Law Commons^™

Dobbs In A Technologized World: Implications For Us Data Privacy, Jheel Gosain, Jason D. Keune, Michael S. Sinha

All Faculty Scholarship

In June of 2022, the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning 50 years of precedent by eliminating the federal constitutional right to abortion care established by the Court’s 1973 decision in Roe v. Wade. The Dobbs decision leaves the decision about abortion services in the hands of the states, which created an immediately variegated checkerboard of access to women’s healthcare across the country. This in turn laid bare a profusion of privacy issues that emanate from our technologized world. We review these privacy issues, including healthcare data, financial data, website tracking and …

The Psychology Of Science Denialism And Lessons For Public Health Authorities, Brenna Moreno, Molly J. Walker Wilson

All Faculty Scholarship

As it wreaked tragedy on the world, the outbreak of COVID-19 helped expose a pandemic of a different kind, one steeped in distrust and contrarianism. This movement, termed science denialism, has been lurking and undermining public health efforts for decades. Specifically, it is “the employment of rhetorical arguments to give the appearance of legitimate debate where there is none, an approach that has the ultimate goal of rejecting a proposition on which a scientific consensus exists.” Unlike skepticism, which is “doubt as to the truth of something” and works to progress both science and society, denialism is characterized by individuals’ …

Re-Regulating Dietary Supplements, Jessie L. Bekker, Alex Flores, Michael S. Sinha

All Faculty Scholarship

In 1994, Congress introduced the Dietary Supplement Health and Education Act (DSHEA) to create a regulatory framework for the dietary supplement industry. Since the passage of DSHEA nearly thirty years ago, U.S. adults have steadily increased their annual consumption of dietary supplements. The once $4 billion industry comprising approximately 4,000 products has swelled to a $40 billion trade with anywhere from 50,000 to 80,000 dietary supplements available over-the-counter.

Despite the increased market size of dietary supplements, the Food and Drug Administration’s (FDA) pre-market authority to regulate the introduction of dietary supplements into the stream of commerce has remained subdued. Under …

Brief Amici Curiae Legal Scholars Of Sex And Gender In Support Of Plaintiff-Appellant, Kyle Velte, Ezra Young, Jeremiah A. Ho, M. Dru Levasseur, Nancy C. Marcus, Dara E. Purvis, Eliot Tracz, Ann E. Tweedy

All Faculty Scholarship

This amicus brief was filed in Griffith v. El Paso County, Colorado, case no. 23-1135 (10th Circuit) in support of appellant Darlene Griffith. Amici curiae are legal scholars of sex and gender. They offer expertise in their personal capacities to assist the Court of Appeals for the Tenth Circuit in assessing whether the El Paso County Sheriff officials violated Ms. Griffith’s Fourteenth Amendment right to equal protection when they refused to house Ms. Griffith, a transgender woman, in the women's unit of the El Paso County Jail as a pretrial detainee.

Anti-Carceral Theory And Immigration: A View From Two Law School Clinics, Sabrina Balgamwalla, Lauren Bartlett

All Faculty Scholarship

This article explores clinical teaching philosophies related to anti-carceral theory and provides examples of how to support student learning in clinics serving immigrant clients. Anti-carceral theory in this context is used to refer to an approach that resists criminalization and incarceration within law, drawing on abolitionism, intersectional and anti-carceral feminism, and decolonization.

The anti-carceral lens provides framing and language to name the dynamics of social exclusion and discrimination inherent in immigration law. It also allows us to unpack immigration regulation as a series of choices made within the larger context of law enforcement and its systems of surveillance, policing, and …

Protecting A Real Or Imagined Past: Justice Samuel Alito And The First Amendment, Derigan Silver, Dan V. Kozlowski

All Faculty Scholarship

This article examines the First Amendment jurisprudence of Justice Samuel Alito. In this article, we argue that the principles behind his decision-making are not always necessarily traditional methods of constitutional analysis, and litigants should understand the frames and lenses Alito uses to make decisions when making their arguments to him. The article concludes with a discussion of Alito’s overall approach to the law and some thoughts on how he is attempting to reshape the First Amendment. We write that, above all, it is clear he is seeking to protect a real or imagined past that, in his mind, is under …

Rightsizing Local Legislatures, Brenner M. Fissell

Faculty Publications

Local councils, boards, and commissions have all the lawmaking powers of a legislature—including the power to criminalize conduct—but they are far too small to deserve them. With an average size of only four members, local legislatures depart from the norm observable at all other levels of government. Only in the past few years have legal scholars turned their attention to the institutional design of these bodies, but this developing literature has yet to address their most striking feature—their small size.

This Article takes up this project. It claims that local microlegislatures are comparatively unrepresentative and undemocratic, and that their size …

Nonconsensual Family Obligations, Emily Stolzenberg

Faculty Publications

Even as the pandemic has both highlighted and compounded the challenges many U.S. families face in meeting their members’ basic needs, efforts to expand public subsidies for caretaking have gained little traction. Scholars have identified many historical and practical reasons for Americans’ entrenched skepticism toward the welfare state. Ideas matter, too, and this Article uncovers and critiques one that works to limit collective financial responsibility for families: the conviction that family support obligations must be legitimated through consent.

In family law, as in liberal political theory, consent works to reconcile state regulation with individual freedom. But because consent is a …

Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw

Articles

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics-electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants-measured by the fixed terms of state and federal executive officials-may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts-measured by the fixed terms of state judges-creates openings for strategic behavior among litigants (both public …

Are We Closing The Gap? Reforms To Legal Capacity In Latin America In Light Of The Convention On The Rights Of Persons With Disabilities, Pablo Marshall, Paula Vasquez, Violeta Puran, Loreto Godoy

Vanderbilt Journal of Transnational Law

This Article examines the the reforms developed in Latin America over the last decade that have adapted domestic legislation regarding legal capacity toward the support model of the Convention on the Rights of Persons with Disabilities (CRPD). Our examination of the reforms in Costa Rica, Argentina, Peru, and Colombia focuses on the adoption process of the reforms, the main characteristics of the implemented support model, some transitional and implementation aspects of the reforms, and a critical examination of their relationship to the CRPD. Finally, this Article explores some weaknesses related to the reforms' implementation processes.

Ecolabeling In The Multinational Mining Industry: A Method Toward Environmental Sustainability, Regina Raze

Vanderbilt Journal of Transnational Law

The international mining industry's environmental impact is not new. However, with the rise of international scrutiny on climate change and global warming, what the industry can do to lessen its impact is changing. Consumers are demanding stronger commitments to the environment from producers, and producers are therefore requiring stronger commitments from their suppliers. One such commitment the extractive industry can adhere to is implementing an ecolabeling regime for open pit mines mining critical minerals for consumer products. Ecolabels signal to customers that the environment is a priority for companies. However, with an ecolabel comes trade implications and concerns about accuracy. …

Notes On Continental Constitutional Identities, Benjamen F. Gussen

Vanderbilt Journal of Transnational Law

Geo-constitutional analysis examines the reciprocal effect of geography on constitutions. Within this analysis, a continental constitutional identity focuses on the intersection between institutional geographies and institutional identities, where constitutions are understood as meta-institutions. In some constitutions, belonging to a continent is part of the national identity, while other constitutions only signal a non-geographic, usually an ethnic, identity. The US Constitution is an example of the former. The quintessential example of a non-geographic constitution is the Constitution of the Russian Federation. A similar disregard of continental identities can be found in Israel and the Arab League countries east of the Sinai …

Strategic Litigation In Wartime: Judging The Russian Invasion Of Ukraine Through The Genocide Convention, Michael Ramsden

Vanderbilt Journal of Transnational Law

Ukraine's recent initiation of legal proceedings against Russia under the Genocide Convention is a prominent example of what has been termed "strategic litigation," denoting the bringing of a case with a goal to produce a wider impact beyond the courtroom. In Allegations of Genocide (Ukraine v. Russia), Ukraine sought a series of declarations from the International Court of Justice (ICJ) that Russia's decision to use force in Ukraine, and its ongoing operation, was unlawful, insofar as such a decision rested on the prevention of genocide. Given that the ICJ does not have the jurisdiction to determine whether Russia has committed …

Closing The Cracks And The Courts: A Comparative Analysis Of Debt Collection Regulation In The United Kingdom And The United States, Tasia S. Harris

Vanderbilt Journal of Transnational Law

Consumers who borrow from a lender today cannot count on dealing with that same lender later if they default on their debt. In today's world of debt collection, the lender will outsource collection to a thirdparty debt collector, or those consumers' defaulted debt will be bought and sold numerous times for pennies on the dollar until eventually a debt buyer decides to pursue payment. Either way, under the current US debt collection laws and regulations, both third-party debt collectors and debt buyers can act outside the scope of debt collection regulation in the United States, and many will take that …

Play On? An Evaluation Of Fifa's Legal Regime And Its Foundation In Alternative Dispute Resolution, Blaine Sanders

Vanderbilt Journal of Transnational Law

Few associate the Federation Internationale de Football Association, or FIFA, with its legal regime. Rather, and understandably so, sports fans and commentators tend to focus on World Cups, corruption, or even the FIFA video game. Yet, FIFA's role in the sport of soccer extends well beyond what receives the most commercial attention. FIFA shoulders the burden of regulating soccer's member associations, national teams, clubs, players, and countless other personnel through its FIFA Statutes. This is a considerable undertaking, which FIFA achieves through its comprehensive system of alternative dispute resolution.

Soccer is now a global business, largely due to the economic …

Food And Drug Regulation: Statutory And Regulatory Supplement (2023), Adam I. Muchmore

Faculty Scholarship

This Statutory and Regulatory Supplement is intended for use with its companion casebook, Food and Drug Regulation: A Statutory Approach (2021). This is not a traditional statutory supplement. Instead, it contains selected, aggressively edited provisions of the Federal Food, Drug and Cosmetic Act (FFDCA), related statutes, and the Code of Federal Regulations. The Supplement includes all provisions assigned as reading in the casebook, as well as a few additional provisions that some professors may wish to cover. The excerpts are designed to be teachable rather than

Asian American Allyship, Victor C. Romero

Faculty Scholarship

George Floyd's tragic death not only sparked numerous nationwide protests decrying the continued violence against Black people, but also resurrected conversations around the complicity of Asian Americans in Black oppression. Just as officer Tou Thao, a Hmong American, stood idly by while a white officer stepped on Floyd's neck, many Asian Americans have taken positions that run contrary to policies that foster inclusion, or what may be termed "integrative egalitarianism" -- the idea that "governmental programs . . . designed to overcome arbitrary inequalities stemming from accidents of birth are a worthwhile investment in society's future."

Using the Floyd-Thao narrative …

Promoting Female Sporting Opportunities Without Title Ix: The Spanish Experience, Stephen Ross, Maria Josefa Garcia Cirac

Faculty Scholarship

This article compares the American approach to improving sporting opportunities for females – Title IX – with approaches taken by Spain. Because of the singular American dedication to elite interscholastic and intercollegiate sports, Title IX’s requirement of equal treatment requires that elite female athletes have equivalent opportunities to elite male athletes. The Spanish approach looks instead on the social benefits of athletics participation for boys, men, girls, and women.

Poverty Law: Brains Without Money: Poverty As Disabling, Emily R.D. Murphy

The Judges' Book

No abstract provided.

Prison Litigation: Doctrine And Animus In California’S Covid-19 Prison Litigation, Hadar Aviram

The Judges' Book

No abstract provided.

Civil Litigation: Optimism And Expenditures: The Effect On Settlements, Ben Depoorter

The Judges' Book

No abstract provided.

Laws Governing Restrictions On Charitable Gifts: The Consequences Of Codification, Nancy Mclaughlin

Utah Law Faculty Scholarship

Over the last two decades we have seen marked changes in the laws governing donor-imposed restrictions on charitable gifts. These changes have occurred primarily as a result of the adoption in many states of the Uniform Trust Code (the UTC) and the Uniform Prudent Management of Institutional Funds Act (UPMIFA). This Essay explains that codification in the UTC and UPMIFA of liberalized versions of cy pres and deviation, as well as other related changes to the common law, have had unintended negative consequences. Those negative consequences include a lack of coherence in the law, an elevation of form over substance …

How Victim Impact Statements Promote Justice: Evidence From The Content Of Statements Delivered In Larry Nassar's Sentencing, Paul Cassell, Edna Erez

Utah Law Faculty Scholarship

Whether crime victims should present victim impact statements (VISs) at sentencing remains a subject of controversy in the criminal justice literature. But relatively little is known about the content of VISs and how victims use them. This article provides a content analysis of the 168 VISs presented in a Michigan court sentencing of Larry Nassar, who pleaded guilty to decades of sexual abuse of young athletes while he was treating them for various sports injuries. Nassar committed similar crimes against each of his victims, allowing a robust research approach to answer questions about the content, motivations for, and benefits of …

Federalism And The Right To Travel: Medical Aid In Dying And Abortion, Leslie P. Francis, John Francis

Utah Law Faculty Scholarship

This article explores how rights to movement may limit state efforts to restrict abortions, either directly or indirectly. We use the language of “movement” to encompass short-term visits, longer-term residency changes, and the movement of goods or services across state lines. We prefer “movement” to “travel” or “tourism,” as this language risks trivializing the seriousness of what might be at stake. However, since “travel” is the term used in many U.S. court decisions and other discussions concerning the right,7 we use that term as relevant to these. The centerpiece of our defense is the relationship between freedom of movement and …

Creating A Transparent Methodology For Measuring Success Within A Continuum Of Conservation For The America The Beautiful Initiative, Jamie Pleune

Utah Law Faculty Scholarship

On January 27, 2021, the Joseph Biden Administration identified the national goal of conserving at least 30% of our lands and waters by 2030. With this order, the America the Beautiful Initiative (“ATB Initiative”) was born, and the United States joined many other nations in adopting the 30 x 30 conservation target. However, beneath the lofty aspiration lay ambiguity. The Administration has not defined the term “conservation” or explained how it will be measured. Without a clear definition or metric for measuring the outcome of conservation projects, the ATB Initiative will lose credibility. The Biden Administration should avoid this result …

Holding Enablers Of Child Sexual Abuse Accountable: The Case Of Jeremy Bell, Amos N. Guiora, Valeri Craigle, Aya Hibben, Henry F. Fradella

Utah Law Faculty Scholarship

In the United States, 1 in every 5 women and 1 in every 13 men report being sexually abused as a child. Of the child sexual abuse that occurs during the K-12 years, much of it is aided and abetted by those in positions of authority who look the other way when abuse is known or suspected. This article uses the novel approach of holding not just the perpetrators of child sexual abuse accountable for these crimes, but also those who enable their criminal acts by failing to report suspicious behaviors or witnessed accounts of abuse. No case in more …

Laboratories Of The Future: Tribes And Rights Of Nature, Elizabeth A. Kronk Warner, Jensen Lillquist

Utah Law Faculty Scholarship

From global challenges such as climate change and mass extinction, to local challenges such as toxic spills and undrinkable water, environmental degradation and the impairment of Earth systems are well documented. Yet, despite this reality, the U.S. federal government has done little in the last thirty years to provide a comprehensive solution to these profound environmental challenges; likewise, significant state action is lacking. In this vacuum, environmental legal advocates are looking for innovative environmental solutions to these challenges. Against this backdrop, rights of nature have increasingly gained traction as a possible legal tool to help protect the natural environment from …

Police Secrecy Exceptionalism, Christina Koningisor

Utah Law Faculty Scholarship

Every state has a set of transparency statutes that bind state and local governments. In theory, these statutes apply with equal force to every agency. Yet, in practice, law enforcement agencies enjoy a wide variety of unique secrecy protections denied to other government entities. Legislators write police-specific exemptions into public records laws. Judges develop procedural approaches that they apply exclusively to police and prosecutorial records. Police departments claim special secrecy protections from the bottom up.

This Article maps the legal infrastructure of police-records secrecy. It draws upon the text of the public records statutes in all fifty states, along with …

The Fall Of Fda Review, Daniel G. Aaron

Utah Law Faculty Scholarship

The U.S. Food and Drug Administration (FDA) is in crisis. FDA can hardly go a single day without an investigation, negative news story, or scholarly critique of the agency’s work. We have increasingly entrusted FDA—today, to the tune of 25% of the U.S. economy—with vetting the products we put in and on our bodies. But the array of problems facing the agency raises questions about whether it is equipped to succeed in the 21st century.

FDA’s core function is to oversee a special legal regime called “premarket review.” Congress has prohibited all marketing of certain types of products (like drugs) …

Why Stop Grazing The Climate Commons?, Brigham Daniels

Utah Law Faculty Scholarship

Many have argued that climate change is the textbook example of a tragedy of the commons. Assuming that is correct, to make headway on climate change, we would expect an enforceable agreement that provides for global collective action. The tragedy of the commons assumes that those who cut back when others do not are—to use the formal language of game theorists—suckers. So, the last thing we would expect is a surge of unilateral action. Contrary to theory, for the past decade, unilateral climate action has flourished among governments, businesses, other organizations, and individuals.

Is the number of climate suckers growing …