"Activist" Versus "Passive" Investors: A Closer Look At Proxy Contests And The Contemporary Balance Of Advantage, John C. Coffee Jr.

Faculty Scholarship

The era of the hostile takeover has clearly given way to the era of the proxy contest led by an activist hedge fund. Today, a record number of such contests are underway, and they have changed the board composition at many U.S. companies and caused a record number of CEO resignations. But there is a mystery here: when activist funds negotiate for changes with target managements, they often obtain meaningful changes in the board of directors and corporate policies. However, when activists attempt a proxy contest, they have generally been unsuccessful, winning only a small number of seats in a …

Tax In The Echo Chamber, Kathleen Delaney Thomas

Faculty Publications

This Essay explores the concept of social media echo chambers in the context of tax law. Specifically, in addressing this Symposium’s topic of “AI in Tax Law,” the Essay argues that a significant and growing number of taxpayers encounter information about the tax system through their interaction with social media content that is selected by machine-learning algorithms. Tax information, commentary, and advice abound on social media, and nearly eighty percent of those considered Gen-Z or millennials seek out tax and financial advice on social media platforms. Policymakers who are interested in keeping the public informed about the tax system, thereby …

The Arbitrary Myth: Challenging Trademark Law's Elevation Of Arbitrary Marks, Dustin Marlan

Faculty Publications

Under its Abercrombie spectrum, trademark law grants “arbitrary” marks—like APPLE for computers or AMAZON for retail—its highest form of protection, treating them as equivalent to fanciful marks such as KODAK or EXXON. This Article challenges that foundational assumption. Unlike fanciful marks, which are invented and enjoy strong source-identifying capacity due to their novelty, arbitrary marks draw on existing language through catachresis: a rhetorical move that repurposes a common word in novel commercial context. In doing so, arbitrary marks generate layered metaphoric meanings that more closely resemble the associative leaps of suggestive marks, rather than the invented distinctiveness of fanciful ones. …

Beyond The Indian Act: Restoring Traditional Government In Kahnawà:Ke Through Haudenosaunee Law, Brandon Montour

Osgoode Hall Law Journal

The Kanien’kehá:ka of Kahnawà:ke have been subjected to the Indian Act since 1889. Its forceful imposition has eroded ancestral governance systems and severed vital threads of cultural and social life. In 2024, the Mohawk Council of Kahnawà:ke—the Indian Act band council—declared its intent to restore traditional governance and unilaterally end the Indian Act’s reach within the territory. This work is presently underway in Kahnawà:ke. Against this backdrop, and in light of generations of collective experiences of trauma brought on by the forces of settler-colonialism, this article considers what role Haudenosaunee law can play in bringing community members together to build …

Space Mining, Richard Painter

Articles

The Trump Administration and U.S. Congress are promoting new ventures to extract valuable minerals from outer space. This Article does not dismiss the idea out of hand, but explores reasons for caution, including practical problems with space mining, its environmental impact, the likelihood that the United States could violate international law, and the risk of armed conflict. These problems are exacerbated by financial conflicts of interest in our government with a handful of billionaires, who have a financial interest in space mining work. The promotion of their agenda could involve wasteful government spending on subsidies for private ventures, with a …

Independence First ... Or Don't Use It: A Fiduciary Standard For Law-Firm Use Of General Ai, Edward S. Adams

Articles

To counter these structural threats, this Article proposes a restrictive, fiduciary-based standard for the use of GPAI in substantive legal work. The proposed “Fiduciary-Grade & Independence Safeguards” (FGIS) standard posits that law firms should presumptively prohibit the use of GPAI for tasks involving legal analysis, strategy, or the synthesis of confidential facts and law. A firm may only depart from this default prohibition if it can certify, with auditable proof, the implementation of two pillars of protection: (1) robust safeguards that neutralize vendor influence and preserve the lawyer’s independent professional judgment, and (2) fiduciary-grade confidentiality controls, including private deployment and …

Constitutional Limits On The President's Authority To Adjourn Congress, Allan Erbsen

Articles

Can the President adjourn Congress, declare that the adjournment constitutes a recess, and appoint cabinet officers without the Senate’s consent? President Donald Trump has considered invoking this supposed power. Adjourning Congress would enable the President to appoint otherwise unconfirmable officials. Even if the President does not adjourn Congress, the looming threat of adjournment could chill the Senate’s review of nominees.

This Article concludes that the President cannot evade the Senate’s role in the appointments process by adjourning Congress. Three clauses in the Constitution inform the analysis: the Consent Clause, which requires each house to consent to the other’s adjournment; the …

Unreasonable Accommodations: Staple V. School Board Of Broward County And The Case For The Interactive Process In Title Vii Accommodations, M. Thomas Yang

Missouri Law Review

When Congress enacted the Americans with Disabilities Act (ADA) in 1990, it envisioned a unique dispute resolution mechanism within the statute—the interactive process. Under this process, when an employee requests an accommodation from an employer, the two must “work together to assess whether an employee’s disability can be reasonably accommodated.” Although the term “interactive process” does not appear in the ADA’s text, the Equal Employment Opportunity Commission (EEOC) interpreted Congress’s intent and incorporated the interactive process into its regulations to guide disability accommodations. Strangely though, Title VII, which governs religious accommodations, does not include the interactive process in its text …

Democratizing Health Data: A Legal Framework For Privacy-Preserving, Government-Led Ai Collaboration, Nicole Nigri

Cybaris®

No abstract provided.

A Gap In The Cybertipline: Electronic Service Provider Liability And Child Safety, Brianna Evans-Sheehan

NYLS Law Review

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The online exploitation of children is a widespread problem that requires immediate action. This Note proposes that Congress …

Ambiguity's Final Auer: Insisting On Consistency After Loper Bright Enterprises, Shannon S. Pickrell

Emory Law Journal

Can one lose something they still have? Apart from this potential brainteaser, a common sense understanding of loss requires an item to actually be removed from its owner. Nevertheless, under the United States Sentencing Commission Guidelines, an interpretive rule automatically punishes convicted defendants for money they never took by including “intended loss” in the definition of loss. This interpretive rule multiplies the number of years a defendant spends in prison due to the doctrine of Auer deference, even though such a rule is not supposed to have the weight of law. Auer deference requires courts to defer to agency interpretations …

Silver Lining In A Soap Opera: A Boon For Hospital Debtors In The Midst Of In Re Steward's Madness, Mackie S. Garwood

Emory Law Journal

Lost in the technical jargon of the Medicare Statute and Bankruptcy Code are the powers to shape the posterity of hospitals that serve the American public. Distressed health care providers are increasingly turning to Chapter 11 relief, and ultimately the deal market, to salvage their businesses and fully monetize their assets. In the frequent event of an unsuccessful reorganization, hospital failures tank the health and well-being of their surrounding communities.

Hospital buyers regularly acquire a debtor’s Medicare Provider Agreement (Provider Agreement), a one-page form which credentials providers to participate in Medicare. In re Steward Health Care System, LLC, the …

Is The Gig Really Up?: Exploring Statutory Protections For Moonlighting Workers, Chiazom E. Ugo-Obi

Emory Law Journal

Moonlighting, side hustles, and part-time jobs often refer to secondary employment pursued by employees. While the terminology may vary, the underlying reality remains the same: Legal protections against an employer’s ability to restrict such activities are limited. Nothing stops employers from implementing policies or employment contracts prohibiting participation in additional employment. For many workers, holding an additional job is not a choice born of passion or professional fulfillment but a financial necessity driven by rising costs, stagnant wages, and economic instability. These workers, often already vulnerable within the labor market, face significant challenges when employers impose restrictive policies that limit …

Genes For Sale!, Anya E.R. Prince

Emory Law Journal

In March 2025, 23andMe, the flagship direct-to-consumer (DTC) genetic testing company, filed for bankruptcy. Just like that, the genetic information of fifteen million customers was up for sale to the highest bidder, creating a firestorm of reactions from the public, media, state attorneys general, and legislators warning of the dire outcomes that could arise from the sale of such sensitive data. The warnings seemed reasonable, as federal law does little to protect consumers from the widespread sale and misuse of their genetic data.

Yet, in retrospect, the public concerns and media frenzy could potentially be seen as excessive given the …

Unlikely Criminals: Inside The Ivf Drug Grey Market, Maybell Romero

Emory Law Journal

In this Article, I admit to committing crimes, specifically buying fertility drugs on the in vitro fertilization (IVF) drug grey market. Drawing from personal experience, I explore how people wanting to undergo IVF turn to the criminalized fertility drug grey market to access necessary but prohibitively expensive fertility medications that would otherwise be out of reach. In the absence of comprehensive insurance coverage, patients often rely on informal online communities to obtain medications at lower prices, often from other patients whose IVF cycles have been canceled or who have excess drugs. While these transactions fulfill a critical need, they also …

Defamation, Privacy, And The First Amendment: Cases & Problems (3rd Ed.), George Biashvili

Books

I created this resource in anticipation of teaching my Torts II class, which will primarily explore defamation and privacy torts. Though I searched for a suitable coursebook, I found that none contained all of the opinions I consider essential for teaching the nuances and complexities of these subjects. Additionally, I wanted to spare my students the exorbitant price tags associated with traditional law school texts. Hence, I assembled a collection of relevant privacy and defamation cases that align with the objectives of my course. Each case is accompanied by a set of questions to further stimulate class discussion. Where I …

Formal Neutrality And Unequal Liability: How Algorithmic Aversion Distorts Liability For Algorithmic Torts, Gao, Jingkang

Santa Clara Law Review

The shift in the cause of machine-induced harm from mechanical failures to algorithmic decision- making is challenging the applicability of products liability. Because algorithms now operate machines analogously to humans, a doctrinally coherent response is to subject algorithmic torts to a negligence framework that evaluates the reasonableness of decisions rather than the content of algorithms. This approach offers a theoretically grounded, formally neutral, and normatively appealing solution. In practice, however, it may result in unequal liability. Even under a negligence regime, algorithmic decision- makers may face systematically greater liability if injured parties are more inclined to pursue litigation against algorithmic …

Constitutional Structures In Private Law And The Example Of Waste Law, Fraley, Jill M.

Santa Clara Law Review

This Article proposes three criteria for when a private law mechanism performs a structural constitutional function: when it constrains present authority in the name of future stability, when it disperses enforcement to avoid centralized authority, and when it has structural entrenchment to avoid ordinary displacement. While many private law doctrines contain constitutional resonances or echo rights, the core of constitutional law is the power structure—a precondition for the protection of those rights. Constitutional structures have three key components: self-binding through time, separation and diffusion of power, and entrenchment beyond ordinary politics. For a private law doctrine to do more than …

What Ai Can’T Say: Oral Competence In Legal Education, Ho, Cynthia M.

Santa Clara Law Review

This Article brings together two critical conversations rarely considered in tandem – the impact of generative AI (GenAI) on legal education and the need for more practical skills – and argues for a shared solution centered on oral communication skills. Law schools have historically devoted substantial attention to teaching students how to write like lawyers, but not how to speak like one. Although a long-standing imbalance, the widespread use of GenAI in written work provides an additional urgent reason to place more emphasis on oral assignments.

This Article argues that doctrinal classes offer an underused, scalable opportunity to develop oral …

Things Humans Do: The Use Of Esds On Autistic Children, Jami L. Anderson

Journal of Race, Gender, and Ethnicity

On March 26, 2024, the Food and Drug Administration (FDA) published a proposed rule (PR) that would ban the use of electrical stimulation devices (ESDs)—shock devices—for treatment of selfinjurious behavior (SIB) and aggressive behavior (AB). This PR was directed at Judge Rotenberg Education Center (JRC), a residential institution in Canton, Massachusetts, that treats children and young adults with profound intellectual and emotional impairments, most of whom are autistic. Medical evidence has well established that ESDs not only fail to treat SIB, but cause the rate and severity of SIB to worsen. This is the FDA’s second attempt to ban ESDs. …

Prisoners And Choice Democracy, Eileen Prescott, Michelle Theer

Journal of Race, Gender, and Ethnicity

This Article considers how eliminating meaningful choices inside prisons harms individuals and obstructs reintegration efforts. While any individual restrictions on incarcerated people may seem minor—such as limitations on the food available in the commissary— they accumulate to a point where people adopt passive, compliant behaviors and attitudes that are adaptive inside yet maladaptive outside the prison walls. Thus, we argue that even modest improvements in prisoner autonomy could reduce recidivism and achieve the public safety goals of incarceration.

Body Of Law: When Content Moderation Becomes Gender Oppression And Triggers Legal Consequences, Sarah E. Bahrenburg

Journal of Race, Gender, and Ethnicity

For as long as the Internet has existed, it has been used as a tool for good and as a tool for malice. However, there is a discrepancy between punishment for those maliciously invading individuals’ personal space and those posting consensual images of themselves for art or entertainment purposes (not to mention for work). Over the years, while attempting to create safe spaces for people to express themselves, the Internet has also created barriers to individuals doing just that. The Internet and the laws surrounding exposure therein have become increasingly misogynistic and anti-women’s sexual freedom. The laws encompassing safety on …

Get Out Of Jail Free: The Monopoly Of Big Pharma & Drug Addiction, Melissa E. Morello

Journal of Race, Gender, and Ethnicity

This article analyzes the legal and social parameters of drug addiction and the opioid epidemic, arguing that pharmaceutical companies, lawmakers, and systemic institutions have effectively “gamified” public health, addiction, and their own accountability. It traces the historical trajectory of drug regulation, from early opioid use and racially motivated enforcement policies to the War on Drugs and the emergence of the prescription opioid epidemic fueled by aggressive pharmaceutical marketing. The analysis explores pivotal case law and legislation addressing addiction, highlighting the legal system’s struggle to reconcile criminal accountability with the recognition of addiction as a disease. Throughout this article, there will …

The Impact Anti-Abortion Laws Will Have On Domestic Violence Victims Post-Dobbs Decision, Elissa Schlissel Goldberg

Journal of Race, Gender, and Ethnicity

This paper will focus on the impact a total or near-total abortion law may have on domestic abuse and how male abusers may attempt to seek control by taking advantage of the law. This paper will first address domestic violence, specifically focusing on the different ways domestic violence can manifest and their definitions. Next, the paper will shift focus to abortion and how states have tried to limit a woman’s ability to access abortion. The paper will then move to focus on the connection between domestic violence and abortion, looking into the data from past researchers and the trends that …

The Un-Bridged Pipeline: Leading And Preparing Women Of Color To Senior-Level Higher Education Administration, Jacqueline D. Slater

UNF Graduate Theses and Dissertations

Despite increased educational attainment among Black women, representation in senior‑level leadership positions within higher education remains limited. This qualitative study examines the experiences of Black women who serve or have served in senior‑level academic administrative roles and explores how those experiences inform guidance, preparation, and decision‑making for future Black women leaders. The study focuses on practical barriers, workplace realities, and strategies that shape leadership entry, advancement, and retention.

Using a descriptive case study design, five Black women with professional experience as presidents, provosts, vice provosts, and academic deans participated in semi‑structured interviews lasting 45 to 75 minutes. Purposeful sampling ensured …

Firearms And Fora: Constructing Public Carry Doctrine, Timothy Zick

Faculty Publications

Where can a person lawfully carry firearms in public? Under what conditions can they do so? Now that the Supreme Court has formally recognized a Second Amendment right to public carry, these are among the most important unresolved questions regarding the right to bear arms. The Second Amendment’s public carry doctrine is in its infancy. How the doctrine develops will have a profound impact on the exercise of Second Amendment rights in public places and on the public square. Integrating a new constitutional right into the public square is not a novel problem. After the Supreme Court recognized First Amendment …

To The Hague And Beyond: The Shifting Terrain Of International Criminal Justice, Leila Nadya Sadat, Valerie Oosterveld, Sharon Weil, Nancy Combs, David Crane

Faculty Publications

Panel of international criminal law experts speak about the areas in which they work.

Dollar Challenger? Cbdcs, Complexities, And Monetary Hegemony, Heng Wang

Research Collection Yong Pung How School Of Law

Digitalization is transforming the architecture of the international monetary system, reshaping how currencies function and financial infrastructures evolve. Among the significant developments are central bank digital currencies (CBDCs)—new digital forms of national currencies. While CBDCs promise benefits such as efficiency, they also generate relational, technological, legal, and governance complexities that would profoundly affect the global financial landscape. Against this backdrop, a compelling question arises: will CBDCs, particularly cross-border CBDCs, challenge U.S. dollar dominance?

To address this, this Article adopts a forward-looking approach to examine three interrelated crucial questions: what makes CBDCs complex? What governance complexity is likely to arise? Will …

Name, Image, Likeness And The Great American Pastime, Barbara Lauriat

Dickinson Law Review (2017-Present)

The ability of high-profile athletes to commercialize name, image, and likeness (NIL) rights is at the center of many current controversies about the future of college sports in the United States. This Article describes how what we call NIL protection— largely based on publicity rights doctrines developed in the mid-20th century—is historically recent, conceptually unstable, and insufficiently scrutinized, even though it now underwrites major entertainment markets in sports. Just as baseball is a sport particularly identified with the United States, there is also a peculiarly American approach to the protection of persona. Using baseball as the central case study, the …

Beyond Amateurism: The Evolving Role Of Sports Agents In The Nil Era, Madison Taylor

Student Works

No abstract provided.