Law Commons^™

Deporting Jane Doe: When Immigrant Crime Victims Fall Through The Cracks Of The Law Designed To Protect Them, Ericka Curran

School of Law Faculty Publications

No abstract provided.

First Amendment Contradictions And Pathologies In Discourse, Erica Goldberg

School of Law Faculty Publications

A robust, principled application of the First Amendment produces contradictions that undermine the very justifications for free speech protections. Strong free speech protections are justified by the idea that rational, informed deliberation leads to peaceful decision-making, yet our marketplace of ideas is crowded with lies, reductive narratives, emotional appeals, and speech that leads to violence. Our current First Amendment model creates pathologies in discourse, which I term problems in speech quality and problems of speaker identity, that are exacerbated in our modern age of easy communication. The reason for these pathologies lies in the relationship between reason and emotion, both …

Slavery And The History Of Congress’S Enumerated Powers, Jeffrey Schmitt

School of Law Faculty Publications

In his first inaugural address, President Abraham Lincoln declared, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Like virtually all Americans before the Civil War, Lincoln believed in what historians call the “national consensus” on slavery. According to this consensus, Congress’s enumerated powers were not broad enough to justify any regulation of slavery within the states. Legal scholars who support the modern reach of federal powers have thus conventionally argued …

Three Legitimacy Challenges Of The Inter-American Human Rights System, Carlos Bernal

School of Law Faculty Publications

This article analyses three core challenges that hinder the legitimacy of the Inter-American System of Human Rights. They relate to the Inter-American standards, the observance of due process, and the nature and proportionality of compensatory remedies. The analysis accounts for challenges, and outlines a proposal for overcoming them as well.

Este artículo lleva a cabo un análisis relativo a tres desafíos relevantes que aquejan la legitimidad del Sistema Interamericano de Derechos Humanos. Ellos se refieren a los estándares interamericanos, el respeto del debido proceso y a la naturaleza y proporcionalidad de las medidas de reparación. El análisis comprende tanto un …

Common Law Baselines And Current Free Speech Doctrine, Erica Goldberg

School of Law Faculty Publications

No abstract provided.

When Trade Secrecy Goes Too Far: Public Health And Safety Should Trump Corporate Profits, Julie Zink

School of Law Faculty Publications

This Article addresses the historical and ongoing use of trade secrets to withhold critical information from the public. Through its text and footnotes, the Article discusses the positives and negatives of trade secret protection; addresses historical and current examples of trade secret abuse; analyzes the inadequate solutions that have been tried and proposed; and, ultimately, recommends changing trade secret law by incorporating the precautionary principle into the definition of a trade secret to ensure that protection will no longer be available for information that endangers public health. This Article is both timely and necessary, as the public is continually bombarded …

A Historical Reassessment Of Congress's "Power To Dispose Of" The Public Lands, Jeffrey M. Schmitt

School of Law Faculty Publications

The Property Clause of the Constitution grants Congress the “Power to Dispose” of federal land. Congress uses this Clause to justify permanent federal land ownership of approximately one-third of the land within the United States. Legal scholars, however, are divided as to whether the original understanding of the Clause supports this practice. While many scholars argue that the text and intent of the framers show that Congress has the power to permanently own land within the states, others contend that these sources demonstrate that Congress has a duty to dispose of all federal land not held pursuant to another enumerated …

The Assessment Mandates In The Aba Accreditation Standards And Their Impact On Individual Academic Freedom Rights, Victoria L. Vanzandt

School of Law Faculty Publications

No abstract provided.

Remnants Of Apartheid Common Law Justice: The Primacy Of The Spirit, Purport And Objects Of The Bills Of Rights For Developing The Common Law And Bringing Horizontal Rights To Fruition, Christopher J. Roederer

School of Law Faculty Publications

The Constitutional Court in Carmichele was correct to hold that ‘[where] the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation.’ Professor Anton Fagan’s argument that this is false is flawed because he misquotes, misrepresents and misunderstands the Court’s argument. Further, Fagan’s argument that the spirit, purport and objects of the Bill of Rights is merely a secondary reason for developing the common law that can be trumped by the individual moral views of judges, is also flawed. It is based on a …

Access To Trade Secret Environmental Information: Are Trips And Trips Plus Obligations A Hidden Landmine?, Dalindyebo Shabalala

School of Law Faculty Publications

Freedom of Information Acts (FOIAs) have been fundamental to enabling access to environmental information. The effectiveness of domestic and international environmental regulatory standards has been dependent on ensuring strong information access regimes, especially for information submitted to governments by firms. However, there has been an ongoing tension between providing and accessing complete regulatory information on the one hand, and the interest in maintaining the economic value of trade secrets. Such tensions have historically been managed at the domestic level within constitutional structures balancing access to information, privacy interests, and economic interests. However, the almost simultaneous advent of international norms and …

Social Media Law In A Nutshell, Ryan Garcia, Thaddeus A. Hoffmeister

School of Law Faculty Publications

Social media has transformed how the world communicates. Its impact has been felt in every corner of our society including the law. Social Media Law in a Nutshell is a wide-ranging look of how the social media transformation has impacted various legal fields. From marketing to employment to torts to criminal law to copyright and beyond, virtually every legal field has been changed by social media. By looking at high level concerns and example cases, Social Media Law in a Nutshell attempts to give practitioners exposure to social media issues and concerns so they can better advise clients and approach …

Remedies For Regulatory Takings (Constructive Expropriations), Deprivations, Expropriations Or Custodianship In South Africa And The U.S., Christopher J. Roederer

School of Law Faculty Publications

Oliver Wendell Holmes, writing for the Court in Pennsylvania Coal Co. v. Mahon (1922), started the regulatory takings tradition in the U.S. with his famous line that “if regulation goes too far it will be recognized as a taking” deserving of just compensation. As this paper will show, how far is too far depends on where you are. Under the Fifth Amendment to the U.S. Constitution, regulations do not need to go as far as they once did, and under the law in states like Oregon and Florida, regulations do not need to go very far at all before one …

Reasonable Accommodations And The Ada Amendments’ Overlooked Potential, Jeannette Cox

School of Law Faculty Publications

There is “a dearth of precedent” outlining the scope of the Americans with Disabilities Act’s reasonable accommodations provision. The “little precedent” available “remains severely underdeveloped,” “in a state of chaos,” and leaves “many issues unresolved.” Circuit splits abound. For example, courts widely differ in their perspectives about whether the ADA requires employers to permit employees with disabilities to work from home. Similarly, in circumstances in which an employee with a disability can no longer do his or her current job, courts differ on the question of whether the ADA requires the employer to prefer the employee with a disability for …

Title Ix, Sexual Assault, And The Issue Of Effective Consent: Blurred Lines—When Should “Yes” Mean “No”?, Lori E. Shaw

School of Law Faculty Publications

This Article is intended to set the process in motion by providing the DOE and the educational institutions governed by Title IX with a proposed standard for “effective consent.” Part I provides an overview of the realities of campus life in the 2010s, delving into the root causes of sexual assault and other forms of unwanted sexual contact. Sexual hookups and binge drinking, two aspects of campus life inextricably linked to one another and to unwanted sexual contact, are explored in depth.

Part II presents an overview of the traditional role, structures, and processes of the student-conduct system. It then …

Intellectual Property, Climate Change And Development, Dalindyebo Shabalala

School of Law Faculty Publications

Since the wave of independence that swept former European colonies in the middle to late twentieth century, access to technology and knowledge has been at the core of demands for restitution and aid by developing countries. The demands found their strongest expression in the Declaration on the Establishment of a New International Economic Order (NIEO) 1974 which sought, among other things:

“Giving to the developing countries access to the achievements of modern science and technology, and promoting the transfer of technology and the creation of indigenous technology for the benefit of the developing countries in forms and in accordance with …

In Defense Of Shelby County’S Principle Of Equal State Sovereignty, Jeffrey M. Schmitt

School of Law Faculty Publications

In Shelby County v. Holder, the Supreme Court struck down a key aspect of the Voting Rights Act of 1965 based on “the principle that all States enjoy equal sovereignty.” Legal scholars have exhaustively attacked Shelby County’s equal sovereignty principle with a surprising degree of unanimity and contempt. These critics argue that the principle is theoretically unworkable, finds no support in the Supreme Court’s precedent, is inconsistent with constitutional history, undermines individual rights, and is tainted by its association with slavery and Jim Crow. This Article responds to such criticism by arguing that the principle of equal sovereignty is a …

Immigration Enforcement Reform: Learning From The History Of Fugitive Slave Rendition, Jeffrey M. Schmitt

School of Law Faculty Publications

The United States deports hundreds of thousands of immigrants each year, leaving many of the country’s eleven million undocumented immigrants living in constant fear of being torn from their families and homes. Because Congress has been unable to address this humanitarian crisis with meaningful legislative reform, President Obama recently announced that his administration will consider changes to its enforcement policy. By drawing a parallel to the nation’s experience with fugitive slave rendition, this Essay argues that President Obama should allow the states to work with U.S. Immigration and Customs Enforcement (ICE) to moderate the implementation of federal enforcement programs.

Rethinking The State Sovereignty Interest In Personal Jurisdiction, Jeffrey M. Schmitt

School of Law Faculty Publications

The Supreme Court has never articulated a coherent theoretical justification for the law of personal jurisdiction. While some opinions state that the law is based on state sovereignty, others hold that it is instead derived exclusively from the Due Process Clause’s concern for fairness. None of the opinions, however, clearly ties either of these theories to the blackletter law of personal jurisdiction. This confusion over the purpose of the doctrine has helped to create divisions both within the Court and among the Circuits on a number of important jurisdictional issues.

This Article argues that the law of personal jurisdiction must …

The Transformation Of South African Private Law After Twenty Years Of Democracy, Christopher J. Roederer

School of Law Faculty Publications

In The Transformation of South African Private Law after Ten Years of Democracy, 37 COLUM. HUM. RTS. L. REV. 447 (2006), I evaluated the role of private law in consolidating South Africa’s constitutional democracy. There, I traced the negative effects of apartheid from public law to private law, and then to the law of delict, South Africa’s counterpart to tort law. I demonstrated that the law of delict failed to develop under apartheid and that the values animating the law of delict under apartheid were inconsistent with the values and aspirations of South Africa’s democratic transformation. By the end of …

Is Fracking An Inflammatory Word?, Blake Watson

School of Law Faculty Publications

Hydraulic fracturing is a method of oil and gas extraction. It involves the pumping of a mixture of proppants, chemicals, and large amounts of water into wells to exert pressure and fracture rock formations, thereby allowing otherwise “trapped” gas and oil to flow more freely. See Railroad Commission of Texas v. Citizens for a Safe Future and Clean Water, 336 S.W.3d 619, 621 (Tex. 2011) (describing the “fracing” process). With the development of horizontal drilling and more effective lubricants, it is now possible to remove “unconventional” sources of oil and gas located in shale and other dense substrata. Positive …

Preventing Juror Misconduct In A Digital World: A Comparative Analysis, Thaddeus A. Hoffmeister

School of Law Faculty Publications

This article examines the reform efforts employed by common law countries to address internet-related juror misconduct, which generally arises when jurors use technology to improperly research or discuss a case. The three specific areas of reform are (1) punishment, (2) oversight, and (3) education. The first measure can take various forms ranging from fines to public embarrassment to incarceration. The common theme with all punishments is that once imposed, they make citizens less inclined to want to serve as jurors. Therefore, penalties should be a last resort in preventing juror misconduct.

The second reform measure is oversight, which occurs in …

Global Income Inequality And The Potential For Global Democracy: A Functionalist Analysis, Andrew L. Strauss

School of Law Faculty Publications

The thesis that I wish to develop in this chapter is that a functionalist view of the development of global institutions suggests that the structural inequalities in global income that were a primary cause of the global economic crisis of 2008, and that continue to endanger the world economy, have the potential to provide the political preconditions for a global regime that can help redress those inequalities. To do so, however, such a regime must empower the less economically well off through representation, and the regime itself must have the practical ability to influence global economic policy. Such a regime, …

Making Sense Of Extraterritoriality: Why California’S Progressive Global Warming And Animal Welfare Legislation Does Not Violate The Dormant Commerce Clause, Jeffrey M. Schmitt

School of Law Faculty Publications

The dormant Commerce Clause’s extraterritoriality doctrine has long baffled courts and legal scholars. Rather than attempt to make sense of the doctrine, most scholars have instead argued that it should be abandoned as unnecessary and unworkable. Such scholarship, however, is of little use to the lower courts struggling with extraterritoriality issues. The federal courts in California, for example, have recently been forced to rule on challenges to California’s landmark carbon emissions and animal welfare legislation. Plaintiffs in these cases argue that California is regulating extraterritorially by telling ethanol producers and farmers in other states how to run their businesses. In …

The Federal Right To Recover Fugitive Slaves: An Absolute But Self-Defeating Property Right, Jeffrey M. Schmitt

School of Law Faculty Publications

A key insight of modern property scholarship is that property rights are limited by the rights of others. In the antebellum era, slave owners’ property rights in fugitive slaves who escaped into the North existed in tension with the rights of free blacks who might be wrongfully claimed. At first, the Fugitive Slave Act of 1793, as supplemented by the law in most Northern states, limited a slave owner’s property rights by providing limited legal protections to free blacks against being erroneously claimed as slaves. As attitudes towards slavery changed, however, state laws in the North became increasingly protective of …

Intellectual Property Treaties And Development, Dalindyebo Shabalala, Anselm Kamperman Sanders

School of Law Faculty Publications

This work responds to the increasing need in many countries to better understand linkages between intellectual property, trade rules, and economic and social development, and to find new ways of implementing intellectual property rules and optimizing their effects. It provides a comprehensive analysis of the latest legal, economic, political and social research and advanced current thinking on the relationship between intellectual property and trade and development.

This chapter traces the link between intellectual property protection, innovation, and development trough the multilateral WTO system and bilateral trade and investment treaties. In a post-TRIPS globalized world, knowledge-intensive economies encounter increasing difficulties in …

Climate Change, Technology Transfer And Intellectual Property: Options For Action At The Unfccc, Dalindyebo Shabalala

School of Law Faculty Publications

In his dissertation, the author examines the issue of whether intellectual property poses a barrier to technology transfer to address climate change and if so, what policymakers should do at the multilateral level. The book refocuses the question away from empirical approaches toward the key question of the legal capacity of developing countries to prospectively restructure their economies to access technologies and move up the technology value chain. It concludes with a set of recommendations for action at the United Nations Framework Convention on Climate Change.

The author defended his dissertation Oct. 15, 2014, at Maastricht University in the Netherlands. …

The Challenges Of Preventing And Prosecuting Social Media Crimes, Thaddeus A. Hoffmeister

School of Law Faculty Publications

Wanted: Caretaker For Farm. Simply watch over a 688 acre patch of hilly farmland and feed a few cows, you get 300 a week and a nice 2 bedroom trailer, someone older and single preferred but will consider all, relocation a must, you must have a clean record and be trustworthy—this is a permanent position, the farm is used mainly as a hunting preserve, is overrun with game, has a stocked 3 acre pond, but some beef cattle will be kept, nearest neighbor is a mile away, the place is secluded and beautiful, it will be a real get away …

Review: 'Oklahoma’S Indian New Deal', Blake Watson

School of Law Faculty Publications

Citation information for the book reviewed:

Blackman, Jon S. 2013. Oklahoma's Indian New Deal. Norman, OK: University of Oklahoma Press, 2013.

Buying West Florida From The Indians: The Forbes Purchase And Mitchel V. United States (1835), Blake Watson

School of Law Faculty Publications

This article takes an in-depth look at Mitchel v. United States. In order to place the Forbes Purchase in historical context, Part I provides an overview of European and American control of Florida. Part II details the events that led to the sale by the Creek and Seminole Indians of nearly a million and a half acres in 1804-1806 and 1810-1811. Part III describes the efforts of the purchasers and subsequent grantees to obtain confirmation of the Forbes Purchase. Part IV details the decisions in the Mitchel litigation. The purchase is compared in Part V to other transfers of Indian …

Writing Lessons From Abroad: A Comparative Perspective On The Teaching Of Legal Writing, Adam Todd

School of Law Faculty Publications

With a few exceptions, American legal writing pedagogy has not been adopted in any meaningful way in foreign countries. At most, it has garnered some attention in Legal English courses, but has otherwise received scant reception in foreign universities and little academic interest by continental and other civil law academics.

The reason transplantation, or “borrowing,” of American legal writing pedagogy has not occurred is due to the deep structural differences between the American legal education system and the education system found in most other countries, especially civil law countries. For example, many law schools in Western Europe require up to …