Law Commons^™

The Limits Of Lochnerism, Lucien Ferguson

William & Mary Bill of Rights Journal

The Lochnerism thesis is among the most influential constitutional theories to emerge in recent years. It argues that the judiciary increasingly protects private business from public regulation by enshrining and expanding liberty of contract rights under the First Amendment. Using 303 Creative LLC v. Elenis as a case study, this Essay explores the limits of Lochnerism as a theoretical framework. It argues that, while productively illuminating the judiciary’s attack on the administrative state and democratic processes, the theory may also displace concerns over the concrete harms experienced by vulnerable communities. To bring these harms back into view, this Essay suggests …

Standpoint Epistemology, The First Amendment, And University Affirmative Action, Paul Gowder

William & Mary Bill of Rights Journal

Egalitarian legal scholars understandably might have been troubled by the end of June 2023, when, on two successive days, the Supreme Court appeared to put an end to public as well as to private university affirmative action on a theory of race discrimination in Students for Fair Admissions v. Harvard, then appeared to put an end to the application of anti-discrimination law to any private enterprise that could be characterized as “expressive” in 303 Creative LLC v. Elenis. Yet the June 30 case, I shall contend, has the potential to undermine the negative impact of the June 29 …

No Need To Wait: Congress Has The Power Under Section Five Of The Fourteenth Amendment To Abolish The Death Penalty In The States, Eric M. Freedman

William & Mary Bill of Rights Journal

Reformers currently proposing the abolition of capital punishment by federal legislation have only targeted the federal death penalty. They are aiming too low. Concerns about the roughly 50 prisoners facing execution by the federal government should not cause advocates to ignore the approximately 2,400 on the combined Death Rows of the states. Congress has the authority to abolish the death penalty in the states, and good reason to exercise it.

This Article takes as a given the Supreme Court’s view that the death penalty is not itself unconstitutional.

But under existing law Congress would have no difficulty in compiling a …

Immoderate Moderation: Chief Justice Roberts's Concurrence In Dobbs, Thomas J. Molony

William & Mary Bill of Rights Journal

Chief Justice John Roberts attempted to chart a middle way in Dobbs v. Jackson Women’s Health Organization. But there are times when you must choose a side. This was one of them.

The Chief Justice has been a consistent proponent of judicial restraint since he joined the United States Supreme Court in 2005. For him, one of the key characteristics of restraint is deciding no more than necessary to resolve a case. In Dobbs, he insisted that the Court did not need to overrule Roe v. Wade and Planned Parenthood v. Casey in full to uphold Mississippi’s fifteen-week …

Convening For (Climate) Change: The Constitutional Case For A U.S. Climate Assembly, Will Mccabe

William & Mary Bill of Rights Journal

This Note argues that a national U.S. Citizens’ Assembly for Climate would not violate the non-delegation doctrine which prevents Congress from improperly delegating its constitutional legislative power to another body. A climate assembly could potentially be authorized in several ways; this Note explores that of Congress convening a climate assembly through statute, either as an independent body or as a body under the authority of the Environmental Protection Agency. Part I examines the current state of American climate policy and the political debate surrounding it, putting forward a case for a novel approach, and also examines the concept of climate …

Democratic Vibes, Jonathan Gingerich

William & Mary Bill of Rights Journal

Who should decide who gets to say what on online social media platforms like Facebook, Twitter, and YouTube? American legal scholars have often thought that the private owners of these platforms should decide, in part because such an arrangement is thought to serve valuable free speech interests. This standard view has come under pressure with the enactment of statutes like Texas House Bill 20, which forbids certain platforms from “censoring” user content based on viewpoint. Such efforts to regulate the speech policies of online platforms have been challenged for undermining the editorial speech rights of these platforms and allowing the …

Federalism, Rebellion, And The Rule Of Law In Northern Syria And Western Kurdistan: Constitutions Against The Nation-State, Robert Woehrle

William & Mary Bill of Rights Journal

This Note will be examining the way in which this social contract, the “Social Contract of the Democratic Federation of Northern Syria,” and the social order it proposes, “Democratic Confederalism,” represents a significant departure from the constitutional order of ethnic nation-states that arose in the postcolonial, and particularly the post-Ottoman, Middle East.

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This Note then contrasts the “Social Contract of the Democratic Federation of Northern Syria” with the Syrian constitutions, first the 1973 Constitution that had been in effect until the outbreak of the Syrian Civil War, followed by a brief look at the changes represented by the 2012 …

Pressured Exit, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

This Article upends the traditional framing of the United States as a migrant-receiving country by examining a growing category of emigrant outflows: U.S. citizens who have been compelled to depart permanently because of conditions of vulnerability. Eschewing use of the generic term "expatriate," this Article contends that these U.S. citizens are most accurately described as pressured migrants who have exited due to identity-based mistreatment, gaps in the social safety net, or concerns about deteriorating social and political conditions in the United States. By focusing on these departures, this Article aims to further theorize and provide a lexicon for a subtype …

Inequitable Infrastructure: An Empirical Assessment Of Federalism, Climate Change, And Environmental Racism, Lev E. Breydo

Faculty Publications

This Article explains a critical, yet unexplored issue: How are some communities like Jackson—the 80% Black capital of Mississippi—often left without water or electricity, while their mostly white neighbors are not? The Article maps uncharted territory by interrogating the underlying causes of this disparity, untangling how three seemingly unrelated factors interplay with the accelerating effects of climate change to perpetuate systemic inequities.

First, and somewhat uniquely, the U.S. federalist construct allocates infrastructure responsibility to the states, which, under the guise of autonomy, subdelegate to often under-resourced local authorities. Second, this capital mismatch requires governmental units to borrow using complex municipal …

المسؤولية الجنائية الدولية للقادة, فاطمة محمد الظھوري

Theses

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The International Criminal Liability of Leaders

The primary objective of this research is to explore and elucidate the concepts, principles, and legal frameworks pertaining to the international criminal liability of leaders, particularly in instances where they contravene established norms and statutes of international criminal law. This endeavor seeks to foster a deeper understanding and appreciation for the enforcement mechanisms underpinning such liability, thereby reinforcing respect for international legal standards. The study delves into the evolution of this principle and examines the contemporary acceptance of the idea that leaders and heads of state can be held accountable before a stable …

Golf’S Civil War: The Antitrust Lessons To Learn From The Pga Tour’S Rivalry With Liv Golf, Nic Vandeventer, Associate

Vanderbilt Journal of Entertainment & Technology Law

The regulation of professional sports leagues under the Sherman Act presents a unique and, up to this point, unsolved problem. Increased regulation of the United States’ beloved sports is not something that many US citizens would necessarily welcome. And yet, courts are consistently confronted with the dilemma of checking competition “off the field” while attempting to leave unaffected the competition “on the field.” In doing so, courts must reconcile the principles and objectives of the Sherman Act (the Act) with the restraints necessary for the success of sports as an enterprise. While mirroring some of the aspects of traditional trade …

The Risks Of Electronic Rumors On The National Security Of State :The Use Of Electronic Robots (Bots) In Spreading Rumors And Fake News, Dr. Emadeldin Mohamed Kammel

Faculty Peer-Reviewed Papers | بحوث هيئة التدريس المحكمة

No abstract provided.

The Criminal Safeguarding Of Consumers From Deceptive Or Misleading Advertising And Promotion, Dr. Khaled Ramadan Soltan

Faculty Peer-Reviewed Papers | بحوث هيئة التدريس المحكمة

No abstract provided.

Ein Bericht Aus Einer Akademie: Writing About Germany's Lost Jewish Scholars, 80 Years On, J.G. Allen

Research Collection Yong Pung How School Of Law

This volume explores the life and work of F.A. Mann—a German-born and (mostly) German-educated jurist who spent the operative parts of his professional life in the United Kingdom (UK). The project on which the volume is based set out to understand Mann’s life as a lawyer and describe his legacy—in English law, and also in German, European, and international law.

Shocking Financed Emissions: The Effect Of Economic Volatility On The Portfolio Footprinting Of Financial Institutions, Ilmi Granoff, Tonya Lee

Sabin Center for Climate Change Law

Many financial institutions are now calculating and disclosing their financed emissions, a class of metrics enabling these institutions to calculate the greenhouse gas (GHG) emissions associated with investment and lending activities. These institutions have widely adopted the metric to estimate exposure to climate-related financial risk associated with GHG-emitting activities and to provide shareholders and investors a picture of how their financial activity impacts global climate change. Financed emissions metrics, despite widespread adoption, face two key methodological challenges: lack of comparability of outputs within and between portfolios, and vulnerability of calculations to portfolio volatility. Markets are naturally volatile, but the economic …

Climate Change And Human Health: A Synthesis Of Scientific Research And State Obligations Under International Law, Jessica A. Wentz

Sabin Center for Climate Change Law

This report synthesizes the latest scientific research on the human health effects of climate change and discusses the legal implications of this research, specifically with regards to State obligations under international law. In doing so, the report seeks to provide insights on issues to be analyzed by the International Court of Justice (ICJ) in its upcoming advisory opinion on the legal obligations of States with respect to climate change. It also seeks to enhance the capacity of judges, advocates, and governments to understand these issues in the context of current and future proceedings involving international law obligations related to climate …

Witness Recall For Conversation: An Empirical Check On The Hearsay Rule, Susan E. Provenzano, Sarah Brown-Schmidt

Faculty Publications By Year

No abstract provided.

California And Europe Require Scope 3 Climate Disclosures Despite Sec Retreat, Michael B. Gerrard

Faculty Scholarship

In March 2022, the U.S. Securities and Exchange Commission (SEC) issued proposed regulations on disclosure of climate-related information by public companies, including their material Scope 3 greenhouse gas (GHG) emissions. This created a firestorm, drawing more than 24,000 comment letters.On March 6, 2024, the SEC issued its final rule, significantly narrowing the requirements and, notably, eliminating the Scope 3 disclosures. Companies that do not want to make Scope 3 disclosures should not rejoice and environmental advocates and others who do want to see such disclosures should not despair, because new requirements from both California and Europe do mandate this information …

Bail At The Founding, Kellen R. Funk, Sandra G. Mayson

Faculty Scholarship

How did criminal bail work in the Founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related constitutional provisions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the Founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including Founding-era statutes, case law, legal treatises, and …

Distinguishing Family Poverty From Child Neglect, Joshua Gupta-Kagan

Faculty Scholarship

Family courts and child protective services (“CPS”) agencies surveil, regulate, and separate hundreds of thousands of families for neglect annually. These families are overwhelmingly poor, and the history of this legal system reveals an expectation, if not an intention, to intervene in poor families. This raises the question whether family courts and CPS agencies are “confusing poverty and neglect” or if they intervene for more than “just poverty,” as a raging debate in the field is framed.

The law fails to help resolve this debate. Instead of distinguishing poverty from neglect, or providing nuanced examinations of what social science has …

International Implications On Rising Sea Levels And Changing Ofmaritime Borders, Claire O'Brien, Megan Schumm

Ohio Northern University International Law Journal

No abstract provided.

Trade Laws Between Northern Ireland And The Republic Of Irelandpost Brexit, Claire O'Brien

Ohio Northern University International Law Journal

No abstract provided.

Depletion In Investor Confidence Entails Reflection Of Regulators:Viewing The Disclosure Regulation For The Primary Securitiesmarket In Bangladesh In Light Of The Design And Distributionobligations In Australia, S. M. Solaiman

Ohio Northern University International Law Journal

No abstract provided.

The Chinese International Commercial Court: The “One Stop Shop”Stop To Justice, Christopher Mccain, Joseph Phillipps

Ohio Northern University International Law Journal

No abstract provided.

Bad For The Gander: New Zealand’S Failure To Learn From Thecautionary Tales Of Unreliable Forensic-Science Evidence Andwrongful Convictions Abroad, Carrie Leonetti

Ohio Northern University International Law Journal

No abstract provided.

Discovering China’S Free Expression Values, Karen M. Markin

Ohio Northern University International Law Journal

No abstract provided.

To Coordinate Or Not To Coordinate: The Governance Of Digital Assets In A Global Marketplace, Matthew Hashemi

Ohio Northern University International Law Journal

No abstract provided.

Eliminating Discrimination And Violence Against Indigenous Women:A Constitutional Imperative In Bangladesh, Israt Jahan

Ohio Northern University International Law Journal

No abstract provided.

The Future Of A Digital Schengen Visa: The Benefits Of Consular Accessibility, Impartiality, And Drawbacks For Disadvantaged Nations, Nicolas Garon

Ohio Northern University International Law Journal

No abstract provided.

Educating For Equality: A Symposium On Combating Anti-Lgbtq+ Legislation: A Roundtable Discussion

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.