Law Commons^™

303 Creative For Everyone?, Mark Satta

West Virginia Law Review

Does the holding in 303 Creative v. Elenis give businesses open to the public a constitutional right to refuse to provide expressive services for interracial couples’ weddings, interfaith couples’ weddings, or for couples’ weddings in which one or both partners are disabled? As indicated by questions raised during oral arguments, this is one of the troubling new legal questions created by the Supreme Court’s 303 Creative decision where the Court held that a Colorado web design business had a First Amendment free speech right to refuse to provide wedding website services for same-sex couples’ weddings. Understandably, both the Court’s conservative …

Front Matter

West Virginia Law Review

No abstract provided.

Litigating Loper Bright: Interpretive Challenges And Solutions For The Post-Chevron Era, Eric R. Bolinder

West Virginia Law Review

This Article arrives at a critical juncture in Administrative Law and comprehensively answers two burning questions about Loper Bright Enterprises v. Raimondo, the case that overturned Chevron deference. First, what did Loper Bright change about review of agency action? Second, how should lower courts implement the decision? This Article engages in a first-of-its-kind, exhaustive review of the major circuit court decisions citing Loper Bright and analyzes how influential judges, scholars, and justices have characterized the impact of the decision. The Article defines what role Skidmore “deference” and the major questions doctrine should play in judicial review—while seriously questioning the long-term …

Foreshadowing The "Stop Campus Hazing Act": Education, Prevention, And University Liability, Gregory S. Parks, Victoria Surati

West Virginia Law Review

On December 23, 2024, President Joseph R. Biden signed into law the Stop Campus Hazing Act (the “SCHA”). The SCHA amends the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. § 1092(f), a subsection of the Higher Education Act of 1965 (the “Clery Act”). The SCHA defines “hazing” and “student organization,” expands the current Annual Security Reporting requirements, calls for a new form of reporting, and requires policies relating to hazing. It also requires each covered institution of higher education to publish a policy statement regarding hazing awareness and prevention programs that includes a …

Asylum Eligibility: A Circuit Split Between The Second And Fourth Circuits Based Upon Death Threats Rising To The Level Of Persecution Per Se, Taylor Cochran

West Virginia Law Review

Asylum eligibility requires applicants to satisfy a three-pronged set of requirements in order to be granted admission into the United States. In a July 2024 decision, the Second Circuit court issued a decision that challenged a line of precedent established by the Fourth Circuit—specifically examining whether death threats rise to the persecution threshold set by the Immigration and Nationality Act (“INA”). The Second Circuit now holds that the receipt of death threats alone is insufficient to establish persecution, thereby making alien petitioners who have received such threats ineligible for asylum or related forms of relief from removal. In contrast, the …

"Tik Tok" On The Clock: It's Time To Amend Section 230, Mackenzie G. Howe

West Virginia Law Review

The Communications Decency Act (“CDA”), enacted in 1996, was designed to support the rapid growth of the Internet, advancing access to political information, educational resources, culture, entertainment, and news. However, Section 230 of the CDA includes a key provision that grants nearly absolute immunity to online platforms such as Facebook, X, and TikTok. This provision states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Despite the Supreme Court’s apprehension to reexamine Section 230, the Third Circuit took a novel approach to potentially …

“Small” Voices, Big Wins: Analyzing Remedies In Children’S Climate Cases, Maria Antonia Tigre

Sabin Center for Climate Change Law

Children’s climate litigation has emerged as a powerful tool to address the climate crisis, with young plaintiffs around the world taking governments and corporations to court to demand climate action. This Article examines successful cases — those in which relief sought by the applicants was fully or partially granted — across five continents, providing an “around the world” perspective on the evolution and impact of youth-led climate litigation. Focusing on landmark cases in Australia, Colombia, South Africa, South Korea, and the United States, this analysis highlights the arguments presented by young plaintiffs and the judicial reasoning that supported the relief …

Reasoning From Injustice, Robert L. Tsai

Michigan Journal of Race and Law

In a series of lectures at Yale Law School, the Harvard political theorist Judith Shklar critiqued leading models of justice as overly abstract and lacking a realistic account of the social dynamics that perpetuate injustice. In this essay, Professor Tsai builds on Shklar’s account of injustice as a social phenomenon by offering a structural reading of key literary texts that explore the nature of legal injustice—from the Book of Job to Harriett Beecher Stowe’s Uncle Tom’s Cabin and Frederick Douglass’s The Heroic Slave. A close reading of these texts permits us to flesh out Shklar’s observations and “give injustice …

(Re)Birth Of A Nation: Reconstruction’S Unfinished Business, Zanita E. Fenton

Michigan Journal of Race and Law

The irony, alluding to the title of the 1915 silent movie Birth of a Nation, seeks to make conspicuous the counter-stories that more authentically account for the “birth” and development of American society. Ku Klux Klan-sponsored propaganda designed to evoke hyper-racist fearmongering and perpetuate sexual paternalism over White women, the plot from Birth of a Nation reflects the paradigmatic race-bait: relentless pursuit of a White woman by a Black man. This storyline was fictionalized, culturally unrealistic and deliberately omitted the very real sexual exploitation of Black women and girls. Birth of a Nation parallels Constitutional history that marginalizes supplemental …

An In-Depth Criticism Of Shaw V. Reno, Katherine M. Perez-Oviedo

Michigan Journal of Race and Law

If I have learned one thing from my semester taking Critical Race Theory, it is that the United States Supreme Court has repeatedly issued decisions that directly impede on remedial efforts to address past racial discrimination. When the question of “how can we use the law to instill social change?” is proposed in class discussion, it is difficult to imagine a world in which the Court would support the progressive measures suggested.

Uncovering Red Flags In The Silver State: Recognizing And Expanding The Corporate Duty Of Oversight In Nevada, Daren Dunaway

Nevada Law Journal

No abstract provided.

Build, Buy, Or Both?: On The Antitrust Laws' Supposed Preference For "Internal Growth" Over Acquisitions, Geoffrey A. Manne, Justin (Gus) Hurwitz

Nevada Law Journal

This Article challenges recent claims by antitrust enforcers that the U.S. antitrust laws embody a preference for “internal” or “organic” growth over external expansion through acquisition. It begins by examining the modern use of this claim in speeches, enforcement actions, and the 2023 Merger Guidelines issued by the Federal Trade Commission and Department of Justice. It then considers the legislative history of the 1950 Celler-Kefauver and 1976 Hart-Scott-Rodino Acts, which are frequently cited as showing congressional support for internal growth. Careful reading of these Acts, however, shows that Congress’s central goal was to close a loophole regarding asset acquisitions, and …

Immigration Detention Expansion By Stealth, Denise Gilman

Nevada Law Journal

No abstract provided.

Foreword, Pey Woan Lee

Singapore Law Journal (Lexicon)

No abstract provided.

Acknowledgements, Ee Ing Ong

Singapore Law Journal (Lexicon)

No abstract provided.

The Law On Deposits In Singapore, Tiong Min Yeo

Singapore Law Journal (Lexicon)

This article traces the development of the law of deposits in Singapore and reviews the restatement of the law in the 2024 landmark decision of the Court of Appeal in Li Jialin v Wingcrown Investments Pte Ltd, as well as some of the issues left open by the decision. It is argued that while the decision has clarified that deposits are not subject to the penalty rule but instead subject to the common law test of reasonableness—with the practical consequence that, with clear drafting, contracting parties can rely on the validity of reasonable deposit clauses without the complication of …

A Settlement By “Any Other Name”: Evaluating The Sustainability Of Settlement Mechanisms, Dorcas Quek Anderson

Singapore Law Journal (Lexicon)

Private settlements have been consistently encouraged by the Singapore civil justice system. Depending on the context, the settlement may take on many forms, including consent orders and settlement agreements. This begs the question of whether the exact form of settlement matters, or whether a settlement “by any other name” suffices. This article proposes the concept of “sustainable settlements” – comprising the measures of ease of enforcement, finality, and confidentiality – to holistically appraise the effectiveness of settlement mechanisms. The assessment of six settlement mechanisms using these measures clearly indicates that not every mechanism is equally sustainable. Exploring settlement amidst the …

Where Singapore Meets Asean: Shaping Insolvency Reform For Micro And Small Enterprises, Lovein Leying Sui

Singapore Law Journal (Lexicon)

Given the economic dependence on micro and small enterprises (MSEs) in the ASEAN region, the MSE insolvency regime is of paramount regional importance. Evidence indicates that the ASEAN region has prioritised the improvement of such a regime, especially after the financial instability following the COVID-19 pandemic. This paper explores how trends in ASEAN MSE insolvency can inform Singapore’s insolvency reforms to improve MSE access and efficiency, while also considering broader implications for the region.

The Guilty Plea Discount: An Elaboration On Singapore’S Guidelines, Genieve Zhi Yi Wu

Singapore Law Journal (Lexicon)

Over the past two decades, a defining feature of Singapore’s sentencing regime has been the creation of structured sentencing methodology, with the aim of ensuring broad consistency and fairness across offenders. The exercise of judicial discretion in sentencing has largely been guided by statutory frameworks and guideline judgments. However, beyond the legislature and judiciary, an inter-agency body named the Sentencing Advisory Panel has also been formed to issue persuasive but non-binding guidelines. This article focuses on the first set of guidelines issued by the Sentencing Advisory Panel in 2023, concerning the sentencing of accused persons who plead guilty. It explains …

Revisiting Letters Of Credit And The Enforceability Of Sanctions Clauses: Case Comment: Kuvera Resources Pte Ltd V Jpmorgan Chase Bank, N.A., Bing Feng, Keith Law

Singapore Law Journal (Lexicon)

This article is a case commentary on the recent Singapore Court of Appeal decision of Kuvera Resources Pte Ltd v JPMorgan Chase Bank, N.A. [2023] 2 SLR 389. It begins with a brief review of the structure of documentary credit transactions before setting out the judgments by the High Court and Court of Appeal. The commentary then examines how both courts rationalised letters of credit within the traditional framework of unilateral contracts, before scrutinising the current position of sanctions clauses within letters of credit. It disagrees with the Court of Appeal’s hesitance towards accepting such clauses, noting that the unilateral …

1 Front Matter, Smu Lexicon

Singapore Law Journal (Lexicon)

Front matter with cover page, title page, title verso (copyright page) and table of contents.

How Mediators And Lawyers Can Use Ai: A Practical Video Guide, John Lande

Faculty Publications

This article explains why mediators and lawyers increasingly need to use artificial intelligence (AI) tools in their work.  It introduces a video that offers practical guidance for mediators and lawyers on using AI to enhance planning, help clients make better decisions, and improve efficiency.  It includes a basic introduction to AI, guidance on getting good results and managing risks, and demonstrations of RPS Coach, a specialized AI tool.  The article provides links to the video, PowerPoint slides, and a transcript of the demonstrations.

By The Numbers, 2024-2025, Dee J. Kelly Law Library

Documents & Reports

A compilation of data and statistics highlighting the activities and services of the Dee J. Kelly Law Library at Texas A&M University School of Law for 2024-2025.

Realizing Nepa’S Reasonable, Productive, And Enjoyable Harmony: The Fiscal Responsibility Act’S Amendments And Implications For Practitioners, L. Sheldon Clark, Catherine E. Kanatas, Maxwell C. Smith

Michigan Journal of Environmental & Administrative Law

The National Environmental Policy Act (NEPA), the “Magna Carta” of environmental protection, serves two important purposes: providing (1) decision makers and (2) the public with a federal agency’s assessment of the impacts that may occur from its proposed or selected course of action before the agency acts. Despite frequent criticism about NEPA reviews causing costly project delays, NEPA’s procedural requirements and framework had remained unchanged for more than 40 years. That all changed with the Fiscal Responsibility Act of 2023 (FRA). The writing on the NEPA wall is now very clear: agencies must now produce shorter NEPA analyses with a …

Noise Law, Joshua Ulan Galperin

Michigan Journal of Environmental & Administrative Law

The rumble of traffic, the drone of air conditioners, the blast of construction equipment. These are the mundane sources of noise pollution that we all experience but rarely think about. Or, if we do think about noise pollution, we don’t think of it as a central piece of federal environmental law. This Article, however, demonstrates that noise law is, or was, central to American environmental law, and it offers insights into how environmental protection and administrative governance work today.

In the 1970s, during the height of environmental activism and policymaking, lawmakers recognized noise as a serious pollutant alongside issues we …

Reclaiming Interpretation: Psgs, Asylum Law, And The Post-Loper Bright Landscape, Andrew Elkins

Michigan Journal of Environmental & Administrative Law

The Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo marked the end of Chevron deference, reshaping the framework that courts must use when reviewing agency interpretations of statutes. This Note examines the consequences of that doctrinal shift in the context of U.S. asylum law, where statutory ambiguity and agency discretion have long played a central role. Focusing on the “particular social group” (PSG) ground for asylum, this Note argues that Loper Bright requires courts to reclaim primary responsibility for interpreting asylum statutes. It analyzes how Chevron deference previously empowered the Board of Immigration Appeals to issue binding interpretations …

California Public Defense Workloads And Staffing, Malia N. Brink, Pamela R. Metzger, Andrew L.B. Davies, Cynthia G. Lee

Deason Center Reports

This report assesses the current workloads and staffing of California public defense providers. The report concludes that California’s public defense attorneys are almost universally burdened by workloads that far exceed nationally recommended standards. Additionally, compared to district attorneys’ offices in the same jurisdictions, public defender offices typically have 20-45% fewer attorneys.

This report also details how public defense providers in California also lack the appropriate support staff – investigators, social workers, paralegals, and administrative assistants – necessary to efficiently and effectively represent their clients. At their current workload and staffing levels, public defense attorneys simply cannot do all that their …

Reconciling Tenure And Faculty Accountability, Stuart Chinn

West Virginia Law Review

Part of the very identity of the American university is its insulation from society—a crucial contributor, at least in some instances, toward facilitating the search for knowledge and the disruption of established orthodoxies. Yet American higher education does not exist and cannot function separately from societal pressures. This is most obviously true in the context of public institutions that directly rely on state governmental entities for financial support and that may be subject to some mechanisms of control by governmental actors or their appointees. But it is also obviously true in the context of private institutions that may rely on …

The Defamation-To-Bankruptcy Pipeline In The United States And Around The World, Christopher D. Hampson

UF Law Faculty Publications

It has never been easier to ‘go viral’. With nothing more than a microphone, a smartphone, and some computer software, an influencer in today’s media landscape can reach millions. But that ease comes with risk: defamation lawsuits are on the rise, sending content creators to bankruptcy courts with judgments that far exceed everything they own. Last year, I analysed this trend in American law, which I call the ‘defamation-to-bankruptcy pipeline’, in Defamation, Bankruptcy & the First Amendment, published in the Journal of Free Speech Law.

Are You The Sum Of Your Data? Appropriation Of Digital Persona As Appropriation Of Likeness, Lyrissa Barnett Lidsky

UF Law Faculty Publications

A review of Zahra Takhshid's article, Data as Likeness, 112 Geo. L. J. 1161 (2024).