Digital Commons Network^™

The Labor Gerrymander, Joel Heller

Vanderbilt Law Review

The foundational metaphor of federal labor law is “industrial democracy.” But like any good metaphor, it is subject to overuse. The National Labor Relations Act (NLRA) grants employees the right to have a say in the decisions that govern their working lives through union representation and collective bargaining. Parties and policymakers often invoke the language of American political democracy when describing and debating that right. Democracy is not a unitary concept, however, and not all norms and concepts from the political sphere can or should translate into the labor sphere.

This Article interrogates the political-model analogy through the lens of …

Policy Over Doctrine: A Brief History Of Us Trust Law, Lucas Clover-Alcolea

ACTEC Law Journal

US trust law is unique because whereas in English law the settlor drops out of the picture once he has created the trust, in the US the settlor’s intentions remain paramount. This fundamental difference in turn permits the recognition of spendthrift trusts, whereby the beneficial interest cannot be alienated, in the US whereas in England such trusts are generally invalid. Similarly, whereas in English law the beneficiaries of absolute trusts, and on occasion discretionary trusts, can collectively implode the trust by forcing the trustee to convey the trust fund to them via a Saunders v Vautier application, this is generally …

New Hurdles To Redistricting Reform: State Evasion, Moore, And Partisan Gerrymandering, Manoj Mate

Connecticut Law Review

Proponents of fair districting reforms continue to face challenges in seeking to address the problem of partisan gerrymandering. Even in states that have successfully enacted redistricting reforms, state actors have been able to evade compliance, and state courts have been unable to guarantee fair districts. In addition, the Supreme Court’s decision in Moore v. Harper could also limit state court efforts to guarantee fair districts. This Article argues that state evasion and Moore threaten to undermine the efficacy of fair districting norms recognized by state courts or enacted through either state political processes. Moore could create a one-way ratchet by …

Avoiding Performative Climate Justice, Katrina F. Kuh

Elisabeth Haub School of Law Faculty Publications

The Article first sketches the contours of precommitment strategies by identifying examples of precommitment strategies in existing climate change law, and contrasting them with other approaches for advancing justice that are not sticky, automatic, and early, and thus would not be considered precommitments. It then contemplates whether and why sticky, automatic, and early precommitments to justice may be an important strategy to advance justice goals in anticipation of and at high levels of warming. It concludes by analyzing the use of precommitments to justice in the context of the expedited siting and construction of renewable energy infrastructure.

Ending Exemption 5 Expansion: Toward A Narrower Interpretation Of Foia’S Exemption For Inter- And Intra-Agency Memorandums, Ryan W. Miller

Fordham Law Review

The Freedom of Information Act (FOIA) creates a judicially enforceable right to access almost any record that a federal agency creates or obtains. Its crafters aimed to strike a careful balance in promoting disclosure of government records to increase transparency while still protecting the confidentiality of certain information. Although any person can request an agency record, FOIA’s nine exemptions allow agencies to withhold records if certain conditions are met. 5 U.S.C. § 552(b)(5) permits agencies to withhold “inter-agency or intra-agency memorandums or letters” that would normally be privileged in civil discovery. Through this exemption, Congress sought to prevent FOIA from …

Incremental Improvement Of The Patentability Standard Of Nonobviousness, Kayla Siletti Brown

Fordham Law Review

Patents incentivize innovation, but the face of innovation has changed over the past several decades. Patent law is adapting to the radical growth of the pharmaceutical and biotechnological industries, which produce drugs and biologics respectively. Research and development in these fields is largely incremental—new products are often derived from existing products. However, patents do not protect “obvious” improvements, those that anyone skilled in the relevant scientific field could have discovered through predictable, routine work. The line between incremental R&D and routine, obvious improvements is difficult to draw. The U.S. Court of Appeals for the Federal Circuit and the Patent Trial …

Lawyers, Gambling, And Trust Accounts: Why The Expansion Of An Old Vice Requires A New Approach To Protecting Client Funds, Robert M. Jarvis

The Business, Entrepreneurship & Tax Law Review

Since the late 1980s, legalized gambling in the United States has expanded at a furious pace. While Americans have embraced this change with enthusiasm, it has caused a sharp rise in compulsive gambling. This development has placed every client in harm’s way. Because lawyers are at a very high risk of developing a gambling addiction, client trust funds now are more susceptible to theft than ever before. Accordingly, this article proposes that a new form of protection be mandated to safeguard clients from attorneys who are or might become compulsive gamblers.

The New Parents' Rights Movement, Education, And Equality, Kristine L. Bowman

University of Chicago Law Review

No abstract provided.

Speaking Back To Sexual Privacy Invasions, Brenda Dvoskin

Washington Law Review

Many big players in the internet ecosystem do not like hosting sexual expression. They often justify these bans as a protection of sexual privacy. For example, Meta states that it removes sexual imagery to prevent the nonconsensual distribution of sexual images. In response, this Article argues that banning digital sexual expression is counterproductive if the aim is to alleviate the harms inflicted by sexual privacy losses.

Contemporary sexual privacy theory, however, lacks analytical tools to explain why nudity bans harm the interests they intend to protect. This Article aims at building those tools. The main contribution is an invitation to …

Doing Things With The Language Of Law And Gender: Using Speech Act Theory To Understand The Meaning And Effect Of The Gender Identity Backlash, Susan Etta Keller

Nevada Law Journal

A significant legal backlash against transgender individuals is currently under way. This movement--which includes state legislation, state executive action, and federal cases--seeks to limit access and participation by transgender individuals in school sports, use of bathrooms, access to appropriate care, and even the right to be addressed appropriately in the classroom. Properly understood as a political backlash in response to previous political gains by transgender individuals, this movement is composed of a series of speech acts: language that makes change in the world and alters human relations. This article identifies the features of the backlash and the power dynamics that …

Social Ecology, Preventive Intervention, And The Administrative Transformation Of The Criminal Legal System, Mark R. Fondacaro

Georgia State University Law Review

This Article outlines an administrative model of criminal justice that provides a conceptual framework and empirical justification for transforming our criminal legal system from a backward-looking, adjudicative model grounded in principles of retribution toward a forward-looking model grounded in consequentialist principles of justice aimed at crime prevention and recidivism reduction. The Article reviews the historical roots and justifications for our current system, along with recent advances in the behavioral, social, and biological sciences that inform why and how the system fuels injustice. The concept of social ecology is introduced as an organizing framework for: (1) understanding why individuals do or …

The Role Of Congress In Enforcing Supreme Court Ethics, Jennifer Ahearn, Michael Milov-Cordova

Hofstra Law Review

The article focuses on the constitutional authority of Congress to regulate the ethical conduct of Supreme Court Justices. It explores historical precedents, constitutional limitations, and proposed mechanisms for enforcement, emphasizing the importance of transparency and public trust in maintaining the integrity of the judiciary.

Building Resilience By Removing Barriers: Addressing Structural Impediments To Advocacy By Nonprofit Organizations On Behalf Of The Unenfranchised, Kirsten Widner, Heather Kolinsky

UF Law Faculty Publications

Charitable contributions, particularly from private foundations, are an essential source of support for many nonprofit charitable organizations. However, the ability to accept these contributions comes with significant restrictions on lobbying and advocacy. Using vulnerability theory and an original survey of nonprofit advocacy organizations, we show that current restrictions on 501(c)(3) organizations disproportionally limit advocacy on behalf of the most politically disadvantaged groups—those without the right to vote. This, in turn, reinforces existing inequalities in whose voices are heard and whose interests are considered by policymakers. This Article argues that reforming the laws that structure what organizations can take tax-deductible charitable …

Harmonizing Freedom Of Speech And Free Exercise Of Religion, John Fee

William & Mary Bill of Rights Journal

[...]The close relationship between the free exercise of religion and the freedom of speech points to the sensible assumption that they should receive similar interpretation when dealing with parallel types of problems, or at least that differences in interpretation should be carefully justified.

With this premise, this Article compares freedom of speech and free exercise jurisprudence in various parallel applications, with the suggestion of harmonizing them more closely. While other commentators have compared freedom of speech and free exercise case law with a narrower focus (most commonly, focusing on the incidental burdens issue presented in [Employment Division v. Smith] …

Legal And Ethical Challenges Raised By Advances In Brain-Computer Interface Technology, Colin Conrad, Carla Heggie

Canadian Journal of Law and Technology

Brain-computer interfaces (BCI) consist of hardware and software that allow humans to control computers with their brain signals alone. Though these technologies are not new, existing approaches to BCI are either very limited in their capabilities or require highly invasive surgery. However, BCI has recently received increased attention due to advances that enable enhanced usability with less invasive approaches. Such advances could radically change the acceptance of the technology and BCI might become commonplace in the coming decades. In this article, we provide a technology scholar’s perspective on how these recent advances in BCI present new legal and ethical considerations. …

Desettling Fixation, Emily Behzadi Cárdenas

North Carolina Law Review

No abstract provided.

Reinventing The “Inventive Concept”: Applying Copyright’S Merger Doctrine To Patent Eligibility, Kengyeh Chu

North Carolina Law Review

No abstract provided.

Rico's Long Arm, Randy D. Gordon

Faculty Scholarship

RICO has for over 50 years presented something of a parlor game for lawyers, mostly because its text leaves wide latitude in interpretation. And, as is often the case with RICO, resolution of one question begets more. The Supreme Court’s recent decision in Yegiazaryan v. Smagin proves no exception. Here, the Court brought some clarity to a question left open by RJR Nabisco: viz, what must one plead and prove to satisfy the “domestic injury” requirement necessary to invoke an extraterritorial application of RICO. The Court held that a foreign plaintiff can indeed, given the right facts and circumstances, establish …

Narratives Of Reproductive Control In The American Eugenics Movement, Cassandra M. Provost

Honors Program: Senior Projects (Public)

In this paper, I will explore the eugenics movement as a pseudo-scientific political, social, and legal phenomenon which had a devastating historical impact on America’s most vulnerable women, as well as briefly discuss its residual effects on contemporary reproductive rights conversations, through the lens of literature. Using an interdisciplinary discourse and narrative analysis approach, I identify two distinct themes within the explored narratives: (1) the importance of a government’s attempt to override a person’s autonomy by destroying the person’s ability to reproduce, and (2) the impropriety of actions based on a negative attitude toward disabled or undesirable persons. In my …

Federal District Courts May Not Assist Discovery Efforts In Connection With Proceedings Before Arbitral Tribunals Constituted Under The Icsid, Victor De Oliveira Leite

Arbitration Law Review (2009 - Present)

No abstract provided.

New Hurdles To Redistricting Reform: State Evasion, Moore, And Partisan Gerrymandering, Manoj Mate

Journal Articles

Proponents of fair districting reforms continue to face challenges in seeking to address the problem of partisan gerrymandering. Even in states that have successfully enacted redistricting reforms, state actors have been able to evade compliance, and state courts have been unable to guarantee fair districts. In addition, the Supreme Court’s decision in Moore v. Harper could also limit state court efforts to guarantee fair districts. This Article argues that state evasion and Moore threaten to undermine the efficacy of fair districting norms recognized by state courts or enacted through either state political processes. Moore could create a one-way ratchet by …

Impaired, In Pairs, Cristina Carmody Tilley

Faculty Publications

Rape, like many other one-on-one aggressions, can be treated as both a crime and a tort. But neither body of law responds effectively to these aggressions. Criminal rape prosecution is notoriously difficult, and civil rape suits are notoriously rare. Today, as private law theorists have begun to study tort’s potential to drive social justice on issues of race, gender, and class, it is an ideal time to reassess the terms of civil liability for intimate injury. Culture has long limited “real rape” to premeditated, stranger-on-stranger, aggression. Consequently, tort has long categorized what this Essay terms “non-collaborative sex” as an intentional …

The Minimalist Alternative To Abolitionism: Focusing On The Non-Dangerous Many, Christopher Slobogin

Vanderbilt Law Review

In "The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics," published in the Harvard Law Review, Thomas Frampton proffers four reasons why those who want to abolish prisons should not budge from their position even for offenders who are considered dangerous. This Essay demonstrates why a criminal law minimalist approach to prisons and police is preferable to abolition, not just when dealing with the dangerous few but also as a means of protecting the non-dangerous many. A minimalist regime can radically reduce reliance on both prisons and police, without the loss in crime prevention capacity and legitimacy that is …

From Gods To Google: How Religious Speech Cases May Fortify The Deregulatory First Amendment, Rebecca Aviel, Margot E. Kaminski, Toni M. Massaro, Andrew Keane Woods

Sturm College of Law: Faculty Scholarship

The Court’s extraordinary solicitude for religious expression, manifested across a series of cases involving free exercise, free speech, and establishment clause principles, has been the subject of sustained scholarly attention. Much of that research has focused on evaluating whether the Court is drawing an appropriate balance between the rights of religious believers and government regulatory objectives. In this Article we observe that the Court’s most recent set of moves in this arena, which diverge considerably from decades of speech jurisprudence, will have ramifications that go well beyond the claims of conscience that have so animated the Court’s sympathies. The range …

Misleading Markets: Consumer Protection In The Age Of Climate Washing, Ciara Peacock

West Virginia Law Review

No abstract provided.

Someone Please Do Something: The Fight For Web Accessibility Rages On, James Mazzone

West Virginia Law Review

When the Americans with Disabilities Act (“ADA”) was enacted in 1990, no one could have envisioned the way technology would dominate society as it does today. Title III, Public Accommodations, of the ADA was enacted to allow disabled individuals the opportunity to fully enjoy equal access to goods and services offered to the public. Title III has traditionally been applied to physical, stand-alone locations such as hotels, shopping centers, and restaurants. However, almost every facet of an American’s life today involves a screen emitting a bright light. Additionally, businesses of all sizes are facing mountains of web accessibility litigation due …

From Canonical Law To Offshore Finance: Confessing To Priests And Bankers In Luxembourg, Samuel Weeks

Journal of Global Catholicism

In this article, I address two recurring tendencies that I heard during a recent period of research on banking secrecy in Luxembourg. First, my banker interviewees frequently mentioned personal transgressions for why many of their clients hide assets “offshore.” The wrongdoings my interlocutors cited included not only clients’ tax evasion, bankruptcy, and avoidance of liability – but also divorce, adultery, and the existence of out-of-wedlock children. Second, with a similar frequency, my interviewees drew parallels between the secrecy laws covering bankers and those afforded to other professionals in the country. Article 458 of Luxembourg’s Penal Code, dating from the nineteenth …

Vol. 66, No. 07 (February 26, 2024)

Indiana Law Annotated

No abstract provided.

Thanks For The Lyft: Optimizing Rideshare Safety In Arkansas, Addison A. Tucker

Arkansas Law Notes

Rideshare companies such as Uber and Lyft, also known as Transportation Network Companies (“TNCs”), are underregulated and provide little protection to passengers, despite the thousands of women who have reported instances of sexual violence during their trips. This Comment argues that Arkansas law should be modified to strengthen the criminal background checks of potential rideshare drivers, require surveillance during rides, and classify the impersonation of a rideshare driver as a felony.

Online Disinhibited Contracts, Wayne R. Barnes

Pepperdine Law Review

There have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). The second force has been the rise of e-commerce and the purchase of goods and services via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, …