Law Commons^™

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Dalhousie Law Journal

No abstract provided.

Effects Of Actualized Language Policy On Ukrainian Stability, 1989-2022, Dawn Hersey

Electronic Theses & Dissertations (2024 - present)

This dissertation seeks to generate a new perspective of the complicated relationship between actualized policy and stability through looking at Ukraine’s language policies and stability in a mixed manner approach that includes both primary and secondary sources. Russia justified its irridentist activities through claiming to protect Russian nationals within Ukraine’s borders: language policies within Ukraine appear to be a trigger for Russian antagonism. Neither Russian irridentism nor Ukrainian nationalism are being considered as right or wrong in this dissertation: the intent is to highlight trends, patterns, and perceptions in alignment with Ukrainian language policy. This dissertation does not present a …

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 …

Front Matter

SMU Annual Texas Survey

No abstract provided.

Survey Of Recent Mandamus Decisions Of The Texas Supreme Court, Douglas S. Lang

SMU Annual Texas Survey

No abstract provided.

Real Property, J. Richard White, Amanda R. Grainger

SMU Annual Texas Survey

No abstract provided.

Bankruptcy & Commercial Law, Sally Mcdonald Henry

SMU Annual Texas Survey

This Article analyzes and discusses cases—arising from the U.S. Court of Appeals for the Fifth Circuit, the Bankruptcy Courts in Texas, the Texas Supreme Court, and the Texas Courts of Appeals—that resolved some fascinating and important issues in the areas of bankruptcy and commercial law during this Survey period.

Partnership Law, Troy Christensen, Jeff Dorrill, Matthew Schindel, Madeline Ballard, Nick Beals

SMU Annual Texas Survey

No abstract provided.

Case Law Update On Oil, Gas & Mineral Law, Austin W. Brister, M. Alejandra Salas

SMU Annual Texas Survey

This Article focuses on certain select cases relating to oil, gas, and mineral law in Texas that were issued in 2024. Given space constraints, not all cases could be summarized.

Professional Liability, Shelby Taylor, R. Max Ward, Levi Klinglesmith

SMU Annual Texas Survey

No abstract provided.

Originalism And Truth-Telling: A Reply To Stephen Sachs, J. Joel Alicea

Scholarly Articles

Sachs focuses on my claim that a theory of constitutional adjudication needs to make a moral argument that justifies telling judges why they ought to decide constitutional disputes in a particular way rather than in some other way. Why be an originalist, for example, rather than a common-law constitutionalist? In answering that question, a theory of constitutional adjudication cannot depend exclusively on a positivist, descriptive account of what the law is—even if Sachs correctly identifies originalism as the law— because knowing that originalism is the “law” (in a positivist sense of “law”) does not tell us why anyone ought to …

Bringing The Antiquities Act Into The Modern Age, Chad Squitieri

Scholarly Articles

The Antiquities Act empowers the President both to declare national monuments and to reserve the “smallest area” of land compatible with the preservation of such monuments. Modern Presidents have adopted expansive interpretations of those authorities—purporting, for example, to reserve entire “ecosystems” as national monuments, and to claim that the Act’s reference to “land” includes state-sized swaths of the ocean floor. Until recently, Presidents’ expansive readings of the Act have gone largely unchecked by courts. But in Massachusetts Lobstermen’s Ass’n v. Raimondo, Chief Justice Roberts expressed interest in reconsidering “[t]he scope of the objects that can be designated under the [Antiquities] …

The Natural Law Moment In Constitutional Theory, J. Joel Alicea

Scholarly Articles

Something new is happening in American constitutional theory. Never before have so many legal scholars sought to ground constitutional theory in the natural-law tradition. Indeed, we can truly say that we are living through a natural-law moment in constitutional theory, a period of unprecedented interest in natural law among constitutional theorists. This immediately calls to mind three questions. First: how, if at all, are the theorists of this moment different from prior theorists who sought to ground constitutional theory in natural law? Second: what explains the rise of natural law in American constitutional theory? Third: what are the implications for …

The President’S Authority To Impose Tariffs, Chad Squitieri

Scholarly Articles

The International Emergency Economic Powers Act (“IEEPA”) empowers the President to “regulate . . . importation.” In Learning Resources v. Trump, the United States District Court for the District of Columbia ruled that such language did not empower the President to impose tariffs. The District Court reasoned that there was a distinction between the power to “regulate” and the power to “tax,” and that tariffs required a power to tax. This Essay explains why the District Court was wrong.

The Constitution’s original meaning and Supreme Court precedent indicate that tariffs can be an exercise of Congress’s power to regulate …

Thinking Outside The Box With Ai: Adapting 20th Century Labor And Employment Law To 21st Century Algorithms That Select, Monitor, And Control Employees, Roger C. Hartley

Scholarly Articles

A transformative era is unfolding in the rapidly changing world of work. Increasingly, to a hitherto unimaginable degree, employers are able to deploy predictive analytics—artificial intelligence (AI)—that processes data about workers and their behaviors to identify patterns and make algorithmic predictions. There is a widely-held view among labor practitioners, scholars, and non- specialists that our current labor and employment regulatory scheme is insufficient to address many, perhaps most, of the workplace issues that workplace AI systems create. The thesis of this article is that skepticism is largely unfounded as it seriously underestimates the capacity of currently enacted federal labor and …

Constitutional Theory And The Problem Of Disagreement, J. Joel Alicea

Scholarly Articles

For decades, constitutional theory has been haunted by the problem of disagreement: the reality that we are deeply divided on fundamental questions of justice and the good society. Theorists have generally responded to the problem of disagreement in one of two ways. One approach minimizes the extent to which constitutional theories rely on controversial moral premises and instead grounds constitutional theories in widely endorsed social practices. The other generally discards any social practices that reflect disagreement with the controversial moral views that the theorist holds.

Neither approach is sound. Constitutional theory requires both controversial moral claims and attention to social …

Virginia's Congressional Districts Are Unconstitutional, Kevin C. Walsh

Scholarly Articles

The Elections Clause in Article I of the U.S. Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” This Essay will show that Virginia's current congressional districts were not established in compliance with the Elections Clause. These congressional districts were prescribed by the Supreme Court of Virginia, not by “the Legislature” or by any other body exercising legislative power to establish districts. Because judicial power is the only power that …

Culpable Kids, Cara H. Drinan

Scholarly Articles

When a child commits a crime, how do states determine if that child is culpable? There are procedural rules that determine the forum for a minor’s trial and doctrines that limit children’s exposure to the most severe sentencing. But when it comes to culpability, states employ the same substantive law whether the defendant is 50 or 15. As this Article explains, that approach is profoundly flawed. In the early 21st century, in a series of cases known as the Miller trilogy, the United States Supreme Court established that youth are fundamentally different from adults and state sentencing practices must recognize …

Informing Choice: The Role Of Adoption In Women’S Pregnancy Decision-Making, Elizabeth R. Kirk, Ryan Hanlon

Scholarly Articles

In the wake of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization, the authors of this Article offer a practical, collaborative response to a seemingly intractable, divisive issue. Kirk and Hanlon draw on their academic expertise in law and social science, respectively, to address the paradox of the general esteem for the institution of adoption alongside the rarity with which adoption is chosen. In this Article, they examine social science data and literature on women’s pregnancy decision-making in order to explain the need for laws and policies that promote informed choice. They introduce never-before-published survey data and …

The Failed Experiment Of §230 Of The Communications Decency Act: How It Facilitates Exploitation And How It Must Be Reformed, Mary Graw Leary

Scholarly Articles

Two truths coexist: The Internet has brought with it tremendous changes for learning, connection, and business; and the Internet and other digital platforms have led to an unprecedented exploitation of children on a scale never before imagined. This is due in large part to §230 of the Communications Decency Act – the law which tech platforms have perverted to immunize them from liability for their activity which causes extreme harm. This duality has led to a current vigorous debate about whether this 1996 law has any value in the 21st Century.

This article answers that question with a resounding no, …

Deference And Discretion In Bank Regulation, Heidi Mandanis Schooner

Scholarly Articles

The U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overturned the Chevron doctrine of judicial deference to administrative agencies’ interpretations of federal statutes, will impact future regulatory policy. The shape of that impact is less certain. Using bank regulation as a vantage point, this Article explores how the end of Chevron may influence legislative and regulatory outcomes. Through case studies, the Article contextualizes the impact of Chevron within the bank regulatory regime’s complex ecosystem of technical expertise, political influence, and industry capture. The dismantling of New Deal restrictions on banks’ activities illustrates how Chevron may have …

Associational Rights Versus Nonprofit Transparency: Information Reporting In The Internet Age, Roger Colinvaux

Scholarly Articles

For decades, the nation’s charitable and nonprofit organizations have been required to file an information return, known as the Form 990, with the Internal Revenue Service. Congress mandates that the return be made publicly available. Such information reporting, both to the IRS and to the public, is the cornerstone of the federal government’s approach to assuring that nonprofit organizations are legally compliant. The Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta (APF), however, casts a shadow on the constitutionality of nonprofit reporting requirements. In APF, the Court held unconstitutional California’s effort to require charities to …

Beyond Judicial Dialogue: Reference To Domestic Law By The Inter–American Court Of Human Rights, Soledad Bertelsen

Scholarly Articles

The recent freeze of U.S. funding to the Inter–American Commission on Human Rights serves as a reminder of how fragile the Inter–American System of Human Rights truly is. The effectiveness of the Inter–American institutions largely depends on their legitimacy in the eyes of the member states. This article argues how the legitimacy of the Inter–American Court can be enhanced by the language used in its judgments. The paper focuses on how references to domestic law in the case–law of the Inter–American Court can persuade states to comply with its decisions. Citations transcend the much–discussed judicial dialogue since they also reference …

The Human Dimension Of “Home”, Robert A. Destro

Scholarly Articles

All societies provide a legal framework that protects the pivotal functions of home and family. None provide a clear legal definition of “home”. Nor, this article argues, can they. “Home” is a concept rooted in the lived experience of human persons. In this article, the second in a series, the author employs the “human dimension” [HDIM] concept, initially developed by the U.S. military and later adopted by the Organization for Security and Cooperation in Europe, as the lens through which one can examine the “human element” of human rights. The framework for this analysis is the “four clusters of value-types” …

A More Luminous Beacon, William M.M. Kamin

Scholarly Articles

Over the Supreme Court’s past four Terms, federal post conviction habeas corpus has been placed on the chopping-block. Its fate hangs in the balance of an historical debate over the maxim, oft recited by the Court between 1830–1953, that post conviction habeas reaches only “jurisdictional defects” — as opposed to “mere error” — on the part of the convicting court. Justices Gorsuch and Thomas maintain that “jurisdiction” carried then the same narrow meaning it does now: power ab initio over the offense charged and the defendant’s person. Justices Kagan and Jackson contend that, in this context, “jurisdictional defect” was understood …

Charitable Giving And Civil Rights: A Defense Of Private Remedial Action, Roger Colinvaux

Scholarly Articles

Private charitable organizations have long enjoyed the freedom to determine their mission and render appropriate charitable assistance, including by taking race, ethnicity, gender, and other traits into account when responding to the harmful effects of past discrimination, a practice this Feature terms “private remedial action.” The legality of this kind of trait-conscious assistance is strongly supported by the early American history of trait-based associations, federal tax law, and core values of free association. However, new legal and political attacks on affirmative action of all types have put charities on the defensive, leading many groups to change their programs and behavior …

Finding The Major Questions Doctrine, Chad Squitieri

Scholarly Articles

The major questions doctrine has been invoked primarily in the rulemaking context, where it requires agencies to identify particularly clear statutory authority before promulgating rules of “major” importance. Some scholars have suggested that the doctrine is a tool that should be limited to agency actions that are purportedly “legislative” in nature (e.g., rule makings)—meaning the doctrine would not apply in other contexts, such as agency adjudications and enforcement actions that may not be similarly “legislative.” This Essay responds by arguing that the major questions doctrine is best understood as a limit on executive authority—meaning the doctrine could apply across a …

Constitutional Theory At A Catholic University, J. Joel Alicea

Scholarly Articles

No abstract provided.

Foundations Of The Right Of Charitable Uses, Adam J. Macleod, Mark David Hall

Scholarly Articles

In recent years, municipalities around the United States have enacted ordinances that prohibit or restrict food-sharing in public places. These ordinances make it difficult for charitable souls to share food with those most in need. In one case, a town in Arizona arrested a woman under an ordinance that prohibits sharing food in public for charitable purposes.
The closest analogs to these laws are the English anti-almsgiving acts of the fourteenth and sixteenth centuries. One must look that far back in history because infringements of the right of charitable uses of property are exceedingly rare. Indeed, throughout the history of …

Function Over Form: Toward A Safe Harbor Framework For Defi Regulation Of Utility Tokens, Seth C. Oranburg

Scholarly Articles

DeFi tokens perform distinct economic roles. These include governance, collateral, stability, and utility access. Existing securities doctrine often misclassifies non-investment tokens as securities. This error deters development of utility tokens that power decentralized applications.

This Article develops a function-based framework. As a first application, it proposes a narrow statutory safe harbor for utility tokens. Eligibility depends on three safeguards. First, technical resilience, supported by independent security audits and incident-response protocols. Second, accountable control, with defined upgrade authority and defined obligations for keyholders. Third, calibrated oversight, with consumer protection and operational requirements for access tokens, not investor protection regimes for capital …