Public Law and Legal Theory Commons^™

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

The Persistence And Uncertain Future Of The Public Interest Class Action, David Marcus

Lewis & Clark Law Review

Cases against government defendants for large-scale injunctive relief often turn on the class certification decision. From the modern class action’s early days until 2011, these “public interest class actions” enjoyed marked success in the federal courts. This procedural favor seemed to lapse when the U.S. Supreme Court decided Wal-Mart Stores, Inc. v. Dukes. The decision tightened the requirements that govern class certification in public interest cases. In Wal-Mart’s immediate wake, several courts of appeals vacated certified classes in important structural reform lawsuits. This litigation seemed to face a tough road ahead.

But the public interest class action has persisted. In …

A Relational Analysis Of Enterprise Obligations And Carbon Majors For Climate Justice, Sara L. Seck

Articles, Book Chapters, & Popular Press

A coherent theory of climate justice must answer the question of “who owes what to whom, and why?” In this paper I consider this question with a focus on the contribution of business enterprises, in particular the ‘carbon majors’, to climate injustice. I will first introduce a relational approach to legal analysis, drawing upon the work of feminist and vulnerability theorists, Indigenous feminist theorists, and feminist corporate and international law theorists. This relational approach confronts the dominant yet unacknowledged prevalence of the bounded autonomous individual of liberal thought in diverse areas of law and policy, and offers a method not …

Creative And Responsive Advocacy For Reconciliation: The Application Of Gladue Principles In Administrative Law, Andrew Martin

Articles, Book Chapters, & Popular Press

A s a response to the estrangement and alienation of Indigenous peoples from the Canadian justice system, Gladue principles are central to reconciliation in sentencing and other criminal law contexts. However, the role of Gladue principles in administrative law more broadly remains uncertain. In this paper, I argue that the factors underlying Indigenous peoples’ estrangement and alienation from the justice system indicate estrangement and alienation from the administrative state itself, and thus Gladue principles appropriately apply in administrative law contexts. Using the results of a comprehensive search of reported decisions by tribunals and by courts on judicial review, I analyze …

From Attorney General To Backbencher Or Opposition Legislator: The Lawyer’S Continuing Duty Of Confidentiality To The Former Client, Andrew Martin

Articles, Book Chapters, & Popular Press

This note uses a recent incident from Manitoba to reflect on the professional duty of confidentiality owed to the Crown by a former Attorney General as lawyer. The duty of confidentiality survives the lawyer-client relationship. As a fiduciary, the lawyer cannot disclose or use the client’s confidential information for her own benefit or the benefit of a third party, or against the client. These obligations constrain the former Attorney General in her conduct as an opposition legislator and suggest that she should not accept an appointment as Justice critic for her caucus. While parliamentary privilege protects the former Attorney General …

Cognitively Enhanced Humans As Both Warfighters And Weapons Of War, Carolyn Sharp

University of Florida Journal of Law & Public Policy

With the advent of neuromorphic computing, artificial intelligence and machine learning can now behave in a human-like manner by analyzing information and responding with subjective reasoning. And when this informed decision-making process is combined with brain-computer interfaces (BCIs), not only could a neuromorphic BCI take direction from the brain, but it could also observe its complexity and use that information to incorporate new knowledge and capabilities into the brain itself as it exploits the plasticity, or adaptability, of the brain. This combination of biological and technological intelligence could lead to the development and delivery of thoughts/outputs that are powerful enough …

Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada Jd, Phd

Indiana Journal of Law and Social Equality

No abstract provided.

There’S Nothing Worse Than Losing To A Girl: An Analysis Of Sex Segregation In American Youth Sports, Julia Konieczny

Indiana Journal of Law and Social Equality

No abstract provided.

California Board Of Accountancy, Thomas Burke, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Families Belong Together: The Path To Family Sanctity In Public Housing, Mckayla Stokes

Northwestern Journal of Law & Social Policy

In its 2015 landmark civil rights decision in Obergefell v. Hodges, the Supreme Court finally held that the Equal Protection and Due Process Clauses of the United States Constitution guarantee same-sex couples’ marital equality. The Court’s unprecedented declaration that the right to marry is a fundamental right under the Due Process Clause strengthened married couples’ right to privacy because it subjects government actions infringing on marital unions to heightened scrutiny. The Supreme Court has the option to minimize the impact of Obergefell by interpreting the right to marriage very narrowly—as only encompassing the right to enter into a state-recognized union …

The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?

Northwestern Journal of Law & Social Policy

No abstract provided.

Private Law Remedies And Public Law Standards: An Awkward Statutory Intrusion Into Tort Liability Of Public Authorities, Margaret Allars

FIU Law Review

No abstract provided.

Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

The phenomenon of “sticky boilerplate” causing inefficient contract terms to persist exists across a variety of commercial contract types. One explanation for this failure to revise suboptimal terms is that the key agents on these transactions, including attorneys and investment bankers, are short sighted; their incentives are to get the deal done rather than ensure that they are using the best terms possible for their clients. Moreover, these agents face a first mover disadvantage that deters unilateral revisions to inefficient terms. If agency costs are indeed driving the stickiness phenomenon, we expect that the pace of revision will vary across …

Distributive Justice And Rural America, Ann M. Eisenberg

Faculty Publications

Today’s discourse on struggling rural communities insists they are “dying” or “forgotten.” Many point to globalization and automation as the culprits that made livelihoods in agriculture, natural resource extraction, and manufacturing obsolete, fueling social problems such as the opioid crisis. This narrative fails to offer a path forward; the status quo is no one’s fault, and this “natural” rural death inspires mourning rather than resuscitation. This Article offers a more illuminating account of the rural story, told through the lens of distributive justice principles. The Article argues that rural communities have not just “died.” They were sacrificed. Specifically, distributive justice …

Department Of Managed Health Care, Taylor C. Brewer, Rayne Brown, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Medical Board Of California, Angela O’Hara, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

The Opioid Crisis As Health Crisis, Not Criminal Crisis: Implications For The Criminal Justice System, Haley Hrymak

Dalhousie Law Journal

The criminal justice system’s response to the opioid crisis exacerbates risks faced by people using drugs and is harmful to public health. Interviews with 11 interviewees including defence counsel, probation officers, and public interest lawyers and advocates revealed three key challenges of working in the criminal justice system during the opioid crisis. First, there is a lack of understanding of addiction within the criminal justice system. Second, as a result of the opioid crisis, fentanyl trafficking sentencing decisions in British Columbia emphasize the need for lengthier prison sentences, which disproportionately affects people who use substances. Third, the conditions on bail …

The Implications Of Federalism For The Regulation Of Federal Government Lawyers, Andrew Flavelle Martin

Dalhousie Law Journal

The implications of Canadian federalism for the regulation of lawyers for the federal government are largely overlooked in the literature and case law. This article argues that employees of the federal government can practice law without being licensed by the corresponding provincial law society (or any law society). However, if they happen to be licensed by a law society, they can be disciplined by that law society—unless and until Parliament adopts legislation immunizing them from law society discipline. The article also considers the possibility that Parliament could create a separate bar for federal government lawyers. It concludes that some form …

Public Law In Canada, Richard Haigh

Articles & Book Chapters

No abstract provided.

Legal Theory In Relation To Public Law, Richard Haigh

Articles & Book Chapters

No abstract provided.

The Shrinking Constitution Of Settlement, David E. Pozen

Faculty Scholarship

Professor Sanford Levinson has famously distinguished between the "Constitution of Settlement" and the "Constitution of Conversation." The former comprises those aspects of the Constitution that are clear, well established, and resistant to creative interpretation. The latter comprises those aspects that are subject to ongoing litigation and debate. Although Americans tend to fixate on the Constitution of Conversation, Levinson argues that much of what ails our republic is attributable, at least in part, to the grossly undemocratic and "decidedly nonadaptive" Constitution of Settlement.

This Article, prepared for a symposium on Levinson's coauthored book Democracy and Dysfunction, explains that the Constitution of …

Symmetry's Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Michigan Law Review

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial …

Stone Monuments And Flexible Laws: Removing Confederate Monuments Through Historic Preservation Laws, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This essay is a comment on an article by Jess Phelps and Jessica Owley, Etched in Stone: Historic Preservation Law and Confederate Monuments, published last year by the Florida Law Review. Contrary to their claims, historic preservation law does not seriously impede the removal or contextualization of Confederate memorials. The tangled and toxic heritage they signify does. The law rather creates the context within which parties contend about the meaning and continuing value of these monuments. Preservation law is not so much “etched in stone,” as a living requirement that we collectively, carefully address what remnants of the past …

Double Jeopardy’S Dual Sovereignty: A Tragic (And Implausible) Lack Of Humility, Stephen E. Henderson, Dean Strang

Faculty Articles

The core proposition of the Fifth Amendment’s Double Jeopardy Clause is as intuitive as it is straightforward. After all, if a state could prosecute someone despite her previous conviction or acquittal, then the scope of punishment would be unlimited and its threat unending—the sort of proposition only a tyrant could love. Yet, in Gamble v. United States, the Supreme Court once again blessed a dual sovereignty exception that permits just such duplicative prosecutions. We hardly are the first to question this rule, but we submit the Court’s most recent primary mistakes were two. First, the Court began from a …

Of Constitutional Commissions And Expert-Led Interpretation During Processes Of Constitutional Change, De Maartje Visser

Research Collection Yong Pung How School Of Law

In an 1816 letter, Thomas Jefferson expressed himself in favour of including a provision in the constitution that would prescribe its regular upkeep. “[E]ach generation”, the Founding Father wrote, ought to be able to revise the constitu- tion “every nineteen or twenty years”, so it could “be handed on, with periodical repairs, from generation to generation, to the end of time.” As we know, his advice was not heeded: the U.S. Constitution is notoriously difficult to change, with the longest interval between two amendments running to slightly more than six decades. Closer to home, the Singapore Constitution similarly does not …

Evolution And Revolution: The Remedial Smorgasbord For Misleading Conduct In Australia, Elise Bant, Jeannie Marie Paterson

FIU Law Review

No abstract provided.

Nationwide Injunctions, Russell L. Weaver

FIU Law Review

No abstract provided.

Just A Minute, Isn’T That De Minimis: California Should Not Burden Or Require National Employers To Compensate Employees For De Minimis Off-The-Clock Work Activities, Alan Persaud

FIU Law Review

No abstract provided.

The Water Fountain—A True Story, Teresa Reid

University of Florida Journal of Law & Public Policy

No abstract provided.