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Articles 1 - 23 of 23
Full-Text Articles in Law
Rescaling City Property, Amnon Lehavi
Rescaling City Property, Amnon Lehavi
Arkansas Law Review
This Article seeks to identify the growing tension between the contemporary physical and digital reality of cities across the world and the formal, often archaic, body of norms that governs city powers and duties vis-à-vis different types of persons and corporations: locals, non-local residents of the same nation-state, and foreigners. The nation-state’s continuing dominance, both in the domestic division of power across various legal systems and in the international arena, often results in a systemic mismatch.
Importing Indian Intolerance: How Title Vii Can Prevent Caste Discrimination In The American Workplace, Brett Whitley
Importing Indian Intolerance: How Title Vii Can Prevent Caste Discrimination In The American Workplace, Brett Whitley
Arkansas Law Review
"If Hindus migrate to other regions on [E]arth, [Indian] Caste would become a world problem." - Dr. B.R. Ambedkar (1916) Imagine it is the year 2020. You are one of the more than 160 million people across India that are labeled as Dalits, formerly known as the “Untouchables." Most Hindus view Dalits as belonging to the lowest rung in the ancient system of social stratification that impacts individuals across the globe called the caste system. Your people have endured human rights abuses for centuries, but luckily, neither you nor a loved one have ever been the victim of one of …
The Future Of The Allen Charge In The New Millennium, Caleb Epperson
The Future Of The Allen Charge In The New Millennium, Caleb Epperson
Arkansas Law Review
"In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same." Following the death of George Floyd on May 25, 2020, social and political movements grew rapidly nationwide to combat the prevalence of police brutality against African-American communities. The impact of the ongoing Black Lives Matter movement has been observed in both cities across the United States and in related movements internationally. This movement highlights the necessity for police reform and catalyzes the public’s growing call for greater criminal justice reform. To achieve the goals …
Timing Legal Parenthood, Noy Naaman
Timing Legal Parenthood, Noy Naaman
Arkansas Law Review
When does a parent become a parent? This Article examines this question through a novel framework that analyzes the tension between an individual’s evolving self-identification as a parent and the law’s acknowledgment of the individual’s parental status. It focuses on two forms of that tension. The first concerns a scenario occurring after the birth of a child, when the self-identification as a parent is established but the law has yet to formalize the parental status. The second involves a scenario occurring before the birth, when the self-identification as a parent-to-be—the process of becoming—is legally overlooked. This Article argues that this …
Can't We Just Talk About This First?: Making The Case For The Use Of Discovery Depositions In Arkansas Criminal Cases, Bryan Altman
Can't We Just Talk About This First?: Making The Case For The Use Of Discovery Depositions In Arkansas Criminal Cases, Bryan Altman
Arkansas Law Review
“[T]he quest for better justice is a ceaseless quest, that the single constant for our profession is the need for continuous examination and reexamination of our premises as to what law should do to achieve better justice.” From time to time, it is important that we take stock of our legal surroundings and ask ourselves if our procedures are still properly serving us, or if there is need for change and improvement. In this Article, I argue that the time has come for Arkansas to provide the criminal defense bar with the affirmative power to conduct discovery depositions. Arkansas criminal …
Recent Developments, Silas Heffley
Recent Developments, Silas Heffley
Arkansas Law Review
In a case involving a Missouri televangelist, a purported COVID-19 cure, and state officials from Arkansas and California, the Eighth Circuit Court of Appeals affirmed the lower court’s dismissal for lack of personal jurisdiction.
Reassociating Student Rights: Giving It The Ole College Try, Tyler Mlakar
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 …
The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith
The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith
Arkansas Law Review
When thirteen-year-old Savana Redding arrived at school one autumn day in 2003, she was not expecting to be pulled out of her math class and strip searched. But, that is exactly what happened after the assistant principal suspected her of possessing and distributing “prescription-strength ibuprofen” and “over-the-counter. . .naproxen” after receiving information from another student. After Savana consented to a search of her backpack and other belongings—a search which turned up no evidence of drug possession—the assistant principal asked the school nurse and administrative assistant to search Savana’s clothes. To do this, the school officials asked Savana “to remove her …
Nonlawyers In The Legal Profession: Lessons From The Sunsetting Of Washington's Lllt Program, Lacy Ashworth
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 …
Dead Men Tell No Tales: Arkansas’S Grave Failure To Honor Its Constituents’ Postmortem Quasi-Property Right, Mckenna Moore
Dead Men Tell No Tales: Arkansas’S Grave Failure To Honor Its Constituents’ Postmortem Quasi-Property Right, Mckenna Moore
Arkansas Law Review
It is doubtful that Hulon Rupert Austin woke up on the day of March 7, 1986 and expected it to be his last. March 7 was a typical day—a workday—that started with a simple drive to a job site with his co-worker. A day that began so unremarkably ended with his co-worker looking up from where he was working to see “Austin lying on the ground.”
The High Price Of Poverty In Arkansas’S Courts: Rethinking The Utility Of Municipal Fines And Fees, Madison Miller
The High Price Of Poverty In Arkansas’S Courts: Rethinking The Utility Of Municipal Fines And Fees, Madison Miller
Arkansas Law Review
The opposite of poverty is not wealth. It is justice. Beginning in the 1980s, a "trail of tax cuts" led to budget shortfalls and revenue gaps throughout the United States. These budgetary problems resulted in many cities and towns shifting their burden of funding courts and the justice system at large "to the 'users' of the courts, including those least equipped to pay." Although "jailing an indigent person for a fine-only, low-level offense is unconstitutional," it is still an ongoing practice in many states, including Arkansas. In 1995, Arkansas passed new legislation to govern its circuit courts' collection and enforcement …
The National Popular Vote On Trial, Keaton Barnes
The National Popular Vote On Trial, Keaton Barnes
Arkansas Law Review
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the Peopl to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them …
Creating Cautionary Tales: Institutional, Judicial, And Societal Indifference To The Lives Of Incarcerated Individuals, Nicole B. Godfrey
Creating Cautionary Tales: Institutional, Judicial, And Societal Indifference To The Lives Of Incarcerated Individuals, Nicole B. Godfrey
Arkansas Law Review
It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, issued the above-quoted clarion call to protect the lives of incarcerated people on May 14, 2020. At that point, the COVID-19 pandemic had brought American society to a standstill for a little more than two months, …
A Government Of Laws That Is A Government Of Men And Women, Mark Tushnet
A Government Of Laws That Is A Government Of Men And Women, Mark Tushnet
Arkansas Law Review
I take Mark Killenbeck’s “provocative” article as an occasion for some informal comments about what Korematsu and Trump v. Hawaii tell us about the saying, “a government of laws, not a government of men and women.” My basic thought is that the “not” in the saying has to be replaced “but also.” And, in some sense we have always had to have known that the saying was wrong as stated. Whatever the laws are, they don’t make themselves. Nor do they administer themselves, nor interpret themselves. Men and women appear at the stages of enactment, application, and adjudication. So, for …
A Proper Burial, Robert L. Tsai
A Proper Burial, Robert L. Tsai
Arkansas Law Review
In his article, Professor Mark Killenbeck defends both Korematsu v. United States and Trump v. Hawaii on their own terms, albeit on narrow grounds. He goes on to conclude that comparisons of the two decisions don’t hold up. Killenbeck has authored a thoughtful and contrarian paper, but I’m not sold. In my view, Korematsu simply isn’t worth saving; in fact, a more complete repudiation of the internment decisions is overdue. Trump v. Hawaii, too, must also be revisited at the earliest opportunity and its more alarming features that abet presidential discrimination against non-citizens rejected. Moreover, I believe that comparisons between …
There Was Nothing "Neutral" About Executive Order 9066, Eric L. Muller
There Was Nothing "Neutral" About Executive Order 9066, Eric L. Muller
Arkansas Law Review
There is no more appropriate place to discuss the Japanese American cases of World War II than in the pages of the Arkansas Law Review. This is not only because Arkansas was the only state outside the Western Defense Command to host not one but two of the War Relocation Authority’s (WRA) concentration camps for Japanese Americans. It is because one of the most important lawyers to oversee the development and administration of all the WRA camps was the dean under whose leadership this law review was founded: Robert A. Leflar. Leflar’s is not a name that constitutional lawyers are …
Tainted Precedent, Darrell A.H. Miller
Tainted Precedent, Darrell A.H. Miller
Arkansas Law Review
We have a common law system of constitutional adjudication, at least in the sense that constitutional practice in the United States relies on prior rulings rather than reasoning from first principles in each case. If there’s controlling precedent on point, it’s binding. Neither “inferior courts” in the federal system, nor state courts adjudicating federal law, are permitted to start anew with the “original public meaning” of the First Amendment or pronounce a fresh Dworkinian “moral reading” of the Fourth. Even the highest court in the land, the Supreme Court of the United States, for reasons of reputation, stability, and rule …
Korematsu, Hawaii, And Pedagogy, Sanford Levinson
Korematsu, Hawaii, And Pedagogy, Sanford Levinson
Arkansas Law Review
I begin with some reflections on my own career in teaching—or, perhaps, attempting to teach—American constitutional law to generations of students from 1975 to the present. Or, more accurately, until about three years ago, when I taught introductory constitutional law for the last time. I am quite happy to no longer be teaching that course, whatever joys it did provide me in the past, for a very simple reason: I became more and more frustrated by the demands of coverage, i.e., the duty to take up a variety of topics—including attendant cases and collateral materials—and the unfortunate certainty that what …
Korematsu As The Tribute That Vice Pays To Virtue, Jack M. Balkin
Korematsu As The Tribute That Vice Pays To Virtue, Jack M. Balkin
Arkansas Law Review
Mark Killenbeck wants to (partially) rehabilitate the reputation of one of the Supreme Court’s most despised legal decisions, Korematsu v. United States. He argues that “[w]e should accept and teach Korematsu as an exemplar of what thelaw regarding invidious discrimination on the basis of race, ethnicity, and national origin should be.” In both Korematsu (and Hirabayashi v. United States) the Court asserted that classifications based on race were subject to strict scrutiny. But “[t]he majority,” Killenbeck explains, “refused to heed their own mandate. In Hirabayashi they held that the government policy was ‘reasonable.’ In Korematsu, . . . they failed …
Sober Second Thought? Korematsu Reconsidered, Mark R. Killenbeck
Sober Second Thought? Korematsu Reconsidered, Mark R. Killenbeck
Arkansas Law Review
How to best describe and treat Korematsu v. United States? A self-inflicted wound? It is certainly an exemplar of a case that in key respects tracks Justice Stephen Breyer’s caution about decisions that have “harm[ed] not just the Court, but the Nation.” Part of an “Anticanon,” resting on “little more than naked racism and associated hokum” and “embod[ying] a set of propositions that all legitimate constitutional decisions must be prepared to refute”? Perhaps. Or is it simply an opinion and result that “has long stood out as a stain that is almost universally recognized as a shameful mistake”?
Unbuckling The Seat Belt Defense In Arkansas, Spencer G. Dougherty
Unbuckling The Seat Belt Defense In Arkansas, Spencer G. Dougherty
Arkansas Law Review
The “seat belt defense” has been hotly litigated over the decades in numerous jurisdictions across the United States. It is an affirmative defense that, when allowed, reduces a plaintiff’s recovery for personal injuries resulting from an automobile collision where the defendant can establish that those injuries would have been less severe or avoided entirely had the plaintiff been wearing an available seat belt. This is an unsettled legal issue in Arkansas, despite the growing number of cases in which the seat belt defense is raised as an issue. Most jurisdictions, including Arkansas, initially rejected the defense, but the basis for …
Freedom Of Expression Within The Schoolhouse Gate, Justin Driver
Freedom Of Expression Within The Schoolhouse Gate, Justin Driver
Arkansas Law Review
In the late 1960s, the Supreme Court began contemplating how the First Amendment’s commitment to “the freedom of speech” should protect the right of students to introduce their own ideas into the schoolhouse. This constitutional question extended well beyond the matter addressed in West Virginia State Board of Education v. Barnette, because that opinion—momentous though it was—held simply that students could refuse to recite the Pledge of Allegiance. But Barnette did not establish that students possessed an affirmative right to advance their own opinions, on topics of their own selection, much less in the face of school officials’ objections. The …
The Therapist Can't See You Now: How Paid Sick Leave Policy Can Accommodate Mental Illness In The Workplace, Maddy Goss
The Therapist Can't See You Now: How Paid Sick Leave Policy Can Accommodate Mental Illness In The Workplace, Maddy Goss
Arkansas Law Review
Restaurants have become the “poster child” for why employers should adopt paid sick leave. Advocates suggest that employees without access to paid sick leave often show up to work ill due to their inability to sacrifice pay. Clever protest signs read, “No Boogers in my Burger” and “No Coughing in my Coffee.” Any rational customer would not appreciate the thought of a flu-ridden chef assembling their main course. However, the benefits of paid leave legislation and policies go beyond protecting cheeseburgers from flu germs. Just as employees with the flu require time off for medical attention, employees with mental illness …