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Articles 1 - 23 of 23
Full-Text Articles in Law
Deceptively Simple: The Arkansas Deceptive Trade Practices Act, Margaret E. Rushing
Deceptively Simple: The Arkansas Deceptive Trade Practices Act, Margaret E. Rushing
Arkansas Law Review
In the 2017 legislative session, the Arkansas General Assembly significantly changed the Arkansas Deceptive Trade Practices Act (“ADTPA”). These changes now prohibit private class actions under the ADTPA and require plaintiffs to prove additional elements of reliance and actual financial loss when bringing a claim. The changes appear to limit the ability of a consumer to bring a private action under the ADPTA. With these changes, Arkansas joins a minority of jurisdictions with deceptive trade practices acts that increase a plaintiff’s burden and restrict private class actions.
Revamping The Right To Be Informed: Protecting Consumers Under New Jersey's Truth-In-Consumer Contract, Warranty, And Notice Act*, Jessica Guarino
Revamping The Right To Be Informed: Protecting Consumers Under New Jersey's Truth-In-Consumer Contract, Warranty, And Notice Act*, Jessica Guarino
Arkansas Law Review
Prior to the 1960s, “courts were notorious for their insensitivity to consumer interests, while legislatures did little in the way of offering the consumer comprehensive protection against business fraud.”1 However, the tide of legislation began to turn in the 1960s as a movement for greater consumer protections finally reached the ears of an individual with a powerful voice: President John F. Kennedy.
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 …
"Body" Building: Expanding Arkansas's Standard For Holographic Wills, Andrew L. Lawson
"Body" Building: Expanding Arkansas's Standard For Holographic Wills, Andrew L. Lawson
Arkansas Law Review
In times past, entirely handwritten documents represented the vast majority of holographic wills. These homemade testaments included dense pages of text that the drafter diligently memorialized by hand, carefully crafted letters with testamentary directions to the author’s loved ones, and unassuming notes tucked away in a drawer, perhaps with names, proportions, and shorthand property descriptions. If a probate court encountered a holographic testament, odds were that it resembled these traditional examples.
Administrative Balance, David Russell
Administrative Balance, David Russell
Arkansas Law Review
Two of the most discussed administrative-law theories in contemporary discussion are executive preemption and big waiver. Executive preemption is the idea that agency regulations preempt state law by extension of the federal statutes the agencies are charged with enforcing. Big waiver is the idea that Congress delegates, to administrative agencies, the power to waive statutory provisions. The constitutional questions raised by executive preemption and big waiver can be put in the following terms. Executive preemption raises constitutional issues as regulatory agencies go farther and farther away from the “clear statement” of a given statute. Thus, one wonders whether agencies are …
Stylish Legal Citation, Alexa Z. Chew
Stylish Legal Citation, Alexa Z. Chew
Arkansas Law Review
Can legal citations be stylish? Is that even a thing? Yes, and this Article explains why and how. The usual approach to writing citations is as a separate, inferior part of the writing process, a perfunctory task that satisfies a convention but is not worth the attention that stylish writers spend on the “real” words in their documents. This Article argues that the usual approach is wrong. Instead, legal writers should strive to write stylish legal citations—citations that are fully integrated with the prose to convey information in a readable way to a legal audience.
Recent Developments: The Right To A Fair Cross-Section Of The Community And The Black Box Of Jury Pool Selection In Arkansas, Raelynn J. Hillhouse
Recent Developments: The Right To A Fair Cross-Section Of The Community And The Black Box Of Jury Pool Selection In Arkansas, Raelynn J. Hillhouse
Arkansas Law Review
A Washington County, Arkansas court conducted a hearing on October 15, 2018 on a criminal defendant’s motion to compel discovery to assure a fair and accurate cross-section of the community for the jury as guaranteed by the United States and Arkansas Constitutions. At the hearing, the jury coordinator for the Circuit Clerk’s office testified that counties may elect to use a state-sponsored jury selection computer program, or they may use proprietary programs. Washington County uses a proprietary computer program to select the jury pool from a list of registered voters. The clerk described how her office takes an extra step …
Recent Developments, Raelynn J. Hillhouse
A Constellation Of Benefits And A Universe Of Equal Protection: The Extension Of The Right To Marry Under Pavan V. Smith, Brad Aldridge
A Constellation Of Benefits And A Universe Of Equal Protection: The Extension Of The Right To Marry Under Pavan V. Smith, Brad Aldridge
Arkansas Law Review
In 2015, the Supreme Court of the United States in Obergefell v. Hodges recognized the constitutional right of all persons, including same-sex couples, to lawfully marry. In 2017, in Pavan v. Smith, the Court recognized that Obergefell extends that right to much more than the act of marriage in itself. Any person who would have been denied the right to marry the person of her choice before Obergefell now enjoys not only the rights of marriage licensing and recognition, but also the full “constellation” of rights and responsibilities that attend marriage among traditional opposite-sex couples. The Court believed that this …
Identities Lost: Enacting Federal Law Mandating Disclosure & Notice After A Data Security Breach, John Ogle
Identities Lost: Enacting Federal Law Mandating Disclosure & Notice After A Data Security Breach, John Ogle
Arkansas Law Review
Identity theft is real, it’s here, and consumers need protection. Over the past five years hackers have stolen billions of consumers’ sensitive information like social security numbers, addresses, and bank routing numbers from companies that have neglected their security measures. Most of the time these security breaches are easily preventable. Companies sometimes wait weeks, months, or even years to inform the customers whose information was stolen because there is no federal law that requires disclosure. As of 2018, all 50 states have adopted security breach notification laws that require companies to inform consumers that their information may have been stolen …
What Fema Should Do After Puerto Rico: Toward Critical Administrative Constitutionalism, Yxta Maya Murray
What Fema Should Do After Puerto Rico: Toward Critical Administrative Constitutionalism, Yxta Maya Murray
Arkansas Law Review
The 200th anniversary of the 1819 Supreme Court decision McCulloch v. Maryland offers scholars a special opportunity to study the shortcomings of the federal The Robert T. Stafford Disaster Relief and Emergency Assistance Act, as they were revealed by FEMA’s failures in Puerto Rico during and after Hurricane Maria. Under Article I, Section 8 of the Constitution, as it has been interpreted by McCulloch, a law passed by Congress must be necessary and proper for executing its powers. In light of the expansive capacities allotted for disaster relief under the Stafford Act, and the catastrophic failure of FEMA to provide …
Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz
Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz
Arkansas Law Review
On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at the …
Overruling Mcculloch?, Mark A. Graber
Overruling Mcculloch?, Mark A. Graber
Arkansas Law Review
Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism. …
M'Culloch In Context, Mark R. Killenbeck
M'Culloch In Context, Mark R. Killenbeck
Arkansas Law Review
M’Culloch v. Maryland is rightly regarded as a landmark opinion, one that affirmed the ability of Congress to exercise implied powers, articulated a rule of deference to Congressional judgments about whether given legislative actions were in fact “necessary,” and limited the ability of the states to impair or restrict the operations of the federal government. Most scholarly discussions of the case and its legacy emphasize these aspects of the decision. Less common are attempts to place M’Culloch within the ebb and flow of the Marshall Court and the political and social realities of the time. So, for example, very few …
The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?, Sanford Levinson
The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?, Sanford Levinson
Arkansas Law Review
All legal “interpretation” involves confrontation with inherently indeterminate language. I have distinguished in my own work between what I call the Constitution of Settlement and the Constitution of Conversation. The former includes those aspects of the Constitution that do indeed seem devoid of interpretive challenge, such as the unfortunate assignment of two senators to each state or the specification of the terms of office of representatives, senators, and presidents. I am quite happy to concede that “two,” “four,” and “six” have determinate meaning, though my concession is not based on a fancy theory of linguistics. It is, rather, a recognition …
Mcculloch At 200, David S. Schwartz
Mcculloch At 200, David S. Schwartz
Arkansas Law Review
March 6, 2019 marked the 200th anniversary of the Supreme Court’s issuance of its decision in McCulloch v. Maryland, upholding the constitutionality of the Second Bank of the United States, the successor to Alexander Hamilton’s national bank. McCulloch v. Maryland involved a constitutional challenge by the Second Bank of the United States to a Maryland tax on the banknotes issued by the Bank’s Baltimore branch. The tax was probably designed to raise the Second Bank’s cost of issuing loans and thereby disadvantage it relative to Maryland’s own state-chartered banks. Marshall’s opinion famously rejected the Jeffersonian strict-constructionist argument that implied powers …
Recent Developments, Raelynn J. Hillhouse
Marijuana Business Attorneys And The Professional Deference Standard, Andrew Dixon
Marijuana Business Attorneys And The Professional Deference Standard, Andrew Dixon
Arkansas Law Review
Imagine that you practice as an attorney in the State of Arkansas. A client solicits your advice about opening a marijuana dispensary or cultivation center. The client might want you to assist him in filing a dispensary application with the State. On the other hand, she might want you to negotiate a commercial lease or to provide services to ensure compliance with municipal zoning laws. Although Arkansas voters approved a constitutional amendment permitting medical marijuana sales, you provide a clear warning to your client: possessing, manufacturing, selling, and distributing marijuana remains a federal crime. After these precautions, however, you proceed …
Too Plain To Be Misunderstood: Sovereign Immunity Under The Arkansas Constitution, Robert C. Dalby
Too Plain To Be Misunderstood: Sovereign Immunity Under The Arkansas Constitution, Robert C. Dalby
Arkansas Law Review
The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. Given the fluid nature of the law, time is often the greatest enemy of clarity in court precedent. From law students to experienced judges, anyone who has tried to research the doctrine of sovereign immunity under the Arkansas Constitution has surely struggled with that enemy as they sift through the …
The Ever-Changing Landscape Of Informed Consent And Whether The Obligation To Explain A Procedure To The Patient May Be Delegated, Samuel D. Hodge, Maria Zambrano Steinhaus
The Ever-Changing Landscape Of Informed Consent And Whether The Obligation To Explain A Procedure To The Patient May Be Delegated, Samuel D. Hodge, Maria Zambrano Steinhaus
Arkansas Law Review
Informed consent is an integral part of the shared decision making process and requires a patient be informed of the benefits, risks and alternatives to a medical procedure. This information, which requirement has been codified into the law and practice of every healthcare provider, helps a patient decide whether to proceed with the recommended treatment plan. Informed consent has its foundation in the ethical notion of patient autonomy and fundamental human rights. After all, it is the patient’s decision to determine what may be done to his or her body and to ascertain the risks and benefits before undertaking a …
Medical Marijuana In Arkansas: The Risks Of Rushed Drafting, Carol Goforth, Robyn Goforth
Medical Marijuana In Arkansas: The Risks Of Rushed Drafting, Carol Goforth, Robyn Goforth
Arkansas Law Review
Arkansas voters passed the Arkansas Medical Marijuana Amendment to the state constitution in late 2016. Almost certainly, the vast majority of voters did so without reading or understanding the intricacies of the initiative, and instead voted simply to affirm their desire to permit the medical use of marijuana in the state. Among many other provisions, the amendment imposed a 120 day time limit (later extended by the Arkansas legislature to 180 days) within which the Arkansas Department of Health and other agencies were to adopt rules implementing the voter mandate. While six months might seem like plenty of time in …
The Constitutional Rights Of Advanced Robots (And Of Human Beings), R. George Wright
The Constitutional Rights Of Advanced Robots (And Of Human Beings), R. George Wright
Arkansas Law Review
Constitutional rights create and destroy otherwise available options for the rights-bearer, for governments, and for affected third parties. Thus, conferring a constitutional right always requires at least some minimal defense. But conferring a constitutional right can certainly be appropriate if the recipient of the right seems to deserve or otherwise qualify for the right in question, or if conferring the right makes sense on other, perhaps partly pragmatic, grounds.
Protecting Due Process During Terrorism Adjudications: Redefining "Crimes Against Humanity" And Eliminating The Doctrine Of Complimentary Jurisdiction In Favor Of The International Criminal Court, Daniel N. Clay
Arkansas Law Review
“When we sit in judgment we are holding ourselves out as people—as the kind of a community—that are worthy of this task. It is the seriousness, the gravity, of the act of judgment which gives rise to our legitimate and laudable emphasis on procedural fairness and substantive accuracy in criminal procedure. But these things focus on the defendant—the one judged. I am concerned about us who would presume to sit in judgment. Who are we that we should do this? Whether we intend to do so or not, we answer this question in part through the way we conduct our …