans Cameron, Sean Rehaag, Katrina Friesen

Journal of Law and Social Policy

Can a written instruction convince refugee status decision-makers not to rely on a claimant’s ‘appearance, presentation, and demeanour’ in judging the claimant’s credibility? How else might such an instruction affect the decision-makers’ deception judgments? This study explored the effects of an APD instruction on the judgments of lay decision-makers making credibility judgments in a simulated refugee hearing (n=275). It sought, by means of an experiment, to quantify the instruction’s effects both on decision- making outcomes and on the written reasons that the decision-makers offered to justify their conclusions. The APD instruction in our study had no significant effect on whether …

ปัญหาการวินิจฉัยคดีพิพาทเกี่ยวกับสิทธิชุมชนตามรัฐธรรมนูญของศาลปกครอง (Judgment Issues Of The Administrative Court In Community Rights Cases Under The Constitution Of The Kingdom Of Thailand), Adisorn Kongphunpin

Chulalongkorn University Law Journal

แม้สิทธิชุมชนจะเป็นสิทธิระดับรัฐธรรมนูญมากว่าสองทศวรรษก็ตาม แต่การขาดความชัดเจนในรายละเอียดของสิทธิ นับเป็นอุปสรรคสำคัญต่อการที่ศาลปกครองจะวินิจฉัยรับรองสิทธิชุมชนให้เกิดผลในทางปฏิบัติ จากปัญหาดังกล่าวจึงเป็นที่มาของงานวิจัยฉบับนี้ที่มุ่งศึกษาแนวคิดและทฤษฎีเกี่ยวกับสิทธิชุมชน และคำวินิจฉัยคดีปกครองเกี่ยวกับสิทธิชุมชนของต่างประเทศ เพื่อนำมากำหนดเป็นแนวทางทางกฎหมายในการวินิจฉัยคดีพิพาทเกี่ยวกับสิทธิชุมชนในศาลปกครองของไทย ผลการศึกษาพบว่า “สิทธิชุมชน” เป็น “สิทธิเชิงกลุ่ม” ซึ่งมีพัฒนาการมาจากกฎหมายสิทธิมนุษยชนและกฎหมายสิ่งแวดล้อมระหว่างประเทศ โดย “ชุมชน” สามารถใช้สิทธิทางศาลได้โดยการมอบหมายให้ปัจเจกบุคล และ/หรือ นิติบุคคล ที่เป็นตัวแทนหรือผู้แทนของชุมชนนำคดีไปฟ้องต่อศาลในนามของชุมชน และในกรณีที่ศาลปกครองพิจารณาแล้วเห็นว่า ผู้ฟ้องคดีเป็นผู้ทรงสิทธิชุมชนตามรัฐธรรมนูญและมีสิทธิในการเข้าถึงและใช้ประโยชน์จากทรัพยากรธรรมชาติและสิ่งแวดล้อม เช่น มีสิทธิในการดำรงวิถีชีวิตในพื้นที่ป่า เป็นต้น แม้ว่าจะมีข้อจำกัดที่ทำให้ศาลไม่สามารถออกคำบังคับให้ผู้ฟ้องคดีเข้าไปดำรงวิถีชีวิตอยู่ในพื้นที่ป่าได้ก็ตาม หากแต่ผู้ฟ้องคดีฟ้องขอค่าสินไหมทดแทนจากการที่ต้องสูญเสียสิทธิในการกำหนดเจตจำนงของตนเอง และ/หรือ สิทธิในการเข้าถึงและใช้ประโยชน์จากทรัพยากรธรรมชาติและสิ่งแวดล้อมมาด้วย ศาลปกครองย่อมสามารถกำหนดให้ฝ่ายปกครองชดใช้ค่าสินไหมทดแทนให้แก่ผู้ฟ้องคดีจากการที่ต้องสูญเสียสิทธิดังกล่าวในการดำรงวิถีชีวิตตามจารีตประเพณี ตามบรรทัดฐานคำวินิจฉัยของศาลต่างประเทศได้

The Curious Case Of Japanese Denim, Aaron Francis Ward

Japanese Society and Culture

From its humble beginnings as wholly utilitarian workwear in the 19^th century, to its modern rise to high-fashion, the ubiquity of denim, particularly in the form of jeans, has had a fascinating journey in its little-over-150-year history (Beazley, 2015). Of note has been the recent rise in popularity of Japanese denim. Since the end of the Second World War, Japan seems to have had an insatiable demand for Americana (Marx, 2023). Yet, if considered in the sociohistorical context of Japanese-American relations, this ought to be highly improbable. The current paper examines the sociological nature of Japanese denim from semiotic …

Stipulations Of Law And Agency Independence, Jack Ferguson

Pepperdine Law Review

The Supreme Court granted certiorari in SEC v. Jarkesy to consider whether good-cause removal protections for SEC administrative law judges violate the Constitution, but ultimately left the question unanswered. The lower court holding that the removal protections are unconstitutional remains on the books for now, neither affirmed nor reversed. And a circuit split lives on. The removal power question is likely headed back to the Supreme Court before long. This Essay examines a key premise of the Jarkesy litigation and its leading precedent, the 2010 case Free Enterprise Fund v. Public Co. Accounting Oversight Board. In both cases, the parties …

We Were All Originalists . . . For A Minute: Has The Supreme Court Abandoned The Search For Original Public Meaning? Should It?, Steven Semeraro

San Diego Law Review

Predicting the Supreme Court’s next turn is tricky business. The two obstruction-of-justice cases considered here may turn out to be what used to be called “sports,” i.e., cases where the Court used a mode of analysis that it abandons in future cases without explanation. Perhaps, though, these cases hold the promise of a new, more open frontier of judicial interpretation in the service of our self-governing spirit. One in which courts and the parties to litigation cooperatively seek to advance legislative purposes to better our society.

Part II traces the development of originalism, a textualist approach to legal interpretation arising …

Clean Data: Recursion As Pollution In Environmental Ai, Joshua Fairfield

Scholarly Articles

If “data is the new oil,” then corruption in the data used to train artificial intelligence (AI) constitutes a new form of pollution. Environmental AI has traditionally been discussed in terms of its indirect effects on the environment—the irony of burning power, processor cycles, and heat to produce solutions to stop and heal environmental damage. But there is a deeper problem. When environmental AI suggests interventions, its outputs are written onto the landscape. If that landscape is then read as data to retrain AI, there is a risk of model collapse and catastrophic forgetting, as the snake devours its own …

“Burned At The Stake”: Unpacking Disinformation In The Story Of A Coach Allegedly “Terminated” For Expressing Anti-Transgender Women Athlete Beliefs, Ellen J. Staurowsky

Journal of Issues in Intercollegiate Athletics

On August 29, 2023, a video testimony entitled ‘Burned at the Stake’: One NCAA Coach’s Battle to Protect Women’s Sport was released. The film was part of a “female athlete storytelling series” developed and funded by the Independent Women’s Forum (IWF) designed to support the IWF’s stated agenda to “fight to save women’s sports and counter the radical agenda that seeks to erase women” by allowing transgender girls and women on teams that match their identities. The central figure in the video is Kim Russell, then head women’s lacrosse coach at NCAA Division III Oberlin College, who claimed her right …

Glotopolítica, Identidad Y Lenguas En México En El Siglo Xxi, Marilyn S. Avalos Huesca

Journal of Maya Heritage

Languages, like human beings, have been adapting to the changes produced worldwide, and with this they have grown in number of speakers or disappeared forever from society. These changes are not given arbitrarily, but are conceived from politics and the State, where what should be the best for the speakers, nationalism and society permeates according to the statutes established by those in power. All this from an ethnocentric point of view, which denigrates what is different, what we do not understand, and therefore, we reject. This article analyzes the presence of languages in Mexico from a point of view related …

State-Powered Acceleration Of Cannabis Economy Growth Engines, Benjamin C. Varadi

Pace Law Review

Small cannabis companies in state-regulated markets have driven extraordinary job creation and economic growth, but now face extinction as consolidation looms. Government intervention can build a future populated with prosperous small business growth engines, while failure to act will magnify economic disparity. This Article proposes state-backed loan guarantees, funded by municipal “cannabonds,” as a novel solution to guide the industry toward a healthier and more diverse economic landscape. This approach offers constitutionally resilient strategies to express explicit preference for local stakeholders and inverts traditional risk metrics to leverage historic institutional lending bias as a force for positive change. In doing …

How Active Cftc Enforcement Could Benefit Crypto, Carol R. Goforth

Pace Law Review

Commodity Futures Trading Commission (CFTC) crypto enforcement rose to record levels in 2023, prompting applause from some observers and criticism from others. In fact, the CFTC’s enforcement agenda is not out of step with other federal agencies such as the Securities and Exchange Commission (SEC), which has also been incredibly active in the crypto industry. It might seem that this is bad news for crypto, given that both the CFTC and SEC have been angling to become the primary regulator for these new assets. In reality, proof that the CFTC is active in enforcing the law against crypto entrepreneurs and …

National Origin Bias And U.S. Public Opinion On Supreme Court Nominees: Evidence From A Conjoint Experiment, Christopher P. Dinkel, Andrew Ifedapo Thompson, Marc C. Mcallister

Pace Law Review

As the ultimate arbiter of the interpretation of federal law and the U.S. Constitution, the U.S. Supreme Court has a significant impact on businesses and individuals across an increasingly diverse country. Although the vast majority of the Justices who have served on the Court have been white males, recent Presidents have appointed nominees who have brought greater racial and gender diversity to the Court. Despite these efforts, however, not a single U.S. Supreme Court Justice in the past six decades has been born abroad, even though Americans who were born outside the United States constitute nearly a tenth of the …

Compensation For The Convicted Innocent In New Jersey: Problems And Recommended Solutions, D. Michael Risinger, Lesley C. Risinger

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

Down, But Not Out: How Termination Of Asylee Status Leaves Open A Path To Lawful Permanent Residency, Mason Strand

Immigration and Human Rights Law Review

Beat into “legal limbo” is not how anyone would like to describe their legal situation. But this is exactly where former asylees like Joel Siwe and Tiger Cela have ended up when they were excluded from adjusting to lawful permanent residence under the Immigration and Nationality Act (INA) § 209(b) because of the termination of their asylum status.

In 2001, Joel Siwe was granted asylum on the grounds that he would be persecuted. But within a year of entering the United States, Siwe was convicted of money laundering and sentenced to prison. When Siwe got out, his asylum status was …

Social Contracts: The State Convention Drafting History Of The Lockean Natural Rights Guarantees, Anthony B. Sanders

UMKC Law Review

No abstract provided.

Overloading The 1% “Circuit Breaker”: The Indiana Tax Court Constitutionally Expands Curtilage, Andrew W. Swain

Texas A&M Journal of Property Law

In its 2024 decision, Sawlani v. Lake County Assessor, the Indiana Tax Court reviewed the constitutionality of the Indiana General Assembly’s statutory limit of the constitutionally prescribed 1% tax cap to only one acre of land—curtilage—surrounding the taxpayer’s principal place of residence. The Tax Court held the legislature’s limitation unconstitutional, finding no verbiage in the relevant constitutional provision that justified limiting the tax cap to just one acre. This Article critically examines the Court’s decision in Sawlani, arguing that the ruling represents a significant departure from established judicial principles and legislative intent, undermining the legislature’s authority and introducing …

Why Jack Daniel's Can't Stop #Westelmcaleb, And What Now?, Irina D. Manta, Kavita D. Balchand

William & Mary Bill of Rights Journal

This Article proceeds in four Parts. Part I provides a basic overview of trademark law and brand protection. It explains the key components of the Lanham Act, the central federal legislation in this area—including the two federal causes of action, trademark infringement and trademark dilution—and explores the law’s role in brand protection. Next, Part II discusses the area of social media and brand promotion. It begins with examining the rise of social media and the emergence of hashtags, in addition to trademarks used within hashtags and the registration of hashtags by the United States Patent Trademark Office (USPTO) as well …

Whatever Happened To Queenie's Law?, Virginia C. Thomas

Library Scholarly Publications

This column illustrates how the history of a specific legislative measure that has been introduced over multiple legislative sessions can deepen our understanding of its legislative purpose.

Financial Hardship And Forum Selection Clauses, John F. Coyle

North Carolina Law Review

No abstract provided.

Law, Politics, And The Academy In Asia: Navigating Constraints As Public Law Scholars, De Maartje Visser, Qian Liu, Victor V. Ramraj

Research Collection Yong Pung How School Of Law

How do academics interested in the study of legal topics that implicate the state relate to and deal with pressures that shape the space available to conduct research? This article examines the nature and impact of such pressures on Asia-focused public law scholars who must contend with a more diverse socio-political environment than the liberal democratic setting in which questions of academic freedom are typically explored. We find that the Asia-centric academy is affected by a wide range of constraints that notably extends beyond intra-institutional demands to those put in place by the state. This article also highlights how the …

Destroy, Rebuild, Repeat: How To Break The Climate Disaster Cycle, Mark Nevitt

Vanderbilt Law Review

Climate change is fundamentally reshaping how we live, where we live, and whether we invest in or retreat from climate-exposed communities—but climate and disaster law is not changing with the climate. This legal latency is driven by antiquated statutes, doctrines, and policies that have not kept pace with the climate moment. Ex ante adaptation decisions governing where to live are life and death choices that shape ex post disaster response. Laws and policies should facilitate sound climate decisionmaking, but too often they frustrate individual and governmental decisions on whether to stay or retreat. In this Article, I argue that laws …

A New Way For Justice For Families Of Schoolchildren With Disabilities? A Case Note On Luna Perez V. Sturgis Public Schools, Kevin R. Hart

New Mexico Law Review

For years, the majority of courts have ruled that parents of children with disabilities were required to exhaust special education due process procedures before filing civil actions under other disability statutes. Change would come through Luna Perez v. Sturgis Public Schools. In Luna Perez, a deaf student, Miguel Luna Perez, was denied a free and appropriate education for eleven years. After settling the case under the Individuals with Disabilities Education Act (IDEA), Mr. Luna Perez (initially through his mother, but later continuing on his own) filed a claim for compensatory damages under the Americans with Disabilities Act (ADA) and Section …

Organic Websites: Certification Of Ai-Generated Or Human-Written Content On The Internet, Andrew W. Torrance, Bill Tomlinson

Chicago-Kent Journal of Intellectual Property

This paper proposes the development of a certification system analogous to the standards used in organic food labeling, designed to distinguish websites based on the proportion of human-written versus AI-generated content. In an era where AI plays an increasingly prominent role in content creation, this system would provide transparency for consumers and uphold fair competition in digital markets. The certification would allow website creators to present verifiable evidence of their content’s provenance, ranging from entirely human-made, to a mix of human and AI contributions, to fully AI-generated content. Additionally, this paper explores the legal and policy frameworks necessary for implementing …