Law Commons^™

A Slanted View On The Morality Bars: Matal V. Tam, In Re Brunetti, And The Future Of Section 2(A) Of The Lanham Act, John Langworthy

The Business, Entrepreneurship & Tax Law Review

Section 2(a) of the Lanham Act contained two “morality bars” to the registration of trademarks: the Disparagement Clause and the Immoral and Scandalous Clause. Two recent cases, the Supreme Court decision in Matal v. Tam and the subsequent decision from the Federal Circuit, In re Brunetti, both held that the morality bars violate the First Amendment. Given the inconsistent application of the Disparagement Clause and the potential for viewpoint discrimination, theTam Court was correct in finding it unconstitutional. For similar reasons, the court in Brunetti properly extended this holding to the Immoral and Scandalous Clause. However, both decisions ignored the …

From Sagebrush Law To A Modern Profession, Kristina J. Running

Articles

No abstract provided.

Lost In Translation: Persons With Limited English Proficiency And Police Interaction In The United States, Anastasia Coppersmith

Northern Illinois Law Review Supplement

This article explores United States jurisprudence of the constitutionality of language rights as it correlates to communications between law enforcement officials and non-English speaking persons in emergency situations. The judicial and legislative bodies provide protections to limited English speaking minorities in the realms of education, healthcare, and when navigating through the United States court system. However, these protections are not extended to include interactions between language-minority citizens and initial police interactions during emergency situations.

Executive Authority And The Take Care Clause, Colleen E. O'Connor

Notre Dame Law Review

Part I of this Note will discuss the Department of Homeland Security’s authority to regulate immigration and focuses on DACA and DAPA. Part II will address the U.S. Department of Justice’s Office of Legal Counsel Opinion on DAPA’s legality. Part III will turn to the lack of judicial constraints on or legislative responses to the executive branch’s enforcement discretion. Part IV will propose that the executive branch should take a more active role in ensuring that the President remains faithful to the Take Care Clause when exercising prosecutorial discretion. Expounding upon the Office of Legal Counsel’s multifactor framework is a …

Minimizing And Addressing Microaggressions In The Workplace: Be Proactive, Part Two, Shamika Dalton

Scholarly Works

No abstract provided.

Taking A Day Off To Pray: Closing Schools For Religious Observance In Increasingly Diverse Schools, Ann E. Blankenship-Knox, Brett A. Geier

Brigham Young University Education and Law Journal

No abstract provided.

Education Systems In Juvenile Detention Centers, Karen Sullivan

Brigham Young University Education and Law Journal

No abstract provided.

Vol. 104, No. 1 Masthead

Cornell Law Review

No abstract provided.

Minimizing And Addressing Microaggressions In The Workplace: Be Proactive, Part Two, Shamika Dalton, Michele Villagran

College of Law Faculty Scholarship

No abstract provided.

Visibly (Un)Just: The Optics Of Grand Jury Secrecy And Police Violence, Nicole Smith Futrell

Publications and Research

Police violence has become more visible to the public through racial justice activism and social justice advocates’ use of technology. Yet, the heightened visibility of policing has had limited impact on transparency and accountability in the legal process, particularly when a grand jury is empaneled to determine whether to issue an indictment in a case of police violence. When a grand jury decides not to indict, the requirement of grand jury secrecy prevents public disclosure of the testimony, witnesses, and evidence presented to the grand jury. Grand jury secrecy leaves those who have seen and experienced the act of police …

A Rule-Based Method For Comparing Corporate Laws, Lynn M. Lopucki

Notre Dame Law Review

Part I explains the processes for specifying a Scenario. It introduces the Scenario that will serve as the illustration in the remainder of this Article—a comparison of the liability of directors for the exercise of poor judgment in a Delaware corporation with the corresponding liability in a United Kingdom public limited company. Part II explains and illustrates the necessity of selecting specific entity types for comparison. Part III describes and illustrates the method for resolving the Scenario in both jurisdictions. Part IV explains and illustrates the novel process for close comparison—the extraction, juxtaposition, and comparison of decisional rules from the …

If The Text Is Clear—Lexical Ordering In Statutory Interpretation, Adam M. Samaha

Notre Dame Law Review

Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed, we should pause to reconsider whether these instructions are justified and whether judges …

Taxation Of Undocumented Immigrants: The Uneasy Connection Between Regulating The Undocumented Immigrant And Fostering Illegal Activity, Nneka Obiokoye

The Business, Entrepreneurship & Tax Law Review

This article seeks to correct some of the negative perceptions held by the general public pertaining to undocumented immigrants, by drawing attention to four major points. First, contrary to popular belief, undocumented immigrants pay taxes. Indeed, as this article will show, in many instances, undocumented immigrants pay a higher rate of tax than U.S. citizens because the burden of tax on such people tends to outweigh the benefits received. Second, undocumented immigrants are human beings with the same needs and desires as every other human. Therefore, laws and policies that tend to make it impossible for such people to provide …

Clicks At Any Cost: Why Regulation Won't Upend The Economics Of Fake News, Amy Kristin Sanders, Rachael L. Jones

The Business, Entrepreneurship & Tax Law Review

Increasingly, the production of fake news has become industrialized; enterprising entrepreneurs are deceiving Internet users with false information while earning significant sums of money. The problem of fake news and misinformation, however, is not one solely brought about by the increase in digital technology. Historically, campaigns of misinformation have been used to achieve social, political, and economic goals long before the Internet was commonplace. But, recent calls to regulate fake news content contravene American law and run afoul of our nation’s laissez-faire approach to the regulation of false or misleading information. We argue that government-imposed, speech-limiting restrictions cannot contain fake …

Better The Devil You Know: An Examination Of Manufacturer Driven Lethal Injection Drug Shortages, Heather Booth

The Business, Entrepreneurship & Tax Law Review

In an attempt to make executions more humane, Oklahoma’s Department of Corrections (“DOC”) consulted a physician to overhaul the state’s execution protocol. This consultation resulted in the implementation of the modern three-drug lethal injection cocktail. However, recent challenges to lethal injection protocols tell a different story. European-based drug companies, wary of having their products used in executions, have begun refusing to sell drugs to state DOCs. This refusal is mostly with respect to the first drug in the three-drug cocktail, the anesthetic. This refusal has led to drug shortages and improvisation that some doctors say will cause unnecessary pain and …

Dickinson Law: A History Of The Law Library, Pamela G. Smith

Perspectives on Law School History

No abstract provided.

Individual Rights Under State Constitutions In 2018: What Rights Are Deeply Rooted In A Modern-Day Consensus Of The States?, Steven G. Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore, Sarah E. Agudo

Notre Dame Law Review

This Article is actually the third and final article in a series that began with (A) Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?; and (B) Steven G. Calabresi, Sarah E. Agudo, and Kathryn L. Dore, State Bills of Rights in 1787 and 1791: What Individual Rights Are Really Deeply Rooted in American History and Tradition?. This Article looks at what rights are protected by state constitutions today, in 2018, and compares our findings with the …

Due Process, Free Expression, And The Administrative State, Martin H. Redish, Kristin Mccall

Notre Dame Law Review

The first Part of this Article will explore the theoretical foundations of procedural due process, focusing particularly on the essential due process requirement of a neutral adjudicator. We will follow that discussion with an analysis of the extent to which administrative adjudication of constitutional challenges to its regulatory authority or decisions satisfies the demands of procedural due process. After concluding that administrative regulators categorically fail to satisfy the requirements of due process, at least in the context of constitutional challenges to their regulatory authority, we will explain why the availability of post–administrative judicial review cannot cure the constitutional defect in …

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, A.C. Pritchard, Robert B. Thompson

Notre Dame Law Review

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress …

Minding The Gap: Improving Parental Involvement To Bridge Education Gaps Between American Indian And Non-Indian Students, Cassidy Wadsworth Skousen

Brigham Young University Education and Law Journal

No abstract provided.

Keeping The "I" In The Idea: A Response To A Proposal To Abandon Individualization In Special Education In Favor Of Rule-Based Delivery Models, Thomas A. Mayes

Brigham Young University Education and Law Journal

No abstract provided.

Abutbul V. Phillip, Hanan Melcer, Uri Shoham, David Mintz

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The Respondents filed an administrative petition with the Court for Administrative Affairs against the Appellants. The petition concerned the removal of signs placed throughout the city of Beit Shemesh, which comprised demands, requests and inscriptions that were offensive to women (hereinafter: the signs). In the framework of an consent judgment, it was determined that the Appellants must exercise all the powers of enforcement available …

The Impact Of Insider Trading On The Market Price Of Securities: Some Evidence From Recent Cases Of Unlawful Trading, David Rosenfeld

College of Law Faculty Publications

The government's recent crackdown on insider trading has revived an old debate about the wisdom of insider trading prohibitions. Opponents of insider trading laws often argue that insider trading contributes to market efficiency because it brings information to the market which gets incorporated into the price of the security, leading to more accurate pricing in a more timely fashion. Although this argument is intuitively appealing and has some empirical support, a look at some recent cases of known insider trading reveals situations where the market fails to detect the presence of informed traders, and even instances where the stock price …

One Judge's "Ten Tips For Effective Brief Writing" (Part Ii), Douglas E. Abrams

Faculty Publications

Chief United States Bankruptcy Judge Terrence L. Michael (N.D.OKLA.) has written "Ten Tips for Effective Brief Writing" and posted them on the court's website. In the Journal's September-October issue, part 1 of this article began by discussing Tip #9 ("leave the venom at home"). That part proceeded to discuss Tips 1-4.

This final part discusses the remaining Tips. All 10 thoughtful Tips warrant careful consideration from advocates who prepare submissions for trial courts or appellate courts.

Plight Of The Public Defender: Excessive Caseload As A Non-Mitigating Factor In Sanctions For Ethical Violations, Taylor Payne

Missouri Law Review

This Note discusses the thought-provoking ruling in In re Karl William Hinkebein and its implications for public defenders in Missouri. Part II of this Note details the facts and holding of the case. Part III of this Note gives a brief history of the Missouri State Public Defender System (“MSPD”), highlighting its current shortcomings and challenges. Part III then discusses the influential ethics opinion issued by the American Bar Association (“ABA”) and the ABA Standards for Imposing Lawyer Sanctions (“ABA Standards”). Part IV of this Note analyzes the decision of the Supreme Court of Missouri to sanction Karl Hinkebein. Part …

Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Perhaps it is their role in our survival, or our economic growth, or the environment. Whatever the reason, energy and natural resource conflicts seems to be unique in the way they can drive significant doctrinal change even outside of energy and natural resource law. Pennsylvania has been a fountainhead of these conflicts. In 1921, Pennsylvania’s Kohler Act and lesser known Fowler Act, which sought to protect surface owners from anthracite coal mine subsidence and to increase tax revenue from anthracite mining, ignited the legal wrangling that eventually led to Pennsylvania Coal Co. v. Mahon. That U.S. Supreme Court decision transformed …

Democratizing Interpretation, Anya Bernstein

Faculty Scholarship

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 …

Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle

Articles

This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely …

Bureaucratic Resistance And The National Security State, Rebecca Ingber

Faculty Scholarship

Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive, the modern incarnation of the separation of powers, as the traditional checks on the President of the courts and Congress have fallen down on the job. …

Children Are Crying And Dying While The Supreme Court Is Hiding: Why Public Schools Should Have Broad Authority To Regulate Off-Campus Bullying "Speech", Jennifer Butwin

Fordham Law Review

Bullying has long been a concern for students, parents, teachers, and school administrators. But technological advances—including the internet, cell phones, and social media—have transformed the nature of bullying and allow “cyberbullies” to extend their reach far beyond the schoolhouse gate. The U.S. Supreme Court established that schools may regulate on-campus speech if the speech creates a substantial disruption of, or material interference with, school activities. However, the Court has yet to rule on a school’s ability to regulate students’ off-campus bullying speech. This Note examines how various courts have approached the issue, analyzes the current circuit split, and ultimately proposes …