Law Commons^™

Addiction To Constitutionally Protected Activity: Speech, Press, And Religion, Eugene Volokh

Emory Law Journal

Recent statutes and lawsuits have sought to restrict social media or video game design practices that supposedly cause some users to become “addicted.” Are such restrictions consistent with the First Amendment?

This Article begins by asking what would happen if the same arguments were applied to religious practices (whether or not the arguments’ supporters would seek to so apply them). Say some religious practice was viewed as causing emotional or financial harm—e.g., by leading some adherents to feel guilty about their sexuality, to distance themselves from family members, or to give substantial portions of their assets to the religious organization. …

The Public Utility Tradition In Antitrust Remedies, Ganesh Sitaraman

Emory Law Journal

Historically, courts, jurists, legislatures, and scholars have recognized that some businesses provide important services to society in sectors in which competition is unlikely to achieve the public interest. Policymakers adopted statutes that comprehensively regulated the market structure and operations of these businesses as public utilities, including, among other things, by determining entry and exit into business lines; overseeing or affirmatively setting prices; and requiring uniform, nondiscriminatory sales and access. When policymakers had not—or had not yet––stepped in to legislatively regulate these enterprises, abuses of power were possible. Private plaintiffs and governments sued under the common law or antitrust laws to …

The Nevada Plan: Redefining The Bar In The Silver State, Grace Michaelson

Nevada Law Journal Forum

Nevada is rewriting the rules of entry into its legal profession. In 2024, the Nevada Supreme Court approved plans for a new state bar exam that will take effect in 2027. The new format, known as the Nevada Plan, significantly departs from Nevada’s traditional bar exam and fundamentally alters the licensure process for those aspiring to practice law in the Silver State. This Note will explore the proposed changes and their implications through three main sections. Part I provides essential context for understanding the current moment in bar exam reform. It begins by examining the traditional role of bar exams …

287(G) Or Not 287(G)? That Is The Question: Nevada’S Role In Regulating Local-Federal Cooperation On Immigration Enforcement, Zachary Sweetin, Elizabeth Swenson

Nevada Law Journal Forum

This White Paper aims to examine the authority of local agencies and institutions in Nevada to enter into cooperative 287(g) agreements with ICE without state approval. Part I provides an overview of the history and structure of 287(g) agreements, including the recent adoption of this cooperative model by four Nevada jurisdictions. This Paper will also explore sections of Nevada Re- vised Statutes that may affect the legality of 287(g) agreements, focusing in Part II on Nevada’s modified Dillon’s Rule and in Part III on Nevada Revised Statutes (NRS) 228.206. Using pending American Civil Liberties Union of Nevada (ACLU) litigation against …

The Influence Of Adverse Childhood Experiences On Female Violent Offending: A Scoping Systematic Review, Alexis M. Wolgemuth

Theses, Dissertations and Capstones

Female-perpetrated violence has exhibited concerning data trends in recent years. Prior scholarship indicates that past victimization and trauma in childhood, known as adverse childhood experiences (ACEs), are highly prevalent among women offenders. However, the research concerning ACEs and violent females is scattered. This thesis provides a scoping literature review using the Preferred Reporting Items for Systematic Reviews and Meta-Analyses (PRISMA) updated 2020 guidelines. A systematic database search was conducted using Academic Search Complete, SAGE Journals, Springer Nature Link, and HeinOnline to identify relevant peer-reviewed journal articles. Inclusion and exclusion criteria are established, focusing on studies published after January 2015. These …

Legislative Support Of Religious Policy In Ukraine Under Martial Law, Volodymyr Karpunets, Andrii Shevchuk, Oleksandr Bilchuk

Occasional Papers on Religion in Eastern Europe

The article examines the legislative framework of Ukraine's religious policy under the conditions of martial law caused by the full-scale armed aggression of the Russian Federation. The constitutional foundations of state-confessional relations are analyzed, particularly the provisions of Article 35 of the Constitution of Ukraine on freedom of conscience and religion, as well as Article 64, which provides for the possibility of temporary restrictions on religious rights under martial law. Key legislative acts are reviewed: the Laws of Ukraine "On Freedom of Conscience and Religious Organizations" (1991, with amendments in 2018 and 2019), "On the Legal Regime of Martial Law" …

Collective Bargaining In The Usa : Union Success Within And Outside Of The Flawed Legal Framework, Angela B. Cornell

Cornell Law Faculty Publications

The labour movement in the US experienced a powerful upswing under President Biden, but even with a labour-friendly administration thousands of new bargaining units labour without collective bargaining agreements years a#er being organised. The many limitations and weaknesses of the collective-bargaining framework under the private-sector statute, the NLRA, contribute to this very unfortunate outcome including enterprise rather than sectoral bargaining, a lack of meaningful remedies for serious bargaining violations, very little interest arbitration when the parties cannot reach agreement and the extremely limited right to strike. Millions of American workers are deprived of the right to bargain collectively because of …

Restorative Restitution, Lula Hagos

GW Law Faculty Publications & Other Works

How to best meet the needs of crime victims while also furthering the imperative of decarceration has long vexed advocates and scholars alike. This dilemma comes into sharp focus when one examines two developments in criminal procedure that, until now, have been analyzed separately: victim restitution and restorative justice.

Criminal restitution, the monetary payments ordered from defendants to victims, often fails both groups. Because most defendants are indigent, restitution obligations lengthen defendants’ involvement with the criminal legal system without delivering meaningful compensation to victims, making restitution more symbolic than restorative. At the same time, interest in restorative justice has surged …

Justice Kagan’S Presidential Administration Article Twenty-Five Years Later, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This article is a contribution to a symposium on the durability of the famous article that Visiting Professor (now Justice) Kagan wrote in 2001 in her successful effort to obtain a tenured position on the Harvard faculty. The title of the article was “Presidential Administration.” Professor Kagan described the history of efforts to govern the administrative state and argued in support of the highly personal and overtly political approach taken by her former boss, President Clinton.

Professor Pierce begins by discussing at length agency adjudication--an important topic that Professor Kagan discussed in only a few paragraphs. He concludes that Professor …

Sex Equality After Skrmetti, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

The Supreme Court’s decision in United States v. Skrmetti upholding a ban on gender-affirming medical care for minors marked a foundational shift in constitutional sex equality doctrine. Rather than recognize the challenged ban’s sex-based line-drawing, the Court recast the statute as a neutral regulation of medical purpose and age. In so doing, it narrowed the definition of what constitutes a sex-based classification and embraced a conception of biological sex as a natural kind—objective, apolitical, and outside the scope of constitutional scrutiny.

The Article identifies this move as a doctrinal departure and a conceptual reconfiguration. The law’s challengers argued that it …

The Promise Of Artificial Intelligence For Identifying And Interpreting The Sources Of International Law, Sean D. Murphy

GW Law Faculty Publications & Other Works

Sir Michael Wood’s remarkable career was deeply enmeshed in the pragmatics of international law; how to make it work as a part of the lawyering that occurs daily in foreign ministries, international organizations, and courts or tribunals. Yet that focus on practical lawyering did not allow him to eschew broader considerations of doctrine and even theory. While his work on the International Law Commission as Special Rapporteur for Identification of Customary International Law was motivated by a sense that national court judges struggled to understand the basic parameters of that source of law, the work necessarily entailed grappling with some …

The Mistaken Turn To Church Autonomy, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

With increasing frequency and intensity, courts and commentators have advanced a doctrine of church autonomy that shields matters of internal church affairs from judicial scrutiny. Judges and scholars have invoked the doctrine in cases that involve disputes over property, employment, and governance of religious institutions. When applied, the doctrine ordinarily requires the dismissal of suits by aggrieved employees, congregants, or affiliated religious entities, thereby leaving employment and property disputes to unreviewable resolution by church authorities.

The turn to church autonomy is a regrettable mistake that contributes to the unjustifiable expansion of free exercise protections for religion at the expense of …

Faster Than The Speed Of Law: Data Privacy And Judicial Deference In Matters Of Technological Development And Social Media, Andrew A. Bohon

Missouri Law Review

Judge Richard Posner, formerly of the Seventh Circuit, once wrote, “the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.” The particular occasion for this maxim was a case in which Judge Posner disregarded the testimony of an expert witness who claimed the use of a nicotine patch had caused the plaintiff to suffer a heart attack—a claim with “no backing from scientific theory or data.” Cutting-edge technology is antithetical to the law, which is better-suited to an era of horse-drawn carriages and often requires judicial guesswork to …

The Use Of State Discipline To Sanction Attorneys General And Other High-Ranking Legal Officers, Leslie C. Levin

Faculty Articles and Papers

The United States Attorney  General, state attorneys general, and high-ranking officials in their offices, like all lawyers, are subject to rules of professional conduct.  Increasingly,  when they  push the  boundaries of  these  rules and other well-established  professional  norms,  individuals  and  organizations  are  filing state  lawyer  disciplinary  grievances  against  them.  While  some  see  troubling conduct  by  these  high-ranking  legal  officers,  others  view  these  disciplinary grievances  as  politically  motivated.  State  lawyer  disciplinary  authorities  often try to avoid addressing these grievances. This article  examines  why it is nonetheless  important  for  state  lawyer  disciplinary  authorities—which  are  arms  of state courts—to act on certain grievances. …

How To Evaluate Non-Majority Control: What History And Statutes Tell Us—Part Ii: The Definitional Consensus, J. Travis Laster

Fordham Journal of Corporate & Financial Law

This Article and a companion piece explore the claim that the functional school was novel and anomalous. The companion article examines the approaches that courts have historically taken when evaluating non-majority control (the “Historical Article”). The Historical Article demonstrates that functionalism has been the dominant approach since at least 1912, while the formal school is a recent innovation. Its tenets emerged in 2006 and coalesced in a recognizable framework around 2014. The Historical Article identifies the core claims of the two schools. 

This Article examines statutory definitions of control. It focuses on statutory regimes that use the concept of control …

Reevaluating Consumer Debt Enforcement: Why We Don’T Need Courts To Enforce Consumer Debt Contracts, Adam Toobin

Fordham Journal of Corporate & Financial Law

Enforcing consumer debt contracts against low- and middle-income borrowers, rather than making consumer debt markets work better, is inefficient and exacerbates consumer protection concerns. While consumer debt litigation—and enforcement of consumer debt contracts through wage and bank account garnishment—may have once strengthened nascent consumer debt markets, consumer credit scoring now effectively structures consumers’ incentives to repay their debt obligations. Debt enforcement is not necessary to encourage consumers to repay their debts and tends to drive borrowers into bankruptcy. Debt enforcement also undermines efforts to provide consumer protection in these markets by raising the stakes of any debt contract—where any default …

Insider Trading In Crypto Assets—Back To First Principles?, Katja Langenbucher

Fordham Journal of Corporate & Financial Law

This Essay examines whether the traditional rationales for prohibiting insider trading, which were developed for securities markets that facilitate capital formation, translate meaningfully to the emerging regulatory landscape for crypto assets. It contrasts the U.S. duty-based regime, grounded in fraud and fiduciary or confidential relationships under Rule 10b-5, with the EU’s information-based approach under the Market Abuse Regulation, which links trading prohibitions to mandatory disclosure of inside information. The former has proven underinclusive—prompting prosecutors to rely on wire fraud in recent crypto cases such as Wahi and Chastain while the latter tends toward overinclusivity. 

Turning to the newly emerging regimes …

Directors’ Fiduciary Duties In The Likelihood Of Insolvency, Miguel Martínez Muñoz

Fordham Journal of Corporate & Financial Law

The purpose of this Essay is to analyze the Directive and its interaction with American law in order to establish some considerations in coordinating the provisions of insolvency and corporate law. This Essay focuses on the configuration of a new framework of directors’ liability in which, among other aspects, the identity of the parties subject to the duties is expressly defined, as well as the application of the rules regulating the protection of corporate discretion as well as the application of the rules regulating the business judgment rule. In turn, the Essay puts forward some proposals for a solution to …

Antitrust And Tech Giants: Learning From United States V. Google Llc, Marcus D’Agostino

Fordham Journal of Corporate & Financial Law

This Note addresses the evolution of antitrust regulation and enforcement in the United States, with a focus on the recent case of United States v. Google LLC. That case is used to frame the broader problem of insufficient remedies being implemented against large technology firms. The mild remedies granted to the government in Google reinforce the findings of the 2020 Congressional Report on Digital Competition. The Report recommended changes to the antitrust laws that would revive structural separation as a remedy. This Note argues that the body of evidence presented compels structural separation to be used more frequently as the …

Zero Tolerance Or Strong Cultural Diversity: The Hard Case Of Female Genital Surgery, James M. Donovan, Christiane Canant

Law Faculty Scholarly Articles

This article applies a thesis favoring strong cultural diversity to defend a subject-centered policy regarding female genital surgeries (FGS). That idea posits that cultural variation holds an intrinsic value that should be presumptively respected when setting policy and creating law. Correlatively, cultural homogenization, especially by force, should be resisted. 

Taking as a starting point the recent celebration of the United Nation’s Day of Zero-Tolerance for Female Genital Mutilation, the paper reviews the context of FGS practices in various societies and critiques the inconsistencies of U.N. arguments to advance its goal of total elimination by 2030. Especially problematic for the U.N. …

Rewwild: Reimagining Environmental And Wildlife Wellbeing Through Innovative Lawn Design, Morgan J. Sandau, Maiya G. Roelen, Katia E. Chavez, Lydia K. Niedermeyer

Undergraduate Theses, Professional Papers, and Capstone Artifacts

Manicured, monoculture lawns often dominate private land in urban areas for aesthetic organization. Colonialist roots are embedded in the history of turfgrass lawns and white-picket fences intended to suppress Indigenous knowledge and ways of caring for the diverse land around us. Private land misuse and homogenous lawns are not limited to the United States; the modern lawn contributes to biodiversity loss on a global scale. Humans are concentrated in cities across the world, and urban areas are known to have negative implications for wildlife and habitat, human health, and sustainable resource use. Management of private land in urban settings is …

Managing Deportation: How Docket Control Replaced Substantive Relief In Immigration Courts, Linus Chan

Articles

In the modern deportation era, immigration courts saw their ability to grant relief from deportation undergo significant restrictions, constraining individualized discretion in favor of "categorical" denials. Congress dramatically curtailed the discretionary tools available to immigration judges, with the latest being the pair of immigration reforms from 1996, shifting the locus of individualized decision-making away from the courts and toward enforcement officers and prosecutors. Immigration courts lost discretion in being able to decide who could formally be granted status and stay in the United States when facing deportation through various restrictive eligibility requirements written into the law.

This Article argues that …

Sustainable Mobility In International, European And National Law: A Perspective From Europe, Lando Kirchmair

Journal of Law and Mobility

This Article develops a European perspective on sustainable mobility, a concept still underexamined in legal scholarship, and argues that meeting today’s mobility needs while preserving ecological foundations for future generations will not occur without deliberate regulatory intervention. After clarifying the evolution of the core concepts of sustainability, mobility, and sustainable mobility, the Article shows how international, European, and Austrian law have progressively incorporated sustainability goals in the transport sector. It then proposes a taxonomy of financial incentives–from subsidies and tax breaks to behavioral nudges—and evaluates their effectiveness, emphasizing the need for flexible, context-specific regulatory instruments. Applying these insights to self-driving …

Book Review: Automobiles, Cultures And The Question Of Law, Stephen M. Young

Journal of Law and Mobility

Unsettling Colonial Automobilities: Criminalisation and Contested Sovereignties is a compelling interdisciplinary and multileveled study that sits at the intersection of law, criminology, settler colonial studies, and cultural analysis. The authors are well-suited to this task. They include Professors Harry Blagg, with expertise in First Nations community-engaged criminology; Thalia Anthony, from legal and carceral studies; Wiradjuri scholar Juanita Sherwood, who studies Indigenous health and community research; and Kieran Tranter, an expert in cultural legal theory. Together, they offer a layered interrogation of how the motor vehicle and automobility shape the settler colonial ordering of Australia.

This review is comprised of three …

Overbreadth In Medical Practice Acts: A Threat To Preventive Speech, Barbara Zabawa

Faculty Works

Many Americans consult unlicensed wellness coaches for scientifically-valid advice on diet, exercise, and lifestyle interventions. Yet state medical practice acts and ambiguous government line drawing between wellness and medical care chill the speech of these coaches as it relates to disease prevention, even though conventional medicine systematically fails to deliver the speech-heavy preventive care consumers need and want. This Article argues that medical practice acts, particularly the sixteen state statutes that include "prevention" in their definition of medical practice, are constitutionally overbroad restrictions on protected speech. Despite judicial and scholarly assumptions to the contrary, not all those working in wellness …

Striking Out Bias: A Path Toward Ending Religion-Based Peremptory Strikes, Catherine King

Journal of Criminal Law and Criminology

Peremptory strikes, while designed to craft fair and impartial juries, carry with them the potential for discriminatory use. Cognizant of this, the Court has imposed limitations on their use, producing over time the Batson line of case law. While Batson and its progeny aimed to eliminate discriminatory peremptory strikes, the consensus forty years later is that this goal remains unfulfilled—largely due to the continued acceptance of ostensibly race-, gender-, and ethnicity-neutral justifications. Religion has emerged as a frequent rationale, creating uncertainty about its permissibility and producing a circuit split.

Despite repeated calls for finality on the question of religion-based peremptory …

Paying Financial Sanctions Via Incarceration: A Case Study Of “Sitting Out”, Beth Colgan, Jordan B. Woods

Journal of Criminal Law and Criminology

This Article provides a comprehensive statewide study of a practice by which courts order defendants to pay financial sanctions—fines, costs, and probation fees—by serving terms of incarceration. Though several states authorize these practices, to date, very little is known about the extent to which payment via incarceration occurs and the different ways it is employed. This Article examines the use of the practice in Nebraska, where it is colloquially referred to as “sitting out.” Our study specifically focuses on all misdemeanor cases in Nebraska county courts with judgments (an adjudication of guilt and/or sentencing) during the year 2019.

This study …

Connecting Mens Rea And Actus Reus: Toward A New Theory Of Correspondence, Elise Sugarman

Journal of Criminal Law and Criminology

The justifiable imposition of criminal liability requires more than possession of mens rea and performance of an actus reus. A defendant’s mens rea and actus reus must also connect in a particular way. While this is a well-recognized principle in Anglo-American criminal law, the nature of the required connection—“correspondence”—is poorly understood.

This Article identifies three conflicting existent theories of correspondence from the criminal legal literature and from judicial reasoning: contemporaneity theory, actuation theory, and normative theory. According to contemporaneity theory, correspondence requires that mens rea overlap in time with the actus reus. According to actuation theory, correspondence requires that mens …

Leveraging Intellectual Property For Development: Insights From South Korea For Developing Countries, Gracie Alinafe Chimvula

Cybaris®

No abstract provided.

Zero Tolerance Or Strong Cultural Diversity: The Hard Case Of Female Genital Surgery, James M. Donovan, Christiane Canant

Emory International Law Review

This article applies a thesis favoring strong cultural diversity to defend a subject-centered policy regarding female genital surgeries (FGS). That idea posits that cultural variation holds an intrinsic value that should be presumptively respected when setting policy and creating law. Correlatively, cultural homogenization, especially by force, should be resisted.

Taking as a starting point the recent celebration of the United Nation’s Day of Zero-Tolerance for Female Genital Mutilation, the paper reviews the context of FGS practices in various societies and critiques the inconsistencies of U.N. arguments to advance its goal of total elimination by 2030. Especially problematic for the U.N. …