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Bruen Was Right, J. Joel Alicea

Scholarly Articles

New York State Rifle & Pistol Association v. Bruen is one of the most methodologically significant—and widely maligned—constitutional law decisions of the last several decades. By rejecting the tiers of scrutiny that have loomed large in rights jurisprudence since the 1960s and substituting a text-and-history test for Second Amendment cases, Bruen signals a potential transformation of American constitutional law far beyond the Second Amendment context. Given Bruen’s methodological significance and the text-and-history approach it represents, one might have expected that the debate over Bruen would break down along familiar lines, with originalists defending Bruen and non-originalists critiquing it. Yet, the …

Finding The Major Questions Doctrine, Chad Squitieri

Scholarly Articles

The major questions doctrine has been invoked primarily in the rulemaking context, where it requires agencies to identify particularly clear statutory authority before promulgating rules of “major” importance. Some scholars have suggested that the doctrine is a tool that should be limited to agency actions that are purportedly “legislative” in nature (e.g., rule makings)—meaning the doctrine would not apply in other contexts, such as agency adjudications and enforcement actions that may not be similarly “legislative.” This Essay responds by arguing that the major questions doctrine is best understood as a limit on executive authority—meaning the doctrine could apply across a …

Homelands Not Graveyards, M. Alexander Pearl

Faculty Articles

Within the last five years, the U.S. Supreme Court has taken up several transformative cases affecting Native nations and federal Indian law jurisprudence. The Supreme Court’s decision in Arizona v. Navajo Nation is no different. This Article examines that decision and situates it within that legal history as well as the realities of present-day water resource availability. While recent decisions have shown the Court’s willingness to confirm fundamental components of federal Indian law, such as the legal tests for determining the persistence of reservation and the authority of Congress to enact the Indian Child Welfare Act, the Court’s examination of …

Learning From Mistakes: A Quantitative Comparative Study Of Court Decisions Involving The Excuse Of Contractual Mistake, Brian Mccall

Faculty Articles

In almost two decades of teaching Contracts law to first year law students, I have found one of the hardest doctrines to teach to be the excuse of mistake, both mutual and unilateral Students typically express the frustration that they cannot articulate a clear standard to determine when a party’s claim of an excusing mistake will succeed or fail. This frustration with the doctrine seems to be thousands of years old. After years of struggling to teach this topic, I resolved to dig deeper into the caselaw to see if any trends could be observed that would help dispel some …

Popular Originalism, Thomas G. Donnelly

Law Faculty Publications

Scholars are obsessed with the Roberts Court’s recent turn to history and tradition. But another source of authority has also emerged as an important feature of the Roberts Court’s approach to constitutional cases. In previous work, I have referred to this source of authority as popular meaning. While original meaning identifies the best reading of the Constitution’s text at the time of its ratification, popular meaning draws on sources of authority outside the courts to capture the constitutional views of the American people today. In this Article, I demonstrate how interpreters might draw on the Constitution’s popular meaning to help …

An Ethnography Of Love Jihad: The Governance Of Interfaith Marriages In Times Of Hindutva, Snehal Sharma

Theses and Dissertations--Gender and Women's Studies

My doctoral research focuses on the violations of human and citizenship rights of women and religiously marginalized communities (based on religious differences) in the backdrop of right-wing movements in India. I assess the Hindu nationalist propaganda named “love jihad” to demonstrate the way it weaponizes religious exogamy. This propaganda legitimizes violence against Indian religious minorities and women as it claims that marriages between Hindu women and Muslim men are acts of terrorism against Hindus with the sole aim of increasing the Muslim population using Hindu women's bodies. I have used ethnographic research methods to explore the legal process of interfaith …

Paraconsistency In Legal Systems: Why Not To Evaluate The Law With Classical Logic, Sydney Coddington

Electronic Theses & Dissertations (2024 - present)

The following paper puts forth an argument for the analysis of legal systems via paraconsistent logics instead of classical logic due to the existence of legal dialetheia - true contradictions born from the law. Given that contradictions lead to absurdity in classical logic, a paraconsistent perspective becomes the clear choice once the existence of legal dialetheia is established. The first half of this argument, therefore, aims to support the work of Graham Priest in establishing legal dialetheia by explaining his view and combatting his opponent, J.C. Beall, who finds such dialetheia to fail beyond the limited scope of a legal …

Measuring The Value Of Trademark Distinctiveness: Evidence From The Market For Bordeaux Wine, Christopher Buccafusco, Jonathan S. Masur, Ryan Whalen

Faculty Scholarship

The market value of distinctive trademarks is a fundamental assumption of both trademark law and marketing theory. However, there is little empirical evidence underlying this assumption. We examine the relationship between brand dissimilarity and market prices in the context of the Bordeaux wine market. Using a unique dataset covering thousands of wines and their associated prices and professional ratings, we find that brand distinctiveness is related to higher wine prices. We further show that this relationship persists across the wine quality spectrum, with both lower quality and higher quality wines benefiting from dissimilar marks. Finally, we show that while there …

Pluralism In State Constitutional Law, Michael L. Smith

Georgia Law Review

Debates over constitutional interpretation rage on—with most parties staking out preferred theories, their justifications, and assertions of their utility in predicting, explaining, and critiquing court opinions. The United States Constitution and the Supreme Court take center stage, despite a rich set of cases and constitutions at the state level. At the same time, state constitutional discussions tend to steer clear of federal interpretive theorizing.

This article seeks to bridge the gap between these literatures, arguing that state constitutional interpretation practices demonstrate a pluralist approach that may inform broader theoretical debates. State courts frequently employ different methods—sometimes explicitly, sometimes implicitly—both across …

Dei And Antisemitism: Bred In The Bone, Suzanna Sherry

FIU Law Review

The article explains why no one should have been surprised by the antisemitism that exploded on college campuses after October 7, 2023. The article demonstrates that the worldview espoused by the DEI (diversity, equity, and inclusion) movement -- and its cousins, antiracism and wokeness -- is inherently and inevitably antisemitic. The antisemitism "bred in the bone" of DEI was bound to come to the surface eventually, and it did.

Policy And Poppycock In Proximate Cause Cases A/K/A Scope Of Liability And Starting To Make Sense, Thomas Galligan

FIU Law Review

Studying proximate cause is like trying to decode mumbo jumbo. Courts continue to use words like direct, remote, natural and probable, foreseeable, hindsight, and intervening and superseding causes, and they make them sound like tests. They make them sound like law. Furthermore, as one test is debunked and another appears, courts continue to apply the debunked tests. They just pile on a new one as well. Then, they calm themselves and say that proximate cause is all a matter of policy. After all, Leon Green said that; William Prosser said that. It must be true. But courts fail to ever …

The Interchangeable-Part Structure Of Food And Drug Law, Adam I. Muchmore

FIU Law Review

This Article demonstrates that nested tiers of interchangeable parts serve as the foundation for the regulatory programs administered by the U.S. Food and Drug Administration. Core interchangeable parts used in FDA-administered programs include product categories, prohibitions on adulteration and misbranding, agency-registration requirements, current good manufacturing practices, product standards, marketing authorization requirements, postmarket requirements, and user fees. In each of these areas, Congress or the FDA has engaged in interchangeable-part lawmaking (IPL). IPL occurs when a government takes a portion of its law in one subject area and uses it as a model for its own law in another subject area. …

Being Pregnant In Someone Else's Body, Jennifer S. Hendricks

FIU Law Review

In the wake of the Dobbs decision overturning the right to abortion, now is a critical time to re-assess how legal feminism theorizes the pregnant body. Before Dobbs, feminist legal scholarship had blazed a path of anti-maternalism, a stance rooted in liberal, formalist notions of equality that denigrates the “feminine” and too often minimizes the importance of reproductive issues both as tools of sex-based subordination in the present and as foundations for liberation in the future. Anti-maternalism is attractive to legal scholars because it minimizes sex and gender differences and may appear to be gender-inclusive. It has produced arguments that …

Overcoming Racial Harms To Democracy From Artificial Intelligence, Spencer A. Overton

GW Law Faculty Publications & Other Works

While the United States is becoming more racially diverse, generative artificial intelligence and related technologies threaten to undermine truly representative democracy. Left unchecked, AI will exacerbate already substantial existing challenges, such as racial polarization, cultural anxiety, antidemocratic attitudes, racial vote dilution, and voter suppression. Synthetic video and audio (“deepfakes”) receive the bulk of popular attention—but are just the tip of the iceberg. Microtargeting of racially tailored disinformation, racial bias in automated election administration, discriminatory voting restrictions, racially targeted cyberattacks, and AI-powered surveillance that chills racial justice claims are just a few examples of how AI is threatening democracy. Unfortunately, existing …

A National Zoning Atlas To Inform Housing Research, Policy, And Public Participation, Sara C. Bronin, Wenfei Xu, Scott Markley, Diana Drogaris

GW Law Faculty Publications & Other Works

Through a unique combination of data science and legal analysis techniques, the National Zoning Atlas is creating the first public, online repository of standardized data about zoning. This article first discusses the context for and methodology behind the atlas. It then establishes three possibilities for using the atlas, including facilitating research (including fair housing research), strengthening planning, and empowering the public.

A Discourse Analysis Of The Development Of Institutional Compliance Mechanisms At The International Maritime Organization, Rebecca Pskowski

World Maritime University Ph.D. Dissertations

The International Maritime Organization (IMO) plays a pivotal and essential role in international maritime governance, providing a forum for nation states to develop and agree to international standards for maritime safety and security and the protection of the marine environment. IMO is widely perceived to be one of the most successful universal international organizations (IOS), because of the high technical quality of the conventions and other legal instruments it develops, and the near-universal acceptance of most of those instruments. IMO could be seen as an exemplar of the "technical" specialized United Nations agency, where nation-states set aside politics to agree …

Constitutional Comparisons And Language, De Maartje Visser

Research Collection Yong Pung How School Of Law

Language can be seen as an intuitive challenge for those who embark on comparative constitutional research: its intricate entanglement with law is often overlooked and not engaged with explicitly. This chapter argues that this is a missed opportunity at best, and arguably presents a hazard for the collective quality of the scholarly discourse. It discusses four ways in which language matters when engaging in constitutional comparisons: the problem of literal translation; the problem of legal-conceptual translation; a multilingual discourse that is marked by fragmentation; and expectations in communication with a foreign or international readership. The approach taken is constructive, with …

Ai Characterisations And Their Legal Implications, Jerrold Tsin Howe Soh

Research Collection Yong Pung How School Of Law

This chapter examines the difficult legal characterisation problems that artificially intelligent systems raise and explores how different characterisations of artificial intelligence (AI) shape practical legal outcomes. Three reasons are offered for the legal difficulty with characterising AI. First, answers to characterisation problems are inherently subjective and perspective-driven, particularly when the subject is an intangible technological system. Second, AI technology is especially difficult to define since the field typically proceeds on inexact anthropomorphic metaphors. Third, AI characterisation problems raise difficult sub-problems, particularly in determining how autonomous an AI system is. The chapter thus argues that a range of plausible AI characterisations …

Governing Intelligence: Singapore’S Evolving Ai Governance Framework, Jason G. Allen, Jane Loo, Jose Luna

Research Collection Yong Pung How School Of Law

This paper provides an outline analysis of the evolving governance framework for Artificial Intelligence (AI) in Singapore. Across the Singapore government, AI solutions are being adopted in line with Singapore’s “Smart Nation Initiative” to leverage technology to make impactful changes to the nation and the economy. In tandem, Singaporean authorities have been assiduous to release a growing number of governance documents, which we analyse together to chart the city-state’s approach to AI governance in international comparison. Characteristics of Singapore’s AI governance approach include an emphasis on consensusbuilding between stakeholders (particularly government and industry but also citizens) andvoluntary or “quasi” regulation, …

Decision-Making Supports And Cognitive Decline, Rebekah Diller

Articles

For persons with a range of cognitive disabilities, supported decision-making, rooted in a human rights approach to disability, has emerged as a tool that permits them to make legally binding decisions and avoid guardianship. As supported decision-making policy has evolved in the United States, state statutes have primarily focused on formal agreements through which individuals can designate trusted supporters to assist in obtaining information, processing that information, and communicating a decision. This Article argues that supported decision-making has promise for preserving the autonomy of persons living with dementia, but that the model of a supported decisionmaking agreement embodied in the …

Property And Information, Jeanne L. Schroeder, David G. Carlson

Articles

The article proceeds as follows. As the information theory is a reaction to legal realism, Part I explores its antecedents in the work of Wesley Newcomb Hohfeld and Ronald H. Coase. Part II presents the information theory as arising from Professor Smith’s interpretation of the Coase theorem.11 In the imaginary world of TC0, we are supposedly indifferent to organizing by property and organizing by contract. Property eclipses contract as the organon of the economy because property reduces the cost of delineation and processing—of speaking and comprehending. We show that this theory is founded on a misunderstanding of Coase. Part III …

Original Discontent, William Magnuson

Vanderbilt Law Review

There are many theories of constitutional interpretation. Most, but not all, assert that, in interpreting the U.S. Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders, and ratifiers. This Article argues that, in doing so, judges, scholars, and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the …

Law As A Lamp Post, Janet Freilich

Faculty Scholarship

Law produces all manner of public information: court documents, securities filings, patents, property records, and much more. This information is used in a multitude of ways—it teaches readers about individual cases, transactions, or entities, and is also aggregated to inform policymaking, set priorities, and drive predictive analytics and artificial intelligence.

But choices about the information produced (or hidden) by law are often unintentional. Doctrines and institutions that appear facially unrelated to information production—like subject matter jurisdiction—nonetheless affect the shape and quantity of data produced. And even doctrines focused on information— like property recordation—create data used for purposes never envisioned by …

The Major Questions Doctrine, Post-Chevron?: Skidmore, Loper-Bright, And A Good-Faith Emergency Question Doctrine, Jed Handelsman Shugerman

Faculty Scholarship

When my students and colleagues fretted about Chevron's fate, I have said, "Worry less. Skid-more." Just as old Skidmore "weight" or "respect" returns post-Chevron, the new (and newer) major questions doctrine(s) survive as a reason to give less weight to an agency interpretation. This symposium essay suggests a special role for the post-Chevron major questions doctrine: an Emergency Questions Doctrine. When the executive asserts an emergency power, when the statutory basis is open-ended (often for very good reasons), majorness means less deference to simple and fast textualism, and more time for courts to engage in deeper purposivism to …

Judicial Accountability, Anya Bernstein

Faculty Scholarship

Judicial decisions are moving ever more authority over regulatory statutes away from agencies and to courts instead. One justification offered for this power transfer: agencies lack the accountability of courts. This Article takes up that claim, assessing the institutions’ relative capacities for accountability in their authoritative interpretations of regulatory statutes—agency regulations and court rulings. I take accountability to involve actors undertaking reasoned decisionmaking grounded in publicly recognized values and facts and justifying their decisions to others who can evaluate, influence, or override those judgments. Accountability thus involves a give and take: it gives an account of government reasoning to a …

Artificial Intelligence & Criminal Justice: Cases And Commentary, Benjamin Perrin

All Faculty Publications

When I was given the chance to develop a seminar this year at UBC’s Peter A. Allard School of Law, I jumped at the opportunity to develop something new and engaging. After brainstorming ideas with students, it quickly became evident that there was substantial interest and enthusiasm for a seminar on the growing integration of artificial intelligence and the criminal justice system.

Embarking on this journey has been a steep learning curve for me as my students and I worked together to shape the course along with input from generative AI tools like ChatGPT, Gemini and Perplexity, along with open-source …

Effects Of Actualized Language Policy On Ukrainian Stability, 1989-2022, Dawn Hersey

Electronic Theses & Dissertations (2024 - present)

This dissertation seeks to generate a new perspective of the complicated relationship between actualized policy and stability through looking at Ukraine’s language policies and stability in a mixed manner approach that includes both primary and secondary sources. Russia justified its irridentist activities through claiming to protect Russian nationals within Ukraine’s borders: language policies within Ukraine appear to be a trigger for Russian antagonism. Neither Russian irridentism nor Ukrainian nationalism are being considered as right or wrong in this dissertation: the intent is to highlight trends, patterns, and perceptions in alignment with Ukrainian language policy. This dissertation does not present a …

Structural Originalism: A Second Amendment Case Study, Ian C. Bartrum

Scholarly Works

“Originalism” is having a national moment, even if it is not entirely clear what the word means. What should we be originalist about? The leading academic approach asks us to parse the communicative content of text ratified in a very different linguistic culture; then construct a modern legal meaning consistent with our semantic speculations. Too often the result enforces policy judgments made in a radically different moral and technological world. This makes very little sense.

In this paper I recommend a more perspicuous and coherent use of constitutional history, which I call “structural originalism.” Rather than saddle ourselves with the …

Rethinking Trust In The Refugee Resettlement Process: How Service Providers Can Enable Refugee Agency Through Diasporic Connections, Mahfoudha Sidelemine, Emily D. Campion

Political Science & Geography Faculty Publications

Current guidance for refugee resettlement agency workers encourages the simultaneous pursuit of trust-building and administrative tasks (e.g., housing, transportation and employment). This dual goal is resource-intensive, and focusing on the former may come at a cost to the latter. The purpose of the current research is to challenge the importance of trust-building by resettlement agencies. Drawing from our qualitative data from in-depth interviews with resettled refugees (N = 20) and agency workers (N = 15), we adopt a grounded theory approach and find that the burden of responsibility for both caregiving and administrative responsibilities can overtax agency workers …

The "Casserole" Constitution: The South African Constitution And International Law, Penelope Andrews

Articles & Chapters

No abstract provided.