Digital Commons Network^™

Textualism And The Administrative Procedure Act, Kristin Hickman

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In recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine. Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking. We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism’s merits. We also will not try to resolve all the many disagreements about textualism’s variations or the APA’s meaning. …

Crimmigrating Narratives: Examining Third-Party Observations Of Us Detained Immigration Court, Linus Chan

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Examining what we call “crimmigrating narratives,” we show that US immigration court criminalizes non-citizens, cements forms of social control, and dispenses punishment in a non-punitive legal setting. Building on theories of crimmigration and a sociology of narrative, we code, categorize, and describe third-party observations of detained immigration court hearings conducted in Fort Snelling, Minnesota, from July 2018 to June 2019. We identify and investigate structural factors of three key crimmigrating narratives in the courtroom: one based on threats (stories of the non-citizen’s criminal history and perceived danger to society), a second involving deservingness (stories of the non-citizen’s social ties, hardship, …

Appointed Or Elected: How Justices On Elected State Supreme Courts Are Actually Selected, Herbert M. Kritzer

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During at least part of the post–World War II period, the constitutions of thirty-six states called for the popular election of the judges of the states’ highest courts. In practice, only slightly more than half of those judges (excluding strictly interim appointees) initially obtained their positions by election. This article examines the likelihood of initial election in actual practice, how it has varied over time, and various factors that might be related to election versus appointment (e.g., type of election, mandatory retirement). It concludes that state norms play a substantial role in determining patterns of actual selection.

Mitigating Citation Errors In The Interlibrary Loan System, Scott Dewey, David Zopfi-Jordan

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Journal articles from most academic disciplines have long shown high rates of citation errors. American law reviews, with their careful cite-checking, are a rare exception to the overall rule. Incorrect citations are especially costly and problematic for interlibrary loan librarians. This article offers practical suggestions to address the problem.

Theorizing International Business In Africa: A Roadmap, Paul Vaaler

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International business in Africa is complicated by colonial history, late internationalization, and the growing interest of various foreign powers in Africa and its resources. We share key indicators about African countries and offer a conceptual map to help make sense of this complex scholarly terrain. We distinguish between three types of multinational enterprises (MNEs) operating in sub-Saharan Africa: Advanced MNEs (from high-income previous colonial and non-colonial countries), Emerging MNEs (from middle-income countries both inside and outside the region) and Nascent MNEs (from low-income African countries). We show how these distinct types of MNEs provide different development opportunities, how they engage …

Antidiscrimination Efforts And The Repressive Weight Of Culture, Matthew Bodie

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No abstract provided.

Ai Tools For Lawyers: A Practical Guide, Daniel Schwarcz

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This Article provides practical and specific guidance on how to effectively use AI large language models (LLMs), like GPT-4, Bing Chat, and Bard, in legal research and writing. Focusing on GPT-4—the most advanced LLM that is widely available at the time of this writing—it emphasizes that lawyers can use traditional legal skills to refine and verify LLM legal analysis. In the process, lawyers and law students can effectively turn freely available LLMs into highly productive personal legal assistants.

The Virtuous Executive, Alan Rozenshtein

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As currently conceived, executive power law and scholarship detach the identity of the President from the powers and duties of the presidency. Whether an official was properly dismissed without cause, whether a pardon was validly issued, whether a foreign policy debacle rose to the level of an impeachable offense—the answers to all these questions are not supposed to depend on the President’s personal characteristics.

This Article argues that this veil of ignorance is incompatible with a correct understanding of Article II. To properly empower good Presidents and constrain bad ones, constitutional actors must take into account the President’s personal characteristics. …

The Public Administration Of Justice, Nicholas Bednar

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Adjudicatory agencies decide who receives social-welfare benefits, which inventions deserve patents, and which noncitizens get to remain in the United States. Scholars have argued that agency adjudication lacks sufficient structural and procedural protections to ensure unbiased decision-making. Yet these critiques miss a key problem with agency adjudication: the lack of adjudicatory capacity. This Article argues that low-capacity agencies cannot satisfy the Due Process Clause's demand for accurate decision-making. To produce accurate decisions, adjudicatory agencies need sufficient levels of capacity: (1) material resources, (2) expert adjudicators, and (3) support staff When agencies lack these resources, their adjudicators rely on various coping …

Burdens Of Proof In Establishing Negligence: A Comparative Law And Economics Analysis, Francesco Parisi, Giampaolo Frezza

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Inherent in any judicial system is the need to allocate the burden of proof on one party. Within the realm of negligence torts, that burden is traditionally placed on the plaintiff, meaning that the plaintiff must bring forth sufficient evidence to establish negligence by the defendant. In effect, this is a legal presumption of non-negligence in favor of the defendant. In some jurisdictions for specific torts, defendants are, instead, presumed negligent, therefore requiring defendants to come forth with sufficient evidence to prove their due diligence. In this paper, we discuss the legal origins and effects of these differences in a …

Deepfake 2024: Will Citizens United And Artificial Intelligence Together Destroy Representative Democracy?, Richard Painter

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Deepfakes – computer generated counterfeit videos and audios of people saying and doing things they never said or did – are proliferating on social media and increasingly will be used to target candidates in elections. Citizens United v. FEC, and cases decided in its aftermath, have opened the floodgates of dark money funded electioneering communications, and some of this money will be spent on deepfakes made and disseminated by persons unknown. Some deepfakes may originate outside the United States, as they become a new instrument for foreign interference in U.S. elections.

The Federal Election Commission (FEC) has been asked by …

Independence Reconceived, Claire A. Hill, Yaron Nili

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What makes a director independent? Scholars, regulators, and investors have grappled for decades with the fleeting notion of director independence. Originally conceived as guardians of shareholder interests that could safeguard a corporate board’s ability to check management’s power, independent directors have become a marquee feature of modern corporate governance. But do the corporate actions of directors that are considered “independent” under current standards comport with what we think independence requires? In many cases, the answer would seem to be “no.” From a lack of observable financial impact to the unabated flow of corporate scandals, independent directors seem to keep failing …

The Court’S Morality Play: The Punishment Lens, Sex, And Abortion, June Carbone, Naomi Cahn

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This Article uncovers the hidden framework for the Supreme Court’s approach to public values, a framework that has shaped—and will continue to shape—the abortion debate. The Court has historically used a “punishment lens” to allow the evolution of moral expression in the public square, without enmeshing the Court itself in the underlying values debate. The punishment lens allows a court to redirect attention by focusing on the penalty rather than the potentially inflammatory subject for which the penalty is being imposed, regardless of whether the subject is contraception, abortion, Medicaid expansion, or pretrial detention.

This Article is unique in discussing …

An Empirical Constitutional Crisis: When Magistrate Judges Exercise De Facto Article Iii Power, Edward Adams

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Magistrate judges within the United States district court system have historically been viewed as a means to alleviate the large caseloads faced by district court judges. Magistrate judges issue Reports and Recommendations (R&Rs), wherein they detail the underlying facts, analyze relevant legal issues, and outline a proposed order for district court judges to follow. While district court judges may reject or modify R&Rs submitted to them, district court judges overwhelmingly adopt R&Rs, even after a purportedly de novo determination. In doing so, this Article posits that constitutionally-appointed district court judges are abrogating their Article III constitutionally required role to magistrate …

Process As Suffering: How U.S. Immigration Court Process And Culture Prevent Substantive Justice, Christopher Levesque, Kimberly Horner, Linus Chan

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In this article, we argue that there is a form of double punishment unique to the immigration court system that attorneys and their noncitizen clients must navigate throughout changing political contexts. The first form of punishment is the court process during removal proceedings, and the second form of punishment is removal from the United States. Our interviews with removal defense attorneys in the U.S. Upper Midwest illustrate how these punishments intersect with one another and push attorneys to adopt strategies that may not lead to winning a case, but intend to protect their clients by losing as slowly as possible. …

From Constructive Ambiguities To Structural Contradictions: The Twilight Of The Good Friday Agreement, Chris O'Ralaigh

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The Good Friday Agreement contained a series of constructive ambiguities which were critical to ensuring that it received broad cross-political support. These ambiguities were reflective of the balance of political power of the time. Once institutionalized, they contained an immanent potential to morph in to structural contradictions as the re-balancing of demographic and political power in Ireland moved from latent to manifest status. As the Agreement reaches its 25th anniversary, three outstanding structural contradictions are manifesting, prompted by Brexit and the re-introduction of the ‘Irish question’ in to Irish-British relations. The constitutional status of the North of Ireland, the raison …

International Law Publishing Trends: What Journals Print, Bianca Anderson, Kathleen Claussen

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No abstract provided.

State International Agreements: The United States, Canada, And Constitutional Evolution, Curtis Bradley

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No abstract provided.

As Complexidades Expressivas Da Igualdade Constitucional, Tom Ginsburg

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No abstract provided.

Three Faces Of Creditor-On-Creditor Aggression, Douglas Baird

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No abstract provided.

Levmore On Simple Rules, Richard Epstein

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No abstract provided.

Proper Parties, Proper Relief, William Baude, Samuel Bray

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No abstract provided.

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

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No abstract provided.

Statistical Discrimination, Sonja Starr

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The Supreme Court has emphatically and repeatedly rejected efforts to justify otherwise-illegal discrimination against individuals by resort to statistical generalizations about groups. But practices that violate this principle are pervasive and largely ignored or even embraced by courts, lawyers, and law scholars. For example, many health care fields, in seeming contravention of antidiscrimination statutes, make use of explicitly racialized diagnostic algorithms that make it harder for Black patients to access care than non-Black patients with identical symptoms. Moreover, the justice system itself has embraced numerous similar practices, including demographic and “sociocultural” adjustments of intellectual-capacity assessments for defendants facing the death …

A Meditation On The Thirteenth Amendment And Constitutional Redemption, Darrell Miller

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No abstract provided.

Firearms Law And Scholarship Beyond Bullets And Bodies, Darrell Miller, Joseph Blocher, Jacob Charles

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No abstract provided.

What Do Law Professors Believe About Law And The Legal Academy?, Eric Martinez, Kevin Tobia

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Legal scholarship is replete with debates about competing legal theories: textualism or purposivism; formalism or realism; natural law or positivism; prison reform or abolition; universal or culturally specific human rights? Despite voluminous literature about these debates, great uncertainty remains about which views experts endorse. This Article presents the first dataset of American law professors’ views about legal theory. A study of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding debates.

Law professors also debate questions about the legal academy. These include descriptive questions: Which subjects (for example, constitutional law) and methods (for example, law …

Community Property And Conflict Of Laws: A Cacophony Of Cases, Karen Boxx

Articles

Justice Cardozo is reported to have said that "the average judge, when confronted by a problem in the conflict of laws, feels almost completely lost, and, like a drowning man, will grasp at a straw." Conflict of laws can be vexing, but the resolution of a controversy involving multiple states' marital property systems can quickly become impenetrable. This is in part due to the fundamental conceptual differences between community property and common law marital property paradigms, the inconsistencies in the use of similar terms in the different systems, and the significant differences among the laws of the community property states …

Chefs’ Perspectives Of Failures In Foodservice Kitchens, Part 2: A Phenomenological Exploration Of The Consequences And Handling Of Food Production Failure, Mohamed Fawzi Afifi, J.J. Healy, Mairtin Mac Con Iomaire

Articles

This paper explores the consequences of food production failure (FPF) and its handling in foodservice operations from the perspective of chefs. A phenomenological epistemology and qualitative methodology were followed. Fifteen semi-structured interviews with chefs working in independent restaurants and hotels were carried out using purposive sampling, and employing an emic posture. Interviews were transcribed verbatim, read repetitively, and coded. Thematic analysis yielded themes on the consequences of FPF, on operation and staff, handling failures with kitchen staff, front of the house (FOH), and management. The findings revealed that the major ramification of FPF is financial through food loss. Representing both …

Structural And Spectroscopic Study Of New Copper(Ii) And Zinc(Ii) Complexes Of Coumarin Oxyacetate Ligands And Determination Of Their Antimicrobial Activity, Muhammad Mujahid, Natasha Trendafilova, Georgina Rosair, Kevin Kavanagh, Maureen Walsh, Bernadette Creaven, Ivelina Georgieva

Articles

Tackling antimicrobial resistance is of increasing concern in a post-pandemic world where overuse of antibiotics has increased the threat of another pandemic caused by antimicrobial-resistant pathogens. Derivatives of coumarins, a naturally occurring bioactive compound, and its metal complexes have proven therapeutic potential as antimicrobial agents and in this study a series of copper(II) and zinc(II) complexes of coumarin oxyacetate ligands were synthesised and characterised by spectroscopic techniques (IR, 1H, 13C NMR, UV-Vis) and by X-ray crystallography for two of the zinc complexes. The experimental spectroscopic data were then interpreted on the basis of molecular structure modelling and subsequent spectra simulation …