Law Commons^™

The Analysis Is Simple: A Child's Right To Counsel In Dependency And Neglect Proceedings Under The Montana Constitution, Jennifer Shannon

Montana Law Review

This comment argues that given Article II, Section 15’s text, intent, and development in the courts, children must be appointed attorneys in dependency proceedings. Part II briefly explains the process of dependency proceedings, and the federal and state statutory framework that guides them. Part III first explains the rights implicated in dependency proceedings, which have been complicated by the courts. It then explains the origins of procedural due process in the federal system. Lastly, it discusses Montana’s extension of procedural due process to parents in dependency proceedings, giving parents the right to counsel. Part IV discusses four Montana Supreme Court …

Curious In-Laws: The Legal Connections Between Montana And Puerto Rico, Jorge M. Farinacci Fernós

Montana Law Review

From the face of it, Puerto Rico and Montana seem to have very little in common. One is a former Spanish colony in the Caribbean whose legal system is mostly based on the civil law tradition. The other is one of the largest, yet most underpopulated, states of the United States, located on the Canadian border. Yet, as with many things related to law and history, appearances can be deceiving.

What's In A Licensing Agreement?, Stephen Wolfson, Mariann Burright

Presentations

Now that you know the foundations of enforceable contracts, and want to have more familiarity with some nuts and bolts of contract language to become a better negotiator for your institutions, you will want to take this second webinar.
Participants will learn:
• What are the basic provisions or clauses of a contract?
• What do these provisions obligate my institution to do?
• What do these provisions obligate the other party to do?
• What rights does my institution have if the other party breaks its obligations?

11th Marine Law Symposium: Legal Strategies For Climate Adaptation In Coastal New England 2018, Roger Williams University School Of Law

Marine Affairs Institute Conferences, Lectures, and Events

No abstract provided.

Native American Heritage Month: Dickinson Law's First Native American Students, Pamela G. Smith

Perspectives on Law School History

No abstract provided.

Codification Of The Economic Substance Doctrine: Agency Response And Certain Other Unforeseen Consequences, Rebecca Rosenberg

William & Mary Business Law Review

Section 7701(o) of the Internal Revenue Code incorporates the controversial judicial doctrine of economic substance into statutory language. In other words, it “codifies” the doctrine. (The economic substance doctrine generally provides that a tax benefit that goes beyond Congressional intent can be disallowed by the courts, even if the taxpayer meets all of the literal Code and regulatory requirements for claiming the benefit.)

This codification appears to have accidentally dissuaded the relevant agency (the Internal Revenue Service, or IRS) from raising economic substance issues—an effect that is contrary to Congress’s intent in enacting the doctrine into legislation. Essentially, Congress imported …

Determinants Of Open Attitudes Towards Foreign Nationals In Japan, Shigemi Ohtsuki Phd

Societies Without Borders

With a declining birth rate and aging population, Japan needs to open the door to immigrants to maintain its workforce. “Multicultural Coexistence,” or “tabunka-kyosei” in Japanese, is commonly used to describe the relationship between Japanese people and foreign nationals in Japan. Unfortunately, the definition of the term is unclear. This study defines multicultural coexistence based on two conceptions, namely “willingness for communication” and “support for or opposition to the equality of rights.” The analyses are based on quantitative data of a sample of 1,823 Japanese persons and 292 foreign national persons (immigrants) living in the industrial city of Tokyo (Hamura …

Explicit Bias, Jessica A. Clarke

Northwestern University Law Review

In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of bias have not gone away. The law does not need empirical methods to identify bias when it is marching down the street in Nazi regalia, hurling misogynist invective, or trading in anti-Muslim stereotypes. Official acceptance of such prejudices may be uniquely harmful in normalizing discrimination. But surprisingly, many discrimination cases ignore explicit bias. Courts …

State V. Plunkett, 134 Nev. Adv. Op. 88 (Nov. 15, 2018) (En Banc), Austin Maul

Nevada Supreme Court Summaries

The Court held that NRS 212.165(4) imposes criminal liability on nonprisoners who assist prisoners in jail possessing cellphones.

Absolute Priority Redux: First-Day Orders And Pre-Plan Settlements In Chapter 11 Post-Jevic, Bruce Grohsgal

William & Mary Business Law Review

This Article considers the problem of priority-skipping distributions made by a chapter 11 debtor outside of a plan, following the Supreme Court’s Jevic decision. The Jevic Court extended the absolute priority rule—which under U.S. bankruptcy enactments dictates the order of distributions to creditors under a chapter 11 cramdown plan and in a chapter 7 liquidation—to a chapter 11 case-ending settlement known as a “structured dismissal.”

The Jevic Court limited its holding to a case-ending settlement. It did not extend the absolute priority rule to an interim or pre-plan settlement or other transaction that is not case-ending or to a “first-day” …

Digital Gold: Cybersecurity Regulations And Establishing The Free Trade Of Big Data, Victoria Conrad

William & Mary Business Law Review

Data is everywhere. With more than ten billion Internetenabled devices worldwide, each day individuals create a flood of information that is transferred onto the Internet as big data. Businesses that have the resources to capture and utilize data can better understand their consumers, allowing for reinforcement of customer relationship management, improvements to the management of operational risk, and enhancement of overall firm performance. However, big data’s advantages come with high costs. The cost of organization and storage coupled with the fact that no legal principle allows for any sort of property rights in big data creates a “digital divide” between …

How Google Perceives Customer Privacy, Cyber, E-Commerce, Political And Regulatory Compliance Risks, Lawrence J. Trautman

William & Mary Business Law Review

By now, almost every business has an Internet presence. What are the major risks perceived by those engaged in the universe of Internet businesses? What potential risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise?

This Article discusses the relevant annual report disclosures from Alphabet, Inc. (parent of Google), along with other Google documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from Alphabet’s (Google) regulatory filings. My additions about these entities include weaving their disclosure materials into a logical presentation …

Boost: Improving Mindfulness, Thinking, And Diversity, Peter H. Huang

William & Mary Business Law Review

Many important decisions can be difficult; require focused, cognitive attention; produce delayed, noisy feedback; benefit from careful and clear thinking; and quite often trigger anxiety, stress, and other strong, negative emotions. Much empirical, experimental, and field research finds that we often make decisions leading to outcomes we judge as suboptimal. These studies have contributed to the popularity of the idea of nudging people to achieve better outcomes by changing how choices and information are framed and presented (also known as choice architecture and information architecture). Although choice architecture and information architecture can nudge people into better outcomes, choice architecture and …

Music Streaming: Where Interactive & Non-Interactive Services Fit Under The Homestyle Exemption, Taylor Mcgraw

William & Mary Business Law Review

When business owners play music in their establishments, they have either appropriately purchased a public performance license or they are playing the musical composition without permission from the rights holder, ultimately violating the Copyright Act. Business owners commonly use what is known as the Homestyle Exemption, giving them the ability to forego purchasing a license, assuming they can meet the exemption’s requirements. Before the era of music streaming, terrestrial radio was the popular way to consume music, which is reflected in the Homestyle Exemption’s requirement that the music be radio broadcast. Today’s business owners are taking advantage of other music …

Sanctuaries As Equitable Delegation In An Era Of Mass Immigration Enforcement, Jason A. Cade

Northwestern University Law Review

Opponents of—and sometimes advocates for—sanctuary policies describe them as obstructions to the operation of federal immigration law. This premise is flawed. On the better view, the sanctuary movement comports with, rather than fights against, dominant new themes in federal immigration law. A key theme—emerging both in judicial doctrine and on-the-ground practice—focuses on maintaining legitimacy by fostering adherence to equitable norms in enforcement decision-making processes. Against this backdrop, the sanctuary efforts of cities, churches, and campuses are best seen as measures necessary to inject normative (and sometimes legal) accuracy into real-world immigration enforcement decision-making. Sanctuaries can erect front-line equitable screens, promote …

Democratizing Interpretation, Anya Bernstein

William & Mary Law Review

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact, each funnels power right back to the judge.

These outsourcing approaches show a disconnect between the questions judges pose and the methods they use …

The Fatal Failure Of The Regulatory State, W. Kip Viscusi

William & Mary Law Review

Although regulatory agencies place high values on the benefits associated with the reduction in mortality risks due to regulations, these same agencies substantially undervalue lives in their enforcement efforts. The disparity between the valuation of prospective risks and fatalities that have occurred is often by several orders of magnitude, diminishing whatever safety incentives the regulations might have generated. A review of the practices by the major federal agencies with responsibility for product safety and occupational safety finds that the value placed on fatalities in agencies’ regulatory analyses can be a factor of 1000 times greater than the magnitude of the …

The Theory And Practice Of Contestatory Federalism, James A. Gardner

William & Mary Law Review

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed …

Salary History Should Be Her Story: Upholding Regulations Of Salary History Through A Commercial Speech Analysis, Elizabeth Lester-Abdalla

William & Mary Law Review

No abstract provided.

Anticompetitive Manipulation Of Rems: A New Exception To Antitrust Refusal-To-Deal Doctrine, Tyler A. Garrett

William & Mary Law Review

No abstract provided.

A Voice In The Wilderness: John Paul Stevens, Election Law, And A Theory Of Impartial Governance, Cody S. Barnett, Joshua A. Douglas

William & Mary Law Review

Justice John Paul Stevens retired from the Supreme Court almost a decade ago and turned ninety-eight years old in April 2018. How should we remember his legacy on the Supreme Court? This Article places his legacy within his election law jurisprudence. Specifically, Justice Stevens provided a consistent theory, which we term “impartial governance,” that has had a lasting impact on the field. This theory undergirds Justice Stevens’s creation of the important Anderson-Burdick-Crawford balancing test that federal courts use to construe the constitutionality of laws that impact the right to vote, such as voter ID laws. It is part of his …

Patin V. Lee, 134 Nev. Adv. Op. 87 (Nov. 15, 2018) (En Banc), Haley Jaramillo

Nevada Supreme Court Summaries

The Court held that a statement by an attorney on her firm’s website summarizing a jury’s verdict is not a statement in direct connection with an issue under consideration by a judicial body. The Court explained that because the statement is not a “good faith communication in furtherance of the right . . . to free speech in direct connection with an issue of public concern,” it would not receive anti-SLAPP (Strategic Lawsuit Against Public Participation) protection under NRS § 41.660(1).

Law School News: National Criminal Defense College To Hold Trial Practice Institute At Rwu School Of Law 11/15/2018, Edward Fitzpatrick

Life of the Law School (1993- )

No abstract provided.

Lincoln, Presidential Power, And The Rule Of Law, Daniel A. Farber

Northwestern University Law Review

Every era has its unique challenges, but history may still offer lessons on how law empowers and restrains presidents. This Essay examines how President Lincoln negotiated the tension between crisis authority and the rule of law. This analysis requires an appreciation of the wartime imperatives, institutions, and political forces confronting Lincoln, as well as the legal framework in which he acted. Similar issues unexpectedly arose in our times in the aftermath of the 9/11 attacks, providing a new point of comparison with Lincoln’s era. We need to better understand how political actors and institutions, the media, and public opinion can …

You Are Where You Eat: Discrimination In The National School Lunch Program, Anna Karnaze

Northwestern University Law Review

The National School Lunch Program (NSLP) serves over thirty million children daily in over one hundred thousand schools across the United States. Though it is regulated at the federal level, state and local education agencies have a great deal of authority when it comes to actually implementing the NSLP. As a result, a number of schools nationwide have adopted practices that identify students who participate in the NSLP, which causes those students to experience stigmatization. This Note focuses on two of these practices: (1) the physical separation of paying and nonpaying students in the cafeteria, often resulting in de facto …

Immigrant Voices: How Do Patterns Of Expressive Forms Of Civic Engagement Differ Across Immigrant Generation?, Renee Stepler Ma, Hiromi Ishizawa Phd

Societies Without Borders

Prior research suggests that immigrants in the U.S. are less likely to civically engage than the native-born, but few studies have systematically examined whether levels of expressive engagement differ by immigrant generational status – particularly in the case of contacting a public official and boycotting or buycotting products for political or social reasons. Using the Current Population Survey, November 2011 and 2013 Civic Engagement Supplements, this study examines whether these forms of expressive engagement differ across immigrant generational status, and by race and ethnicity within immigrant generations. In accord with classical assimilation theory, the findings show that the first generation …

Commonwealth Climate And Law Initiative - Climate Change And Legal Risk, Janis P. Sarra, Cynthia Williams

Conference Papers

In this presentation, Dr Janis Sarra, Presidential Distinguished Professor and Professor of Law University of British Columbia, outlined the fiduciary obligations of corporate directors and pension fiduciaries as they relate to climate change. Professor Cynthia A. Williams, Osler Chair in Business Law, Osgoode Hall Law School provided an overview of the Task Force on Climate-related Financial Disclosures, highlighted the potential for liability risks in Canada for misleading or inaccurate disclosures relating to climate change, and surveyed the field of current climate-related litigation.

How Did College Basketball Land In Federal Court And Where Does It Go From Here?, Ben Gamble

SLU Law Journal Online

Corruption in college basketball recruiting resulted in federal convictions and prison sentences for two former Adidas executives and a sports agency recruiter. With an alternate, professional basketball route now available to certain high school prospects and a pending NCAA investigation into the schools named at trial, Ben Gamble looks at where college basketball goes from here.

Dean's Desk: Iu Maurer Programs Supporting Careers In Cybersecurity, Austen L. Parrish

Austen Parrish (2014-2022)

A recent Bureau of Labor Statistics report estimated a near 30 percent growth in coming years for information security professionals, far outpacing most other job types. While Indiana University has long recognized the importance of data security and privacy, multiple new initiatives are ensuring that the next generation of chief information security officers, systems analysts, privacy professionals and others will come from our law school.

One of the ways the law school is leading the way is through the university’s new master of science in cybersecurity risk management. That degree program combines the resources of three of IU’s top-ranked schools …

Amazing Facts About The Jfk Assassination, Donald E. Wilkes Jr.

Popular Media

During the past half century, resourceful scholars, journalists and private researchers within the JFK assassination research community, to their enormous credit, repeatedly have uncovered relevant evidence unavailable or overlooked during the official investigations. The members of this research community are the persons who have been the most active in examining the millions of pages of previously secret government documents relating to the assassination that have been declassified and released to the public since 1992.

While many key factual questions about the JFK assassination remain answered, we now, in 2018, know more of the facts surrounding the assassination than ever before. …