Public Law and Legal Theory Commons^™

Democracy In America At Work: The History Of Labor’S Vote In Corporate Governance, Ewan Mcgaughey

Seattle University Law Review

Can there be democracy in America at work? The historical division between democracy in politics and hierarchy in the economy is under strain. Hierarchical interests in the economy are shifting their model of power into politics, and yet a commitment to revive the law is resurgent. Central examples are the proposed Accountable Capitalism Act, Reward Work Act, Workplace Democracy Acts, and Employees’ Pension Security Acts. They would create a right for employees to elect 40% of directors on $1 billion company boards, a right for employees to elect one-third of directors on other listed company boards and require one-half employee …

“All Lawyers Are Somewhat Suspect”: Adolf A. Berle And The Modern Legal Profession, Harwell Wells

Seattle University Law Review

Adolf A. Berle was perhaps the preeminent scholar of the modern corporation. He was also an occasional scholar of the modern legal profession. This Article surveys his writings on the legal profession from the 1930s to the 1960s, from the sharp criticisms he leveled at lawyers, particularly corporate lawyers, during the Great Depression, to his sunnier account of the lawyer’s role in the postwar era. I argue that Berle’s views were shaped both by the reformist tradition he inherited from Louis Brandeis and his writings on the corporation, which left him convinced that the fate of the legal profession would …

The Attorney General's Forgotten Role As Legal Advisor To The Legislature: A Comment On Schmidt V Canada (Attorney General), Andrew Martin

Articles, Book Chapters, & Popular Press

In Schmidt v Canada (Attorney General), the Federal Court of Appeal interpreted a series of provisions requiring the Minister of Justice to inform the House of Commons if government bills or proposed regulations are “inconsistent with” the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights. The Federal Court of Appeal, like the Federal Court below, held that these provisions are triggered only where there is no credible argument for consistency. In doing so, both Courts relied, in part, on a separation of powers argument. They stated that the Minister of Justice and Attorney General is not …

Reckless Juveniles, Kimberly Thomas

Articles

Modern doctrine and scholarship largely take it for granted that offenders should be criminally punished for reckless acts.1 Yet, developments in our understanding of human behavior can shed light on how we define and attribute criminal liability, or at least force us to grapple with the categories that have existed for so long. This Article examines recklessness and related doctrines in light of the shifts in understanding of adolescent behavior and its biological roots, to see what insights we might attain, or what challenges these understandings pose to this foundational mens rea doctrine. Over the past decade, the U.S. Supreme …

Book Review: An Examination Of Maine's Public Beach Access, Ariel A. Hampton

Ocean and Coastal Law Journal

Many people assume that access rights to public resources are unwavering. Two Maine Supreme Judicial Court cases concerning limitations to public access to Maine beaches rebut this assumption. In his book, Maine's Beaches Are Public Property: The Bell Cases Must Be Reexamined, Professor Orlando E. Delogu challenges the modifications to public beach access that resulted from these two cases. This Review focuses on the historical and legal arguments that Professor Delogu presents as justification for the reversal of the Bell cases. Professor Delogu gives compelling reasons for his take on the Bell cases and why the State of Maine should …

Letter From The Editor, Maryann Grover

Richmond Public Interest Law Review

No abstract provided.

The Appeal Of A Repeal: Analyzing Virginia’S Self-Sabotage Of Successful Re-Entry For Drug Felons, Salaam Bhatti

Richmond Public Interest Law Review

The United States is currently engaged in a battle against poverty. There are many heads to this Hydra, but one of the most significant is the felony drug ban. The felony drug ban prohibits individuals convicted of felony drug offenses from receiving Supplement Nutrition Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF) benefits. This means that, at a time when a former inmate is most vulnerable – when they struggle to find work and support themselves post-release - the government turns a blind eye to that individual’s need, often forcing a former inmate to recidivate and do anything …

Grassroots Organizing And Medicaid Expansion In Virginia: The Lee County Chapter Of Virginia Organizing And Medicaid Expansion, Brian Johns, Rosemary Gould, Ladelle Mcwhorter

Richmond Public Interest Law Review

The ability to participate in grassroots organizing derives implicitly from the Constitution’s declaration of “We the People” and explicitly from the First Amendment’s guarantee of the right to petition the Government for redress. At Virginia Organizing, we take this grant of power very seriously as is evident from our recent grassroots organizing for Medicaid expansion in Virginia. Our work focused predominately on more rural parts of the Commonwealth where our chapter members have experienced the consequences of a lack of access to health care. By mobilizing individuals passionate about Medicaid expansion and those who suffer from the lack of it …

Aging Out: 2018 Legislation Seeking To Address Virginia’S Permanency Problem For Children In Foster Care, Valerie L'Herrou

Richmond Public Interest Law Review

Virginia has one of the highest rates of youth who “age out” of the foster care system and one of the lowest family reunification rates in the country. This is due to several factors, including that the termination of parental rights has an accelerated timeline in Virginia compared to the federal timeline. Children who age out of the system lack a sense of permanency that is critical to healthy psychological development. As a result, many such children tend to experience lower levels of educational attainment and income, and higher levels of substance use, criminal justice system involvement, and homelessness than …

Free To Bleed: Virginia House Bill 83 And The Dignity Of Menstruating Inmates, Holly Seibold, Gianna Fienberg

Richmond Public Interest Law Review

For many individuals, their monthly period is an embarrassing and stigmatizing event, but for those who are homeless or have a low income, are students, or are incarcerated, it is something much more dangerous. A lack of menstrual hygiene can lead to serious health risks including skin infections, urinary tract and bladder infections, and toxic shock syndrome. Because of the cost of menstrual supplies, though, many are prevented from adequately caring for their menstrual health. Students, the homeless and low-income, and the incarcerated are regularly confronted by a lack of access to menstrual supplies and are thus forced to use …

Virginia Pioneers Mental Health Transportation Alternative For Children Under Temporary Detention Order, Snapper Tams, Victoria Zicker

Richmond Public Interest Law Review

Children in Virginia who are experiencing a mental health crisis have traditionally been shackled while they are transported to a mental health facility for treatment. Such shackling is traumatizing for children and detrimental to their cognitive and emotional development. Shackling has been required by law enforcement personnel, the default providers of mental health transportation. However, alternative transportation options to law enforcement exist and are actively being explored in Virginia in order to de-stigmatize mental health crises and minimize trauma caused by the transportation process. The Virginia Department of Behavioral Health and Developmental Services funded a pilot program in southwestern Virginia …

If Roe Falls: Whole Woman’S Health Act As A Necessary Stop-Gap On The Way To Full Protection Of Bodily Autonomy In Virginia, Galina Varchena

Richmond Public Interest Law Review

In 2016, the Supreme Court clarified the scenarios in which an “undue burden” is imposed on a pregnant person seeking an abortion in Whole Woman’s Health v. Hellerstedt. As a result, the constitutionality of many of Virginia’s abortion regulations seems in doubt. These unconstitutional regulations include the TRAP regulation that limits the type of facilities that can provide abortions, and statutes relating to informed consent and mandatory waiting periods. Thus, the outlook following the Court’s ruling in Whole Woman’s Health looked, if not bright, then at least hopeful for reproductive rights. That changed, though, with the Court’s 2018 ruling in …

Virginia’S 2018 General Assembly Session In Review, Mollie Laird

Richmond Public Interest Law Review

The 2018 General Assembly session came on the heels of what many deemed a shocking 2017 election cycle. Democrats gained a surprising number of seats in the General Assembly, creating the need for bipartisan compromise throughout the 2018 session. It is when compromise occurred that deals were made and laws were passed to benefit Virginians. This does not mean that tensions did not flare at times. Ideological differences were certainly on display in debates surrounding Confederate monuments and gun control. But beyond ideological differences, the General Assembly was able to raise the felony-larceny threshold and to end a rate freeze …

Prefatory Matter

Richmond Public Interest Law Review

No abstract provided.

Age, Time, And Discrimination (Forthcoming), Alexander Boni-Saenz

All Faculty Scholarship

Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule or private discrimination will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact that …

Whistleblowing As A Ciceronian Moral Obligation To The State, Hailey Sylvander

Fordham Undergraduate Law Review

This Note explores the public law of whistleblowing through the lens of the Ancient Roman philosopher Marcus Tullius Cicero (106-43 BC). It first describes the current discourse on whistleblowing, justifications for whistleblowing, and a contemporary jurisprudential theory that examines those justifications. Then, the Note will explain Cicero’s theory on one’s duty to the state through acceptable public behavior, and how it relates to jurisprudence via the lens of morality. Next, the Note will apply Cicero’s theory to the case Department of Homeland Security v. Maclean to illustrate how the Supreme Court of the United States (the “Court”) has used precedent …

State Bar Of California, Madeline Rojer, Aliana Dye, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Bureau For Private Postsecondary Education, Mikaila Hernandez, R. C. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Key

California Regulatory Law Reporter

No abstract provided.

Department Of Managed Health Care, Taylor C. Brewer, Rayne Brown, Debra Jorgensen

California Regulatory Law Reporter

No abstract provided.

Medical Board Of California, Angela O'Hara, Debra Jorgensen

California Regulatory Law Reporter

No abstract provided.

Veterinary Medical Board, Christine Lambert, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Public Utilities Commission, Michael J. Melton, Marcus Friedman, Strider Kachelein, R C. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Judicial Partisanship In A Partisan Era: A Reply To Professor Robertson, Dmitry Bam

Faculty Publications

Professor Cassandra Burke Robertson’s outstanding article, Judicial Impartiality in A Partisan Era, is timely given the increasing politicization of the judiciary. The political debate and controversy around the Judge Garland nomination and the Justice Kavanaugh confirmation to the United States Supreme Court, only served to reaffirm that the judiciary is not immune from the growing political polarization in America. And it is not just senate judicial confirmation battles that have become highly bitter and partisan. Scholars writing about the substantive work of the Court have argued that it is more akin to a political body than a judicial one, and …

Techniques For Regulating Military Force, Monica Hakimi

Book Chapters

This chapter draws on the five chapters that follow—each of which describes the war powers in a single country—to identify and analyze some of the techniques for regulating this area of foreign affairs and then to reflect on the value of comparative research on it. Three basic techniques are: (1) to establish substantive standards on when the government may or may not use force, (2) to divide among different branches of government the authority to deploy the country’s armed forces, and (3) to subject such decisions to oversight or review. There is considerable variation, both across countries and over time …

Board Of Pharmacy, Stephanie Mendivil, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

California Board Of Accountancy, Thomas Burke, Debra Jorgensen

California Regulatory Law Reporter

No abstract provided.

Robot Criminals, Ying Hu

University of Michigan Journal of Law Reform

When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions. If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims.

Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability. The former is …

Committee Of Bar Examiners, Halie Turigliatti, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

The Singapore Convention And The Metamorphosis Of Contractual Litigation, Jean-Christophe Boulet

Cardozo Journal of Conflict Resolution

This article addresses the grounds provided for in Article 5 of the Singapore Convention for the refusal of enforcement of a settlement agreement or for the refusal of a settlement agreement as evidence that the dispute has been resolved. It is divided into three sections. The first section briefly places these grounds in the context of the Singapore Convention as a whole as well as the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The second section is devoted to a more detailed examination of the various grounds listed in Article 5 of the Convention, …