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Em Wright, Click It or Ticket, But Don’t Admit It? How Unrestrained Drivers and Passengers Take Us for a Ride, 73 Mercer L. Rev. 801 (2022)Clicking on the button will copy the full recommended citation.
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Paul Boudreaux, No More January Sixths: A Constitutional Proposal to Take Politics Out of Presidential Election Mechanics, 24 U. Pa. J. Const. L. 1029 (2022)Clicking on the button will copy the full recommended citation.
The conduct of Congress on January 6, 2021, exposed the ill-considered legal mechanics of the presidential electoral vote. In both 2017 and 2021, members of Congress “objected” to the Electoral College vote, threatening democracy. Guided by principles of neutrality and humility, this essay identifies potentially partisan vulnerabilities in the current electoral system and proposes three straightforward constitutional amendments. First, the Constitution should remove the ability of state legislatures to choose electors. Second, the Constitution should require expeditious state resolution of popular voting disputes. Third, and finally, the Constitution should remove Congress entirely from presidential electoral mechanics.
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Anne E. Mullins, Book review, Transitioning from Practical Legal Writing to Academic Scholarship, review of Elizabeth Berenguer’s The Legal Scholar’s Guidebook, 19 Legal Comm. & Rhetoric: JAWLD 217 (2022)Clicking on the button will copy the full recommended citation.
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Anthony Palermo and Daniel L. Buchholz, Post-Tiara: Contracts Are Still King, 95 Florida Bar Journal 18 (2022)Clicking on the button will copy the full recommended citation.
This article analyzes a Florida Supreme Court case, as well as the precedent leading up to it and subsequent decisions, which raised important questions about the independent tort doctrine and economic loss rule in contract disputes. Although similar, these two principles are not identical, and they are often confused by litigants and courts alike. That confusion led in part to debate surrounding the contours and even survival of the independent tort doctrine following the Florida Supreme Court's decision in Tiara Condominium Association, Inc. v. Marsh and McLennan Companies, Inc., which limited the application of the economic loss rule. This article asserts, however, that the decision actually confirms the independent tort doctrine's continued application in Florida and further argues that that the doctrine rests on sound principles of efficiency and equity and should be endorsed and applied by Florida courts. The article also provides an overview of the distinction between the independent tort doctrine and economic loss rule, analyzes the court's decision and relevant precedent, and explains why the independent tort doctrine should remain a vital component of Florida contract law.
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Robyn Powell, Disability Reproductive Justice, 170 U. Pa. L. Rev. 1851 (2022)Clicking on the button will copy the full recommended citation.
The fragility of reproductive rights in the United States has never been so clear. From the Supreme Court’s recent Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade, to a quickly growing number of states passing draconian state laws that drastically limit—and in some states, ban—access to safe and legal abortion care, reproductive freedom is under siege at every turn. This difficult reality has elevated the importance of reproductive rights to the forefront of many people’s consciousness. At the same time, the discourse concerning reproductive rights has been narrowly focused and has failed to recognize the scope of reproductive decisionmaking beyond abortion. In addition, the reproductive rights movement has traditionally overlooked the myriad other ways in which marginalized populations, including people with disabilities, experience reproductive oppression.
This Article responds to the contemporary besiege on reproductive freedom and the persistent reproductive oppression experienced by people with disabilities by proposing a vision to help activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the disability justice and reproductive justice movements. To do so, first the Article examines the origins of weaponizing sexuality and reproduction to subjugate disabled people in the United States. Drawing on legal scholarship and social science research, it then elucidates the scope of the problem by describing the social context and institutions that propagate the sexual and reproductive oppression of people with disabilities and highlights contemporary examples of such injustices. Thereafter, the Article introduces and explores the tenets of two complementary frameworks for analyzing and confronting the reproductive oppression of people with disabilities: disability justice and reproductive justice. Finally, guided by the tenets of disability justice and reproductive justice, it further develops a jurisprudential and legislative framework for achieving and delivering reproductive justice for people with disabilities.
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Robyn Powell et al., Barriers and Solutions to the Evolution of Disability Language: Choosing Terms to Describe Disability, 15 Disability and Health Journal 101328 (2022)Clicking on the button will copy the full recommended citation.
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Will Bunting, How the Law Can Leverage Behavioral Economics to Better Protect Small Business Owners Against Location Risk in the Brick-and-Mortar Retail Sector, 59 American Business Law Journal 393 (2022)Clicking on the button will copy the full recommended citation.
This Article examines how the law can help reduce retail vacancy rates in volatile urban real estate markets. Two potential drivers of high vacancy rates along retail corridors in otherwise healthy real estate markets are identified: (1) location risk, and (2) positive feedback effects. This Article suggests that local governments can pursue a nudge-based approach to encourage landlords and retail tenants, especially small business owners, to adopt percentage rent or some other form of profit-sharing to more efficiently allocate location risk. To address positive feedback effects in which each storefront vacancy increases the likelihood of an additional storefront vacancy, a case is made for slightly stronger government intervention. Current legislative responses to the problem of retail vacancy are also considered, including vacant property taxes, commercial rent control, and zoning reclassification, and the advantages and disadvantages of each are examined.
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Ciara Torres-Spelliscy, The Political Branding of the Big Lie (Symposium, The Government’s Speech and the Constitution), 2022 U. Ill. L. Rev. 1711 (2022)Clicking on the button will copy the full recommended citation.
This piece will argue that the Roberts Supreme Court’s protection of lying and its choice to fence government speech as outside of First Amendment analysis have created a perfect storm for a figure like President Trump to do incredible damage to voting rights specifically and trust in American democracy more generally.
In my 2019 book, Political Brands, I explored how commercial branding techniques are being used in politics to sell American voters, politicians, ideas and ideals. Branding includes the targeted repetition of messages until they are accepted as true by an audience, even if the message is a lie, a myth or fantasy.
In the months before the 2020 election, experts predicted that because of COVID-19 pandemic, millions more voters than normal would vote by mail. These experts put out a white paper entitled “Fair Elections During a Crisis” encouraging states to process mail-in votes as early as possible so that there would not be a delay in processing overall votes total. The white paper predicted what is now known as either the Blue Shift or the Red Mirage—that if Re-publicans voted in person and Democrats voted by mail, that Re-publicans would appear to “win” on election day, but that once all ballots were processed it was possible for Democrats to actual win.
This Blue Shift/Red Mirage indeed happened in the 2020 general election for president. At 2:00 a.m. after the election, President Trump prematurely declared victory. Key swing states like Nevada, Georgia and Pennsylvania took days after the election to process all of their votes. It was on Saturday November 7, 2020 when Biden’s victory became clear. President Trump then spent every day since the 2020 election claiming that there was massive voter fraud, voting machines cannot be trusted, and Republicans legislators should appoint pro-Trump electors. His campaign filed multiple lawsuits attempting to get states to throw out certain votes and in a particularly bold suit, his campaign attempted to get all votes from Pennsylvania to be thrown out. The courts did not indulge him or his campaign.
Trump’s failure to concede by itself likely would not cause last-ing damage to the American political process. But the nonstop rhetoric during the 28 days (and counting) that his supporters should “stop the steal” of the election, while questioning whether the integrity of the 2020 election had been profoundly undermined by voter fraud or failed voting machines, Trump’s rhetoric has the potential to undermine voting rights and trust in American democracy. The longer-term damage that could be that Trump’s fantasy problems will be used as justifications for voter suppression laws which make voting by mail more restrictive.
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Sasha M. Albert and Robyn Powell, Ableism in the Child Welfare System: Findings from a Qualitative Study, 46 Social Work Research 141 (2022)Clicking on the button will copy the full recommended citation.
It is well established that parents with disabilities are likely to have adverse experiences within the U.S. child welfare system, including disproportionately high rates of involvement and termination of parental rights. However, no known studies have examined the child welfare system through the lens of ableism. This qualitative phenomenological study included interviews with 15 parents with disabilities, 15 child welfare workers, and 15 attorneys who represent parents. Interviews revealed four levels of ableism within the child welfare system: (1) internalized, (2) interpersonal, (3) institutional, and (4) structural. Participants described their own internalized ableism, offered examples of interpersonal prejudice against disabled parents in the child welfare system, and discussed the institutional practice of using parents’ disabilities as a reason to separate them from their children and deny them services and accommodations. Interviews with parents also revealed that ableism across the child welfare system and other institutions could make it more difficult for them to reunify with their children. At the same time, child welfare workers and attorneys noted that disabled parents are disadvantaged by federally mandated reunification timelines. Ameliorating ableism in the child welfare system requires interventions at each level.
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David A. Stroud et al., Development of the Text of the Ramsar Convention: 1965–1971, 73 Marine and Freshwater Research 1107 (2022)Clicking on the button will copy the full recommended citation.
The ‘Ramsar’ Convention on Wetlands was the first of the modern era global biodiversity conventions and remains the only multilateral environmental agreement focused on a single group of ecosystem types. At the time of initial discussions within the wetland conservation science community in the late 1960s, its ambition was unprecedented, with no successful models to draw upon, especially with regard to novel concepts such as the modus for an ‘internationally protected site’. Drawing on previously unpublished draft texts, we track the Convention’s textual development to its ultimate agreement in 1971. During this period its geographic scope changed from an initial European to global focus, whereas core obligations related to the designation of internationally important wetlands and the provision of secretariat coordination functions were substantively developed.