Law Commons^™

Religious Law (Especially Islamic Law) In American Courts, Eugene Volokh

Oklahoma Law Review

No abstract provided.

Oklahoma's Indigency Determination Scheme: A Call For Uniformity, Carrie Savage Phillips

Oklahoma Law Review

No abstract provided.

Third Party Records Protection On The Model Of Heightened Scrutiny, Marc J. Blitz

Oklahoma Law Review

No abstract provided.

Big Data Distortions: Exploring The Limits Of The Aba Leatpr Standards, Andrew G. Ferguson

Oklahoma Law Review

Before moving on to my contribution about how the growing reliance on big data analytics may necessitate a slight modification to the ABA Standards on Law Enforcement Access to Third Party Records (LEATPR Standards), I would like first to pay a few compliments to the drafters of the LEATPR Standards for producing such a systematic, thoughtful, and elegant framework for considering Fourth Amendment freedoms. As anyone who writes about or teaches the Fourth Amendment knows, the doctrine remains a theoretical muddle. Yet, despite a minefield of conflicting precedent, the drafters of the LEATPR Standards have managed to construct a defensible …

Intending To Confuse: Why Preponderance Is The Proper Burden Of Proof For Intentional Trademark Infringements Under The Lanham Act, Kelly Collins

Oklahoma Law Review

No abstract provided.

Private Enforcement Of The Kansas Wage Payment Act, Joseph Schremmer

Faculty Articles

The argument of this article is that there should be greater private enforcement of the KWPA, and that this goal can be achieved by amending the KWPA to include an attorney fee shifting provision that awards prevailing plaintiffs their reasonable attorney fee. A fee shift is necessary for three reasons. First, without a fee shift, deserving employees are unfairly barred from enforcing their wage payment claims in court. Second, an attorney fee shift is necessary to give meaning to the rights granted by the KWPA, which are rendered hollow by the lack of enforcement under the present system. And third, …

The End Of Indeterminacy In Affirmative Action, Carla Pratt

Faculty Articles

After the Supreme Court's decision in Fisher v. UT Austin, the stage has been set for judges to demand more specificity in the articulation of the protected diversity interest. Gone are the days when institutions of higher education could rely on the abstract concept of diversity to support efforts to enroll a diverse student body. Now higher education institutions will need to give serious thought to how they define the sought after diversity interest and how racial diversity improves educational outcomes and enhances the education that is delivered.

Why The United States Cannot Agree To Disagree On Blasphemy Laws, Evelyn Aswad, Rashad Hussain, M. Suleman

Faculty Articles

At the Boston University International Law Journal's symposium "Realigning Western Policy and International Law after the Arab Spring," held on March 25, 2013, Professor Aswad gave the keynote address, where she described the extensive U.S. diplomatic efforts to promote the broadest possible protections for freedoms of expression and religion, even when it comes to speech that is considered blasphemous. A symposium participant asked why the United States cannot just agree to disagree with Muslim-majority countries on the treatment of blasphemy given the religious sensibilities in those countries and the number of other pressing equities the United States has pending with …

Following Fisher: Narrowly Tailoring Affirmative Action, Eang Ngov

Faculty Articles

Affirmative action has been at the forefront of educational policies and to this day continues to enliven debates. For decades, schools have litigated over whether affirmative action can be used to create a diverse student body. Now, the litigation has shifted to whether affirmative action policies are narrowly tailored. The Supreme Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, requires that schools prove that there are no workable race neutral alternatives in order to demonstrate that their affirmative action programs are narrowly tailored. This article examines the available race neutral alternatives: percentage plans; socioeconomic based …

Where Strict Meets Substantial: Oklahoma Standards For The Execution Of A Will, Katheleen Guzman

Faculty Articles

No abstract provided.

Reforming The Grand Jury To Protect Privacy In Third Party Records, Andrew Taslitz, Stephen E. Henderson

Faculty Articles

In late 2014, two grand juries returned controversial no bill decisions in police killings, one in Ferguson, Missouri, and one in New York City. These outcomes have renewed calls for grand jury reform, and whatever one thinks of these particular processes and outcomes, such reform is long overdue. One logical source of reform to better respect privacy in records, which would have incidental benefits beyond this privacy focus, would be the newly enacted American Bar Association Standards for Criminal Justice on Law Enforcement Access to Third Party Records (LEATPR).

But LEATPR exempts from its requirements access to records via a …

Crowdsourced Coursebooks, Stephen E. Henderson, Joseph Thai

Faculty Articles

Given increasing criticism and dropping admissions, American legal education is likely to change, hopefully reversing the unsustainable trend of increasing expense without increasing value. Much debate focuses on restructuring the curriculum to make it more “practical” and skills-infused; here we instead propose a rethinking of the basic unit of law teaching, the casebook. Casebook authors and publishers are cautiously venturing into electronic editions, but they fail to harness the power of social learning to make textbooks dramatically smarter as well as cheaper. Working with a technology startup, we are developing an online platform that reinvents both authorship and learning. The …

Our Records Panopticon And The American Bar Association Standards For Criminal Justice, Stephen E. Henderson

Faculty Articles

"Secrets are lies. Sharing is caring. Privacy is theft." So concludes the main character in Dave Egger’s novel The Circle, in which a single company that unites Google, Facebook, and Twitter – and on steroids – has the ambition not only to know, but also to share, all of the world's information. It is telling that a current dystopian novel features not the government in the first instance, but instead a private third party that, through no act of overt coercion, knows so much about us. This is indeed the greatest risk to privacy in our day, both the unprecedented …

The Economics And Sociality Of Sharing Intellectual Property Rights, Eric E. Johnson

Faculty Articles

Intellectual property law assumes that people need monetary incentives to create; to this end, it enables the formation of markets for intellectual works. Remarkably, however, sharing — i.e., socially mediated gifting without any expectation of payment — may work much better than markets for distributing the bulk of intellectual property. This Article explains why. While markets work by using money as the medium of exchange, money is actually a poor incentive for creative labors. Emerging research shows that payment in the currency of gratitude and social validation is a far more effective form of encouragement, and it is something sharing …

Theories Of Immigration Law, Kit Johnson

Faculty Articles

Legal scholarship lacks a comprehensive account of the theoretical underpinnings of immigration law. This Article attempts to fill that void by identifying four theories to explain various aspects of immigration law and the arguments advanced in support of such law: (1) individual rights theory, which turns on the prospective migrant’s right of entry into the United States, (2) domestic interest theory, which considers whether and to what degree allowing migrants into the United States will benefit the country as a whole, (3) national values theory, which focuses on whether the admission of migrants promotes the fundamental values of the country, …

The Cost Of Avoidance: Pluralism, Neutrality, And The Foundations Of Modern Legal Ethics, Melissa Mortazavi

Faculty Articles

No abstract provided.

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian Mccall

Faculty Articles

No abstract provided.

Of "Texans" And "Custers": Maximizing Welfare And Efficiency Through Informal Norms, M. Alexander Pearl

Faculty Articles

Professor Robert Ellickson (Yale) theorized that the informal norms of a close-knit community maximize aggregate welfare and Professor Barak Richman (Duke) identified two distinct types of private ordering systems: “shadow of law” and “order without law.” Under the Ellickson-Richman structure, many Indian tribes qualify as close-knit groups where informal norms effectively operate. The additional trait of isolation — both geographic and cultural — makes them ideal communities for the prioritization of informal norms. The imposition of external law, such as state law, is harmful and unnecessary to the maintenance of order in these communities. Recent legislative efforts to ameliorate criminal …

How "Bad Law, Bad Economics And Bad Policy" Positively Shaped Corporate Behavior, Megan Wischmeier Shaner

Faculty Articles

No abstract provided.

An Environmental Conversation, William Murray Tabb

Faculty Articles

Federal environmental law and policy ambitiously purports to provide clean air and water, protect endangered and threatened species, clean-up hazardous and toxic waste sites, and infuse environmental considerations into the decision-making process of all federal agencies with respect to major proposals impacting the environment. Despite such lofty goals and an expansion of the regulatory state, certain types of activities and associated risks have eluded statutory coverage. Additionally, these uncoordinated federal environmental statutes typically embody a singular and sometimes myopic focus, leading to unpredictable or undesirable regulatory gaps, constraints, and inefficiencies. Further, limitations on standing and judicial review may significantly limit …

Taxes, The Problem And Solution: A Model For Vanishing Deductions And Exclusions For Residence-Based Tax Preferences, Phyllis C. Taite

Faculty Articles

No abstract provided.

Lost In The Shuffle: How Health And Disability Laws Hurt Disordered Gamblers, Stacey A. Tovino

Faculty Articles

Gambling disorder is not a legally sympathetic health condition. Health insurance policies and plans have long excluded treatment for gambling disorder from health insurance coverage. Individuals with gambling disorder who seek disability income insurance benefits from public and private disability income insurers also tend not to be successful in their claims. In addition federal and state antidiscrimination laws currently exclude individuals with gambling disorder from disability discrimination protections. This Article is the first law review article to challenge the legal treatment of individuals with gambling disorder by showing how health insurance and antidiscrimination laws hurt problem gamblers. Using neuroscience, economics, …

Silence Is Golden ... Except In Health Care Philanthropy, Stacey A. Tovino

Faculty Articles

No abstract provided.

Our Records Panopticon And The American Bar Association Standards For Criminal Justice, Stephen E. Henderson

Oklahoma Law Review

“Secrets are lies. Sharing is caring. Privacy is theft.” So concludes the main character in Dave Egger’s novel, The Circle, in which a single company that unites Google, Facebook, and Twitter—and on steroids—has the ambition not only to know, but also to share, all of the world’s information. It is telling that a current dystopian novel features not the government in the first instance, but instead a private third party that, through no act of overt coercion, knows so much about us. This is indeed the greatest risk to privacy in our day, both the unprecedented, massive collection and retention …

Cause To Believe What? The Importance Of Defining A Search's Object—Or, How The Aba Would Analyze The Nsa Metadata Surveillance Program, Christopher Slobogin

Oklahoma Law Review

Courts and scholars have devoted considerable attention to the definition of probable cause and reasonable suspicion. Since the demise of the “mere evidence rule” in the 1960s, however, they have rarely examined how these central Fourth Amendment concepts interact with the “object” of the search. That is unfortunate, because this interaction can have significant consequences. For instance, probable cause to believe that a search “might lead to evidence of wrongdoing” triggers a very different inquiry than probable cause to believe that a search “will produce evidence of criminal activity.” The failure to address the constraints that should be imposed on …

Ubiquitous Privacy, Thomas P. Crocker

Oklahoma Law Review

No abstract provided.

Light In The Darkness: How The Leatpr Standards Guide Legislators In Regulating Law Enforcement Access To Cell Site Location Records, Susan Freiwald

Oklahoma Law Review

No abstract provided.

The Aba Standards For Criminal Justice: Law Enforcement Access To Third Party Records: Critical Perspectives From A Technology-Centered Approach To Quantitative Privacy, David C. Gray

Oklahoma Law Review

No abstract provided.

Lessons From The Nba Lockout: Union Democracy, Public Support, And The Folly Of The National Basketball Players Association, Matthew Parlow

Oklahoma Law Review

By most accounts, the National Basketball Players Association (NBPA)—the union representing the players in the NBA—conceded a significant amount of money and other contractual terms in the new ten year collective bargaining agreement (2011 Agreement) that ended the 2011 NBA lockout. Player concessions were predictable because the NBA’s economic structure desperately needed an overhaul. The magnitude of such concessions, however, was startling. The substantial changes in the division of basketball-related income, contract lengths and amounts, salary cap provisions, and revenue sharing rendered the NBA lockout—and the resulting 2011 Agreement—a near-complete victory for the owners. Several interpretations have been offered to …

The Ada Amendments Act Of 2008: Why The Qualified Individual Analysis Is The New Battleground For Employment Discrimination Suits, Andrew E. Henry

Oklahoma Law Review

No abstract provided.