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Jurisdiction and the Moral Impact Theory of Law
Get PDFPositivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts can obtain in such communities’ absence. Under the moral impact theory, by contrast, legal facts can precede all communities with law practices. I identify a set of legal facts in private international law—the law of jurisdiction—that concerns when a community’s law practices can, and cannot, have the legal effects that the practices claim to have. This law is noncommunitarian, in the sense that it precedes the communities to which it applies. In this law’s light, the legal effects of communities’ law practices are legally coordinated (or, at the very least, can be shown to legally conflict). Although interest in, and even commitment to, a noncommunitarian law of jurisdiction has receded among private international law theorists, I argue that some well-placed questions can elicit from all of us a commitment to this law. And this commitment is a reason to believe that the moral impact theory is correct
An Interview with Eileen A. Olds
Get PDFIt\u27s your job to speak up. And then it\u27s also your job if you see things that don\u27t... feel right, to address them in some way. -- Judge Eileen Olds
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Sharp, quick-witted, and carrying a solemn charm, Judge Olds shares a strong personal narrative portraying her life as one in which she incessantly pursues justice. Her interview begins with stories of a strong sense of right and wrong in her early years. She goes on to share her rather traumatic experience of being isolated by fellow classmates during law school. Nonetheless, she and her fellow African American students (there were only four in her class) supported one another, even advocating for increased diversity among students and faculty at the law school.
As the interview progresses, Judge Olds describes her highly successful career. She touches on rejoining the law school community after many years feeling unable to return. Judge Olds describes her “Tell it to the Judge” program, about how judges are trained, what they can do to be better. She discusses advice for her younger self, and for the law school now. She finishes the interview on a hopeful note, describing the law school today as a much better institution in terms of diversity and priorities.https://scholarship.law.wm.edu/oralhist_all/1005/thumbnail.jp
Sentencing in an Era of Plea Bargains
Get PDFThe literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95% of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors—who control plea terms—as the deciders of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.
After reviewing the empirical literature on sentence variation, examining state and federal plea-bargaining rules and doctrines, and conducting some empirical analysis of our own, we conclude that neither of the competing narratives is correct. Sentencing in the United States has become a dynamic process with substantial contributions from multiple actors, not a static event controlled by any single actor.
Zooming in on judges’ contributions, we find that, contrary to much modern commentary, judges can (and do) influence plea-bargained sentences in even the most restrictive jurisdictions. Yet this judicial imprint is often obscured by formal rules that purport to exclude judges from plea negotiations. In addition, we identify a few scenarios where judges are prevented from influencing plea bargains and thus lose their traditional role as the ultimate arbiter of an individual’s sentence. In response to these findings, we propose a reform that would make the already prevalent judicial influence over the substance of plea agreements more transparent. In addition, we suggest a legal change that would eliminate scenarios where judges are legally authorized but practically unable to reject (unusually harsh) plea deals
Fueling a Hydrogen Boom: Federal and State Policies for Promoting Green Hydrogen
Get PDF“Green” hydrogen produced from renewable energy sources could play a valuable role in the energy transition. Among other things, green hydrogen’s potential as a source of carbon-free, long-term energy storage could help the nation address the intermittency-related challenges associated with growing reliance on wind and solar power. Green hydrogen also has promise as an energy-dense fuel for industries that are difficult to electrify, such as long-haul transportation and steel and fertilizer manufacturing. Recent federal actions have provided some initial government support for green hydrogen technologies, but significant policy gaps remain. States and the federal government could do much more to promote private investment in green hydrogen, and wind and solar energy incentives and programs implemented over the past decade provide useful blueprints for that important policy work. This Article highlights the unique ways green hydrogen could facilitate deep decarbonization of the U.S. energy sector and identifies specific policy strategies for accelerating the nation’s development and deployment of these promising technologies
Disaster Districts: Mid-Decade Redistricting in the Face of Climate Change
Get PDFThis Note argues that judicial and legislative efforts to constrain redistricting should incorporate legal stopgaps to allow for mid-decade redistricting in the wake of disasters that result in significant population displacement. Part I reviews how climate change is exacerbating natural and manmade disasters and the potential for these disasters to cause population displacement, particularly in the context of urbanization. Part II provides an overview of the typical redistricting process and requirements for electoral districts. It also details the debate over mid-decade redistricting, including efforts to prevent it. Part III proposes preconditions for “emergency redistricting” that judges and legislators should consider when regulating mid-decade redistricting. It then discusses how population displacement owing to disasters may drive districts out of compliance with established redistricting criteria, and concludes by noting how unrepresentative districts may complicate recovery efforts and implicate political, social, and democratic norms in the electoral process.
Emergency redistricting will not prevent the worst effects of climate change or resolve tension over mid-decade redistricting, but as both problems unfold, lawmakers should not eliminate their only tool for ensuring districts accurately reflect communities disrupted by environmental tragedy.
This abstract has been taken from the author\u27s introduction
Native American Heritage Month
Get PDFOn display in the Wolf Law Library November 2023 - March 2024.https://scholarship.law.wm.edu/libdisplays/1006/thumbnail.jp
Working Through the Supreme Court\u27s 2021 Term
Get PDFDespite the controversy surrounding the Supreme Court\u27s 2021 term, the labor and employment cases, in comparison, might seem relatively uneventful. Although there are several cases summarized below, most of them deal with relatively minor issues surrounding arbitration, or with lesser litigated statutes, such as USERRA and ERISA. This review also includes a summary of the administrative law case regarding the Environmental Protection Act because it could (and perhaps likely will) have ramifications for labor and employment law.
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This review proceeds in two additional parts. Part II of this review summarizes the opinions from the 2021 term. At the end of each summary, I provide my brief impression of the potential implications of each decision. Part III provides my perspective on what conclusions (if any) we can draw from these cases.
This abstract was taken from the author\u27s introduction
Putin\u27s Matryoskha: A War Reparations Facility for Rebuilding Ukraine
Get PDFThis Article addresses a critical, trillion-dollar question: How do we hold Russia accountable for the reconstruction of Ukraine? The nation has been devastated by Russia\u27s brutal war of aggression, with tens of thousands killed, millions displaced and its economy in shambles. The enormity of the problem cannot be overstated.
Existing proposals to support Ukraine, including many from prominent scholars, largely focus on seizing Russian assets, particularly central bank reserves frozen by sanctions. Such strategies, however, are legally problematic-- likely well beyond the scope of Presidential authority-- and financially insufficient. Moreover, while prospective new legislation could expand presidential powers, it risks new challenges, including significant constitutional considerations and potential violations of international law-- risking adverse implications for U.S. foreign policy, as well as the efficacy of global financial infrastructure.
To square this most critical circle, this Article proposes establishing a war reparations facility for Ukraine, modeled on the United Nations Compensation Commission, which paid over 325 billion of Russia\u27s frozen reserves.
Along with an actionable solution-- with immediate policy utility-- this Article raises significant normative implications, including with respect to critical issues of state responsibility following conflicts. While there is no way for Russia to truly compensate its victims, reparations may provide some modicum of justice and the means to rebuild. It is imperative for policymakers to celeritously implement this critical support for victims of a barbaric war
Tackling Discrimination in the NFL: How the Recent CTE Race-Norming Agreement Highlights the Need to Provide Broader Anti-Discrimination Protections for NFL Players Through Collective Bargaining Agreements
Get PDFChronic traumatic encephalopathy (CTE) is becoming a commonly known consequence of playing football. Many have become stunned at the effects of CTE among some of the National Football League’s (NFL) most popular players. While the NFL agreed to compensate players who have suffered the effects of CTE, they did not do so fairly. The NFL employed practices of racial-baselining cognitive brain evaluations to systemically provide Black players with lower CTE settlement payouts than their white counterparts. Though shocking, this is but one instance of the NFL discriminating against their players of color in a majority-minority league. However, settling out of court has enabled the NFL to sweep many of these controversies under the rug and enables racism to persist in this twelve billion-dollar industry. Presently, in the Black Lives Matter Era, the NFL is well positioned to disrupt this cycle and afford players more protections against discrimination. This Note suggests an addendum or revision to the present NFL and NFL Players Association collective bargaining agreement that would broaden the present language of the anti-discrimination clause. This would provide players of color both proactive protections and more remedies to recover from future instances of discrimination through a contractual remedy