Law Commons^™

What’S Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris

University of Miami Law Review

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so.

In 2021, the Court held that a California law allowing union organizers to access private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on its head …

For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen

University of Miami Law Review

Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …

Same-Sex Marriage Judgment Asks Queer Citizens To Wait For True Equality At A Future Time That May Never Arrive, Kunal Ambasta

Popular Media

Excerpt:

"For about the last 15 years, the queer rights movement has enriched the constitutional law of this country. Some of the most cherished constitutional values and rights have been fleshed out with the movement as its springboards at the Supreme Court.... The Court fully acknowledges, in abstract, the rights of queer couples to equal treatment before the law, dignity, and of the numerous tangible and intangible benefits of the institution of marriage, but refuses to ensure any of these rights to a clear case of legal discrimination or to craft a suitable remedy."

Law And Its Limits: Ethical Issues In Mary Shelley’S Frankenstein Or, The Modern Prometheus, David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

The law and literature movement is frequently associated with the use of literary images of law as a point of reflection upon the ethical obligations of lawyers. Mary Shelley’s Frankenstein (1818)—the story of a young scientist whose unorthodox experiments end up creating the famed “monster”—is not, at first glance, a likely candidate for that enterprise. However, Dr. Frankenstein’s ambition and ruthless pursuit of knowledge has become a contemporary image of science out of control and the need for ethical limitations on scientific progress. Consequently, the novel raises currently important issues of regulating science and technology. Given the lawyer’s ethical obligation …

Mitigation Reports In Capital Cases: Legal And Ethical Issues, Russell Stetler, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The mitigation investigation that is essential in every capital case requires a multidisciplinary team. The duty to conduct this investigation is clearly established federal law, as well as an ethical obligation of counsel. The mitigation evidence that is uncovered is of vital importance to the rights of the individual accused of a capital offense, but also to reliable outcomes since all decisionmakers—including prosecutors, jurors, and judges—need the most complete and accurate picture of the person facing the punishment of last resort. This Article discusses some of the unique legal and ethical issues affecting the documentation of this investigation. The Authors …

Mental Health And The Workplace: How The Fmla And The Ada Should Work Harmoniously To Ensure Job Security And A Healthy Workplace For Employees With Mental Illness, Rafael Guzman

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Ethical Lawyering: The Role Of Honor, Conscience, And Codes, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

The Lawyer As Dream Enabler, Gerald Reamey

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Can They Handle The Truth? Teaching Law Students Ethics During A Time Of A Societal And Generational Divide, Michele N. Struffolino

St. Mary's Journal on Legal Malpractice & Ethics

Today’s law students and aspiring law students will enter law school having been bombarded with the message that they, as members of the voting public, are victims of “The Big Lie.” They likely also know that “The Big Lie” story consistently sent by politicians, activists, and others through all forms of informational outlets, including traditional and nontraditional media sources, has been found to be unsupported by facts. For legal educators, this is particularly concerning because many of those sending and supporting “The Big Lie” story are lawyers. Aspiring lawyers are left with the impression that zealous representation is relatively boundless …

Protecting Restorative Justice Participants: The Implications Of Implementing Restorative Justice Practices Without Proper Safeguards For Participants, Abigail Young

University of Miami Race & Social Justice Law Review

No abstract provided.

Drug Courts: The Risk Of An Increased Number Of Drug-Related Arrests And Long Jail Sentences, Wayne A. Comstock

University of Miami Race & Social Justice Law Review

In June 1971, President Richard Nixon declared a War on Drugs. As the War on Drugs continued throughout the 1980s, drug-related convictions increased, leading to overcrowding in prisons across the United States. Drug courts operate as an alternative to incarceration in which criminal defendants enter court mandated drug treatment programs. Judges monitor the progress of drug court participants through scheduled status hearings. However, contrary to their purpose, drug courts may contribute to incarceration by presenting the risk of an increased number of drug-related arrests in those jurisdictions that have implemented drug courts and long jail sentences imposed as sanctions for …

Deadly Decisions: Prosecutorial Misconduct And Prosecutorial Discretion In The Death Penalty System, Raegan Burke

University of Miami Race & Social Justice Law Review

No abstract provided.

Police Brutality & Unions: Collective Bargaining Is The Problem, Not Law Enforcement, Falco Anthony Muscante Ii

University of Miami Race & Social Justice Law Review

When Derek Chauvin knelt on George Floyd’s neck for more than nine minutes, and when Jason Van Dyke fired sixteen rounds at Laquan McDonald who was walking away from the responding officers, were Chauvin and Van Dyke acting exclusively of their own volition, or were their actions indicative of a deeper, systemic issue? Nearly 60% of law enforcement officers enjoy collective bargaining protections from their police unions, but these protections create a lack of accountability.

Police unions can bargain collectively with police departments because of state legislation, which typically allow for negotiation over matters affecting wages, hours, and terms and …

Restructuring The Constitution For Human Resilience, Martha T. Mccluskey

Contributions to Books

Published as Chapter 1 in Law, Vulnerability, and the Responsive State: Beyond Equality and Liberty, Martha Albertson Fineman & Laura Spitz, eds.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Anti-Woke Capitalism, The First Amendment, And The Decline Of Libertarianism, Amanda Shanor, Sarah E. Light

Northwestern University Law Review

Firms across the globe, including financial institutions like banks, asset managers, and pension fund managers, are adopting strategies to account for the risks they face from climate change. These strategies include declining to invest in certain emissions-intensive projects or advising firms in their portfolios to report or reduce climate impacts and risks. These forms of private environmental governance can be characterized as one aspect of the “E” within a broader management strategy of “ESG,” or the management of environmental, social, and governance factors. Regulators in the United States and other countries are beginning to mandate that firms take some of …

Private Patrolling At The Boundaries Of Public Duty, Kathleen M. Naccarato

Northwestern University Law Review

In the shadow of contemporary debates over police functions, funding, and accountability, a new form of preventative policing has proliferated. Improvement districts, most commonly associated with downtown revitalization efforts, increasingly served a new purpose—crime control. Communities dissatisfied with public police services have found that they may leverage improvement district tax revenues to hire off-duty police officers to patrol their neighborhoods. This trend has not been without controversy. Critics have contended that these semiprivate, semipublic police patrols create a two-tier system of public safety, allowing wealthy residents to privately purchase powers that belong to the public as a whole.

This Note …

Fiduciaries In Priest's Clothing: Clergy Sexual Abuse And Fiduciary Duty, Sebastian Richardson

Northwestern University Law Review

This Note argues that clergypersons who offer religious guidance are fiduciaries in some limited circumstances and therefore liable for sexual contact that occurs between them and congregants. This Note will argue that clergypersons are most properly deemed fiduciaries through a fact-based definitional approach. As such, this Note departs from previous arguments that clergypersons are fiduciaries because they provide services analogous to secular counselors. Prospective fiduciary relationships involving clergy should be analyzed using a distinct conceptual account of fiduciary relationships rather than an analogical analysis based on apparent similarities between a clergyperson and other fiduciaries. Such an approach is preferable to …

Reifying Injustice: Using Culturally Specific Tattoos As A Marker Of Gang Membership, Beth Caldwell

Washington Law Review

The “gang” label has been so highly racialized that white people who self- identify as gang members are almost never categorized as “gang members” by law enforcement, while Black and Latino people who are not gang members are routinely labeled and targeted as if they were. Different rules attach to people under criminal law once they are labeled gang members, yet this two-track system is justified under the guise that the racially disparate treatment is legitimate because of gang association.

This Article takes one concrete example—culturally specific tattoos—and unmasks how racial markers are used to attach the gang label. Specifically, …

Exit Engineering, Rachel Landy

Articles

How do business lawyers create value? For nearly forty years, scholars have conceptualized the business lawyer as a “transaction cost engineer” who helps contracting parties efficiently break negotiation stalemates to create more valuable deals. This theory provides meaningful insights about sophisticated corporate law practice, where outside lawyers parachute in to make one-off deals happen. However, it fails to explain the behavior of startup lawyers, who develop long-term relationships with their clients and counsel them on seemingly routine matters, well before a major transaction materializes. These lawyers are not just transaction cost engineers, they are exit engineers. This Article offers a …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Flourishing, Virtue, And The Common Good Constitutionalism, Lawrence B. Solum

Faculty Scholarship

In Common Good Constitutionalism, Professor Adrian Vermeule articulates a conception of the common good. Vermeule has much to say about the common good, but very little to say about the substantive component of his conception, which he describes as “happiness or flourishing.” This Article articulates a conception of the common good that is grounded in a virtue-centered conception of human flourishing. Humans are rational and social creatures, and therefore, flourishing for humans consists in rational and social activities that express the human excellence or virtues. The common good requires communities that facilitate human flourishing in three ways: (1) by creating …

Hydra: Lessons From The World's Largest Darknet Market, Priyanka Goonetilleke, Alex Knorre, Artem Kuriksha

Faculty Scholarship

Research Summary

We present a comprehensive description of Hydra, the largest darknet marketplace in the world until its shutdown in April 2022. We document the main features of Hydra such as dead-drop delivery, feedback and reputation system, escrow, and dispute resolution. Using data scraped from the platform, we quantitatively examine the scale and the structure of the marketplace. We find that it has been highly competitive, geographically covering at least 69% of the Russian population and trading a wide variety of drugs, while also allowing the wholesale trade of drugs and precursors. The dead-drop delivery system used on Hydra was …

Firearm Contagion: A New Look At History, Rachel Martin, Michael R. Ulrich

Faculty Scholarship

Gun violence is widely considered a serious public health problem in the United States, but less understood is what this means, if anything, for evolving Second Amendment doctrine. In New York Pistol & Rifle Association, Inc. v. Bruen, the Supreme Court held that laws infringing Second Amendment rights can only be sustained if the government can point to sufficient historical analogues. Yet, what qualifies as sufficiently similar, a suitable number of jurisdictions, or the most important historical eras all remain unclear. Under Bruen, lower courts across the country have struck down gun laws at an alarming pace, while …

Panglima Laot And Contributions In Upholding Customary Law In Aceh's Maritime Regions (Panglima Laot Dan Kontribusinya Dalam Penegakan Hukum Adat Di Perairan Aceh), Heru Susetyo, Satrio Febriyanto, Shaubi Laidinar, Wahyumi Ilahidayah, Muhammad Febriansyah, Nadila Mahilaveda

The Indonesian Journal of Socio-Legal Studies

Panglima Laot has been felt in Aceh since the era of Sultan Iskandar Muda and is still known today. Panglima Laot is not part of the Aceh government but is recognized as Aceh's cultural heritage. Later, Panglima Laot was also regulated in the Aceh Qanun as the living law in Aceh. Culturally, it can be said that the Marine Commander is the leader of the fishermen in Aceh, whose job is to coordinate the fishermen, maintain maritime security according to their respective territories, and conserve Aceh's marine environment. This article examines the existence of Panglima Laot in Aceh in this …

Dobbs V. Jackson Women’S Health: Undermining Public Health, Facilitating Reproductive Coercion, Aziza Ahmed, Dabney P. Evans, Jason Jackson, Benjamin Mason Meier, Cecília Tomori

Faculty Scholarship

Dobbs v. Jackson Women’s Health continues a trajectory of U.S. Supreme Court jurisprudence that undermines the normative foundation of public health — the idea that the state is obligated to provide a robust set of supports for healthcare services and the underlying social determinants of health. Dobbs furthers a longstanding ideology of individual responsibility in public health, neglecting collective responsibility for better health outcomes. Such an ideology on individual responsibility not only enables a shrinking of public health infrastructure for reproductive health, it facilitates the rise of reproductive coercion and a criminal legal response to pregnancy and abortion. This commentary …

“Social Workers By Day And Terrorists By Night?” Wounded Healers, Restorative Justice, And Ex-Prisoner Reentry, Allely Albert

Articles

Common to many post-conflict societies, former political prisoners and combatants in Northern Ireland are often portrayed as security threats rather than as potential contributors to societal peacebuilding processes. This distrust limits their ability to contribute to the transitional landscape and additionally hinders desistance processes during their reentry from prison. Drawing from the work of Maruna, LeBel, and others on “wounded healers,” this article critically examines the restorative justice work of ex-prisoners who have become involved in leadership roles within community based restorative justice. It is argued that such practitioner work can help former combatants overcome many of the challenges typically …

What Do Law Professors Believe About Law And The Legal Academy?, Eric H. Martinez, Kevin Tobia

Faculty Scholarship

Legal scholarship is replete with debates about competing legal theories: textualism or purposivism; formalism or realism; natural law or positivism; prison reform or abolition; universal or culturally specific human rights? Despite voluminous literature about these debates, great uncertainty remains about which views experts endorse. This Article presents the first dataset of American law professors’ views about legal theory. A study of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding debates.

Law professors also debate questions about the legal academy. These include descriptive questions: Which subjects (for example, constitutional law) and methods (for example, law …

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Free, Prior Informed Consent And Extractive Industry: Indigenous Action Is The Past, Present, And Future Of Global Environmental Justice, Paige Bellamy

Environmental and Earth Law Journal (EELJ)

Free, Prior Informed Consent ("FPIC") from the UN Declaration on the Rights of Indigenous Peoples has been central to global Indigenous action against extractive industries’ harmful practices. Yet, it is often not fully recognized as a sovereign right, which hinders Indigenous peoples’ ability to use it to its full potential. Historically, FPIC has been deemed a consultation right, not a right to “veto” industry action on Indigenous land. Countries that have interpreted FPIC as a mere consultation right have allowed further exploitation of Indigenous peoples, usually leading to environmental and humanitarian disasters. However, when courts have respected the right to …