Law Commons^™

Darkside Discretion In Immigration Cases, Shoba Wadhia

Journal Articles

"Darkside Discretion" refers to a situation where the noncitizen satisfies the statutory criteria set by Congress to be eligible for remedy but is denied by an adjudicator in the exercise of discretion. Imagine a woman who arrived in the United States six months ago who meets her burden of proving she is a refugee based on a fear of persecution by the government in her home country because of her religious beliefs, but who is denied asylum for discretionary reasons. This kind of decision exposes the "darkside" of discretion because it reflects how the government uses the tool of discretion …

Günter Frankenberg's Comparative Constitutional Studies: Between Magic And Deceit, Jud Mathews

Journal Articles

Constitutions traffic in magic and deceit, argues Günter Frankenberg, promising freedom and democracy even as they underwrite the exercise of coercive power on a massive scale. Scholars should approach constitutions with a healthy skepticism, but, Frankenberg contends, most mainstream scholars are too credulous, especially regarding the claims of liberal constitutionalism. Comparative Constitutional Studies serves as his corrective to the perceived blind spots and predilections of mainstream comparative constitutional scholarship, and it gives attention to little-known constitutions, forgotten histories, and alternatives to liberal constitutionalism. It’s a rich, challenging, and valuable book, one that takes the reader to some off the beaten …

Nothing Generic About It: Promoting Therapeutic Access By Overcoming Regulatory And Legal Barriers To A Robust Generic Medical Device Market, Megan S. Wright, Zachary Shapiro, Adam Pan, Keturah James, Joseph Fins

Journal Articles

This Article addresses a paradox in American healthcare technology: a thriving market for generic drugs but a paucity of generic medical devices. Despite the success of generic pharmaceuticals in reducing healthcare costs, no analogous market exists for generic medical devices. This plays a part in keeping prices high while limiting access to affordable therapies. In this Article, we highlight the regulatory and legal barriers currently impeding the development of a generic medical device market in the United States. We explore differences between generic drugs and generic devices in FDA regulation, products liability, and patentability, all of which contribute to the …

Gender Stereotypes And Gender Identity In Public Schools, Dara Purvis

Journal Articles

In recent years, claims brought by transgender students requesting accommodations from a public school have been framed under Title IX of the Education Amendments Act of 1972, which prohibits discrimination on the basis of sex in any educational program or activity that receives federal funding. Given the changing interpretation of Title IX from the Obama to Trump administrations, both statutory and constitutional arguments supporting the right of public school students to express their gender in any manner contrary to traditional gendered norms have renewed vitality. In the decades since Stonewall, students facing school discipline for nonconforming gender presentation that violated …

A Future For Paris? Federalism, The Law Of Nations, And U.S. Courts, Jamison E. Colburn

Journal Articles

The 'We Are Still In' movement raised novel and urgent questions about the status of executive agreements, treaties, and customary international law in U.S. courts. As sub-national governments increasingly face difficult trade-offs between climate change mitigation and adaptation, American courts will confront challenges thereto likely grounded in various types of "dormant" preemption of state and local initiatives. This symposium essay argues that our courts must first situate sub-national actions on climate mitigation within a complex and evolving context of mitigation as a globally-scaled collective good that can only be provided if contributions thereto accumulate over time. They must also avoid …

Covid-19 Business Interruption Insurance Losses: The Cases For And Against Coverage, Christopher French

Journal Articles

The financial consequences of the government-ordered shutdowns of businesses across America to mitigate the COVID-19 health crisis are enormous. Estimates indicate that small businesses have lost $255 to $431 billion per month and more than 44 million workers have been laid off. When businesses have requested reimbursement of their business interruption losses from their insurers under business interruption policies, their insurers have denied the claims. The insurance industry also has announced that business interruption policies do not cover pandemic losses, so they intend to fight COVID-19 claims “tooth and nail.” More than 450 lawsuits throughout the country already have been …

Some Kind Of Right, Jud Mathews

Journal Articles

The Right to Be Forgotten II crystallizes one lesson from Europe’s rights revolution: persons should be able to call on some kind of right to protect their important interests whenever those interests are threatened under the law. Which rights instrument should be deployed, and by what court, become secondary concerns. The decision doubtless involves some self-aggrandizement by the German Federal Constitutional Court (GFCC), which asserts for itself a new role in protecting European fundamental rights, but it is no criticism of the Right to Be Forgotten II to say that it advances the GFCC’s role in European governance, so long …

Dementia, Autonomy, And Supported Healthcare Decisionmaking, Megan S. Wright

Journal Articles

Healthcare providers often rely on surrogates to decide on behalf of their patients with dementia who are deemed incapable of exercising autonomy. There is a longstanding debate about the appropriate standard of surrogate healthcare decisionmaking for these patients. Many influential scholars argue that the precedent autonomy of the person with dementia should be respected, and healthcare decision-making laws generally reflect this principle. These laws direct surrogate decisionmakers to follow instructions in living wills or to decide on the basis of the wishes and values of the person before the onset of dementia.But other prominent scholars have questioned whether surrogates should …

Forum Shopping Covid-19 Business Interruption Insurance Claims, Chris French

Journal Articles

Insurance disputes are typically governed by state law, and state insurance laws vary considerably, with some states being favorable to policyholders and others being unfavorable. With forum shopping, a plaintiff often has many choices regarding where it can bring a lawsuit, including multiple states in which to bring the case and whether to bring the case in federal or state court. Of the over 1000 COVID-19 business interruption insurance lawsuits filed thus far, more than 700 of them have been filed in, or removed to, federal court, with more than 250 of the cases filed as class actions. Many of …

Liquid Gold, Katrice Bridges Copeland

Journal Articles

According to federal health and census data, addiction treatment was a $21 billion business in 2003. By 2020, it is expected to double to $42 billion. The opioid crisis has fueled the growth of the industry by increasing the demand for residential drug treatment programs. Astronomical growth of an industry, however, often invites bad actors.

Bad actors have swarmed the residential drug treatment industry. One category of bad actors includes patient brokers, who recruit drug addicts with health insurance to residential drug treatment centers for sizeable kickbacks. Another category of bad actors are the owners and operators of treatment centers …

Don't Go In The Water: On Pathological Jurisdiction Splitting, Jamison E. Colburn

Journal Articles

Waters and water rights have endured (or induced) a uniquely pathological tendency in our tradition to split up the authority to declare the operative legal interests therein. By studying three seemingly unrelated areas of waters and water rights law, this tendency is brought out in its essence and linked to explicit foundations and likely causes. Ultimately, this kind of extreme jurisdiction splitting is rendering our waters ungovernable, forcing even the most basic legal questions to go undecided. The last part of the article introduces three different reform pathways but cautions against the search for quick fixes of any kind.

Who Is A Refugee?: Twenty-Five Years Of Domestic Implementation And Judicial Interpretation Of The 1969 Oau And 1951 Un Refugee Conventions In Post-Apartheid South Africa, Tiyanjana Maluwa, Anton Katz Sc

Journal Articles

As a party to the UN Refugee Convention and the OAU Refugee Convention, South Africa is obligated to apply international refugee law when addressing the protection needs of asylum seekers in the country. The Refugees Act, 1988 encapsulates the cardinal principles of the two conventions. This essay discusses how government officials and judges have interpreted and applied these principles in asylum application cases. These cases demonstrate that officials are either not always fully conversant with the legal obligations, incumbent upon the government arising from both international law and domestic law or purposefully ignore them. For the most part, officials tend …

Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee

Journal Articles

In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and possibly a few Supreme Court justices: the idea that the First Amendment's Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties.

The third-party thesis is appealing. But this Article argues that there are good reasons to believe it falls short as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and the …

Supervised Release Is Not Parole, Jacob Schuman

Journal Articles

The United States has the largest prison population in the developed world. Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community— probation, parole, and supervised release. At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release. Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to …

Res Ipsa Loquitur: Reducing Confusion Of Creating Bias?, John E. Lopatka, Jeffrey Kahn

Journal Articles

The so-called doctrine of res ipsa loquitur has been a mystery since its birth more than a century ago. This Article helps solve the mystery. In practical effect, res ipsa loquirtur, though usually thought of as a tort doctrine, functions as a rule of trial practice that allows jurors to rely on circumstantial evidence surrounding an accident to find the defendant liable. Standard jury instructions in negligence cases, however, fail to inform jurors that they are permitted to rely upon circumstantial evidence in reaching a verdict. Why, then, is another, more specific circumstantial evidence charge necessary or desirable?

We …

America On Fire: Climate Change, Wildfires & Insuring Natural Catastrophes, Christopher French

Journal Articles

America is on fire. The damage, destruction, and loss of life caused by wildfires have exploded over the past few decades. Nine of the ten worst fire seasons have occurred in the past fifteen years, with 2017 and 2018 being the worst years ever. Despite spending approximately $3.7 billion annually on fire suppression, more than 35,000 structures were lost to wildfires in 2017 and 2018, approximately $32 billion in property losses occurred, and more than 100 people were killed. More than forty million homes worth approximately $187 billion in the U.S. are currently at a high risk of destruction due …

The Origins And Legacy Of The Fourth Amendment Reasonableness Balancing Model, Kit Kinports

Journal Articles

The overwhelming majority of the Supreme Court’s Fourth Amendment cases over the past fifty years have been resolved using a warrant presumption model, which determines the constitutionality of a search or seizure by asking whether law enforcement officials had probable cause and a warrant, or some exception to those requirements. But three decisions, beginning in 2001, mysteriously deviated from that approach and applied a reasonableness balancing model, upholding the searches in those cases after considering the totality of the circumstances and weighing the competing government interests against the defendant’s privacy interests. This balancing approach has justifiably been criticized as amorphous, …

Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee

Journal Articles

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding to church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps …

The Case Against Chevron Deference In Immigration Adjudication, Shoba Wadhia, Christopher Walker

Journal Articles

The Duke Law Journal’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron’s theory for congressional delegation …

Come Hell Or High-Water: Challenges For Adapting Pacific Northwest Water Law, Lara Fowler, Robert T. Caccese

Journal Articles

The Pacific Northwest region of the United States has been recognized as a leader in crafting water laws that work to balance human needs and ecological considerations. However, this region is experiencing changing dynamics that test the strength of existing water policies and laws. Such dynamics include increasing populations, new and exempt uses, quantification of tribal treaty rights, species protection, renegotiation of the Columbia River Treaty, and the impacts of a changing climate. Together, these dynamics are stressing the legal framework, which remains vital to ensuring sustainable water supplies now and into the future. The history behind water resources management …

Prosecutors And Mass Incarceration, Shima Baradarab Baughman, Megan S. Wright

Journal Articles

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court …

Reasonable Tax Rules: Advancing Process Values With Remedial Restraint, James M. Puckett

Journal Articles

The tax administration is at risk of an overcorrection with respect to its rulemaking process. Tax practitioners increasingly are mining the Administrative Procedure Act (APA) as well as chipping away at barriers to pre-enforcement review of tax rules. Tax rules include regulations, revenue rulings, revenue procedures, and more informal guidance to the public. APA-based challenges to tax rules have gained traction in the courts, typically alleging inadequate explanation or timing irregularities involving notice and comment. Such claims potentially pose major challenges for fair and efficient tax administration.

This Article integrates administrative law scholarship calling for a rule of reason with …