Law Commons^™

Did January 6 Defendants (Including Donald Trump) “Otherwise Obstruct An Official Proceeding”? Linguistic Analysis For The Fischer Case Before The Supreme Court, Clark Cunningham, Ute Römer-Barron

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When judges, skilled and sophisticated users of the English language, come to opposing conclusions about the “plain” or “ordinary” meaning of a phrase, how can such a conflict be resolved in an objective way? Traditionally courts have resorted to citing dictionary definitions, but in recent years an alternative approach has been gaining attention and respect: the use of corpus linguistics. The supreme courts of Michigan, Idaho, Utah, Vermont have used made use of corpus-based research in their decisions as has the U.S. Court of Appeals for the Third Circuit. Both the Sixth Circuit and the Ninth Circuit have requested that …

Four Reasons The Supreme Court Should Reconsider Its Article Iii Standing Doctrine, Clark Cunningham, Ute Römer-Barron

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This paper reviews four reasons the Supreme Court should reconsider its long-standing doctrine that Article III of the Constitution prevents federal courts from hearing civil cases unless plaintiffs show that their claims arise out of “injury-in-fact”. The doctrine is (1) incoherent in theory and unworkable in practice, (2) manipulable to serve policy-driven decisions, (3) inconsistent with historical practices in the Founding Era, and (4) not grounded in the text of Article III.

Parts I – III of the paper briefly review judicial decisions and legal scholarship that support or provide perspective on the first three reasons why the Court should …

Race, Indigeneity, And Migration, Natsu T. Saito

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Race, indigeneity, and migration are integrally related in international law. This relationship can be traced to their origins in a legal system dedicated to facilitating European colonialism and imperial expansion. International law has constructed racial difference and deployed racialized hierarchies to determine who would be permitted to migrate to various parts of the world and what their rights and responsibilities would be in those locations, as well as the status of those already living in the territories at issue. Genealogical inquiry makes it clear that the imposition of racialized hierarchies, the construction of indigeneity, and the restrictions placed (or not …

Introduction, John T. Marshall, Ryan Rowberry, Susan S. Kuo

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No abstract provided.

The Bar Exam And The Covid-19 Pandemic: The Need For Immediate Action, Claudia Angelos, Sara J. Berman, Mary Lu Bilek, Carol L. Chomsky, Andrea A. Curcio, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Merritt, Patricia E. Salkin, Judith Welch Wegner

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The novel coronavirus COVID-19 has profoundly disrupted life in the United States. Among other challenges, jurisdictions are unlikely to be able to administer the July 2020 bar exam in the usual manner. It is essential, however, to continue licensing new lawyers. Those lawyers are necessary to meet current needs in the legal system. Equally important, the demand for legal services will skyrocket during and after this pandemic. We cannot close doors to the profession at a time when client demand will reach an all-time high.

In this brief policy paper, we outline six licensing options for jurisdictions to consider for …

Buyer Beware: Variation And Opacity In Esg And Esg Index Funds, Dana Brakman Reiser, Anne Tucker

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Evidence of the tremendous rise in the significance of environmental, social, and governance (ESG) investing is coming from all quarters. Fund flows into ESG investment vehicles are growing at a sustained and sometimes exponential pace. Fund complexes are rushing to design products, creating and rebranding scores of mutual funds and exchange traded funds (ETFs), including lower-cost indexed options. Industry leaders, critics, and commentators are all heralding the sea change as a shift in investing - and corporate governance - to more broadly consider environmental and social factors.

This Article provides vital context for this conversation. Its descriptive account of the …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Andrea Woods, Sandra G. Mayson, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

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This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to go. Most …

Coastal Cultural Heritage Protection In The United States, France And The United Kingdom, Ryan Rowberry, Ismat Hanano, Sutton M. Freedman, Michelle Wilco, Cameron Kline

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Exacerbated by climate change, sea levels are rising rapidly. This poses a significant, immediate threat to coastal or riverine urban areas and the tangible cultural heritage (e.g. artifacts, buildings, monuments, archaeological sites) that makes them unique. Protecting coastal cultural resources from climate change is quickly becoming a global priority, and comparing cultural heritage laws designed to protect historic resources in coastal areas from several countries may illuminate potential paths forward. Following a brief discussion of the economic and public health benefits arising from the protection of cultural heritage, this article describes, examines, and compares the legal frameworks through which the …

Is State Preemption Weakening The Authoritarian Resilience Of Local Government In The United States?, Julian C. Juergensmeyer, Andrew F. Prater

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In many countries in the world today democratic institutions and ideals seem threatened. Due process, equal protection, freedom of speech, freedom of the press, the right to vote, and other democratic ideals are deeply ingrained in US culture and government. Traditionally, the federal government is thought to be the guardian of these rights, ensuring that state governments adhere to the rule of law established by our written constitution. Similarly, state governments are thought to uphold these democratic ideals vis a vis local governments. The American system of checks and balances and separation of powers and the resulting interplay between the …

Rainwater Harvesting: Legal Frameworks In The United States, Singapore And Other Countries, Julian Conrad Juergensmeyer, Audrone Vysniauskaite Durham

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With increasing climate change effects worldwide, rainwater harvesting is likely to become more and more important to ensure reliable alternative water supply and to conserve the environment. This article examines two goals to be accomplished through rainwater harvesting: (1) augmenting water supply for proposed development's use through regulations that have been formulated to make the proposed development responsible for at least a portion of the water supply needed to support the new development; and (2) managing stormwater runoff. The results show that many, perhaps most, rainwater harvesting programs, as exemplified by efforts in Singapore and elsewhere around the world, succeed …

A Comparison Of Two Smart Cities: Singapore & Atlanta, Karen Johnston

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This paper compares Singapore's top-ranked smart city strategy to Atlanta, Georgia, a city that does not make a top smart city ranking but boasts internationally recognized smart city projects.

Hardware, Heartware, Or Nightmare: Smart-City Technology And The Concomitant Erosion Of Privacy, Leila Lawlor

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Smart city technology is being adopted in cities all around the world to simplify our lives, save us time, ease traffic, improve education, reduce energy usage and keep us safe. This article discusses smart city projects being utilized in crime prevention and investigations. Specifically, this article highlights examples of gunshot detection devices and surveillance that have led to improvements in public safety in Cape Town, Chicago and Atlanta, and discusses their impacts to privacy.

Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson

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Our legal system - and much of the research conducted on that system - often separates people and issues into civil and criminal silos. However, those two worlds intersect and influence one another in important ways. The qualitative empirical study that forms the basis of this Article bridges the civil-criminal divide by exploring the life circumstances and events of public defender clients to determine how they experience and respond to civil legal problems.

To date, studies addressing civil legal needs more generally have not focused on those individuals enmeshed with the criminal justice system, even though that group offers a …

The Short History Of The Rule Of Law In The United States (1954-2016), Ryan Rowberry

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Many Americans and outside observers assume that the United States of America was founded upon a cluster of principles known as the "Rule of Law". Indeed, Articles I, II, and III of the United States Constitution of 1789, purportedly establish the rights and authorities of three co-equal branches of government: the legislative, executive, and judicial branches. Adherence to the Rule of Law in the United States, however, has a much shorter history. During the 18th, 19th and early 20th centuries, the President of the United States - leader of the executive branch - often ignored or contradicted decisions by the …

Aggressive Judicial Review, Political Ideology, And The Rule Of Law, Eric J. Segall

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For over one-hundred and fifty years, the United States Supreme Court has been the most powerful judicial body int he worth with life-tenured judges consistently invalidating state and federal laws without clear support in constitutional text or history. This paper focuses on what should be the appropriate role of life-tenured, unelected federal judges in the American system of separation of powers. The tension is between wanting judges to enforce the supreme law of the Constitution while at the same time keeping judges within their assigned roles of enforcing not making the law. Much of constitutional scholarship in the United States …

Integrating The Access To Justice Movement, Lauren Sudeall

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Last fall, advocates of social change came together at the A2J Summit at Fordham University School of Law and discussed how to galvanize a national access to justice movement—who would it include, and what would or should it attempt to achieve? One important preliminary question we tackled was how such a movement would define “justice,” and whether it would apply only to the civil justice system. Although the phrase “access to justice” is not exclusively civil in nature, more often than not it is taken to have that connotation. Lost in that interpretation is an opportunity to engage in a …

Introduction, Julian C. Juergensmeyer, Karen Johnston

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No abstract provided.

Hospital Mergers And Public Accountability: Tennessee And Virginia Employ A Certificate Of Public Advantage, Erin C. Fuse Brown

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No abstract provided.

Names Are Important, Margaret Butler

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No abstract provided.

Implementing A Public Health Perspective In Fda Drug Regulation, Patricia J. Zettler, Margaret Foster Riley, Aaron S. Kesselheim

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There is, without question, a public health crisis in the United States arising from both illicit and prescription opioid misuse, addiction, and overdose. The Food and Drug Administration (FDA) is one regulator with an important role to play in minimizing the harms associated with prescription opioids, while also ensuring that prescription opioids are available for the evidence-based management of pain. One question, however, is to what extent the agency can consider in its decisions to approve opioids and keep existing ones on the market the provider and patient behaviors contributing to the epidemic. This is, in part, because FDA’s approval …

Gender Identity And Domestic Legal Status, Margaret Butler

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No abstract provided.

Asylum, Immigration, And Gender Identity: Scholarship And Strategies For Advocacy, Margaret Butler

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No abstract provided.

Indefinite Detention, Colonialism, And Settler Prerogative In The United States, Natsu Taylor Saito

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The primacy accorded individual civil and political rights is often touted as one of the United States' greatest achievements. However, mass incarcerations of indefinite duration have occurred consistently throughout U.S. history and have primarily targeted people of color. The dominant narrative insists that the United States is a political democracy and portrays each instance of indefinite detention in exceptionalist terms. This essay argues that the historical patterns of indefinite detention are better explained by recognizing the United States as a settler colonial state whose claimed prerogative to expand its territorial reach and contain/control populations over which it exercises jurisdiction inevitably …

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

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Rural America faces an increasingly dire access-to-justice crisis, which serves to exacerbate the already disproportionate share of social problems afflicting rural areas. One critical aspect of the crisis is the dearth of information and research regarding the extent of the problem and its impacts. This Article begins to fill that gap by providing surveys of rural access to justice in six geographically, demographically, and economically varied states: California, Georgia, Maine, Minnesota, South Dakota, and Wisconsin. In addition to providing insights about the distinct rural challenges confronting each of these states, the legal resources available, and existing policy responses, the Article …

Gender Identity Discrimination In The Workplace And Education: Title Vii And The Title Ix, Margaret Butler

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No abstract provided.

Family Law And Gender Identity: Legal Issues Arising When Marrying And Parenting While Trans, Margaret Butler

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No abstract provided.

Gender-Affirming Health Care, Autonomy, And Bias In Insurance And The Law, Margaret Butler

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No abstract provided.

Gender Identity And The Law: Scholarship Regarding The Gender Binary And Gender Outlaws Generally, Margaret Butler

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No abstract provided.

A Simple Low-Cost Institutional Learning-Outcomes Assessment Process, Andrea A. Curcio

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Law school institutional learning outcomes require measuring nuanced skills that develop over time. Rather than look at achievement just in our own courses, institutional outcome-measures assessment requires collective faculty engagement and critical thinking about our students’ overall acquisition of the skills, knowledge, and qualities that ensure they graduate with the competencies necessary to begin life as professionals. Even for those who believe outcomes assessment is a positive move in legal education, in an era of limited budgets and already over-burdened faculty, the new mandated outcomes assessment process raises cost and workload concerns. This essay addresses those concerns. It describes a …

The Origins And Development Of Judicial Tenure 'During Good Behavior' To 1485, Ryan Rowberry

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No abstract provided.