Law Commons^™

Nova Law Review Full Issue

Nova Law Review

No abstract provided.

The Danger Of Nonrandom Case Assignment: How The S.D.N.Y'S 'Related Cases' Rule Has Shaped The Evolution Of Stop-And-Frisk Law, Katherine Macfarlane

Journal Articles

The Southern District of New York’s local rules are clear: "[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time." Yet for the past fourteen years, Southern District Judge Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the NYPD’s stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally …

Telli V. Broward County-A Misunderstanding Of County Home Rule And An Abridging Of The Status Of The Constitution's County Officers Who Are Not The Charter's County Officers, H. Kenza Vanassenderp, Kayla M. Scarpone

Nova Law Review

When a state’s court of last resort renders an opinion that abridges,

ignores, and renders meaningless an express provision of that state’s

constitution, then that court shall have itself effectuated an amendment to its

constitution erroneously and without the approval and longstanding support

of the electors of that state

“Kill The Sea Turtles” And Other Things You Can’T Make The Government Say , Scott W. Gaylord

Washington and Lee Law Review

In Pleasant Grove City v. Summum, the Supreme Court confirmed that there is no heckler’s veto under the government speech doctrine. When speaking, the government has the right to speak for itself and to select the views that it wants to express. But the Court acknowledged that sometimes it is difficult to determine whether the government is actually speaking. Specialty license plates have proven to be one of those difficult situations, raising novel and important First Amendment issues. Six circuits have reached four separate conclusions regarding the status of messages on specialty license plates. Three circuits have held that specialty …

Standing At A Constitutional Divide: Redefining State And Federal Requirements For Initiatives After Hollingsworth V. Perry, Scott L. Kafker, David A. Russcol

Washington and Lee Law Review

In Hollingsworth v. Perry, the Supreme Court denied standing to proponents of the California initiative prohibiting same-sex marriage, who wished to appeal a federal district court judge’s decision declaring the initiative unconstitutional. As suggested by the dissent, Hollingsworth has severe consequences for the twenty-four states in which the people can bypass elected officials and legislate directly through the initiative. The Supreme Court has established a clear constitutional divide between state and federal standing requirements for initiatives. Whereas states provide generous standing to proponents so officials do not exclusively control the defense of the people’s initiative process, the Supreme Court …

Goals And Governance In Municipal Bankruptcy, Juliet M. Moringiello

Washington and Lee Law Review

The years from 2011 to 2013 were remarkable in municipal bankruptcy terms. During those years, several cities and counties took the rare step of filing for bankruptcy under Chapter 9 of the Bankruptcy Code. When Detroit filed for bankruptcy in July 2013, it became the largest city measured by both population and outstanding debt to file for Chapter 9. The recent filings challenge the conventional wisdom that Chapter 9 is poorly tailored to the rehabilitation needs of larger cities and counties. Those who have written about Chapter 9 in the past twenty years have treated Chapter 9 and state intervention …

Teaching Llcs Through A Problem-Based Approach, Michelle M. Harner, Robert J. Rhee

Washington and Lee Law Review

No abstract provided.

Teaching Llcs By Design, Anne M. Tucker

Washington and Lee Law Review

No abstract provided.

Asbestos Wars: In Three Parts, David Partlett

Washington and Lee Law Review

No abstract provided.

Nova Law Review 38, #3

Nova Law Review

No abstract provided.

Florida And The Film Industry: An Epic Tale Of Talent, Landscape, And The Law, Mary Pergola Parent, Kevin Hugh Govern

Nova Law Review

No abstract provided.

Breaking Unanimous String Of Victories, Federal Judge Rules Against Marriage Equality In Louisiana, Arthur S. Leonard

Other Publications

No abstract provided.

Same-Sex Couples Denied Employer Benefits Will Get Their Day In Court, Arthur S. Leonard

Other Publications

No abstract provided.

Bankruptcy’S Corporate Tax Loophole, Diane Lourdes Dick

Faculty Articles

Imagine you are a company with a failing business that is drowning in debt. On the bright side, you also possess a very valuable asset. This asset is unique because, unlike most assets, if you liquidate the business through a Chapter 7 bankruptcy, it will be extinguished and its value will not be realized by any shareholders or creditors. On the other hand, even if you substantially liquidate the business using Chapter 11, you can, thanks to an extraordinary ambiguity in the law, preserve this valuable asset. Even better, you can direct the value of this asset to your preferred …

Challenged X 3: The Stories Of Women Of Color Who Teach Legal Writing, Lorraine Bannai

Faculty Articles

Much of what has been written concerning the experience of women of color in the legal academy has focused on tenured or tenure-track women of color who teach doctrinal courses. I speak from a somewhat different place-as a woman of color who teaches Legal Writing and who, like most faculty who teach Legal Writing, is untenured. Of course, I nod my head with recognition as I read the stories shared by tenured or tenure-track women of color who teach 2 doctrinal courses, including challenges they face from students and colleagues. At the same time, I also know (1) that untenured …

Coal And Commerce: Local Review Of The Gateway Pacific Coal Terminal, Henry W. Mcgee, David A. Bricklin, Bryan Telegin

Faculty Articles

This article examines the potential constitutional law issues involved in local review of the proposed coal terminals. It explores these issues in the specific context of Whatcom County's review of the Gateway Pacific Terminal. Part II provides a brief overview of the history of the Gateway Pacific terminal. Part III explores issues associated with the facility under the dormant Commerce Clause. Finally, this article concludes that there are few serious issues associated with Whatcom County's review of the proposal that would violate the dormant Commerce Clause. Moreover, Whatcom County will have a great deal of authority to approve or deny …

Collusion To Control A Powerful Customer: Amazon, E-Books, And Antitrust Policy, John B. Kirkwood

Faculty Articles

A federal judge recently held that Apple violated antitrust law by conspiring with leading publishers to raise e-book prices. While the Justice Department characterized the case as routine, many commenters argued it should not have been brought. In their view, the real villain was Amazon, whose power and aggressive behavior threatened to create a monopoly, reduce consumer choice, and diminish the vitality of book publishing. In the face of such a powerful customer, the publishers should have been allowed to collude. This article addresses that issue, in the e-books case and in general. In the e-books case, collusion was almost …

Keep Calm And Carry On, René Reich-Graefe

Faculty Scholarship

This Essay examines some of the hard data available for today’s legal market and develops very basic forecasts and hypotheses about what the future will bring for the U.S. legal profession during the next decades. In conclusion, it projects that recent law school graduates and current and future law students are standing at the threshold of the most robust legal market that ever existed in this country—a legal market which will grow, exist for, and coincide with, their entire professional careers. Using admittedly back-of-the-envelope math based on current trends affecting the legal market (in particular, lawyer retirements, population growth, and …

Was The First Justice Harlan Anti-Chinese?, James W. Gordon

Faculty Scholarship

The first Justice John Marshall Harlan has long been recognized as a defender of Black civil rights. Yet some scholars challenge Harlan’s egalitarian reputation by arguing that he was anti-Chinese. In this Article, the Author discusses the evidence which has been offered to support the claim that Harlan was anti-Chinese and offers additional evidence never before presented to argue against this hypothesis. Harlan’s critics have assembled some evidence in a way that suggests Harlan had an anti-Chinese bias. The Author suggests that the evidence is ambiguous and that it can be assembled to produce a different picture from the one …

Targeted Killings And The Interest Convergence Dilemma, Sudha Setty

Faculty Scholarship

In the 1980s, Professor Derrick Bell posited a theory of interest convergence as part of his critical race theory work, arguing that the major strides forward in civil rights law and policy that benefited African Americans in the 1950s and 1960s only occurred because of the perceived benefits of those changes to white elites during that time. In Bell’s view, it was only at the point at which the interests of powerful whites converged with those of marginalized racial minorities that significant changes in civil rights law could occur.

Twelve years after the terrorist attacks of September 11, 2001, numerous …

Amici Brief Of Labor Relations And Research Center, U. Mass., Amherst And Massachusetts Wage Campaign, In Meshna V. Scrivanos, Sjc 11618, Harris Freeman

Faculty Scholarship

Amici brief submitted by the Labor Relations and Research Center, University of Massachusetts and the Massachusetts Wage Campaign, to the Massachusetts Supreme Judicial Court in the case of Meshna v. Scrivanos. The brief argues that the Massachusetts Tips Act prohibits no-tipping policies and that it does not sanction such no-tipping policies as a lawful business response to customer demand or preference. Furthermore, it argues that no-tipping policies contribute to the impoverishment of the low-wage workforce and foist the social and economic costs of tipping bans onto citizen-tax payers.

Clothes Don't Make The Man (Or Woman), But Gender Identity Might, Jennifer Levi

Faculty Scholarship

The Ninth Circuit's recent decision in Jespersen v. Harrah's Operating Co., Inc. reflects the blinders on many contemporary courts regarding the impact of sex-differentiated dress requirements on female employees. Although some courts have acknowledged the impermissibility of imposing sexually exploitive dress requirements, they have done so only at the extreme outer limits, ignoring the concrete harms experienced by women (and men) who are forced to conform to externally imposed gender norms. On the other hand, some transgender litigants have recently succeeded in challenging sex-differentiated dress requirements. This success is due in part to their incorporation of disability claims based on …

Taxation Of Series Llcs In Texas: Bigger Isn't Always Better In The Lone Star State., Alyson Outenreath

St. Mary's Law Journal

Series Limited Liability Companies (series LLCs) are not yet widely popular as an entity of choice; but just as it took many years for traditional LLCs to become widely used, there could also come a day when series LLCs are the “go-to” entity of choice. One development in the law that will aid in this process is greater certainty in state taxation of series LLCs. Texas has provided some guidance with respect to the taxation of series LLCs for Texas franchise tax purposes after the comptroller’s issuance of Comptroller Private Letter Ruling 201005184L. In this ruling, the comptroller concluded that …

Power Play: An Examination Of Texas's Anti-Slapp Statute And Its Protection Of Free Speech Through Accelerated Dismissal., Dena M. Richardson

St. Mary's Law Journal

Abstract Forthcoming.

The Texas Anti-Indemnity Act., Taylor R. Beaver

St. Mary's Law Journal

Owners, general contractors, and subcontractors enter into agreements to ameliorate risk amongst those exercising control. Some of these include hold-harmless agreements, indemnity agreements, releases, and agreements conferring additional insured status to others. Typically, parties enjoy freedom to contract as they wish. Texas has long recognized, as a matter of public policy, a party’s right to draft contracts however it sees fit. Historically, risk-shifting agreements were enforceable if they passed the fair notice requirements, meaning the express negligence rule and the conspicuousness test. The trend in recent years, however, has been to limit exculpatory clauses. In 2011, the Texas Legislature effectively …

Texas Remedies In Equity For Breach Of Fiduciary Duty: Disgorgement, Forfeiture, And Fracturing., George P. Roach

St. Mary's Law Journal

The remedy of fee forfeiture against lawyer fiduciaries has been marginalized. Following Burrow v. Arce, Texas trial courts have frequently applied a no-fracturing rule that effectively bars a claim for breach of fiduciary duty against an attorney. Although the court in Burrow held actual damages were not a prerequisite for fee forfeiture, many Texas trial courts have not followed that precedent. Most Texas trial courts require the plaintiff to prove actual damages to survive a summary judgment motion. Others have openly asserted that not all legitimate claims for breach of fiduciary duty should be allowed as an alternative claim to …

The Dual Role Of A Chief Justice., Catherine Stone

St. Mary's Law Journal

Notwithstanding the growing trend of high-dollar judicial election campaigns, many citizens do not know what appellate judges and appellate courts do. Faced with the reality of obscurity and the ever-present potential of failed reelection campaigns, appellate judges work each day to fulfill the mission of appellate courts: to efficiently resolve the legal disputes presented in appeals from lower court decisions with written opinions that are well reasoned, thoroughly researched, and intellectually honest. It is the responsibility of the Chief Justice to promote that core mission with all justices on the court, thereby working to best serve the legal needs of …

The Aftermath Of Mexico's Fuel-Theft Epidemic: Examining The Texas Black Market And The Conspiracy To Trade In Stolen Condensate., Luke B. Reinhart

St. Mary's Law Journal

Organized crime has infiltrated the oil patch, creating a theft network with an annual value of $2–$4 billion. Over the past decade, Mexican drug cartels have plundered mass amounts of natural gas condensate produced by Petróleos Mexicanos (Pemex)—the governing Mexican agency for production and export of hydrocarbons. The Mexican government has not sat by idly. Pemex’s production losses have skyrocketed from $300 million, between 2006 and 2011, to an estimated $585 million in 2013 alone. Considering derivative costs associated with these thefts, Pemex’s annual losses reach into the billions. Diversified and driven by profits derived from the United States black …

The Extraterritorial Application Of The Fifth Amendment: A Need For Expanded Constitutional Protections., Guinevere E. Moore, Robert T. Moore

St. Mary's Law Journal

Since 2010, there have been forty-three cases—and ten deaths—involving the use of deadly force by United States agents against Mexican nationals along the border. Currently, the official policy is that officers may still use deadly force where they “reasonably believe”—based upon the totality of the circumstances—that they are in “imminent danger” of death or serious injury. Officers were found reasonable in using deadly force in situations as mundane as young boys throwing rocks. In light of these actions, the Mexican government has raised serious concerns about the disproportionate use of force by United States agents. The question now raised is …

In Pursuit Of Just Compensation In Texas: Assessing Damages In Takings Cases Using The Property's Tax-Appraised Value., Alexander B. Lutzky

St. Mary's Law Journal

Abstract Forthcoming.