Legal Studies Commons^™

Expert Governance Of Online Speech, Brenda Dvoskin

Scholarship@WashULaw

In a world of fundamental disagreements about how social media companies should govern speech, it is striking that nearly everyone agrees that online speech governance should be based on human rights. The human rights project for content moderation proposes that social media platforms align their own internal speech policies with international human rights law (IHRL). It seeks, I argue, a system of expert governance: one in which a corporate technocracy applies a set of exogenous principles imagined as objective and global. Ultimately, this governance model shifts power to experts under the illusion of empowering the people.

To support these claims, …

The Judicial Assault On The Administrative State Regulating Upheavals In The Securities Markets And Boardrooms, Joel Seligman

Scholarship@WashULaw

The most substantial change in the United States Government has been the extraordinary growth and increased complexity of the United States Government itself. George Washington initially was President of a country with a population of about four million, eleven States, and three Cabinet Departments (State, Treasury, and War). Washington’s Government had no standing army, no Social Security, Medicare or Medicaid, and no programs addressing the environment, labor, or health. In 1791, the Treasury Department had approximately 500 employees, the War Department had 12, the State Department, 8.

Today, the National Government has twenty-four Cabinet members. In 2023, there are 2.89 …

First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, John D. Inazu

Scholarship@WashULaw

This Article proposes a simpler way to frame judicial analysis of First Amendment claims: a government restriction on First Amendment expression or action must advance a compelling interest through narrowly tailored means and must not excessively burden the expression or action relative to the interest advanced. The test thus has three prongs: (1) compelling interest; (2) narrow tailoring; and (3) proportionality.

Part I explores how current First Amendment doctrine too often minimizes or ignores a meaningful assessment of the government’s purported interest in limiting First Amendment liberties. Part II shows how First Amendment inquiry is further confused by threshold inquiries …

Out Of Bounds?: Abortion, Choice Of Law, And A Modest Role For Congress, Susan Frelich Appleton

Scholarship@WashULaw

This invited contribution to a symposium on the multiple intersections of family law and constitutional law grapples with the emerging problems of jurisdictional competition and choice of law in interstate abortion situations in the wake of Dobbs v. Jackson Women’s Health Organization—as abortion-hostile states seek to impose restrictions beyond their borders and welcoming states seek to become havens for abortion patients, regardless of their domicile. Grounded in a conflict-of-laws perspective, the essay lays out the interstate abortion chaos invited by Dobbs and the threat to our federal system that it presents, given Congress’s failure to codify a national right to …

The Unabridged Fifteenth Amendment, Travis Crum

Scholarship@WashULaw

In the legal histories of Reconstruction, the Fifteenth Amendment’s drafting and ratification is an afterthought compared to the Fourteenth Amendment. This oversight is perplexing given that the Fifteenth Amendment ushered in a brief period of multi-racial democracy and laid the constitutional foundation for the Voting Rights Act of 1965. This Article helps to complete the historical record and provides a thorough accounting of the Fifteenth Amendment’s text, history, and purpose.

This Article situates the Fifteenth Amendment within the broad array of constitutional provisions, federal statutes, fundamental conditions, and state laws that enfranchised—and disenfranchised—Black men during Reconstruction. This Article then performs …

The Fourth Amendment And General Law, Daniel Epps, Danielle D'Onfro

Scholarship@WashULaw

For decades, Fourth Amendment protections have turned on “reasonable expectations of privacy.” But a new era may be dawning. There is growing interest among judges and scholars in turning away from privacy toward property or positive law as the touchstone for Fourth Amendment protections. Yet many questions remain about how that approach should work, such as where judges should look for positive law and precisely what role positive law should play in Fourth Amendment analysis.

This Article answers those questions, and in so doing lays forth a new, comprehensive theory of the Fourth Amendment. We argue that courts should interpret …

An Empirical Analysis Of Clinical Legal Education At Middle Age, Robert R. Kuehn

Scholarship@WashULaw

This article provides the first comprehensive empirical analysis of clinical legal education’s development and growth over the past fifty years. By analyzing dozens of surveys and reports on aspects of clinical legal education, including unique data developed by the authors, and comparing the results over time, this article presents a factual picture of clinical legal education’s progression from early adulthood to today’s middle age.

This article seeks to inform the present and help legal educators shape the future role of law clinic and field placement courses in the preparation of law students for the practice of law. It provides an …

A Narrow View Of Transnational Fiduciary Law, Andrew F. Tuch

Scholarship@WashULaw

Fiduciaries frequently confront transnational situations. Yet, even as people, products, and capital have become more mobile, scholars have until recently given little attention to the transnational dimensions of fiduciary law.

This chapter conceptualizes transnational fiduciary law, a term that marries the fields of fiduciary and transnational law. It identifies two primary understandings of the concept and explores their scope and possible content.

Under the first interpretation of this composite concept, the term transnational qualifies what fiduciary scholars have conventionally understood as fiduciary law. Transnational fiduciary law, on this view, encompasses the application of fiduciary law to transnational problems and situations. …

The Endgame Of Court-Packing, Kyle Rozema, Daniel Epps, Adam Chilton, Maya Sen

Scholarship@WashULaw

At several points in history, politicians and commentators have proposed adding seats to the Supreme Court to accomplish partisan ends. We explore the incentives for a political party to initiate “court-packing” and what the Supreme Court would look like in a world where political parties engage in repeated partisan court- packing. To do so, we use an Agent-Based Model and different data sources to calibrate the behaviors of Presidents, Congresses, and Supreme Court justices. We then simulate the future composition of the Court in worlds with and without court-packing. The simulations suggest that a political party with an initial minority …

Vacatur, Nationwide Injunctions, And The Evolving Apa, Ronald M. Levin

Scholarship@WashULaw

The courts’ growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern that such injunctions circumvent dialogue among the circuits, promote forum-shopping, and leave too much power in the hands of individual judges. Some scholars, joined by the Department of Justice, have argued that such judicial decisions should be limited through restrictive interpretations of the Administrative Procedure Act (APA).

This article takes issue with these authorities. It argues that the courts’ use of the APA to vacate a rule as a whole—as opposed to merely enjoining application of …

Fairness Opinions And Spac Reform, Andrew F. Tuch

Scholarship@WashULaw

This paper assesses the emerging regulatory framework for special purpose acquisition companies (SPACs). According to this framework mergers of SPACs, known as de-SPACs, must be “fair” to public (or unaffiliated) SPAC shareholders, and transaction participants face heightened liability risk for disclosure errors. In this environment, third-party fairness opinions have been regarded as a de facto requirement for de-SPACs.

A study of all fairness opinions used in de-SPACs from 2019 to 2023 shows that these opinions suffer profound methodological problems and fail in their intended purpose. To be fair to public shareholders, a de-SPAC should represent value to these shareholders of …

The Conflict Among African American Penal Interests: Rethinking Racial Equity In Criminal Procedure, Trevor George Gardner

Scholarship@WashULaw

This Article argues that neither the criminal justice reform platform nor the penal abolition platform shows the ambition necessary to advance each of the primary African American interests in penal administration. It contends, first, that abolitionists have rightly called for a more robust conceptualization of racial equity in criminal procedure. Racial equity in criminal procedure should be considered in terms of both process at the level of the individual, and the number of criminal procedures at the level of the racial group—in terms of both the quality and “quantity” of stops, arrests, convictions, and the criminal sentencings that result in …

The Right To (Unbiased) Counsel, Peter A. Joy, Kevin C. Mcmunigal

Scholarship@WashULaw

Whether a defense lawyer being biased against the accused on the basis of race and religion renders assistance of counsel ineffective is an unanswered question. One court will decide that issue when the Massachusetts Supreme Judicial Court renders a decision in Commonwealth of Massachusetts v. Dew. In this case, a court-appointed attorney, Richard Doyle, made over 20 bigoted and racist social media posts while representing his Black Muslim client, Anthony Dew. These public postings, made from 2014 through 2017, contained highly disparaging references to Muslims and Black people, including comments about Doyle’s own Black clients as “[a]ssorted thugs and bad …

Constructing The Supreme Court: How Race, Ethnicity, And Gender Have Affected Presidential Selection And Senate Confirmation Hearings, Christina L. Boyd, Paul M. Collins Jr., Lori A. Ringhand, Karson A. Pennington

Scholarship@WashULaw

In February 2022, President Joseph Biden announced his nomination of Ketanji Brown Jackson to serve as an associate justice on the U.S. Supreme Court. In doing so, he said this: “For too long, our government, our courts haven’t looked like America. And I believe it’s time that we have a Court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country at the highest level.” In the following days, Jackson’s nomination was discussed with enthusiasm, much like …

How Gender-Biased Oral Argument Interruptions Opened The Door For Chief Justice Roberts To Be A Transformational Leader, Christina L. Boyd, Sidney E. Shank

Scholarship@WashULaw

In a 2021 NYU Law School conversation with Justice Sonia Sotomayor, the Justice was asked whether she observed higher levels of interruptions of female Justices, relative to their male colleagues, during the Supreme Court’s oral arguments. Justice Sotomayor responded in the affirmative:

“Did I notice it as a dynamic? Without question . . . but I don’t know of a woman who hasn’t. Meaning, regrettably, that is a dynamic that exists not just on the court but in our society in general. Most of the time, women say things, and they’re not heard in the same way [as] men [who] …

How Racial Trauma Manifests In Black Women From Direct And Indirect Encounters With Police Brutality, Ashley Turner

Antioch University Dissertations & Theses

This phenomenological study explored Black women’s lived experiences with racial trauma stemming from direct and indirect encounters with police brutality. A total of nine participants living in Washington state participated in this study. They identified as Black, ciswomen, fluent in English, and at least 21-years-old. In-depth, semi-structured, qualitative interviews were conducted to explore participants’ experiences with police. Transcripts were analyzed using interpretative phenomenological analysis. The results consisted of the following five themes: (a) forms of police encounters, (b) influence of identity, (c) perceived reason for police brutality, (d) emotions stemming from police brutality, and (e) tactics to survive police interactions. …

The Problematic Structure Of Indigent Defense Delivery, Eve Brensike Primus

Michigan Law Review

The national conversation about criminal justice reform largely ignores the critical need for structural reforms in the provision of indigent defense. In most parts of the country, decisions about how to structure the provision of indigent defense are made at the local level, resulting in a fragmented patchwork of different indigent defense delivery systems. In most counties, if an indigent criminal defendant gets representation at all, it comes from assigned counsel or flat-fee contract lawyers rather than public defenders. In those assigned-counsel and flat-fee contract systems, the lawyers representing indigent defendants have financial incentives to get rid of assigned criminal …

A Picture Worth A Thousand Words: Factors Influencing Disability Accommodations, Alicia E. Martin

Cal Poly Humboldt theses and projects

Because not all disabilities look the same it is difficult to label a person with disabilities just by looking at them. Given that our knowledge, attitudes, and perceptions impact how we interpret our world and our willingness to act, people, including professors, may be biased toward providing accommodations for those with easily recognizable disabilities and biased against those with non-recognizable disabilities, and this may impact the disabled person’s ability to learn. This thesis aims to address whether professors’ disability-related attitudes, perceptions of accommodation reasonableness, and willingness to provide accommodations differ when the disability is recognizable (student is pictured in a …

Three Essays In Applied Microeconomics: Philly Style, Alexander Christian Marsella

Graduate Theses, Dissertations, and Problem Reports (ETD)

My dissertation analyzes several contemporary policy-based and institutional occurrences in an urban setting to help guide further advancements in reducing violence, drug overdose deaths, and other unhealthy behaviors that city governments look to curb. Several recent developments in Philadelphia offer a promising setting for studying policies that have broad implications.

Chapter 1 examines the effect of the West Philadelphia Promise Zone initiative on violent crime rates in a high-crime area of West Philadelphia, where a series of educational, public-safety, and quality-of-life improvement grants were disbursed from 2014 onward. My difference-in-differences analysis with two-way fixed effects and cluster bootstrapped standard errors …

Cheiloscopy Patterns In Individuals With And Without Parafunctional Oral Habits: A Cross-Sectional Observation Pilot Study, Emily Regan, Brenda Bradshaw, Ann Bruhn, Walter Melvin, Sinjini Sikdar

Dental Hygiene Faculty Publications

Purpose

Lip prints are unique and have potential for use as a human identifier. The purpose of this study was to observe possible cheiloscopy differences of individuals with and without parafunctional oral habits such as smoking, vaping, playing a wind instrument or using an asthma inhaler.

Methods

This IRB approved blinded cross-sectional observation pilot study collected lip prints from 66 individuals, three of which were excluded. Participants cleansed their lips, then lipstick was applied to the vermillion zones of the upper and lower lips. Adhesive tape was applied to the lips and prints were transferred to white bond paper for …