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Linda S. Anderson, Let’s Talk About Sex (Work): The Irony of Partial Decriminalization of Sex Work, U. Pa. J.L. & Soc. Change 37 (2023)Clicking on the button will copy the full recommended citation.
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Will Bunting, A Better Legal Definition of Gambling: With Applications to Synthetic Financial Instruments and Cryptocurrency, 86 Alb. L. Rev. 257 (2023)Clicking on the button will copy the full recommended citation.
In many cases, gambling is relatively easy to identify. You just know it when you see it. But sometimes you do not. In some cases, gambling is not so easy to identify. Over time, questions have arisen as to whether certain transactions, often of critical importance in the moment, constitute gambling. This confusion over what constitutes gambling matters because vastly different outcomes can obtain depending upon whether a transaction is classified as gambling or not. In general, if the law classifies a transaction as gambling, then the government tends to regulate the transaction much differently than other risk transactions, typically giving the transaction heightened regulatory scrutiny to address certain problems commonly linked to gambling, such as addition. Given the significance of a transaction being categorized as gambling, the continuing confusion over what constitutes gambling is surprising.
This Article suggests that this confusion stems, in large part, from the fact that gambling is not presently well-defined under state or federal law and fails to distinguish a risk transaction that transfers an existing risk of economic profit or loss, such as a securities investment or insurance contract, from a transaction that creates risk solely through the contractual exchange of bets. In response, this Article, as its main contribution, provides a much more formal and precise definition of gambling than presently exists in the legal literature. This Article proposes a model statutory definition of gambling that includes the concept of risk creation as a limiting principle to distinguish gambling from other bilateral risk transactions. As an illustrative application of the analytic framework, the Article applies this novel definition to the regulation of synthetic trading positions and makes the case that the increased use of derivative contracts has allowed investors to enter synthetic trading positions that constitute gambling no different than placing a wager on the outcome of a sporting contest. As a second application, this Article briefly demonstrates how the analytic framework can be employed to make the purely theoretical case that trading in cryptocurrency constitutes unregulated gambling.
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James W. Fox, A Historical and Originalist Defense of Abortion in Florida, 75 Rutgers U. L. Rev. 393 (2023)Clicking on the button will copy the full recommended citation.
In this article I present an historical/originalist defense of abortion rights under the Florida Constitution’s right of privacy provision, which was adopted in 1980.
The Florida Supreme Court faces a conflict between what are likely its pro-life proclivities and originalism. Through original research into the drafting of the right to privacy provision in the 1970s and a detailed review of press coverage of privacy issues leading up to its adoption in the election of 1980, this article presents an in-depth analysis of whether the original meaning of the privacy provision encompassed abortion rights. It focuses on how the right to abortion was well-known to be a core part of pre-existing legal meaning of the right of privacy as of 1980, and argues that Justice Overton, one of the provision's original drafters, was correct in 1989 when he said the privacy provision codified Roe.
In addition to addressing a current conflict in the Florida courts, this article also suggests possibilities for applying originalism to a modern, state constitutional provision, stakes out arguments for why originalism may be appropriate in that context even if it is not appropriate in the context of older provisions of the U.S. Constitution, and explores the concept of pre-existing legal meaning as applied in a right-expanding context. The article proposes an approach where pre-existing meaning, including expected applications, help form a baseline-plus approach to interpreting rights-protecting provisions. Under this approach, the right of privacy provision protects a baseline of rights, including reproductive rights, determined through traditional historical and originalist methods (including expected applications originalism) even as it may be open to expansion by courts in the future to other, unanticipated, rights claims.
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Will Bunting, Regulating Retail Vacancy Rates: A Survey, 51 Real Estate Law Journal 127 (2023)Clicking on the button will copy the full recommended citation.
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Miriam Heyman et al., Experience of Parents with Psychiatric Disabilities with Child Welfare Involvement: Perspectives from Parents and Staff Providing Legal Services, 101 Child Welfare 83 (2023)Clicking on the button will copy the full recommended citation.
Parents with psychiatric disabilities confront extensive discrimination, often resulting in child welfare system involvement. Stigma and discrimination pervade the experiences of parents with psychiatric disabilities within the child welfare system, resulting in poor outcomes. This study explores these experiences, including barriers and facilitators to the provision of supports and meaningful legal services, for parents with psychiatric disabilities who have child welfare system involvement. Through interviews with 13 employees and seven parents with psychiatric disabilities, barriers and facilitators are identified. Implications for the child welfare and legal professions, and for future research, are highlighted.
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Alicia Jackson, Inherently Unequal: The Effect of Structural Racism and Bias on K-12 School Discipline, 88 Brook. L. Rev. 459 (2023)Clicking on the button will copy the full recommended citation.
Structural racism is deeply rooted in our nation's history and often manifests as discrimination and inequality in critical facets of life in the United States, including education. This Article explores the impact of structural racism and bias on discipline in the K-12 public school setting. Discriminatory bias-based decision-making and school discipline policies have led to the disproportionate punishment of Black children, causing them to be excluded from classroom learning and creating a separate and unequal education structure. US Department of Education data shows that Black K-12 students are 3.8 times as likely to receive one or more out-of-school suspensions as white students in the same grade. In Brown v. Board of Education, the Supreme Court held that separate educational facilities are inherently unequal and therefore violate the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. When Black students are disciplined more harshly than their white counterparts, this too is inherently unequal and violates the constitutional right to an equal education.
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Will Bunting, A Simple Unifying Framework for Categorizing Disparate Risk Transactions: Securities Investments, Insurance, Gambling, and Derivative Contracts, 25 U. Pa. J. Bus. L. 295 (2023)Clicking on the button will copy the full recommended citation.
The Article proceeds as follows: Part II examines how the law defines the following three risk transactions: (1) securities investments, (2) insurance, and (3) gambling. Part III introduces a theoretical model of bilateral risk transactions and applies this model to the three different types of risk transactions surveyed in Part II. Part III introduces three baseline models of bilateral risk transaction: (1) bilateral risk transfer, (2) bilateral risk creation, and (3) bilateral risk destruction and extends these models to include two additional variables: (1) endogenous risk, and (2) risk mitigation. The addition of these two variables narrows the broad definition of a bilateral risk transaction to include the three risk transactions examined in Part II. Other types of bilateral risk transactions are also considered, including derivative contracts. Highlighting two main regulatory concerns in connection with bilateral risk transactions, (1) moral hazard or fraud, and (2) risk mitigation, Part IV summarizes how the current regulatory environment addresses these two concerns and explores possible regulatory gaps suggested by the baseline models.
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Jason S. Palmer and Kimberly Y. W. Holst, International Legal Developments Year in Review: 2022: Introduction, 57 Year in Review: An Annual Survey of International Legal Developments and Publications of the ABA Section of International Law 1 (2023)Clicking on the button will copy the full recommended citation.
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Andrew D. Appleby, No Migration Without Taxation: State Exit Taxes, 60 Harv. J. on Legis. 55 (2023)Clicking on the button will copy the full recommended citation.
The movement of people and the movement of money are often discrete. As such, governments can address the effects of each separately. Because residence provides a general jurisdictional basis for state personal income taxation, however, money often moves with people. States must disentangle the two to prevent tax base erosion and improve distributional equity, particularly with many highnet-worth individuals migrating to states with more favorable tax regimes. A state exit tax may be the answer.
This Article begins by examining exit tax theory and advancing novel applications of theories that support subnational exit taxation, both domestically and internationally. With a robust theoretical and technical foundation, this Article turns to state and local exit tax design. This discussion examines constitutional constraints to address specific tax base migration challenges focusing on the justifications, distributional impact, and optimal exit tax design features to address each situation.
If a state has a solid theoretical foundation and incorporates proper design principles, as this Article provides, an exit tax can effectively mitigate tax base migration while aligning with prevailing policy goals and avoiding constitutional infirmities.
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Grant Christensen, Getting Cooley Right: The Inherent Criminal Powers of Tribal Law Enforcement, 56 U.C. Davis L. Rev. 467 (2022)Clicking on the button will copy the full recommended citation.
While the Supreme Court regularly decides cases defining the limits of the criminal jurisdiction of tribal courts, when it heard United States v. Cooley in 2021 it had not decided a case about the procedural powers of tribal law enforcement in more than a century. Across more than five decades lower courts at all levels struggled to decide whether the inherent criminal powers of tribal law enforcement are coterminous with the jurisdiction of tribal courts or whether tribal officers may have their own set of inherent powers distinct from the power to prosecute. This Article examines the inconsistent split in authority that existed before Cooley and anticipates the future misreading of inherent criminal power by lower courts. It argues that now that the Court has divorced the inherent criminal power of tribal law enforcement from the criminal jurisdictional power of tribal courts, tribal officers may stop, detain, search, and investigate anyone whose criminal conduct poses a danger to the health and welfare of the tribal community. The Article bolsters its application by using the first cases decided by lower courts in the post-Cooley era as artifacts to examine the full implications of the recognition of inherent criminal power exercised by tribal law enforcement.