Law Commons^™

Specialization And The Permanence Of Federal Bankruptcy Law, Rafael I. Pardo

Scholarship@WashULaw

Traditional historical accounts posit that federal bankruptcy specialization in the United States first developed under the system established by the Bankruptcy Act of 1898. That view assumes that the structural and temporal conditions necessary to foster specialization did not exist under the nation’s earlier federal bankruptcy systems—those created by the Bankruptcy Acts of 1800, 1841, and 1867. This Article theorizes that federal bankruptcy specialization very likely occurred under the pre-1898 systems and marshals evidence to that effect, primarily focusing on the Bankruptcy Act of 1841 (the 1841 Act). That statute marked a critical turning point in federal bankruptcy law, shifting …

The Elusive Nexus Standard: Differing Approaches To The Asylum Nexus Standard As Applied To Religious Persecution Perpetrated By Gangs, Chloe Schalit

American University Journal of Gender, Social Policy & the Law

In 2015, Ms. Odalis Mireida Chicas-Machado, the secretary of an evangelical church in El Salvador, started getting harassed by members of the MS-13 gang during her walks to and from the church. Chicas-Machado believed that the harassment began because the gang considered her to be an enemy due to her work spreading the message of God to young people who otherwise might have joined the gang. Approximately one year after the harassment commenced, gang members threatened Chicas-Machado with death if she refused to alert the gang when police cars drove by a local store. The gang sought out Chicas-Machado for …

Who Makes The Jury? Demographics And Decision-Making In The Jury Process., Ana B. Pons

Honors Undergraduate Theses

Within the American judicial system, juries have played a central role in promoting representation and fairness in the courtroom. However, limited information exists on whether prosecutorial decisions during jury selection, jury composition, or jury behavior differ based on the sex, race/ethnicity, type of case, political ideology, or geographic location of potential jurors. Following PRISMA guidelines, this scoping review synthesizes 48 peer-reviewed articles published between the 1940s and 2026 to examine whether prosecutorial decision-making and jury outcomes vary based on the sex, race/ethnicity, type of case, political ideology, or geographic location of potential jurors. Findings indicated that men are disproportionately selected …

Eroding Protections: The Decline Of Miranda Rights And Its Impact On Due Process In Contemporary America, Autumn G. Pelfrey

Honors Undergraduate Theses

This thesis examines whether the protections established in Miranda v. Arizona, 384 U.S. 436 (1966), remain robust within contemporary criminal justice practice or have been weakened through doctrinal and practical developments. Miranda warnings were originally designed to mitigate the risk that coercive custodial interrogation would produce compelled or unreliable self-incrimination. Since 1966, however, both judicial interpretation and evolving law-enforcement practices have created a growing gap between Miranda’s formal legal promise and its practical operation in real-world interrogations.

The study evaluates the erosion of Miranda’s protective force through three primary mechanisms. First, doctrinal developments have narrowed Miranda’s scope by redefining …

Reconstituting A Constitution, And A Republic: The Architecture Of Authoritarian Rule, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

A constitution can be remade without tearing it down, or even changing a single word. It is done by law. It is being done now—by the Supreme Court.

In each case, real people win, real people lose, real people suffer. Outcomes matter. But across the span of cases, the Court is tearing down our constitutional order of divided power—taking authority from the courts below, from Congress, the agencies, the states, and us, the people—and building a structure of unchecked power in itself. Procedure and remedies are constitutive of the judicial power. In a time of authoritarian threat, they are the …

Clean Hands, Dirty Money, And The Codification Of Sec Disgorgement, Stephanie Palma

Fordham Law Review

Disgorgement is the U.S. Securities and Exchange Commission’s (SEC) most powerful enforcement tool and among its most controversial. For decades, federal courts treated disgorgement in securities enforcement actions as an equitable remedy, a view that the U.S. Supreme Court confirmed in Liu v. SEC. Months after Liu, Congress passed the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, which codified disgorgement in SEC enforcement actions. The codification of disgorgement sparked a circuit split between the U.S. Courts of Appeals for the Fifth and Second Circuits over whether Congress created a new statutory form of …

The Spectrum Of Limited Jurisdictions Courts: Exploring The City And Justice Courts In New York State, Alyssa Clark

Electronic Theses & Dissertations (2024 - present)

This dissertation is an investigation of decisions and outcomes in an important but seldom studied sector of the criminal justice system, the lower tiers of criminal courts (hereinafter referred to as LJCs). The LJCs in New York State (the subject of this dissertation) vary across two dimensions. The first dimension is court characteristics, which includes integration into a statewide court system (i.e., Justice Court vs. City Court). The second dimension is geodemographic characteristics (i.e., rural, suburban, and urban demographic characteristics). Recognizing this gap in literature, this dissertation provides an exploratory examination of the LJC’s patterns of case disposition and sentencing …

Bridging The Gap: Predictors Of Alignment Of Parent And Caseworker Perceptions Of Engagement, Jianchao Lai, Michelle I. Graef

Center on Children, Families, and the Law: Faculty Publications

This study examined predictors of alignment between parents’ and caseworkers’ perceptions of family engagement in child welfare services. Using data from 2,274 Alternative Response (AR)–eligible families randomized to AR or Traditional Response, engagement was assessed across the domains of Receptivity, Buy-in, Worker-family Relationship, and Mistrust using a modified Yatchmenoff (2005) scale. Multinomial logistic regression models identified factors associated with agreement and discrepancy between ratings of family engagement within the parent and worker dyad. While both parents and workers valued engagement, workers were more likely to provide higher overall engagement ratings, although the direction of discrepancy varied across specific subscales. Greater …

State Constitutionalism's Fragile Wall, Adam B. Sopko

Publications

The adequate and independent state grounds (AISG) doctrine has long demarcated the perimeter of the U.S. Supreme Court’s authority to review state court decisions, limiting review to questions of federal law. AISG maintains the Court’s primacy over federal law and state courts’ supremacy over state law. A comprehensive review of all filings on the Court’s docket from state courts over the last twenty years reveals that recent applications of AISG consist of subtle but significant departures from existing norms that, together, suggest a reformulation of the Court’s power over state courts that threatens their sovereign law development role. This Essay …

Let Them Hear It: Peaceful Protests Near The Homes Of Supreme Court Justices, Srikanth Reddy

Lewis & Clark Law Review

All of us—not just attorneys and politicians—need to be more critical and skeptical of the Supreme Court. Criticism by ordinary people is good and appropriate, even if it hurts the Justices’ feelings. That includes public protests. When a case matters enough to them, members of the public can and should criticize the Court and its Justices, including by peacefully gathering and protesting near a Justice’s home, or when a Justice appears out in the world.

Taking Off The “Blindfold”: Exploring Montana’S Public Trust Doctrine And The Right To A Clean And Healthful Environment After Held V. Montana, Lizzy Gazeley

Lewis & Clark Law Review

As global average temperatures continue to rise, the threat of climate change looms closer. To evade climate catastrophe, greenhouse gas emissions will need to be substantially reduced. Despite climate change’s imminent risks, in the United States, both the federal government and states remain resistant to transitioning away from fossil fuel energy sources. To combat this government inaction, some litigants have turned to an ancient doctrine. The public trust doctrine provides that sovereigns must protect natural resources from substantial impairment to ensure the public’s right to use those resources.

In Held v. Montana, youth plaintiffs alleged that the State of Montana …

The Sec And Climate Litigation, Lisa Benjamin

Lewis & Clark Law Review

The controversy surrounding the SEC’s climate-related financial disclosure rule continues. This Essay updates my previous work on this issue, where I identified two opportunities and two obstacles to the SEC promulgating final rules on climate-related financial risk disclosures. The two opportunities were a shifting political landscape under the then-Biden Administration (which took a whole-of-government approach to addressing the climate crisis) and rising investor concern over the risks that climate change posed to their investments. The two obstacles I identified were business resistance to disclosure rules, and rising judicial hostility to the SEC. Today, the political landscape has shifted dramatically and …

Trial By Character, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

In this Article, I argue that courts regularly deviate from Federal Rule of Evidence 404(b), which prohibits character evidence—evidence of a defendant’s past misdeeds offered to prove that the defendant acted in conformity with a certain character trait on the occasion in question. These deviations undermine the fairness of a trial and the presumption of innocence. The Article addresses this problem in three ways. First, it explains how courts have misinterpreted Rule 404(b)—an error that I call the permitted-purpose fallacy—and how they have fortified this misinterpretation with a body of flawed principles and precedent. Second, it reports the results of …

Rethinking Courtroom Presence In The Virtual Era, Jenia Iontcheva Turner

Faculty Journal Articles and Book Chapters

Technological innovation has made virtual appearances by criminal defendants increasingly common. These appearances have advanced efficiency but also raised questions about the scope of both the right and the duty of defendants to be physically present in court. Should judges, for example, be allowed to hold virtual arraignments, even if a defendant wishes to appear in person? Can defendants opt for virtual appearances at will? While courts are beginning to address these questions, they have yet to develop a coherent framework to evaluate when virtual appearances are constitutional and appropriate. This Article seeks to contribute to this project by examining …

The Federalism Canons As Ordinary Interpretation, Anthony J. Bellia, Bradford R. Clark

Journal Articles

From the article

Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign …

Roman V. City Of Providence, 333 A.3d 74 (R.I. 2025)., Alexander I. Sanchez

Roger Williams University Law Review

No abstract provided.

Public Facing, Privately Shielded: The Employment Gap Created By Title Vii’S Private Club Exemption, Ansley Salmon

American University Business Law Review

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination by employers but exempts “bona fide private membership clubs” that are tax-exempt under Internal Revenue Code Section 501(c). Despite this seemingly clear statutory language, there is a notable lack of appellate decisions interpreting this exemption under Title VII. This scarcity of precedent has led to inconsistent approaches across circuits. For example, the Fifth Circuit has drawn heavily from the Private Club Exemption under Title II of the Civil Rights Act while the Seventh Circuit has treated the two exemptions as entirely distinct. This Comment argues that the Title …

Activist Judicial Restraints, Michael Gentithes

Akron Law Faculty Publications

For decades, jurists and scholars have touted the virtues of judicial restraint—a characteristic of judges who only adjudicate issues they are competent to resolve, thereby avoiding political thickets and preserving their authority. Judicial restraint is ingrained in justiciability doctrines that emanate from Article III of the Constitution. When applied evenhandedly, standing requirements, the political question doctrine, and prudential manageability prerequisites to litigation help the Court maintain an appropriately restrained docket.

The Roberts Court falls well short of this restrained ideal in potentially dangerous and destructive ways. The Court has changed justiciability doctrines into “activist judicial restraints” that, rather than avoiding …

Why Dobbs Is No Roadmap For Deciding State Constitutional Abortion Issues, Daniel A. Small

American University Journal of Gender, Social Policy & the Law

In deciding that Fourteenth Amendment “liberty” does not protect a woman’s decision to end her pregnancy, Dobbs v. Jackson Women’s Health Organization sought to distinguish the precedent that Roe and Casey relied on to recognize an abortion right. The Dobbs majority claimed that this precedent did not support a right to abortion because, in its view, destroying a fetus is more immoral than the conduct at issue in those earlier cases. However, moral concerns about fetal destruction shed no light on the nature or characteristics of a woman’s liberty interest in an abortion decision. These concerns, therefore, cannot show whether …

Extending Appellate Immigration Jurisdiction: Providing Additional Pathways Of Review For Discretionary Determinations Regarding Extraordinary Circumstances For Victims Of Spousal Abuse, Ayashah Anwar

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: Lucila Magana-Magana lived a life marked by tragedy. At the age of fifteen, Lucila was sexually assaulted and became pregnant. As a young pregnant woman with no ability to leave, Lucila was forced to live with her assailant and had more children with him until his death. After several years on her own, she entered another relationship with her work supervisor, Rafael Camacho, but that relationship soon turned abusive. Camacho became addicted to drugs and alcohol, and eventually Lucila was forced to escape the relationship. Out of fear, Lucila fled Mexico to the United States. Once again, Lucila found …

Nonviolent Felony Offenders And The Second Amendment: Reexamining Categorical Disarmament Laws In Light Of Bruen And Rahimi, Nikolay Belardi

American University Journal of Gender, Social Policy & the Law

INTRODUCTION: The Second Amendment ensures that “the right of the people to keep and bear Arms, shall not be infringed.” In a country with more civilian-owned firearms than people—and more gun dealers than McDonald’s, Burger King, Subway, and Wendy’s locations combined—it is no surprise that Americans pride themselves on their right to bear arms. However, a majority of the American population favors stricter gun laws and regulations, a position that seems sensible given that mass shootings are an all-too-familiar occurrence in the United States. The enshrinement of the right to bear arms in the Constitution limits the laws and regulations …

Citators In The Ai Age: Preserving The Human Component Through Court-Created Citators, Cody B. James

Faculty Law Review Articles

Citators have long worked behind the scenes, shaping case law and influencing how judges and lawyers view precedent. Yet their creation has been the sole realm of private publishers. As artificial intelligence (AI) is further integrated into citators’ creation, the human role is at risk of being automated. This article examines citators’ influence over substantive law, the human-in-the-loop justifications for preserving human involvement in citators’ creation, and the argument for courts to produce their own citators. By reclaiming this function, the courts can help enhance their legitimacy and preserve the human role in creating structures of legal information in the …

“Necessary” Jurisdiction: Veterans’ Rights In Article Iii Courts, Dana Montalto

American University Law Review

U.S. veterans should possess the same access to courts as other Americans, but a misreading of a federal law has led many veterans to be denied an opportunity to assert their civil rights in any judicial forum. That law—38 U.S.C. § 511—grants exclusive jurisdiction over certain federal veterans benefits appeals to a specialized Article I court, the Court of Appeals for Veterans Claims. But federal judges and Department of Veterans Affairs leaders have mistakenly interpreted that grant of exclusive jurisdiction to also close the door to Article III courts, leading veterans’ meritorious claims of systemic discrimination and injustice to be …

Tyranny Of A Feather: Asymmetry In Civil Burdens Of Proof, Thomas O. Main

American University Law Review

Civil litigation suffers from a paradox that is at once self-evident, unfair, and overlooked: the trial process promises equality between plaintiffs and defendants under the preponderance-of-the-evidence standard, even as the pretrial process is skewed dramatically in defendants’ favor. At trial a plaintiff needs only “50% plus a feather” to tip the scales and prevail, reflecting a commitment to equal treatment of the parties. Pretrial, however, the playing field tilts steeply: plaintiffs alone must navigate a procedural gauntlet of motions that impose pleading and production burdens for which defendants face no equivalent. This entrenched asymmetry in pretrial practice has become so …

Kedudukan Putusan Peradilan Etik Sebagai Keputusan Tata Usaha Negara: Studi Kasus Gugatan Hakim Konstitusi Anwar Usman, Satrio Febriyanto

Jurnal Hukum & Pembangunan

As an effort to concretize ethics, there is a process of formalizing ethics into a set of rules through a code of ethics. The code of ethics needs institutional enforcement instruments so that it can be effectively applied through ethical trials. Ethical courts, as institutions that adjudicate violations of the code of ethics, have the authority to issue decisions as a follow-up to cases of violations of the code of ethics that they handle. In carrying out its duties, ethical courts use ethical and moral analysis to assess the appropriateness of an action. This analytical approach differs from legal decisions …

Dualisme Tujuan Pembebanan Uang Pengganti: Analisis Putusan Angelina Sondakh Di Berbagai Tingkat Peradilan, Valencia Puspa Novandra Ali, Tamsil .

Jurnal Hukum & Pembangunan

Studi ini meneliti perbedaan interpretasi dan penerapan hukuman tambahan berupa restitusi (uang pengganti) dalam kasus korupsi melalui analisis komparatif keputusan Angelina Sondakh di pengadilan tingkat pertama, pengadilan banding, pengadilan kasasi, dan pengadilan peninjauan yudisial. Muncul interpretasi ganda antara memandang restitusi sebagai kompensasi atas kerugian keuangan negara dan sebagai mekanisme untuk menyita keuntungan ilegal. Judex facti menolak penerapan restitusi dengan alasan bahwa tidak terjadi kerugian negara dalam kasus suap dan gratifikasi, sementara judex juris di tingkat kasasi menafsirkan restitusi sebagai instrumen pemulihan aset yang ditujukan untuk keuntungan yang diperoleh secara ilegal. Orientasi konseptual yang bertentangan ini menghasilkan perbedaan signifikan dalam penjatuhan …

No Justice Without Transparency: The Case For A Broad Presumption Of Public Access To Court Documents, Taylor Quimby

FIU Law Review

This Comment argues that a broad presumption of public access to court  documents is essential to preserving the legitimacy and constitutional values  of the American legal system. Although the principle of public access is  rooted in common law and constitutional tradition, individual states differ in  how they approach transparency in the context of court documents. These  jurisdictional inconsistencies continue to gain significance, as the digital age  has completely transformed the way people consume information. The  increasing digitization of court records has heightened the need for consistent  and constitutionally grounded standards that preserve transparency while  adequately protecting legitimate privacy interests. Florida’s …

Forum Selling As A Threat To The Rule Of Law, Brian Iverson

FIU Law Review

Forum shopping has long been a feature of federal litigation, but recent years have brought a more troubling dynamic in which federal courts compete for cases by “forum selling.” Judges engage in forum selling by adopting plaintiff-friendly procedures, reliably issuing plaintiff-leaning decisions, and publicly soliciting certain types of cases. These practices transform localized procedural discretion into a structural risk for the federal judicial system.

This Article makes two novel contributions to the federal forum-selling literature. First, it expands the discussion beyond bankruptcy and patent practice to examine ideological influences. Drawing on empirical scholarship and illustrative judicial profiles, the Article identifies …

Data Breaches, Causation, And Constitutional Standing, Anthony Palermo

FIU Law Review

This Article examines the causation requirement of Article III standing in modern data breach litigation. It argues that federal courts have systematically diluted constitutional limits on judicial power by presuming traceability where none exists. While data breaches are ubiquitous and alarming, the Article contends that the mere occurrence of a breach—and even an injury—should not itself establish a justiciable case or controversy. Drawing on foundational separation-of-powers principles, the Article situates the standing doctrine as an essential mechanism of judicial self- restraint—one that prevents courts from reflexively adjudicating societal fears untethered from any fair attribution to the defendant before the court. …

Kedudukan Hukum Eks-Kreditor Pasca Debt To Equity Swap Yang Dihomologasi Dalam Pkpu Kedua Dan Kepailitan Debitor Akibat Pembatalan Perdamaian, Reza Rahmawati

Jurnal Hukum & Pembangunan

Debt to Equity Swap (DES) under a composition plan in Suspension of Debt Payment Obligations (PKPU) proceedings constitutes a restructuring mechanism that transforms the legal status of a Creditor into that of a shareholder upon homologation. Legal issues arise when The Debtor subsequently enters a Second PKPU due to newly incurred debts or is declared bankrupt following the annulment of the composition, while Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment does not expressly regulate the legal consequences of a DES under such circumstances. This normative legal research aims to analyze the legal standing and legal …