Law Commons^™

F19rs Sgb No. 4, Martin

Student Senate Enrolled Legislation

A BILL

To amend the LSU Student Government Election Code Article II: Governance of elections to provide for further election outreach

Board Diversity By Term Limits?, Darren Rosenblum, Yaron Nili

Elisabeth Haub School of Law Faculty Publications

Four-fifths of the corporate board seats in the United States are held by men and a shocking number of companies lack any female representation on their boards. While institutional investors have pushed these companies for change, California took a more aggressive step and followed several European countries by mandating a quota for board representation. Heated argument has ensued over what diversity we should prioritize and what mechanisms should be used to promote diversity. Yet could these challenges be avoided altogether through the use of term limits?

This Article is the first academic inquiry exploring the connection between term limits and …

Talking About Black Lives Matter And #Metoo, Bridget J. Crawford, Linda S. Greene, Lolita Buckner Inniss, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Elisabeth Haub School of Law Faculty Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, …

Assumptions About Terrorism And The Brandenburg Incitement Test, Christina E. Wells

Faculty Publications

The incitement standard announced in Brandenburg v. Ohio is one of the most familiar tests in the Supreme Court's jurisprudence. It prohibits government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity. Brandenburg's standard has become a pillar of free speech law, allowing government officials to protect public safety by punishing only speech intended and likely to create an imminent danger of harm, while protecting even the most abhorrent of speakers from suppression of their speech simply because government officials fear or dislike it. Terrorist advocacy, however, is putting pressure on …

Statutory Realism: The Jurisprudential Ambivalence Of Interpretive Theory, Abigail R. Moncrieff

Law Faculty Articles and Essays

In the renaissance of statutory interpretation theory, a division has emerged between "new purposivists," who argue that statutes should be interpreted dynamically, and "new textualists," who argue that statutes should be interpreted according to their ordinary semantic meanings. Both camps, however, rest their theories on jurisprudentially ambivalent commitments. Purposivists are jurisprudential realists when they make arguments about statutory meaning, but they are jurisprudential formalists in their views of the judicial power to engage in dynamic interpretation. Textualists are the inverse; they are formalistic in their understandings of statutory meaning but realistic in their arguments about judicial power. The relative triumph …

Dehumanization, Immigrants, And Equal Protection, Reginald Oh

Law Faculty Articles and Essays

This article is divided into three parts. Part I explores the concept of dehumanization and its central role in the subordination of marginalized groups. Part II discusses the equal protection doctrine of suspect classes by analyzing key decisions by the Court and its reasoning for whether or not to consider a particular group as a suspect class. Part II also argues that the decision in Brown v. Board of Education regards racial segregation in public schools as a form of racial dehumanization and provides the doctrinal basis to consider dehumanization a central factor in determining suspect class status. Part III …

Equal In His Sight: An Examination Of The Evolving Opinions On Race In The Life Of Jerry Falwell, Sr., Kathryn Legg

Senior Honors Theses

The late Reverend Jerry Falwell, Sr., founder of Thomas Road Baptist Church and president of the Moral Majority, was a prominent figure in conservative politics beginning in the late 1970s. His opinions regarding preachers and politics changed throughout his life, as did his beliefs about race in America and the church. His views on race affected his preaching and political involvement, and in his later life he retracted from the segregationist beliefs he held at the beginning of his ministry. While Falwell’s prominent roles in the Religious Right and Moral Majority have previously been explored, this paper seeks to present …

The Post-Truth First Amendment, Sarah Haan

Indiana Law Journal

Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.

In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand …

Protecting Consumers As Sellers, Jim Hawkins

Indiana Law Journal

When the majority of modern contract and consumer protection laws were written in the 1950s, ’60s, and ’70s, consumers almost always acted as buyers, and businesses almost always acted as sellers. As a result, these laws reflect a model of strong sellers and weak buyers. But paradigms are shifting. Advances in technology and constraints on consumers’ financial lives have pushed consumers into new roles. Consumers today often act as sellers—hawking gold to make ends meet, peddling durable goods on eBay, or offering services in the sharing economy to make a profit. Consumers and business models have changed, but the laws …

Arbitration And The Federal Balance, Alyssa King

Indiana Law Journal

Mandatory arbitration of statutory rights in contracts between parties of unequal bargaining power has drawn political attention at both the federal and state level. The importance of such reforms has only been heightened by the Supreme Court’s expansion of preemption under the FAA and of arbitral authority. This case law creates incentives for courts at all levels to prefer expansive readings of an arbitration clause. As attempts at federal regulation have stalled, state legislatures and regulatory agencies can expect to be subject to renewed focus. If state legislatures cannot easily limit arbitrability, an alternative is to try reforms that seek …

Water, Water, Anywhere?: Protecting Water Quantity In State Water Quality Standards, Julie F. Youngman

Indiana Law Journal

Although much of the earth’s surface is covered with water, less than one percent of water is available for human use. Water is becoming progressively scarcer worldwide, as demand increases and pollution, drought, and climate change jeopardize access to clean water. The United States is no exception to that trend. Effective regulation of water supplies can blunt the impacts of water scarcity. This Article suggests that states can—and should—regulate instream flows and lake levels in their federally-mandated water quality standards, with an eye toward conserving scarce water resources. Regulating water quantity as an element of water quality is not only …

Releasing The 1040, Not So Ez Constitutional Ambiguities Raised By State Laws Mandating Tax Return Release For Presidential Candidates, Matthew M. Ryan

UC Law Constitutional Quarterly

No abstract provided.

The Immigration Crisis In American Courts: Children Representing Themselves, Wendy Melissa Hernandez

UC Law Constitutional Quarterly

No abstract provided.

Latino Education In Texas: A History Of Systematic Recycling Discrimination, Albert H. Kauffman

St. Mary's Law Journal

Abstract forthcoming

Wither Zauderer, Blossom Heightened Scrutiny? How The Supreme Court’S 2018 Rulings In Becerra And Janus Exacerbate Problems With Compelled-Speech Jurisprudence, Clay Calvert

UF Law Faculty Publications

This Article examines how the United States Supreme Court’s 2018 decisions in the First Amendment cases of National Institute of Family & Life Advocates v. Becerra and Janus v. American Federation of State, County, & Municipal Employees, Council 31, muddle an already disorderly compelled-speech doctrine. Specifically, dual five-to-four decisions in Becerra and Janus raise key questions about the level of scrutiny—either a heightened test or a deferential variant of rational basis review—against which statutes compelling expression should be measured. Critically, Becerra illustrates the willingness of the Court’s conservative Justices to narrowly confine the aging compelled-speech test from Zauderer v. …

The Sperminator As A Public Nuisance: Redressing Wrongful Birth And Life Claims In New Ways (A.K.A. New Tricks For Old Torts), Barbara Pfeffer Billauer

University of Arkansas at Little Rock Law Review

No abstract provided.

Continuing Evolution Of Juvenile Sentencing Laws, Misty Wilson Borkowski

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—A Tale Of Two Shootings: Should A Bivens Remedy Be Available When Cbp Agents Shoot And Kill Victims On The Mexican Side Of The Border?, Glenn Larkin

University of Arkansas at Little Rock Law Review

No abstract provided.

Can God Create A Rock So Heavy That He Cannot Lift It? Outlawing Pensions Under State Constitutions, Chad J. Pomeroy

University of Arkansas at Little Rock Law Review

No abstract provided.

Goat Testicles, Scientific Evidence, And Consequences: Stopping A Killing Spree With Nothing But Evidence Law, William Gordon Childs

University of Arkansas at Little Rock Law Review

No abstract provided.

Teaching Social Justice Through “Hip Hop And The Law”, André Douglas Pond Cummings

Law Faculty Scholarship

This article queries whether it is possible to teach law students about social justice through a course on hip hop and its connection to and critique of the law. We argue, in these dedicated pages of the North Carolina Central Law Review, that yes, hip hop and the law offer an excellent opportunity to teach law students about social justice. But, why publish an article advocating that national law schools offer a legal education course on Hip Hop and the Law, or more specifically, Hip Hop & the American Constitution? Of what benefit might a course be that explores hip …

Faculty Services Newsletter, Maggie Kiel-Morse

Faculty Services Newsletter

No abstract provided.

The Return Of The Technical Mcdonnell Douglas Paradigm, Katie Eyer

Washington Law Review

For many anti-discrimination plaintiffs, the McDonnell Douglas paradigm will determine the success or failure of their claims. And yet, for decades, most lower courts have applied a technical version of McDonnell Douglas—under which plaintiffs invariably lose. Thus, instead of asking the factual question of whether the defendant’s action was “because of” protected class status, the lower courts rely on a host of technical rules to dismiss even factually strong anti-discrimination claims. This is not the first time the lower courts have attempted to adopt a technical version of the McDonnell Douglas paradigm. In the 1970s and 1980s, the lower courts …

Public Or Private Venture Capital?, Darian M. Ibrahim

Washington Law Review

The United States has an unparalled entrepreneurial ecosystem. Silicon Valley startups commercialize cutting-edge science, create plentiful jobs, and spur economic growth. Without angel investors and venture capital funds (VCs) willing to gamble on these high-risk, high-tech companies, none of this would be possible. From a law-and-economics perspective, startup investing is incredibly risky. Information asymmetry and agency costs abound. In the United States, angels and VCs successfully mitigate these problems through private ordering and informal means. Countries without the robust private venture capital system that exists in the United States have attempted to fund startups publicly by creating junior stock exchanges …

Permissive Certificates: Collectors Of Art As Collectors Of Permissions, Peter J. Karol

Washington Law Review

Artists have been dramatically reshaping the fine art certificate of authenticity since the 1960s. Where traditional certificates merely certified extant objects as authentic works of a named artist, newer instruments purported both to authorize the creation of unbuilt artworks and instruct buyers how to manifest and install them. Such “Permissive Certificates” have fascinated contemporary art historians ever since. Prior scholarship has shown how such documents, essentially blueprints for art creation, force us to confront fundamental ontological questions on the nature of art, the relationship between artist, collector and viewer, and the influence of money and acquisitiveness on art generation. But …

Quantifying The Resilience Value Of Distributed Energy Resources, James M. Van Nostrand

Law Faculty Scholarship

Extreme weather events, which are occurring with increasing frequency as a result of climate change, threaten the reliability and resilience of the nation's electricity grid. Increased flooding due to intense rainfall, hurricane damage fueled in part by a warmer atmosphere and warmer, higher seas, and widespread wildfires caused by extended drought conditions constitute potential hazards for utility infrastructure and delivery of essential electricity service. As a possible adaptation strategy, increased deployment of distributed energy resources (DERs), which are small-scale generating resources located near-and connected to-a load being served with or without grid interconnection, can improve the resilience of the electric …

The Devil Is In The Details: Exploring Restorative Justice As An Option For Campus Sexual Assault Responses Under Title Ix, Amy B. Cyphert

Denver Law Review

No abstract provided.

'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

UF Law Faculty Publications

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …

Copyright's Market Gibberish, Andrew Gilden

Washington Law Review

There is a growing contradiction at the core of copyright law. Although courts and scholars frequently assert that copyright is only about authors’ economic interests, copyright law routinely protects interests such as privacy, sexual autonomy, reputation, and psychological well-being. It just uses the language of money and markets to do so. This Article shows that copyright law routinely uses economic rhetoric to protect a broad range of noneconomic interests—a practice this Article names “market gibberish.” Market gibberish muddies copyright jurisprudence and has sweeping practical, conceptual, and distributive impacts. In a wide range of copyright cases, plaintiffs use economic and market-based …

Gender Disparities In Plea Bargaining, Carlos Berdejo

Indiana Law Journal

Across wide-ranging contexts, academic literature and the popular press have identified pervasive gender disparities favoring men over women in society. One area in which gender disparities have conversely favored women is the criminal justice system. Most of the empirical research examining gender disparities in criminal case outcomes has focused on judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that constrain judges’ ultimate sentencing discretion. This Article addresses this gap by examining gender disparities in the plea-bargaining process. The results presented in this Article reveal significant gender …