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Clark Memorandum: Fall 2019, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• In Essentials, Unity; in Nonessentials, Liberty; and in All Things, Charity
• Choose to Trust the Lord
• First Amendment Harms
• "To Do Justly, and to Love Mercy"

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Digitizing The Indiana Code, Susan David Demaine, Benjamin J. Keele

Articles by Maurer Faculty

The Ruth Lilly Law Library holds one of the most complete sets of the official Indiana Code in print, and we often receive research requests for sections of the historical Code from attorneys and other researchers. The print collection is far more complete than anything available online and is freely available for anyone to use, but this generally requires a trip to the library. Currently, there is no free online public access to the Indiana Code predating 2009, and paid access offers no codes between 1921 and 1990. We have set out to change this.

The Second International Conference On Climate, Nature, And Society: Selected Conference Excerpts, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Why Settle For Less? Improving Settlement Conferences In Federal Court, William P. Lynch

Washington Law Review

Most cases settle before trial. Recent studies show that approximately 1% of cases filed in federal court go to trial. Alternative dispute resolution processes have been fully incorporated into federal court, and settlement conferences have long been used by federal court judges to control their dockets. Do they provide litigants with both substantive and procedural justice in the vast majority of cases that do not proceed to trial? Lawyers have raised concerns about judicial coercion to settle cases at settlement conferences, the loss of confidentiality that occurs when parties raise claims of bad faith participation at the conference, and that …

The Promises And Perils Of Using Big Data To Regulate Nonprofits, Lloyd Hitoshi Mayer

Washington Law Review

For the optimist, government use of “Big Data” involves the careful collection of information from numerous sources. The government then engages in expert analysis of those data to reveal previously undiscovered patterns. Discovering patterns revolutionizes the regulation of criminal behavior, education, health care, and many other areas. For the pessimist, government use of Big Data involves the haphazard seizure of information to generate massive databases. Those databases render privacy an illusion and result in arbitrary and discriminatory computer-generated decisions. The reality is, of course, more complicated. On one hand, government use of Big Data may lead to greater efficiency, effectiveness, …

The Legitimacy Of Judicial Climate Engagement, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

Courts in key climate change cases have abdicated their constitutional responsibility to protect a prejudiced and disenfranchised group (nonvoting minors and future generations) and remedy an insidious pathology in public discourse and the political process: the industry-funded climate disinformation campaign. This Article posits that this abdication results from courts' uneasiness about displacing the prerogatives of democratically elected bodies. This uneasiness is misplaced. Court engagement with climate cases would strengthen democracy in accord with widely accepted justifications for countermajoritarian judicial review. This Article first describes in detail how courts exhibit a frustrating reticence to accept jurisdiction over cases that present questions …

Ex Situ Preservation Of Historic Monuments In The Era Of Climate Change, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Cultural heritage (historic buildings, landscapes, and natural monuments) is being threatened by all manner of evils--attacks by belligerents seeking military advantages, increased consumptive uses, and significantly, the idiosyncratic effects of climate change. Climate change portends sea level rise and coastal erosion threats that will inundate coastal areas and the historic structures located there. Melting permafrost and changes in soil composition threaten the loss of buried archaeological evidence and compromise the integrity of ancient buildings designed for a less malevolent climate.

State and local governments have been undertaking measures to build sustainable communities to mitigate the coming changes in the climate, …

Transnational Perspectives On The Paris Climate Agreement Beyond Paris: Redressing American Defaults In Caring For Earth’S Biosphere, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Anxiety about the fate of human civilization is rising. International Law has an essential role to play in sustaining community of nations. Without enhancing International Environmental Law, the biosphere that sustains all nations is imperiled. Laws in the United States can either impede or advance global environmental stewardship. What is entailed in such a choice?

The biosphere is changing. At a time when extraordinary technological prowess allows governments the capacity to know how deeply they are altering Earth's biosphere, nations experience a perverse inability to cooperate together. The Arctic is melting rapidly, with knock on effects for sea level rise …

Universal Representation: Systemic Benefits And The Path Ahead, Lindsay Nash

Articles

At a time when politics, financial considerations, and a push for expediency put pressure on the US immigration system, it can be difficult to have faith in the adjudicatory process. Case resolution quotas, directives that constrain courts’ ability to render justice in individual cases, and executive decisions that contract immigration judges’ discretion contribute to an immigration system that looks less and less like judicial adjudication of some of the highest-stakes cases in our legal system and more like a ministerial claims-processing scheme. A ray of hope exists, however, in the proliferation of public defender–style systems that offer universal representation to …

The Myth Of Enforcing Border Security Versus The Reality Of Enforcing Dominant Masculinities, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

This essay explores the masculinities underpinnings in modern immigration law, policy, and rhetoric. Existing analysis has captured the ways in which Trump-era immigration laws, policies, and rhetoric are explicitly and implicitly packaged in alarming racism and xenophobia. These critical lenses continue a long and deeply worrisome legacy of “othering” and dehumanizing immigrants and, more broadly, marginalizing communities of color in the United States.

Outside of the immigration law lens, separate strands of scholarship and media coverage have highlighted the toxic masculinities of the Trump era. These discussions have generally focused on President Trump’s treatment of women, the gendered campaign dynamics …

Do Criminal Minds Cause Crime? Neuroscience And The Physicalism Dilemma, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The idea that mental states cause actions is a basic premise of criminal law. Blame and responsibility presuppose that criminal acts are products of the defendant's mind. Yet, the assumption that mental causation exists is at odds with physicalism, the widely shared worldview that “everything is physical.” Outside of law, there is probably no field of secular study in which one can seriously assert that unseen nonmaterial forces can cause physical events. But if physicalism is true then a fundamental premise of modern criminal justice must be false, namely, that criminals deserve punishment because their crimes are the products of …

2019 Cardozo Life (Fall), Benjamin N. Cardozo School Of Law

Cardozo Life Magazine

Table of Contents:

Top News & Events, page 3

Clinics News, page 13

Faculty with Impact, page 16

Q&A with Dean Melanie Leslie, page 21

Cardozo Women: A Legacy of Leadership, page 22

Cardozo Kicks Off 'Women's Votes, Women's Voices: 19 at 100'- A Year Long Speaker Series, page 38

Professor Recognized for His Advocacy on Behalf of Holocaust Victims in France, page 40

Justice Stevens' Interview with Professor Kate Shaw, page 44

Human Rights Clinic Director Pushes for Gender Equality, page 48

Student News, page 50

Movers & Shakers, page 54

Alumni News & Class Notes, page 56

End …

Amazon And Platform Antitrust, Ben Bloodstein

Fordham Law Review

With its decision in Ohio v. American Express, the U.S. Supreme Court for the first time embraced the recently developed, yet increasingly prolific, concept of the two-sided platform. Through advances in technology, platforms, which serve as intermediaries allowing two groups to transact, are increasingly ubiquitous, and many of the biggest tech companies operate in this fashion. Amazon Marketplace, for example, provides a platform for third-party vendors to sell directly to consumers through Amazon’s web and mobile interfaces. At the same time that platforms and their scholarship have evolved, a burgeoning antitrust movement has also developed which focuses on the …

Rebranding Tax/Increasing Diversity, Alice G. Abreu, Richard K. Greenstein

Denver Law Review

No abstract provided.

It's Not The Robot's Fault! Russian And American Perspectives On Responsibility For Robot Harms, Bryant Walker Smith, Andrey Neznamov

Faculty Publications

No abstract provided.

Aiming Higher: Looking Beyond Completion To Restore The Promise Of Higher Education, Deanne Loonin, Julie Margetta

The Journal of Law and Education

No abstract provided.

Building A Wall Around The Schoolhouse: Education And Immigration In The Trump Age, Julie F. Mead, Mark A. Paige

The Journal of Law and Education

No abstract provided.

Nebraska Transcript (University Of Nebraska College Of Law), Volume 52, Number 2, Fall 2019

Nebraska Transcript

1 Dean's Message

2 Faculty Notes

6 Lenich retirement — Lenich retires after 35 years of service: Professor John Lenich reflects on his 35-year career at the College of Law.

10 Moberly named interim executive vice chancellor

11 Shavers named College's acting dean — Shavers appointed acting dean: Professor Anna Shavers serves as acting dean during Richard Moberly’s time as UNL’s interim executive vice chancellor

12 Jessica Shoemaker spends year as a Fulbright Chair in Canada— Shoemaker reflects on her year as a Fulbright Scholar: Professor Jessica Shoemaker spent the 2018-2019 academic year as the Fulbright Canada Research Chair in …

Faculty List

Tulsa Law Review

No abstract provided.

The Dialogic Aspect Of Soft Law In International Insolvency: Discord, Digression, And Development, John A. E. Pottow

Law & Economics Working Papers

Soft law is on the ascent in international insolvency, seeming now to occupy a preferred status over boring old conventions. An arguably constitutive aspect of soft law, which some contend provides a normative justification for international law generally, is its "dialogic" nature, by which I mean its intentional exposure to recursive norm contestation and iterative development: soft law starts a dialogue. The product of that dialogue, on a teleological view, may well be hard law. In the international insolvency realm, that pathway is through (soft) model domestic legislation that aspires toward enactment as municipal law. The happy story is that …

Learning From Feminist Judgments: Lessons In Language And Advocacy, Bridget J. Crawford, Linda L. Berger, Kathryn M. Stanchi

Elisabeth Haub School of Law Faculty Publications

This essay offers a perspective-shifting approach to meeting some of our pedagogical goals in law school: the study of re-imagined judicial decisions. Our thesis is that exposing students to “alternative judgments”—opinions that have been rewritten by authors who look at the law and the facts differently—will help students develop a more realistic and nuanced view of judicial decision-making: one that is aspirational and based in the real world, and one that allows them to envision their futures as successful advocates. The “alternative judgments” of the feminist judgments projects can enrich the law-school experience in multiple ways. First, seeing a written …

Ekspertiza Dhe Roli I Saj Në Procedurën Penale, Elona Zejnullahu

Theses and Dissertations

Punimi me titull: “Ekspertiza dhe roli i saj në procedurën penale”, ka për qëllim të shpjegojë në mënyrë sa më të qartë rëndësinë që e ka ekspertiza tek një procedurë penale. Duke pasur parasysh se ekspertiza paraqet një provë mjaftë të rëndësishme dhe domethënëse atëherë kjo lë të kuptohet se njëkohësisht është edhe një mbështetje mjaftë e fortë dhe e pa zëvendësueshme për gjyqësorin, me q’rast iu ndihmon në marrjen e një vendimi meritor lidhur me ndonjë qështje penale.

Ekspertiza në ditët e sotëshme ka një vlerë shumë të madhe, andaj në këtë drejtim përherë bëhen studime shkencore për arritjen …

From The Horse’S Mouth: What Research And Other Lawyering Competencies Do New Law Graduates Need To Be Successful?, Virginia C. Thomas

Library Scholarly Publications

Insights from a diverse group of accomplished legal professionals addressing the questions: What are the research and other lawyering skills that new lawyers need to be successful in the profession? What competencies are expected of them in different areas of practice?

2019–2020 Bulletin Of Information, Notre Dame Law School

Bulletins of Information

CONTENTS

• Admissions Information
• Academic Calendar
• Tuition and Fees
• Academic Requirements
• Senior Administrative Leadership
• Hoynes Code, Revised November 21, 2018

Standing For Statues, But Not For Statutes? An Argument For Purely Stigmatic Harm Standing Under The Establishment Clause, Merav Bennett

University of Chicago Law Review

In the wake of Obergefell v Hodges, a number of state legislatures passed laws exempting individuals with religious objections to same-sex marriage from state antidiscrimination laws. By granting special privileges to religious adherents, these laws may violate the Establishment Clause. This Comment concerns the threshold issue of which plaintiffs have standing to bring such an Establishment Clause challenge. Specifically, can the emotional harm caused by a law’s stigmatizing message—for example, the message that individuals in same-sex relationships are lessvalued members of the community—constitute a judicially cognizable “injury in fact” in the Establishment Clause context? This question has split the lower …

Clarity Doctrines, Richard Re

University of Chicago Law Review

Clarity doctrines are a pervasive feature of legal practice. But there is a fundamental lack of clarity regarding the meaning of legal clarity itself, as critics have pointed out. This Article explores the nature of legal clarity as well as its proper form. In short, the meaning of legal clarity in any given doctrinal context should turn on the purposes of the relevant doctrine. And the reasons for caring about clarity generally have to do with either (i) the deciding court’s certainty about the right answer or (ii) the predictability that other interpreters (apart from the deciding court) would converge …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Should The Power Of Presidential Pardon Be Revised?, Budd N. Shenkin, David I. Levine

UC Law Constitutional Quarterly

No abstract provided.

Rethinking Constitutional Interpretation To Affirm Human Rights And Dignity, Vincent J. Samar

UC Law Constitutional Quarterly

No abstract provided.

The Promise And Challenge Of Humanitarian Protection In The United States: Making Temporary Protected Status Work As A Safe Haven, Andrew I. Schoenholtz

Northwestern Journal of Law & Social Policy

The humanitarian program Congress created in 1990 to allow war refugees and those affected by significant natural disasters to live and work legally in the United States has only partially achieved its goals. More than 400,000 individuals have received temporary protected status (TPS). In many cases, the crisis ended, along with temporary protection. However, in about half of the designated nationalities—including the largest groups—conflict and instability continued, making this humanitarian protection program anything but temporary. Unfortunately, Congress did not provide the Department of Homeland Security (DHS) with the tools it needed to address such long-term crises. That was purposeful—Congress worried …