Law and Society Commons^™

Grasping Fatherhood In Abortion And Adoption, Malinda L. Seymore

Faculty Scholarship

Biology makes a mother, but it does not make a father. While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood. Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomy--it is easy …

Is The United States Judicial System Failing Transgender Women? A Critical Overview, Taylor J. House

Florida A & M University Law Review

This paper will discuss the rise of the transgender civil rights movement, the problems in the judicial system, and the rights that should be afforded to transgender women. In part one, I will address the LGBTQA civil rights movement led by transgender women. In part two, I will address the transphobia in the prison system. In part three, I will address the lack of visibility of black transgender issues in the current black civil rights movement. In the fourth part, I will address whether there should be certain fundamental rights given to transgender women. In the fifth part of this …

Marriage Equality: The Paralleled Progress Between Public Approval And Supreme Court Decisionmaking, Riley Erin Fredrick

Florida State University Law Review

No abstract provided.

The Ozark National Scenic Riverways And The Sagebrush Rebellion In Missouri, John W. Ragsdale Jr

Faculty Works

This article focuses on the back country-the Ozark National Scenic Riverways (ONSR) and the community around and with the rivers. It begins historically, tracing the origins and courses of stable-state, subsistence agricultural societies in the rugged hills overlooking the Current and Jacks Fork Rivers. It shows that such societies, though autonomous, are vulnerable to outside aggression. War, raiders, in­dustrial timbermen, and modern technology can shatter the environ­mental balance. Dam builders, government land managers, and tour­ism can erode internal sovereignty, custom, and self-esteem. These forces befell the Ozark highlands around the ONSR.

Out of the breakdown of land and economy, and …

The Costs Of Trumped-Up Immigration Enforcement Measures, Kari Hong

Cardozo Law Review de•novo

Currently, our country spends $18 billion each year on immigration enforcement, which is nearly $4 billion more than the combined budgets of the FBI, DEA, Secret Service, and ATF. President Trump hopes to substantially increase that annual number with his proposed heightened enforcement measures that result in more arrests, more ICE officers roaming our streets, airports, and courtrooms, more detentions, more deportations, and more wall. This essay begins by examining each of these measures that were outlined in the new executive orders and concludes that all are expensive, ineffective, unnecessary, and inhumane.

Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record, Lawrence B. Solum

Faculty Scholarship

This Essay contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows:

(1) The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice.

(2) The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of …

Causing A Racket: Unpacking The Elements Of Cultural Capital In An Assessment Of Urban Noise Control, Live Music, And The Quiet Enjoyment Of Private Property, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

I examine the tension between and the treatment of the elements of cultural capital within dynamic mixed-use spaces, and posit that Canada's current noise control and noise pollution legislation, by-laws, and case law demonstrate a hierarchical protection framework placing greater importance on the "quiet enjoyment of private property" over live music culture, where performances are often the subject of noise complaints. While the elements of cultural capital valued by those who favour the value of quiet enjoyment of private property is well represented throughout legislation, by-laws, and case law, the elements of cultural capital valued by those who favour the …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

A New Remedy For Junk Science: Article 11.073 And Texas's Response To The Changing Landscape In The Forensic Sciences., Trevor Rosson

St. Mary's Law Journal

Abstract Forthcoming.

No Appropriation Without Compensation: How Per Se Takings Of Personal Property Check The Power To Regulate Commerce., William Sumner Macdaniel

St. Mary's Law Journal

Abstract Forthcoming.

Pipe(Line) Dreams Post-Denbury Green., Nicholas Laurent, Christopher Oddo

St. Mary's Law Journal

In Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, the Beaumont Court of Appeals articulated the test that should be applied when considering whether the condemnation of private property, which would result favorably for pipeline companies, should be allowed. In Denbury, the Beaumont Court of Appeals balanced the protection of private property rights against the need for true common carrier pipeline companies to condemn private property. The court held that in order to condemn private property, a substantial public interest must exist to justify such condemnation. The Texas Supreme Court, however, reversed the decision of the Beaumont Court of …

Tx Rice V. Denbury., Thomas Alan Zabel

St. Mary's Law Journal

Abstract Forthcoming.

The English Rule - It Ain't English, And Ought Not Be American., Timothy M. Mulligan

St. Mary's Law Journal

Abstract Forthcoming.

The Demise Of Anti-Panhandling Laws In America., Natie Pilgram Neidig

St. Mary's Law Journal

Abstract Forthcoming.

The Exclusionary Rule And The Dueling Legacies Of Utah V. Streiff: Which Will Be Suppressed., Marcos Herrera

St. Mary's Law Journal

Abstract Forthcoming.

Force Majeure: How Lessees Can Save Their Leases While The War On Fracking Rages On., Allison R. Ebanks

St. Mary's Law Journal

Abstract Forthcoming.

Can Mediation Deliver Justice?, Sherif Elnegahy

Cardozo Journal of Conflict Resolution

Can mediation deliver justice? This article seeks to answer this controversial question by exploring the idea of justice through a number of perspectives, including the historical, philosophical, and religious perspectives. After reaching an understanding on the idea of justice, the article discusses two main means of delivering justice: formal justice-including an analysis of its strength and limitations-and creative justice. The article proceeds to demonstrate the relationship between mediation and justice and mediation's ability to deliver several justice outcomes, which include procedural justice, distributive justice, and restorative justice. The article concludes by highlighting the possible challenges that can accrue when attempting …

United States V. Mcintosh: Ninth Circuit Limits Federal Prosecutors From Spending To Enforce Marijuana Laws In Medicinal States., Daniel Haley

St. Mary's Law Journal

Abstract Forthcoming.

Covenants Running With The Land., Michael P. Pearson

St. Mary's Law Journal

The analysis of real covenants in wellhead contracts (e.g., gas purchasing, gathering, processing, etc.) by Texas courts has not been consistent. As a result, some bankruptcy courts are holding that a debtor in bankruptcy is not liable for a prior contractual obligation, unless the covenant is held to be a real covenant running with the land. For instance, the holding in In re Sabine Oil & Gas Corp. (Sabine I) contradicts the holdings in Westland Oil Development Corp. v. Gulf Oil Corp. and in Inwood North Homeowners' Association, Inc. v. Harris. The Sabine I court held that because the Acreage …

The Rules Of The Game And The Morality Of Efficient Breach, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Moralists have long criticized the theory of efficient breach for its advocacy of promise breaking. But a fully developed theory of efficient breach has an internal morality of its own. It argues that sophisticated parties contract for efficient breach, which in the long run maximizes everyone’s welfare. And the theory marks some breaches—those that are opportunistic, obstructive, or otherwise inefficient—as wrongs that the law should deter, as transgressions that should not be priced but punished. That internal morality, however, does not excuse the theory from moral scrutiny. An extended comparison to Jean Renoir’s 1939 film, La Règle du Jeu (“The …

The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney

St. Mary's Law Journal

This Article discusses the implications of Heritage Resources, Hyder, and several Louisiana cases on the “post-production costs” issue in gas royalty clauses, as well as the fate of implied covenants in the shale era. To better understand that issue, this Article first provides a background on the interaction of express lease clauses and the doctrine of implied covenants. This discussion reveals that implied covenants are relegated to a minor role in light of extensive express clauses in Shale Era leases because courts frequently view express or “plain” terms as barring implied covenants. The problem, however, as commentators have noted—particularly regarding …

The Executive Right To Lease After Kcm Financial Llc V. Bradshaw And A Louisiana Solution To A Texas Problem., Christopher S. Kulander

St. Mary's Law Journal

Abstract Forthcoming.

Moving Towards Harmonization Of The Food Safety Standards: Role Of The Tpp And Ttip Agreements, Ksenia A. Petrovets

Journal of Food Law & Policy

We are now less dependent on locally available food resources that we have ever been. The continuing industrialization of food production, the advancement in technologies and the rapid development of supply chains granted us the luxury of immediate access to a variety of products originating from local supermarkets all over the world. This, along with the greater level of food production industrialization, inevitably comes the rise of related food safety risks. Because of the enlargement of producing operations, an emerging safety threat in one place may result in a foodborne illness outbreak thousands of miles away from its place of …

Local And State Governments Are Taking The Stage When It Is Fda's Curtain Call - Are Local And State Governments' Safety Warnings Preempted By Federal Law?, Melissa M. Card

Journal of Food Law & Policy

Eliminated from fad diets, sworn off by celebrities, and frantically reformulated out of processed foods, added sugars have been deemed the new nutritional scoundrel. Recent studies from the American Heart Association, the World Health Organization, and the American Cancer Association demonstrate that the consumption of added sugar leads to increased risks of obesity, diabetes, heart disease, and gout. While all foods containing added sugar are deemed unhealthy, Sugary-Sweetened Beverages ("SSBs") are said to be especially toxic by the American health community, by virtue of these beverages' being excessively high in added sugar content, low in satiety, and incomplete in compensation …

Will Consumers Be In The "Dark" About Labels On Genetically Engineered And Modified Foods?, Hilary Nat

Journal of Food Law & Policy

In the 1900s, the United States began to sell genetically engineered foods. One of the first genetically engineered foods sold in the United States and approved by the Food and Drug Administration (FDA) was the Flavr Savr tomato. The tomato's genetic structure was modified to prevent softening which allowed it to ripen after being picked. In the United States, statistics demonstrate that 92% of com, 94% of soybeans, and 94% of cotton sold is genetically engineered. In addition, it is estimated that 75% of the processed foods sold in supermarkets around the United States contain ingredients that are products of …

Energy Drink Regulations: Why The Time For More Fda Authority Is Not Ripe And How States Can Protect Children Without Unjustly Infringing On Adult Autonomy, Larry D. Treat

Journal of Food Law & Policy

In December of 2011, Anais Fournier ("Anais"), a fourteen-year-old from Maryland, was at the mall with her friends when she drank a twenty-four ounce Monster energy drink. Within twenty-four hours, Anais consumed a second twenty-four ounce energy drink. Together, the two Monster energy drinks Anais consumed contained around 480 milligrams ("mg") of caffeine. A few hours after the second drink, Anais went into cardiac arrest and later died from cardiac arrhythmia. An autopsy found that caffeine toxicity caused Anais's arrhythmia and impeded her heart's ability to pump blood. As it turns out, Anais suffered from a preexisting heart condition called …

2016 China Food Law Update, Michael T. Roberts, Ching-Fu Lin

Journal of Food Law & Policy

This update of China food law builds on a unique feature for the Journal of Food Law & Policy that has been provided since the Journal's inception - separate food law updates for both the United States and European Union. "Recognizing the globalness of the modem food system, these updates have served an invaluable role in keeping scholars and practitioners abreast of the world's leading food regulatory systems." China's emergence as a developed, modem food regulatory system with the potential of being a leading food regulatory system makes sense given its position as a world economic powerhouse. China's role in …

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …

The Grace Of God In The Law Of Moses: A Second Look At Israel’S Written Code, Jeffrey S. Krause

Fidei et Veritatis: The Liberty University Journal of Graduate Research

For centuries, the Mosaic Code (“MC”) has been viewed as Israel’s prescriptive legislation, whereby Jewish leaders were to judge infractions by the “letter of the law.” This view is one which permeates both pulpit and pew alike, even in this modern era. However, recent developments in scholarship are challenging this understanding of MC, concluding instead that this “law code” was not utilized in Israelite jurisprudence, but rather as a covenant contract that worked not prescriptively in the lives of the Jews, but rather descriptively, in that it relayed the heart of YHWH to its reader. Accordingly, MC was to be …

Case Study On The Galapagos Islands: Balance For Biodiversity & Migration, Cesar E. Neira

Environmental and Earth Law Journal (EELJ)

In this comment, the author will examine the Special Organic Law of the Galapagos. To better understand the impacts of the law, the comment will examine some of the more notable provisions of the 1998 version, and a few of the amended changes in 2015. Throughout this comment, themes such as migration and preserving biodiversity will be discussed. As we will see, this notion of balancing human needs and ecosystem in the islands is not always straight-forward.