11929 research outputs found
Sort by
Background Principles In the Law of Takings
Get PDFThe Supreme Court appears to be on a mission to enhance the scope of liability under the Takings Clause, the result of which could be the chilling of federal, state, and local regulation. However, the Court has acknowledged that there is no takings liability when, under “background principles,” the property owner lacked the very right she is claiming the government has taken via regulation. The rationale for, and hence proper scope of, the background principles exception to takings liability is opaque in the case law. This Article offers three possible rationales for the background principles exception that could guide courts and help them to make more tenable decisions: an originalist rationale, a cultural consensus rationale, and an actual notice rationale. The arguments for and against these rationales are explored using contemporary property rights debates involving public access to beaches, evictions of tenants, and preservation of wildlife habitat on private land. The courts cannot be expected to clearly and consistently demarcate the public/private divide in property law in an unimpeachably rigorous manner, but they can and should do better
Pro-Natalism in Probate Law
Get PDF“Pro-natalism” is a term that has been variously used to describe any and all government policies that favor birth, babies, children, families, and population growth, as well as more focused laws that incentivize childbirth; burden, ban, or criminalize abortion and/or contraception; and otherwise disfavor the childless. Whether and to what extent U.S. law is or should be pro-natalist is central to current and ongoing debates about reproductive rights and the deeply vexed question of when life begins. A robust legal feminist literature has aimed to identify and critique pro-natalist law and policy, particularly in forms that constrain the autonomy of those who may become pregnant. Some such laws may even amount to compulsory maternity. This literature has also explored the relationship between pro-natalism and gender- and sex-based inequality more broadly.
This Article breaks new ground by identifying pro-natalism in a completely different area of law: the law of decedent’s estates. Rather than incentivizing reproduction as such, pro-natalism in probate law undermines autonomy through rules that privilege and naturalize the parent-child relationship as the proper site of post-mortem property transfer. Prior literature has explored the misuse by probate courts of both formalities law and the law of undue influence to favor dispositions within the family and disfavor less traditional plans. This Article, drawing on cases and statutes from more than forty states, focuses both more narrowly, on the parent-child relationship specifically, and more widely, taking in several aspects of the law of both intestate succession and wills. Intestate succession is an estate plan by default, not chosen by the decedent; but in the law of wills, testamentary freedom and autonomy are loudly proclaimed. Yet a review of interested witness purging statutes, the law of testamentary capacity, rules for resolving ambiguous language in wills, anti-lapse statutes, the law of pretermission, and the undue influence case law, reveals deep and pervasive pro-natalist bias. Taken together, these familiar components of probate law codify and perpetuate ideas about the connections between parents and their children that are also central to current debates about reproductive freedom and autonomy in intimate life. Uncovering pro-natalism in probate law is therefore part of the larger project of understanding how pro-natalism undermines autonomy in areas of law apparently far removed from reproductive rights
Network Capabilities in Land Use and Disability Law
Get PDFOur communities must be made safe and easy to navigate by people with disabilities and by those who are seeking to age in place. This requires us to do land planning and zoning in a cost-conscious way that empowers a diverse population to readily participate in community life. Accomplishing this goal involves working at the intersection of land use law and disability law. This means we must work at the intersection of competing legal frameworks, one based on the exercise of the sovereign police powers and the other based on the prevention of discrimination under civil rights law.
The fundamental problem is one of land use law regulating places and uses on the ground, while disability law regulates the prevention of discrimination as people move through the spaces and places of community life. These competing interests and legal frameworks reveal a tension between land use law and disability law. Thus, our task is to determine how best to organize the law to mediate this tension and to improve accessibility infrastructure community-wide.
In addressing the relationship between land use and disability, we must consider three primary methods for conceptualizing disability. The first is the “medical model,” the second is the “social construction” model, and a third, suggested in this Article, is a “network capabilities” model. The network capabilities model frames disability in terms of the built environment and focuses on understanding human capabilities from a land use perspective—that is, in relation to an integrated system of property infrastructure, assistive technology, and inclusive design. This method addresses disability as a regulatory matter focusing on public health, safety, and welfare. It balances concerns for accessibility with pragmatically achievable land planning goals
The Impact of Inter-American Human Rights System: Transformations on the Ground
No full textThe Inter-American System of Human Rights (IASHR) is certainly a source of innovation in human rights law and policy. However, uncertainty reigns over its true legal, political, and social effects as many decisions face serious problems of compliance. To better grasp the System\u27s effects, this book broadens the focus from compliance to impact as the key criterion of effectiveness. Thus, The Impact of the Inter-American Human Rights System: Transformations on the Ground can reveal the IASHR\u27s deep and multifaceted effects, not least by embedding a common law of human rights.
Outlining the IASHR\u27s historic path and contemporary practice, this book shows legal, political, and social effects with respect to the main problems that trouble the Americas. Though most of these certainly continue to exist, the System is having a transformative impact on them on the ground, though with huge differences between issues and countries. These achievements as well as the variations should be of interest to academics, judges, and policymakers in Latin America as well as other regions undergoing similar stress, such as Central and Eastern Europe or Africa.
The Impact of the Inter-American Human Rights System brings together leading scholars in international and constitutional law, social sciences, and international relations to present a systematic and critical analysis of the impact of the IASHR in the various fields of its activity. These include issues of internal conflicts, transition to democracy, rights of vulnerable groups, social rights, the environment, digital rights, and the accountability of private actors. The book also offers evidence-based proposals to further enhance the transformative impact of the Inter-American System that could be taken up by courts and policymakers at the national, Inter-American, and global levels.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1419/thumbnail.jp
UCLA Law report on How Election Could Effect IVF
No full textThe UCLA Center on Reproductive Health, Law, and Policy has published a report on How this Election Could Affect Access to IVF. Authored by Cary Franklin, Melissa Goodman, and Amanda Barrow, the report analyzes how the Republican presidential platform in support of personhood is fundamentally at odds with support for IVF
An Affirmative Approach to the Supreme Court\u27s Major Questions Doctrine & Chevron Skepticism
Get PDFIn light of the Major Questions Doctrine and the U.S. Supreme Court’s broader retrenchment from Chevron, which for forty years has dictated that in the face of statutory ambiguity courts will defer to reasonable agency interpretations, difficult questions arise for agency officials. For example, as the U.S. Department of Housing and Urban Development (HUD) considers options for implementing the Federal Fair Housing Act, some scholars have cautioned against running afoul of the Court’s recent jurisprudence and have argued for a relatively conservative approach to rulemaking, focused on voluntary incentives for compliance.
In this Essay, I disagree and argue for a mandatory approach that penalizes jurisdictions that do not comply with strong fair housing rules. I make this argument for two primary reasons. First, under the terms of the Major Questions Doctrine as currently defined by the Court, and in a post-traditional Chevron world in which less deference is afforded to administrative discretion, a voluntary incentive-based approach is no more immune from being struck down than a mandatory one. Second, building on recent social movement literature, it is not clear that losing at the Supreme Court would be more detrimental to the cause of furthering long-term fair housing goals in the United States than conservatively trimming regulatory sails. Drawing on administrative constitutionalism, I argue that this is far from a call for lawlessness by agency officials, but rather fortifies democratic and checks-and-balances features of our political system
Defining Use in Commerce : The Supreme Court\u27s Evolving Extraterritorial Application of the Lanham Act
Get PDFOn June 29, 2023, the Supreme Court redefined the scope of the extraterritorial impact of the Trademark Act of 1946, also known as the Lanham Act (the “Act”). Overturning the ruling by the Tenth Circuit, the Court narrowed the focus of the Act to solely domestic uses in commerce. While the Court acknowledged that it had interpreted the statute in a manner that granted Congress expansive power over foreign conduct, it stated that the broad language of the Lanham Act does not indicate international application. By instituting newfound principles on congressional authority under the Lanham Act, U.S. trademark registrants can seek protection under the Act when the infringing activity occurs inside U.S. borders.
This Comment will discuss the legislative history interpreting the extraterritorial application of the Lanham Act in light of the recent Supreme Court decision Abitron Austria GmbH v. Hetronic International, Inc. Further, this Comment will argue that the McBee framework properly accounts for a core purpose of the Act, preventing consumer confusion. Lastly, this Comment will recommend that on remand the lower court should consider whether there were infringing uses in U.S. commerce under the R-R Nabisco framework, and that Congress should clarify what is meant by “commerce” under the Lanham Act
Recent Administrative Law Developments: SEC v. Jarkesy
No full textThe second panel will address Securities and Exchange Commission v. Jarkesy. In Jarkesy, the Supreme Court held that “the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties against him for securities fraud.” Participants: Jennifer Dickey, U.S. Chamber Litigation Center Jeffrey Lubbers, American University Washington College of Law Christopher Walker, University of Michigan Law School Moderator: Matthew Wiener, University of Pennsylvania Carey Law Schoo
Freedom to Traumatize Children?: Unreasonable Publicity and Non-Celebrity Children’s Right to Privacy
No full textThis Note examines the significant privacy risks faced by children of celebrities, referred to as “non-celebrity children,” who are often subjected to invasive scrutiny and exploitation by the media and paparazzi due to their parents’ fame. The publication of these children’s personal identifying information—such as their names, photographs, and other private details—without consent arguably constitutes unreasonable publicity, as it exposes non-celebrity children to harm without any justifiable public interest. The Note critiques the inadequacies of current U.S. privacy laws, which fail to sufficiently protect these vulnerable children from nonconsensual disclosure of their private information. It calls for extending legal protections, specifically the privacy-based tort of unreasonable publicity, to prevent the publication of non-celebrity children’s personal information while still allowing other types of publication, advocating for a balance between the freedom of the press and the right to privacy. This would allow the media to continue reporting on public figures while safeguarding the well-being of non-celebrity children, ultimately reducing children’s exposure to harmful paparazzi behaviors and the various harms posed by public exposure