Law Commons^™

Gene-Edited Crops And Food And The Bold Path Forward In U.S. Trade Agreements, Matthew Schaefer

North Carolina Journal of International Law

No abstract provided.

The Rise Of China, The United States, And The Limits Of International Law, Julian G. Ku

North Carolina Journal of International Law

No abstract provided.

Mail-Order Brides And Human Trafficking In Israel: Forced Marriage As A Form Of Exploitation, Emily Zoffer

North Carolina Journal of International Law

No abstract provided.

Who's Afraid Of Being Woke? – Critical Theory As Awakening To Erascism And Other Injustices, Berta E. Hernández-Truyol

UF Law Faculty Publications

This Essay critically analyzes the “anti-woke” message deployed by the Conservative Political Action Conference’s (CPAC) 2023 annual meeting’s poster—the suggestion that awake is good and its synonym woke is bad—with the goal of establishing the importance of CRT in general and in education more specifically. This work shows how critical theories are key to deconstructing disingenuous messaging about the meaning of words, theoretical constructs, and historical realities.

The Work first elucidates that the meaning of awake, as utilized in myriad fields, addresses the concept of consciousness—awareness of injustices in society. Second, the Essay historicizes the origins and uses of the …

Justice Delayed: Government Officials' Authority To Wind Down Constitutional Violations, Neil H. Buchanan, Michael C. Dorf

UF Law Faculty Publications

Upon finding that a government program is unconstitutional, courts in the United States sometimes allow executive officials a grace period to wind it down rather than insisting on its immediate cessation. Courts likewise occasionally afford a legislature a grace period to repeal an unconstitutional law. Yet no one has even attempted to explain the source of authority for allowing ongoing constitutional violations or to prescribe the limits on permissible compliance delays. Until now.

Judicial toleration of a continuing constitutional violation can be conceptualized as an exercise of the equitable discretion to withhold injunctive relief, but that rationale does not justify …

The Human Environment: Awakening To The Indomitable Cuban Spirit—Government, Culture, And People, Berta E. Hernández-Truyol

UF Law Faculty Publications

My thoughts are to write about The Human Environment. I will address the recent events concerning the increased silencing of dissent and the criminal law reforms that prohibit peaceful gatherings.

A Good Death: End-Of-Life Lawyering Through A Relational Autonomy Lens, Genevieve Mann

Washington Law Review

Death is difficult—even for lawyers who counsel clients on end-of-life planning. The predominant approach to counseling clients about death relies too heavily on traditional notions of personal autonomy and a nearly impenetrable right to be free from interference by others. Rooted in these notions, contracts called “advance directives” emerged as the primary tool for choosing one’s final destiny. Nevertheless, advance directives are underutilized and ineffective because many people are mired in death anxiety, indecision, and the weight of planning for a hypothetical illness. In the end, many do not get the death they choose: to trust in others and share …

Putting The Public Back In The Public Trust Doctrine: A Reinterpretation To Advance Native Hawaiian Water Rights, Steven Hindman

Washington Law Review

The public trust doctrine guarantees that the government will hold natural resources in trust and protect them for the common good. The doctrine has played a key role in the allocation of water rights, particularly for Native American and Native Hawaiian interests in the United States. State and federal courts often consider the doctrine when deciding if certain use rights should be granted. In Hawai‘i, the doctrine has taken on a particularly robust form because the State Constitution expressly provides that all public natural resources are to be held in trust for the benefit of all Hawaiians. Unfortunately, the doctrine’s …

Following The Science: Judicial Review Of Climate Science, Maxine Sugarman

Washington Law Review

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …

Hit The Reset Button: Video Games, Platforms, And Changing Antitrust Vertical Merger Policy, Cahill Maffei

Student Scholarship

For decades, antitrust law has treated vertical mergers as almost per se legal. Courts and scholars embraced the economic theories of the Chicago School, which predict that vertical mergers almost always lead to efficiencies that benefit consumers through lower prices. As a result, vertical mergers are almost never challenged and those that are usually fail. More recently, politicians, regulators, and pundits have become increasingly concerned with the growing concentration of wealth and power among America’s large technology corporations. Part of their dominance can be explained by the rapid rise of platform business models, which through network effects can entrench dominant …

The Future Of Anti-Poverty Legislation, Andrew Hammond, Ariel Jurow Kleiman, Gabriel Scheffler

Articles

The era of big-government COVID relief is over. The initial pandemic relief legislation, followed by two years of Democratic control in Washington, seemed to herald the expansion and modernization of the U.S. safety net. But sustained reform proved elusive. Now that this window of opportunity has closed, it's time to step back and take stock. For those who focus on anti-poverty programs, one question persists: The next time there is such an opportunity to strengthen anti-poverty programs through legislation, how should federal law change?

This Article suggests the answer to that question lies in lessons from recent experience, including, but …

Duncan Alford, Setting The Bar For Collegiality And Professionalism, Caroline L. Osborne

Law Faculty Scholarship

Duncan E. Alford (1963 – 2023), lawyer, librarian, scholar, colleague. This essay documents the significant contributions our colleague, Duncan E. Alford, University of South Carolina School of Law made to his profession. Professor Alford’s is remembered for his significant contributions.

The Unfulfilled Promise Of Environmental Constitutionalism, Amber Polk

UC Law Journal

The political push for the adoption of state-level “green amendments” in the United States has gained significant traction in just the last couple of years. Green amendments add an environmental right to a state’s constitution. Five such amendments were made in the 1970s in Pennsylvania, Montana, Hawaii, Massachusetts, and Illinois. This Article looks in depth at the case law that has developed the contours of these constitutional environmental rights in the wake of the political revival of environmental constitutionalism in the United States. I distill two lessons from this jurisprudence. First, constitutional environmental rights are interpreted by the courts as …

Proving Actionable Racial Disparity Under The California Racial Justice Act, Colleen V. Chien, W. David Ball, William A. Sundstrom

UC Law Journal

Racial disparity is a fact of the United States criminal justice system, but under the Supreme Court’s holding in McCleskey v. Kemp, racial disparities—even sizable, statistically significant disparities—do not establish an equal protection violation without a showing of “purposeful discrimination.” The California Racial Justice Act (CRJA), enacted in 2020 and further amended in 2022, introduced a first-of-its-kind test for actionable racial disparity even in the absence of a showing of intent, allowing for relief when the “totality of the evidence demonstrates a significant difference” in charging, conviction, or sentencing across racial groups when compared to those who are “similarly situated” …

Restraining Chatgpt, Roee Sarel

UC Law Journal

ChatGPT is a prominent example of how Artificial Intelligence (AI) has stormed into our lives. Within a matter of weeks, this new AI—which produces coherent and humanlike textual answers to questions—managed to become an object of both admiration and anxiety. Can we trust generative AI systems, such as ChatGPT, without regulatory oversight?

Designing an effective legal framework for AI requires answering three main questions: (i) is there a market failure that requires legal intervention?; (ii) should AI be governed through public regulation, tort liability, or a mixture of both?; and (iii) should liability be based on strict liability or a …

Public Enforcement And Disability: A United States-South Korea Comparison, Joonghan (Joseph) Jo

UC Law Journal

The Americans with Disabilities Act (ADA) was enacted with the hope that it would solve issues regarding discrimination against the disabled. However, the outcome fell short of its aspirations. Many people with disabilities still suffer from ongoing discrimination. This Note argues that the ADA’s heavy reliance on private enforcement is the main reason for this shortcoming. This Note analyzes the effectiveness of public enforcement in South Korea under the Act on the Prohibition of Discrimination Against Persons with Disabilities, Remedy Against Infringement of Their Rights (Korean Disability Discrimination Act. This Note then argues that civil law country-style public enforcement based …

Unleashing The Guarantee Clause Against The Spirit Of Innovation, Ricardo N. Cordova

William & Mary Bill of Rights Journal

[...] Of special significance is Madison’s defense of the Guarantee Clause in Federalist 43, in which he argued that the Clause is intended to prevent “aristocratic or monarchical innovations” by the states. This phrase is a critical clue to uncovering the full meaning of the Guarantee Clause. Yet scholars have mentioned it only in passing and divorced from its historical context, as part of apocryphal claims that the Clause supports radical modern causes. This is unfortunate because Madison’s phrase, properly construed, speaks volumes.

Preliminarily, the phrase shows that the Guarantee Clause was originally understood to prevent changes of a …

The Unfinished Business Of Desegregation: Race Conscious College Admissions, Wendy B. Scott

William & Mary Bill of Rights Journal

This rejection of race conscious admissions practices under the Equal Protection Clause of the Fourteenth Amendment by the [Supreme] Court requires a revisit to desegregation jurisprudence and practice to demonstrate why the considerations of race in higher education admissions fulfills the desegregation mandate. Given its rich history and contributions to the formation of equality norms and affirmative action, desegregation jurisprudence and practice provide a foundation for the premise that the use of race in college admissions constitutes a compelling state interest, supported by specific evidence of discrimination, that moves us closer to the democratization of education and racial equality under …

Pathways To Liberty: What Colonial, Antebellum, And Postbellum Education Can Teach Us About Today, Danielle Wingfield

William & Mary Bill of Rights Journal

Education is a critical part of nation-building. More specifically, it can also be a powerful pathway to liberty and a tool for disseminating knowledge. However, historically it has been used to subjugate and censor vulnerable groups like women, socio-economically disadvantaged persons, as well as men of color. Therefore, to avoid subordinating members of such minoritized groups and suppressing uncomfortable historical facts, advocates must continually evaluate the purpose and method of education. Such persistent monitoring can provide a basis for constructive reform of public education in the United States. Such reform must also consider changing social conditions.

Presently, for example, public …

The Illusion Of Due Process In School Discipline, Diana Newmark

William & Mary Bill of Rights Journal

Long-term suspensions and expulsions can be enormously consequential for students and their families. Not only do exclusionary disciplinary measures directly result in lost learning opportunities for children, but school discipline decisions can also result in significant collateral consequences. These consequences range from lower rates of graduation and higher rates of contact with the criminal justice system to disruptions in foster care placements, violations of juvenile probation, and even possible immigration consequences for undocumented students.

The Supreme Court has recognized the significance of suspensions and expulsions, requiring due process for such exclusionary discipline measures. But the Supreme Court has never explained …

Historians Wear Robes Now? Applying The History And Tradition Standard: A Practical Guide For Lower Courts, Alexandra Michalak

William & Mary Bill of Rights Journal

Never before has the Supreme Court relied on the history and tradition standard to such a magnitude as in the 2021 term to determine the scope of a range of constitutional rights. [...] In reaffirming this standard, the Supreme Court provided no guidance to lower courts on how to apply and analyze the history and tradition standard. Along with balancing the lack of resources in deciding cases with the history and tradition framework, lower courts must face the reality that this standard presents ample opportunity for one-sided historical analysis. To combat the temptation of conducting unbalanced and cursory reviews of …

Remedying The Insular Cases: Providing Tribal Sovereignty To Unincorporated Territories To Ensure Constitutional Rights For All U.S. Nationals And Citizens, Allison Ripple

William & Mary Bill of Rights Journal

This Note will focus on the Supreme Court’s decisions in the Insular Cases to demonstrate the origins of denying jus soli citizenship to those born in unincorporated territories and to analyze its direct contradiction to the Fourteenth Amendment and other Supreme Court decisions. It will argue that the Court’s decisions in the Insular Cases were influenced by colonial rule and rooted in racism. Furthermore, this Note will argue that because of these influences, the continued application of the Insular Cases by Congress and the Supreme Court to deny constitutional rights for U.S. nationals and citizens born in unincorporated territories violates …

"There's A New Sheriff In Town": Why Granting Qualified Immunity To Local Officials Acting Outside Their Authority Erodes Constitutional Rights And Further Deteriorates The Doctrine, Josephine Mcguire

William & Mary Bill of Rights Journal

Part I traces the history of qualified immunity and the doctrine’s analytical changes over time, detailing the twofold test as it currently stands. Part II considers Large and Sweetin, comparing the courts’ approaches to essentially similar scenarios and evaluating the differences in outcome. Part III addresses the Supreme Court’s denial of the Large plaintiffs’ petition for certiorari and explicates the “scope of authority” question the Court declined to address. Part IV breaks down the decision in Large and conducts the qualified immunity analysis anew, determining that the court misapplied the doctrine regardless of its failure to consider the scope …

On Inmates And Friendship, Jared Deeds

William & Mary Bill of Rights Journal

That humanity both cherishes friendship and finds it to be fundamental for its own good should be reason enough to justify its legal protection. Yet, there is a serious deficiency of legal discourse on the rights and liberties of friends in America’s courts. In the absence of such discourse—perhaps partially because of it—friendship as a social institution experiences a lack of legal protection in the United States. Though all friends may be exposed to abuses as a result of deficient safeguards, inmates and their unincarcerated friends suffer with particular severity.

[...]

Part I of this Note will further discuss the …

Notre Dame Lawyers Connect: December 2023, Notre Dame Law School

Notre Dame Lawyers Connect

Merry Christmas from Notre Dame Law School

Rev. Robert A. Dowd, C.S.C, elected 18th president of the University of Notre Dame

ND Law Honors Professor Jimmy Gurule and alumna Alyssa Phillips at 2023 Rev. David T. Link Public Interest Banquet

ND Law School hosts panel discussion to honor Justice Richard Goldstone at the Constitutional Court of South Africa

Events - Slainte! Wine, Beer, Spirits | Industry Symposium

Faculty - Fighting to Defend Human Rights

Alumni Spotlights - John F. Crowley, ‘92 J.D.

ND Law Moot Court Board hosts eighth annual religious freedom tournament

Alumni Notes

• Michelle Porter
• Judge Cristal Brisco …

Administrative Law, Moses M. Tincher, Abrianna Harris

Mercer Law Review

This Article surveys cases from the Supreme Court of Georgia and the Court of Appeals of Georgia from June 1, 2022 through May 31, 2023, in which principles of administrative law were a central focus of the case. Review of decisions by administrative agencies will be the first topic discussed, followed by cases discussing discretionary appeals, followed by cases discussing procedural requirements, with scope of authority to follow. The Article will conclude with cases discussing statutory construction

Principles Of Georgia Constitutional Interpretation, Nels S.D. Peterson

Mercer Law Review

The Supreme Court of Georgia routinely emphasizes the importance of interpreting the Georgia Constitution on its own terms, and not merely importing federal interpretations of the federal Constitution. That makes sense, “[r]eal federalism means that state constitutions are not mere shadows cast by their federal counterparts, always subject to change at the hand of a federal court’s new interpretation of the federal Constitution." But independent interpretation of the Georgia Constitution is often easier to talk about than to do.

Construction Law, Peter F. Crofton, David R. Cook, C. Jackson Parker

Mercer Law Review

This annual Survey Article focuses on noteworthy opinions by Georgia appellate courts and federal courts in Georgia relevant to the practice of construction law. This Survey Article highlights key developments, including Georgia’s Anti-Indemnity Act, High Voltage Safety Act, Lien Waiver Statute, the United States Supreme Court’s recent Sackett v. EPA decision, the Southern States Chemical and Tampa Tank dispute, insurance coverage updates, discovery, forum selection clauses, and more. For construction lawyers, these developments are essential to understand in navigating the ever-evolving practice of construction law in Georgia.

Labor And Employment Law, W. Jonathan Martin Iii, Alyssa K. Peters, Patricia-Anne Brownback, David S. Cromer

Mercer Law Review

This Article surveys revisions to the Official Code of Georgia Annotated (O.C.G.A.) and decisions interpreting Georgia law from June 1, 2022 to May 31, 2023, that affect labor and employment relations for Georgia employers.

Legal Ethics, Patrick Emery Longan

Mercer Law Review

This Survey covers the period from June 1, 2022 to May 31, 2023 and discusses developments with respect to attorney discipline, bar admission and readmission, malpractice and other civil claims against lawyers, ineffective assistance of counsel, prosecutorial misconduct, attorney’s liens, judicial conduct, disqualification and withdrawal of counsel, contempt, proposed formal advisory opinions of the State Bar of Georgia Formal Advisory Opinion Board, and proposed amendments to the Georgia Rules of Professional Conduct.