Law Commons^™

The 'Impractical And Anomalous' Consequences Of Territorial Inequity, Jayanth K. Krishnan

Articles by Maurer Faculty

Located in the South Pacific Ocean, American Samoa is one of five populated “unincorporated territories” of the United States. It is unique, though, as those born there are not recognized as American citizens at birth and instead are deemed “noncitizen U.S. nationals.” They enjoy some, but not all, constitutional protections. Two federal appellate courts—the D.C. Circuit (in 2015) and the Tenth Circuit (in 2021)—have ruled that this classification does not violate the Fourteenth Amendment’s Citizenship Clause. Both courts have stated that it would be “impractical” and “anomalous” to extend birthright citizenship to the American Samoan community.

Drawing upon a powerful …

The Immigrant Struggle For Effective Counsel: An Empirical Assessment, Jayanth K. Krishnan

Articles by Maurer Faculty

Recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. § 1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation there either.

One question which flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel petitions, which in the immigration law context are rooted in the Due Process Clause. …

Weathering State And Local Budget Storms: Fiscal Federalism With An Uncooperative Congress, David Gamage, Darien Shanske, Gladriel Shobe, Adam Thimmesch

Articles by Maurer Faculty

Throughout most of 2020, state and local governments faced severe budget crises as a result of the COVID-19 pandemic. Increased demand for state welfare services and rising state expenses related to controlling the spread of COVID-19 stretched state and local budgets to their breaking points. At the same time, layoffs, business closures, and social distancing measures reduced states’ primary sources of tax revenues. The traditional practice of American fiscal federalism is for the federal government to step in to provide aid during a national emergency of this magnitude, because state and local governments lack the federal government’s monetary and fiscal …

Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There Is The Possible Application Of Bostock V. Clayton County, Kevin D. Brown, Lalit Khandare, Annapurna Waughray, Kenneth G. Dau-Schmidt, Theodore M. Shaw

Articles by Maurer Faculty

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …

Facts Versus Discretion: The Debate Over Immigration Adjudication, Jayanth K. Krishnan

Articles by Maurer Faculty

Justice Amy Coney Barrett recently issued her first majority-led immigration opinion in Patel v. Garland (2022). As background, some immigrants looking to avoid deportation may apply for what is called “discretionary relief’ (e.g., asylum or adjustment of status) initially in an immigration court and then, if they lose, at the Board of Immigration Appeals (BIA). These immigration forums fall under the Department of Justice. Prior to Patel, immigrants who lost at the BIA could then ask a federal circuit court to review the factual findings of their case. Now, after Justice Barrett’s decision, Article III review is no longer available …

Four Perspectives On A Sustainable Future In Nosara, Costa Rica, Greg Munno, Álvaro Salas Castro, Tina Nabatchi, Christian M. Freitag

Articles by Maurer Faculty

The town of Nosara on Costa Rica’s Nicoya peninsula is home to a vibrant community of diverse residents and is adjacent to an important turtle nesting site. However, tensions between lifelong residents, more recent transplants, visitors, and developers have increased as more of the world discovers this once-isolated haven. Climate change, income inequality, and alienation from a distant government apparatus have further complicated effective land-use planning and fractured social cohesion. Using a mixed-method approach of in-depth interviews (n = 67), Q methodology (n = 79), and public deliberation (n = 88), we explored residents’ priorities for the future of their …

On Proper[Ty] Apologies And Resilience Gaps, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

In-Person Or Via Technology?: Drawing On Psychology To Choose And Design Dispute Resolution Processes, Jean R. Sternlight, Jennifer K. Robbennolt

Scholarly Works

Covid-19 fostered a remote technology boom in the world of dispute resolution. Pre-pandemic, adoption of technical innovation in dispute resolution was slow moving. Some attorneys, courts, arbitrators, mediators and others did use technology, including telephone, e-mail, text, or videoconferences, or more ambitious online dispute resolution (ODR). But, to the chagrin of technology advocates, many conducted most dispute resolution largely in-person. The pandemic effectively put the emerging technological efforts on steroids. Even the most technologically challenged quickly began to replace in-person dispute resolution with videoconferencing, texting, and other technology. Courts throughout the world canceled all or most in-person trials, hearings, conferences, …

Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

The past year proved to be a busy period for the regulation of electronic payments and financial services. In this year’s survey, we discuss rulemakings, enforcement actions, and other litigation that has significantly impacted the law governing payments and financial services. Part II addresses the ongoing fight between federal and state authorities over which should properly regulate Fin- Tech entities and describes some new steps the Office of the Comptroller of the Currency (“OCC”) has taken to assert its authority in this area. Part III details an enforcement action that California regulators took against a FinTech company they determined had …

Girls, Assaulted, India Thusi

Articles by Maurer Faculty

Girls who are incarcerated share a common trait: They have often experienced multiple forms of sexual assault, at the hands of those close to them and at the hands of the state. The #MeToo movement has exposed how powerful people and institutions have facilitated pervasive sexual violence. However, there has been little attention paid to the ways that incarceration perpetuates sexual exploitation. This Article focuses on incarcerated girls and argues that the state routinely sexually assaults girls by mandating invasive, nonconsensual searches. Unwanted touching and display of private parts are common features of life before and after incarceration—from the sexual …

The Long Shadow Of United States V. Rosenberg: A Biographical Perspective On The Hon. Irving Robert Kaufman, Rodger D. Citron

Scholarly Works

No abstract provided.

A Scientific Analysis Of The Three-Step Test: Through The Lenses Of International And Australian Laws, Nikos Koutras

Research outputs 2022 to 2026

The paper examines the open access movement and its principles concerning creative outputs and related access opportunities, considering copyright protection. The international and ongoing integration of open access practise has brought about a reconsideration of foundational principles of copyright law. The paper's discussion considers the three-step test legal edifice, which is deeply rooted in international copyright law, and argues that its importance and application is of paramount importance regarding potential revisions of copyright law that would need to introduce open access provisions.

Suffering To Save Lives: Torture, Cruelty, And Moral Disengagement In Australia’S Offshore Detention Centres, Jamal Barnes

Research outputs 2022 to 2026

Since Australia re-established offshore processing on Manus Island and Nauru in 2012, there have been ongoing reports that asylum seekers and refugees are being subjected to torture and cruel, inhuman or degrading treatment or punishment (CIDT). People in detention have endured indefinite detention, inadequate provision of health care, and sexual, physical, and mental harm as the government attempts to ‘stop the boats’ and prevent deaths at sea. How can Australia continue to violate the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, while at the same time, promote its offshore detention policies worldwide? This article …

The Civil Right To Belong: A Case Study On Immigrant Integration Of Muslim Students In Educational Institutions, Mamoona H. Siddiqui

Theses and Dissertations

Constitutional equal protection values serve as social integration policies for new Americans and generations that follow. They promise equal opportunity, fair treatment, protection from unlawful discrimination, and freedom to preserve cultural identities in their new communities. However, in times of national security crises and political polarization, the disjuncture in the way equal protection doctrines have been historically implemented often reflect deep-rooted inequities that impact underrepresented communities. American Muslims are one such community in which members have experienced anti-Muslim and anti-immigrant sentiment particularly after 9/11 and political polarization on immigration and civil rights policies. The study explores the equal protection doctrine …

Charting A Course Past Spokeo And Transunion, Elizabeth Earle Beske

Scholarly Articles in Law Reviews & Journals

The Supreme Court’s 5-4 decision in TransUnion LLC v. Ramirez has dramatically upended standing doctrine, apparently out of concern that any other move will invite congressional manipulation and give rise to even greater evils. The Court has done so at considerable cost. TransUnion’s concreteness inquiry leaves lower courts at sea, inviting them to substitute their own policy preferences for legislative will in frustration of the separation of powers. It curtails the deferential review of economic legislation the Court has employed since the New Deal. It circumscribes Congress’s ability to act proactively to respond to novel challenges. Bearing these costs, we …

Litigating The Separation Of Powers, Elizabeth Earle Beske

Scholarly Articles in Law Reviews & Journals

The Roberts Court, in marked contrast to its predecessor, has embraced the role of the federal judiciary in resolving clashes between coordinate branches, but it has done so without adequately grappling with Rehnquist-era justiciability hurdles. Constrained by Raines v. Byrd, the 1997 case in which Chief Justice Rehnquist purported in broad strokes to shut down institutional standing, the Roberts Court has relied primarily on individual litigants to raise separation-of-powers claims as defenses in enforcement proceedings. Primary reliance on individual litigants is problematic. First, it is difficult to square with conventional conceptions of injury in fact. Individual litigants have traditionally …

Litigating The Separation Of Powers, Elizabeth Earle Beske

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Why The U.S. Founders' Conceptions Of Human Agency Matter Today: The Example Of Senate Malapportionment, Susan D. Carle

Scholarly Articles in Law Reviews & Journals

This Article links the U.S. founders’ ideas about “human agency”—i.e., their understandings of the link between the individual and the social and political structure—with how they designed the Constitution and, in particular, how they designed the U.S. Senate as a non-majoritarian institution. I mine primary sources to show that although the founders struggled with many dis- agreements in drafting the Constitution, they shared an amalgam of historically received ideas about human agency derived from both liberal and civic republican traditions. I identify five such ideas and then parse which of them continue to pertain today. I argue that although contemporary …

Teaching About Justice By Teaching With Justice: Global Perspectives On Clinical Legal Education And Rebellious Lawyering, Olinda Moyd, Catherine F. Klein, Richard Roe, Mizanur Rahman, Dipika Jain, Abhayraj Naik, Natalia Martinuzzi Castilho, Taysa Schiocchet, Sunday Kenechukwu Agwu, Bianca Sukrow, Christoph Konig

Scholarly Articles in Law Reviews & Journals

The inspiration for this Article was the 2021 Conference of the Global Alliance for Justice Education (GAJE), a biannual gathering since 1999 of law educators and others interested in justice education from around the world. Due to the ongoing COVID-19 pandemic, the conference was conducted virtually. During the three-day conference, over 450 participants from 45 countries gathered to participate in the sharing of workshops and presentations, ranging from discussions of papers to five-minute "lightning talks." In addition, there were virtual spaces for social meetings with new and old friends. The authors attended as many of the sessions as possible in …

What Inclusive Instructors Do Book Review, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

Inclusive teaching is not just an aspirational goal. It is our ethical obligation to students. Our students can spend years dreaming of attending law school and working to achieve that goal. They can spend decades paying off the costs of attendance. Law faculty owe every student of all backgrounds, races, religions, genders, learning abilities, ages, socioeconomic statuses, immigration statuses, and military statuses an environment in which they feel like they belong and can thrive. WHAT INCLUSIVE INSTRUCTORS Do powerfully reminds us that inclusive teaching is not identified by obscenity law's "I know it when I see it" murkiness. Rather, it …

Guardianships Vs. Special Needs Trusts, And Other Protective Arrangements: Ensuring Judicial Accountability And Beneficiary Autonomy, Robert Dinerstein, Frank A. Johns, Patricia E. Kefalas Dudek

Scholarly Articles in Law Reviews & Journals

This article focuses on rising tensions and conflicts (perceived and actual) occurring among guardianships, special needs trusts (SNT) and other protective arrangements. The authors focus on three distinctly different applications, guiding participants through 1) Guardianship versus an SNT; 2) Supported decision-making versus an SNT; and 3) Guardianship versus other less restrictive options, including, but not limited to, an Achieving a Better Life Experience (ABLE) account, a representative payee, and a pooled SNT.

In Memoriam Professor Emeritus Egon Guttmon, Claudio Grossman, Walter A. Effross, David Snyder

Scholarly Articles in Law Reviews & Journals

When I think about Egon, the first thing that comes to mind are the memories when we met in 1982 at the Washington College of Law (WCL), where he was working as a full-time faculty member. I was coming at that time from my sabbatical in the Netherlands and as a Fulbright Scholar. From the beginning, Egon sought to provide me with a welcoming environment. He approached me, finding shared backgrounds and interests, which is always greatly appreciated, particularly when you are in a new institution. Egon noted that we both had an intellectual interest in international law. In addition …

Academy On Human Rights And Humanitarian Law Articles On Human Rights And States Of Emergency: Unexpected Crisis And New Challenges: Prologue, Claudio Grossman, Robert K. Goldman

Scholarly Articles in Law Reviews & Journals

We are pleased to write this prologue for the special issue of the American UniversityInternationalLaw Review featuring the winning papers from the 2021 Human Rights Essay Award, sponsored by the Academy on Human Rights and Humanitarian Law of American University Washington College of Law.

Founding The Marshall-Brennan Constitutional Literacy Project, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

There are many different approaches to civic literacy, reflecting the dedication of so many individuals and organizations and their creativity committed to the task. For the Marshall-Brennan Constitutional Literacy Project, the approach has been to have law students educate young people about their rights through Supreme Court cases and moot court arguments.

For Grand Juries, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

In his provocative essay, Against Prosecutors, Professor Bennett Capers contributed to a now-robust conversation that was on the fringes just a decade ago. Although it remains to be seen whether the pendulum will swing away from the engagement with abolitionist theory that intensified in the wake of the May 2020 murder of George Floyd, a number of serious thinkers have staked out ground questioning the dogma that organs of the criminal legal system are inevitable.

Refusing to be burdened by conventions of the past, Capers trains his sights on another criminal justice institution—public prosecution. Although prosecutors long have been criticized …

Citizen's Arrest And Race, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and …

Platform-Enabled Crimes: Pluralizing Accountability When Social Media Companies Enable Perpetrators To Commit Atrocities, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Online intermediaries are omnipresent. Each day across the globe, the corporations running these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes. Online intermediaries, however, are almost never held to account for their complicity in the resulting harms. This Article introduces the concept of platformenabled crimes into the legal literature to highlight the ways in which the ordinary business activities of online intermediaries enable the commission of crime. It then focuses on a subset of platform-enabled crimes—those in which a social media …

[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro

Scholarly Articles in Law Reviews & Journals

Current unprecedented levels of secrecy in civil discovery create significant negative externalities by preventing our adversary system from measuring up to the broad public goals that justify it. First, excessive discovery secrecy undermines the courts and the public’s ability to correct distortions of the truth-seeking function of the adversary system caused by excessive partisanship and confirmation bias. Second, it weakens the adversary system’s promotion of liberal democratic values, such as transparency and self-government. Third, it threatens the adversary system’s role in upholding human dignity, understood either as respect or status. To correct the negative externalities caused by excessive discovery secrecy, …

The Invasion Of Ukraine: A Gross Violation Of International Law, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

In recent weeks, humanity has witnessed a war in Europe as a result of Russia’s unjustified invasion of Ukraine.

Academy On Human Rights And Humanitarian Law Articles On Human Rights And States Of Emergency: Unexpected Crisis And New Challenges: Introduction, Claudia Martin, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

We are delighted to present this year's special issue of the American UniversityInternationalLaw Review and the Academy on Human Rights and Humanitarian Law, which includes two of the best essays in English and in Spanish recognized in the 2021 Human Rights Essay Award competition. It is satisfying to think that this competition allowed a number of participants an opportunity to expound their thoughts on so many important topics, regarding so many areas of the world. We hope these participants are able to use their articles as mechanisms for change.