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Articles 1 - 13 of 13
Full-Text Articles in Law
Content-Based Copyright Denial, Ned Snow
Content-Based Copyright Denial, Ned Snow
Faculty Publications
No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …
Evidentiary Rulings As Police Reform, Seth W. Stoughton
Evidentiary Rulings As Police Reform, Seth W. Stoughton
Faculty Publications
How can law be a mechanism for police reform? The most familiar answer, for legal scholars who work on the regulation of law enforcement, is as a deterrent: the law sets some limit on police behavior and imposes some sanction for violations. But the deterrent model is not the only method through which the law can affect police behaviors. In this article, Stoughton contends that evidentiary considerations have the potential to change both police training and agency culture. Stoughton’s contention is based on the observation that evidentiary considerations have shaped not just police behavior but also the culture of policing …
Law Enforcement's "Warrior Problem", Seth W. Stoughton
Law Enforcement's "Warrior Problem", Seth W. Stoughton
Faculty Publications
Within law enforcement, few things are more venerated than the concept of the Warrior. Officers are trained to cultivate a “warrior mindset,” the virtues of which are extolled in books, articles, interviews, and seminars intended for a law enforcement audience. An article in Police Magazine opens with a sentence that demonstrates with notable nonchalance just how ubiquitous the concept is: “[Officers] probably hear about needing to have a warrior mindset almost daily.” Modern policing has so thoroughly assimilated the warrior mythos that, at some law enforcement agencies, it has become a point of professional pride to refer to the “police …
Beyond Science And Hysteria: Reality And Perceptions Of Environmental Justice Concerns Surrounding Marcellus And Utica Shale Gas Development, Ann M. Eisenberg
Beyond Science And Hysteria: Reality And Perceptions Of Environmental Justice Concerns Surrounding Marcellus And Utica Shale Gas Development, Ann M. Eisenberg
Faculty Publications
The debate surrounding the use of hydraulic fracturing (also known as “fracking” or “HF”) to extract natural gas from the Marcellus and Utica shale deposits is often characterized as a tension between economic development and environmental risks. But frequently missing from this dichotomy is the fact that the concerns of many who oppose HF use extend beyond the purely “environmental,” and also include concerns about issues such as “the natural resource curse” and losing autonomy. These concerns ring of “environmental justice” rather than “environmentalism.” Environmental justice espouses the belief that no group should bear disproportionate environmental consequences resulting from industrial …
When Does Flexibility Matter In Environmental Law?, Josh Eagle
When Does Flexibility Matter In Environmental Law?, Josh Eagle
Faculty Publications
Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility-reduced procedural requirements for administrative agency decision making and less rigid substantive standards-would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and also to …
Dystopian Constitutionalism, Thomas P. Crocker
Dystopian Constitutionalism, Thomas P. Crocker
Faculty Publications
This article describes and defends the distinctive role and rich tradition of using contrastive dystopian states in constitutional theory and practice. As constitutional tradition going back to the founding, U.S. constitutional analysis was replete with arguments about what practices would lead to an undesirable state of tyranny. In more recent constitutional history, the use of contrasting examples of the “police state,” totalitarianism, or Orwellian references have been prevalent in Supreme Court opinions across doctrinal domains, most recently making a prominent appearance at oral argument in the Fourth Amendment case, United States v. Jones. In contrast to more comprehensive constitutional theories, …
The Issue Class, Joseph Seiner
The Issue Class, Joseph Seiner
Faculty Publications
In 2011, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This Article does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored: what is the best tool currently available for workers to pursue systemic employment …
Cloning Miranda: Why Medical Miranda Supports The Pre-Assertion Of Criminal Miranda Rights, Colin Miller
Cloning Miranda: Why Medical Miranda Supports The Pre-Assertion Of Criminal Miranda Rights, Colin Miller
Faculty Publications
Courts across the country have concluded that suspects cannot assert their Miranda rights before being subjected to custodial interrogation. This reluctance to credit pre-assertions can be traced to dicta from McNeil v. Wisconsin, in which the Supreme Court noted that “[m]ost rights must be asserted when the government seeks to take the action they protect against.” This article challenges this notion by drawing an analogy between criminal suspects and patients. In 1990, Congress passed the Patient Self-Determination Act (“PSDA”), the so-called medical Miranda, which requires health care providers who accept money from Medicaid or Medicare to inform patients of their …
Stock Market Law And The Accuracy Of Public Companies’ Stock Prices, Kevin Haeberle
Stock Market Law And The Accuracy Of Public Companies’ Stock Prices, Kevin Haeberle
Faculty Publications
The social benefits of more accurate stock prices—that is, stock-market prices that more accurately reflect the future cash flows that companies are likely to produce—are well established. But it is also thought that market forces alone will lead to only a sub-optimal level of stock-price accuracy—a level that fails to obtain the maximum net social benefits, or wealth, that would result from a higher level. One of the principal aims of federal securities law has therefore been to increase the extent to which the stock prices of the most important companies in our economy (public companies) contain information about firms’ …
The Gap Between Rights And Reality: The Intersection Of Language, Disability, And Educational Opportunity, Claire Raj
The Gap Between Rights And Reality: The Intersection Of Language, Disability, And Educational Opportunity, Claire Raj
Faculty Publications
English Language Learners (ELLs) are the fastest growing group in America’s schools. The debate over how to best serve them is largely dominated by fights over English-only versus bilingual instruction. This controversy is once again taking center stage, as states like California and Massachusetts reassess their language programs after a decade of English-only laws on the books. But once again, lost in the battle over language pedagogy is the fact that ELLs face educational challenges beyond language. Like any other student population, the ELL cohort includes students with disabilities who need special education services. In theory, two different statutes protect …
The Mirage Of Immigration Reform, Marcia A. Yablon-Zug
The Mirage Of Immigration Reform, Marcia A. Yablon-Zug
Faculty Publications
No abstract provided.
Paved With Good Intentions: Unintended Consequences Of Federal Proposals To Integrate Child Support And Parenting Time, Lisa V. Martin, Stacy Brustin
Paved With Good Intentions: Unintended Consequences Of Federal Proposals To Integrate Child Support And Parenting Time, Lisa V. Martin, Stacy Brustin
Faculty Publications
Promoting the relationships between noncustodial parents and their children has become a federal policy priority. Recent policy proposals aim to achieve this by integrating adjudications of custody and parenting time within proceedings to establish child support. These proposals share several laudable goals, including encouraging the involvement of fathers in their children’s lives, increasing compliance with child support orders, and facilitating unmarried parents’ access to court processes for resolving custody and visitation disputes. But the simplistic solutions employed by the proposals, some of which would mandate that custody and visitation be adjudicated in all child support proceedings, pose serious risks to …
Resolving Llc Member Disputes In North Carolina, James R. Burkhard
Resolving Llc Member Disputes In North Carolina, James R. Burkhard
Faculty Publications
No abstract provided.