Law Commons^™

Table Of Contents And Dedication

Florida A & M University Law Review

No abstract provided.

Fighting To Teach, Struggling To Stay: Prevalent Challenges Within Mississippi's K-12 Public Education System And Recommendations For Solving The Most Acute Issue, Faith Hall

Florida A & M University Law Review

No abstract provided.

Beyond The Classroom: Publics Schools As An Essential To Economic And Legal Reform, Oliver Telusma

Florida A & M University Law Review

No abstract provided.

Education For Democratic Citizenship: Separating Purpose From Outcomes, Anne Jegede

Florida A & M University Law Review

American education is failing minority and indigent students because it disproportionately prioritizes academic achievement and economic success over creating democratic citizens and cultivating essential skills such as critical thinking, civic engagement, and cultural understanding.

Policing An Education: Legal And Policy Drivers Of The School-To-Prison Pipeline In Florida Public Schools, Ky'eisha W. Black

Florida A & M University Law Review

No abstract provided.

Democratizing Health Data: A Legal Framework For Privacy-Preserving, Government-Led Ai Collaboration, Nicole Nigri

Cybaris®

No abstract provided.

The Institutions Of Exceptions: Justification In Trade And Investment Treaties, Julian Arato

Michigan Journal of International Law

International economic law binds states in the interest of liberalizing markets, including in cross-border trade in goods and services (trade) and capital (investment). The treaty regimes for both trade and investment do this by disciplining states through legal rules, while preserving a modicum of governmental authority over domestic policy. The preservation of policy space in these regimes usually involves a process of exceptions-based justification – through formal exceptions clauses in most trade treaties and some investment agreements, and also through informal exceptions-style reasoning by adjudicators in the investment treaty regime more generally. This “exceptions paradigm” of justification has worked well …

Escape Probability: Rethinking Wartime Protection Of Nuclear Facilities, Pearle M. Lipinski

Michigan Journal of International Law

The 2022 Russian attacks on the Chernobyl and Zaporizhzhia nuclear facilities in Ukraine shocked the international community. Claims that the attacks constituted war crimes immediately entered the public consciousness, and a flurry of opinions were set forth on the international humanitarian law (“IHL”) protections afforded to nuclear plants, focusing on Article 56 of Additional Protocol I of the Geneva Conventions, which provides special protection to nuclear electrical generating stations. These opinions primarily focused on the immediate applicability and shortcomings of Article 56 on the attacks at hand, often operating on the presumption that a massively consequential environmental and humanitarian disaster …

A Gap In The Cybertipline: Electronic Service Provider Liability And Child Safety, Brianna Evans-Sheehan

NYLS Law Review

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The online exploitation of children is a widespread problem that requires immediate action. This Note proposes that Congress …

Comparative Law: Cases, Text, And Materials, Francesca Bignami

GW Law Faculty Publications & Other Works

This new casebook offers a contemporary approach to the teaching of comparative law.  By integrating an up-to-date set of cases, code texts, and scholarly materials drawn from the civil law and common law traditions, as well as from Islamic law and customary law, it captures today’s dynamic legal landscape.  Beyond the western jurisdictions that typically feature in the general comparative law course, the book gives sustained attention to Brazil, Pakistan, South Africa, and Ethiopia. Subject areas covered are private law, procedural law, labor law, administrative law, digital law, and constitutional law.  Looking to professional life after graduation, this book equips …

Trial By Character, Hillel J. Bavli

Emory Law Journal

In this Article, I argue that courts regularly deviate from Federal Rule of Evidence 404(b), which prohibits character evidence—evidence of a defendant’s past misdeeds offered to prove that the defendant acted in conformity with a certain character trait on the occasion in question. These deviations undermine the fairness of a trial and the presumption of innocence. The Article addresses this problem in three ways. First, it explains how courts have misinterpreted Rule 404(b)—an error that I call the permitted-purpose fallacy—and how they have fortified this misinterpretation with a body of flawed principles and precedent. Second, it reports the results …

Ambiguity's Final Auer: Insisting On Consistency After Loper Bright Enterprises, Shannon S. Pickrell

Emory Law Journal

Can one lose something they still have? Apart from this potential brainteaser, a common sense understanding of loss requires an item to actually be removed from its owner. Nevertheless, under the United States Sentencing Commission Guidelines, an interpretive rule automatically punishes convicted defendants for money they never took by including “intended loss” in the definition of loss. This interpretive rule multiplies the number of years a defendant spends in prison due to the doctrine of Auer deference, even though such a rule is not supposed to have the weight of law. Auer deference requires courts to defer to agency interpretations …

Silver Lining In A Soap Opera: A Boon For Hospital Debtors In The Midst Of In Re Steward's Madness, Mackie S. Garwood

Emory Law Journal

Lost in the technical jargon of the Medicare Statute and Bankruptcy Code are the powers to shape the posterity of hospitals that serve the American public. Distressed health care providers are increasingly turning to Chapter 11 relief, and ultimately the deal market, to salvage their businesses and fully monetize their assets. In the frequent event of an unsuccessful reorganization, hospital failures tank the health and well-being of their surrounding communities.

Hospital buyers regularly acquire a debtor’s Medicare Provider Agreement (Provider Agreement), a one-page form which credentials providers to participate in Medicare. In re Steward Health Care System, LLC, the …

Remedying Labor Violations Of The United States–Mexico–Canada Agreement On Both Sides Of The Border, Lourdes A. Perez

Emory Law Journal

The labor provisions of the United States’ Free Trade Agreements contain language that allows labor violations to seep through unpenalized. Parties to the United States–Mexico–Canada Agreement (USMCA) sought to rectify this by drafting the most comprehensive labor provisions of any free trade agreement to date by crafting the Facility-Specific Rapid Response Mechanism (RRM). This Mechanism provides that a particular facility found to be in violation of the USMCA labor provisions must enforce a remediation plan that preserves workers’ rights or face the threat of losing its preferential trade status. The most salient way facilities breach the USMCA’s labor provisions is …

Coerced Corporate Consent, Jason J. Jarvis

Emory Law Journal

Corporations are not human beings, but they have rights, including the constitutional right of due process. The United States Supreme Court recently held in Mallory v. Norfolk Southern Railway Co. that due process is satisfied when a state requires that a corporation consent to personal jurisdiction before it can conduct business in that state. The Court did not analyze, however, whether such business registration statutes can be coercive and, if so, when. These unanswered questions expose corporations to previously unexplored risks.

Involuntary consent is an oxymoron. Consent must be knowing and voluntary, and consent extracted by threat is coerced and …

Is The Gig Really Up?: Exploring Statutory Protections For Moonlighting Workers, Chiazom E. Ugo-Obi

Emory Law Journal

Moonlighting, side hustles, and part-time jobs often refer to secondary employment pursued by employees. While the terminology may vary, the underlying reality remains the same: Legal protections against an employer’s ability to restrict such activities are limited. Nothing stops employers from implementing policies or employment contracts prohibiting participation in additional employment. For many workers, holding an additional job is not a choice born of passion or professional fulfillment but a financial necessity driven by rising costs, stagnant wages, and economic instability. These workers, often already vulnerable within the labor market, face significant challenges when employers impose restrictive policies that limit …

Renormalizing The Nondelegation Doctrine, Ronald J. Krotoszynski, Jr., Hon. A. Richard M. Blaiklock

Emory Law Journal

In West Virginia v. EPA, the Supreme Court held that with respect to regulations that involve “major questions”—meaning questions of “great political or economic significance”—the agency seeking to regulate a major question must successfully identify “clear congressional authorization” for its actions. The major questions doctrine (MQD) essentially creates a new nondelegation doctrine rule. The nondelegation doctrine requires that Congress provide an “intelligible principle” when it delegates policymaking authority to a federal administrative agency; the MQD, in turn, enforces the nondelegation doctrine by requiring Congress plainly and directly to authorize an agency to regulate major questions. It is difficult to …

Genes For Sale!, Anya E.R. Prince

Emory Law Journal

In March 2025, 23andMe, the flagship direct-to-consumer (DTC) genetic testing company, filed for bankruptcy. Just like that, the genetic information of fifteen million customers was up for sale to the highest bidder, creating a firestorm of reactions from the public, media, state attorneys general, and legislators warning of the dire outcomes that could arise from the sale of such sensitive data. The warnings seemed reasonable, as federal law does little to protect consumers from the widespread sale and misuse of their genetic data.

Yet, in retrospect, the public concerns and media frenzy could potentially be seen as excessive given the …

Unlikely Criminals: Inside The Ivf Drug Grey Market, Maybell Romero

Emory Law Journal

In this Article, I admit to committing crimes, specifically buying fertility drugs on the in vitro fertilization (IVF) drug grey market. Drawing from personal experience, I explore how people wanting to undergo IVF turn to the criminalized fertility drug grey market to access necessary but prohibitively expensive fertility medications that would otherwise be out of reach. In the absence of comprehensive insurance coverage, patients often rely on informal online communities to obtain medications at lower prices, often from other patients whose IVF cycles have been canceled or who have excess drugs. While these transactions fulfill a critical need, they also …

Making Environmental Cancer Risk Legally Visible: Legal Epidemiology, Chemical Regulation, And The Failures Of Cancer Cluster Investigations, Beverley C. Thompson

Emory Law Journal

Environmental cancer risks remain difficult to detect, investigate, and remediate despite decades of federal regulation under the Toxic Substances Control Act (TSCA). Cancer cluster investigations are designed to identify unusual patterns of cancer and their environmental causes, but fragmented authority, inconsistent methodologies, and narrow investigative frameworks routinely prevent these investigations from addressing population-level harms. By failing to detect and address cancer clusters, public health systems inadvertently perpetuate environmental injustices, disproportionately harming communities already underserved and overburdened by pollution.

These failures are not merely scientific but reflect legal and institutional design choices that determine which cancer risks are visible, investigable, and …

Defamation, Privacy, And The First Amendment: Cases & Problems (3rd Ed.), George Biashvili

Books

I created this resource in anticipation of teaching my Torts II class, which will primarily explore defamation and privacy torts. Though I searched for a suitable coursebook, I found that none contained all of the opinions I consider essential for teaching the nuances and complexities of these subjects. Additionally, I wanted to spare my students the exorbitant price tags associated with traditional law school texts. Hence, I assembled a collection of relevant privacy and defamation cases that align with the objectives of my course. Each case is accompanied by a set of questions to further stimulate class discussion. Where I …

Limits On Damages For Breach Of A Forum Selection Clause, Coyle, John, Monestier, Tanya

Santa Clara Law Review

When a plaintiff sues in a court other than the one designated in a forum selection clause, the defendant’s remedial options are limited. It can ask the court to dismiss the case outright. Or it can ask the court to transfer the case to the designated forum. The defendant typically cannot, however, recover money damages—in the form of attorneys’ fees and related expenses—that it incurs in the course of persuading the court that transfer or dismissal is appropriate. This is because the conventional wisdom among judges has long been that damages are not available for breach of a forum selection …

Formal Neutrality And Unequal Liability: How Algorithmic Aversion Distorts Liability For Algorithmic Torts, Gao, Jingkang

Santa Clara Law Review

The shift in the cause of machine-induced harm from mechanical failures to algorithmic decision- making is challenging the applicability of products liability. Because algorithms now operate machines analogously to humans, a doctrinally coherent response is to subject algorithmic torts to a negligence framework that evaluates the reasonableness of decisions rather than the content of algorithms. This approach offers a theoretically grounded, formally neutral, and normatively appealing solution. In practice, however, it may result in unequal liability. Even under a negligence regime, algorithmic decision- makers may face systematically greater liability if injured parties are more inclined to pursue litigation against algorithmic …

Inexcusable? Building An Artificial Intelligence Micro- Expert On Contract Excuse Doctrine, Burge, Mark Edwin

Santa Clara Law Review

This Article details and advocates for a general methodology for creating a “microexpert” grounded in a user-defined set of legal sources and widely-accessible tools for integrating generative artificial intelligence (AI) into legal analysis. The study focuses particularly on background contract excuse doctrines of impossibility, impracticability, and frustration of purpose, which are collectively a methodologically challenging area of law to rationalize due to fact-intensive variables that undermine their predictability. Particular challenges include assessing the foreseeability of the event that led to the contract’s non-performance, the extent of the hardship or burden on the party seeking excuse, and the purpose of the …

An Elective Wealth Tax, Reis, Eric

Santa Clara Law Review

Foes of wealth inequality face a basic dilemma. Economic restraints make it impractical to tax income at the very high rates needed to address inequality, while constitutional restraints likely make it impossible to tax principal (wealth) directly.

This problem can be solved by marrying the two approaches. The wealthiest taxpayers would be put to a choice: Pay very high income tax rates, or pay more typical income tax rates along with a wealth tax. Because the proposed wealth tax would be voluntary, it should avoid the constitutional difficulties that bedevil a conventional wealth tax. And because the increase in income …

Constitutional Structures In Private Law And The Example Of Waste Law, Fraley, Jill M.

Santa Clara Law Review

This Article proposes three criteria for when a private law mechanism performs a structural constitutional function: when it constrains present authority in the name of future stability, when it disperses enforcement to avoid centralized authority, and when it has structural entrenchment to avoid ordinary displacement. While many private law doctrines contain constitutional resonances or echo rights, the core of constitutional law is the power structure—a precondition for the protection of those rights. Constitutional structures have three key components: self-binding through time, separation and diffusion of power, and entrenchment beyond ordinary politics. For a private law doctrine to do more than …

What Ai Can’T Say: Oral Competence In Legal Education, Ho, Cynthia M.

Santa Clara Law Review

This Article brings together two critical conversations rarely considered in tandem – the impact of generative AI (GenAI) on legal education and the need for more practical skills – and argues for a shared solution centered on oral communication skills. Law schools have historically devoted substantial attention to teaching students how to write like lawyers, but not how to speak like one. Although a long-standing imbalance, the widespread use of GenAI in written work provides an additional urgent reason to place more emphasis on oral assignments.

This Article argues that doctrinal classes offer an underused, scalable opportunity to develop oral …

Don’T Breathe In: The Dangers Of Ssm Events And Why Repealing Affirmative Defenses Falls Short, Spring, Gillian

Santa Clara Law Review

From the Louisiana and Texas Gulf coasts to Wilmington, California, communities face disproportionately high cancer risks linked to excess hazardous emissions. This article examines the longstanding regulatory gaps that allow industrial facilities to emit excess levels of hazardous air pollution during startup, shutdown, and malfunction (SSM) events. Despite the Clean Air Act’s enacted framework for controlling emissions, the EPA has created exemptions and affirmative defenses that shield polluters from civil penalties even when emissions exceed legal limits. Excess pollution emissions occur when air pollution levels exceed what is considered safe for human ingestion. When communities are subjected to certain pollutants, …

The Constitutional Ramifications Of Grants Pass, Galdamez, Alanis, Conway, Nicholas D., Slatkin, Ellen M.

Santa Clara Law Review

The brief and ambiguous wording of the Eighth Amendment has permitted courts to adopt a variety of interpretations. These interpretations have been applied inconsistently through different periods of the Amendment’s history, but the U.S. Supreme Court has never established a singular, definitive method for interpreting the Amendment. That is, until the 2024 decision in City of Grants Pass, Oregon v. Johnson, where the Court rejects any interpretation of the Eighth Amendment that is not strictly originalist in nature. This article analyzes the Court’s reasoning in Grants Pass and explores the potential consequences of adopting such a narrow interpretation of the …

Criminalizing Survival: How The Grants Pass Decision Is Intensifying The Homelessness Crisis In California And Beyond, Riley, Laura

Santa Clara Law Review

This article examines the intensifying criminalization of homelessness in the United States since the Supreme Court’s 2024 decision in Grants Pass v. Johnson, which removed the ability of people to challenge laws under the Eighth Amendment’s Cruel and Unusual Punishment Clause that prohibit survival behaviors in public places like sitting, sleeping, or lying down. The article explores the legal and practical challenges in documenting criminalization of homelessness, analyzes national and California-specific legislative trends and enforcement practices, and assesses the impacts on unhoused populations. The article concludes with policy recommendations to shift the state of homelessness criminalization from one of punitive …