Law Commons^™

Gamestop And The Reemergence Of The Retail Investor, Jill E. Fisch

All Faculty Scholarship

The GameStop trading frenzy in January 2021 was perhaps the highest profile example of the reemergence of capital market participation by retail investors, a marked shift from the growing domination of those markets by large institutional investors. Some commentators have greeted retail investing, which has been fueled by app-based brokerage accounts and social media, with alarm and called for regulatory reform. The goals of such reforms are twofold. First, critics argue that retail investors need greater protection from the risks of investing in the stock market. Second, they argue that the stock market, in term, needs protection from retail investors. …

Using A Mindfulness And Gratitude Practice To Improve Student Wellness, Amanda K. Maus Stephen

Presentations

The University of Oregon School of Law hosted the annual, two-day conference for legal writing professors to share ideas and research on topics related to legal writing and legal writing instruction. This presentation described two experimental semester-long mindfulness activities—mindfulness minutes and gratitude journaling—and student reactions to them.

Law School News: Should Prison Be Abolished? 10-6-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

"The Rule” And The Constitution: Witness Exclusion And The Right To A Public Trial, Stephen E. Smith

Faculty Publications

Federal and state rules of evidence provide for the exclusion of potential witnesses from the courtroom. But, in criminal proceedings, the Sixth Amendment’s right to a public trial presumes that a courtroom will be open. The public trial right has been widely interpreted to restrict even “partial closures” – the exclusion of an individual or group from a criminal courtroom. The rule on witnesses is potentially at odds with the right to a public trial. Witness exclusion, by rule, is almost automatic. The Sixth Amendment, on the other hand, requires heightened scrutiny before individuals may be excluded from the courtroom. …

Germany’S Erneuerbare-Energien-Gesetz And Incentives For Renewable Energy Production, James Stitt

CICLR Online

The Renewable Energy Sources Act (“EEG”) was introduced in Germany over twenty years ago and has since influenced similar legislation in over eighty countries. The EEG “forms the legal basis for the support for renewable energy sources in Germany.” The most groundbreaking feature of the EEG is the feed-in tariff (“FIT”) system incentivizing corporations and even individuals to join in renewable energy production. FITs were first introduced in 1991 with the Electricity Feed-In Act (Stromeinspeisungsgesetz), the legislation that started Germany’s push toward renewable energy source production.

This post was originally published on the Cardozo International & Comparative Law Review on …

Brief Of Patent Law Professors As Amici Curiae In Support Of Petitioners, Christa J. Laser

Law Faculty Briefs and Court Documents

This Court should reverse the Federal Circuit and hold that IPR estoppel extends only to grounds that were raised or could have been raised during the IPR proceeding. Estoppel would therefore extend to instituted grounds, whether raised during the proceeding or not. Estoppel would not extend to uninstituted grounds, such as grounds which might have been challenged in the petition for review but were not.

Are Rules Effective Before Publication? Reflections On The D.C. Circuit’S Decision In Humane Society V. Usda, Jack M. Beermann

Faculty Scholarship

Since at least 1980, there has been a documented increase in regulatory activity at the end of presidential terms, especially in the post-election period when the outgoing President’s successor is from the other party. This phenomenon has come to be known as “midnight regulation,” and the products of end-of-term legislative rulemaking are referred to as “midnight rules.” While a study I conducted for the Administrative Conference of the United States revealed that most midnight rules are routine,[1] some are not and are designed to project the agenda of the outgoing administration into the future and force the incoming administration …

Public Carry Versus Public Health — The Harms To Come From The Supreme Court’S Decision In Bruen, Michael Ulrich

Faculty Scholarship

In June, the U.S. Supreme Court ruled in New York State Rifle & Pistol Association v. Bruen that the Second Amendment provides a constitutionally protected right to carry firearms in public. The decision is already creating turmoil in the form of political and public backlash and a scramble by policymakers to find new ways to combat the growing gun-violence epidemic in the United States. The majority opinion in Bruen, written by Justice Clarence Thomas, will have a devastating impact on efforts to mitigate gun violence and address racial disparities, but the reasoning used in the decision could cause even …

Logan, Leland Hallowell, 1905-1980 (Mss 744), Manuscripts & Folklife Archives

MSS Finding Aids

Finding aid only for Manuscripts Collection 744. Correspondence and papers of Bowling Green, Kentucky attorney Leland H. Logan. Includes some personal material regarding his law practice and draft status, diaries for 1944 and 1945, and a small group of files representing his legal work, especially for the Home Owners’ Loan Corporation.

Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader

Faculty Scholarship

“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …

Sentencing Co-Offenders, Ehud Guttel, Ittai Paldor, Gideon Parchomovsky

All Faculty Scholarship

Tort law and criminal law are the two main vehicles utilized by the state to deter wrongful behavior. Despite the many similarities between the two legal fields, they differ in their treatment of collaborations. While tort law divides liability among joint-tortfeasors, criminal law abides by a no-division rule that imposes on each co-offender the full brunt of the sanction. Thus, each of two offenders who jointly steal $1,000, will be subject to the full corresponding penalty (rather than the divided penalty for stealing $500).

This Article demonstrates that in property and financial crimes, the no-division regime of criminal law harms …

Ed Sheeran Copyright Victory Highlights Issues In The Music Industry, Shayna Grife

AELJ Blog

Ed Sheeran won a copyright infringement lawsuit filed against him for alleged copyright infringement in his popular song “Shape of You” in 2018.The Grammy-winning song, which also holds the title of the most streamed song on Spotify, was accused of being too similar to “Oh Why” by Sami Switch. The lawsuit raised questions for the music industry as to the issues associated with the increase of copyright infringement suits and the damaging effects that they may have on the music industry.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 4, 2022. The …

Labeling “The Last Prisoners:” New Legislation Requires New York Museums To Identify Nazi-Looted Artwork, Stephanny Avshalomov

AELJ Blog

“[S]he walked through the apartment and she turned to the SS men and she said, ‘Ich habe gernes. Alles.’ – ‘I like it. All of it.’ … they took everything out of [ ] our house.” The “greatest art theft in history” was executed alongside the largest mass murder in history. In 1940, Hitler established the Einsatztab Reichsleither Rosenberg (ERR) solely to confiscate and destroy art in German-occupied territories. When discussing the Holocaust, which included the grueling systematic annihilation of European Jews, the importance of artwork seems trivial. It, however, must be recognized: “You can wipe out an entire generation, …

Cryptocurrency, Legibility, And Taxation, Amanda Parsons

Duke Law Journal Online

In Jarrett v. United States, a taxpayer in Tennessee is arguing that staking cryptocurrency did not result in him earning “income” under federal income tax law. This case illustrates the fundamental challenge that cryptocurrency and blockchain technology present for tax law. Wealth creation in the crypto space is not readily legible to the state. This absence of legibility threatens tax law’s reliance on placing economic activities into categories to determine how they should be taxed. Furthermore, this case highlights the harms Congress and Treasury are risking by not taking action on cryptocurrency taxation. The uncertainty and lack of guidance …

Mmu: 10/03/22–10/09/22, Student Bar Association

Monday Morning Update

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Jackie's Corner

The Obsolescence Of Blue Laws In The 21st Century, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

Depending on where in the United States one is located on any given Sunday or Christian holiday, it is against the law to buy a beer or a car, go shopping, hunt, or even play Bingo. This prohibition is a direct result of Blue Laws, alternatively called Sunday Closing Laws or Lord’s Day Acts. Blue Laws frustrate commerce and recreational activities. While at one time they might have aligned with societal values or served a practical secular purpose, such as providing workers with a day of rest, modern society renders Blue Laws obsolete and nonsensical.

Due to rapid change in …

United States V. Allen And Judicial Review Of Early Pandemic Courtroom Closures, Stephen E. Smith

Faculty Publications

Trial court judges in 2020 were faced with a remarkable new problem. They were asked to accommodate both public health concerns (preventing trial participants, jurors, and spectators from contracting COVID-19) and criminal defendants’ Sixth Amendment right to a public trial. As courts of appeal begin their review of cases alleging violations of the Sixth Amendment’s right to a public trial arising during the early pandemic, they should be careful to consider conditions as they were at the time. We have learned much about COVID-19 and its management since then. But reviewing courts should not demand that trial courts possess public …

Religious Freedom Or Freedom To Discriminate?, Samantha Woods

ERSJ Blog

In April of 2021, students seeking to create a LGBTQ group on the campus of Yeshiva University (“YU”) filed suit against the institution for its flagrant violations of New York City Human Rights Law (“NYCHRL”) when repeatedly rejecting the formation of an LGBTQ student group on campus. Plaintiffs applied to be school-sponsored clubs through the proper channels and were denied recognition at YU by the highest levels of leadership, including Yeshiva’s President Rabbi Dr. Ari Berman. The university argues it is a religious institution, exempt from the NYCHRL. YU’s religious freedom defense fails when considered in light of its primary …

Ndls Communicator: Week Of 09.26.22, Notre Dame Law School

NDLS Communicator

The Latest News

• ND Law establishes new Murphy Fellowship for students studying law and religion
• Wrongful Convictions and the Death Penalty in America: Fireside Chat with Sister Helen Prejean and Dean Cole
• The Religious Liberty Clinic filed an amicus brief urging the Supreme Court to grant certiorari in Groff v. DeJoy.
• Emily Bremer writes, "Final Agency Action on Student Loan Forgiveness: Whether, When, and How Will (and Should) it Come?" for the Yale Journal of Regulation.
• Nicole Garnett wrote about Arizona's universal school choice decision in the article, "A Radical Step in the Right Direction" for the City-Journal."
• The Black …

Reflections Of An Unapologetic Safety Regulator, Robert S. Adler

The Regulatory Review in Depth

No abstract provided.

Backslide: A Comparison Of The United States And Colombia’S Recent Rulings On Abortions, Ethan Libo

CICLR Online

In 2022, the United States Supreme Court and Colombia’s Constitutional Court both handed out 5-4 decisions heading the opposite way on the issue of abortion. Historically, Latin American countries have been very strict on abortion. The Latin American populace is known to be of devout religious faith and to hold culturally conservative values. However, in 2022, Colombia joined a growing trend in Latin America when the country’s Constitutional Court ruled that the criminalization of abortion under twenty-four weeks is unconstitutional. In 2006, the Constitutional Court upheld the criminalization of abortion. However, the Court at that time carved out exceptions when: …

Nonpatentability Of Business Methods: Legal And Economic Analysis, Peter Menell, Michael J. Meurer

Faculty Scholarship

In this brief filed in Bilski vs. Kappos, pending before the U.S. Supreme Court, we argue that the "useful Arts" limitation of the the Intellectual Property Clause of the U.S.Constitution restricts the scope of Congress's patent power to technological advances. Beyond this constitutional limitation, Congress has not extended patent protection to business methods. The subject matter provision of the 1952 Patent Act merely codified existing subject matter categories and limitations, including the exclusion of business methods. The First Inventor Defense Act of 1999 did not alter this limitation on patentable subject matter. It did not amend the subject matter provision. …

Consider Freedom Of Speech: Perspectives On How To Hold Difficult Conversations With Respect, Vivian E. Hamilton, Andrew D. Stelljes

Popular Media

No abstract provided.

William & Mary Law School Clinical Program Newsletter (Fall), William & Mary Law School

William & Mary Law School Clinical Program Newsletter

No abstract provided.

Rethinking Introductory Statutory Research Instruction, Leslie A. Street, Frederick Dingledy

Library Staff Publications

No abstract provided.

Segmented Innovation In The Legalization Of Mitochondrial Transfer: Lessons From Australia And The United Kingdom, Myrisha S. Lewis

Faculty Publications

The U.S. is often characterized as a leader in innovation—a home of Nobel Prize‐winning scientists, innovators, and abundant research funding. Yet, in the area of assisted reproduction combined with genetic modification or substitution, what I call “reproductive genetic innovation,” that characterization begins to wane. This Article focuses on the regulation of mitochondrial transfer, a subset of reproductive genetic innovation. While human clinical trials related to mitochondrial transfer go forward in the U.K., the clinical use of the technique remains illegal in the U.S. due to a system of subterranean regulation by the U.S. Food and Drug Administration and a now-recurring …

Understanding The Global Refugee Crisis [Paralegal Studies], Andrea R. Irias

Open Educational Resources

This assignment was designed to meet the criteria of the Global Learning competency and Written ability rubrics. Although it was created for the Paralegal Program, it was not made to fit one specific course as we are unsure where it fits best in the program. As we continue to experiment with placement, we have piloted this assignment in two different courses (BTP203 and BTP205) with similar results. It was designed for students to complete outside of the classroom as homework with minimal in-class instruction as the content of the assignment did not truly fit in the courses that held it …

Zero Textbook Cost Syllabus For Com 3045 (Communication, Law, And Free Speech), Donovan Bisbee

Open Educational Resources

From pornography to political speech, from the lewd to the libelous, and everywhere in between, the law is forever drawing lines that divide protected speech (what you can say in America) from unprotected speech (what you cannot say in America). This is an interdisciplinary course that draws on philosophical, legal, and rhetorical theories of communication to help explain how those lines are drawn. Readings include famous court cases involving freedom of speech, as well as political and philosophical writings on all sides of the free speech debate. This course is part of the required core for the Communication Studies Major, …

Beyond Window Dressing: Public Participation For Marginalized Communities In The Datafied Society, Michele E. Gilman

All Faculty Scholarship

We live in a datafied society in which our personal data is being constantly harvested, analyzed, and sold by public and private entities, and yet we have little control over our data and little voice in how it is used. In light of the impacts of algorithmic decision-making systems—including those that run on machine learning and artificial intelligence—there are increasing calls to integrate public participation into the adoption, design, and oversight of these tech tools. Stakeholder input is particularly crucial for members of marginalized groups, who bear the disproportionate harms of data-centric technologies. Yet, recent calls for public participation have …

Direct Cash Transfers And Tax Policy: Reporting Cash Transfers For Maximum Benefit To The Recipients, Jacqueline Lainez Flanigan

Book Chapters

Unconditional direct cash transfers (DCTs) are supported by a vast national and international evidence base. They have been shown to have a positive impact on health outcomes, school attendance, child development, household spending, and poverty reduction (Morton et. al., 2020). For young people experiencing homelessness or housing instability, DCTs offer a promising approach for moving swiftly to safe, permanent housing and starting on pathways to independence. While a DCT can be an important source of support and financial safety net, there is currently no express exemption from income for DCTs, potentially impacting a young person’s tax burden. Ultimately, this could …