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Full-Text Articles in Law

The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw Mar 2024

The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw

Articles

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates …


Abortion Pills, David S. Cohen, Greer Donley, Rachel Rebouché Jan 2023

Abortion Pills, David S. Cohen, Greer Donley, Rachel Rebouché

Articles

Abortion is now illegal in roughly a third of the country, but abortion pills are more widely available than ever before. Though antiabortion advocates and legislators are attacking pills with all manner of strategies, clinics, websites, and informal networks are openly facilitating the distribution of abortion pills, legally and illegally, across the United States. This Article is the first to explain this defining aspect of the post-Roe environment and the novel issues it raises at the level of state law, federal policy, and on-the-ground advocacy.

This Article first details antiabortion strategies to stop pills by any means necessary. These tactics …


The New Laboratories Of Democracy, Gerald S. Dickinson Jan 2023

The New Laboratories Of Democracy, Gerald S. Dickinson

Articles

Nearly a century ago, Justice Louis D. Brandeis’s dissent in New State Ice Co. v. Liebman coined one of the most profound statements in American law: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Justice Brandeis reminded us of our strong tradition of federalism, where the states, exercising their sovereign power, may choose to experiment with new legislation within their separate jurisdictions without the concern that such …


A Theory Of Federalization Doctrine, Gerald S. Dickinson Jan 2023

A Theory Of Federalization Doctrine, Gerald S. Dickinson

Articles

The doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in …


Judicial Federalization Doctrine, Gerald S. Dickinson Jan 2023

Judicial Federalization Doctrine, Gerald S. Dickinson

Articles

This Article explores the concept of “judicial federalization doctrine.” The doctrine emanates from well-documented areas of federal constitutional law, including exactions, racially motivated peremptory challenges, the exclusionary rule, same-sex sodomy, marriage, and freedom of speech and press. The origin and development of these federal doctrines, however, is anything but federal. The U.S. Supreme Court has, on rare occasions, heavily consulted with or borrowed from state court doctrines to create a new federal jurisprudence. While the literature addressing the Court’s occasional vertical dependence on state court doctrine is sparse, there is a complete absence of scholarly attention studying the Court’s reluctance …


Public Good Through Charter Schools?, Philip Hackney Jan 2023

Public Good Through Charter Schools?, Philip Hackney

Articles

Should nonprofit charter schools be considered “charitable” under § 501(c)(3) of the Internal Revenue Code and be entitled to the benefits that go with that designation (income tax exemption, charitable contribution deduction, etc.)? Current tax law treats them as such; the question is whether there is a good rationale for this treatment. In addition to efficiency and equity, I consider political justice as a value in evaluating tax policy. By political justice, I mean a democratic system that prioritizes the opportunity for more people to have a voice in collective decisions (political voice equality or PVE). Thus, a tax policy …


The Failed Federalism Of Affordable Housing: Why States Don't Use Housing Vouchers, Noah Kazis Jan 2023

The Failed Federalism Of Affordable Housing: Why States Don't Use Housing Vouchers, Noah Kazis

Articles

This Article uncovers a critical disjuncture in our system of providing affordable rental housing. At the federal level, the oldest, fiercest debate in low-income housing policy is between project-based and tenant-based subsidies: should the government help build new affordable housing projects or help renters afford homes on the private market? But at the state and local levels, it is as if this debate never took place. The federal government (following most experts) employs both strategies, embracing tenant-based assistance as more cost-effective and offering tenants greater choice and mobility. But this Article shows that state and local housing voucher programs are …


Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer Jan 2022

Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer

Articles

An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” …


The New Abortion Battleground, David S. Cohen, Greer Donley, Rachel Rebouché Jan 2022

The New Abortion Battleground, David S. Cohen, Greer Donley, Rachel Rebouché

Articles

This Article examines the paradigm shift that is occurring now that the Supreme Court has overturned Roe v. Wade. Returning abortion law to the states has spawned perplexing legal conflicts across state borders and between states and the federal government. This article emphasizes how these issues intersect with innovations in the delivery of abortion, which can now occur entirely online and transcend state boundaries. The interjurisdictional abortion wars are coming, and this Article is the first to provide the roadmap for the immediate aftermath of Roe’s reversal and what lies ahead.

Judges and scholars, and most recently the Supreme …


Re-Thinking Strategy After Roe, David S. Cohen, Greer Donley, Rachel Rebouché Jan 2022

Re-Thinking Strategy After Roe, David S. Cohen, Greer Donley, Rachel Rebouché

Articles

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturns nearly fifty years of precedent and radically changes abortion law, throwing both sides of the debate into uncharted territory. This essay, published in the immediate aftermath of Dobbs, offers some initial thoughts about what the changed legal landscape means for abortion rights legal advocacy. Our focus in recent writings has been to identify concrete measures federal and state actors can take to secure abortion access after Dobbs. Here, we investigate a more overarching concern: what fundamental values and strategies should govern the abortion rights movement going …


Beyond The Public Square: Imagining Digital Democracy, Mary Anne Franks Nov 2021

Beyond The Public Square: Imagining Digital Democracy, Mary Anne Franks

Articles

To create online spaces that do not merely replicate existing hierarchies and reinforce unequal distributions of social, economic, cultural, and political power, we must move beyond the simplistic clich6 of the unregulated public square and commit to the hard work of designing for democracy.

When we say 'public square,' ... we need to ask- who or what is this public? Who owns this space, what makes it public? . . . This is the essence of democracy: the ability to question power, and the power to do so. - Tom Wilkinson


Federalizing Tax Justice, Reuven Avi-Yonah, Orli Avi-Yonah, Nir Fishbien, Hayian Xu Feb 2021

Federalizing Tax Justice, Reuven Avi-Yonah, Orli Avi-Yonah, Nir Fishbien, Hayian Xu

Articles

The United States is the only large federal country that does not have an explicit way to reduce the economic disparities among more and less developed regions. In Germany, for example, federal revenues are distributed by a formula that takes into account the relative level of wealth of each state (the so-called Finanzausgleich, or fiscal equalization). Similar mechanisms are found in Australia, Canada, India, and other large federal countries. The United States, on the other hand, has no such explicit redistribution. Each state is generally considered equal and sovereign, and the federal government does not distribute revenues to equalize …


Protecting Patients From Physicians Who Inflict Harm: New Legal Resources For State Medical Boards, Elizabeth Pendo, Tristan Mcintosh, Heidi A. Walsh, Kari Baldwin, James M. Dubois Jan 2021

Protecting Patients From Physicians Who Inflict Harm: New Legal Resources For State Medical Boards, Elizabeth Pendo, Tristan Mcintosh, Heidi A. Walsh, Kari Baldwin, James M. Dubois

Articles

State medical boards (SMBs) protect the public by ensuring that physicians uphold appropriate standards of care and ethical practice. Despite this clear purpose, egregious types of wrongdoing by physicians are alarmingly frequent, harmful, and under-reported. Even when egregious wrongdoing is reported to SMBs, it is unclear why SMBs sometimes fail to promptly remove seriously offending physicians from practice. Legal and policy tools that are targeted, well-informed, and actionable are urgently needed to help SMBs more effectively protect patients from egregious wrongdoing by physicians.

Past reviews of SMB performance have identified features of SMBs associated with higher rates of severe disciplinary …


Private Confederate Monuments, Jessica Owley, Jess Phelps, Sean W. Hughes Jan 2021

Private Confederate Monuments, Jessica Owley, Jess Phelps, Sean W. Hughes

Articles

As public Confederate monuments finally begin to come down across the nation, we are seeing an emergence of Confederate monuments on private lands. The number of private Confederate monuments is increasing both with the construction of new monuments and, more significantly, the relocation of monuments from public land. This Article explains why private Confederate monuments are likely to be the next battleground over these controversial and troubling statues. Through ten detailed examples, we show how private Confederate monuments emerge and how communities are responding to them. The challenges related to monuments on private land are different than those on public …


Is There A Delaware Effect For Controlled Firms?, Edward Fox Jan 2021

Is There A Delaware Effect For Controlled Firms?, Edward Fox

Articles

The impact of Delaware incorporation on firm value remains a central question in corporate law. Despite the difficulty scholars have had in agreeing on an answer to this question, there is a consensus that Delaware has long enjoyed stable and important advantages in the expertise of its judiciary and its extensive case law. These advantages are believed to be particularly important for firms with a controlling shareholder. This Article attempts to empirically measure the effect of Delaware incorporation on these controlled firms and thus helps us understand the market value of Delaware’s judiciary and case law. It finds, surprisingly, that …


Political Justice And Tax Policy: The Social Welfare Organization Case, Philip Hackney Jan 2021

Political Justice And Tax Policy: The Social Welfare Organization Case, Philip Hackney

Articles

In addition to valuing whether a tax policy is equitable, efficient, and administrable, I argue we should ask if a tax policy is politically just. Others have made a similar case for valuing political justice as democracy in implementing just tax policy. I join that call and highlight why it matters in one arena – tax exemption. I argue that politically just tax policy does the least harm to the democratic functioning of our government and may ideally enhance it. I argue that our right to an equal voice in collective decision making is the most fundamental value of political …


The Life And Death Of Confederate Monuments, Jessica Owley, Jess Phelps Dec 2020

The Life And Death Of Confederate Monuments, Jessica Owley, Jess Phelps

Articles

Confederate monuments have again received increased attention in the aftermath of George Floyd's tragic death in Minneapolis, Minnesota, on May 25, 2020. Momentum and shifting public opinion are working toward the removal of these problematic monuments across the country. This Article seeks to provide insight for monument-removal advocates: specifically focusing on the legal issues associated with the "death" or removal of these monuments, how property law shapes and defines these efforts, and briefly examining what happens to these statues after removal. Our exploration of Confederate monuments reveals that some removal efforts occur outside of legally created processes. Both public and …


Towards An Urban Disability Agenda, Samuel R. Bagenstos Nov 2020

Towards An Urban Disability Agenda, Samuel R. Bagenstos

Articles

The overwhelming majority of Americans with disabilities live in metropolitan areas. Yet those areas continue to contain significant barriers that keep disabled people from fully participating in city life. Although political and social debate has periodically turned its attention to urban issues or problems — or even the so-called “urban crisis” — during the past several decades, it has too rarely attended to the issues of disability access. When political debate has focused on disability issues, it has tended to address them in a nationally uniform way, without paying attention to the particular concerns of disabled people in cities. Even …


Discerning A Dignitary Offense: The Concept Of Equal 'Public Rights' During Reconstruction, Rebecca J. Scott Aug 2020

Discerning A Dignitary Offense: The Concept Of Equal 'Public Rights' During Reconstruction, Rebecca J. Scott

Articles

The mountain of modern interpretation to which the language of the Fourteenth Amendment of the United States Constitution has been subjected tends to overshadow the multiple concepts of antidiscrimination that were actually circulating at the time of its drafting. Moreover, as authors on race and law have pointed out, Congress itself lacked any African American representatives during the 1866–68 moment of transitional justice. The subsequent development of a “state action doctrine” limiting the reach of federal civil rights enforcement, in turn, eclipsed important contemporary understandings of the harms that Reconstruction-era initiatives sought to combat. In contrast to the oblique language …


Incrementalist Vs. Maximalist Reform: Solitary Confinement Case Studies, Margo Schlanger Aug 2020

Incrementalist Vs. Maximalist Reform: Solitary Confinement Case Studies, Margo Schlanger

Articles

Among criminal justice reformers, it has long been hotly contested whether moderate reform helps or harms more efforts to achieve more thoroughgoing change. With respect to solitary confinement, do partial and ameliorative measures undermine the goal of solitary confinement abolition? Or do reformist campaigns advance—albeit incrementally—that ultimate goal? Call this a debate between “incrementalists” and “maximalists.” I offer this Essay as an appeal for empirical rather than aesthetic inquiry into the question. After summarizing nationwide reform litigation efforts that began in the 1970s, I try to shed some factual light by examining solitary reform efforts in two states, Massachusetts and …


Winks, Whispers, And Prosecutorial Discretion In Rural Iowa, 1925-1928, Emily Prifogle Jul 2020

Winks, Whispers, And Prosecutorial Discretion In Rural Iowa, 1925-1928, Emily Prifogle

Articles

Through the eyes of Charles Pendleton’s memoirs, this article walks through a rural community with a county attorney to consider how race, religion, gender, and sexuality influenced rural prosecutorial discretion in the early twentieth century. Rural communities like those in Buena Vista County, Iowa, where the article is centered, experienced “the law” through distinctly isolated geographies and social networks that lacked anonymity and thus shaped available methods of conflict resolution. But anonymity did not mean homogeneity. Ethnic, racial, and religious diversity created divisions within a community where social distance between individuals was small. Both onymity and diversity shaped who should …


The Effects Of Anti-Immigrant Laws In The U.S. On Victims Of Domestic Violence, Sexual Assault, And Human Trafficking: A Gender-Based Human Rights Analysis, Caroline Bettinger-López, Jamila Flomo, Amanda Suarez Apr 2020

The Effects Of Anti-Immigrant Laws In The U.S. On Victims Of Domestic Violence, Sexual Assault, And Human Trafficking: A Gender-Based Human Rights Analysis, Caroline Bettinger-López, Jamila Flomo, Amanda Suarez

Articles

No abstract provided.


Rethinking Foster Care: Why Our Current Approach To Child Welfare Has Failed, Vivek Sankaran, Christopher Church Apr 2020

Rethinking Foster Care: Why Our Current Approach To Child Welfare Has Failed, Vivek Sankaran, Christopher Church

Articles

Over the past decade, the child welfare system has expanded, with vast public and private resources being spent on the system. Despite this investment, there is scant evidence suggesting a meaningful return on investment. This Article argues that without a change in the values held by the system, increased funding will not address the public health problems of child abuse and neglect.


Congressional Power To Guarantee State Democracy, Benjamin Plener Cover Mar 2020

Congressional Power To Guarantee State Democracy, Benjamin Plener Cover

Articles

No abstract provided.


Prenatal Drug Exposure As Aggravated Circumstances, Frank E. Vandervort Nov 2019

Prenatal Drug Exposure As Aggravated Circumstances, Frank E. Vandervort

Articles

In Michigan, "a child has a legal right to begin life with sound mind and body." Yet the family court may not assert Juvenile Code jurisdiction until after birth. In re Baby X addressed the question of whether a parent's prenatal conduct may form the basis for jurisdiction upon birth. It held that a mother's drug use during pregnancy is neglect, allowing the court to assert jurisdiction immediately upon the child's birth. In deciding Baby X, the Court specifically reserved the question of whether parental drug use during pregnancy might be sufficient to permanently deprive a parent of custody. …


New Juvenile Discovery Rules: Mandatory, Comprehensive, And Streamlined., Joshua B. Kay Jul 2019

New Juvenile Discovery Rules: Mandatory, Comprehensive, And Streamlined., Joshua B. Kay

Articles

The recently promulgated amendments and additions to the civil discovery rules include several changes affecting child protection and juvenile delinquency proceedings.1 The updates should make discovery in juvenile court matters more efficient by clarifying what is discoverable and requiring more timely exchange of information.


A Cure Worse Than The Disease? The Impact Of Removal On Children And Their Families, Vivek Sankaran, Christopher Church, Monique Mitchell Jul 2019

A Cure Worse Than The Disease? The Impact Of Removal On Children And Their Families, Vivek Sankaran, Christopher Church, Monique Mitchell

Articles

Removing children from their parents is child welfare's most drastic intervention. Research clearly establishes the profound and irreparable damage family separation can inflict on children and their parents. To ensure that this intervention is only used when necessary, a complex web of state and federal constitutional principles, statutes, administrative regulations, judicial decisions, and agency policies govern the removal decision. Central to these authorities is the presumption that a healthy and robust child welfare system keeps families together, protects children from harm, and centers on the needs of children and their parents. Yet, research and practice-supported by administrative data-paint a different …


Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane May 2019

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

Articles

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …


The New Agriculture: From Food Farms To Solar Farms, Jessica Owley, Amy Wilson Morris Jan 2019

The New Agriculture: From Food Farms To Solar Farms, Jessica Owley, Amy Wilson Morris

Articles

Across the United States, government agencies and energy developers are looking to agricultural land for development of renewable energy. One attraction of agricultural lands is that they are already relatively ecologically impaired compared with the previous solar development sites in the California and Arizona desert that have been a major source of concern for many environmental groups-and subject to expensive mitigation requirements under the Endangered Species Act. Renewable energy development pressures are accelerating the existing loss of agricultural land, heightening concerns about food security and the economic viability of agricultural communities. California farmland is at the center of this conflict. …


Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps Jan 2019

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Articles

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to "public" monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an …