Law Commons^™

The Intertemporal Law Doctrine’S Application To The Acquisition Of Colonies In The Americas, Kent Mcneil

All Papers

The intertemporal doctrine provides that international disputes have to be resolved in accordance with the international law that existed at the time the events giving rise to the dispute took place, not at the time the matter is adjudicated.1 It is thought to be impermissible to apply current standards to events that occurred in the past when different legal principles and rules were the norm. This doctrine applies as much to acquisition of colonies as to other international issues.2 So in order to determine whether a European nation acquired sovereignty over an overseas territory, it is necessary to determine and …

Neurobiological Determinants Of Psychopathy And Their Ethical Implications In Capital Punishment Cases, Brooklyn Lewis

Williams Honors College, Honors Research Projects

This literature review examines the relationship between the neurobiological determinants of psychopathy and the ethical implications of applying capital punishment to violent offenders. Drawing on research from neuroscience, psychology, and criminal justice, the paper explores how structural and functional differences in brain regions associated with emotional processing, impulse control, and moral reasoning are linked to psychopathic traits. The review synthesizes findings on how these neurobiological factors may contribute to an increased risk of violent behavior while emphasizing that such influences are not deterministic. The paper further analyzes how neuroscientific evidence is interpreted within legal contexts, particularly in relation to assessments …

Private Prosecution And The State, Anna Arons

Faculty Publications

The modern family regulation system is paradigmatically public. In the common account, the state plays a monopolistic role. It decides which families to investigate and which to prosecute, which families to surveil and which to separate, and which services and benefits to provision for families entangled in the system. Yet, this public family regulation paradigm obscures the role of private prosecution. Nearly half of states permit private individuals to initiate dependency prosecutions. In these cases, private prosecutors allege that parents have neglected or abused their children and seek state intervention on the fundamental right to family integrity.

This Article surfaces …

Education Theory Integrated In Business Law, Robin Boyle-Laisure

Faculty Publications

Education theorists have identified three pedagogical techniques that enhance student learning and retention of knowledge, namely, scaffolding, interleaving, and schema-building. These techniques help students transfer knowledge from short-term to long-term memory, where it is best retained for future use. Scaffolding involves part-task sequencing and whole-task sequencing. By interleaving tasks, professors present steps out of order or new material before the prior material is fully understood. Assisting students in developing schemas can help them store their knowledge in long-term memory. This article explains and explores these techniques as applied in an undergraduate business law course. The appendices provide detailed exercises that …

The Right To Seek Joy, Tyler Rose Clemons

Faculty Publications

Within the past three years, roughly half of American states have restricted access to gender-affirming medical treatment for children. In this article, I argue that these bans violate transgender children’s right to liberty guaranteed by the Fourteenth Amendment’s Due Process Clause. I do so by excavating the Framers’ understanding of liberty as the right to seek joy. Rooted in the philosophies of John Locke and Epicurus, the Framers understood liberty as the right to make important life decisions according to one’s subjective preferences without undue interference from the government. Based on this understanding, I develop a new framework for substantive …

Abuse Of Contract: A Proposal For A New Cause Of Action, Miriam A. Cherry

Faculty Publications

With the growth of online commerce and the platform economy, many companies are including provisions in their online terms and conditions that extend far beyond what reasonable consumers would expect. Some terms and conditions purport to bind customers to separate contracts in future transactions that have little to do with the first contract. Other boilerplate purports to cover family members of the customer who created an account. Some retailers have argued that people shopping in their brick-and-mortar stores are subject to terms and conditions because those shoppers had at some point previously created an online account. For example, Disney argued …

Treatment Sentences, Evelyn Malavé

Faculty Publications

One of the most common mandates of a non-incarceratory sentence is to submit to treatment. Across the criminal legal system, from problem-solving courts to probation, millions of defendants sentenced to non-incarceratory sentences—including people not diagnosed with a substance abuse disorder—are required to attend drug treatment programs. After decades of policies that criminalized drug use, non-incarceratory sentences that match people with treatment may appear to be a step forward—or at least not the most pressing problem.

But criminal law scholarship has not fully reckoned with the harms of treatment sentences, including the harms of mandated treatment itself. Analysis of treatment sentences …

Systemic Racism As Negligence, Taifha Natalee Alexander

Faculty Publications

(Excerpt)

If negligence doctrine can hold polluters liable for foreseeable toxic harm, should it not also hold schools liable for the racial toxins their policies foreseeably cause? Negligence serves as a critical doctrinal vehicle for redressing harm resulting from failures to exercise care. Embedded in common law traditions, negligence doctrine has evolved significantly through application to new contexts where systemic, rather than individualized, failures produce harm. Some courts have applied negligence doctrine to an expanding range of institutional responsibilities, from medical malpractice to corporate liability. Yet, despite the doctrine’s flexibility, courts have not applied the framework to address one of …

Style And Substance: A Review Of Jill Barton's The Supreme Guide To Writing, Christina Frohock

Articles

No abstract provided.

At The Intersection Of Property And Disaster Recovery, Jeanne Ortiz-Ortiz

Faculty Publications

(Excerpt)

When disaster strikes, communities rally to meet urgent, short-term needs—food, shelter, and medical care that keep people alive and safe in the immediate aftermath. For days, we see images of flooded streets, emergency shelters, and calls to support fundraising campaigns in the media cycle. Long-term recovery after a disaster often depends on something less visible: the ability of people, especially those experiencing economic insecurity, to rebuild or return to stable, functional homes.

The outcome of this largely depends on whether families can navigate and access assistance programs like those offered by the Federal Emergency Management Agency (FEMA). Can you …

Building Shields: Accreditation, Insurance, And Public-Private Partnerships As Tools To Safeguard Critical Race Theory And Democracy In Higher Education, Taifha Natalee Alexander

Faculty Publications

(Excerpt)

Following the racial justice uprisings of 2020, universities have become increasingly vulnerable to coordinated political campaigns aimed at dismantling antiracist teaching, training, and research. These attacks, ranging from legislative bans on Critical Race Theory (“CRT”) to executive efforts to dismantle the U.S. Department of Education, expose the fragility of higher education’s role as a guardian of democratic pluralism. This Essay demonstrates that universities cannot rely solely on moral suasion or First Amendment litigation to resist these escalating, structural assaults. Instead, colleges and universities must build a multilayered legal strategy that renders the teaching of CRT and the pursuit of …

Values Primacy & Total Governance Through Activism, Carliss N. Chatman, Sergio Alberto Gramitto Ricci

Faculty Journal Articles and Book Chapters

In the aftermath of George Floyd’s murder, public companies swift-ly pledged sweeping equity commitments—only to abandon them under political and market pressure. These reversals were not aberrations. They were opportunistic, performative, and reactionary marketing responses. They expose a governance regime in which stakeholder interests are structurally reversible because they remain doctrinally optional, lacking the institutional interlock needed to create binding accountability across stakeholder roles.

This Article explores how stakeholder power is already embedded in corporate governance through interlocking initiatives grounded in shared values. Stakeholder activism—boycotts, proxy votes, viral campaigns—is not merely expressive; it is an overlooked form of governance. Drawing …

Can Federalism Protect Subnational Liberal Democracy From Central Authoritarianism?, James A. Gardner

Journal Articles

Liberal democracy is eroding rapidly around the globe, including in the United States, raising alarming questions about whether American democratic institutions will endure. Nevertheless, some have speculated that federalism may protect liberal democracy at the subnational level when the central government turns authoritarian. This article argues that such optimism is premature: there is no a priori basis on which to predict the effect of central democratic backsliding on the quality of subnational democracy. Federal theory does suggest that internal heterogeneity in basic political commitments is likely to produce an escalating pattern of severe and possibly intractable intergovernmental conflict. Empirical evidence …

Immigration Adjudication, Judicial Review, And The Uneven Incorporation Of Administrative Law Norms, John Harland Giammatteo

Journal Articles

This article examines the interaction between immigration law and administrative law. Scholars and courts regularly treat immigration as outside of, or exceptional to, the normal operation of administrative law and its norms of judicial review. Yet in the past decade, the Roberts Court has radically reshaped administrative law. This broader administrative law project has largely emphasized the primacy of the federal courts and judicial review, enlarging the putative rights of regulated parties, at the cost of agency power. Within that project, immigration adjudication is a frequent conversation partner. Immigration adjudication is used to undermine the administrative state’s claim to policymaking …

Super-Efficient Breach In Bankruptcy: Recalibrating Remedies For Contract Rejection Damages, Ishaq Kundawala

Emory Bankruptcy Developments Journal

Contract law rests on a simple but powerful premise: when a party breaches, the law protects the injured party’s expectation interest, placing them, as nearly as possible, in the position they would have occupied had the contract been performed. This principle underlies the theory of efficient breach, which tolerates economically rational breaches so long as the non-breaching party is fully compensated. But in bankruptcy, this foundation often collapses. Under section 365 of the Bankruptcy Code, a debtor may reject an executory contract, with the law treating that rejection as a prepetition breach and relegating the counterparty’s claim to general unsecured …

Insurance And Chapter 11 Bankruptcy: Is The Insurance Neutrality Doctrine Dead?, Mikaela Deleon

Emory Bankruptcy Developments Journal

Insurers have traditionally been denied “party in interest” status under the Bankruptcy Code due to the longstanding insurance neutrality doctrine. The insurance neutrality doctrine prevents insurers from challenging a chapter 11 bankruptcy plan as a section 1109(b) “party in interest” if the plan does not increase the insurance company’s liability from pre-bankruptcy levels. If none of their rights or obligations were impacted by the plan, insurance companies were previously left without a means to challenge a proposed reorganization plan. As a result, insurance companies providing liability insurance to corporations stricken with mass tort lawsuits ran the risk of becoming the …

Asbestos 2.0: A Looming Disaster At The Intersection Of Pfas Litigation And The Texas Two-Step––Even After Purdue Pharma, Tyler Sheridan

Emory Bankruptcy Developments Journal

Companies that have manufactured, processed, or sold per- and polyfluoroalkyl substances (“PFAS”), also known as “forever chemicals,” face mounting financial pressure as the number of claims against them skyrocket. With billions of dollars already allocated to settlements and new lawsuits continuously filed, liable corporations may utilize the Texas Two-Step to minimize financial risk. The maneuver would enable solvent companies to isolate PFAS liability and discard it into bankruptcy, potentially delaying and capping payouts for claimants in the process. Third-party releases have survived Purdue, leaving the forum’s ability to permanently resolve mass tort liability intact. Moreover, escalating litigation may prompt …

Law's Shifting Circles, Ela A. Leshem

Faculty Scholarship

This Article undermines two myths in American legal history: first, that the law’s circle of moral concern has steadily expanded; and second, that legal protections have always centered on human persons. As to the first, the law contains multiple, shifting circles of moral concern, expanding along some dimensions and contracting along others. As to the second, U.S. law and the English common law on which it was based have long attributed moral status to nonhuman beings and inanimate objects.

The Article shows that U.S. legislators, judges, and advocates have for centuries treated a wide range of entities as deserving of …

Why Are Executions Becoming Crueler?, Deborah W. Denno

Faculty Scholarship

Since the modern death penalty era, this country’s six execution methods have become crueler over time. This article details the execution procedures adopted across death penalty states up to the end of 2025, analyzing their societal and cultural underpinnings and explaining how they were implemented, including their shared flaws, unscientific origins and protocols, and reliance on untrained, unqualified, or unknown executioners. While legislatures and courts claim that states move from one technique to the next to enhance greater humaneness, history shows that such switches are primarily propelled by constitutional challenges to a state’s particular technique. In theory, rendering a state’s …

Should Statutory Interpretation And Contract Interpretation Be Harmonized?, Ethan J. Leib

Faculty Scholarship

This paper develops four case studies about how states have harmonized or separated their statutory interpretation regimes and their contract interpretation regimes.  After exploring the choices of Texas, Alaska, New York, and Alabama—all of which take different approaches to their lumping or splitting—the paper seeks to make state courts more aware of what their options are; to help states think about whether their commitments to formalism or contextualism make sense to apply in both domains; and to help them evaluate their meta-choices about whether to bring their interpretive regimes closer together or further apart.

Women's Work And Wealth: Measuring The Impact Of Incremental Liberations, 1850-1870, Hannah Kelly

Williams Honors College, Honors Research Projects

Using a two-way fixed effects difference-in-difference model, this project analyzes data from the IPUMS Full Count census for 1850, 1860, and 1870 at a state level for 48 states. Four models assess the impact of property laws on women's real property holdings, labor force participation, household types, and real property values.

By quantifying the impact of various legal reforms on women's economic empowerment, this project fills a gap in the understanding of the intersection between law, society, and women's economic agency during a transformative period in pre-industrial American history. These impacts can implicate the effectiveness of legislative measures in advancing …

Expanding State Tax Authority: Public And Private Sector Impacts Of Wayfair, Maxwell Pastoria

Williams Honors College, Honors Research Projects

The 2018 Supreme Court decision in South Dakota v. Wayfair, Inc. (Wayfair) overturned the longstanding physical presence rule for state sales tax collection, enabling states to enforce tax obligations on remote sellers through marketplace facilitator and economic nexus laws (Oyez, 2018). This study investigates the effects of these two post-Wayfair tax laws on state sales tax revenues, entrepreneurship, and public expenditures across all 50 states. Using a two-way fixed effects difference-in-differences (TWFE DID) framework, this research analyzes how policy adoption influenced per-capita outcomes in tax revenue, firm formation, and government spending in social services, education, infrastructure, and …

Health Care Governance And Structural Exclusion In Florida: A Human Rights Analysis Of Access For Latinx Communities, Natalie Medrano

Honors Undergraduate Theses

Access to health care in the United States is a complex system shaped by statutory programs and the discretionary powers of state governance. This thesis examines how Florida’s healthcare system structures access through administrative design, with particular attention to its impact on Latinx communities. Although formally race-neutral, Florida’s reliance on Medicaid non-expansion, managed care delivery, and complex eligibility processes produces systemic barriers that limit access for low-income populations. Drawing on the international right-to-health framework articulated in General Comment No. 14 of the International Covenant on Economic, Social and Cultural Rights, alongside Latinx Critical Race Theory (LatCrit), this study analyzes how …

Tariffs And The Progressive Fiscal Constitution, Lawrence J. Liu, Alex Zhang

Faculty Articles

For more than a century, progressive taxation has constituted the American fiscal state. A resurgent and expanding tariff regime, however, threatens that commitment to progressive distribution. Given the ongoing popularity of tariffs, this Article examines how they might be designed and administered in a way that mitigates their regressive distributive impact. The Article thus develops and assesses proposals to (1) vary tariff burdens in accordance with the consumption of imported goods, (2) reduce income- or payroll-tax burdens on lower-income households, and (3) earmark tariff revenue for specified spending programs. Although none is perfect, we seek to articulate possibilities and highlight …

Risky Business, Atinuke O. Adediran

Faculty Scholarship

Corporate law scholarship and doctrine have largely operated on the assumption that corporate shareholders are interested in financial goals, while corporate stakeholders—such as employees, consumers, and local communities—are interested in social and environmental goals, like diversity and inclusion and climate change. Because of this assumption, the law largely requires a corporation to disclose information it considers to be “financially material” to shareholders—that is significant enough to impact the company’s financial position—including factors it considers to be financially risky.

Financial materiality is so embedded in corporate law doctrine that even if an issue is about social and environmental concerns, financial materiality …

The Regulation Of Technological Innovation In Financial Services: A Comparative Approach With Respect To Digital Assets And Artificial Intelligence, Howell E. Jackson, Katja Langenbucher

Faculty Scholarship

No abstract provided.

The International Order, International Law, And The Definition Of Security, Harlan G. Cohen

Faculty Scholarship

As economic security has seemingly moved to the center of American and European foreign policy, both the United States and the European Union have broadened their interpretation of international law rules governing security, coercion, and intervention. But these interpretations are not exactly new, echoing developing state interpretations of international law that developed states had long ago seemingly rejected. How are these once moribund interpretations of security, force, and coercion being brought back to life?

This article argues that these interpretative shifts highlight the role of the international order as an interpretative mechanism within international law. Borrowing from the work of …

Transparency As A Regulatory Duty, Olivier Sylvain

Faculty Scholarship

This symposium piece offers a simple survey of transparency measures addressed to deepfakes and other related consumer harms, as well as the constitutional problems they present.

Book Review Of Political And Social Control In China: The Consolidation Of Single-Party Rule, Carl F. Minzner

Faculty Scholarship

No abstract provided.

Activist Judicial Restraints, Michael Gentithes

Akron Law Faculty Publications

For decades, jurists and scholars have touted the virtues of judicial restraint—a characteristic of judges who only adjudicate issues they are competent to resolve, thereby avoiding political thickets and preserving their authority. Judicial restraint is ingrained in justiciability doctrines that emanate from Article III of the Constitution. When applied evenhandedly, standing requirements, the political question doctrine, and prudential manageability prerequisites to litigation help the Court maintain an appropriately restrained docket.

The Roberts Court falls well short of this restrained ideal in potentially dangerous and destructive ways. The Court has changed justiciability doctrines into “activist judicial restraints” that, rather than avoiding …