Law Commons^™

Clothes Captioning: The Demand For A Sustainable Fashion Industry And The European Union’S Push For Digital Product Passports, Grace Baer

American University Business Law Review

First, this Comment will provide background on the demand for transparency on the fashion industry, its response, and the regulatory framework proposed by the EU. Then, Part III will argue that the ESPR and the SSCT fall short of meeting the EU’s objectives because their requirements, as applied to textiles, are too stringent; their enforcement and effect on trade partners too disparate; and the risk of businesses’ intellectual property too high. In Part IV, this Comment will recommend that the EU strengthen its proposals by providing guidance on enforcement, equal treatment of small and medium-sized enterprises (“SMEs”) in the textile …

The Domestic And International Limitations Of The Third-Party Doctrine In The Digital Age, Miguel E. Serrano

American University Business Law Review

This Comment argues that the third-party doctrine further alienates EU-U.S. partnerships because the doctrine subverts privacy interests as binding legal precedent. Part II will explore the history of the third-party doctrine up until the Carpenter decision and explain why U.S. privacy rights are linked with access to third-party information. This Comment will further outline EU data protection laws, EU legislation, and the CJEU’s Schrems II decision. In Part III, this Comment will also analyze the new data protection framework, Executive Order 14086, and discuss whether it fails to overcome the CJEU’s concerns over U.S. privacy laws for EU subjects. By …

Rediscovering Adam Smith: An Inquiry In The Rule Of Law, Competition, And The Future Of The Federal Trade Comission, Melissa Holyoak, Christopher G. Mufarrige

American University Business Law Review

It is my privilege to be here to celebrate the 40th anniversary of the Competitive Enterprise Institute (³CEI´), along with the 300th birthday of Adam Smith. For decades, CEI has been at the vanguard of free-market advocacy, and it is wonderful to combine CEI's anniversary with a celebration of Adam Smith. I will start with a standard disclaimer: The views I express today are my own. They do not necessarily represent those of the Federal Trade Commission (FTC or ³Commission´) or any other commissioner.

U.S. Securities And Exchange Commission And The "Deep Administrative State": A Case Study Of Its Esg Rules, Jerry W. Markham

American University Business Law Review

This study examines the highly controversial “environmental, social, and governance” (ESG) rules that were adopted by the Securities and Exchange Commission (SEC) in 2024. Those rules require large public companies to disclose their policies for dealing with climate change and report their greenhouse gas emissions. Critics charge that those rules are the product of a “deep state” administrative agency that is operating outside the checks and balances imposed by the Constitution on other government actors. The study relates the background for these deep state concerns and the constitutional and statutory restraints that were intended to prevent the development of such …

Hollywood's Triple Threat: Writers, Actors, And Antitrust Regulators Take On The Streaming Giants, Remy S. Farkas

American University Business Law Review

In the summer of 2023, Hollywood froze when actors, writers, and crew took to the picket lines. Their gripe: the recent mega mergers by media conglomerates. The Writers Guild Association and Screen Actors Guild American Federation of Television and Radio Artists joined forces to protest recent acquisitions by Disney, Amazon, and Netflix; these companies vertically integrated within the industry, which allowed them to exploit workers, limit content, and raise prices for consumers. In the same summer, the Department of Justice and Federal Trade Commission released Draft Merger Guidelines, which included thirteen new guidelines for evaluating whether a merger violates antitrust …

State Taxing Power Over Tribal Leasing Activity: Balancing Bracker With The Call To Modernize, Caitlyn Lindstrom

American University Business Law Review

Federal law operates on the premise that state jurisdiction does not interfere with American Indian jurisdiction, and it is generally accepted that states may not tax Indian entities or members. However, the Supreme Court held that there are circumstances in which states may extend taxation onto non-Indians residing on tribal lands. In cases where Indians believe that states are violating legislation or regulations prohibiting state taxation, the Court follows the Bracker balancing test, an interest balancing test that weighs state, federal, and tribal interests. As with most balancing tests, this test lacks strict guidance on how to properly weigh certain …

Brief Of A Former Federal Judge, Fair And Just Prosecution, 17 Law Professors, And 4 Domestic Violence Researchers And Advocates As Amici Curiae In Support Of Petitioner, Jamie Abrams

Amicus Briefs & Court Filings

While amici are not formally affiliated with each other and come from a variety of professional fields, they are all keenly aware of the pernicious effects of gender bias against female defendants in American courtrooms. Each is deeply familiar with the toll that gender bias exacts not only on the individual women whose interactions with the criminal legal system are tainted by it, but also on the quality, reliability, and fairness of the criminal legal system. Together they have a distinct interest in ensuring that inflammatory and prejudicial gendered stereotypes about how women should look, act, and comport themselves are …

Diversity And Inclusion Trainings As A Public Relations Imperative: Addressing The Faragher - Ellerth Test Via Interest-Convergence And Targeted Universalism, Mary Marston

American University Journal of Gender, Social Policy & the Law

This Article argues that courts must adopt a nuanced and culturally sensitive approach when addressing discrimination claims related to culturally and racially significant hairstyles. Specifically, it suggests incorporating immutable characteristics of racial and religious expression as a foundational standard in evaluating such cases. This approach aims to ensure equitable consideration in the adjudication of Title VII sexual harassment claims and Title VII racial discrimination claims.

Queer: Litigating Gender Non-Conformity, Eliot Tracz

American University Journal of Gender, Social Policy & the Law

Section I of this article provides background information on the complexity of gender identity. This section addresses some of the different terminology used by members of the LGBTQ community to describe their gender identity, including the relatively well-known term “nonbinary” and continuing through to the less concrete term “queer.” Section II looks at the history of state action policing queer bodies and identities. It outlines statutes enacted to prevent individuals from hiding their identities and how such laws were used to target queer individuals. Section III discusses the case of Grimm v. Gloucester County School Boardand the two approaches …

The Very Interstate Nature Of The Internet? Establishing Uniform Requirements For Internet Transmissions Within Interstate And Foreign Commerce, Catherine Beal

American University Journal of Gender, Social Policy & the Law

This Comment argues that federal statutes, including the jurisdictional nexus of “transmission in interstate or foreign commerce,” should require evidence that a transmission actually traveled through interstate commerce to establish the required federal nexus. Part II of this article describes what threatening internet speech is, the development of the circuit split, and the statutory criteria at issue. Part III analyzes each side of the split and examines when statutory language permits an assumption of interstate or foreign transmission. Part III also proposes adopting a strict definition of “transmission in interstate and foreign commerce” for Internet-based speech and requiring evidence that …

Christian Domination, Ruth Colker

American University Law Review

It is hard to deny that the United States is a Christian nation despite the First Amendment’s promise that the legislature will not establish a religion. The United States is not a Christian nation merely because of the religious beliefs that many people privately hold. It is a Christian nation, in part, because the courts and legislatures have facilitated that development. Moreover, as this Article will argue, Christian favoritism within the political and legal system has developed in sharp contrast to the treatment of Black people, women, the LGBTQ+ community, and disabled people.

This Article explores the development of Christian …

The Constitutionality Of Barring Undocumented Immigrants From Second Amendment Protections, Abby Vorhees

American University Law Review

Under current federal law, undocumented immigrants remain unable to access one of the most fundamental rights contained within our Constitution: the Second Amendment right to keep and bear arms. Several undocumented immigrants have challenged the constitutionality of the federal prohibition (18 U.S.C. § 922(g)(5)(A)), resulting in a three-way circuit split on whether undocumented immigrants are protected by the Second Amendment. The Supreme Court, however, has remained silent on the issue, leaving undocumented immigrants unprotected.

The Supreme Court’s 2022 Second Amendment decision, N.Y. State Pistol & Rifle Ass’n v. Bruen, upended the traditional method of constitutional review, means-end scrutiny, in favor …

Innovation Misunderstood, Maurice E. Stucke, Ariel Ezrachi

American University Law Review

Innovation is transformative and key to future prosperity. It is therefore of no surprise that antitrust laws seek to promote it. What is surprising, however, is that despite the central role that innovation occupies in competition cases, its actual treatment by the courts is far from nuanced. In this paper, we reflect on the D.C. Circuit’s 2023 ruling in New York v. Meta to illustrate the prevailing monocular vision adopted by the court in its treatment of innovation. That vision, we argue, reflects simplistic assumptions as to innovation dynamics and mistaken beliefs about the digital economy. It is further compounded …

Going Federal, Staying Stateside: Felons, Firearms, And The "Federalization" Of Crime, Jonathan Abel

American University Law Review

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers. Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity. Yet, no one has obtained the state-court data needed to substantiate these comparisons. This Article fills that gap with an examination of the …

Searching For Truth That Speaks To Power: Free Speech And Equality On Campus, Stephen M. Feldman

American University Law Review

University campuses are being rent apart in disputes pitting free expression against equality [read: diversity, equity, and inclusion]. Yet scholarly discussions and university declarations widely agree: While universities should encourage an inclusive educational environment, free-speech principles prohibit universities from restricting or punishing hate speech, group libel, and other forms of offensive expression. This Article argues that this prioritizing of free speech over equality on campus is mistaken. Equality should often be favored over free expression in campus settings. Although Supreme Court precedents are ambiguous, one can reasonably argue that the doctrine allows universities to restrict and punish offensive expression, including …

From Rancid To Reasonable: Unfair Methods Of Competition Under State Little Ftc Acts, Samuel Evan Milner

American University Law Review

When Congress gave the Federal Trade Commission the power to identify and enjoin unfair methods of competition, it did not create a parallel private right of action as it had for other antitrust laws. Yet approximately two dozen states have since enacted their own “Little FTC Acts,” under which private plaintiffs may sue for damages and other remedies. These poorly understood state laws are actively shaping American competition policy on a national scale. The Ninth Circuit recently affirmed the nationwide injunction that Epic Games obtained against Apple under California’s law despite concluding that Apple violated no federal or state antitrust …

Insuring Judgements And The Disclosure Gap, Jonathan Stroud, Sam Korte

American University Law Review

Judgment preservation insurance (“JPI”) is a newer, under-the-radar financial innovation upending the litigation landscape today. By insuring plaintiffs' trial victories on appeal, these policies neutralize the risk of reversal, but have been criticized for preventing settlement and extending disputes. Despite JPI's growing use, a regulatory blind spot allows these policies to remain concealed from the courts throughout the appellate process. We spotlight JPI, contrast it with widely used litigation insurance products, and propose appellate disclosure requirements in line with existing insurance disclosure rules. These simple changes would close the disclosure gap on appeal.

Review Of Veterans Law Decisions Of The Federal Circuit 2022-2023 Edition, Yelena Duterte, Hugh Mcclean, Stacey-Rae Simcox

American University Law Review

In 2022 to 2023, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) continued its conversation with the Court of Appeals for Veterans Claims (“Veterans Court”), Department of Veterans Affairs (“VA”), and veterans to help sculpt the jurisprudence coming from the youngest of the federal courts, the Veterans Court. The Federal Circuit’s jurisprudence addressed ten main legal issues: class actions, petitions for writ of mandamus under the All Writs Act, defining standards of proof with the term “results from,” the benefit of the doubt doctrine post-Lynch, education benefits, less than honorable discharges, the rating schedule, implicit denials, equitable …

A Year In Review: The Federal Circuit's 2023 Government Contract Law Decisions, Sophie Marsh, Taylor Mcdaniels, Allison Moors

American University Law Review

This Article continues previous in-depth reviews of government contract law cases decided by the Federal Circuit and published by the American University Law Review. In 2023, the Federal Circuit clarified the appropriate standard of review, emphasizing that, more likely than not, the Boards of Contract Appeals should apply a de novo standard of review. Additionally, the court set significant judicial precedent by holding that the issues of party standing, timely raising a solicitation defect, and asserting a sum certain are nonjurisdictional. Finally, the court also issued decisions concerning implied-in-fact contracts, excusable delays, and the importance of reporting unallowable costs.

Artificial Intelligence And Weaponized Illusions: Methodologies For Federal Fraud Prosecutions Involving Deepfakes, Andrew W. Eichner

American University Law Review

Experts in the public and private sectors have vocalized concerns over the potential harms that can be inflicted when artificial intelligence (AI) is used maliciously. As AI technology increases in availability, it will become more accessible to criminal actors and allow for the emergence of new kinds of fraudulent schemes. Deepfakes are highly realistic AI-rendered depictions of individuals that criminals have already used to perpetrate fraud on an international scale. These renderings mimic third parties known to victims, allowing fraudsters to leverage the trust and familiarity of an existing relationship to perpetrate their schemes. The deepfake is used to convince …

Litigating Original Meaning From Heller To Rahimi: The Role Of Lawyering In The Confused Path Of Second Amendment Jurisprudence, Lawrence Rosenthal

American University Law Review

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, …

The Downstream Consequences Of Transunion Llc V. Ramirez: Why 5 U.S.C. § 2954 Plaintiffs Have Article Iii Standing Consistent With Lower Courts’ Interpretation Of Transunion, Erin Mccoy

American University Law Review

The Supreme Court, in TransUnion LLC v. Ramirez, created additional standing hurdles by requiring plaintiffs to identify a common law historic-analogue when alleging a statutory harm. In doing so, the Court arguably limited informational standing—a unique Article III standing theory whereby plaintiffs may establish an injury for failure to receive information—because informational injuries did not exist at common law.

This Comment asks whether informational standing survives in a post-TransUnion universe, using 5 U.S.C. § 2954 and lower courts’ interpretation of TransUnion for guidance. The statute, § 2954, comes to light in a string of litigation involving the potential illegality …

Seed Patents: Enabling Innovation Beyond Biological Deposits, Ellaina Sanders

American University Law Review

In J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., the Supreme Court held that new sexually reproducing plant varieties are patentable subject matter. This allowed breeders and seed companies to protect their intellectual property in new seeds by obtaining utility patents so long as they meet the other statutory requirements, such as enablement. Unlike other intellectual property protection for new plant varieties, utility patents require the patent disclosure to include enough information that a person of ordinary skill in the art could make and use the invention without undue experimentation. In In re Wands, the Federal Circuit …

Network Capabilities In Land Use And Disability Law, Robin Paul Malloy

American University Law Review

Our communities must be made safe and easy to navigate by people with disabilities and by those who are seeking to age in place. This requires us to do land planning and zoning in a cost-conscious way that empowers a diverse population to readily participate in community life. Accomplishing this goal involves working at the intersection of land use law and disability law. This means we must work at the intersection of competing legal frameworks, one based on the exercise of the sovereign police powers and the other based on the prevention of discrimination under civil rights law.

The fundamental …

The Rule Against Perpetual Celebrity, Yvette Joy Liebesman

American University Law Review

Post-mortem Right of Publicity (ROP) statutes have grown from relative obscurity and of little value to a reliable source of nonwage income for those lucky enough to be the legatees of a famous now-deceased person. Unlike most other intellectual property rights, there is no federal ROP statute. Rather, an individual’s ROP—both while alive and post-mortem—is governed by state law. This has led to a widespread range of term lengths for this right among the states that have either common law or statutory post-mortem ROP rights.

While there might be some value in them, if the post-mortem ROP term is too …

Progress And The Taking Of Indigenous Land, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

The taking of Indigenous land in furtherance of other societal goals is so ubiquitous and so fundamental to the American project that sometimes acts of dispossession are not even recognized as such. This Article argues that the generally accepted understanding of Hawaii Housing Authority v. Midkiff, a key case of the American takings law canon, is wrong because it overlooks Native Hawaiian claims to the land taken. Hawai‘i’s Land Reform Act allowed tenants a right to purchase land over the objections of the owner of the underlying property and in Midkiff the U.S. Supreme Court said that states had the …

Digital Bank Holidays, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

The March 2023 run on Silicon Valley Bank spurred renewed debate about how to structure deposit insurance to best eliminate future bank runs. This Article argues, however, that deposit insurance cannot be relied upon to eliminate all bank runs, especially if technological developments create potential new bank run triggers that deposit insurance may not be responsive to. We may be expecting too much of deposit insurance, and so it is worth considering other tools that might be useful in responding to future bank runs and broader banking panics. One such tool is the “bank holiday,” last deployed in the United …

Content Moderation On End-To-End Encrypted Systems: A Legal Analysis, Charles Duan, James Grimmelmann

Scholarly Articles in Law Reviews & Journals

Online messaging platforms like Signal and Google’s Messages increasingly use end-to-end encryption (E2EE), in which messages are encrypted on the sender’s device and decrypted on the recipient’s, so that no one else—not even the platform itself—can read them. Although E2EE protects privacy and advances human rights, the law enforcement community and others have criticized its growing use. In their view, E2EE prevents platforms and government authorities from responding to abuses and criminal activity, including child exploitation, malware, scams, and disinformation. At times, they have argued that E2EE is inherently incompatible with effective content moderation.

Computer science researchers have responded to …

Why The Supreme Court Rejected The Prospect Theory Of Copyright Scope, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

In Google LLC v. Oracle America, Inc. (“Google v. Oracle”), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith (“Warhol”), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner's right to make derivative works from a protected work and a user's right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright. This Essay argues that these arguments were instead grounded in a form of ““prospect theory” of copyright scope that would give …

Justice William J. Brennan Jr.'S Teleological Jurisprudence And What It Means For Constitutional Interpretation Today, Susan D. Carle

Scholarly Articles in Law Reviews & Journals

Observers commonly think of the Warren and Roberts Courts as polar opposites in their modes of constitutional interpretation. But how different are their approaches really? To be sure, the values that underlie the jurisprudence of the Warren and Roberts Courts are dramatically different, but their methodologies for constitutional adjudication are similar in a crucial respect: both Courts frequently employ a teleological approach. They look, in other words, to ends outside of the law to determine the direction in which constitutional law should be heading.

To prove this point, this Article examines the methods and values Justice William J. Brennan Jr. …