Law Commons^™

Civilian Enforcers, Karen Pita Loor

Faculty Scholarship

This Article analyzes the largely unexplored phenomenon of militant civilians engaged in efforts to police and silence activism that challenges entrenched American power systems and economic distributions placing whites atop the social hierarchy in the United States. I argue that this civilian enforcement is an unregulated vessel for state-sponsored violence meant to silence the contestation of the existing racial hierarchy. While scholars, myself included, have written about the many ways police confront and silence racial justice activists on the streets at least since the beginning of the Black Lives Matter (BLM) movement, the role law enforcement plays in silencing racial …

"What Shall Be Orthodox" In Polarized Times: Overview And Response To Commentators, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Justice Robert Jackson wrote this celebrated passage in his majority opinion in West Virginia State Board of Education v. Barnette (1943), which protected the First Amendment right of Jehovah’s Witness children not to participate in a compulsory flag salute in public schools. In recent years, protests against imposed orthodoxy—usually invoking Barnette—have occurred in …

A Historical Case For A Robust But Non-Remedial Seventh Amendment, Jed Handelsman Shugerman

Faculty Scholarship

In Jarkesy, the Supreme Court rightly held that the Seventh Amendment required a jury trial for a case fundamentally similar to common law fraud, and it rightly limited the scope of the “public rights” exception to the Seventh Amendment. Grounded in historical and originalist methods, this essay makes four suggestions after Jarkesy:

1. Following Jarkesy, the judiciary should continue a more robust enforcement of the Seventh Amendment right to a jury trial. The courts should eliminate the “public rights” exception to the Seventh Amendment, which does not appear to have an original link to the Seventh Amendment. The …

The Crucial Role Of Insolvency Law In Job Creation And Preservation, Andrés F. Martínez, Aurelio Gurrea-Martinez, Harish Natarajan

Research Collection Yong Pung How School Of Law

When companies face financial trouble, potential job losses can be a major risk for people and—depending on the size of the company or industry in trouble—a risk to local or national economies. An efficient insolvency system can mitigate this risk while contributing to the creation of more and better jobs. As jobs are the most critical tool in fighting poverty, a better understanding of the effects of insolvency law on employment is vital for development work.

An Originalist Case For Birthright Citizenship Of Unlawful Immigrants' Children: Anti-Gypsy And Anti-Chinese Restrictions As Context, Jed Handelsman Shugerman

Faculty Scholarship

The Trump administration and other opponents of birthright citizenship for the children of “unlawful immigrants” make the following originalist claim about the Fourteenth Amendment: Even if the clause meant birthright citizenship, it applies today only to “lawful immigrants,” because the category of “unlawful immigrant” or “illegal immigrant” did not exist in the 1860s, when the clause was written and ratified. Opponents also argue that the Fourteenth Amendment’s citizenship clause originally implied a “loyalty” or “allegiance” requirement.

These assertions are historically inaccurate.

To the contrary, the concept of “unlawful immigrants” existed in the 1850s-60s, and Americans ratified birthright citizenship without indicating …

Dark Patterns As Disloyal Design, Johanna Gunawan, Woodrow Hartzog, Neil Richards, David Choffnes, Christo Wilson

Faculty Scholarship

Lawmakers have started to regulate “dark patterns,” understood to be design practices meant to influence technology users’ decisions through manipulative or deceptive means. Most agree that dark patterns are undesirable, but open questions remain as to which design choices should be subjected to scrutiny, much less the best way to regulate them.

In this Article, we propose adapting the concept of dark patterns to better fit legal frameworks. Critics allege that the legal conceptualizations of dark patterns are overbroad, impractical, and counterproductive. We argue that law and policy conceptualizations of dark patterns suffer from three deficiencies: First, dark patterns lack …

Faculty List

Journal of Dispute Resolution

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Journal of Dispute Resolution

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Masthead

Journal of Dispute Resolution

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Table Of Contents

Journal of Dispute Resolution

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Introduction To The Symposium Issue, Allie Widick

Journal of Dispute Resolution

The following articles stem from the presentations at the 2024 Mizzou Law Center for the Study of Dispute Resolution 40th anniversary symposium. The symposium, titled Dispute Resolution at Forty: Looking Back, Looking Forward, featured some of the top legal scholars, including former Mizzou Law professors, and even a former Journal of Dispute Resolution Editor-in-Chief. The three panels discussed traditional and non-traditional dispute resolution forms, the NextGen Bar Exam, and emerging trends. A highlight of the event included a keynote address with Leonard Riskin, the first director of the Center for the Study of Dispute Resolution.

Looking Forward, Reflecting Back: The Promise Of Dispute Resolution To Reform The Criminal Legal System, Cynthia Alkon

Journal of Dispute Resolution

The criminal legal system in the United States is plagued by serious and systemic problems. There have been countless efforts at reform over the last many decades that have included changes in what is a crime, how crimes are punished, how prosecutors do their job, and changes in policing. Yet, despite these efforts, problems such as mass incarceration remain deeply embedded. It is easy to be swept up in pessimism when discussing the criminal legal system. Change is hard, at best incremental, and we seem to be in the beginning of an era of backlash against recent reforms. This is …

The Settlement Privacy-Transparency Matrix: Moving Beyond The Dichotomous Mindset In The Settlement Debate, Alyson Carrel, Peter K. Chan

Journal of Dispute Resolution

The philosopher Arthur Schopenhauer once wrote, “The first forty years of life give us the text; the next thirty supply the commentary on it.” Forty years after Owen Fiss’s seminal article “Against Settlement,” it is time to reimagine how we approach the settlement debate beyond traditional dichotomies. Just as Schopenhauer recognized that time and experience allow us to better understand our past, forty years of grappling with the settlement debate have given us the perspective to see its limitations, and now with emerging technologies, new possibilities. The ‘text’ of the debate—its dichotomous framing and distributive solutions—has shaped four decades of …

Psychology And Dispute Resolution: Looking Forward, Jennifer K. Robbennolt

Journal of Dispute Resolution

There is a long and deep history of interconnection between dispute resolution and psychology. Concepts like procedural justice permeate the literature. Psychologists have investigated and provided data about phenomena such as the fixed pie bias, impasse aversion, and reactive devaluation. Research drawing on the psychology of heuristics and biases has been influential, particularly in work on settlement decision making. Studies in this tradition have explored how framing, anchoring, anticipated regret, and different ways of considering options can influence the decisions made by disputants. Psychologists have explored the role of apologies in dispute resolution, the role of emotion in negotiation, and …

“America’S Peacemaker” Needs A Makeover: The Department Of Justice’S Community Relations Service Should Use Transformative Mediation And Restorative Justice In Today’S Black Lives Matter Movement, Julianna Leung

Journal of Dispute Resolution

On March 7, 1965, civil rights leaders John Lewis and Hosea Williams led hundreds of people across the Edmund Pettus Bridge in Selma, Alabama. Their goal was to march to the state capitol of Montgomery in protest of racial segregation and the suppression of African American voters. On the other side of Pettus bridge, state troopers and spectators waving Confederate flags waited for them. When the protesters reached the end of Pettus, state trooper Major John Cloud ordered them to stop the march and leave. Williams tried to speak with Major Cloud, but Major Cloud rebuffed him. When the protestors …

Volunteered Or Voluntold: Effectiveness Of Good Faith Clauses On Court-Ordered Mediation, J. Michael Moore

Journal of Dispute Resolution

Mediation is the “process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” There is a growing trend in many states and the federal government to allow courts to refer parties to mediation or other forms of alternative dispute resolution (“ADR”). However, one of the distinguishing elements of a mediation is that the parties come to a voluntary agreement. If the court has forced the parties to mediate, does that negate the voluntary nature of mediation? The answer to this question appears to be yes, but the real …

A Conversation About Stare Decisis, Debra A. Livingston, John Q. Barrett

Faculty Scholarship

John Q. Barrett (“JQB”)

Chief Judge Debra Ann Livingston, welcome back to St. John’s.

The Chief Judge has been a friend to us for many years. It is an honor to host someone of her talent and someone in her position: the Chief Judge of the U.S. Court of Appeals for the Second Circuit.

We’re going to have a conversation for the first part of the program, about judging, her work, and stare decisis. But first, we need to meet you and hear a little bit about your background — where you are from — and the path that took …

Annual Review Of Seqra Cases And Developments, Michael B. Gerrard

Faculty Scholarship

The New York State Environmental Quality Review Act (SEQRA) turns 50 this year. The statute has changed only a little in the last half century, but it continues to be a font of litigation. The courts decided 43 cases under SEQRA in 2024.

Implementation of SEQRA is also raising policy issues. The legislature is considering whether to amend SEQRA to speed up affordable housing projects, and the State Department of Environmental Conservation (DEC) is drafting regulations concerning the role SEQRA should play in advancing environmental justice.

A constant theme is the tension between thoroughly studying important project impacts and involving …

Transforming The World With Reparations?, Ingrid Brunk, Monica Hakimi

Faculty Scholarship

Claims for reparations in international law commonly reflect two competing visions--one transformative, the other corrective. The transformative vision looks to reparations to end the long tail of injustices that are associated with large-scale historic harms. The corrective vision is more confined; it focuses on repairing specific, legally cognizable harms and returning the agents or entities involved as closely as possible to the status quo ante. We argue in this Essay that these two visions have distinct conceptual logics, even though they often overlap in practice, and that the transformative vision cannot carry the burdens that are placed on it.

Wealth Taxes Under The Constitution: An Originalist Analysis, David M. Schizer, Steven G. Calabresi

Faculty Scholarship

A federal wealth tax is high on the wish list of progressives, but is it constitutional? This Article shows that under the original public meaning of the Constitution, a wealth tax is a “direct tax” that must be apportioned. This means that the percentage of revenue collected in each state must match its percentage of the population. For instance, if two states both have three percent of the population, each must provide three percent of the revenue. This leads to an unappealing outcome: if one state is less wealthy, it needs a higher tax rate to supply its share.

Article …

Being And Becoming In The Algorithmic Age, Bernard E. Harcourt

Faculty Scholarship

To change the world: the prerequisite, most often, is to change our experience of the world, to experience the world differently, to be shaken to our foundations, to have one’s sense of self shattered. That is a process of both being and becoming. In order to turn that process in our favour, in this age of artificial intelligence, it will be crucial to transform data and algorithms into bits of justice.

Going Gray Too Early? Effects Of Color On Facial Identification, Roman M. Pardo

Masters Theses (Archived)

This study investigated a possible bias in face-matching and ID-screening decision making- color incongruity (i.e., one face image presented in color and one in grayscale). Expanding on previous research, the 2x2 mixed methods experiment incorporated eye tracking measures (i.e., fixations). Participants N= 25 were randomly assigned to compare color or grayscale IDs (between groups comparison) to a 10 s color video of a person moving their head side to side. The task consisted of 2 practice and 48 face-matching trials with medium prevalence (MP, 24 match, 24 mismatch) presented as one of four pseudo-random and counterbalanced orders. Signal detection …

Extractivism And Water Crisis In The Moroccan Draa Oasis: Global South Reflections On Responsibility And Resistance, Ahmed El Khatabi

Journal of Maya Heritage

Abstract. The Draa Oasis in southeastern Morocco is experiencing severe water scarcity, driven by climate change and intensified by the expansion of watermelon agribusiness and desert tourism. This article explores how external investors, empowered by national agricultural policies, have disrupted traditional water governance systems rooted in collective management. Through ethnographic fieldwork involving interviews, focus groups, and spatial mapping, the study examines the socio-environmental consequences of groundwater depletion and land commodification. It argues that investors fail to assume ethical accountability for the ecological degradation they cause, despite being aware of the oasis’s fragile ecosystem. Meanwhile, local communities and civil society actors …

Beneath The Label - Evaluating The Fda Approval Of Copenhagen Classic Snuff As A Modified Risk Tobacco Product, Yisroel Grabie, Tafani Chowdhury, Sudeep Acharya

HCA Healthcare Journal of Medicine

In this review, we critically evaluate the Food and Drug Administration's modified risk tobacco product (MRTP) status granted to a smokeless tobacco product (March 2023), Copenhagen Classic Snuff (CCS). This new status necessitates an assessment of the product CCS use and its public health impacts. We assess the impact of CCS as it relates to the reduction of lung cancer risk and the potential increased risk for nasopharyngeal cancer, chronic rhinitis, nicotine dependence, and other health hazards. Concerns persist regarding nicotine's harm and public misperception due to risk reclassification, and caution should be maintained to discourage novel snuff users. Advocating …

Kedudukan Surat Hak Milik Yang Berasal Dari Tanah Ulayat Masyarakat Hukum Adat Papua (Studi Kasus Putusan Mahkamah Agung Nomor 4241 K/Pdt/2022), Ulfa Riany Fajrin

Indonesian Notary

Penelitian ini bertujuan untuk mengetahui pengaturan tanah ulayat di masyarakat hukum adat Papua berdasarkan peraturan perundang-undangan yang berlaku, mengetahui kedudukan surat hak milik yang berasal dari tanah ulayat masyarakat hukum adat Papua berdasarkan Putusan Mahkamah Agung Nomor 4241 K/Pdt/2022. Di Papua, tanah ulayatnya dapat diperjualbelikan melalui pelepasan hak atas tanah adat dan terdapat pengaturannya pada UU Otsus Papua dan Perdasus Papua. Kemudian dapat dilanjutkan dengan permohonan penerbitan kepemilikannya. Pengakuan hak milik sering bertentangan dengan hukum adat karena tidak selaras dengan konsep hukum modern. Dalam penelitian ini penulis menggunakan metode penelitian hukum doktrinal. Dimana penelitian hukum doktrinal menggunakan penelitian kepustakaan ataupun …

Urgensi Dokumen Persetujuan Pasangan Kawin Yang Dibuat Secara Bawah Tangan Sebelum Penandatanganan Akta Pendirian Commanditaire Vennootschap (Studi Kasus Di Kabupaten Bandung), Ambria Rahma Widiastuti

Indonesian Notary

This thesis analyzes the legal provisions governing the mandatory existence of a document of consent from the spouses, made underhand before the signing of the deed of establishment of Commanditaire Vennootschap (hereinafter "CV"), and the legal consequences if the deed of establishment of CV is signed without the consent of the spouses. This research method uses a doctrinal approach through a literature study and is analyzed qualitatively. Article 36 paragraph (1) stipulates that "everything related to joint property that will be carried out legal action against it requires the consent of both parties." The legal agreements undertaken by a CV …

Konsekuensi Pembatalan Akta Autentik Yang Terdapat Praktik Nominee/Pinjam Nama Bagi Beneficiary (Studi Putusan Pengadilan Tinggi Denpasar Nomor 247/Pdt/2021/Pt Dps), Talitha Mumtaz

Indonesian Notary

This research analyzes the implementation of nominees in the field of land tenure in Indonesia, as well as how an authentic deed made before a notary has a nominee element in it and also the consequences for the beneficiary of cancelling the authentic deed because the authentic deeds contained nominee practices. The research was compiled using doctrinal research methods. The implementation of nominee practices in an authentic deed is made by making a series of agreements whose contents indirectly transfer ownership from the nominee whose name is listed on the certificate of ownership, to the beneficiary, which in this case …

Analisis Pelaksanaan Redistribusi Objek Tanah Landreform Dan Keadilan Bagi Masyarakat Desa Kalasey Dua Atas Status Tanah Yang Dikuasai Negara., Ashley Juniare Maria Rengkung

Indonesian Notary

As land plays an important role in everyday life, it is necessary to pay attention to rights and protection regarding its implementation. The Basic Agrarian Law itself has derivatives, one of which discusses Land Redistribution as regulated in Presidential Regulation Number 88 of 2017 concerning Settlement of Land Tenure in Forest Areas. However, after the ratification of Presidential Regulation Number 62 of 2023 concerning the Acceleration of Implementation of Agrarian Reform, Presidential Regulation Number 88 of 2017 and Presidential Regulation Number 86 of 2018 concerning Agrarian Reform are revoked and replaced with Presidential Regulation Number 62 of 2023 concerning Accelerating …

Implikasi Hukum Pembatalan Akta Jual Beli Saham Akibat Pembeli Cidera Janji (Analisis Kasus Pada Putusan No. 105/Pdt.G/2021/Pn Jkt.Sel), Riva Mahfuzhah Saphira

Indonesian Notary

Unfulfilled payment of shares are on of the problems that might arise when a limited company’s shares are transferred through a transaction that are not carried according to the shares transfer procedure in UUPT. The issues raised in this thesis pertain to the legal construction contained in the act of sale of shares that can protect the seller's interests in the event that the buyer fails to make payment and the notary's liability in the event that the buyer fails to make payment in the sale of shares, through the discussion of the case in Decision Number 105/PDT.G/2021/PN JKT.SEL. This …

Pemberian Tantiem Kepada Direksi Yang Telah Diberhentikan (Studi Kasus Putusan Mahkamah Agung 2530k/Pdt/2022), A Aru Ogika

Indonesian Notary

This research aims to analyze the legal construction of giving bonuses to a Limited Liability Company, especially giving them to bank directors who have been dismissed by the Company and its correlation with the legal consequences of not giving bonuses. This research was prepared using doctrinal research methods. The research results show that the legal construction in granting bonuses must refer to the principles of benefit and justice. The conditions for granting bonuses as stipulated in several statutory regulations, namely performance, risk and profit generation, are in accordance with the principles of benefit and justice, while the inclusion of conditions …