Law Commons^™

Major Questions About Presidentialism: Untangling The “Chain Of Dependence” Across Administrative Law, Jodi L. Short, Jed Handelsman Shugerman

Faculty Scholarship

A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation …

Sports Participation By Athletes With Cardiovascular Disease, Matthew W. Martinez, Michael J. Ackerman, George J. Annas, Aaron L. Baggish, Sharlene M. Day, Kimberly G. Harmon, Jonathan H. Kim, Benjamin D. Levine, Margot Putukian, Rachel Lampert

Faculty Scholarship

Millions of young people participate in competitive sports, with well-documented physical and psychological benefits.1 Athletes may be diagnosed with cardiovascular disease (CVD) during evaluation of symptoms, routine preparticipation screening, or clinically indicated family screening. When this occurs, decisions about return-to-play (RTP) are difficult, especially in circumstances when risk may exist or be unknown. Historically, expert consensus documents such as the Bethesda Conference Proceedings,2 provided a “yes/no” approach to RTP after a diagnosis of a CVD such as hypertrophic cardiomyopathy (HCM) or long QT syndrome (LQTS). These recommendations were made with a paucity of data, and were predicated on a zero-risk …

The Case For Scientific Jury Experiments, Bernard Chao, Christopher Robertson, David Yokum

Faculty Scholarship

For decades, litigators have relied on focus groups. While this approach can help identify issues for further exploration, attorneys often use focus groups to shape trial strategy or even predict outcomes. But focus groups are ill-suited for these applications because they suffer from three basic weaknesses: 1) they cannot explore unconscious decision-making; 2) they use too few mock jurors to provide reliable answers, and 3) they can become echo chambers that only surface a subset of the issues that an actual jury will consider.

Fortunately, recent technical advances in crowdsourcing and insights into human decision-making have opened the door to …

A Conversation On The Carceral Home, Ngozi Okidegbe, Kate Weisburd, Emmett Sanders, James Kilgore

Faculty Scholarship

On February 8, 2024, scholars Ngozi Okidegbe, Kate Weisburd, Emmett Sanders, and James Kilgore met virtually at the Boston University School of Law to hold a conversation on Professor Weisburd’s article, The Carceral Home, 103 B.U. L. Rev. 1879 (2023).

The Physical-Emotional Distinction In Tort, Philip Petrov

Faculty Scholarship

Several legal scholars have recently argued that U.S. tort law’s physical-emotional distinction commits tort to the objectionable position of mind-body dualism, but they have not considered the distinction’s role as an aid to judicial cognition and decision-making. Drawing primarily on the law of negligent infliction of emotional distress, this essay argues that tort’s physical-emotional distinction is not a relic of mind-body dualism but a heuristic that judges have used to structure and simplify the difficult but unavoidable task of drawing lines between legally cognizable and non-cognizable harm. The analysis has at least three normative implications: (1) users of tort’s physical-emotional …

Symposium: Gender, Health, And The Constitution: The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah L. Brake

ConLawNOW

This essay considers the role of sport in the new gender panic of legislative activity targeting transgender individuals, which now extends into health and family governance. Sport was one of the first settings—the gateway—to ignite the current culture war on transgender youth. This analysis examines how Title IX of the Education Act of 1972, the popular law responsible for the growth of opportunities for girls and women in sports, has been mobilized in service of a broader gender agenda. Far from providing a persuasive justification for the state laws banning transgender girls from girls’ sports, Title IX, properly understood, supports …

Arbitrary Government Intrusion Of The Home: Warrantless Pole Camera Home Surveillance Survives Katz But Violates The Fourth Amendment, Hannah J. Eppling

Liberty University Law Review

The Fourth Amendment was adopted with a particular focus—to prevent arbitrary government intrusion. However, today most United States Circuit Courts permit arbitrary government intrusion via warrantless pole camera surveillance because the circuit courts apply the Katz test. As a result, government officials are almost entirely free to decide whether to install pole cameras anywhere on public property to continuously surveille a home for whatever duration the officials decide. Neither probable cause nor application for a warrant are required. The officials then not only surveil all visible home activities through the cameras, but the officials also record the surveillance and may …

Hypothetically Punished: Why The Court Should Heed Justice Thomas's Call In United States V. Taylor To End Its "Journey Through The Looking Glass", Arielle N. Leake

Liberty University Law Review

Should the location of a crime be the most important factor in determining the sentence of a convicted criminal? Should second-degree murder be categorically excluded from being a crime of violence simply because of the words a state legislature used to define it? Instinctively, much of society would answer “No”—finding that kind of arbitrariness and illogicality distasteful. Yet that is what has resulted from the Supreme Court’s categorical approach to statutory interpretation.

The Supreme Court began the federal judiciary’s journey of applying the categorical approach by using it to interpret the sentencing enhancement in 18 U.S.C. § 924(e). However, since …

A Matter Of Principle: Why The Ministerial Exception Categorically Bars Ministers From Bringing Hostile Work Environment Claims Against Their Religious Employers, Joshua B. Davis

Liberty University Law Review

Rooted in the First Amendment, the ministerial exception represents a general principle of law that has existed at least since the Magna Carta: the church autonomy doctrine. The ministerial exception reflects the church autonomy doctrine by recognizing a religious institution’s absolute right to select and control its ministers. Born in 1972 and receiving Supreme Court recognition in 2012, the ministerial exception’s application to most Title VII employment discrimination claims is unquestioned. But the ministerial exception’s application to hostile work environment claims, which arise from employment discrimination statutes like Title VII, is unclear.

The Supreme Court of the United States has …

Fulton'S Answer: State Constitutional Rejections Of Employment Division V. Smith As A Practical Model For The Restoration Of The Free Exercise Clause, Nathan Moelker

Liberty University Law Review

The Supreme Court’s 1990 decision in Employment Division v. Smith redefined its approach to cases under the Free Exercise Clause of the First Amendment. Many have criticized that approach and questioned its validity in the three decades since it was adopted. In Fulton v. City of Philadelphia, the Court again considered Smith’s flaws, but declined to overrule it, instead evading the Smith standard by clarifying an exception to its purportedly bright-line rule. While multiple Justices acknowledged and largely accepted the reasons that scholars continue to denounce Smith, a majority did not agree that it was time to …

The Fallacy Of Systemic Racism In The American Criminal Justice System, Paul J. Larkin, Giancarlo Canaparo

Liberty University Law Review

Critics of the criminal justice system have repeatedly charged it with systemic racism. It is a tenet of the “war” on the “War on Drugs,” it is a justification used by the so-called “progressive prosecutors” to reject the “Broken Windows” theory of law enforcement, and it is an article of faith of the “Defund the Police!” movement. Even President Joe Biden and his chief lieutenants leveled the same allegation early in this administration. Although the President has eschewed the belief that Americans are a racist people, others have not, proclaiming that virtually anyone who is white is a racist.

Yet, …

Table Of Contents

Liberty University Law Review

No abstract provided.

Conflict And Race In Literature & Law. The Case Of Americanah, Emanuela Ignatoiu Sora

Comparative Woman

In Americanah, the 2013 novel by Chimamanda Ngozi Adichie, there is a scene when one of the characters, Laura, speaks of her Ugandan classmate who did not get along with an African-American colleague. Laura is surprised as, for her, all persons of color are similar, with no understanding for their differences in background, personal stories and experiences. The novel depicts and critiques this very categorization of race, which flattens differences, conflating groups and individuals who might share very little, if anything. For a long time, law (with its stipulations, precedents and rulings) has operated in a similar manner, disengaging …

Masthead

Missouri Law Review

No abstract provided.

An Argument For Maintaining The Status Quo: Nonunanimous Verdicts On Panels In Courts-Martial, Abbigayle Qiu

University of Dayton Law Review

No abstract provided.

Search No Further Than Glatt V. Searchlight Pictures For A Uniform Test To The Student-Athlete Employment Question, Gabriella Fletcher

University of Dayton Law Review

No abstract provided.

The Doctrine Of Qualified Immunity And Why It Needs To Be Reformed In Situations Of Jail Suicide, Sasha Glickfield

University of Dayton Law Review

No abstract provided.

Postconviction Remedies, Retroactivity, And Montgomery V. Louisiana’S Other New Rule, Taylor A.R. Meehan

Missouri Law Review

The U.S. Supreme Court has turned its attention back to the law of habeas corpus, with a string of new decisions that emphasize the limited scope of federal habeas relief. But focusing one’s sights on only those decisions would overlook what has transpired at the Supreme Court in recent years in state habeas cases coming directly to the Supreme Court from the state postconviction courts. Montgomery v. Louisiana, in particular, shifted the division of power between the Supreme Court and state postconviction courts for questions conventionally considered to be questions of state law. Montgomery, on the surface, is a decision …

Copyright

Missouri Law Review

No abstract provided.

Comparison Of The Religious Meaning Of Water Festivals In Thailand And Laos, Tang Lin, Darmoko Darmoko

International Review of Humanities Studies

Both Thailand and Laos are predominantly Buddhist countries, following Theravada Buddhism. Influenced by Indian Buddhism, both countries celebrate several similar festivals, such as Songkran, Makha Bucha, Visakha Bucha, and Vixakha Souvana. Among all these celebrations, Songkran is considered the most lively, and this is the focus of this article. The article compares and analyzes the culture of Songkran in Laos and Thailand, including the festival's themes, cultural significance, and activities, to highlight the similarities and differences between the two. The cultural significance found in the Water Festival primarily stems from Indian cultural influences, while the differences in meaning are attributed …

Ideology Of Disaster Education Trauma Handling Post-Earthquake In Picture Stories Book: Critical Discourse Analysis, Silvia Damayanti, I Nyoman Suarka, Maria Matildis Banda, Ketut Widya Purnawati

International Review of Humanities Studies

This research analyzes the ideology that the author intends to instill in picture storybooks for children in Japan. The study aims to explore how the author conveys the ideology of handling trauma in children after earthquake disasters. The objects of the study are two picture storybooks titled "Yuzuchan" and "Yappari Ouchi Ga Ii Na." The research was conducted qualitatively using the documentary data search method. The analysis was carried out with van Dijk's CDA theory and Peirce's Semiotics Theory. The results of the analysis reveal that "Yuzuchan" and "Yappari Ouchi Ga Ii Na" are picture storybooks produced to help children …

Prosumer Behavior Of The Army Fandom Of Bts In Indonesia As A Form Of New Consumerist Society, Larassatti Dharma Nanda, Joesana Tjahjani

International Review of Humanities Studies

One of the most influential K-pop groups in the world is Bangtan Sonyeondan, abbreviated as BTS. BTS' success can also be determined by their extensive community of fans who create a fandom culture worldwide, including in Indonesia. This paper investigates the BTS fandom consumerism behavior, which is called ARMY, and its relation to Indonesia's participatory fan culture. This research focuses on how BTS's managing company creates a fandom image and how Indonesian fans react. This article is qualitative research using a literature review as the method. Analysis of this paper uses the consumerist society theory by Jean Baudrillard (1986) to …

Role Of Fat Talk On The Relationships In The Bruneian Chinese Society, Shee Ping Khoo, Brice Tseen Fu Lee

International Review of Humanities Studies

This research paper examines the role of “fat talk” in relationships in Bruneian Chinese society. “Fat talk” refers to negative comments about one's weight or body shape towards oneself or others. Using qualitative research methods, the study explores the perceptions and experiences of Bruneian Chinese individuals regarding “fat talk”, factors leading to the discussion of the topic, and its impact on their relationships with their peers. The findings suggest that while “fat talk” is prevalent in Bruneian Chinese society, it can have both positive and negative effects on relationships. The study aims to highlight the importance of addressing the “fat …

Energy Justice And Renewable Rikers, Rebecca Bratspies

University of Miami Law Review

Unsustainable energy practices generate the lion’s share of global carbon emissions as well as staggering levels of deadly particulate pollution. Replacing the current dirty, fossil fuel-based system with affordable, clean energy is both a human rights imperative and a climate change necessity. This transition, which has already begun, creates the opportunity to do things differently. By confronting the structural racism embedded in existing energy structures, we can build a just transition rather than just a transition. This Article uses New York City’s Renewable Rikers project as a case study to explore how we might take advantage of the intersections between …

Seeding A Movement: Indigenous Food Sovereignty, Mariaelena Huambachano

University of Miami Law Review

For many Indigenous peoples, well-being is bound up with and inseparable from the natural world. But since colonialism, Indigenous traditions and access to traditional foods or foodways have been disrupted, imperiling their health and well-being. In this Article, I discuss the role of Indigenous cosmovision/worldview and Indigenous Food Sovereignty in achieving environmental justice. Specifically, in this Article, I discuss that despite, or perhaps because of, efforts to deny Indigenous peoples’ access to healthy and culturally appropriate foods, Indigenous Food Sovereignty took a rise of preciousness in informing natural regenerative food systems, and ultimately, “holistic/collective well-being.”

Indigenous Knowledge As Evidence In Federal Rule-Making, Edward Randall Ornstein

University of Miami Law Review

Recent and historic federal guidance instructs agencies to consider Indigenous Knowledge in decision-making where it is available. However, tribal advocates are faced with many hurdles, in the form of “information quality” criteria, which requires the collection and dissemination of Indigenous Knowledge to conform to a complex set of procedural rules before agencies may be willing to consider it as evidence for rule-making. This Article seeks to define Indigenous Knowledge, highlight the hurdles to its implementation by federal agencies, and equip tribal advocates and officials with strategies and a demonstrative example of best practices for the packaging and presentation of Indigenous …

Public Health Impacts And Intra-Urban Forced Displacement Due To Climate Gentrification In The Greater Miami Area—Community Lawyering For Environmental Justice And Equitable Development, Theresa Pinto, Abigail L. Fleming, Sabrina Payoute, Elissa Klein

University of Miami Law Review

Because Miami-Dade County is “ground zero” for such climate effects as sea-level rise and increasingly hazardous, climate-driven Atlantic hurricanes, the coral rock ridge that runs along the Eastern coast of South Florida is a prime target for redevelopment and “climate” gentrification. Through a community and movement lawyering for environmental justice approach, we partnered with local community organizations to contribute to the ongoing work of community-driven equitable development. In partnership, we developed an environmental public health study to understand and document the public health effects on disadvantaged communities in Miami-Dade County from forced intra-urban displacement due to redevelopment that is being …

Evolving Legal Conceptions Of “Energy Communities”, Uma Outka

University of Miami Law Review

The concept of “energy communities” has had long-standing and evolving significance in the United States and in other countries around the world. Under the Biden Administration, the term “energy communities” has acquired new legal meanings that differ by context and continue to evolve. This Article traces the shifting meaning of “energy communities” and examines how it relates to other dominant references to “communities” in the context of energy law and policy, including environmental justice, low-income, underserved, and disadvantaged communities, as well as newer community-scale energy system innovations, such as community solar or “advanced energy communities.” International comparisons, such as with …

The Underwater: Using Art To Engage Communities Around Climate Action, Xavier Cortada

University of Miami Law Review

This Article delves into the intersection of art and environmental activism, with a focus on the impact of climate change. Cortada, both an artist and trained attorney, re-counts his three-decade journey leveraging art to inspire community engagement and address social and environmental challenges. He explains how Antarctic researchers made him aware of South Florida's vulnerability to sea level rise, leading to the development of interactive art projects that foster civic engagement and climate advocacy. The Article also addresses the challenges posed by climate denial and misinformation, emphasizing the need for creative strategies to combat these issues.

Cortada introduces specific participatory …

‘Rounding Up’ Roundup: One Last Hope For Glyphosate Regulation, Gabrielle Argimón-Cartaya

University of Miami Law Review

Since 1974, Bayer’s Roundup remains the world’s most popular herbicide and pervades United States farmland and food production. However, in 2015, Roundup landed centerstage in an international and presently unsettled debate over whether its active ingredient, glyphosate, causes cancer. Environmental groups regularly call for the de-registration of glyphosate due to the plethora of ailments, ecological harm, and weed resistance resulting from glyphosate use. Dissenting experts, however, believe that strict bans would devastate agriculture because of global dependence and the lack of any popular alternatives. Faced with mounting litigation, silence from the highest court, and unreliable regulators, Bayer continues to effect …