Legal Scholarship Repository (University of Tennessee College of Law)
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Lawyers as Next Generation Wordsmiths: How Legal Research Skills Unlock the Power of Generative AI
No full textThe Constitutional Meaning of Financial Terms
No full textThe Constitution has sixty-three financial terms. These financial terms include, for instance, “compensation,” “expenditures,” “debt,” “coin,” “revenue,” “securities,” and “bankruptcies”—all of which determine the elementary building blocks of our governmental makeup. When the Supreme Court interprets the meaning of these financial terms, it does so in isolation and without a consistent framework. This Article proposes a unified framework for the interpretation of financial terms in the Constitution, comprising of two fundamental canons of construction.
First, this Article proposes that all financial terms in the Constitution should be interpreted with fiscal and monetary neutrality—interpreting financial terms in a way that does not favor one kind of economic policy over another. The Supreme Court is not the right institution to manage the economy, as it lacks the expertise to do so. Moreover, fiscal and monetary policy are governmental objects that were intended to be governed by, and are best left to, the political process. The Supreme Court should thus interpret all financial terms in the Constitution in a manner that will leave fiscal and monetary policy open for implementation by either the legislative and executive branches, or the various states, as appropriate. Second, this Article proposes that if the Supreme Court is able to avoid deciding the meaning of a constitutional financial term, and, instead, decide the relevant case on another basis (such as either federal or state law, or procedural grounds), it should do so. In other words, the Supreme Court should invoke the constitutional avoidance doctrine when facing a constitutional financial term.
Together, fiscal and monetary neutrality, coupled with the constitutional avoidance doctrine, provides a consistent framework for the Supreme Court’s treatment of financial terms that serves both the intended meaning of these terms and their continued utility in today’s modern economy
Judicial Review in Public and Private Governance
No full textIn Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court limited judicial deference to universities. In West Virginia v. EPA, the Court reduced deference to administrative agencies. In Coster v. UIP Cos., Inc., the Delaware Supreme Court narrowed deference to boards of directors, proclaimed a new standard of judicial review, and then seemingly retracted it. Common to these constitutional, administrative, and corporate law cases is unpredictability, uncertainty, and incoherence in the use and application of substantive standards of review. The resulting disarray is explicitly acknowledged by the very judges that formulate these standards of review—and those acknowledgments are evenly spread across the political map: Justice Sotomayor described constitutional standards of review as “perplexing;” Delaware’s Chancellor McCormick proclaimed that “the struggle is real” in response to a development in corporate standards of review; and Justice Scalia attested that constitutional law’s tiers of scrutiny are “no more scientific than their names suggest.”
This Article develops a comprehensive theory that remedies the uncertainty, unpredictability, and incoherence of the courts’ substantive standards of review. To that end, the Article advances a novel approach: it draws upon and synthesizes the lessons from judicial review carried out in both public and private governance contexts. While constitutional and administrative law, on the one hand, and corporate law, on the other, may appear to be far removed from each other, the role of judicial review in both is similar—it requires balancing among competing and overlapping sources of authority. The Article adopts this unified perspective to uncover and offer a remedy for the systemic shortcomings that plague our system of judicial review. Specifically, it shows that courts have created a haphazard conflation of standards of review, types of scrutiny, and kinds of deference. This conflation engendered doctrines that erroneously categorize standards of review on the basis of degree rather than kind. To fix this misclassification and the resulting incoherence, the Article looks under the hood of the substantive standards of review and provides a full conceptual and normative guide for the administration of claim-of-fact, scienter, and action scrutiny, and the corresponding epistemic, moral, and institutional deference. This Article also draws the distinction between independent and auxiliary standards of review and introduces the widespread, yet unacknowledged, use of scrutiny modifiers
US State Privacy Legislation Tracker
No full textThe International Association of Privacy Professionals (IAPP) founded in 2000 is a not-for-profit association. The IAPP Westin Research Center actively tracks the proposed and enacted comprehensive privacy bills from across the U.S. to stay informed of the changing state privacy landscape. This information is compiled into a map, a detailed chart identifying key provisions in the legislation, and links to enacted state comprehensive privacy laws.
The chart identifies fourteen provisions that commonly appear in comprehensive privacy laws to break into two categories - consumer rights and business obligations - Although many of the proposed bills will fail to become law, comparing the key provisions helps break down how privacy is developing in the U.S
Lobbying by Brief: Unveiling the Dominance of Amicus Lobbying in the Development of Business Law
No full textThis Article uncovers the pervasive and significant impact of business law Amicus Lobbying, a strategic tactic whereby lobby groups have commandeered the amicus curiae filing process in state courts to shape business law according to their interests.
The Article makes three primary contributions to the literature. First, it presents the only comprehensive dataset of amicus curiae filings in business law cases. This hand-collected dataset encompasses nearly all business law amicus curiae filings from 2005 to 2022 in the key jurisdictions of New York, California, Delaware, Texas, and Nevada. Second, it reveals a striking empirical finding: lobby groups account for 67% of all amicus curiae filings in the dataset, with a high rate of success in persuading courts to adopt their positions. Finally, the Article provides a normative assessment of Amicus Lobbying in business law and proposes policy recommendations designed to ensure a more balanced representation of stakeholder interests.
By shedding light on this understudied phenomenon, this Article aims to stimulate critical discourse on the intersection of lobbying, judicial decision-making, and business law formation. It offers valuable insights for scholars, practitioners, and policymakers engaged in the ongoing debate over the appropriate role and influence of interest groups in shaping legal doctrine
2024 Graciela Olivárez Latinas in the Legal Academy (GO LILA) Workshop
No full textProfessor Sherley Cruz was an invited speaker for the Graciela Olivarez Latinas in the Legal Academy (GO LILA) Plenary on Teaching. She discussed how Latinas in the academy are navigating “hot topics” in higher education
Employer-Sponsored Reproduction
No full textThis Article interrogates the current and future role of employer-sponsored health insurance in reproductive justice, revealing the impact that employers’ coverage choices have on access to reproductive care and the legal infrastructure that prioritizes employer choice over individual autonomy. Over half of the population depends on employers for health insurance. Laws regulating employer plans give employers exceptionally wide latitude to decide what reproductive care services to cover---including services like abortion, contraception, and infertility treatment. In their role as health care funders, employers pursue interests which often conflict with employees’ interests and the aims of reproductive justice: to enable autonomous decisions about whether and when to reproduce and to raise children in safe and supportive circumstances. Employers often balk at covering services related to conceiving and bearing children, which they view as costly to them both as employers and insurers. While some employers’ plans cover contraception and abortion, which may prevent the costs of pregnancy and additional dependents, many other employers object to covering these services. The legal infrastructure validates employers’ choices across this wide spectrum, subordinating individuals’ autonomy to their employer’s economic interests. Decoupling health care access from employment is necessary to bolster reproductive justice. But the most effective means of decoupling---public option and single-payer public benefits---raise tough questions about reproductive exceptionalism. The Hyde Amendment and decades of other compromises have excluded reproductive care from major reforms to expand public coverage. Shifting the third-party payment role from employers to governments does not truly remove the threat, so progressive health reform risks sacrificing reproductive justice to the cause of universal benefits. This Article illuminates how vigilantly centering reproductive justice in single-payer reform proposals can make those efforts more feasible and durable