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Journal Articles

2020

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Articles 31 - 60 of 66

Full-Text Articles in Law

The Origins And Legacy Of The Fourth Amendment Reasonableness Balancing Model, Kit Kinports Jan 2020

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, …


America On Fire: Climate Change, Wildfires & Insuring Natural Catastrophes, Christopher French Jan 2020

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 …


Vicarious Trauma And Ethical Obligations For Attorneys Representing Immigrant Clients: A Call To Build Resilience Among The Immigration Bar, Hannah C. Cartwright, Lindsay M. Harris, Liana M. Montecinos, Anam Rahman Jan 2020

Vicarious Trauma And Ethical Obligations For Attorneys Representing Immigrant Clients: A Call To Build Resilience Among The Immigration Bar, Hannah C. Cartwright, Lindsay M. Harris, Liana M. Montecinos, Anam Rahman

Journal Articles

This article analyzes the ethical obligations for attorneys representing immigrant clients and the consequences of vicarious trauma, compassion fatigue, and burnout for the immigration bar and immigrant clients. The authors identify barriers for immigration attorneys in preventing, recognizing, and responding to vicarious trauma in themselves and colleagues and suggest practical ways that the immigration bar can and should seek to build resilience.


Invisible Article Iii Delinquency: History, Mystery, And Concerns About "Federal Juvenile Courts", Mae C. Quinn, Levi T. Bradford Jan 2020

Invisible Article Iii Delinquency: History, Mystery, And Concerns About "Federal Juvenile Courts", Mae C. Quinn, Levi T. Bradford

Journal Articles

This essay is the second in a two-part series focused on our nation’s invisible juvenile justice system—one that operates under the legal radar as part of the U.S. Constitution’s Article III federal district court system.1 The first publication, Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers, 2 examined the little-known practice of prosecuting children as adults in federal courts. This paper will look at the related phenomenon of juvenile delinquency matters that are filed and pursued in our nation’s federal court system.3 To date, most scholarship evaluating youth prosecution has focused on our country’s …


A Starting Point For Disability Justice In Legal Education, Christina Payne-Tsoupros Jan 2020

A Starting Point For Disability Justice In Legal Education, Christina Payne-Tsoupros

Journal Articles

This article explores how a disability justice framework would provide greater access to law school and therefore the legal profession for disabled students of color; specifically, disabled Black, Indigenous, and Latinx students. Using DisCrit principles formulated by Subini Annamma, David Connor, and Beth Ferri (2013), this article provides suggestions for incorporating a disability justice lens to legal education. In doing so, this article specifically recognizes the work of three disability justice activist-attorney-scholars, Lydia X.Z. Brown, Talila “TL” Lewis, and Katherine Pérez, and considers lessons from their advocacy and leadership that can apply in the law school setting.


Darkside Discretion In Immigration Cases, Shoba Wadhia Jan 2020

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 …


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 Jan 2020

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 …


Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee Jan 2020

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 …


Prosecutors And Mass Incarceration, Shima Baradarab Baughman, Megan S. Wright Jan 2020

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 Jan 2020

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 …


Against Fiduciary Constitutionalism, Samuel L. Bray, Paul Miller Jan 2020

Against Fiduciary Constitutionalism, Samuel L. Bray, Paul Miller

Journal Articles

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the United States. This Article examines and critiques the claims of fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve fiduciary law—mistakes about how to identify fiduciary relationships, about the content and enforcement of fiduciary duties, …


Certification Comes Of Age: Reflections On The Past, Present And Future Of Cooperative Judicial Federalism, Kenneth Ripple Jan 2020

Certification Comes Of Age: Reflections On The Past, Present And Future Of Cooperative Judicial Federalism, Kenneth Ripple

Journal Articles

In 1995, the American Judicature Society (AJS) undertook a comprehensive survey of certification. This Article uses the AJS’s survey as a starting point to examine the development of certification over the past twenty-five years. Were the fears of its critics well founded, or have the federal and state judiciaries adapted to mitigate the shortcomings of certification? Has certification been a useful tool in allowing for development of state law by the state judiciary, or has it been an imposition on the judiciary of a coequal sovereign?

Beyond these questions, this Article also will look at how certification has expanded beyond …


A Future For Paris? Federalism, The Law Of Nations, And U.S. Courts, Jamison E. Colburn Jan 2020

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 …


Dementia, Autonomy, And Supported Healthcare Decisionmaking, Megan S. Wright Jan 2020

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 …


Res Ipsa Loquitur: Reducing Confusion Of Creating Bias?, John E. Lopatka, Jeffrey Kahn Jan 2020

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 …


Some Kind Of Right, Jud Mathews Jan 2020

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 …


Forum Shopping Covid-19 Business Interruption Insurance Claims, Chris French Jan 2020

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 …


The Case Against Chevron Deference In Immigration Adjudication, Shoba Wadhia, Christopher Walker Jan 2020

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 Jan 2020

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 …


Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell Jan 2020

Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell

Journal Articles

State cyber misconduct is on the rise, and it can be difficult to differentiate between malicious governmental cyber conduct and active cyber defense. Though some argue that cyberspace is a law-free zone, offensive cyberattacks are almost always unlawful regardless of their purpose. This Article contends that international law can provide for legal boundaries in cyberspace and analogizes cyber misconduct to government actions such as espionage. So long as conditions provided by international law (such as notice, necessity, and proportionality) are met, countermeasures to malicious cyber operations are generally lawful. Cases of urgency may be an exception to this general rule …


Academic Law Library Director Status Since The Great Recession: Strengthened, Maintained, Or Degraded?, Elizabeth G. Adelman, Karen L. Shephard, Richard J. Patti, Robert M. Adelman Jan 2020

Academic Law Library Director Status Since The Great Recession: Strengthened, Maintained, Or Degraded?, Elizabeth G. Adelman, Karen L. Shephard, Richard J. Patti, Robert M. Adelman

Journal Articles

The status of the academic law library director is central to the educational mission of the law library. We collected data from 2006 to 2016 showing a 25 percent decrease in tenure-track directorships. We also found one in four changes in directorships since 2013 resulted in the new director having a degraded status compared to her predecessor.


Presidential Whim, Matthew J. Steilen Jan 2020

Presidential Whim, Matthew J. Steilen

Journal Articles

This article describes a new body of legal literature on the presidency. In contrast to older bodies of writing, which emphasize presidential independence, this body of writing emphasizes the dependence of the executive power, and a set of moral values associated with the office: faith, faithfulness, responsibility, honesty, due care, and professionalism, among others. The article considers prospects for enforcing this vision of the presidency in light of the particular problems posed by the Trump presidency. Many writers have complained of President Trump's leadership style, which is abrupt, reflexive, dissembling, and unilateral. I refer to this as the problem of …


The Invisible Prison: Pathways And Prevention, Margaret Brinig, Marsha Garrison Jan 2020

The Invisible Prison: Pathways And Prevention, Margaret Brinig, Marsha Garrison

Journal Articles

In this paper, we propose a new strategy for curbing crime and delinquency and demonstrate the inadequacy of current reform efforts. Our analysis relies on our own, original research involving a large, multi-generational sample of unmarried fathers from a rust-belt region of the United States as well as the conclusions of earlier researchers.

Our own research data are unusual in that they are holistic and multigenerational: The Court-based record system we utilized for data collection provided detailed information on child maltreatment, juvenile status and delinquency charges, child support, parenting time, orders of protection, and residential mobility for focal children (the …


The Judicial Reforms Of 1937, Barry Cushman Jan 2020

The Judicial Reforms Of 1937, Barry Cushman

Journal Articles

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …


Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer Jan 2020

Reckoning With Adjudication's Exceptionalism Norm, Emily S. Bremer

Journal Articles

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter.

The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization …


Neoclassical Administrative Law, Jeffrey Pojanowski Jan 2020

Neoclassical Administrative Law, Jeffrey Pojanowski

Journal Articles

This Article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, tend to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine does. As a result, neoclassical administrative law finds a place for both legislative supremacy and the rule of law within the administrative state, without subordinating either of those central values to the other. …


An Economic Approach To Religious Exemptions, Stephanie H. Barclay Jan 2020

An Economic Approach To Religious Exemptions, Stephanie H. Barclay

Journal Articles

Externalities caused by religious exemptions have been getting the spotlight again in light a case the U.S. Supreme Court will hear this term: Fulton v. City of Philadelphia. Some argue that religious individuals should be required to internalize the costs they impose on third parties and thus should be denied the right to practice that harmful behavior. These new progressive theories about harm trade on rhetoric and normative intuitions regarding externalities and costs. But curiously, these theories also largely ignore an influential theoretical movement that has studied externalities and costs for the last fifty years: law and economics.

This Article …


Avoiding Judicial Discipline, Veronica Root Martinez Jan 2020

Avoiding Judicial Discipline, Veronica Root Martinez

Journal Articles

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into judicial …


Untangling Entanglement, Stephanie H. Barclay Jan 2020

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …


Forgotten Borrowers: Protecting Private Student Loan Borrowers Through State Law, Judith Fox Jan 2020

Forgotten Borrowers: Protecting Private Student Loan Borrowers Through State Law, Judith Fox

Journal Articles

Private student loan borrowers arguably have the fewest protections of any users of credit in the United States. In a scarcely debated amendment to federal bankruptcy law, in 2005 private student lenders gained the same protections against discharge previously afforded to federal student lenders. Yet, private student loan borrowers received none of the rights available to federal student loan borrowers. These include income-driven repayment, relief from repayment on disability, loan discharge for fraud or closed schools, and public service loan forgiveness. Private student loan borrowers thus have neither the bankruptcy protections afforded to non-student loan debtors nor the repayment and …