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Loyola University Chicago, School of Law

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Articles 1 - 30 of 566

Full-Text Articles in Law

Pandemic Politics, Public Health, And The Fda, Jordan Paradise, Becky Bavlsik Jan 2021

Pandemic Politics, Public Health, And The Fda, Jordan Paradise, Becky Bavlsik

Faculty Publications & Other Works

No abstract provided.


An Empirical Assessment Of Pretextual Stops And Racial Profiling, Stephen Rushin Jan 2021

An Empirical Assessment Of Pretextual Stops And Racial Profiling, Stephen Rushin

Faculty Publications & Other Works

This Article empirically illustrates that legal doctrines permitting police officers to engage in pretextual traffic stops may contribute to an increase in racial profiling. In 1996, the U.S. Supreme Court held in Whren v. United States that pretextual traffic stops do not violate the Fourth Amendment. As long as police officers identify an objective violation of a traffic law, they may lawfully stop a motorist--even if their actual intention is to use the stop to investigate a hunch that by itself does not amount to probable cause or reasonable suspicion.

Scholars and civil rights activists have sharply criticized Whren ...


Covid-19 And American Democracy, Barry Sullivan Jun 2020

Covid-19 And American Democracy, Barry Sullivan

Faculty Publications & Other Works

This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell'economia on responses to the COVID-19 pandemic by governments around the world.


The Emergence Of Law And Macroeconomics: From Stability To Growth To Human Development, Steven A. Ramirez Jan 2020

The Emergence Of Law And Macroeconomics: From Stability To Growth To Human Development, Steven A. Ramirez

Faculty Publications & Other Works

No abstract provided.


Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Tilley Jan 2020

Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Tilley

Faculty Publications & Other Works

Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several ...


Tobacco Product Warnings In The Mist Of Vaping: A Retrospective On The Public Health Cigarette Smoking Act, John D. Blum Jan 2020

Tobacco Product Warnings In The Mist Of Vaping: A Retrospective On The Public Health Cigarette Smoking Act, John D. Blum

Faculty Publications & Other Works

Warning labels have been mandated for cigarette packages under US federal law since the mid-1960s. While the nature and specificity of warnings has evolved, there is a long-standing skepticism about the effectiveness of textual warning labels, which has spurred the global use of pictorial warnings as a deterrent mechanism. Due to commercial speech challenges, the USFDA has delayed adoption of graphic cigarette labels, and the impact of pending, newly revised graphic warnings remains a matter of uncertainty. Like other matters of smoking abatement, public health anti-tobacco initiatives are compounded by the rapid increase in e-cigarette use where currently, mandatory warnings ...


"I'D Gladly Pay You Tuesday For A [Tax Deduction] Today": Donor-Advised Funds And The Deferral Of Charity, Samuel D. Brunson Jan 2020

"I'D Gladly Pay You Tuesday For A [Tax Deduction] Today": Donor-Advised Funds And The Deferral Of Charity, Samuel D. Brunson

Faculty Publications & Other Works

In recent years, donor-advised funds have become an increasingly popular vehicle for charitable giving. In part, their popularity can be traced to a disconnect in the law: donor-advised funds look in many ways like private foundations, but the tax law treats them as public charities. This disconnect is advantageous to donors. Because Congress was worried about wealthy individuals' ability to take advantage of the control they can exercise over private foundations, it imposed a series of additional tax rules on private foundations. These rules, among other things, limit the deductibility of donations to private foundations, require that private foundations make ...


Arbitration Of Worker Contracts: New Prime's Proper Statutory Interpretation Of The 1925 Federal Arbitration Act, Margaret L. Moses Jan 2020

Arbitration Of Worker Contracts: New Prime's Proper Statutory Interpretation Of The 1925 Federal Arbitration Act, Margaret L. Moses

Faculty Publications & Other Works

In 1925, the Congress that adopted the Federal Arbitration Act did not intend for it to cover any workers’ contracts. However, this changed dramatically when the Supreme Court determined in Circuit City Stores, Inc. v. Adams (2001) that all workers’ contracts were covered except for transportation workers. Thus, today, thousands of workers are forced into adhesion contracts requiring arbitration. However, the recent unanimous decision of the Supreme Court in New Prime v. Oliveira unequivocally declares that the proper way to interpret the Act is to give it the meaning it had when Congress enacted the statute. This very reasonable conclusion ...


Three Framing Of "Faster" At The Fda And The Federal Right To Try, Jordan Paradise Jan 2020

Three Framing Of "Faster" At The Fda And The Federal Right To Try, Jordan Paradise

Faculty Publications & Other Works

In May 2018, Congress passed the controversial Right to Try (“RTT”) Act, creating a process for terminally ill patients to request access to investigational drugs. The federal RTT Act is not the first legal mechanism that fosters quicker access to investigational drugs. This new right to try is distinct from existing pathways created by law, regulation or federal administrative agency policy. Various mechanisms facilitated by the U.S. Food and Drug Administration (“FDA”) are significantly more substantial and important in the context of “faster” access to therapeutic products. These mechanisms lie along a spectrum of product development spanning investigational new ...


Electoral College: Supreme Court Decides That States May Replace Or Punish Presidential Electors Who Do Not Vote For The Candidate Who Won The Most Votes In The State, But Leaves Several Questions Unanswered, Alan Raphael Jan 2020

Electoral College: Supreme Court Decides That States May Replace Or Punish Presidential Electors Who Do Not Vote For The Candidate Who Won The Most Votes In The State, But Leaves Several Questions Unanswered, Alan Raphael

Faculty Publications & Other Works

No abstract provided.


Confederate Monuments As Badges Of Slavery, Alexander Tsesis Jan 2020

Confederate Monuments As Badges Of Slavery, Alexander Tsesis

Faculty Publications & Other Works

This Article develops a Thirteenth Amendment theory supporting the removal of Confederate symbols from government properties. It argues that such monuments to the Lost Cause are badges of slavery that should have no place in public squares.

The Article discusses how white supremacist groups, such as those who participated in the 2017 Unite the Right March in Charlottesville, effectively draw together around monuments honoring leaders and soldiers who fought for the cause of slavery. Relying on the Thirteenth Amendment's principles of freedom, States and municipalities can and should eliminate those monuments from their properties. Such policy initiatives communicate the ...


State Attorneys General As Agents Of Police Reform, Stephen Rushin, Jason Mazzone Jan 2020

State Attorneys General As Agents Of Police Reform, Stephen Rushin, Jason Mazzone

Faculty Publications & Other Works

State attorneys general can and should play an important role in remedying police violations of constitutional rights. In 1994, Congress enacted 42 U.S.C. § 14141 to authorize the U.S. Attorney General to seek equitable relief against state and local police departments engaged in patterns or practices of misconduct. The Department of Justice (DOJ) has used this statute to reform some of the nation’s most troubled police departments. However, the DOJ has lacked the resources to pursue more than a few cases each year and the Trump Administration has recently announced it would no longer enforce § 14141.

In ...


Are Presidential Electors Free To Vote As They Wish, Despite A State’S Popular Vote?, Alan Raphael, Elliott Mondry Jan 2020

Are Presidential Electors Free To Vote As They Wish, Despite A State’S Popular Vote?, Alan Raphael, Elliott Mondry

Faculty Publications & Other Works

No abstract provided.


The Science Of Administrative Change, Barry Sullivan, Christine Chabot Jan 2020

The Science Of Administrative Change, Barry Sullivan, Christine Chabot

Faculty Publications & Other Works

Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed, one of his key advisors promised to "deconstruct" the administrative state. Since taking office, President Trump has attempted to make good on his promises, spurring federal agencies to brush aside countless regulations that previous administrations had promulgated based on scientific, technological, or economic evidence. Those efforts, which have been dubbed a "war on science," implicate a long-contested question in administrative law: to what extent should a change in presidential administrations excuse agencies from an obligation to justify changes in policy with expert, reasoned analysis of relevant data ...


Valuing All Identities Beyond The Schoolhouse Gate: The Case For Inclusivity As A Civic Virtue In K-12, Sacha M. Coupet Jan 2020

Valuing All Identities Beyond The Schoolhouse Gate: The Case For Inclusivity As A Civic Virtue In K-12, Sacha M. Coupet

Faculty Publications & Other Works

Increasing social and political polarization in our society continues to exact a heavy toll marked by, among other social ills, a rise in uncivility, an increase in reported hate crimes, and a more pronounced overall climate of intolerance--for viewpoints, causes, and identities alike. Intolerance, either a cause or a consequence of our fraying networks of social engagement, is rampant, hindering our ability to live up to our de facto national motto, “E Pluribus Unum,” or “Out of Many, One” and prompting calls for how best to build a cohesive civil society. Within the public school--an institution conceived primarily for the ...


Why Ricardo's Theory Of Comparative Advantage Regarding Foreign Trade Doesn't Work In Today's Global Economy, Charles W. Murdock Jan 2020

Why Ricardo's Theory Of Comparative Advantage Regarding Foreign Trade Doesn't Work In Today's Global Economy, Charles W. Murdock

Faculty Publications & Other Works

The theoretical basis for international trade is Ricardo’s theory of comparative advantage. Paul Samuelson, one of the leading lights in the economics profession in the 20th century, referred to it as one of the most beautiful ideas in economics. Yet, no one seems to have considered its validity in the context of the current global trade environment.

What free-trade advocates have not done is to look at the bases underlying Ricardo’s theory, namely, that capital is loyal to the country of origin and that the value of currencies is responsive to imbalances in trade. This article demonstrates that ...


Immigration Policy As A Defense Of White Nationhood, Juan F. Perea Jan 2020

Immigration Policy As A Defense Of White Nationhood, Juan F. Perea

Faculty Publications & Other Works

President Trump's vilification and expulsion of undocumented Latino migrants is only the latest episode of the mass expulsion of Latinos. This essay places Trump's border enforcement policies into historical context as a defense of white national identity. Despite many asserted justifications for this mistreatment of migrants and refugees, the only justification that survives scrutiny is the need to reassure anxious whites that their racial status is being defended.


The Emergence Of Law And Macroeconomics: From Stability To Growth To Human Development, Steven A. Ramirez Jan 2020

The Emergence Of Law And Macroeconomics: From Stability To Growth To Human Development, Steven A. Ramirez

Faculty Publications & Other Works

No abstract provided.


The Conscience Defense To Malpractice, Nadia N. Sawicki Jan 2020

The Conscience Defense To Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception.

Scholarship and public debate about law's role in protecting health care providers' conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete ...


The Omega Man Or The Isolation Of U.S. Antitrust Law, Spencer Weber Waller Jan 2020

The Omega Man Or The Isolation Of U.S. Antitrust Law, Spencer Weber Waller

Faculty Publications & Other Works

There is a classic science fiction novel and film that present a metaphor for the isolation of United States antitrust law in the current global context. Richard Mathiesson's 1954 classic science fiction novel, I am Legend, and the later 1971 film released under the name of The Omega Man starring Charleton Heston, both deal with the fate of Robert Neville, a survivor of a world-wide pandemic who believes he is the last man on Earth.

While I am Legend and The Omega Man are obviously works of fantasy, it nonetheless has resonance for contemporary antitrust debate and discourse. United ...


Copyright Law's Impact On Machine Intelligence In The United States And The European Union, Matthew Sag Jan 2020

Copyright Law's Impact On Machine Intelligence In The United States And The European Union, Matthew Sag

Faculty Publications & Other Works

No abstract provided.


Fda Publicity And Enforcement In The Covid-19 Era, Jordan Paradise, Elise Fester Jan 2020

Fda Publicity And Enforcement In The Covid-19 Era, Jordan Paradise, Elise Fester

Faculty Publications & Other Works

No abstract provided.


Africa And The Radical Origins Of The Right To Development, James T. Gathii Jan 2020

Africa And The Radical Origins Of The Right To Development, James T. Gathii

Faculty Publications & Other Works

This article builds on my earlier scholarship on African approaches to international law through examining the evolution of the right to development. Previously, I identified two approaches to international law in Africa – a contibutionist (or weak) approach and a critical (or strong) approach. Through analysis of the tight to development in the work of two eminent Senegalist jurists, Doudou Thiam and Keba Mbaye, I show that while Thiam adopts a radical stance that falls within the realm of critical approaches, Mbaye charts a third way: One that shares aspects of both approaches but has distinct characteristics of its own. These ...


The Future Of Insider Trading After Salman: Perpetuation Of A Flawed Analysis Or A Return To Basics, Charles W. Murdock Jan 2019

The Future Of Insider Trading After Salman: Perpetuation Of A Flawed Analysis Or A Return To Basics, Charles W. Murdock

Faculty Publications & Other Works

In large part due to two poorly reasoned decisions by Justice Powell in the early 1980s, Chiarella v. U. S. and Dirks v. SEC, the development of insider trading law has been constrained, enforcement has been hampered, and insider-trading has grown to the point where hundreds of millions of dollars are at stake. Moreover, Chiarella and Dirks were inconsistent with the Congressional policy that the purpose of the securities laws is to ensure a level playing field where one participant does not have an undue advantage over another participant. A Second Circuit decision, U.S. v. Newman unnecessarily extended Dirks ...


Data Subjects' Privacy Rights: Regulation Of Personal Data Retention And Erasure, Alexander Tsesis Jan 2019

Data Subjects' Privacy Rights: Regulation Of Personal Data Retention And Erasure, Alexander Tsesis

Faculty Publications & Other Works

The European Union's right to erasure came into effect May 25, 2018, as Article 17 of the General Data Protection Regulation ("GDPR"). Unlike the U.S. "marketplace of ideas" model of free speech, the GDPR gives greater weight to data subjects' privacy interests than to audiences' curiosity about others' intimate lives. The U.S. and EU models advance human thirst for knowledge through open and uninhibited debates, whereas the internet marketplace tends to favor social media companies' commercial interests: put more specifically, free speech is not entirely harmonious with the interests of social media intermediaries whose algorithms tend to ...


Interrogating Police Officers, Stephen Rushin, Atticus Deprospo Jan 2019

Interrogating Police Officers, Stephen Rushin, Atticus Deprospo

Faculty Publications & Other Works

This Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques.
The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these ...


Arlington Heights Won In The Supreme Court But The Fair Housing Act's Goal Of Promoting Racial Integration Saved The Low-Income Housing, Henry Rose Jan 2019

Arlington Heights Won In The Supreme Court But The Fair Housing Act's Goal Of Promoting Racial Integration Saved The Low-Income Housing, Henry Rose

Faculty Publications & Other Works

In the early 1970’s, a developer sought a zoning change to a parcel of land in Arlington Heights, Illinois that would allow for the construction of government-subsidized low income housing. Arlington Heights denied the zoning change and the developer and several potential residents of the housing sued Arlington Heights arguing that this denial violated both equal protection under the Fourteenth Amendment of the United States Constitution and the federal Fair Housing Act (FHA). In Vil. Of Arlington Heights v. Metro. Housing Dev., 429 U.S. 252 (1977), the case reached the United States Supreme Court on the equal protection ...


The Criminal Law Docket: A Term Of Modest Changes, Alan Raphael Jan 2019

The Criminal Law Docket: A Term Of Modest Changes, Alan Raphael

Faculty Publications & Other Works

No abstract provided.


Afterlife Of The Death Tax, Samuel D. Brunson Jan 2019

Afterlife Of The Death Tax, Samuel D. Brunson

Faculty Publications & Other Works

More than a century ago, Congress enacted the modern estate tax to help pay for World War I. Unlike previous iterations of the estate tax, though, this one outlived the war and accumulated additional goals beyond merely raising revenue. The estate tax helped ensure the progressivity of the tax system as a whole, and it limited the hereditary ability to accumulate wealth.


This modern estate tax almost instantly met with opposition, though. The opposition has never been sufficient to entirely eliminate the estate tax, but it has severely weakened its ability to raise revenue and to prevent the accumulation of ...


The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards Jan 2019

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally ...