Law Commons^™

Amended Expert Disclosure Report: Navahine V. Dept. Of Transportation, State Of Hawai’I, Catherine Smith

Scholarly Articles

From a historical and sociological legal perspective, children in America, including in Hawai'i, require extraordinary legal protection from the harm of climate change and the government actions causing them harm. Hawai'i has a long history and tradition of leading the way on broadening rights and protections under state law, particularly for children. The principles of intergenerational justice and equity at the heart of the public trust doctrine in Hawai'i similarly require that courts accord special attention and protection for children.

On June 20, 2024, the youth-powered Navahine case settled, resulting in the first constitutional climate settlement of its kind in …

Book Review: Jane Henderson, The Constitution Of The Russian Federation: A Contextual Analysis (Hart Publishing, 2d Ed. 2022), Robert C. Blitt

Tennessee Law in the News

No abstract provided.

‘Resisting’ While Collaboratively Informing In Communist Czechoslovakia, Mark A. Drumbl, Barbora Holá

Scholarly Articles

Informers in the service of state secret police collaborate with authorities and thus contribute to the power of repressive regimes. Through a case-study of Communist Czechoslovakia (1945–1989)—and drawing from secret police archives– this article presents selected stories of informers who in one way or another also ‘resisted’ collaboration with the Czechoslovak State Security (StB). By doing so, we try to further complexify the notions of ’everyday resistance’, on the one hand, and ‘collaboration’ on the other. We demonstrate that resistant acts, similar to collaborative acts, can be apolitically devoid of ideology, highly idiosyncratic, and motivated by private drivers. Informing can …

Business Lawyer Leadership: Valuing Relationships, Joan Macleod Heminway

Scholarly Works

Business lawyers are surrounded by relationships because of the nature of their work. Businesses are relational; business associations law is relational; business lawyering is relational. Business lawyering, in all its manifestations, is a practice steeped in the lawyer’s awareness and management of, as well as their participation in, the layered sets of relationships found in businesses and business associations law. This article recognizes these important connections between business law practice and relationships. It approaches each of them in turn. The substantial take-away is that a business lawyer can best lead by understanding the inherent value of relationships to business lawyering …

Agent Of Russian Interests Abroad: Assessing The Moscow Patriarchate’S Activity In The Balkans And Beyond, Robert C. Blitt

Scholarly Works

This Article addresses the role played by the Russian Orthodox Church—Moscow Patriarchate (ROC) in supporting the Kremlin’s policy objectives in the Balkans, a region with significant historical ties to Russia and a common religious heritage steeped in Eastern Orthodoxy. In the face of Russia’s invasion of Ukraine, concern for the region’s stability has grown. This is particularly so due to Kremlin efforts to deflect attention away from Ukraine by fueling ethnic, religious, and political tensions left over from the U.S.-brokered Dayton Accords that ended the years of war following Yugoslavia’s collapse.

The analysis presented herein demonstrates that the ROC’s operation …

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Healthcare Fraud And Abuse: Continued Lessons Learned From High Performing Healthcare Organizations, Julie L. Agris

Annals of Health Law and Life Sciences

No abstract provided.

Crypto-Counterfeiting, Joshua Fairfield

Scholarly Articles

The current crypto winter has given rise to a range of legal challenges. One of the most important sets of legal challenges goes to the heart of cryptocurrency. Cryptocurrency was intended to be non-duplicatable at will, that is, not to be counterfeitable. Blockchain technology is supposed to prevent token counterfeiting through a combination of game theory and cryptography that prevents normal users from simply ordering the system to generate more tokens for their benefit.

The difficulty is that blockchain software is still software. People in charge can order and program the software to generate many more tokens for those individuals’ …

Review Of Teri Mcmurtry-Chubb, Race Unequals: Overseer Contracts, White Masculinities, And The Formation Of Managerial Identity In The Plantation Economy (Lexington Books, 2021), Lucille A. Jewel

Scholarly Works

In academic studies of the southern plantation, the overseer is often portrayed in simple terms as a lower-class white male who did not himself own land or enslaved persons. Departing from these one-dimensional descriptions, McMurtry-Chubb illustrates the plantation overseer in a much more granular way. In this lucid and engaging monograph, she shows how public and private law helped construct the overseer’s masculine identity in a way that both elevated the social status of elite planter males, and lowered the status of the enslaved people the overseer managed. The overseer’s performance of masculinity was assigned a value (lower than the …

Does Minnesota’S Red Flag Bill Violate The Second Amendment?, Sherian Anikie

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Building A Strong And Diverse Workforce? Consider Indian Preference, In The Private Sector, Carol Mayo Cochran

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Reproductive Justice At Work: Employment Law After Dobbs V. Jackson Women’S Health Organization, Laura T. Kessler

Utah Law Faculty Scholarship

In June 2022, in Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what happens in their own bodies. In the two years since the decision, seventeen states have made most or all abortions illegal, with the fight over abortion still taking place in state and federal courts. Experts across fields have explored the decision's effects on health, economic …

Social Justice Autobiography, James Jones

Writing Beyond the Prison Living Archive

Social Justice autobiography on Civil rights; Muslim; social justice; racial hypocrisy; freedom

Brazil’S Role In Global Climate Treaties, Uven Chong

International Program Papers

Since the 1992 United Nations Conference on Environment and Development, Brazil has asserted an influential role in shaping international climate change treaties. The purpose of this paper is to assess Brazil’s contributions in three major climate conferences: 1992 in Rio de Janeiro, 1997 in Kyoto, and 2015 in Paris. Brazil’s negotiating strategy at these conferences reveal two powerful tactics. First, Brazil approached these political events with a view that science and technology were paramount. Second, Brazil successfully injected economic development priorities into environmentally focused negotiations. These two noteworthy tactics have shaped the climate change diplomatic discourse for the past three …

In The Mind Of A Prisoner, Christopher Gattos

Writing Beyond the Prison Living Archive

Law (Crime Bill, Felon Disenfranchisement, 13th Amendment, legal representation); Ku Klux Klan; Historical memory; Reform; Prison Life; Drugs (War on); Sentencing; Children of Incarcerated; BLM; Pop Culture/media; Prison Education; Rehabilitation; Forgiveness; Gun Violence; COVID 19

What Roosevelt Did To Brown V. Board Of Education, Or Race And Court Packing, Jill M. Fraley

Scholarly Articles

Roughly one-third of American schools remain segregated. Scholars have offered a variety of explanations, mostly social and cultural, but sometimes legal, for why desegregation did not proceed effectively after Brown v. Board of Education. This Article articulates a less expected and previously undocumented cause: President Roosevelt's prior attempt at court packing slowed--even derailed--desegregation.

The story of what Roosevelt's court packing did to make the work of integration harder is a cautionary tale, particularly for those who want to alter the U.S. Supreme Court now in furtherance of a modern cause. The only reasonable route for reforming the Supreme Court must …

Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes, Camilla A. Hrdy, Christopher B. Seaman

Scholarly Articles

There is a substantial literature on noncompete agreements and their adverse impact on employee mobility and innovation. But a far more common restraint in employment contracts has been underexplored: confidentiality agreements, sometimes called nondisclosure agreements (NDAs). A confidentiality agreement is not a blanket prohibition on competition. Rather, it is simply a promise not to use or disclose specific information. Confidentiality agreements encompass trade secrets, as defined by state and federal laws, but confidentiality agreements almost always go beyond trade secrecy, encompassing any information the employer imparted to the employee in confidence.

Despite widespread use, confidentiality agreements have received little attention. …

Judge Anne Thompson - Master List All Folders

Judge Anne Thompson Collection

No abstract provided.

When Originalism Failed: Lessons From Tort Law, Donald G. Gifford, Richard C. Boldt, Christopher J. Robinette

Faculty Scholarship

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first …

What The Roys Should Learn From The Demoulas Family (But Probably Won’T), Joan Macleod Heminway

Scholarly Works

This essay offers a comparison of the actions taken by members of two families: the Demoulas family, best known as owner-operators of northeastern regional supermarkets, and the Roy family featured in HBO's series "Succession." The comparative appraisal focuses principally on the selfish pursuit of individualized financial, social, and familial status by key members of both the Demoulas and Roy families as they relate to the law of business associations (principally corporate law). At the heart of the matter is the legal concept of fiduciary duty. A comparison of the two families’ exploits reveals that lessons earlier learned by the Demoulas …

Antitrust Law For Blockchain Technology, Seth C. Oranburg

Law Faculty Scholarship

Applying traditional antitrust law to the modern world wide web could break the internet. Lina Khan, the FTC’s current chair, is pushing for enhanced antitrust enforcement to break up Big Tech, seemingly based on the assumption that antitrust law is the right tool for ensuring a free and equitable internet. This assumption may be in error, and this Article seeks to explain why. Antitrust doctrine originally developed from a law enacted 130 years ago to deal with monopolist “robber barons” like Standard Oil. Since 1890, the structure of markets has changed. Today’s information markets through the internet are much different …

The Bias Presumption, Bradley A. Areheart, Dave Hall

Scholarly Works

The American workplace is a fractured sphere of public life, in which white men often wield power at the expense of women and people of color. However, that power imbalance is no longer fully imbued with the active animus that characterized the first few centuries of American life; now, much of the damage done by discrimination is done structurally and implicitly. Consequently, the operation of bias and disadvantage is often invisible to employers and employees alike. The problem of discrimination in American life is thus larger and deeper than a few bad actors, and it will be impossible to solve …

Fleeing Terror In Southern Mexico: Why Numerous Guerrero Refugees Qualify For Asylum, International Human Rights Clinic Of Seattle University School Of Law, Kino Border Initiative

International Human Rights Clinic

This report sheds light on the crisis confronting residents of Guerrero, a state in Southern Mexico plagued by rampant, indiscriminate violence and human rights violations. It utilizes research and first-person interviews to methodically provide a rationale for granting these refugees asylum under U.S. law.

Belt And Road Initiative: Legal Mechanism To Recover Stolen Assets, Veltrice Tan

Singapore International Dispute Resolution Academy

Purpose: This paper aims to determine the types of legal mechanisms that authorities can use to recover stolen assets for and from China. Design/methodology/approach: Newspaper articles and books are examined as are relevant reports by various regulatory authorities and academic institutions. Findings: The effectiveness of legal mechanisms in the recovery of stolen assets may be affected by issues such as the difficulties in tracing illicit funds, the ambiguous nature of “value” as well as the rise in technology. Research limitations/implications: There are limited data available in relation to the prevalence of corrupt officials along the Belt and Road Initiative and …

Effects Of Police Hiring & Training On Civilian Complaints: A Case Study Of The Nassau County, Ny Police Department, Shevach Berkovits

Theses and Dissertations

Police agencies and administrations continue to face public scrutiny, consequential poor policing, and costly litigation from within their communities. Newly hired Police officers, trained in the latest police science, can lead to fewer received civilian complaints from the communities they serve. Without established literature and studies, agency leadership and policy-makers' decision-making are constrained to quantifying spreadsheet data, which rarely alter the totality of any micro-level police-related interactions. Therefore, this study asks, how does the amount of newly hired police officers affect the number of civilian complaints received? Theories applied include Risk Management, Societal Security, and Conflict Criminology. The Nassau County …

Notes, Papers, And Manuscripts - Robert Taylor/Bruce Ledewitz Collection, Bruce Ledewitz, Robert Taylor

Ledewitz Papers

A collection of notes, articles, manuscripts produced by Robert Taylor and Bruce Ledewitz during their decade-long collaboration.

Children's Right To Access Potentially Critical Learning: Liberating Youth From Propagation Of Structural Injustice, Melina Constantine Bell

Scholarly Articles

Over the past two years, U.S. states have passed educational gag orders (“EGOs”) that prohibit teaching about antiracism and LGBTQ+ identities. EGOs are destructive in at least two ways. First, they violate children’s right to access information that is potentially critical for their individual well-being. Second, they interfere with cultivating mutual respect in a pluralistic society, which serves children’s present and future wellbeing interests. In this article, I aim to demonstrate the harms that EGOs inflict, and how revising the legal framework governing children’s rights in the United States can increase both children’s and adults’ well-being. That revision entails the …

1983, Brandon Hasbrouck

Scholarly Articles

This Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law context. The title (itself quite close to Orwell’s own title) is a reference to our chief civil rights statute, while the story deals with a critical threat to that …

Non-Investment Finance In An Nft World, Joan Macleod Heminway

Book Chapters

Recent years have witnessed the rise of NFTs as vehicles for non-investment finance, including in nonprofit and political fundraising. As with other financial sectors in which NFTs have a role, the use of NFTs in financing nonprofits and political campaigns and committees has revealed gaps and ambiguities in existing legal regulatory systems. Appetite exists to evolve legal frameworks to complete and clarify applicable bodies of law and regulation.

This chapter undertakes to illuminate and reflect on the use of NFTs in financing nonprofits, political campaigns, and political committees. It begins by reviewing general aspects of the non-investment Internet finance environment …

Enforcing International Law Against Corporations: A Stakeholder Management Approach, Kishanthi Parella

Scholarly Articles

There is an important but oft neglected relationship between the problems of corporate governance and international law. Corporate managers grapple with how to respond to society's demands that their enterprises do better when it comes to protecting people and the planet. These demands take many forms, including increased pressure for “sustainability” and “environmental, social, and governance” (“ESG”) measures. These demands are made in response to the economic, social, environmental, and political crises facing our world and a recognition of the responsibility of corporations and other business actors to contribute to their resolution. What is often unrecognized is that many of …