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2017

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Full-Text Articles in Law

Making Innovation More Competitive: The Case Of Fintech, Rory Van Loo Dec 2017

Making Innovation More Competitive: The Case Of Fintech, Rory Van Loo

Faculty Scholarship

This Article examines recent financial technology (“fintech”) developments to diagnose the federal regulatory institutional framework surrounding innovation. Startups offer artificially intelligent financial assistants, touchless payments, and other potentially game-changing products for individuals. Yet unlike more lightly regulated industries such as retail goods, in consumer finance barriers to entry have insulated the largest businesses from competition. Regulatory insulation helps explain why “Too Big To Fail” banks have become bigger, U.S. innovation has lagged that of foreign countries, and consumers pay higher prices. Taking an institutional lens to this problem reveals an overlooked shortcoming in financial regulation: the organizational design of ...


The Maker Movement: Copyright Law, Remix Culture, And 3d Printing, Matthew Rimmer Dec 2017

The Maker Movement: Copyright Law, Remix Culture, And 3d Printing, Matthew Rimmer

Matthew Rimmer

3D printing is a process of making physical objects from three-dimensional digital models. 3D printing is a form of additive manufacturing – rather than a traditional form of subtractive manufacturing. 3D printing is a disruptive technology, which promises to transform art and design, science and manufacturing, and the digital economy.

The Minister for Industry, Innovation and Science, the Hon. Christopher Pyne, has highlighted the key role of 3D printing for manufacturing and material science in Australia: ‘Manufacturing remains a key driver in our economy, but as the industrial landscape changes, the sector needs to transition to more innovative and economically viable ...


Estate Of Adams V. Fallini, 132 Nev. Adv. Op. 81 (December 29, 2016), Krystina Viernes Dec 2017

Estate Of Adams V. Fallini, 132 Nev. Adv. Op. 81 (December 29, 2016), Krystina Viernes

Nevada Supreme Court Summaries

The Court considered whether a party may appeal a district court’s order granting an NRCP 60(b) motion to set aside a final judgment for fraud upon the court. The Court held the district court’s order interlocutory and may not be appealed until a final judgment is entered.The Court held that the district court was not barred from considering the NRCP 60(b) motion and the district court did not abuse its discretion in granting relief based on fraud upon the court.


The Jewish Family – Between Family Law And Contract Law, Yehezkel Margalit Dec 2017

The Jewish Family – Between Family Law And Contract Law, Yehezkel Margalit

Hezi Margalit

Traditional Jewish family law has persevered for hundreds of years and rules covering marriage, the raising of children, and divorce are well established; yet pressures from modern society are causing long held views to be re-examined. The Jewish Family: Between Family Law and Contract Law examines the tenets of Jewish family law in the light of new attitudes concerning the role of women, assisted reproduction technologies, and prenuptial agreements. It explores, through interdisciplinary research combining the legal aspects of family law and contract law, how the Jewish family can cope with both old and modern obstacles and challenges. Focusing on ...


Income Tax Concerns With Purpose Trusts, Thomas E. Simmons Dec 2017

Income Tax Concerns With Purpose Trusts, Thomas E. Simmons

Thomas E. Simmons

No abstract provided.


Making The Most Of Cooperative Federalism: What The Clean Power Plan Has Already Achieved, Gabriel Pacyniak Dec 2017

Making The Most Of Cooperative Federalism: What The Clean Power Plan Has Already Achieved, Gabriel Pacyniak

Faculty Scholarship

The fate of the EPA's Clean Power Plan-the signature Obama Administration action to reduce greenhouse gas ("GHG") emissions from existing power plants under the Clean Air Act-is uncertain at best given pending litigation and the opposition of President Donald Trump. Despite this uncertainty, the development of the Clean Power Plan provides an important case study of how rulemaking under a cooperative federalism statutory structure can prompt broad, beneficial policy engagement by states and stakeholders, even in a contentious regulatory action. In the development of the Clean Power Plan, active state and stakeholder engagement and an iterative process of "trying ...


Secession And Federalism In The United States: Tools For Managing Regional Conflict In A Pluralist Society, Erin Ryan Nov 2017

Secession And Federalism In The United States: Tools For Managing Regional Conflict In A Pluralist Society, Erin Ryan

Erin Ryan

This Article explores the use of federalism and secession as tools for managing regional conflict within pluralist governance, drawing on underappreciated features of the American experience.  Epic struggles to balance autonomy with interdependence have taken on new urgency as dissatisfaction with globalization inspires political cataclysms unimaginable just a few years ago—including ‘Brexit’ from the European Union and American threats to leave NATO.  The same impetus toward devolution also surfaces in heated intra-national conflicts.  Recent calls for secession in Scotland, Catalonia, Québec, the Sudan, and even the United States reveal multiple political contexts in which questions have been raised about ...


Survey Of (Mostly Outdated And Often Ineffective) Laws Affecting Work-Related Monitoring, Robert Sprague Nov 2017

Survey Of (Mostly Outdated And Often Ineffective) Laws Affecting Work-Related Monitoring, Robert Sprague

Robert Sprague

This article reviews various laws that affect work-related monitoring. It reveals that most of our privacy laws were adopted well before smartphones and the Internet became ubiquitous; they still hunt for physical secluded locations; and, because they are based on reasonable expectations of privacy, they can easily be circumvented by employer policies that eliminate that expectation by informing workers they have no right to privacy in the workplace. This article concludes that the future—indeed the present—does not bode well for worker privacy.


Why Michigan V. Epa Requires The Meaning Of The Cost/Rationality Nexus Be Clarified, Daniele Bertolini, Carolina Arlota Nov 2017

Why Michigan V. Epa Requires The Meaning Of The Cost/Rationality Nexus Be Clarified, Daniele Bertolini, Carolina Arlota

daniele bertolini


This article examines the recent decision in Michigan v. EPA, in which the US Supreme Court held that the EPA acted unreasonably in not considering costs at the listing phase of the regulation of power plants’ emissions under a specific provision of the Clear Air Act (CAA). In Michigan the Court interpreted the applicable statutory provision based on the principles of rational administrative decision-making, thereby establishing a connection between cost consideration by administrative agencies and the principles of reasonable exercise of administrative discretion. We contend that Michigan failed to properly appreciate the logical and axiological connection between cost consideration and ...


Collection Of Cryptocurrency Customer-Information: Tax Enforcement Mechanism Or Invasion Of Privacy?, Austin Elliott Nov 2017

Collection Of Cryptocurrency Customer-Information: Tax Enforcement Mechanism Or Invasion Of Privacy?, Austin Elliott

Duke Law & Technology Review

After granting permission to the Internal Revenue Service to serve a digital exchange company a summons for user information, the Federal District Court for the Northern District of California created some uncertainty regarding the privacy of cryptocurrencies. The IRS views this information gathering as necessary for monitoring compliance with Notice 2014-21, which classifies cryptocurrencies as property for tax purposes. Cryptocurrency users, however, view the attempt for information as an infringement on their privacy rights and are seeking legal protection. This Issue Brief investigates the future tax implications of Notice 2014-21 and considers possible routes the cryptocurrency market can take to ...


Coming To Grips With The Ethical Challenges For Capital Post-Conviction Representation Posed By Martinez V. Ryan, John H. Blume, W. Bradley Wendel Nov 2017

Coming To Grips With The Ethical Challenges For Capital Post-Conviction Representation Posed By Martinez V. Ryan, John H. Blume, W. Bradley Wendel

W. Bradley Wendel

In its groundbreaking decision in Martinez v. Ryan, 556 U.S. 1 (2012), the Supreme Court of the United States held that inadequate assistance of post-conviction counsel could be sufficient “cause” to excuse a procedural default thus allowing a federal court in habeas corpus proceedings to reach the merits of an otherwise barred claim that an inmate was deprived of his Sixth Amendment right to the effective assistance of counsel at trial. The upshot of Martinez is that, if state postconviction counsel unreasonably (and prejudicially) fails to raise a viable claim of ineffective assistance of trial counsel, then there is ...


"Never Having Loved At All": An Overlooked Interest That Grounds The Abortion Right, Sherry F. Colb Nov 2017

"Never Having Loved At All": An Overlooked Interest That Grounds The Abortion Right, Sherry F. Colb

Sherry Colb

Feminist and some other abortion rights advocates typically ground the right to abortion in bodily integrity, thus conceptualizing abortion as vindicating a right to disassociate oneself from an intruder. Although valid as a matter of logic, the bodily integrity argument is libertarian and seemingly selfish. But a fundamentally associative interest also grounds the abortion right. A woman who cannot raise a child but is legally required to bear one must undergo the psychic pain of forced separation from an infant whom she is biologically programmed to love. Human mothers, like other mammalian mothers, grieve the loss of their young, as ...


The Supreme Court’S Application Of 'Ordinary Contract Principles' To The Issue Of The Duration Of Retiree Healthcare Benefits: Perpetuating The Interpretation/Gap-Filling Quagmire, Robert A. Hillman Nov 2017

The Supreme Court’S Application Of 'Ordinary Contract Principles' To The Issue Of The Duration Of Retiree Healthcare Benefits: Perpetuating The Interpretation/Gap-Filling Quagmire, Robert A. Hillman

Robert Hillman

The United States Supreme Court purported to apply "ordinary contract principles" in its decision reversing the Sixth Circuit Court of Appeals in M&G Polymers USA v. Tackett . The Sixth Circuit had held that plaintiffs, retired employees of M&G, were entitled to lifetime healthcare benefits under their union's agreement with M&G. According to the Supreme Court, the Sixth Circuit wrongly relied on a false set of "inferences" established in International Union v. Yard-Man, Inc. to find that "in the absence of extrinsic evidence to the contrary, the provisions of [the collective bargaining agreement] indicated an intent to ...


Putting Distribution First, Robert C. Hockett Nov 2017

Putting Distribution First, Robert C. Hockett

Robert C. Hockett

It is common for normative legal theorists, economists and other policy analysts to conduct and communicate their work mainly in maximizing terms. They take the maximization of welfare, for example, or of wealth or utility, to be primary objectives of legislation and public policy. Few if any of these theorists seem to notice, however, that any time we speak explicitly of maximizing one thing, we speak implicitly of distributing other things and of equalizing yet other things. Fewer still seem to recognize that we effectively define ourselves by reference to that which we distribute and equalize. For it is in ...


The Finance Franchise, Robert C. Hockett, Saule T. Omarova Nov 2017

The Finance Franchise, Robert C. Hockett, Saule T. Omarova

Robert C. Hockett

No abstract provided.


Private Law And The Future Of Patents, Oskar Liivak Nov 2017

Private Law And The Future Of Patents, Oskar Liivak

Oskar Liivak

As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just not compatible with private law and patent doctrine should reflect a pure public law theoretical basis. I agree that today's dominant patent theory is incompatible with private law principles. Yet agreeing with that inherent incompatibility does not imply that doctrine needs to be reformed. There ...


Legitimacy And Impartiality As Basic Principles For Sovereign Debt Restructuring, Odette Lienau Nov 2017

Legitimacy And Impartiality As Basic Principles For Sovereign Debt Restructuring, Odette Lienau

Odette Lienau

This essay suggests that attentiveness to the principles of legitimacy and impartiality may contribute to the instrumental success of any sovereign debt restructuring, and highlights institutional elements or practices often associated with these goals. An additional question can be raised as to whether these principles might have a further claim to special consideration, as part of emerging customary international law or general principles of law. Any determination along these lines is made difficult by the fact that legitimacy is a composite principle, constituted of multiple procedural and substantive norms, and perhaps lacks the necessary specificity to be a legal rule ...


Tthe Requirement Of Domestic Participation In New Mining Ventures In Zambia, Muna Ndulo Nov 2017

Tthe Requirement Of Domestic Participation In New Mining Ventures In Zambia, Muna Ndulo

Muna B Ndulo

No abstract provided.


Don't End Or Audit The Fed: Central Bank Independence In An Age Of Austerity, Neil H. Buchanan, Michael C. Dorf Nov 2017

Don't End Or Audit The Fed: Central Bank Independence In An Age Of Austerity, Neil H. Buchanan, Michael C. Dorf

Michael C. Dorf

No abstract provided.


Strange Bedfellows: How An Anticipatory Countermovement Brought Same-Sex Marriage Into The Public Arena, Michael C. Dorf, Sidney Tarrow Nov 2017

Strange Bedfellows: How An Anticipatory Countermovement Brought Same-Sex Marriage Into The Public Arena, Michael C. Dorf, Sidney Tarrow

Michael C. Dorf

Since the 1980s, social movement scholars have investigated the dynamic of movement/countermovement interaction. Most of these studies posit movements as initiators, with countermovements reacting to their challenges. Yet sometimes a movement supports an agenda in response to a countermovement that engages in what we call “anticipatory countermobilization.” We interviewed ten leading LGBT activists to explore the hypothesis that the LGBT movement was brought to the fight for marriage equality by the anticipatory countermobilization of social conservatives who opposed same-sex marriage before there was a realistic prospect that it would be recognized by the courts or political actors. Our findings ...


Measuring The Chilling Effect, Brandice Canes-Wrone, Michael C. Dorf Nov 2017

Measuring The Chilling Effect, Brandice Canes-Wrone, Michael C. Dorf

Michael C. Dorf

Supreme Court doctrine grants special protection against laws that “chill” protected speech, most prominently via the overbreadth doctrine. The overbreadth doctrine permits persons whose own speech is unprotected to challenge laws that infringe the protected speech of third parties. The Court has not generally applied overbreadth and the other speech-protective doctrines to other constitutional rights even though other rights could also be subject to a chilling effect. The case law simply assumes that the chilling effect only acts on the exercise of speech, and that this justifies treating speech differently from other rights. We tested these assumptions with respect to ...


Retiring Forum Non Conveniens, Maggie Gardner Nov 2017

Retiring Forum Non Conveniens, Maggie Gardner

Maggie Gardner

When it comes to transnational litigation in the federal courts, it is time to retire the doctrine of forum non conveniens. The doctrine, which allows judges to decline jurisdiction in cases they believe would be better heard in foreign courts, is meant to promote international comity and protect defendant fairness. But it is not well-designed for the former purpose, and given recent developments at the Supreme Court, it is dangerously redundant when it comes to the latter. This Article seeks to demythologize forum non conveniens, to question its continuing relevance, and to encourage the courts and Congress to narrow its ...


Reconsidering Trials In Absentia At The Special Tribunal For Lebanon: An Application Of The Tribunal's Early Jurisprudence, Maggie Gardner Nov 2017

Reconsidering Trials In Absentia At The Special Tribunal For Lebanon: An Application Of The Tribunal's Early Jurisprudence, Maggie Gardner

Maggie Gardner

Since Nuremburg, no individual has been prosecuted in an international or internationalized court entirely in his or her absence. That may soon change. The Special Tribunal for Lebanon, which is empowered to try defendants in absentia, has now confirmed its first indictment. While its trial in absentia procedures were met with concern and criticism from some quarters when they were first announced, reconsideration is warranted in light of subsequent judicial developments. The judges of the Special Tribunal for Lebanon have now established in their preliminary decisions an interpretive approach to the Tribunal’s Statute that is adamantly purposive. This purposive ...


Res Judicata As Requisite For Justice, Kevin M. Clermont Nov 2017

Res Judicata As Requisite For Justice, Kevin M. Clermont

Kevin M. Clermont

From historical, jurisprudential, and comparative perspectives, this Article tries to synthesize res judicata while integrating it with the rest of law. From near their beginnings, all systems of justice have delivered a core of res judicata comprising the substance of bar and defense preclusion. This core is universal not because it represents a universal value, but rather because it responds to a universal institutional need. Any justice system must have adjudicators; to be effective, their judgments must mean something with bindingness; and the minimal bindingness is that, except in specified circumstances, the disgruntled cannot undo a judgment in an effort ...


Civil Procedure's Five Big Ideas, Kevin M. Clermont Nov 2017

Civil Procedure's Five Big Ideas, Kevin M. Clermont

Kevin M. Clermont

Civil procedure, more than any other of the basic law-school courses, conveys to students an understanding of the whole legal system. I propose that this purpose should become, more openly, the organizing theme of the course. The focus should remain, of course, on the mechanics of the judicial branch. What I champion is giving some conscious attention, albeit mainly in the background and at an introductory level, to the big ideas of the constitutional structure within which the law formulates civil procedure. Such attention would unify the doctrinal study, while enriching it for the students and revealing its true importance.


When Empathy Bites Back: Cautionary Tales From Neuroscience For Capital Sentencing, Sheri Lynn Johnson, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume Nov 2017

When Empathy Bites Back: Cautionary Tales From Neuroscience For Capital Sentencing, Sheri Lynn Johnson, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume

John H. Blume

This Article examines the implications of emerging neuroscientific findings regarding empathy for capital trials. We have approached this task with caution because neuroscientists’ understanding of the human brain is still evolving. As with any new field, if neuroscience is completely trusted before it is thoroughly tested, there is a risk of embracing the new phrenology. Given the state of the research, our advice to defense lawyers is quite modest, but we believe that there are some important lessons for lawyers, judges, legislators, and other stakeholders in the capital punishment system.


Forty Years Of Death: The Past, Present, And Future Of The Death Penalty In South Carolina (Still Arbitrary After All These Years), John H. Blume, Lindsey S. Vann Nov 2017

Forty Years Of Death: The Past, Present, And Future Of The Death Penalty In South Carolina (Still Arbitrary After All These Years), John H. Blume, Lindsey S. Vann

John H. Blume

Forty years ago, the Supreme Court of the United States deemed constitutional new death penalty laws intended to minimize the arbitrariness which led the Court to invalidate all capital sentencing statutes four years earlier in Furman v. Georgia. Over the last four decades the Court has — time and again — attempted to regulate the “machinery of death.” Looking back over the Court’s work, many observers, including two current Supreme Court justices, have questioned whether the modern death penalty has lived up to expectations set by the Court in the 1970s or if, despite 40 years of labor, the American death ...


Did Russian Cyber Interference In The 2016 Election Violate International Law?, Jens David Ohlin Nov 2017

Did Russian Cyber Interference In The 2016 Election Violate International Law?, Jens David Ohlin

Jens David Ohlin

When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by hacking into the email system of the Democratic National Committee and releasing its emails, international lawyers were divided over whether the cyber-attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of “established international norms of behavior,” though some international lawyers were more willing to describe the cyber-attack as a violation of international law. However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear ...


Judging The Judiciary By The Numbers: Empirical Research On Judges, Jeffrey J. Rachlinski, Andrew J. Wistrich Nov 2017

Judging The Judiciary By The Numbers: Empirical Research On Judges, Jeffrey J. Rachlinski, Andrew J. Wistrich

Jeffrey J Rachlinski

Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that ...


The Cornell Journal Of Law And Public Policy: Celebrating 25 Years, Jeffrey J. Rachlinski Nov 2017

The Cornell Journal Of Law And Public Policy: Celebrating 25 Years, Jeffrey J. Rachlinski

Jeffrey J Rachlinski

No abstract provided.