Law Commons^™

The Right To Food Comes To America, Wendy Heipt

Journal of Food Law & Policy

The people of Maine recently exercised an opportunity no citizen of this country has ever had before: the ability to vote on whether to enshrine a right to food in their state constitution. This Essay provides an overview of Maine’s experience with food rights in order to explain how the state came to occupy this unique position.

France's Organisme De Défense Et De Gestion: A Model For Farmer Collective Action Through Standard Development And Brand Management, Christopher J. Bardenhagen, Philip H. Howard, Marie-Odile Noziéres-Petit

Journal of Food Law & Policy

Quality-based food production, often with a regional dimension, can provide farmers with new, value added markets. It can also provide consumers with access to place based high-quality products, and may benefit local economies through increased commerce. French Organismes de Défense et de Gestion (ODGs) illustrate a mode of quality-based agri-food business organization. ODGs focus on the development of production standards, as well as management of the intellectual property related to those standards. This mode, which is commonly used in Europe, has not often been used in the United States, despite its potential for regional food system development. The ODG mode …

China's Food Pagodas: Looking Forward By Looking Back?, Yifei Li, Dale Jamieson

Journal of Food Law & Policy

In this Article we provide a close analysis of the Chinese Dietary Guidelines – the Food Pagoda. Our focus on the dietary guidelines is motivated by two main considerations. First, the guidelines represent the most comprehensive, nationwide, state sponsored effort to educate the people of China about food. Like citizens in most countries, Chinese people are presented with numerous, often competing, messages from scientists, food gurus and online influencers. The dietary guidelines are different in that they are backed by an entire suite of governmental resources for nationwide dissemination through hospitals, schools, public billboards, TV and radio ads, among others. …

A Call To Replace The Apa’S Notice-And-Comment Exemption For Guidance Documents, Crystal M. Cummings

Brooklyn Law Review

Section 553 of the APA requires public “notice-and-comment” before a federal agency issues substantive rules and exempts from these procedures guidance documents that merely offer nonbinding insight and assistance on existing law. The problem of federal agencies using the notice-and-comment exemption to issue legislative rules that are legally binding has garnered considerable attention. Congressional efforts to amend the APA in response have failed and, in turn, variations have been offered on a seemingly simple fix—mandate or encourage agencies to solicit public input before issuing guidance documents. This note characterizes these proposals as overlays on the § 553(b)(A) exemption. The note …

The Temptation Of Cosmic Private Law Theory, Nathan B. Oman

Faculty Publications

It’s a heady time to be a theorist of private law. After decades of vague post-Realist functionalism or reductive economic theories, the latest generation of private law theorists have provided a proliferation of new philosophies of tort, contract, and property. The result has been a tremendous burst of intellectual creativity. While Kant and Hegel have been dragooned into debates over torts and contracts and even such supposedly wooly headed thinkers as Coke and Blackstone have been rehabilitated, there have been fewer efforts to generate natural law accounts of private law than one might expect, particularly in light of the revival …

An Ethical Gap In Agency Adjudication, Louis J. Virelli Iii

Buffalo Law Review

There is an ongoing crisis of confidence in American government. Accusations of incompetence and political self-dealing dominate news cycles as public institutions seek to combat—with varying degrees of success—the public health and economic consequences of a global pandemic. Highlighted in this struggle is the larger issue of the importance of integrity to the efficacy and legitimacy of administrative government. This is especially true for agency adjudication, as it is the form of agency action that most directly impacts individuals. Recusal—the process by which an adjudicator is removed, voluntarily or involuntarily, from a specific proceeding—is a time-honored way of protecting the …

The Powerful Problem Of Prayer At Public School Board Meetings, Amanda Harmon Cooley

Cardozo Law Review

No abstract provided.

The Public Meaning Thesis: An Originalist Theory Of Constitutional Meaning, Lawrence B. Solum

Faculty Scholarship

Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process …

Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker

Brooklyn Journal of International Law

Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …

Judicial Populism, Anya Bernstein, Glen Staszewski

Journal Articles

Populism has taken center stage in discussions of contemporary politics. This Article details a judicial populism that resonates with political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists there are clear, correct answers to complex, debatable problems, treating reasonable disagreement as illegitimate. It disparages the institutions that mediate divergent interests in a republican democracy, claiming special access to the law’s clear objective meaning. And it imagines a pure, unified people locked in battle with a subversive elite.

While commentators have recognized political populism as fundamentally undemocratic, judicial populism has largely escaped recognition and …

The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke

Journal Articles

In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …

Legal Corpus Linguistics And The Half-Empirical Attitude, Anya Bernstein

Journal Articles

Legal writers have recently turned to corpus linguistics to interpret legal texts. Corpus linguistics, a social-science methodology, provides a sophisticated way to analyze large data sets of language use. Legal proponents have touted it as giving empirical grounding to claims about ordinary language, which pervade legal interpretation. But legal corpus linguistics cannot deliver on that promise because it ignores the crucial contexts in which legal language is produced, interpreted, and deployed.

First, legal corpus linguistics neglects the relevant legal context—the conditions that give legal language authority. Because of this, legal corpus studies’ evidence about language use perversely obscures and misstates …

Team Production Revisited, William Wilson Bratton

Articles

This Article reconsiders Margaret Blair and Lynn Stout's team production model of corporate law, offering a favorable evaluation. The model explains both the legal corporate entity and corporate governance institutions in microeconomic terms as the means to the end of encouraging investment, situating corporations within markets and subject to market constraints but simultaneously insisting that productive success requires that corporations remain independent of markets. The model also integrates the inherited framework of corporate law into an economically derived model of production, constructing a microeconomic description of large enterprises firmly rooted in corporate doctrine but neither focused on nor limited by …

Team Production Revisited, William Wilson Bratton

Articles

This Article reconsiders Margaret Blair and Lynn Stout's team production model of corporate law, offering a favorable evaluation. The model explains both the legal corporate entity and corporate governance institutions in microeconomic terms as the means to the end of encouraging investment, situating corporations within markets and subject to market constraints but simultaneously insisting that productive success requires that corporations remain independent of markets. The model also integrates the inherited framework of corporate law into an economically derived model of production, constructing a microeconomic description of large enterprises firmly rooted in corporate doctrine but neither focused on nor limited by …

The Rooker-Feldman Doctrine: The Case For Putting It To Work, Not To Rest, Bradford Higdon

University of Cincinnati Law Review

No abstract provided.

Parity As Comparative Capacity: A New Empirics Of The Parity Debate, Meredith R. Aska Mcbride

University of Cincinnati Law Review

In 1977, Burt Neuborne published an article in the Harvard Law Review proclaiming that parity was a “myth”—that state courts could not be trusted to enforce federal constitutional rights. For the next 15 years, the question of parity (the equivalence of state and federal courts in adjudicating federal causes of action) was at the forefront of federal courts scholarship. But in the early 1990s, the parity debate ground to a halt after important commentators proclaimed it an empirical question that, paradoxically, could not be answered by any existing empirical methods. This article argues that proposition was unfounded at the time …

When The Conditions Are The Confinement: Eighth Amendment Habeas Claims During Covid-19, Michael L. Zuckerman

University of Cincinnati Law Review

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States. It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane. This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then surveys eight prominent federal cases involving Eighth Amendment claims related to COVID-19 outbreaks at carceral facilities, most of which included significant litigation over whether they could secure release through habeas corpus. The Article then distills six key tensions from these …

Does The Criminal Enforcement Of Federal Environmental Law Deter Environmental Crime? The Case Of The U.S. Resource Conservation And Recovery Act, Dr. Joshua Ozymy, Dr. Melissa L. Jarrell

Environmental and Earth Law Journal (EELJ)

The U.S. Environmental Protection Agency (EPA) and the Department of Justice are tasked with the investigation and prosecution of hazardous waste crimes occurring under the U.S. Resource Conservation and Recovery Act (RCRA). For criminal sanctions to be effective, the probability of detection and severity of punishment must be significant enough to raise the cost to benefit ratio to deter environmental crimes. While research examines sanctioning under RCRA, little work examines the plausibility of the deterrent effect of criminal sanctions. Through content analysis of all environmental crime prosecutions resulting from EPA criminal investigations, 1983-2019, we explore the probability of detection and …

Hypocrisy On The High Seas: An Examination Of The Conflicting Policy Goals And Actions Of The International Community Regarding Illegal, Unreported, And Unregulated Fishing, Peter J. Tamburello

Environmental and Earth Law Journal (EELJ)

Fish and the fishing industry are one of the main sources of food protein and commerce in many areas of the world, whether it be from traditional and artisanal fishing practiced in Somalia and other undeveloped countries or large scale international commercial fishing from rich and industrialized nations. The world’s oceans are currently being plagued by overfishing both from legally authorized activities and Illegal, Unreported, and Unregulated Fishing. The purpose of this paper is to examine the problems plaguing the world’s fisheries with an eye towards the environmental damage and economic harm that stem from it. It is also to …

The Survival Of Animal Care Organizations Impacted By The Covid-19 Pandemic In 2020, Juan Fernando Torrico

Environmental and Earth Law Journal (EELJ)

This note assessed how animal care organizations and the animals in their care were impacted, negatively and positively, by the coronavirus pandemic. Several animal care organizations in the United States–including animal shelters, rescues, sanctuaries, and zoos–were contacted directly, and invited to share their experiences from the COVID-19 pandemic in 2020. They provided valuable in-depth insight into how government shutdowns and social distancing impacted their facility; if any of the animals in their care tested positive for COVID-19; how the animals in their care were affected indirectly by COVID-19; if they sought and received any government assistance to keep them operational; …

Watery Grave: One Of The Death Care Industry’S Greenest Options Is Still Illegal In Thirty-One States And That Needs To Change, Jacob Steele

Environmental and Earth Law Journal (EELJ)

Alkaline hydrolysis is an eco-friendly cremation alternative that uses water, a gentle chemical solution, and heat to break down bodies instead of fire. It has a carbon footprint that is 75% less than that of standard cremation and eliminates the possibility of soil and groundwater pollution created by traditional burials. The problem is that it is illegal and unavailable to citizens in at least 31 states. This comment examines the history, process, and legality of alkaline hydrolysis while proposing the rapid federal or mass state legalization of the method as a solution to many of the problems the death care …

Pure Privacy, Jeffrey Bellin

Northwestern University Law Review

In 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy’s appeal has grown beyond those authors’ wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means.

The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, …

Stepification, Mitchell Chervu Johnston

Northwestern University Law Review

Multistep tests pervade the law to the point that they appear to be a fundamental feature of legal reasoning. Famous doctrines such as Chevron or qualified immunity take this form, as do more obscure doctrinal formulas. But surprisingly, these doctrinal formulations as a class are relatively new. The reality is that the intellectual moment that gave rise to Chevron was one in which multiple older doctrines that relied on multifactor balancing were replaced by new tests formulated as multistep inquiries in which each step was a discrete inquiry.

This Article provides the first historical and normative account of this phenomenon—which …

Case Study: The International Criminal Tribunal For The Former Yugoslavia’S Court Transcripts In Bosnian/Croatian/Serbian—Part 1: Needs, Feasibility, And Output Assessment, Besmir Fidahić

Genocide Studies and Prevention: An International Journal

International Criminal Tribunal for the Former Yugoslavia (ICTY) remains the most important organization for the past, the present, and the future of the former Yugoslavia. Faced with a country that always lived under totalitarian regimes with very little insight into actions of the groups and individuals who reaped unthinkable havoc on each other at the end of the twentieth century, the ICTY set undisputable historical record about events that took place during the 1991–1999 wars and put the country on an excellent track towards transformation for the better. But even 28 years since the establishment of the ICTY, the former …

The Free Speech Record Of The Roberts Court, William D. Araiza

Faculty Scholarship

No abstract provided.

City Of Los Angeles V. Lyons: How Supreme Court Jurisprudence Of The Past Puts A Chokehold On Constitutional Rights In The Present, Peter C. Douglas

Northwestern Journal of Law & Social Policy

The United States today has refocused its attention on its continuing struggles with civil rights and police violence—struggles that have always been present but which come to the forefront of the collective consciousness at inflection points like the current one. George Floyd—and uncounted others—die at the hands of the police, and there is, justifiably, outrage and a search for answers. Although the reasons why Black and Brown people are disproportionally subject to unconstitutional police violence are manifold, one reason lies in the Supreme Court’s 1983 decision in City of Los Angeles v. Lyons. While many scholars have criticized the Burger …

Baby & Bathwater: Standing In Election Cases After 2020, Steven J. Mulroy

Dickinson Law Review (2017-Present)

The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not …

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

Qualified Immunity: Round Two, Andrew Coan, Delorean Forbes

Washington and Lee Law Review

For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now. Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might …

Transforming Affirmative Action Jurisprudence: Applying Eidelson's Theory On The Supreme Court Of India, Sawinder Singh

Cardozo International & Comparative Law Review

This paper compares the affirmative action jurisprudence developed by the Indian Supreme Court with United States affirmative action jurisprudence in the context of the philosophy of equality developed by Harvard Law School Professor Benjamin Eidelson. It evaluates the potential of Eidelson's claim that if the U.S. Supreme Court accepts his philosophy, it may incrementally allow the Court to adopt a more favorable attitude towards the affirmative action policies. The question raised here is whether Eidelson's approach can provide a constitutionalfoundation capable of giving us a consistently benevolent interpretation of affirmative action policies, as he hoped. This article concludes that, at …