Law Commons^™

Order Without Judges: Customary Adjudication, Joseph Blocher

Duke Law Journal

Scholarship on custom and law has largely focused on the creation and enforcement of informal rules, demonstrating and in some cases endorsing the existence of "order without law." But creating and enforcing rules are only two of the three functions of governance, corresponding roughly with what in other contexts are called the legislative and executive branches. The third function—adjudication—has not played such a prominent role in the scholarly literature on informal governance. As one leading scholar puts it: "Custom has no constitution or judges." But if customs can be created and enforced by nonstate actors, why should scholars assume that …

The Supremacy Clause Preemption Rationale Reasonably Restrains An Individual State Pursuing Its Own Separate But Unequal Immigration Policy., L. Darnell Weeden

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.

The U.S. Supreme Court's Disability In Statutory Construction: The Debate Over The Interpretation Of The Definition Of Disability Under The Americans With Disabilities Act (Ada) & The Ada Amendments Act Of 2008., Laura C. Hoffman

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.

Religious Treatment Exemption Statutes: Betrayest Thou Me With A Statute., Shirley Darby Howell

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.

Mexican Children Of U.S. Citizens: Viges Prin And Other Tales Of Challenges To Asserting Acquired U.S. Citizenship., Lee J. Teran

The Scholar: St. Mary's Law Review on Race and Social Justice

Mexican children with a U.S. parent face both historic and current challenges in acquiring U.S. citizenship. Following changes in U.S. immigration law, the number of individuals removed from the United States has swelled dramatically. This campaign against non-citizens has led to the removal of United States citizens, particularly individuals who were born abroad but claim citizenship through a U.S. citizen parent. Citizens are caught in the middle of conflicting goals between government efforts to adjudicate claims to acquired U.S. citizenship and the focus on crime and national security interests. Even though many U.S. parents and their children born abroad are …

Singing Songs In A Strange Land: The Plight Of Haitian Children In The Space Of International Adoption., Glenys P. Spence

The Scholar: St. Mary's Law Review on Race and Social Justice

The best interests of children are not served by severing the familial bonds contemplated by international adoption law. Nonetheless, because of the high costs of the international adoption process, efforts to adopt their Haitian orphan relatives are ignored. In attempts to guarantee the “best interests of the child” are met, the United Nations Convention on the Rights of the Child (CRC) and the Hague Convention on the Protection of Children Co-Operative Respect of Intercountry Adoptions (Adoption Convention) were created as the two governing bodies of international adoption law. Global South countries, including Haiti, however, have not ratified the Adoption Convention. …

The Thirteenth Amendment Won't Help Free Willy., Sheri Flannery

The Scholar: St. Mary's Law Review on Race and Social Justice

Orcas are not afforded any relief under the Thirteenth Amendment. Animal rights advocates, namely People for the Ethical Treatment of Animals (PETA), alleged animals have the right to be free from slavery and involuntary servitude as guaranteed by the Thirteenth Amendment. Although the Thirteenth Amendment has been extended beyond African slavery, its protections have never been granted to anything other than human beings. The United States Supreme Court’s examination and interpretation of the Thirteenth Amendment concluded that animals are not afforded such protections under this amendment. The Court reasoned that the Thirteenth Amendment only applied to humans and not animals. …

The Continuing Vitality Of Ravin V. State: Alaskans Still Have A Constitutional Right To Possess Marijuana In The Privacy Of Their Homes , Jason Brandeis

Alaska Law Review

No abstract provided.

Your Papers, Please: Police Authority To Request Identification From A Passenger During A Traffic Stop In Alaska, Patricia Haines

Alaska Law Review

No abstract provided.

Note From The Editor, Nick Passarello

Alaska Law Review

No abstract provided.

Journal Staff

Alaska Law Review

No abstract provided.

Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Getting Juvenile Life Without Parole “Right” After Miller V. Alabama, Doriane L. Coleman, James E. Coleman Jr.

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Deporting The Pardoned, Jason A. Cade

Scholarly Works

Federal immigration laws make noncitizens deportable on the basis of state criminal convictions. Historically, Congress implemented this scheme in ways that respected the states’ sovereignty over their criminal laws. As more recent federal laws have been interpreted, however, a state’s decision to pardon, expunge, or otherwise set-aside a conviction under state law will often have no effect on the federal government’s determination to use that conviction as a basis for deportation. While scholars have shown significant interest in state and local laws regulating immigrants, few have considered the federalism implications of federal rules that ignore a state’s authority to determine …

Instructing Juries On Noneconomic Contract Damages, David A. Hoffman, Alexander S. Radus

Fordham Law Review

   Gathering pattern contract jury instructions from every state, we examine jurisdictions’ treatment of noneconomic damages. While the conventional account holds that there is a uniform preference against awards of noneconomic damages, we find four different approaches in pattern instructions, with only one state explicitly prohibiting juries from considering noneconomic losses. Lay juries have considerably more freedom to award the promisee’s noneconomic damages than the hornbooks would have us believe.

   We substantiate this claim with an online survey experiment asking respondents about a simple contract case and instructing them using the differing pattern forms. We found that subjects routinely awarded more …

Disfavored Constitution, Passive Virtues? Linking State Constitutional Fiscal Limitations And Permissive Taxpayer Standing Doctrines, Joshua G. Urquhart

Fordham Law Review

   This Article contrasts the permissive state taxpayer standing doctrines in place in most states with the restrictive federal and state taxpayer standing rules applied in federal court. It proposes a new theory to explain this disparity, arguing that ubiquitous state constitutional fiscal restrictions, which specifically limit a state government’s ability to tax, spend, and borrow, are a primary impetus in the creation and development of liberal state taxpayer standing doctrines. The Article evaluates this novel hypothesis through an empirical-historical survey of the early state taxpayer standing decisions in every permissive jurisdiction and finds that these provisions are indeed involved in …

Conflict Minerals Legislation: The Sec’S New Role As Diplomatic And Humanitarian Watchdog, Karen E. Woody

Fordham Law Review

   Buried in the voluminous Dodd-Frank Wall Street Reform and Consumer Protection Act is an oft-overlooked provision requiring corporate disclosure of the use of “conflict minerals” in products manufactured by issuing corporations. This Article scrutinizes the legislative history and lobbying efforts behind the conflict minerals provision to establish that, unlike the majority of the bill, its goals are moral and political, rather than financial. Analyzing the history of disclosure requirements, the Article suggests that the presence of conflict minerals in an issuer’s product is not inherently material information and that the Dodd-Frank provision statutorily renders nonmaterial information material. The provision, therefore, …

Functionalism’S Military Necessity Problem: Extraterritorial Habeas Corpus, Justice Kennedy, Boumediene V. Bush, And Al Maqaleh V. Gates, Richard Nicholson

Fordham Law Review

   The U.S. Supreme Court has struggled over the last 150 years to definitively answer the question of whether the U.S. Constitution applies beyond the borders of the territorial United States. Because the Constitution is silent on the issue, the burden has fallen on the judiciary to establish the contours of the doctrine. At times, the Court has espoused formulistic theories limiting constitutional application to territorial sovereignty, while at others it has looked to more objective, practical solutions that reach beyond the borders.

   In 2008, the Supreme Court held in Boumediene v. Bush that the application of the Suspension Clause of …

Determining Diversity Jurisdiction Of National Banks After Wachovia Bank V. Schmidt, Michael Podolsky

Fordham Law Review

   Prior to the U.S. Supreme Court’s decision in Wachovia Bank v. Schmidt, some courts held, for diversity jurisdiction purposes, that national banks were citizens of each and every state in which they had a branch. In Schmidt, the Supreme Court made it clear that this approach was incorrect, but failed to provide an alternative one. Not surprisingly, in the wake of that decision another court split developed. While some courts have found that national banks are citizens only of the state listed on their charters as their main office, others have found that national banks are also citizens …

Unearthing The Public Interest: Recognizing Intrastate Economic Protectionism As A Legitimate State Interest, Katharine M. Rudish

Fordham Law Review

   In Oklahoma, a person must complete sixty-credit hours of undergraduate training and embalm twenty-five bodies before being legally licensed to sell caskets in the state. In Louisiana, in order to sell caskets, one must operate a fully licensed funeral establishment, defined as a place dedicated to preparing bodies for burial. In recent years, these states and others have faced legal challenges to casket sale restrictions by individuals who wish to sell caskets directly to the public, yet who are unable to do so as they are not licensed funeral directors. Courts have grappled with whether these state regulations, which in …

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

Fordham Law Review

   In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a …

A Pillar Of Democracy: Reflections On The Role And Work Of The Constitutional Court Of South Africa, Kate O’Regan

Fordham Law Review

No abstract provided.

Shareholder Litigation In Mergers And Acquisitions, Randall S. Thomas, C. N.V. Krishnan, Ronald W. Masulis

Vanderbilt Law School Faculty Publications

Using hand-collected data, we examine the targeting of shareholder class action lawsuits in merger & acquisition (M & A) transactions, and the associations of these lawsuits with offer completion rates and takeover premia. We find that M & A offers subject to shareholder lawsuits are completed at a significantly lower rate than offers not subject to litigation, after controlling for selection bias, different judicial standards, major offer characteristics, M & A financial and legal advisor reputations as well as industry and year fixed effects. M & A offers subject to shareholder lawsuits have significantly higher takeover premia in completed deals, …

Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren D. Sudeall

Vanderbilt Law School Faculty Publications

Advocates seeking indigent defense reform have often relied on civil litigation to prospectively enforce the Sixth Amendment right to counsel and to attack structural deficiencies of indigent defense systems-such as under- funding-that are likely to lead to system-wide ineffective assistance. Although the United States Supreme Court has addressed myriad aspects of postconviction ineffective assistance of counsel claims made in the criminal context, particularly in the last decade or so,' many of these cases have had little direct bearing on the way in which advocates have attempted to enforce the Sixth Amendment in the civil context. The Supreme Court has never …

What’S To Know? Puzzles In The Literature On The Value Of Statistical Life, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Notwithstanding the general acceptance of the value of statistical life (VSL) estimates for policy assessment purposes, several important unresolved issues remain. First, the results from revealed preference studies are systematically higher than those from stated preference studies, potentially limiting the usefulness of stated preference studies in generalizing the VSL estimates to different populations and kinds of risks. Second, extrapolating the results of meta-analyses to project the VSL for different population groups requires that such generalization be reflective of the underlying economic content of what average VSL estimates reflect. Third, government agencies within and across countries place differing emphasis on types …

Do Vcs Use Inside Rounds To Dilute Founders? Some Evidence From Silicon Valley, Brian Broughman, Jesse Fried

Vanderbilt Law School Faculty Publications

In the bank-borrower setting, a firm's existing lender may exploit its positional advantage to extract rents from the firm in subsequent financings. Analogously, a startup's existing venture capital investors (VCs) may dilute the founder through a follow-on financing from these same VCs (an “inside” round) at an artificially low valuation. Using a hand-collected dataset of Silicon Valley startup firms, we find little evidence that VCs use inside rounds to dilute founders. Instead, our findings suggest that inside rounds are generally used as “backstop financing” for startups that cannot attract new money, and these rounds are conducted at relatively high valuations …

The Incredible Shrinking Confrontation Clause, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

Sharp turns in the Supreme Court's recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded as the Court's decisions in Davis v. Washington and Bryant v. Michigan revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.

Recent scholarship strives to reanimate the jurisprudence by expanding the doctrinal definition of "testimonial" statements - the sole form of evidence Associate Professor, William & Mary Law School. I would like …

Interpreting Regulations, Kevin M. Stack

Vanderbilt Law School Faculty Publications

The age of statutes has given way to an era of regulations, but our jurisprudence has fallen behind. Despite the centrality of regulations to law, courts have no intelligible approach to regulatory interpretation. The neglect of regulatory interpretation is not only a shortcoming in interpretive theory but also a practical problem for administrative law. Canonical doctrines of administrative law ” Chevron, Seminole Rock/Auer, and Accardi ” involve interpreting regulations, and yet courts lack a consistent approach. This Article develops a method for interpreting regulations and, more generally, situates regulatory interpretation within debates over legal interpretation. It argues that a purposive …

What Is The Essential Fourth Amendment?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all non-exigent police investigative actions that are more than minimally intrusive. This review points out a few places where Schulhofer may push the envelope too far or not far enough, but concludes that More Essential Than Ever is a welcome reminder for scholars and the public at large that the Fourth Amendment is a fundamental bulwark of constitutional jurisprudence and deserves more respect than the Supreme Court has given …