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Articles 1 - 30 of 1370
Full-Text Articles in Law
Against Bankruptcy: Public Litigation Values Versus The Endless Quest For Global Peace In Mass Litigation, Abbe Gluck, Elizabeth Chamblee Burch, Adam Zimmerman
Against Bankruptcy: Public Litigation Values Versus The Endless Quest For Global Peace In Mass Litigation, Abbe Gluck, Elizabeth Chamblee Burch, Adam Zimmerman
Scholarly Works
Can bankruptcy court solve a public health crisis? Should the goal of “global peace” in complex lawsuits trump traditional litigation values in a system grounded in public participation and jurisdictional redundancy? How much leeway do courts have to innovate civil procedure?
These questions have finally reached the Supreme Court in Harrington v. Purdue Pharma L.P., the $6 billion bankruptcy that purports to achieve global resolution of all current and future opioids suits against the company and its former family owners, the Sacklers. The case provides a critical opportunity to reflect on what is lost when parties in mass torts find …
Blue Carbon, Red States, And Paris Agreement Article 6, Adam D. Orford
Blue Carbon, Red States, And Paris Agreement Article 6, Adam D. Orford
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Coastal U.S. states, including many that have opposed proactive U.S. climate policies, are contemplating entrance into the supply side of the international carbon credit markets by, among other things, hosting revenue-generating blue carbon projects on their submerged lands. The voluntary carbon credit markets already facilitate private investment in such activities, and the emerging Paris Agreement Article 6 framework is poised to generate investment interest at the national level as well. Reviewing these trends, this Perspective questions whether this is good climate, environmental, and social policy, and advises further oversight and accountability.
The Right To Trial By Jury Shall Remain Inviolate: Jury Trials In Civil Actions In Georgia’S Courts, David E. Shipley
The Right To Trial By Jury Shall Remain Inviolate: Jury Trials In Civil Actions In Georgia’S Courts, David E. Shipley
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Trials, though rare, “shape almost every aspect of procedure,” and the jury trial is a distinctive feature of civil litigation in the United States. The Seventh Amendment of the U.S. Constitution ‘preserves’ the right to jury trial “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” Even though this amendment does not apply to the states, courts in the states “honor the right to the extent it is created in their constitutions or local statutes.”
The Georgia Constitution provides that “[t]he right to trial by jury shall remain inviolate,” and Georgia’s appellate courts have shown …
Blue Carbon Law, Adam D. Orford
Blue Carbon Law, Adam D. Orford
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This Article explores the emerging law of blue carbon, defined as rules governing human interventions into Earth’s marine carbon cycles. Blue carbon law is of growing importance today as pressure mounts to incorporate coastal conservation and restoration activities into market-based carbon sequestration schemes, and as the planet’s deep oceans are evaluated for their carbon sequestration potential. The Article conceptualizes two broad trends in blue carbon law: the international law of carbon credit markets creating incentives to commodify and monetize blue carbon resources; and the responsive integration of commodification concepts into existing laws that already manage and influence blue carbon systems. …
Judicial Threats To Olmstead And The Americans With Disabilities Act, Jean Mangan, Andrea L. Dennis
Judicial Threats To Olmstead And The Americans With Disabilities Act, Jean Mangan, Andrea L. Dennis
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The authors examine the U.S. Supreme Court decision in Olmstead v L.C. ex rel. Zimring and related Supreme Court rulings that could raise questions about the Americans With Disabilities Act's guarantee of care in integrated settings and about which governmental entity's interpretation should be respected when deciding whether a state has met its integration obligation. After reviewing statutes, administrative regulations, and judicial decisions, the authors conclude that Olmstead's integration mandate will likely stand, but actions should be taken to codify the rule in federal and state statutes so that governmental agencies will continue to have the authority to ensure compliance …
Jurisdiction Beyond Our Borders: United States V. Alcoa And The Extraterritorial Reach Of American Antitrust, 1909–1945, Laura Phillips Sawyer
Jurisdiction Beyond Our Borders: United States V. Alcoa And The Extraterritorial Reach Of American Antitrust, 1909–1945, Laura Phillips Sawyer
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Chapter in the book Antimonopoly and American Democracy by Daniel A. Crane and William J. Novak, eds., Oxford University Press, 2023.
In 1945, Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: it narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional …
Architects, Artists, Photographers, Property Owners, The Public And Their Rights: Reconciling Vara, The Awcpa, And Copyright Fundamentals, David E. Shipley
Architects, Artists, Photographers, Property Owners, The Public And Their Rights: Reconciling Vara, The Awcpa, And Copyright Fundamentals, David E. Shipley
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Murals, sculpture, and other works of visual art have been parts of buildings, monuments and other structures for centuries, but copyright infringement litigation in the federal courts between artists, architects, photographers, and building owners is a relatively recent phenomenon. The outcome of these lawsuits has an impact on the public seeing works of visual art; experiencing works of visual art on buildings, monuments, and structures; and, looking at photographs of visual art on or in those architectural works. This article focuses on how the Copyright Act’s protection of artists’ rights in their works of visual art on buildings under the …
All The News That’S Fit To Be Identified: Facilitating Access To High-Quality News Through Internet Platforms, Sonja R. West, Jonathan Peters, Lefteris Jason Anastasopolous
All The News That’S Fit To Be Identified: Facilitating Access To High-Quality News Through Internet Platforms, Sonja R. West, Jonathan Peters, Lefteris Jason Anastasopolous
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Roughly half of Americans get some of their news from social media, and nearly two-thirds get some of their news from search engines. As our modern information gatekeepers, these internet companies bear a special responsibility to consider the impact of their platform and site policies on users’ access to high-quality news sources. They should adopt policies that clear the digital pathway between the public and press by facilitating such access. To that end, the companies must first, address the threshold issue of how best to identify high-quality news sources. This article examines factors that would be useful, drawing from legal …
The Spac Market, Usha Rodrigues, Michael Stegemoller
The Spac Market, Usha Rodrigues, Michael Stegemoller
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Special purpose acquisition companies (SPACs) exploded in popularity in the past few years, to such a degree that they made up 60% of IPOs in 2020, 66.3% in 2021, and 69.4% in 2022. Celebrities from Colin Kaepernick to Jay-Z have launched SPACs, but perhaps the most feverish attention came in October 2021, when a SPAC called Digital World Acquisition Corp (DWAC) announced plans to acquire Trump Media & Technology Group (TMTG), a social media company headed by former president Donald Trump.
The SPAC frenzy has now abated, a casualty of some combination of higher interest rates, regulatory crackdown, and oversupply. …
Plaintiffs' Process: Civil Procedure, Mdl, And A Day In Court, Elizabeth Chamblee Burch, Abbe R. Gluck
Plaintiffs' Process: Civil Procedure, Mdl, And A Day In Court, Elizabeth Chamblee Burch, Abbe R. Gluck
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The article focuses on the concept of "plaintiffs process" within the field of civil procedure. It discusses how civil procedure doctrine has traditionally been defendant-centric, focusing on the rights and protections of defendants in legal cases. It examines the role of multidistrict litigation (MDL) in this context and how it impacts plaintiffs rights and access to the courts.
Environmental Law, Travis M. Trimble
Environmental Law, Travis M. Trimble
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In 2022, the United States Court of Appeals for the Eleventh Circuit held that a plaintiff and the organization to which she belonged had standing, based on her claimed injury to her aesthetic well-being, to bring a Clean Water Act (CWA) citizen suit against a developer who had allegedly filled a wetland in violation of its permit, even though the plaintiff had never visited the wetland and even though the wetland was on private property not accessible to the plaintiff. The United States District Court for the Northern District of Alabama concluded that acid mine leachate from a refuse pile …
Data Versus More Data In Multidistrict Litigation, Elizabeth Chamblee Burch
Data Versus More Data In Multidistrict Litigation, Elizabeth Chamblee Burch
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A reply to Lynn A. Baker & Andrew Bradt, Anecdotes in the Search for Truth About Multidistrict Litigation, 107 Cornell Law Review Online 249 (2023).
Perceptions of Justice in Multi-district Litigation: Voices from the Crowd presents the results of a study that no one wanted us to do—or help us to do. Professors Lynn Baker and Andrew Bradt would prefer to dismiss as “anecdote” our two-year effort to find and gain the trust of multi-district litigation (MDL) plaintiffs whose attorneys told them not to discuss their case with anyone, including us.
There are decades worth of procedural justice studies …
Mdl For The People, Elizabeth Chamblee Burch
Mdl For The People, Elizabeth Chamblee Burch
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By the terms of its own statute and the limits of its constitutional authority, multidistrict litigation (“MDL”) is designed to transfer and coordinate individual lawsuits then return plaintiffs back to their chosen fora for case-specific discovery and trial. Because each plaintiff is present and has her own lawyer, there is no need for the judge to police conflicts of interest or attorney loyalty as in the MDL’s kin, the class action.
But these assumptions do not match the empirical reality. Remand is rare. MDL judges resolve ninety-nine percent of the cases before them. And to some attorneys, the people of …
American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman
American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman
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Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.
Constitutional Text, Founding-Era History, And The Independent-State-Legislature Theory, Dan T. Coenen
Constitutional Text, Founding-Era History, And The Independent-State-Legislature Theory, Dan T. Coenen
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One question raised by proponents of the so-called independent-state-legislature theory concerns the extent to which state courts can apply state constitutional requirements to invalidate state laws that concern federal elections. According to one proposed application of the theory, state courts can never subject such laws to state-constitution-based judicial review. According to another application, federal courts can broadly, though not invariably, foreclose state courts from drawing on state constitutions to invalidate federal-election-related state legislation. This article evaluates whether either of these positions comports with the original meaning of the Constitution. Given the article’s focus on the originalist methodology, it directs attention …
Fair Notice, The Rule Of Law, And Reforming Qualified Immunity, Nathan S. Chapman
Fair Notice, The Rule Of Law, And Reforming Qualified Immunity, Nathan S. Chapman
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After many well-publicized cases of police wrongdoing, a growing number of courts, scholars, and politicians have demanded the abolition of qualified immunity. The doctrine requires courts to dismiss damages actions against officials for violating the plaintiff’s constitutional rights unless a reasonable officer would have known that the right was “clearly established.” Scholars argue that the doctrine impedes deterrence of rights violations and forecloses compensation and vindication for victims.
One line of attack has relied on empirical evidence to challenge what scholars take to be the main justification for qualified immunity, that it prevents the threat of constitutional liability from over-deterring …
Privatizing International Governance, Melissa J. Durkee
Privatizing International Governance, Melissa J. Durkee
Scholarly Works
The theme of this panel is “Privatizing International Governance.” As the opening vignettes should make clear, public-private partnerships of all kinds are increasingly common in the international system. Since United Nations Secretary-General Kofi Annan's launch of the Global Compact in 2000, the United Nations has increasingly opened up to business entities. Now, the Sustainable Development Goals, the Global Compact, and the Guiding Principles on Business and Human Rights all encourage engaging with business entities as partners in developing and executing global governance agendas. These partnerships are seen by some as indispensable to sustainable development, international business regulation, climate change mitigation, …
The Internet Tax Freedom Act At 25, Walter Hellerstein, Andrew D. Appleby
The Internet Tax Freedom Act At 25, Walter Hellerstein, Andrew D. Appleby
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In October 1998, Congress enacted the Internet Tax Freedom Act (ITFA), a temporary three-year “moratorium” on the enactment of new state and local “taxes on Internet access” and on “multiple or discriminatory taxes on electronic commerce.” After extending the act temporarily several times, Congress, in 2016, finally and controversially struck the language temporarily extending the act, thereby making it permanent.
With its idiosyncratic legislative history and statutory language, as well as the recent attention it has received in connection with legal challenges to digital services and analogous taxes, we thought it would be appropriate to commemorate ITFA’s 25th birthday by …
"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman
"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman
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At the heart of American constitutionalism is an irony. The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes. Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements. The process of constitutionalization has been one of secularization. The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual’s responsibility before God.
This Essay explores another overlooked instance of constitutional secularization. Many …
National Federation Of Independent Business V. Sebelius, 567 U.S. 519 (2012), Elizabeth Weeks, Mary Ann Chirba, Alice A. Noble
National Federation Of Independent Business V. Sebelius, 567 U.S. 519 (2012), Elizabeth Weeks, Mary Ann Chirba, Alice A. Noble
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In National Federation of Independent Business v. Sebelius, decided in 2012, twenty-six states as well as private individuals and an organization of independent businesses challenged the constitutionality of two key components of the Affordable Care Act. The Court upheld the individual mandate but converted the Medicaid eligibility expansion from mandatory to optional for states. Elizabeth Weeks’ feminist rewrite breaks down the public law-private law distinction to get beyond the traditional view of health insurance as a commercial product providing individual financial protection against risk and instead to view it as effecting a risk pool premised on cross-subsidization of the health-care …
Natural Gas And Net Zero: Mutually Exclusive Pathways For The Southeast, Adam D. Orford
Natural Gas And Net Zero: Mutually Exclusive Pathways For The Southeast, Adam D. Orford
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Climate policy increasingly focuses on pathways to achieving net zero greenhouse gas emissions by 2050, providing a clear standard against which to evaluate energy system planning. Examining the current and projected fuel mix of the electric power sector in the southeastern United States shows that an ongoing transition to natural gas for electricity risks locking in decades of greenhouse gas emissions at levels fundamentally incompatible with net zero goals. Furthermore, southeastern regulatory proceedings are not well designed to engage with this reality, although useful regulatory models are emerging. Natural gas will remain an important part of the southeastern fuel mix …
The Case For The Current Free Exercise Regime, Nathan Chapman
The Case For The Current Free Exercise Regime, Nathan Chapman
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How the Supreme Court ought to implement the Free Exercise
Clause has been one of the most controversial issues in U.S. rights discourse
of the past fifty years. In Fulton v. City of Philadelphia, a majority of the
justices expressed dissatisfaction with the standard articulated in
Employment Division v. Smith, but they could not agree on what ought to
replace it. This Essay argues that focusing on whether to overrule Smith is a
distraction from the sensitive task of implementing the Free Exercise Clause.
This is not because Smith was “right,” but because (1) the history and
tradition are both …
Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West
Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West
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A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …
Business Associations, Scott Lowry
Business Associations, Scott Lowry
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This Article surveys a selection of noteworthy cases involving business associations that Georgia courts decided between June 1, 2022 and May 31, 2023. This Article also briefly highlights the 2023 update to the Georgia Nonprofit Corporation Code, sections 14-3-101–1703 of the Official Code of Georgia Annotated, which was signed by Governor Kemp on May 2, 2023, and took effect on July 1, 2023.
The Contours Of Gun Industry Immunity: Separation Of Powers, Federalism, And The Second Amendment, Hillel Y. Levin, Timothy D. Lytton
The Contours Of Gun Industry Immunity: Separation Of Powers, Federalism, And The Second Amendment, Hillel Y. Levin, Timothy D. Lytton
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In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), granting the firearms industry sweeping immunity from civil lawsuits. However, PLCAA immunity is not absolute. This Article demonstrates that both state and federal courts have fundamentally misread PLCAA when adjudicating cases involving the scope of gun industry immunity. Properly understood, PLCAA permits lawsuits against the gun industry so long as they are based on statutory causes of action rather than common law. While broadly preempting state common law claims, PLCAA affords state legislatures autonomy in deciding how to regulate the gun industry within their borders.
Additionally, this …
Brokered Abuse, Thomas E. Kadri
Brokered Abuse, Thomas E. Kadri
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Data brokers are abuse enablers. These companies, which traffic information about people for profit, facilitate interpersonal abuse by making it easier to find and contact people. By thwarting people’s obscurity, brokers expose them to physical, psychological, financial, and reputational harm. To date, there have been four common legal responses to this situation: prohibiting abusive acts, mandating broker transparency, limiting data collection, and restricting data disclosure. Though these measures each have some merit, none is adequate, and several recent privacy laws have even made matters worse. Put simply, the current legal landscape is neither effective nor empathetic.
This Essay explores the …
The Pledging World Order, Melissa J. Durkee
The Pledging World Order, Melissa J. Durkee
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There is an emerging world order characterized by unilateral pledges within a legal or “legal-ish” architecture of commitments. The pledging world order has materialized in the international legal response to climate change and in other diverse sites. It crosses and blurs the public-private divide. It erodes distinctions between multilateralism and localism, law and not-law, and progress and stasis. It is both a symptom of and a contributor to the dismantling of the Westphalian and postwar orders. Its report card is mixed: While pledging can be highly ineffective as a legal technology, the pledging world order may respond to some legitimacy …
Industry Groups In International Governance: A Framework For Reform, Melissa J. Durkee
Industry Groups In International Governance: A Framework For Reform, Melissa J. Durkee
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At a time when many international organizations are focusing on bringing companies on board as partners for important goals like climate mitigation and adaptation, but even shareholders of major multinational companies are seeking to discipline pernicious lobbying by trade associations, it is important to evaluate how to maximize the benefit and restrain the harms of business participation in international governance. This article offers a brief history of engagement between international organizations and industry and trade associations, reviews arguments for embracing or restraining the participation of those groups, and develops a five-part framework for regulations to govern their access.
The Immigration Implications Of Presidential Pot Pardons, Jason A. Cade
The Immigration Implications Of Presidential Pot Pardons, Jason A. Cade
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This Essay examines the immigration implications of President Joe Biden’s Proclamation on October 6, 2022, pardoning most federal and D.C. offenders who committed the offense of simple marijuana possession. A late twentieth century interpretive shift by the Board of Immigration Appeals holds that pardons only prevent deportation for certain criminal history categories, which do not include controlled substance offenses, and thus far lower federal courts have deferred to the agency’s approach.Nevertheless, according to the analysis I offer, President Biden’s cannabis pardons should be deemed fully effective to eliminate all immigration penalties. All of the immigrant pardon cases to reach the …
State Constitutional Law: Standing To Litigate Public Rights In Georgia Courts, Randy Beck
State Constitutional Law: Standing To Litigate Public Rights In Georgia Courts, Randy Beck
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State courts interpreting state constitutions face the recurring issue of how much weight to afford Supreme Court of the United States precedent addressing comparable questions under the United States Constitution. At one end of the spectrum, many state courts routinely engage in what federal Judge Jeffrey Sutton calls “lockstepping,” importing federal doctrine wholesale into state decisional law. For a court engaged in lockstepping, concepts like freedom of speech or equal protection of the laws under a state constitution mean whatever the U.S. Supreme Court interprets them to mean under the federal Constitution, even if the state provision differs in potentially …