Digital Commons Network^™

The Inevitability Of Adaptability – Comparative Contributions To Understanding Originalism, Anna Conley

Emory International Law Review

What can comparative law teach us about originalism as a constitutional interpretation method? After synthesizing existing comparative analyses, this article seeks to redefine comparative law’s role in understanding originalism. When defining originalism strictly to require adherence to fixed original meaning, originalism is not used by courts anywhere in the world. Instead, courts use history purposively to understand the intent behind constitutional text as one of many methods of interpretation. Comparative works suggest historical constitutional interpretation has a complex relationship with rights, politics and culture.

Comparative law can provide not only descriptive understandings of originalism but also interrogate its mandate that …

Ground Rules: Giving Meaning And Effect To Key Contested Terms In The California Racial Justice Act, Bazelon, Lara, Redbird, Dr. Beth, Yan, Belle

Santa Clara Law Review

The California Racial Justice Act (RJA), which applies to all pretrial, trial, and post-conviction defendants,

prohibits any state actor from relying upon racial bias to seek or obtain a conviction or sentence against a defendant. In a state where racial disparities in incarceration have been growing for decades, the law, which became retroactive in 2024, has the power to create a sea of change across California criminal institutions. Using the power of state constitutional law and relying upon the principles of comity and federalism, the California Racial Justice Act explicitly rejects the intent-to-discriminate standard set by the U.S. Supreme Court …

"The Only Place I'M Allowed In The City Is Court": Racial Capitalism, Gentrification, And The Criminalization Of Homelessness In Missoula, Montana, River Rafferty

Scripps Senior Theses

This thesis dissects how gentrification, homelessness, and criminalization intersect and influence one another, using Missoula, Montana's recent urban camping ban as a case study.

It argues that racial capitalism, as a hermeneutic, structures the logics of Missoula's Ordinance 3747 and that gentrification, as a manifestation of racial capitalism, creates a structural imperative for the criminalization of homelessness. In addition, it asserts that local community organizations such as the Missoula Tenants Union and the Missoula Unhoused Neighbors Union offer viable alternatives to the current carceral organization of public policy, orienting space in the city toward what Ruth Wilson Gilmore terms abolition …

What Is The Standard Of Review For (Mixed) Constitutional Questions?, Anthony R. Sangiuliano, Mark Friedman

All Papers

According to the framework for selecting the standard of review in civil appeals developed in Housen v Nikolaisen, questions of mixed fact and law are reviewed on a standard of palpable and overriding error. This framework applies to allegations that a statute is constitutionally invalid. However, in Société des casinos du Québec inc v Association des cadres de la Société des casinos du Québec, the Supreme Court held that when a statute is challenged as unconstitutional before an administrative tribunal, questions of mixed fact and law are subject to a correctness standard on judicial review as an exception to the …

An In-Depth Review Of Euthanasia-Related Practices, Arguments For/Against Them, And Proposed Solutions For Their Most Glaring Legal/Ethical Problems, Macon Plecha

Williams Honors College, Honors Research Projects

This paper’s goal is to cover the topic of euthanasia-related practices at great length. Terminology, history, and current programs around the world are discussed first, with the last point covering a wide geographical range: Colombia, Japan, Israel, and Africa, to name a few outside of the Western world standard. Arguments for and against euthanasia-related practices are explored. Within these arguments, several pressing legal and ethical issues arise, and the most severe of these are expanded on through the offering of potential solutions: how to handle stand-alone psychiatric cases, how to improve advanced directives and poor reporting rates, and how to …

The Criminal System Under Racial Capitalism, Sandeep Singh Dhaliwal

Faculty Publications

In 2021, major segments of the business lobby converged around a consensus for criminal system reform. As the United States experienced historic levels of labor market tightness, business groups argued for removing “barriers” to employment that system-involved people face. Just a few months later, the orientation of business to the criminal system was decidedly more mixed. By March 2022, the U.S. Chamber of Commerce, the country’s most powerful business lobby, had stepped to the forefront of the national moral panic around retail theft, launching a vigorous campaign to defend and even strengthen criminal punishment across the country.

Anchoring its analysis …

Differentiation Or Dialectic: Pluralism And Contestation In European Economic Constitutionalism, Paul Linden-Retek, Marija Bartl

Journal Articles

In this contribution we ask how Přibáň’s theoretical choices shape the capacity of ‘European constitutional imaginaries’ to account for the ever more necessary work of recognition and redistribution within European society. While ‘European constitutional imaginaries’ reveal the intricate ideologies at play within European law and politics, as well as their power in motivating dominant currents of European political life, the project remains limited in that it accepts essential tenets of functional differentiation in society, obscuring the conditions of possibility for the formation of differentiated systems. Put differently, ‘European constitutional imaginaries’, both as forms of life and analytic concepts, have difficulty …

Book Review, Rumyana Van Ark Et Al., Children’S Rights, ‘Foreign Fighters’, Counter-Terrorism: Children Of Nowhere (2024), Mark A. Drumbl

Scholarly Articles

The focus of Children’s Rights, ‘Foreign Fighters’, Counter-Terrorism: Children of Nowhere is on foreign fighters who join terrorist groups, ISIS, and other entities engaged in armed conflict in Syria and Iraq. Counterterrorism measures, and the threats of terrorist attacks, have triggered a degradation and distortion of law. I have noted this following the 9/11 attacks and the concomitant refusal to treat children associated with terrorist groups as protected child soldiers. Whereas child soldiers in distant African conflicts are largely seen in the centers of global power as ‘faultless, passive victims’ of a pathological society, child terrorists taken as disruptive of …

What's The Harm In (Partisan) Gerrymandering? Collective Vs. Dyadic Accounts Of Representational Disparities, Sanford C. Gordon, Douglas M. Spencer, Sidak Yntiso

Publications

Traditional approaches for documenting the harm of gerrymandering emphasize collective representation by legislatures, minimizing the relationship between individual voters and their respective representatives. Federal courts have struggled to map collective accounts onto cognizable constitutional harms, reflecting a discomfort evaluating a system of representation inescapably rooted in geographic districts using diagnostics that treat districts and their boundaries as an inconvenience rather than an intrinsic feature. A normative account of representation and accountability rooted in the dyadic relationship between voters and their legislators addresses the exact harms that courts have articulated yet struggled to substantiate. We derive a formal model of dyadic …

Paradoxical Pedagogy: Teaching Trauma-Informed Principles Within A System Built On Emotional Detachment, Sarah Mcconnell, Leah Lunetta

Roger Williams University Law Review

No abstract provided.

The Radical Potential Of Consumer Financial Protection, Vijay Raghavan

Faculty Scholarship

This Article offers a novel retheorization of consumer financial protection that surfaces its radical potential. That retheorization is motivated by two developments. The first is the rise of debtor movements over the last decade demanding the abolition or cancellation of debt, such as the recent national campaigns against student debt and medical debt. The second is an emerging view this Article identifies in sociological and legal scholarship. Recent scholarship understands consumer financial protection as in tension with the radical ambitions of debtor movements and neoliberal in its orientation: it operates to sustain market logics as opposed to contest them.

This …

The Value Of A Statistical Life: From Skin In The Game To Vision Zero, Michael C. Duff

All Faculty Scholarship

This essay discusses justice issues surrounding occupational safety and health and assesses the ethical legitimacy—the justice—of regulatory cost benefit analysis when the costs in question involve the risks and realization of workplace injury and fatalities. The current “value of a statistical life” for legal-regulatory purposes is 13.1 million dollars. While economists are careful to say that this figure does not “really” represent an attempt to value any particular life, the purpose of even calculating the number is to provide an “aggregated” statistical justification for saying “no” to rules requiring safer work. This seems acceptable until you, or someone you love, …

The Lawyer's Obligation As Public Citizen, Gene R. Nichol

Faculty Publications

This essay by Gene R. Nichol examines the lawyer’s duty as a “public citizen,” drawing from the ABA Model Rules’ preamble and historical, civic, and religious touchstones to argue that legal professionals bear a unique obligation to sustain democracy, the rule of law, and public confidence in justice. Situating the discussion in contemporary struggles—particularly in North Carolina—the essay details court-documented gerrymandering, voter suppression, and politicization of the judiciary, and laments the comparative silence of the institutional legal community, including bar associations, law schools, and leading firms.

Nichol juxtaposes today’s reticence with past episodes of vocal resistance (and support) from the …

Lawyers’ And Law Professors’ Experience With Worker Governance, Brett H. Mcdonnell

Articles

Part I surveys some of the leading arguments concerning the benefits and costs of worker governance. It also describes some of the ways in which those benefits and costs can evolve along with the growth, or lack thereof, of companies with worker governance. Part II looks at governance in law firms. It considers how the explanations for the adoption of worker governance fare with respect to law firms, notes the limited, elitist nature of worker governance within law firms, and considers the consequences of that real but elitist worker governance for the understanding of lawyers. Part III considers the same …

Fairness In Contract Law: An Impossibility Theorem?, Francesco Parisi, Brian H. Bix

Articles

Scholars have long debated whether contract law should prioritize maximizing efficiency and social welfare or, instead, prioritize justice, fairness and other deontological values. The debate is partly prescriptive (what should we try to do with contract law rules) and partly conceptual (how should we understand contract law). This article surveys central positions in this debate, distinguishing between the corrective and redistributive functions of contract law and between doing justice between the parties and more systemic effects. It highlights an impossibility theorem that underscores the self-defeating nature of redistributive policies in price-based contractual relationships, using a numerical example and two policy …

After Identity: Reverse Discrimination, Anti-Essentialism, And The Future Of Title Vii, Maayan Sudai, Lihi Yona

SMU Law Review

This Article argues that the Supreme Court’s unanimous decision in Ames v. Ohio Department of Youth Services marks a turning point in Title VII’s long-standing struggle with identity. By striking down the “background circumstances” rule, a doctrine that required majority-group plaintiffs to meet a heightened evidentiary burden, the Court appeared at first glance to reaffirm its steady march toward strict anticlassification. We offer a different reading. We contend that Ames gestures toward a third, overlooked normative framework within antidiscrimination law: anti-essentialism. This framework, rooted in feminist, critical race, and queer theory, rejects both the rigidity of anticlassification and the categorical …

Terrorizing Who? Luigi Mangione's Terrorism Charge And The Threat To Capital, Julia Hopkins

Public Interest Law Reporter

No abstract provided.

Gendered Liberty, Laura Portuondo

Faculty Scholarship

No abstract provided.

Civil Society And The Crisis Of Privacy Law, Ari Ezra Waldman

Emory Law Journal

Based on interviews with key players, public reports, and previously undisclosed primary sources, this Article tells the inside story of the American Data Privacy and Protection Act (ADPPA) and the role of privacy nonprofit organizations in crafting it. It uses ADPPA’s drafting as a case study about larger questions of expertise, the lawmaking process, and the role of law in setting the context of advocacy. The Article’s descriptive argument is that background law and the dynamics of privacy policymaking in the United States Congress channeled and constrained the choices made by privacy civil society organizations while negotiating and drafting key …

Collaborative Efforts To Combat Racism: Academics And Criminal Defense Lawyers In The Pursuit Of Racial Justice In California, Alvarez, Karina, Cameron-Wedding, Dr. Rita

Santa Clara Law Review

Lawyers and academics frequently cooperate to shape public policy and outcomes in specific cases, including in the area of racial justice. However, too frequently, lawyers and academics operate in silos—working towards the same goal of racial justice, but in different arenas. Lawyers are bound to their clients, foremost, and to advocacy before the court—often so much so that they might lose sight of broader challenges, achievements, and theories in racial justice. By contrast, academics spend their lives in the abstract, leaving them at risk of losing sight of the on-the-ground impact of their expert theoretical advances. This article aims to …

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

Publications

No abstract provided.

Book Banning: The Post-Pico Epidemic Upon Nationwide Academic Curricula, Brian Gomberg

Journal of Race, Gender, and Ethnicity

This Note explores the growing wave of book bans across the United States, highlighting the increasing role of state legislators in advancing policies that restrict access to literature in public schools. While historically driven by private individuals or local challenges, contemporary bans are now often state-sanctioned, with states like Texas, Florida, Missouri, Utah, and South Carolina leading the movement. These actions not only suppress specific titles but also target entire genres, disproportionately affecting books dealing with race, gender, and LGBTQ+ identities. Drawing on sources such as the PEN America Index of School Book Bans, the Note analyzes the historical context …

Rebuilding The Foundation: Addressing A Crisis In Juror Participation, Paula Hannaford-Agor

Faculty Publications

Courts are experiencing dramatic decreases in juror response and appearance rates, threatening the future of jury trials and the legitimacy of the American justice system. Effective strategies exist to reverse this trend, if justice system stakeholders are willing to employ them.

An Exploration Of The Jurisprudence Of The National Bank Through Hamiltonian And Jeffersonian Legal Lenses, Nadia Ghazal

Student Works

No abstract provided.

Toward Objectivity In International Criminal Law: Modeling Genocide, Kevin Chamow

Student Works

No abstract provided.

Court Review: Journal Of The American Judges Association, Vol. 61, No. 2, Eve M. Brank, David J. Dreyer, Reba Ann Page, Jane Manning

Court Review: Journal of the American Judges Association

Contents

Understanding GenAI What Courts Should Know, AI Rapid Response Team of the National Center for State Courts

Large Language Models, Newer, More Powerful Large Reasoning Models, and the Courts, Pablo Arredondo and Javed Qadrud-Din

Any Sufficiently Transparent Magic... Damien Patrick Williams

Principles and Practices for Using AI, Thomson Reuters Institute/National Center for State Courts

Evidentiary Issues Raised by Artificial Intelligence, Thomson Reuters Institute/National Center for State Courts

Bench Card: Acknowledged AI-Generated Evidence, Thomson Reuters Institute/National Center for State Courts

Bench Card: Evaluating Unacknowledged AI-Generated Evidence, Thomson Reuters Institute/National Center for State Courts

Want to Know More About AI? ABA …

A New Guide To Kf Modified: Kf Classification Modified For Use In Canadian And Common Law Law Libraries, F. Tim Knight, Janet M. Moss

Librarian Publications & Presentations

The revised and updated edition of the Guide to KF Classification Modified for Use in Canadian Law Libraries written by Janet M. Moss of the Gerard V. La Forest Law Library at the University of New Brunswick in 2004 and published in 2006 as an Occasional Paper by the Canadian Association of Law Libraries/L'Association canadienne des bibliothèques de droit. This revision clarifies the use of KF Modified, incorporates the enhancements and improvements that have been applied to the KF Modified classification scheme during the intervening years, and contributes to the consistent use of this classification scheme in law libraries using …

What Can Copyright Law Learn From Greek Tragedy?, Mira Moldawer

Marquette Intellectual Property & Innovation Law Review

None.

Virtual Court Proceedings And Their Effect On Criminal Defendants’ Rights, Hunter J. Phillips

Marquette Intellectual Property & Innovation Law Review

This Comment examines whether implementing virtual evidentiary proceedings diminishes a criminal defendant’s Constitutional rights. Part One introduces the Confrontation Clause and judicial interpretations that shape its modern legal view.

Part One also introduces the importance of face-to-face testimony and how the Confrontation Clause is founded upon that principle. Part One concludes by offering psychological research that highlights the im-portance of face-to-face proceedings that allow for effective criminal proceedings. Part Two introduces legislation that hinders defendants’ Confrontation rights and critically analyzes that legislation. Part Three argues for the abandonment of virtual criminal proceedings and highlights other factors that should be considered …

Medellín Manifesto On Transnational Value Chains And International Law, Diane Desierto

Journal Articles

Global Value Chains (GVCs) have been heralded as the ‘new world of trade’, yet they branch far beyond what has traditionally been considered ‘trade’—they interact with and are informed by multiple legal regimes often in ways unrelated to the theoretical and practical bases of those regimes. Building on the 2016 IGLP Manifesto, which sought to place law at the centre of GVC research, the Medellín Manifesto’s aspiration is to establish a research agenda that is specifically focused on international law: one that treats GVCs as amorphous and transnational legal creatures—they are transnational value chains (TVCs); one that recognises that the …