Law Commons^™

Indian Country Lawyers: A South Dakota Survey, Bryce Drapeaux, Hannah Haksgaard

Faculty Publications

South Dakota’s reservations are rural and suffer from a shortage of lawyers. Relatedly, there are very few Native American licensed attorneys in South Dakota. This essay confronts the rural lawyer shortage on South Dakota’s reservations by documenting the lawyers practicing on South Dakota’s reservations. In addition, this essay addresses the access to justice crisis amplified on South Dakota’s reservations by this lawyer shortage. The essay provides some insight into the difficulties of placing more lawyers onto the reservations, while also offering potential pathways to remedy this crisis.

Exploring The Nexus Between European Competition Law And Democratic Society: A Case Of Political Microtargeting, Viktorija Morozovaite, Anna Gerbrandy

Yearbook of Antitrust and Regulatory Studies

The nexus between European competition law and democracy has been widely researched. Against the background of the ongoing digital transition and the power of big technology companies, this contribution aims to advance the debate by focusing on a specific example of political microtargeting and its effects on the (digital) public sphere. It explores the potential role of European competition law in ameliorating these emergent harms. The argument is developed by showing that the role of big technology companies in political microtargeting processes extends beyond passive facilitators. By following financial incentives and treating citizens as consumers, these companies, in effect, reduce …

Power, Media Pluralism, And Democracy – Regulatory, Legal, Or Extra-Legal Responses International Conference Warsaw, 16–17 November 2023 ‘Democracies Die In Silence’, Maciej Bernatt, Anna Gerbrandy, Małgorzata Kozak, Pauline Phoa

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Investigating Appraisal Discrimination, Carol Brown

Law Faculty Publications

Over the past five years, the question of whether real estate appraisers systematically undervalue homes purchased or occupied by Black and Hispanic households has emerged as a significant civil rights issue. Major media have highlighted some instances where the same home received a dramatically higher appraisal when the appraiser believed the client was white rather than Black. Some social scientists have argued that appraisal discrimination is the root cause of the lower housing prices that prevail in many urban minority neighborhoods— and thus an important source of the racial “wealth gap.” Candidate Biden expressed strong concern about the issue during …

John Coxe's Exchequer Reports, William Hamilton Bryson

Law Faculty Publications

John Coxe was born circa 1695. He was the eldest son of Charles Coxe (c. 1661-1728), a bencher and treasurer of Lincoln's Inn and member of Parliament. John Coxe matriculated at Magdalen College, Oxford, on 23 January 1712, and he was admitted as a student at Lincoln's Inn on 27 January 1712; he was called to the bar in 1718, and made a bencher in 1743. On the death of his father in 1728, he inherited Nether Lypiatt, in Gloucestershire, an imposing manor house that his father had built in 1717. He was the Clerk of the Letters Patent from …

Supplemental Jurisdiction And § 1367: The Good, The Bad, And The Ugly, Wendy Perdue

Law Faculty Publications

Among the outstanding accomplishments of Judge Joseph F. Weis, Jr. was his work chairing the Federal Court Study Committee. Appointed by Chief Justice Rehnquist at the direction of Congress, the committee undertook a fifteen month study of the problems in the federal court system. The final report was issued in 1990 and made a series of recommendations addressing a broad range of topics including tax jurisdiction, narcotics prosecutions, habeas cases, sentencing reform, disability adjudications, and diversity jurisdiction, which the committee recommended eliminating entirely...

A Model For Community-Led Energy Planning And Climate Justice: Renewable Energy Development On The Hawaiian Island Of Molokai, Joel B. Eisen

Law Faculty Publications

This Essay studies the ongoing clean energy transition on the Hawaiian island of Molokai. Efforts to reduce the island’s reliance on imported diesel fuel and exposure to volatile petroleum prices requires improving access to energy resources and mitigating climate change impacts. Rather than relying on or retrofitting inequitable legacy models, Molokai has opted to pursue low-cost, clean, and affordable distributed local energy. This essay posits that the contemporary model of the Molokai Community Energy Resilience Action Plan (CERAP), through the use of citizen involvement to generate community empowerment and integration of the work of the Hawaii Natural Energy Institute (HNEI) …

From Redlining To Greenlining, Danielle Stokes

Law Faculty Publications

For generations, marginalized communities have been impacted by discriminatory land use, zoning, and property valuation policies, from redlining in the 1930s to the siting of undesirable land uses that persists today. Because of these policies, marginalized communities are forced to contend with low property values, substandard infrastructure, and increased health risks. The very same mechanisms that created these injustices, however, may now be key to addressing them. This Article introduces “greenlining” as a land use planning mechanism that seeks to remediate historical housing, siting, and economic disparities while forging a path toward energy and environmental justice. Greenlining, the productive and …

Punishing Gender, Erin Collins

Law Faculty Publications

As jurisdictions across the country grapple with the urgent need to redress the impact of mass incarceration, there has been renewed interest in reforms that reduce the harms punishment inflicts on women. These "gender-responsive" reforms aim to adapt traditional punishment practices that, proponents claim, were designed "for men." The push to change how we punish based on gender, while perhaps well intentioned, is misguided. As abolition feminist principles reveal, these gender-responsive practices not only reify traditional gender norms, but also strengthen the operation of the carceral state. This Article catalogs the ways in that the gender-responsive approach currently influences various …

The Injunction Function: Is Ip Law Promoting Markets For Innovators And Creators?, Kristen Osenga

Law Faculty Publications

32 Federal Circuit Bar Journal 4 (2024) The Federalist Society hosted this panel on November 11, 2023, as part of their 2023 National Lawyers Convention in Washington, D.C. This panel focuses on the role injunctions play in the facilitation or constraining commercialization of patent technologies and copyright, the current state of the law, and its meaning for next-generation innovations like creative uses of artificial intelligence.

The U.S. Statecraft Of Corporate Human Rights Obligations, Andrew B. Spalding

Law Faculty Publications

Statecraft may be defined as “the use of instruments at the disposal of central political authorities to serve foreign policy purposes.” That definition, though, may admit of a narrower and a broader understanding. The narrower and perhaps more cynical notion imagines statecraft as the management of a power struggle for the sake of self- preservation. Even the Oxford Dictionary of Politics and International Relations conceives statecraft as fundamentally about “managing relations between states to the advantage of one’s own country.” With roots extending at least as far back as Machiavelli’s The Prince with its infamous preoccupation with preserving power in …

Becoming The "Bill Of Rights": The First Ten Amendments From Founding To Reconstruction, Kurt T. Lash

Law Faculty Publications

The first ten amendments to the federal Constitution have no formal title. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a …

Towards An Understanding Of Tax Complexity, Daniel Schaffa

Law Faculty Publications

The study of tax complexity has reached consensus on two things. First, complexity pervades the U.S. tax system. And second, it is not always clear what tax complexity means. Indeed, it is common practice for tax complexity scholarship to note the absence of a universal tax complexity definition and then conduct its inquiry without one. A universal definition of tax complexity has proven elusive because tax complexity means many different (although often related) things. This has made the tax policy analysis of complexity challenging. As an alternative to a definition, this Article proposes a framework with four elements for considering …

Oops! The Unfortunate (But Basic) Error In The New Ucc Article 12, David Frisch, Nicole Dalrymple

Law Faculty Publications

The Uniform Law Commission and American Law Institute have recognized the need for commercial law to govern digital transactions and responded with the proposed addition of a new article to the Uniform Commercial Code (the “Code” or “UCC”), Article 12. Article 12 will govern the transfer of property rights in a particular category of digital assets (controllable electronic records), which would include commonly known digital assets, such as bitcoin and non-fungible tokens (“NFTs”). Although the addition of Article 12 should provide more certainty in transactions involving current and emerging technologies, there is a fundamental problem with the article as it …

Taxing The New With The Old: Capturing The Value Of Data With The Corporate Income Tax In Virginia, Coleman H. Cheeley

Law Student Publications

The Commonwealth of Virginia markets itself as “The Largest Data Center Market in the World.” In 2019, the Northern Virginia market alone was the largest in the United States by inventory, with room to grow. In 2021, data centers in Northern Virginia required an estimated 1,686 megawatts of power; that number is expected to increase by 200 megawatts in the near future, reflecting data centers currently under development. For reference, in 2022, it was estimated that more than 100 homes could be powered by one megawatt of solar power in Virginia. Historically, data centers have been located in the Commonwealth …

Venture Capital's Esg Problem, Ryan A. Ashburn

Law Student Publications

Venture capital (“VC”) is repeatedly described as one of the “crown jewels” of the U.S. economy for its role in financing startups and innovation. However, recent corporate scandals, including fraud, have exposed a darker side of the VC industry and the startups in which venture capitalists (“VCs”) invest. For example, Theranos received $686 million in VC funding yet proved to be nothing more than a “house of cards” once it came to light that Theranos falsified blood test results. When Theranos founder Elizabeth Holmes was convicted of fraud, many VCs tried to distance themselves, saying Theranos was an exception and …

First Comes Love: Advocating For A Revival Of Pre-Obergefell Estate Planning Vigor For Lgbtq+ Couples And Families, Kimberly N. Furtado

Law Student Publications

On June 24, 2022, the Supreme Court of the United States handed down its decision in Dobbs v. Jackson Women’s Health Organization. Beyond the obvious devastation this opinion wreaked on abortion rights nationwide, it also unleashed a fear in communities that have gained substantive rights through the Court’s decisions based on similar reasoning. News organizations and LGBTQ+ advocacy groups quickly published stories discussing the fate of same-sex marriage in a post-Dobbs society. If the Supreme Court were to overturn Obergefell v. Hodges, it would be a crushing loss to the LGBTQ+ community. Not only would it signal the lack of …

Biopiracy: Using New Laws And Databases To Protect Indigenous Communities, Cleo-Symone Scott

Law Student Publications

Indigenous people have a historical link to those who inhabited a country or region at the time when people of different cultures or origins arrived. Traditionally, indigenous people have a special relationship with their ancestral environments. But their way of living has long been under threat. The land that indigenous people live on is home to over 80% of our planet’s biodiversity, but it continues to be appropriated and plundered due to bioprospecting or, as some call it, biopiracy. Bioprospecting is defined as “the exploration and information gathering of genetic and biochemical material to develop commercial products.” While innovation is …

From Suspension To Mass Incarceration: Punishment Of Student With Special Needs And The School-To-Prison Pipeline, Bailey Ellicott

Law Student Publications

Since their inception in the late 1980s, zero-tolerance policies have been a cornerstone of American school discipline. Passed by legislators with the intent of protecting school children, these policies have disparately upended the education of marginalized students. School discipline of vulnerable students often paves the way to juvenile incarceration, which in turn exponentially increases the likelihood of adult incarceration. Moreover, students with disabilities, especially students of color with learning disabilities, are often physically pushed out of their classrooms through suspensions and other harsh disciplinary policies. This is only made worse by the presence of law enforcement in schools, who treat …

From Community Science To Community Justice: Protecting Data Usability In Community Air Quality Monitoring Networks, Marley Manjarrez

Law Student Publications

Community science holds significant promise for empowering communities to address air quality disparities and advocate for policy change. However, the usability and legal defensibility of community-collected data pose significant challenges. This article argues that with the help of low-cost tools such as air quality monitors, community members can take an active role in combating the disproportionate distribution of air pollutants hidden by our current regulatory scheme. By examining the regulatory frameworks under the Clean Air Act and opportunities for procedural justice at federal, state, and local levels, the article identifies pathways for incorporating community-collected data into air quality regulation and …

Cost Cushion Or Cash Cow? A Federal Drug-Pricing Program Called Into Question, Caleb C. Briggs

Law Student Publications

“Bon Secours turned the hospital’s poverty into an asset,” read a recent story about Richmond Community Hospital published in The New York Times. Richmond Community Hospital has been part of the Bon Secours network since 1995. Since then, the hospital has become one of the most profitable in the Bon Secours network. Yet, over time, Richmond Community Hospital has been stripped of its resources, lost medical staff, and generally seen a decrease in its ability to provide patients quality health care services. The hospital is located in Richmond’s East End, which is a predominantly low-income neighborhood, and a large …

Bodies On The Line: An Analysis Of Incarceration And Assassination And Their Role In The Civil Rights Movements, Courtney Mason

Law Student Publications

The history of American civil rights is understood largely through the context of various mass movements. Most famously, the Civil Rights Movement of the 1950s and 1960s was a remarkable representation of collective action. The success of that movement becomes even more significant when considering the realities of life for Black Americans at the time. In the spirit of those movements, the 2010s and 2020s have brought about modern movements that continue to push against discrimination toward Black Americans and push for progress in the legal system. The movements each were and are met with opposition. This article focuses on …

The Necessity Of Restorative Justice Within Prisons, Sarah J. Pietrowski

Law Student Publications

In the era of mass incarceration, it is vital to reexamine the prison system to identify not only its weaknesses, but its successes. Successes in correctional systems are often measured by a reduction in recidivism rates, and in states where restorative justice practices have been implemented in prisons, recidivism rates have exhibited a significant decrease, affirming the necessity of restorative justice practices in prisons. Additionally, restorative justice not only helps victims of crime feel that their voices are heard and that the one who harmed them will experience personal growth, but it is preferred by the majority of victims as …

Stopping The Cycle Of Abuse Before It Starts: An Evaluation Of Virginia's Domestic Violence Primary Prevention Model In Schools, Amanda Palini

Law Student Publications

In 1994 the United States was faced with a domestic violence epidemic that led Congress to pass the Violence Against Women Act (VAWA). The Act was passed to respond to the needs of victims, particularly women, who are at the highest risk of victimization in crimes such as domestic violence and sexual assault. While domestic violence has been recognized as an important public health problem, most services provided are focused on after-the-fact interventions rather than prevention.

Many states, including Virginia, have since created domestic violence prevention programs, added preventative requirements to their state code, and tasked their respective Departments of …

Hitting Snooze Amidst Virginia's Mental Health Crisis: The Shortcomings Of The Bed Of Last Resort And The Need For A Continuum Of Crisis Care, Mary C. Fritz

Law Student Publications

In the early morning hours of February 21, 2022, a temporary detention order (“TDO”) was issued for a young girl from Giles County, Virginia, to admit her for psychiatric treatment during a mental health emergency. The minor, identified by the initials S.E., was staying at a residential treatment facility when Chesterfield County police officers drove her to Chippenham Hospital for an evaluation. S.E. was to be transported to the Commonwealth Center for Children and Adolescents in Staunton, Virginia, for treatment, but the center “asserted that it had no beds available and refused to accept S.E. as a patient.” Instead, S.E. …

Oops! The Unfortunate (But Basic) Error In The New Ucc Article 12, David Frisch, Nicole Dalrymple

Law Student Publications

The Uniform Law Commission and American Law Institute have recognized the need for commercial law to govern digital transactions and responded with the proposed addition of a new article to the Uniform Commercial Code (the “Code” or “UCC”), Article 12. Article 12 will govern the transfer of property rights in a particular category of digital assets (controllable electronic records), which would include commonly known digital assets, such as bitcoin and non-fungible tokens (“NFTs”). Although the addition of Article 12 should provide more certainty in transactions involving current and emerging technologies, there is a fundamental problem with the article as it …

The (Still) Unexplored Possibilities Of A Poetics Of Law, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

In this contribution to the symposium celebrating the Fiftieth Anniversary of James Boyd White’s The Legal Imagination, I have accepted White’s invitation in the last chapter of his magisterial book to think about poems and judicial opinions as compatible acts of imagination and meaning making. White asks brilliant questions, and his book is full of them, each a nugget of insight and also a prod that asks the reader to think harder, think deeper, revisit her first thoughts, to perhaps change her mind, and above all, with guidance, to educate herself. In this chapter of the book, White is …

U.S. Judiciary Syllabus: True True Crime Zines, Jason Leggett

Open Educational Resources

An experimental, open education syllabus for a pilot zero textbook cost course, U.S. Judiciary using zines and true crime.

The Battle Between Open Markets And National Security: How Limiting Investments Into Foreign Technology Might Be Hurting National Security Goals, Alexandra Van Cleef

Catholic University Journal of Law and Technology

No abstract provided.

Breaking Algorithmic Immunity: Why Section 230 Immunity May Not Extend To Recommendation Algorithms, Max Del Real

Washington Law Review Online

In the mid-1990s, internet experiences were underwhelming by today’s standards, despite the breakthrough technologies at their core. When a person logged on to the internet, they were met with a static experience. No matter who you were, where you were, or how you accessed a particular website, it rendered a consistent page. Today, internet experiences are personalized, dynamic, and vast—a far cry from the digital landscape of just a few decades ago. While today’s internet is unrecognizable compared with its early predecessors, many of its governing laws remain materially unaltered. In particular, section 230 of the Communications Act, which passed …