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What Is Standard Tomorrow, May Not Have Been Today: An Argument For Claiming ScèNes À Faire, Logan Sandler

University of Miami Law Review

Recent lawsuits involving the Pirates of the Caribbean film franchise and the Oscar award-winning movie The Shape of Water required courts to wrestle with the application of the decisive scènes à faire doctrine. In doing so, the Ninth Circuit exposed the doctrine’s chief pitfall: the lack of a temporal framework.
The modern scènes à faire doctrine limits the scope of what authors can claim as substantially similar by excluding the standard or stock elements in a given expressive work from copyright protection. Courts will often conclude that a contested element is scènes à faire if it can be demonstrated that …

Blackwater Rising: The Legal Issues Raised By The Unprecedented Privatization Of U.S. Military Functions, Robert D. Peltz

University of Miami Law Review

The Army has used civilian contractors to provide supplies and services to its forces in the field since the Revolutionary War. These early contractors fed the cavalry’s horses and transported supplies. Over the years, the role of the civilian contractor has dramatically evolved. Following the Vietnam War and the end of the draft, there has been an ever-increasing privatization of functions previously performed by the military.
The wars in Iraq and Afghanistan, which began in response to the September 11 attacks and have only recently started to come to a formal end, have significantly accelerated this process. As a result, …

Title 42, Asylum, And Politicising Public Health, Michael Ulrich, Sondra S. Crosby

Faculty Scholarship

President Biden has continued the controversial immigration policy of the Trump era known as Title 42, which has caused harm and suffering to scores of asylum seekers under the guise of public health.1 The Centers for Disease Control and Prevention (CDC) ordered the policy in March 2020 with the stated purpose of limiting the spread of the coronavirus into the U.S.; though, CDC and public health officials have admitted this policy has no scientific basis and there is no evidence it has protected the public.2,3 Instead, the impetus behind the policy appears to be a desire to keep out or …

No, This Isn’T Facebook’S ‘Big Tobacco’ Moment, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

The Tensions Between Healthcare Providers And Patient And Family Advisory Committees (Pfacs): A Comparative Health System Analysis Between England And Ontario, Umair Majid

Patient Experience Journal

There has been a proliferation of patient engagement (PE) in healthcare activities. However, the concept of “engagement” has existed for decades; the first Patient and Family Advisory Committees (PFACs) in North America were formed in the 1970s. These committees are an important mechanism for involving patients and family and have proliferated across the healthcare sector. However, it is unclear how or why PFACs became the predominant mechanism for PE. The objective of this comparative analysis is to review the historical context and legislative imperatives that have contributed to the proliferation of PFACs in Ontario, Canada and England, United Kingdom.

Experience …

Bolstering Juliana: Enforceability Of Environmental Claims Through International Treaty Obligations In U.S. Courts, Lindsey Laielli

St. Mary's Law Journal

Abstract forthcoming.

The Illiberalization Of American Election Law: A Study In Democratic Deconsolidation, James A. Gardner

Journal Articles

For many years, the dominant view among American election law scholars has been that the U.S. Supreme Court’s constitutional jurisprudence of democratic practice got off to a promising start during the mid-twentieth century but has since then slowly deteriorated into incoherence. In light of the United States’ recent turn toward populist authoritarianism, that view needs to be substantially revised. With the benefit of hindsight, it now appears that the Supreme Court has functioned, in its management of the constitutional jurisprudence of democracy, as a vector of infection—a kind of super-spreader of populist authoritarianism.

There is, sadly, nothing unusual these days …

Justice For Venezuela: The Human Rights Violations That Are Isolating An Entire Country, Andrea Matos

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

A Guide To The 87th Texas Legislative Session, José Menéndez, Pearl D. Cruz

The Scholar: St. Mary's Law Review on Race and Social Justice

Challenges and potential solutions during the 87th Texas Legislative session.

Here's What's At Stake In Texas Abortion Case Before U.S. Supreme Court, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Media Consolidation & Political Polarization: Reviewing The National Television Ownership Rule, Mary R. Hornak

Fordham Law Review

Local television plays an important role in the democratic society. The medium is viewed as being trustworthy, and it is accessible and uniquely situated to report on matters of local interest. Among other roles, the Federal Communications Commission (FCC) regulates firms’ ownership interests in the media through regulations that permit a certain degree of consolidation at both the local and national levels. Since 1996, Congress has mandated that the FCC regularly review broadcast media ownership regulations. Originally, this requirement mandated biennial review. In 2004, however, Congress revised the mandate, requiring review on a quadrennial basis and excluding from such review …

A Pioneer Of The Law & Society Movement: One Eyewitness’S Reflections, Jayanth K. Krishnan

Articles by Maurer Faculty

There is arguably no more seminal a figure in the field of law and society than Professor Marc Galanter. That a Special Issue featuring dedications to several leading academic lights would be hosted by the University of Chicago Law Review is especially significant in terms of Marc’s inclusion because Chicago is where Marc came of age as a student.

Professor Richard Abel, some years back, chronicled Marc’s educational journey in Hyde Park. As Abel tells it—and as Marc has told me over the years—after finishing his B.A. and while continuing to work on his master’s degree from Chicago, Marc enrolled …

Weaponizing En Banc, Neal Devins, Allison Orr Larsen

Faculty Publications

The federal courts of appeals embrace the ideal that judges are committed to rule-of-law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e., collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason—and several high-profile modern examples illustrate—that today’s en banc review could be used as a weapon by whatever party …

Binational Reflections On Pathways To Groundwater Security In The Mexico-United States Borderlands, Rosario Sanchez, Jose Agustin Brena-Naranjo, Alfonso Rivera, Randall T. Hanson, Antonio Hernandez-Espriu, Rick J. Hogeboom, Anita Milman, Jude A. Benavides, Adrian Pedrozo-Acuna, Julio Cesar Soriano-Monzalvo, Sharon B. Megdal, Gabriel Eckstein, Laura Rodriguez

Faculty Scholarship

Shared groundwater resources between Mexico and the United States are facing unprecedented stressors. We reflect on how to improve water security for groundwater systems in the border region. Our reflection begins with the state of groundwater knowledge, and the challenges groundwater resources face from a physical, societal and institutional perspective. We conclude that the extent of ongoing cooperation frameworks, joint and remaining research efforts, from which alternative strategies can emerge, still need to be developed. The way forward offers a variety of cooperation models as the future offers rather complex, shared and multidisciplinary water challenges to the Mexico–US borderlands.

Protecting Sentient Artificial Intelligence: A Survey Of Lay Intuitions On Standing, Personhood, And General Legal Protection, Eric H. Martinez, Christoph Winter

Faculty Scholarship

To what extent, if any, should the law protect sentient artificial intelligence (that is, AI that can feel pleasure or pain)? Here we surveyed United States adults (n = 1,061) on their views regarding granting 1) general legal protection, 2) legal personhood, and 3) standing to bring forth a lawsuit, with respect to sentient AI and eight other groups: humans in the jurisdiction, humans outside the jurisdiction, corporations, unions, non-human animals, the environment, humans living in the near future, and humans living in the far future. Roughly one-third of participants endorsed granting personhood and standing to sentient AI (assuming …

Chevron Flip-Flops Of A Different Sort - Understanding The Shifting Politics Of Deference, Michael E. Herz

Online Publications

Like vaccinations, voter fraud, guns, taking a knee, and, well, everything, views on Chevron deference have become not just ideologically tinged but ideologically determined. Progressives are Chevron enthusiasts; conservatives are Chevron skeptics. Chevron is under siege, and the battle lines are familiar. Yet, on its face, Chevron is politically neutral. It increases agency power at the expense of judicial power; whether that is politically helpful depends on whether your team controls the White House or if it controls the courts. Furthermore, the current ideological array has not always been the case. When Chevron was decided, the enthusiasts were …

Reifying Anderson-Burdick: Voter Protection In The Time Of Pandemic And Beyond, Keeley Gogul

University of Cincinnati Law Review

No abstract provided.

The The Universe Is On Our Side: Restoring Faith In American Public Life, Bruce Ledewitz

Ledewitz Books

In The Universe Is On Our Side, Bruce Ledewitz argues that there has been a breakdown in American public life that no election can fix - Americans struggle to even converse about politics and the usual explanations for our condition have failed to make things better. Ledewitz posits that America is living with the consequences of the Death of God, which Friedrich Nietzsche presumed would be momentous and irreversible.For a long time, God acted as the story of the meaning of our lives. America's future requires that we begin a new story by each of us asking a question posed …

Absolute Publishing Power And Bulletproof Immunity: How Section 230 Shields Internet Service Providers From Liability And Makes It Impossible To Protect Your Reputation Online, Victoria Anderson

Seattle University Law Review Online

No abstract provided.

Caring For The Souls Of Our Students: The Evolution Of A Community Economic Development Clinic During Turbulent Times, Gowri J. Krishna, Kelly Pfeifer, Dana Thompson

Articles

Community Economic Development (CED) clinicians regularly address issues surrounding economic, racial, and social justice, as those are the core principles motivating their work to promote vibrant, diverse, and sustainable communities. When COVID-19 arrived, and heightened attention to police brutality and racial injustice ensued, CED clinicians focused not only on how to begin to address these issues in their clinics, but on how to discuss these issues more deeply and effectively with their students. This essay highlights the ways in which the pandemic school year influenced significant rethinking of one CED clinic’s operations: first, the pandemic sharpened the clinic’s mission to …

No, Joe Biden And The Dems Are Not Collapsing, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Dossier: The Stateless Rohingya—Practical Consequences Of Expulsion, Fiza Lee-Winter, Tonny Kirabira

Genocide Studies and Prevention: An International Journal

The international community has been called upon to ramp up efforts to end statelessness and provided with a guiding framework of 10 Actions. This dossier presents the practical consequences of expulsion, both direct and indirect outcomes of collective violence, directed towards the Rohingyas. Touching upon the nexus between children's rights, human trafficking, and practical challenges associated on-the-ground, the dossier also discusses the imperative need for the Association of Southeast Asian Nations (ASEAN) states—collectively as a region—to take steps in fulfilling Action 7 of the Global Action Plan through the birth registration of Rohingya children as part of their existing efforts …

Sufficiently Judicial: The Need For A Universal Ethics Rule On Attorney Behavior In Legislative Impeachment Trials, Joshua E. Kastenberg

St. Mary's Journal on Legal Malpractice & Ethics

In assessing an ethics, rule-based prohibition against New Jersey governmental attorneys representing clients against the state for matters the state had previously assigned to them, the state supreme court noted: “In our representative form of government, it is essential that the conduct of public officials and employees shall hold the respect and confidence of the people.”

In the beginning of 2020, the United States Senate held an impeachment trial to determine whether former President Donald J. Trump had committed offenses forwarded by the House of Representatives. A U.S. Senate trial, much like state senate trials, is both judicial and political …

Negative Commentary—Negative Consequences: Legal Ethics, Social Media, And The Impact Of Explosive Commentary, Jan L. Jacobowitz Ms.

St. Mary's Journal on Legal Malpractice & Ethics

Connecting and sharing on social media has opened communication channels and provided instantaneous information to billions of people worldwide. Commentary on current events, cases, and negative online reviews may be posted in an instant, often without pause or thought about the potential repercussions. This global phenomenon may not only provide news of the day updates, humor, and support for those in need but also is replete with ethical landmines for the unwary lawyer. Lawyers commenting on current events, their cases, or responding to a client’s negative online review, have suffered damage to their careers. In some instances, they have even …

A Human Rights Crisis Under Our Roof, Aglae Eufracio

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

The Meaning, History, And Importance Of The Elections Clause, Eliza Sweren-Becker, Michael Waldman

Washington Law Review

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving …

How The Gun Control Act Disarms Black Firearm Owners, Maya Itah

Washington Law Review

Through 18 U.S.C. § 924(c), the Gun Control Act (GCA) outlaws the possession of a firearm “in furtherance of” a drug trafficking crime. The statute’s language is broad, and federal courts have interpreted it expansively. By giving prosecutors wide discretion in charging individuals with § 924(c) violations, the language enables the disproportionate incarceration of Black firearm owners.

This Comment addresses this issue in three parts. Part I discusses the ways early gun control laws overtly disarmed Black firearm owners. Additionally, Part I provides context for the passage of the Gun Control Act of 1968, which coincided with the backlash to …

The Place Of The Presidency In Historical Time, Robert L. Tsai

Faculty Scholarship

This Essay arises from a symposium based on Jack Balkin’s book, The Cycles of Constitutional Time, which argues that America’s constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with a centuries-old document that is desperately in need of updating. As a result, Presidents enjoy imbalanced and dangerous power to initiate legal reform or stymie it. Going forward, three dynamics are worth watching. First, noisy signals coming from performative transformation can obscure the true source and scope of legal changes initiated by a …

I Choose, You Decide: Checking The Judiciary From Within, Jeremy N. Sheff

Cardozo Law Review

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus either on what Ryan Doerfler and Samuel Moyn call “personnel reforms”—changes to the selection, appointment, or tenure of Justices—or on what they call “disempowering reforms”—changes that divert some of the judiciary’s authority to the political branches, for example via jurisdiction stripping. I propose a different—and perhaps complementary—reform, which would achieve some of the goals of both types of reform without requiring a constitutional amendment. I propose that the selection of a case for the Supreme Court’s discretionary appellate docket should be performed by a …

Article: Anti- Love Jihad Law: An Analysis Of Women’S Religious And Marital Rights, Snehal Sharma

Gender and Women's Studies Faculty Publications

In November 2020, Uttar Pradesh government enacted an ordinance – ‘Prohibition of Unlawful Religious Conversion Ordinance, 2020’. Since the ordinance has made the process of religious conversion and interfaith marriage complicated and prolonged in the state, it is commonly known as ‘anti- love jihad law’. This paper analyses and lays out the potential impact of this ordinance on inter-religious marriages, and how it conflicts with women’s religious, marital, and bodily autonomy. Here the author discusses the procedures of anti-conversion ordinance along with the Special Marriage Act (1954) and personal laws related to marriage to assess their impact on inter-religious couples …