Law Commons^™

Is The United States Judicial System Failing Transgender Women? A Critical Overview, Taylor J. House

Florida A & M University Law Review

This paper will discuss the rise of the transgender civil rights movement, the problems in the judicial system, and the rights that should be afforded to transgender women. In part one, I will address the LGBTQA civil rights movement led by transgender women. In part two, I will address the transphobia in the prison system. In part three, I will address the lack of visibility of black transgender issues in the current black civil rights movement. In the fourth part, I will address whether there should be certain fundamental rights given to transgender women. In the fifth part of this …

Whistle While You Work: Interpreting Retaliation Remedies Available To Whistleblowers In The Dodd-Frank Act, Max Birmingham

Florida A & M University Law Review

This Article asserts that judicial activism occurs when a court goes beyond the plain meaning of the text that is plain and unambiguous, to promulgate its politics. This Article does not make the argument nor infer that this is the sole definition of judicial activism. Rather, this Article is narrowing the scope by enumerating a specific act that falls within the category of judicial activism.

This argument proceeds as follows. Part I provides context of judicial activism. Part II analyzes how various courts have interpreted the statute, and whether the interpretation is consistent with canons of construction. Part III assesses …

From Gorsuch To Gorsuch: Family Reformation On Agency Power, Matthew Noxsel

Florida A & M University Law Review

Although Chevron has drawn extensive scholarship examining its doctrinal origins,17 evolution,18 and impact,19 this is not one of those inquiries. Instead, this Comment seeks to address some of the circumstances and rationale motivating certain people behind Chevron, and therefore the doctrine and its impact will be discussed in short form. Accordingly, Part II of this Comment will use Anne Gorsuch’s service at the EPA as a lens through which to view the conservative revolution that occurred before and during the Reagan years, with an eye toward a subtle change in thinking from previous generations regarding agency regulations. Part III of …

Marriage Equality: The Paralleled Progress Between Public Approval And Supreme Court Decisionmaking, Riley Erin Fredrick

Florida State University Law Review

No abstract provided.

We "Kent" Keep Transferring Kids Without A Hearing: Using Recent Supreme Court Jurisprudence To Revive Kent V. United States And End Mandatory Transfer For Juveniles, Summer Woods

Criminal Law Practitioner

No abstract provided.

Jezebels And Jungle Bunnies: How The Stereotypes Of Black Women Shape Legislation, The Legal Profession, And Feminist Jurisprudence, Kersti Myles

The Modern American

No abstract provided.

The Ozark National Scenic Riverways And The Sagebrush Rebellion In Missouri, John W. Ragsdale Jr

Faculty Works

This article focuses on the back country-the Ozark National Scenic Riverways (ONSR) and the community around and with the rivers. It begins historically, tracing the origins and courses of stable-state, subsistence agricultural societies in the rugged hills overlooking the Current and Jacks Fork Rivers. It shows that such societies, though autonomous, are vulnerable to outside aggression. War, raiders, in­dustrial timbermen, and modern technology can shatter the environ­mental balance. Dam builders, government land managers, and tour­ism can erode internal sovereignty, custom, and self-esteem. These forces befell the Ozark highlands around the ONSR.

Out of the breakdown of land and economy, and …

Irreconcilable Similarities: The Inconsistent Analysis Of 212(C) And 212(H) Waivers, Kate Aschenbrenner Rodriguez

Faculty Scholarship

No abstract provided.

The Costs Of Trumped-Up Immigration Enforcement Measures, Kari Hong

Cardozo Law Review de•novo

Currently, our country spends $18 billion each year on immigration enforcement, which is nearly $4 billion more than the combined budgets of the FBI, DEA, Secret Service, and ATF. President Trump hopes to substantially increase that annual number with his proposed heightened enforcement measures that result in more arrests, more ICE officers roaming our streets, airports, and courtrooms, more detentions, more deportations, and more wall. This essay begins by examining each of these measures that were outlined in the new executive orders and concludes that all are expensive, ineffective, unnecessary, and inhumane.

The Political Process Argument For Overruling Quill, Edward A. Zelinsky

Brooklyn Law Review

Should the U.S. Supreme Court overrule Quill Corporation v. North Dakota? A careful assessment of the federal political process suggests that the Supreme Court itself should overturn Quill in the Court’s role as guardian of the states against federal commandeering. A combination of factors underlay this conclusion: the tactical advantage that Quill bestows in the political process upon the internet and mail order industries, the importance of the states in the structure of federalism, the centrality of sales taxes to the financing of state government, the severe impediment which Quill and its physical presence test impose upon the collection of …

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …

Therapeutic Jurisprudence, Professionalism, And "Spikes" For Lawyers, Shelley Kierstead

Articles & Book Chapters

Lawyers, whether advocating in court, negotiating deals on clients’ behalf, or writing advice letters and briefs, use words to make a living. Their aim is to use these “words” to problem-solve for clients and to deliver an outcome the clients consider positive. In reality, however, there are times in each lawyer’s career when he or she is not able to help clients achieve the results the clients are looking for. When this occurs, lawyers must deliver “bad news” to the client. For the purposes of this article, I define “bad news” as being “any information which adversely and seriously affects …

Interpreting Wisconsin Statutes, Daniel R. Suhr

Marquette Law Review

"The seminal case on statutory interpretation in recent years is State ex rel. Kalal v. Circuit Court for Dane County, 2014 WI 58. . . . In Kalal, the court emphasized the importance of statutory text when it embraced the principle that a court's role is to determine what a statute means rather than determine what the legislature intended." - Wisconsin Supreme Court Justice David Prosser, 2014.

Humility In Criminal Justice: What It Might Invite Us To Reconsider, Dean A. Strang

Marquette Law Review

Imagine how our system of criminal justice might look different if one value ascended in the system's hierarchy of values: humility. Day to day, in my work, I do not see much humility among police officers, defense lawyers, prosecutors, probation agents, and judges. This is noteworthy, given how unavoidability uncertain--or at least contestable or close--many of the outcomes in our trial and appellate courts are to an objective eye. Even when the basic facts on guilt are fairly certain, the right sentence often is not. I propose that humility is an essential value that, properly understood, is tied to liberty; …

Costs Of Pretrial Detention, Shima Baughman

Utah Law Faculty Scholarship

Spending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees—inmates not convicted of a crime—which constitute the majority of individuals in our nation’s jails. Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants—including the most dangerous—and others detaining most defendants—even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact …

Clarence Thomas The Questioner, Ronnell Anderson Jones

Utah Law Faculty Scholarship

One of Justice Clarence Thomas’s most remarked upon characteristics is his reluctance to ask questions during oral argument. Many have criticized him for his silence. Others defend his silence, noting, for instance, that historically oral argument played a much less significant role and that the Justice’s written opinions speak for themselves. What has been overlooked in this debate, however, is the fact that Justice Thomas is talented at asking questions. Indeed, in many ways, he is a model questioner. Drawing on the most comprehensive collection of Thomas’s oral argument questions ever compiled, we urge the Justice to ask more questions …

Lost & Found: Order In The Court -- The Party Game, Owen Gottlieb, Ian Schreiber

Presentations and other scholarship

Lost & Found is a strategy card-to-mobile game series that teaches medieval religious legal systems with attention to period accuracy and cultural and historical context.

The Lost & Found games project seeks to expand the discourse around religious legal systems, to enrich public conversations in a variety of communities, and to promote greater understanding of the religious traditions that build the fabric of the United States. Comparative religious literacy can build bridges between and within communities and prepare learners to be responsible citizens in our pluralist democracy.

The second game in the series, Lost & Found: Order in the Court …

Lost & Found, Owen Gottlieb, Ian Schreiber, Kelly Murdoch-Kitt

Presentations and other scholarship

Lost & Found is a strategy card-to-mobile game series that teaches medieval religious legal systems with attention to period accuracy and cultural and historical context.

The Lost & Found games project seeks to expand the discourse around religious legal systems, to enrich public conversations in a variety of communities, and to promote greater understanding of the religious traditions that build the fabric of the United States. Comparative religious literacy can build bridges between and within communities and prepare learners to be responsible citizens in our pluralist democracy.

The first game in the series is a strategy game called Lost & …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney

St. Mary's Law Journal

This Article discusses the implications of Heritage Resources, Hyder, and several Louisiana cases on the “post-production costs” issue in gas royalty clauses, as well as the fate of implied covenants in the shale era. To better understand that issue, this Article first provides a background on the interaction of express lease clauses and the doctrine of implied covenants. This discussion reveals that implied covenants are relegated to a minor role in light of extensive express clauses in Shale Era leases because courts frequently view express or “plain” terms as barring implied covenants. The problem, however, as commentators have noted—particularly regarding …

The Executive Right To Lease After Kcm Financial Llc V. Bradshaw And A Louisiana Solution To A Texas Problem., Christopher S. Kulander

St. Mary's Law Journal

Abstract Forthcoming.

Probabilistic Compliance, Alex Raskolnikov

Faculty Scholarship

Uncertain legal standards are pervasive but understudied. The key theoretical result showing an ambiguous relationship between legal uncertainty and optimal deterrence remains largely undeveloped, and no alternative conceptual approaches to the economic analysis of legal uncertainty have emerged. This Article offers such an alternative by shifting from the well-established and familiar optimal deterrence theory to the new and unfamiliar probabilistic compliance framework. This shift brings the analysis closer to the world of legal practice and yields new theoretical insights. Most importantly, lower uncertainty tends to lead to more compliant positions and greater private gains. In contrast, the market for legal …

The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah S. Purdy

Faculty Scholarship

The conflict between various versions of “originalism” and “living constitutionalism” has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating. Although each camp has developed a variety of methodological approaches and substantive distinctions, each one also returns to a core concern: the democratic authority of constitutional review. The late Justice Scalia crystallized the originalist concern in his dissent in Obergefell v. Hodges: “It is of overwhelming importance … who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, …

Can Mediation Deliver Justice?, Sherif Elnegahy

Cardozo Journal of Conflict Resolution

Can mediation deliver justice? This article seeks to answer this controversial question by exploring the idea of justice through a number of perspectives, including the historical, philosophical, and religious perspectives. After reaching an understanding on the idea of justice, the article discusses two main means of delivering justice: formal justice-including an analysis of its strength and limitations-and creative justice. The article proceeds to demonstrate the relationship between mediation and justice and mediation's ability to deliver several justice outcomes, which include procedural justice, distributive justice, and restorative justice. The article concludes by highlighting the possible challenges that can accrue when attempting …

Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss

Publications

No abstract provided.

Crafting Precedent, Richard C. Chen

Faculty Publications

(with the Hon. Paul J. Watford & Marco Basile)

How does the law of judicial precedent work in practice? That is the question at the heart of The Law of Judicial Precedent, a recent treatise by Bryan Garner and twelve distinguished appellate judges. The treatise sets aside more theoretical and familiar questions about whether and why earlier decisions (especially wrong ones) should bind courts in new cases. Instead, it offers an exhaustive how-to guide for practicing lawyers and judges: how to identify relevant precedents, how to weigh them, and how to interpret them. This Review takes up the treatise on …

Sally Yates, Ronald Dworkin, And The Best View Of The Law, W. Bradley Wendel

Michigan Law Review Online

What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advice should be informed by the best view of the law sounds very much like the position of Ronald Dworkin. Dworkin argued that a judge should determine the legal rights and duties of the litigants by constructing the …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Osei-Tutu

Articles

This Article compares the natural rights property framework with the international human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition but appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Yet, advocates of a human rights approach to intellectual property contend that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

Dostoevsky As Juvenile Justice Advocate And Progenitor Of Therapeutic Jurisprudence, Amy D. Ronner

St. Thomas Law Review

In this Article, I explore this fixation with childhood suffering and suggest that Dostoevsky implicitly predicted the core tenets of a relatively new legal movement, called "therapeutic jurisprudence" ("TJ"), and I broach the question of why this matters. In an effort to provide an answer, I identify Dostoevsky as an early ombudsman for therapeutic juvenile justice and link him to the voiceless "polyphonic" voices in The Brothers Karamazov and to what I denominate the poly-personae of A Writer's Diary.

Therapeutic Jurisprudence, Professionalism, And "Spikes" For Lawyers, Shelley Kierstead

St. Thomas Law Review

This article will progress as follows. In Part 1, I discuss both the medical profession and the legal profession's challenges in relation to effective communication with patients and clients. I suggest that the medical profession's response, specifically as it relates to delivering bad news, has been more proactive and widespread than the legal profession's response. Part 2 briefly reviews research dealing with legal clients' emotional responses to different forms of communication, with a view supporting the argument that clarity of information, empathic responses to clients' reactions, and collaborative problem-solving are important elements of a professional relationship. Part 3 introduces the …