Digital Commons Network^™

Confidentiality Clauses In Settlement Agreements After The Consumer Review Fairness Act, Wayne Barnes

Faculty Scholarship

Online commerce has skyrocketed in recent years, and shoppers are purchasing goods or services online in greater numbers every year. The COVID-19 pandemic has only hastened the trend. One significant aspect of online shopping is the presence of consumer reviews posted by prior purchasers of goods or services, describing their experience with the products, the services and/or the selling merchant. A vast majority of online shoppers say that they rely on these reviews to help inform their purchasing decisions. Positive reviews can be tremendously beneficial to a business’ profitability, whereas negative reviews can be equally detrimental. Users of the internet …

Antitrust And Sustainability: A Landscape Analysis, Columbia Center On Sustainable Investment, Sabin Center For Climate Change Law

Columbia Center on Sustainable Investment

Competition policy and antitrust law are experiencing a global renaissance. New market realities such as digital market gatekeepers, the financialization of firms, highly concentrated markets, a rising labor movement, industrial policy, and trade wars, among others, are radically reshaping how this policy area is understood and applied.

Sustainability concerns have also been a driving force for reconstituting antitrust to meet twenty-first century challenges. It is now widely accepted that competition policy – both its aims and its enforcement – has wider societal impacts beyond competition, including effects on democracy, economic inequality, growth and innovation, racial and gender imbalances, privacy, geopolitical …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Caesar’S Gambit: Coherence, Justification Of Legal Rules, And The Duty Test: Towards An Interactional Theory Of Government Liability For Negligence In Disaster Management, Irehobhude O. Iyioha

Dalhousie Law Journal

This article examines barriers posed by the duty of care test for government liability for negligence in disaster management. It argues that various aspects of the test raise concerns about coherence, legitimacy of judicial decision-making, and ultimately how we justify liability in tort law. In examining the coherence of the duty test through multiple prisms, including through theoretical justifications for tort principles, this article contends that the duty test, in its framing and interpretations, fails to meet the formal and substantive demands of coherence, correctness and legitimacy. Arguing that justificatory theories offer necessary theoretical lenses through which to understand, critique, …

Introduction, Kim Brooks, Jamie Irvine

Dalhousie Law Journal

The dream for the Dalhousie Law Journal, included in the Foreword of the Journal’s first issue in 1973, was typically Dalhousie-modest: to have a “long and reasonably useful career.”1 As we celebrate our 50th anniversary, it’s clear that we have delivered on duration and over-delivered on purpose.

A Legal History Of The Regulation Of Assault-Style Rifles In Canada, R. Blake Brown

Dalhousie Law Journal

This article provides the first legal history of the regulation of “assault-style” weapons in Canada. A contentious part of Canada’s gun control regime is the firearms classification system that divides guns into non-restricted, restricted, and prohibited firearms. The sale of semi-automatic firearms, often based on military designs that could be quickly fired and reloaded, sparked concerns since the 1970s, particularly after mass shooting events. Canada adopted a classification regime relying on both statutory provisions that used technical details of firearms and Orders-in-Council to name models of firearms as restricted or prohibited weapons. Critics warned that this system allowed private citizens …

Digital Property Cycles, Joshua Fairfield

Washington and Lee Law Review

The present downturn in non-fungible token (“NFT”) markets is no cause for immediate alarm. There have been multiple cycles in both the legal and media focus on digital intangible property, and these cycles will recur. The cycles are easily explainable: demand for intangible property is constant, even increasing. The legal regimes governing ownership of these assets are unstable and poorly suited to satisfying the preferences of buyers and sellers. The combination of demand and poor legal regulation gives rise to the climate of fraud that has come to characterize NFTs, but it has nothing to do with the value of …

Federal Agency Perspectives And Funding Opportunities For Weed And Invasive Plant Research, Stephen L. Young, James J. Kells, Vijay K. Nandula

United States Department of Agriculture-Agricultural Research Service / University of Nebraska-Lincoln: Faculty Publications

Weeds and invasive plants know no borders and have collectively impacted many ecosystems worldwide, including croplands, forests, grasslands, rangelands, wetlands, and riparian areas. Losses continue to mount, affecting yield and productivity, species diversity, and ecosystem services, with both short- and long-term repercussions on the sustainability of plant and animal communities and the livelihoods of many. New and emerging invasive plants, along with many of the most intractable weeds, have undermined even the best control efforts, serving as a reminder of the constant need for improvements in science, application, and technology. One of the main reasons for the success of weeds …

(E)Racing Speech In School, Francesca L. Procaccini

Vanderbilt Law School Faculty Publications

Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.

Through a First Amendment analysis of “anti-critical race theory” laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to …

Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore's aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionaly problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers ofpeople. Because individualized suspicion does not exist with respect to any of these people's information, an individual-specific warrant …

Plaintiffs' Process: Civil Procedure, Mdl, And A Day In Court, Elizabeth Chamblee Burch, Abbe R. Gluck

Scholarly Works

The article focuses on the concept of "plaintiffs process" within the field of civil procedure. It discusses how civil procedure doctrine has traditionally been defendant-centric, focusing on the rights and protections of defendants in legal cases. It examines the role of multidistrict litigation (MDL) in this context and how it impacts plaintiffs rights and access to the courts.

When Your Boss Is An Algorithm: Preserving Canadian Employment Standards In The Digital Economy, Fife Ogunde

Canadian Journal of Law and Technology

The platform or ‘‘gig” economy is a rapidly growing economy in Canada. Between 2005 and 2016, the share of gig workers among all workers in Canada rose from 5.5% to 8.2%. These include independent contractors, select freelancers and platform workers. In 2018, 28% of Canadians aged 18 and older reported making money through online platforms. Research by Payments Canada in 2021 showed gig workers as representing more than one in 10 Canadian adults with more than one in three Canadian businesses employing gig workers. As the share of platform workers in the economy has grown, so has the discussion regarding …

Masking God In Resurrection School V. Hertel: One School’S Efforts To Exercise Religion During An Ongoing Pandemic, Sean Turnipseed

MC Law Review

SARS-CoV-2, colloquially termed “COVID-19,” dramatically altered the world in which we live. But no one would have guessed the virus would spark a flurry of litigation under the U.S. Constitution’s Free Exercise Clause. Shortly after the virus began to spread, former President Donald Trump advised a twoweek plan with hopes to “flatten the curve” of COVID-19’s impact. The plan encouraged individuals to avoid gatherings with ten or more people, work and attend school from home, eat at home rather than in restaurants, and avoid discretionary travel and shopping, to name a few. But the two-week plan did not effectively thwart …

Carbon Capture And Storage: Models For Compensating Holdout Landowners, Keith B. Hall

San Diego Journal of Climate & Energy Law

The United Nations Intergovernmental Panel on Climate Change and numerous individual governments have concluded that largescale use of carbon capture and storage (CCS) is vital as one tool to address climate change, even as society transitions to renewable sources of energy. CCS is important because transitioning to renewable sources of energy takes time and because some industries (e.g., cement making) release carbon dioxide (CO₂) without regard to the source of energy used.

But in the United States, and perhaps in other countries, CCS raises property rights issues that—if left unresolved—could complicate a ramp-up of CCS. For …

Introduction: Domestic Violence And Access To Justice Within The Family Law And Intersecting Legal Systems, Jennifer Koshan, Wanda Wiegers, Janet Mosher, Wendy Chan, Michaela J. Keet

Articles & Book Chapters

The articles in this collection explore the access to justice issues that arise for survivors of domestic violence in their encounters with Canada’s family law system. While family law and family dispute resolution processes are the central focus of the articles, three contributions also address family law's intersections with other legal domains (civil restraining orders, child welfare, and immigration). Common across the contributions is a desire to carefully interrogate the potential of law and legal processes to enhance—or conversely to undermine—the safety and well-being of survivors and their children.

Copyright And Political Campaigns: How Much Control Should A Copyright Owner Have Over The Use Of Their Musical Work In A Political Campaign, Jared Zim

University of Miami Business Law Review

Music often tells a powerful story, driving emotional connections. As a result, politicians rely on music in every aspect of their political campaigns from political advertisements to campaign rallies. There is a long history of such political uses of music, often without an artist’s permission. While most disputes over such uses have ended in either settlement or the campaign stopping use of the infringed work, former President Donald Trump’s unauthorized use of music on the campaign trail sparked countless artist complaints. The complaining musicians feared any implication that they endorsed Trump and did not want any association with a political …

Outdated United States' Online Copyright Infringement Practices: What We Can Learn From The International Community, Ian Carstens

San Diego International Law Journal

Current United States practices and regulations regarding what is known as “the Server Test,” the DMCA, and online piracy need to be studied and brought into the realities of the modern world. With new technologies and uses being invented for the internet every day, the U.S. cannot afford to drag its heels any longer or it risks their statutory and case law becoming dangerously underequipped to deal with daily life. This paper proposes that the United States government listen to its own departments, the wishes of its citizens, and the examples being broadcasted internationally to form a new system to …

Book Review: Kumar, Ashwani. (Ed.). (2022). Engaging With Meditative Inquiry In Teaching, Learning, And Research: Realizing Transformative Potentials In Diverse Contexts. New York, Ny: Routledge., Giovanni Rossini Phd

Journal of Contemplative and Holistic Education

Book Review of following text:

Kumar, Ashwani. (Ed.). (2022). Engaging with Meditative Inquiry in Teaching, Learning, and Research: Realizing Transformative Potentials in Diverse Contexts. New York, NY: Routledge.

Sexual Assault Of Women And Adolescent Girls With Mental Disabilities, Janine Benedet, Isabel Grant

All Faculty Publications

This Report considers the research that addresses the sexual assault of women (age 18+) and adolescent girls (12-17) with mental disabilities (disabilities that affect cognition and decision-making, including intellectual disabilities present from birth, dementia, brain injury and certain psychiatric conditions.) These victims are targeted for sexual violence at rates even higher than for women generally. Yet when these women report abuse to authorities, the criminal trial process struggles to provide them with justice, while the consequences of disclosure can be severe and participation in the criminal justice process particularly traumatizing for them.

Fifty Years Of Taking Exception To Human Exceptionalism: The Feminist-Inspired Theoretical Diversification Of Animal Law Amidst Enduring Themes, Maneesha Deckha

Dalhousie Law Journal

In this article, I attend to the scholarly interventions over the last fifty years that engage with the question of what general subjectivity or protective model the law should apply to animals to combat anthropocentrism and effect widespread positive change for animals. I call this field “animal rights law.” The article demonstrates the theoretical diversity and related richness of this scholarship, making three contributions. Most notably, it highlights the prominence of feminist theory to the development of animal rights law. This more recent feminist-inspired work has attempted to bypass the personhood-property debate from earlier decades through theorizing alternative or supplementary …

First In Time: The Place Of Tribes In Governing The Colorado River System, Matthew Mckinney, Jay Weiner, Daryl Vigil

Natural Resources Journal

Native Americans are the first inhabitants of the Colorado River Basin and have relied on its water and other resources since time immemorial. However, tribes were not involved in the shaping the Colorado River Compact and its governing institutions, and they have faced uphill battles to secure, protect, and develop their water rights—including the ability to acquire access to clean water for their members. This article begins by explaining the historic role of tribes in governing the Colorado River system. It then reviews ongoing efforts to better integrate tribal needs, interests, and priorities into management decisions, and to support opportunities …

From Austin To Santa Fe: Exploring The Prosecution Of Environmental Crimes Within Epa Region 6, Dr. Joshua Ozymy, Dr. Melissa Jarrell Ozymy

Natural Resources Journal

Criminal violations of environmental law are prosecuted by EPA and DOJ. Despite decades of such prosecutions, there has been relatively little analysis done towards understanding existing patterns in criminal prosecution of environmental crimes, especially on a regional basis. This article analyzes the 287 prosecutions which occurred in EPA Region 6 between 1983–2022, out of the 2,807 total environmental crimes prosecuted by all of EPA during that period. In the selected cases, defendants were cumulatively assessed with over $908 million in monetary penalties, 225 years of incarceration, and 1,032 years of probation. At 43 percent of the selected prosecutions, water pollution …

Case Note: Up In The Air: Environment Texas And The New Violation-Based Approach To Determining Standing In Environmental Citizen Suits, Noah T. Allaire

Natural Resources Journal

No abstract provided.

Identity Boundaries Construction And Its Effects On Vulnerability In The Case Of A Historically Marginalized People (Hmp) In Rwanda: An Examination Of Their Access To Human Rights., Jean Baptiste Ndikubwimana, Kathleen A. Anangwe, Oriare Oriare Nyarwath, Mwimali Jack, Charles Mulinda Kabwete

Journal of African Conflicts and Peace Studies

This paper contextualises the vulnerability of a Historically Marginalized people (HMP) referred to as the Batwa to explain how their moral inferiority resulting from the constructed microaggressions and attitudinal prejudices, jeopardize their full enjoyment and appreciation of human rights. The dilemmas experienced by the Batwa in Rwanda have until recently received little theoretical and empirical attention thereby disregarding ontological and epistemological distinction. This paper contributes to this lacuna by reviewing colonial discourse of histories and hegemonies and investigating ethnic socio-cultural practices and other mythical tales. The foregoing indicates a genuine need for the application of human rights approach to recognize …

Under Nifty Light: Trademark Considerations For The New Digital World, Willajeanne F. Mclean

Akron Law Review

Three cases involving non-fungible tokens are grabbing the attention of fashionistas, intellectual property mavens, and metaverse cognoscenti alike. All three are cases of first impression, despite involving trademark infringement claims. All are considered to be cases that will determine whether old trademark principles apply to new technology, and each has compelling and competing arguments that may militate against findings of infringement. While most commentators have focused on the questions surrounding alleged infringement, very few have discussed the challenges of applying remedies, such as injunctions, traditionally used in trademark infringement cases.

This article considers trademark law and examines it in a …

Not High Value Because, High Value Unless: A New Threshold Question For Speech, Tamara Lemmon

University of Dayton Law Review

No abstract provided.

Anatomy Of China’S Maritime Strategy: Threatening The Maritime Order Through Its National Legislation And Self-Centered Interpretation Of Unclos, Shigeki Sakamoto

International Law Studies

While the 1982 United Nations Convention on the Law of the Sea (UNCLOS) establishes an objective framework for the coordinated handling of the use of the sea by States in the exercise of their legislative, judicial, and executive powers, China’s legislative bodies, in enacting domestic laws for the fulfillment of treaty obligations, distort obligations in its domestic laws to secure their own national interests. For example, Article 6.2 of China’s Territorial Sea Law violates articles of UNCLOS by denying the right of innocent passage. In addition, China is extending its jurisdiction over security to the contiguous zone with Article 13 …

Natural Resource Systems And The Evolution Of Environmental Law, Monika Ehrman

Pace Environmental Law Review

Professor Monika Ehrman provides a pragmatic response to Elliott and Esty’s proposal to end all environmental externalities, which she refers to as an “environmental law moonshot.” She examines the value of transforming environmental law and dreaming big as Elliott and Esty recommend, while discussing the practical considerations of doing so. Her considerations include incentivizing technological advancement, compensating environmentally harmed communities to address systemic issues, and breaking down silos in environmental law.

A Balanced Prescription For More Effective Environmental Regulations, W. Kip Viscusi

Pace Environmental Law Review

Government agencies increasingly base the structure and approval of environmental regulations on a benefit-cost test. For regulations that pass this test, total benefits exceed total costs. Under a benefit-cost framework, the degree of regulatory stringency is set at an economically efficient level whereby the tightness of the regulation is increased up to the point where the incremental benefits equal the incremental costs. Setting regulatory standards to achieve the efficient degree of pollution control does not fully discourage entry into polluting industries, provide compensation to those harmed by pollution, or establish meaningful incentives for effective enforcement. This article proposes that the …

Inadequate Documentation, Communication, And Regulation: How Noaa And Aphis Have Failed Marine Mammals, Mckenzi L. Stevens

Ocean and Coastal Law Journal

Marine mammals have been used in the U.S. entertainment system for several decades. While they were first acquired through capture from the wild, the trade and birth of marine mammals in facilities of public display – zoos and aquariums – has boomed. Since the early 1940s, the National Oceanic and Atmospheric Administration has been tasked with maintaining the record of each marine mammal under U.S. ownership. However, documentation has been improperly maintained, leading to inaccurate data, and even the “misplacement” of marine mammals. This is largely due to the lack of communication of the Animal and Plant Health Inspection Service, …