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Civil Procedure And The New Bar Exam, Jeffrey A. Parness

College of Law Faculty Publications

In 2022 the National Conference of Bar Examiners (NCBE) issued its “Content Scope Outlines” for public comment, soliciting input on “significant oversights. The outlines were designed to inform the public “of the scope of the topics to be assessed in the eight Foundational Concepts and Principles (FCP) and the scope of the lawyering tasks to be assessed in the seven Foundational Skills (FS) on the next generation of the bar exam.” One of the eight FCP was “Civil Procedure” (including constitutional protections and proceedings before administrative agencies).

This comment addresses some “significant oversights” (solicited by the NCBE) on the topic …

Adapting To A 4°C World, Sarah Fox, Karrigan Börk, Karen Bradshaw, Cinnamon Piñon Carlarne, Robin Kundis Craig, Joshua Galperin, Keith H. Hirokawa, Shi-Ling Hsu, Katrina Fischer Kuh, Kevin J. Lynch, Michele Okoh, Jessica Owley, Melissa Powers, Shannon Roesler, J. B. Ruhl, James E. Salzman, David Takacs, Clifford Villa

College of Law Faculty Publications

The Paris Agreement’s goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.

Who Is A Parent? Intrastate And Interstate Differences, Jeffrey A. Parness

College of Law Faculty Publications

When the parental status of one or more people involved in a civil action is contested in a court in the United States, the need for a legal parentage determination arises. In these contests, legal parentage can differ from personally and/or publicly perceived parentage. Legal parentage can also differ by context, as between child custody and child support settings. Legal parentage most often varies by context in a single American state where the purposes behind varying parentage laws differ, as where biology is key in one setting and parental like acts are key in another setting.

Parental status laws are …

Choosing Parentage Laws In Multistate Conduct Cases, Jeffrey A. Parness

College of Law Faculty Publications

This paper explores choosing parentage laws in multistate conduct cases in varying contexts, including cases involving parentage for childcare purpose and for such nonchildcare purposes as tort, probate and child support. Choice of law may be compelled by Full Faith and Credit. Where there is no compulsion, the forum choice of law rules typically apply. These rules, of course, can vary in a single state between contexts, as with parenthood in childcare and in probate settings. These rules can also vary between states in a single context, as with parentage in tort settings. The paper seeks to provide guidance to …

American Constitutions And Artificial Insemination Births, Jeffrey A. Parness

College of Law Faculty Publications

Childcare parentage issues arising from assisted reproduction births are subject to constitutional guidance, including due process, equal protection, and privacy dictates. Constitutional rights, however, sometimes go unrecognized in assisted reproduction laws, particularly for same sex couples, wed and unwed, as well as for single women. Upon a brief review of contemporary American state assisted reproduction laws, current and future constitutional precedents are explored. This analysis shows that constitutional, as well as public policy, reforms are particularly needed for same-sex female couples and single women employing assisted reproduction as intended parents.

Diy Artificial Insemination: The Not-So-Great Gatsby, Jeffrey A. Parness

College of Law Faculty Publications

Increasingly, intended parentage by female couples, married and unmarried, and by single women, is pursued via do-it-yourself (DIY) artificial insemination (AI) that utilizes sperm donors (who may be unknown). A recent ruling illustrates the difficulties arising from incomplete AI statutes. In Gatsby v. Gatsby in 2021, the Idaho Supreme Court determined legal parentage for a child born via AI to a married female couple who later divorced. The Gatsby ruling is troublesome on several fronts. Its problems highlight the difficulties facing intended childcare parents employing AI in the United States, especially for those without significant financial resources and women, coupled …

The Roberts Court And Lost Esi, Jeffrey A. Parness

College of Law Faculty Publications

John G. Roberts, Jr. was confirmed as Chief Justice of the U.S. Supreme Court in September 2005. Since then, there have been two major changes in the Federal Rules of Civil Procedure (FRCP) involving losses of discoverable electronically stored information (ESI). These changes address the duties of preserving some ESI for federal civil litigation and the sanctions available for preservation failures. The changes were embodied in FRCP 37, once in 2006 and once in 2015. The current Rule 37(e) provisions have always been accompanied by other FRCP discovery provisions on ESI, with some predating any version of Rule 37(e). To …

Expanding State Parent Registry Laws, Jeffrey A. Parness

College of Law Faculty Publications

As with state recognized voluntary acknowledgements of parentage (VAPs) and state recognized assisted reproduction pacts (SRARPs) on childcare parentage for future or current children, state parent registries (PRs), often labeled putative paternity registries or putative father registries, embody declarations of expecting or current legal parenthood. Yet declarations on children in PRs often involve unilateral assertions, unlike dual parenthood declarations in VAPs. Actual parenthood under law for many PR declarants is never recognized because there are no simultaneous assertions by a second expecting or existing legal parent on the declarant’s parenthood, as with an assertion by an expecting or existing birth …

The Tangled Web: Teaching The Meaning Of Legal Citations In The Online Age, Matthew L. Timko, Heather J.E. Simmons

College of Law Faculty Publications

Online citations are both a blessing and a curse. On the one hand, a citation embedded in a digital document can usually be retrieved by clicking on a link, but on the other, this process eliminates the need to understand any of the information inherent in the citation. To a law student who has only conducted research online, a legal citation is like a wireless passkey—a random string of characters that has no meaning. It is therefore unsurprising that law students have trouble distinguishing between a statute and a regulation. Citations underpin the entire legal research process, tying everything together …

Privacy Qui Tam, Peter Ormerod

College of Law Faculty Publications

Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes. The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement.

Today, most privacy laws are enforced by governmental regulators—the Federal Trade Commission, the nascent California Privacy Protection Agency, and state attorneys general. An enduring impasse for proposed privacy laws is whether to supplement public enforcement by using a private right of action to authorize individuals to enforce the law.

Both of these conventional enforcement schemes have significant shortcomings. Public enforcement has proven inadequate because …

When A Statute Comes With A User Manual: Reconciling Textualism And Uniform Acts, Gregory A. Elinson, Robert H. Sitkoff

College of Law Faculty Publications

This Article develops an interpretive theory for statutes that originate as Uniform Acts promulgated by the Uniform Law Commission. Although overlooked in the literature on statutory interpretation, state-enacted Uniform Acts are ubiquitous. They shape our life cycles—governing marriage, parentage, divorce, and death—and structure trillions of dollars in daily commercial transactions.

Largely focusing on textualism, today’s dominant form of statutory interpretation, we analyze the interpretive consequences of two unusual features of state-enacted Uniform Acts. First, the text of every Uniform Act directs courts to interpret it to “promote uniformity.” Second, each provision is accompanied by an official explanatory comment, analogous to …

The Guitar Center Bankruptcy: Getting The Band Back Together, Jonathan Jemison, Jacob Moses

Chapter 11 Bankruptcy Case Studies

No abstract provided.

International Application Of Cfaa: Scraping Data Or Scraping Law?, King Fung Tsang

Saint Louis University Law Journal

Web scraping has resulted in a growing number of civil litigations internationally, including claims under the Computer Fraud and Abuse Act (“CFAA”) in the United States. With the Supreme Court’s first ever decision on the CFAA, in Van Buren v. United States, and its granting of LinkedIn’s petition for certiorari in June 2021, the CFAA is expected to attract even more interest among scholars and practitioners. However, little attention has been given to its cross-border ramifications. Cases show that U.S. courts are more than willing to apply the CFAA extraterritorially, even though their analyses are often flawed. In addition, …

Tsai Today (2022), Southern Methodist University, Dedman School Of Law, Tsai Center For Law, Science And Innovation

Tsai Today

No abstract provided.

Mapping Racial Capitalism: Implications For Law, Carmen G. Gonzalez

Faculty Publications & Other Works

The theory of racial capitalism offers insights into the relationship between class and race, providing both a structural and a historical account of the ways in which the two are linked in the global economy. Law plays an important role in this. This article sketches what we believe are two key structural features of racial capitalism: profit-making and race-making for the purpose of accumulating wealth and power. We understand profit-making as the extraction of surplus value or profits through processes of exploitation, expropriation, and expulsion, which are grounded in a politics of race-making. We understand race-making as including racial stratification, …

Viral Sovereignty,Vaccine Diplomacy,And Vaccine Nationalism: The Institutions Of Global Vaccine Access, Sam F. Halabi, Ana Santos Rutschman

Faculty Publications

The COVID-19 pandemic has triggered a global vaccine race. Distributive questions about which countries will receive scarce doses and under which conditions pervade international law and diplomacy. This Article is the first to describe the phenomena that have driven the development of international vaccine-sharing mechanisms, identify the international organizational forces that explain the phenomena, and explain how international organizations may facilitate international cooperation before, during, and after global crises.

This Article explores the longstanding dissociation between global public health imperatives and nationalist responses to pandemics within the frameworks of “vaccine nationalism,” “viral sovereignty,” and “vaccine diplomacy.” The Article then considers …

Section Ii: Gender-Based Violence And The Law, Gavin Patrick Gray, Nidhi Shrivastava, Deepesh Nirmaldas Dayal

English Faculty Publications

This chapter is a transcript of an open-ended discussion that occurred between the authors when they met to discuss the subject matter of the second section of the book, which focuses on the effectiveness of legal responses to gendered violence. As with the previous introductory dialogue, the discussion takes place after preliminary drafts had been completed, and the authors share their thoughts on the subjects they will each discuss in more detail in the following chapters. These include the impact of cultural and gender bias within the Indian legal system, the insufficient impact of long-overdue reforms in Japan's sexual violence …

S11, E05: The Department Of Justice, Nia Rodgers, John Aughenbaugh

Civil Discourse Podcast

Aughie and Nia move on to the next department in the series, the Department of Justice. They discuss the various Attorneys General, the structure of the Department of Justice, and interesting tidbits about the history, political intrigues, and the people who have served within the DoJ.

Cannibalizing The Constitution: On Terrorism, The Second Amendment, And The Threat To Civil Liberties, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

This article explores the links between internet radicalization, access to weapons, and the current threat from terrorists who have been radicalized online. The prevalence of domestic terrorism, domestic hate groups, and online incitement and radicalization have led to considerable focus on the tension between counterterror efforts and the First Amendment. Many scholars recommend rethinking the extent of First Amendment protection, as well as Fourth, Fifth, and Sixth Amendment protections, and some judges appear to be listening. Yet the Second Amendment has avoided this consideration, despite the fact that easy access to weapons is a necessary ingredient for the level of …

Perspectives Of Religious Faith Leaders On Hate Crime Policies, Alphonso Manns

Walden Dissertations and Doctoral Studies

AbstractPrejudice and discrimination stigmatize members of the lesbian gay bisexual transgender and queer (LGBTQ) community as abnormal, which has been attributed to religious opposition and the exercise of ministerial privileges or religious liberty within the law. Religious organizations may indirectly contribute to the public legal rights of members of the LGBTQ community. But little is known about the perspectives of religious faith leaders (RFLs) and how they influence the development and implementation of pro-equality and hate crime policies. The purpose of this study was to explore the experiences of RFLs from one community in a midwestern state. The narrative policy …

Welcoming Address, Siegfried Wiessner

Intercultural Human Rights Law Review

Siegfried Wiessner's (Professor and Intercultural Human Rights Program Director) welcoming address for the 2022 Intercultural Human Rights Law Review Annual Symposium.

The Usa's Engagement With The Un's Human Rights Committee On The Question Of Capital Punishment, Alice Storey

Intercultural Human Rights Law Review

The engagement of the United States of America ("USA') with international human rights is fractious. The U.N. treaty bodies monitor U.N. Member States' implementation of human rights treaties, which takes place through cyclical reviews. The treaty bodies are led by independent human rights experts, and, in recent years, civil society organizations have also been able to submit reports to these reviews. In order to provide an example of how the USA interacts with international human rights, this article uses the case study of the USA's engagement with the Human Rights Committee (the Committee) on the question of capital punishment. The …

Stop The Steal: The History Of Voter Suppression In America, And Who Is Really Stealing Votes?, Cheryl T. Page

Intercultural Human Rights Law Review

President Barack Obama once quipped, "elections have consequences." It is clear that 245 years later, the Founding Fathers understood the implications of voting and the weight it carries. These men knew that to maintain power, they would have to limit the people that would have the ability to vote. These fifty-six men who represented the new thirteen colonies met on July 4, 1776, to sign what would be called the Declaration of Independence. In part are the words: "[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain …

The Dean's Welcome Address (2022 Intercultural Human Rights Law Review Symposium), Tamara F. Lawson

Intercultural Human Rights Law Review

Dean Tamara F. Lawson's welcome address for the 2022 Intercultural Human Rights Law Review Annual Symposium.

Pyrrhic Defeat Theory: The Lucrative Failure Of Prison Privatization, Abdy Javadzadeh

Intercultural Human Rights Law Review

This paper examines the present criminal justice system in the United States and specifically the privatization of the prison system by using Professor Jeffery Reiman's Pyrrhic Defeat Theory to decipher and dissect the privatization of the prison system. Further, this theory will be used to explain such severe social control measures for not only the purposes of profit maximization on behalf of private corporations building, managing, and writing prison policy, but to concretize the existing racial and class structure in the U.S. Using Pyrrhic defeat theory (success through failure), one could expound the intentions and consequences of American privatization of …

Miscarriage Of Justice: Early Pregnancy Loss And The Limits Of U.S. Employment Law, Laura T. Kessler

Utah Law Faculty Scholarship

This Article explores judicial responses to miscarriage under federal employment law in the United States. Miscarriage is an incredibly common experience. Of confirmed pregnancies, about fifteen percent will end in miscarriage; almost half of all women who have given birth have suffered a miscarriage. Yet this experience slips through the cracks of every major federal employment law in the United States.

The Pregnancy Discrimination Act of 1978, for example, defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Family and Medical Leave Act of 1993 requires covered employers to provide employees with …

Front Matter

Lewis & Clark Law Review

No abstract provided.

Protecting The Sublette Antelope Migration: An Analysis Of The Evolution Of The Legal Tools Employed To Protect The Sublette Antelope Herd From Fencing Obstructions, Colin Reynolds

Lewis & Clark Law Review

A biological marvel of the natural world, each year a small herd of pronghorn antelope—called the Sublette herd—migrate over 300 miles through a mix of public and private land in Wyoming. The Sublette herd’s annual movement constitutes one of the largest remaining “big game” migrations within the continental United States. Unfortunately, this migration faces an increasing number of obstacles threatening its long-term viability; chief among them being fencing obstacles. This Comment examines the evolution of the legal tools the federal government, the state of Wyoming, and everyday citizens can use to protect the Sublette herd’s migration.

Submission To The Province Of Nova Scotia On Its Review Of The Intimate Images And Cyber-Protection Act - Leaf, Suzie Dunn, Rosel Kim

Reports & Public Policy Documents

The Women’s Legal Education and Action Fund (LEAF) commends the Nova Scotia government for reviewing its Intimate Images and Cyber-protection Act (the Act) and seeking public input for this review. Nova Scotia has been, and continues to be, a leader in Canada for its role in advancing innovative laws and supports for people targeted by technology-facilitated violence (TFV), digital abuse, and the non-consensual distribution of intimate images (NCDII). As these forms of harmful behaviour evolve and become better understood, it is important to revisit this legislation to assess whether it is providing meaningful and accessible responses to such serious social …

Wage Recovery Funds, Elizabeth Ford

Faculty Articles

Wage theft is rampant in the US. It occurs so frequently because employers have much more power than workers. Worse, our main tool for preventing and remedying wage theft – charging government agencies with enforcing the law -- has largely failed to mitigate this power differential. Enforcement agencies, overburdened by the magnitude of the wage theft crisis, often settle cases for nothing more than wages owed. The agency, acting as broker for the payment of the wages owed, voluntarily foregoes both interest and statutory penalties. This is a bad deal for workers, but not just because they do not get …