Jurisprudence Commons^™

Dead Men Tell No Tales: Arkansas’S Grave Failure To Honor Its Constituents’ Postmortem Quasi-Property Right, Mckenna Moore

Arkansas Law Review

It is doubtful that Hulon Rupert Austin woke up on the day of March 7, 1986 and expected it to be his last. March 7 was a typical day—a workday—that started with a simple drive to a job site with his co-worker. A day that began so unremarkably ended with his co-worker looking up from where he was working to see “Austin lying on the ground.”

The High Price Of Poverty In Arkansas’S Courts: Rethinking The Utility Of Municipal Fines And Fees, Madison Miller

Arkansas Law Review

The opposite of poverty is not wealth. It is justice. Beginning in the 1980s, a "trail of tax cuts" led to budget shortfalls and revenue gaps throughout the United States. These budgetary problems resulted in many cities and towns shifting their burden of funding courts and the justice system at large "to the 'users' of the courts, including those least equipped to pay." Although "jailing an indigent person for a fine-only, low-level offense is unconstitutional," it is still an ongoing practice in many states, including Arkansas. In 1995, Arkansas passed new legislation to govern its circuit courts' collection and enforcement …

The National Popular Vote On Trial, Keaton Barnes

Arkansas Law Review

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them …

Korematsu’S Ancestors, Mark A. Graber

Arkansas Law Review

Mark Killenbeck’s Korematsu v. United States has important affinities with Dred Scott v. Sandford. Both decisions by promoting and justifying white supremacy far beyond what was absolutely mandated by the constitutional text merit their uncontroversial inclusion in the anticanon of American constitutional law.3 Dred Scott held that former slaves and their descendants could not be citizens of the United States and that Congress could not ban slavery in American territories acquired after the Constitution was ratified.5 Korematsu held that the military could exclude all Japanese Americans from portions of the West Coast during World War II.6 Both decisions nevertheless provided …

Creating Cautionary Tales: Institutional, Judicial, And Societal Indifference To The Lives Of Incarcerated Individuals, Nicole B. Godfrey

Arkansas Law Review

It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, issued the above-quoted clarion call to protect the lives of incarcerated people on May 14, 2020. At that point, the COVID-19 pandemic had brought American society to a standstill for a little more than two months, …

The “Nature” Of Seaman Status After Sanchez, Thomas C. Galligan Jr.

Louisiana Law Review

The article discusses a U.S. Supreme Court case involving welder Gilbert Sanchez who filed a complaint against his employer, Smart Fabricators of Texas LLC, after he sustained an injury at work, including information on pre-en banc proceedings and the application of seaman status jurisprudence.

I Want You To Panic: Leveraging The Rhetoric Of Fear And Rage For The Future Of Food, Iselin Gambert

Journal of Food Law & Policy

"Humanity Is About to Kill 1 Million Species in a Globe-Spanning Murder-Suicide. Only 11 Years Left to Prevent Irreversible Damage from Climate Change." Doomsday headlines like these are terrifying. But are they enough to make us act? The causes of the current climate crisis are many, but the science is clear that the meat and dairy industry shoulders much of the blame. Given the role the animal agriculture industry plays in perpetuating the climate crisis, combined with the harms the industry imposes on the animals and workers within it, politicians and governments—given their degree of power and influence—should ostensibly be …

The Right To Food Comes To America, Wendy Heipt

Journal of Food Law & Policy

The people of Maine recently exercised an opportunity no citizen of this country has ever had before: the ability to vote on whether to enshrine a right to food in their state constitution. This Essay provides an overview of Maine’s experience with food rights in order to explain how the state came to occupy this unique position.

France's Organisme De Défense Et De Gestion: A Model For Farmer Collective Action Through Standard Development And Brand Management, Christopher J. Bardenhagen, Philip H. Howard, Marie-Odile Noziéres-Petit

Journal of Food Law & Policy

Quality-based food production, often with a regional dimension, can provide farmers with new, value added markets. It can also provide consumers with access to place based high-quality products, and may benefit local economies through increased commerce. French Organismes de Défense et de Gestion (ODGs) illustrate a mode of quality-based agri-food business organization. ODGs focus on the development of production standards, as well as management of the intellectual property related to those standards. This mode, which is commonly used in Europe, has not often been used in the United States, despite its potential for regional food system development. The ODG mode …

China's Food Pagodas: Looking Forward By Looking Back?, Yifei Li, Dale Jamieson

Journal of Food Law & Policy

In this Article we provide a close analysis of the Chinese Dietary Guidelines – the Food Pagoda. Our focus on the dietary guidelines is motivated by two main considerations. First, the guidelines represent the most comprehensive, nationwide, state sponsored effort to educate the people of China about food. Like citizens in most countries, Chinese people are presented with numerous, often competing, messages from scientists, food gurus and online influencers. The dietary guidelines are different in that they are backed by an entire suite of governmental resources for nationwide dissemination through hospitals, schools, public billboards, TV and radio ads, among others. …

A Call To Replace The Apa’S Notice-And-Comment Exemption For Guidance Documents, Crystal M. Cummings

Brooklyn Law Review

Section 553 of the APA requires public “notice-and-comment” before a federal agency issues substantive rules and exempts from these procedures guidance documents that merely offer nonbinding insight and assistance on existing law. The problem of federal agencies using the notice-and-comment exemption to issue legislative rules that are legally binding has garnered considerable attention. Congressional efforts to amend the APA in response have failed and, in turn, variations have been offered on a seemingly simple fix—mandate or encourage agencies to solicit public input before issuing guidance documents. This note characterizes these proposals as overlays on the § 553(b)(A) exemption. The note …

An Ethical Gap In Agency Adjudication, Louis J. Virelli Iii

Buffalo Law Review

There is an ongoing crisis of confidence in American government. Accusations of incompetence and political self-dealing dominate news cycles as public institutions seek to combat—with varying degrees of success—the public health and economic consequences of a global pandemic. Highlighted in this struggle is the larger issue of the importance of integrity to the efficacy and legitimacy of administrative government. This is especially true for agency adjudication, as it is the form of agency action that most directly impacts individuals. Recusal—the process by which an adjudicator is removed, voluntarily or involuntarily, from a specific proceeding—is a time-honored way of protecting the …

The Public Meaning Thesis: An Originalist Theory Of Constitutional Meaning, Lawrence B. Solum

Faculty Scholarship

Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process …

Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker

Brooklyn Journal of International Law

Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …

The Temptation Of Cosmic Private Law Theory, Nathan B. Oman

Faculty Publications

It’s a heady time to be a theorist of private law. After decades of vague post-Realist functionalism or reductive economic theories, the latest generation of private law theorists have provided a proliferation of new philosophies of tort, contract, and property. The result has been a tremendous burst of intellectual creativity. While Kant and Hegel have been dragooned into debates over torts and contracts and even such supposedly wooly headed thinkers as Coke and Blackstone have been rehabilitated, there have been fewer efforts to generate natural law accounts of private law than one might expect, particularly in light of the revival …

The Powerful Problem Of Prayer At Public School Board Meetings, Amanda Harmon Cooley

Cardozo Law Review

No abstract provided.

The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke

Journal Articles

In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …

Judicial Populism, Anya Bernstein, Glen Staszewski

Journal Articles

Populism has taken center stage in discussions of contemporary politics. This Article details a judicial populism that resonates with political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists there are clear, correct answers to complex, debatable problems, treating reasonable disagreement as illegitimate. It disparages the institutions that mediate divergent interests in a republican democracy, claiming special access to the law’s clear objective meaning. And it imagines a pure, unified people locked in battle with a subversive elite.

While commentators have recognized political populism as fundamentally undemocratic, judicial populism has largely escaped recognition and …

Legal Corpus Linguistics And The Half-Empirical Attitude, Anya Bernstein

Journal Articles

Legal writers have recently turned to corpus linguistics to interpret legal texts. Corpus linguistics, a social-science methodology, provides a sophisticated way to analyze large data sets of language use. Legal proponents have touted it as giving empirical grounding to claims about ordinary language, which pervade legal interpretation. But legal corpus linguistics cannot deliver on that promise because it ignores the crucial contexts in which legal language is produced, interpreted, and deployed.

First, legal corpus linguistics neglects the relevant legal context—the conditions that give legal language authority. Because of this, legal corpus studies’ evidence about language use perversely obscures and misstates …

Team Production Revisited, William Wilson Bratton

Articles

This Article reconsiders Margaret Blair and Lynn Stout's team production model of corporate law, offering a favorable evaluation. The model explains both the legal corporate entity and corporate governance institutions in microeconomic terms as the means to the end of encouraging investment, situating corporations within markets and subject to market constraints but simultaneously insisting that productive success requires that corporations remain independent of markets. The model also integrates the inherited framework of corporate law into an economically derived model of production, constructing a microeconomic description of large enterprises firmly rooted in corporate doctrine but neither focused on nor limited by …