Subjects -> LAW (Total: 1397 journals)
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    - LAW (843 journals)
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LAW (843 journals)            First | 1 2 3 4 5     

Showing 201 - 354 of 354 Journals sorted alphabetically
Evaluation Review     Hybrid Journal   (Followers: 8)
Evidence & Policy : A Journal of Research, Debate and Practice     Hybrid Journal   (Followers: 12)
Federal Law Review     Full-text available via subscription   (Followers: 48)
Feminist Legal Studies     Hybrid Journal   (Followers: 21)
feminists@law     Open Access   (Followers: 4)
Fiat Justisia     Open Access  
First Amendment Studies     Hybrid Journal  
Florida Bar News     Free  
Fordham Environmental Law Review     Open Access   (Followers: 4)
Fordham Intellectual Property, Media and Entertainment Law Journal     Open Access   (Followers: 17)
Fordham Law Review     Open Access   (Followers: 14)
Forensic Science International : Mind and Law     Open Access   (Followers: 4)
FORO. Revista de Ciencias Jurídicas y Sociales, Nueva Época     Open Access   (Followers: 2)
Frónesis     Open Access  
Geoforum     Hybrid Journal   (Followers: 25)
George Washington Law Review     Free   (Followers: 6)
Georgia State University Law Review     Open Access   (Followers: 2)
German Law Journal     Open Access   (Followers: 1)
Global Energy Law and Sustainability     Hybrid Journal  
Global Journal of Comparative Law     Hybrid Journal   (Followers: 4)
Global Labour Journal     Open Access   (Followers: 15)
Golden Gate University Environmental Law Journal     Open Access   (Followers: 3)
Golden Gate University Law Review     Open Access   (Followers: 2)
Graduate Law Journal     Open Access  
Grey Room     Hybrid Journal   (Followers: 16)
Griffith Law Review     Hybrid Journal   (Followers: 13)
GRUR International     Full-text available via subscription  
GSTF Journal of Law and Social Sciences     Open Access   (Followers: 2)
Hakam : Jurnal Kajian Hukum Islam dan Hukum Ekonomi Islam     Open Access  
Haramaya Law Review     Open Access   (Followers: 1)
Harvard Environmental Law Review     Free   (Followers: 12)
Harvard Human Rights Journal     Open Access   (Followers: 10)
Harvard Journal of Law & Public Policy     Free   (Followers: 34)
Harvard Journal of Law and Gender     Free   (Followers: 24)
Harvard Law Review     Free   (Followers: 93)
Hasanuddin Law Review     Open Access   (Followers: 2)
Hastings Law Journal     Free   (Followers: 8)
Health Matrix : The Journal of Law-Medicine     Open Access  
Helsinki Law Review     Open Access  
High Court Quarterly Review, The     Full-text available via subscription   (Followers: 3)
Hofstra Law Review     Open Access   (Followers: 2)
Horyzonty Polityki     Open Access  
Houston Law Review     Free   (Followers: 4)
Hukum Islam     Open Access  
IALS Student Law Review     Open Access   (Followers: 2)
IDÉIAS : Revista dos estudantes da Faculdade de Direito do Recife (UFPE)     Open Access  
IDP. Revista de Internet, Derecho y Politica     Open Access   (Followers: 2)
Ihering : Cuadernos de Ciencias Jurídicas y Sociales     Open Access   (Followers: 3)
Indian Law Review     Hybrid Journal  
Indiana Journal of Global Legal Studies     Full-text available via subscription  
Indiana Law Journal     Open Access   (Followers: 3)
Indigenous Law Bulletin     Full-text available via subscription   (Followers: 20)
Indigenous Peoples’ Journal of Law, Culture & Resistance     Open Access   (Followers: 2)
Indonesia Law Review     Open Access   (Followers: 2)
Indonesian Journal of Law and Society     Open Access   (Followers: 1)
Indonesian Journal of Legal and Forensic Sciences     Open Access   (Followers: 1)
Information & Communications Technology Law     Hybrid Journal   (Followers: 22)
InSURgência : revista de direitos e movimentos sociais     Open Access  
Inter: Revista de Direito Internacional e Direitos Humanos da UFRJ     Open Access  
Intergenerational Justice Review     Open Access  
International and Comparative Law Review     Open Access   (Followers: 4)
International Cybersecurity Law Review     Hybrid Journal   (Followers: 1)
International Data Privacy Law     Hybrid Journal   (Followers: 27)
International Free and Open Source Software Law Review     Open Access   (Followers: 6)
International Journal of Children's Rights     Hybrid Journal   (Followers: 22)
International Journal of Clinical Legal Education     Open Access  
International Journal of Culture and Modernity     Open Access  
International Journal of Disclosure and Governance     Hybrid Journal   (Followers: 6)
International Journal of Healthcare Policy     Hybrid Journal   (Followers: 1)
International Journal of Language & Law     Open Access   (Followers: 4)
International Journal of Law and Politics Studies     Open Access   (Followers: 1)
International Journal of Law Reconstruction     Open Access  
International Journal of Legal Information     Full-text available via subscription   (Followers: 48)
International Journal of Legal Medicine     Hybrid Journal   (Followers: 7)
International Journal of Liability and Scientific Enquiry     Hybrid Journal   (Followers: 2)
International Journal of Marine and Coastal Law     Hybrid Journal   (Followers: 18)
International Journal of Mental Health and Capacity Law     Open Access   (Followers: 1)
International Journal of Public Legal Education     Open Access  
International Journal of Punishment and Sentencing, The     Full-text available via subscription   (Followers: 8)
International Journal of Rural Law and Policy     Open Access   (Followers: 2)
International Journal of Speech Language and the Law     Hybrid Journal   (Followers: 11)
International Journal of Technology Policy and Law     Hybrid Journal   (Followers: 6)
International Journal of the Legal Profession     Hybrid Journal   (Followers: 9)
International Law Research     Open Access  
International Peacekeeping     Hybrid Journal   (Followers: 249)
International Sports Law Journal     Hybrid Journal   (Followers: 3)
International Theory: A Journal of International Politics, Law and Philosophy     Hybrid Journal   (Followers: 21)
IP Theory     Open Access   (Followers: 10)
Isonomía. Revista de Teoría y Filosofía del Derecho     Open Access  
Italian Review of Legal History     Open Access   (Followers: 3)
Iter Ad Veritatem     Open Access  
Iuris Dictio     Open Access  
Iuris Tantum Revista Boliviana de Derecho     Open Access  
Ius Canonicum     Full-text available via subscription  
Ius et Praxis     Open Access  
IUS ET SCIENTIA     Open Access  
IUSTA : Derecho, investigación, conflicto, prácticas jurídicas     Open Access  
James Cook University Law Review     Full-text available via subscription   (Followers: 4)
Jeffrey S. Moorad Sports Law Journal     Open Access   (Followers: 1)
JILS (Journal of Indonesian Legal Studies)     Open Access  
Jindal Global Law Review     Hybrid Journal  
John Marshall Law Review     Full-text available via subscription  
John Marshall Review of Intellectual Property Law     Free   (Followers: 8)
Journal for European Environmental & Planning Law     Hybrid Journal   (Followers: 5)
Journal of African Law     Full-text available via subscription   (Followers: 3)
Journal of Applied Law and Policy     Full-text available via subscription   (Followers: 3)
Journal of Banking Regulation     Hybrid Journal   (Followers: 27)
Journal of Business & Technology Law     Open Access   (Followers: 2)
Journal of Commonwealth Law and Legal Education     Hybrid Journal   (Followers: 5)
Journal of Conflict and Security Law     Hybrid Journal   (Followers: 18)
Journal of Digital Forensics, Security and Law     Open Access   (Followers: 1)
Journal of Dinamika Hukum     Open Access   (Followers: 1)
Journal of Empirical Legal Studies     Hybrid Journal   (Followers: 12)
Journal of Energy & Natural Resources Law     Hybrid Journal   (Followers: 5)
Journal of Environmental Law     Hybrid Journal   (Followers: 22)
Journal of Environmental Policy & Planning     Hybrid Journal   (Followers: 14)
Journal of European Consumer and Market Law     Hybrid Journal   (Followers: 6)
Journal of Gender, Social Policy & the Law     Open Access   (Followers: 22)
Journal of Human Security     Open Access   (Followers: 7)
Journal of Information Rights, Policy and Practice     Open Access  
Journal of Intelligent Transportation Systems: Technology, Planning, and Operations     Hybrid Journal   (Followers: 3)
Journal of International Peacekeeping     Hybrid Journal   (Followers: 213)
Journal of Intervention and Statebuilding     Hybrid Journal   (Followers: 9)
Journal of Islamic and Near Eastern Law     Open Access   (Followers: 3)
Journal of Law and Conflict Resolution     Open Access   (Followers: 4)
Journal of Law and Courts     Full-text available via subscription   (Followers: 7)
Journal of Law and Health     Open Access   (Followers: 7)
Journal of Law and Legal Reform     Open Access  
Journal of Law and Policy     Open Access   (Followers: 1)
Journal of Law and Regulation     Open Access  
Journal of Law and Religion     Full-text available via subscription   (Followers: 6)
Journal of Law and Social Policy     Open Access   (Followers: 3)
Journal of Law and Society     Hybrid Journal   (Followers: 43)
Journal of Law and the Biosciences     Open Access   (Followers: 3)
Journal of Law, Medicine & Ethics     Hybrid Journal   (Followers: 23)
Journal of Law, Policy and Globalization     Open Access   (Followers: 13)
Journal of Law, Religion and State     Hybrid Journal   (Followers: 4)
Journal of Legal Affairs and Dispute Resolution in Engineering and Construction     Full-text available via subscription   (Followers: 4)
Journal of Legal Analysis     Open Access   (Followers: 6)
Journal of Legal Anthropology     Open Access   (Followers: 1)
Journal of Legal Education     Open Access   (Followers: 7)
Journal of Legal Pluralism and Unofficial Law     Hybrid Journal   (Followers: 3)
Journal of Legal Studies     Full-text available via subscription   (Followers: 46)
Journal of Legal Studies     Open Access   (Followers: 8)
Journal of Legal Studies Education     Hybrid Journal   (Followers: 6)
Journal of Media Law     Hybrid Journal   (Followers: 7)
Journal of National Security Law & Policy     Free   (Followers: 6)
Journal of Nursing Law     Hybrid Journal   (Followers: 4)
Journal of Penal Law & Criminology     Open Access   (Followers: 2)
Journal of Perpetrator Research     Open Access   (Followers: 1)
Journal of Planning Education and Research     Hybrid Journal   (Followers: 13)
Journal of Police Crisis Negotiations     Hybrid Journal   (Followers: 10)
Journal of Politics     Full-text available via subscription   (Followers: 53)
Journal of Politics and Law     Open Access   (Followers: 9)
Journal of Property Research     Hybrid Journal   (Followers: 3)
Journal of Property, Planning and Environmental Law     Hybrid Journal   (Followers: 5)
Journal of Psychiatry & Law     Full-text available via subscription   (Followers: 10)
Journal of Supreme Court History     Hybrid Journal   (Followers: 8)
Journal of the National Association of Administrative Law Judiciary     Open Access   (Followers: 1)
Journal of Trafficking and Human Exploitation     Hybrid Journal   (Followers: 4)
Journal of Victimology and Victim Justice     Hybrid Journal  
Journal of World Energy Law & Business     Hybrid Journal   (Followers: 1)
Judicial Officers Bulletin     Full-text available via subscription   (Followers: 2)
Judicial Review     Full-text available via subscription   (Followers: 11)
Juridica International     Open Access  
Jurídicas CUC     Open Access  
Jurisdictie Jurnal Hukum dan Syariah     Open Access   (Followers: 1)
Jurisprudence     Hybrid Journal   (Followers: 17)
Jurist-Diction     Open Access  
Jurnal Akta     Open Access  
Jurnal Bina Mulia Hukum     Open Access  
Jurnal Cakrawala Hukum     Open Access  
Jurnal Cita Hukum     Open Access  
Jurnal Daulat Hukum     Open Access  
Jurnal Hukum & Pembangunan     Open Access  
Jurnal Hukum dan Pembangunan Ekonomi     Open Access  
Jurnal Hukum dan Peradilan     Open Access  
Jurnal Hukum Magnum Opus     Open Access  
Jurnal hukum Prasada     Open Access  
Jurnal Hukum Respublica     Open Access  
Jurnal Idea Hukum     Open Access  
Jurnal Ilmiah Pendidikan Pancasila dan Kewarganegaraan     Open Access  
Jurnal Jurisprudence     Open Access  
Jurnal Justisia : Jurnal Ilmu Hukum, Perundang-undangan dan Pranata Sosial     Open Access  
Jurnal Magister Hukum Udayana (Udayana Master Law Journal)     Open Access  
Jurnal Mimbar Hukum Fakultas Hukum Universitas Gadjah Mada     Open Access  
Jurnal Notariil     Open Access  
Jurnal Pembaharuan Hukum     Open Access  
Jurnal Repertorium     Open Access  
Jurnal Suara Keadilan     Open Access  
Jus Cogens : A Critical Journal of Philosophy of Law and Politics     Hybrid Journal  
Jussens Venner     Full-text available via subscription  
Justiça do Direito     Open Access  
Justice Research and Policy     Full-text available via subscription   (Followers: 1)
Justicia     Open Access  
Justicia Juris     Open Access  
Justitia et Pax     Open Access  
Kanun : Jurnal Ilmu Hukum     Open Access  
Kertha Patrika     Open Access  
Kertha Wicaksana     Open Access  

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Indiana Law Journal
Journal Prestige (SJR): 0.626
Citation Impact (citeScore): 1
Number of Followers: 3  

  This is an Open Access Journal Open Access journal
ISSN (Print) 0019-6665
Published by Indiana University  [24 journals]
  • NIFLA and the Construction of Compelled Speech Doctrine

    • Authors: Robert Post
      Abstract: Virginia State Board of Education v. Barnette. There are good and convincing explanations for the Court’s decision in Barnette, but the Court’s recent expansion of the doctrine, culminating in National Institute of Family & Life Advocates (NIFLA) v. Becerra, holds that compelled speech is in most instances “content-based” regulation requiring heightened judicial scrutiny.Using examples ranging from professional malpractice to compulsory tax returns, this Article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of “compelled speech” may itself be confused insofar as it imagines that all legal obligations to communicate are equally disfavored under the Constitution. Courts should scrutinize instances of compelled speech as necessary to protect threatened constitutional values, but the presence of these values will vary depending upon social context.Courts must learn to read the constitutional geography implicit in distinct social landscapes. This Article offers some hints for how this might be done. Applying these insights to NIFLA, the Article argues that the outcome of the case actually depended upon preconscious and undefended suppositions about social context. Constitutional decisions like NIFLA can be made persuasive only if such suppositions are made explicit and justified.
      PubDate: Fri, 06 May 2022 15:05:40 PDT
  • Platforms: The First Amendment Misfits

    • Authors: Jane R. Bambauer et al.
      Abstract: This Essay explains why previous First Amendment precedents that allowed government to require a private entity to host the speech of others have limited applicability to online platforms like Twitter and Facebook. Moreover, the backdrop of an open internet makes platforms sufficiently vulnerable to competition and responsive to “listener” preferences that the dominance of some firms like Facebook and Google is not really a chokepoint: aggressive changes to content curation will lead to user dissatisfaction and defection, whether those changes are made by the government or the companies themselves. As a result, there are no close analogies in First Amendment precedent for internet platforms.We identify the similarities between social media platforms and more traditional venues for speech (like mail, malls, and television) but ultimately conclude there are critical differences that break the analogies. We then compare the role of social media platforms to basic internet service providers to better understand how the line between speech participants and mere conduits should be drawn in an online context. We find that First Amendment caselaw and the reasoning that flows through it would categorize platforms like Twitter and Facebook as speech participants. Next, we consider whether public perception of platforms standing in the role of a “public square” should significantly alter the First Amendment protections afforded to platforms, arguing that it should not. Finally, we argue that online platforms are their own free speech creature that deserve strong protection from government intervention in hosting and curation choices. However, they may be good targets for transparency requirements.
      PubDate: Fri, 06 May 2022 15:05:37 PDT
  • Compelled Disclosure and the Workplace Rights it Enables

    • Authors: Catherine Fisk
      Abstract: Worker and consumer protection laws often rely on the regulated entity to notify workers or consumers of their legal rights because it is effective and efficient to provide information at the time and place where it is most likely to be useful. Until the Supreme Court ruled in NIFLA v. Becerra in 2018 that a California law regulating crisis pregnancy centers was an unconstitutional speaker-based, contentdiscriminatory regulation of speech, mandatory disclosure laws were constitutionally uncontroversial economic regulation. Yet, the day after striking down a disclosure law in NIFLA, the Court in Janus v. AFSCME Council 31 expanded the right of workers to resist supporting unions, a right that depends on an even more intrusive compelled notice regime than the one the Court struck down in NIFLA. When the Court found a First Amendment right not to disclose on one day and a First Amendment right to receive information based on a system of mandatory disclosure on the next, it revealed that treating disclosure rules as compelled speech inevitably requires the Court to pick sides in fights involving free speech or other rights claims on both sides. This essay argues that compulsory notice or disclosure laws are not constitutionally problematic when and insofar as they require statements of fact or statements of policy that are unambiguously labeled as speech of the government rather than the views of the speaker.
      PubDate: Fri, 06 May 2022 15:05:34 PDT
  • Ministerial Employees and Discrimination Without Remedy

    • Authors: Charlotte Garden
      Abstract: The Supreme Court first addressed the ministerial exemption in a 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The ministerial exemption is a defense that religious employers can invoke in discrimination cases brought by employees who qualify as “ministerial,” and it is rooted in the First Amendment principle that government cannot interfere in a church’s choice of minister. However, Hosanna-Tabor did not set out a test to determine which employees are covered by this exemption, and the decision was susceptible to a reading that the category was narrow. In 2020, the Court again took up the ministerial exemption, this time staking out a broad test that will cover swaths of teachers at religious schools, among others.This Article explores the costs to employees of the ministerial exemption— especially those who have no idea that they will not have legal recourse if their employer discriminates against them based on a protected characteristic. It closes by raising the possibility that state legislatures could adopt measures intended to blunt these costs, either by helping to close the information gap, or by addressing head-on the costs of discrimination without remedy.
      PubDate: Fri, 06 May 2022 15:05:32 PDT
  • The Pledge of Allegiance and Compelled Speech Revisited: Requiring
           Parental Consent

    • Authors: Caroline Mala Corbin
      Abstract: Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states—Texas and Florida— students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the substantive due process rights of parents. These mandatory pledge laws are viewpoint-based and therefore presumptively unconstitutional. While the free speech rights of students are more circumscribed than adults, none of the established justifications for curtailing student speech rights at school apply in this case. On the contrary, forcing students to pledge against their will exemplifies all the harms of compelled speech. Finally, parents’ constitutional right to control the upbringing of their children is meant to protect parents from the state, not to empower parents to trample on the rights of their children. In the end, the parental permission rule is simply a pretext for the state’s own viewpoint-based compulsion.
      PubDate: Fri, 06 May 2022 15:05:29 PDT
  • Tort Law Implications of Compelled Physician Speech

    • Authors: Nadia N. Sawicki
      Abstract: Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, but many modify or even reject the procedural requirements for tort liability. Most significantly, these laws relieve prospective plaintiffs of the burden of proving two fundamental elements of negligence—causation in fact and proximate causation. Thus, when states compel physician speech for political reasons, their actions challenge not only constitutional principles, but tort principles as well.
      PubDate: Fri, 06 May 2022 15:05:26 PDT
  • Look Who's Talking: Conscience, Complicity, and Compelled Speech

    • Authors: B. Jessie Hill
      Abstract: Compelled speech claims, which arise under the Free Speech Clause, and complicity claims, which usually arise under the Religious Freedom Restoration Act (RFRA), are structurally similar. In each case, an individual claims that the government is forcing her to participate in a particular act that violates her religious or moral beliefs and imperatives, sending a false and undesired message to others and causing a form of spiritual or dignitary harm. It is therefore no surprise that compelled speech claims are often raised together with complicity claims in cases where religious individuals challenge the application of generally applicable laws to themselves.In analyzing compelled speech claims, courts and commentators have often considered whether the purportedly compelled message is likely to be perceived as the speech of the objecting individual. In the complicity context, by contrast, courts and commentators generally have not considered whether the problematic act can reasonably be attributed to the individual claimant. Nor do they generally consider whether the individual claimant can take steps to disassociate from the act. This Article argues that the concepts of attribution and disassociation, if applied in the compelled speech context, should also be applied in the complicity context. It also attempts to demonstrate how an analysis of these concepts might proceed in complicity cases. Alternatively, if these concepts fit poorly in the complicity context, they should be rejected in the compelled speech context for the same reasons.
      PubDate: Fri, 06 May 2022 15:05:23 PDT
  • Compelled Speech and the Regulatory State

    • Authors: Alan K. Chen
      Abstract: Since the Supreme Court’s 1943 decision in West Virginia Board of Education v. Barnette, it has been axiomatic that the First Amendment prohibits the government not only from censoring speech, but also from compelling it. The central holding of Barnette itself is largely uncontroversial—it seems obvious that the First Amendment’s free speech clause means that no government may require people to espouse or reproduce an ideological statement against their will. But the Court has extended the compelled speech doctrine to stop the government from forcing people to make even truthful, factual statements. These claims have resulted in some of the most hotly contested free speech disputes the Court has addressed in recent years. For instance, in National Institute of Family & Life Advocates v. Becerra, the Court invalidated provisions of a California law requiring self-styled “crisis pregnancy centers” to post and distribute truthful information about the availability of statesponsored services, including abortion, for pregnant women and, where the centers were not licensed to provide medical services, to disclose that fact. The Court held that the First Amendment prohibits such compelled speech unless the disclosure is “purely factual and uncontroversial,” and that abortion is “anything but an ‘uncontroversial’ topic.” If this is the appropriate legal standard, then the doctrine must grapple with defining what makes facts controversial or not. This is problematic for a number of reasons. First, facts, as opposed to ideas, would not ordinarily be labeled as controversial. Second, because we are now living in a time of epistemic chaos in public discourse, virtually any fact is now open to dispute, and thereby controversial. Finally, because of increasingly polarizing contemporary debates about the very role of government, the controversial fact standard risks devolving into an infinite regress to the point where every fact is controversial because the role of government regulation is itself controversial. If the Court does not articulate clear and substantial limiting principles, widespread application of the compelled speech doctrine ultimately will result in challenges to all government disclosure requirements, undermining critical components of the regulatory state.
      PubDate: Fri, 06 May 2022 15:05:20 PDT
  • Compelled Speech and Doctrinal Fluidity

    • Authors: David Han
      Abstract: Even within the messy and complicated confines of First Amendment jurisprudence, compelled speech doctrine stands out in its complexity and conceptual murkiness— a state of affairs that has only been exacerbated by the Supreme Court’s decisions in NIFLA v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. This Essay observes that as the Court’s compelled speech jurisprudence has grown increasingly complex, it has also manifested a troubling degree of fluidity, where the doctrinal framework has grown so incoherent, imprecise, and unstable that it can be readily shaped by courts to plausibly justify a wide range of disparate results. After examining some recent examples of this doctrinal fluidity and identifying its origins, the Essay observes that a true fix to this problem—the development of a fully coherent and stable compelled speech doctrine—is highly unlikely to emerge under the current state of affairs, given the intractable nature of the sources of this fluidity and the Court’s case-by-case, winner-take-all culture of constitutional adjudication.This Essay therefore argues for a shift in the Supreme Court’s approach to compelled speech doctrine—one that eschews formal complexity in favor of more open-ended, analytically transparent approaches. This proposal is, in essence, a second-best solution. If it is unrealistic to expect that an elegant, fully unified, and consistent doctrinal framework will emerge anytime soon, the Court should, at the very least, avoid obscuring its decisions behind complex and malleable formal doctrines and instead analyze cases in a manner that lays bare the fundamental intuitions and value judgments actually driving its decisions. A useful point of comparison might be to common law courts’ approach to negligence doctrine—an approach that is anchored in a simple, open-ended analysis that forces courts to bring to the fore the fundamental values underlying the doctrine. Such an approach would at least allow courts—and society at large—to discuss and debate these fundamental values openly rather than through a nebulous doctrinal façade that may ultimately serve merely to obscure the contested judgments and intuitions actually driving the results
      PubDate: Fri, 06 May 2022 15:05:17 PDT
  • Compelled Speech and Proportionality

    • Authors: Alexander Tsesis
      Abstract: This Article argues for a proportional First Amendment approach to compelled speech jurisprudence. It discusses the evolution of doctrine and how it led to recent opinions finding unconstitutional consumer protection, health disclosure, and collective bargaining statutes. In place of the currently formalistic approach, the Article argues for a transparent balancing of interests to avoid litigants’ opportunistic reliance on categorical First Amendment doctrines. Missing from the recent decisions that relied on the compelled speech doctrine is any systematic or contextual weighing of private and public concerns about disclosure regulations. The Roberts Court has been rather formalistic and categorical in its compelled speech decisions. It relied on the doctrine to find unconstitutional regulations on credit card surcharges, prescription privacy, collective bargaining, and health notices.Greater context in judicial reasoning would better balance competing interests and First Amendment values. The compelled speech doctrine should be rethought with an eye to greater contextual clarity. This can be effectively captured through means-ends analysis rather than categorical and often inconsistent judicial veto of federal and state legislation.
      PubDate: Fri, 06 May 2022 15:05:14 PDT
  • Hidden in Plain Sight: The Dangers of Environmental Protections Waivers

    • Authors: Olivia Stevens
      Abstract: When enacting both statutory and regulatory environmental protections, Congress and various agencies have recognized that emergency situations could arise that would require flexibility in the application and enforcement of those protections. Incorporating waivers into such protections provides that flexibility. However, the current state of waivers leaves them vulnerable to abuse. In this Note, I explore how a lack of procedural and substantive safeguards allows the inappropriate use of waivers to further administrative agendas in a way that poses serious risks to both environmental and human health. I then suggest remedial measures available to Congress that would strengthen environmental protections while still allowing for effective responses to emergencies.
      PubDate: Fri, 25 Feb 2022 15:57:12 PST
  • Movement Lawyers: The Tension Between Solidarity and Independence

    • Authors: Catherine Fisk
      Abstract: Seeking to engage with scholars and activists who call for lawyer solidarity with social movements, this Essay considers professional ethics constraints on what a lawyer can justifiably do on behalf of clients in the name of solidarity with a movement. I consider whether the concept of solidarity, especially solidarity in the face of legal repression, justifies a movement lawyer in using tactics that would otherwise be grounds for legal prosecution, professional discipline, or moral condemnation. Drawing on the long history of legal repression of progressive activism, including repression of progressive lawyers, this Essay proposes a way to think about lawyers aligning themselves with client activism while acknowledging the attraction to the notion that the lawyer’s role as counselor or adviser does not permit lawyer involvement in conduct that is immoral, unfair, or of doubtful legality. I test my argument about when lawyers may assist clients in conduct at the bounds of legality by considering bar discipline of lawyers involved with former President Trump’s litigation seeking to invalidate the results of the 2020 election with the January 6 rally preceding the assault on the Capitol building. I then return to the challenges facing lawyers working with Left social movements today.
      PubDate: Fri, 25 Feb 2022 15:57:10 PST
  • The Law of Employee Data: Privacy, Property, Governance

    • Authors: Matthew T. Bodie
      Abstract: The availability of data related to the employment relationship has ballooned into an unruly mass of performance metrics, personal characteristics, biometric recordings, and creative output. The law governing this collection of information has been awkwardly split between privacy regulations and intellectual property rights, with employees generally losing on both ends. This Article rejects a binary approach that either carves out private spaces ineffectually or renders data into isolated pieces of ownership. Instead, the law should implement a hybrid system that provides workers with continuing input and control without blocking efforts at joint production. In addition, employers should have fiduciary responsibilities in managing employee data, and workers should have collective governance rights over the data’s collection and use.
      PubDate: Fri, 25 Feb 2022 15:57:07 PST
  • Fraud on Any Market

    • Authors: Gregory Day et al.
      Abstract: Claims of securities fraud had historically failed because investors seldom rely on false or misleading statements when transacting securities. To bolster confidence in securities markets, the U.S. Supreme Court adopted a doctrine called “fraud-on-the-market” so that duped investors can show detrimental reliance without ever encountering the fraudulent statements. The doctrine assumes that a stock’s price reflects all material information, meaning that an investor who bought tainted stock has constructively relied on the fraud.Fraud-on-the-market is not only unavailable in other markets but is also embattled within securities law. The doctrine has endured volleys of criticisms about whether markets actually absorb information, leading critics to believe that the Supreme Court would eliminate it in 2014. The Court did not. In light of persistent questions about whether the doctrine reflects reality or has outlived its purpose, our empirical research tests fraud-on-the-market’s viability by investigating sports gambling: we find that the doctrine provides a sound remedy for investors in any market.The sports wagering market operates like others in which defrauded individuals have historically failed to support their fraud claims due to a lack of reliance. We show that securities and gambling markets suffer from many of the same frailties. Chief among them is that both investors and bettors place money in markets where they lack information about deception, cheating, and fraud. And like investors rely on prices affected by fraud, gamblers reference wagering information based on the playing field: if deception enables a team to fare better or worse, this skews the betting lines on which gamblers rely. The difference between these markets, though, is that investors enjoy a body of securities law to condemn fraud.We first argue that fraud-on-the-market would benefit most types of investable markets like sports gambling and support the doctrine in the securities context. Despite criticisms of the doctrine, our analysis shows that fraud creates the presumption of distorted prices. Second, the money wagered via sports betting and daily fantasy sports (DFS) would generate damages such that leagues would better maintain a competitive environment, boosting sports integrity akin to how securities regulations provide market protections. Also, our argument recognizes the inequity of denying sports bettors and DFS users a remedy. Whereas the leagues had traditionally benefited from gambling indirectly, today, the NFL, NHL, MLB, and NBA have partnered with DFS and other gambling industry companies. Since the leagues now benefit directly from gambling, and lucratively so, they should owe their fans a truly competitive landscape.
      PubDate: Fri, 25 Feb 2022 15:57:04 PST
  • Frozen Embryos, Male Consent, and Masculinities

    • Authors: Dara E. Purvis
      Abstract: Picture two men facing the possibility of unwanted fatherhood. One man agreed to go through in vitro fertilization (IVF) with his partner, but years later has changed his mind. Despite the fact that the embryos created through IVF are his partner’s last chance to be a genetic parent, a court allows him to block her use of the embryos.By contrast, another couple’s sexual relationship broke the law. The woman was a legal adult, and her partner was a child under the age of eighteen. Their encounter was thus statutory rape. Her crime led to pregnancy, and after she gave birth, she sued the teenager for child support. Despite his protest that he did not consent to the sexual activity that led to the child’s birth, the court affirms the child support order.As a practical matter, this inconsistency in treatment of unwanted fatherhood may instinctively make sense, applying two different rules for two very different contexts. A deeper examination of the cases, however, reveals much more going on. This Article uses the frame of masculinities theories to dive further into the inconsistency and uncovers two groundbreaking implications that stretch far beyond the specific circumstances. First, the varying treatment of embryo disposition disputes and the characterization of male victims of statutory rape have one constant: a dismissal and rejection of men’s emotions. Second, exploring the inconsistent treatment of men’s consent to become fathers in sexual reproduction versus stored embryos reveals a clear rejection by courts of the personhood concept that embryos are human life. These revelations inform not only how embryo disposition disputes should be resolved, but also fetal personhood and family law’s treatment of fathers.
      PubDate: Fri, 25 Feb 2022 15:57:01 PST
  • Aggregate Stare Decisis

    • Authors: Kiel Brennan-Marquez
      Abstract: The fate of stare decisis hangs in the wind. Different factions of the Supreme Court are now engaged in open debate—echoing decades of scholarship—about the doctrine’s role in our constitutional system. Broadly speaking, two camps have emerged. The first embraces the orthodox view that stare decisis should reflect “neutral principles” that run orthogonal to a case’s merits; otherwise, it will be incapable of keeping the law stable over time. The second argues that insulating stare decisis from the underlying merits has always been a conceptual mistake. Instead, the doctrine should focus more explicitly on the merits—by diagnosing the magnitude of past error and allowing “egregiously wrong” decisions to be dismantled without constraint.This Article develops a compromise approach: an “aggregate voting rule,” requiring the combined vote across both courts—the one that crafted the holding at t1 and the one scrutinizing it at t2—to total a majority. In other words, the durability of past decisions should depend on the amount of support they were originally able to command. This would capture the main appeal of reform position—the idea that stare decisis should not preclude the correction of significant missteps—but also retain the core of stability that defines the orthodox view. Under the latter, the ideal of respect for precedent drives the doctrine’s content. Under an aggregate voting rule, the same ideal would express itself, instead, in the doctrine’s mechanical structure—freeing judges to focus on the merits, without abandoning the (non-merits) values that have long animated stare decisis. This would facilitate the airing out of disagreement and the forward motion of law, while also encouraging judges to locate avenues of doctrinal compromise.
      PubDate: Fri, 25 Feb 2022 15:56:58 PST
  • Questions the IRS Will Not Answer

    • Authors: Emily L. Cauble
      Abstract: When a taxpayer plans to undertake a transaction and its tax consequences are unclear, the taxpayer can request a letter ruling from the IRS. The IRS issues numerous letter rulings each year. In 2020, for instance, the IRS issued 777 letter rulings. The IRS refrains from issuing letter rulings on certain topics. At the beginning of each year, the IRS publishes an updated list of the topics on which it will not rule. Many of the topics on which it will not rule arise in areas of tax law governed by standards where the tax outcome depends heavily on each transaction’s specific facts. This pattern is consistent with the IRS’s stated position that it ordinarily does not rule in certain areas because of the factual nature of the matter involved.This Article suggests that a policy against ruling on fact-specific topics sacrifices an opportunity to rule on many of the very topics for which a letter ruling could be particularly useful. Because the fact-specific nature of a topic makes it ill-suited for generally applicable guidance, such a topic is a particularly good candidate for a letter ruling.Existing literature contains very little examination of the reasons for the IRS’s policy against ruling on fact-specific topics. This Article begins to fill that gap and suggests eight potential concerns that might underlie the IRS’s reticence. This Article analyzes whether each concern could be addressed by means other than simply not issuing rulings. To gauge the validity of some of the concerns, this Article examines letter rulings that the IRS did, in fact, issue on several fact-specific topics prior to adding them to the no ruling list. The previously issued letter rulings illustrate that many of the concerns do not inevitably arise in the case of all letter rulings on fact-specific topics. Some of the previously issued letter rulings also demonstrate steps that the IRS should take, or avoid, in order to mitigate some of the concerns if it does rule on fact-specific topics.
      PubDate: Fri, 25 Feb 2022 15:56:56 PST
  • Ethnically Segmented Markets: Korean-Owned Black Hair Stores

    • Authors: Felix B. Chang
      Abstract: Races often collide in segmented markets where buyers belong to one ethnic group while sellers belong to another. This Article examines one such market: the retail of wigs and hair extensions for African Americans, a multi-billion-dollar market controlled by Korean Americans. Although prior scholarship attributed the success of Korean American ventures to rotating communal credit, this Article argues that their dominance in ethnic beauty supplies stems from collusion and exclusion.This Article is the first to synthesize the disparate treatment of ethnically segmented markets in law, sociology, and economics into a comprehensive framework. Its primary contribution is to forge the concept of ethnically segmented and misaligned (ESM) markets, where buyers and sellers are ethnically distinct from one another.ESM markets challenge entrenched paradigms in antitrust. In the wigs and extensions market, the endurance of Korean American retailers confounds conventional notions of market power, which is measured at the firm level. This market suggests that numerous in-group incumbents can compete intensely with one another but collaborate to stymie out-group insurgents.
      PubDate: Fri, 25 Feb 2022 15:56:53 PST
  • Administrative Investigations

    • Authors: Aram A. Gavoor et al.
      Abstract: This Article establishes the subject of federal administrative investigations as a new area of study in administrative law. While the literature has addressed investigations by specific agencies and congressional investigations, there is no general account for the trans-substantive constitutional value of administrative investigations. This Article provides such an account by exploring the positive law, agency behaviors, and constraints pertaining to this unresearched field. It concludes with some urgency that the Administrative Procedure Act of 1946—the statute that stands as a bill of rights for the Administrative State—does not serve to regulate administrative investigations and that Article III courts have held that such agency behavior is essentially unreviewable since the mid-twentieth century. It identifies the historical guideposts of administrative investigations and analyzes the substantial power agencies wield when they investigate. It surveys and analyzes the limiting principles in law that operate as nominal constraints to unlawful administrative investigative behavior. This Article concludes by considering procedural and substantive constraints that could be implemented to align agency investigations with constitutional and statutory norms without sacrificing their ability to fulfill their critical missions for the American public.
      PubDate: Fri, 25 Feb 2022 15:56:50 PST
  • Using the Internal Revenue Code to Limit Coaching Salaries: A Proposal to
           Bring Amateurism Back into College Football

    • Authors: Blaire Mikesell
      Abstract: Since formal collegiate athletic competitions began in 1852, they have gained popularity and become a mainstay in American culture. This rise in popularity coupled with increased media coverage allowed college athletics, and particularly college football, to grow into a successful business that generates billions of dollars in revenue each year. Colleges and institutions earn this athletic revenue as tax-free income due to their tax-exempt status under the Internal Revenue Code § 501(c)(3) tax-exemption statute. The basic policy underlying this statute is as follows: colleges and universities provide an important benefit to the public by providing education, and in exchange for that provided benefit, the IRS does not tax educationally related income. Currently, income generated by college athletics is educationally related and thus is earned under the tax-exempt status of the university.Because of the NCAA’s current amateurism requirement, colleges cannot use any of that revenue to pay student-athletes, and instead, most of the income generated by college athletics is paid to college coaches or invested in athletic facilities. This has created an “arms race” in which schools compete for athletic talent by hiring the best coaches and building the nicest athletic facilities. This “arms race” has caused coaching salaries to rise exponentially. The salaries coaches currently make are out of line with salaries paid to any other academic personnel employed by a university. This Note argues that this disparity should be regulated by the Internal Revenue Code. Congress should pass a new section of the Code that requires universities and colleges to limit head coaching salaries to an amount more in line with the salary amounts paid to other, similar university personnel if those schools want to retain their tax-exempt status.
      PubDate: Mon, 31 Jan 2022 07:42:52 PST
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