Law Commons^™

Free Speech For Me But Not For Airbnb”: Restricting Hate-Group Activity In Public Accommodations, Sabrina Apple -- J.D. Candidate, 2024

Vanderbilt Law Review

As digital services grow increasingly indispensable to modern life, courts grow inundated with novel claims of entitlement against these platforms. As narrow, formalistic interpretations of Title II permit industry leaders to sidestep equal access obligations, misinformed interpretations of First Amendment protections allow violent speech and conduct to parade uninhibited. Within the mistreatment of these two established doctrines lies a critical distinction: the former is in desperate need of modernization to fulfill its original intent, and the latter is in desperate need of restoration for the same ends. This climate creates conditions ripe for doctrinal upheaval. This Note considers how the …

Why The Multilateral Investment Court Is A Bad Idea For Africa, Akinwumi Ogunranti

Dalhousie Law Journal

The UNCITRAL Working Group III (WG III) is discussing procedural reforms in the investor state dispute settlement system (ISDS). The ISDS framework is criticized on various grounds, including arbitrator bias, lack of transparency, and inconsistent arbitral decisions. One of the recent reform proposals before the WG III is the possibility of a multilateral investment court (MIC). This proposal is championed by European Union states and supported by Canada. The proposal recommends replacing ISDS’ Ad hoc investment tribunals with an established and permanent court where states appoint judges. This paper examines the MIC reform option and argues that replacing the ISDS …

Show And Tell, Liam Mchugh-Russell

Dalhousie Law Journal

...to break the rules wisely, you have to know the rules well.

–Le Guin, Steering the Craft

I finished my doctorate in June of 2019. Most of my waking hours that late summer and early fall were spent writing and rewriting cover letters, teaching statements, and research agendas (and equity statements, long CVs, short CVs, etc.)—all the variegated materials demanded from applicants to tenure-track positions in North American law faculties. Writing those materials, and integrating the feedback on early drafts that I received from a host of generous peers and colleagues, became an accidental study in the principal subtext of …

Humour, A Meditation, John Henry Schlegel

Dalhousie Law Journal

Back in 1987 when Critical Legal Studies was still “hot,” I was shopping a piece that was a long review essay on Laura Kalman’s history, Legal Realism at Yale. An acquaintance who was on that faculty invited me to present the piece—which I am still quite proud of—at the workshop he was running. Owen Fiss was the first person to ask a question. He wanted to know whether the piece was “serious” work or whether it was just an elaborate joke. Surprised and bewildered by the question, I answered, “Both.” In response he asserted that unless it were one or …

U'Wa Indigenous People Vs. Columbia: Potential Applications Of The Escazu Agreement, Ariana Lippi

Sustainable Development Law & Policy

Though the case is ongoing, and results are still to be seen, it in many ways sets a precedent for indigenous communities in Latin America seeking redress for environmental and cultural injustices. With Colombia’s recent ratification of The Escazú Regional Agreement (the Agreement herein) in 2022, this case presents a unique opportunity for implementation of the Agreement and greater accountability within existing domestic legislation.

Natural Resources In The Arctic: The Equal Distribution Of Uneven Resrouces, Ganeswar Matcha, Sudarsanan Sivakumar

Sustainable Development Law & Policy

This paper analyses the governance machine in place at the Arctic and examines the application of the principles of “common heritage of mankind” at the Arctic. This paper also offers some tentative propositions aimed at protecting Out Bound investment rights and how the World Trade Organization or other countries, like the U.S., can intercede in the Arctic investment sphere and attempt to regulate along with the United Nations Convention for the Law of the Sea.

Incentivizing Sustainability In American Enterprise: Lessons From Finnish Model, Vasa T. Dunham

Sustainable Development Law & Policy

The disparate climate performances of Finland and the United States, two of the wealthiest countries in the world, bring to light the question of how corporate responsibility has been inspired in each jurisdiction. Having established the urgency of the climate crisis and the importance of corporate behavior in optimizing a given country’s approach to protection of the global environment, an examination of each nation’s legal frameworks may shed light on features of the corporate regime that are effective in advancing sustainability goals and those that are not.22 Part I of this paper establishes a comparative framework by providing background on …

Editor's Note, Shade Streeter, Reagan Ferris

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

The Psychology Of Crimes Of Terrorism, Mohamed Ezzat Mostafa Sallam

The World Research of Political Science Journal

Recently, countering the crimes related to terrorism has grown to be of great concern in several countries. The combat of terrorism is a strategic goal in order to maintain national security, especially with reference to the economic, social, and political ramifications encountered whilst doing so. Such criminal behavior may extend beyond the borders of one country, targeting the human right to safely live anywhere. Based on the fact that every human behavior has its motives and ends, the criminal behavior behind the crimes related to terrorism has its motives and ends as well. This highlights the significance of the study …

Financial And Administrative Corruption And Its Political And Economic Effects On The State Of Algeria From 2010 To 2020, Omnia Khaled Elyas Morsi

The World Research of Political Science Journal

This study aimed to shed light on the phenomenon of financial and administrative corruption in its various forms. The study also analyzed the impact of financial and administrative corruption on political and economic stability within the State of Algeria during the time period (2010/2020). It also sought to answer the problem of the study, which was represented in the following question. To what extent did administrative and financial corruption contribute to destabilizing political and economic stability and obstructing the development process within the Algerian state? The analytical approach to analyzing and measuring some indicators affiliated with the World Bank and …

S.B. H(8): Battle Of The Bills And Private Enforcement, Hailey Martin

University of Cincinnati Law Review

No abstract provided.

A New Private Law Of Policing, Cristina Carmody Tilley

Brooklyn Law Review

American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …

Puerto Rican Presidential Voting Rights: Why Precedent Should Be Overturned, And Other Options For Suffrage, Sigrid Vendrell-Polanco

Brooklyn Law Review

The United States has continued to hold Puerto Rico as a colony, much like the British empire did the US colonies, and has given it no clear path to incorporation, statehood, or independent sovereignty. It has also denied its citizens the right to vote for their president and have voting representation in Congress. Current case law regarding Puerto Rican presidential voting rights and voting representation in Congress rests on precedent that dates almost as far back as its acquisition—the infamous Insular Cases. This case law is inconsistent with prior precedent, constitutional principles, and does not account for Puerto Rico’s contributions …

Aligning The Stars: Institutional Convergence As Social Change, Raymond H. Brescia

Fordham Law Review

In a democracy, in which the legal and constitutional systems should reflect popular will and individual and collective self-determination are the engines through which those systems are realized, what are the means by which individuals, organizations, and social movements might bring about meaningful and sustainable social change that makes that society more just, more inclusive, and more equitable? A common understanding of how social change happens, and who can bring about that change, is represented in an oft-quoted phrase, attributed to Margaret Mead: “Never doubt that a small group of committed people can change the world: Indeed, it is the …

Access To Justice In The Nova Scotia Small Claims Court 1980-2022, William H. Charles

Dalhousie Law Journal

*This contribution has not been peer-reviewed.

In his latest research paper the author explores the extent or degree to which the Nova Scotia Small Claims Court achieves its declared purpose of providing the citizens of the province with what can accurately be described as a “People’s Court,” that is, a legal agency that would allow ordinary citizens to pursue their legal claims expeditiously and at a reasonable cost with a process that involved lawyers/adjudicators rather than judges. After a review and analysis of several thousand decisions by Nova Scotia Adjudicators/lawyers, the author concluded that the creators of the court had …

2023 Martin Luther King,Jr. Keynote Lecture; Celebrating The Legacy Of Dr. Martin Luther King, Jr., Answering The Call To Public Service, Reginald Shuford

Villanova Law Review

No abstract provided.

The Problem Of Extravagant Inferences, Cass Sunstein

Georgia Law Review

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

How To Interpret The Securities Laws?, Zachary J. Gubler

Seattle University Law Review

In discussions of the federal securities laws, the SEC usually gets most of the attention. This makes some sense. After all, it is the agency charged with administrating the securities laws and regulating the industry as a whole. It makes the majority of the laws; it engages in enforcement actions; it reacts to crises; and it, or sometimes even its individual commissioners, intervene publicly in policy debates. Often overlooked in such discussion, however, is the role of the Supreme Court in shaping securities law, and a new book by Adam Pritchard and Robert Thompson demonstrates why this is an oversight. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Eavesdropping: The Forgotten Public Nuisance In The Age Of Alexa, Julia Keller

Vanderbilt Law Review

Always-listening devices have sparked new concerns about privacy while evading regulation, but a potential solution has existed for hundreds of years: public nuisance.

Public nuisance has been stretched to serve as a basis of liability for some of the most prominent cases of modern mass-tort litigation, such as suits against opioid and tobacco manufacturers for creating products that endanger public health. While targeting conduct that arguably interferes with a right common to the public, this use of public nuisance extends far beyond the original understanding of the doctrine. Public nuisance has not been applied, however, to another prominent contemporary issue: …

Stakeholder Governance On The Ground (And In The Sky), Stephen Johnson, Frank Partnoy

Seattle University Law Review

Professor Frank Partnoy: This is a marvelous gathering, and it is all due to Chuck O’Kelley and the special gentleness, openness, and creativity that he brings to this symposium. For more than a decade, he has been open to new and creative ways to discuss important issues surrounding business law and Adolf Berle’s legacy. We also are grateful to Dorothy Lund for co-organizing this gathering.

In introducing Stephen Johnson, I am reminded of a previous Berle, where Chuck allowed me some time to present the initial thoughts that led to my book, WAIT: The Art and Science of Delay. Part …

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Restorative Justice As A Democratic Practice, Daniel S. Mcconkie Jr.

Loyola University Chicago Law Journal

Our criminal justice system, to be truly democratic, should be more responsive to those most affected by it, and this calls for significant participation from citizens. Unfortunately, the state-centered, professionalized criminal justice system marginalizes citizens at every stage, depriving them of a voice and power. Instead, the system should embody and encourage criminal justice citizenship, which refers to the rights and privileges of ordinary people to participate directly in certain aspects of the criminal justice system and to deliberate in some of its workings. Such citizenship is indispensable to democracy, or rule by the people.

Restorative justice, especially where it …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

Democratizing New York’S Eminent Domain Regime, Gregory Wagner

Brooklyn Law Review

Since the Supreme Court’s landmark eminent domain decision in Kelo v. City of New London, forty-three states have amended their eminent domain laws to constrain their own eminent domain powers. New York, however, was not one of them. In Goldstein v. N.Y. State Urban Development Corp., New York’s highest court decided firmly in favor of the state’s broad eminent domain powers, yet counseled New York lawmakers to act to legislatively limit the state’s unbridled eminent domain authority. Again, New York did not do so—allowing an eminent domain regime that leads to systemic deprivation of public participation to remain fully in …