Texas A&M Law Review最新文献

{"title":"Forumless: Why Victims of the Uyghur Crisis Should Be Able to Vindicate Their Claims in Federal Court","authors":"Chase Archer","doi":"10.37419/lr.v9.i3.4","DOIUrl":"https://doi.org/10.37419/lr.v9.i3.4","url":null,"abstract":"U.S. courts can serve as forums for victims of international human rights abuses to litigate claims against foreign defendants. Oftentimes, U.S. courts are the only option for foreign litigants who are unable to seek remedies in their own countries or in international courts. This Comment discusses the difficulties a victim of the Uyghur crisis would face attempting to use U.S. courts to litigate claims against the Chinese government or government officials under existing law. The purpose of this Comment is not to address any potential challenge to a claim but rather to address the claim preclusions common to foreign plaintiffs seeking to litigate international human rights claims in U.S. courts. In light of recent Supreme Court decisions limiting the ability of foreign plaintiffs to do so, this Comment argues that Congress should pass legislation authorizing Uyghur victims to use U.S. courts as forums for claims against perpetrators within the Chinese government.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130201893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Feminist Legal Theory and #MeToo: Revisiting Tarana Burke’s Vision of Empowerment Through Empathy","authors":"Penelope E. Andrews","doi":"10.37419/lr.v10.i1.7","DOIUrl":"https://doi.org/10.37419/lr.v10.i1.7","url":null,"abstract":"\u0000It is my purpose to ground this Article in ubuntu and the politics of radical love as applied to the goals of #MeToo and its pursuit of redress for victims of sexual harms. Part II explores the convergences and divergences of #MeToo with feminist campaigns of an earlier era. Part III questions whether a renewed quest for gender equality, largely spawned by a Twitter/social media campaign, may lead to sustainable change built on notions of empathy and restorative justice, which was the vision espoused by Carrie in her work and which influenced Tarana Burke when she founded #MeToo. Part IV examines restorative justice approaches in the South African Truth and Reconciliation Commission as a way to address the harms of sexual violence. I conclude in Part V with possibilities and limitations in the restorative justice approach to redressing these kinds of claims. \u0000","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"110 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114500202","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"America’s Race-Based Caste Structure: Its Impact in College and Professional Sports","authors":"Timothy O. Davis","doi":"10.37419/lr.v9.i3.2","DOIUrl":"https://doi.org/10.37419/lr.v9.i3.2","url":null,"abstract":"Racial inequities in college and professional sports remain prevalent and persistent despite the awareness of such inequities by those with the power to effectuate change. This Article proposes that explanations frequently offered for the slow pace of progress often fail to account for the hierarchy derived from a race-based caste system embedded in American society. Relying on the work of author Isabel Wilkerson, Part II describes major pillars of America’s race-based caste structure. Part III examines how stereotypes of Blacks’ presumed intellectual inferiority and a lack of fitness for leadership roles adversely impact their access to positions of power in both college and professional sports. Part IV discusses how the caste-system hierarchy and its accompanying mindset manifests in the academic marginalization of Black college athletes and the transfer of revenue disproportionately generated by them to predominantly White coaches, athletic administrators, and athletes in non-revenue generating sports. This Article discusses the limited effectiveness of legal doctrine, including anti-discrimination laws and contract law principles, to significantly diminish the above-referenced racial inequities in college and professional sport. In addition, it proposes specific policies that may assist in achieving greater racial equity in sport. It concludes, however, that a necessary step in moving toward greater racial equity in college and professional sports is an honest recognition that systemic racial inequities are, in part, a product of a caste-system mindset.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122050110","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Introduction to the Renaissance Woman of Dispute Resolution: Carrie Menkel-Meadow’s Contributions to New Directions in Feminism, Ethics, and ADR","authors":"N. Welsh","doi":"10.37419/lr.v10.i1.introduction","DOIUrl":"https://doi.org/10.37419/lr.v10.i1.introduction","url":null,"abstract":"Introduction to Texas A&M Law Review's 2022 Symposium Issue","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114891486","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Good For the Goose but Not for The Gander: Biden’s Promise to Appoint a Black Female to The Supreme Court and Title VII Principles","authors":"Michael Conklin","doi":"10.37419/lr.v9.arg.4","DOIUrl":"https://doi.org/10.37419/lr.v9.arg.4","url":null,"abstract":"The 2022 retirement of Justice Stephen Breyer and President Joe Biden’s promise to exclude all non-Black females from consideration for his replacement has sparked controversy. Some have praised the decision as essential to ensuring diversity on the Court and point out that there are more than enough qualified Black women to select from. And some believe the decision will result in corporate leaders making similar calls for equity in their own companies. Others have criticized the decision, expressing a belief that discriminating on the basis of race and gender is “not a great start in selecting someone sworn to provide equal justice under the law.” Even some commentators on the left have criticized Biden’s promise due to how it might “needlessly tokenize[]” the eventual candidate and “doom[] them to racist and sexist skepticism before they even [get] the nod.” A survey found that over three-fourths of respondents believe Biden should consider all possible nominees.\u0000\u0000Biden’s promise was initially made at the 2020 Democratic primaries. It was likely a wise strategic move by then-candidate Biden, as the pledge prompted the loudest cheers of the night at the Democratic debate where it was announced. It was also a powerful signal to those who doubted Biden’s treatment of Black women after his role in the 1991 Anita Hill hearings. The pledge may also have been a response to how Democrats underperformed among the Black female demographic in the 2016 presidential election. Indeed, Biden improved among that demographic in 2020. Regardless of the practicality of Biden’s pledge, refusing to consider people for a job based solely on their race and gender typically implicates Title VII employment discrimination protections.\u0000\u0000Title VII employment discrimination protections do not apply to the position of Supreme Court Justice due to its classification as an employee in the excepted service and not the competitive service.[12] This Article looks beyond that fatal determination to analyze what the result of Title VII principles would be if applicable. This analysis provides valuable insight into the purpose of Title VII protections and the significance of discrimination in one of the highest government positions. Part II of this Article provides a brief historical context of Presidents who have either expressed or implied that race or gender was a motivating factor for their Supreme Court nominations. Part III explains why Title VII does not apply to Supreme Court Justices. Part IV evaluates whether Supreme Court Justices are “hired” under Title VII. Part V looks at whether liability under the expansive employment-agency rule is applicable. Part VI examines the difficulty of identifying a harmed party. Part VII considers whether Supreme Court Justices are employees or independent contractors. Part VIII assesses whether gender could qualify as a bona fide occupational qualification. Parts IX and X likewise assess the related issues of whether customer preference","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"229 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123064907","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fintech and Anti-Money Laundering Regulation: Implementing an International Regulatory Hierarchy Premised on Financial Innovation","authors":"Nicholas A. Roide","doi":"10.37419/lr.v9.i2.5","DOIUrl":"https://doi.org/10.37419/lr.v9.i2.5","url":null,"abstract":"Innovations in financial technology (“fintech”) have rippling effects across global markets. Fintech firms utilizing virtual assets and disintermediating blockchain technology continue to rapidly grow in strength and number. As systemic risk mounts due to the inter-jurisdictional nature of fintech, antimony laundering (“AML”) regulators must search for an international answer to maintain global financial stability and protect consumers against illicit activities. A variety of solutions have appeared within local AML regulatory frameworks. These frameworks tend to function as a hierarchy with three ordered objectives: market integrity, rule clarity, and innovation. However, frameworks often place too much emphasis on market integrity and squeeze out the financial innovation inherent in the fintech sector. This Comment argues for an international AML regulatory hierarchy that places paramount importance on the innovative nature of fintech yet still promotes market integrity.\u0000\u0000This Comment examines the efficacy of this proposed hierarchy through the AML regulatory frameworks of several offshore financial centers (“OFCs”): Malta, Gibraltar, and Jersey. While OFCs have often been accused of light-touch regulation, they are championing a push into financial innovation with strong regulatory safeguards that maintain market integrity and guard against systemic risk. These AML regulatory frameworks provide support for the Comment’s central argument. The Comment concludes with an examination of methods by which the proposed hierarchy can be implemented. Ultimately, innovation hubs nurture regulatory learning and allow regulators to employ a conglomeration of initiatives such as regulatory sandboxes and mentorship regimes, which can be macro-produced to attain the desired hierarchical outcome.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"182 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124574420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Courting Prom Night Voters","authors":"Spencer Ryan Lockwood","doi":"10.37419/lr.v9.i2.6","DOIUrl":"https://doi.org/10.37419/lr.v9.i2.6","url":null,"abstract":"A creature of state law, voter registration is a point of national contention and a subject that frequents partisan debate. Federal legislation—meant to unsew a patchwork quilt of discriminatory practices against voters—complicated the voter registration process. States have changed their voter registration laws in the wake of Supreme Court opinions and prolonged litigation. But an opportunity endures for states to take further accountability for their younger voting-age populations without more federal intervention. By amending their election codes to require that high school graduates choose whether to register to vote, states can act as legislative laboratories and court their prom night voters to guarantee the fundamental right to vote.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125937662","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"If Past is Prologue, then the Future is Bleak: Contracts, Covid–19, and the Changed Circumstances Doctrines","authors":"D. Hart","doi":"10.37419/lr.v9.i2.2","DOIUrl":"https://doi.org/10.37419/lr.v9.i2.2","url":null,"abstract":"At the heart of most of the systemic problems currently confronting individuals and businesses as a result of the COVID–19 pandemic is quite literally a contract. Housing. Insurance. Food. Health care. Child care. Employment. Manufacturing. Construction. Supply chains. You name it. Contracts are implicated everywhere. So make no mistake: How contract law addresses these ostensibly private contracts will have profound social consequences. If the past really is prologue, then the future is indeed bleak. The empirical study conducted for this Article establishes what the conventional wisdom has claimed for the last 70 years. More specifically, the empirical study here shows that the common law’s changed circumstances doctrines (“CCDs”)—namely, impossibility, impracticability of performance, and frustration of purpose—will generally not excuse a party from performing his obligations under a contract, regardless of the changed circumstance he alleges. Contrary to all the CCD literature that addresses this issue, this Article makes the unconventional argument that the CCDs should be more broadly available, meaning they should be more successful in excusing contract performance when triggered by catastrophic circumstances. And unlike the rest of the field, which focuses on the CCDs themselves, this Article argues that to effectively address the allocation of unforeseen risks in general and catastrophic risks like a pandemic in particular, we must reframe the legal approach to contract formation. From there, given that the solution to the changed circumstances problem preferred by courts and commentators is an explicit risk-allocation term in the parties’ contract, the solution proposed in this Article to the risk-allocation problem literally suggests itself. A risk-and-loss-allocation clause should be mandated in most contracts as a part of contract formation. The type of risk-and-loss-allocation clause and how the clause would work would depend on whether the contract is co-drafted or adhesive. Generally, the inclusion of a risk-and-loss-allocation clause would facilitate transactions and encourage contracting by ensuring that contracts remain efficient and predictable. The main difference between the risk-and-loss-allocation clause proposed here and existing contract law, of course, is who ends up bearing all the risk and loss occasioned by the catastrophic changed circumstance. To be clear, if nothing changes and our approach to contract formation remains the same as it is right now, then all of the risk and all of the attendant loss will generally be left to lie where it falls—namely, on the party trying to get out of the contract because of the changed circumstances—and this will be the result regardless of the legal theory used to justify (or demonize) the CCDs or any changes made to the doctrines themselves. But if we finally acknowledge the public aspects of contracts and contract law, namely, that they do in fact produce social consequences tha","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"117 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131587374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ending the Charade: The Fifth Circuit Should Expressly Adopt the Deliberate Indifference Standard for ADA Title II and RA Section 504 Damages Claims","authors":"Derek Warden","doi":"10.37419/lr.v9.i2.4","DOIUrl":"https://doi.org/10.37419/lr.v9.i2.4","url":null,"abstract":"While the Americans with Disabilities Act (“ADA”) has been law for over 30 years, the Fifth Circuit Court of Appeals has yet to adopt a definitive standard for how plaintiffs win damages under Title II of that law. Further, while the Rehabilitation Act (“RA”) has been law for almost 50 years, the Fifth Circuit has failed to announce any specific standard for how plaintiffs obtain damages under that law as well. I previously wrote an article in the pages of this journal that sought to “clarify” the Fifth Circuit’s jurisprudence on the issue. In Fifth Indifference: Clarifying the Fifth Circuit’s Intent Standard for Damages Under Title II of the Americans with Disabilities Act, 7 Tex. A&M L. Rev. Arguendo 1 (2019), I argued (1) that the Fifth Circuit should adopt the “deliberate indifference” standard and (2) that no Fifth Circuit precedent should be read as explicitly forbidding the adoption of that standard. My paper has seen great success in its downloads and its recent citation in a brief to the Fifth Circuit. However, the Fifth Circuit has still failed to adopt any specific standard and continues to use phrases like “seem to have required” and “something more than deliberate indifference.” Fortunately, what the Fifth Circuit has said and what it has done have been two different things. In reality, the Fifth Circuit has been using nothing more, less, or different than a standard deliberate indifference analysis. Thus, the “seem to have required more than deliberate indifference” standard is a mere charade. This charade should now be abandoned, and the Fifth Circuit should explicitly adopt the deliberate indifference standard. That standard being (1) a defendant knew of facts that presented a substantial risk of harm to an ADA or RA right and (2) the actor or entity failed to act appropriately on that risk.\u0000\u0000To make this argument, this Article is divided as follows. Part I discusses the historical and doctrinal background of the ADA and the RA. Part II discusses how other circuits have addressed the issue of damages actions under Title II of the ADA and the RA. Part III discusses the Fifth Circuit’s relevant jurisprudence. Part IV then explains why the Fifth Circuit should explicitly adopt deliberate indifference. Finally, Part V briefly argues why lower courts and any individual panels of the Fifth Circuit could ignore the “something more than deliberate indifference” standard and explicitly adopt ordinary “deliberate indifference.”","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116883104","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}