Keeping Current-Property Incollection
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Darryl Wilson, Keeping Current-Property, 37 Probate and Property 20 (2023)Clicking on the button will copy the full recommended citation.
2023
The Major Questions Doctrine Post-West Virginia v. EPA Article
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Jaclyn Lopez, The Major Questions Doctrine Post-West Virginia v. EPA, 54 Trends 4 (2023)Clicking on the button will copy the full recommended citation.
By now most have heard of the landmark Supreme Court case West Virginia v. EPA, 597 U.S. _,
2022, which—with Chief Justice Roberts delivering the Court’s opinion—clarified and cemented a new rule of statutory interpretation called the “major questions doctrine” (MQD). This prudential doctrine requires that an agency point to a “clear congressional authorization” when claiming authority from a statute. It is unclear at this time how frequently litigants and lower courts will employ this doctrine, which the Supreme Court devised to address a “recurring problem” of agency overreach, or whether the test will come up only in “extraordinary cases.” While the Court declined to articulate a specific standard for the lower courts to follow, it is possible to glean the contours of the doctrine from the majority opinion and concurrence.
Third Party and Self-Created Trusts: A Modern Look Book
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Rebecca C. Morgan et al., Third Party and Self-Created Trusts: A Modern Look (American Bar Association, 2023)Clicking on the button will copy the full recommended citation.
International Legal Developments Year in Review: 2022: Introduction Article
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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.
Festschrift in Honor of Peter J. Henning: Most of All a Friend Article
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Ellen S. Podgor, Festschrift in Honor of Peter J. Henning: Most of All a Friend, 68 Wayne L. Rev. 327 (2023)Clicking on the button will copy the full recommended citation.
A Historical and Originalist Defense of Abortion in Florida Article
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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.
Inherently Unequal: The Effect of Structural Racism and Bias on K-12 School Discipline Article
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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.
A Better Legal Definition of Gambling: With Applications to Synthetic Financial Instruments and Cryptocurrency Article
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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.
An Overview of Disabled Children and Parents in the Family Policing System Book Chapter
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Robyn Powell and Elspeth Slayter, An Overview of Disabled Children and Parents in the Family Policing System, in Social Work Practice and Disability Communities: An Intersectional Anti-Oppressive Approach (Elspeth Slayter and Lisa Johnson eds., ROTEL Project, 2023)Clicking on the button will copy the full recommended citation.
Let’s Talk About Sex (Work): The Irony of Partial Decriminalization of Sex Work Article
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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.