Law Commons^™

“If You Build It, They Will Come”: Reverse Location Searches, Data Collection, And The Fourth Amendment, Matthew L. Brock

Law Student Publications

On January 6, 2021, the world looked on, stunned, as thousands of rioters stormed the U.S. Capitol on live television in support of then-President Donald Trump. In the days and weeks that followed, federal law enforcement scrambled to identify those involved in the attack, in what has become the largest criminal investigation in American history. Whereas even 20 years prior it would have been difficult to identify those involved, as of February 2023, more than 950 people have been identified and charged in relation to the January 6th Capitol attack. Many of these individuals were identified using a wide array …

When Dirty Data Leads To Dirty Policing, Madison Blevins

Law Student Publications

"On May 25th, 2020, George Floyd was tragically killed by police officers in Minneapolis. While George Floyd’s death was the shock that catapulted the Black Lives Matter (“BLM”) movement to the center of international attention, it was also just the tip of the iceberg. Floyd’s death was not the first death of a black person at the hands of the police, nor would it be the last. “A black person is killed by a police officer in America at a rate of more than one [person] every other day.” These repeated incidents across the country have ignited a mass movement …

Prison Housing Policies For Transgender, Non-Binary, Gender-Non-Conforming, And Intersex People: Restorative Ways To Address The Gender Binary In The United States Prison System, John G. Sims

Law Student Publications

“[I]t was the end of the last quarter of 2019 where I was able to drop the lawsuit against the correctional officer who had sexually harmed me when I knew . . . that the carceral state is not the way for me to find healing . . . . I was not going to seek my transformation and restoration through this system.”

Each year, rhetoric and legislation attacking transgender, non-binary, gender non-conforming and intersex individuals seemingly grows louder. Many political institutions in the United States perpetuate and enable the oppression of these individuals, one of which is the United …

State-Sanctioned Displacement: An Interstate Examination Of Felon Disenfranchisement, Claudia Leonor

Law Student Publications

In his dissent of New State Ice Co. v. Liebmann, Justice Louis Brandeis referred to the constituent states of the country as “laboratories for democracy.” He noted that, as sovereign entities within the United States, states are empowered to “try novel social and economic experiments without risk to the rest of the country.” In postbellum American society, states have grappled with Reconstruction and the concomitant dismantlement of a caste system hinging on racism. In convening constitutional assemblies, the states experimented with racism and succeeded. In Southern jurisdictions, racial animus enabled the creation of constitutional frameworks and legislation that would have …

How California's Racial Justice Act Of 2020 Protects Criminal Defendants From Racial Discrimination And Why The Equal Protection Clause Is Not Enough, Hannah Laub

Law Student Publications

The Equal Protection Clause should prevent racial discrimination in the criminal legal system, yet Black people and people of color are disproportionately arrested, prosecuted, and incarcerated in the United States. This is partially due to the heavy evidentiary burden required to demonstrate an Equal Protection violation and the failure of the Supreme Court to ease that burden in McCleskey v. Kemp. With federal law largely ineffective, states such as California have passed legislation to provide more robust civil rights protections. This article explores how the Equal Protection Clause fails to provide a remedy for criminal defendants who experience racial discrimination …

The Way Forward: A Review Of Virginia's 2023 Regular General Assembly Session, Benjamin Raab, Mariam Rasooli

Law Student Publications

The 2023 General Assembly Session can best be defined by the success of bipartisanship. In an era of heightened polarization, Virginia legislators were able to meet across the aisle on a number of relevant issues. This article will provide a summary of key bills that were passed during the 2023 Regular and Special Sessions. The other articles within this issue touch upon the following topics: the Virginia Commission on School Construction and Modernization, family law, and the opioid and addiction crises. This article summarizes legislation passed with bipartisan support in the areas of: drugs, mental healthcare, labor and commerce, public …

Kahler V. Kansas: How The Current Insanity Defense Regime Underserves Postpartum Psychosis Defendants, How The Supreme Court Failed To Act, And How Now Is The Perfect Time To Implement A Gender-Specific Postpartum Defense, Victoria Frazier

St. Mary's Law Journal

No abstract provided.

2023-2024 School Year, St. Mary's University School Of Law

The Witan

No abstract provided.

Getting To Trustworthiness (But Not Necessarily To Trust), Helen L. Norton

Publications

As ethicist and political scientist Russell Hardin observed, our willingness to trust an actor generally turns on our own experience with, and thus our own perceptions of, that actor’s motives and that actor’s competence. Changes over time and technology can alter our experience with a particular actor and thus our willingness to trust or distrust that actor.

This symposium essay focuses not on how to encourage the public to trust the media, but instead on how the media’ can behave in trustworthy ways--in other words, how its choices can demonstrate its trustworthy motives and competence. Examples include refusing to amplify …

Racism Pays: How Racial Exploitation Gets Innovation Off The Ground, Daria Roithmayr

Publications

Recent work on the history of capitalism documents the key role that racial exploitation played in the launch of the global cotton economy and the construction of the transcontinental railroad. But racial exploitation is not a thing of the past. Drawing on three case studies, this Paper argues that some of our most celebrated innovations in the digital economy have gotten off the ground by racially exploiting workers of color, paying them less than the marginal revenue product of their labor for their essential contributions. Innovators like Apple and Uber have been able to racially exploit workers of color because …

What Twenty-First-Century Free Speech Law Means For Securities Regulation, Helen Norton

Publications

Securities law has long regulated securities-related speech--and until recently, it did so with little, if any, First Amendment controversy. Yet the antiregulatory turn in the Supreme Court's twenty-first-century Free Speech Clause doctrine has inspired corporate speakers' increasingly successful efforts to resist regulation in a variety of settings, settings that now include securities law. This doctrinal turn empowers courts, if they so choose, to dismantle the securities regulation framework in place since the Great Depression. At stake are not only recent governmental proposals to require companies to disclose accurate information about their vulnerabilities to climate change and other emerging risks, but …

Who Framed Roger Rabbit? Probably The Secret Codes, Jian Micah De Jesus

SMU Law Review Forum

Roger Rabbit was falsely accused of murdering Marvin Acme, the owner of Toontown, after photos revealed Acme’s alleged affair with Roger’s wife. A few snapshots, while seemingly harmless, brought a 104-minute journey into uncovering the truth and scandal behind the murder and proving Roger’s innocence. And while the camera that took the photos was not necessarily a criminal justice technology that framed Roger Rabbit, there are real-life cases where a DNA software or a breathalyzer has negatively affected many defendants. Despite the proven usefulness of these technologies, it is not a perfect method in accusing and convicting defendants. The criminal …

Intra-Eu Investment Disputes And The Monopoly Over The Interpretation Of Eu Law, Petros C. Mavroidis, Frederico Ortino

Faculty Scholarship

Following a recent European Charter Treaty (“ECT”) decision, it appears that the fate of intra-EU investment disputes, when adjudicated in fora other than the Luxembourg courts, is finally all but sealed. In Green Power, an arbitration tribunal confirmed prior decisions taken in different jurisdictions that there is no room for adjudicating intra-EU investment disputes away from Luxembourg. This decision sided with the approach already developed by the Court of Justice of the European Union (“CJEU”) in three decisions, namely, Achmea, Komstroy, and PL Holdings, which in turn led to legislative action by the Energy Charter Treaty aiming to put an …

Are Police Officers Bayesians? Police Updating In Investigative Stops, Jeffrey A. Fagan, Lila J.E. Nojima

Faculty Scholarship

Theories of rational behavior assume that actors make decisions where the benefits of their acts exceed their costs or losses. If those expected costs and benefits change over time, behavior will change accordingly as actors learn and internalize the parameters of success and failure. In the context of proactive policing, police stops that achieve any of several goals — constitutional compliance, stops that lead to “good” arrests or summonses, stops that lead to seizures of weapons, drugs, or other contraband, or stops that produce good will and citizen cooperation — should signal to officers the features of a stop that …

Administrative Harms, Philip A. Hamburger

Faculty Scholarship

Administrative power imposes serious wounds on the United States, its Constitution, and its citizens. Therefore, a persuasive defense of administrative power would need to respond to these harms, showing that it is constitutional and otherwise desirable, notwithstanding its many costs. If the administrative state is defensible, it will be necessary to wrestle with all of the damage it incurs.

Comment: Unpaid Internships And The Rural-Urban Divide, Susan D. Carle

Washington and Lee Law Review

In this Comment, I first note how much the existing literature on unpaid internships under the FLSA focuses on urban contexts. Next, I briefly sketch some of the literature on the rural-urban divide, a topic I argue needs much more analysis from legal scholars in coming years. Third, I show how Morris’s work brings together these two literatures, which to this point have not been in conversation with each other. Finally, I note a few questions Morris’s work raises for future attention.

When Inventors Go Bankrupt, Joseph Dietz

Cybaris®

No abstract provided.

Washington’S Capital Gains Tax Isn’T An Income Tax, Erik M. Jensen

Faculty Publications

This article considers a widely noted decision of the Supreme Court of Washington, Quinn v. Washington, concluding that a state capital gains tax enacted in 2021 is not subject to the stringent limitations in the state constitution applicable to property taxes. That result was a surprise to many in that Washington courts for nearly a century had treated income taxes as property taxes for this purpose, and what is a tax on realized capital gains other than an income tax? This article sets out the constitutional requirements, explains the taxing statute, and critiques the Court’s decision.

Is Realization Necessary To Have Taxable Income? The Supreme Court Might Tell Us, Erik M. Jensen

Faculty Publications

The Supreme Court granted certiorari in Moore v. United States to consider whether realization is a requirement to have income within the meaning of the Sixteenth Amendment. Both a district court and a panel of the Ninth Circuit had concluded that the Mandatory Repatriation Tax enacted in 2017 was valid even though a married couple was taxed on undistributed earnings of a controlled foreign corporation and the earnings may have been attributable to tax years going back as far as 1987. This article describes the basics of the controversy and considers some of the issues associated with the case, including …

New Jersey’S In-State College Sports Gambling Prohibition: Effective Or Futile?, Ryan Neumann

Student Works

No abstract provided.

Between An Abercrombie Rock And A Hard(Ison) Place: Muslim Head Coverings, Corporate Dress Policies, And The Unresolved Tensions Between Workplace Religious Accommodation And Undue Hardship, Richard D. Crane

Student Works

No abstract provided.

Revenue Sharing: A Potential Method Of Compensating Athletes, Julia Pudimott

Student Works

No abstract provided.

Getting To The Root Of The Problem: How Biden’S “Root Causes Initiative” Can Bypass The Title 42 Immigration Dilemma, Randolph Portugal

Student Works

No abstract provided.

Precedent, Reliance, And Morality At The End Of Roe V. Wade, Max Stearns

Maryland Law Review Online

No abstract provided.

Congress Is From Mars & Courts Are From Venus: Reconceptualizing Our Understanding Of Interbranch Relations, Lauren Hanson-Figueroa, Alexandra Piccirillo, Amy Steigerwalt

Emory Law Journal

In this Article, we argue for a reconceptualization of how to understand legislative-judicial relations in the United States. We propose that the Legislative and Judicial Branches of the U.S. government broadly reflect gender-stereotypical relations and divisions of labor in terms of both function and design. Congress was intended to be agentic and public, securely positioned as the public, lawmaking body; it fits the prototypical definition of Arendt’s “space of appearance.” The Legislative Branch can be conceptualized as men in a patriarchal culture, given agency and invited to action. In contrast, the courts reside in a more private sphere, toiling away …

Procedural Justice And The Shadow Docket, Taraleigh Davis, Sara C. Benesh

Emory Law Journal

This Article critically examines the role of procedural justice in shaping public perceptions of the U.S. Supreme Court’s legitimacy, particularly in light of recent Court actions, including the leak of a major opinion and the increasing, potentially politicized, use of its shadow docket. Drawing from the procedural justice model—which posits that legitimacy is primarily founded on the decision-making processes and principled judgments of the Court—this Article investigates whether the decline in confidence experienced by the Court can be attributed, at least in part, to its shadow docket.

Utilizing an experimental survey conducted over three critical time points—coinciding with the leak …

Alternative Facts: The Strategy Of Judicial Rhetoric, Tonja Jacobi, Eryn Mascia

Emory Law Journal

Studies have established the influence of ideology on the answers justices give to legal questions; this study shows that the questions themselves are often selected, framed, and phrased in a way that promotes ideologically-driven answers. By examining a variety of linguistic techniques used to describe just the facts of constitutional criminal procedure cases—separate from the legal analysis—we show the justices are engaging in highly strategic behavior. The facts included, omitted, or emphasized vary with the ideology of the justices and are predictable not just based on voting behavior in other criminal procedure cases but in all Supreme Court cases. We …

What Cybersecurity Policymakers Can Learn From Medical, Accounting, And Legal Professionals, Vadim Barkalov

Student Works

No abstract provided.

India’S Use Of Public/Private Partnerships To Promote Rapid Expansion Of Solar Electricity Facilities, Kara Consalo

Journal Publications

This Article will explore the use of PPPs to encourage the flow of private capital and expertise toward development of low-carbon, low pollution, sustainable energy generation in India to achieve the country's ambitious goal of creating 175 gigawatts of renewably sourced electricity by 2022. The lessons in India's extensive use of PPPs to achieve such ambitious electricity goals should serve as a model for other governments to engage the private sector to successfully develop solar and other renewable energy projects with limited risk but with significant benefits for their citizens.

An Essay About Privacy, Ronald Griffin

Journal Publications

Jessye Norman was an American opera singer. She died on October 1, 2019. On October 2, 2019, my wife got a grim diagnosis that put me in a stupor and reminded me, now more than ever, that my generation (that did so much good in the world) stands in line waiting for the Grim Reaper’s call. In a seventy-years (that have gone by too fast) I have watched my peers run from the realms of privacy, spaces where people implemented life plans uninterrupted by neighbours that were discernible, palpable, and real to everybody, to a realm where there is none. …