Law Commons^™

Legal Deserts: A Multi-State Perspective On Rural Access To Justice, Hannah Haksgaard, Lisa Pruitt, Danielle Conway, Michele Statz, Lauren Sudeall, Amanda Kool

Faculty Publications

No abstract provided.

A Will For Willa Cather, Thomas Simmons

Faculty Publications

Artists hold their creative works dear. Whether paintings, poems, or songs, their human creators treat them with special care and often desire that same care be exercised after death. Some may wish to ban the use of a song in a television commercial. Others may wish to stop their novel from being turned into an animated Disney movie. But directing particular uses of property from the grave can be met with several objections and legal impediments. The objections sound in alarmist responses to “dead hand control.” The impediments include the Rule Against Perpetuities, uncertainty, capriciousness, and the repugnancy of restraints …

Homestead: A (New) Hope, Thomas Simmons

Faculty Publications

A finely-tuned balancing of the free functioning of private and commercial enterprise against a family's interests in shelter and a home is at the heart of homestead exemption laws. In South Dakota's history, this balancing act has been displayed over a 145-year history in the form of legislative enactments, judicial decisions, and referendums. This history illuminates the expression of values against the dynamics of rule-making. A previously published article in this review, Prequel to Homestead, outlined South Dakota's homestead laws under the contemporary statutory framework and also considered the constitutional history of homestead laws leading up to South Dakota's …

Dedication To Professor Charles M. Thatcher, Jonathan Van Patten

Faculty Publications

No abstract provided.

Twenty-Five Ways To Say No, Jonathan Van Patten

Faculty Publications

No abstract provided.

The Third Precedent, Kevin Bennardo

Faculty Publications

No abstract provided.

Capitalizing On Criminal Justice, Eisha Jain

Faculty Publications

No abstract provided.

Proportionality And Other Misdemeanor Myths, Eisha Jain

Faculty Publications

No abstract provided.

Sexual Orientation And Gender Identity Discrimination, Holning S. Lau

Faculty Publications

No abstract provided.

The Constitutionality Of School Prayer: Or Why Engel V. Vitale May Have Had It Right All Along, William P. Marshall

Faculty Publications

No abstract provided.

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Faculty Publications

No abstract provided.

Sharks And Minnows In The War On Drugs: A Study Of Quantity, Race And Drug Type In Drug Arrests, Joseph E. Kennedy, Isaac Unah, Kaci Wahlers

Faculty Publications

No abstract provided.

The President’S Immigration Courts, Catherine Y. Kim

Faculty Publications

No abstract provided.

The Limits On Congress’S Power To Do Nothing, William P. Marshall

Faculty Publications

No abstract provided.

Automation And The Income Tax, Kathleen Delaney Thomas

Faculty Publications

No abstract provided.

Taxing The Gig Economy, Kathleen Delaney Thomas

Faculty Publications

No abstract provided.

The Politics Of Immigrant Rights: Between Political Geography And Transnational Interventions, Deborah M. Weissman

Faculty Publications

No abstract provided.

Simplicity As Justice, Kathryn A. Sabbeth

Faculty Publications

Simplification of the legal system has attracted attention as a means of improving access to justice. A major motivation driving reform is the perception that pro se litigants have flooded the courts and begun clogging up the wheels of justice. Ordinary people do not know rules of procedure, evidence, or substantive law; do not handle their cases effectively or efficiently; and have, the argument goes, generated a “pro se crisis.” A number of states and localities have responded by increasing the availability of legal services, funding programs that offer solutions ranging from limited assistance to full representation, and a few …

The Expansion Of Child Pornography Law, Carissa Byrne Hessick

Faculty Publications

This Symposium essay identifies two dramatic expansions of child pornography law: prosecutions for possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images. These prosecutions have expanded the definition of the term ‘‘child pornography’’ well beyond its initial meaning. What is more, they signal that child pornography laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of the conclusion that those individuals are sexually attracted to children. If law enforcement concludes that a …

The Evolution Of The Voice And Vote Of Student-Athletes In Ncaa Division I Governance, Lissa L. Broome

Faculty Publications

This paper explores the evolution of the student-athlete voice and vote in the NCAA Division I governance structure.

Combatting Discrimination Against The Formerly Incarcerated In The Labor Market, Ifeoma Ajunwa, Angela Onwuachi-Willig

Faculty Publications

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements — which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior …

Copyright Policy As Catalyst And Barrier To Innovation And Free Speech, Amanda Reid

Faculty Publications

No abstract provided.

Revisionist Municipal Liability, Avidan Y. Cover

Faculty Publications

The current constitutional torts system under 42 U.S.C. § 1983 affords little relief to victims of government wrongdoing. Victims of police brutality seeking accountability and compensation from local police departments find their remedies severely limited because the municipal liability doctrine demands plaintiffs meet near-impossible standards of proof relating to policies and causation.

The article provides a revisionist historical account of the Supreme Court’s municipal liability doctrine’s origins. Most private litigants’ claims for damages against cities or police departments do not implicate the doctrine’s early federalism concerns over protracted federal judicial interference with local governance. Meanwhile the federal government imposes extensive …

Tips About Written Advocacy From The North Dakota Supreme Court, Douglas E. Abrams

Faculty Publications

In 1940, legendary Supreme Court advocate John W. Davis published "The Argument of an Appeal," an article that remains influential to lawyers and law students today. A few years later, the one-time Democratic presidential candidate closed his career with 141 arguments before the court, the most of any 20th century lawyer.

Allocating Property Interests In Ecosystem Services: From Chaos To Flowing Rivers, Kalyani Robbins

Faculty Publications

No abstract provided.

Whistleblowers - A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham

Faculty Publications

The Securities and Exchange Commission and the Commodity Futures Trading Commission were directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of2010 (Dodd-Frank) to create whistleblower protection programs that reward informants with massive bounty payments. At the time of its passage, the Dodd-Frank Act was a highly controversial statute that was passed on partisan lines. Its whistleblowing authority was one of its "most contentious provisions." As the result of the 2016 elections, the Dodd-Frank Act has come under renewed attack in Congress and by the new Trump administration. The stage is being setfor possible repeal ofmajor parts of …

Defining The Opioid Epidemic: Congress, Pressure Groups, And Problem Definition, Taleed El-Sabawi

Faculty Publications

The passage of the Comprehensive Addiction and Recovery Act of 2016 evidences a shift in federal legislative support from criminal justice oriented legislative alternatives to more health oriented legislative alternatives to addressing the ongoing Opioid Epidemic. Such a shift was preceded by a redefinition of problem drug use in the policy discourse from an issue of deviancy to a health issue. However, the redefinition of problem drug use as a health issue, has been dominated by policy narratives and causal stories that do not define problem drug use in a manner that aligns with a multi-modal public health oriented legislative …

A Blueprint For Online Dispute Resolution System Design, Amy J. Schmitz

Faculty Publications

A great deal of discussion focuses on how arbitration and similar private dispute resolution harms consumers, and how businesses seek ways to avoid helping consumers. It is often assumed that companies and consumers are on opposing “teams.” In reality, however, consumers and companies enjoy more commonalities than contradictions. Both benefit when deals go well and disputes are resolved quickly and cheaply. The problem is that face-to-face dispute resolution can be costly in terms of time and money. Furthermore, getting lawyers involved may inspire gamesmanship and adversarial antics aimed to protect one’s reputation for staying “strong” and refusing to settle or …

Conditioning Exercise Of Firearms Rights On Unlimited Terry Stops, Royce De R. Barondes

Faculty Publications

The tenth anniversary of Heller and the fiftieth anniversary of Terry are in June 2018. On this occasion, it is timely to reflect on the interaction between these two seminal decisions. Most questions concerning the Second Amendment, including the interplay between Terry and Heller, are currently without definitive answers.

The Supreme Court has addressed the application of Heller in only two cases over the last ten years. One issue developing in the lower courts is whether merely exercising in public the civil right recognized in Heller (i.e., that alone, with nothing else) may require submission to unfettered Terry frisks not …

Corporate Compliance That Advances Racial Diversity And Justice And Why Business Deregulation Does Not Matter, Cheryl L. Wade

Faculty Publications

This Essay considers the problem of racial harassment and discrimination in the aftermath of the recent and more thorough discussion about gender inequality. It begins by explaining the inadequacies of the SEC Board Diversity Rules and Section 342. It then describes the reasons why, despite these inadequacies, more regulation relating to discrimination and diversity is not needed. Finally, it discusses how to improve U.S. businesses’ compliance with existing antidiscrimination law.