Digital Commons Network^™

Consumer Protection And The Illusory Promise Of The Unconsciounability Defense, Benjamin C. Zipursky, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

The United States Supreme Court’s notorious decision in AT&T Mobility LLC v. Concepcion seems to display impatience with the idea of an unconscionability defense to the enforcement of a contract. At the core of Justice Antonin Scalia’s opinion, however, was not an argument against the idea of unconscionability per se, but an argument against using “unconscionability” as a cover for a broader public policy agenda. This interpretation is confirmed by the Court’s little-known decision in Marmet Health Care Ctr., Inc. v. Brown, handed down the term after Concepcion was decided. Plaintiffs were allowed to move forward in Marmet because the …

Doug Laycock And Creativity In Restitution—The Henrietta Lacks Litigation As A Test Case, Doug Rendleman, Caprice L. Roberts

Scholarly Articles

This Article explores the Henrietta Lacks litigation as a test case for Professor Laycock's writings and theories on the law of unjust enrichment and restitution remedies. A series of modern lawsuits brought by the Lacks Estate allege that defendant companies continue to make unjust profits with knowledge of the unsavory provenance of the Henrietta Lacks immortal cell line. The only count in the complaints is unjust enrichment. The core remedy is restitutionary disgorgement of unjust gains. The authors connect the novel nature of the lawsuits to foundational restitution principles. Professor Laycock's scholarly articles, books, and law reform projects bring deeper …

Friday Luncheon Keynote, Isha Khan

Canada-United States Law Journal

No abstract provided.

The “Co-Conspirator Exception” To Illinois Brick: Mandatory Joinder Of Direct Purchaser Co-Conspirators, Nikki Chavez Brown

The University of Chicago Business Law Review

Illinois Brick was intended to be a bright-line rule prohibiting indirect purchasers from recovering damages against an upstream antitrust violator under § 4 of the Clayton Act for overcharges passed-on by direct purchasers. In reality, the Illinois Brick decision has resulted in a patchwork of incongruent jurisprudence governing antitrust standing in private enforcement cases. In a seemingly endless struggle to satisfy long-recognized antitrust principles of compensation and deterrence through private enforcement, courts have employed an inconsistent array of rationales and “exceptions” to Illinois Brick. The so-called “co-conspirator exception” to Illinois Brick is intended to provide the first purchaser from outside …

Comprehensive Bibliography On Independent Accountability Mechanisms At International Development Finance Institutions (1993-2024), Reagan Ferris, David Hunter

Bibliography

This bibliography collects published and some non-published material relating to the World Bank Inspection Panel and other independent accountability mechanisms (IAMs) at international development finance institutions (IFIs). Not included are those reports, decisions, action plans, etc., that are generated by the IAMs or IFIs in processing a specific case and made available on the IAM’s website through, for example, a registry of cases. The bibliography is organized according to the following sections:

I. Publications Relating to Independent Accountability Mechanisms, including Books, Chapters, Articles, Working Papers, Dissertations, Reports, Newsletters, Press Releases, Statements, and Comments

II. Publications from International Organizations, including publications …

Election Law, Maureen A. Edobor, John J. Martin

Scholarly Articles

This is the first year the University of Richmond Law Review has surveyed recent developments in Virginia’s campaign and election laws since 2015. Since then, Virginia’s voting and election statutes have changed significantly, making it one of the most accessible states to vote in, although the campaign finance regulatory framework remains relatively weak. This Article provides a general overview of the state of the law governing (1) campaign finance; (2) voter access and list maintenance; (3) election systems and administration; and (4) redistricting, focusing on significant updates in the past two decades.

Risk, Reimagined: The Untold Story Of Liability Laddering In Modern Commercial Dealmaking, Carrie Stanton

Scholarly Articles

In commercial contracting, bargaining parties regularly allocate risk in various ways, including contractual limitations of liability. However, it can be difficult to appropriately apportion responsibility for high-risk contingencies such as data breach. A seller may be unwilling to accept uncapped liability for a contingency whose cost could exceed the expected value of the transaction. Conversely, a buyer may be unwilling to live with only a general damages cap established as a rough-and-ready compromise for more ordinary contingencies. To surmount this impasse, which typically arises toward the end of a negotiation, deal lawyers have begun to craft elevated dollar caps, or …

Europeanization Of Georgian Competition Law, Zurab Gvelesiani

Yearbook of Antitrust and Regulatory Studies

This case comment examines a landmark decision by the Georgian Competition and Consumer Agency (hereinafter, “GCCA”; “the Agency”) concerning coordinated pricing among major pharmaceutical distributors in Georgia’s state-funded oncology medication program. The GCCA found that four leading companies – Aversi Pharma, PSP, Gepha, and Mermisi – repeatedly submitted identical price offers in a closed procurement portal, in violation of Article 7 of the Georgian Law on Competition, which prohibits restrictive agreements. The agency’s findings were based on indirect economic evidence, including the statistical improbability of such pricing alignment across 88 instances, ultimately leading to fines exceeding 53 million GEL. The …

Poverty, Fresh Starts, And The Social Safety Net, Michelle Lyon Drumbl

Scholarly Articles

For decades low-income families have relied on the filing of individual income tax returns to claim critical social welfare benefits in the form of refundable tax credits, most notably the Earned Income Tax Credit and the Child Tax Credit. But what happens to those families when the social safety net is not enough to meet their financial obligations, and they must seek a fresh start by filing for bankruptcy?

This Article, at the intersection of tax law, bankruptcy law, and the social safety net, examines the ways in which state bankruptcy laws treat refundable tax credits when an individual debtor …

Identifying The Guilty, Protecting The Innocent: Amending The Federal Rules Of Evidence To Address Admissibility Of Eyewitness Identification, Louisa M. A. Heiny

University of Michigan Journal of Law Reform

Mistaken eyewitness identification is among the most common factors in wrongful conviction cases. Indeed, hundreds of innocent defendants have been convicted for a crime they did not commit, their fate sealed by an eyewitness who convincingly, but mistakenly, testified, “That’s the one!”

Scientific researchers have documented the fallibility of eyewitness identification for decades. Their collective work has produced recommendations for eyewitness identification reform, focusing on procedural problems most likely to result in mistaken identification. The law in this area, however, has not kept pace with the science. Rather than representing a cohesive series of safeguards against inaccurate eyewitness identifications, federal …

Discussing The Effectiveness Of Capital Punishment And Florida's Sentencing Change From Unanimous To Eight Juror Majority, April Feeser

Nova Law Review

No abstract provided.

Vulnerability In The Law, Sara Aziz, Aisli Ali, Casey Williams, Lindsey Nye, Saya Khandhar, Sofia Bazdekis

Human Rights Brief

On Monday, February 24, 2025, the Human Rights Brief (“the Brief”) at American University Washington College of Law (“WCL”) held its annual spring symposium with the theme of “Vulnerability in the Law.” This year’s theme aimed to highlight areas where legal systems fall short in protecting vulnerable populations, as well as highlighting where the law itself is vulnerable. The symposium was organized by Symposium and Education Editor Sara Aziz, in collaboration with the Junior Symposium Staff: Asli Ali, Casey Williams, Lindsey Nye, Saya Khandhar, and Sofia Bazdekis. The team worked relentlessly to coordinate panels on legal issues, including technology, environmental …

Femicide Is A Human Rights Violation, Not A Cultural Consequence: Why Nigeria Is Violating The Maputo Protocol, Bolu Jegede

Human Rights Brief

Femicide, the most extreme form of gender-based violence, is the intentional killing of women simply because they are women. It is driven by harmful societal norms, such as oppressive gender roles, systemic discrimination towards women and girls, and gender power imbalances. Femicide is a universal problem but gaps in data on this issue mask the true scale of violence. For the first time since 2013, when the UNODC began publishing regional estimates, Africa surpassed Asia as the region with the highest number of victims.

Third-Party Funding In Treaty-Based Arbitration: Towards A More Transparent And Responsible System?, Margie-Lys Jaime R.

Arbitration Brief

Third-Party Funding (“TPF”) has become the “new kid on the block” of long-established stakeholders in international arbitration. However, despite the increasing use of TPF, few countries have undertaken the task of regulating the intervention of funders. Even in countries where the practice of TPF is regulated, it is generally in codes of conduct or non-binding instruments.

A New "Administrative Law Approach" To Social Rights? Learnings From Environmental Litigation In Colombia, Maria Emilia Mamberti

American University International Law Review

Social rights are at present profusely recognized in international and domestic law. Latin American countries are frontrunners in the field, as virtually all constitutions in the region acknowledge social rights, often in ambitious manners. In many countries, courts have been active and creative in adjudicating social rights cases.

The increasing importance of social rights has led to copious debates in comparative law, which have initially focused on the convenience of constitutionalizing them, and on assessing their nature and core characteristics. With relevant exceptions, more current debates—largely revolving around the decisions of high courts from a handful of jurisdictions—have focused on …

Does Mandatory Corporate Human Rights Due Diligence Offer A Path To Resolving Global Food Insecurity Challenges?, Ying Chen, Benedict Sheehy

American University International Law Review

Despite the 2015 implementation of the United Nations Sustainable Development Goal to end hunger and all forms of malnutrition by 2030 (the Zero Hunger Goal), food insecurity remains a persistent global problem. Well past the halfway point to 2030, the world is woefully off track to reach this goal. Current efforts to address global food insecurity are led by the public sector and focused on government interventions, and these are proving to be insufficient on their own. This Article argues that the private sector, and business enterprises and multinational corporations in particular, as important stakeholders in society, can and must …

Inteligencia Artificial Y Desinformación En Internet: Regulaciones (In)Compatibles Con Los Estándares De Protección Del Derecho A La Libertad De Expresión En El Derecho Internacional De Los Derechos Humanos, Trilce Gabriela Valdivia Aguilar

American University International Law Review

Durante los casi dos años de confinamiento debido a la pandemia por COVID-19, muchas de nuestras interacciones “en vivo” se trasladaron al mundo virtual. Asimismo, las redes sociales se convirtieron en una de nuestras principales fuentes de información y también en los medios más usados para comunicarnos y debatir con nuestros pares. Lamentablemente las mismas no estuvieron siempre sustentadas en información certera, sino más bien en información falsa, que circulaba en medio de viciosas burbujas donde nos era imposible conocer opiniones o pareceres contrarios a los nuestros.

Algorithmic Speech Harm, Mateusz Grochowski

Loyola Consumer Law Review

This paper examines the potential application of product liability doctrine to content moderation and recommendation algorithms employed by social media platforms. Emerging scholarship and evolving case law suggest that product liability could provide a viable legal pathway to circumvent the limitations imposed by Section 230 of the Communications Decency Act. The article critically evaluates this proposition and delves into the doctrinal foundations of product liability to assess its capacity to address harms inflicted on consumers by algorithmic systems. A central focus of the analysis is the development of a more precise definition of the harm that users understood here as …

Fraud In Feeding Our Future: An Analysis Of “The Largest Pandemic Relief Fraud Scheme Yet”, Alena Johnston

Criminal Law Practitioner

Since the 1930s, the public school system in the United States has provided a distinct place for students to develop, learn, and grow.  Public schools level the playing field for students in academics, allowing them to receive an education at no direct cost. However, students from economically disadvantaged backgrounds continue to face challenges, and their inability to secure nutritious meals can affect their ability to perform academically. In 1946, President Harry Truman signed the National School Lunch Act, forming the first Child Nutrition Program in the United States to remedy the food security issue.

 The program was implemented as “a …

Bringing Section 7 Into The Next Century, Amy J. Schmitz, David M. Brodsky

American University Business Law Review

In 1925, Congress passed a historic piece of legislation, the Federal Arbitration Act (FAA), that attempted to change the American judiciary's hostility towards enforcing arbitration agreements and awards. This hostility was rooted in English common law and migrated to the American civil justice system. But in 1925, Congress gave life to the broad use of executory agreements to enforce compliance with contracts through arbitration.

The Tightrope Walk Of Ftas: Balancing The Relationship Between Foreign Investments And Public Interests, Savannah Kelly

Arbitration Brief

Investors have the right to protect their investments just as host states have the right to protect public interests, otherwise recognized as public interest regulation. Arbitration can disrupt the balance between state and investor rights when it whittles away or strips entirely the state’s regulatory autonomy. Public interest regulation, such as environmental protection, remains critical as it holds states simultaneously accountable to, inter alia, their constituents as well as international norms and conventions. A trade agreement provision that infringes upon a state’s regulatory liberty may force it to navigate a complex legal landscape in which commitments to domestic and international …

Book Review The Making Of A Justice: Reflections On My First 94 Years By John Paul Stevens, Stephen Wermiel

Book Reviews

The autobiography of Justice John Paul Stevens, published just a few months before he died, is an enticing travelogue for Supreme Court nerds. Other travelers may want to pick a different landscape.

In The Making of a Justice: Reflections on My First 94 Years, Stevens who died in July 2019, at age 99, spent 130 pages on his life before he joined the Supreme Court and then 394 pages describing the decisions during his thirty-four year as a Justice. Stevens was an agile writer and did as good a job as anyone can of making the narrative accessible, but it …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

An Organizational Theory Of Corporate Law, Emilie Aguirre, Julie Yen, Julie Battilana

Faculty Scholarship

Corporate law is in a moment of vibrant and contentious discussions about potential reforms. As firms exit Delaware, passive investment predominates, private equity expands, and public markets decline, corporate law faces a growing set of challenges that threaten its stability and efficacy. At the same time, the world faces pressing crises, including climate change, social and economic inequalities, and threats to democracy, though corporate law scholars typically consider these crises to be outside corporate law’s remit.

In this Article, we argue that to understand and address the multidimensional crises that face both corporate law and society, we must address shortcomings …

Molecular Diagnostic Patenting After Mayo V. Prometheus: An Empirical Analysis, Colleen V. Chien, Jenna Clark, Arti K. Rai

Faculty Scholarship

Since the United States Supreme Court's 2012 decision in Mayo v. Prometheus announced a new legal test for patent-eligible subject matter, policymakers, and scholars have vigorously debated the decision's impact on molecular diagnostics innovation. Molecular diagnostics serve as the cornerstone of personalized medicine and its promise of treatments with fewer side effects and better outcomes for patients. This article contributes to the presently thin evidence base on the impact of Mayo by using data on patent applications, examinations, and grants from 2010 to 2019 to comprehensively trace the effects of the test and subsequent related developments. Using descriptive data as …

The Savings Mirage, Sara Sternberg Greene

Faculty Scholarship

In the past, we did not worry much about elderly poverty because retirement was short for most Americans – a brief jaunt of post-work life was soon met with death. But with the 100-year life becoming a reality for more Americans, an elderly poverty crisis looms. The American dream of abundant retirement savings remains elusive for many, particularly low-wage workers. While government initiatives emphasize individual responsibility and financial education as a way toward retirement success, the reality is that governmental policies are barriers, including asset limitations that prevent those who receive public benefits from saving. This chapter urges reform in …

Private Religious Schools And Disability Discrimination, Kevin Timpe

University Faculty Publications and Creative Works

In the lead-up to the passing of the Americans with Disabilities Act (“ADA”), religious institutions and organizations lobbied to be exempt. Because they were successful in securing an exemption to most of the ADA’s requirements, religious private schools maintain the legal right to refuse admission to disabled students or to fail to give them various legal protections. After considering the arguments given in its favor, the paper critiques this exemption on moral grounds. It then suggests that these considerations should lead to a reexamination of the legal right such schools have to discriminate against disabled individuals, especially in those cases …

Streamlining Wildlife Regulation, Robert L. Fischman

Articles by Maurer Faculty

A recent burst of revisions in the bedrock regulations governing projects that may adversely affect wildlife represents a generational shift in policy. Streamlining federal decision -making drove much of this reform. Streamlining offers a path to address climate change without abandoning a longstanding commitment to wildlife conservation. The conservation community recognizes the need to build new infrastructure to reduce the rate of climate change through air emissions. The most urgent priority is decarbonizing the electrical ~rid through renewable energy generation and a better transmission network. Adaptation to the "new abnormal" of climate-driven environmental disruption demands federal approvals for a host …

Climate Prosecution As Climate Regulation, Cindy J. Cho

Articles by Maurer Faculty

Last term, the Supreme Court weakened the federal government’s ability to regulate. Three new decisions—and one landmark case from the previous term—will affect everything from drug approvals to overtime pay to national security. One issue stands out as a political flashpoint that will prove particularly difficult to address via regulation in the wake of this term: climate change. Given the unlikelihood of congressional climate action any time soon, those concerned about the risks of a warming planet will no doubt be looking for alternatives to regulation. Private and state civil lawsuits against polluters reflect an important legal tradition that must …

Reconstituting Corporate Power & Accountability, Cindy J. Cho, Donald Braman, Theresa Gabaldon

Articles by Maurer Faculty

Modern society faces a growing crisis of corporate impunity. While corporations generate immense value, they increasingly inflict harm at scales that dwarf those of traditional street crime. Decades of deregulation, unchecked corporate lobbying, and a judiciary actively dismantling the administrative state have created a dangerous accountability vacuum. And just as federal oversight is collapsing, the Supreme Court's expanding preemption doctrine is handcuffing state regulators. This Article proposes a paradigm shift: the revitalization of state criminal authority, a power largely shielded from federal interference. Upon securing a conviction or deferred prosecution agreement, states should mandate that the offending corporation conduct all …