Law Commons^™

The Limitation Effect: Florida Restrictions As A National Warning Sign, Mica Pollock, Hirokazu Yoshikawa, John Diaz, Abigail Richburg, Blair Cox, Andrew Matschiner, Emilie Homan, Abdul-Rehman Mohammed Issa

Education Faculty Articles and Research

The abstract below summarizes a white paper report we released in fall 2024, The Limitation Effect: Experiences of State Policy-Driven Education Restriction in Florida’s Public Schools (Pollock & Yoshikawa, et al.,). We hope readers will read our report in full. It links to an archive of background information and full interview highlights, as well.

At this writing, the nation has experienced over four years of a divisive networked campaign to restrict how educators can support students in public schools. This campaign has promoted both state law and nationally networked local agitation demanding that public schools limit access to specific realms …

True Experimental Research Design, Mustafa Demir

Open Educational Resources

This assignment, created by Mustafa Demir of the Law and Police Science Department at John Jay College, tasks students with designing a randomized controlled trial (RCT) to evaluate the impact of body-worn cameras (BWCs) on police use-of-force incidents in a city of the student's choice. Students must gather setting and demographic data from open data sets, such as those available from the Census Bureau, to inform their research design.

Brief For Petitioner St. Isidore Of Seville Catholic Virtual School, John A. Meiser, Meredith H. Kessler, Michael R. Perri, Socorro A. Dooley, Michael H. Mcginley, Steven A. Engel, Brian A. Kulp, Anthony R. Jadick, Julia M. Fitzgerald, Cory J. Kopicki

Court Briefs

Nos. 24-396, 24-394
St. Isidore of Seville Catholic Virtual School v. Gentner Drummond, Oklahoma Statewide Charter School Board v. Gentner Drummond

On Writ of Certiorari to the Oklahoma Supreme Court

From the Summary of Argument

The decision below contravenes the Constitution and this Court’s precedents several times over. It spurned the free exercise guarantees this Court has repeatedly upheld. It violated the state-action doctrine by treating a privately run religious school as an arm of the government. And it distorted the Establishment Clause beyond recognition.

The Obligation Of “Due Regard” In The Eez During Armed Conflict At Sea, James Kraska

International Law Studies

This article explores the rights of belligerent warships and military aircraft to engage in hostile operations within a neutral coastal State’s exclusive economic zone (EEZ) during armed conflict. It argues that peacetime rules of due regard for coastal State sovereign rights and jurisdiction do not constrain these operations. The United Nations Convention on the Law of the Sea (UNCLOS) established the peacetime obligation of due regard in the EEZ. By 1984, the EEZ had become customary international law binding on all States. The San Remo Manual on International Law Applicable to Armed Conflict at Sea suggests belligerent naval forces owe …

The Enduring Crisis In Teaching Constitutional Law, Patrick J. Sobkowski

Emory Law Journal Online

Constitutional law is in crisis. The 6-3 conservative majority of the Supreme Court has generally produced the desired results of the current Republican Party. This has led to calls of illegitimacy, activism, and partisanship from left-liberal and progressive scholars and politicians. In 2024, Jesse Wegman published an opinion essay in the New York Times documenting these criticisms from progressive law professors. In this essay, I argue that there is nothing unique about the current crisis. Rather, the political nature of cases is a result of “juristocracy,” which knows no party. In light of this, I provide important context and argue …

Abolition, Dignity, And Amazing Grace, Etienne C. Toussaint

Villanova Law Review (1956 - )

No abstract provided.

Religious Freedom And The Status/Conduct Problem In Nondiscrimination Cases, Helen M. Alvaré

Villanova Law Review (1956 - )

No abstract provided.

Gatekeeping Screen Time: Configuring The Regulation Of Addictive Technologies And Kids' Privacy Rights, Gaia Bernstein

Villanova Law Review (1956 - )

No abstract provided.

Journal Staff

Duke Law Journal

No abstract provided.

The Road To Slow Deportation, Elana Fogel, Kate Evans

Duke Law Journal

Traffic stops are the most common form of police-initiated contact with members of the public. The sheer volume of traffic stops combined with their use as a pretext to surveil Black and Latiné communities has generated substantial scholarship and movements for police reform. Yet this commentary assumes that the subjects of traffic stops are U.S. citizens. At the same time, scholarship on the intersection of criminal and immigration law and the convergence of their enforcement methods focuses on traffic stops as the immediate entry point for removal proceedings. This Article addresses the gap in literature by describing the experience of …

Justice On The Home Front: Domestic Prosecution Of Foreign Combatants During Wartime, Katherine K. French

Duke Law Journal

Russia's 2022 full-scale invasion of Ukraine produced a shock to the world order. The conflict has led to immense suffering for the Ukrainian people, many of whom have fled their homes or are directly involved in the fighting. In some instances, the use of improper tactics by both sides exacerbates the devastation, even amounting to war crimes. Although the war rages on, justice efforts have already begun. International tribunals and foreign countries’ domestic courts have initiated investigations into alleged violations of international law and prosecutions of the perpetrators. The most significant effort, though, has been within Ukraine’s own courts. These …

Reforming H-2a: Protecting Migrant Workers Before Arrival On U.S. Farms, Isabella J. Cheng

Duke Law Journal

Migrant farmworkers who seasonally enter the United States to work on farms using H-2A visas suffer well-documented abuses. Dependent on their employers for legal status, housing, transportation, and food, H-2A workers succumb to a power dynamic that keeps workers from speaking out for fear of being fired and possibly deported. However, little academic attention has been paid to the problematic dynamics that trap these workers in a cycle of abuse long before they even set foot on U.S. farms, starting with the H-2A recruitment process. This process, which often starts in Mexico, involves an opaque and complicated network of recruiters …

The Russian Invasion Of Ukraine: A Crime Of Aggression, Karen Glikman

Cardozo International & Comparative Law Review (CICLR) Blog

November 19, 2024 marked 1000 days since Russia’s February 2022 invasion of Ukraine.  There is an ongoing debate as to whether the invasion can be classified as a crime of aggression. United Nations General Assembly (UNGA) Resolution 3314 defines aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.” Article 3 of this resolution outlines specific acts that constitute acts of aggression per se. Russia's February 2022 invasion of …

The Ethical Dilemma Of Social Media, Janet H. Southerland

New Orleans Dental Association News

Social media has transformed dentistry, enhancing communication, education, and patient engagement. However, ethical challenges, including privacy concerns and misinformation, pose risks. This article explores the benefits and challenges of social media in dentistry, emphasizing the need for ethical guidelines to uphold professional standards while leveraging digital advancements for improved care and education.

The Empirical Double Standard: Opinion Surveys Across The Civil-Criminal Divide, Kay L. Levine, Bernard Chao

Sturm College of Law: Faculty Scholarship

Across different legal domains, liability doctrines recognize the value of community input. But do courts truly listen to the community's voice when deciding these sorts of cases? This study is the first to explore how courts treat community opinion survey evidence across both civil and criminal law. To that end, we comprehensively examine trademark, false advertising, patent, antitrust, obscenity, death penalty, and Fourth Amendment search cases.

Our research uncovers a significant asymmetry: courts readily admit survey evidence in civil proceedings but systematically exclude it in criminal cases. This asymmetry does not appear to stem from structural differences between civil and …

Legislative Reforms To End Lawfare By State And Local Prosecutors, Elizabeth Beske

Legislative Testimony & Comments

WASHINGTON, D.C. - The House Judiciary Subcommittee on the Constitution and Limited Government will hold a hearing on Tuesday, March 4, 2025, at 2:00 p.m. ET. The hearing, "Legislative Reforms to End Lawfare by State and Local Prosecutors," will examine the use of lawfare tactics by the Biden-Harris Administration to weaponize the rule of law against political opponents. It will further highlight legislative reforms to end politically motivated state and local prosecutions.

Teaching Around Generative Ai Plagiarism Risks, Nancy C. Marcus

Faculty Scholarship

Much has been written and said about generative AI's potential uses and misuses by lawyers and law students in the past year. This essay does not rehash the many ongoing discourses about whether, how, and to what extent generative AI (GenAI) can be used for and taught in legal writing courses. Rather, this essay is written under the assumption that, at least to some extent early on in the law school experience, some professors don't want 1L legal writing students using GenAI to draft legal memoranda and briefs for them. As the American Bar Association's Formal Ethics Opinion 512 warns, …

Community-Driven Policy Solutions To Police Accountability, Rashawn Ray

Brookings Scholar Lecture Series

George Floyd’s death shifted public opinion as 76% of Americans agreed that incidents such as the killing of Floyd are signs of racism within law enforcement. While police reforms such as implicit bias training and body-worn cameras gained public support, they insufficiently address the structural, cultural, and organizational components of policing that can obstruct accountability and contribute to racial disparities in policing. In this lecture, Brooking Senior Fellow Rashawn Ray presents interview, survey, social media, and virtual reality data with police officers, activists, and civilians, and demonstrates state- and city-level databases on police reform legislation. Ray posits that evidence-based policy …

Esg Irony: Why Corporate Tax Avoidance Must Be Considered, Reuven S. Avi-Yonah

Articles

Environmental, social, and governance (ESG) investing has been the focus of major attention in corporate law. Many writers praised ESG as the future of corporate governance. The push for ESG comes from the belief that the government is incapable of fulfilling its responsibility of achieving social and environmental goals, and that corporations are frequently in the best position to help. ESG investing has been significantly bolstered by large asset management institutions like BlackRock Group, State Street Global Advisors, and Vanguard Group. The “Big Three” own large stakes in most public corporations, which they have been pushing to address ESG issues.

The Role Of Storytelling In Bisexual Jurisprudence, Eliot T. Tracz

Pace Law Review

This essay examines the unique challenges faced by bisexual individuals in the legal system and explores how storytelling can serve as an effective tool to combat bisexual erasure and stereotyping in jurisprudence. Despite comprising the largest demographic within the LGBTQ community, bisexual individuals are significantly underrepresented in legal discourse and case law. This essay identifies three primary challenges affecting bisexual legal recognition: erasure (the denial of bisexuality as an orientation), stereotyping (harmful assumptions about bisexual individuals), and interest divergence (conflicting priorities with both heterosexual and homosexual communities). Through detailed case analysis, this essay will demonstrate how these challenges have resulted …

The Times They Are A-Changin': Adapting Copyright Law To Generative Ai, Giovanni Lomonaco

Pace Law Review

Artificial intelligence has come a long way since the days of the “heartless” tin man of the Wizard of Oz, and the cool, precise autonomy of Kit from Nightrider. We have moved rapidly from mere questions about what life could be like with autonomous machines, to having books, movies, and albums created using machines for part or even all of the process. The Copyright Act, however, has not come as long of a way since the implementation of the most recent version of the Act in 1976. Recently, the federal district court for the District of Columbia held …

State-Powered Acceleration Of Cannabis Economy Growth Engines, Benjamin C. Varadi

Pace Law Review

Small cannabis companies in state-regulated markets have driven extraordinary job creation and economic growth, but now face extinction as consolidation looms. Government intervention can build a future populated with prosperous small business growth engines, while failure to act will magnify economic disparity. This Article proposes state-backed loan guarantees, funded by municipal “cannabonds,” as a novel solution to guide the industry toward a healthier and more diverse economic landscape. This approach offers constitutionally resilient strategies to express explicit preference for local stakeholders and inverts traditional risk metrics to leverage historic institutional lending bias as a force for positive change. In doing …

Mistaken About Mistakes: Error Analysis As An Untapped Tool For Law School Success, Elissa Jacob

Pace Law Review

Mistakes: everyone makes them, perhaps the new law student more than most. But why do our students continue to make the same errors despite our concerted efforts to prevent them? This article explores this question and provides ideas on how to utilize mistakes to fuel the learning process. Science has proven that the human brain is hardwired to benefit from errors. However, the psychological effects of failing, cultural systems, and the American educational system are frequent barriers to this biological process.

To overcome these obstacles and most effectively employ error analysis, I propose a three-step model. First, professors must lay …

Embrace The Chaos: Contributing To Experience In The Face Of Ai And Nextgen, Margaret Moore Jackson

Pace Law Review

This article asserts that the combination of AI-assisted writing tools and the immediacy of the NextGen Bar compel changes in legal education’s goals, expectations, and delivery methods. Topping off these forces, the ABA is considering increased requirements for additional experiential credits prior to graduation. These challenging mandates provide opportunities for law faculty, who can construct courses that help students learn through integrated experiential credits while promoting and spreading legal knowledge to organizations that lack legal advice.

Through the example of a Housing Discrimination course, this article demonstrates a method for constructing a course that is resigned to the presence of …

How Active Cftc Enforcement Could Benefit Crypto, Carol R. Goforth

Pace Law Review

Commodity Futures Trading Commission (CFTC) crypto enforcement rose to record levels in 2023, prompting applause from some observers and criticism from others. In fact, the CFTC’s enforcement agenda is not out of step with other federal agencies such as the Securities and Exchange Commission (SEC), which has also been incredibly active in the crypto industry. It might seem that this is bad news for crypto, given that both the CFTC and SEC have been angling to become the primary regulator for these new assets. In reality, proof that the CFTC is active in enforcing the law against crypto entrepreneurs and …

National Origin Bias And U.S. Public Opinion On Supreme Court Nominees: Evidence From A Conjoint Experiment, Christopher P. Dinkel, Andrew Ifedapo Thompson, Marc C. Mcallister

Pace Law Review

As the ultimate arbiter of the interpretation of federal law and the U.S. Constitution, the U.S. Supreme Court has a significant impact on businesses and individuals across an increasingly diverse country. Although the vast majority of the Justices who have served on the Court have been white males, recent Presidents have appointed nominees who have brought greater racial and gender diversity to the Court. Despite these efforts, however, not a single U.S. Supreme Court Justice in the past six decades has been born abroad, even though Americans who were born outside the United States constitute nearly a tenth of the …

Hemp And Marijuana: The Necessity Of Lab Testing For Fair Prosecutions, Jessica Aycock

Pace Law Review

This Article examines the evidentiary and ethical challenges prosecutors nationwide face in distinguishing between hemp and marijuana under current federal and state laws. Following the legalization of hemp under the federal 2018 Farm Bill, the legal distinction between hemp and marijuana now hinges on the concentration of delta-9 tetrahydrocannabinol (THC). This distinction requires quantitative lab testing to be established. Without quantitative lab testing, prosecutors cannot accurately determine THC levels, making it challenging, if not impossible, to meet the burden of proof required for marijuana possession convictions. This Article argues that the absence of testing raises evidentiary and ethical concerns that …

Pursuing Patent Protection In The U.S. Via The Pct: Legal And Practical Implications For 371 And Bypass Routes, Francisco Tschen

Cleveland State Law Review

The Patent Cooperation Treaty (“PCT”) has emerged as a pivotal mechanism for inventors and companies seeking international patent protection. The PCT provides a unified application process accepted by member countries, simplifying, and standardizing the procedural aspects of filing for patent protection in multiple countries. For inventors pursuing patent protection in the United States via the PCT, inventors must submit their application with the United States Patent and Trademark Office (“USPTO”) and choose between one of two primary routes: 1) entering the U.S. national stage under 35 U.S.C. §371 (“371 route”), or 2) filing a continuation or divisional of the PCT …

Education As A Democratic Prism: Warnings And Wisdom From America's Schools, Caitlin Millat

Cleveland State Law Review

Seventy years after the passage of Brown v. Board of Education, many believe that we remain far from achieving Brown’s lofty promises of educational equity. In an increasingly polarized political environment rife with disinformation and discontent, we seem particularly far from Brown’s belief that public education should work to shore up democratic health. Instead, public education is underfunded, underresourced, and profoundly unequal, and American democracy remains under threat.

This Symposium contribution suggests that by taking a closer examination at the state of America’s schools, we can gain insight into both democratic deficiencies and bright spots for the …

A Mistake For The Lake: Why Ohio Should Rethink Its Ban On Rights Of Nature For Lake Erie, Shelby Strohl

Cleveland State Law Review

“Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” - Professor Christopher Stone. The purpose of the rights of nature movement is to recognize that ecosystems and natural entities have the right to exist and thrive. Rights of nature give the natural entities legal protections against pollution and other harms. This Note recommends that the Ohio legislature reconsider its stance on prohibiting rights of nature under Ohio Revised Code Section 2305.011. This recommendation stems from the groundbreaking Lake Erie Bill of Rights, which granted rights of nature to Lake Erie in …