Law Commons^™

How Judicial Accounting Law Fails Occupying Cotenants, Phil Rich

Northwestern Journal of Law & Social Policy

Few law students remember judicial accounting law from their property law course, and it’s hard to blame them. This little-discussed body of law is formulaic and rarely addressed by appellate courts. Judicial accounting law, however, should not be ignored. The law, which allocates equity to cotenants (or, more colloquially, co-owners) of residential property upon partition of that property, guides homeowners’ behavior and shifts wealth between them. This Note argues that state legislatures should reform judicial accounting law to better protect those cotenants living in their homes from partitions brought by cotenants living elsewhere.

The problem with judicial accounting law lies …

Insuring Contraceptive Equity, Jennifer Hickey

Northwestern Journal of Law & Social Policy

The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.

While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is …

Delayed Synergy: Challenging Housing Discrimination In Chicago In The Streets And In The Courts, Leonard S. Rubinowitz, Michelle Shaw

Northwestern Journal of Law & Social Policy

During the Montgomery Bus Boycott, the Montgomery Improvement Association combined a boycott with a successful constitutional challenge to bus segregation laws, producing more progress to desegregate the buses than either strategy could have brought about on its own. The Montgomery Improvement Association’s approach was a paradigm of the synergy between a social movement and social change litigation.

This Article argues for opportunities for synergy between social movements and social change litigation in three ways: 1) extending the time frame; 2) joining the forces of two separate organizations to produce change, unlike the single organization in Montgomery; and 3) creating an …

Beacons: A Viable Solution To The Ever-Evolving Problem Of Corporate Data Breaches, Lauren Fiotakis

Northwestern Journal of Technology and Intellectual Property

In an increasingly virtual world, data breaches continuously plague large corporations. These companies have few options to keep their data out of the hands of persistent hackers, who often discover ways around any safeguards that may be in place. It seems as though any measures companies are currently able to employ merely delay the inevitable breach that will bring with it the potential loss of both customers’ data and their faith in the privacy and security of their information. These attacks can be debilitating to corporations; thus, it seems only fair to provide them the ability to take active measures …

Toward Decentralized Commercial Law For Digital Assets, Marek Dubovec

Northwestern Journal of Technology and Intellectual Property

Technology affects various facets of the society and law. It has been tightly coupled in a symbiotic relationship with commercial law, including the Uniform Commercial Code (U.C.C.). While the conceptual framework of the U.C.C. and its realist ethos has fostered innovation since the 1950s, recent technological advances pose new challenges. In particular, digital assets traded in decentralized blockchain systems promise to engender a wide array of applications, prompting new business practices.

A number of efforts have been recently undertaken to address the fundamental challenges to established legal concepts posed by these technological advances. All these efforts march forward grappling with …

Student Speech Online: A Matter Of Public Concern, Eric Hogrefe

Northwestern Journal of Technology and Intellectual Property

The Supreme Court’s recent decision in Mahanoy Area School District v. B. L. ex rel. Levy partially answered the long-standing question of when schools can police student speech that takes place online. But Mahanoy largely ignored decades of scholarship, and opinions by lower courts, all of which assumed online speech was governed by the Court’s earlier student speech cases—especially the seminal Tinker v. Des Moines Independent Community School District.

This Note argues that Mahanoy and Tinker are consistent with each other, and both are consistent with the Court’s decisions governing another distinctive kind of speech: public employee speech. It …

Fiscal Transformations Due To Ai And Robotization: Where Do Recent Changes In Tax Administrations, Procedures And Legal Systems Lead Us?, Maria Amparo Grau Ruiz

Northwestern Journal of Technology and Intellectual Property

Tax administrations are currently experiencing transformations worldwide. This phenomenon has an impact on traditional tax rules. Increased technological capabilities open the door to review procedural and substantial regulation. The reinforcement of reporting and transparency requirements, and the connectivity between information systems in the public and private sector, will probably have a decisive influence on the evolution of tax law. Chatbots capture relevant data about the legal persons subject to different types of tax obligations. This information may be used to prepare more detailed administrative guidance, or even design future normative reforms. To efficiently protect justice and the rule of law …

Human Rights Council's Universal Periodic Review As A Forum Of Fighting For Borderline Recommendations? Lessons Learned From The Ground, Kazuo Fukuda

Northwestern Journal of Human Rights

Highly acclaimed as a key innovation of the United Nations Human Rights Council, the Universal Periodic Review (UPR) was created in 2006 as a cooperative, peer-review mechanism to shift away from the highly politicized Commission on Human Rights. Despite the significance and hope attached to the UPR, it has been conspicuously under-examined in the U.S. legal scholarship. And most relevant literature elsewhere has avoided directly addressing the fundamental question of exactly what the UPR’s added value is to the global human rights regime in terms of its direct contribution to improving human rights situations on the ground. This is mainly …

The Healthcare Legacy Of The Mission Civilisatrice In Unincorporated U.S. Territories, Sam F. Halabi

Northwestern Journal of Human Rights

Individual and population health in unincorporated U.S. territories – American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands – lag terribly behind those in the 50 U.S. states and D.C. The populations in the territories – with drastically higher rates of poverty – suffer and die from chronic conditions like cancer, diabetes, and heart disease at far higher rates; must find facilities and doctors thousands of miles away for even moderately complex cases; and perpetually struggle to make access to basic services available. While scholars have long pointed to the disparate treatment of these populations …

The Dawn Of A New Era: Antitrust Law Vs. The Antiquated Ncaa Compensation Model Perpetuating Racial Injustice, Amanda L. Jones

Northwestern University Law Review

Two crises in 2020 fueled the fire underlying a debate that has been smoldering for years: whether student athletes should be compensated. The COVID-19 pandemic coincided with the Black Lives Matter movement and drew unprecedented attention to systemic racism permeating society, including college sports that rely disproportionately on Black men risking physical harm to support an entire industry. The Supreme Court’s decision in NCAA v. Alston opened the door for some athletic conferences to offer student athletes unlimited education-related benefits and called out the NCAA’s business model that relies on not paying student athletes under the justification of amateurism. Alston …

Disgust And Guns: Conduct, Identity, And Second Amendment Animus, William D. Araiza

Northwestern University Law Review

In Second Amendment Animus, Professor Jacob Charles examines whether the burgeoning doctrine of unconstitutional animus should play any role in adjudicating Second Amendment claims. This Essay responds to Professor Charles’s important work. While it concludes that he is likely correct to reject animus as a grounding for Second Amendment claims, it points out areas where the analysis is more nuanced than he suggests. After considering Professor Charles’s analysis, the Essay examines the Second Amendment animus issue through the theoretical lens provided by Professor Martha Nussbaum’s work on disgust as a motivating factor for the types of exclusionary and subordinating …

Rebuilding The Federal Circuit Courts, Merritt E. Mcalister

Northwestern University Law Review

The conversation about Supreme Court reform—as important as it is—has obscured another, equally important conversation: the need for lower federal court reform. The U.S. Courts of Appeals have not seen their ranks grow in over three decades. Even then, those additions were stopgap measures built on an appellate triage system that had outsourced much of its work to nonjudicial decision-makers (central judicial staff and law clerks). Those changes born of necessity have now become core features of the federal appellate system, which distributes judicial resources—including oral argument and judicial scrutiny—to a select few. This Article begins to reimagine the courts …

Cheating In E-Sports: A Proposal To Regulate The Growing Problem Of E-Doping, Jamie Hwang

Northwestern University Law Review

E-sports, also known as professional video gaming, is growing rapidly around the world. In the United States, e-sports events sell out at large sporting venues, including the Staples Center in Los Angeles and the Barclays Center in New York. The growth of this multibillion-dollar industry comes with a host of new legal issues. Among them is the regulation of “e-doping”: the use of hacks and cheats during e-sports games, which gives e-dopers an unfair advantage. E-doping compromises the integrity of the industry, which is vital to its continued growth, by discouraging gamers and fans from trusting the fairness of e-sports. …

Possessing Intangibles, João Marinotti

Northwestern University Law Review

The concept of possession is currently considered inapplicable to intangible assets, whether data, cryptocurrency, or NFTs. Under this view, intangible assets categorically fall outside the purview of property law’s foundational doctrines. Such sweeping conclusions stem from a misunderstanding of the role of possession in property law. This Article refutes the idea that possession constitutes—or even requires—physical control by distinguishing possession from another foundational concept, that of thinghood. It highlights possession’s unique purpose within the property process: conveying the status of in rem claims. In property law, the concept of possession conveys to third parties the allocation of property rights and …

A Musical Cue For Fashion: How Compulsory Licenses And Sampling Can Shape Fashion Design Copyright, Caroline Olivier

Northwestern Journal of Technology and Intellectual Property

The fashion industry is the Wild West of intellectual property law. Fashion design protection is essentially non-existent, and designers take what they want when they want in the form of inspiration or complete copying. As technology advances and enables fashion designs to disseminate at high-tech speeds, there is no longer room for an apathetic approach to fashion intellectual property. If the law is a means for protecting the hard work of up-and-coming artists and providing incentives for innovation, changes must be made.

This note demonstrates how the fashion industry can adopt a copyright and licensing scheme similar to that of …

Muddy Waters: Fair Use Implications Of Google Llc V. Oracle America, Inc., Gary Myers

Northwestern Journal of Technology and Intellectual Property

Ooh

In the muddy water we’re falling

Ooh In the muddy water we’re crawling

Holds me down

Hold me now

Sold me out

In the muddy waters we’re falling

— Laura Pergolizzi (LP) - “Muddy Waters,” Lost On You (Vagrant Records 2016)

The United States Supreme Court ruling in Google LLC v. Oracle America, Inc. ended a long-running dispute between two giant technology companies. The case, which first began in 2010, has received considerable attention and commentary with regard to the scope of copyright protection for software and then about the contours of the fair use defense. The Court ultimately …

Maximizing Social Welfare Through The Tailoring Of Patent Duration And Using Algorithms To Calculate Optimal Patent Duration, Alvaro Cure Dominguez

Northwestern Journal of Technology and Intellectual Property

Patents are legal devices granted by the government that confer inventors exclusive rights to their invention for a limited time. In exchange, the U.S. government requires the inventors to publicly disclose their invention to allow individuals to recreate it upon expiration of the exclusivity period. Previously, academics regarded patents as a necessary means to overcome the free-rider dilemma (“FRD”), and they assumed that, without patents, society would be deprived of many potentially valuable innovations. This model has come under criticism. Researchers point to cases where inventors would have innovated regardless of a patent grant. They also highlight instances where patent …

Freedom, Democracy, And The Right To Education, Derek W. Black

Northwestern University Law Review

While litigation continues in an effort to establish a fundamental right to education under the U.S. Constitution, the full historical justification for this right remains missing—a fatal flaw for many jurists. This Article fills that gap, demonstrating that the central, yet entirely overlooked, justification for a federal right to education resides in America’s education story during the era of slavery and Reconstruction.

At that time, education was first and foremost about freedom. The South had criminalized education to maintain a racialized hierarchy that preserved slavery. Many African-Americans, seeing education as the means to both mental and physical freedom, made extraordinary …

Forced Prison Labor: Punishment For A Crime?, Wafa Junaid

Northwestern University Law Review

The Thirteenth Amendment’s prohibition of involuntary servitude carves out an exception to its protections that allows the use of forced labor as “punishment for a crime” when an individual is “duly convicted.” Courts have interpreted this language as placing a categorical bar on Thirteenth Amendment claims alleged by individuals who are incarcerated. Yet, a consistent understanding of the term “punishment” that draws from the term’s use in the Eighth Amendment’s Cruel and Unusual Punishment Clause supports a narrower interpretation of the Thirteenth Amendment’s punishment exception. This Note argues that individuals cannot be denied Thirteenth Amendment protections unless they are explicitly …

Girls, Assaulted, I. India Thusi

Northwestern University Law Review

Girls who are incarcerated share a common trait: They have often experienced multiple forms of sexual assault, at the hands of those close to them and at the hands of the state. The #MeToo movement has exposed how powerful people and institutions have facilitated pervasive sexual violence. However, there has been little attention paid to the ways that incarceration perpetuates sexual exploitation. This Article focuses on incarcerated girls and argues that the state routinely sexually assaults girls by mandating invasive, nonconsensual searches. Unwanted touching and display of private parts are common features of life before and after incarceration—from the sexual …

Muskrat Textualism, Matthew L.M. Fletcher

Northwestern University Law Review

The Supreme Court decision McGirt v. Oklahoma, confirming the boundaries of the Creek Reservation in Oklahoma, was a truly rare case in which the Court turned back arguments by federal and state governments in favor of American Indian and tribal interests. For more than a century, Oklahomans had assumed that the reservation had been terminated and acted accordingly. But only Congress can terminate an Indian reservation, and it simply had never done so in the case of the Creek Reservation. Both the majority and dissenting opinions attempted to claim the mantle of textualism, but their respective analyses led to …

The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part I, Regina Austin

JCLC Online

The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the first in a series of two essays that explore Reginald McFadden’s commutation.

Cannibalizing The Constitution: On Terrorism, The Second Amendment, And The Threat To Civil Liberties, Francesca Laguardia

JCLC Online

This article explores the links between internet radicalization, access to weapons, and the current threat from terrorists who have been radicalized online. The prevalence of domestic terrorism, domestic hate groups, and online incitement and radicalization have led to considerable focus on the tension between counterterror efforts and the First Amendment. Many scholars recommend rethinking the extent of First Amendment protection, as well as Fourth, Fifth, and Sixth Amendment protections, and some judges appear to be listening. Yet the Second Amendment has avoided this consideration, despite the fact that easy access to weapons is a necessary ingredient for the level of …

Immigration Public Defenders: A Model For Going Beyond Adequate Representation, Matthew Chang

JCLC Online

What does adequate legal representation for noncitizen criminal defendants look like? After the Supreme Court decided the landmark case of Padilla v. Kentucky, criminal defense attorneys became responsible for advising clients if and when there might be immigration consequences that accompany acceptance of a guilty plea deal, such as a potential risk of deportation. Currently, the criminal and immigration representation are completely divided. This Comment argues that the Padilla mandate alone, while important, fails to adequately provide noncitizen criminal defendants their Fifth Amendment Due Process Right and Sixth Amendment Right to Counsel. Using the Supreme Court’s legal analysis in …

Private Equity And Venture Capital In Germany: How Europe’S Heartland Is Poised To Become The Next Bay Area, Jake Besanceney

Northwestern Journal of International Law & Business

Abstract

This note examines the current state of private equity and venture capital activity and investment in Germany, and specifically in Berlin, in relation to the state of such activity and investment that existed in the San Francisco Bay Area prior to and following its tech explosion in the late twentieth century. Numerous factors such as political and ethnic diversity, a comparatively lower cost of living, and proximity to higher education institutes are propelling Berlin’s startup and tech scenes, and are eerily reminiscent of similar factors that fueled the Bay Area’s growth and attracted private equity and venture capital activity …

Unraveling The Longstanding Riddle About The Doctrine Of Legitimate Expectation Under International Investment Law: Ascertaining Legal Tests For The Customary International Law’S Minimum Standard Of Treatment, Haneul Jung, Nu Ri Jung

Northwestern Journal of International Law & Business

In 2018, the ICJ rendered a judgment in Bolivia v. Chile that effectively denied the status of the doctrine of legitimate expectation as a customary international law. The ICJ’s judgment came as a surprise to many in the international arbitration community because a whole host of international tribunals established under various investment treaties have found that this doctrine, as well as the broader principle of “fair and equitable treatment,” has effectively attained the status as the “minimum standard of treatment” under customary international law. Given the lack of elaborated reasoning, however, the ICJ’s ruling fails to resolve the recurring debate …

Clarity About Comity: How Courts Have Attempted Greater Guidance For Chapter 15 Litigants, Sabrina Lieberman

Northwestern Journal of International Law & Business

Abstract

This note explores the development of courts’ refusal to extend comity to foreign representatives who have filed a proceeding under chapter 15 of the U.S. Bankruptcy Code. Congress adopted chapter 15 as part of a comprehensive 2005 bankruptcy reform. It allows foreign entities to receive protection under the U.S. Bankruptcy Code. In most cases, foreign representatives who file a chapter 15 proceeding are involved with ancillary insolvency proceedings outside the United States. There is often a question of how or if a U.S. court overseeing the chapter 15 proceeding will defer to a judgment or process within the foreign …

The Doha Declaration At Twenty: Interpretation, Implementation, And Lessons Learned On The Relationship Between The Trips Agreement And Global Health, Eric M. Solovy

Northwestern Journal of International Law & Business

No abstract provided.

What Remains Of The Alien Tort Statute After Nestlé Usa, Inc. V. Doe?, Clara Petch

Northwestern Journal of International Law & Business

Abstract

The Alien Tort Statute (ATS), which provides U.S. courts with jurisdiction over violations of the law of nations, has been a crucial mechanism for obtaining redress for international human rights abuses. However, over the past four decades, the Supreme Court has continually chipped away at the jurisdictional reach of the statute. Most recently, in June 2021, the Supreme Court addressed the scope of the ATS in two consolidated cases: Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe. Plaintiffs were former trafficked and enslaved children forced to work on cocoa farms in Ivory Coast under grueling conditions. Plaintiffs …

Esg Ratings: A Blind Spot For U.S. Securities Regulation, Alexander Coley

Northwestern Journal of International Law & Business

Providers of “Environmental, Social, and Governance” (ESG) ratings have emerged as prominent informational intermediaries in the sustainable finance ecosystem. The key players are familiar names such as Moody’s, Morningstar, MSCI and S&P. In recent years, investors, financial markets observers and academics have raised serious doubts about the value and integrity of ESG ratings, pointing to lack of reliability and comparability and risks of conflicts of interest and abuse, including the potential for “greenwashing.”

ESG ratings are now in the crosshairs of financial regulators, particularly, in Europe. However, the regulatory discourse has failed to contend with risks arising from the use …