The "Legal" Marijuana Industry's Challenge For Business Entity Law, 2014 Widener Law
The "Legal" Marijuana Industry's Challenge For Business Entity Law, Luke M. Scheuer
Luke M Scheuer
In recent years many states have legalized the use and sale of marijuana for medical or even recreational purposes. This has led to the booming growth of a “legal” marijuana industry. Businesses openly growing and selling marijuana products to the consuming public are faced with some unusual legal hurdles. Significantly, although the sale of marijuana may be legal at the state level, it is still illegal under federal law. This article explores the conflict between state and federal marijuana laws from a business entity law perspective. For example, managers owe a fiduciary duty of good faith to their businesses and ...
The False Claims Act Creates A 'Zone Of Protection' That Bars Suits Against Employees Who Report Fraud Against The Government, Joel D. Hesch
Joel D. Hesch
May employees copy internal company documents and turn them over to the U.S. Department of Justice as part of applying for a whistleblower reward for reporting fraud against the Government? This is one of the most hotly contested issues facing whistleblowers and employers, and the answer will affect the future of the Government’s primary whistleblower reward program.
Each year, companies are cheating the military and Medicare by billions of dollars. To combat fraud, Congress enacted the federal False Claims Act (FCA), which is the primary anti-fraud tool used by the Department of Justice (DOJ) and the fastest growing ...
The "State" Of Federal Bankruptcy Law: The Ninth Circuit's Debt Recharacterization Analysis In In Re Fitness Holdings International, Bryan C. Curran
Boston College Law Review
On April 30, 2013, the U.S. Court of Appeals for the Ninth Circuit in In re Fitness Holdings International, Inc. held that bankruptcy courts have the authority to recharacterize debt as equity when the obligation does not constitute a “right to payment” under state law. In so holding, the court adhered to a state law approach and declined to adopt a federal rule for debt recharacterization, thus creating a split amongst the federal appeals courts. This Comment argues that the Ninth Circuit’s state law approach is more desirable than promulgating a federal debt recharacterization rule because state law ...
Erie’S Four Functions: Reframing Choice Of Law In Federal Courts, 2014 Notre Dame Law School
Erie’S Four Functions: Reframing Choice Of Law In Federal Courts, Allan Erbsen
Notre Dame Law Review
This Article seeks to mitigate decades of confusion about the Erie doctrine’s purposes, justifications, and content. The Article shows that “Erie” is a misleading label encompassing four distinct components. Jumbling these components under a single heading obscures their individual nuances. Analyzing each component separately helps to clarify questions and values that should animate judicial analysis. The Article thus reconceptualizes the Erie doctrine, offers a more precise account of how Erie operates, and provides a framework for rethinking several foundational aspects of Erie jurisprudence.
2013 marks Erie’s seventy-fifth anniversary. The years have not been kind to Erie and its ...
The Rule Of Law And The Judicial Function In The World Today, 2014 Notre Dame Law School
The Rule Of Law And The Judicial Function In The World Today, Diarmuid F. O’Scannlain
Notre Dame Law Review
The world’s oldest written constitution still in effect has many inspiring lines, but perhaps the one that most stirs the souls of the patriotic appears in Article 30. Delineating a familiar separation of powers, that Article forbids the legislative, executive, and judicial branches from swapping or mixing functions. “[T]o that end”—and here’s the line—“it may be a government of laws and not of men.” John Adams, the author of that line and most of the rest of the Constitution of the Commonwealth of Massachusetts, penned those words in 1779, eight years before the adoption of ...
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
Hillary A Henderson
Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.”
Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device . . . . In no ...
How Congress Should Fix Personal Jurisdiction, 2014 Duke Law
How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs
Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.
Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties ...
The Effectiveness Of International Adjudicators, 2014 Duke Law
The Effectiveness Of International Adjudicators, Laurence R. Helfer
This chapter, in the Oxford Handbook of International Adjudication, provides an analytical overview of the burgeoning literature on the effectiveness of international courts and tribunals (ICs). It considers four dimensions of effectiveness that have engendered debates among scholars or received insufficient scrutiny. The first dimension, case-specific effectiveness, evaluates whether the litigants to a specific dispute change their behavior following an IC ruling, an issue closely linked to compliance with IC judgments. The second variant, erga omnes effectiveness, assesses whether IC decisions have systemic precedential effects that influence the behavior of all states subject to a tribunal’s jurisdiction. The third ...
Criminal Justice In Indian Country, 2014 Florida International University College of Law
Criminal Justice In Indian Country, M. Alexander Pearl
This Article examines the role played by different enacted legislation on California’s Indian tribes criminal justice system. For centuries, tribal governments were the only entities with criminal jurisdiction in Indian Country. In 1883, the Supreme Court in Ex parte Kan-Gi-Shun-Ka (Ex parte Crow Dog) confirmed that a crime committed by an Indian against another Indian did not give rise to federal jurisdiction. In response, Congress passed the Major Crimes Act, granting federal authorities the power to investigate, enforce, and prosecute certain crimes occurring in Indian Country. The federal statutes creating federal jurisdiction did not preclude tribal jurisdiction, but states ...
Selling State Borders, 2014 Duke Law
Selling State Borders, Joseph Blocher
Sovereign territory was bought and sold throughout much of American history, and there are good reasons to think that an interstate market for borders could help solve many contemporary economic and political problems. But no such market currently exists. Why not? And could an interstate market for sovereign territory help simplify border disputes, resolve state budget crises, respond to exogenous shocks like river accretion, and improve democratic responsiveness? Focusing on the sale of borders among American states, this Article offers constitutional, political, and ethical answers to the first question, and a qualified yes to the second.
Remedial Discretion In Constitutional Adjudication, 2014 SelectedWorks
Remedial Discretion In Constitutional Adjudication, John M. Greabe
John M Greabe
Courts frequently withhold remedies for meritorious assertions of constitutional right. The practice is often unobjectionable. Indeed, it is a systemic necessity if constitutional law is to remain vibrant. Without it, judges surely would be less inclined to engage in constitutional innovation. But just as surely, the practice is not available for all types of constitutional claim. For instance, the subject of a criminal indictment is always entitled to dismissal of the charges if the statute authorizing the prosecution is unconstitutional.
The Supreme Court has experimented with various approaches to withholding constitutional remedies. The Warren Court embraced the practice of issuing ...
Jurisdiction Revisited: The Inherent Supervisory Power Of The Courts To Review Administrative Decisions - The Case Of R (Ignaoua) V Sshd  Ewca Civ 1498, Patrick Matthew Hassan-Morlai
Patrick Matthew Hassan-Morlai
The Court of Appeal handed down its decision in R (Ignaoua) v SSHD on 21 November. Ignaoua emphasizes that Parliament does not purport to remove the court’s jurisdiction to entertain judicial review proceedings under Section 15 of the Justice and Security Act 2013. This paper argues that the provisions in both the primary and secondary legislation in Ignaoua are clear enough to convey Parliament’s intention to give the Home Secretary the power to terminate judicial review proceedings or appeal from judicial review proceedings relating to a direction to exclude a foreign national from the United Kingdom. However, the ...
Indigenous Peoples´ Right Over Their Ancestral Lands: The Mapuche People And The Inter-American Human Rights System, Juan Sebastian Smart
Juan Sebastian Smart
This paper examines the application of the Inter-American Human Rights System (IAHRS) standards to indigenous rights. In particular, it explores the standards developed by the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR) on indigenous peoples´ rights over their ancestral lands on the one hand, and their applicability to the specific context of the Mapuche people in Chile on the other. This work is divided in three sections. The first section, seeks to give a general overview of the history of struggles and dispossessions of the Mapuche lands and the Chilean legal treatment of ...
You're A Crook, Captain Hook! Navigating A Way Out Of The Somali Piracy Problem With The Rule Of Law, 2013 University of Georgia School of Law
You're A Crook, Captain Hook! Navigating A Way Out Of The Somali Piracy Problem With The Rule Of Law, Andrew Michael Bagley
Georgia Journal of International & Comparative Law
No abstract provided.
Bankruptcy And The Future Of Aggregate Litigation: The Past As Prologue?, Troy A. Mckenzie
New York University Public Law and Legal Theory Working Papers
This Article considers the recent decline of the class action by comparing earlier, parallel developments in the law of business reorganizations. Until the 1930s, the equity receivership was the procedural device used to reorganize firms in financial distress, because a receivership, like a class action, could achieve a binding group resolution among dispersed claimants. Although initially viewed favorably, the receivership came under sustained attacks from political, academic, and judicial critics. These critics, like today’s critics of the class action, challenged the legitimacy of the receivership process. In particular, they painted the lawyers in receivership cases as conflicted actors who ...
Let's All Agree To Disagree, And Move On: Analyzing Slaughter-House And The Fourteenth Amendment's Privileges Or Immunities Clause Under "Sunk Cost" Principles, Emily Jennings
Boston College Law Review
The Privileges or Immunities Clause of the Fourteenth Amendment has lain nearly dormant since the U.S. Supreme Court’s 1872 decision in the Slaughter-House Cases. Although legal historians have fought to overturn Slaughter-House for decades to restore the Privileges or Immunities Clause to its intended preeminence in American jurisprudence, these historians cannot agree on the correct meaning and scope of the clause. Each historical interpretation of the clause would affect the scope and power of the Privileges or Immunities Clause in the modern era; however, American jurisprudence has already found the clause’s intended powers in alternative constitutional provisions ...
Torturous Transfers: Examining Detainee Habeas Jurisdiction For Nonremoval Challenges And Deference To Diplomatic Assurances , 2013 Washington & Lee University School of Law
Torturous Transfers: Examining Detainee Habeas Jurisdiction For Nonremoval Challenges And Deference To Diplomatic Assurances , Kristin E. Slawter
Washington and Lee Law Review
No abstract provided.
"Standing" In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn Koppel
“Standing” in the Shadow of Erie: Federalism in the Balance in
Hollingsworth v. Perry
In Hollingsworth v. Perry, one of the two same-sex marriage cases decided by the Supreme Court in 2013, the Court declined to address the constitutionality of California’s Proposition 8, finding that the initiative proponents lacked standing to appeal the district court’s judgment declaring the proposition unconstitutional and enjoining its enforcement. Since the State’s Governor and Attorney General declined to appeal, the proponents sought to assert the State’s particularized interest in the proposition’s validity. State law, as interpreted by the California ...
Improving Parity In Personal Jurisdiction And Judgment Enforcement In International Cases: A Domestic Proposal To Help Revive The Hague Judgments Convention, Eric Porterfield
Two aspects of American law inadvertently discriminate against American consumers and businesses to the benefit of foreign nationals. Restrictive personal jurisdiction rules often prevent American courts from exercising jurisdiction over foreign nationals on the grounds that they lack sufficient “contact” with the forum. Foreign product manufacturers can use this to their advantage, structuring their business dealings to take advantage of confusing constitutional constraints on personal jurisdiction, reducing, if not eliminating, the risk of potential tort liability in American courts, often leaving American consumers without a remedy and disadvantaging American businesses. American companies, in contrast, cannot avoid American tort law at ...
The Battle For The Soul Of International Shoe, 2013 SelectedWorks
The Battle For The Soul Of International Shoe, Eric H. Schepard
Eric H Schepard
In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state.
This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested ...