Digital Commons Network^™

Gold & Blue Law Edition, Fall 2024, St. Mary's University - San Antonio, Texas

Gold & Blue Law Edition

This is the Fall 2024 edition of Gold & Blue Law Edition which is St. Mary's University's official School of Law publication.

Intimate Partner Violence: Access To Protection Beyond The Pandemic, Rachel J. Wechsler

Faculty Publications

Civil protection orders are the most common legal remedy victims pursue in response to intimate partner violence (IPV). They are more empowering for victims than the criminal legal system because victims themselves drive the process, instead of prosecutors, and they offer more flexible and tailored relief. This Article argues that victims should be able to choose how they file petitions and participate in civil protection order hearings, and that judges should be required to honor those preferences absent good cause. This conclusion is driven by two new, original sets of empirical data collected from IPV survivors who have sought civil …

Client Confidentiality As Data Security, Jonah E. Perlin

Washington Law Review

The duty of confidentiality has been a cornerstone of the attorney-client relationship for more than four centuries. Historically, this duty was not difficult to discharge. All a lawyer had to do to comply was not affirmatively share client information in public without consent. But that has all changed. The same technologies that provide unprecedented benefits of authorized access by lawyers and their clients create unprecedented risks of unauthorized access by others. As a result, although the duty of confidentiality was once synonymous with a duty to keep client confidences secret, today the duty necessitates that lawyers keep client confidences secure …

Law Schools Should Substantially Increase Instruction In Mediation Representation, John Lande

Faculty Publications

American law schools generally focus 10% or less of their mediation curriculum on mediation representation. As shown in a survey of faculty teaching mediation and an analysis of course syllabi in this article, most of the instruction focuses on the role of a mediator.

This is a problem for several reasons. New graduates represent clients in mediation much more frequently than they mediate. Clients usually need professional advice to evaluate their cases and develop strategies, which mediators cannot provide. This is precisely the important service that attorneys can provide, but we teach students very little about what to do when …

Public Utilities Commission, Francesca Nevil, Flávia Martini Andrade Da Silva, Wyatt Page, Marcus Friedman

California Regulatory Law Reporter

No abstract provided.

The Shortseller Enrichment Commission? Whistleblowers, Activist Short Sellers, And The New Privatization Of Public Enforcement, Alexander I. Platt

Washington Law Review

Two developments have transformed the detection of corporate fraud in the last decade: the Securities and Exchange Commission’s Whistleblower Bounty Program (WBP) and the rise of activist short sellers. The WBP offers up financial bounties to individuals who bring forward actionable information about securities fraud. Activist shorts conduct due diligence to identify overvalued public companies, take short positions, reveal the negative information, and then enjoy trading profits if and when the stock tanks. Considered separately, these institutions are widely regarded as socially valuable innovations that help deter fraud.

But, it turns out, they are not fully separate. Activist shorts have …

The Future Of Work In The Era Of Ai, Orly Lobel

Indiana Law Journal

Artificial intelligence (AI) is revolutionizing both work itself and the processes of employment—hiring, recruitment, evaluation, compensation, performance analysis, retention, and job mobility. This Essay, based upon the 2024 Indiana Law Journal annual William R. Stewart Lecture, examines the effects of AI on work and argues for a holistic approach that harnesses the benefits of automation while addressing the inevitable systemic changes that AI is rapidly bringing to the labor market. The Essay examines two industries in which AI is already changing labor market demands: trucking and the performing arts. The Essay argues that while the automation can often increase efficiency …

New Governance And New Technologies: Creating A Regulatory Regime For The Use Of Generative Artificial Intelligence In The Courts, Raymond H. Brescia

North Carolina Journal of Law & Technology

No abstract provided.

Three's A Crowd: Addressing Discrimination Faced By Queer De Facto Parents In Child Custody Standing Proceedings, Shannon E. Callaghan

William & Mary Journal of Race, Gender, and Social Justice

In the United States, between five percent and eight percent of adults identify as queer, and as of 2020, fifteen percent of queer couples have children in their households. While recent legal victories have expanded queer rights, family law continues to lag in affording legal recognition to “nontraditional” families. This is particularly problematic for unmarried, queer co-parents who have virtually no legal claims to the children they have raised with their partners. Current standing requirements for custody proceedings treat these de facto parents as legal strangers to their children due to the absence of biological, marital, or adoptive ties. As …

Client Confidentiality As Data Security, Jonah Perlin

Georgetown Law Faculty Publications and Other Works

The duty of confidentiality has been a cornerstone of the attorney-client relationship for more than four centuries. Historically, this duty was not difficult to discharge. All a lawyer had to do to comply was not affirmatively share client information in public without consent. But that has all changed. The same technologies that provide unprecedented benefits of authorized access by lawyers and their clients create unprecedented risks of unauthorized access by others. As a result, although the duty of confidentiality was once synonymous with a duty to keep client confidences secret, today the duty necessitates that lawyers keep client confidences secure …

Ethical Guardrails To Unbounded Procedure, Seth Katsuya Endo

Fordham Law Review

Civil lawsuits in federal courts—especially class actions and multidistrict litigation (MDL)—can be messy and complicated, calling for pragmatic interventions that lie beyond what is explicitly addressed by the existing rules. And flexibility is part of the genius of the Federal Rules of Civil Procedure. On the other hand, unbounded discretion and innovation in procedure can lead to illegitimate exercises of power, bias, democratic nonaccountability, and other serious harms. But the choice is not between providing individual courts with nearly limitless authority to experiment with procedure or having a set of rigid rules. Instead, there is a third path: district judges …

Discrimination, Model Rule 8.4(G), And The Aba’S Quixotic Quest For Uniformity, Alex B. Long

Washington and Lee Law Review

Under American Bar Association (“ABA”) Model Rule 8.4(g), it is professional misconduct for a lawyer to engage in conduct related to the practice of law that the lawyer knows, or reasonably should know, is harassment or discrimination on the basis of race and other protected characteristics. Widespread concerns over the breadth and lack of clarity concerning the rule have triggered substantial criticism, including the refusal of multiple states to adopt this model rule. Instead, several states have responded by introducing alternative versions of Model Rule 8.4(g) or by applying older rules of professional conduct in the case of discriminatory speech …

An Indecent Proposal? A Remedy For Those Damaged By Judicial Malpractice, Michael G. Cortina

Northern Illinois University Law Review

Judicial immunity in the United States primarily exists so that jurists can exercise their duties to the best of their abilities without the fear that they may be subjected to liability should they commit an error in judgment. While such immunity certainly has a proper and noble purpose, the unintended consequence of it is sometimes that those harmed by improper judicial rulings have no civil remedy despite being harmed by a judge’s malpractice. At the end of this paper, the author suggests a possible remedy for those harmed by a judge’s errant decision if that ruling cannot be cured on …

Standing For Change: Associational Standing As An Aggregational Mechanism In Tenants' Rights, Hope Peraria

Cardozo Journal of Equal Rights & Social Justice

The note argues that tenant associations can serve as an effective vehicle for aggregate lawsuits to vindicate tenants' rights, addressing the persistent enforcement gap in housing rights. By leveraging associational standing, these associations can advocate for shared interests, facilitate community organizing, and complement legal reforms. This approach not only strengthens tenants' collective power but also offers practical solutions to systemic barriers that prevent individuals from asserting their rights.

Renewing Our Vows: The Lawyer's Oath And Our Pledge To Democracy, Colin M. Black

Suffolk University Law School Faculty Works

For centuries, lawyers have sworn to an oath as a prerequisite to admission. The oath, barely evolved from their historical roots, represents the guiding commitment lawyers make to democratic principles of honesty, integrity, fairness, and the rule of law. This commitment is in exchange for the power and privilege of belonging to the legal profession. However, the ethical landscape for legal practitioners has evolved, particularly in response to the alarming events of the 2020 U.S. presidential election. These events revealed significant lapses in the judgment and conduct among some lawyers, exposing the need for a recommitment to the democratic principles …

Abolish The Mpre, Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

In nearly every jurisdiction, applicants to the bar must pass the Multistate Professional Responsibility Examination (MPRE). Its purpose, according to its owner, the National Conference of Bar Examiners (NCBE), is “to measure candidates’ knowledge and understanding of established standards related to the professional conduct of lawyers.” It does test whether an examinee has kept in short-term memory the rules and exceptions that make up part of the understanding of what it means to serve as a lawyer. However, success (or initial failure) on the MPRE has not been correlated with ethical conduct or misconduct. For example, the Texas Board of …

The Impact The Monetary Value Of A Case Has On Effort And Productivity Within The Field Of Personal Injury, Maximiliano Elizondo

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Case Global: Faculty And Students Making A Global Impact In Extraordinary Times, Case Western Reserve University School Of Law, The Frederick K. Cox International Law Center

Case Global Newsletter

Vol. 16, No. 1 (2024)

• CWRU International Law student leader selected  as National Jurist Law Student of the Year
• CWRU Among the Best
• Three Decades of Global Impact
• Case Western Reserve Journal of International Law Tackles Global Climate Change
• The only Law School with a Foreign Policy Radio Program
• International Law Moot Court Powerhouse
• Celebrating the 75th Anniversary of the Universal Declaration and CWRU’s historic contributions to human rights
• CWRU law students develop Holocaust Memorial curriculum
• Yemen Accountability Project publishes fifth White Paper
• Financial Integrity Institute Expands
• Immigration Law program marks an extraordinary year
• International internships
• Capstone Placements take Students …

In Brief, Case Western Reserve University School Of Law

In Brief

Table of Contents

• To preserve, protect and expand
• Road to victory
• Welcoming a legal luminary
• Scholarly Impacts and Recognitions
• Pro bono pathways
• Society of Benchers
• Alumni Committees
• Class Notes
• In Memoriam
• Honor Roll of Donors

A Fresh Look At Judicial Remedies In Eu Equality Law And Beyond: The Untapped Possibility Of Structural Injunctions., Daniel H. Halberstam, Sina Van Den Bogaert

Articles

This article proposes a shift in thinking about judicial remedies (or “sanctions”), from anti-discrimination law to equal pay and beyond.We suggest the currently preferred remedies – one-off declarations, compensation, fines, and simple orders to obey the law – may be insufficient when confronting a recalcitrant institution, complex violations, and broad, ongoing harm. In such cases, we suggest considering a remedy long overlooked in Europe: a “structural injunction”, i.e. ordering changes to an offending organization’s structure, processes, or rules. We argue that under certain circumstances, an injunction, including a structural injunction, may be appropriate or required under EU law to remedy …

The False Promise Of Rescheduling, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Over the past fifty years, marijuana advocates invested considerable effort trying to reschedule the drug under the Controlled Substances Act (CSA). Multiple times, they pe- titioned the Drug Enforcement Administration (DEA) to take marijuana off the highly re- strictive Schedule I and move it to one of the statute's less tightly regulated Schedules (II- V) or even deschedule the drug altogether. Along the way, they waged protracted legal battles with the agency over the tests and processes it uses for scheduling decisions. How- ever, advocates had very little to show for all their efforts. The DEA rejected every petition to …

Emergency Powers For Good, Elena Chachko, Katerina Linos

William & Mary Law Review

Emergency powers are widely, and justly, criticized as threats to the rule of law. In the United States, forty-three declared emergencies give the executive vast authority to exercise power unencumbered by standard legal and procedural requirements. A long tradition of executive use of emergency powers to erode civil liberties amplifies fears of executive overreach.

Yet this, we argue, is only part of the picture. We examine how emergency powers can be used for good. We argue that under certain limited conditions, political actors can legitimately invoke emergency powers to transform public policy. In addition to widely accepted requirements of crisis …

Dentistry And The Law: Update On The Ftc’S Rule Banning Covenants Not To Compete, Daniel Schulte Jd

The Journal of the Michigan Dental Association

The Federal Trade Commission's (FTC) Final Rule to ban most employee non-compete agreements, originally set to take effect on September 4, 2024, has been delayed due to ongoing litigation. Court decisions in Pennsylvania and Texas have resulted in conflicting rulings regarding the FTC's authority to enforce such a ban. A Pennsylvania district court upheld the FTC's power to regulate non-compete agreements, while a Texas court ruled against it, declaring the ban arbitrary and capricious. No appeals have been filed yet, and the issue remains unresolved, with potential appellate court decisions and the results of the presidential election likely influencing the …

Clinics And Emergencies, Elizabeth Keyes, Sabrina Balgamwalla

All Faculty Scholarship

Clinical programs—and the clinicians who run them—are regularly called upon to respond to emergency situations. These engagements can be rewarding, personally and professionally. But, as we know from our own work as immigration clinicians, emergency lawyering also presents pressure points for clinicians. Our hope in writing this article is to surface and critique the dynamics that arise when clinicians are called upon to engage in emergency work. Specifically, we aim to expand on the literature of clinics and emergency responses by reflecting on the ways in which emergency responses have drawn significant energy and time from clinicians, including ourselves. As …

The Advocate (Fall 2024), Lewis & Clark Law School

The Advocate

No abstract provided.

J Mich Dent Assoc October 2024

The Journal of the Michigan Dental Association

Each month, The Journal of the Michigan Dental Association provides news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. It stands as the primary publication reaching Michigan dentists. The October issue's key content includes:

• Clinical Feature on Endodontics and Vital Pulp Therapy
• Practice Management Feature with Tips on Surviving the Death of a Partner
• An update on Advocacy

(Un)Necessary Evils?: Ethical And Emotional Conflicts For Social Change Lawyers In Canada, Marina Francesca Mckenzie

LLM Theses

This thesis concerns an exploratory study about “social change” lawyers in Canada. Based on qualitative interviews, I aim to provide a modest but in-depth examination of the experiences and practical challenges these lawyers face in their work and how they navigate them. I find their approaches are divided between external and internal, both of which are affected by lawyers’ positionalities and experiences. “External approaches” concern how they reconcile conflicts in their values and responsibilities to different groups—namely individuals, communities and social movements—with each other, and with their obligations to the legal profession. Meanwhile, “internal approaches” concern how they navigate conflicting …

The Power Five: The Making Of Newsworthy Deal Teams, Tracey E. George, Mitu Gulati, Albert H. Yoon

Vanderbilt Law Review En Banc

No abstract provided.

Cardozo Law News Brief: September 6, 2024, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2024

Featured Faculty:

• Lindsay Nash
• Myriam Gilles
• Betsy Ginsberg
• Emmanuel Arnaud
• Young Ran (Christine) Kim

Law School News: Transforming Adversity Into Advocacy 9-4-2024, Andrew Clark, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.