Digital Commons Network^™

Clean Water Act Jurisdiction Over Groundwater Discharges After County Of Maui V. Hawaii Wildlife Fund, Jocelyn Lee

Fordham Law Review

The Clean Water Act is the principal federal law aimed at controlling pollution of the nation’s water resources, yet it does not provide comprehensive oversight of pollutants entering groundwater, the subsurface water that often feeds into rivers, lakes, and oceans. This Note examines a recent Supreme Court decision, County of Maui v. Hawaii Wildlife Fund, which appeared to endorse a theory of federal regulation of groundwater discharges under the Clean Water Act. County of Maui established a “functional equivalent” standard, under which a discharge through groundwater is subject to the Clean Water Act’s permitting requirements if it is the functional …

Race And Policing: Some Thoughts And Suggestions For Reform, Solomon Oliver Jr.

Fordham Law Review

No abstract provided.

If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll

Fordham Law Review

No abstract provided.

Who Needs Adverse Possession?, Nadav Shoked

Fordham Law Review

Adverse possession is one of property law’s most central doctrines. Yet, this Article contends, the need it answers has been largely misunderstood. Adverse possession’s doctrinal effects are clear—and stark: when its requirements are met, an owner loses her land to an invader. To explain a doctrine instituting such a radical result, scholars resort to property law’s major philosophical theories. These theories, they argue, at times demand that an owner lose her land to another person who is more committed to that land. The problem with these prevailing justifications of adverse possession, this Article shows, is that they imagine a very …

Affirmative Immunity: A Litigation-Based Approach To Curb Appellate Courts’ Raising Qualified Immunity Sua Sponte, Michael E. Beyda

Fordham Law Review

Qualified immunity, to put it simply, provides public officials with immunity from civil lawsuits if they have violated an individual’s constitutional rights under their official authority and those rights were not “clearly established” at the time of the official’s actions. The doctrine has evolved into an elaborate framework that has plagued civil rights plaintiffs, as well as courts, for decades. Qualified immunity is an affirmative defense, and affirmative defenses are waived if not raised appropriately by the defendant. Moreover, issues that are not properly raised before the trial court, including affirmative defenses, are generally not considered for the first time …

Transgender Inmates’ Right To Gender Confirmation Surgery, Marissa Luchs

Fordham Law Review

The Eighth Amendment prohibits cruel and unusual punishment. It ensures that the state’s power to punish is exercised within the bounds of evolving standards of human decency. At the time of its enactment in 1791, the Eighth Amendment merely protected against torture and other physically barbarous treatments. However, as society’s standards of decency changed, so too did the scope of the Eighth Amendment. Today, among other protections, the Eighth Amendment mandates that prisons provide inmates with adequate conditions of confinement. This includes an obligation on the part of the prison to provide adequate medical care. But a great deal of …

The Sunset Of The Holocaust Expropriated Art Recovery Act Of 2016 And The Rise Of The Demand And Refusal Rule, Fallon S. Sheridan

Fordham Law Review

During World War II, hundreds of thousands of works of art were confiscated by Nazis under the direction of Adolf Hitler or sold for less than market value by members of the Jewish community fleeing Nazi Germany. Shockingly, an estimated 100,000 of the 600,000 works that were taken are still missing today. In recognition of the need for laws that adequately assist original owners (and their heirs) in recovering these works of art, the U.S. Congress passed the Holocaust Expropriated Art Recovery Act of 2016 (“the HEAR Act”). The HEAR Act supplanted state statutes of limitations for Naziconfiscated artwork with …

Take Note: Teaching Law Students To Be Responsible Stewards Of Technology, Kristen E. Murray

Catholic University Law Review

The modern lawyer cannot practice without some deployment of technology; practical and ethical obligations have made technological proficiency part of what it means to be practice-ready. These obligations complicate the question of what constitutes best practices in law school.

Today’s law schools are filled with students who are digital natives who don’t necessarily leverage technology in maximally efficient ways, and faculty who span multiple generations, with varying amounts of skepticism about modern technology. Students are expected to use technology to read, prepare for class, take notes, and study for and take final exams. Professors might use technology to teach or …

There’S A Pro-Abortion Rights Case To Be Made For Keeping The Hyde Amendment, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

How To Look Like A Lawyer, Ann Juliano

Journal of Civil Rights and Economic Development

(Excerpt)

Law schools often claim that they are teaching students “how to think like a lawyer.” What is less touted, however, is that students are learning how to look like a lawyer. They receive this message from multiple sources (faculty, alumni, peers, the career office) concerning a variety of situations: class, interviews, moot court, trial team, symposia and conferences. For law students who are first generation, these sources may be the only avenue (apart from the entertainment industry) of determining how to look like a lawyer. For law students who are transgender or gender non-binary, dress code advice dispensed along …

What To Do About The Coming Crisis In The Rule Of Law, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Federal Income Tax: Reduction Of Par Value Of Stocks Is Not A Partial Liquidation Of Corporation, W. T. Stockton Jr.

Florida Law Review

No abstract provided.

Criminal Law: Temporary Insanity Produced By Voluntary Intoxication, Russell H. Mcintosh

Florida Law Review

No abstract provided.

Constitutional Law: A Violation Of Bill Of Rights By Federal Agents Is Not An Actionable Wrong Per Se, Elbert B. Griffis Jr.

Florida Law Review

No abstract provided.

Attorney And Client: What Constitutes Practice Of Law By An Accountant?, Michel G. Emmanuel

Florida Law Review

No abstract provided.

Adverse Possession: Sufficiency Of Allegations In Bill Of Particulars To Show Intent To Claim Adversely, Allen Crouch

Florida Law Review

No abstract provided.

Liability Of Abstracters To Third Parties For Omissions In The Abstract, John R. Hoehl

Florida Law Review

No abstract provided.

Problems In Florida And Other Coastal States Caused By The California Tidelands Decision, Julius F. Parker

Florida Law Review

No abstract provided.

The Doctrine Of Recrimination In Florida, J. Allen Smith

Florida Law Review

No abstract provided.

Probate Claims In Florida, James R. Wilson, E. Martin Mcgehee

Florida Law Review

No abstract provided.

Commentary To Professor Moll's Presentation, Brian Krumm

Scholarly Works

No abstract provided.

Essays On Decision-Making Authority In The Courtroom, Grant Alexander Nunn

Yale Graduate School of Arts and Sciences Dissertations

My dissertation explores how practice, procedure, and the allocation of decision-making authority in the courtroom affect decisional accuracy, efficiency, and legitimacy. It includes a set of theoretical and empirical projects that propose normatively desirable solutions to the problems caused by relying on an entrenched—and, in many ways, antiquated—adjudicatory regime to resolve modern issues of evidence and courtroom epistemology. The first essay, Law, Fact, and Procedural Justice, embarks from a recognition that the distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends …

The Case For A Climate-Smart Update Of The Africa Mining Vision, Perrine Toledano, Martin Dietrich Brauch, Karan Bhulwaka, Kojo Busia

Columbia Center on Sustainable Investment Staff Publications

The 2009 Africa Mining Vision (AMV) provides guidance for the industrialization of African countries by leveraging their mining sector. However, the global context has changed since its adoption. As a result, it does not include guidance on how governments should embrace the climate change agenda as an opportunity for better and further industrialization, deeper linkages, and sustainable development.

There are many ways to look at the implications of international climate change policy for Africa, including through the increased extraction of minerals needed in clean energy application and the greening of mines. The localization of global value chains – induced by …

The Lawyer: Spring 2021, Seattle University School Of Law

Lawyer

No abstract provided.

“Am I Wrong To Want Justice?”: How J. M. Coetzee’S Disgrace Forces Readers To Think Through The Problem Of Law, Nicholas Langenberg

Masters Theses

Since the publication of J. M. Coetzee’s first post-apartheid novel, Disgrace, a number of scholars have noted the ways that this text encourages its readers to re-think their understanding of law. Many other scholars have also noted the ways that Disgrace explores the ideas of French philosopher Gilles Deleuze. However, up until this point, there has been no analysis written that considers the legal explorations of Disgrace alongside the legal philosophies of Deleuze, and in this thesis, precisely such an analysis will be offered.

By considering these two bodies of work in light of one another, it will be …

Legal Research & Writing: An Undergraduate Pre-Law Course Design, Rachel Kathleen Strieber

Senior Theses

The purpose of this project-based thesis is to develop an undergraduate pre-law course that teaches legal research and writing (LRW) and to design its respective description, topics, reading materials, sample syllabus document, and a sample lesson plan. The research portion of this thesis will study the pedagogy of LRW and the connection between LRW skills and the students’ success in law school and careers in law. Preparing students to excel in LRW skills prior to law school through the proposed undergraduate pre-law LRW course will yield a stronger performance in a first-year law LRW course to follow and amplify students’ …

A Case Study Of Private School Choice And Education Litigation In South Carolina: Safe Grants And Adams V. Mcmaster (S.C. 2020), Lyndsey Katherine Ebener

Senior Theses

The ideology behind private school choice endures in South Carolina. Arguments for parental choice have resurfaced periodically throughout the state’s history, particularly in moments of “crisis.” The current “crisis” moment is the COVID-19 pandemic, which created a perfect storm for the private school choice movement to gain momentum. When Governor McMaster received South Carolina’s emergency education relief funds, he capitalized on this movement with his proposed SAFE Grants program. His intention was for the SAFE Grants program to provide support through one-time tuition grants to low-income families who have children in private schools. Governor McMaster’s announcement incited an overwhelming media …

Reconstructing State Republics, Francesca L. Procaccini

Fordham Law Review

Our national political dysfunction is rooted in constitutionally dysfunctional states. States today are devolving into modern aristocracies through laws that depress popular control, entwine wealth and power, and insulate incumbents from democratic oversight and accountability. These unrepublican states corrupt the entire United States. It is for this reason that the Constitution obligates the United States to restore ailing states to their full republican strength. But how? For all its attention to process, the Constitution is silent on how the United States may exercise its sweeping Article IV power to “guarantee to every State in this Union a Republican Form of …

“The Rule Of The Strong, Not The Rule Of Law”: Reexamining Implicit Divestiture After Mcgirt V. Oklahoma, Joseph Palandrani

Fordham Law Review

In McGirt v. Oklahoma, the U.S. Supreme Court found that the boundaries of the Muscogee (Creek) Nation, which were set in 1866 and which encompass a large swath of present-day Oklahoma, remain intact. Although non-Indigenous people had settled on the land in droves by the early twentieth century, the Court held that the land remains “Indian Country” until Congress explicitly indicates otherwise. Because Congress never so indicated, the reservation is undiminished. McGirt marked a massive shift in the Court’s approach to the question of whether reservation boundaries remain in force; demographic history had previously figured prominently in the Court’s rulings …

Matthew Steilen: Canon, Anticanon, And Anti-Canonization In Constitutional Law, Matthew Steilen

Baldy Center Blog

A “canon” is a set of writings generally regarded as the most authoritative, important, or well-executed of their kind. When law teachers speak of a “canon,” they usually mean a standard set of cases that forms the basis of an acceptable curriculum in their field. We teach our subjects from the canon. In my field, Constitutional Law, its principal members include Marbury, Gibbons, McCulloch, Youngstown, and Brown