Theft, Extortion, And The Constitution: Land Use Practice Needs An Ethical Infusion, 2022 Touro University Jacob D. Fuchsberg Law Center
Theft, Extortion, And The Constitution: Land Use Practice Needs An Ethical Infusion, Michael M. Berger
Touro Law Review
There are many ways in which property owners/developers interact with regulators. To the extent that texts and articles deal with the ethical duties of the regulators, they tend to focus on things like conflicts of interest. But there is more. This article will examine numerous other ways in which regulators may run afoul of ethical practice in dealing with those whom they regulate
Public Nuisance As Risk Regulation, 2022 Columbia Law School
Public Nuisance As Risk Regulation, Thomas W. Merrill
Faculty Scholarship
Public nuisance has always been defined in terms of the object of protection – the community, the public, or perhaps even the state as a whole. Public nuisance in this regard has been juxtaposed to private nuisance, which protects individual persons and their use and enjoyment of land. Commentary on public nuisance has thus long been concerned with defining (without notable success) what it means to advance a public as opposed to a private right.
In this paper, I offer a different take on the function of public nuisance. The common law is designed to provide redress for actual harm, …
Table Of Contents, 2022 Seattle University School of Law
Table Of Contents, Seattle University Law Review
Seattle University Law Review
Table of Contents
Foreword, 2022 Seattle University School of Law
Race And Washington’S Criminal Justice System 2021: Report To The Washington Supreme Court, 2022 Seattle University School of Law
Race And Washington’S Criminal Justice System 2021: Report To The Washington Supreme Court, Task Force 2.0 Research Working Group
Seattle University Law Review
This report is an update on the 2011 Preliminary Report on Race and Washington’s Criminal Justice System. This update does not include as context the history of race discrimination in Washington, and readers are encouraged to view the 2011 report for its brief historical overview.14 The 2011 report began with that historical overview because the criminal justice system does not exist in a vacuum. Instead, it exists as part of a legal system that for decades actively managed and controlled where people could live, work, recreate, and even be buried.
Members of communities impacted by race disproportionality in Washington’s criminal …
Regulating Fraud On The Marketplace Of Ideas: Federal Securities Law As A Model For Constitutionally Permissible Social Media Regulation, 2022 Seattle University School of Law
Regulating Fraud On The Marketplace Of Ideas: Federal Securities Law As A Model For Constitutionally Permissible Social Media Regulation, Michael M. Epstein
Seattle University Law Review
This article begins with an introduction discussing speech falsity and the duty under U.S. law by comparing commercial and noncommercial speech. Part I explores the problem of online disinformation. Part II addresses online disinformation in a non-commercial context. Part III contains three subsections assesses non-transactional commercial speech as a basis for non-commercial disinformation regulation. Part IV advocates for a fiduciary duty to fashion a remedy. Part V of this article concludes by suggesting a possible solution for creating a online disinformation law that could survive the First Amendment.
Laprocina V. Lourie, 250 A.3d 1281 (R.I. 2021), 2022 Candidate for Juris Doctor, Roger Williams University School of Law
Laprocina V. Lourie, 250 A.3d 1281 (R.I. 2021), Jeffrey Prystowsky
Roger Williams University Law Review
No abstract provided.
Litigation As Integration And Participation: The Role Of Lawsuits In The U.S. Environmental Justice Movement, 2022 Bard College
Litigation As Integration And Participation: The Role Of Lawsuits In The U.S. Environmental Justice Movement, Tomas Sebastian Forman
Senior Projects Spring 2022
What is, has been, and could be the role of litigation in the U.S. environmental justice movement? To what ends do Indigenous communities, federally-recognized tribes, and rural Black communities choose to engage with the U.S. legal system, an institution which has, over history, consistently subjugated and dispossessed them? How do these groups' particularistic relationships to natural and built environments, conceptions of justice and fairness, and understandings of what effective environmental regulation look like inform that choice? This paper draws from in-depth qualitative research to demonstrate the following things: (1) how environmental justice lawsuits differ from canonical environmental and civil rights …
The American Experience With Employee Noncompete Clauses: Constraints On Employees Flourish And Do Real Damage In The Land Of Economic Liberty, 2022 Indiana University Maurer School of Law
The American Experience With Employee Noncompete Clauses: Constraints On Employees Flourish And Do Real Damage In The Land Of Economic Liberty, Kenneth G. Dau-Schmidt, Xiaohan Sun, Phillip J. Jones
Articles by Maurer Faculty
Agreements not to compete are generally an anathema to free market advocates. Independent profit maximization is one of the fundamental assumptions of the neoclassical economic model and necessary to its conclusion that markets yield results that are Paraeto efficient. Consistent with this theory, and practical experience, agreements among competitors, or potential competitors, to divide a market, or fix price or quantity are per se violations under our antitrust laws.
Despite this fact, even some ardent free market advocates have argued on behalf of the enforcement of covenants not to compete in the employment relationship. The traditional economic argument in favor …
Waste And The Governance Of Private And Public Property, 2022 University of Colorado Law School
Waste And The Governance Of Private And Public Property, Tara K. Righetti, Joseph A. Schremmer
University of Colorado Law Review
Common law waste doctrine is often overlooked as antiquated and irrelevant. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just a historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, waste doctrine provides a fresh perspective on property, natural resources, and environmental law.
In this Article, we excavate …
Putting The Bar Exam On Constitutional Notice: Cut Scores, Race & Ethnicity, And The Public Good, 2022 Seattle University School of Law
Putting The Bar Exam On Constitutional Notice: Cut Scores, Race & Ethnicity, And The Public Good, Scott Johns
Seattle University Law Review
Nothing to see here. Season in and season out, bar examiners, experts, supreme courts, and bar associations seem nonplussed, trapped by what they see as the facts, namely, that the bar exam has no possible weaknesses, at least when it comes to alternative licensure mechanisms, that the bar exam is not to blame for disparate racial impacts that spring from administration of this ritualistic process, and that there are no viable alternatives in the harsh cold world of determining minimal competency for the noble purpose of protecting the public from legal harms. All a lie, of course.
But rather than …
Relying On Restatements, 2022 Columbia Law School
Relying On Restatements, Shyamkrishna Balganesh
Faculty Scholarship
Restatements of the Law occupy a unique place in the Americanlegal system. For nearly a century, they have played a prominent and influential role as legal texts that courts routinely rely on in a wide variety of fields. Despite their ubiquitous and pervasive use by courts, Restatements are not formal sources of law. While they resemble statutes in their form and structure, Restatements are produced entirely by a private organization of experts set up to clarify and simplify the law and thus lack the force of law on their own. And yet, courts treat them as formal and authoritative sources …
The Genius Of Common-Law Intellectual Property, 2022 Columbia Law School
The Genius Of Common-Law Intellectual Property, Shyamkrishna Balganesh
Faculty Scholarship
Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common-law intellectual property. In it, we see his attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common-law intellectual property refers to different judge-made causes of action that create forms of exclusive rights and privileges in intangibles, interferences that are then rendered enforceable through private liability. In this essay, I examine Epstein’s writing on two such doctrines, hot-news misappropriation and cybertrespass, which embrace several important ideas to which modern discussions of intellectual property would …
Equity's Federalism, 2022 Columbia Law School
Equity's Federalism, Kellen R. Funk
Faculty Scholarship
The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery — the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at …
The Zoom Paradox: Schrodinger’S Witness, 2021 Louisiana State University Law Center
The Zoom Paradox: Schrodinger’S Witness, Christopher J. Vidrine
Louisiana Law Review
The article explains the role of the common law and federal civil statutes in the evolution of convenience concept in civil procedure through the development of videoconferencing technology.
'Good Administration' And The 'Good': The Normative Foundation For The Protection Of Legitimate Expectations, 2021 Singapore Management University
'Good Administration' And The 'Good': The Normative Foundation For The Protection Of Legitimate Expectations, Wei Yao, Kenny Chng
Research Collection Yong Pung How School Of Law
An idea that has gained significant traction in both case law and academic commentary as a justification for the protection of legitimate expectations is the concept of ‘good administration’. Going beyond the usual criticisms of the concept’s ambiguity, this article aims to highlight an additional set of difficulties with the invocation of ‘good administration’ as the normative justification for the doctrine. This article’s central argument is that the concept of ‘good’ invoked by the idea of ‘good administration’ inevitably falls to be substantiated by a particular conception of what the ‘good’ requires as a matter of political philosophy. And given …
You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, 2021 University of Washington School of Law
You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue
Washington Law Review
United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …
Deepfake Privacy: Attitudes And Regulation, 2021 Northwestern Pritzker School of Law
Deepfake Privacy: Attitudes And Regulation, Matthew B. Kugler, Carly Pace
Northwestern University Law Review
Using only a series of images of a person’s face and publicly available software, it is now possible to insert the person’s likeness into a video and show them saying or doing almost anything. This “deepfake” technology has permitted an explosion of political satire and, especially, fake pornography. Several states have already passed laws regulating deepfakes, and more are poised to do so. This Article presents three novel empirical studies that assess public attitudes toward this new technology. In our main study, a representative sample of the U.S. adult population perceived nonconsensually created pornographic deepfake videos as extremely harmful and …
Divine Intervention, Part Ii: Narratives Of Norm Entrepreneurship In Canadian Religious Freedom Litigation, 2021 Faculty of Law, University of Victoria
Divine Intervention, Part Ii: Narratives Of Norm Entrepreneurship In Canadian Religious Freedom Litigation, Kathryn Chan, Howard Kislowicz
Dalhousie Law Journal
Constitutional litigation has become a central arena for debate about human rights. Groups from all points on the political spectrum have turned to legal advocacy, “intervening” in judicial proceedings in an effort to advance their preferred interpretations of particular rights.
Judges and scholars remain divided on whether and how interveners are valuable. This paper evaluates a main rationale for intervention: interveners improve adjudication by enriching courts’ understandings of the issues before them. We use qualitative analysis to examine the extent to which interveners in Canada have succeeded in contributing to judicial pronouncements on the scope and meaning of religious freedom. …
The Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, 2021 University of Washington School of Law
The Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, Celeste Anquonette Ajayi
Washington Law Review
Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as “Twiqbal,” plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims.
The current heightened pleading standard …