Law Commons^™

Year In Review: The Federal Circuit's 2019 Government Contract Law Decisions, Nathaniel E. Castellano

American University Law Review

No abstract provided.

2019 Trademark Law Decisions Of The Federal Circuit, Stephanie H. Bald, Sara Copeland Parker

American University Law Review

No abstract provided.

The Decline And Fall Of Circumstantial Evidence In Antitrust Law, Christopher R. Leslie

American University Law Review

No abstract provided.

A Break From Reality: Modernizing Authentication Standards For Digital Video Evidence In The Era Of Deepfakes, John P. Lamonaga

American University Law Review

The legal standard for authenticating photographic and video evidence in court has remained largely static throughout the evolution of media technology in the twentieth century. The advent of “deepfakes,” or fake videos created using artificial intelligence programming, renders outdated many of the assumptions that the Federal Rules of Evidence are built upon.

Rule 901(b)(1) provides a means to authenticate evidence through the testimony of a “witness with knowledge.” Courts commonly admit photographic and video evidence by using the “fair and accurate portrayal” standard to meet this Rule’s intent. This standard sets an extremely low bar—the witness need only testify that …

Strengthening American War Crimes Accountability, Geoffrey S. Corn, Rachel E. Vanlandingham

American University Law Review

The United States needs to improve accountability for its service members’ war crimes. President Donald J. Trump dangerously intensified a growing national misunderstanding regarding the critical nexus between compliance with the laws of war and the health and efficacy of the U.S. military. This Article pushes back against such confusion by demonstrating why compliance with the laws of war, and accountability for violations of these laws, together constitute vital duties owed to our women and men in uniform.

This Article reveals that part of the fog of war surrounding criminal accountability for American war crimes is due to structural defects …

The Aftermath Of Takings, Shelley Ross Saxer

American University Law Review

American society will face monumental challenges as we confront crumbling infrastructure, new technologies, and climate change adaptation. Eminent domain is a powerful tool that necessarily impacts local communities when used for infrastructure such as roads, mass transit, pipelines, the electrical grid, and border walls. We will likely need to rely on both public and private eminent domain to redevelop neighborhoods and make our communities more resilient to climate change by adapting land uses to rising sea levels, drought, wildfires, and severe weather events.

The Sherman Act Is A No-Fault Monopolization Statute: A Textualist Demonstration, Robert H. Lande, Richard O. Zerbe

American University Law Review

The drafters of the Sherman Act originally designed Section 2 to impose sanctions on all monopolies and attempts to monopolize, regardless whether the firm had engaged in anticompetitive conduct. This conclusion emerges from the first ever textualist analysis of the language in the statute, a form of interpretation originally performed only by Justice Scalia but now increasingly used by the Supreme Court, including in its recent Bostock decision.

Following Scalia’s methodology, this Article analyzes contemporaneous dictionaries, legal treatises, and cases and demonstrates that when the Sherman Act was passed, the word “monopolize” simply meant that someone had acquired a monopoly. …

Employing Smith To Prevent A Constitutional Right To Discriminate Based On Faith: Why The Supreme Court Should Affirm The Third Circuit In Fulton V. City Of Philadelphia, Margaret Smiley Chavez

American University Law Review

In the interest of the children in the Philadelphia foster care system, the City of Philadelphia prohibits its contracting foster care agencies from discriminating against prospective foster care parents on account of race, religion, and sexual orientation, among other things. Despite this requirement, in 2018, two foster care agencies—Catholic Social Services (CSS) and Bethany Christian Services— that have annual contracts with Philadelphia refused to certify same-sex couples as foster parents for religious reasons. While Bethany Christian Services reached an agreement with the city, CSS did not. As a result, the city froze foster care placement referrals to CSS and did …

The Lgbtq Equality Gap And Federalism, Nancy J. Knauer

American University Law Review

LGBTQ people in the United States live with an Equality Gap that seems to grow wider with each legislative session. The majority of states do not have nondiscrimination protections in place for LGBTQ people. In the absence of blanket federal non-discrimination protections, a same-sex couple can be denied service by bakers, catering halls, and photographers while trying to exercise their constitutionally protected right to marry. A transgender person can be denied access to a public bathroom that matches their gender identity. A federally funded adoption agency can refuse to work with LGBTQ persons who wish to adopt. In addition, many …

Development Disasters: Accountability And Remedy In International Development Projects, Kate E. Morrow

American University Law Review

International development projects have a history of creating problems on the ground. Debates about the benefits of top-down development, the need for community buy-in, and the importance of community participation in development have been ongoing and have focused on how to prevent environmental and social harms to local communities. More recently, the conversation has shifted to focus more on the importance of providing remedy for harms, with a focus on development finance institutions (DFIs). DFIs have embraced internal, independent mechanisms to provide a process for accountability when a community suffers harms, but those mechanisms are not externally enforceable. They rely …

Mission Critical: How Fiduciary Duties Of Oversight Can Aid Corporations In Managing Stakeholder Interests, Krishna P. Pathak

Upper Level Writing Requirement Research Papers

After several public tragedies, corporate missteps, and catastrophes; politicians, certain investors, and other stakeholders have called for accountability in capitalism, proactive action to alleviate climate change, and performance of social obligations from corporations. The Business Roundtable and World Economic Forum have come out with proposals that signify a paradigm shift to the stakeholder approach to capitalism. Delaware, a haven for shareholder primacy, has permissive standards that allow a corporation to engage in any lawful business activity. However, concerns about fiduciary duties, especially the implied duties of good faith, legal compliance, and oversight, have created obligations for directors to engage in …

Race, Education, And Technology: How The Expansion Of “E-Rate” Could Alleviate Educational Inequalities From Online Education Exacerbated By Covid-19, Michael "Troy" Hatcher

Upper Level Writing Requirement Research Papers

No abstract provided.

Promise Amid Peril: Prea's Efforts To Regulate An End To Prison Rape, Brenda V. Smith

Project on Addressing Prison Rape - Articles

This Article discusses the modest aspirations of the Prison Rape Elimination Act (“PREA”) that passed unanimously in the United States Congress in 2003. The Article posits that PREA created opportunities for holding correctional authorities accountable by creating a baseline for safety and setting more transparent expectations for agencies’ practices for protecting prisoners from sexual abuse. Additionally, the Article posits that PREA enhanced the evolving standards of decency for the Eighth Amendment and articulated clear expectations of correctional authorities to provide sexual safety for people in custody.

The Language Of Harm: What The Nassar Victim Impact Statements Reveal About Abuse And Accountability, Jamie Abrams, Amanda Potts

Scholarly Articles in Law Reviews & Journals

This Article examines 148 Victim Impact Statements that were delivered to the
court in the Larry Nassar criminal sentencing. Larry Nassar was a doctor for the
United States Gymnastics Association and an employee of Michigan State University
who treated elite athletes, predominantly gymnasts. Nassar pleaded guilty to child
pornography and first-degree criminal sexual misconduct charges in Michigan. His
sentencing received worldwide attention as victims delivered impact statements
describing the harm and betrayal of his conduct. Using corpus-based discourse
analysis, this Article examines the complex strategies that the victims deployed to
describe who Nassar was (a doctor, a monster, a friend), …

The Overlapping Web Of Data, Territoriality And Sovereignty, Jennifer Daskal

Contributions to Books

Provides a framework to better understand Global Legal Pluralism and the current international state of law.

Equips practitioners, theorists, and students with deeper insights and analytical tools to describe the conflict among legal and quasi-legal systems.

Analyzes global legal pluralism in light of legal theory, constitutionalism, conflict of laws, international law, commercial transactions, and as it affects indigenous polities, religious orders, and citizenship.

Pandemia Y Derecho Internacional, Claudio Grossman

Contributions to Books

La pandemia actual ha cobrado un tremendo precio a la humanidad. A la fecha, más de un millón de personas han fallecido, varios millones han sido infectadas y no se vislumbra un final para las trágicas consecuencias que la COVID-19 ha infligido a las personas. La pandemia ha afectado a todas las naciones, debido a las interconexiones en numerosos campos, incluido el comercio, las inversiones y el turismo, que, como resultado de la globalización, han multiplicado los contactos entre las personas. No obstante, la pandemia ha demostrado también que las poblaciones más vulnerables son las que más sufren. Los países …

The Changing Landscape Of International Law, Claudio Grossman

Contributions to Books

No abstract provided.

A Well-Rounded Argument: How Skinner And Obergefell Make Medical Requirements For Surrogacy Contracts Unconstitutional, Amanda Grau

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Slavery-Like Conditions And Abuse Of Positions Of Vulnerability: Why The United States Should Judge Countries' Efforts To Combat Human Trafficking Based On The Palermo Protocol And Consider The Effects Of Legalized Prostitution On Human Trafficking, Danica Baird

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Raising The Bar On Accessibility: How The Bar Admissions Process Limits Disabled Law School Graduates, Haley Moss

American University Journal of Gender, Social Policy & the Law

Introduction

Think about the steps it takes to get from law school admission through passing the Bar exam. Not only do you have to graduate with your college degree, but you have to take the Law School Admissions Test (LSAT); enroll in law school; potentially take out student loans; do plenty of reading; pass all of your classes; survive a few internships; participate in clinics, practicums and activities; obtain the juris doctor degree; study for weeks and months on end to take the bar exam; and hope for good news to begin your journey as an attorney. While it sounds …

Not Another Tween Tweet: Social Media, Schools, And A Return To Tinker, Benjamin P. Schroff

American University Journal of Gender, Social Policy & the Law

Introduction

In May 2017, a high school student received the news that she made the junior varsity cheerleading squad for her sophomore year. The student then learned that an incoming freshman placed on the varsity squad over her. In response to this, the student posted a picture of herself and a friend on Snapchat, displaying their middle fingers and saying “f school, f softball, f cheer, f everything.” Soon after the student’s post, the coaches of the cheer squad suspended the student for one year, citing the school’s Cheerleading Rules. After the school board refused to get involved, the student’s …

Prospects And Pitfalls: Confronting Sexual Harassment In The Legal Cannabis Industry, Alexis N. Smith, Griffon Toronjo Pivateau

American University Journal of Gender, Social Policy & the Law

I. Introduction

In the last decade, the legal cannabis industry emerged as a fast-growing and complex new market. Legal cultivation of the cannabis plant promises to create tremendous economic opportunities. Further, the new market hints at significant social consequences. Numerous women have entered the field as entrepreneurs, advocates, and employees. Early reports indicate a much higher percentage of women within the cannabis industry than the agricultural industry in general.

Nevertheless, women face challenges and obstacles. The cannabis industry bears the characteristics of a start-up entity, but this entity resides within a market skewed by the federal law banning the cultivation …

Big Tech Makes Big Data Out Of Your Child: The Ferpa Loophole Edtech Exploits To Monetize Student Data, Amy Rhoades

American University Business Law Review

No abstract provided.

The Not-So-Free Spirit Of Coachella: Coachella's Overbearing Radius Clause And The Sherman Antitrust Act, Holly Santapaga

American University Business Law Review

No abstract provided.

Porn Wars: Serious Value, Social Harm, And The Burdens Of Modern Obscenity Doctrine, P. Brooks Fuller, Kyla P. Garrett Wagner, Farnosh Mazandarani

American University Journal of Gender, Social Policy & the Law

During the 1980s, anti-pornography ideologues—an unlikely alliance of feminist activists and right-wing evangelical Christians—waged an open war against pornography and the anti-censorship feminists who supported legal protection for pornographic works. Following a pivotal defeat of an anti-pornography ordinance in federal court, the ideologies constituted in the so-called “Porn Wars” continued to guide obscenity doctrine. These ideologies have informed lower courts’ understanding of the harms and values associated with sexually explicit content more than constitutional scholars recognize, at least explicitly. Although courts recognize core feminist values such as sexual autonomy and privacy in sexually explicit content, they have built doctrine that …

Human Trafficking Victims' Need For Vacatur: Demolishing Roadblocks To Freedom: An Analysis Of The Current State Laws In The United States, The Current Federal Landscape, And A Call For The United Nations To Amend An Existing Protocol To Allow Victims Of Human Trafficking To Vacate Their Criminal Records, Melissa Owens

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Closeted Or Credible: How Misinterpretation Of The Real Id Act Prevents Closeted Lgbtq+ Applicants From Establishing Credible Asylum Claims, Mary Kate O'Connell

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Georgia Life Act: Limiting Women's State Constitutional Right To Privacy, Phoebe Varunok

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Supporters And Advocates In Disability Accommodations Meetings: Using Title Ix As A Framework, Marissa Ditkowsky

American University Journal of Gender, Social Policy & the Law

Content Warning: This piece contains some discussion of sexual assault and violence.

The Intersection Between Disability And Lgbt Discrimination And Marginalization, Victoria M. Rodríguez-Roldán

American University Journal of Gender, Social Policy & the Law

No abstract provided.