Law Commons^™

High “Status”: Reforming Employment Protections For Medical Cannabis Users Based On Status, Benjamin P. Sheppard

Marquette Benefits and Social Welfare Law Review

This paper explores the inconsistencies in employment protections for medical cannabis users, with a focus on the divergent interpretations of protections based on “status” across different jurisdictions. The analysis begins with an overview of federal and state laws, followed by an examination of varying court approaches to the scope of protections afforded to medical cannabis users. Courts differ in interpreting whether "status" protections extend to cover positive drug test results, leading to significant variations in employment rights depending on jurisdiction. To address these disparities, this paper proposes two model statutes tailored to the level of protection each state may choose …

Leveraging The History And Tradition Framework In Support Of Transgender Americans’ Fundamental Right To Choose A Name, Abigail Franke

Marquette Benefits and Social Welfare Law Review

Transgender people are facing waves of new legislation limiting their right to exist. However, there is an enormous amount of preexisting state laws which limit transgender people’s right to choose a gender affirming name on their own terms. Many current state laws severely restrict the ability of transgender people with prior felony convictions to change their name. These laws limit the ability of people with felony convictions from changing their name: based on the offense, pursuant a time limit, or force transgender people to out themselves. In this note I argue that these state-level laws place an unconstitutional barrier between …

Law, Music, Statutory Interpretation, And Schubert, Norman P. Ho

Hofstra Law Review

The law and humanities field has been dominated by law and literature. Legal scholars have, for example, analogized judges to literary authors and have tried to show how the study of literature and law can enrich both subjects. Law and music, however, has received relatively less attention. This Article argues, on its most macroscopic level, that the relationship between law and music is very close, just like the close relationship between law and literature. Previous scholarly literature in the law and music field has spoken about the affinities between law and music, but mostly on a general level and with …

Demanding Compliance, Demurring Adherence: U.S. Treaty Law Hamstrings U.S. Soft Power Worldwide, Nicholas Lazzaro

Hofstra Law Review

No abstract provided.

Assessing Alexithymia In Law Enforcement: The Role Of Service Tenure And Sex, Elfego J. Gallardo Jr

Dissertations

ABSTRACT

Alexithymia, characterized by difficulties in identifying and expressing emotions, has significant implications for professions requiring emotional intelligence and trauma-informed response. Law enforcement officers routinely navigate high-stress encounters that demand emotional regulation, clear communication, and empathy, yet those with alexithymic traits may struggle in these areas, potentially affecting interactions with victims, suspects, and the community. This study examined the prevalence of alexithymia among front-line police officers in suburban municipal agencies within the Chicago metropolitan area, using the Toronto Alexithymia Scale-20 (TAS-20) as a standardized assessment. The research addressed three questions: (1) What proportion of officers exhibited normative or elevated levels …

Abolition By Algorithm, Peter N. Salib

Michigan Law Review

In one sense, America’s newest abolitionist movement—advocating the elimination of policing and prison—has been a success. Following the 2020 Black Lives Matter protests, a small group of self-described radicals convinced a wide swath of ordinary liberals to accept a sweeping claim: Mere reforms cannot meaningfully reduce prison and policing’s serious harms. Only elimination can. On the other hand, abolitionists have failed to secure lasting policy change. The difficulty is crime. In 2021, following a nationwide uptick in homicides, liberal support for abolitionist proposals collapsed. Despite being newly “abolition curious,” left-leaning voters consistently rejected concrete abolitionist policies. Faced with the difficult …

Can Prosecutors' Offices Preserve Public Confidence In Their Nonpartisanship - And, If So, How?, Rebecca Roiphe, Bruce Green

Articles & Chapters

Politicians, the media, and others erode public confidence in prosecutors by accusing them of “weaponizing” their power in cases with political implications. This essay argues that prosecutors’ offices have a responsibility not only to do their work in accordance with professional norms, training and policy that call for nonpartisan decision-making, but also to make affirmative efforts to restore and preserve public faith that prosecutors are in fact acting neutrally, objectively and impartially. Despite limits to what prosecutors’ offices can do in the current climate, this essay suggests some possible measures to counteract the perception of political bias.

Law, Politics, And The Academy In Asia: Navigating Constraints As Public Law Scholars, De Maartje Visser, Qian Liu, Victor V. Ramraj

Research Collection Yong Pung How School Of Law

How do academics interested in the study of legal topics that implicate the state relate to and deal with pressures that shape the space available to conduct research? This article examines the nature and impact of such pressures on Asia-focused public law scholars who must contend with a more diverse socio-political environment than the liberal democratic setting in which questions of academic freedom are typically explored. We find that the Asia-centric academy is affected by a wide range of constraints that notably extends beyond intra-institutional demands to those put in place by the state. This article also highlights how the …

Picking Through The Remnants Of Brown V. Board To Realize The Ideal Of Quality Public Education For All Children In The Post Covid-19 Era, Tiffani Darden

William & Mary Law Review

Brown, above and beyond eliminating the “separate but equal” doctrine, presented many socio-legal principles that were abdicated or diluted during the government’s COVID-19 response. This Article will address several strands recognized throughout the opinion’s seventy-year history by the courts and legal commentators that were illuminated during this period. First, the pursuit of quality education remains elusive for people of color and students from lower socioeconomic backgrounds. Second, public education continues to be an aspirational pathway to upward social mobility and building a democracy composed of educated citizens. Third, the anti-subordination construction, as opposed to the anti-classification interpretation, of the …

The Right To A Nuisance-Free Public Education, Jamel K. Donnor

William & Mary Law Review

The aim of this Article is to discuss how Florida’s Individual Freedom Act infringes upon Black students’ constitutional right to learn about non-white supremacist ideas, their freedom to think, and a public school’s ability to offer Black-centered curricula content.

[...]

This Article explains that the Individual Freedom Act’s racially encoded wording establishes an academic environment for a racial nuisance to exist because its criteria authorize public education officials to label curricula content under the auspices of indoctrination, divisiveness, or educational value. While the term “nuisance” is typically reserved for determining reasonableness of an “interference with a right common to the …

Brown Now: The Surprising Possibility Of Progressive Reform, Louis Michael Seidman

William & Mary Law Review

For four decades, the Supreme Court has engaged in a determined, systematic, and successful effort to transform and tame Brown v. Board of Education. But there is a surprising counterweight to this standard narrative. If one takes modern doctrine seriously, the Supreme Court’s refashioning of Brown has the potential to support some progressive goals. The modern Court’s decisions provide a basis for upholding race-conscious but facially neutral measures that promote racial diversity, striking down legacy admission standards in colleges and universities, and strictly scrutinizing laws that discriminate based on sexual orientation. The last Part of this Article speculates about …

A Comparative Financial Analysis Of Louisiana's Land-Grant Universities: The Morrill Acts And Brown Revisited, William F. Tate Iv, Keena N. Arbuthnot

William & Mary Law Review

Despite a federal legislative mandate on states to support land-grant HBCUs in a fair and equitable fashion, the funding disparities [between land-grant Historically Black Colleges and Universities (HBCUs) and non-HBCU land-grant universities] accrued for decades and ostensibly for more than a century. Our purpose in this review is to explain the history, nature, and scope of this funding disparity. We are particularly interested in how Brown v. Board of Education (Brown I and Brown II) and related litigation and desegregation policy shaped this history. To narrow the scope of the review, we localize the problem to Louisiana. A …

Deputization And Privileged White Violence, Ekow N. Yankah

Articles

A number of high-profile and racially charged killings, such as Trayvon Martin’s, Kenneth Herring’s, Ahmaud Arbery’s, and Jordan Neely’s, have been at the hands of civilians declaring themselves the law. These deaths stemmed from a phenomenon best described as “deputization.” Deputization describes a latent legal power that has empowered White people throughout American history to claim authority to enforce the law, as they see it, upon racial minorities generally and Black people in particular. This power turned the ancient common law duty to police all felons in England into a specific American common law duty to police Blacks. From the …

Fee-Shifting Shortcuts, Maureen Carroll

Articles

Federal fee-shifting statutes, which allow certain prevailing plaintiffs to recover a reasonable attorney’s fee from the defendant, are critically important to civil rights enforcement. When it comes to the interpretation of these statutes, however, a wide gap separates the doctrine articulated by the Supreme Court and the decisions issued by lower courts. According to the Supreme Court, the calculation of a feeshifting award requires a highly contextualized inquiry, specific to the plaintiff’s attorneys and claims; in the lower courts, by contrast, judges take a set of welltrodden shortcuts that flatten many of the differences the case law makes relevant.

This …

Taking Integrity Risks Seriously, Miriam H. Baer

Fordham Law Review

No abstract provided.

Conservative Legal Advocacy Organizations And Constitutional Change In The Roberts Court, Ann Southworth

Fordham Law Review

No abstract provided.

A World-Threatening Feeling: Grief, Moral Injury, And Institutional Loss In Rural Courts, Michele Statz

Fordham Law Review

No abstract provided.

Shortcomings Of Law School And Big Law, Julian Velasco

Fordham Law Review

No abstract provided.

The Illusion Of Inclusion: The False Promise Of The New Governance Project For Content Moderation, Brenda Dvoskin

Fordham Law Review

Because private companies now control the most prominent communication platforms, the most pressing question in the field of content moderation is how to ensure that the governance of public discourse responds to public values. The prevailing approach, given that the state cannot regulate speech directly, is that state regulation can be substituted with audited self-regulation, broad stakeholder participation, and negotiated rulemaking. In this model, which this Article refers to as the “new governance model for content moderation,” companies include advocates as representatives of the public in their processes to govern online speech. Ideally, they negotiate policy goals and share responsibility …

Lawyering As A Public Health Tool: Enforcing Title Ii Of The Americans With Disabilities Act With Preventative Litigation, Elena Cohen

Fordham Law Review

A recent ruling by the U.S. Court of Appeals for the Fifth Circuit held that plaintiffs cannot bring a claim alleging a risk of unnecessary institutionalization under Title II of the Americans with Disabilities Act (ADA). This directly contradicts the holdings of six other circuit courts and guidance issued by the Department of Justice (DOJ)—all of which maintain that Title II of the ADA (Title II), the integration mandate, and the U.S. Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring permit these claims. This Note explores how the circuit courts have evaluated risk of unnecessary institutionalization claims, including …

Central Clearing The U.S. Treasury Market, Yadav Yesha, Joshua Younger

Vanderbilt Law School Faculty Publications

In October 1956, the famed U.S. architect Frank Lloyd Wright revealed a radical and ambitious new project. The Illinois would be a mile high, four times the height of the Empire State Building (at that point still the tallest building in the world). Key to this vision was a type of foundation known as the taproot, which offered a means by which to secure such a towering edifice while still enabling architectural creativity-or, as Wright put it, to "make rigidity possible at [ ] extreme heights." A similar design had previously protected another Wright design, the Imperial Hotel in Tokyo, …

Race, The Academy, And The Constitution Of The War On Drugs, Jeffrey Bellin, Bennett Capers

Vanderbilt Law School Faculty Publications

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only in- creased since the war was declared in 1971. David Pozen's new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a "right" to use drugs with surprising, if fleeting, suc- cess. Pozen asks what might have been, exploring why the courts backtracked and effectively re- moved the Constitution as a meaningful obstacle to drug prohibitions. …

Central Clearing The U.S. Treasury Market, Yesha Yadav

Vanderbilt Law School Faculty Publications

This Essay considers this regulatory response. It focuses on the introduction of mandatory central clearing for most trades in U.S. Treasuries-a proposal seeking to significantly reshape the day-to-day functioning of the Treasury market.10 Central clearing is a well-established means by which to reduce the risk of loss associated when trading parties default. It does so by providing a well-resourced and informed central counterparty (CCP) to step into and stand behind trades. CCPs help promote stability by reducing the probability of, and potential losses associated with, the default of a trading counterparty. But they also impose certain costs on market participants …

The Pro-Defense Constitution, Zamir Ben-Dan

Utah Law Review

The pro-defense Constitution envisioned by the framers had its shortcomings. State power was unconstrained by it. More importantly, the Constitution’s protections only applied to white people; African Americans had no legal rights. The drafters of the Reconstruction Amendments attempted to change this reality in the field of criminal law by making the Bill of Rights applicable to the states. Put another way, the pro-defense Constitution was to protect all persons charged with crimes in the United States. The author avers that this vision of the Constitution must be reclaimed.

Policing’S Free-Speech Problem, G. Alex Sinha

Utah Law Review

The central claim of this Article is that a significant share of typical policing activity is wildly and egregiously unconstitutional. More precisely, police regularly, predictably, and systematically violate the hardest, most settled core of free-speech law under the First Amendment. We have grown to tolerate these violations—we have not even noticed them!—because they are difficult to litigate. But they are inescapable. Having seen them, we cannot abide these violations without entirely overturning the modern understanding of free-speech rights under the First Amendment.

It is well-settled that, under the First Amendment, the government generally may not discriminate against (or in favor …

Race, The Academy, And The Constitution Of The War On Drugs, Bennett Capers, Jeffrey Bellin

Faculty Publications

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions.

This Review …

Leading With Courage: Defending Intellectual Freedom And Championing A Broad Range Of Ideas In Law Libraries, Leslie A. Street

Library Staff Publications

No abstract provided.

Race Without Racism: Religious School Curricula And The Race-Neutral Legacy Of Brown, Vania Blaiklock

William & Mary Law Review

Current conversations about race and equity curricula in primary and secondary education exclude examining religious curricula because of their private classification. Yet, this omission prevents us from exploring how religious curricula might mirror the legal transformation of Brown’s racial equality legacy to constitutional race neutrality. This Article brings religious curricula into these conversations by specifically linking the Court’s race-neutral transformation of Brown to the way religious curricula frame discussions about race without racism. Throughout the Article, I argue that the Court’s transformation of Brown is not just a top-down legal framework but also a bottom-up educational ideology. By making …

Why You Cannot Find A Swing Justice When You Really Need One, Neal Devins

William & Mary Law Review

From Richard Nixon’s 1972 appointment of swing Justice Lewis Powell until Donald Trump’s 2018 appointment of Brett Kavanaugh (to replace swing Justice Anthony Kennedy), the swing Justice ruled the roost. Sometimes voting with the Court’s conservatives and other times with its liberals, the swing Justice often cast the deciding vote and often embraced a sui generis middle ground. Those days now seem like a distant memory. An ideologically simpatico majority coalition drives the post-2018 Roberts Court (especially after Justice Amy Coney Barrett filled Justice Ruth Bader Ginsburg’s seat in 2020). In this Article, I will use the Court’s affirmative action …

Mapping Third Party Litigation Funding In The European Union: Canada, Camille Cameron

Reports & Public Policy Documents

In reply to the EU Commission’s Request for service number JUST/2023/PR/JCOO/CIVI/0016, the Justice and Consumers Evaluation Consortium (JCEC)led by the British Institute of International and Comparative Law (BIICL) and Civic Consulting, and supported by experts from the Asser Institute and from Risk & Policy Analysts (RPA), carried out a study on Mapping Third Party Litigation Funding in the European Union.

The aim of the study is to collect and analyse information on legal frameworks and practices of thirdparty llitigation funding (TPLF) in the Member States of the European Union and selected third countries (CA, CH, UK, US). The study is …