Law Commons^™

Legal Inconsistencies, Raff Donelson

Tulsa Law Review

No abstract provided.

Masthead

Tulsa Law Review

No abstract provided.

On Originalism’S Originality: The Supreme Court’S Historical Analysis Of The Fourth Amendment From Boyd To Carpenter, Brandon R. Teachout

Tulsa Law Review

No abstract provided.

Combating Stress & Promoting Wellness At Uc's College Of Law, Rachel J. Smith

Faculty Articles and Other Publications

Lawyers are stressed out, and so are law students. For decades, we have been saying that law students arrive at law school with the same level of mental wellness as the general population, but by the time they graduate from law school, law students have surpassed the general population in depression, anxiety and stress. To counteract this trend at the University of Cincinnati (UC) College of Law, we offer an extra-curriculum mind-body class.

Antitrust In Digital Markets, John M. Newman

Vanderbilt Law Review

Antitrust law has largely failed to address the challenges posed by digital markets. At the turn of the millennium, the antitrust enterprise engaged in intense debate over whether antitrust doctrine, much of it developed during a bygone era of smokestack industries, could or should evolve to address digital markets. Eventually, a consensus emerged: although the basic doctrine is supple enough to apply to new technologies, courts and enforcers should adopt a defendant-friendly, hands-off approach.

But this pro-defendant position is deeply-and dangerously-flawed. Economic theory, empirical research, and extant judicial and regulatory authority all contradict the prevailing views regarding power, conduct, and …

Amicus (Fall 2019), University Of Colorado Law School

Amicus

Issue at a glance:

• Training Lawyers with a Business Edge: The Colorado Law Way
• Alumni in Focus: Entrepreneurial and Business Law Success Stories
• Protecting Water Rights for Colorado Farmers: Acequia Project Completes Multi-Year Case Assisting Southern Colorado Farmers
• Holding Government Speech Accountable: Professor Norton Publishes Book on Government Speech and the Constitution
• Hitting the Trails To Hit the Books Harder
• A New Home for the Law Journals
• A Champion for Diversity: Honoring Milly Danielson Oppenheimer

The Devil In The Detail: Mitigating The Constitutional & Rule Of Law Risks Associated With The Use Of Artificial Intelligence In The Legal Domain, Catrina Denvir, Tristan Fletcher, Jonathan Hay, Pascoe Pleasence

Florida State University Law Review

No abstract provided.

Table Of Contents

Tulsa Law Review

No abstract provided.

Law Review Articles Have Too Many Footnotes, Lori Mcpherson

Journal of Legal Education

No abstract provided.

Affirming The Purpose Of Affirmative Action: Understanding A Policy Of The Past To Move Toward A More Informed Future, Meagan Schantz

Sacred Heart University Scholar

The application of affirmative action policies to university admissions is a topic of ongoing controversy. This article (ex)amines the debate through an interdisciplinary lens, drawing on the fields of history, law, and ethics. The first section provides historical background on affirmative action policies, tracing how they expanded from the employment sector into higher education. Next examined are legal challenges to affirmative action in admissions, with a focus on the pivotal 1978 Bakke case. The ethical implications of affirmative action are next considered, in particular the question of how affirmative action can be applied in a way that supports disenfranchised groups …

Clinical Legal Education And The Replication Of Hierarchy, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

You Get What You Pay For: An Empirical Examination Of The Use Of Mturk In Legal Scholarship, Adriana Z. Robertson, Albert H. Yoon

Vanderbilt Law Review

In recent years, legal scholars have come to rely on Amazon's Mechanical Turk ("MTurk') platform to recruit participants for surveys and experiments. Despite MTurk's popularity, there is no generally accepted methodology for its use in legal scholarship, and many questions remain about the validity of data gathered from this source. In particular, little is known about how the compensation structure affects the performance of respondents recruited using MTurk.

This Essay fills both of these gaps. We develop an experiment and test the effect of various compensation structures on performance along two dimensions: effort and attention. We find that both the …

Can And Should Universal Injunctions Be Saved?, Szymon S. Barnas

Vanderbilt Law Review

The practice of a federal district court judge halting the government's enforcement of an executive action against not only the parties before the court but against anyone, anywhere, may be coming to an end. Multiple Supreme Court Justices have expressed their skepticism in the propriety of universal injunctions. The growing scholarly consensus is that there should be a brightline rule against them. If the universal injunction's demise is impending and the class action's demise continues unabated, obtaining systemwide relief may be difficult when such relief may be most needed.

This Note considers whether universal injunctions can and should be saved. …

The Byu Advocate, J. Reuben Clark Law School

The BYU Advocate (& Annual Reports)

"At BYU Law, I hope that all of us are inspired with a simple but profound idea: we can change the world for the better. I refer to this idea as inspiring leadership because it describes actions that inspire members of our community to lead, as well as leadership that produces inspiration" – D. Gordon Smith

Taking Laughter Seriously At The Supreme Court, Tonja Jacobi, Matthew Sag

Vanderbilt Law Review

Laughter in Supreme Court oral arguments has been misunderstood, treated as either a lighthearted distraction from the Court's serious work, or interpreted as an equalizing force in an otherwise hierarchical environment. Examining the more than nine thousand instances of laughter witnessed at the Court since 1955, this Article shows that the Justices of the Supreme Court use courtroom humor as a tool of advocacy and a signal of their power and status. As the Justices have taken on a greater advocacy role in the modern era, they have also provoked more laughter.

The performative nature of courtroom humor is apparent …

Terrorism And Its Legal Aftermath: The Limits On Freedom Of Expression In Canada’S Anti-Terrorism Act & National Security Act, Percy Sherwood

FIMS Publications

This analysis aims to demonstrate how s. 83.221 in Bill C-51 is likely to violate freedom of expression guaranteed under the Charter. The first section employs the two-step Irwin Toy analysis to show that the speech offense infringes upon s. 2(b) of the Charter. The second section uses the Oakes test to determine whether the breach of freedom of expression is a reasonable limit. On whether the speech offense can be justified under s. 1 of the Charter as a reasonable limit, the legislation fails at the third and fourth step of the Oakes test. Section three of this paper …

The Campaign To Impeach Justice William O. Douglas; Nixon, Vietnam, And The Conservative Attack On Judicial Independence, Joshua E. Kastenberg

Faculty Book Display Case

The politics of division and distraction, conservatives’ claims of liberalism’s dangers, the wisdom of amoral foreign policy, a partisan challenge to a Supreme Court justice, and threats to the constitutionally mandated balance between the three branches of government: however of the moment these matters might seem, they are clearly presaged in events chronicled by Joshua E. Kastenberg in this book, the first in-depth account of a campaign to impeach Supreme Court justice William O. Douglas nearly fifty years ago.

On April 15, 1970, at President Richard Nixon’s behest, Republican House Minority Leader Gerald Ford brazenly called for the impeachment of …

Department Of Homeland Security V. Regents Of The University Of California, Et Al.: Brief For Administrative Law Scholars As Amici Curiae In Support Of Respondents, Nina A. Mendelson

Appellate Briefs

Amici are professors of administrative law and related public law subjects at institutions across the United States. In their scholarship and their teaching, they have carefully considered the legal doctrines implicated by this case. They submit this brief to address arguments and precedent that are relevant to a central question presented by this appeal: whether the Department of Homeland Security's decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy is judicially reviewable. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in Appendix A.

Under …

Preschool For All: Plyler V. Doe In The Context Of Early Childhood Education, Shiva Kooragayala

Northwestern Journal of Law & Social Policy

In its 1982 opinion in Plyler v. Doe, the Supreme Court held that a state could not deny undocumented children living within its borders a public and free K-12 education. This Note argues that Plyler’s protections extend to publicly-funded early childhood education programs that serve children between the ages of three and five. Due to the broad support of researchers, educators, and the general public, early childhood education programs funded by local, state, and the federal governments have become an integral part of a comprehensive public education today. While these early childhood education programs are nominally open to all students …

Katz, Carpenter, And Classical Conservatism, Nicholas A. Kahn-Fogel

Cornell Journal of Law and Public Policy

In 1967, in Katz v. United States, the Supreme Court adopted a privacy-based framework for determining whether government conduct constitutes a Fourth Amendment search. Under that standard, a search occurs when the government infringes on an expectation of privacy that "society is prepared to recognize as 'reasonable.'" Although the Court qualified its commitment to Katz in 2012 by asserting that an older, property-based approach survived Katz and remains the first-line test for identifying Fourth Amendment searches, most of the Court today is committed to preserving a role for the Katz standard. Yet, most of the justices have also recognized problems …

Alexander Bickel And The Demise Of Legal Process Jurisprudence, David Wolitz

Cornell Journal of Law and Public Policy

No abstract provided.

Children Of A Lesser God: Reconceptualizing Race In Immigration Law, Sarah L. Hamilton-Jiang

Northwestern Journal of Law & Social Policy

The increased public exposure to the experiences of Latinx unaccompanied children seeking entry at the United States southern border has revealed the lived reality of the nation’s pernicious immigration laws. The harrowing experiences of unaccompanied children are amplified by their interaction with a legal system plagued by a legacy of systemic racism and sustained racial caste. While immigration law currently affords minimal legal protections for these children, in application, the law continues to fall egregiously short of providing for the safety of unaccompanied children. Though critics have long attested to the legal system’s neglect of unaccompanied children, subsequent legal analysis …

Contracting (Incompletely) For Success: Designing Pay For Success Contracts For Social Impact Bonds (Sibs), Deborah Burand

Cornell Journal of Law and Public Policy

More than two dozen social impact bonds have been launched in the United States since the first was contracted by New York City in 2012. Dozens more of these transactions are in progress across the United States, and more are likely to come prompted, at least in part, by the Social Impact Partnerships to Pay for Results Act (SIPPRA) of 2018.

As the number of social impact bonds has grown, the architecture of the pay for success contracts that undergird social impact bonds is starting to take recognizable form in the United States. What explains the design of these pay …

Big Data And Bounded Ethicality, Yuval Feldman, Yotam Kaplan

Cornell Journal of Law and Public Policy

Wrongdoing is ubiquitous. Media outlets constantly report an endless stream of deleterious human behavior, from sexual harassment and fraud in financial markets to corporate and political corruption. Recent developments in behavioral ethics research suggest that these ills will forever accompany human interaction due to the phenomenon of "bounded ethicality," or people's limited ability to conduct an objective and candid moral examination of their own actions. When evaluating the ethical implications of their behavior, individuals have been shown to be biased and to systematically underestimate or ignore the magnitude and effect of their own misconduct. Such findings have troubling implications from …

The Prisoner's Dementia: Ethical And Legal Issues Regarding Dementia And Healthcare In Prison, David M. N. Garavito

Cornell Journal of Law and Public Policy

The general population has been aging, leading to greater prevalence of age-related diseases such as dementia. However, given their environment and history with injury and illness, inmates provide a unique population that holds potentially the greatest risk for dementia. Despite this, few prisons provide the resources necessary to diagnose and care for those individuals who have dementia. The Supreme Court, in Estelle v. Gamble and its progeny, have set an extremely low standard for providing care for inmates, and legislation has protected prisons from lawsuits over lack of care for emotional or mental illnesses and injuries without physical manifestation. Unless …

New York's Time To Shine: Turning Weakness In State Solar Energy Policy Into An Opportunity For National Leadership, Katherine L. Rogers

Cornell Journal of Law and Public Policy

New York has shifted its policy for valuing the energy that solar panel owners place back onto the grid in an effort to promote solar development where the state needs it the most. Now, the state is at a crossroads because that change has stressed solar investments rather than incentivized them; should the state eliminate the legislation in favor of old policy or make changes to the current policy? This Note argues that New York should maintain the current policy but make small changes in order to ameliorate the weaknesses that are challenging the state's solar market. If New York …

No Forum To Rule Them All: Comity And Conflict In Transnational Frand Disputes, Eli Greenbaum

Washington Law Review

Recent years have seen an explosion in FRAND litigation, in which parties commit to license intellectual property under “fair, reasonable and non-discriminatory” (FRAND) terms, but they cannot agree on the meaning of that commitment. Much of this litigation is multinational and involves coordinating patent, antitrust, and contract claims across several jurisdictions. A number of courts and commentators have aimed to centralize and thereby streamline these disputes, whether by consolidating all litigation in one judicial forum or through the creation of a comprehensive arbitral process. This Article argues that such efforts are misguided—FRAND disputes are particularly unamenable to centralization, and the …

Contract Interpretation With Corpus Linguistics, Stephen C. Mouritsen

Washington Law Review

Courts and scholars disagree about the quantum of evidence that is necessary to determine the meaning of contractual provisions. Formalists favor excluding extrinsic evidence unless the contractual text is found to be ambiguous. Contextualists, by contrast, look to extrinsic evidence to support claims about contractual meaning even absent a finding of ambiguity. The formalist approach is faulted for failing to provide a meaningful account of the parties’ intentions and for placing heavy reliance upon the judge’s own linguistic intuitions and general-use English dictionaries—both problematic guides to plain meaning. At the same time, the contextualist approach may impose significant costs on …

Don't Say Depression: Specific Diagnosable Injuries Under The Washington Law Againt Discrimination's Privilege Statute, Jack Miller

Washington Law Review

In 2018, the Washington State Legislature amended the Washington Law Against Discrimination (WLAD) to prevent automatic waivers of physician- and psychologist-patient privileges when plaintiffs claim non-economic, emotional distress damages. This legislation appears to be in response to the Washington Court of Appeals’ decision Lodis v. Corbis Holding, Inc.,which held that a plaintiff waives their patient- and psychologist-privilege merely by alleging emotional distress damages. The new law, RCW 49.60.510, prevents waiver unless the plaintiff alleges a specific diagnosable injury, relies on the testimony of a healthcare or psychiatric expert, or claims a “failure to accommodate a disability or discrimination on …

From The Editors, Camille A. Nelson, Anthony E. Varona

Journal of Legal Education

No abstract provided.