Law Commons^™

Judicial Populism, Anya Bernstein, Glen Staszewski

Faculty Scholarship

Discussions of populism generally focus on politics. This Article identifies a related phenomenon in law. Judicial populism uses political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists that there are clear, correct answers to complex, debatable problems. It disparages the mediation and negotiation that characterize democratic institutions and rejects the messiness inherent in a pluralistic democracy. Instead, it simplifies the issues legal institutions address and claims special access to a true, single meaning of the law.

In this image, there is no room for legitimate disagreement. Writers in this vein often accuse those …

Estimating The Appropriate Size Of Global Pull Incentives For Antibacterial Medicines, Kevin Outterson

Faculty Scholarship

Antibacterial medicines should be foundational for modern medicine—a key part of the infrastructure of contemporary practice. Recently, however, antibacterials have struggled commercially. Even with “push” incentives (grants paid before regulatory approval), antibacterials have failed on the market because revenues are tied to volume sold. There are policy initiatives under way in the United States and United Kingdom that explore paying for exceptional antibacterials with “pull” incentives (paid after regulatory approval) by delinking the payments from volume via other payment formats such as market entry rewards and subscriptions. This article discusses these initiatives but also proposes an expected net present value …

Trafficking And The Shallow State, Julie A. Dahlstrom

Faculty Scholarship

More than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also have climbed. For example, in fiscal year 2020, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications that the agency adjudicated, compared with just 28.12% in fiscal year 2015. These developments …

The Potential Impact Of A Voluntary Non-Punitive Self Report Program Under The Scope Of The Brazilian Civil Aviation Authority, Audrey Gonzalez, Bráullio Amaral, Felipe Piton, Laércio De Araujo, Marcelo Marcusso

Student Works

The key recommendation from this study is to purpose the Brazilian National Civil Aviation Authority evaluation over the implementation of a new voluntary and non-punitive safety reporting program, with a different scope from the current one. The voluntary self-reporting programs in place in the USA, Europe and Australia should be used as a regulatory reference and the program development and implementation should be executed in close coordination with the different industry stakeholders.

To access if the current Brazilian State Safety reporting system meets ICAO requirements, the researchers accessed pertinent aviation safety regulatory legislation. Additionally, to access if the current Brazilian …

Social Norms In Fourth Amendment Law, Matthew Tokson, Ari Ezra Waldman

Michigan Law Review

Courts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. This Article draws on contemporary sociological literatures on norms and technology to reveal how courts’ reliance on norms leads to several identifiable errors in Fourth Amendment jurisprudence.

Courts assessing social norms generally adopt what we call the closure principle, or the idea that …

Law Library Blog (November 2021): Legal Beagle's Blog Archive, Roger Williams University School Oflaw

Law Library Newsletters/Blog

No abstract provided.

Menstrual Dignity And The Bar Exam, Margaret E. Johnson, Marcy L. Karin, Elizabeth Cooper

All Faculty Scholarship

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

Do Courts Have Jurisdiction To Consider Questions Of Fact To Determine Whether A Noncitizen Is Entitled To Eligibility For Discretionary Relief From Removal?, David L. Hudson Jr.

Law Faculty Scholarship

This article previews Patel v. Garland, a United States Supreme Court case addressing the scope of federal court jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i), as amended by the REAL ID Act. The central question is whether federal courts retain jurisdiction to review nondiscretionary factual determinations underlying eligibility for discretionary relief from removal, or whether the statute’s bar on reviewing “any judgment” precludes judicial review of such threshold findings. The case arises from the denial of adjustment of status to Pankajkumar Patel, deemed inadmissible for allegedly falsely representing himself as a U.S. citizen on a driver’s license application. Both petitioner …

Does A State Violate Rluipa By Prohibiting An Inmate's Pastor From Laying Hands On Him And Audibly Praying During The Execution Process?, David L. Hudson Jr.

Law Faculty Scholarship

This article examines Ramirez v. Collier, a United States Supreme Court case addressing the scope of religious liberty protections afforded to death-row inmates under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The case centers on whether Texas prison officials violate RLUIPA by prohibiting an inmate’s pastor from laying hands on him and praying audibly during the execution process. The dispute requires the Court to evaluate (1) whether such prohibitions substantially burden sincerely held religious beliefs, (2) whether the state satisfies RLUIPA’s strict scrutiny standard by demonstrating a compelling governmental interest advanced through the least restrictive …

Property Law For The Ages, Michael C. Pollack, Lior Jacob Strahilevitz

Articles

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Thank You Glenice

University of Richmond Law Review

No abstract provided.

Taxation, Craig D. Bell

University of Richmond Law Review

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (“Tax Department” or “Department of Taxation”) and the Attorney General of Virginia over the past year.

Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, and discrete local taxes.

The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia …

Strictly Speaking, What Needs To Change? A Review Of How Statutory Changes Could Bring Strict Products Liability To Virginia, Ryan C. Fowle

University of Richmond Law Review

Virginia remains one of five states that refuse to adopt strict products liability. To date, the Supreme Court of Virginia has declined to follow the path Justice Traynor set out nearly a century ago, as its recent decisions confirm its resistance to strict liability. However, given the change in control of the General Assembly following the elections of 2017 and 2019, the General Assembly is in new hands and may remain that way for some time. This new legislative majority, among its plans for new policies, may soon consider establishing strict products liability by statute. In doing so, Virginia would …

Juvenile Justice, Valerie Slater

University of Richmond Law Review

This Article serves as a review of recent juvenile justice law and legislative trends in Virginia. This Article will review both codified changes and relevant proposed legislation that did not pass the Legislature to more fully identify trends in juvenile justice. While this Article does not capture every proposed or codified change to Virginia juvenile justice law, it does identify and present the most significant changes and trends over the last two legislative sessions to the laws governing the entrance of youth into the criminal legal system, the treatment of Virginia’s youth directly involved in the criminal legal system, and …

Trafficked: The British Museum’S Role In The Illicit Art Trade, Katelyn Goetten

Cardozo International & Comparative Law Review (CICLR) Blog

Museums in the United States and around the world deal in the legal art trade. Private collectors and organizations loan items for museums to show in galleries, museums purchase items from collectors, or art is donated to draw visitors and gain press attention. These are all common practices that boost institutions' popularity and crowd attendance. However, some cultural institutions have been accused of obtaining items illegally off the black market. Scandals are broadcasted throughout the world, accusing museums of displaying artifacts that do not belong to them. For example, the British Museum in London is has recently come under fire …

The Next Step For Players At Academic Institutions: Employees Status And Collective Bargaining, Daniel Wachenfeld

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

Players at academic institutions have found themselves on a winning streak lately. The flurry of athlete-friendly developments in the world of college athletics dates back to September 30, 2019, when the California Legislature passed a bill prohibiting schools from punishing athletes who accept endorsement money while in college. The National Collegiate Athletic Association (NCAA) labeled this legislation an existential threat to college athletics when it was introduced months earlier. Not long after, Florida passed its own law allowing college athletes to profit off of their name, image, and likeness (NIL). On June 21, 2021, the Supreme Court weighed in on …

Gdpr, Pipl & Lgpd: Privacy Regulations & Policies Across The Globe, Raymond H. Geistel

Cybersecurity Undergraduate Research Showcase

Several privacy laws around the world are adopting similar regulations to the GPDR; this has effects on privacy policies of companies providing services in across multiple countries & continents. While these regulations share many attributes, their differing requirements can make things difficult for companies regarding said policies. Automation could be a potential solution to both analyze and compare regulations from different nations & international organizations, analyze and monitor privacy policy adherence to said regulations.

Ndls Communicator: Week Of 11.01.21, Notre Dame Law School

NDLS Communicator

The Latest News

• In memoriam: Notre Dame Law School dean emeritus Rev. David T. Link
• 2021 All-Faculty Team: Veronica Root Martinez
• Notre Dame Law School Exoneration Justice Clinic Video
• Patrick Corrigan quoted in Yahoo Finance
• Mary Ellen O'Connell to give Sanremo Lecture on International Humanitarian Law
• Nicole Garnett writes for National Review about Justice Thomas
• The Key Precedent in United States v. Texas
• Emily Bremer writes for Yale Journal on Regulations
• Sam Bray and Paul Miller wrote, "Getting into Equity," forthcoming in the Notre Dame Law Review.
• Cambridge University Press publishes case note by Diane Desierto
• Mark Telloyan and two …

Limits Of The Rule Of Law: Negotiating Afghan "Traditional" Law In The International Civil Trials In The Czech Republic, Tomas Ledvinka, James M. Donovan

Vanderbilt Journal of Transnational Law

Drawing on ethnographic research of judicial cases in the Czech Republic which involve the law in migrants' countries of origin, this Article outlines how multiple strategies handle encounters with the legal-cultural differences of Afghanistan in order to neutralize what may be called the "alterity" of law. The Article suggests that far from being analytical tools, concepts such as "context," "culture," and "customary" are strategically used by courts to neutralize unsettling aspects of foreign Afghan legalities. Further, it applies Leopold Pospisil's ethnological concept of legal authority as a vehicle for reinterpreting the contextual differentiation of Afghan "traditional" law as an alternative …

The Status Of State And Nonstate Actors In Postwar Hostilities: Restoring The Rule Of Law To Us Targeted Killing Operations, Claire Finkelstein

Vanderbilt Journal of Transnational Law

With the killing of Iranian general Qassim Soleimani, the United States crossed a new frontier in the use of extrajudicial lethal operations outside of armed conflict. As a state actor, Soleimani once would have been entirely off-limits as a target outside the context of a formal armed conflict between the United States and Iran. The Trump administration's choice to conduct a one-off strike on a state military leader indicates that conflicts among state adversaries are increasingly fought using the hybridized tools of the war on terror. This Article will argue that the increasing use of such techniques and the perceived …

A Tribe Divided: The Threat Of The Loss Of Tribal Autonomy And Culture Facing Transnational Tribes On The Northern And Southern Borders Of The United States, Jacob Moeller

Vanderbilt Journal of Transnational Law

Indigenous peoples in the northern and southwestern regions of the United States face challenges to the preservation of their cultures, economies, governments, and family relations as a result of the international borders that have bisected their traditional lands. While there is a history of treatymaking and governmental policy attempting to address these issues, the lack of an effective solution and concrete. border policy for tribe members in these regions leaves them without recourse. Some scholars suggest universal US citizenship for tribe members, others suggest tribe-specific legislation, and some even suggest that the tribes pursue litigation against the United States to …

Breaking The Status Quo Of International Design Law: How The United States' Design Law Frustrates The Purpose Of The Hague Agreement, Nicholas P. Mack

Vanderbilt Journal of Transnational Law

This Note explores how the United States' substantive law frustrates the purpose of an international procedural agreement. The Hague Agreement Concerning the International Registration of Industrial Designs revolutionized the process of applying for industrial design protections on a global scale. The Hague Agreement's purpose is to support easily and efficiently acquired industrial design protections in contracting parties to the agreement by simplifying procedures for obtaining protection. The United States-a country without a coherent and dedicated industrial design law-joined this agreement with effect in 2015, allowing designers around the world to easily apply for industrial design protections in the United States. …

Keeping Current - Probate, Claire Hargrove, Paula Moore, William P. Lapiana, Jake W. Villanueva

Articles & Chapters

No abstract provided.

A Pioneer Of The Law & Society Movement: One Eyewitness’S Reflections, Jayanth K. Krishnan

Articles by Maurer Faculty

There is arguably no more seminal a figure in the field of law and society than Professor Marc Galanter. That a Special Issue featuring dedications to several leading academic lights would be hosted by the University of Chicago Law Review is especially significant in terms of Marc’s inclusion because Chicago is where Marc came of age as a student.

Professor Richard Abel, some years back, chronicled Marc’s educational journey in Hyde Park. As Abel tells it—and as Marc has told me over the years—after finishing his B.A. and while continuing to work on his master’s degree from Chicago, Marc enrolled …

Menstruation Discrimination And The Problem Of Shadow Precedents, Deborah Widiss

Articles by Maurer Faculty

A burgeoning menstrual justice movement calls attention to menstruation-related discrimination in workplaces, schools, prisons, and many other aspects of life. In recent years, a few courts have suggested such discrimination could violate Title VII, the federal law that prohibits sex discrimination in employment. Their analysis focuses on the Pregnancy Discrimination Act (PDA), an amendment to Title VII passed to override a Supreme Court case that had held pregnancy discrimination was not sex discrimination.

This essay, written for a symposium at Columbia Law School, applies my earlier research on the statutory interpretation of Congressional overrides to highlight two potential challenges this …

Fiduciary Duties And Corporate Climate Responsibility., Cynthia A. Williams

Articles by Maurer Faculty

I remain intrigued with the benefits as well as the costs of agency relationships and in particular the possible power of fiduciary duties to be harnessed to advance the firm's social responsibilities. That is, can internal mechanisms of the firm, the private law (from a European perspective) fiduciary duties of agents, be used to advance external public law goals? Instead of outward standards of responsibility being brought into the firm through external mechanisms (i.e., voluntary standards development and third-party assurance), could the internal standards of agents' responsibilities to the firm, their fiduciary duties, be used to extend responsible action beyond …

Team Production Revisited, William Wilson Bratton

Articles

This Article reconsiders Margaret Blair and Lynn Stout's team production model of corporate law, offering a favorable evaluation. The model explains both the legal corporate entity and corporate governance institutions in microeconomic terms as the means to the end of encouraging investment, situating corporations within markets and subject to market constraints but simultaneously insisting that productive success requires that corporations remain independent of markets. The model also integrates the inherited framework of corporate law into an economically derived model of production, constructing a microeconomic description of large enterprises firmly rooted in corporate doctrine but neither focused on nor limited by …

Making Money From Cryptocurrency? The Taxman May Call On You, Hern Kuan Liu, Vincent Ooi

Research Collection Yong Pung How School Of Law

Miners, forgers, hobbyists, traders – different rules apply. Just don’t assume crypto investment is somehow immune to taxation.

Covid-19 And Its Impact(S) On Innovation, Clark Asay, Stephanie Plamondon Bair

Utah Law Review

In previous work, we explored how certain characteristics of adversity are often more conducive to innovation than others. In this Article, prepared as part of the Lee E. Teitelbaum Utah Law Review Symposium—The Law & Ethics of Medical Research, we review some of that work and apply it specifically to the COVID-19 context. We conclude by assessing certain policy implications in light of how the COVID-19 pandemic has both spurred and hindered innovation.