Digital Commons Network^™

What Twenty-First-Century Free Speech Law Means For Securities Regulation, Helen Norton

Publications

Securities law has long regulated securities-related speech--and until recently, it did so with little, if any, First Amendment controversy. Yet the antiregulatory turn in the Supreme Court's twenty-first-century Free Speech Clause doctrine has inspired corporate speakers' increasingly successful efforts to resist regulation in a variety of settings, settings that now include securities law. This doctrinal turn empowers courts, if they so choose, to dismantle the securities regulation framework in place since the Great Depression. At stake are not only recent governmental proposals to require companies to disclose accurate information about their vulnerabilities to climate change and other emerging risks, but …

The Roberts Court’S Anti-Democracy Jurisprudence And The Reemergence Of State Authoritarian Enclaves, Reginald Oh

Journal of Race, Gender, and Ethnicity

This Essay argues that the Roberts Court has been a pivotal institutional player in destabilizing constitutional democracy. It has enabled states to freely pursue agendas that are authoritarian in nature. And because authoritarianism is contrary to core principles of the Constitution, the Roberts Court’s constitutional jurisprudence has no basis in the Constitution and must ultimately be rejected.

Instead of taking steps to block authoritarian legislation and promote a fair and open political process, the Court has issued rulings catalyzing and reinforcing the authoritarian impulses of the former Jim Crow states. The Roberts Court has engaged in judicial review reinforcing authoritarianism, …

Comment: Unpaid Internships And The Rural-Urban Divide, Susan D. Carle

Washington and Lee Law Review

In this Comment, I first note how much the existing literature on unpaid internships under the FLSA focuses on urban contexts. Next, I briefly sketch some of the literature on the rural-urban divide, a topic I argue needs much more analysis from legal scholars in coming years. Third, I show how Morris’s work brings together these two literatures, which to this point have not been in conversation with each other. Finally, I note a few questions Morris’s work raises for future attention.

Between An Abercrombie Rock And A Hard(Ison) Place: Muslim Head Coverings, Corporate Dress Policies, And The Unresolved Tensions Between Workplace Religious Accommodation And Undue Hardship, Richard D. Crane

Student Works

No abstract provided.

Alternative Facts: The Strategy Of Judicial Rhetoric, Tonja Jacobi, Eryn Mascia

Emory Law Journal

Studies have established the influence of ideology on the answers justices give to legal questions; this study shows that the questions themselves are often selected, framed, and phrased in a way that promotes ideologically-driven answers. By examining a variety of linguistic techniques used to describe just the facts of constitutional criminal procedure cases—separate from the legal analysis—we show the justices are engaging in highly strategic behavior. The facts included, omitted, or emphasized vary with the ideology of the justices and are predictable not just based on voting behavior in other criminal procedure cases but in all Supreme Court cases. We …

An Essay About Privacy, Ronald Griffin

Journal Publications

Jessye Norman was an American opera singer. She died on October 1, 2019. On October 2, 2019, my wife got a grim diagnosis that put me in a stupor and reminded me, now more than ever, that my generation (that did so much good in the world) stands in line waiting for the Grim Reaper’s call. In a seventy-years (that have gone by too fast) I have watched my peers run from the realms of privacy, spaces where people implemented life plans uninterrupted by neighbours that were discernible, palpable, and real to everybody, to a realm where there is none. …

Book Review: Critical Race Judgments: Rewritten U.S. Court Opinions On Race And The Law, Julia M. Pluta

Faculty Works

No abstract provided.

Solutions Still Searching For A Problem: A Call For Relevant Data To Support “Evergreening” Allegations, Erika Lietzan, Kristina Acri Née Lybecker

Fordham Intellectual Property, Media and Entertainment Law Journal

For years pharmaceutical policymaking discussions have been revolving around allegations of supposed “evergreening” by pharmaceutical companies, and policymakers have considered a range of significant policy reforms—including to antitrust law and drug regulatory law—to address this purported problem. This Article evaluates empirical data offered to substantiate “evergreening” and explains that these data—though mostly accurate—do not support proposed policy changes.

The “evergreening” claim is that by securing additional patents and FDA-related exclusivities after approval of their new drugs, brand drug companies enjoy a period of exclusivity in the market that is longer than the initial patent(s) and exclusivity on the drug would …

Silly Gene Patent Is Not My Lover: A Retrospective Analysis Of Myriad, Stephanie Huang

Fordham Intellectual Property, Media and Entertainment Law Journal

The U.S. Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics, Inc. established that an isolated fragment of a gene—the basic unit of heredity—is not patent-eligible subject matter while simultaneously holding that complementary DNA (cDNA) of a gene is patent-eligible subject matter. The decision has been controversial and criticized for including two holdings that are internally inconsistent from both scientific and patent law perspectives. But are the short- and long-term criticisms overstated? A decade after Myriad, the various impacts of the case remain relevant, particularly to the biotechnology and genetic testing fields.

First, this Note examines whether Myriad …

Celebrating 70 Years, Case Western Reserve University School Of Law, Law-Medicine Center

Case Law-Med

• Message from the co-directors
• News flash
• Bringing in the experts
• Research roundup
• Faculty briefs
• Making health law history
• Uphill battle
• Above and beyond
• In the field
• Joining the team

International Whaling: Reframing The Iwc Moratorium For The Effective Conservation Of Whales, Kacey Hovden

Animal Law Review

The ocean once teemed with whales at seemingly every tide and crest, but due to centuries of overexploitation, whales are now a rare and coveted sight in many parts of the world. Today, the challenge of preventing these magnificent giants from extinction remains prevalent, with slow recovery rates and continued whaling practices in direct conflict. This Article examines the history of global whaling practices and the International Whaling Commission’s 1986 moratorium and argues for the establishment of an effective regulatory scheme permitting commercial whaling only on abundant whale stocks. The scheme would encourage whaling nations to remain members of the …

Book Review: Wildlife As Property Owners: A New Conception Of Animal Rights Written By Karen Bradshaw, Justin Starr

Natural Resources Journal

No abstract provided.

Monuments Without Faces?, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Monuments take many forms and can serve several purposes. Typically associated with honor and a need to commemorate significant events, monuments seem to represent the ideas of the communities which house them. However, it remains to be seen whether all monuments represent a “good” memory. In this essay, the author seeks to comment on the concept of collective memory, specifically in the context of the history and experiences of marginalized groups in the United States. The author argues that monuments are a tool of promoting a collective memory: monuments are not part of history but rather part of the creation …

Investments In The Magnificent Ambersons: Business, Marriage, And Law-Making, Saul Levmore

Public Law and Legal Theory Working Papers

Successful investments often reflect insight, implementation, and good fortune. In Booth Tarkington’s Pulitzer Prize-winning novel, The Magnificent Ambersons1 (written in 1918, adapted by Orson Welles in a celebrated 1942 film, and recently rediscovered and scheduled for release with material that had been removed over Welles’ objection), horses give way to the automobile and the characters’ fortunes rise and fall as the world changes with the advent of this new technology. Meanwhile, the decision to marry, like one to enter other partnerships, also depends on insight, effort, and good fortune. I aim to show these parallel themes in the novel. The …

International Agreements By U.S. States: Federalism, Foreign Affairs, And Constitutional Change, Curtis A. Bradley

Public Law and Legal Theory Working Papers

The text of the U.S. Constitution appears to require that, to the extent that individual states are ever allowed to conclude agreements with foreign governments, they must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments and almost never seek congressional approval. This practice is an illustration of both the importance of federalism in U.S. foreign relations and the significant role played by historical practice in informing U.S. constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a climate change agreement that the state of …

The Trademark Modernization Act Of 2020: Legislating The "Extra" Out Of "Extraordinary", Jake B. Vallen

NYLS Law Review

No abstract provided.

Pathways To Justice: Positive Rights, State Constitutions, And Untapped Potential, Dustin Coffman

Marquette Benefits and Social Welfare Law Review

Positive rights, as a concept, are nothing new. Though they may not have always had such a deceptively unequivocal name, positive rights have existed in various forms and mediums throughout history. They've been utilized, underutilized, and, in some cases, outright ignored. At their core, positive rights are the imposition of an obligation upon the state to fulfill some declared right or benefit. One basis for this imposition is that because citizens give up certain rights by being parties to the "social contract," they should be entitled to certain positive protections guaranteed by the state created by way of said "contract." …

To Protect And Serve California's Children: Mitigating Police Coercion Of Minors Through California's New Attorney Consultation Mandate, Lila Garlinghouse

University of San Francisco Law Review

No abstract provided.

Foreword, John Akinwole

UC Law Journal of Race and Economic Justice

No abstract provided.

Conspiracy Theories Are Not Religions: Scrutinizing Religious Exemptions To The Covid-19 Vaccine, Shirley B. Luk

University of San Francisco Law Review

No abstract provided.

Right Of Association For Platform Workers In Thailand (A Case Study Of Food Delivery Platform Workers), Kanut Thamromdee

Chulalongkorn University Theses and Dissertations (Chula ETD)

Platform work has become the prominent form of employment in the last decade due to its unique features which are seemingly beneficial to workers, whether it is flexibility, autonomy, diverse job opportunities or ease of entry resulting in many people choosing to be platform workers working with platform providers on platforms. During the last decade, platform work has rapidly grown thanks to the advanced technology and innovative business models; however, it seems that Thai labour law focusing on traditional employment has not been adequately developed to catch up the growth of platform work in Thailand. Platform providers have classified platform …

Front Matter, Natural Resources Journal

Natural Resources Journal

No abstract provided.

Arbitrating Social Media Content: A Framework For Banning High-Profile Users Through Third-Party Arbitration, Rachel Gershengoren

Cardozo Journal of Conflict Resolution

No abstract provided.

Improving New York City's Covid-19 Vaccine Mandate For Public Sector Workers: A Collaborative Framework For Labor-Management Relations In High Impact Circumstances, Chelsea Hill

Cardozo Journal of Conflict Resolution

No abstract provided.

Beyond Problem-Solving Courts, Erin R. Collins

Cardozo Journal of Conflict Resolution

Problem-solving courts were borne out of well-meaning experimentalist spirit, a spirit that is very much in line with the vision of this Symposium on the multi-door criminal courthouse. These courts, which include drug courts, mental health courts, veterans' courts, and many other specialized criminal courts, were created as a way to close one door to the criminal courthouse-the so-called "revolving door" that appeared to bring some people accused of crimes back into court as soon as they exited. Problem-solving court judges sought to open a different door for some of those who entered their courtrooms, a door that they hoped …

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Enforcing Soft Law In International Investment Arbitration, Vera Korzun

Akron Law Faculty Publications

Drawing examples from international environmental law, sustainable development, and corporate social responsibility, this Article examines the evolving role of international investment arbitration in the enforcement of non-binding soft law rules of international law. In doing so, the Article explains how investment tribunals can, and have been called upon to, interpret and, paradoxically, enforce soft law instruments. The Article calls for reevaluation of the nature of soft law and the role of investor-state dispute settlement in international rulemaking and enforcement. It also argues that for international environmental law and law on sustainable development, where the lack of an enforcement mechanism has …