Law Commons^™

Getting Where They’Re Needed: The Case For A Vaccine Treaty, Christian W. Allan

Student Works

No abstract provided.

Curing Cannibalism: The Case For Stricter Antitrust Scrutiny Regarding Hospital Mergers, Amelia Baijnath

Student Works

No abstract provided.

Lost In The Weeds: The Federal Curtailment Of Cannabis Research And Whether New Cannabis Research Law Can Clear The Smoke, Amanda Nicole Pappas

Student Works

No abstract provided.

Taking Your Medicine: Insulating The Drug Price Negotiation Program From Fifth Amendment Challenge, Thomas Feil

Student Works

No abstract provided.

The Doctor Is Online: How The Covid-19 Public Health Emergency Created A Pathway To Increased Access To Mental Healthcare Treatment, Morgan Mcdonald

Student Works

No abstract provided.

Exploring An Establishment Clause Challenge To State Abortion Bans, Alex Pilla

Student Works

No abstract provided.

Book Review—Shaping The Bar: The Future Of Attorney Licensing, Kevin P. Lee

Dickinson Law Review (2017-Present)

No abstract provided.

A Second Chance At Success: Using “Second Look” Laws To Modify Sentences Of Juvenile Offenders, Sophia M. Adams

Dickinson Law Review (2017-Present)

“Second look” sentencing laws allow incarcerated individuals to petition to have their sentences reexamined and potentially reduced after they have served a significant period of incarceration. This rehabilitative relief is conditioned upon an offender showing that they have made meaningful positive changes while incarcerated and would not pose a threat to their community if released. Implementing second look laws is particularly appropriate in the context of offenders who have committed crimes as juveniles. The U.S. Supreme Court has recognized that juvenile offenders are less culpable than their adult counterparts and psychological science supports this conclusion. This Comment examines and compares …

A Critical Assessment Of The First Step Act’S Recidivism-Reduction Measures, Raquel Wilson

Dickinson Law Review (2017-Present)

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually. The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons …

The Sword And The Scale: Model Rule 8.4(G) As A Tool Of Racial Justice In The Legal Profession, Tiffany Williams Brewer

Dickinson Law Review (2017-Present)

Lady Justice. Have you seen her? Standing regal and tall with blindfolded eyes. A sword in one hand and a scale in the other. Her image represents a symbol of hope and idealism in protecting and delivering her virtues. Lawyers enter this noble profession to do right by her and carry on her legacy. We serve our clients with the aim that she will ultimately be both our arbiter of facts and our judge. While the symbolism of her blindfold is often the subject of commentary on justice, consider the symbolism of the powerful tools she has chosen in her …

Reshaping Government’S Fiduciary Role Under The 1992 Constitution Of Ghana, Rose Rameau, Abdul Baasit Aziz Bamba

Dickinson Law Review (2017-Present)

In Ghana and across many African States, the people—through the instrumentality of law or their respective Constitutions— have constituted their presidents trustees of the natural resources to be held in trust for the benefit of the people. With a few exceptions, mineral resource governance in Africa has been horrendous: Many African States have failed to leverage their natural resource endowments as a catalyst for much-needed socioeconomic development.

This Article analyzes the 1992 Constitution of the Republic of Ghana which provides that all public lands and natural resources in Ghana shall be vested in the President on behalf of, and in …

The Case For Climate Reparations, Scott W. Stern

Dickinson Law Review (2017-Present)

Climate reparations are, to employ an old cliché, an idea whose time has come. Of course, calls for reparations have been emanating from the Global South since long before scholars in the Global North started paying attention. The United States has been in the midst of a public debate over reparations for many years. And reparations have become among the more contentious issues pushed by campaigners and even delegates at international climate summits. Yet, although legal scholars have begun to contend with climate reparations, there is hardly a robust body of literature on the matter. The subject deserves—demands— deep scrutiny. …

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

Public Law and Legal Theory Working Papers

No abstract provided.

Retrenching Speech Protective Thresholds In Trademark Law, Jake Linford

Scholarly Publications

In their article, Raising the Threshold for Trademark Infringement to Protect Free Expression, Christine Haight Farley and Lisa Ramsey argue in favor of a speech-protective fair use test that would replace multiple tests applied by the U.S. Courts of Appeals when a defendant's alleged infringement has either informational or expressive elements. This Response explains why this raised threshold test is unlikely to be adopted following the U.S. Supreme Court's retrenchment of speech-protective thresholds in Jack Daniel's Properties, Inc. v. VIP Productions, LLC. That prediction is bolstered by the Court's likely holding in Vidal v. Elster. Readers persuaded that current defensive …

Data Controllers As Data Fiduciaries: Theory, Definitions & Burdens Of Proof, Noelle Wilson, Amanda Reid

University of Colorado Law Review

As more U.S. states have begun to pass consumer privacy laws, there are growing calls for federal data privacy regulation to ease the burden of compliance with various, sometimes conflicting, state laws. However, scholars and lawmakers are divided on how best to balance robust privacy protections with privacy laws to which businesses can realistically comply. Two prominent regulatory models have emerged from scholarly debate. The Rights/Obligations Model grants consumers various rights and imposes obligations on businesses. This model has been trending in U.S. states, which have mirrored language from the European Union’s General Data Protection Regulation (GDPR) by imposing different …

Police Vigilantism, Nadia Banteka

Scholarly Publications

This Article uncovers a critical yet unexplored dimension of policing: the strategic oscillation of police officers between their roles as state actors and private individuals, and its significant implications for police accountability frameworks. As officers toggle between these two roles to their legal advantage, they exploit a deep, systemic flaw in the structural design of policing. Tracing the trajectory of policing from its vigilante origins to its institutionalized form today, this Article argues that contemporary policing merges state-sanctioned power with vestiges of vigilantism to blur the public-private divide. This duality enables a form of state-sanctioned vigilantism through which officers exploit …

Juries And Tax: The Effect Of Income Taxation On Tort Damages, Jeffrey H. Kahn, John E. Lopatka

Scholarly Publications

In some shape or form, most tort damages for personal injuries have been excluded from federal income taxation since 1919. Despite this rule having celebrated its 1 0 0th birthday, the tax policy justification for the exclusion eludes consensus. Whether the policy is justified or not, the exclusion raises two other issues: should compensatory damage awards reflect non-taxability, and should juries be informed about tax treatment when determining awards? Like the disagreement over policy justifications for the exclusion, states are not in accord on their damage rule or approach to jury instructions. Proponents of a rule that awards should reflect …

Cognitive Content Moderation: Freedom Of Thought And The First Amendment Right To Receive Subconscious Information, Mason Marks

Scholarly Publications

In the television series Severance, employees of Lumon Industries receive brain implants that divide their memories of work and home life. When employees arrive at work, implants block access to memories of the outside world and unlock memories formed on the job. By manipulating the flow of information in employees' brains, Lumon engages in what this Article calls cognitive content moderation. Though Severance is science fiction, emerging technologies, including drugs and electronic devices, promote cognitive content moderation by influencing thought, memory, and perception. Constitutional law is unprepared. To clarify freedom of thought and make it more useful, this Article presents …

Constraining Constitution-Making, Adam Chilton, Cristián Eyzaguirre, David Landau, Mila Versteeg

Scholarly Publications

Whether constitution-making should be constrained has long been debated, but little is known about whether it is possible. We make several contributions to this question. We start by providing a typology of three types of constraints on constitution-making: Substantive, Procedural, and Institutional. We next develop a positive theory of when these constraints are likely to influence drafters' behavior. We then use a mixed-methods approach to explore these ideas in the context of Chile's constitutional reform process. In a survey experiment conducted in Chile before citizens voted on the draft constitution, we find that most respondents supported constraints in the abstract, …

The Legal Framework For The Protection Of Victims Of The Worst Forms Of Child Labour In Agriculture In Ghana: A Human Rights Based Approach, Ruby Akua Aglagoh

Theses: Doctorates and Masters

Child labour is prevalent in Ghana, especially in the agriculture industry where children engage in work that is harmful to their health, morals, and safety. Such harmful work has been defined by the ILO Convention No. 182 on the Worst Forms of Child Labour, 1999 as constituting the worst forms of child labour. These children have human rights stated in the laws of Ghana but have become victims of human rights violations because they cannot access the protections provided for under the international conventions and national laws of Ghana.

Using doctrinal legal research, this thesis reviews the legal framework of …

The Missing Millions: Cy Pres In Federal Securities Class Actions, Scott Dodson, Joseph A. Grundfest

Faculty Scholarship

Under prevailing cy pres doctrine, class-action-settlement residuals that cannot efficiently or fairly be distributed to the class may be distributed to a third party that represents the “next best” recipient consistent with class interests. Judges embrace cy pres despite theoretical concerns over inattention, conflicts, and abuse. We shed empirical light on the cy pres debate by examining an original, hand-collected dataset of 373 class-action settlements entered between 2010 and 2018. We document that the theoretical concerns have empirical merit. More than 57% of the settlements lack any evidence in the public record of the identity or court approval of cy …

Teaching Stare Decisis To First-Year Law Students In Higher Education: A Pedagogical Blind Alley?, Kenneth Yin, Carmela De Maio

Research outputs 2022 to 2026

The doctrine of stare decisis is often explained in first-year law studies as synonymous with the doctrine of precedent and dichotomised into ratio decidendi and obiter dicta. This explanation of stare decisis is frequently supplemented by an exercise where the novice law student is provided with a case and directed to identify the ratio decidendi of the case, and to appreciate the distinction between ratio and obiter dicta in it, the latter being persuasive only. It is argued that this pedagogy is limited and unrealistic because stare decisis is a dynamic process whereby, applying the precepts of formal legal logic, …

Resilience Amidst Barriers: Understanding The Plight Of Undocumented Filipino Tnts In The Broken Us Immigration System, Eileen Linchangco

Scripps Senior Theses

This thesis examines the plight of undocumented Filipino immigrants, referred to as “TNT” or “tago nang tago” (hiding and hiding), within the context of an increasingly restrictive US immigration system. I argue that two key factors have driven more Filipinos to pursue unauthorized entry into the US since the 1980s despite heightened risks. First, US immigration policy changes enacted in the 1980s and 1990s implemented stricter numerical caps that severely limited available visas for Filipino immigrants to use legal immigration pathways into the United States. Second, enduring sociocultural constructs propagate the notion that Filipinos represent immigrant desirability for US citizenship. …

Resilience Amidst Barriers: Understanding The Plight Of Undocumented Filipino Tnts Navigating Restrictive Us Immigration Laws From 1986 To The Present, Eileen Linchangco

Scripps Senior Theses

This thesis examines the plight of undocumented Filipino immigrants, referred to as “TNT” or “tago nang tago” (hiding and hiding), within the context of an increasingly restrictive US immigration system. I argue that two key factors have driven more Filipinos to pursue unauthorized entry into the US since the 1980s despite heightened risks. First, US immigration policy changes enacted in the 1980s and 1990s implemented stricter numerical caps that severely limited available visas for Filipino immigrants to use legal immigration pathways into the United States. Second, enduring sociocultural constructs propagate the notion that Filipinos represent immigrant desirability for US citizenship. …

Racial Disparities In Plea Bargaining: An Examination Of Coercive Dynamics In The Negotiation Process, Naszya Iman Heidi Bradshaw

Scripps Senior Theses

This research addresses the enduring concerns about the ethical and legal intricacies of coercion in plea bargaining within the U.S. criminal justice system, with a focus on its correlation with racial disparities. This study acknowledges an existing research gap in comprehending the subtle dynamics of coercion and its differential impact on Black and Latin individuals. By employing the Cumulative Disadvantage Theory and Dual Processing Theory, the research aims to investigate the differential susceptibility to coercion during plea bargaining among individuals from Black and Latin communities compared to their white counterparts. Variables such as the severity of criminal charges, the quality …

From Garcetti To Kennedy: Teachers, Coaches, And Free Speech At Public Schools, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This Article analyzes Kennedy's implications for educators' free speech rights at school. It is important to note, at the outset, that the Kennedy majority's description of the actual facts at issue is highly debatable. Indeed, the majority presented a sanitized account of what actually occurred on the ground, minimizing the highly public nature of Kennedy's prayers and the football players' involvement in them. That said, if we take the facts as the majority presented them, and then move to the majority's assessment of those facts, we emerge with an interesting gloss on Garcetti. Synthesizing Garcetti and Kennedy points toward a …

Powerless Beings: Solitary Confinement Of Humans And Nonhumans In America, Michael B. Mushlin, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

Every day, thousands of humans and millions of nonhumans endure solitary confinement. Human prisoners held this way are confined for twenty-two to twenty-four hours a day for weeks, months, or even years on end in cells the size of a parking space. For these humans, the experience is tortuous. Captive animals held in solitary confinement similarly spend much of their lives locked into tiny spaces, isolated, and deprived of the types of interactions and environment essential to their wellbeing. And, like humans, they are driven mad. In human and nonhuman settings, the agony of solitary is chillingly alike and harmful. …

The Federal Future Of Medication Abortion, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

A majority of Americans believe that there should be a right to abortion, at least in some cases. Yet a vocal and determined minority has its sights set on a complete ban on all abortions everywhere in the United States. In many states, these anti-abortion activists have achieved their goal through new laws and limitations enacted in the wake of the Supreme Court's 2022 decision in Dobbs. Anti-abortion advocates are also challenging the Food and Drug Administration's regulatory approval of mifepristone, one of the drugs used in medication abortion (also known as medical abortion). The FDA had initially approved mifepristone …

Realizing The Right To Food In Maine: Insights From International Law, Smita Narula

Elisabeth Haub School of Law Faculty Publications

In November 2021, Maine made history as the first U.S. state to constitutionally recognize the right to food. Maine’s right to food amendment— which sought to address widespread food insecurity and corporate control of the food supply—proclaims food as a “natural, inherent and unalienable right,” and empowers Mainers to grow and consume food of their own choosing, affirming their right to food sovereignty. This Article makes three key contributions to scholarly examinations of this historic amendment. First, it situates the amendment within the broader landscape of domestic and global struggles for the right to food and food sovereignty. Second, the …

A Restatement Of Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Debates about democracy are everywhere. Extremists, whether on the streets of Washington or Brasilia, perpetrate violence under the banner of democracy. But what do we mean when we talk about democracy? The debates, in the streets, popular media, or pages of academic journals, leave one wanting for depth and precision. This Article thus aims to provide an analytically useful model of Western democracy by surveying the vast and complex literature and distilling from that literature a series of core elements. From this exercise, this Article identifies the following four elements of democracy: majoritarianism, individual contestation, reason-giving, and deliberation. Although the …