Public Law and Legal Theory Commons^™

Religious Covenants, Nicole Stelle Garnett, Patrick E. Reidy, C.S.C.

Journal Articles

When religious institutions alienate property, they often include religiously motivated deed restrictions that bind future owners, sometimes in perpetuity. These “religious covenants” serve different purposes and advance different goals. Some prohibit land uses that the alienating faith community considers illicit; others seek to ensure continuity of faith commitments; still others signal public disaffiliation with the new owners and their successors. Some religious covenants are required by theological mandates, but many are not. This paper examines the phenomenon of religious covenants as both a private-law and public-law problem. We conclude that most, but not all, of them likely are enforceable, and, …

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Negotiating Social Change: Backstory Behind The Repeal Of Don't Ask, Don't Tell, Linell A. Letendre, Hal Abramson

University of Florida Journal of Law & Public Policy

This Article is about negotiating social change in the largest U.S. institution, the Military and its five Services. Inducing social change in any institution and society is notoriously difficult when change requires overcoming clashing personal values among stakeholders. And, in this negotiation over the repeal of Don’t Ask, Don’t Tell (DADT), clashing values over open service by gays and lesbians were central to the conflict. In response to President Obama’s call to repeal DADT, the Secretary of Defense selected a Working Group to undertake studies, surveys and focus groups to inform the debate. During the nine-month process of gathering a …

Educational Malpractice: Is It A Tort Whose Time Has Come? An Exploratory Mixed Methods Study, Todd A. Demitchell, Stefanie King, Terri A. Demitchell

University of Florida Journal of Law & Public Policy

Peter Doe, a high school student with an average IQ and an average attendance record, graduated from high school in 1972. His reading ability at the time of graduation was approximately at the fifth-grade level. Peter Doe brought suit against the school district and its employees for negligence resulting in his inability to read and write. He sought damages of $500,000. The plaintiff claimed that these actions resulted in depriving him of basic academic skills thus limiting his lifetime stream of earnings. In other words, he asserted that he was injured because the school district and its “teachers negligently or …

A Call For Constitutionalizing The Affirmative Insanity Defense, Mia C. Larson

University of Florida Journal of Law & Public Policy

This Note sheds light on varied insanity defense formulations which fail to adequately protect the constitutional rights of people deemed legally insane. An emerging trend has arisen whereby states adopt alternative approaches to legal insanity focused solely on the mental state of a criminal offender at the time the offender committed a crime. Rather than operating as an excusal from criminal liability, this alternative approach offers insanity as mitigating evidence to be used at the sentencing phase of trial. The result is that a person deemed not guilty in a state employing the affirmative defense could be deemed guilty in …

Don't Make A Run For It: Illinois V. Wardlow In Light Of Police Shootings And The Nature Of Reasonable Suspicion, Edith Perez

University of Florida Journal of Law & Public Policy

Fear and distrust of law enforcement have been longstanding in the Black community. Those in power have fueled this fear and distrust through brutal beatings, harassment, and general discrimination. The reasonable suspicion standard is problematic because it allows for unchecked biases to guide interactions between police officers and minorities, creating incentives to persecute. But today, a new tool exacerbates this problem and makes escaping the violence nearly impossible, deepening the contempt, and spreading its adverse effects: the media. Using a hierarchy of “if it bleeds it leads,” the capitalistic fear-based media targets the anxieties and biases of Americans, creating a …

Legal Ethics For Government Lawyers: Confronting Doctrinal Gaps, Andrew Martin

Articles, Book Chapters, & Popular Press

Despite the recent growth in the Canadian literature on legal ethics for government lawyers, the leading conceptual models have yet to be applied to resolve many of the most important legal questions facing government lawyers. In this article, I identify four key situations where the obligations of government lawyers as lawyers appear to clash with their obligations as public servants. I provide both a doctrinal analysis of how the current law applies in those situations and proposals for how the law can be clarified and improved. This analysis both provides much needed guidance to government lawyers and promotes a greater …

Reforming State Bail Reform, Shima Baradaran Baughman

Faculty Scholarship

We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention …

A Theory Of Constitutional Norms, Ashraf Ahmed

Faculty Scholarship

The political convulsions of the past decade have fueled acute interest in constitutional norms or “conventions.” Despite intense scholarly attention, existing accounts are incomplete and do not answer at least one or more of three major questions: (1) What must all constitutional norms do? (2) What makes them conventional? (3) And why are they constitutional?

This Article advances an original theory of constitutional norms that answers these questions. First, it defines them and explains their general character: they are normative, contingent, and arbitrary practices that implement constitutional text and principle. Most scholars have foregone examining how norms are conventional or …

The Public Law Paradoxes Of Climate Emergency Declarations, Jocelyn Stacey

All Faculty Publications

Climate emergency declarations occupy a legally-ambiguous space between emergency measure and political rhetoric. Their uncertain status in public law provides a unique opportunity to illuminate latent assumptions about emergencies and how they are regulated in law. This article analyzes climate emergency declarations in Canada, the United Kingdom, Australia and New Zealand. It argues that these climate emergency declarations reflect back a set of paradoxes about how emergencies are governed in law—paradoxes about defining the emergency, its relationship to time and who gets to respond to the emergency and how. These paradoxes productively complicate long-held and over-simplified assumptions about emergencies contained …

International Law: Corpus Linguistics And Ordinary Meaning, Eric Talbot Jensen, James Lee Rex

Faculty Scholarship

The application of corpus linguistics to clarify ambiguity or provide insight in legal interpretation is quickly gaining recognition within the United States, especially among the judiciary. However, very little has been done to assess its application to international law, particularly as a means of assisting international courts and tribunals. In the international legal system—where ambiguity inevitably arises from the great diversity of linguistic and cultural systems throughout the world—the norm for understanding contested terms within a treaty or agreement is to look for the “ordinary meaning to be given to the terms of the treaty in their context and in …

Reasoning About Faith: On The Religious Lawyer, Rakesh K. Anand

FIU Law Review

The religious lawyer is an individual who understands his or her religious practice to be a way of life and who, within the context of a commitment to his or her religious practice as such, takes up the professional practice of law. Unquestionably, this individual is worthy of our respect, given the seriousness with which the individual approaches his or her faith. At the same time, it is precisely this seriousness that points us in a direction that is perhaps difficult for many to go. Specifically, because a way of life represents a total activity of the self from which …

Is Extraterritoriality The Golden Ticket Out Of Corporate Liability? How The Modern-Day Willy Wonka’S Chocolate Factory Evaded Liability Under The Alien Tort Statute In Nestlé V. Doe, Alyaa Chace

Touro Law Review

The Alien Tort Statute (“ATS”) was drafted as part of the Judiciary Act of 1789. It was intended to provide federal courts with the jurisdiction to hear civil actions brought by foreign plaintiffs for torts committed in violation of the law of nations or other United States treaty. After a two-hundred-year dormancy period, the Statute has since been revived and become a vehicle by which foreign plaintiffs seek redress for environmental and human rights offenses carried out on foreign soil, often at the hands of United States corporations. However, the Supreme Court continues to limit the reach of the Statute, …

Reconsidering The Legal Regulation Of The Usage Of Administrative Policies, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

Policies are of great practical importance in administrative governance. Yet, doctrinal and normative ambiguities remain in the law regulating the usage of administrative policies. Specifically, there exists a well-known tension between the rule against fettering and the legitimate expectations doctrine. Approaching this issue from a normative angle and drawing upon T.R.S. Allan’s reflections on the rule of law, the paper will argue that a unified legal approach governing the usage of administrative policies, premised on the normative objective of furthering the rule of law as the rule of reason, will go a significant way towards resolving this tension and addressing …

Tailoring Ex Machina: Perspectives On Personalized Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

In their book Personalized Law: Different Rules for Different People, Omri Ben-Shahar and Ariel Porat propose a radical approach to lawmaking: using of big data and artificial intelligence to tailor legal dictates to the individual histories and characteristics of persons they affect. This essay critically discusses that proposal.

It first examines normative differences among the Ben-Shahar and Porat’s proposals for personalizing laws. There are important differences, for example, between using big data and artificial intelligence to tailor how a private legal power can be exercised to the capacities and interests of the power-holder and imposing different speed limits on …

Statutory Interpretation From The Outside, Kevin Tobia, Brian G. Slocum, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

How should judges decide which linguistic canons to apply in inter­preting statutes? One important answer looks to the inside of the legisla­tive process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional …

A Modern Reconceptualization Of Copyrights As Public Rights, Matthew L. Pangle

Vanderbilt Journal of Entertainment & Technology Law

Copyright law is at a crossroads. In the wake of Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, the patent, copyright, and intellectual property regimes as a whole, are primed for a modern reconceptualization. At the heart of this reconceptualization is the distinction between public rights, those vindicated by public offices for the public good, and private rights, those vindicated by private citizens for their exclusive government-granted monopolies. Thanks to Oil States, patent rights now exist in two separate bundles-—a public bundle including the patent grant itself and a private bundle consisting of a patent owner’s exclusivity rights. …

Defining “Substantial Burdens” On Religion And Other Liberties, Sherif Girgis

Journal Articles

The U.S. Supreme Court seems poised to restore free exercise exemptions from neutral laws that burden religion. But pivotal Justices have asked how to narrow religious exemptions. This Article proposes answers with wide-ranging implications for the future—and limits—of free exercise, and for the doctrine on other liberties.

To date, courts applying exemptions from “substantial burdens” on religion have tended to narrow protections to the detriment of religious minorities. But many fear that expanding exemptions would over-protect Christians in culture-war cases.

Striking a balance will require a sound definition of “substantial burdens.” But the current, strongly pro-religion Court will not impose …

Equality And Closure: The Paradox Of Local Citizenship, Kenneth A. Stahl

Texas A&M Journal of Property Law

In Bourgeois Utopias, a cultural history of suburbia in America, Robert Fishman states the fundamental paradox about the suburbs: “[H]ow can a form based on the principle of exclusion include every-one?” The promise of the American suburb was that every middle-class family would be able to own a home with a yard, but this egalitarian ideal was illusory because what made the suburbs appealing was precisely what it excluded, namely everything having to do with the city—its congestion, political corruption, and most importantly, its racial diversity. And so, as suburbia was mass-produced and made avail-able with cheap low-interest loans …

Questions Of Citizenship And The Nature Of "The Public", Sarah Schindler

Texas A&M Journal of Property Law

This essay is taken from a talk given at a symposium discussing Professor Ken Stahl’s book, Local Citizenship in a Global Age.1 It is not a traditional book review, but rather a series of musings inspired by the ideas in the book.

Professor Stahl’s new book, Local Citizenship in a Global Age, addresses a number of important issues, many of which have been the focus of my prior work: the existence of boundaries, borders, and the spaces in between; who we include in those boundaries and who we exclude; public space, private space, and the lines between them; …