Law Commons^™

Shadow Amendments, William J. Aceves

Faculty Scholarship

The Supreme Court’s jurisprudence surrounding the Alien Tort Statute (“ATS”) reflects the phenomenon of shadow amendments, an inevitable outcome of statutory construction. These judicial interpretations altered the ATS and narrowed its reach. Through repeated shadow amendments, the Court has moved the ATS far beyond its original thirty-three word configuration and understanding. These shadow amendments reflect an aggressive form of statutory construction, an ironic description for a Court that has long championed deference to Congress and fealty to legislative text. This dynamic is evident in Nestlé USA, Inc. v. Doe, the Court’s most recent ATS decision. But shadow amendments are …

When “Riot” Is In The Eye Of The Beholder: The Critical Need For Constitutional Clarity In Riot Laws, Nancy C. Marcus

Faculty Scholarship

In the twenty-first century, American streets are frequently filled with passionate protest and political dissent. Protesters of diverse backgrounds range from those waving flags or lying on the ground to re-enact police killings to those carrying lit torches or hand-made weapons. This Article addresses how, as between such groups, it may initially seem clear which has a propensity to engage in violent riots, but too often, “rioter” is in the eye of the beholder, with those both regulating and reporting on riots defining the term inconsistently. And ironically, while police brutality is often the subject of protests, non-violent protesters who …

State Responsibility For Forced Migration, Pooja R. Dadhania

Faculty Scholarship

International refugee law does not hold states accountable for the forced migration they cause. Using the international law doctrine of state responsibility, this Article aims to shift the discourse on migration policy towards a state accountability approach that considers the role states play in causing forced migration. This Article uses state responsibility to explore the obligations of a state after it commits a violation of international law that results in forced migration. The general principle undergirding state responsibility is that a state should provide full reparation for harms caused by its violation of an international obligation. Applying state responsibility to …

Intellectual Property Piracy In The Time Of The Metaverse, James M. Cooper

Faculty Scholarship

The article explores ways in which companies, innovators, artists, and cultural workers can best protect their IP rights in the metaverse. Focusing on IP piracy and counterfeiting, long-time problems in both the real world and online, the article addresses the threats that these illicit activities pose to legitimate commerce, government tax revenues, public safety, and national security. It examines the implications that the metaverse poses for businesses going forward with respect to brand management and revenue source protection and details the manners in which IP rights can be best protected in the metaverse. It concludes with a review of the …

The Case Against Regional Transmission Monopolies, Kristen Van De Biezendos

Faculty Scholarship

Over the next decade, the United States will need to build significant regional transmission infrastructure to achieve the country’s goal of net-zero power by 2035. However, there is a significant barrier: the transmission system is almost entirely owned by private monopolies. As a result, the grid has grown not to serve the public interest but in accordance with the economic priorities of these monopolies, which are not incentivized to innovate, find efficiencies, or lower costs. Past attempts to encourage competitive bidding for regional transmission projects have been stymied by laws intended to protect the monopolies, including the right of first …

The Purloined Debtor: Edgar Allan Poe’S Bankruptcy In Law And Letters, Erin L. Sheley, Zvi Rosen

Faculty Scholarship

This Article represents the first interdisciplinary case study of Edgar Allan Poe’s bankruptcy as an inflection point in the legal and cultural history of debt. Although Poe hardly leaps to mind for portrayals of legal procedure, much of his oeuvre reveals a terror of legal process as an interstitial principle. The anxiety around identity in Poe’s work reveals an ongoing struggle between an individual subject and two opposing yet equally degenerate legal statuses: possession and indebtedness. This opposition renders a distinct form of legal process legible in these texts: the then emerging law of bankruptcy. Poe declared bankruptcy at a …

A History Of Fruit Of The Poisonous Tree (1916-1942), Daniel B. Yeager

Faculty Scholarship

This is a history of a little-known stage within an otherwise well-known area of criminal procedure. The subject, “fruit of the poisonous tree,” explains the exclusion from trial of evidence (the fruit) derived from unconstitutional police practices (the tree). The Supreme Court first deployed the metaphor in 1939; exclusion of fruits by any other name, however, dates to before the Court began reviewing state convictions. While academic interest in the 1963-to-present phase of fruits is keen, the first quarter of what is now a century of history is taken as given, described in only the most conclusory terms. The 1916–1942 …

The Unnatural Disaster Of Insurance, Underinsurance, And Natural Disasters, Kenneth S. Klein

Faculty Scholarship

This article presents a novel data set describing the frequency of materially inadequate homeowner insurance in the event of a total loss. For decades, after a natural disaster, large percentages of homeowners who have lost their homes report suffering a second devastating loss — that, entirely to their surprise, they are vastly underinsured. These reports provocatively suggest that a large majority of all insured homes in the United States — not just homes destroyed by a natural disaster—might be profoundly, unknowingly, and unintentionally underinsured. Insurance companies reject this possibility. Insurers posit that underinsurance is rare, that other than after natural …

Square Peg Frauds, Miriam H. Baer

Faculty Scholarship

The square-peg fraud is a kind of case that until very recently enjoyed the widespread support of prosecutors, jurists, and the general public. Rather than punishing a scheme that rids a victim of her money or property, the square-peg prosecution has long focused on deprivations of intangible property. For years, enforcement actors have employed this concept to pursue innumerable varieties of corruption.

Nowhere has the square peg been more essential than in the government’s prosecution of higher education scandals. From the Varsity Blues parents who wrongfully secured elite college slots for their children, to the business school dean who shaped …

Corporate Compliance’S Achilles Heel, Miriam H. Baer

Faculty Scholarship

In the two decades that have elapsed since the enactment of the Sarbanes-Oxley Act, corporate compliance has solidified into an essential, universally respected corporate governance function. And yet, its future may be compromised by a development that compliance scholars have yet to address, namely the political polarization of our society. As the workplace becomes more politically polarized, and government enforcement institutions either become or simply appear more politicized, compliance programs are apt to encounter difficulties in ensuring adequate flows of information and prompt detection and redress of wrongdoing. With Sarbanes-Oxley in its rearview mirror, this article -- written for a …

Competencies Of Ombuds In Higher Education, Alicia Booker

Department of Conflict Resolution Studies Theses and Dissertations

This study aimed to deepen the understanding of ombuds (i.e., ombudsman, ombudsperson) who practice in higher education settings by exploring what ombuds consider the critical competencies to fulfill a variety of professional functions, how ombuds acquired those competencies, and how ombuds are assessed and self-assess. The purpose of this qualitative case study was to make an empirically researched recommendation for an ombuds in higher education competency model. The researcher gathered data from 23 ombuds in the United States working in institutions of higher education. The researcher analyzed the data gathered from semi-structured interviews using descriptive coding in the first coding …

Conditions Of Confinement In Nova Scotia Jails Designated For Men: East Coast Prison Justice Society Visiting Committee Annual Report 2021-2022, Sheila Wildeman, Harry Critchley, Hanna Garson, Laura Beach, Margaret-Anne Mchugh

Reports & Public Policy Documents

This is the second Annual Report of the East Coast Prison Justice Society (“ECPJS”) Visiting Committee (“VC”).

The purpose of the ECPJS VC is to bring increased accountability and transparency to the Nova Scotia correctional system in light of human rights standards, domestic and international. While the Elizabeth Fry Society of Mainland Nova Scotia provides human rights monitoring of conditions of incarceration experienced by women and non-binary people in federal prisons and provincial jails in the Atlantic region, and the federal Office of Correctional Investigator provides further oversight of conditions in federal prisons, there is no comparable independent oversight of …

Connecting The Dots To Reveal A New Picture: A Report On Indian Act By-Law Enforcement Issues Faced By First Nations In Nova Scotia And Beyond, Naiomi Metallic, Roy Stewart, Ashley Hamp-Gonsalves

Reports & Public Policy Documents

This report originated as a request by the Mi’kmaq-Nova Scotia-Canada Tripartite Forum to research the challenges facing First Nations in Nova Scotia in assuming jurisdictional control through Indian Act by-laws. In undertaking this research, we identified significant uncertainty, misconceptions and confusion around Indian Act by-laws from all parties with a stake in this issue, including federal and provincial government representatives (Indigenous Services, Department of Justice, Public Safety), the police, the public and First Nations representatives. Consequently, we felt it necessary to comprehensively unpack the various issues relating to Indian Act by-laws, from their nature and legal effect, to their development, …

The California Way: An Analysis Of California’S Immigrant-Friendly Changes To Its Criminal Laws, Evangeline G. Abriel

Faculty Publications

Immigration falls exclusively within the federal government’s purview, and states are generally prohibited from legislating in the area of immigration. At the same time, however, a large number of individuals are subject to deportation, denial of admission, and denial of immigration benefits based upon convictions of state crimes, over which states generally have exclusive authority. At a time when both the federal government and some states seem determined to expand the immigration consequences of even relatively minor criminal con- duct, is there anything states can do to protect their noncitizen re- sidents? Surprisingly, yes, quite a bit. California, for example, …

Humans In The Loop, Rebecca Crootof, Margot E. Kaminski, W. Nicholson Price Ii

Publications

From lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these "human-in-the-loop" systems. We make four contributions to the discourse.

First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify "the MABA-MABA trap," which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into a decision-making process. Regardless of whether the …

Synthesizing Energy Transitions, Nadia Ahmad, Uma Outka, Danielle Stokes, Hannah Jacobs Wiseman

Faculty Scholarship

This Article assesses the growing and cross-disciplinary literature on energy transitions to explore how it can guide law and policy reforms for the energy sector. The modern conception of energy transition centers primarily on clean energy—a shift away from fossil energy dependence. It also, however, incorporates equity as a core principle, as an increasing emphasis on energy justice and just transition seeks to create guiding norms for the energy sector’s current state of change. The concept of energy transition is critical for describing and giving meaning to a fundamental societal shift at the local, regional, national, and global scales, aligned …

State Of Utah, Plaintiff/Respondent V. Michael Jerry Felts, Defendant/Petitioner : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

Certiorari review of this case arises from a court of appeals' decision affirming the district court's ruling that it could not review a restitution award from the Board of Pardons and Parole following Felts's guilty plea for aggravated assault on a police officer, a third-degree felony, and failure to stop at the command of a police officer, a third-degree felony, in the Third Judicial District Court, in and for Salt Lake County, State of Utah, the Honorable L. Douglas Hogan, presiding.

EMILY SOPP (17599) Assistant Solicitor General SEAN D. REYES (7969) Utah Attorney General Attorneys for Respondent

NATHALIE S. SKIBINE …

Just Transition Litigation In Latin America: An Initial Categorization Of Climate Litigation Cases Amid The Energy Transition, Maria Antonia Tigre, Lorena Zenteno, Marlies Hesselman, Natalia Urzola, Pedro Cisterna-Gaete, Riccardo Luporini

Sabin Center for Climate Change Law

Just transition litigation is a novel field representing a sub-set of climate change litigation cases that is under-researched and studied. The report provides a novel comparative analysis of legal developments found in 20 just transition litigation cases in four Latin American countries and questions whether initiatives for achieving energy transformation in the region may have erred in failing to consider key just transition principles or dimensions, leading applicants to bring legal cases to claim their rights or demand more just solutions. The cases found – limited to the energy sector – not only question decarbonization policies or projects (in typical …

A Ram From Sparta, Constantine N. Katsoris

Fordham Law Review

At some point in our lives each of us must decide upon a career or profession and the path necessary to achieve that goal. Some make that decision at an early age; others make it much later in life and are often influenced by outside forces, experiences, opportunities, and obligations. Choosing which path to take is not easy, and in this regard, Professor Constantine Katsoris would like to share the crossroads he encountered throughout his six decades of teaching at Fordham Law School—a school he has come to describe as the school of opportunity. This Essay outlines his career …

The President's Approval Power, Christine Kexel Chabot

Fordham Law Review

This Essay introduces the President’s approval power as it was originally understood in the United States. Leading proponents of a unitary executive President have asserted that the President’s absolute power to control subordinate officers includes power to veto or approve subordinates’ discretionary actions before they take effect. This Essay reconsiders the approval power’s purportedly unitary function and presents previously overlooked evidence of the originalist foundations of a presidential approval power. My comprehensive analysis of every public act passed by the First Congress shows that the founding generation never understood Article II to grant the President general authority to approve subordinates’ …

Bastions Of Independence Or Shields Of Misconduct?: Increasing Transparency In Judicial Conduct Commissions, Katarina Herring-Trott

Fordham Law Review

No abstract provided.

A Living Legacy: The Katzmann Study Group On Immigrant Representation, The Honorable Denny Chin

Fordham Law Review

On March 9, 2023, hundreds of individuals—including immigration lawyers, advocates, government officials, academics, journalists, and philanthropists—gathered for a symposium at Fordham University School of Law entitled Looking Back and Looking Forward: Fifteen Years of Advancing Immigrant Representation. The symposium was organized by the Fordham Law Review and sponsored by law school centers and clinics, nonprofit organizations, and the Katzmann Study Group on Immigrant Representation (the “Study Group”). For members of the Study Group, the day was particularly poignant because several sessions at the symposium honored the life and accomplishments of the Hon. Robert A. Katzmann, the Study Group’s founder and …

Advancing Immigrant Legal Representation: The Next Fifteen Years, Muzaffar Chishti, Charles Kamasaki, Laura Vasquez

Fordham Law Review

As a judge on the U.S. Court of Appeals for the Second Circuit, Robert A. Katzmann found that immigration matters represented a severe and growing bottleneck of the cases at the court. Instead of treating this phenomenon purely as a case management problem, he chose to delve deeper to understand the underlying cause for the high level of appeals from immigration agency determinations. Judge Katzmann concluded that lack of effective counsel was a major factor, and he turned that understanding into a cause. In his 2007 clarion call, he implored the enlightened members of the legal community to rise to …

Carceral Deference: Courts And Their Pro-Prison Propensities, Danielle C. Jefferis

Fordham Law Review

Judicial deference to nonjudicial state actors, as a general matter, is ubiquitous, both in the law and as a topic of legal scholarship. But “carceral deference”—judicial deference to prison officials on issues concerning the legality of prison conditions—has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy. This Article contextualizes carceral deference historically, politically, and culturally, and it thus adds a piece that has been missing from the literature. Drawing on primary and secondary historical sources and anchoring the analysis in Bourdieu’s field theory, this Article is an important step to …

The Patent Written Description Requirement: A Requirement In Search Of A Description, Darlene M.J. Staines

Fordham Law Review

Innovation often requires a hefty investment of time and money. The patent system exists to incentivize innovation by granting inventors the exclusive use of their invention for a set period of time. In return, the public receives the benefit of the inventor’s knowledge, as well as the use of the invention once the exclusivity period ends. One of the hurdles for obtaining a patent is the written description requirement, which demands that the inventor disclose enough information to prove that they actually invented what they are seeking patent protection for. This requirement serves to prevent an undeserving “inventor” from obtaining …

Voter Influencing In State Trial Court Judicial Elections In Los Angeles, San Francisco, And Houston, Myanna Dellinger

Dissertations and Theses

This dissertation examines select key factors that influence voter choices in state trial court judicial elections in three large, cosmopolitan counties in California and Texas. These include ballot designations (i.e., professional titles of candidates), “evaluations” of candidates by local bar associations, newspaper endorsements, political party affiliation, and gender. Focus here is on ballot designations and local bar association evaluations; the subjective opinions issued by local bar associations as official-sounding, objective and qualitative evaluations. In turn, local bar associations are private, voluntary associations consisting of fee-paying members and not overseeing state bar associations as many laypeople believe. Judicial elections remain low-information, …

The Homeowner Association: A Descent Into Dante’S Inferno Palliated By A Summons To Improve The Hate-Hate Relationship Through Transparent Disclosures, Bradford P. Anderson

University of Memphis Law Review

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A New Test For The New Crime Exception, Colin Miller

Faculty Publications

The new crime exception to the Fourth Amendment exclusionary rule allows prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Unfortunately, as illustrated in this Article, courts largely have applied this new crime exception without any analytical framework or regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.

By doing so, courts have allowed the new crime exception to swallow two …

Federal Bureaucratic Studies, Jesse M. Cross

Faculty Publications

A vast literature has developed in legal scholarship on the topic of bureaucratic governance. To date, this literature has focused squarely on the executive branch. Yet a second bureaucracy also exists in the federal government: the congressional bureaucracy. Recent legislation scholarship has brought this bureaucracy into focus—documenting its traits, practices, and culture. In so doing, it has created a rich new opportunity for cross-disciplinary dialogue—one where executive-branch studies and legislative studies collaborate toward a larger understanding of how bureaucracy operates, and can operate, in a presidentialist system.

To begin that cross-disciplinary conversation, this Article turns to five themes in the …

Frederick Douglass As Constitutionalist, Jack M. Balkin, Sanford Levinson

Maryland Law Review

No abstract provided.