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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.
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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.
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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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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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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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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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Klara Van der Ploeg, Unified Patent Court and International Law, in European Patent Law: The Unified Patent Court and the European Patent Convention (Duncan Matthews and Paul Torremans eds., De Gruyter, 2023)Clicking on the button will copy the full recommended citation.
This chapter is the first examination the world’s newest international court—the Unified Patent Court (UPC)—from the perspective of international law. Identifying the institutional tensions inherent in its architecture due to the close links to the European Court of Justice and national courts as well as its origins in the European patent law, the chapter elaborates the essential implications arising for the UPC by virtue of it being an international court and international law being its governing law. Drawing on the literatures on international regime interplay, functions and authority of international courts and business and human rights, as well as the experience of the investor-state dispute settlement, the chapter elaborates the salient interpretative choices that the UPC will need to make that will not only determine its day-to-day operation and case outcomes, but also the public perceptions of its authority and legitimacy. The chapter argues that if recent international legal scholarship and practice suggest anything, the UPC will be best served by an integrative approach to (its) international law—especially given patent law’s significant distributive effects.