Digital Commons Network^™

State Constitutional Prohibitions Of Slavery And Involuntary Servitude, Michael L. Smith

Faculty Articles

In recent years, the Thirteenth Amendment has drawn sustained criticism for its “Punishment Clause,” which exempts those duly convicted of criminal offenses from the Amendment’s prohibition of slavery and involuntary servitude. Citing the Punishment Clause, courts have struck down challenges by those sentenced to forced labor, arguing that such involuntary servitude is explicitly permitted for those convicted of crimes. Recent criticism draws on concerns over mass incarceration and expansive forced labor practices—urging that the Thirteenth Amendment be revised to remove the Punishment Clause.

Prompted by increased attention to and criticism of the Punishment Clause, some states have taken matters into …

Language Models, Plagiarism, And Legal Writing, Michael L. Smith

Faculty Articles

Language models like ChatGPT are the talk of the town in legal circles. Despite some high-profile stories of fake ChatGPT-generated citations, many practitioners argue that language models are the way of the future. These models, they argue, promise an efficient source of first drafts and stock language. Others make similar claims about legal writing education, with a number of professors urging the acknowledgment of language models. Others go further and argue that students ought to learn to use these models to improve their writing and prepare for practice. I argue that those urging the incorporation of language models into legal …

Constitutional Interpretation And Zombie Provisions, Michael L. Smith

Faculty Articles

The United States Constitution and state constitutions contain numerous zombie provisions, including language restricting marriage to relationships between one man and one woman, voter literacy test requirements, disqualification of atheists from serving in office or testifying as witnesses, and pervasive gendered language restricting rights and offices to men alone. Though these provisions are unenforceable due to subsequent amendment, determinations of federal unconstitutionality, or preemption by federal laws, they live on in constitutional text.

This Article addresses the danger of these zombie provisions that has, thus far, been overlooked the prospect that zombie provisions may influence the interpretation of still-living constitutional …

The Evolution Of Race-Based Admissions In American Higher Education, Chenglin Liu

Faculty Articles

This Article examines the Supreme Court’s evolving position on race-based admissions policies over the past 127 years. Between Plessy and Brown, universities used race-based policies to exclude black applicants from white universities. Brown shifted admissions policies from blocking black students to accepting them. As affirmative action gained momentum, universities escalated from merely accepting minority candidates to proactive recruitment by using quotas and lowering their admissions standards. The Court in Bakke set the ground rules for race-based admissions during that period. In 2003, Grutter upheld the university’s pursuit for a “critical mass” of minority students in its entering class. Two …

Is The Women's Treaty A Paper Tiger? Indian Courts' Application Of The United Nations Treaty, Amanda L. Stephens

Faculty Articles

This Article examines whether the United Nations ("U.N.") Treaty, the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW'), is a "paper tiger"-a law that seems powerful but is in fact weak and ineffectual. While some scholars question the Treaty's effectiveness based on statistical studies, others point to legal reforms in state parties as evidence of its success. Neither provides a nuanced middle ground by examining the CEDAW at a micro rather than a macro level. This Article fills this gap by conducting a qualitative analysis of 10 Indian judicial opinions. Specifically, the Article explores how the …

Corporate Takeover: A New Clash In The Old Struggle Between Corporate Rights And Public Health, John J. Locurto, Rachel Radke, Xyruz Villariz, Jasmine Ann Castillejos

Faculty Articles

Corporations have used the federal courts to secure many of the same constitu­tional rights as individuals. As corporate rights proliferate so does corporate power to influence and resist laws that protect the public. One such law is the Patient Protection and Affordable Care Act—legislation that reformed health insurance coverage with important implications for public health.

The ACA has been a frequent target of litigation. Recent corporate lawsuits have invoked the Religious Freedom Restoration Act to challenge the ACA’s preventive care mandate, which requires health plans to cover preventive services without cost sharing. In Braidwood Management, Inc. v. Becerra, a …

Consumer Privacy And The Dobbs Disruption, Mason R. Clark

Faculty Articles

The right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women's Health Organization, the Supreme Court's 2022 decision that overruled Roe v. Wade's constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy laws that …

Effects Of Two Exercise Programs On Neck Proprioception In Patients With Chronic Neck Pain: A Preliminary Randomized Clinical Trial, Leila Rahnama, Mark Daniel Geil

Faculty Articles

Background: The purpose of this study was to compare the effects of specific neck muscle training and general neck-shoulder exercises on neck proprioception, pain, and disability in patients with chronic non-specific neck pain. Methods: Twenty-five patients with chronic non-specific neck pain were recruited into this preliminary single-blinded randomized clinical trial. They were randomly assigned to either a specific neck exercise (n = 13, mean aged 24 years) or a general neck exercise group (n = 12, mean aged 25 years). Specific neck exercises included eye-head coordination and isometric deep neck muscle exercises. General neck exercises included neck and shoulder free …

Use Of Immigration Status For Coercive Control In Domestic Violence Protection Orders, Deirdre M. Bowen

Faculty Articles

In the context of domestic violence (DV), immigration-related circumstances can be exploited by an abuser to coerce and manipulate their partner. Using an intersectional structural framework, we examine how social structures overlaid with immigration-specific experiences operate to further enhance opportunities for abuse against immigrant women. We conducted a textual analysis to identify how socially constructed systems interact with a victim-survivor’s immigration status to introduce more tools for abusers to engage in coercive control and/or acts of violence in a random sample of petitioners (i.e., victim-survivors) who were granted a Domestic Violence Protection Order (DVPO) in King County, WA (n = …

Racial Justice And Marijuana, Steven Bender

Faculty Articles

Current legalization approaches for recreational marijuana fall short of performing and delivering racial justice as measured by materiality and outcomes rather than promises of formal legal equality. As a small first step for unwinding the War on Drugs, this Article considers how legalizing recreational marijuana can help move law and society toward true racial justice, measured by material and actual outcomes for systemically subordinated groups. In the same way that criminalization of marijuana was one of the tools for racial control, legalization of marijuana can be a revenue-based tool toward an anti-subordination future of material equality. While recognizing the shortcomings …

Long Covid & Antidepressants, Rafael Rivas-Vázquez, Enrique J. Carrazana, Mark A. Blais, Gustavo J. Rey, Emma Rivas-Vázquez, Alan Quintana

Faculty Articles

Three years into this historic pandemic, the scientific and healthcare communities continue to learn a great deal regarding COVID-19, the disease that is produced by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The most urgent and immediate focus has been on vaccine development for disease prevention/mitigation and on identification of effective therapeutic interventions for acute phase of illness. However, attention is increasingly being placed on formulating treatment strategies for individuals who are post-COVID-19 and experiencing a syndrome of persistent cognitive, somatic and behavioral symptoms that is being referred to as long COVID. In addition to identifying novel compounds that …

What Drives Opposition To Suicide? Two Exploratory Studies Of Normative Judgments, Justin F. Landy, Pritika Shah

Faculty Articles

The act of suicide is commonly viewed as wrong in some sense, but it is not clear why this is. Based on past empirical research and philosophical theorizing, we test ten different explanations for why suicide is opposed on normative grounds. Using a within-subjects design, Study 1 showed that seven out of ten manipulations had significant effects on normative judgments of suicide: time left to live, lack of close social relationships, a history of prior immoral behavior, the manner in which the suicide is committed, painful, incurable medical issues, impulsive decision-making, and the actor’s own moral-religious background. However, in all …

Dynamic Tort Law: Review Of Kenneth S. Abraham & G. Edward White, Tort Law And The Construction Of Change: Studies In The Inevitability Of History, Catherine M. Sharkey

Faculty Articles

Rarely does a book — let alone one on torts — come along with true staying power. Tort Law and the Construction of Change is such a book. It stopped me in my tracks when I first read it, and it has been a book to which I have returned again and again while teaching torts and probing new research projects. With Tort Law and the Construction of Change, Professors Kenneth Abraham and G. Edward White, who have inspired generations of torts students and scholars, have truly energized and inspired this nearly twenty-year veteran in the field. Abraham and White …

Losing Levarage: Employee Replaceability And Labor Market Power, Cynthia Estlund

Faculty Articles

Workers’ labor market power matters enormously to their lives at work and beyond. And most workers have too little of it. This Essay highlights one underappreciated set of factors in the decline of workers’ labor market power and explores policy levers that might help to rebalance the bargaining field. This Essay begins with the fairly self-evident observation that workers’ labor market power is a product in part of the ease with which employers can replace employees. That points to the importance of several trends in the organization and technology of work—including both fissuring and automation—that make it easier for private …

White Cities, White Schools, Erika K. Wilson

Faculty Articles

Across the country, violent tactics were employed to create and maintain all-white municipalities. The legacy of that violence endures today. An underexamined space in which that violence endures is within school districts. Many school district boundary lines encompass geographic areas that were created as whites-only municipalities through both physical violence and law. Yet principles that inform how school district boundary lines are drawn fail to account for the harms engendered by geographic spaces that are formerly whites-only municipalities. Legal doctrine and public policies also fail to capture the significance of the historical violence in considering the constitutionality and normative propriety …

The Adjudicative State, Adam B. Cox, Emma Kaufman

Faculty Articles

Over the last decade, the Supreme Court has advanced a new vision of the administrative state. The two commandments of administrative law in the Roberts Court are to give the President control over the executive branch and to separate government functions into their proper branches. Scholars often describe these two principles as related pieces of a broader effort to shift policymaking toward elected officials and strip power from the civil service. In the standard account, unitary executive theory and separation-of-powers formalism are complementary ideas, which reflect the Court’s skepticism about bureaucratic governance. This Feature questions that consensus. It argues that …

The Master's Tools And A Mission: Using Community Control And Oversight Laws To Resist And Abolish Police Surveillance Technologies, Vincent M. Southerland

Faculty Articles

The proliferation and use of technology by law enforcement is rooted in the hope that technological tools can improve policing. Improvement, however, is relative. Quantitative data and qualitative experience have proven the criminal legal system a site of racial injustice and rank brutality. Police are one of the principal instruments of those harms. For the communities who bear the brunt of policing and the other facets of the criminal system, law enforcement technologies only reify and exacerbate injustice. Surveillance technologies are of particular concern because they are disproportionately wielded against economically disadvantaged communities of color, infringe on privacy, and tend …

A Tribute To R. Kent Greenawalt: A Most Kind And Thoughtful Colleague, Jeremy Waldron

Faculty Articles

Professor Kent Greenawalt was a kind and exceedingly thoughtful man. To sketch out the life he led is to reflect on the nature of those virtues, for the traits I have mentioned were connected with one another. His thoughtfulness was conveyed in the gentlemanly quality of his personal and collegial interactions. He always cared how his colleagues were faring and he showed quiet concern when someone was ill, for example, or when things were not going well for them. Kent’s personal kindness carried over, too, into the way he participated in debates about law and legal theory. He always listened …

Publicizing Corporate Secrets, Christopher J. Morten

Faculty Articles

Federal regulatory agencies in the United States hold a treasure trove of valuable information essential to a functional society. Yet little of this immense and nominally “public” resource is accessible to the public. That worrying phenomenon is particularly true for the valuable information that agencies hold on powerful private actors. Corporations regularly shield vast swaths of the information they share with federal regulatory agencies from public view, claiming that the information contains legally protected trade secrets (or other proprietary “confidential commercial information”). Federal agencies themselves have largely acceded to these claims and even fueled them, by construing restrictively various doctrines …

Polysemy And The Law, Daniel J. Hemel

Faculty Articles

Polysemy — the existence of multiple related meanings for the same word or phrase — is a frequent phenomenon in legal and lay language. Although polysemy sometimes arises by accident, it also can be strategic: framers of legal rules can advance private and public interests by assigning meanings to terms that are different from — though connected to — the meanings that those terms carry outside the law. Understanding the functions of polysemy can help us design more effective legal rules and can shed light on ways in which legal actors translate language into power. This Article undertakes a comprehensive …

Policy's Place In Pedestrian Infrastructure (Book Review), Michael L. Smith

Faculty Articles

Angie Schmitt's Right of Way: Race, Class, and the Silent Epidemic of Pedestrian Deaths in America delves into the complex, multi-layered phenomenon of how traffic infrastructure and policies systematically disadvantage pedestrians and contribute to thousands of deaths and injuries each year. Despite the breadth of the problem and its often-technical aspects, Schmitt presents the problem in an engaging and approachable manner through a step-by-step analysis combining background, statistics, and anecdotes.

While Right of Way tends to focus on infrastructure design, it offers much for legal scholars, lawyers, and policymakers. Schmitt addresses several policy issues at length in the book. But …

Education As Childcare, Caitlin Millat, Melissa Murray

Faculty Articles

American parents have their feet in two camps: one, the vast, state-sponsored project of education, and another, the highly privatized world of childcare. Much has been made of the fact that there are few public supports for families and childcare. But what often goes unstated is that the provision of public education effectively serves as a significant “care” subsidy. To be sure, most are loath to frame public education in this way, but as the recent COVID-19 pandemic lays bare, in fact, the provision of public education does serve as critical childcare scaffolding for families, enabling workplace participation and productivity. …

Mothers In Law, Melissa Murray

Faculty Articles

This Review proceeds in three parts. Part I discusses Civil Rights Queen, focusing on the double bind that shadowed Motley’s professional life. Race and gender shaped Motley’s career trajectory, and Motley’s role as a civil rights litigator shaped impressions of her within the civil rights movement and, later, within the federal judiciary. Part II then focuses on Brown-Nagin’s choice to foreground Motley’s efforts to balance her responsibilities as a wife and mother alongside her trailblazing legal career. In balancing work and family, Motley defied the conventional notion that a woman’s universe was cabined to the domestic sphere. Still, Motley hewed …

The Past And Future In International Patent Law, Rochelle C. Dreyfuss

Faculty Articles

The organizers of the 2022 International Law Weekend asked us to consider how our fields have changed in the last century and to offer our thoughts about the future. For intellectual property, the changes have been formidable. The Industrial Revolution gave way to an Information Revolution. As a result, knowledge products now constitute a significant share of global wealth. And as the world increasingly endurescrises like the recent pandemic, climate change, and food and energy insecurity, technological information will become even more important — indeed, crucial to the survival of the planet. My own field is international patent law, where …

This Is Not Your Grandparents' Military Justice System: The 2022 And 2023 National Defense Authorization Acts, David A. Schlueter, Lisa M. Schenck

Faculty Articles

Despite the major reforms to the American military justice system in the 2016 Military Justice Act, the drumbeat for reform has continued. One of the most-often heard calls for reform over the last decade has suggested removing commanders from the military justice system. Some have argued that a command-centric military justice system was outdated, and it was time to make the system look more like the Federal criminal procedure system. Other critics have advocated for a military justice system that looks more like those of our allied nations. This article briefly addresses the 2022 and 2023 NDAA changes to the …

A Tribute To Gerald S. "Geary" Reamey, Michael Ariens

Faculty Articles

Geary Reamey began teaching at St. Mary's University School of Law in the Fall 1982 semester. He will have taught for forty-one years at St. Mary's when he retires in May 2023. Geary is known throughout Texas for his work, both as a speaker and as a writer, educating lawyers and judges about Texas criminal law and procedure. He is known among St. Mary's Law alumni for creating and operating, along with the late John Schmolesky, a vibrant criminal law and procedure curriculum, including the first-year Criminal Law course.

"Grossly Negligent Utilities," "Unimaginable Property Damage" And The Scope Of Liability Insurers' Duty To Indemnify Subrogated Property Insurers - Probative And Empirical Inferences From Courts' Divided Subrogation And Indemnification Decision, Willy E. Rice

Faculty Articles

Each year, extreme weather, natural disasters and allegedly "grossly negligent" investor-owned utilities concurrently destroy property, persons and lives. In the wake, billions of dollars are lost. Given utilities' general immunity under the judicially created filed-rate or filed-tariff doctrine, residential and commercial owners are precluded from filing ordinary negligence actions against utilities. Thus, many injured consumers try to settle their property-loss claims with their insurers. Some property insurers satisfy the "make-whole" doctrine and cover all losses. Most insurers, however, refuse to settle any claim. Or, they partially compensate the insureds. Yet, an overwhelming majority of property insurers are increasingly filing subrogation …

Lawyerless Law Development, Colleen Shanahan, Jessica Steinberg, Alyx Mark, Anna Carpenter

Faculty Articles

State civil courts are the object of growing scholarly attention converging from two directions: rapidly expanding research regarding lawyerless state civil trial courts, and an increasing volume of voices calling for state supreme courts to serve as a balm for American democracy’s wounds. The challenges of lawyerless trial courts and the potential of state supreme courts converge when considering how law develops in state civil courts. We and others have asserted that law development is not happening in lawyerless courts, at least not in the way that American legal scholars conventionally understand law development. This Essay explores the core theoretical …

Asymmetries, Norm Matching, And The Pursuit Of Equity Between The Police And The Public, Eang Ngov

Faculty Articles

Concerns about police abuse and overcriminalization are on the forefront of public conscientiousness. In spite of the Black Lives Matter movement and calls for police reform, law enforcement officials enjoy a variety of criminal procedure loopholes and double standards, which the United States Supreme Court has ratified through its creation of the open fields, mistake of law, and third party doctrines, as well as its acceptance of deceptive police practices. This Article analyzes the asymmetries between permissible civilian conduct and permissible police conduct to make a broader, systemic critique of the double standards and loopholes that pervade constitutional criminal procedure. …

Distilling The Language Of The Law, Stacey A. Tovino

Faculty Articles

No abstract provided.