Law Commons^™

Making Sense Of Absence: Interpreting The Apa’S Failure To Provide For Court Review Of Presidential Administration, Noah A. Rosenblum

Notre Dame Law Review

Federal governance is increasingly characterized by presidential direction of administration. Yet the main statute that governs court review of administrative action, the Administrative Procedure Act, has strikingly little to say about the President.

This Essay seeks to make sense of this absence. It uses a brief survey of historical materials from the new Bremer-Kovacs Collection to sound the depths of the Administrative Procedure Act’s silence on the President. It then seeks to explain this omission by reference to contemporaneous discussions of the place of the president in the administrative state. The Essay hypothesizes that, at the time, the presidency was …

Movement Administrative Procedure, Evan D. Bernick

Notre Dame Law Review

On April 4, 1946, The Potters Herald, a Thursday weekly dedicated to labor and union news, published an editorial warning readers of pending legislation “which may seriously affect labor” despite not containing a “single word about labor” in its text. This legislation would empower “anti-labor judges” to overturn decisions by the National Labor Relations Board. Despite its neutral appearance, it was in reality designed to “kick [labor and the NLRB] in the teeth” and would result in “a field day for the corporation lawyers.”

The complained-of legislation was the Administrative Procedure Act of 1946 (APA). From today’s vantage point, …

Mindfulness For Lawyers Cannot Begin Too Early, Heather Simmons

Articles, Chapters and Online Publications

Mindfulness can help law students handle the stress of Socratic method and cold calling. But the standard mindfulness panic practice, which is to stop and take three deep breaths, doesn’t work because the professor is waiting for an answer. In my ABA Student Lawyer article, I describe the following alternative: Step 1. Plant your feet firmly on the floor; Step 2. Sit up straight; Step 3. Take one deep breath; Step 4. Now restate the question. These steps could easily be modified to work in court when the judge asks a challenging question.

الأحكام القانونية للمُصاب باضطراب طيف التوحد, مريم محمد علي

Theses

According to the latest statistics, 1% of the world population has been diagnosed with autism spectrum disorder in its various levels. The one percent of the world population counts in millions; hence, this segment of society deserves the legislator's attention to ensure fair treatment. Therefore, this study will shed light on whether the Emirati Legislator have fairly regulated the financial transactions of people with autism, by examining the relevant regulations and laws in the United Arab Emirates and in comparison, with the principles of Sharia'a. Accordingly, this study is divided into two main chapters. The first chapter defines autism in …

Adopting Nationality, Irina D. Manta, Cassandra Burke Robertson

Washington Law Review

Contrary to popular belief, when a child is adopted from abroad by an American citizen and brought to the United States, that child does not always become an American citizen. Many adoptees have not discovered until years later (sometimes far into adulthood) that they are not actually citizens, and some likely still do not know. To address this problem, the Child Citizenship Act of 2000 (CCA) was enacted to automate citizenship for certain international adoptees, but it does not cover everyone. Tens of thousands of adoptees still live under the assumption that they are American citizens when, in fact, they …

The Five Internet Rights, Nicholas J. Nugent

Washington Law Review

Since the dawn of the commercial internet, content moderation has operated under an implicit social contract that website operators could accept or reject users and content as they saw fit, but users in turn could self-publish their views on their own websites if no one else would have them. However, as online service providers and activists have become ever more innovative and aggressive in their efforts to deplatform controversial speakers, content moderation has progressively moved down into the core infrastructure of the internet, targeting critical resources, such as networks, domain names, and IP addresses, on which all websites depend. These …

Marital Disharmony: Examining The Adverse Spousal Testimonial Privilege And Its Impact In Washington State, Sabrina Suen

Washington Law Review

In Washington State, RCW 5.60.060(1) provides that “[a] spouse or domestic partner shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner.” This evidence rule, known as the adverse spousal testimonial privilege, allows a defendant to exclude witness testimony by their spouse under most circumstances. A product of common law tradition, this privilege stems from a time when the law treated women as chattel with no independent legal rights. Since Washington State codified the adverse spousal privilege, the United States Supreme Court amended the federal spousal testimonial …

In The Room Where It Happens: How Federal Appropriations Law Can Enforce Tribal Consultation Policies And Protect Native Subsistence Rights In Alaska, Kieran O'Neil

Washington Law Review

Federal-tribal consultation is one of the only mechanisms available to American Indian and Alaska Native communities to provide input on federal management decisions impacting their subsistence lands and resources. While the policies of many federal agencies “require” consultation, agencies routinely approach consultation as a procedural checklist rather than a two-way dialogue for receiving, considering, and incorporating tribal needs and concerns. Substantive failure to consult is particularly harmful for Alaska Native communities that rely heavily on subsistence resources yet lack treaties to enforce hunting and fishing rights. The Alaska National Interest Lands Conservation Act (ANILCA) contains a “rural priority” provision that …

Inventing Deportation Arrests, Lindsay Nash

Articles

At the dawn of the federal deportation system, the nation’s top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power—then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests—was exercised with “great care and deliberation.” A century later, this extraordinary power is legally trivial and systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now have the power to solely determine whether deportation arrests are justified and, therefore, whether …

Proportionality V. Categorization: The Issue Of Judicial Balancing Of Rights, Akram Mohamed

Theses and Dissertations

The fact that there is a constant conflict between individual rights and state or social interests has historically provoked the question of how to balance or harmonize such conflicting interests? On what basis shall the legislator or the judge decide in favor of this or that right in his legislation or judgement? Where shall we, for example, draw the line between the right to freedom of expression and the right to protect one’s honor and reputation? How could the legislator find the compromise between the state duty to protect fetus life and its obligation not to interfere with woman’s right …

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 …

N Y State Dent J June-July 2023

The New York State Dental Journal

In the June-July 2023 issue, the reader will find the following feature articles:

• Understanding Persistent Bleeding in Children
• Sinus Tract vs. Fistula: There is a Difference
• What is the Prevalence of Temporomandibular Joint (TMJ) Condylar Osteoarthritis in an Asymptomatic Oral and Maxillorfacial Surgery Department Population?

This issue includes regular columns with regional news impacting the New York membership including: editorial and perspectives columns, legal, association activities, component news, continuing education opportunities, and classifieds.

Examining The Role Of Evidence-Based Suspicion In Racial Disparities In Wrongful Convictions, Jacqueline Katzman

Dissertations, Theses, and Capstone Projects

There are clear racial disparities in the rates of wrongful convictions, with Black exonerees disproportionately represented among the population of those exonerated, in DNA and non-DNA exonerations alike (National Registry of Exonerations, 2022; Innocence Project, 2022). This racial disparity also exists for those exonerees who were wrongfully convicted, at least in part, because an eyewitness mistakenly identified them. For decades, when eyewitness scholars explored racial bias, they focused on the cross-race effect or own-race bias among eyewitnesses, a bias positing that witness performance suffers when a witness is asked to make an identification of a cross-race face (Lee & Penrod, …

Competing Policies Within The Sending State: Labour Export And The Provision Of Primary Healthcare In The Philippines, Romeo Luis A. Macabasag, Yasmin Y. Ortiga

Research Collection School of Social Sciences

In framing nations as places that either send or receive migrants, there is a danger in defining migrant-sending nations as monolithic entities driven by a single mandate of exporting labour to a global economy. Using the concept of viscosity, we argue that sending states comprise multiple state agencies with varying interests, which can either impede, slow, or facilitate labour emigration. We demonstrate our argument by examining the Philippines' nurse retention policies against the backdrop of the country's labour export policies. While these retention policies led to an influx of Filipino nurses to rural health centres, these nurses considered such mobility …

Free Speech Rules, Free Speech Culture, And Legal Education, Eugene Volokh

Hofstra Law Review

The article explores the importance of fostering a culture of free speech and open-mindedness in law schools to effectively train future lawyers. It emphasizes the need for students to understand and engage with opposing arguments, to see the world from different perspectives, and to be willing to make arguments they may disagree with. It also discusses specific practices that can be implemented to promote thoughtful disagreement and encourage the exploration of controversial topics.

Comment On Freedom Of Expression In American Legal Education, Robert Post

Hofstra Law Review

The author argues that framing the tension in American law schools as a freedom of expression issue is unhelpful and inaccurate.It suggest that the core issue lies in the pedagogical question of how best to achieve the educational mission of law schools. It also mentions that the principles of free speech, which are essential for democratic self-governance. The author emphasizes the importance of empathy, and creative educational interventions in navigating the challenges faced by law schools.

Why Is Frand Hard?, Michael A. Carrier

Utah Law Review

There are many reasons why FRAND is a complex topic. The first four challenges offer low-hanging fruit that could clarify FRAND issues by paying less attention to systemic holdup, jettisoning unsupported positions, not letting industry funding replace reasoned debate, and being aware of the role played by patent trolls. The remaining four challenges pose levels of difficulty that increase from modest (clear SDO rules or facts) to medium (SDO history, industry characteristics, unclear licensee willingness) to significant (determining “fair and reasonable” and “nondiscriminatory”) to extraordinary (global litigation). While not all of these challenges can be addressed with simple solutions, an …

After Ebay: Valid Patents And The Economics Of Post-Trial Judicial Options, J R. Kearl

Utah Law Review

The Supreme Court’s eBay decision creates enormous uncertainty about whether the owner of a valid patent has an exclusive right in the face of actual infringement. The Court’s “traditional equitable” criteria for an injunction fail to consider the context where injunctive relief may be warranted: namely, litigation dealing with patents where a jury or court has found the in-suit patent to be valid and infringed and where, barring an injunction, there will be post-trial infringing uses by the defendant. Specifically, it is highly unlikely that a patent holder can show that it will be irreparably harmed or not be made …

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.

Medical-Legal Partnership As A Model For Access To Justice, Yael Cannon

Georgetown Law Faculty Publications and Other Works

The United States is plagued with a “justice gap” that leaves many Americans with unmet civil legal needs. Americans with low income do not receive the legal help they require for as many as 92% of their substantive civil legal problems. The justice gap requires many legal aid agencies to triage, becoming “emergency rooms” for clients with unmet legal needs. This national crisis calls for new innovations so that access to justice (A2J) can function more like primary care, promoting better use of resources and preventing legal crises that can cause long-lasting harm.

Medical-Legal Partnerships (MLPs) embed lawyers in healthcare …

Beneath The Property Taxes Financing Education, Timothy M. Mulvaney

Faculty Scholarship

Many states turn in sizable part to local property taxes to finance public education. Political and academic discourse on the extent to which these taxes should serve in this role largely centers on second-order issues, such as the vices and virtues of local control, the availability of mechanisms to redistribute property tax revenues across school districts, and the overall stability of those revenues. This Essay contends that such discourse would benefit from directing greater attention to the justice of the government’s threshold choices about property law and policy that impact the property values against which property taxes are levied.

The …

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, …

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 …

Narkoterorisme Sebagai Ancaman Bonus Demografi : Perspektif Sekuritisasi Ketahanan Nasional, Ade Aryanti Fahriani, Bagus Ridho Akustyo, Saur Martha Agustina

Jurnal Kajian Stratejik Ketahanan Nasional

The proliferation of narcotics issues in Indonesia has grown increasingly complex, impacting social security and national resilience. The substantial profit from the narcotics trade presents opportunities as a financing avenue for acts and terrorist groups. The integration of narcotics trade with illicit activities creates the potential for connection and convergence between drug trafficking criminal organizations and terrorist organizations, as known as narcoterrorism. Despite the forthcoming demographic bonus in Indonesia, the younger generation is overshadowed by radical ideologies, and the abuse and illicit trafficking of narcotics, which could jeopardize the quality of the demographic bonus. Therefore, there is a perceived need …

Rethinking Education Theft Through The Lens Of Intellectual Property And Human Rights, Peter K. Yu

Faculty Scholarship

This Essay problematizes the increased propertization and commodification of education and calls for a rethink of the emergent concept of “education theft” through the lens of intellectual property and human rights. This concept refers to the phenomenon where parents, or legal guardians, enroll children in schools outside their school districts by intentionally violating the residency requirements. The Essay begins by revisiting the debate on intellectual property rights as property rights. It discusses the ill fit between intellectual property law and the traditional property model, the impediments the law has posed to public access to education, and select reforms that have …

What If Critical Race Theory Were Just A Legal Theory? A Christian Critique, Timon Cline, Neil Shenvi

Liberty University Law Review

The national debate over Critical Race Theory (CRT) continues to grow and deepen. Some Christians seemingly find CRT legitimate, useful, and nonthreatening to Christian theological commitments. This view is incorrect. CRT is in fundamental conflict with Christianity due to its misguided perspectives on law, morality, truth, and justice. Although CRT is more than “just a legal theory,” this article examines CRT’s legal origins and outlook, showing the inevitable tension between its claims and a Christian understanding of reality. This article also calls attention to several policy proposals suggested by CRT scholars to demonstrate how they are incompatible with Christian views …

Racial Reconciliation: A Biblical Framework, Rodney D. Chrisman

Liberty University Law Review

American society is greatly polarized and divided on many issues, including issues relative to racial reconciliation. Attempts at progress in this area are impeded by the United States’s historical backdrop of slavery, the statesponsored oppression of Jim Crow laws, and personal racism, among other complications. Even the American church tolerated and justified these racial divides. Modern discussions are plagued by the widespread misuse of important terms as well as disagreements on what racial reconciliation looks like and how to achieve it. Starting from the belief that God has spoken authoritatively on all issues, this article attempts to provide a biblical …

Racial-Ethnic Harm And Healing: Comparative National Mechanisms For Social Remorse And Repair, R Drew Smith

Liberty University Law Review

Today a sharp divide exists between Americans. Although they agree that racial harm occurred in this country’s history, they disagree about the extent of harm to be acknowledged and the means of repair to achieve justice and social healing. The United States’ history of (attempted) racial reconciliation includes initiatives by white Christians since the 1950s that formally acknowledged the sin of racism but mostly lacked corresponding political activism. The tensions and divergences between attitudinal and structural approaches to interracial cooperation that existed a half-century ago persist today. This article seeks to provide a broader, global perspective to the United States’ …

Reimagining Resistance: The Voting Rights Act's Immediate Resistance, Julian Maxwell Hayter

Liberty University Law Review

This piece situates the current fight over voting rights and the Voting Rights Act of 1965 into historical context. More specifically, Hayter argues that current contention over minority voting dates to 1965 itself. Resistance to the Voting Rights act is not only older than many people know, but the continuity of that resistance also forces us to question telling the story of the American Civil Rights Movement as a triumph narrative.