Digital Commons Network^™

The New Age Of Mining: Isa's Vision Of The Deep Seabed Mining, Ganeswar Matcha

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

Cy Pres Silliness: Remedies That Do Not Remediate The Harm, Phil Pillari

Northwestern University Law Review

Class actions play an important role in civil litigation, but they suffer from a serious problem. No matter how many plaintiffs are in the class, the individual claims are often miniscule, which can make distributing the inevitable settlement futile. Very few people make a claim, and it often costs more to mail the check than the check is worth. To solve this problem, Steven Shepherd proposed importing the cy pres doctrine (a trusts and estates device that allows courts to rewrite an unenforceable trust) into the class actions context. Shepherd’s framework instructs courts to devise the next best alternative for …

Two Lives, Shruti Trehan Mbbs

Journal of Wellness

A busy oncologist makes a decision to leave her busy, thriving, community practice in the Mid-West and moves to a Veterans Affairs hospital in South Florida in the quest for a better work-life balance.

Veterinary Medical Board, Caroline Bulger, Marcus Friedman

California Regulatory Law Reporter

No abstract provided.

Living The Good Life In The Anthropocene, Kevin J. Lynch, Karrigan Börk, Karen Bradshaw, Rebecca Bratspies, Bruce Carpenter, Cinnamon Carlarne, Robin Kundis Craig, Sarah Fox, Josh Galperin, Francis Hicks, Keith Hirokawa, Ruhan S. Nagra, Michele Okoh, Jessica Owley, Amber Polk, Melissa Powers, Shannon Roesler, J .B . Ruhl, Danielle Stokes, Anastasia Telesetsky

Sturm College of Law: Faculty Scholarship

The Stockholm Resilience Centre has concluded that the number of "planetary boundaries" we are crossing has increased from three in 2009, when the Centre's researchers first introduced the concept, to six in 2023. Crossing these boundaries means humans are changing basic attributes of planetary systems to the point of risking the future of civilization. And the distinction between "safe" and "just" planetary boundaries raises questions regarding how to conceptualize the "good life." In this latest in a biannual series of essays, members of the Environmental Law Collaborative explore conceptions of the "good" as well as the various elements necessary to …

From Custom To Courtroom: The Informal And Formal Justice Systems In The Manang And Narphu Valleys, Clarissa Sayre

Nepal: Tibetan and Himalayan Peoples

This research paper aims to depict the structure and some of the current changes of the justice system in the Narphu and Manang Municipalities. The new Constitution of Nepal in 2015 mandated the establishment of one judicial committee in each municipality and rural municipality in the entire country. That’s 753 judicial committees. This is just one example of the recent and rapid change that the justice system in Nepal is currently undergoing. These new implementations of government bodies for justice aim to “mitigate the inefficiencies of the formal legal system and bridge the formal/informal justice divide. ” In both Narphu …

Law School Record, Vol. 71, No. 1 (Fall 2024), Law School Record Editors

Law School Record

• Message from the Dean
• The Law School celebrates its annual Hooding and Diploma Ceremony
• Coase-Sandor Institute celebrates a milestone
• Judith Wright Fellowship marks an anniversary
• Jenner & Block Supreme and Appellate Clinic Scores a victory
• Exoneration Project secures three key wins
• AI and the Law
• In the Sports Arena
• Theory in Practice
• Professor Alison LaCroix discusses her new book
• The Law School welcomes three new faculty members
• Professor Farah Peterson wins a prestigious award
• Students discuss their summer experiences
• Development News
• Reunion highlights
• In Memoriam
• Giving Back: Vanessa Countryman,'05

Against Associational Standing, Michael T. Morley, F. Andrew Hessick

University of Chicago Law Review

Associational standing is a widely used doctrine that has never been subject to serious academic scrutiny. It allows an organization that has not suffered any injury in fact to sue in its own name to assert its members’ causes of action. Though the doctrine is often associated with public interest groups, major corporations have usurped it to be able to sue, through trade groups or entities created solely to pursue a particular lawsuit, without becoming party litigants to the case.

The Supreme Court first recognized associational standing as an offshoot of third-party standing to allow an organization that had suffered …

Board Of Pharmacy, Catherine Santos, Marcus Friedman

California Regulatory Law Reporter

No abstract provided.

Protecting Coastal Communities And Marine Biodiversity Under The Coastal Zone Management Act, Eric V. Hull

South Carolina Law Review

No abstract provided.

The Origins Of The Major Questions Doctrine, Rachel Rothschild

Indiana Law Journal

In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

Living The Good Life In The Anthropocene, Karrigan Bork, Karen Bradshaw, Rebecca Bratspies, Cinnamon Carlarne, Bruce Carpenter, Robin Kundis Craig, Sarah Fox, Josh Galperin, Francis Hicks, Keith Hirokawa, Kevin Lynch, Ruhan S. Nagra, Michele Okoh, Jessica Owley, Amber Polk, Melissa Powers, Shannon Roesler, J.B. Ruhl, Danielle Stokes, Anastasia Telesetsky

Articles

The Stockholm Resilience Centre has concluded that the number of "planetary boundaries" we are crossing has increased from three in 2009, when the Centre's researchers first introduced the concept, to six in 2023. Crossing these boundaries means humans are changing basic attributes of planetary systems to the point of risking the future of civilization. And the distinction between "safe" and "just" planetary boundaries raises questions regarding how to conceptualize the "good life." In this latest in a biannual series of essays, members of the Environmental Law Collaborative explore conceptions of the "good" as well as the various elements necessary to …

State Regulation Of Wetlands Post-Sackett: Assessing And Improving Maryland’S Wetlands Policies And Legal Tools To Better Protect State Wetlands, Kai Hardy

University of Baltimore Law Forum

No abstract provided.

Shocking Sentences, John B. Meixner Jr.

Indiana Law Journal

Harsh recidivist sentencing penalties, like three-strikes laws, have been criticized heavily among both academics and practitioners on a number of different grounds. Most arguments focus on how sentences arising from these penalties are disproportionate—that there is no sensible relationship between the wrong committed and the sentence imposed. Those critiques are valid, but there’s another important problem with recidivist sentencing penalties that has been overlooked: They lead to sentences that are totally unexpected—indeed, shocking—to the defendants who face them. Many recidivist sentencing penalties cause large leaps in sentencing exposure that amount to exponential growth when compared with a defendant’s prior sentences. …

Corporate Civil Disobedience, Susanna K. Ripken

Indiana Law Journal

Classic theories of civil disobedience endorse the right of individuals to commit illegal acts to protest unjust laws and policies. Acts of civil disobedience have historically played a central role in exposing injustice and producing vital legal and social change. The literature on civil disobedience is vast; political and legal theorists have long recognized the contributions of individual legal resisters in the ongoing pursuit of a just society. Little attention has been given, however, to intentional lawbreaking by organizational entities that seek to protest unjust, illegitimate, or discriminatory laws. This Article addresses that gap by exploring the prospect of corporate …

Is The Constitution Of 1787 A White Supremacist Document? Against Essentialism In Constitutional Interpretation, David S. Schwartz

William & Mary Bill of Rights Journal

A curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, “neo-Garrisonian” scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their “essentialism” in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments.

This Article argues …

Life, Liberty, And Freedom From Non-Consensual Pelvic Exams?, Michaela Cotton

William & Mary Bill of Rights Journal

[T]here is a need for the federal government to intervene and finally ban the practice of performing non-consensual pelvic exams, and it can do so under the Due Process Clause of the Fourteenth Amendment, which guarantees the right to refuse involuntary medical treatment. Part I will provide a brief overview of pelvic exams and informed consent; Part II draws on policy considerations for banning this practice and tackles counter-arguments; Part III will discuss the relevant federal law and case precedent; Part IV demonstrates how federal law applies to non-consensual pelvic exams; and, finally, Part V will further explain the need …

Excluded But Equal, Gali Racabi

William & Mary Bill of Rights Journal

Work law is excessively exclusionary. Canonical examples include agriculture workers, independent contractors, and domestic workers. But work law excludes far more workers and employers than those familiar categories. Whole sectors, occupations, business sizes, wage arrangements, geographical areas, and more are excluded from the basic tenets of economic citizenship, including federal, state, and local minimum wage; overtime; and safety and labor protection laws.

Equal protection claims govern the authority of legislatures to determine who is in and who is out of work laws. Excluded workers and included employers now routinely use state and federal constitutional equal protection arguments against exclusionary work …

Approaching A U.S. Regulatory Framework For Sporeless Seaweed Biotechnology, Gabriela Martinez, Terra Bowling, Catherine M. Janasie, Charlie Doering-Powell, Amalia Aruda Almada

William & Mary Environmental Law and Policy Review

Seaweed farming is the fastest-growing aquaculture sector in the United States. The development of sterile, selectively bred (sporeless) seaweed aims to support the economic viability of future large offshore seaweed operations and minimize the environmental risks of these operations to wild seaweed beds. Farmers have implemented analogous breeding techniques to control and enhance most terrestrial crops and common aquaculture products (e.g., oysters and carp). This Article draws from existing federal and state aquaculture policies to explore four pillars critical to a future sporeless seaweed regulatory framework: ensuring maintained sterility, tracing the geographic origin of seed, securing offshore permits, and facilitating …

The Unbearable Inevitability Of Content Regulation, Jerome O’Callaghan

UC Law Constitutional Quarterly

No abstract provided.

Rogue Ai Patents And The Uspto’S Rejection Of Alice Joshua A. Z, Joshua A. Zuchniarz

University of Chicago Law Review

AI inventions, from ChatGPT to self-driving taxis, have taken the world by storm. Many of these inventions are protected by patents, and the number of AI patents is rapidly growing. Yet a large number of AI patents are flawed, prone to invalidation in court. This Comment argues that many AI patents were granted on legally flawed grounds, pursuant to United States Patent and Trademark Office (USPTO) regulations that systematically departed from controlling case law. The existence of these flawed patents poses a growing problem. Courts may invalidate the patents, upsetting expectations of an important, nascent industry. On the other hand, …

A New Era Of Deference: From Chevron To Loper Bright, Daniel E. Walters

Faculty Scholarship

Deference to administrative agencies’ interpretations of ambiguous statutory provisions has been a hallmark of administrative law and regulatory policy for the past forty years. The Supreme Court recently upended that settled allocation of power between agencies and courts, granting interpretive primacy to courts even where statutes essentially require policy choices. However, questions remain about precisely how courts will exercise this policymaking authority that agencies used to exercise, as well as about the multiple “offramps” from this nondeferential standard that the Court left open. Rather than a new era of nondeference, it is just as likely we are embarking on a …

The International Legal Framework Of Oceanic Shipping Of Carbon Dioxide For Permanent Storage, Carolina Arlota, Michael B. Gerrard

Faculty Scholarship

The Intergovernmental Panel on Climate Change defines carbon dioxide capture and storage (CCS) as “a process in which a relatively pure stream of carbon dioxide (CO2) from industrial and energy-related sources is separated (captured), conditioned, compressed, and transported to a storage location for long-term isolation from the atmosphere.” Therefore, CCS encompasses a series of steps, at minimum: capturing carbon dioxide, its transportation to a storage site, and its injection into the subsurface for permanent storage. As such, CCS does not refer to any single activity or technology. This Article focuses on the transportation aspect of CCS and, more precisely, …

Unpacking Migration: Education, Livelihoods, And Local Choices In Nepal’S Ilam District, Katherine Lipman

Nepal: Development, Gender, and Social Change in the Himalaya

This research examines labor migration in Nepal, focusing on the Ilam district within Koshi Province, an area with high rates of outward migration. Drawing on a background in Industrial and Labor Relations, the study seeks to understand why some individuals choose to remain in communities characterized by extensive labor migration. By analyzing the impact of the "three U's"—unskilled, uneducated, and unaware—on migration decisions, the study investigates how local education systems, skill-building opportunities, and labor market alignment shape these choices. The research methodology blends qualitative and experiential approaches, including interviews with educators, community members, and workers, alongside immersive observation of daily …

Human Rights, Human Duties: Making A Rights-Based Case For Community-Based Restorative Justice, Aparna Polavarapu

William & Mary Journal of Race, Gender, and Social Justice

Restorative justice is often framed as an alternative to the criminal legal system, and thus justifications of restorative justice tend to be rooted in the language of the criminal system. However, this approach limits our way of thinking about the practice of restorative justice, especially non-state, community-based practices. This Article argues for an independent, rights-based justification to support these community-based practices. By offering an in-depth analysis originating from a rights-based perspective, this Article engages with two underdeveloped areas of scholarly literature and suggests a new way of thinking about the day-to-day practice of restorative justice through a human rights lens. …

Infinite Queerness And American Settler Colonialism, Jeremiah A. Ho

William & Mary Journal of Race, Gender, and Social Justice

What the LGBTQ rights movement needs, especially with regard to legal challenges, is a lasting philosophical shift toward the idea that justice and equality are an infinite game rather than a finite and pragmatic one. This work here will explore why this posture is favorable at this moment—and generally in civil rights work. Beyond connecting queer sacrifice in recent Supreme Court cases to the functioning and maintenance of the American settler colonial project, this Article will posit why a strategy shift toward infinite thinking is increasingly necessary for more resolute work that results in the autonomy and equality of LGBTQ …

Identity And Procedural Subordination In Lgbtq Religious Exemption Cases, Kyle C. Velte

William & Mary Journal of Race, Gender, and Social Justice

This Article proceeds in four Parts. Part I summarizes the legal literature on procedural injustice. Part II briefly describes the white Christian nationalism movement, its connection with the LGBTQ civil rights movement, and contends that it is an identity-based movement akin to traditional identity-based civil rights movements. Part III summarizes the holdings of the Religious Exemptions Trilogy [Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. City of Philadelphia, and 303 Creative LLC v. Elenis] and makes the argument that they are strongly procedural decisions. Part IV contends that the Court has engaged in identity-based …

Vertical Restraints In An Amazon World, Martin Edwards

Dickinson Law Review (2017-Present)

Vertical restraints are a peculiarity, even among the dizzying array of contracts subject to antitrust scrutiny. While current law treats vertical restraints permissively, antitrust reformers have added this permissive treatment of vertical restraints to their list of proposed reforms. The reformers have softly proposed that courts apply a presumption of illegality standard for vertical restraints— greater scrutiny than the current standard, the rule of reason. This Article argues that doing so is inadvisable.

Producers and their consumers both want the same thing: the best overall product experience for the money. The critical economic functions of vertical restraints are to enable …

An Updated Practical Guide To Taking And Defending Depositions, Gary S. Gildin

Dickinson Law Review (2017-Present)

The deposition offers a singular opportunity to handcuff the deponent to an irreversible script. Consequently, both the attorney taking the deposition and defending counsel must prepare for and conduct the deposition with equal if not greater care than the trial.

Traditionally, lawyers have used the deposition to discover facts relating to the legal elements and the credibility, perception, and recollection of the witness. However, recent breakthroughs in neuroscience as to how the brain makes decisions have revealed a different genre of evidence that will drive how the trier of fact will decide the case. Today an attorney taking a deposition …

Surviving Lender Violence: The Case For Resuscitating Contractual Good Faith In New York, Zachary T. Hanusek

Fordham Law Review

In recent years, lender violence has become the preferred term for a rapidly developing restructuring market centered on the premise that a subset of lenders in a syndicate can increase their own recovery prospects at the expense of the remaining lenders in their group by engaging in a so-called “liability-management transaction.” This term evokes images of rival factions of corporate lenders engaging in physical combat. Although these hyper-technical restructurings certainly fall short of the barbarity the label suggests, the reality is that lenders participating in the so-called violence can siphon hundreds of millions of dollars away from nonparticipating lenders and …