Law Commons^™

Using A "Moves To Innocence" Approach To Dissect And Debunk The Claim That Critical Race Theory Is Antisemitic, Diane Kemker

Lewis & Clark Law Review

In the United States, law and policy have most frequently reflected dominant white Christian majority interests. Critical Race Theory (CRT) offers powerful tools for understanding our history and situation, including that of American Jews, and how the social positions and interests of American Blacks and Jews, real and perceived, have intersected, sometimes aligning, sometimes diverging, and sometimes conflicting. And yet, among other charges leveled against it, Critical Race Theory is frequently accused of being antisemitic.

Intentionally or not, this charge delegitimizes and discredits CRT, and therefore advances the aims of all who oppose it for any reason, including white supremacists …

Politicizing Antisemitism Amidst Today’S Educational Culture Wars, Lili Levi

Lewis & Clark Law Review

The traditional narrative of American Jewry emphasizes American exceptionalism with respect to antisemitism. But there have been clear signs of a resurgence of public antisemitism in the United States even before the massive rise in antisemitic expression and incidents associated with the Israel-Hamas war of fall 2023.

One of the notable aspects of the rise and normalization of antisemitic expression is the deployment of antisemitism as a political tool. For example, in addition to Democrats and Republicans accusing each other of complicity in antisemitism, both federal policy since the Trump era and state antiantisemitism legislation have targeted campus antisemitism in …

States, Firms, And Their Legal Fictions: Attributing Identity And Responsibility To Artificial Entities, Melissa (M.J.) Durkee

Scholarship@WashULaw

This volume offers a new point of entry into questions about how the law conceives of states and firms. Because states and firms are fictitious constructs rather than products of evolutionary biology, the law dictates which acts should be attributed to each entity, and by which actors. Those legal decisions construct firms and states by attributing identity and consequences to them. As the volume shows, these legal decisions are often products of path dependence or conceptual metaphors like “personhood” that have expanded beyond their original uses. Focusing on attribution, the volume considers an array of questions about artificial entities that …

Overturning Race-Conscious Admissions: Analyzing The History Of Higher Education Affirmative Acton Legal Discourse And Preserving Whiteness, Hiba A. Qari

Graduate Theses, Dissertations, and Problem Reports (ETD)

Although researchers have investigated Affirmative Action, few have attempted to understand and explain the language mechanisms shaping public opinion and policy. The purpose of this study was to explore the historical context of higher education Affirmative Action legal discourse. This study employed Critical Discourse Analysis and Critical Race Theory to analyze how language and race, as social constructs, maintain White dominance in law and higher education. The thematic concepts included power, White normativity, and diversity rhetoric. This project explored the historical evolution of the U.S. Supreme Court’s decisions on Affirmative Action policy in higher education. The study also investigated the …

Constitutional Right To A Fair Trial And Social Justice Influence, Kaitlyn Marchant

Pace Law Review

This article evaluates the challenges that have arisen from the growth of social media and its influence on the right to the fair trial process in high-profile cases. Pretrial publicity through media exposure can bias potential jurors, potentially leading to decisions based on outside information rather than courtroom evidence. The article highlights the risks associated with jurors being exposed to external information through various media sources, which can significantly impact their objectivity and ability to make impartial judgments. It scrutinizes the limitations of the existing legal framework in addressing these challenges, including the reliance on jurors’ assurances of impartiality and …

The Curious Case Of Justice Neil Gorsuch, Justin Burnworth

Pace Law Review

Justice Gorsuch has a propensity for unexpected decisions. His opinions in Bostock v. Clayton County, United States v. Vaello Madero, and McGirt v. Oklahoma confounded the legal community at large. Some argue that his Western upbringing played a role. Others argue that his time clerking for Justice Kennedy primed him for unpredictable decisions. These explanations do not get at the core of Justice Gorsuch’s legal reasoning. This article dives into the depths of these opinions to extract his “Enduring” theories of law. I argue that legal scholarship has incorrectly viewed these three decisions as isolated incidents when they are best …

Implied Warranty Claims Under The Magnuson-Moss Warranty Act: Resolving Fifty Years Of Uncertainty, Stephen E. Friedman

Pace Law Review

This Article addresses whether Congress intended for consumers to bring implied warranty claims on consumer products under the Magnuson-Moss Warranty Act in all instances or only when a defective product is covered by a written warranty. The question, unresolved almost fifty years after the Act’s passage, is of great practical importance because consumers who bring claims under the Act are eligible for attorneys’ fees and other potential advantages not available to plaintiffs bringing warranty claims under state law. This Article analyzes the two current approaches courts have taken to address the issue: a broad approach where consumers can bring a …

Large Language Models: Ai's Legal Revolution, Adam Allen Bent

Pace Law Review

This article contemplates and advocates for the use of Artificial Intelligence (“AI”) through Large Language Models (“LLM”) in legal practice. The author ultimately addresses the need to orient LMMs within varying legal contexts including academia, private practice, as well as the U.S. court system. Additionally, the author emphasizes the inevitability of AI and LLM systems infiltrating legal practice, and the reality that the industry must acknowledge and accept these systems to regulate and to provide better while still ethical legal services. Large Language Models: AI’s Legal Revolution, begins by walking the reader through the history of technological innovation of AI, …

Do Judges Understand Technology? How Attorneys And Advocates View Judicial Responsibility In Cyberstalking And Cyberharassment Cases, Kateryna Kaplun

International Journal on Responsibility

As new technologies emerge and are increasingly used to commit interpersonal cybercrimes like cyberstalking and cyberharassment, the legal system lags in assisting victims in obtaining justice in these types of experiences. This qualitative research study explores how attorney and advocate interviewees from Illinois, New Jersey, and New York view judges’ responsibility to the law in cyberstalking and cyberharassment cases. This study finds three themes: judges’ lack of understanding of technology and its harms, discretion, and law on the books versus law in action as important factors and frameworks that contribute to why judges do not consider the importance of technology …

Bailing On The Bondsman: An Argument For Abolishing Monetary Bail, Sean Freeland M.S., J.D.

Lincoln Memorial University Law Review Archive

Money bail as a condition for pretrial release has existed throughout American history. Two out of every three inmates held in jails across the United States have not been tried for a crime and are only held because they cannot afford to pay the cost of their bail. The longer a defendant awaits trial in detention, the higher the chance they will be convicted of a crime and sentenced to a longer term than a defendant who is awarded pretrial release. The prolonged time awaiting trial in detention contributes to recidivism and increased criminalization for individuals and their communities. For …

Originalism's Time Machine: A Resurrected Relationship To The State, Douglas B. Mckechnie J.D.

Lincoln Memorial University Law Review Archive

For almost sixty years, the constitutional understanding of physical autonomy in the U.S. included the right to end a pregnancy. This modern understanding of constitutional rights began with the Supreme Court’s evolutive interpretation of the Constitution in the mid-Twentieth Century and continued to expand into the Twenty-first Century. In Dobbs v. Jackson Women’s Health Organization, however, the Court reasoned that the right to physical autonomy it had identified fifty years earlier, in Roe vs. Wade, was not deeply rooted in the nation’s history and thus wrongly established by the Court. This Originalist interpretation of the Constitution rearranged the constitutional order. …

Prosecutorial Misconduct: Conviction By Any Means Necessary, Walter W. Harding Jr.

Lincoln Memorial University Law Review Archive

Prosecutors serve as advocates of victims and the community in criminal proceedings. Prosecutors’ primary role is to serve proper justice during these criminal proceedings. When the focus of the prosecutor is on quantity of convictions rather than quality of convictions, only injustice can result. Currently, prosecutors are expected to self-regulate their own offices to prevent prosecutorial misconduct. Yet, all attorneys and all judges have rules of professional and judicial responsibility to report such misconduct. Furthermore, sovereign and qualified immunity protects prosecutors, who commit misconduct, to gain convictions. There is a need to remove these immunity protections from prosecutors, who commit …

Empowering The Eeoc: An Enforcement Strategy To Tackle Workplace Sexual Harassment, Noah Bloomberg J.D.

Lincoln Memorial University Law Review Archive

This Note argues that for Title VII to adequately combat workplace sexual harassment on a national scale, the EEOC needs stronger enforcement authority. Though Congress intended the EEOC to be the main mechanism for enforcing Title VII, it is currently too limited by federal law. Using the framework employed by the Obama Department of Education with Title IX, the EEOC can enforce Title VII in a way that not only remedies individual cases of widespread sexual harassment but also institutes a sea of change within workplace policies as a means of proactively addressing sexual misconduct, similar to how Title IX …

Lethal Injections: Protocol Plagued With Secrecy And Flaws Ushering In The New Era Of Botched Executions, Willow Van Skyhawk

Lincoln Memorial University Law Review Archive

Since its adoption as the primary means of execution in the United States, lethal injections have exasperated issues of cruel and unusual punishment. Despite having the best public sentiment, lethal injection protocols are plagued with serious ethical concerns. The government’s attempt to humanize the death penalty resulted in medical abuse and botched executions. This Note explores such malign lethal injection protocols, the remedial efforts made to address such protocols, and whether the legal injection system can exist without harm. The reformation of lethal injection protocols is a societal responsibility. Americans must decide how comfortable society should be with the inconsistency …

Digital Inclusion For People With Autism Spectrum Disorders: Review Of The Current Legal Models And Doctrinal Concepts, James Hutson, Piper Hutson

Faculty Scholarship

Objective: Today, a significant part of professional tasks are performed in the digital environment, on digital platforms, in virtual and other meetings. This necessitates a critical reflection of traditional views on the problem of accessible environment and digital accessibility, taking into account the basic universal needs of persons with disabilities.

Methods: A gap between the traditional legal perspective on special working conditions for persons with disabilities and the urgent need of a digital workplace (digital environment) clearly shows lacunas in the understanding of accessibility, which are identified and explored with formal-legal and doctrinal methods. The multifaceted aspects of …

Justice On Trial: A Multifaceted Analysis Of Capital Punishment, Abby Long

Honors Theses

There is an ongoing debate surrounding the criminal justice system, focusing specifically on the controversial topic of capital punishment. Highlighting a startling statistic—one in nine death row inmates being exonerated— a pivotal question arises of what factors influence sentencing outcomes? Seven variables, number of sentences, income of offender, region of sentencing, race of offender, gender of offender, and political affiliation of sentencing state, are considered to understand the variations in sentencing outcomes and assess the fairness of the current judicial process. Using an OLS regression analysis of data from all 50 U.S. states, the paper seeks to better understand capital …

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

Auc Community Only Lecture: Gender-Based Violence (Gbv), Women & The Law In Egypt, The Prince Alwaleed Center For American Studies And Research Casar

Performances, Events, and Presentations

This special guest lecture was part of the course “Exploring Feminist Perspectives in Egypt and the US” taught by CASAR Adjunct Faculty Yasmeen El-Ghazaly. The lecture was given in Arabic by Counselor Mohamed Samir, who is a senior member of the judicial authority in Egypt, responsible for the accountability of civil servants’ crimes and misconduct. He is also a lecturer in Political Science and Gender Based Violence Crimes. Samir has over 25 years of experience in his career, and was invited to discuss “challenges and legal obstacles women face when discussing gender based violence in Egypt.” In his insightful lecture, …

Ensuring Data Privacy In A Decentralized World: An Analysis Of The Legal Challenges And Implications Of Smart Contracts, Khusbeen Dhillon

Featured Student Work

Advances in blockchain technology have revolutionized what a contract can be: lines of code that are stored on the decentralized network, otherwise known as smart contracts. Smart contracts are self-executing agreements that automatically enforce the terms of the agreement using a series of if-then conditions. They are projected to give a better solution to traditional contracts in terms of reducing risk, reducing costs, and improving the efficiency of corporate processes. However, the transparent and immutable nature of blockchain technology imposes significant challenges regarding an individual’s right to control their personal information in the context of smart contracts. This article examines …

Rights Without Remedies: How The Illinois Post-Conviction Hearing Act’S Standing Requirement Has Failed Defendants, Nate Nieman

Northern Illinois University Law Review

The Illinois Post-Conviction Act is a procedural mechanism that allows a criminal defendant to assert that his federal or state constitutional rights were substantially violated during trial or at sentencing. The passage of the Act expanded a defendant’s ability to challenge his conviction and sentences collaterally, where before the Act, he had only been able to raise these challenges on direct appeal. However, the Act’s strict standing requirement precludes defendants from relief once they have completed their sentence, ignoring the fact that many important, life-altering civil consequences resulting from criminal convictions occur after a sentence has concluded.

This Article argues …

Illinois’S Marijuana Madness: A Protectionist Scheme Of An Illegal Market In The Shadow Of The Constitution, Alec C. Moehn

Northern Illinois University Law Review

From prohibition to legalization, Marijuana has had a storied legal history in the United States, but its story is not quite over. A new gray area is coming to the forefront of the legal field: Marijuana is illegal federally but legal in many states. This Note discusses how some states, including Illinois, are operating in that gray area to better their political and economic goals, but the Constitution places a barrier to do so with the Dormant Commerce Clause. States are not free to discriminate against other states or out-of-state economic actors, and Illinois does just that with the Cannabis …

The Future Of Employee Job Security In Illinois, Daniel S. Alcorn

Northern Illinois University Law Review

The at-will employment doctrine is more than a century and a half old. Illinois has long subscribed to the at-will employment doctrine, but the doctrine is dying a slow death. The doctrine has positive and negative aspects, but the lack of employee job security will prove to be a fatal flaw. The doctrine is not so well founded in reason or legal history to save it. Employee job security is becoming increasingly desirable and important. The legislatures and courts are making significant inroads on the doctrine to protect employee job security. A bill to abrogate the doctrine and require cause …

A Right To Fly: Navigating The Air Carrier Access Act And The Americans With Disabilities Act Following Alexander V. Sandoval, William Belles

Northern Illinois University Law Review

There are approximately 54 million disabled individuals in the United States. Those 54 million American citizens live their day to day lives differently than the average person, facing difficulties most others cannot comprehend. While legislation has come a long way in recent decades, one area that has remained stagnant is how we treat disabilities on airplanes. Despite legislation remaining relatively stagnant, judicial opinions have not. In fact, many United States Circuit Courts have determined that the Air Carrier Access Act, which provides limited protections on airplanes, does not confer a private cause of action for violations. As a result, the …

Towards An Effective Transnational Regulation Of Ai, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Law and the legal system through which law is effected are very powerful, yet the power of the law has always been limited by the laws of nature, upon which the law has now direct grip. Human law now faces an unprecedented challenge, the emergence of a second limit on its grip, a new “species” of intelligent agents (AI machines) that can perform cognitive tasks that until recently only humans could. What happens, as a matter of law, when another species interacts with us, can be integrated into human minds and bodies, makes “real-world” decisions—not through human proxies, but directly—and …

Is There Really Anything Wrong With That? An Aristotelian Analysis Of Duty, Luke J. Mcgrath

Honors College Theses

In the iconic Seinfeld series finale, Jerry, George, Elaine, and Kramer find themselves in a peculiar legal predicament when they mock a crime rather than intervene to help the victim. The show’s commitment to portraying reality, even in its finale, vividly demonstrates the potential consequences of a society lacking the legal obligation to aid others. This comical incident raises a thought-provoking question about the legitimacy of duty-to-act laws in the United States. This thesis examines the application of Aristotle’s Nicomachean Ethics to the concept of duty-to-act laws and argues for the necessity and benefits of such laws in promoting a …

Leveraging Technology To Promote Access To Justice, Amy Emerson

Faculty Publications

No abstract provided.

Common Sense Recommendations For The Application Of Tax Law To Digital Assets, Luís Calderón Gómez, Young Ran (Christine) Kim, Edward A. Zelinsky

Online Publications

In response to the Joint Committee on Taxation’s July 2023 request for comments on application of various Internal Revenue Code sections on digital assets, we propose a consistent set of rules to apply current law to digital assets. We highlight that the underlying economics and characteristics of transactions should be the primary concern for the application of rules and the valuation of digital assets. We believe any digital asset rules should (1) treat classes of digital assets with unique characteristics differently based on their economics, (2) minimize incentives for users to engage in tax-motivated structuring of transactions, and (3) allow …

2023 Bauer Lecture: Judge Dale Ho, Dale Ho, Ryen Lim

Bauer Lecture Series

No abstract provided.

Firearms Law And Scholarship Beyond Bullets And Bodies, Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

All Faculty Open Access Publications

Academic work is increasingly important to court rulings on the Second Amendment and firearms law more generally. This article highlights two recent trends in social science research that supplement the traditional focus on guns and physical harm. The first strand of research focuses on the changing ways that gun owners connect with firearms, with personal security, status, identity, and cultural markers being key reasons people offer for possessing firearms. The second strand focuses on broadening our understanding of the impact of guns on the public sphere beyond just physical safety. This research surfaces the ways that guns can create fear, …

Retconning Heller: Five Takes On New York State Rifle & Pistol Association, Inc. V. Bruen, Glenn Harlan Reynolds, Brannon P. Denning

Scholarly Works

New York State Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in nearly fifteen years since its decision in District of Columbia v. Heller. This Article offers some preliminary observations about the opinion itself, as well as its likely effects, some of which are starting to manifest

Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts-whose support for the Second Amendment has been suspect-assign the opinion to Justice Thomas?

Takes Two and Three concern Justice Thomas's substitution of text, history, and tradition for …