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Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

Editors' Note, Rachel Keylon, Meghen Sullivan

Sustainable Development Law & Policy

For more than two decades, the Sustainable Development Law and Policy Brief (SDLP) has published works analyzing emerging legal and policy issues within the fields of environmental, energy, sustainable development, and natural resources law. SDLP has also prioritized making space for law students in the conversation. We are honored to continue this tradition in Volume XXIII.

Platform Accountability: Gonzalez And Reform, Eric Schnapper

Presentations

Section 230(c)(1) was adopted for the purpose of distinguishing between conduct of third parties and conduct of internet companies themselves. Its familiar language provides that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The last four words are central to the limitation on the defense created by the statute; it is only regarding information created by “another” that the defense may be available. Section 230(e)(3) makes clear that even a partial role played by an internet company in the creation of harmful …

John Dinsdale Hillam, Appellee V. Tara Hillam, Appellant., V. Dustin Hancock As Investment Trustee, Et Al : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On Appeal from the Second Judicial District Court, Davis County, Honorable David J. Williams, Case No. 174700031

Julie J. Nelson, Attorneys for Appellee John Hillam, Stacy J. McNeill, Joshua L. Lee, Attorneys for Trust Appellees

Bart J. Johnsen, Alan S. Mouritsen, Attorneys for Appellant Loveland

Critical Perspectives To Advance Educational Equity And Health Justice, Yael Cannon, Nicole Tuchinda

Georgetown Law Faculty Publications and Other Works

A robust body of research supports the centrality of K-12 education to health and well-being. Critical perspectives, particularly Critical Race Theory (CRT) and Dis/ability Critical Race Studies (DisCrit), can deepen and widen health justice’s exploration of how and why a range of educational inequities drive health disparities. The CRT approaches of counternarrative storytelling, race consciousness, intersectionality, and praxis can help scholars, researchers, policymakers, and advocates understand the disparate negative health impacts of education law and policy on students of color, students with disabilities, and those with intersecting identities. Critical perspectives focus upon and strengthen the necessary exploration of how structural …

With Liberty And Justice For The Wealthy: The Criminalization Of The American Poor, Ashlyn Dickmeyer

Honors Program: Senior Projects (Public)

The last phrase of the Pledge of Allegiance states “with liberty and justice for all”. However, not everyone has access to this liberty and justice. Liberty and justice can be bought in this country for a price, and those who can’t afford to pay it are often left in the hands of those who can. One of the most prominent ways to see this is by analyzing the criminal justice system. Despite clauses in the Fourteenth Amendment and court cases like Gideon v. Wainwright (1963) establishing and upholding that the poor are entitled to equal treatment within the criminal justice …

The Buffalo Model: An Approach To Aba Standard 303(C)'S Exploration Of Bias, Cross Cultural Competency, And Antiracism In Clinical & Experiential Law, Kim Diana Connolly, Elisa Lackey

Journal Articles

This Article offers an early analysis of ABA Standard 303(c) following its recent adoption in 2022. ABA Standard 303(c) requires that law schools “shall provide education law students on bias, cross-cultural competency, and racism.” The Author suggests that 303(c) formalizes what many clinical educators have already been teaching: inclusion, justice, and belonging. Following the 2020 shootings of George Floyd and Breonna Taylor, many law schools have revisited their diversity, equity, and inclusion programming and implemented various new initiatives and training. Despite current efforts, the Author notes that planning and resources will need to be allocated toward compliance efforts in order …

Aaron L. Sampson, Plaintiff / Appellant V. Hb Boys, Llc, Defendant / Appellee : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On Appeal from the Third Judicial District Court, Salt Lake County, Utah, Case No. 210900310 CR, the Honorable Robert Faust

Robert L. Janicki, Michael L. Ford, Thomas M. Alldridge, Attorneys for Defendant / Appellee HB Boys LC

Gregory W. Stevens, Attorney for Plaintiff / Appellant Aaron A. Sampson

Robert Wakefield, Plaintiff/ Appellant V. David A. Gutzman, Defendant/ Appellee : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Fourth Judicial District Court, Utah County Honorable Robert A. Lund, District Court No. 150400386

EMILY ADAMS , SARA PFROMMER, FREYJA JOHNSON , Attorneys for Appellant Robert Wakefield

TAWNI J. ANDERSON, TUCKER F. LEVIS, Attorneys for David A. Gutzman

2023 Ag Law Legislative Update, J. David Aiken

Cornhusker Economics

Covers agricultural law legislation in the Nebraska Unicameral in 2023, including LB 401 (Nebraska mesonet system funding), LB 591 (farmland leases), and LB 662 (livestock nuisance lawsuits).

To Drink Or Not To Drink? Canada’S New Guidelines For Alcohol Consumption, Lauren Cutler

Cardozo International & Comparative Law Review (CICLR) Blog

On January 17, 2023, Canadian health officials from the Centre on Substance Abuse and Addiction released new guidelines for alcohol consumption, replacing a previous set from over ten years ago. These guidelines are reflective of “growing evidence, after decades of sometimes conflicting research, that even small amounts of alcohol can have serious health consequences.” In the technical summary, the Centre states that the costs associated with alcohol use in Canada in 2017 were a whopping $16.6 billion. $5.5 billion of that sum was attributable to healthcare costs.

This post was originally published on the Cardozo International & Comparative Law Review …

The Legal Implications Of Ai Generated Artwork, Annie Planker

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

Recently, artificial intelligence (AI) artwork has gained tremendous attention in the art world and beyond. Though digitally generated AI art platforms have been available to creators for decades, recent programs have made it possible “to create complex, abstract or photorealistic works simply by typing a few words into a text box.” Because of these new advancements, AI art has widely varied in both form and function: from self-portrait TikTok trends to high end galleries and art competitions.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 8, 2023. The original post can be …

Child Custody Is No Place For A Magic Formula: Why A Presumption Of 50/50 Physical Custody In West Virginia Is Not In Its Children's Best Interests, Stephanie R. Weber

West Virginia Law Review

The “best interest of the child” standard is used throughout family law and is the generally accepted standard for determining custody disputes. However, many states have introduced, and some have enacted, legislation that creates a presumption of joint, or “50/50,” physical custody between the parents. As psychological studies have shown, instability typically found in custody disputes can have a significant impact on a child’s life, influencing attachment style and abilities to successfully self-regulate. These findings make the 50/50 presumption a flawed concept. Courts should be able to take factors supported by this research into account when making custody determinations as …

A Road To Resolution For Federal Whistleblowers' Mixed Case Claims, Devin Redding

West Virginia Law Review

Since the birth of the United States, whistleblowers have held our nation’s government accountable for illegal, fraudulent, and harmful behavior. The triumphs and failures of whistleblowers are deeply entwined with our nation’s struggle for independence, civil rights, and economic freedom. Nevertheless, employees who bravely expose misdeeds at all levels of our federal government are often bullied and discriminated against on the basis of sex, gender, age, disability, and more. In recent decades, and despite improved whistleblower protections, federal whistleblowers increasingly suffer from adverse employment actions and discrimination as reprisal for their disclosures. Employees looking toward our administrative law systems and …

Federal Sentencing: The Need For A New Test For The Abduction Enhancement In The Context Of Robbery, Alex Leroy

West Virginia Law Review

The abduction enhancement applied to the crime of robbery is inherently ambiguous; the enhancement reads, “‘abducted’ means that a victim was forced to accompany an offender to a different location.” The lack of a clear definition for “location” has caused a split within the federal circuits, with some circuits interpreting “location” as position and others interpreting “location” as place. This has caused disproportionate sentences for similar criminal conduct within separate circuits, creating the need for a more uniform interpretation of the sentencing enhancement for abduction.

This Note builds upon the work of David J. Sandefer and proposes two additional factors …

Shifting The Scope Towards Students: An Analysis Of Tax Code Treatment Of The Higher Education Loan Interest Deduction, Brianna C. Frontuto

West Virginia Law Review

In a nation where education is held in the highest regard but given the lowest priority, the United States continues to enlarge a gaping hole in the education system: student loan debt, a crisis sweeping across the nation and affecting nearly every individual in the United States. Higher education costs have sky-rocketed, and the expanding administrations and complex projects do not provide assurance that this will change any time soon.

Congress has placed tax incentives in the Internal Revenue Code (“the Code”) to encourage the pursuit of higher education while providing a benefit for doing so. Specifically, § 221 of …

Public Ownership And The Wto In A Post-Covid-19 Era: From Trade Disputes To A 'Social' Function, Paolo Davide Farah, Davide Zoppolato

West Virginia Law Review

No abstract provided.

The Censorship Constraint And Rulemaker State Action: Are Section 230'S Immunity Provisions Unconstitutional Content-Based Regulations?, Scot A. Reader

West Virginia Law Review

Even casual watchers of T.V. crime dramas understand the Fourth Amendment’s exclusionary rule. Under this rule, evidence obtained by the police in a search of a criminal suspect’s premises that exceeds the scope of a judicial warrant is almost always inadmissible in the suspect’s criminal trial. The rule is designed to deter unreasonable governmental intrusion into private affairs and applies without regard for the suspect’s guilt or innocence. This Article proposes that the First Amendment includes an analogous rule against governmental censorship. Under this rule, content-based speech regulations exceed the legislature’s speech rulemaking warrant and are almost always invalid. This …

Home Court Advantage? An Empirical Analysis Of Local Bias In U.S. District Court Diversity Jurisdiction Cases, Kyle C. Kopko, Christopher J. Devine

West Virginia Law Review

In granting diversity of citizenship jurisdiction to the federal courts, there is an underlying assumption that federal courts will be less biased toward out-of-state litigants as compared with state courts. While this may be true, the assumption fails to consider an important empirical question: to what extent do federal courts favor home state litigants or disfavor out-of-state litigants when deciding diversity jurisdiction cases? Relying on the Integrated Database (IDB) compiled by the Federal Judicial Center and the Administrative Offices of the U.S. Courts, we present an original, empirical analysis of diversity jurisdiction case outcomes in the U.S. districts courts from …

Homeless Residency Restrictions, Ben A. Mcjunkin

West Virginia Law Review

Last year, the West Virginia House of Delegates introduced a radical proposal for responding to homelessness within the state: privately enforceable residency restrictions. As introduced, the restrictions prohibited homeless individuals from sheltering themselves, from being sheltered by others, or from receiving food or care within 1,500 feet of a school or childcare center. This prohibition was to operate statewide, transforming an issue that historically has been considered hyper-local into a subject of state concern. Moreover, the proposed bill established a private right of action for enforcement, legislating around the possibility of recalcitrant municipal governments declining to abide by the residency …

Table Of Contents

West Virginia Law Review

No abstract provided.

Front Matter

West Virginia Law Review

No abstract provided.

Masthead Volume 125, Issue 2

West Virginia Law Review

No abstract provided.

Emily Bremer: Women Lead 2023, Denise Wager, Office Of Public Affairs And Communications, University Of Notre Dame

NDLS in the News

Emily Bremer has emerged as a leading expert and scholar in the area of administrative law. She looks specifically at the cross-cutting rules and procedures that federal agencies are required to follow when administering the law, such as by determining Social Security benefits, licensing telecommunications companies, enforcing immigration laws, or deciding how other laws apply to individual cases.

Pov: Yes, Filling Out The Race Box On Forms Is Tiresome, But Here’S Why It Matters, Jasmine Gonzales Rose, Neda Khoshkhoo

Shorter Faculty Works

Filling out your race and ethnicity on a form may feel tiresome, and even uncomfortable. You have been checking these boxes for years, as has everyone else, and the questions may seem irrelevant.

“What does race have to do with my doctor’s appointment?” you might ask. Or a form may be inaccurate: “I’m Middle Eastern, why don’t I get a box to check?” Perhaps it feels intrusive: “How is this information going to be used?” And you may wonder, “Why are we always talking about race?”

The truth is, we need to keep talking about race. Even more than we …

Redlining Reimagined: "Race-Neutral Alternatives" In The Likely Wake Of Affirmative Action, Margaret Kruzner

Duke Journal of Constitutional Law & Public Policy Sidebar

For a decade, Justice Clarence Thomas has sharply criticized the Court's treatment of affirmative action, the race-conscious university admissions processed used to pursue the educational benefits associated with diverse classrooms. Calling affirmative action a "faddish theory" that the "Constitution abhors," Justice Thomas signaled his readiness to overrule Grutter v. Bollinger, which endorsed the practice in 2003.

Justice Thomas and the Court's originalist Justices have a new opportunity to strike down affirmative action in the Students for Fair Admissions litigation. Students for Fair Admissions, a non-profit organization founded by Edward Blum, is suing Harvard College and the University of North …

Prioritizing Patients Or Impropriety?: Why The 8th Circuit’S Cairns Decision Sets A Dangerous Precedent Jeopardizing Patient Protection And Government Investment In Federal Programs, Nicole Beachboard

SLU Law Journal Online

In July 2022, the 8th Circuit established a stricter causation standard for plaintiffs alleging a False Claims Act claim through a violation of the Anti-Kickback Statute in United States ex rel. Cairns v. D.S. Medical LLC. The requirement that a plaintiff demonstrate but-for causation stands in stark contrast to the 3rd Circuit’s “at least one claim standard.” In this article, Nicole Beachboard addresses how the 8th Circuit’s decision enforces an onerous burden on the plaintiff, undermines statutory authority, and facilitates defendant misconduct.

Evidence Of Caste-Class Discrimination From A Conjoint Analysis Of Law Enforcement Officers, Margaret Boittin, Rachel S. Fisher, Cecilia Hyunjung Mo

Articles & Book Chapters

When choosing what cases to investigate, do the police discriminate on the basis of caste and class? We employ a conjoint design to evaluate biases in police officers’ preferences for investigation based on perpetrator attributes. Conducting a survey of law enforcement officers in Nepal, we find evidence of discriminatory investigation practices. Absent constraining protocols that reduce officer discretion, police officers are more likely to target offenders who are from caste-class subjugated communities. Additionally, police officers’ assessments of institutional investigatory preferences reveal caste-based considerations: officers believe the police, in general, prefer to investigate low-caste offenders over high-caste offenders. They do not, …

Moore V. Harper: The Independent State Legislature Theory And The Court At The Brink, Braden Fain

Duke Journal of Constitutional Law & Public Policy Sidebar

Moore v. Harper tasks the Supreme Court with considering a fringe legal idea known as the Independent State Legislature Theory (ISLT). Donald Trump gave ISLT new life by invoking the theory during his attempts to overturn the results of the 2020 election. Instead of presidential elections, the litigation in Moore concerns congressional elections and partisan gerrymandering. Were the Court to accept ISLT, the theory would render states effectively impotent to curb gerrymandering and would aggrandize the Court's authority in federal elections. Scholars have recognized the theory's threat to American democracy and have accordingly produced a detailed record debunking the ISLT. …

Fighting The Illicit Antiquities "Artworld": A Critical Approach To The Heritage Laws Of Guatemala, Irene Marti Gil

LSU Doctoral Dissertations

This dissertation examines the suitability of the legal framework for the protection of cultural heritage in Guatemala, which is the country of origin for over thirty percent of the Maya objects traded in the antiquities market, and proposes strategies that improve the effectiveness of the law. To examine the heritage laws enforced by the Republic of Guatemala, I implement linguistic anthropological methods of qualitative research.

Discourse Analysis, Critical Discourse Analysis, and Conceptual Analysis on the national heritage policies of Guatemala reveal the existence of ontological problems regarding the conceptualization of heritage as a monolithic entity reflecting a State-led narrative with …