Law Commons^™

A World Of Difference? Law Enforcement, Genetic Data, And The Fourth Amendment, Christopher Slobogin, J. W. Hazel

Vanderbilt Law School Faculty Publications

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment "search" does not occur unless police infringe "expectations of privacy society is prepared to recognize as reasonable" and has construed that phrase narrowly, without reference to …

Labor’S New Localism, Andrew Elmore

Articles

Millions of workers in the United States, disproportionately women, immigrants, and people of color, perform low-paid, precarious work. Few of these workers can improve their workplace standards because the National Labor Relations Act ("NLRA") does not sufficiently protect their right to form unions and collectively bargain. Lacking sufficient influence in federal and state government to strengthen labor and employment law, unions and worker centers have increasingly sought to build power in cities. The shift to local labor lawmaking has delivered local minimum wage, paid sick leave, and fair scheduling ordinances covering millions of low-wage workers, as well as groundbreaking unionization …

Equality And Sufficiency In Health Care Reform, Gabriel Scheffler

Articles

Most Americans believe that health care is a right, not a privilege. Yet debates over health care reform frequently fail to distinguish between two distinct conceptions of the right to health care: one which focuses on sufficient access to health care-what I refer to as the Right to a Decent Minimum-and a second which focuses on equality in access to health care what I refer to as the Right to Equal Access. These two conceptions of the right to health care in turn support two distinct categories of proposals for expanding health insurance coverage. The Right to Equal Access justifies …

The Paris Agreement Compliance Mechanism: Beyond Cop 26, Jessica Owley, Imad Antoined Ibrahim, Sandrine Maljean-Dubois

Articles

Without an international tribunal or tools like trade sanctions, there is little to coerce or encourage adherence with environmental treaties. The Paris Agreement, the governing global agreement to address climate change, relies on voluntary global cooperation. Countries determine their own commitments by setting nationally determined contributions of greenhouse gases emissions. The main mandatory elements of the agreement are reporting requirements. The success of the agreement turns on whether countries comply with these requirements. Article 15 of the Paris Agreement establishes a Compliance Committee and sets forth the mechanisms to ensure and facilitate compliance with the agreement. Yet, as with the …

Transparency In Plea Bargaining, Jenia I. Turner

Faculty Journal Articles and Book Chapters

lea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it …

Transparency And The First, Mark Fenster

UF Law Faculty Publications

In his book The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump, Stanley Fish neatly reverses the polarity of rights-based claims that the public enjoys, under the First Amendment’s free speech and press rights, a right to government information. Transparency and free speech ideals are indeed related, he concedes, because they share a political vision and conceptual grounding in the notion that robust conceptions of free speech carry a commitment to increase the flow of information. But this is not a good thing, Fish argues—rather, the relationship between the two merely …

Ad Tech & The Future Of Legal Ethics, Seth Katsuya Endo

UF Law Faculty Publications

Privacy scholars have extensively studied online behavioral advertising, which uses Big Data to target individuals based on their characteristics and behaviors. This literature identifies several new risks presented by online behavioral advertising and theorizes about how consumer protection law should respond. A new wave of this scholarship contemplates applying fiduciary duties to information-collecting entities like Facebook and Google.

Meanwhile, lawyers—quintessential fiduciaries—already use online behavioral advertising to find clients. For example, a medical malpractice firm directs its advertising to Facebook users who are near nursing homes with bad reviews. And, in 2020, New York became the first jurisdiction to approve lawyers’ …

Territorial Exceptionalism And The American Welfare State, Andrew Hammond

UF Law Faculty Publications

Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern Mariana Islands, …

Teaching With Feminist Judgments, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

Elisabeth Haub School of Law Faculty Publications

This chapter, part of Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom (Carolina Academic Press 2021), provides an overview of the U.S. Feminist Judgments Project, a collaboration of feminist scholars and lawyers who rewrite significant judicial opinions using feminist methods and reasoning. One of the primary goals of the series of Feminist Judgments books is to demonstrate that the law has a vast, but often unrealized, potential for social justice. The feminist judgment methodology requires the authors of rewritten opinions to act as judges in following the rules of precedent and custom—and to be bound by …

Menstruation And The Bar Exam: Unconstitutional Tampon Bans, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Some states have policies that prevent bar exam candidates from bringing their own menstrual products to the test. Via social media, awareness of these policies achieved new heights in the weeks leading up to the July 2020 bar exam. While states adopted different approaches to administering the bar exam during the COVID-19 pandemic, a small number of jurisdictions responded to public criticism by permitting test-takers to bring menstrual products with them to exams. Not all states have adopted permissive policies, however. This essay explains why outright bans on menstrual products at the bar exam likely are unconstitutional. So-called alternate policies, …

Wills Formalities In Post-Pandemic World: A Research Agenda, Bridget J. Crawford, Kelly Purser, Tina Cockburn

Elisabeth Haub School of Law Faculty Publications

The COVID-19 global pandemic has brought new focus to human mortality. The virus has reminded many people that they need to have a valid will or otherwise make plans for the effective transmission of their property on death. Yet stay-at-home orders and social distancing recommendations make it difficult or impossible to comply with the traditional rules for validly executing wills. Across most common law jurisdictions, the traditional requirements call for two witnesses in the physical presence of the testator. Because of the practical difficulties of safely executing documents during the pandemic with witnesses assembled in physical proximity, many jurisdictions internationally …

How To End Our Stories: A Study Of The Perspectives Of Seniors On Dementia And Decision-Making, James Toomey

Elisabeth Haub School of Law Faculty Publications

Because dementia can cause individuals to make decisions that they otherwise would not, the law needs a mechanism to determine which decisions are entitled to the respect of the legal system and which may be overridden by others. In the philosophical literature, three primary theories for how to make this determination have been offered. First, "Cognitivism" posits that whether a decision should be recognized is a function of the mechanical functioning of the individual's brain at the time the decision is made. Second, "Essentialism" holds that decisions should be recognized so long as they are consistent with the cluster of …

Creating Cryptolaw For The Uniform Commercial Code, Carla L. Reyes

Faculty Journal Articles and Book Chapters

A contract generally only binds its parties. Security agreements, which create a security interest in specific personal property, stand out as a glaring exception to this rule. Under certain conditions, security interests not only bind the creditor and debtor, but also third-party creditors seeking to lend against the same collateral. To receive this extraordinary benefit, creditors must put the world on notice, usually by filing a financing statement with the state in which the debtor is located. Unfortunately, the Uniform Commercial Code (U.C.C.) Article 9 filing system fails to provide actual notice to interested parties and introduces risk of heavy …

Sexual Harassment In The Post-Weinstein World, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The 2017 iteration of the #MeToo movement has brought tremendous attention to the problem of sexual harassment in the workplace, as well as in a variety of other contexts. We learned that sexual harassment is rampant, varied in form, and harmful, or, more accurately, that it is still all of these things. Sexual harassment at work has existed as long as women have worked, whether paid, valued, or enslaved. The law of sexual harassment has a much more recent provenance. Courts began to recognize harassment as a form of sex discrimination in the early 1980s, and the entire current structure …

Subordination And Separation Of Powers, Matthew B. Lawrence

Faculty Articles

This Article calls for the incorporation of antisubordination into separation-ofpowers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized …

Six Scandals: Why We Need Consumer Protection Laws Instead Of Just Markets, Jeff Sovern

Faculty Publications

Markets are powerful mechanisms for serving consumers. Some critics of regulation have suggested that markets also provide consumer protection. For example, Nobel Prize-winning economist Milton Friedman said “Consumers don’t have to be hemmed in by rules and regulations. They’re protected by the market itself.” This Article’s first goal is to test the claim that the market provides consumer protection by examining several recent incidents in which companies mistreated consumers and then explores whether consumers stopped patronizing the companies, which would deter misconduct. The issue also has normative implications because if markets consistently protected consumers, society would need fewer regulations and …

Hostile Restructurings, Diane Lourdes Dick

Faculty Articles

The conventional wisdom holds that out-of-court loan restructurings are mostly consensual and collaborative. But this is no longer accurate. Highly aggressive, nonconsensual restructuring transactions—what I call “hostile restructurings”—are becoming a common feature of the capital markets. Relying on hypertechnical interpretations of loan agreements, one increasingly popular hostile restructuring method involves issuing new debt that enjoys higher priority than the existing debt; another involves transferring the most valuable collateral away from existing lenders to secure new borrowing. These transactions are distinguishable from normal out-of-court restructurings by their use of coercive tactics to overcome not only the traditional minority lender holdout problem, …

Fraud Law And Misinfodemics, Wes Henricksen

Faculty Scholarship

No abstract provided.

Oliver Wendell Holmes's Theory Of Contract Law At The Massachusetts Supreme Judicial Court, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Divorce And The Collapse Of The Three-Legged Stool: Setting Servicemembers Up For Success In The Age Of Brs And Covid-19, Kan Samuel

Faculty Scholarship

No abstract provided.

Immigration Detention: Eroding Or Reinforcing A Theory Of Immigration Exceptionalism?, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Time To Panic! The Need For State Laws Mandating Panic Buttons And Anti-Sexual Harassment Policies To Protect Vulnerable Employees In The Hotel Industry, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Severe Or Pervasive Should Not Mean Impossible And Unattainable: Why The "Severe Or Pervasive" Standard For A Claim Of Sexual Harassment And Discrimination Should Be Replaced With A Less Stringent And More Current Standard, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Practicing The Be Practice Ready: Making Competent Legal Researchers Using The New Process And Practice Method, Jason Murray

Faculty Scholarship

No abstract provided.

Historically Black Colleges & Universities: A Model For American Education, Jennifer M. Smith

Journal Publications

Hungry for freedom and knowledge, enslaved Blacks engaged in a massive general strike against slavery by transferring their labor from the Confederate planter to the Northern invader, and this decided the Civil War. In 1865, the North conquered the South, and slavery officially ended. Having been starved of the opportunity to learn to read or write, the recently emancipated Blacks were eager to learn. Within a year after slavery ended, however, Florida and other Southern states enacted laws to ensure the continuation of the vestiges of slavery in the United States. The legacy of slavery and racism evolved into an …

The Acf Water Wars Final Episode: Is Florida Entitled To Greater Flow In The Apalachicola River?, Robert Abrams

Journal Publications

This case marks the second trip to the Supreme Court for Florida’s equitable apportionment case seeking to obtain greater flows into Apalachicola Bay, the estuary of the ApalachicolaChattahoochee-Flint (ACF) River Basin. In a 2018 decision, the Supreme Court reviewed a report of then-Special Master Ralph Lancaster recommending that the Court deny relief to Florida because of the Court’s inability to provide relief without having the Army Corps of Engineers as a party to the litigation. At that time, a 5–4 majority ruled that the Special Master had applied too demanding a standard of proof to the issues surrounding redressability and …

Academic Libraries And Open Access Books In Europe: A Landscape Study, Agata Morka, Rupert Gatti

Copyright, Fair Use, Scholarly Communication, etc.

Executive Summary

The last fifteen years have witnessed the emergence of a new role for academic libraries. Besides fulfilling their fundamental task of providing access to knowledge, besides being called everything from temples of knowledge to disturbing heterotopias, libraries have become one of the crucial stakeholders in the open access book publishing space. They act as funders for OA book fees, they support collaborative funding schemes, and sometimes they assume the role of publishers themselves.

In an attempt to create a sustainable publishing environment, in which OA books could blossom, it is therefore necessary to gain a sound understanding of …

An Analysis Of Use And Performance Data Aggregated From 35 Institutional Repositories, Kenning Arlitsch, Jonathan Wheeler, Minh Thi Ngoc Pham, Nikolaus Nova Parulian

Copyright, Fair Use, Scholarly Communication, etc.

Purpose – This study demonstrates that aggregated data from the Repository Analytics and Metrics Portal (RAMP) have significant potential to analyze visibility and use of institutional repositories (IR) as well as potential factors affecting their use, including repository size, platform, content, device and global location. The RAMP dataset is unique and public.

Design/methodology/approach – The webometrics methodology was followed to aggregate and analyze use and performance data from 35 institutional repositories in seven countries that were registered with the RAMP for a five-month period in 2019. The RAMP aggregates Google Search Console (GSC) data to show IR items that surfaced …

Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman

Faculty Publications

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause …

Political Climate And Catastrophes: The Effects Of Notorious Events On Public Library Collections, Both Then And Now, Joseph A. Custer

Faculty Publications

This paper explores four different cases in the early 1950s of “Red Scare” tactics that influenced the freedoms that patrons using public libraries have enjoyed. The paper will also examine, at various points, the censorship parallels in the early 1950s to the contemporary political climate and the fallout of the Great Depression to the current catastrophe, COVID-19. The paper reviews the fallout from the Great Depression and how the world’s depression helped catapult Adolph Hitler of Germany to power. Hitler severely restricted or eliminated freedoms of expression, and the Trump administration’s actions reflect some of those same restrictions.