Law Commons^™

Adjudication Hiding In Plain Sight: Rethinking Standing In Rulemaking Petition Cases, Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Exposed! Students’ Personal Reproductive Healthcare Information, Janet Levit

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Interpretive Rules Are The New Regulations: Agency Guidance After Loper Bright, Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Scaling Energy Resilience Through Energy Commons And The Solar Commons Community Trust, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Keynote Address: Envisioning Wage Justice, Ruben J. Garcia

Scholarly Works

In this Keynote address for the Minnesota Journal of Law & Inequality’s Symposium, “Not Just Wages,” held at the University of Minnesota Law School on April 11, 2025, I discuss the evolving concept of wage justice, using the lens of Critical Wage Theory and its origins in pioneering theories of race, labor and justice. The Article outlines the legal frameworks that have defined the content of wage justice in the twenty-first century, particularly for marginal workers. This Article raises the alarm about the impact of political change on low-wage workers, using case studies and analysis of administrative agency enforcement of …

Alternatives To Delaware? Evaluating Corporate Law In Nevada, Texas, And Wyoming, Joseph Landau, Bailey Swartz, Anthony Rickey, Robert Ragazzo, Benjamin P. Edwards, George A. Mocsary

Scholarly Works

No abstract provided.

The Solicitor General, Consistency, And Credibility, Margaret H. Lemos, Deborah A. Widiss

Articles by Maurer Faculty

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on …

Facial Recognition Technology And The First Amendment, Joseph A. Tomain

Articles by Maurer Faculty

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written regarding harmful private actor use. This Article helps fill a gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create faceprints for inclusion in FRT databases violate the First Amendment rights of private actors.

In May 2025, a multidistrict litigation against Clearview AI, an FRT company, offered …

Climate Change And Corporate Law In The United States: Not "Woke" But Eyes Open., Cynthia A. Williams

Articles by Maurer Faculty

This Essay discusses the evidence that climate change and nature loss create financially material risks for corporations that must be carefully considered by officers and directors pursuant to their fiduciary duties of loyalty and care. This analysis concludes that under the current state of fiduciary duty law and the known financial risks presented by climate change and nature loss, officers and directors of corporations may breach their fiduciary duties by failing to implement and monitor a robust system to identify and manage each type of industry-specific climate-related and nature related risk. Risk of breach is particularly acute for entity-specific compliance …

"17 Going On 23": Sentencing Young People To Life In Canada, Debra Parkes

All Faculty Publications

This paper analyzes reported Canadian cases from 2008 to 2022 in which young people were sentenced for murder. It shows that, at least in these reported decisions, sentencing young people as adults for murder is not rare. The Crown routinely seeks life sentences for young people and the court orders them in the vast majority of cases in which they are sought. Life sentences for young people have become normalized and expected in murder cases, rather than exceptional. This paper delves into the case law to get a better picture of why and how this is happening.

Old Habits Die Hard: Precedent, Psychology, And The Admissibility Of Forensic Evidence, Sara Gordon

All Faculty Publications

Forensic evidence, long considered a cornerstone of criminal justice, has faced increasing scrutiny as recent studies and reports expose significant flaws in its scientific foundation. Techniques such as latent fingerprint analysis, microscopic hair comparison, and ballistics matching, which had been widely accepted for decades, are now being challenged for their lack of empirical validation. Reports by the National Research Council and the President’s Council of Advisors on Science and Technology have highlighted the deficiencies in these forensic methods, calling into question their reliability and the weight they are given in courtrooms. Yet despite the growing acknowledgement of widespread issues affecting …

Streaming, Copyright And Creators: A Canadian Perspective, Graham Reynolds

All Faculty Publications

This paper will provide an introduction to streaming and copyright in Canada. It will proceed in five parts. Following this introduction, Part 2 of this paper will define streaming, discuss some of the benefits that flow from the widespread use of streaming services, and outline the extent to which streaming technologies are in use in Canada today. In so doing, this paper will distinguish between three types of streaming services: streaming services that secure authorization from rights-holders before making content available; streaming services that rely on technological measures or liability exemptions in order to host content in a non-infringing manner; …

Policy Forum: Are Carbon Contracts For Difference Well Suited For Canada?, Wei Cui

All Faculty Publications

At least up to the release of the federal 2024 budget, many Canadian politicians, climate policy think tanks, and industry groups promoted carbon contracts for difference (CCfD) to complement carbon pricing. This commentary urges caution against the broad adoption of CCfDs. The author begins by noting that the current designs of provincial output-based pricing systems (OBPS) are not consistent with the expectation of the systems delivering robust price signals. He argues that CCfDs depend on such price signals, and they are not a plausible policy for encouraging the emergence of such signals. The author then argues that it is hard …

Binding Rights: Contractual Federalism And The Right To Housing In Canada, Alexandra Flynn

All Faculty Publications

Canada’s housing crisis continues to deepen, exacerbated by constitutional fragmentation and intergovernmental reluctance to implement human rights-based housing policy. While the federal National Housing Strategy Act recognizes housing as a human right, its application is limited and its legal force is limited to the federal level, leaving provinces and municipalities unbound. This article argues that contract law – particularly conditional funding agreements between the federal government and subnational actors – can serve as a pragmatic and legally coherent mechanism to bind municipalities to housing obligations, including the recognition of housing as a human right. Drawing on the Canada Health Act …

"Shocking The System" In The 21st Century: Conservative Policy Entrepreneurs And The Plan For Authoritarianism In The U.S., Athena M. King

Political Science & Geography Faculty Publications

The first few days of the second Trump presidency saw a flurry of executive orders targeting immigrants, the transgender community, blacks, and federal government employees. The resulting “shocks” to the system are unprecedented, causing many to question the continuation of American democracy. These actions are a few of many policy preferences developed by conservatives and captured in “Project 2025”, spearheaded by the Heritage Foundation and with the overall intent of restructuring the federal government to suit authoritarian aims. Using a theoretical framework regarding policy entrepreneurs (PEs), I argue that conservative PEs (CPEs), under the aegis of the Republican Party and …

Securitization Of African Migrants In Europe And North America, Chick Edmond

Political Science & Geography Faculty Publications

The securitization of African migrants in Europe and North America refers to the framing of immigrants as an existential security threat rather than a socioeconomic or humanitarian concerns. This discourse driven by political rhetoric, media narratives, and policy measures, often depict African migrants as risks to national security, cultural identity, and economic stability. Governments in host countries employ stringent border controls, detention and deportation policies often justified by counterterrorism and crime prevention frameworks. However, critics argue that securitization exacerbates xenophobia, violates human rights, and fails to address root causes of migration, such as conflict, poverty, and climate change. This paper …

The Role Of Economic Sanctions In Shaping International Trade Relationships Case Study: Russia, Chick Edmond

Political Science & Geography Faculty Publications

Economic sanctions play an influential role in international relations by shaping the behavior of states. To address security threats and uphold international norms, countries seek to punish those responsible in violating these principles through the use of economic sanctions. The paper examines the impact of economic sanctions on trade relationships and its consequences on the Russian Economy. It also seeks to analyze the evolution of trade embargo during the post-cold war era to a more resilient and sophisticated measures in the age of globalization. Through this historical perspective, this analysis examines an important case study such as Russia by evaluating …

Manifesting A Shift In The "Overton Window": The Threat Of Project 2025 On The Lgbtq+ Community In Higher Education, Athena M. King, Sara Sanatkar

Political Science & Geography Faculty Publications

Since the first Trump administration, historically marginalized groups in the United States have been subjected to greater instances of bigotry and discrimination due to conservative influence on sociopolitical institutions. These actions suggest a shift in the "Overton Window," whereby policy preferences previously deemed "unacceptable" are given consideration in the mainstream, especially by conservative policy actors. "Project 2025" is a comprehensive plan to restructure the federal government according to conservative dictates in the second Trump administration. This article is an examination of how higher education may be impacted by this plan, especially as it relates to LGBTQ+ faculty, administration, staff, and …

New York Environmental Legislation In 2024, Michael B. Gerrard

Faculty Scholarship

In 2024, New York State enacted several laws aimed either at dealing with the adverse impacts of climate change such as extreme heat and increasingl severe and frequent storms or at helping to mitigate greenhouse gas emissions to avoid or minimize the adverse impacts. The final bill signed by Governor Kathy Hochul in 2024 was the most high-profile of these laws — the Climate Change Superfund Act, which will require fossil fuel companies to pay for adaptation measures.

Other new laws last year related to extreme heat in schools and prisons, food waste, expanded polystyrene containers, community gardens, and native …

Loper Bright And The Great Writ, Anthony G. Amsterdam, James S. Liebman

Faculty Scholarship

Chevron deference is dead. The Court’s forty-year, seventy-decision experiment with Article-III-court deference to “reasonable” agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed the “judicial Power” to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decision-making.

“AEDPA deference” lives. The Court’s twenty-five-year, seventy-two decision experiment with Article-III-court deference to “reasonable” state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges’ independent judgment that the state courts have misread or misapplied …

In Search Of A State, Maeve Glass

Faculty Scholarship

This article offers a legal history of one of America’s earliest campaigns of state legislative resistance: the effort in Massachusetts to protest the national government’s perceived dismantling of an old Atlantic commercial order from 1803 to 1815. To date, scholars have either condemned this protest as a dangerous harbinger of the Civil War or vindicated it as an inevitable and salutary extension of the Founding. This article steers a different course. By focusing on the evolving language of protest and the complex hybrid of ideas and material realities from which this language emerged, this article illuminates how Federalist leaders who …

For Whose Benefit Is The Freedom Of Speech?, Vincent A. Blasi

Faculty Scholarship

In United States v. Alvarez, the US Supreme Court ruled that an official of a water district who introduced himself to his constituents by falsely stating in a public meeting that he had earned the Congressional Medal of Honor had a First Amendment right to make that demonstrably untrue claim. Audience members misled by the statement might well be considered to have a First Amendment interest in not being directly and knowingly lied to in that way. Other members of the community might be thought to have a First Amendment interest in public officials such as Xavier Alvarez telling …

Fixing Mfw: Fairness And Vision In Controller Self-Dealing, Zohar Goshen, Assaf Hamdani, Dorothy S. Lund

Faculty Scholarship

The legal regime governing controlling shareholders relies on the ability of Delaware courts to police conflicted transactions under the stringent "entire fairness" standard of review. This review involves both implicit valuation – evaluating the transaction process, and explicit valuation – assessing the fairness of the transaction's financial terms. This Article reveals a critical flaw in this regime: courts cannot reliably engage in valuation when the transaction involves an entrepreneur's idiosyncratic vision for the company. As a result, there is a gaping hole in Delaware's framework for policing the fairness of controller transactions.

Delaware courts have developed guardrails to avoid judicial …

The Politics Of Bank Supervision: From Eccles To Bessent, Kathryn Judge

Faculty Scholarship

Throughout his tenure as chair of the Federal Reserve Board, Marriner Eccles pressed President Franklin D. Roosevelt to over­haul bank supervision. Eccles eventually made his ongoing service as chair contingent on FDR agreeing to support the effort. This initiative is commonly depicted as a power grab. Federal bank regulation and supervision, then and now, is divvied up among three agencies, the Federal Reserve, the Federal Deposit Insurance Corporation, and the Comptroller of the Currency. Eccles wanted the Fed, and the Fed alone, to be the federal bank supervisor. Having already succeeded in enhancing his power once, by spearheading reforms that …

How Artificial Intelligence Will Shape Securities Regulation, Gabriel Rauterberg

Faculty Scholarship

How will the increasing prevalence and sophistication of artificial intelligence (AI) change the doctrine and practice of securities law? My main thesis is that it will push securities regulation toward a more systems-oriented approach. This approach will replace securities law’s emphasis, in areas like manipulation, on forms of enforcement targeted at specific individuals and accompanied by punitive sanctions with a greater focus on ex ante rules designed to shape an ecology of actors and information.

Immigration Law: Decisionmaking In U.S. Immigration Courts, Karen Musalo

The Judges' Book

No abstract provided.

An Investigation Into Artificial Intelligence And Intellectual Property From An Economic Perspective, Jackson Benjamin Bram Girard Lasalle

Honors Theses and Capstones

This paper investigates the debate around recent developments in Artificial Intelligence and its impact on intellectual property laws from an economic perspective.

Regulatory Sandboxes: One Decade On, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

Regulatory sandboxes have spread like wildfire since the U.K Financial Conduct Authority launched its sandbox for financial technology businesses (fintech) one decade ago. Despite widespread adoption, however, there is little empirical evidence available to assess whether the signature sandbox policy com- bination of regulatory rollbacks and regulatory guidance is in fact good policy. The empirical evidence that is available suggests that regulatory sandboxes are beneficial for the tech firms that participate in them, but tells us nothing about how regulatory sandboxes have impacted the broader enterprise of regulation, or whether the innovation generated by sandbox participants is beneficial for any- …

Trump Has A Point On Trade, William Snape

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Institutions And Economic Development, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: Though forty years have passed since the American Indian Law Review published Economic Development in Indian Country: What Are the Questions? by Professor Frank Pommersheim, many of the same challenges and questions about economic development remain. This brief Essay looks back at Pommersheim’s work, surveys the state of scholarship on economic development today, and offers a few ideas about the future of such work. To this day, economic development remains a backwater among law professors compared to sexier topics like criminal jurisdiction, civil authority over nonIndians, and whatever is the most recent opinion from the U.S. Supreme Court. But …