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Articles 1 - 15 of 15
Full-Text Articles in Law
Why So Contrived? Fourth Amendment Balancing, Per Se Rules, And Dna Databases After Maryland V. King, David H. Kaye
Why So Contrived? Fourth Amendment Balancing, Per Se Rules, And Dna Databases After Maryland V. King, David H. Kaye
Journal Articles
In Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court narrowly upheld the constitutionality of routine collection and storage of DNA samples and profiles from arrestees. In doing so, it stepped outside the usual framework that treats warrantless searches as per se unconstitutional unless they fall within specified exceptions to the warrant and probable cause requirements. Instead, the Court balanced various individual and state interests. Yet, as regards the state interests, the Court confined this direct balancing analysis to the perceived value of using DNA to inform certain pretrial decisions. Oddly, it avoided relying directly on DNA’s …
A Meditation On Moncrieffe: On Marijuana, Misdemeanants, And Migration, Victor C. Romero
A Meditation On Moncrieffe: On Marijuana, Misdemeanants, And Migration, Victor C. Romero
Journal Articles
This essay is a brief meditation on the immigration schizophrenia in our law and legal culture through the lens of the Supreme Court’s latest statement on immigration and crime, Moncrieffe v. Holder. While hailed as a “common sense” decision, Moncrieffe is a rather narrow ruling that does little to change the law regarding aggravated felonies or the ways in which class and citizenship play into the enforcement of minor drug crimes and their deportation consequences. Despite broad agreement on the Court, the Moncrieffe opinion still leaves the discretion to deport minor state drug offenders in the hands of the federal …
Immigration Remarks For The 10th Annual Wiley A. Branton Symposium, Shoba S. Wadhia
Immigration Remarks For The 10th Annual Wiley A. Branton Symposium, Shoba S. Wadhia
Journal Articles
This morning (despite the pressure that our panel comes right before lunch), I am going to provide a “101” on the role of prosecutorial discretion in immigration law, which is my primary area of research and fundamental to understanding how the immigration system operates. Prosecutorial discretion is a largely invisible tool that enables thousands, if not millions, of unauthorized noncitizens to reside in the United States without fear from deportation. It may be characterized as invisible because prosecutorial discretion decisions are largely connected to no action at all or as some call it, nonenforcement. A favorable exercise of “prosecutorial discretion” …
The Rise Of Speed Deportation And The Role Of Discretion, Shoba S. Wadhia
The Rise Of Speed Deportation And The Role Of Discretion, Shoba S. Wadhia
Journal Articles
In 2013, the majority of people deported never saw a courtroom or immigration judge. Instead, they were quickly removed by the Department of Homeland Security via one of several procedures collectively referred to as “speed deportation.” The policy goals of speed deportation are economic; these processes save government resources from being spent on procedural safeguards such as a trial attorney, immigration judge, and a fundamentally fair hearing. Higher deportation numbers may also benefit the image the government seeks to portray to policymakers who support amplified immigration enforcement. However, the human consequences of speed deportation are significant and can result in …
Insights From Canada For American Constitutional Federalism, Stephen F. Ross
Insights From Canada For American Constitutional Federalism, Stephen F. Ross
Journal Articles
The U.S. Supreme Court's decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), has again focused widespread public attention on the Court as an arbiter of the balance of power between the federal government and the states. The topic of the proper role a nation's highest court in this respect has been important and controversial throughout not only American, but also Canadian history, raising questions of constitutional theory for a federalist republic: What justifies unelected judges interfering with the ordinary political process with regard to federalism questions? Can courts create judicially manageable doctrines to police …
The Aftermath Of Catastrophes: Valuing Business Interruption Insurance Losses, Chris French
The Aftermath Of Catastrophes: Valuing Business Interruption Insurance Losses, Chris French
Journal Articles
With the onslaught of tornadoes, hurricanes, and floods in recent years, business interruption losses have been staggering. Many businesses do not survive such catastrophes. Even business owners that purchased business interruption insurance, which is intended to ensure that a business’s revenue stream continues during an interruption in its operations, often find that their insurers have dramatically different views regarding the amount of the losses that should be reimbursed. The reason for this disparity in views is that the loss valuation provisions in business interruption insurance policies provide very little guidance regarding how business interruption losses should be calculated. Thus, disputes …
Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports
Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports
Journal Articles
This piece argues that the Supreme Court's April 2014 decision in Navarette v. Calfornia, like last Term's opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.
A Regulatory Solution To Better Promote The Educational Values And Economic Sustainability Of Intercollegiate Athletics, Stephen F. Ross, Matt Mitten
A Regulatory Solution To Better Promote The Educational Values And Economic Sustainability Of Intercollegiate Athletics, Stephen F. Ross, Matt Mitten
Journal Articles
Currently there are several pending antitrust suits challenging NCAA rules restricting the economic benefits intercollegiate athletes may receive for their sports participation. Although remedying the inherent problems of commercialized college sports (primarily Division I football and men’s basketball) is a laudable objective, a free market solution mandated by antitrust law may have unintended adverse consequences. Judicial invalidation of these rules may inhibit universities from providing many athletes with a college education they would not otherwise receive, by eliminating or reducing the value of scholarships for many players whose economic value is less than the cost of an education. A wholly …
Judicial Review Of Ncaa Eligibility Decisions: Evaluation Of The Restitution Rule And A Call For Arbitration, Stephen F. Ross, Richard T. Karcher, S. Baker Kensinger
Judicial Review Of Ncaa Eligibility Decisions: Evaluation Of The Restitution Rule And A Call For Arbitration, Stephen F. Ross, Richard T. Karcher, S. Baker Kensinger
Journal Articles
Courts have held that the general principles of judicial non-interference with the decisions of private associations do not apply where a dominant organization’s decisions effectively prevent individuals from participating in an important activity, including a profession or sports. Although the bylaws of the National Collegiate Athletic Association (NCAA) give it unfettered power, it remains subject to judicial review when its decisions violate constitutional or statutory limits, or principles of contract law, or when they are inconsistent with the organization’s own rules. As such, general principles of equity should freely permit an athlete to obtain injunctive relief where the applicable standards …
Teaching The Art Of Defending A White Collar Criminal Case, Katrice Bridges Copeland
Teaching The Art Of Defending A White Collar Criminal Case, Katrice Bridges Copeland
Journal Articles
This Article discusses the author's experience with effectively teaching a white collar crime course.
The Crime Of Being In Charge: Executive Culpability And Collateral Consequences, Katrice Bridges Copeland
The Crime Of Being In Charge: Executive Culpability And Collateral Consequences, Katrice Bridges Copeland
Journal Articles
This Article argues that the government's exclusion of executives who have been convicted as "responsible corporate officers" for a period longer than three years without any showing of moral blameworthiness is misguided. The responsible corporate officer doctrine is flawed because under the doctrine it is irrelevant that the executive did not intend for the misconduct to occur. It is not a defense that the executive delegated responsibility in good faith. Nor is it a defense that the executive is not knowledgeable about or did not participate in the misconduct. The only potential defense is impossibility, but it has never been …
Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Jud Mathews, Nuno M. Garoupa
Strategic Delegation, Discretion, And Deference: Explaining The Comparative Law Of Administrative Review, Jud Mathews, Nuno M. Garoupa
Journal Articles
This paper offers a theory to explain cross-national variation in administrative law doctrines and practices. Administrative law regimes vary along three primary dimensions: the scope of delegation to agencies, agencies’ exercise of discretion, and judicial practices of deference to agencies. Working with a principal-agent framework, we show how cross-national differences in institutions’ capacities and the environments they face encourage the adoption of divergent strategies that lead to a variety of distinct, stable, equilibrium outcomes. We apply our model to explain patterns of administrative law in the United States, Germany, France, and Commonwealth jurisdictions.
The United States, China, And Freedom Of Navigation In The South China Sea, James W. Houck, Nicole M. Anderson
The United States, China, And Freedom Of Navigation In The South China Sea, James W. Houck, Nicole M. Anderson
Journal Articles
The need for a uniform understanding of international norms regarding freedom of navigation is increasingly important as more States develop capacity to act in the international maritime realm. Nowhere is the issue of freedom of navigation more contentious, with more potential to spark wider conflict, than in the South China Sea (SCS). Both the United States and China profess an interest in the free navigation of commercial vessels in the region. Beyond commercial shipping, however, the two nations disagree on the important issue of freedom of navigation for military vessels. The United States believes all nations have wide latitude under …
The Origin Of Parental Rights: Labor, Intent, And Fathers, Dara Purvis
The Origin Of Parental Rights: Labor, Intent, And Fathers, Dara Purvis
Journal Articles
Most theories of parentage fail to explain the genesis of the right to parent - for example, why does a biological relationship generate parental rights? This Article shows that the law of parental rights mirrors theories of acquiring property, and that the law has shifted over time, from favoring a property right based in genetics to a Lockean theory of property rights earned through labor. The growth of Lockean labor-based theories is epitomized in reforms to parentage laws that incorporate functional theories of parenting, meaning that adults who perform caretaking work that creates a significant relationship with children are recognized …
The Role Of Comparative Law In Shaping Corporate Statutory Reforms, Marco Ventoruzzo
The Role Of Comparative Law In Shaping Corporate Statutory Reforms, Marco Ventoruzzo
Journal Articles
This Essay discusses how comparative law played and plays a role in the statutory development of corporate laws. The influence of laws of other systems on the development of statutory law is common, explicit, and represents a tradition that accompanied legal reforms since the very beginning of the development of legislation.
Focusing on modern corporate law, I argue (but the argument could be extended to many other legal fields) that it is necessary to distinguish two basic ways in which comparative law influences legal reforms in one particular jurisdiction. The first one is through regulatory competition among different systems. In …