Law Commons^™

Government Lawyering: Duties And Ethical Challenges Of Government Lawyers, Andrew Flavelle Martin

Dalhousie Law Journal

Are government lawyers different than lawyers in private practice? If so, why does it matter? While these questions have been addressed piecemeal in the Canadian legal ethics literature, Elizabeth Sanderson's Government Lawyering: Duties and Ethical Challenges of Government Lawyers is the first comprehensive and long-form answer to them.1 As Adam Dodek hints in the foreword 2 and has noted elsewhere,3 the degree to which government lawyers have been overlooked in the Canadian legal literature is incongruent with their sheer numbers as a proportion of the legal profession in Canada. The need for this book is pronounced.

Case Comment: Heller V. Uber Technologies Inc., Peter Quon

Dalhousie Law Journal

Canadian courts have accepted mandatory arbitration clauses as presumptively enforceable unless there is legislation that precludes their application. This position was confirmed by the Supreme Court in Seidel v. TEL US CommunicationsInc. In Heller v. Uber Technologies Inc., the Ontario Court of Appeal considered an arbitration clause in the context of legislation following the approach in Seidel, but the Court also undertook an unconscionability analysis. Reviewing a motion that was granted to stay a class action proceeding in favour of an arbitration clause, the Court unanimously held that the clause was invalid on two separate grounds. First, the arbitration clause …

The Robot-Transporter: Sex Trafficking, Autonomous Vehicles, And Criminal Liability For Manufacturers, Olivia Phillips

Dickinson Law Review (2017-Present)

Despite global condemnation, sex trafficking continues to plague our world. Even in developed countries, the problem persists. Technological advancements, like the Internet, have spurred the development of organized sex trafficking networks and have made “transactions” easier. Although law enforcement agencies have tried to adapt their investigative techniques to combat the problem, developments in technology move at a much quicker rate.

Autonomous vehicles (AVs) will present a new set of challenges for law enforcement agencies in the fight against sex trafficking. In the not-too-distant future, AVs, or “self-driving cars,” will dominate the roadways. An AV will be completely aware of the …

Fire, Aim, Ready! Militarizing Animus: “Unit Cohesion” And The Transgender Ban, Eric Merriam

Dickinson Law Review (2017-Present)

President Trump’s currently litigated “transgender ban,” which excludes transgender persons from military service, is premised in part upon a claim that transgender persons’ presence in the military adversely affects “unit cohesion.” This use of identity- based “unit cohesion” as a justification for excluding a group from military service is the latest episode in a long history of the government asserting “unit cohesion” to justify excluding people from military service based on their identities. This Article contends that unit cohesion, when premised on identity, is always an impermissible justification for exclusion from military service because it is unconstitutional animus. Though …

The Need To Revisit Legal Education In An Era Of Increased Diagnoses Of Attention-Deficit/Hyperactivity And Autism Spectrum Disorders, Heidi E. Ramos-Zimmerman

Dickinson Law Review (2017-Present)

The ever-fluctuating rhetoric from experts, in the field of neurodevelopmental disorders, has led to outdated notions and perplexity surrounding attention deficit/hyperactivity disorder (ADHD) and autism spectrum disorders (ASD). This Article tries to clarify some of the confusion. Better understanding of these disorders is imperative for today’s law professor, since law schools are likely admitting more students diagnosed with ADHD and ASD. This Article discusses the need for change in legal instruction and explores the link between the two disorders. An examination of recent history illuminates some of the commonly held misunderstandings and highlights the disparity in the diagnoses of ADHD …

Front Matter

Dickinson Law Review (2017-Present)

No abstract provided.

The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, Stuart M. Boyarsky

Dickinson Law Review (2017-Present)

The Federal Arbitration Act (FAA) enables parties to obtain quick and final resolution to disputes without incurring the costs, delays, and occasional publicity of litigation. Indeed, section 10 of the FAA enumerates four specific grounds on which courts may vacate arbitral awards: corruption, fraud, impartiality, and misconduct or incompetence. Yet over the past 60 years, a debate has raged over the existence of an additional ground: the arbitrator’s manifest disregard of the law.

The Supreme Court first enounced this standard in dicta in its 1953 decision in Wilko v. Swan. Over next four decades, every federal circuit court slowly …

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

Dickinson Law Review (2017-Present)

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 …

Coinsensus: The Need For Uniform National Virtual Currency Regulations, Anisha Reddy

Dickinson Law Review (2017-Present)

Google search volume for bitcoin and bitcoin-related keywords increased by as much as 1000 percent in 2017 from previous years. This increased interest comes hand-in-hand with increased regulatory and legislative scrutiny. Currently, there is disparate regulation for virtual currencies across national and state borders alike. States’ promulgation of various and incongruous virtual currency regulations have forced service providers to withdraw from different states within the country. However, transactions are not contained within state lines, and disparate state-by-state regulation is impracticable.

The Uniform Law Commission recognized the need for uniform guidance for those entering the North American market and drafted the …

Life Cycle Costing And Food Systems: Concepts, Trends, And Challenges Of Impact Valuation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Our global food systems create pervasive environmental, social, and health impacts. Impact valuation is an emerging concept that aims to quantify all environmental, social, and health costs of food systems in an attempt to make the true cost of food more transparent. It also is designed to facilitate the transformation of global food systems. The concept of impact valuation is emerging at the same time as, and partly as a response to, calls for the development of legal mechanisms to address environmental, social, and health concerns. Information has long been understood both as a necessary precursor for regulation and as …

If You Would Not Criminalize Poverty, Do Not Medicalize It, William M. Sage, Jennifer E. Laurin

Faculty Scholarship

American society tends to medicalize or criminalize social problems. Criminal justice reformers have made arguments for a positive role in the relief of poverty that are similar to those aired in healthcare today. The consequences of criminalizing poverty caution against its continued medicalization.

Property-As-Society, Timothy M. Mulvaney

Faculty Scholarship

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception …

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Faculty Scholarship

This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth.”29 This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being.

This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an …

Access To Justice, Rationality, And Personal Jurisdiction, Adam N. Steinman

Faculty Scholarship

After more than twenty years of silence, the Supreme Court has addressed personal jurisdiction six times over the last six Terms. This Article examines the Court’s recent decisions in terms of their effect on access to justice and the enforcement of substantive law. The Court’s new case law has unquestionably made it harder to establish general jurisdiction—that is, the kind of jurisdiction that requires no affiliation at all between the forum state and the litigation. Although this shift has been justifiably criticized, meaningful access and enforcement can be preserved through other aspects of the jurisdictional framework, namely (1) the basic …

Cyber Babel: Finding The Lingua Franca In Cybersecurity Regulation, William Pierotti

Fordham Law Review

Cybersecurity regulations have proliferated over the past few years as the significance of the threat has drawn more attention. With breaches making headlines, the public and their representatives are imposing requirements on those that hold sensitive data with renewed vigor. As high-value targets that hold large amounts of sensitive data, financial institutions are among the most heavily regulated. Regulations are necessary. However, regulations also come with costs that impact both large and small companies, their customers, and local, national, and international economies. As the regulations have proliferated so have those costs. The regulations will inevitably and justifiably diverge where different …

Time's Up: Addressing Gender-Based Wage Discrimination In Professional Sports, Nicole Zerunyan

Loyola of Los Angeles Entertainment Law Review

Gender-based wage discrimination in professional sports is wide-spread. Female athletes, competing individually or as part of a team, are consistently paid substantially less than their male counterparts. To combat such discrimination and eliminate the gender pay gap, Congress passed the Equal Pay Act (“Act”) in 1963. While born of good intentions, the Act falls drastically short of its intended goal. Its restrictive language—specifically, its “same establishment” requirement—excludes separately owned teams. As most men’s and women’s professional sports teams are separately owned, their players are effectively barred from bringing wage-discrimination claims. This Note proposes two ways of addressing that issue: (1) …

Proposed Rules To Determine The Legal Use Of Autonomous And Semi-Autonomous Platforms In Domestic U.S. Law Enforcement, Michael Sinclair

North Carolina Journal of Law & Technology

We need some rules. “Or there will be . . . trouble.”

Patent Trolls, Nuisance Suits, And The Federal Trade Commission, Matthew Spitzer

North Carolina Journal of Law & Technology

The Federal Trade Commission’s (“FTC’s”) Patent Assertion Entity Activity Report (“The Report”) includes a path-breaking collection of data. The Report was compiled with the object of changing policy, both in Congress and before the courts. Because of the FTC’s ability to force businesses and individuals to provide information, a power that no ordinary researcher possesses, the FTC has amassed a data set that can potentially be of great value. For example, the Report’s description of litigation Patent Assertion Entities’ (“PAEs”) and portfolio PAEs’ structure and behavior is, although not entirely new, very instructive. Unfortunately, the FTC made analytical errors that …

Cybersecurity Of Autonomous Systems In The Transportation Sector: An Examination Of Regulatory And Private Law Approaches With Recommendations For Needed Reforms, Jeanne C. Suchodolski

North Carolina Journal of Law & Technology

The past twenty-five years gave rise to increasing levels of automation within the transportation sector. From initial subsystems, like vessel satellite tracking and automobile chassis control, automation continues apace. The future promises fully autonomous devices such as unmanned aerial systems (“UAS”) and self-driving cars (“UAV”). These autonomous and automatic systems and devices (“AASD”) provide safety, efficiency, and productivity benefits. Yet AASD operate under continual threat of cyber-attack. ¶ Compromised AASD can produce dire consequences in the transportation sector. The possible consequences extend far beyond financial harms to severe bodily injury or even death. Given both the prevalence of cyber threats …

F18rs Sgr No. 24 (Thousand Oaks), Drake Brignac

Student Senate Enrolled Legislation

A RESOLUTION

To offer condolences to the city of Thousand Oaks, California, the Ventura County Sheriff’s Office, Pepperdine University, and the families of those killed at the Borderline Bar & Grill on November 7, 2018

F18rs Sgr No. 15 (Floor Crew), Edouard D'Espalungue

Student Senate Enrolled Legislation

A RESOLUTION

To congratulate the LSU Building Services Floor Crew for their outstanding work during the year 2018

It All Started With Columbo: Teaching Law With Popular Culture, Christine Corcos

Journal Articles

No abstract provided.

Coordinating Local Adaptive Strategies Through A Network-Based Approach, Xueqing Shan

Duke Environmental Law & Policy Forum

As the impacts of climate change become increasingly destructive and pervasive, climate adaptation has received greater political and academic attention. The traditional top-down model for mitigating climate change, however, is ill-suited to implementing effective adaptation strategies. Yet, local communities most impacted by climate change seldom have the tools and resources to develop effective adaptive strategies on their own. This note argues that a bottom-up, network-based approach could be a promising paradigm towards implementing effective adaptive strategies and empowering affected communities.

The Byu Advocate, J. Reuben Clark Law School

The BYU Advocate (& Annual Reports)

"What impresses me is that BYU Law is putting significant effort into thinking about innovation, not just for innovation's sake, but to better prepare its students for an increasingly complex and unpredictable world." – Robert Ambrogi

Counter-Revolutionary: Liberalism, Capital Punishment, And The Next Step Forward, Jason G. Tiplitz

Student Scholarship

Capital punishment is anathema to liberal notions of human rights and civil liberties. It is time to finally cast it aside as an anachronistic vestige of bygone times. The death penalty is fundamentally incompatible with a truly liberal state.

Market Power And Antitrust Enforcement, John B. Kirkwood

Faculty Articles

Antitrust is back on the national agenda. The Democratic Party, leading Senators, progressive organizations, and many scholars are calling for stronger antitrust enforcement. One important step, overlooked in the discussion to date, is to reform how market power — an essential element in most antitrust violations — is determined. At present the very definition of market power is unsettled. While there is widespread agreement that market power is the ability to raise price profitably above the competitive level, there is no consensus on how to determine the competitive level. Moreover, courts virtually never measure market power (or its larger variant, …

Remarks On The Problem Of Scope In Ip, Mark P. Mckenna

Washington Journal of Law, Technology & Arts

As I contemplated the focus of this conference, issues about the nature of the rights that are the subject of a deal stood out to me. A good deal of my recent work has focused on challenges in determining the scope of IP rights. And since those rights are the inputs to various kinds of transactions—or, perhaps even more importantly, ability to assess the scope of a right affects whether a transaction is needed—I’m going to focus here on the relationship between the scope of IP rights and potential IP transactions. [These remarks were given as the keynote talk at …

Applying The Pennsylvania Environmental Rights Amendment Meaningfully To Climate Disruption, Robert B. Mckinstry Jr., John C. Dernbach

Michigan Journal of Environmental & Administrative Law

The Pennsylvania Constitution contains a unique Environmental Rights Amendment (ERA), which recognizes an individual right to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” The ERA also includes a public trust element that makes “Pennsylvania’s public natural resources . . . the common property of all the people, including generations yet to come.” It makes the Commonwealth the “trustee of these resources,” requiring it to “conserve and maintain them for the benefit of all the people.” Recent decisions by the Pennsylvania Supreme Court (the Court) in Robinson Township v. …

How Safe Is Too Safe? Exemption 7(F) And The Withholding Of Critical Documents, Grant Snyder

Michigan Journal of Environmental & Administrative Law

The Freedom of Information Act (FOIA) is one of the main tools used by the American public to investigate the actions of its government. Congress created FOIA in an attempt to make most government documents available to the public. Today, the FOIA process favors government withholding. This bias comes from institutional issues in courts’ review of FOIA challenges.

In the environmental and administrative law context, federal agencies use many exemptions to withhold government records from citizen and non-profit groups. Agencies that are tasked with permitting and regulating energy pipelines and other environmentally-sensitive infrastructure now regularly cite Exemption 7(F). These agencies …

Evaluating Shepard’S, Keycite, And Bcite For Case Validation Accuracy, Paul Hellyer

Library Staff Publications

This study evaluates and compares how accurately three legal citators (Shepard’s, KeyCite, and BCite) identify negative treatment of case law, based on a review of 357 citing relationships that at least one citator labeled as negative. In this sample, Shepard’s and KeyCite missed or mislabeled about one-third of negative citing relationships, while BCite missed or mislabeled over two-thirds. The citators’ relative performance is less clear when examining the most serious citator errors, examples of which can be found in all three citators.