Law Commons^™

Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown

Faculty Publications

First Amendment doctrine acknowledges the constructive potential of citizens’ criticism of public officials and governmental policies by offering such speech vigilant protection. However, when students speak out about perceived injustice or dysfunction in their public schools, teachers and administrators too often react by squelching and even punishing student-critics. To counteract school officials’ reflexively repressive responses to student protest and petition activities, this Article explains why the faithful performance of public schools’ responsibility to prepare students for constitutional citizenship demands the adoption of a more receptive and respectful attitude toward student dissent. After documenting how both educators and courts have mistakenly …

Civil Rights, Charter Schools, And Lessons To Be Learned, Derek W. Black

Faculty Publications

Two major structural shifts have occurred in education reform in the past two decades: the decline of civil rights reforms and the rise of charter schools. Courts and policy makers have relegated traditional civil rights reforms that address segregation, poverty, disability, and language barriers to near irrelevance, while charter schools and policies supporting their creation and expansion have rapidly increased and now dominate federal policy. Advocates of traditional civil rights reforms interpret the success of charter schools as a threat to their cause, and, consequently, have fought the expansion of charter schools. This Article argues that the civil rights community …

Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Josh Gupta-Kagan

Faculty Publications

The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other “special need,” excusing non-law enforcement searches and seizures from the warrant and probable cause requirements. The Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not those that threaten important non-criminal constitutional rights.

Child protection investigations illustrate the problem: Millions of times each year, state child protection authorities search families’ homes, and seize children for interviews about alleged maltreatment. Only a minority of these investigations involve an …

Ferc Order 1000 As A New Tool For Promoting Energy Efficiency And Demand Response, Shelley Welton, Michael Gerrard

Faculty Publications

In July 2011, the Federal Energy Regulatory Commission (FERC) issued Order No. 1000, the latest in a series of orders directed at improving federal transmission access, planning, and coordination. Order 1000 requires, for the first time, that electricity transmission providers engage in regionwide transmission planning, and further mandates that such planning consider how federal and state public policies affect transmission needs. Public utility transmission providers are now in the process of amending their operating tariffs to comply with this new order. It is therefore an important time for all those with an interest in the future of the electric grid …

Bullshit!: Why The Retroactive Application Of Federal Rules Of Evidence 413-414 And State Counterparts Violates The Ex Post Facto Clause, Colin Miller

Faculty Publications

In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are “evenhanded, in the sense that they may benefit either the State or the defendant in a …

Beware Of The Diamond Dogs: Why A 'Credentials Alone' Conception Of Probable Cause Violates The Compulsory Process Clause, Colin Miller

Faculty Publications

In Florida v. Harris, the State has asked the Supreme Court to find that a positive alert by a certified narcotics-detection dog is per se sufficient, in and of itself, to establish probable cause for the search of a vehicle. This essay, to be published in conjunction with Leslie Shoebotham's amici brief in Harris, argues that this "credentials alone" conception of probable cause violates the Compulsory Process Clause.

Complex And Murky Spatial Planning, Josh Eagle

Faculty Publications

No abstract provided.

Lonely Colonist Seeks Wife: The Forgotten History Of America’S First Mail Order Brides, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

Who Decides On Liberty?, Thomas P. Crocker

Faculty Publications

Whether approached as a matter of executive discretion, judicial role, or individual rights, questions about security are never far removed from questions about liberty. Tradeoffs between liberty and security often seem unavoidable. Defenders of unbounded executive power argue that security relies on experts to whom citizens and courts alike must defer. But, if the tradeoff between security and liberty is to be a real weighing of the risks, costs, benefits, burdens, and consequences of various policy decisions, then who has the necessary expertise to decide on liberty? After all, to make decisions about the appropriate balance between security and liberty …

Federal Constraints: Possible Constitutional Hurdles To Cross-Border Cap-And-Trade,, Shelley Welton

Faculty Publications

No abstract provided.

Playing Without Aces: Offset And The Limits Of Flexibility Under Clean Air Act Climate Policy, Nathan D. Richardson

Faculty Publications

The United States Environmental Protection Agency (EPA) continues to move ahead with regulation of greenhouse gas emissions under the Clean Air Act (CAA). Previous work has indicated that basic forms of compliance flexibility—trading—appear to be legally permissible under section III of the CAA. This Article takes a close look at more expansive and ambitious types of flexibility: trading between different kinds of sources, biomass co-firing, and above all, offsets. It concludes that most types of such extended flexibility are either legally incompatible with the CAA, or so legally problematic that EPA is unlikely to adopt them. This has important implications …

Organizational Alliances By U.S. Schools, Elizabeth Chambliss

Faculty Publications

U.S. law schools increasingly are forming organizational alliances with other training providers in the interests of market expansion and/or consolidation. At the top of the market, U.S. law schools are seeking to brand their positions within the global economy by forming alliances with elite foreign law schools, business schools, and corporate law firms and clients. Schools outside of this market are moving to establish alternative niches through alliances with solo and small firm practitioners, CLE providers, and other organizations serving low-and middle-income clients, as well as through the development of accelerated and/or specialty degrees. Schools at all levels are increasingly …

What's Love Got To Do With It: Securing Access To Justice For Teens, Lisa V. Martin

Faculty Publications

During the past 15 years, researchers have documented the pervasiveness, severity, and lasting impact of dating violence on American adolescents. Studies also have shown teens to be firmly resistant to disclosing abuse to adults. Nonetheless, civil protection orders - the civil legal remedy most commonly relied upon to redress intimate partner violence in adult relationships - often remain inaccessible to abused teens. State protection order statutes exclude teens from their protections by restricting rights to standing by age and the relationship between the parties. When states grant teens standing, they often deter teens from pursuing the protections extended to them …

Tradable Standards For Clean Air Act Carbon Policy, Nathan D. Richardson, Dallas Butraw, Arthur G. Fraas

Faculty Publications

EPA is in the process of regulating U.S. greenhouse gas (GHG) emissions using its powers under the Clean Air Act. The likely next phase of this regulatory program is performance standards under Section 111 of the act for coal plants and petroleum refineries, which the agency has committed to finalize by the end of 2012. Section 111 appears to allow use of flexible, market-based regulatory tools. In this paper, we discuss one such tool, tradable standards. Tradable standards appear to be a legally and politically viable choice for the agency, and evidence suggests they are substantially more cost-effective than traditional …

Education's Elusive Future, Storied Past, And The Fundamental Inequity In Between, Derek W. Black

Faculty Publications

No abstract provided.

Note: Aimed At Protecting Ethnic Groups Or Women? A Look At Forced Pregnancy Under The Rome Statute, Alyson M. Drake

Faculty Publications

No abstract provided.

“Done In Convention”: The Attestation Clause And The Declaration Of Independence, Jesse M. Cross

Faculty Publications

No abstract provided.

Middle Income Peers As Educational Resources And The Constitutional Right To Equal Access, Derek W. Black

Faculty Publications

Concentrated poverty in public schools continues to be a leading determinate of the educational opportunities that minority students receive. Since the effective end of mandatory desegregation, advocates have lacked legal tools to address it. As an alternative, some advocates and scholars have attempted to incorporate the concerns of concentrated poverty and racial segregation into educational litigation under state constitutions, but these efforts have been slow to take hold. Thus, all that has remained for students in poor and minority schools is the hope that school finance litigation could direct sufficient resources to mitigate their plight. This Article offers another solution. …

Securing Civil Protection Orders For Teens When Laws Ignore Teens, Lisa V. Martin

Faculty Publications

Despite the pervasiveness of violence in teen relationships, civil protection order statutes largely ignore teens. The accessibility of protection orders for teens depends primarily on the scope of their rights to standing and legal capacity to pursue claims for protection. Because states largely fail to detail expressly the circumstances under which teens are accorded standing to seek protection orders and legal capacity to represent their own interests in related court proceedings, the accessibility of protection orders for teens in most states remains in flux.

This article explores legal principles and policy arguments that support the extension of standing and legal …

Banking On Allowances: The Epa's Mixed Record In Managing Emissions-Market Transitions, Nathan D. Richardson, Arthur G. Fraas

Faculty Publications

No abstract provided.

Plausibility And Disparate Impact, Joseph Seiner

Faculty Publications

In Twombly v. Bell Atlantic Corp., 550 U.S. 644 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court introduced a new plausibility pleading standard, abrogating well-established precedent. Under this standard, a plaintiff must now allege enough facts in the complaint to state a plausible claim to relief. Twombly and Iqbal transformed civil procedure law, and both the courts and litigants have struggled with its meaning. One area that has been dramatically affected by these recent decisions is the field of workplace discrimination.

There are two types of employment discrimination claims – intentional (or disparate treatment) and …

Punitive Damages, Due Process, And Employment Discrimination, Joseph Seiner

Faculty Publications

The Supreme Court has failed to provide any substantive guidance on when punitive damages are appropriate in employment discrimination cases since it issued its seminal decision in Kolstad v. American Dental Ass'n over twelve years ago. The Court has recently expanded its punitive damages jurisprudence in the high-profile decisions of Philip Morris USA v. Williams and Exxon Shipping Co. v. Baker. While these cases dramatically altered the way exemplary relief is analyzed in civil cases, the extent to which these decisions apply in the workplace context remains unclear. Surprisingly, there has been almost no academic literature to date explaining how …

The Full Story Of U.S. V. Smith, America’S Most Important Piracy Case, Joel H. Samuels

Faculty Publications

No abstract provided.

No Expertise Required: How Washington D.C. Has Erred In Expanding Its Expert Testimony Requirement, Colin Miller

Faculty Publications

No abstract provided.

Separation, Deportation, Termination, Marcia A. Yablon-Zug

Faculty Publications

There is a growing practice of separating immigrant children from their deportable parents. Parental fitness is no longer the standard with regard to undocumented immigrant parents. Increasingly, fit undocumented parents must convince courts and welfare agencies that continuing or resuming parental custody is in their child’s best interest. This requirement is unique to immigrant parents and can have a disastrous impact on their ability to retain custody of their children. Best interest decisions are highly subjective and courts and agencies increasingly base their custody determinations on subjective criteria such as negative perceptions regarding undocumented immigrants and their countries of origin, …

A New Era For Desegregation, Danielle R. Holley-Walker

Faculty Publications

No abstract provided.

Avoiding A Confrontation? How Courts Have Erred In Finding That Nontestimonial Hearsay Is Beyond The Scope Of The Bruton Doctrine, Colin Miller

Faculty Publications

No abstract provided.

Whose Ethics? The Benchmark Problem In Legal Ethics Research, Elizabeth Chambliss

Faculty Publications

How should we interpret differences between junior and senior lawyers’ perceptions of ethicality in the workplace? One theory holds that junior lawyers are more reliable informants; that their perceptions are not yet corrupted by self-interest and the demands of practice and therefore will tend to be closer to universal or ordinary morality. This is the predominant theory in the academic literature on large law firms, which tends to portray large law firms as being in perpetual moral decline. To some extent, this corruption narrative informs all critical legal ethics research.

An alternative theory holds that junior lawyers are inexperienced and/or …

Reproducing Value: How Tax Law Differentially Values Fertility, Sexuality & Marriage, Tessa R. Davis

Faculty Publications

Section 213 of the Internal Revenue Code permits a deduction for an individual’s fertility expenses, but it does not do so evenhandedly. This paper focuses on the current discriminatory effects of §213 doctrine as it is applied to the deductibility of fertility treatments for single persons and/or homosexual couples, as compared to heterosexual, married couples. Traditional economic analysis of the Code fails to explain such discrimination, thus a new approach is required. Utilizing tools from anthropological theory, this paper recognizes and analyzes our tax code (and specifically §213) as a cultural artifact and therein challenges the presumed objectivity of our …

Middle-Income Peers As Educational Resources And The Constitutional Right To Equal Access, Derek W. Black

Faculty Publications

Concentrated poverty in public schools continues to be a leading determinate of the educational opportunities that minority students receive. Since the effective end of mandatory desegregation, advocates have lacked legal tools to address it. As an alternative, some advocates and scholars have attempted to incorporate the concerns of concentrated poverty and racial segregation into educational litigation under state constitutions, but these efforts have been slow to take hold. Thus, all that has remained for students in poor and minority schools is the hope that school finance litigation could direct sufficient resources to mitigate their plight. This Article offers another solution. …