Law Commons^™

Indiana Law Fertility Fraud Expert Participates In Washington, Dc Roundtable, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Professor Jody Madeira, an internationally recognized expert in fertility fraud, bioethics, and law and medicine, participated this morning (January 26) in a bipartisan roundtable discussion with victims of fertility fraud. The event was facilitated by U.S. Representatives Stephanie Bice (R-OK), Mikie Sherrill (D-NJ), Julia Letlow (R-LA), and Chrissy Houlahan (D-PA) following the January 23 introduction of their Protecting Families From Fertility Fraud Act, which would—for the first time—make it a federal crime to knowingly misrepresent the source of DNA used in any procedure that involves assisted reproduction.

After Fifty Years Of The War On Drugs, The Nation Looks West: Why Oregon Required The Drug Addiction Treatment And Recovery Act And What We Can Learn From It, Cailin Harrington

Seton Hall Law Review

No abstract provided.

Table Of Contents

Seton Hall Law Review

No abstract provided.

Reducing Fragmentation: A Transparent And Efficient Approach To The American Health Care System, Annie Lucatuorto

Seton Hall Law Review

No abstract provided.

The Truth About Falsity: “Dueling Experts” And Why The False Claims Act Requires Proof Of An Objective Falsity, Rachel L. Leung

Seton Hall Law Review

No abstract provided.

The Electoral Count Act: “Regularly Given,” The Denominator Problem, And The 101st Vote, Thomas "T.J." Kingeter

Seton Hall Law Review

No abstract provided.

Deregulation: Too Big For One Branch, But Maybe Not For Two, Stephen M. Johnson

Seton Hall Law Review

No abstract provided.

Citizenship, Assimilation, And The Insular Cases: Reversing The Tide Of Cultural Protectionism At American Samoa, Jason Buhi

Seton Hall Law Review

No abstract provided.

White Christian Nationalism Enters The Political Mainstream: Implications For The Roberts Court And Religious Freedom, Stephen M. Feldman

Seton Hall Law Review

No abstract provided.

Witness Hide-And-Seek: Why Federal Prosecutors Should Record Pretrial Interviews, Christina M. Frohock, Jeffrey E. Marcus

Seton Hall Law Review

No abstract provided.

Paternalism In International Human Rights Law, Lucas Lixinski, Noam Peleg

Duke Journal of Comparative & International Law

This article argues that international human rights law (IHRL) at a system-wide level produces paternalistic effects that undermine the work it is meant to do for rightsholders. Analyzing the work of four key United Nations human rights treaty bodies, we show how institutional arrangements exclude rightsholders from having a say on their own interests in what IHRL should mean for them, and we are instead left with a body of norms, guidelines, and institutions with self-serving dynamics that reinforce the position of IHRL institutions and only secondarily benefit rightsholders.

Law Over Legalism: International Court Legitimacy In Lautsi V. Italy, Sebastián Guidi

Duke Journal of Comparative & International Law

2009 brought an existential crisis to the European Court of Human Rights (ECtHR). In November, it unanimously ordered Italy to remove crucifixes from public schools. Backlash was unprecedented. The government promptly announced it would not comply. Politicians and social actors all across the political spectrum harshly criticized the decision and bashed the Court. Ten European countries joined Italy in referring the case to the Grand Chamber of the Court, which reversed the decision in 2011. The storm abated. Lautsi v. Italy likely received the most public attention of any ECtHR judgment. Much of the Court’s subsequent case-law was decided with …

New Perspectives On Iran: The Path To Progressive Family Law Before The Islamic Revolution, Neeki Memarzadeh

Duke Journal of Comparative & International Law

A progressive Iranian women's rights movement has slipped through the cracks of mainstream scholarship. In the 1960s, Iranian women rallied for progressive family law reforms; their efforts culminated in the Family Protection Law of 1967. This note provides an alternative view of the women's rights movement in the Middle East and highlights how a social movement gave rise to comprehensive and progressive family law reform. Over the last century, Iran has been under authoritarian rule, first in the form of a monarchy and now in a theocracy. In spite of this, Iranian women have been steadfast in the fight for …

Federal Recognition Of Native American Tribes In The United States And The International Right To Self-Determination: Why Congress Should Exercise Its Constitutional Authority To Federally Recognize The Lumbee Tribe, James Ennis Street

Duke Journal of Comparative & International Law

Native American tribal nations covet state and federal tribal recognition. The Lumbee Tribe is one of those tribes. Though North Carolina has granted the Lumbee Tribe State recognition, the Lumbee Tribe's 134-year-long quest for Federal recognition has not been successful. Neither of the two types of Federal Recognition – Administrative and Congressional – have permitted the Lumbee Tribe to benefit alongside the other federally-recognized Tribes from increased respect, sovereignty, and resources. Instead, the Lumbee Tribe has been spun around by the regulatory recognition rigmarole.

In this article, I first explore arguments for and against federal recognition of the Lumbee Tribe. …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

It Ain't Real Funky Unless It's Got That Pop: Artistic Fair Use After Goldsmith, Benjamin A. Spencer

Duke Journal of Constitutional Law & Public Policy Sidebar

The Pop Art style pioneered by artists such as Paolozzi, Lichtenstein, and Rauschenberg challenged notions of what art could be by recasting common objects and images into new contexts, transforming them into pieces that served as both cultural commentary and novel expression. Though examination of an artwork's meaning or message may seem more natural for a critic or curator, the Supreme Court will have a chance to weigh in with Andy Warhol Foundation for the Visual Arts v. Goldsmith. Here, the court will decide whether a Warhol painting based on a photograph of Prince is protected by fair use. …

Volunteer Income Tax Assistance Available To Local Community Members Through March 28, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

With tax season now in full-swing through April 18, a dedicated group of volunteers is making the filing process easier—and cheaper—for many local community members. Local taxpayers with an annual income under $57,000 are eligible for free tax preparation help from students at the Indiana University Maurer School of Law’s Volunteer Income Tax Assistance site on Monday and Tuesday evenings from 6 to 9 p.m. beginning January 30.

Mmu: 01/23/23–01/29/23, Notre Dame Law School, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

1L of the Week: Drew Bennison

2Ls Taking Ls: Josh Mannery

Ask a 3L: Christine Logan

Jackie's Corner

Vol. 64, No. 02 (January 23, 2023)

Indiana Law Annotated

No abstract provided.

The Immigration Shadow Docket, Faiza W. Sayed

Northwestern University Law Review

Each year, the Board of Immigration Appeals (BIA)—the Justice Department’s appellate immigration agency that reviews decisions of immigration judges and decides the fate of thousands of noncitizens—issues about thirty published, precedential decisions. At present, these are the only decisions out of approximately 30,000 each year, that are readily available to the public and provide detailed reasoning for their conclusions. This is because most of the BIA’s decision-making happens on what this Article terms the “immigration shadow docket”—the tens of thousands of other decisions the BIA issues each year that are unpublished and nonprecedential. These shadow docket decisions are generally authored …

Consequences And The Supreme Court, Aaron Tang

Northwestern University Law Review

May the Supreme Court consider consequences when it decides the hard cases that divide us? The conventional wisdom is that it may not. Scholars have argued, for example, that consequentialism is a paradigmatic “anti-modal” form of reasoning at the Court. And the Court itself has declared that “consequences cannot change our understanding of the law.”

This Article presents evidence of a possible shift in the standard account. Although many kinds of consequentialist arguments remain forbidden, such as naked judicial efforts to maximize social utility, a particular form of consequentialism is now surprisingly common when the Supreme Court confronts hard cases. …

The Counterdemocratic Difficulty, Aziz Z. Huq

Northwestern University Law Review

Since the 2020 elections, debate about the Supreme Court’s relationship with the mechanisms of national democracy has intensified. One important thread of that debate focuses critically on the possibility of a judicial decision flipping a presidential election or thwarting the will of national majorities respecting progressive legislation, and pushes concerns about the Court’s effect on national democracy. A narrow focus on specific interventions, however, does not exhaust the subtle and consequential ways in which the Court influences whether and how the American democratic system thrives or fails. A narrow focus is partial because it construes democracy as merely the aggregation …

Defining Interim Storage Of Nuclear Waste, Max Johnson

Northwestern University Law Review

Nuclear power may be humanity’s best hope to curb climate-altering greenhouse gas emissions. But public fear of its dangers, including the toxicity of nuclear waste, undermines its expansion. To provide for more effective waste disposal, in 2021 and 2022 the Nuclear Regulatory Commission (NRC) recommended licensing two privately-owned nuclear waste storage facilities—called Consolidated Interim Storage Facilities (CISFs)—to be built in New Mexico and in Texas. Both states vehemently oppose the construction and operation of these facilities: legislators in both states have proposed state laws opposing them, and both states have sued the NRC challenging the legality of the facilities’ licensure. …

The Misunderstood History Of Textualism, Tara Leigh Grove

Northwestern University Law Review

This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish “modern textualism” from the so-called “plain meaning school” of the late nineteenth and early twentieth centuries—an approach that both textualists and non-textualists alike have long viewed as improperly “literal” and “wooden.” This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term “plain meaning” or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to …

Liability For Deadly Failure: Rejecting The Push For Prep Act Preemption And Restraining Prep Act Immunity For Senior Living Facilities And Nursing Homes, Mai R. Contino

Pepperdine Law Review

In the wake of COVID-19, there has been a surge of wrongful death cases filed by plaintiff families in state courts. These families allege that their loved one contracted and died from COVID-19 because the nursing home or senior living facility at which their loved one resided failed to take proper COVID-19 prevention measures. In response, defendant facilities have removed these actions to federal court, arguing that the PREP Act preempts plaintiffs’ state law claims and grants facilities immunity from liability for loss related to qualified actions taken during a public health emergency. This Comment rejects facilities’ push for preemption …

Table Of Contents And Masthead, Maribeth Beyer

Pepperdine Law Review

No abstract provided.

Typing A Terrorist Attack: Using Tools From The War On Terror To Fight The War On Ransomware, Jake C. Porath

Pepperdine Law Review

The United States faces a grave challenge in its fight against cyberattacks from abroad. Chief among the foreign cyber threats comes from a finite number of “ransomware-as-a-service” gangs, which are responsible for extorting billions of dollars from American citizens and companies annually. Prosecuting these cybercriminals has proven exceedingly difficult. Law enforcement often struggles to forensically trace ransomware attacks, which makes identifying and prosecuting the perpetrators challenging. Moreover, even when prosecutors can identify the perpetrators of these attacks, the ransomware gangs are headquartered in foreign adversarial nations that do not extradite criminals to the United States. Finally, ransomware gangs are governed …

Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson

Pepperdine Law Review

Second Amendment Sanctuaries deploy nonenforcement policies and strategies in defiance of firearms laws of superior jurisdictions. The scholarship so far has focused on whether Second Amendment Sanctuary policies are legally enforceable. This Article advances the scholarship beyond questions of de jure validity by examining the potential for practical, de facto efficacy of Second Amendment Sanctuary policies. This Article concludes that even where Second Amendment Sanctuaries have weak claims to formal validity, defiant public officials still have broad opportunities to implement Second Amendment Sanctuary policies through the exercise of enforcement discretion. The conclusion that enforcement discretion can effectuate sanctuary policies is …

Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks

Pepperdine Law Review

Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world’s largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland’s biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan’s Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG which lost $5.5 billion. Archegos, itself lost $20 billion over two days. The unique characteristics of total return swaps and …

Examining The Role Of Ags In A Just Transition, Bethany Davis Noll, Terri Gerstein

Pace Environmental Law Review

Tackling the climate crisis requires transitioning from fossil fuel to clean energy, which will necessarily have a significant impact on jobs and the economy overall. The impact of this shift has sometimes been feared as a development that will be harmful to workers and the economy. Fossil fuel jobs are seen as good jobs--well-paid jobs with good benefits and protections--while the emerging clean energy industry has not yet uniformly embraced a high-road employment model. But workers’ rights and environmental concerns are not fundamentally incompatible. There are many policies and tools that can be and are being harnessed to bring about …