Law Commons^™

Whole Woman's Health And The Supreme Court's Kaleidoscopic Review Of Constitutional Rights, Elizabeth Price Foley

Faculty Publications

No abstract provided.

Evidence Of The Military's Sexual Assault Blind Spot, Eric R. Carpenter

Faculty Publications

In response to the American military's perceived inability to handle sexual assault cases, many members of Congress have lost confidence in those who run the military justice system. Critics say that those who run the military justice system are sexist and perceive sexual assault cases differently than the public does. This article is the first to empirically test that assertion. Further, this is the first study to focus on the military population that matters – those who actually run the military justice system. This study finds that this narrow military population endorses two constructs that are associated with the acceptance …

For Shame: When High-Profile Shaming Is The Only Way To Get Things Discussed And Done, Kerri Lynn Stone

Faculty Publications

In recent years, the sports world has experienced a complex relationship with sex discrimination and bullying. On one hand, well-publicized incidents of bullying, domestic violence, discrimination, and abuse have operated to alienate players, teams, and leagues from many of their fans. In some cases, these incidents have even led to rehabilitative public relations campaigns to combat the damage done to their public image. On the other hand, the fact that so many high profile incidents have occurred in such a public, much-talked-about sphere has actually served to aerate and vet issues in the court of popular opinion that would otherwise …

Regulating The U.S. Treasury Market, Jerry W. Markham

Faculty Publications

The market for U.S. Treasury securities is critical to our monetary policy and government funding. It also serves as a benchmark for pricing other investments and has provided a haven for investors seeking safety and stability. However, concern has recently arisen that “primary dealers” in that market might have manipulated prices. In addition, an unusual market volatility event that occurred in October 2014, and the growth of high-frequency trading have raised further questions over the adequacy of regulation in that market. This article addresses those concerns. It first describes the U.S. Treasury market and identifies efforts by traders over the …

A Report From The Proportionality Roadshow, Steven Gensler, Lee Rosenthal

Other Faculty Publications

No abstract provided.

Bargain Shopping: Free And Low-Cost Legal Research Options, Kenton S. Brice

Other Faculty Publications

No abstract provided.

Bookends: Justice Stevens And Justice Scalia, Gregory P. Magarian

Scholarship@WashULaw

The great importance Justice John Paul Stevens attaches to his bonds with former colleagues has long shone through his words and actions. Anyone who knows Justice Stevens knows of his deep admiration for his former boss, Justice Wiley Rutledge, whose deep ties to Washington University Justice Stevens emphasized in his recent remarks here.' During the year I had the privilege of serving as one of Justice Stevens' law clerks, retired Chief Justice Warren Burger passed away. A few days after Chief Justice Burger's death, Justice Stevens announced a decision from the bench. He revised his explanation of the majority's reasoning …

Taking Bankruptcy Rights Seriously, Rafael I. Pardo

Scholarship@WashULaw

Perhaps more so than any other area of law affecting individuals of low-to-moderate means, bankruptcy poignantly presents an affordability paradox: The system’s purpose is to relieve individuals from financial distress, yet it simultaneously demands a significant commitment of resources to obtain such relief. To date, no one has undertaken a comprehensive study of the complexities and costs of the litigation burden that Congress has imposed on self-represented debtors who seek a fresh start in bankruptcy. In order to explore the problems inherent in a system that sometimes necessitates litigation as the path for vindicating a debtor’s statutory right to a …

The Business Of Treaties, Melissa (M.J.) Durkee

Scholarship@WashULaw

Business entities play important and underappreciated roles in the production of international treaties. At the same time, international treaty law is hobbled by state- centric presumptions that render its response to business ad hoc and unprincipled.

This Article makes three principal contributions. First, it draws from case studies to demonstrate the significance of business participation in treaty production. The descriptive account invites a shift from attention to traditional lobbying at the domestic level and private standard-setting at the transnational level to the ways business entities have become autonomous international actors, using a panoply of means to transform their preferred policies …

Guns And Drugs, Benjamin Levin

Scholarship@WashULaw

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, the Article uses as its test case the criminal regulation of gun possession. The Article identifies and distills three lines of drug-war criticism, and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, the Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social costs of mass incarceration. Scholars have …

Are Hispanics Discriminated Against In The Us Criminal Justice System?, Maria A. Eijo De Tezanos Pinto

Graduate Research Posters

Recent publications have contributed to increase the perception among Hispanics of an unfair and unequal treatment of this community by the US Criminal Justice System. One of the major concerns was the claim that Hispanics are incarcerated before conviction nearly twice as often as Whites. Unfair treatment perception by the population reduces legitimacy of police and government, and thus, it is imperative to analyze these uninvestigated allegations. Therefore, the purpose of this study is to address said allegations of discrimination against Hispanics and analyze with updated and reliable statistics whether Hispanics are incarcerated before conviction more often than Whites. There …

Abortion And Birth Control—United States Supreme Court Declares Texas’ Restrictions On Abortion Facilities Unconstitutional: Impact On States With Similar Abortion Restrictions Whole Women’S Health V. Hellerstedt, 136 S. Ct. 2292 (2016), Dennis Pathroff

North Dakota Law Review

No abstract provided.

The Guardian Ad Litem As The Child's Privilege Holder, Starla Doyal

University of Colorado Law Review

Children in therapy have a strong interest in maintaining the confidentiality of communications with their therapists. Without the assurance of confidential communications, children may not be as open with their therapists, which can make therapy less effective. Although children have privilege rights to their psychotherapist-patient communications just as adults do, their parents generally hold and exercise that privilege. Many courts have recognized that a parent should not hold a child's privilege when the parent and child have divergent interests. This raises the question of who should hold the privilege in the parent's place. In L.A.N. v. L.M.B., the Colorado Supreme …

Sharing Property, Kellen Zale

University of Colorado Law Review

The sharing economy-the rapidly evolving sector of peer-topeer transactions epitomized by Airbnb and Uber-is the subject of heated debate about whether it is so novel that no laws apply, or whether the sharing economy should be subject to the same regulations as its analog counterparts. The debate has proved frustrating and controversial in large part because we lack a doctrinally cohesive and normatively satisfying way of talking about the underlying activities taking place in the sharing economy. In part, this is because property-sharing activities-renting your car out to a tourist for a day, paying to spend the weekend in a …

Vertical Federalism, The New States’ Rights, And The Wisdom Of Crowds, Ronald D. Rotunda

FIU Law Review

No abstract provided.

Evading The Treaty Power?: The Constitutionality Of Nonbinding Agreements, Michael D. Ramsey

FIU Law Review

No abstract provided.

Equal Opportunity, Not Equal Results: Benign Racial Favoritism To Remedy Mere Statistical Disparate Impact Is Never Constitutionally Permissible, Alamea Deedee Bitran

FIU Law Review

No abstract provided.

“By The Court”: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick

Osgoode Hall Law Journal

What do the BCE case of 2008, the Securities Reference case of 2010, the Senate Reform Reference case of 2014, and the Carter (assisted suicide) case of 2015 have in common? All are unanimous decisions of the Supreme Court of Canada in which the reasons for judgment—the explanation as to why the outcome is the legally and constitutionally appropriate one—are not attributed to any specific named judge or judges on the Supreme Court, but rather to a mysterious entity called THE COURT. Very few Supreme Court decisions take this form, and there was a time not that long ago when …

Formal Versus Functional Method In Comparative Constitutional Law, Francesca Bignami

Osgoode Hall Law Journal

In the field of comparative constitutional law, the dominant approach to concept formation and research design is formal. That is, comparative projects generally identify what counts as the supreme law that can be enforced against all other sources of law based on the “constitutional” label of the positive law (written constitutions and the jurisprudence of constitutional courts) and the law books. This formal method, however, has significant limitations when compared with the functional method used in the field of comparative law more generally speaking. After a brief exposition of the functional method, this article explores the advantages of the functional …

A Theory Of Quasi-Constitutional Legislation, Vanessa Macdonnell

Osgoode Hall Law Journal

Since the 1970s, the Supreme Court of Canada has treated a small number of statutes as quasi-constitutional. Despite the longstanding presence of quasi-constitutional statutes in Canadian law, however, the Court has yet to articulate comprehensive criteria for recognizing a statute or regulation as quasi-consitutional. In this article, I argue that quasi-constitutional legislation or more accurately, some provisions in quasi-constitutional legislation should be understood as implementing constitutional imperatives. I use the term constitutional imperatives to refer to constitutional obligations of varying degrees of specificity that emanate from the rights-conferring aspects of the Constitution, as well as from those aspects of the …

Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik

Osgoode Hall Law Journal

As the duty to consult Aboriginal peoples is operationalized within the frameworks of government decision making, the relevant agencies are increasingly turning to environmental assessment (EA) processes as one of the principal vehicles for carrying out those consultations. This article explores the practical and theoretical dimensions of using EA processes to implement the duty to consult and accommodate. The relationship between EA and the duty to consult has arisen in a number of cases and a clear picture is emerging of the steps that agencies conducting EAs must carry out in order to discharge their constitutional obligations to Aboriginal peoples. …

The Doctrine Of Discovery Reconsidered: Reflecting On Discovering Indigenous Lands: The Doctrine Of Discovery In The English Colonies, By Robert J Miller, Jacinta Ruru, Larissa Behrendt, And Tracey Lindberg, And Reconciling Sovereignties: Aboriginal Nations And Canada, By Felix Hoehn, Kent Mcneil

Osgoode Hall Law Journal

This is a review essay discussing two books: Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies, by Robert J Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, and Reconciling Sovereignties: Aboriginal Nations and Canada, by Felix Hoehn.

Book Review: The Strategic Constitution: Understanding Canadian Power In The World By Irvin Studin, Stephen Paul Haigh

Osgoode Hall Law Journal

This is a book review of The Strategic Constitution: Understanding Canadian Power in the World by Irvin Studin

Book Review: The Corporate Criminal: Why Corporations Must Be Abolished By Steve Tombs And David Whyte, Joan Brockman

Osgoode Hall Law Journal

This is a book review of The Corporate Criminal: Why Corporations Must Be Abolished by Steve Tombs and David Whyte

Sweat Makes The Green Grass Grow: The Precarious Future Of Quatar's Migrant Workers In The Run Up To The 2022 Fifa World Cup Under The Kafala System And Recommendations For Effective Reform, Paula Renkiewicz

American University Law Review

No abstract provided.

International Intellectual Property Shelters, Sam Halabi

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Lessons From The Wolf Wars: Recovery V. Delisting Under The Endangered Species Act, Martha C. Williams

Faculty Law Review Articles

This article uses the fundamentals of the ESA to remind us why Congress passed the ESA. It applies those fundamentals and their focus on recovery of species in peril, to the wolf wars, the decades long legal battles over the reintroduction, recovery, and delisting of wolves culminating in two cases, Defenders of Wildlife v. Jewell (Wyoming case) and Humane Society of the U.S. v. Jewell (Western Great Lakes case). Applying the ESA’s focus on species recovery to the wolf wars demonstrates where the disconnect between recovery and delisting occurs.

Part 1 of this article sets out the fundamentals of the …

Fiduciary Capacity And The Bankruptcy Discharge, Jonathon S. Byington

Faculty Law Review Articles

Bankruptcy law has fiercely competing policies. A primary one is the debtor's fresh start. Another is that discharge of debt is a selectively conferred privilege rather than an unlimited right. This latter policy is manifested in part by the Bankruptcy Code's exceptions to discharge. One exception involves a debt "for . . . defalcation while acting in a fiduciary capacity."1 In 2013, the Supreme Court addressed the meaning of the term "defalcation" and established a new, heightened mental standard based on the Model Penal Code's definition of recklessly.2 The meaning of the term "fiduciary capacity" is not clear. This Article …

Vawa 2013'S Right To Appointed Counsel On Tribal Court Proceedings- A Rising Tide That Lifts All Boats Or A Procedural Windfall For Non-Indian Defendants, Jordan Gross

Faculty Law Review Articles

This Article addresses a question that seems like it would be easy to answer, but is actually quite complex-when is an indigent defendant entitled to counsel at the public's expense in the United States? The answer is complex because it depends on what the indigent is charged with, what sentence he receives, and who prosecutes him. The Sixth Amendment guarantees an accused the assistance of counsel in "all criminal prosecutions."' The Supreme Court has said that the Sixth Amendment right to counsel includes the right to effective assistance of counsel, and the right to appointed counsel at public expense for …

A Next, Big Step For The West (Part Ii): Model Water-Climate Enabling Legislation With Commentary, Michelle Bryan, Zach Coccoli, Graham Coppes, Dylan Desrosier

Faculty Law Review Articles

This model legislation is the culmination of an earlier work, A Next, Big Step for the West: Using Model Legislation to Create a Water- Climate Element in Local Comprehensive Plans.' That articleargues that local governments, as the primary regulators of land use and population planning, are integral to our climate and drought response in the West. That article then calls for a new, freestanding "waterclimate element" in local government comprehensive plans that integrates the often disparate realms of land use, water use, and climate planning and better prepares communities for "managing water in wise, resilient, and collaborative ways."2 This approach …