Law Commons^™

The Politics Of Proportionality, Nelson Tebbe, Micah Schwartzman

Michigan Law Review

A Review of How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart. By Jamal Greene.

Getting To Phi: The Case For Excusatory Derogations From Iccpr Rights, Benjamen F. Gussen

Cardozo International & Comparative Law Review

This Article highlights the need for excusatory derogations from human rights. Currently, there is exclusive reliance on justification when upholding derogations from International Covenant on Civil and Political Rights ("ICCPR ) rights. In contrast, an excusatory derogation accentuates the requisite international policy intervention to assist national and subnational governments toward a proportional response to public emergencies. The right to mobility under the ICCPR, and its renditions in the constitutions of Australia and Canada, are used to illustrate this proposition. Border closures in response to the coronavirus pandemic provide context to elucidate how different types of public emergencies dictate different approaches …

The Roberts Court's Transformative Religious Freedom Cases: The Doctrine And The Politics Of Grievance, Stephen M. Feldman

Cardozo Journal of Equal Rights & Social Justice

The article argues that the Roberts Court has adopted a conservative approach in religious freedom cases, shifting toward a jurisprudence that favors Christianity and undermines the separation of church and state. This approach, rooted in tradition and a de facto Christian America, has led to significant changes in both Establishment Clause and Free Exercise Clause doctrines. The Court's decisions increasingly protect Christian practices and institutions while marginalizing non-Christian religions, reflecting a broader ideological shift toward judicial engagement and away from principles of federalism and judicial restraint.

Reparations For A Public Nuisance? The Effort To Compensate Survivors, Victims, And Descendants Of The Tulsa Race Massacre One Hundred Years Later, Adam Coretz

Cardozo Law Review

No abstract provided.

The Right To Counsel In A Neoliberal Age, Zohra Ahmed

Faculty Scholarship

Legal scholarship tends to obscure how changes in criminal process relate to broader changes in the political and economic terrain. This Article offers a modest corrective to this tendency. By studying the U.S. Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to …

Deep-State Constitutionalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his …

Location, Location, Location: The Federal Sentencing Guidelines' Abduction Enhancement And The Meaning Of "Different Location", Sabrina Jemail

University of Cincinnati Law Review

No abstract provided.

Proving Racism: Gibson Bros. Inc. V. Oberlin College And The Implications On Defamation Law, Liam H. Mcmillin

University of Cincinnati Law Review

No abstract provided.

The Title Ix Pendulum: Taking Student Survivors Along For The Ride, Keeley B. Gogul

University of Cincinnati Law Review

No abstract provided.

Benign Language On Letters From Debt Collectors And Avoiding Violations Of The Fair Debt Collection Practices Act, Sebastian West

University of Cincinnati Law Review

No abstract provided.

The Best Of Both Worlds: Reconciling Tradition With Evolution Under The Ohio And Federal Right To A Civil Jury Trial, Jacob Hoback

University of Cincinnati Law Review

No abstract provided.

Lochner's Revenge: Tiered Scrutiny And The Acceptance Of Judicial Subjectivity, Phillip J. Closius

University of Cincinnati Law Review

No abstract provided.

Time, The Calendar, And Centralized Power In Japan: Relying On The Research Of Yoshiro Okada, Hiroshi Saito

Japanese Society and Culture

When, why, how, and by whom was “time” combined with “law” in Japan? This paper scrutinizes the issue based on Yoshiro Okada’s research, especially his most important works: Nihon no Koyomi and his thesis “Meiji no Kaireki: ‘Toki’ no chuo shuken-ka.” It is thus possible to understand how the political authorities used the unification of the calendar system to demonstrate their power and to govern the lives of the nation. Thereafter, “time” was used as a fundamental and important standard for judgment in the science of law, legalism, and the rule of law. In this process, “calendar (time) and law” …

Qualified Sovereignty, Kate Sablosky Elengold, Jonathan D. Glater

Washington Law Review

Sometimes acts of the federal government cause harm; sometimes acts of contractors hired by the federal government cause harm. In cases involving the latter, federal contractors often invoke the sovereign’s constitutionally granted and doctrinally expanded supremacy to restrict avenues for the injured to recover even from private actors. In prior work, we analyzed how federal contractors exploit three “sovereign shield” defenses—preemption, derivative sovereign immunity, and derivative intergovernmental immunity—to evade liability, accountability, and oversight.

This Article considers whether, when, and how private federal contractors should be held accountable in a court of law. We argue that a contractor should be required …

The Unbearable Emptiness Of Formalism: Autonomy, Equality, And The Future Of Affirmative Action, Rachel F. Moran

Faculty Scholarship

Debates over affirmative action in higher education generally focus on equality interests under the Fourteenth Amendment but ignore liberty interests under the First Amendment. That tendency persists, even though the academic freedom to enroll a diverse student body has allowed colleges and universities to defend race-conscious admissions programs against legal challenges for decades. Today, the rise of formalism in judicial interpretation poses new perils for these programs. Justice Powell’s seminal decision in Regents of the University of California v. Bakke was a pragmatic compromise that used diversity to temper the polarized debate over equality that sharply divided the Court. In …

The Dignitary Confrontation Clause, Erin Sheley

Washington Law Review

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

EDITOR’S NOTE

As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections …

Endogenous And Dangerous, Brian N. Larson

Faculty Scholarship

Empirical studies show that courts frequently cite cases that the parties did not cite during briefing and oral arguments—endogenous cases. This Article shows the cognitive and rational dangers of endogenous cases and presents an empirical study of their use. I contend that judges should avoid using endogenous cases in their reasoning and opinions. This Article’s first significant contribution is to provide the first exhaustive treatment in the American legal literature of the rational bases upon which defeasible legal deductions and legal analogies may be built and the critical questions or defeaters that can weaken or bring them down. As far …

Ruth Bader Ginsburg’S Copyright Jurisprudence, Ryan Vacca, Ann Bartow

Nevada Law Journal

When Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and jurist.

Her amazing civil rights legacy overshadows other areas where Justice Ginsburg’s contributions have been substantial. This Article discusses one of the most interesting: copyright law. During her time as a jurist on the …

The Supreme Court’S Chief Justice Of Intellectual Property Law, Robert W. Gomulkiewicz

Nevada Law Journal

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions that call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as the most prolific author of patent law opinions in the history of the Supreme …

Nonparty Jurisdiction, Aaron D. Simowitz, Linda J. Silberman

Vanderbilt Journal of Transnational Law

The Supreme Court's recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must …

The Living Rules Of Evidence, G. Alexander Nunn

Faculty Scholarship

The jurisprudential evolution of evidence law is dead. At least, that’s what we’re expected to believe. Ushered in on the wings of a growing positivist movement, the enactment of the Federal Rules of Evidence purported to quell judicial authority over evidence law. Instead, committees, conferences, and members of Congress would regulate any change to our evidentiary regime, thereby capturing the evolution of evidence law in a single, transparent code.

The codification of evidence law, though, has proven problematic. The arrival of the Federal Rules of Evidence has given rise to a historically anomalous era of relative stagnation in the doctrinal …

Commentary: The Pragmatic Consequentialism Of Justice Breyer, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Justice Stephen Breyer’s announcement of his intention to retire at the end of the Supreme Court’s current term provides occasion to contrast his approach to judging with the very different approach of the court majority he leaves behind. The contrast is frequently explained in partisan terms: Justice Breyer is a “liberal” who was appointed by a Democratic president (Bill Clinton), whereas the majority is “conservative,” having been appointed by three different Republican presidents (George H.W. Bush, George W. Bush, and Donald Trump).

The use of partisan labels to describe the different approaches to judging employed by the court’s two …

Reassociating Student Rights: Giving It The Ole College Try, Tyler Mlakar

Arkansas Law Review

At the beginning of 2020, the World Health Organization (“WHO”) declared Coronavirus disease 2019 (“COVID-19”) a “public health emergency of international concern.” Governments around the world began instituting citywide and even nationwide “lockdowns.” In the United States, the approach was far more splintered. While there was no nationwide lockdown, states across the country instituted varying measures ranging from “shelter-in-place” and “stay at home” orders, to school closures, limits on the size of public gatherings, “mask mandates,” and even some states allowing restaurants and bars to remain open. Across the United States, these measures have resulted in the most pervasive governmental …

Nonlawyers In The Legal Profession: Lessons From The Sunsetting Of Washington's Lllt Program, Lacy Ashworth

Arkansas Law Review

Today, the number of attorneys in the world fails to serve the number of people in need of legal assistance. Approximately sixty percent of law firm partners are baby boomers, meaning those in their mid fifties to early seventies, and twenty-five percent of all lawyers are sixty-five or older. These individuals will predictably retire. Meanwhile, law school costs more than ever. The average law student graduates $160,000 in debt only to enter into the legal profession with an average starting salary of $56,900 in the public sector and $91,200 in the private sector. It is no surprise law schools have …

Slavery And The History Of Congress's Enumerated Powers, Jeffrey Schmitt

Arkansas Law Review

In his first inaugural address, President Abraham Lincoln declared, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Like virtually all Americans before the Civil War, Lincoln believed in what historians call the “national consensus” on slavery. According to this consensus, Congress’s enumerated powers were not broad enough to justify any regulation of slavery within the states. Legal scholars who support the modern reach of federal powers have thus conventionally argued …

Why Arkansas Act 710 Was Upheld, And Will Be Again, Mark Goldfeder

Arkansas Law Review

A lie can travel halfway around the world while the truth is putting on its shoes. - ironically, not Mark Twain The recent Eighth Circuit ruling in Arkansas Times LP v. Waldrip, the lawsuit revolving around an Arkansas antidiscrimination bill, has led to a lot of (at best) confusion or (at worst) purposeful obfuscation by people unwilling or unable to differentiate between procedural issues and the constitutional merits of a case. In other words, reports of the bill’s death have been very much exaggerated.

Bentham’S Public Utilitarianism And Its Jurisprudential Significance, Dan Priel

Articles & Book Chapters

One of the ways by which Gerald Postema’s Bentham and the Common Law Tradition revolutionized the study of Bentham’s jurisprudence was by challenging the idea, made popular by Hart (both in his jurisprudential work and his interpretation of Bentham), that the study of law in general is normatively neutral. Against this view, Postema argued that one must understand Bentham’s views on law and jurisprudence in relation to his utilitarianism. At the time of publishing the book, Bentham went very much against the grain, but this view has since gained considerable support. In my paper I seek to refine it. As …

Access To Medicine In Developing Countries: Elevating State Obligations Over Corporate Profit, Hakeem O. Yusuf, Kamil Omoteso

Indiana Journal of Global Legal Studies

This paper investigates the divergence between the objectives of the state in ensuring citizens' right to health and the profit-maximization objective of pharmaceutical corporations in relation to, access to, and supply of medicine. This divergence is pertinent given both the rising cost of medicines and unmet needs, particularly in developing countries. This paper analyses the correlation between pharmaceutical corporations' profit drive and the state's welfare obligation. There is a need to bridge the gap between business and human rights, which can be achieved by combining the concepts of "business ethical responsibility" and corporations' contributions to "common good" with the jurisprudence …

Torres V. Texas Department Of Public Safety: Brief Of Scholars Of Constitutional Law And The Law Of Federal And State Courts As Amici Curiae In Support Of Petitioner, Evan H. Caminker

Appellate Briefs

Amici curiae, listed in the Appendix, are professors of constitutional law and of the law of federal and state courts. Amici hold varying views on state sovereign immunity and the interpretation of the Eleventh Amendment. Amici join in this brief because they agree that the Court’s jurisprudence on these issues reflects inherent tensions that justify consideration of a new approach. Amici propose an approach to sovereign immunity that is grounded in both constitutional text and broader common law principles, and that, in amici’s view, is faithful to the original constitutional design and the text and purpose of the Eleventh Amendment. …