Law Commons^™

The Dynamic Relationship Between Freedom Of Speech And Equality, Timothy Zick

Faculty Publications

This Article examines the dynamic intersection between freedom of speech and equal protection, with a particular focus on the race and LGBT equality movements. Unlike other works on expression and/or equality, the Article emphasizes the relational and bi-directional connections between freedom of speech and equal protection. Freedom of speech has played a critical role in terms of advancing constitutional equality. However, with regard to both race and LGBT equality, free speech rights also failed in important respects to facilitate equality claims and movements. Advocacy and agitation on behalf of equality rights have also left indelible positive and negative marks on …

The Amicus Machine, Allison Orr Larsen, Neal Devins

Faculty Publications

The Supreme Court receives a record number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest-group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court Bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate the message. …

Giving Credit Where Credit Is Due: Reducing Inequality With A Progressive State Tax Credit, Eric Kades

Faculty Publications

No abstract provided.

The Intellectual Property Hostage In Trade Retaliation, Sarah R. Wasserman Rajec

Faculty Publications

Intellectual property law has become bound up in a debate about appropriate remedies for violations of the World Trade Organization Agreement. As an alternative to traditional countermeasures that consist of retaliation under the violated agreement, the World Trade Organization ("WTO ") contemplates that violations of one of its covered agreements may be remedied through "cross-retaliation, " or retaliation under another agreement. One form of cross-retaliation has garnered interest in recent years: the threat to suspend intellectual property rights in response to unrelated trade violations

Cross-retaliation through intellectual property rights suspension is theoretically appealing for its potential to avoid problems inherent …

Intrapreneurship, Darian M. Ibrahim

Faculty Publications

This Article on “intrapreneurship” has several goals. First, it points out that while much of the legal literature on innovation is concerned with startups (entrepreneurship), the innovation that takes place inside our largest corporations (intrapreneurship) is substantial, important, and understudied. Second, the Article observes that while large technology corporations that used to be startups may remain intrapreneurial in culture, intrapreneurship is less common in the aggregate than we might expect. Reasons include organizational bureaucracy, laws favoring entrepreneurship, and what Clayton Christensen (Harvard Business School) calls “the innovator’s dilemma.” The innovator’s dilemma is, put simply, that good management causes large corporations …

An All-Volunteer Force: Law Students And Pro Bono Lawyers Helping Veterans, Patricia E. Roberts

Faculty Publications

No abstract provided.

Keeping The Promise Of Public Fiduciary Theory: A Reply To Leib And Galoob, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

No abstract provided.

The Constitution Of Agency Statutory Interpretation, Evan J. Criddle

Faculty Publications

No abstract provided.

Adulthood In Law And Culture, Vivian E. Hamilton

Faculty Publications

Young people today come of age in a cultural and economic milieu that prolongs their attainment of the traditional markers of adulthood. Their subjective conceptions of the transition to adulthood also depart radically from the traditional conception, with its emphasis on discrete transition events (including marriage and entry into the workforce). Instead, the modern transition to adulthood is a gradual process comprising the acquisition of general capabilities, rather than the achievement of externally constructed events. The state-established age of legal majority stands in marked contrast to this gradual and prolonged process. Not only does it categorically establish the inception of …

Consolidating Local Criminal Justice: Should Prosecutors Control The Jails?, Adam M. Gershowitz

Faculty Publications

No abstract provided.

On Griswold And Women's Equality, Vivian E. Hamilton

Faculty Publications

No abstract provided.

The Death Knell For The Death Penalty And The Significance Of Global Realism To Its Abolition From Glossip V. Gross To Brumfield V. Cain, Linda A. Malone

Faculty Publications

The Supreme Court’s jurisprudence regarding the death penalty, whether or not cruel, has most certainly been unusual in the annals of criminal punishment. In the short span of four years, the Court foreclosed and then reopened this form of punishment in Furman v. Georgia and Gregg v. Georgia. One year later the Court would categorically exclude the punishment for the rape of an adult. Five years later the Court would again preclude the punishment, for any defendant convicted of felony-murder who did not participate or share in the homicidal act or intent. In 1986 the Court would struggle with …

Fixing A Broken Common Law -- Has The Property Law Of Easements And Covenants Been Reformed By A Restatement, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Ptsd, Tbi, And Oth Discharges: A Case Study Of A Young Service Member, Patricia E. Roberts

Faculty Publications

No abstract provided.

Information-Dissemination Law: The Regulation Of How Market-Moving Information Is Revealed, Kevin S. Haeberle, M. Todd Henderson

Faculty Publications

No abstract provided.

Religious Schooling And Homeschooling Before And After Hobby Lobby, James G. Dwyer

Faculty Publications

The most serious incursions on religious liberty in America today are being inflicted on children by parents and private school operators through power the State has given them. This Article examines the potential effect of the Court’s Hobby Lobby decision on interpreting the Religious Freedom Restoration Act (“RFRA”) on both federal and state levels, detailing why the Court’s decision is irrelevant to addressing the incursions on liberty experienced by children subject to religious and home schooling.

Ultimately, the Article finds that home schools and private schools are unfazed by the Hobby Lobby decision in their capacities as employers and educators …

Post-Trial Pleas Bargaining In Capital Cases: Using Conditional Commutations To Remove Weak Cases From Death Row, Adam M. Gershowitz

Faculty Publications

Plea bargaining accounts for over ninety percent of criminal convictions and it dominates the American criminal justice system. Yet, once a defendant is convicted, bargaining almost completely disappears from the system. Even though years of litigation are on the horizon, there is nearly no bargaining in the appellate and habeas corpus process. There are two reasons for this. First, prosecutors and courts typically lack the power to alter a sentence that has already been imposed. Second, even if prosecutors had the authority to negotiate following a conviction, they would have little incentive to do so. Affirmance rates in ordinary criminal …

Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove

Faculty Publications

No abstract provided.

Arbitrating Ballot Battles, Rebecca Green

Faculty Publications

No abstract provided.

The United States Supreme Court (Mostly) Gives Up Its Review Role With Ineffective Assistance Of Counsel Cases, Paul Marcus

Faculty Publications

No abstract provided.

Foreword: A New Frontier In Criminal Justice Reform, Kami Chavis

Faculty Publications

Each author featured in this issue of the Wake Forest Journal of Law & Policy explores different aspects of the criminal justice system in the United States, and they come to the same conclusion that there is widespread consensus that in order for our system to fully embody the ideals of our nation and our great Constitution, critical reforms must occur at every stage within the criminal justice process.

There is currently strong momentum and bipartisan support to encourage changes that will impact not only those currently imprisoned, but also those in the pipeline to prison, and recent policy shifts …

Taxing Losers, Eric D. Chason

Faculty Publications

The U.S. tax system, like most in the world, benefits capital gains in two ways. Investors can defer paying tax until they "realize" any gain (typically by sale) rather than when the gain simply occurs via rising prices. Additionally, individual investors pay a lower, preferred rate on their long-term capital gains as compared to their other ordinary income (such as compensation or business profits).

However, investors face a burden with respect to their capital losses. Rather than allowing for unlimited capital loss deductions, the Code largely forces investors to match their capital losses against their capital gains. Limits on capital …

Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, And The Consequences Of Returning The Constitution To Elected Government, Neal Devins

Faculty Publications

No abstract provided.

The Positive Law Model Of The Fourth Amendment, William Baude, James Y. Stern

Faculty Publications

For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one.

We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection …

When Can A State Sue The United States?, Tara Leigh Grove

Faculty Publications

State suits against the federal government are on the rise. From Massachusetts’ challenge to federal environmental policy, to Oregon’s confrontation over physician-assisted suicide, to Texas’s suit over the Obama administration’s immigration program, States increasingly go to court to express their disagreement with federal policy. This Article offers a new theory of state standing that seeks to explain when a State may sue the United States. I argue that States have broad standing to sue the federal government to protect state law. Accordingly, a State may challenge federal statutes or regulations that preempt, or otherwise undermine the continued enforceability of, state …

The Horne Dilemma: Protecting Property's Richness And Frontiers, Lynda L. Butler

Faculty Publications

In a 2015 decision, the Supreme Court concluded that real and personal property should not be treated differently under the Takings Clause and that a government condition requiring raisin growers, in certain years, to reserve a percentage of their crop for the government to manage in noncompetitive venues was a per se physical taking. The decision to treat both real and personal property as equally worthy of protection under the Takings Clause has merit given the weak historical evidence suggesting stronger protection for land and the importance of personal property to income generation and capital development in a modern society. …

In Praise Of All Or Nothing Dichotomous Categories: Why Antitrust Law Should Reject The Quick Look, Alan J. Meese

Faculty Publications

No abstract provided.

Now Is The Time: Experts Vs. The Uninitiated As Future Nominees To The U.S. Court Of Appeals For Veterans Claims, Bradley W. Hennings, David E. Boelzner, Jennifer Rickman White

Faculty Publications

Two-thirds of judges appointed to the Court of Appeals for Veterans Claims ("CAVC" or "Court") could and should be drawn from among lawyers experienced in the U.S. Department of Veterans Affairs ("VA") benefits claims adjudication system. It is a specialty court, and like other such courts, its judges would benefit from specialized experience. All stakeholders in the claims system and the Court's work, and most importantly, veterans, would benefit from a Court that has appointees steeped in VA law and adjudication.

The Post-Riley Search Warrant: Search Protocols And Particularity In Cell Phone Searches, Adam M. Gershowitz

Faculty Publications

Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court’s assumption that requiring search warrants would be “simple” and very protective of privacy was overly optimistic. This article reviews lower court decisions in the year since Riley and finds that the search warrant requirement is far less protective than expected. Rather than restricting search warrants to the narrow evidence being sought, some magistrates have issued expansive warrants authorizing a search of the entire contents of the phone with no restrictions whatsoever. Other courts have authorized searches …

Patents Absent Adversaries, Sarah R. Wasserman Rajec

Faculty Publications

No abstract provided.