Law Commons^™

Equality And Closure: The Paradox Of Local Citizenship, Kenneth A. Stahl

Texas A&M Journal of Property Law

In Bourgeois Utopias, a cultural history of suburbia in America, Robert Fishman states the fundamental paradox about the suburbs: “[H]ow can a form based on the principle of exclusion include every-one?” The promise of the American suburb was that every middle-class family would be able to own a home with a yard, but this egalitarian ideal was illusory because what made the suburbs appealing was precisely what it excluded, namely everything having to do with the city—its congestion, political corruption, and most importantly, its racial diversity. And so, as suburbia was mass-produced and made avail-able with cheap low-interest loans …

Questions Of Citizenship And The Nature Of "The Public", Sarah Schindler

Texas A&M Journal of Property Law

This essay is taken from a talk given at a symposium discussing Professor Ken Stahl’s book, Local Citizenship in a Global Age.1 It is not a traditional book review, but rather a series of musings inspired by the ideas in the book.

Professor Stahl’s new book, Local Citizenship in a Global Age, addresses a number of important issues, many of which have been the focus of my prior work: the existence of boundaries, borders, and the spaces in between; who we include in those boundaries and who we exclude; public space, private space, and the lines between them; …

Liberalism, Patriotism, And Cosmopolitanism In Local Citizenship In A Global Age, Eric R. Claeys

Texas A&M Journal of Property Law

In this review Essay, I survey the most valuable lessons from Local Citizenship in a Global Age. But I have some reservations about the book, and I want to mark those off as well. The book comes off as critical of views that seek to control immigration and to establish relatively demanding criteria for noncitizens to become citizens. In my view, two factors contribute to this impression, and the book would have been more satisfying if both had been addressed.

Fourth Amendment Limits On Extensive Quarantine Surveillance, Benjamin Wolters

Duke Journal of Constitutional Law & Public Policy Sidebar

The devastation wreaked by the COVID-19 pandemic spurred innovations in technology and public policy. Many countries rushed to implement extensive quarantines, and some introduced disease surveillance, including location tracking to enforce quarantines. Though the United States has never implemented high-tech quarantine surveillance, such technology will certainly be available for the next disease outbreak.

Absent significant doctrinal change, the Fourth Amendment likely bars some, but not all, forms of quarantine surveillance. Quarantine surveillance probably constitutes a Fourth Amendment “search” that generally must be backed by probable cause. This probable cause requirement, and its subcomponent of individualized suspicion, likely applies differently to …

مبدأ الضرورة العسكرية، وانتهاكات قواعد القانون الدولي الإنساني دراسة تطبيقية على مخالفة "إسرائيل" لمبدأ الضرورة العسكرية خلال حرب (مايو2021م)., إياد محمد أبو مصطفى ماجستير

Journal of Al-Azhar University – Gaza (Humanities)

الملخص :

إنَّ التسليم بالاستناد إلى حالة الضرورة أثناء النزاعات المسلحة، كاستناد يُخرج سلوك المقاتل عن التصرفات المسموح بها أصبح أمرًا معترفًا به، غير أنَّ تجريد هذه الحالة من الشروط اللازمة لأعمالها، والضوابط الواجبة لتقييدها خاصة قيدي: "التناسب، والتمييز" أمر لا يمكن السماح به مهما كانت الظروف والمتغيرات الحاصلة في تطوير العلاقات بين الدول، ويُعدُّ هذا المبدأ متغيرًا بطبيعته غير القابلة للضبط أو التحديد بشكل واضح، الأمر الذي جعل هذا المبدأ ذريعة لدى الدول لانتهاك قواعد القانون الدولي الإنساني؛ ومن أهمها: دولة الاحتلال التي قامت بانتهاكه ومخالفة شروطه، وعدم مراعاة قيوده خلال حرب (مايو 2021م) على قطاع غزة.

وخَلُص البحث …

Critical Essays On Disability Rights Jurisprudence: Combating Exclusion, Embracing Inclusion, Sanjay Jain

Books

This book is a collection of high quality research papers contributed by eminent academicians, philosophers and jurists. Its main objective is to disseminate and spread awareness about rights of persons with disabilities. The book also provides useful inputs to activists, lawyers, jurists and academicians to evolve empowerment strategies for recognition, promotion and protection of rights of persons with disabilities. Besides the Indian scenario, the book also explores developments in disability rights in countries like Nepal, Sri Lanka and USA, thereby broadening the horizon of the field. It features high quality articles focusing on international law standards of Human Rights of …

Trouble With Names: Commercial Speech And A New Approach To Food Product Label Regulation, William Cusack

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court has recognized First Amendment protection for “commercial speech” since 1975. Commercial speech doctrine seeks to balance advertiser interest in speech, consumer interest in information, and society’s interest that “economic decisions in the aggregate be intelligent and well-informed.” Regulations and compulsory disclosures of commercial speech play a part in ensuring consumers are well-informed. Yet, there continues to be consumer confusion surrounding the commercial speech doctrine’s application to food labeling. Lawmakers continue to pass regulations that are unnecessary or nonsensical. Regulators continue to enforce these regulations, even if the state interest in doing so is minimal or non-existent. There …

Connie M. Knight V. Harold Frazier, Et Al., Frank Pommersheim

Tribal Court Opinions Authored by Emeritus Professor of Law Frank Pommersheim

No abstract provided.

The Role Of The Palestinian Community Reconciliation Committee As A Model For Transitional Justice In Achieving National Reconciliation, Issam Husni Alatrash

Journal of the Arab American University مجلة الجامعة العربية الامريكية للبحوث

The aim of this study was identifying the role of the Palestinian Community Reconciliation Committee as a model for transitional justice in achieving the national reconciliation. This study focused on achieving this goal through three axes: the obstacles encountering the Community Reconciliation Committee, the mechanisms of the Community Reconciliation Committee and support and enhancements of the Community Reconciliation Committee. The researcher used the analytical descriptive approach describing the phenomenon of the study in addition to conducting a field study to identify the role of the Community Reconciliation Committee in achieving the national reconciliation by designing a questionnaire and taking the …

Reconstruction And Rebuilding Stability Of Post Conflict Societies: Economic And Security Interests Or Sustainable Development?, Jihad Al-Ayasa

Journal of the Arab American University مجلة الجامعة العربية الامريكية للبحوث

This critical review shed light on the problem of applying the model of reconstruction and stability building of Germany and Japan after World War II on geopolitically and culturally different cases, such as Iraq and Afghanistan as post war contexts; and probably the same model will be applied to different post war contexts, such as Syria, Yemen, Libya and others. The study discussed the reasons why the model of reconstructing Iraq and Afghanistan failed compared to the successful model that was applied in Germany and Japan. Grounding on previous literature and theoretical frameworks, the study developed a new model that …

Civil Rights And Disability Justice Clinic: Brief And Special Appendix For Plaintiffs-Appellants: Not Dead Yet, Nmd United, Disability Rights New York, Michelle Brose, Mike Volkman, Jessica Tambor, Peri Finkelstein, Individually And On Behalf Of A Class Of All Others Similarly Situated, Plaintiffs- Appellants V. Kathy Hochul, Governor Of The State Of New York, In Her Offifficial Capacity, Howard A. Zucker, Commissioner Of The New York State Department Of Health, In His Offifficial Capacity, Defendants-Appellees. Case 21-2212., New York Law School

Briefs/Court Filings

No abstract provided.

Mind The Gap: A Comparative Approach For Fixing Volcker, Learning From Liikanen, And Using Vickers To Repair The U.S. Banking System, Rachel Sereix

Duke Journal of Constitutional Law & Public Policy Sidebar

After the 2008 financial crisis, Congress, courts, and international banking agencies alike determined that their current banking infrastructures were inadequate to prevent such crises in the future. The Dodd-Frank Wall Street Reform Acttried to solve the problem by reducing derivatives-related risk through legislative provisions that increased capital and liquidity requirements for all banks. Yet, banks continued to find means to subvert the system and Congress remained relatively silent on the issue after the passage of Dodd-Frank—failing to amend Dodd-Frank in any meaningful way. Looking towards European peers for guidance about how to reform the United States’ banking regime has often …

Colleen Renae Wilson, Appellant, V. Jed Wilson, Appellee : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Fourth Judicial District Court, Utah County, Commissioner Marian Ito and Judge Derek P. Pullan, District Court No. 194402700

Angilee K. Dakic, Attorney for Appellant

Marilyn Brown, D. Grant Dickinson, Attorneys for Appellee

Evaluating A Test For Shedding Propensity Using Tape Lifts From Different Skin Locations, Xiao M. Chen

Student Theses

The shedding propensity of a person can assist data interpretation in casework when assessing the possibility of passive transfer for DNA analysis. Past studies on shedding propensity evaluated palmar skin (washed and unwashed) deposits. This study compared different skin locations with respect to shedding propensity, and explored the potential of tape-lifts as a skin surface collection method. Eight different skin types and samples were collected with adhesive tape disks from 28 participants over three non-consecutive days; the washed and unwashed fingers from both hands, toe, and arm, neck below ear, and nape. Samples were extracted, quantified, amplified, genotyped, and evaluated …

Gephi Network Files, Folder 2, Part 2: Co-Citation Network Files, Joseph S. Miller

Faculty Datasets

This data subset created and collected by Joseph Miller and digitally preserved here is in support of his forthcoming article "A Judge Never Writes More Freely: A Separate-Opinions Citation-Network Approach to Assessing Judicial Ideology". From the article's abstract:

"This Article is the first to apply a novel empirical method—citation network analysis—to particular appellate jurists’ separate judicial opinions (e.g., concurrences, dissents) in an effort to provide a more detailed picture of a judge’s ideological preferences. It focuses on the separate opinions of Justices Scalia and Thomas through the end of October Term 2019: they served for a similar number …

Understanding The Negligence Question, Garo V. Moughalian

Lincoln Memorial University Law Review Archive

There is currently an unsolved problem in the legal literature regarding the role cost-benefit analysis should play in determinations of breach in negligence cases. Additionally, despite extensive writings, the relationship between duty and breach in negligence cases remains unclear. At the core of the problem lies the inadequacy of our understanding of breach, which, currently established through a number of independent constructs, lacks a fundamental conceptual base. Further complicating matters is the limited study afforded the nature of the negligence cause of action itself, which leaves the element of duty on unsound footing. This article fills those gaps. With an …

To Live More And Die Less: Challenging Tennessee's Anti-Trans Birth Certificate Policy, Guy E. Tustin Iii

Lincoln Memorial University Law Review Archive

This note analyzes Gore, et al., v. Lee, et al., a case challenging Tennessee's birth control policy which explicitly prohibits trans people born in Tennessee from correcting their gender marker to accurately reflect their gender identity. The note begins with a description of the issues the lawsuit hopes to address and continues with a description of the parties, history of anti-trans birth certificate jurisprudence, an analysis of lawyering strategies, and concludes with First Amendment strategies which may be used to fight state laws requiring trans citizens to complete gender confirming procedures in order to correct their birth certificate gender markers.

Laying It On The Line: How Hernandez V. Mesa Nixed Bivens For A Transnational Homicide, Sean Davis

Lincoln Memorial University Law Review Archive

n Hernandez v. Mesa, the Supreme Court denied the petitioners the opportunity to seek a Bivens remedy for a constitutional violation by a federal official. The Court appears like it will soon remove Bivens remedies entirely. This article analyzes the case and argues that the Court correctly decided the issue. Current literature decries this decision as ignoring precedent but fails to analyze the framework for deciding Bivens cases fully. The article further adopts the stance of the concurrence to argue that Bivens remedies violate the separation of powers, have failed to achieve their stated purpose, and should be completely abolished. …

You Are The Father! An Argument For Court-Ordered Prenatal Paternity Testing And Child Support In Tennessee, Michael Stooksbury

Lincoln Memorial University Law Review Archive

As long as the concept of monogamy has existed, humans have looked for ways to escape it. Children, a natural consequence of sexual activity, are often negatively affected by the lack of a supportive family structure in single-family households. To correct this, courts often order child support to be paid from one parent to another, usually through the State. This is why paternity determinations are an important court function. One aspect courts have neglected, however, is child support for expecting mothers during pregnancy. Prenatal child support for expecting mothers would help alleviate some of the prenatal costs and make the …

Disorderly Conduct: An Investigation Into Police And Prosecutor Practices, Michael Cicchini

Lincoln Memorial University Law Review Archive

Disorderly conduct is usually a misdemeanor statute that criminalizes a broad range of behavior. Law professors have recently called for the abolition of such statutes, arguing that the police are surveilling African American neighborhoods “for signs of disorder” and using the statute “as a means of social control against people of color.”This Article investigates this claim of racist policing by examining a sample of disorderly conduct cases. The sample confirms that African Americans are indeed charged at a disproportionately high rate relative to their percentage of the population. However, the disproportionate charging is not due to racist police surveillance. Rather, …

Mixed Messaging: Should Judges On The Tennessee Supreme Court Be Called Justices?, Ryan E. Cox

Lincoln Memorial University Law Review Archive

Originally published on the LMU Law Review Blog--Off the Record--in February 2021.

Submission Of Amicus Curiae Observations In The Case Of The Prosecutor V. Dominic Ongwen, Erin Baines, Kamari M. Clarke, Mark A. Drumbl

Scholarly Articles

The important questions laid out by the Appeals Chamber in this case highlight the need for the proper delineation and interplay between mental illness and criminal responsibility under international law. Specifically, this case represents a watershed moment for the Appeals Chamber to set a framework for adjudicating mental illness in the context of collectivized child abuse and trauma. This is especially true for former child soldiers who occupy both a victim and alleged perpetrator status.

Innocence Project, Innocence Project

2021–2022 Flyers

No abstract provided.

Amicus Curiae Observations By Public International Law & Policy Group, Milena Sterio, Michael P. Scharf, Paul R. Williams

Law Faculty Briefs and Court Documents

The amicus brief argues that in a case where the defendant alleges a ground excluding criminal responsibility (an affirmative defense), such as mental illness or duress, the defendant has an evidentiary burden to produce some evidence to support his/her claim of mental illness or duress, but that the prosecution retains the legal burden of proof to establish the defendant's responsibility beyond reasonable doubt.

“This ruling will have repercussions for future cases where the defendant asserts a mental illness or duress affirmative defense. Depending on how the ICC decides, future defendants will have to meet a specific evidentiary (or legal) burden …

A Modest Proposal: Leveraging Private Enforcement Mechanisms And The Bayh-Dole Act To Reduce Drug Prices In The U.S. Healthcare Industry, Brittany Day

Duke Journal of Constitutional Law & Public Policy Sidebar

The United States healthcare system is one of the most expensive in the world. Unlike other products, when drug prices skyrocket, people may die. While advocating for various solutions, both the Biden and Trump administrations have recognized the importance of halting the rise of prescription drug prices. Most of the solutions advanced are focused on government-side initiatives, such as allowing Medicare to directly negotiate with pharmaceutical companies. Yet, the "march-in rights" built into the Bayh-Dole Act create an opportunity to set up a mechanism that would invite private actors to sue pharmaceutical companies for unconscionable drug pricing. The Bayh-Dole Act …

Paving The Way For Mind-Reading: Reinterpreting "Coercion" In Article 17 Of The Third Geneva Convention, John Zarrilli

Duke Journal of Constitutional Law & Public Policy Sidebar

Mind-reading is no longer a concept confined to the world of science-fiction: "Brain reading technologies are rapidly being developed in a number of neuroscience fields." One obvious application is to the field of criminal justice: Mind-reading technology can potentially aid investigators in assessing critical legal questions such as guilt, legal insanity, and the risk of recidivism. Two current techniques have received the most scholarly attention for their potential in aiding interrogators in determining guilt: brain-based lie detection and brain-based memory detection. The growing ability to peer inside someone's mind raises significant legal issues. A number of American scholars, especially in …

Ferpa And State Open Records Laws: What The North Carolina Supreme Court Got Wrong In Dth Media Corp. V. Folt, And How Courts & Congress Can Take Measures To Reconcile Privacy And Access Interests, Danielle Siegel

Duke Journal of Constitutional Law & Public Policy Sidebar

Over the past few years, courts across the country have confronted a common scenario. Members of the public and media request records from a public university pertaining to its investigations of sexual assault and misconduct on campus. Then, media outlets contend they have a right to access these records under state open records laws. But the university claims that it cannot, or will not, disclose the records under the Family Educational Rights and Privacy Act of 1974 ("FERPA").

The media outlet then files suit to compel disclosure. This Note explores the competing privacy and access interests at stake in this …

How To Compromise On Saving The Most Lives: A Commentary On Hellman And Nicholson, “Rationing And Disability”, David Wasserman

Washington and Lee Law Review Online

Deborah Hellman and Kate Nicholson’s “Rationing Disability” is a skillfully integrated analysis of the legal and ethical challenges of avoiding disability discrimination in setting priorities for the allocation of scarce lifesaving resources. Their analysis goes beyond the important but narrow question of what it means to wrongfully discriminate against people with disabilities in this context to the broader question of how to find a principled compromise between the consequentialist goals of public health and the potentially conflicting public value of “equal concern and respect” for each person. I will focus on this broader issue.

I agree with much …

Framework For Enhanced Applicability Of The Egyptian Public Procurement Law To International Administrative Construction Contracts, Amr Abu Helw

Theses and Dissertations

Local governments and public authorities conclude contracts for the purpose of acquisition of goods, delivery of services and construction of public facilities like bridges, infrastructures and public buildings. A public contract is an agreement to perform particular tasks financed by government funds to the benefit of the whole community. Private entities and corporations are subject to stricter standards in their dealings with the government than in private transactions. Conversely, the government must deal fairly and equitably with those who it contracted with to achieve successful implementation of the projects. On October 3, 2018, a new Egyptian public procurement law, namely, …

Imf's Loan Conditionality: Negative Consequences In The Borrower Country And The Burden Of Responsibility, Sara Mohamed Osama Abdalla Atta

Theses and Dissertations

People often think that IFIs, such as the World Bank and the International Monetary Fund are prominent players in the global economy by providing funds to countries in need of development and sustainment of welfare, unfortunately these institutions can cause devastating effects in the borrower country. The harsh conditionality of the IMF plays a huge role in the negative economic consequences incumbent upon the borrower country. Meanwhile, the lack of legal remedies for private individuals suffering from the conditionality aggravates the consequences for these people. On the one hand, conditionality may strain the economy of the borrower country which leads …