Law Commons^™

Protect My Property, Not My Privacy!: How A Recent Circuit Split Illustrates The Need To Reinstate The Traditional Property-Based Fourth Amendment Framework, Mary Katherine Smith

SMU Law Review

The Fourth and Fifth Circuit’s split calls for reexamination of the Fourth Amendment search framework—a framework that revolves around one’s reasonable expectation of privacy. The underlying question motivating this Comment is how to account for individual privacy in a world where, arguably, old notions of privacy no longer exist. And ironically the answer lies in shifting the focus from privacy to property. The circuit split over geofence searches is a symptom of a larger problem: The current Fourth Amendment search framework is unworkable in the digital age.

Thus, this Comment has dual objectives. The first objective is analyzing the geofence …

The Law Of Digital Resurrection, Victoria J. Haneman

Scholarly Works

The digital right to be dead has yet to be recognized as an important legal right. Artificial intelligence, augmented reality, and nanotechnology have progressed to the point that personal data can be used to resurrect the deceased in digital form with appearance, voice, emotion, and memory recreated to allow interaction with a digital app, chat bot, or avatar that may be indistinguishable from that with a living person. Users may now have a completely immersive experience simply by loading the personal data of the deceased into a neural network to create a chatbot that inherits features and idiosyncrasies of the …

Advancing Deib In Our Communities: How To Gain Leadership Experience At Work In A Non-Supervisory Role: Advocacy, Conversations, And Creating Change, Jason Tubinis, Havilah Joy-Steinmen Bakken, Aamir Abdullah, Valerie Horton

Scholarly Works

The article emphasizes the critical role of diversity, equity, inclusion, and belonging (DEIB) in librarianship and legal professions, highlighting the challenges of information overload and the importance of advocacy. It provides strategies to manage information effectively and stay informed, advocating for the use of reliable sources and critical media literacy to navigate misinformation.

Countries As Laboratories: Reflections On Sierra Leone’S Amended Anti-Human Trafficking Law, Andrea L. Dennis

Scholarly Works

Sierra Leone’s improved anti-trafficking laws align with global norms, but enforcement remains weak due to socio-economic realities and Western deterrence mismatches, limiting effective prosecution despite recent legislative reforms.

Transunion, Vermont Agency, And Statutory Damages Under Article Iii, Randy Beck

Scholarly Works

The Supreme Court concluded in TransUnion LLC v. Ramirez that a plaintiff may not sue to collect statutory damages under a statute like the Fair Credit Reporting Act (FCRA) simply because the defendant violated a right Congress conferred on the plaintiff. Instead, Article III requires the plaintiff to show that the statutory violation resulted in a “concrete” injury with “a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” The TransUnion Court made no effort to explain how its conclusion could be reconciled with Vermont Agency of Natural Resources v. United States …

The Hidden Cost Of Venture Capital, Emilie Aguirre

Faculty Scholarship

Founders, employees, consumers, and even funders increasingly expect businesses to pursue social goals alongside financial performance. Yet even the most committed firms have found it difficult to maintain social performance over time. Scholars in economics, management, and law have put forth several explanations for this “mission drift,” including inappropriate governance, poor management, lack of genuine commitment, and threat of takeovers. Puzzlingly, research to date primarily focuses on later-stage firms, even though the events and decisions that take place in a firm’s early stages can critically impact retention of its social performance.

Drawing from over five years of qualitative field research …

Plea Tracking In The Durham County District Attorney’S Office: Second Report On Superior Court Cases Pled From April 2021 To November 2023, Kelly Evans, Elizabeth Gifford, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Technologies Of Violence: Law, Markets, And Innovation For Gun Safety, Joseph Blocher, Christopher Buccafusco

Faculty Scholarship

Violence in the United States is distinctive in many ways, perhaps none more visceral and fundamental than the technologies with which it is practiced. American violence disproportionately involves guns, and because guns are such an effective tool of violence, confrontations involving them are disproportionately deadly. Decades of research confirm this "instrumentality effect, " and it is reflected in the broad, bipartisan agreement that the nation has a gun violence problem. The deep disagreement, of course, remains about how to address it, with most of the debate focused on regulating who can carry which guns, where, and how.

But fully understanding, …

The Judicial Administrative Power, Jonathan Petkun, Joseph Schottenfeld

Faculty Scholarship

Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders.

This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and …

Opening The Channels And Speeding The Game: A Short History Of Transactional Forms, Laura M. Scott

Faculty Scholarship

Citators, digests, annotated codes. These standard legal research tools, developed by generations of lawyers and now adapted for the online era, tend to be the province of litigators. Transactional lawyers may also occasionally use these tools, but for the practitioner making and documenting commercial, corporate, real estate, or securities deals, legal forms are often a more useful tool. Used judiciously, these sample documents make drafting more efficient, guide junior business lawyers through unfamiliar transactions, and help identify legal issues to be researched.

For today’s dealmakers, online transactional forms are essential research and drafting tools in their own right, but examining …

The Dangerous Rise Of Dual-Use Objects In War, Oona A. Hathaway, Azmat Khan, Mara R. Revkin

Faculty Scholarship

Each day, the news brings stories of military attacks on schools, hospitals, apartment buildings, electrical facilities, and other critical civilian infrastructure. The militaries attacking these objects often seek to justify the attacks by claiming that the civilian objects are being used by militants. Objects that are believed to have both military and civilian use are often referred to as “dual-use” objects. Even though the term has become common, international law does not recognize a “dual-use” object as a legally meaningful category. Rather, the postwar Geneva Conventions that lie at the core of modern international humanitarian law establish a bright line …

Shareholder Litigation In Delaware: An Empirical Investigation, James D. Cox, Randall S. Thomas, Lynn Bai

Faculty Scholarship

The empirical study of shareholder litigation in state courts is a seriously underexamined subject. To remedy this gap, we collected data on all 4,741 fiduciary duty complaints filed in the Delaware Court of Chancery over a sixteen-year period, from January 1, 2004, to December 31, 2019. After removing the duplicative cases consolidated into a lead complaint, the number of unique complaints was reduced to 2,958 in our dataset. In our coding, we examined over one hundred variables (with many variables being further subdivided into as many as eight subvariables) for each of these cases, including information about the parties, claims, …

Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Faculty Scholarship

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

The Rise Of Global Fcpa Settlements, Rachel Brewster

Faculty Scholarship

For the last two decades, the United States has been the dominant enforcer of anti-bribery norms worldwide. Using the broad extraterritorial jurisdiction granted by the Foreign Corrupt Practices Act (FCPA), the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have prosecuted domestic and foreign corporations for bribing foreign government officials. This transnational enforcement system has been described as a negative comity regime: foreign governments defer to American prosecutions even if the case involves their nationals. This system has created a robust enforcement environment but often faces foreign resistance to the perceived “American dominance” of the regime. This …

Legal Pathways To Professionalizing The Procurement Workforce For Good Governance To State Contracts: A Comparative Study, Karem Sayed Aboelazm, Fady Tawakol, Emad Ibrahim, Hanadi Sharif

All Works

This study addressed several concepts in the study’s conceptual framework, which were based on profession, professionalization, and professionalism in public procurement. It also discussed the importance of professionalizing public procurement functions and its impact on public procurement performance (Angaw, 2020). The study also aimed to analyze the most prominent global practices in raising the efficiency and capabilities of public procurement workers to reach complete professionalism in public procurement. The paper attempted to investigate the possibility of professionalism in public procurement and its effects on the good governance of state contracts. The paper relied on two basic research approaches, namely the …

Improving Public Sector Procurement Methods In International Practices: A Comparative Study, Karem Sayed Aboelazm, Fady Tawakol, Emad Ibrahim, Hanadi Sharif

All Works

Objective: This paper presents the methods of public sector procurement in some public procurement laws such as UNITRAL law, Egyptian Law, Indian Law, Kenyan Law, and UAE law. Theoretical Framework: Some of the modern methods used by many countries, the research also sought to develop a clear definition of public sector procurement and relied in this research on the comparative approach as a significant approach to study for comparing the laws of countries. Method: This paper used descriptive-analytical methodology to analysis the legal frameworks of public sector procurement methods in Egypt, UAE, and other laws in comparison, the research reached …

Founder Worship, Effective Altruism, And Corporate Governance, Jennifer S. Fan, Xuan-Thao Nguyen

Law Faculty Research and Publications

Founders are the heart of any startup. Oftentimes, they are given considerable latitude in managing a company, particularly if they are hailed as a visionary founder in a pathbreaking new industry. Additionally, it is assumed that underpinning their actions is the desire to do good. Unfortunately, sometimes this leads to what we term founder worship where the promise of the founder and the innovation may lead to perverse outcomes because too much control is ceded to the founder and there is a lack (or sometimes complete absence of) corporate governance. When unlimited control is coupled with "do gooderism," which in …

Geopolitical Changes And Futures Of Ccamlr, Nengye Liu

Research Collection Yong Pung How School Of Law

The Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) was negotiated in the late 1970s in the shadow of the Soviet Union’s expanding interest in Antarctic krill fisheries. The development of a management regime for the krill fishery in the remote Southern Ocean vividly reflects geopolitical changes of the world at that time. The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) is similarly being affected by geopolitical forces from the wider international system today. This chapter therefore first reviews the historical background for the establishment of the CCAMLR. It then provides an overview of …

Winter 2025: Elevate

The Weldon Times

A student-run publication from the Schulich School of Law at Dalhousie University.

Co-Editors in Chief: Faith Thomson, Kimberly Gilson

Understanding Brady Violations, Jennifer Mason Mcaward

Journal Articles

This largest-ever study of adjudicated violations of Brady v. Maryland provides a detailed and nuanced understanding of who suppresses material evidence in criminal cases, as well as why, how, where, and how often. Its findings complicate the conventional wisdom that Brady violations are the work of nefarious prosecutors who intentionally withhold material evidence from criminal defendants. While it is true that “bad faith” permeates this area of constitutional noncompliance, a substantial minority of Brady cases stem from “good faith” errors by prosecutors and suppression by law enforcement officers. Most Brady violations occur in a small number of states, and most …

Work And Human Vocation In Catholic Social Teaching, Stefan M. Mcdaniel

Journal Articles

From the Article

This essay explores Catholic social teaching on work, focusing on how labor should enable humans to fulfill their vocation through experiences of dominion and communion. Drawing from papal encyclicals and theological anthropology, it examines how work becomes a means for humans to exercise their God-like faculties by intelligently shaping creation (dominion) and building rich relationships (communion). The essay argues that Catholic teaching offers distinctive contributions to contemporary workplace justice movements through its emphasis on two priorities: promoting worker-ownership and supporting family life. Worker-ownership, especially through cooperatives, enables labor to become an exercise of dominion, while family-centered policies …

Contract Or Prison, Sadie Blanchard

Journal Articles

Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Governments are turning to “offender-funded” programs that empower firms to contract with people who are suspected of or have been convicted of crimes— and whose alternative to agreeing to these contracts is prosecution or incarceration. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the …

The Purpose Of The Preliminary Injunction, Samuel Bray

Journal Articles

This Article explores a reshaping of the preliminary injunction that is occurring in the federal courts. A preliminary injunction is designed to be a "hold in place" order, blocking actions by the parties that would undermine the efficacy of the court's remedial options. But the preliminary injunction is becoming a device for accelerating the merits decision. Instead of a four-factor test for preliminary relief, increasingly there is one factor: the merits. This Article critiques this transformation, and it argues that the preliminary injunction should be recentered on the protection of the court's remedial options.

Can The Sec Mandate Disclosures That Contain Both Financial And Social Information? The Case Of The Human Capital Management Disclosures, Patrick M. Corrigan

Journal Articles

Human capital contributes directly to the top and bottom line of corporate financial performance. However, theory predicts, and empirical studies suggest, that firms underinvest in human capital because of a classic public goods problem: since employees can always leave to work for another employer, firms cannot expect to bear all the fruits of investments they make in human capital. As human capital becomes more important in the modern service and technology economy, the ills of this public good problem are growing and the deficiencies of underinvestment becoming more apparent. This Article studies the potential role of human capital management disclosures. …

Parental Rights, Parental Choice, And State Public Education Mandates, Nicole Stelle Garnett

Journal Articles

Pierce v. Society of Sisters and Meyer v. Nebraska were cases about parental rights in general, and parental choice in particular. Both centered on a challenge to a state's legal effort to reduce or eliminate the educational choices available to parents-in the former, by requiring students to attend public schools, in the latter, by requiring instruction in all schools, public and private, be conducted in English. Pierce and Meyer also were about state efforts to forge a homogeneous American citizenry by limiting the educational choices available to parents. As Justice McReynolds observed in Meyer, "The desire of the Legislature to …

Going En Banc, Randy J. Kozel

Journal Articles

This Article examines the law of en banc review in the federal courts of appeals. It explores key doctrinal questions and advances a theory that maintains the primacy of three judge panels by focusing the en banc process on a specialized set of institutional tasks.

Gerard V. Bradley And The American Law Of Church And State, Richard W. Garnett

Journal Articles

This paper provides an overview and appreciation of Prof. Gerard V. Bradley’s scholarly contributions to the American constitutional law of church and state. The Supreme Court of the United States has, in recent years, handed down a number of closely watched and much-remarked-on rulings in cases involving the First Amendment’s Religion Clause and various religion-related statutes. The Court has moved the law of religious freedom and church–state relations toward coherence and clarity, and better aligned it with American history, tradition, and practice, and with an appropriate understanding of judges’ capacities and of the judicial role in a democracy. It appears …

Litigating Climate Vulnerability: Climate Change Reparations In Global Jurisprudence And Empirical Results From The Notre Dame Climate Change Reparations Dataset, Diane A. Desierto, Anibal Perez-Linan, Faisal Yamil Meneses, Yuta Inada, Rachael Degaugh, Andrew Marciano

Journal Articles

From the article

The global surge in climate change litigation provokes inquiry into the nature, frequency, and scope of climate change reparations that international, regional, and national courts, as well as arbitral tribunals and other adjudicative bodies such as UN treaty body mechanisms, determine to be adequate, both on legal merits as well as intrinsic claims of justice, for the resolution of disputes brought by climate vulnerable persons, groups, and constituencies against States, multinational corporations, and other actors. Our findings from the Notre Dame Climate Change Reparations Dataset reveal a broad spectrum of pecuniary and non-pecuniary reparations being adjudicated in …

The Concept Of The Common Law, Samuel L. Bray

Journal Articles

From the article

The common law is, among other things, a mode of legal development. In this mode, judges develop the law yet simultaneously act as if they were only discovering law that already existed. This sketch of the common law introduces contemporary readers to a way of thinking and talking about law that was once instinctive for judges. The common law as a mode of development may seem alien at certain points, yet its influence on the legal systems of the United States has been enormous, and it is critical background for understanding the grant of “the judicial power” …

Meta-Interpretive Questions And The Aims Of Theories Of Interpretation: Beyond The Remedial Answer, Francisco J. Urbina

Journal Articles

This invited Response to Bill Watson’s “What Are We Debating When We Debate Legal Interpretation?” examines the point and purpose of interpretive theories. Watson argues that theories of interpretation are about how legal actors should exercise discretion when the law runs out. The Response builds on Watson’s sophisticated conceptual framework to explain that interpretive theories can be about at least two other topics. They can be about the most normatively appealing way of operating with sources—whether this tracks legal content or not—and they can be about which criteria for identifying something as law the legal community should adopt.