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An Introduction to Law, Law Study, and the Lawyer\u27s Role (4th ed. 2023)
No full textThis unique book is designed to introduce non-lawyers to what law is and how it is interpreted and made, and to prepare prospective law students for law school. Although primarily intended for those interested in going to law school, it is also very useful for those who simply want a working knowledge of how the American legal system actually works. The text is highly pragmatic, helping the reader understand not just theory but the realities of how law works and what lawyers actually do to assist clients in the real world. To that end, it contains a sample legal problem along with the necessary legal materials to address it and an illustrative answer.https://scholarlycommons.law.wlu.edu/fac_books/1175/thumbnail.jp
Democratizing Abolition
Get PDFWhen abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.
Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us to strike a balance between liberty and security—as if more of one requires less of the other—an abolition democracy acknowledges that people are not free if they are insecure in their necessities. Reconstructing American society into this life- and democracy-affirming order will come only with great effort and cooperation. This Article examines the shortcomings of past attempts at liberation and proposes strategies informed by their lessons. This blueprint for such a transformation calls on us to democratize abolition and inject it into all aspects of our society
Deserving Life: How Judicial Application of Medical Amnesty Laws Perpetuates Substance Use Stigma
Get PDFTo combat the continued devastation wrought by the opioid crisis in the United States, forty-eight states have passed medical amnesty (or “Good Samaritan”) laws. These laws provide varying forms of protection from criminal punishment for certain individuals if medical assistance is sought at the scene of an overdose. Thus far, the nascent scholarly conversation on medical amnesty has focused on the types of statutory protections available and the effectiveness of these statutes. To summarize, although medical amnesty laws have helped combat drug overdose, the statutes are replete with arbitrary limitations that cabin their life-saving potential.
This Note extends the dialogue on medical amnesty in two ways. First, it examines how judges, in applying these laws, can either frustrate or promote their life-saving purpose. Second, this Note connects the conversation on medical amnesty laws to the broader context they have entered—namely, the United States’ troubled history with the criminalization of addiction.
Medical amnesty laws reflect a legislative interest in health over punishment. Today, substance use disorder is recognized as a medical, neurological issue and the overdose crisis is recognized as a public health phenomenon. This Note argues that, both in statutory language and judicial application, gaps in the medical amnesty response stray from this reality and instead reflect the stigmatizing, racist normative view promoted during the War on Drugs—that substance use is a moral failing, symptomatic of a lack of personal responsibility. This Note’s key point is that, as long as legislators and judges fail to acknowledge, interrogate, and learn from the United States’ prior failures in responding to addiction, fatal gaps will continue to exist both in medical amnesty laws and in the broader response to the drug overdose crisis
Code and Prejudice: Regulating Discriminatory Algorithms
Get PDFIn an era dominated by efficiency-driven technology, algorithms have seamlessly integrated into every facet of daily life, wielding significant influence over decisions that impact individuals and society at large. Algorithms are deliberately portrayed as impartial and automated in order to maintain their legitimacy. However, this illusion crumbles under scrutiny, revealing the inherent biases and discriminatory tendencies embedded in ostensibly unbiased algorithms. This Note delves into the pervasive issues of discriminatory algorithms, focusing on three key areas of life opportunities: housing, employment, and voting rights. This Note systematically addresses the multifaceted issues arising from discriminatory algorithms, showcasing real-world instances of algorithmic abuse, and proposing comprehensive solutions to enhance transparency and promote fairness and justice
Gag with Malice
Get PDFThis Article brings agriculture privacy and other commercial gagging laws into the ongoing debate on the First Amendment actual malice rule announced in New York Times v. Sullivan. Despite a resurgence in contemporary jurisprudence, Justices Clarence Thomas and Neil Gorsuch have recently questioned the wisdom and viability of Sullivan, which originally applied actual malice to state law defamation claims brought by public officials. The Court later extended the actual malice rule to public figures, to claims for infliction of emotional distress, and—as discussed in this Article—to claims for invasion of privacy and to issues of public importance or concern.
United States v. Alvarez recently identified the significance of Sullivan and the actual malice rule when announcing First Amendment protection for false speech. Alvarez notably excluded defamation from the categories of protected false speech. No federal district or circuit court that has applied Alvarez to agriculture privacy laws has considered Sullivan or the actual malice rule. Agriculture privacy laws are a type of gag law that seek to: (i) prevent the use of misrepresentations to gain access, employment, or unauthorized entry; (ii) prevent unauthorized or nonconsensual use of video, audio, and photographic cameras or recorders if there was an intent to cause harm to the enterprise; or (iii) impose a duty to submit recordings of animal or agriculture abuse. Some of the legislative histories of these laws demonstrate an intent to prevent undercover investigations into or exposés on the industry. Arkansas has applied a similar type of gag to all commercial businesses.
The Eighth, Ninth, and Tenth Circuits are currently split on the scope of Alvarez’s protection against agriculture privacy and commercial gagging laws. This Article demonstrates how Sullivan and the actual malice rule also balance the First Amendment right of privacy and press to gather and disseminate information about public matters. Part I introduces agriculture privacy and commercial gagging laws. Part II deliberates the civil rights roots and recent resurgence of Sullivan in contemporary jurisprudence. Part III contemplates how Sullivan alleviates First Amendment deficiencies that gagging courts left unaddressed, particularly with regard to the effect of gagging laws on undocumented workers and others in the marketplace of ideas about commercial food production
Cleaning Up the Corporate Opportunity Doctrine Mess: A First Principles Approach
Get PDFAlmost a century ago, a legal dispute over who is the rightful owner of Pepsi-Cola, at the time an unknown syrup company on the verge of bankruptcy, led the Supreme Court of Delaware to develop what is now famously known as the corporate opportunity doctrine. This doctrine is the central framework Delaware courts use to this day to determine whether an officer who seized a business opportunity has breached his fiduciary duties. Despite the doctrine’s old roots, it has thus far failed to reach stable ground. For one, while many corporate law scholars have supported the rule developed following this decision—which instructs the courts to consider not only the company’s interests, but also the officer’s “rights”—others have argued that the rule is too soft and even perversely so. For another, the application of this lenient rule has proven unstable. The corporate opportunity doctrine is vague and contested, as demonstrated by the contradicting rulings from other U.S. states. This Article suggests a way out of the mess. Using a comprehensive comparative analysis of the case law from the United States, the United Kingdom, and Canada, this Article demonstrates that the lenient interpretation of the corporate opportunity doctrine by Delaware courts is misguided and results from a misunderstanding of its normative foundations. The corporate opportunity doctrine derives from the general principles of fiduciary law, and thus a theoretical understanding of the concept of “fiduciary” is crucial for its proper application. As this Article shows, this decisive aspect of the doctrine has been largely neglected by the literature. By taking a “first principles” approach and going back to the roots of this concept, this Article demonstrates that neither side in this ongoing debate on the desirability of the doctrine is free from error. It concludes that the lenient position should be rejected and explains how to ameliorate current legal instability
Corporate Foreign Policy in War
Get PDFOn February 24, 2022, Russian troops invaded Ukraine. Over a year later, the war has claimed tens of thousands of lives and led to the displacement of millions. In Spring 2023, both Ukrainian and Russian forces prepared new offensives, while the United States committed to providing Ukraine with military tanks—a move that Russian officials had previously warned would constitute direct involvement in the war. While countries debated how to respond, we also witnessed the privatization of foreign policy as hundreds of companies around the world similarly sought to assist Ukraine or punish Russia using the tools of national foreign policy—humanitarian aid and economic sanctions. Companies assisted Ukraine by donating millions of dollars to relief organizations or offering aid directly to those fleeing the war. Other companies punished Russia by closing stores, postponing investments, and exiting the country altogether.
This Article explains that these individual business decisions illustrate a broader phenomenon of corporate foreign policy, which refers to business policies that use the traditional tools of national foreign policy to influence a government’s conduct towards another government or international organization. It develops a market framework to explain that corporate foreign policies result from the interaction of two sets of factors: demand factors, such as the preferences of governments, consumers, and investors; and supply factors, which refer to organizational, contractual, and regulatory factors that enable or inhibit the capacity of companies to meet those preferences. Supply factors would include: the business model used for Russian operations; contract provisions that enable suspension of performance obligations; availability of political risk insurance and international investment dispute resolution to absorb losses; and organizational preparedness for crisis response.
This Article makes three primary contributions to the study of foreign policy and international business transactions. First, it provides an analytical framework for understanding, evaluating, and even predicting whether companies will use a particular foreign policy in a crisis. Second, it uses this framework to analyze whether companies may similarly exit from China because of fears of conflict in the region. Third, the framework offers practical guidance to both policymakers and business executives on using foreign policy effectively in future crises. For policymakers, this framework explains that economic sanctions imposed by governments can encourage a second wave of private sanctions imposed by companies that magnify the economic, social, and political consequences of the former. This Article’s framework helps policymakers to predict the nature, breadth, and strength of these private sanctions so that they can better evaluate if and how to use sanctions. For executives, this Article explains the relevance of business models, contract design, and strategic partnerships for preparing for the next crisis. Many of these decisions are made decades before a crisis arises but can inhibit a company’s ability to respond when it does. It is therefore important to evaluate these decisions now in order to respond effectively in the future
The low-hanging fruit: Health, Rights, and the Commission
Get PDFThe year 2022 marked the 35th anniversary of the African Commission on Human and Peoples’ Rights. As it is a custom in many communities, when one reaches this milestone, it is an opportune time to introspect and reflect on the successes and challenges encountered in one’s journey. It is this template that the paper adopts to measure the prospects and setbacks of the African Commission in the advancement of the right to health. The Article argues that while the body remains the poster child of the continent’s human rights architecture, its inability to clearly articulate how states ought to advance the right to health has downplayed its role in this agora. It is, thus, not ironic that whereas health right is guaranteed by the overarching regional human rights instrument, a disproportionate percentage of the continent’s population continues to bear the brunt of treatable diseases with insufficient state response. Consequently, the translation of the right to health from paper to practice remains a pipedream to many at the grassroots level. To that end, the Article observes that the Inter-American Commission on Human Rights offers useful lessons that could give impetus to the African Commission in its aspiration towards advancing health right across the continent