Law Commons^™

Passionate Advocate, Laura Mcnally-Levine

Case Western Reserve Law Review

No abstract provided.

Retaliation And Requesting Religious Accommodation, Charles A. Sullivan

Case Western Reserve Law Review

No abstract provided.

Masthead, Volume 10 (2019)

Journal of Law, Technology, & the Internet

No abstract provided.

Due Process And The Myth Of Sovereignty, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports

Faculty Scholarship

For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment's warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still others use undefined and unhelpful terms such as "reasonable to believe" in describing how exigent the situation must be to permit the police to proceed without a warrant. Nor surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.

To resolve this conflict and provide guidance to law enforcement …

Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka

Faculty Scholarship

The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose different limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each another (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based …

Immigration Litigation In The Time Of Trump, Shoba Wadhia

Faculty Scholarship

A number of immigration policies have been announced, implemented, or challenged in courts during the first half of Donald J. Trump's presidency. This Essay provides an update on ongoing litigation on a handful of these policies and was inspired by keynote remarks delivered at the Emerging Immigration Scholars Conference at Brigham Young University in June 2019. The topics covered by this Essay include: litigation affecting those covered by the travel or "Muslim Ban," asylum policy changes, Deferred Action for Childhood Arrivals ("DACA"), unlawful presence rules, and the border wall. This Essay also discusses lessons and common themes emerging from the …

Americans In Waiting: Finding Solutions For Long Term Residents, Shoba Wadhia

Faculty Scholarship

For more than a century, U.S. immigration law has recognized long-term residence as a primary factor in granting formal relief or protection. The rationale for regularizing the status of long-term residence is both clear and multifaceted. Over time, long-term residents in the United States build families, buy homes, and integrate into their communities. These equities, coupled with long-term residence, are reflected in the laws used to legalize and protect noncitizens. Many of these laws include a discretionary component, which is itself a powerful sword used by judges and officers when making immigration decisions.

This paper explores the history and role …

Evaluating A Permanent Court Solution For International Investment Disputes, Emily Palombo

Law Student Publications

Despite the original objective of investor state dispute settlement (“ISDS”)—to create an unbiased arbitration mechanism to resolve conflicts between states and foreign investors—ISDS tribunals have gained the reputation of being one-sided, nontransparent, and inconsistent in decisions rendered. A major reform proposed to address the criticism of ISDS is the creation of one permanent tribunal, rather than numerous ad hoc tribunals constituted separately for each investment dispute. Discussion of ISDS reform in light of its historical context poses the question: is ISDS really a broken system, or have our global priorities and concerns changed over time? While improvements can be made, …

The Costs Of Uncertainty: The Doj’S Stalled Progress On Accessible Medical Equipment Under The Americans With Disabilities Act, Elizabeth Pendo

Articles

Imagine seeking medical care for serious pressure sores for a year, but your doctor never examining the sores because you could not get on the examination table in her office. Or imagine going more than fifteen years without an annual well-woman examination for the same reason, or your doctor guessing at the right dosage for a prescription because there was no scale that she could use to weigh you.

Although these scenarios may be difficult for many to imagine, they are common experiences for individuals with mobility disability. The Trump administration’s attacks on the Patient Protection and Affordable Care Act …

Law As A Means To Human Flourishing: Law, Morality, And Natural Law In Policy-Oriented Perspective, Christian L. Gonzalez-Rivera

Faculty Articles

Friendships can be uneasy without ceasing to be friendships. Because the "pie" of law and morality's relationship can be sliced in many ways and to different yields, in what follows, I consider the simultaneously unexplored, uneasy, and yet promising relationship between the Natural Law tradition and Policy-Oriented Jurisprudence (or "New Haven"), hoping that doing so will partially illuminate aspects of the relationship between morality and the law more generally. My aim is to describe what and how New Haven School founders Myres McDougal and Harold Lasswell thought about Natural Law. As it will become clearer below, despite their critical appraisal …

John The Theologian: Towards Integrating Law And Religion, Gordon T. Butler

Faculty Articles

No abstract provided.

Foreword, Jamie Raskin

American University Journal of Gender, Social Policy & the Law

No abstract provided.

There Isn't Any Dumpster, Jill C. Engle

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Examining The Model Rules Of Professional Conduct To Include Women's Moral Experience And Feminist Ethics, Anietie Akpan

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Native American Voting Rights: Two Steps Forward, One Step Back, Patrick Roche

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction Over Non-Members, Alexander Tallchief Skibine

Utah Law Faculty Scholarship

For the last 40 years the Supreme Court has been engaged in a measured attack on the sovereignty of Indian tribes when it comes to tribal court jurisdiction over people who are not members of the tribe asserting that jurisdiction. The Congress has already enacted legislation partially restoring some tribal courts’ criminal jurisdiction over non-members. This Essay proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such non-members. After examining the Supreme Court’s jurisprudence in this area and summarizing the Court’s main concerns with such tribal jurisdiction, this Essay explores various legislative options before settling on a preferred …

Disability And Automation: The Promise Of Cars That Automate Driving Functions, Leslie Francis

Utah Law Faculty Scholarship

Automated vehicles present tremendous possibilities for people with disabilities. They also have the potential to open new legal challenges for antidiscrimination law, tort liability, and privacy considerations. The initial discussions of these vehicles have pointed out their potential significance for people with disabilities, while largely ignoring what they might mean for disability law. This Article sets out first steps on the inviting road ahead for people with disabilities as users of automated means of transport.

Addiction As Disease, Teneille R. Brown

Utah Law Faculty Scholarship

The opioid addiction epidemic is the most overwhelming public health crisis our country has faced. It is now creating a legal crisis, as the its poisonous fruits spill over into the criminal, tort, and family courts. The epidemic costs the U.S. economy about $500 billion every year, and the pressure is crippling our legal systems. This Article is an attempt to relieve some of that pressure, by advocating for a comprehensive public health campaign based upon a new model of addiction. Research shows that the prevalent “moral choice” model of addiction has facilitated stigma and discouraged treatment, by viewing affected …

Frand Royalties, Anti-Suit Injunctions And The Global Race To The Bottom In Disputes Over Standards-Essential Patents, Jorge L. Contreras

Utah Law Faculty Scholarship

While national courts have long exercised extraterritorial authority over domestic entities whose conduct abroad is prohibited in the domestic jurisdiction, national courts have recently begun to use disputes over domestic patent rights as vehicles for shaping the global business arrangements of private parties even absent any violation of national law. This phenomenon has become particularly pronounced in the context of “fair, reasonable and non-discriminatory” (FRAND) licenses of patents that are essential to the manufacture and sale of standardized products. This essay explores the increasing extraterritorial effect of national judicial decisions on licenses for standards-essential patents, including recent instances in which …

#Squadgoals: A Response To Seth Waxman, Amelia Rinehart

Utah Law Faculty Scholarship

Former Solicitor General Seth Waxman’s recent remarks, framing our current age of patent law in the Supreme Court as “interesting times,” unquestionably captures the exhilaration of an active Supreme Court in this area of the law. Waxman knows his way around patent cases decided by the Supreme Court — he presented arguments in four of the six patent cases in the 2016 Term — but he also has an extensive appellate practice before the Court of Appeals for the Federal Circuit (“Federal Circuit”), which has exclusive appellate jurisdiction over patent cases. Given his substantial experience in patent appellate litigation, Waxman …

The False Promise Of Health Data Ownership, Jorge L. Contreras

Utah Law Faculty Scholarship

In recent years there have been increasing calls by patient advocates, health law scholars and would-be data intermediaries to recognize personal property interests in individual health information (IHI). While the propertization of IHI appeals to notions of individual autonomy, privacy and distributive justice, the implementation of a workable property system for IHI presents significant challenges. This essay addresses the issues surrounding the propertization of IHI from a property law perspective. It first observes that IHI does not fit recognized judicial criteria for recognition as personal property, as IHI defies convenient definition, is difficult to possess exclusively, and lacks justifications for …

Constitutional Environmental Law, Or, The Constitutional Consequences Of Insisting That The Environment Is Everybody's Business, Robin Kundis Craig

Utah Law Faculty Scholarship

Constitutional environmental law has become a recognized and institutionalized specialty within environmental law, an acknowledgement of the pervasive interactions between the U.S. Constitution and the federal environmental statutes that go well beyond the normal constitutional underpinnings of federal administrative law. This Article posits that constitutional environmental law is the result of Congress consciously deciding that environmental protection is everybody’s business — specifically, from Congress’s that states should participate in rather than be preempted by federal environmental law, that private citizens and organizations should help to enforce the statutes, and that private land and water rights are necessary components of national …

Trickster Law: Promoting Resilience And Adaptive Governance By Allowing Other Perspectives On Natural Resource Management, Robin Kundis Craig

Utah Law Faculty Scholarship

The Anthropocene requires a new approach to natural resources law and policy, an approach that this short article terms "trickster law." Trickster law incorporates insights from resilience theory, adaptive governance scholarship, and cultural/anthropological studies of trickster tales to create a legal approach to natural resource management that is precautionary, engaged in proactive planning, based in principled flexibility, and pluralistic. This article focuses on the "pluralism" component, presenting three examples of how law modified to be more inclusive and respect different value systems has generated new approaches to natural resources management that better promote social-ecological resilience to climate change and other …

Shareholder Activism And Stakeholder Engagement Strategies: Promoting Environmental Justice, Human Rights, And Sustainable Development Goals, Erika George

Utah Law Faculty Scholarship

The United Nations 2030 Agenda for Sustainable Development is an ambitious "plan of action for people, planet and prosperity" which seeks to promote peace and eradicate poverty. The Agenda's goals cannot be reached without private sector participation and changes to certain business practices that contribute to adverse environmental and human rights impacts. When natural resources are managed responsibly the resulting economic development can help to eradicate poverty. However, when natural resources are managed poorly, certain extractives industry sector practices can generate or exacerbate human rights abuses, environmental degradation, corruption, and conflict. Fossil fuels are connected to the changing climate. The …

Adaptive Management For Ecosystem Services At The Wildland-Urban Interface, Robin Kundis Craig, J.B. Ruhl

Utah Law Faculty Scholarship

Managing the wildland-urban interface (WUI) is a widely-recognized land use problem plagued by a fractured geography of land parcels, management jurisdictions, and governance mandates and objectives. People who work in this field have suggested a variety of approaches to managing this interface, from informal governance to contracting to insurance. To date, however, none of these scholars have fully embraced the dynamism, uncertainty, and complexity of the WUI — that is, its status as a complex adaptive system. In focusing almost exclusively on the management of this interface to control wildfire, this scholarship largely ignores the factor that rampant wildfire is …

American Usury Law And The Military Lending Act, Paul Kantwill, Christopher L. Peterson

Utah Law Faculty Scholarship

In 2006 Congress adopted the Military Lending Act (“MLA”) to protect active duty military service members and their families from high-cost, predatory loans. The core provision of the statute is a usury limit capping interest rates at no more than 36 percent per annum. The United States Department of Defense finalized regulations implementing the MLA in 2007 and then later issued substantially revised regulations in 2015. The MLA is America’s first modern, national usury law that is applicable to all types of creditors and was adopted after the evolution of our national credit card market. After over a decade, the …

Reynolds V. United States, Rewritten, Laura T. Kessler

Utah Law Faculty Scholarship

In Reynolds v. United States, 98 U.S. 145 (1878), Chief Justice Morrison Waite, writing for a unanimous Supreme Court, upheld the federal Morrill Anti-Bigamy Act outlawing polygamy in the federal territories and providing criminal penalties for it. This is a re-writing of that opinion, presented in the form of a dissent, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s opinion, this dissent concludes that religious practice, as well as belief, is protected by the First Amendment. It therefore holds that a religious duty to engage in an unlawful practice may be a …

Atomizing The Clean Water Act: Ignoring The Whole Statute And Asking The Wrong Questions, Robert W. Adler, Brian House

Utah Law Faculty Scholarship

When attempting to resolve difficult issues of statutory construction involving complex statutes, courts sometimes focus on individual words and phrases without evaluating how they fit within the text and structure of the whole statute. We call this “atomization” of the statutory text. Judges have fallen into this trap in construing the Clean Water Act (CWA) and other lengthy, complex federal environmental statutes. That tendency contributes to ongoing confusion about the scope and coverage of the CWA. During the 2019-2020 Term, the U.S. Supreme Court will resolve a circuit split in the most recent line of cases exhibiting this tendency. Courts …

Are Make Believes Juries As Good For Prosecutors As Real Ones, Rebecca Roiphe

Articles & Chapters

No abstract provided.