Law Commons^™

A Critical Perspective On Formative Assessment Mandates, Joshua M. Silverstein

University of Arkansas at Little Rock Law Review

Formative assessment is a hot topic in legal education. Numerous commentators maintain that such assessment improves student learning of legal skills and content. Many law schools have adopted formative assessment requirements. And the American Bar Association recently proposed changing law school accreditation standards to mandate formative assessment in the first year. This essay challenges these trends. There is a paucity of evidence that formative assessment enhances learning among law students. Much of the broader assessment literature has limited relevance in legal education. And conducting formative assessment entails serious costs that are frequently overlooked by its proponents. In sum, the evidence …

Property Law— Squaring The Mold Predicament With Arkansas Landlord-Tenant Law, Katherine James Clark

University of Arkansas at Little Rock Law Review

No abstract provided.

Executive Order 14330: A Solution In Search Of A Problem, Edward A. Zelinsky

Cardozo Law Review de•novo

President Trump’s Executive Order 14330 proclaims its determination to “democratiz[e] access to alternative investments for 401(k) investors.” Among its other provisions, Executive Order 14330 requires the Department of Labor (DOL) to “clarify the duties that a fiduciary owes to plan participants.” Such clarification shall “relieve the regulatory burdens and litigation risk that” allegedly deny 401(k) participants access to alternative investments. However, the order states, DOL’s administrative guidance on alternative investments must be “consistent with applicable law.”

The Service’S Overgenerous Tax Treatment Of Crowdfunding, Jeffrey H. Kahn

Cardozo Law Review de•novo

The Internal Revenue Service released a fact sheet that defines crowdfunding as a method to raise money on websites by soliciting contributions from a large number of people. This article considers how crowdfunding is treated for tax purposes and argues that, contrary to the fact sheet's determination, all donations collected by commercial websites should be income to the recipient.

Cognitive Decline And The U.S. Presidency: The Case Of Joe Biden, Mark Fisher, Sandy Sanbar

Health Matrix: The Journal of Law-Medicine

This article examines the intersection of cognitive health, medical ethics, and constitutional governance through the lens of President Joe Biden’s medical history and recent cognitive performance. Highlighting the absence of formal neurocognitive testing protocols for presidential candidates and sitting Presidents, it raises critical questions about transparency, accountability, and the statutory and ethical obligations of medical professionals serving in political contexts. The paper discusses Biden’s stroke history, neurosurgical interventions, and subsequent lack of documented cognitive assessments, emphasizing the implications for public trust and the constitutional duty to ensure an executive fit for office. It advocates for the implementation of standardized, objective …

Front Matter

St. Thomas Law Review

Front Matter includes Masthead, advisors, and Table of Contents for St. Thomas Law Review Volume 37, Issue 2, Spring 2025.

The Unethical Practices Of Force-Placed Insurance: How To Protect And Indemnify The Forgotten Investors Of Mortgage-Backed Securities, Devin Moore

St. Thomas Law Review

In the United States, the media has been attempting to inform homeowners of an abusive insurance policy: force-placed insurance. Force-placed insurance is a type of policy that only protects the interest of the mortgage lender or mortgage servicer, and not the homeowner. While federal and state governments have restricted force-placed insurance policies for homeowners, the laws do not protect investors of mortgage-backed securities with force-placed insurance policies. These investors have an extensive impact on the general population since their investments are funded by retirement savings plans. As a result, the investors could lose the retirement savings of millions without proper …

Repeal The Federal Arbitration Act's "Arising Out Of" Requirement, Stephen J. Ware

American University Business Law Review

Suppose Pfizer and CVS agree to arbitrate not only any disputes that might arise out of their contract containing an arbitration agreement but also any disputes that might arise out of any of the many earlier contracts between these two large corporations. Or Apple and Samsung agree to arbitrate any patent infringement claims either has against the other for the next five years. Or FedEx and UPS agree to arbitrate any tort claims either has against the other due to any collision of their vehicles in the next ten years. Or members of the Walton (Walmart) family agree to arbitrate …

Section 4 -- Jury, Trial: A Misnomer In The Faa, Tracey B. Frisch

American University Business Law Review

The purpose of the Federal Arbitration Act (FAA), according to the Supreme Court, was not merely to reverse judicial hostility towards arbitration by placing agreements to arbitrate on the same footing as other contracts but to actively promote the use of arbitration on a national scale. It is not surprising then that most provisions of the FAA envision limited court intervention into the arbitration process.

Artificial Intelligence And Intellectual Property, Part Iii: Ip Protection For Ai-Assisted Inventions And Creative Works, Joshua Landau

American University Business Law Review

Chairman Darrell Issa, Ranking Member Hank Johnson, distinguished members of the Subcommittee on Courts, Intellectual Property, and the Internet ("Subcommittee") of the Committee on the Judiciary ("Judiciary Committee"), on behalf of the Computer and Communications Industry Association (CCIA) and its members, thank you for this opportunity to share our views on intellectual property (IP) protection for artificial intelligence (AI)-assisted works and inventions.

The Problem Of Unreasoned Reasoned Awards And The Judicial Failure To Remedy It: Statutory And Rule Solutions, John B. Mcarthur, Mark Travis

American University Business Law Review

American arbitrators have long been choosing between two common forms of awards: "reasoned awards" and "standard awards" with no reasons enumerated. Yet neither arbitration rules nor statutes define "reasoned award." This lack of guidance has gotten arbitration in trouble and threatens its ability to satisfy users' needs.

Without Noncompete Agreements, Can Employers Keep A (Trade) Secret?, Cynthia L. Dahl

American University Business Law Review

Data, algorithms, and proprietary information and processes are critical assets for increasing numbers of companies. Since information assets often cannot be protected through patent, companies may instead rely on trade secret law. To meet the legal standard of a trade secret, companies must show that their information assets confer a competitive advantage to them by virtue of the secret status, and that they have taken reasonable measures to preserve the secrecy.

One of the reliable methods companies use to maintain secrecy, and to show that they have taken the required reasonable measures, is the use of restrictive covenants. Traditionally, companies …

Litigating The Gaza Crisis: Legal And Political Strategies In South Africa V. Israel, Michael Ramsden

Cardozo International & Comparative Law Review

The article examines the strategic use of the International Court of Justice (ICJ) in the case of South Africa v. Israel, highlighting how states leverage the ICJ to influence international relations beyond legal compliance. It evaluates the efficacy of the ICJ's provisional measures in addressing the conflict in Gaza, emphasizing the intersection of legal strategy with political and humanitarian objectives.

Unopposed Brief Of Amicus Curiae National Law School Veterans Clinic Consortium In Support Of Appellant And In Favor Of Reversal, Ripley V. Collins, Yelena Duterte

Court Documents and Proposed Legislation

No abstract provided.

Brief Of Amici Curiae In Support Of Plaintiff–Appellant Seeking Reversal, Nat’L Org. For Women–N.Y.C. V. U.S. Dep't Of Def., Dkt. No. 25-71 (2d Cir. 2025), Yelena Duterte

Court Documents and Proposed Legislation

No abstract provided.

From 1957 To 2023: How The Supreme Court Prevented Little Rock Schools From Achieving The Ideal Of Desegregation, Nyssa Kruse

Indiana Journal of Law and Social Equality

No abstract provided.

“Change Is Inevitable”: How The First Amendment Safety-Valve Theory Can Expand Protections For Student Expression, Leslie Klein, Jonathan Peters

Indiana Journal of Law and Social Equality

This article challenges the traditional notion that the regulation and protection of student expression in public schools should be based primarily or exclusively on the marketplace theory, which often reinforces the status quo. The safety valve theory is more appropriate and should be applied, especially in the current political and social climate, to inspire an expansion of student speech and press rights that would support expressive activities seeking to change the public discourse around important issues. Students who can speak freely will be more willing to accept decisions that go against them, and a school environment in which passionate or …

From Downes To Dobbs: Why Stare Decisis Should Not Stop The Court From Overturning The Territorial Incorporation Doctrine, Gino Piccinini

Indiana Journal of Law and Social Equality

No abstract provided.

An Argument For A Right To Education For Undocumented Youth In Light Of Daca’S Uncertain Future, Minnie Blackman

Indiana Journal of Law and Social Equality

Undocumented youth are facing increasingly difficult circumstances in which to integrate into U.S. society both socially and economically. A primary reason for this phenomenon is the current antagonistic sentiments surrounding the Deferred Action for Childhood Arrivals (DACA) program. These sentiments have created a lack of trust in this program, with fewer undocumented youth applying for DACA status, which would allow many of them to apply to public colleges and universities at in-state tuition rates. Previous research has implied that state laws have the potential to create a property interest in education, and, as such, it must be protected from arbitrary …

Adopted Into Debt?, Grace Palcic

Indiana Journal of Law and Social Equality

While adoption procedures differ from state to state, every state uses some variation of the best interest of the child standard to determine the outcome of an adoption proceeding. To gather information for the best interest determination, states have created the home study process to investigate prospective adoptive families. A home study allows social workers and/or private adoption agencies to look at the needs of the child, the ability of the parents to care for the child, the existing familial dynamics, the safety of the physical home, the perceived moral character and reputation of the parents, mental and physical health …

The Chemical Straightjacket: Institutional Over-Use Of Psychotropic Drugs On Children In Lieu Of Therapeutic Community Mental Health Services, Marisa Leib-Neri

Indiana Journal of Law and Social Equality

This Article argues that the abysmal state of children’s mental health in America is in part due to an overreliance on and over prescription of psychotropic drugs inside psychiatric residential institutions in lieu of community based mental health services. This overreliance on residential institutions and psychotropic drugs has allowed a new form of chemical restraint to flourish—the chemical straitjacket. This Article uses the medication lists of twelve children in seven different North Carolina psychiatric residential treatment facilities to demonstrate how the chemical straitjacket operates: the prescription of drugs not approved for pediatric populations, counter to evidence-based practices for particular diagnoses, …

Crip The Law: Representation As A Key Component Of Liberation Lawyering, Marissa Ditkowsky

Indiana Journal of Law and Social Equality

No abstract provided.

The Failure Of Fcc Diversity Initiatives: A Postmortem And A Proposal, Christopher Terry, David Pritchard

Indiana Journal of Law and Social Equality

No abstract provided.

Do Federal Circuit Courts Of Appeal Provide Adequate Assistance To Self-Represented Litigants? A Review Of The Circuits’ Websites Resources, Jona Goldschmidt

Indiana Journal of Law and Social Equality

No abstract provided.

A Bloody Mess: Why Blood Plasma Donation Centers Are Not Public Accommodations Subject To Title Iii Of The Americans With Disabilities Act, Kevin D. Marshall

Indiana Journal of Law and Social Equality

No abstract provided.

Situating Standing In Environmental Litigation, Wyatt Balius

Undergraduate Theses, Professional Papers, and Capstone Artifacts

Controversies over issues of standing in federal civil litigation are hotly contested, as they strike at the heart of separation of powers issues and broader notions of the intent of civil action. Here I identify two competing theories of the purpose of standing and its requirements as such. Restrictive standing, as argued by Professor Ann Woolhandler, seeks to inherently link civil redress with an injury-in-fact requirement for both public and private law claims. Expansive standing, as argued by Professor Cass R. Sunstein, seeks to ground civil redress largely within violations of Congressionally designated causes of action. I argue that the …

Assessing The Past And Future Of Article Iii, Section 12 Of The South Dakota Constitution, Neil Fulton, Madison Gosch

Faculty Publications

The framers of South Dakota’s Constitution feared corruption among public officials. This inspired them to implement structural checks on corruption in that organic document. One result of that effort was Article III, Section 12. That provision prohibited legislators from entering contracts authorized during their term. It further prohibited legislators from occupying other public offices during the legislative service or being appointed to offices created or given increased compensation during their term. The expansion of state government’s reach over time and a recent reinterpretation of Article III, Section 12 raises the question of how well it aligns with current circumstances. This …

Workplace Retaliation And The Intersection Of Protected Conduct And Job Performance, Chris Schmidt

Faculty Publications

No abstract provided.

Reevaluating South Dakota's Child Support Deduction: Balancing Retirement Contributions And Children's Needs, Marilyn Trefz

Faculty Publications

This article explores how South Dakota’s child support provisions, particularly the 10% allowable deduction for voluntary retirement contributions from parents’ gross income, affect the fair distribution of financial responsibilities between parents. By exploring the historical context and evolution of this statute, this article highlights the challenges and disparities the 10% deduction creates, particularly for custodial parents living in poverty. Through a comparative analysis with other states and a discussion on balancing retirement savings with child support needs, the article argues for reconsideration of the statutory allowance. The article’s aim is to ensure that the next revision of the child support …

A Call For Trained, Trauma-Informed Attorneys To Represent And Support Unaccompanied Children In Removal Proceedings By Petitioning For Special Immigrant Juvenile Status, Will Sheehan

Roger Williams University Law Review

No abstract provided.