Law Commons^™

By The Numbers, 2023-2024, Dee J. Kelly Law Library

Documents & Reports

A compilation of data and statistics highlighting the activities and services of the Dee J. Kelly Law Library at Texas A&M University School of Law for 2023-2024.

Maximizing Productivity Through Digital Panopticism: Combatting Invasive Employee Surveillance Systems In The Workplace, Amber Wooten

West Virginia Law Review

The United States has experienced rapid advancements in surveillance technology and data collection in the past three decades. Conversely, since the COVID-19 pandemic, remote work opportunities have increased, with many remote workers being subjected to surveillance within their homes. Given the lack of significant statutory measures to safeguard remote employees against incessant surveillance, employers can monitor employees, collect data, and enforce unattainable productivity quotas with little repercussions. Despite these harms, the influx of remote jobs presents significant benefits, especially for states like West Virginia, which faces immense population decline and lacks consistent physical job opportunities. Remote work promotes flexibility and …

Mental Health Screening In Lawyer Licensing, Grahm Ambrose, Brianne Holland-Sergar, Nora Freeman Engstrom

Faculty Journal Articles & Other Writings

This report examines the role of mental health screening in lawyer licensing, focusing on its evolution, current practices, and criticisms. It highlights concerns that such screening may discourage treatment, perpetuate stigma, and lack empirical support for improving public protection. While many states have shifted from broad inquiries into diagnoses and treatment history toward narrower questions about conduct or impairment, most still retain some form of screening. The report also reviews legal, ethical, and practical challenges, including potential conflicts with disability law. Overall, it concludes that although reforms have reduced intrusiveness, significant debate remains about the necessity and effectiveness of mental …

The Last Frontier: Fair Procedure In Informal Administrative Adjudication, Michael Asimow

Michigan Journal of Environmental & Administrative Law

The federal government engages in massive amounts of informal adjudication - a process that resolves a dispute between the government and a private party by making an individualized and legally binding decision without being required to conduct an evidentiary hearing if the dispute is not settled. This article sketches the highly diverse world of federal informal adjudication and surveys the procedural requirements imposed on it by due process and federal statutes. It proposes a set of best practices for conducting and improving informal adjudication that are rooted in those legal requirements. Agencies should adapt these practices to their individual circumstances …

Rewriting Nepa: Statutory Continuity And Disruption In A Polarized Era, Daniel A. Farber

Michigan Journal of Environmental & Administrative Law

For decades the National Environmental Policy Act (NEPA) of 1969 was a paradigm of statutory stability. In 2023 that changed overnight with a major rewrite of NEPA as part of the debt ceiling bill. The text of the statute was hurriedly negotiated between President Biden and House Speaker McCarthy, and then passed with virtually no debate.

This article is the first to analyze the amendments. Due to the frenzied enactment process, NEPA is now loaded with overlapping and partially conflicting language, provisions that seem nonsensical if taken literally, and perplexing gaps. The article teases apart these problems, concluding that the …

An Artificial Intelligence Report Card For Judicial Review, Zoe E. Niesel

Michigan Journal of Environmental & Administrative Law

The rapid advancement of technology, including artificial intelligence (AI), is creating new challenges for judicial review under the Administrative Procedure Act (APA). In late 2023, federal administrative agencies publicly disclosed over 700 use cases of AI that employ sophisticated techniques like machine learning and natural language processing. While the APA's flexible judicial review framework certainly allows agencies to utilize new technologies, the APA also requires explainability of agency decisions; thus, agencies must be able to articulate the reasoning and methodology behind AI-enabled decisions for the purpose of judicial review. This Article examines APA judicial review as it applies to agency …

From Columbus To Lansing: Exploring The Prosecution Of Environmental Crimes Within Epa Region 5, Joshua Ozymy, Melissa Jarrell Ozymy

Michigan Journal of Environmental & Administrative Law

Transgressions of federal environmental law involving significant harm or culpable conduct can result in criminal prosecution. However, we know very little about how such prosecutions have taken place within EPA Region 5, which includes Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. We undertake a content analysis of 2,807 criminal prosecutions that resulted from U.S. EPA criminal investigations from 1983-2022, selecting all 392 prosecutions occurring within Region 5 for analysis. Results show that over $3.4 billion in monetary penalties, 1,039 years of probation, and over 492 years of incarceration were assessed at sentencing. 33 % of prosecutions centered on water pollution, …

Solving The Stranded Asset Problem Of Retiring Coal Plants: An Evaluation Of Regulatory Approaches, Matthew Appel

Michigan Journal of Environmental & Administrative Law

Meeting the Biden administration's goal of cutting greenhouse gases by at least 50 percent from 2005 levels by 2030 will necessarily require transitioning the U.S. energy system away from carbon-intensive fossil fuels like coal. However, coal plants that are retiring early in states with regulated electricity markets usually still have undepreciated book value that has not yet been recovered from ratepayers. If not handled correctly, these "stranded assets" could have financial consequences for utility companies and cause them to actively oppose the energy transition. This Note aims to evaluate possible solutions to this problem. Through the prism of ratemaking legal …

Balancing Interests: Ai, Business & Human Rights, And The Legal Landscape In An Era Of Disruption, Jena Martin, Ritu Narula

West Virginia Law Review

On October 30, 2023, the Biden Administration issued a sweeping executive order espousing a policy to advance the development and use of artificial intelligence (“AI”) while also establishing safeguards across the federal government. The Executive Order marked the U.S. government’s largest move forward related to the regulation of AI. The Order also represents the government’s latest effort to advance equity, privacy, and national security in the use of AI systems. Moreover, the Order comes at a time when governments around the world are wrestling with the impact of AI and its disruptive effect, not just on markets, but on society …

Ownership And Development Of Rare Earth Elements And Critical Minerals In Mine Drainage In West Virginia, Robert E. Akers

West Virginia Law Review

This Article argues in support of recent legislation which clarifies legal title to potentially valuable substances derived from the treatment of mine drainage in West Virginia’s waters. West Virginia University has been researching the commercial viability of extracting rare earth elements and other critical minerals from coal mine drainage and coal mine waste. If successful, the research may foster a new industry and provide citizens and wildlife with cleaner water flowing in West Virginia’s rivers and streams. The West Virginia Legislature was concerned that ownership disputes and litigation might harm the development of this potential resource and enacted statutory provisions …

The Takings Blunderbuss: From Pennsylvania Coal To Dobbs, Michael Allan Wolf

UF Law Faculty Publications

This Article explores three problems with the excess use of the Takings Clause (the "takings blunderbuss") that should cause concern not to left-wing judges and scholars who endorse seemingly unfettered activism from the bench and champion an organic view of the Constitution, but instead, and somewhat surprisingly, to conservatives who claim to eschew those practices. The first problem is that the text and original understanding, as far as we can discern, indicate that the Takings Clause was designed to ensure that owners receive payment when they are forced to sacrifice ownership of their tangible property for public use, most commonly …

Criminal Law—Why Arkansas’S Current Juvenile Interrogation Law Fails Potential Avenues For Reform: A Fifty State Survey Of Juvenile Interrogation Statutes, Emily Williams

University of Arkansas at Little Rock Law Review

No abstract provided.

How To Grade Law Students Taking “Paper Classes” Given Student Access To Artificial Intelligence Assistance: The Experience From One Class, Gregory Crespi

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—Librarians Are Not Babysitters: Enacting Legislation To Curtail Unconstitutional Book Bans, Gracie Roper

University of Arkansas at Little Rock Law Review

No abstract provided.

George Washington’S Teeth, Wittgenstein, And Two Gruesome Problems For Originalism, Scott Devito

University of Arkansas at Little Rock Law Review

With the conservative turn of the U.S. Supreme Court, originalism has become ascendant. This rise to preeminence should trouble the legal community because originalism is grounded on a naive understanding of the interpretative process. Once we wash away this naivety and delve more deeply into legislative interpretation, we see that originalism fails in three ways. First, here is recent empirical evidence that general meaning is rare and, as such, the original meaning required by the theory is unlikely to have existed. Second, originalism fails to take into account the Problem of Induction—that making generalized inferences from a limited dataset is …

Autonomy And Form, Hanoch Dagan, Mark P. Gergen

Hofstra Law Review

Contract formalities are often technical and may seem petty. But they can, and at their best they indeed do, play a key role in the liberal drama of modern contract law. Liberal contract is committed to proactively facilitate people’s cooperation in the service of their autonomy. This is an ambitious task, which requires contract law to discard the merely proceduralist posture of the classical model, and offer parties an inventory of robust contract types, each with a set of default rules, so that they can choose the type that generally fits their goals and then tinker with these defaults to …

Teachers Saving Students’ Lives One Dosage Of Narcan At A Time: A Teacher’S Heightened Duty Of Care Calls For Training And Immunity, Sammi Casamassino

Hofstra Law Review

The article discusses the growing expectation for public school teachers to administer Narcan to students experiencing opioid overdoses, emphasizing the need for proper training and legal protections. It addresses the disparities in training and immunity among schools and highlights the proposed "School Access to Naloxone Act of 2024," which aims to incentivize states to allow trained school personnel, including teachers, to administer Narcan. The Act requires states to provide training, maintain a supply of Narcan on school premises, and offer civil and criminal immunity to trained personnel acting in good faith. Its goal is to increase access to Narcan in …

First Steps: Using Questions To Scaffold Students' Approach To Counterarguments In Persuasive Legal Writing, Heather Kolinsky

UF Law Faculty Publications

First presented at the Western States Legal Writing Conference at Seattle University School of Law in September 2024, this essay discusses scaffolding as a teaching tool in Legal Writing.

Perpetuating Inequality: What Salary History Bans Reveal About Wages, James Bessen, Chen Meng, Erich Denk

Faculty Scholarship

Pay gaps for women and minorities have persisted after accounting for observable differences. Why? If employers can access applicants’ salary histories while bargaining over wages, they can take advantage of past inequities, perpetuating inequality. Recently, a dozen US states have banned employer access to salary histories. We analyze the effects of these salary history bans (SHBs) on employer wage posting and pay in a difference-in-differences design. Following SHBs, employers posted wages more often and increased pay for job changers, particularly for women (6.4%) and non-whites (7.7%). Bargaining behavior appears to account for much of the persistence of residual wage gaps.

Celebrate Constitution And Citizenship Day Every Day, Not Just Sept. 17th, Maryam Ahranjani

Faculty Scholarship

Learning - and teaching - about the Constitution is not easy, but it is important. It was written so long ago by some powerful men that many of us cannot easily relate to. But they conceived of a living, breathing document whose intentions would guide future generations. Today we will begin to explore why it is important to strive to make the Constitution seem real and applicable to our lives. The Constitution provides guidelines for how government should work. And it provides for the basic individual rights and freedoms we enjoy in the United States.

China In Global Digital Trade Governance: Towards A Development-Oriented Agenda?, Yujia He, Ka Zeng

Patterson School of Diplomacy and International Commerce Faculty Publications

Existing literature on the behaviour of rising powers in global trade governance has yielded inconclusive evidence about their role and impact. This article contributes to this literature by examining China's role in global digital trade governance, an issue area which so far has not received sufficient scholarly attention. Specifically, it addresses the following question: as a self-proclaimed leader of the developing world in digital development, to what extent do its preferences and negotiation approach align with the interests of other developing countries? Analysing China's participation in three sets of negotiations using process tracing, the article argues that China's dual identity …

Invisible Adjudication In State Supreme Courts, Adam B. Sopko

North Carolina Law Review

No abstract provided.

Why The Fourth Circuit Should Find That Falsifying A Social Security Number Is Not A Crime Involving Moral Turpitude, Mia Thillet

North Carolina Law Review

No abstract provided.

Balancing Interests In The Separation Of Powers, Shalev Gad Roisman

University of Chicago Law Review

There are two conventional methods for resolving separation of powers disputes: formalism and functionalism. Although both approaches have been around for decades, neither has proven capable of resolving the difficult separation of powers disputes that actually arise today. Such disputes—including over statutory removal restrictions, recognition, conduct of diplomacy, and executive privilege—do not involve instances where one branch is trying to exercise the other’s exclusive power, as formalism posits. Nor is it clear how one could measure, or evaluate the effect of any one dispute on, the general balance of powers between the branches that functionalism seeks to maintain. Instead, difficult …

Weak-Willed Legislatures And Statutory Interpretation, Helen Zhao

University of Chicago Law Review

Not all statutes are created equal. Contributing to the literature on “super statutes,” I suggest that an analogy to the philosophical concept of weakness of will can illuminate circumstances under which some statutes ought to stand above others. Analogizing to philosopher Richard Holton’s account of weak will, I develop an account in which some statutes express long-term commitments, are intended to foreclose future deliberation, and enact reasons into the law. Such statutes have the status of what Holton calls “resolutions.” Like an individual resolving to stop eating meat, yet finding themself unable to resist, Congress can be weak willed when …

Policing The Fourth Amendment: The Problematic Effects Of Expanding The Community Caretaking Doctrine In United States V. Treisman, Mary Grace Kiernan

North Carolina Law Review

No abstract provided.

Foreword, David L. Schwartz, Kat M. Albrecht

Northwestern University Law Review

Offering a critique is often easier than proposing a solution. This refrain echoed frequently in the months and years that we spent developing what would become the Systematic Content Analysis of Litigation EventS (SCALES) Open Knowledge Network, a project born from the collaborative efforts of experts across various disciplines.

Cannabis And The Regulate-Like Gaming Experiment: Are Nevada’S Gaming Policies And Regulations Portable To Cannabis, Riana Durrett, Marla Royne Stafford

UNLV Gaming Law Journal

No abstract provided.

Blending Green: Cannabis And Casinos Can Coexist In The Gaming Industry, Sondra Brower

UNLV Gaming Law Journal

No abstract provided.

Financing Pathways For The Energy Transition: A Regional Approach, Ana M. Camelo Vega

Columbia Center on Sustainable Investment

The success of the global energy transition critically requires a shift from a solely national focus to a regional perspective. Regional cooperation is not just a beneficial opportunity; it is an imperative for the future of sustainable energy. Clean energy solutions are inherently regional, necessitating interconnected systems and collaborative frameworks. This regional focus is essential for addressing the complex challenges of the energy transition, requiring comprehensive engineering, institutional, and financial solutions.

This comprehensive report highlights the crucial financing pathways needed to achieve a successful clean energy transition, focusing on four key regions: Africa, Asia and the Pacific, Latin America and …