Digital Commons Network^™

Defending The Defenders: Why Bureaucratic Independence Is A Necessary Supplement To Judicial Defense Of Democracy The Specter Of Dictatorship: Judicial Enabling Of Presidential Power, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland, as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature on democratic “backsliding” or “decline” proposes a menu of “guardrails” for shoring up democracy from gradual collapse. Broadly, these guardrails fall under two headings: I call one judicial, the other bureaucratic. The former looks to the power of judicial review, under which courts may invalidate enactments that threaten, not just the Constitution, but the very democratic …

Revisiting America's Guardrails The Constitution And Democratic Erosion Symposium, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature proposes a menu of “guardrails” for shoring up democracy from backsliding or decline. Some see guardrails in society and culture, calling for rebuilding civic norms of tolerance. Others call for stricter rules in administering elections, to prevent undue influence. Others call for greater judicial intervention, tasking courts with striking down enactments that threaten the constitution or …

No New Tax Cuts? Examining The Rescue Plan's New State Tax Limits, Conor Clarke, Edward Fox

Scholarship@WashULaw

In this article, Clarke and Fox examine the American Rescue Plan Act’s restrictions on state tax cuts, arguing that the restrictions are a variation on more familiar maintenance-of-effort provisions. These provisions are common, and are designed to help ensure that federal grants supplement rather than supplant state spending by requiring the state to maintain its level of spending on a program. Clarke and Fox conclude that the Rescue Plan’s requirements create similar incentives, and argue that the similarity makes it more likely that the act’s tax provisions are consonant with the Constitution’s spending clause.

Do Social Movements Spur Corporate Change? The Rise Of 'Metoo Termination Rights' In Ceo Contracts, James Hicks, Rachel Arnow-Richman, Steven Davidoff Solomon

Scholarship@WashULaw

Do social movements spur corporate change? This Article sheds new empirical and theoretical light on the issue through an original study of executive contracts before and after MeToo. The MeToo movement, beginning in late 2017, exposed a workplace culture seemingly permissive of high-level, sex-based misconduct. Companies typically responded slowly and imposed few consequences on perpetrators, often allowing them to depart with lucrative exit packages. Why did companies reward rather than penalize bad actors, and has the movement disrupted this culture of complicity?

The passage of time since the height of the movement allows us to investigate these issues empirically, using …

The Rise And Fall Of Cryptocurrency: The Three Paths Forward, Joel Seligman

Scholarship@WashULaw

In a crash reminiscent of the 1929-1933 Stock Market crash in which prices on the New York Stock Exchange fell 83 percent between September 1929 and July 1932 or the 2007-2009 Financial Debacle in which the Dow Jones Industrial Average declined 54 percent between October 9, 2007 and March 9, 2009, crypto market capitalization fell 61 percent between November 2021 and May 2022, collapsing from an aggregate value of $2.9 trillion to $1.24 trillion. Bitcoin, the leading cryptocurrency which in late 2021 traded near $68,000 in November 2021 traded as low as $25,402 on May 10, 2022 (a decline of …

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Contact Tracing Cell Phone Apps And Wearable Devices: The Fourth Amendment Issues Confronting Public Employers, Marc Chase Mcallister

Maryland Law Review

No abstract provided.

Victim Participation And Public Messaging: Contemporary Lessons Of The Eichmann Trial, Diane Orentlicher

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

No abstract provided.

The Tragedy Of The Creative Commons: An Analysis Of How Overlapping Intellectual Property Rights Undermine The Use Of Permissive Licensing, Reagan Joy

Case Western Reserve Law Review

No abstract provided.

In A League Of Its Own: Should Intellectual Property Law Protect Sports Moves?, Jacqueline Kett

Case Western Reserve Law Review

No abstract provided.

Field Notes From An Alternative Water Quality Reality, Dave Owen

Case Western Reserve Law Review

No abstract provided.

How The Successes And Failures Of The Clean Water Act Fueled The Rise Of The Public Trust Doctrine And The Rights Of Nature Movement, Erin Ryan

Case Western Reserve Law Review

No abstract provided.

The Benefits Of Integrating Statutory Construction And Analysis In A First-Year Legal Writing Course, Lauren E. Sancken, Mireille Butler

Articles

Teaching statutory analysis to first-year law school students not only reinforces important principles of legal analysis and writing (from gaining a better understanding of the hierarchy of legal authorities to continuing to practice IRAC/CRAC methods of organization), but it also prepares students better for the actual practice of law.

Patent Reality Checks: Eliminating Patents On Fake, Impossible And Other Inoperative Inventions, Jorge L. Contreras

Utah Law Faculty Scholarship

The recent assertion of patents originally held by Theranos, the defunct blood analysis company whose founders are under federal indictment for fraud, highlights the existence of patents that might claim non-existent or inoperative inventions. While such patents may ultimately be subject to validity challenges in court, their issuance nevertheless has harmful effects on markets and innovation. I propose several administrative and legislative measures directed toward the elimination of patents claiming inoperative inventions including (1) increasing USPTO efforts to detect potentially inoperable inventions, (2) heightening examination requirements, including a certification of enablement, for certain inventions, (3) enabling greater public input into …

Protecting Tribal Public Health From Climate Change Impacts, Heather Tanana

Utah Law Faculty Scholarship

The COVID-19 pandemic brought national attention to challenges that tribal communities have been facing for decades, such as limited health services and lack of water access. Although the end to the pandemic seems to be in sight, climate change will continue to threaten the public health and survival of tribal communities. Since time immemorial, Native Americans have recognized the sanctity of water. Water is life. However, climate change impacts are shifting the landscape across the country and many tribes lack the necessary infrastructure to protect their communities. For example, located in the Southwest, approximately 30-40 percent of homes on the …

Framing And Contesting Unauthorized Work, Angela D. Morrison

Faculty Scholarship

Unauthorized workers face precarity in the workplace and the threat of forced expulsion from their communities. Some of the reasons for that precarity result from how the law frames unauthorized workers. The law views unauthorized workers as lacking full human or civil rights, as “unauthorized,” to the exclusion of their other identities. The legal system also creates a binary that views unauthorized workers as either criminals who are complicit in their exploitation or passive victims for employers to exploit. This Article draws on social movement literature to theorize the processes that result in this framing and to explore how immigrant …

A Call For Constitutionalizing The Affirmative Insanity Defense, Mia C. Larson

University of Florida Journal of Law & Public Policy

This Note sheds light on varied insanity defense formulations which fail to adequately protect the constitutional rights of people deemed legally insane. An emerging trend has arisen whereby states adopt alternative approaches to legal insanity focused solely on the mental state of a criminal offender at the time the offender committed a crime. Rather than operating as an excusal from criminal liability, this alternative approach offers insanity as mitigating evidence to be used at the sentencing phase of trial. The result is that a person deemed not guilty in a state employing the affirmative defense could be deemed guilty in …

Finding The Right Angle: Lessons From Mathematics For The Legal Writing Classroom, Maria Termini

Faculty Scholarship

No abstract provided.

What Law Schools Should Leave Behind, Danielle L. Tully

Faculty Scholarship

No abstract provided.

10-Minute Ebd: Factors Impacting Gingival Margin Position Following Esthetic Crown Lengthening, I-Ting (David) Lee

The Journal of the Michigan Dental Association

The esthetic crown lengthening procedure aims to address gingival concerns and achieve harmonious crown proportions. This article explores factors influencing gingival margin position post-surgical intervention, focusing on patients with excessive gingival display. The PICO question investigates gingival changes six months post-surgery. A comprehensive literature search using keywords such as "esthetic crown lengthening" and "gummy smile" identifies relevant articles. Results indicate varied outcomes, emphasizing the importance of individualized approaches. Notably, factors like flap margin suture placement impact tissue rebound. This study underscores the complexity of esthetic crown lengthening, emphasizing the need for tailored strategies to ensure optimal outcomes.

Combatting Ai’S Protectionism & Totalitarian-Coded Hypnosis: The Case For Ai Reparations & Antitrust Remedies In The Ecology Of Collective Self-Determination, Maurice Dyson

SMU Law Review

Artificial Intelligence’s (AI) global race for comparative advantage has the world spinning, while leaving people of color and the poor rushing to reinvent AI imagination in less racist, destructive ways. In repurposing AI technology, we can look to close the national racial gaps in academic achievement, healthcare, housing, income, and fairness in the criminal justice system to conceive what AI reparations can fairly look like. AI can create a fantasy world, realizing goods we previously thought impossible. However, if AI does not close these national gaps, it no longer has foreseeable or practical social utility value compared to its foreseeable …

Disarmament, Demobilization, And Reintegration In Colombia: Lost Human Rights Opportunities For Ex-Combatants With Disabilities, Minerva Rivas Velarde, Janet E. Lord, Michael Ashley Stein, Thomas Shakespeare

Articles

This article examines whether and how the circumstances of Colombian ex-combatants with disabilities were recognized in the disarmament, demobilization, and reintegration (DDR) processes in the period following the adoption of the 2016 peace agreement. Our results suggest severe procedural and substantive shortcomings during the drafting of the peace agreement and the implementation of the DDR processes that exacerbated the exclusion of ex-combatants with disabilities from available opportunities for their social, economic, and political reintegration. We conclude that a better understanding of the disabling impact of conflict and the exp

Law, Religion, And The Covid Crisis, Mark L. Movsesian

Faculty Publications

This essay explores judicial responses to legal restrictions on worship during the COVID-19 pandemic and draws two lessons, one comparative and one relating specifically to U.S. law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor …

Employment Status For "Essential Workers": The Case For Gig Worker Parity, Miriam A. Cherry

Faculty Publications

The continuing misclassification of gig workers as independent contractors has been problematic for over a decade. Several misconceptions have contributed to this marginalization of on-demand workers: technology that often obscures the work that is being performed; the view that platform work is a side hustle; or that platform work exists only for customer convenience or frivolous requests. During the coronavirus pandemic these myths about gig work were turned upside down as on-demand workers were recognized for their efforts and labeled essential workers. With that recognition came newly-awarded benefits, like pandemic unemployment assistance and paid sick leave. As such, the events …

Reverse Confusion And The Justification Of Trademark Protection, Jeremy N. Sheff

Faculty Publications

Theories of private law are dominated by welfarist normative frameworks, and trademark law is no exception. One such framework—the “search costs” theory associated with the Chicago School of law and economics—has long been the primary accepted justification for trademark rights. However, this theory fails to account for numerous features of actual trademark doctrine, as earlier scholarship has shown. This Article demonstrates how one underexamined area of trademark law—reverse confusion liability— is a similarly poor fit with the predictions and prescriptions of conventional economic theory. Plausible economic theories of trademark rights would either refuse to impose liability in reverse confusion cases …

The Obligations And Regulatory Challenges Of Online Broker-Dealers And Trading Platforms, Christine Lazaro, Teresa J. Verges

Faculty Publications

(Excerpt)

Investing has been evolving for decades. On “Mayday” in 1975, the SEC abolished fixed commissions, changing the face of the brokerage industry. A few months later, Charles Schwab opened its first offices, and discount brokerages were born. By the mid-1980s, there were over 600 discount brokers operating. By 1990, discount brokerage firms captured just under than 10% of the market, although Charles Schwab captured 40% of the discount brokerage market. Throughout the 1990s, new firms entered the market, including E*Trade and AmeriTrade. Online trading became more prevalent; by 1999 25% of all trades occurred online. The term “day trader” …

Disaster Vulnerability, Lisa Grow, Brigham Daniels, Douglas M. Spencer, Chantel Sloan, Natalie Blades, Teresa Gomez

Publications

Vulnerability drives disaster law, yet the literature lacks both an overarching analysis of the different aspects of vulnerability and a nuanced examination of the factors that shape disaster outcomes. Though central to disaster law and policy, vulnerability often lurks in the shadows of a disaster, evident only once the worst is past and the bodies have been counted. The COVID-19 pandemic is a notable exception to this historical pattern: from the beginning of the pandemic, it has been clear that the virus poses different risks to different people, depending on vulnerability variables. This most recent pandemic experience thus provides a …

Criminal Law Exceptionalism, Benjamin Levin

Publications

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

A Framework For Thinking About The Government’S Speech And The Constitution, Helen Norton

Publications

This Essay sketches a framework for mapping and navigating the constitutional implications of the government’s speech—and then illustrates this framework’s application to some contemporary constitutional disputes. My hope is that this framework will help us sort through the constitutional puzzles triggered by the government’s expressive choices—puzzles that confront courts and policymakers with increasing frequency. What I call “first-stage government speech questions” require us to determine when the government is speaking itself and when it is instead (or also) regulating others’ speech. This determination matters because the rules that apply to the government as speaker are very different from those that …

Hook, Line, And Sinker: The Use Of Subsidies, The Globalized System Of Preferences, And Arbitration To Save Our Ocean's Fish, Lindsy Maglich

Cardozo Journal of Conflict Resolution

In the wee hours of the morning, local fishermen from the impoverished West African country of Senegal head out to sea on their hand-hewn canoes, hoping to catch fish to bring home to sell for income. Thirty years ago these fishermen would bring in nets full of fish, yet these days the smaller local fisherman cannot compete with the Chinese megatrawlers sweeping their mile-long nets through the waters off of West Africa. Because Chinese fishing fleets have depleted the seas of fish near their home, China has sent 2,600 fishing vessels across the world to exploit the waters of other …