Law Commons^™

Anatomy Of An Uprising: Women, Democracy, And The Moroccan Feminist Spring, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

During the Arab Spring, Moroccan men and women first took to the streets on February 20, 2011 to demand governmental reforms. Their movement became known as the Mouvement du 20-Février. In a series of protests, Moroccans called for democratic change, lower food prices, freedom for Islamist prisoners, and rights for the Berber people. Initially, King Mohammad VI attempted to suppress the movement. When this approach did not succeed, in a televised speech, the King agreed to reform the government. In June 2011, the constitutional committee proposed changes that would reduce the King’s absolute powers, implement democratic reforms, and create a …

Neuroscientists In Court, Owen D. Jones, Anthony D. Wagner, David L. Faigman, Marcus E. Raichle

Vanderbilt Law School Faculty Publications

Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists,including judges and jurors.

This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience that …

Group To Individual Inference In Scientific Expert Testimony, Christopher Slobogin, David Faigman, John Monahan

Vanderbilt Law School Faculty Publications

A fundamental divide exists between what scientists do as scientists and what courts often ask them to do as expert witnesses. Whereas scientists almost invariably inquire into phenomena at the group level, trial courts typically need to resolve cases at the individual level. In short, scientists generalize while courts particularize. A basic challenge for trial courts that rely on scientific experts, therefore, concerns determining whether and how scientific knowledge derived from studying groups can be helpful in the individual cases before them (what this Article refers to as "G2i'). To aid in dealing with this challenge, this Article proposes a …

The Implications Of Private Environmental Governance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

If we look back twenty years from now, will private governance be as much a part of environmental law and policy as market mechanisms, or will it have faded into the woodwork along with many other promising new developments? In this Essay, I briefly examine four issues that will play a large role in determining the answer to this question. Part I examines whether PEG is a coherent, discrete concept. Part II explores the extent to which PEG affects environmental behavior and environmental quality. Part III discusses the interactions between private and public environmental governance. Part IV then evaluates whether …

Delay And Its Benefits For Judicial Rulemaking Under Scientific Uncertainty, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

The Supreme Court’s increasing use of science and social science in its decision-making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay — defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or …

Introducing New Voices, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Students rarely have the time to repackage last semester's research for submission to law reviews. Even if they do, law reviews are loathe to publish work submitted by students. Publication in a peer-reviewed journal is unlikelier still. Enter NEW VOICES. Our best students are the next generation of scholars, the academic farm team as it were. If we can identify and nurture them early, perhaps they will produce better scholarship down the road. And reading their work can invigorate our own, by allowing us to see things in a fresh new light.

The Classical Constitution And The Historical Constitution: Separated At Birth, Suzanna Sherry

Vanderbilt Law School Faculty Publications

No abstract provided.

Designing Administrative Law For Adaptive Management, J.B. Ruhl, Robin Craig

Vanderbilt Law School Faculty Publications

Administrative law needs to adapt to adaptive management. Adaptive management is a structured decision-making method the core of which is a multi-step iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed. It has been identified as a necessary or best practices component of regulation in a broad range of fields, including drug and medical device warnings, financial system regulation, social welfare programs, and natural resources management. Nevertheless, many of the agency decisions advancing these policies remain subject to the requirements of either the federal Administrative Procedure …

The Judges Of The U.S. Judicial Panel On Multidistrict Litigation, Tracey E. George, Margaret S. Williams

Vanderbilt Law School Faculty Publications

The United States Judicial Panel on Multidistrict Litigation (or "MDL Panel") is one of a small number of special federal courts created pursuant to Article III by Congress and staffed by a Chief-Justice-appointed group of Article III judges for limited terms. The MDL Panel is a powerful judicial institution with substantial discretion over complex litigation in the United States. For all practical purposes, it controls where many of the most far-reaching and significant private civil actions will be resolved which can affect procedural and substantive rights of the parties. An understanding of who has served on the MDL Panel would …

Alleyne On The Ground: Factfinding That Limits Eligibility For Probation Or Parole Release, Nancy J. King, Brynn E. Applebaum

Vanderbilt Law School Faculty Publications

This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, …

Juries And Prior Convictions: Managing The Demise Of The Prior Conviction Exception To "Apprendi", Nancy J. King

Vanderbilt Law School Faculty Publications

This essay offers a menu of procedural alternatives for coping with the potential, some would say inevitable, abandonment of the prior conviction exception to the rule in Apprendi v. New Jersey. It compiles options states have used for years to manage jury prejudice when proof of prior conviction status is required, including partial guilty pleas, partial jury waivers, bifurcation of the trial proceeding, stipulations, and rules limiting what information about the prior conviction may be admitted. These options belie the claim that the exception must be preserved to prevent jury prejudice against defendants. For courts and legislatures interested in anticipating …

Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith

Vanderbilt Law School Faculty Publications

"Resource shuffling" occurs when different subnational approaches to carbon regulation create variations in the costs of production across jurisdictions. California is the most aggressive jurisdiction in the United States to address climate change and has adopted a cap & trade program for its greenhouse gas (GHG) emissions. This Article addresses the resource shuffling issue presented by California's cap-and-trade program and evaluates the merits of various legal and regulatory solutions to the problem.

Philosophy Of Law: Reply To Critics, Andrei Marmor

Cornell Law Faculty Publications

The author addresses issues raised by commentators on his book, Philosophy of Law (2011).

Recent Developments: Ray V. State: Under Maryland Rule 4-252, Failure To Raise A Claim Of Unlawful Arrest In A Fourth Amendment Motion To Suppress Hearing Constitutes A Waiver Of The Claim And Precludes Appellate Review, Absent A Finding Of Plain Error, Nicholas B. Hawkins

University of Baltimore Law Forum

No abstract provided.

Victim Gender And The Death Penalty, Caisa Elizabeth Royer, Amelia Courtney Hritz, Valerie P. Hans, Theodore Eisenberg, Martin T. Wells, John H. Blume, Sheri Lynn Johnson

Cornell Law Faculty Publications

Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the …

The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe

Cornell Law Faculty Publications

In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.

Recent Development: Blackburn Ltd. P'Ship V. Paul: If A Trespasser Is A Member Of A Specific Class Protected By An Ordinance Or Statute, Property Owners Owe A Duty Of Care Despite Common Law Rule That No Such Duty Is Owed, Ame P. Roberts

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the Statute or Ordinance Rule might apply, regardless of the common law duty to trespassers. Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 112, 90 A.3d 464, 471 (2014) (citing Brooks v. Lewin Realty III, Inc., 378 Md. 70, 78, 835 A.2d 616, 620-21 (2003)). The court further concluded that Christopher Paul was a member of the class intended to be protected by statute, and suffered those injuries that the statute sought to prevent. Id. at 126, 90 A.3d at 479. Finally, the court held that a genuine issue of material fact …

Maryland Personal Jurisdiction Law In The Cyberspace Content, Saad Gul

University of Baltimore Law Forum

A century ago, personal jurisdiction largely hinged on a simple litmus test: the defendant’s presence in the forum state. The issue of personal jurisdiction gained prevalence as the nation evolved from its earlier days of detached, semi-sovereign entities, whose citizens rarely interacted, to a nation where interstate commerce had increased, with interstate litigation growing correspondingly. In Pennoyer v. Neff, the Supreme Court of the United States effectively limited a state’s jurisdiction to persons physically present within its territorial borders. However, in today’s increasingly interconnected world, physical presence appears to represent an anachronism set in the post-Civil War, horse-and-buggy America of …

When Law Reform Is Not Enough: A Case Study On Social Change And The Role That Lawyers And Legal Clinics Ought To Play, Jeff Carolin

Journal of Law and Social Policy

Based on his experience as a law student in the clinical legal education program at Parkdale Community Legal Services in 2010, the author draws on poverty law scholarship to better understand his frustrations with a law reform campaign he worked on related to refugee family reunification. The scholarship’s central critique of law reform campaigns is that they are excessively narrow: they focus on a particular law and construct the law itself as the social injustice. This leads to two subsidiary problems. First, law reform campaigns ignore the underlying socio-political context that produced the law, foregoing opportunities for broader societal transformation. …

Development And Initial Findings Of An Implementation Process Measure For Child Welfare System Change, Mary I. Armstrong, Julie S. Mccrae, Michelle Graef, Tammy Richards, David Lambert, Charlotte Lyn Bright, Cathy Sowell

Center on Children, Families, and the Law: Faculty Publications

This article describes a new measure designed to examine the process of implementation of child welfare systems change. The measure was developed to document the status of the interventions and strategies that are being implemented and the drivers that are being installed to achieve sustainable changes in systems. The measure was used in a Children’s Bureau-supported national effort to assess the ongoing implementation of 24 systems-change projects in child welfare jurisdictions across the country. The article describes the process for measure development, method of administration and data collection, and quantitative and qualitative findings.

Housing Changing Households: Regulatory Challenges For Micro-Units And Accessory Dwelling Units, John Infranca

Suffolk University Law School Faculty Works

The existing stock of affordable rental housing falls significantly short of the need in many areas of the country. In addition, available housing frequently does not match the specific needs of prospective tenants, which have changed as household sizes shrink, more people are living alone, and people are living longer. This misalignment has been exacerbated by regulatory environments that have not kept pace with evolving housing demands. Likely as a result, cities throughout the country have seen an increase in illegal housing units – units that do not conform to zoning or building codes and may not provide safe living …

The Fair Labor Standards Act: A Tool For Those Who Represent Employees, Claimants, And Plaintiffs, Joseph A. Schremmer, Sean M. Mcgivern

Faculty Scholarship

The Fair Labor Standards Act (FLSA) of 1938 is a comprehensive federal statute that regulates minimum wages, maximum hours, and child labor. This article is intended to provide background for the general practitioner in an effort to help advance the interests of Kansas Association for Justice clients and workers. The FLSA was created to hold disreputable employers to account for chiseling their workers. The tangle of rules and regulations that followed may have complicated the operation of a basically straightforward law. But as long as lawyers understand and can navigate these highly technical provisions, FDR’s grand vision for fair and …

Creatures Of Circumstance: Conflicts Over Local Government Regulation Of Oil And Gas, Alex Ritchie

Faculty Scholarship

Scholars periodically note the impending upsurge in local oil and gas regulation, offering various reasons for increased local action. Papers written only a few years ago attribute greater local action in the West to population growth, increased urbanization, and increased demand for energy. Consider, however, more recent phenomena. First, population migration from more liberal states to more traditionally conservative producing states likely plays a role, as new residents [11-4] bring perspectives opposing drilling activity. Second, while the suburbs continue to expand into the oil patch, the oil patch has expanded into the suburbs and urban areas as well. Hydraulic fracturing …

The Gpl Meets The Ucc: Does Free Software Come With A Warranty Of No Infringement Of Patents And Copyrights?, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The GNU General Public License, known as the GPL, is the cornerstone of free software. The GPL has served as the organizing document for free software, providing a structure that has helped transformed the development of software and electronic devices. Software licensed under the GPL may be freely copied and adapted. The source code for the software is made available, to enable anyone to study and change it. The GPL does have "copyleft" restrictions, intended to keep the software free for others. If someone adapts and redistributes GPL’d software, they must likewise allow access to their source code. The GPL …

"Retire And Teach" Six Years On, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

This is a follow up to a 2007 essay I wrote about what it might take for a well-seasoned practitioner to join a law school faculty as a tenure track professor. Having now wended my way up (or down) that track for six years plus, my intended audience this time includes the original one, those seasoned veterans of the law practice trenches who may think but should never utter out loud the words “I would like to retire and teach,” but now also my colleagues in academia who are facing what looks to be the greatest reshuffling of the system …

Energy Versus Property, Michael Pappas

Publications

This Article is the first to detail the balance legislatures and courts have struck between private property rights and the compelling public interest in energy production. By examining how property rights have consistently yielded to energy development from colonial times to the most recent decisions involving hydraulic fracturing ("fracking'), it identifies a coherent energy/property balance that has shaped property expectations to accommodate energy needs. The Article then applies this insight to current disputes pitting aggressive renewable energy policies-such as nuisance immunity or mandatory installations on private property-- against fundamental property expectations: the right to exclude and the right to use …

Anti-Waste, Michael Pappas

Publications

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does "waste" even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, this Article finds that the law selects from a catalog of five specific, and sometimes competing, societal values to define waste. These values include: (1) economic efficiency; (2) human flourishing: (3) concern for future generations: (4) stability and consistency; and, (5) ecology. The law recognizes waste in terms of one of or …

Trans-Substantivity Beyond Procedure, Suzette M. Malveaux

Publications

No abstract provided.

From Google To Tolstoy Bot: Should The First Amendment Protect Speech Generated By Algorithms?, Margot Kaminski

Publications

No abstract provided.

Introductory Remarks, James Anaya

Publications

These remarks were delivered at a Corporate Responsibility and Human Rights panel held on Wednesday, April 9, 2014.