Law Commons^™

Learning To Read Like An Eighteenth-Century Lawyer: The Historical Critique Of Originalism Revisited, Saul Cornell

William & Mary Bill of Rights Journal

Historians have been among the fiercest critics of originalism. Among the many virtues of Jack Balkin’s book, Memory and Authority, is the deft way he analyzes and dismantles these efforts to insulate originalism from historical critique. In a short essay, it would be impossible to fully acknowledge the sophistication of Balkin’s analysis. Instead, I would like to build on his impressive achievement by pointing out additional problems with the originalist response to historical critique.

This abstract has been taken from the author's opening paragraph.

Memory, Resistance, And Doubt, Richard Primus

William & Mary Bill of Rights Journal

The Burroughs Court did not identify any enumerated power that warranted the Corrupt Practices Act, I suggest, because the Burroughs Court did not subscribe to the enumeration principle. The Justices did not believe—or at least, did not consistently believe— that every federal law must be grounded in some enumerated power. As I have explained at length elsewhere, the text of the Constitution does not actually prescribe the enumeration principle: it can be read to support that idea, but it need not be. And at various moments in American constitutional history, judges and other people have taken the view that Congress …

Shared Memories And Constitutional Foundations, Sanford Levinson

William & Mary Bill of Rights Journal

It is significant that the first word in the title of Jack Balkin’s new book [Memory and Authority] is “memory.” A repeated theme of the book is that what binds a nation—or a constitutional order—together is shared memories around which diverse individuals can gather together and therefore establish themselves as a community. Balkin refers to an impressive array of sources with regard to the topic of “public memory,” but I want to concentrate on one of them, which is cited but not extensively discussed. That is Ernest Renan’s famous speech, delivered at the Sorbonne in Paris on March …

Invocations Of Memory In State Constitutional Law, Fred O. Smith Jr.

William & Mary Bill of Rights Journal

This Symposium Essay discusses the roles of history and memory within the realm of state constitutional law. Building on Professor Balkin’s observations, I offer two claims. The initial argument, delineated in Part I, is descriptive. While the practice of state constitutional law often mirrors that of federal constitutional interpretation, the use of history in state constitutional interpretation has unique characteristics, both with respect to text and ethos. Regarding textual analysis, understanding the language of a state constitution often involves engaging with a concept referred to by some scholars as “interconstitutionalism.” This phenomenon occurs when a single governmental body has operated …

Reproductive Injustice, Feminist Resistance, And The Uses Of History In Constitutional Interpretation, Serena Mayeri

William & Mary Bill of Rights Journal

Part I examines the erasure of constitutional memory about reproductive injustice and feminist mobilizations and the benefits of recovering these histories. Part II explores how cases involving women’s subordination provide particularly effective illustrations of the anti-democratic, even absurd, results the current supermajority’s approach to history-and-tradition is designed to produce. Part III concludes with a brief discussion of some sites for the expansion of constitutional memory about reproductive control and freedom.

This abstract has been taken from the author's introduction.

Freedom And Families: Reconstruction Republicans And The Question Of Women's Reproductive Autonomy, Kate Masur

William & Mary Bill of Rights Journal

This Essay proceeds in three Parts. In the first, I illuminate how congressional Republicans discussed women, gender, and families in the context of policymaking associated with abolishing slavery. Many Republicans worried that enslaved people’s family relationships had been damaged by the imposition of slavery and sought to impose on freedpeople what they saw as normative family values, including by encouraging heterosexual marriage and by insisting on patriarchal gender roles within families. Second, I show that Republicans were at pains to demonstrate that when they talked about equality, they meant race but not gender. Finally, I reflect on the limits of …

Strolling Down Memory Lane, Touring An Historical Restoration, And The Constitution Of December 11, 1865, Mark A. Graber

William & Mary Bill of Rights Journal

The following pages [compare] a stroll down the Reconstruction section of memory lane with a tour of a historical restoration dedicated to reproducing the Constitution of December 11, 1865. Part I strolls down the Reconstruction section of memory lane by elaborating the conventional legal account of what Republicans were thinking when they sought to improve the Thirteenth Amendment’s Constitution immediately after the ratification of the constitutional ban on slavery was assured. Their most vital and often sole concern, legal opinions from the Slaughter-House Cases to Students for Fair Admissions v. Harvard agree, was to alleviate doubts among anti-slavery advocates about …

The Prosecutor Vacancy Crisis, Adam M. Gershowitz

Faculty Publications

There is a prosecutor vacancy crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%. In Alameda, 25% of prosecutor positions are empty. And in Miami, a staggering 33% of prosecutor positions are unfilled. The situation is equally dire in many large and small counties across the nation.

Drawing on data and interviews from more than two-dozen district attorney’s offices, this Article documents how low salaries, massive caseloads, lack of remote work …

A Proxy For Piety: A Closer Look At Religious Cost In The Substantial Burden Inquiry, Philip Andrew B. Wines

Fordham Law Review Online

This Comment discusses whether the Establishment Clause and “religious question” doctrine prohibit courts from considering the subjective religious harm suffered by free exercise claimants when determining if laws impose a “substantial burden” on the claimant, as defined by the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). It explores a dilemma that courts are presently facing. They must choose either to wade into constitutionally perilous theological debates to decide cases on their merits, or to defer to free exercise claimants on their own assertions of substantial burden and risk swallowing up the law …

Will Bruen Kill Cops?, Peter N. Salib, Guha Krishnamurthi

Fordham Law Review Online

Criminal procedure is a balancing act. On one hand, it must allow law enforcement officers to protect the public and themselves. On the other hand, criminal procedure must safeguard citizens’ individual constitutional rights—privacy, physical liberty, and bodily integrity. And now, the right to bear arms.

There is a serious tension here. Landmark Fourth Amendment cases like Terry v. Ohio, Pennsylvania v. Mimms, and Chimel v. California give the police wide latitude to seize firearms on the assumption that guns are dangerous. But these doctrines largely evolved before the Second Amendment’s ascendance. In District of Columbia v. Heller, …

Article Iii Standing In Federal Prosecutions Of “Victimless Crimes”, Ryan H. Nelson

Fordham Law Review Online

Plaintiffs in federal court bear the burden of proving their standing, as Article III permits inferior federal courts, after Congressional authorization, to exercise jurisdiction over “Cases” and “Controversies” alone. From these constitutional terms of art—“Cases” and “Controversies”—we derive the familiar case-or-controversy requirement of standing, including injury. These terms of art authorize Congress to empower the inferior federal courts to hear civil and criminal actions alike, but federal prosecutors have never been similarly burdened with proving the standing of the United States in federal court, including that the United States has suffered injury. This Essay examines that lapse and contends that …

Ai: A New Lone-Wolf Terrorism In The Digital Era (Preliminary Analysis), Marthsian Yeksi Anakotta Mya

Journal of Terrorism Studies

This article addresses two fundamental inquiries: can AI engage in acts of terrorism? If so, how might such a phenomenon occur? My hypothesis posits that AI is capable of independently committing acts of terrorism, a classification derived from the study of terrorism known as lone-wolf terrorism. To address these dual issues, this article adopts a criminological approach, which is further elaborated through an examination of lone-wolf terrorism and the advancement of artificial intelligence. As is widely recognized, contemporary terrorist organizations have harnessed technological advancements in the realm of information and communication to perpetrate acts of terrorism within the digital sphere. …

Repurposed Energy, Alexandra B. Klass, Hannah Wiseman

Articles

Wildfires, weather extremes, and other conditions induced partially by climate change add urgency to the project of accelerating the clean energy transition from fossil fuels to zero-carbon energy infrastructure. Yet the hurdles to accomplishing such a massive industrial-scale transition are daunting. Indeed, large renewable energy generation projects regularly face denials or project-killing delays across the United States. This Article proposes a national policy to channel the bulk of new clean energy projects to targeted categories of both rural lands and urban, post-industrial lands that we define collectively as “repurposed energy” sites. Such lands will consist of marginal farmland, abandoned coal …

(Un)Worlding With Karipuna’S Shadowy Alliances: The Mirangã And The Isolados, Hanmin Kin

Tipití: Journal of the Society for the Anthropology of Lowland South America

This ethnographically inspired article investigates the ways in which the Karipuna Indigenous people in Rondônia defend their land in the Western Brazilian Amazon against forces of deforestation and dispossession. I focus on the Karipuna’s plurivalent and collective forest spirits called the mirangã, through life experience accounts of two survivors from the “pre-contact” era who embody the Karipuna-mirangã connection. Through an analysis of the onto-epistemological entanglements in which the mirangã and my interlocutors are situated, I articulate another front of the Karipuna’s multi-faceted resistance: the struggle of worlding vis-à-vis the non-indigenous world. This process also reveals the association (from …

How To Use The Restatement Of Consumer Contracts: A Guide For Judges, Ian Ayres, Gregory Klass

Georgetown Law Faculty Publications and Other Works

In the absence of major legislation or regulatory action, U.S. consumers will continue to look to courts and the common law for protection when businesses engage in unfair and deceptive contracting practices. In May 2022, the American Law Association approved the Restatement of the Law, Consumer Contracts. This new Restatement provides a valuable resource for courts tasked with deciding the legal effects of standard terms that businesses draft and consumers do not read. This essay identifies six pieces of the new Restatement we believe courts should pay special attention to and discusses the importance of each. It also charts several …

Fine That Is Significantly Too High Judgment Of The Court Of Appeals In Warsaw Of 16 July 2013, Vi Aca 1615/12, Antoni Bolecki

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Judgment of the Court of Appeals in Warsaw of 16 July 2013, VI ACa 1615/12

Activities Of An Organizer Of A Market From The Perspective Of The Prohibition Of An Abuse Of A Dominant Position Judgment Of The Court Of Appeals In Warsaw Of 19 September 2013, Vi Aca 170/13, Konrad Kohutek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Judgment of the Court of Appeals in Warsaw of 19 September 2013, VI ACa 170/13

Infringement Of Procedural Duties By The Uokik President Judgment Of The Supreme Court Of 3 October 2013, Iii Sk 67/12 Pkp Cargo, Dariusz Aziewicz

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Judgment of the Supreme Court of 3 October 2013, III SK 67/12 PKP Cargo

Microsoft’S Acquisition Of Skype Does Not Constitute A Significant Impediment Of Effective Competition In The Eu Internal Market Judgment Of The Court (Fourth Chamber) Of 11 December 2013 In Case T‑79/12 Cisco & Messagenet Versus European Commission, Tadeusz Skoczny

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Wyrok sądu

Criminal Protection Of Children From Pornography: A Comparative Analytical, Hamed Ahmed Alderei

Thesis/ Dissertation Defenses

This dissertation investigates both the substantive and procedural criminal protections for children against pornography, focusing on the national legislations of the United Arab Emirates. The UAE legislator has implemented these protections through the Child Rights Law ("Wadeema") and the Law on Combating Rumors and Cybercrimes. In contrast, Jordan and Egypt have each taken a singular approach, with Jordan addressing the issue under the Cybercrime Law and Egypt through the Child Rights Law. The study examines the broader scope of the UAE's criminal protection measures and their application in courts, comparing them to the more focused frameworks in Jordan and Egypt. …

Humanitarian Intervention In International Law, Rashed Salem Alawani

Thesis/ Dissertation Defenses

Humanitarian intervention represents a complex and controversial strategy in international relations, with its declared aim being the protection of individuals from severe human rights abuses and humanitarian suffering, particularly in contexts of conflict and crises. Despite the good intentions that may motivate humanitarian interventions, they raise complex questions around sovereignty, ethical responsibility, and unintended consequences. This study explores the issue of whether intervention for the protection of human rights can be considered a legitimate necessity justified by legal grounds and examines the impact of such intervention on state sovereignty and international relations. The study concludes with several findings, most notably …

Memo Metodológico: Aproximación A La Revisión De Literatura Usando El Modelo General, Particular, Específico (Gpe) [Avance De Tesis], Agustina Cinanni, Cristo Leon

Journal of Roleplaying Studies and STEAM

El presente artículo detalla un estudio exploratorio cuyo objetivo fue aproximar una revisión de la literatura con fines de adquirir las herramientas necesarias para la elaboración y optimización del proceso de revisión de literatura en una tesis de grado de Licenciatura en Historia, mediante la aplicación del Modelo General, Particular, Específico (GPE) como herramienta integral para la pre planeación, planeación, ejecución y evaluación de dichas revisiones. La introducción del estudio enfatiza la creciente complejidad de formular preguntas de investigación pertinentes en el panorama académico actual, resaltando la necesidad imperativa de adoptar una perspectiva unificada para la indagación eficaz dentro de …

Journal Of Roleplaying Studies And Steam (Jrpssteam) Vol. 3 [2024], Número 2 (Issue 2)., Cristo Leon, Miguel A. Bastarrachea-Magnani

Journal of Roleplaying Studies and STEAM

Editorial - La última y nos movemos

Siempre es difícil asumir y enfrentar los cambios, desde el primer número y junto a un gran comité editorial nos dimos a la tarea de lanzar y mantener una revista académica exitosa, con rigor académico y que sirviera por un lado como un espacio para publicar trabajos académicos serios sobre juegos de rol y por el otro como un referente académico sobre el tema, en ese sentido, no tengo la menor duda de que lo hemos logrado.

Para este número, la principal sorpresa es que dejo de ser el editor en jefe, esto …

Report On The International Conference “Antitrust Private Enforcement: Lessons For Poland”, Warsaw, 30 May 2023, Szymon Gołębiowski, Marcin Alberski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Sprawozdanie z międzynarodowej konferencji pn. „Antitrust Private Enforcement: Lessons for Poland”, Warszawa, 30 maja 2023 roku

Judicial Control Of The Decisions Of The Polish Nca (The President Of Uokik) In Merger Control Cases - Selected Aspects Based On Latest Case Law (Agora/Eurozet And Orlen/Polska Press), Anna Celejewska-Rajchert, Filip Drgas

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

In this article, the authors discuss selected aspects of judicial review of decisions issued by the Polish NCA (President of UOKiK), which have become the subject of judicial review, in most recent cases involving appeals against merger control decisions of the President of UOKiK, that is, decision No. DKK-1/2021 in the Agora/Eurozet case and decision No. DKK-34/2021 in the PKN Orlen/Polska Press case. The article focuses on procedural aspects, such as the possibility of changing a merger decision of the President of UOKiK by the court, certain aspects of evidentiary proceedings, such as the burden of proof and the evidence …

Penal-Administrative Liability Of The Person That Manages An Essential Service Operator For Breaching Their Duty Of Due Diligence, Mariusz Czyżak

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This article discusses the liability of the manager of an essential service operator for violating their due diligence obligations while performing the duties of that operator. These duties include implementing a security management system in the information system used to provide the essential service, appointing a responsible person to maintain contacts with the entities of the national cybersecurity system, and ensuring security audits of the information system used to provide the essential service. An individual who manages or co-manages such entity, especially a member of its governing body (such as the board of directors), may be considered the “manager” of …

The Significance Of The Independence Of The Polish Telecommunications Regulatory Authority (The President Of Uke) For The Implementation Of Eu Fundamental Rights On The Example Of Proceedings For The Imposition Of Fines On The Basis Of Polish Telecommunications Law, Michalina Szpyrka

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Independence is one of the basic requirements for judiciary bodies, which decide authoritatively about the rights and obligations of legal entities. However, these functions are more and more often taken over by public administration entities that issue decisions granting powers, and even impose severe fines. In connection with this trend in the doctrine and jurisprudence, a discussion has arisen on the need for public administration bodies to be independent. This need is also recognized by EU institutions, which introduce a requirement of ensuring the independence of competition protection (NCAs) and regulatory authorities (NRAs). In connection with the EU review of …

Acceptable Forms Of State Aid To Airlines During The Covid-19 Pandemic (Part I), Jadwiga Urban-Kozłowska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The goal of this paper is to analyze the application of two types of State aid, namely exceptional aid (Article 107(2)(b) TFEU) and anti-crisis aid (Article 107(3)(b) TFEU), which played a key role in the process of supporting air carriers during the COVID-19 pandemic. This will allow us to compare these types of aid, and to answer the question of their significance and usefulness in the context of supporting air carriers, and more broadly other undertakings, during exceptional occurrences such as COVID-19. The criteria for each of these exemptions will be discussed separately, and theoretical considerations will be accompanied by …

Tech-Savvy Fraud Investigators In An Age Of Digital Deception, Alan Saquella

Publications

The recent court conviction of cryptocurrency exchange founder Sam Bankman-Fried on charges of fraud and conspiracy related to the collapse of FTX has heightened the critical need for the next generation of fraud investigators to possess advanced technical skills. This high-profile case serves as a main indicator in the fight against white-collar crime and emphasizes the glaring reality that traditional investigative methods are no longer sufficient to fight modern-day financial bad behavior. As we witness an increase in white-collar crime on a global scale, the pressure for a new generation of fraud investigators, fortified with an advanced skill set, has …

A Patent And A Prize, Keith N. Hylton

Faculty Scholarship

This paper examines a simple and old question: should innovators receive a patent or a prize? The answer I provide is equally simple: they should receive both. The literature on patents versus prizes has proceeded mostly under the assumption that there should be a choice between a regime of patents and a regime of prizes in which patents fall into the public domain upon award of the prize. There are significant “public choice costs” under the prize plans. By this I mean there are risks of inappropriate transfers to patentees – that is, looting – and of confiscation of patentees, …