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2024

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Articles 10801 - 10830 of 10968

Full-Text Articles in Law

Roads Not Taken On Affirmative Action, Robert L. Tsai Jan 2024

Roads Not Taken On Affirmative Action, Robert L. Tsai

Faculty Scholarship

The law of affirmative action is a mess. In the short term, legal doctrine is constrained by path dependence, but its long-term future is murkier due to the many unforeseen contingencies. To regain a sense of the possible, this Article looks forward to the future of equality jurisprudence by looking backward. It recovers three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right …


Becoming Steve Bright, Robert L. Tsai Jan 2024

Becoming Steve Bright, Robert L. Tsai

Faculty Scholarship

This is a "Director's Cut" version of material that appears in condensed form in Robert L. Tsai, "Demand the Impossible: One Lawyer's Pursuit of Equal Justice for All" (Norton 2024). This essay to be published in Kentucky Law Journal was originally Chapter One. Drawing on archival documents and interviews, this essay delves into Stephen Bright's childhood growing up in Kentucky first in segregated Danville and later in Lexington once he emerges as a social activist and student body president. Special attention is paid to the Vietnam era protests that engulfed the University of Kentucky in the wake of the Kent …


The Chicago School’S Coasean Incoherence, Madison Condon Jan 2024

The Chicago School’S Coasean Incoherence, Madison Condon

Faculty Scholarship

This comment traces the divergent legal academic interpretations of the Chicago School's Ronald Coase and where their influence lands--revealing the law’s inconsistent conception of just what a corporation is or should be. By following Alyssa Battistoni's investigation of the origin of the "externality," we can see the late 60s and early 1970s as a pivotal era. People were waking up to the collective costs of industrialization and pushing back against corporate power. Against this democratic wave, the writings of the Chicago School worked to separate one human person into her different roles in the economy—consumer, worker, shareholder. They used the …


The War On Higher Education, Athena Mutua, Jonathan Feingold, Angela Harris, Emily Houh, Matthew Patrick Shaw, Frank Valdes Jan 2024

The War On Higher Education, Athena Mutua, Jonathan Feingold, Angela Harris, Emily Houh, Matthew Patrick Shaw, Frank Valdes

Faculty Scholarship

Academic freedom is under assault in the United States.1 Like the authoritarian populism rising across the globe, domestic attacks on individual professors and academic institutions buttress a broader and multifaceted campaign to undermine multiracial democracy and the institutions that sustain and safeguard it.2 The individuals and entities driving this antidemocratic movement have also targeted the electoral process; public education; the right to bodily autonomy; the civil rights and liberties of minoritized and marginalized communities; and freedom of speech and expression (increasingly marshaled against pro-Palestinian advocacy).3 Their openly stated goal is to delegitimize, defund, and “lay siege to” …


A Reasonable And Well-Reasoned Teaching Tool In Unreasonable Times, Jasmine Gonzales Rose Jan 2024

A Reasonable And Well-Reasoned Teaching Tool In Unreasonable Times, Jasmine Gonzales Rose

Faculty Scholarship

Devon Carbado’s most recent book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, is a must-read for anyone studying or concerned with criminal procedure or policing. Unlike some of Professor Carbado’s other work, the brilliance of this book is not necessarily new conceptualizations or theorizations—for which he is well known—but rather centers on accessible pedagogy. If you have studied race and policing, you are not likely to find a new case, study, or reference to scholarship in the book. But, you are going to understand anti-Black racism, policing, the Fourth Amendment, and their intersections better than you did …


Constitutionalizing Racism, Jonathan Feingold Jan 2024

Constitutionalizing Racism, Jonathan Feingold

Faculty Scholarship

Unreasonable is Devon Carbado at his best. Through accessible prose, carefully crafted hypotheticals, effective visualizations, and some cross-examination (for the reader), Carbado reintroduces us to the Fourth Amendment. In arresting detail, Unreasonable" exposes how the Supreme Court has turned the Fourth Amendment against “the people”—and specifically, against people racialized as Black. Part of the “Bill of Rights,” the Fourth Amendment was adopted to protect “the right of the people” from police overreach. Yet over the past half-century, the Supreme Court has systematically repositioned the Fourth Amendment as a weapon of police power. Or as Carbado argues: whereas many assume …


A Critical Perspective On Testimonial Injustice: Interrogating Witnesses' Credibility Excess In Criminal Trials, Jasmine Gonzales Rose Jan 2024

A Critical Perspective On Testimonial Injustice: Interrogating Witnesses' Credibility Excess In Criminal Trials, Jasmine Gonzales Rose

Faculty Scholarship

This paper offers a critical race theory perspective on the testimonial injustice experienced by racially minoritized criminal defendants in evidential practice. It builds off Federico Picinali’s paper, inter alia, substantiating how minoritized criminal defendants experience testimonial harm through credibility deficit, by exploring epistemic injustice to the same when prosecutorial witnesses receive identity-based credibility excess. It argues that in an adversarial criminal legal system, the testimonial injustice of credibility excess afforded racial in-group prosecutorial witnesses should be considered in tandem with the testimonial injustice of credibility deficit imposed on racial out-group defendants. Only then can the epistemic harm and resultant …


Confusion, Chaos, And Conflict In U.S. Law And Health Care After Dobbs, Nicole Huberfeld Jan 2024

Confusion, Chaos, And Conflict In U.S. Law And Health Care After Dobbs, Nicole Huberfeld

Faculty Scholarship

The U.S. Supreme Court’s Dobbs decision caused a proliferation of contradictory state laws and judicial decisions that are producing confusion for health care providers, which in turn limits access to care for all patients of reproductive age. This paper documents the rapidly changing legal landscape to investigate and contextualize the significance of these inter‑state conflicts and illustrate how inequities deepen when health care is left in the hands of state governments without national law to provide guardrails. Drawing on interdisciplinary scholarship, including legal, medical, and public health research, this essay considers how traditional federalism theory, which encourages sub‑government variation, does …


Hidden In Plain Sight: Redefining The Field Of National Security, Aziza Ahmed Jan 2024

Hidden In Plain Sight: Redefining The Field Of National Security, Aziza Ahmed

Faculty Scholarship

Throughout his campaign for presidency, Trump called for a ban on Muslims entering the United States. As President, he kept his word. Only days after he took office, the new administration released the first version of the Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States. The first Executive Order, however, did not say the word Muslim. Instead, it listed only Muslim-majority countries as necessary for restrictions on entry. The Executive Order also trafficked in stereotypes about Muslims, such as the need to ban people who engage in acts of "bigotry or hatred," including honor killings. …


Dci Submission To The Brazil Ministry Of Economy On The Economic And Competitive Aspects Of Digital Platforms, Pinar Akman, Stephen Dnes, Keith N. Hylton, Bowman Heiden, Constance Hiatt, Nicolas Petit, Jennifer Pullen, Annika Stohr Jan 2024

Dci Submission To The Brazil Ministry Of Economy On The Economic And Competitive Aspects Of Digital Platforms, Pinar Akman, Stephen Dnes, Keith N. Hylton, Bowman Heiden, Constance Hiatt, Nicolas Petit, Jennifer Pullen, Annika Stohr

Faculty Scholarship

In its comments on the ‘Economic and Competitive Aspects of Digital Platforms’ for the Brazil Ministry of Economy, the Dynamic Competition Initiative (DCI) suggests that law and policy initiatives towards digital platforms should (1) focus on curbing monopoly rents in bottleneck markets, and not undermine diversification efforts towards technological frontiers; (2) leverage the capability and flexibility of existing competition rules to address digital platforms anticompetitive conduct; and (3) properly credit the consumer welfare gains stemming from digital platforms ecosystems given the domestic economic context.


Confronting Structural Inequality In State Labor Law, Andrew Elmore Jan 2024

Confronting Structural Inequality In State Labor Law, Andrew Elmore

Faculty Scholarship

Low-wage workers face a structural problem in seeking to improve their work standards: While companies have substantial labor market power to impose work terms and conditions, workers require affirmative state support to collectively press their workplace demands. But their employers can mobilize private capital and property rights, often with judicial deference, to fend off state intrusions into the workplace. While the National Labor Relations Act aims to resolve this structural problem by protecting the rights of workers to join unions, strike, and collectively bargain, employers, backed by judicial support for managerial prerogatives and property rights, can often leverage NLRA weaknesses …


Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat Albrecht, Perry Moriearty Jan 2024

Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat Albrecht, Perry Moriearty

Faculty Scholarship

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …


Innovative Approaches To On-Demand Continuing Legal Education Ethics Training: A Case Study, Tigran W. Eldred, Molly J. Walker Wilson Jan 2024

Innovative Approaches To On-Demand Continuing Legal Education Ethics Training: A Case Study, Tigran W. Eldred, Molly J. Walker Wilson

Faculty Scholarship

In the ongoing discussions about continuing legal education (CLE), concerns have been raised about the quality of programming that is created and delivered. Critics have emphasized the weaknesses in mandatory programs, arguing that requiring annual training on topics such as legal ethics tends to fall short of stated goals.1 Too often, it is said, such programs fail to deliver content in an engaging manner that is likely to improve competence.2 The picture conjured up is of the bored lawyer, sitting in the back of a room flipping through a newspaper or some other distraction, as CLE instructors passively …


The Future Of The International Financial System: The Emerging Cbdc Network And Its Impact On Regulation, Heng Wang, Simin Gao Jan 2024

The Future Of The International Financial System: The Emerging Cbdc Network And Its Impact On Regulation, Heng Wang, Simin Gao

Research Collection Yong Pung How School Of Law

Central bank digital currency (CBDC) is a digital form of fiat currency. CBDC has the potential to be a game challenger in the international financial system, bringing increased complexities arising from technology and regulatory considerations, as well as generating greater currency competition. As more states begin exploring CBDC, the interactions between actors may lead to the emergence of a new CBDC network. What shape would the emerging CBDC network take? What would its network effects be? What would be the impact of the CBDC network on the international financial system, or the global financial network? This article explores these questions …


The Subsistence And Enforcement Of Copyright And Trademark Rights In The Metaverse, Cheng Lim Saw, Zheng Wen Samuel Chan Jan 2024

The Subsistence And Enforcement Of Copyright And Trademark Rights In The Metaverse, Cheng Lim Saw, Zheng Wen Samuel Chan

Research Collection Yong Pung How School Of Law

The metaverse has been widely hailed as a symbol of technological progress, presenting an immersive virtual realm that has the potential to transform how individuals engage in social and commercial activities. However, this conception of a borderless virtual world - which purportedly transcends the capabilities and reach of Web 2.0 - sits uncomfortably with the territorial nature of intellectual property rights. This chapter examines the complexities surrounding the subsistence and enforcement of intellectual property rights within the metaverse, with a specific focus on copyright and trademarks. Especial attention is paid to issues concerning choice of law and jurisdiction. Finally, the …


Similar Fact Evidence In Contractual Interpretation: Bhoomatidevi D/O Kishinchand Chugani Mrs Kavita Gope Mirwani V Nantakumar S/O V Ramachandra And Another [2023] Sghc 37, Calvin John Kaiwen Chirnside Jan 2024

Similar Fact Evidence In Contractual Interpretation: Bhoomatidevi D/O Kishinchand Chugani Mrs Kavita Gope Mirwani V Nantakumar S/O V Ramachandra And Another [2023] Sghc 37, Calvin John Kaiwen Chirnside

Research Collection Yong Pung How School Of Law

In the recent Singapore High Court case of Bhoomatidevi d/o Kishinchand Chugani Mrs Kavita Gope Mirwani v Nantakumar s/o v Ramachandra and another [2023] SGHC 37, the claimant argued, inter alia, that evidence of a prior contract between the first defendant and a third party should be admitted to prove that the defendant had entered into a loan agreement with her in his personal capacity. Justice Lee Seiu Kin dismissed her claim, applying s. 14 of the Evidence Act.


Climate-Related Shareholder Activism As Corporate Democracy: A Call To Reform “Acting In Concert” Rules, Dan W. Puchniak, Umakanth Varottil Jan 2024

Climate-Related Shareholder Activism As Corporate Democracy: A Call To Reform “Acting In Concert” Rules, Dan W. Puchniak, Umakanth Varottil

Research Collection Yong Pung How School Of Law

Climate change is an issue of global importance, which may turn out to be the issue of this century. Companies are at the core of both the problems and solutions for climate change. Given this reality, it is astounding that in virtually all jurisdictions in the world ‘acting in concert rules,’ which were designed decades ago to facilitate an efficient market for corporate control, effectively prevent shareholders who hold a majority of shares from democratically replacing boards of dirty companies. Our Article exposes this overlooked reality by undertaking the first in-depth comparative analysis of acting in concert rules with a …


Strategic Incentives For Adopting The Global Minimum Tax, Wei Cui Jan 2024

Strategic Incentives For Adopting The Global Minimum Tax, Wei Cui

All Faculty Publications

The USA, alongside many other nations, presently faces a vital policy choice: should it adopt the global minimum tax proposed by the Organization for Economic Cooperation and Development, purportedly to ensure basic levels of corporate taxation of large multinationals? I set out a framework for analyzing and predicting global minimum tax adoption by self-interested, national-income maximizing governments. Contrary to both popular and prior scholarly claims, the global minimum tax is incentive incompatible: countries from which multinationals originate will likely suffer deep losses; the tax’s purported enforcement tool, even read in an aggressive, controversial fashion, is ineffective. The global minimum tax …


Green Amendments Land Use And Transportation: What Could Go Wrong?, Michael Lewyn Jan 2024

Green Amendments Land Use And Transportation: What Could Go Wrong?, Michael Lewyn

Scholarly Works

Numerous states have amended their constitutions to include a green amendment (that is, an amendment providing that the state's citizens have a right to a healthy environment). Unfortunately, the vagueness of these amendments leaves an enormous amount of interpretative power to courts. This article examines how some courts have interpreted green amendments and how these interpretations risk the misuse of green amendments. Additionally, this article examines how such misuse may be avoided.


(In)Coherence In Employment Contract Law: Response To Professors Arnow-Richman And J.H. Verkerke, Meredith R. Miller Jan 2024

(In)Coherence In Employment Contract Law: Response To Professors Arnow-Richman And J.H. Verkerke, Meredith R. Miller

Scholarly Works

No abstract provided.


A Graphic Novel About Housing Policy, Michael Lewyn Jan 2024

A Graphic Novel About Housing Policy, Michael Lewyn

Scholarly Works

A review of Build, Baby, Build by Bryan Caplan


Interpreting Ethics Rules, Samuel J. Levine Jan 2024

Interpreting Ethics Rules, Samuel J. Levine

Scholarly Works

This Article explores the interpretation of ethics rules through the prism of two rules that have been the subject of ongoing controversy and contention: Rule 4.2, the “no-contact” rule, which prohibits a lawyer from communicating with a represented client absent the consent of that client’s lawyer, and Rule 8.4(g), which prohibits various forms of discrimination and harassment. Each of these rules provides a model for a wider examination of different interpretive approaches to ethics rules, grounded in different attitudes toward the features and functions of ethics codes. Specifically, the debate revolving around Rule 4.2 illustrates competing approaches to interpreting a …


Yes, Low-Income People Do Move, Michael Lewyn Jan 2024

Yes, Low-Income People Do Move, Michael Lewyn

Scholarly Works

One answer to the American housing affordability crisis is for municipalities to allow more housing to be built. Some argue, however, that new housing does not benefit people who seek to remain in their current residence, and that this group is disproportionately poor and/or minority. This article critiques the latter view, pointing out that lower-income households are actually more likely to move because of financial instability.


Do Americans Support More Housing?, Michael Lewyn Jan 2024

Do Americans Support More Housing?, Michael Lewyn

Scholarly Works

An analysis of opinion poll data on housing issues. The article finds that Americans generally believe that their community needs more housing of all types, but are more closely divided about whether such housing should be in their own neighborhoods. The article further finds that members of minority groups, lower-income Americans, and younger Americans are more pro-housing than older, affluent whites.


Merging The Bench, Bar, And Law Schools: How A Student Scholars Program Achieves Professional Identity Through Scholarly Writing, Mentorship, And Presentation, Joan Foley, Robin Boyle, Troy Kessler Jan 2024

Merging The Bench, Bar, And Law Schools: How A Student Scholars Program Achieves Professional Identity Through Scholarly Writing, Mentorship, And Presentation, Joan Foley, Robin Boyle, Troy Kessler

Scholarly Works

This Article describes an innovative co-curricular program, the Student Scholars Program, that provides law students with an opportunity to present their scholarly papers before the bench, bar, and law school community. The Program aids law schools in meeting accreditation standards, such as the ABA Standards 302 and 303. Standard 302 requires law schools to achieve specific learning outcomes. Standard 303(b)(3) requires law schools to provide "substantial opportunities" for students to develop a "professional identity." This program aids schools in achieving these standards. Furthermore, this program increases interaction between students and the legal profession by creating episodic mentoring opportunities. Launched in …


Incomplete Streets, Michael Lewyn Jan 2024

Incomplete Streets, Michael Lewyn

Scholarly Works

Over 1700 complete streets policies have been adopted by state and local government; these policies typically provide that streets shall be designed to benefit all users, not just motorists. This article analyzes some complete streets policies, and concludes that even above-average policies are often too vague and underfunded to significantly change the status quo. The article suggests a variety of reforms that might make complete streets policies more effective.


Interpreting Religious Doctrine: The Third Rail That Wags The Dog In Religion Clause Jurisprudence, Samuel J. Levine Jan 2024

Interpreting Religious Doctrine: The Third Rail That Wags The Dog In Religion Clause Jurisprudence, Samuel J. Levine

Scholarly Works

This Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely …


Negotiation Map For Teaching And Practice, Harold I. Abramson Jan 2024

Negotiation Map For Teaching And Practice, Harold I. Abramson

Scholarly Works

Negotiations can move at lightning speed in unpredictable directions, leaving you seconds to instinctively act. Your instinct can be informed by first-hand experiences, formal education, and mistakes. You can boost your instinct by using the negotiation map in this article for tracking where you are and guiding where you and others should go to reach a resolution. This three-part map solves a puzzle that has confounded me for a couple decades. It offers a succinct and practical schematic that has the capacity to incorporate much of the exponential growth in literature and learning since Getting to Yes was published in …


West Virginia V. Epa: Maybe A Big Deal, But Maybe Not, Michael Lewyn Jan 2024

West Virginia V. Epa: Maybe A Big Deal, But Maybe Not, Michael Lewyn

Scholarly Works

In West Virginia v. EPA, the Supreme Court ruled that the Environmental Protection Agency (EPA) lacked the statutory authority to implement the Clean Power Plan, a regulation designed to reduce coal-fired power plant emissions by encouraging the use of non-coal energy sources. The Court’s decision was primarily grounded in the "major questions doctrine," which asserts that courts may reject agency actions that involve significant and consequential powers not reasonably inferred from Congressional intent, even if a statute is unclear. This decision raised concerns among commentators that it might severely restrict environmental regulations and the broader administrative state. However, the …


Recent Reads, Jolie Zangari Jan 2024

Recent Reads, Jolie Zangari

Scholarly Works

No abstract provided.