Law Commons^™

Match Up: Increasing Disclosure Of Facial Recognition Technology With Criminal Discovery Rules, Paget Barranco

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Remedies For Constitutional Flaws Have Major Flaws, Richard J. Pierce Jr.

Duke Journal of Constitutional Law & Public Policy

In this essay, Professor Pierce describes the many ways in which the conservative majority of the Supreme Court has attempted to use its unique approach to interpretation of the Constitution to restructure the government and to reallocate power among the branches of government. He then describes the problems that the Court has encountered in its efforts to choose remedies for the constitutional flaws that it detects.

Increasingly, the Court must choose between remedies that are ineffective and remedies that make it impossible for the government to function. Pierce predicts that the problems that the Court has experienced to date will …

Entextualización Del Discurso Político En Colombia. Análisis Glotopolítico Del Proceso De Escritura De La Constitución De 1991, Jorge Luis Alvis-Castro

Dissertations, Theses, and Capstone Projects

Although constitutions are part of the canon of disciplinary writings, along with grammar books and etiquette manuals, and are also central texts in the processes of formation and consolidation of Latin American nation-states, to date, they have not been sufficiently explored in their social and linguistic processes of discursive elaboration. With a glottopolitical approach, this research examines the social, communicative and ideological components involved in the writing process of the Colombian Constitution of 1991, developed in a context of State crisis and violence aggravated by narco-terrorist attacks. Using the concept of entextualization, which refers to the process of extracting discourse …

Preventing Vicarious Trauma And Encouraging Self-Care In Clinical Legal Teaching, Deeya Haldar, Sarah Katz

Faculty Publications

Vicarious trauma, sometimes called “compassion fatigue” or “secondary trauma,” is a term for the effect that working with survivors of trauma may have on counselors, therapists, doctors, attorneys, and others who directly help them. Vicarious traumatisation refers to harmful changes that occur in professionals’ views of themselves, others, and the world as a result of exposure to the graphic or traumatic experiences of their clients. While it is unusual for law students to experience vicarious trauma in a clinical legal education setting, there are good reasons to introduce the concept of vicarious trauma and measures to prevent vicarious trauma through …

Contingency And Contestation In Christianity And Liberalism, Michael P. Moreland

Faculty Publications

No abstract provided.

Attaining Academic Tenure, Amy A. Emerson, Charlotte Schneider

Faculty Publications

No abstract provided.

Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran

Faculty Scholarship

Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, …

"They Don't Know What They Don't Know": A Study Of Diversion In Lieu Of Lawyer Discipline, Leslie C. Levin, Susan Saab Fortney

Faculty Scholarship

Lawyer misconduct can have devastating consequences for clients. But what is the appropriate regulatory response when lawyers make less serious mistakes? For almost thirty years, jurisdictions have offered some lawyers diversion in lieu of discipline. Diversion is intended to help educate lawyers or treat those with impairments so that they do not reoffend. Yet remarkably little is known about how diversion operates, whether it is used appropriately, and how well it seems to work. This Article addresses these questions. It draws on the limited published data and on interviews with disciplinary regulators in twenty-nine jurisdictions about their use of diversion. …

Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George

Faculty Scholarship

Framing—the subtle use of context to suggest a conclusion—is a dubious alternative to direct argumentation. Both the brilliance and the bane of marketing, framing also creeps into supposedly objective analysis. Law offers several examples, but a lesser known one is International Shoe’s two-part jurisdictional test. The framing occurs in the underscoring of defendant’s due process rights contrasted with plaintiff’s “interests” which are often dependent on governmental interests. This equation ignores, both rhetorically and analytically, the injured party’s centuries-old rights to—not interests in—a remedy in an open and adequate forum.

Even within the biased frame, the test generally works, if not …

Latinas In The Legal Academy: Progress And Promise, Raquel E. Aldana, Emile Loza De Siles, Solangel Maldonado, Rachel F. Moran

Faculty Scholarship

The 2022 Inaugural Graciela Oliva ́rez Latinas in the Legal Academy (“GO LILA”) Workshop convened seventy-four outstanding and powerful Latina law professors and professional legal educators (collectively, “Latinas in the legal academy,” or “LILAs”) to document and celebrate our individual and collective journeys and to grow stronger together. In this essay, we, four of the Latina law professors who helped to co-found the GO LILA Workshop, share what we learned about and from each other. We invite other LILAs to join our community and share their stories and journeys. We hope that the data and lessons that we share can …

Foreword: Property And Education, Timothy M. Mulvaney, Latoya Baldwin Clark

Faculty Scholarship

Education policy is today a flashpoint in public discourse at both the national and state levels. This focus is for good reason. Public schools are highly segregated. School spending is stratified. The need for infrastructural renovations is extensive and expanding. Student debt has reached historic highs. For-profit companies are exploiting school districts’ limited resources for everything from curricular content to lunch menus. The list goes on.
This moment presents an opportunity to highlight a threshold issue on which it seems prudent for this discourse to direct greater attention: the interconnections between education and property law. Indeed, decisions surrounding property—crafting district-mapping …

Judicial Review Of Teacher-School Board Grievance Arbitration: An Extended Empirical Analysis, Perry A. Zirkel

Arbitration Law Review (2009 - Present)

In recent years, the overall state law framework for teacher-school board collective bargaining has undergone limited revisions. The basic distribution has been that approximately two-thirds of the state laws authorize collective bargaining for public school teachers, with the remaining state laws either silent or prohibitive. During the past fifteen years, a few states have curtailed or eliminated their applicable laws, with the leading respective examples being Wisconsin and Tennessee, and at least one state, Virginia, shifting in favor of collective bargaining.

The courts have added few direct revisions. The Supreme Court’s ruling that agency shop provisions in public sector collective …

The Right To Be Forgotten: Google Spain As A Benchmark For Free Speech Versus Privacy?, Kyu Ho Youm, Ahran Park

Chicago Journal of International Law

Since the Court of Justice of the European Union ruled in Google Spain in 2014, the global legal discourse on the “right to be forgotten” (RTBF) has accelerated the RTBF’s establishment as a right to informational privacy. But international courts have varied in their interpretations and applications of the RTBF, with some embracing it and others being wary of balancing the right with freedom of expression. While de-indexing search engine results was the primary method of facilitating the RTBF in Google Spain, this method has not necessarily informed many courts’ RTBF decisions. Instead, international and foreign courts are increasingly finding …

Constitutional Hardball And Nationwide Preliminary Injunctions, Jack Thorlin

Duke Journal of Constitutional Law & Public Policy

Constitutional hardball—the breaking of norms while remaining technically within the bounds of the Constitution—has spread from the executive and legislative branches to the federal judiciary in the form of nationwide preliminary injunctions in politically sensitive cases. Preliminary injunctions evolved in the English judicial system to ensure that plaintiffs clearly in the right were not irrevocably harmed while waiting for torpid courts to rule on their case. Now, preliminary injunctions are a useful tool for delaying and disrupting the adoption of disfavored executive branch policies.

While the general problem of nationwide preliminary injunctions is well recognized, it is difficult to find …

Protecting Natural Stewardship: Public Trusts, Wildlife Trusts, And The Effect Of Trophic Cascades, Nicholas Massey

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Blaine In The Joints: The History Of Blaine Amendments And Modern Supreme Court Religious Liberty Doctrine In Education, Mccarley Elizabeth Maddock

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

On Three Arguments Against Metaphysical Libertarianism, Ken Levy

Journal Articles

No abstract provided.

The New Roaring Twenties: The Progressive Agenda For Antitrust And Consumer Protection Law, Jorge L. Contreras

Utah Law Review

It is an opportune moment to consider the trajectory of antitrust law in the United States. We are witnessing today an inflection point in both federal and state antitrust enforcement and a growing skepticism by courts of the doctrinal orthodoxy that has characterized the antitrust jurisprudence of the last half century.

Q&A With Lina Khan, Chair Of The U.S. Federal Trade Commission And Mark Glick, Professor Of Economics At The University Of Utah, Lina M. Khan

Utah Law Review

No abstract provided.

Why Economists Should Support Populist Antitrust Goals, Mark Glick, Gabriel A. Lozada, Darren Bush

Utah Law Review

Antitrust policy can be a powerful tool to tackle important social and economic problems. For decades antitrust enforcement has been shackled by the so-called Consumer Welfare Standard (“CWS”) that has limited the goals considered to be “legitimate.” The CWS limits antitrust goals to those that impact demand in markets, and primarily in output markets. Recently, new voices have come forward to suggest that antitrust policy should address several other important social objectives. Such goals include the traditional antitrust goals that motivated passage of the antitrust statutes, and which were discussed in Pre-Rehnquist Court opinions, including dispersion of economic and political …

At The Nexus Of Antitrust & Consumer Protection, Luke Herrine

Utah Law Review

This Essay uses Section 5 of the Federal Trade Commission Act to examine the theoretical and practical relationship between antitrust and consumer protection law. It argues that, since roughly 1980, there has been a hegemonic “neoliberal” framework, one that has in recent years been challenged by an emerging “moral economy” framework. The neoliberal framework conceptualizes antitrust as preventing firms from conspiring to throttle output, with a focus primarily on consumers’ interests in low prices, and consumer protection as making consumers informed, rational, and able to switch between competitors with relatively low cost. The moral economy framework conceptualizes both areas of …

War, Decisions, И Деньги: Analyzing Private Military Companies In American And Russian Contexts, Tara Harper

University Honors Theses

Private Military Companies (PMCs) have become increasingly prevalent throughout the global security landscape. Their rise has led war - and the tools state's use to wage it - to become increasingly privatized with each state's varied approach to the evolving security landscape. Understanding and comparing the role of PMCs in such states as the U.S. and Russia allows for greater clarity regarding the industry as a whole, due to the structural differences in each state's approach to utilizing these companies. Regarding the Russian context, such companies as the Wagner Group have increasingly gained global attention due to how they are …

Jane Crow Constitutionalism, Evan D. Bernick

Northern Illinois University Law Review

On June 24, 2022 The United States Supreme Court issued its decision on Dobbs v. Jackson Women’s Health Organization; overturning Roe v. Wade, and destroying fifty years of precedent to protect the constitutional right to abortion in the United States. This overturning sets a dangerous, new precedent that reinforces the State’s control of reproduction, and criminalizes a woman’s right to choose, with very few exceptions. In states like Mississippi, Black women are already experiencing the highest rates of maternal mortality, incarceration, and poverty.

This article posits that Dobbs operates to maintain a racialized and gendered underclass, and names this phenomenon …

Criminal Law, Thomas D. Church, Whitney Baker

Mercer Law Review

This Article provides a brief examination of the United States Court of Appeals for the Eleventh Circuit’s most important opinions in 2022 in the area of federal criminal law. Rather than engage in an exhaustive review of the facts and laws in each case, we focus on the key holdings from only the most noteworthy, published decisions. Section II of this Article addresses substantive criminal offenses, such as economic crimes, drug offenses, and firearm offenses, while Section III covers criminal procedure, the rules of evidence, and constitutional issues arising in criminal prosecutions. Section IV deals with the Federal Sentencing Guidelines …

Immigration Law, Bianca N. Dibella, Michael C. Duffey

Mercer Law Review

This Article surveys cases from the United States Court of Appeals for the Eleventh Circuit from January 1, 2022 through December 31, 2022, in which immigration law was a central focus of the case. The Article begins with a discussion of cases addressing procedural and jurisdictional issues and the interpretation of decisions by lower and state courts. Then, the Article describes the Eleventh Circuit’s recent jurisprudence around discretionary relief from removal, asylum, and habeas corpus law.

Labor And Employment, W. Jonathan Martin Ii, Patricia-Anne Brownback

Mercer Law Review

This Article focuses on recent cases concerning federal labor and employment laws. The following is a discussion of those opinions.

Trial Practice And Procedure, John O'Shea Sullivan, Leesa M. Guarnotta, Grace B. Callanan

Mercer Law Review

The 2022 Survey period yielded decisions involving issues of first impression relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit. This Article analyzes recent trial practice developments in the Eleventh Circuit, including significant rulings in the areas of consumer debt collections, arbitration, copyrights, Federal Rule of Civil Procedure 54, and a rule change regarding party disclosures.

Waiving Goodbye To Oil Spill Claims Against The United States: The Eleventh Circuit Creates A Narrow Exception To The Sovereign Immunity Waiver In The Suits In Admiralty Act Of 1920, Anika Akbar

Mercer Law Review

Costs related to oil spills can be extraordinary. Excluding the damage to the environment and to the vessel alone, a responsible party may incur containment costs, clean-up costs, cost of repairing public infrastructures, and fines and fees for causing the spill. Additionally, the owner of the spilling vessel also risks liability for lost profits to other businesses in the surrounding areas, including those that can no longer fish in the affected area. ...

On September 8, 2019, the M/V Savage Voyager (the Vessel) was pushing two tank barges laden with oil along the Tennessee-Tombigbee Waterway (the Waterway) when it approached …

Doubling Down: Supreme Court Of Georgia Allows For Seemingly Double Recovery Of Attorney’S Fees, Katie Anderson

Mercer Law Review

Never settle. Good words to live by, unless you are a civil defendant living in the state of Georgia. Following the Supreme Court of Georgia’s decision in Junior v. Graham, defendants in civil actions might have more of an incentive to settle their cases after the court allowed for a seemingly double recovery of attorney’s fees.

Georgia courts have consistently upheld the public policy of barring double recovery. Damages in civil actions are intended to make a plaintiff whole, not punish a defendant. However, in Junior, the court held that two statutory provisions, despite their similar measure of damages, did …