Digital Commons Network^™

The Future Is Electric: Nuclear Energy’S Role In Combating Climate Change And The Regulatory Measures To Enable Its Advancement, Autumn Clark

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Trap Chronicles Vol. 2: A Call To Reconsider “Risk” In Federal Supervised Release, Lahny Silva

Maryland Law Review

No abstract provided.

European Court Of Human Rights' Ruling In Georgia V. Russia (Ii) And Its Application To The Current Crisis In Ukraine, Edward N. Cain

Loyola University Chicago International Law Review

Georgia v Russia (II) represents an important decision in the European Court of Human Rights case law. The Court sets out an important interpretation of Article 1 of the European Convention on Human Rights regarding the jurisdiction of signatory parties during times of invasion and war. The Court articulated that during active hostilities, there is no positive or negative obligation on the invading country to uphold or defend the human rights of the civilians of the invaded country. This is because they do not have effective control over the local population due to the dynamic nature of war. This precedent …

Rethinking The Federal Emergency Powers Regime, David Landau

Scholarly Publications

Emergency has assumed central importance in the United States legal system. In 2019, President Trump declared an emergency at the southern border after Congress declined to fund his wall; critics responded with legal challenges and proposed reforms to the statute he invoked, the National Emergencies Act (NEA). Emergency powers have also played a key role during the COVID-19 pandemic. This Article conducts a comprehensive survey of emergency powers in the United States. It shows that the NEA is only one among many grants of authority presidents can call upon in a crisis, alongside other emergency schemes, specially delegated statutory power, …

Between Cooperation And Conflict In Second Look Sentence Review, Kay L. Levine, Ronald F. Wright

Cardozo Journal of Conflict Resolution

No abstract provided.

Community Accountability, M. Eve Hanan, Lydia Nussbaum

Scholarly Works

This Essay takes a close look at how the idea of community accountability is used in current transformative and restorative justice efforts, situating the concept within the history of delegalization, or a collection of different efforts to reclaim conflict resolution and public safety from the state. In fact, these efforts to reclaim the authority and means of redressing harm from legal systems may track earlier efforts to reclaim dispute resolution from the state. In Part I, we situate both transformative and restorative justice movements in the history of delegalization while noting essential differences between the objectives of these two reform …

“Cops Or Coaches?” The Statutory Role Of Juvenile Probation Officers In A Transformative Age, Justin Iverson, David S. Tanenhaus

Scholarly Works

For more than a century, juvenile justice proponents have had a difficult time precisely defining the proper role of the juvenile probation officer while simultaneously stressing that the juvenile probation department is the “workhorse” of the entire system. Existing literature largely focuses on which aspects of policing and social work these officers should embody while ignoring the foundational moorings in state statutes. This Article offers both a historical account of the rise of the juvenile probation officer and a thorough analysis of each state’s laws regarding peace officer status, employing authority, the power of arrest, and the power to carry …

Climate Change And Modern State Common Law Nuisance And Trespass Tort Claims, Jack Wold-Mcgimsey

University of Colorado Law Review

This Comment examines the use of state common law tort claims to address climate change. The aim of this work is not to provide an in-depth examination of these issues, but rather to provide a contextualized and comprehensive overview of some of the most important issues in this field using modern cases actively being litigated. This Comment comes to the conclusion that the future of common law nuisance and trespass claims in the context of climate change is, for now, unclear. Given the national and global implications of climate change, courts may find that isolated states cannot set binding precedents …

Boulder Is For People: Zoning Reform And The Fight For Affordable Housing, Emma Sargent

University of Colorado Law Review

The city of Boulder and the Colorado state legislature are both examining potential housing policies to address the growing housing affordability crisis, which reflect similar discussions in other cities and states. Zoning reform must be a central aspect of these housing policy reforms because of its impact on affordability, environmental sustainability, racial desegregation, and the economic stability of cities and states. However, passing zoning reform measures is complicated by local political opposition and the potential for unintended consequences. The best approach to pass zoning reform while ensuring that cities and states truly address housing affordability is to craft zoning reform …

Labor Mobility And The Problems Of Modern Policing, Jonathan S. Masur, Aurélie Ouss, John Rappaport

Public Law and Legal Theory Working Papers

We document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.

We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, …

Twilight-Zone Originalism: The Peculiar Reasoning And Unfortunate Consequences Of New York State Pistol & Rifle Association V. Bruen, Albert W. Alschuler

Public Law and Legal Theory Working Papers

In New York State Rifle & Pistol Ass'n v. Bruen, the Supreme Court held unconstitutional a New York Statute that, as construed by the state courts, allowed an individual to carry a firearm outside her home or business for purposes of self-defense only if she could show licensing authorities "a special need for self-protection distinguishable from that of the general community." By a vote of six-to-three, the Court concluded that this statute violated the right to keep and bear arms guaranteed by the Second Amendment and applied to the states by the Fourteenth Amendment.

The Court announced a general standard …

Grid Reliability In The Electric Era, Joshua Macey, Shelley Welton, Hannah Wiseman

Public Law and Legal Theory Working Papers

The United States has delegated the weighty responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Despite the fact that NERC is one of the largest and most important examples of industry-led governance—and regulates in an area that is central to our economy and basic human survival— this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To achieve deep decarbonization, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run …

Foreign Affairs, Nondelegation, And The Major Questions Doctrine, Curtis Bradley, Jack Landman Goldsmith

Public Law and Legal Theory Working Papers

Some of the Supreme Court Justices and scholars who support a reinvigoration of the nondelegation doctrine would allow for an exception for grants of authority relating to foreign affairs. Others have criticized such an exception as unprincipled or as reflecting improper “foreign affairs exceptionalism.” This Article argues against a foreign affairs exception to the nondelegation doctrine but contends that the doctrine should be applied less strictly when a statutory authorization relates to an area of independent presidential power. The President has more independent power relating to foreign affairs than domestic affairs, so this limitation on the nondelegation doctrine will do …

Restorative Justice Diversion As A Structural Health Intervention In The Criminal Legal System, Thalia Gonzalez

Faculty Scholarship

No abstract provided.

The Uncertain Future Of Restorative Justice: Anti-Woke Legislation, Retrenchment And Politics Of The Right, Thalia Gonzalez, Mara Schiff

Faculty Scholarship

As diverse forms of anti-democratic and anti-inclusionary politics escalate in the United States, public education is increasingly a site for retrenchment and contestation with targeted efforts to silence and erase civil rights victories for equity and access. Addressing a critical, yet unattended issue at the intersection of education law and policy and civil rights, this Article joins with the growing discourse interrogating the “parental rights” movement and racially regressive legislation. Employing a case study analysis of social movement activism and education policy legislation from 2018–2023 in Florida, it aims to provoke critical praxis emanating from essential inquiry— what is the …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

Ai Risk Assessment Tools Amid The War On Drugs: Productive Or Counterproductive?, Matin Pedram

Mitchell Hamline Law Journal of Public Policy and Practice

The War on Drugs refers to a situation in which all the processes of production, distribution, and consumption of all illegal drugs are prohibited. This ambitious goal has imposed considerable costs on societies. The war has weaponized harsher punishments such as life imprisonment, execution, and long-term incarceration against drug offenders. Nonviolent offenders, those who possessed illegal drugs, have been easy targets for governments to show that the war is still ongoing. Although some countries became pioneers in changing the laws to end this costly war, Iran and the United States have made their stance on the drug issue clear, and …

Domestic Violence, Precarious Immigration Status, And The Complex Interplay Of Family Law And Immigration Law, Janet Mosher

Canadian Journal of Family Law

Survivors of domestic violence must frequently navigate multiple legal processes, as well as the various administrative systems that provide crucial supports and resources. For women with precarious immigration status, navigation is made all the more challenging not only because immigration and/or refugee law processes are added to the array of legal domains to be navigated, but because their access to supports and resources is both restrictive and in flux, shifting along with the changes in their immigration status.

Drawing from interviews with experienced lawyers and case law searches, I explore many of the intersections between family law and immigration law …

The Significance Of R. V. Albashir In The Evolution Of Constitutional Remedies, Anne M. Turley, Zoe Oxaal

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

This paper examines the impact of the Supreme Court of Canada’s decision in R. v. Albashir on constitutional remedies under section 52(1) of the Constitution Act, 1982 and section 24(1) of the Canadian Charter of Rights and Freedoms. Albashir marks a step in the evolution of constitutional remedies by adding to the list of factors that can justify a court declaring a law invalid on a prospective-only basis. It recognizes a new exception to the presumption of retroactivity that applies when a court declares a law to be invalid. Where a court suspends its declaration of invalidity, once the suspension …

The New Public Nuisance: Illegitimate And Dysfunctional, Thomas W. Merrill

Faculty Scholarship

Leslie Kendrick’s defense of the new public nuisance fails to come to terms with legitimacy objections to such actions based on the rule of law and norms of democratic accountability. Nor is the new public nuisance a “second best” solution to widespread social problems. These actions rest on joint ventures between prosecutors and personal-injury lawyers that are likely to generate over- and under-deterrence and risk runaway liability.

Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker

Articles

Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the feld of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

Policing Veterans: What The Veterans Affairs Police Can Illustrate About The Policing Of Disability In America, Zachary R.M. Outzen

Faculty Publications

The Department of Veterans Affairs Police (“VA Police”), a federal law enforcement agency tasked with law enforcement on Department of Veterans Affairs (VA) properties, has a shocking record of misconduct and brutality against veterans. Because the VA is the largest integrated healthcare system in the United States, the VA Police are primarily responsible for policing VA medical facilities. While issues facing the veteran community have largely been analyzed as separate from those facing the American public at large, VA medical facilities replicate broader socioeconomic trends in policing of vulnerable populations. Veterans receiving VA healthcare services are disproportionately likely to be …

Plea Bargains: Efficient Or Unjust?, Jeffrey Bellin, Erin Blondel, John Flynn, Elana Fogel, Anjelica Hendricks, Carissa Byrne Hessick

Faculty Publications

The vast majority of state and federal cases end in plea bargains. The practice has eased backlogs and may benefit some defendants — but the trade-offs, some say, are too steep. Is there a better way?

Working Through The Supreme Court's 2021 Term, Nicole Buonocore Porter

Faculty Publications

Despite the controversy surrounding the Supreme Court's 2021 term, the labor and employment cases, in comparison, might seem relatively uneventful. Although there are several cases summarized below, most of them deal with relatively minor issues surrounding arbitration, or with lesser litigated statutes, such as USERRA and ERISA. This review also includes a summary of the administrative law case regarding the Environmental Protection Act because it could (and perhaps likely will) have ramifications for labor and employment law.

[...]

This review proceeds in two additional parts. Part II of this review summarizes the opinions from the 2021 term. At the end …

Low-Head Dams (Aka Drowning Machines) Are Deadly: An Analysis Of Liability For Landowners And States, And Recommendations For Legislation And Warning Signs, Forrest R. Hansen, Rollin H. Hotchkiss

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

50 Shades Of Green: How Inconsistencies In State Regulatory Regimes Threaten To Doom The Legal Cannabis Market In The United States, Shawn Harkins

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Delta-Late: How The Contentious And Hazy Legal Status Of Delta-8 Thc Reveals Kentucky’S Need For Federal Regulatory Guidance, Georgiana Ledford

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Condo Collapse Creates Consumer Collapse, Alexandra Alvarez

Loyola Consumer Law Review

The collapse of Champlain Towers South in Surfside led the Florida legislature to enact Senate Bill 4-D in the hopes of ensuring public safety and better regulating its previous unsatisfactory building code. While the implementation of this new bill is well intentioned and much needed, it carries with it impactful consequences on consumers.

Senate Bill 4-D comes alive during a time when the real estate market in South Florida is scorching. The new bill will continue to force consumers to reach into their savings and pay tens of thousands of dollars, if not more, to improve the structural integrity of …

The Road To Autonomy, Nicole Mcconlogue

Faculty Scholarship

Scholars, activists, and advocates have long identified the “transportation gap” as a significant factor contributing to race- and class-based economic and other disparities. Carlessness correlates closely with race and poverty; meanwhile, widespread disinvestment in public transit results in low-income Black and Brown people suffering a disproportionate lack of access to opportunity and choice in almost every conceivable area of life.

State and local governments most often propose one of three solutions to correct the transportation gap: 1) renewing their investment in public transit; 2) increasing access to shared transit; and 3) making adaptations to the built environment. This Article demonstrates …

Major Questions In Crisis Governance, Catherine F. Le

Chapman Law Review

What do student loan forgiveness, a vaccine-or-test mandate, and a nationwide eviction moratorium all have in common? They are all federal administrative crisis governance measures, issued under statutory emergency authorization during the COVID-19 pandemic, that were invalidated by the Supreme Court under the major questions doctrine.

The major questions doctrine bars agencies from regulating “major” issues without express prior statutory authorization from Congress. But this is fatal to administrative crisis governance. For as the German legal theorist Carl Schmitt observed, a true emergency will always engender the unexpected, and ex ante legislation will inevitably fall short. Congress cannot see emergencies …