Law Commons^™

Antitrust's Unconventional Politics, Daniel A. Crane

Articles

Antitrust law stands at its most fluid and negotiable moment in a generation. The bipartisan consensus that antitrust should solely focus on economic efficiency and consumer welfare has quite suddenly come under attack from prominent voices calling for a dramatically enhanced role for antitrust law in mediating a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values. To the bewilderment of many observers, the ascendant pressures for antitrust reforms are flowing from both wings of the political spectrum, throwing into confusion a conventional understanding that pro-antitrust sentiment tacked left and …

Northern Monticello Alliance, Llc, A Utah Limited Liability Company, Plaintiff/Appellant, V. San Juan County Commission, A Political Subdivision Of The State Of Utah And San Juan County, A Political Subdivision Of The State Of Utah. Defendants/Appellees. Sustainable Power Group, Llc And Latigo Wind Park, Llc, Intervening Respondents : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

SUPPLEMENT TO BRIEF OF
NORTHERN MONTICELLO
ALLIANCE, LLC

Appeal from the Seventh Judicial District Court, San Juan County, Utah
The Honorable Lyle Anderson, District Court Judge

Valley Health Sys. V. Estate Of Jane Doe, 134 Nev. Adv. Op. 76 (Sept. 27, 2018) (En Banc), Amanda Stafford

Nevada Supreme Court Summaries

The Court held that the district court acted within its discretion in sanctioning the party for discovery violations. Further, it determined that the district court’s citation to the Nevada Rules of Professional Conduct causes reputational harm that amounts to a sanction and that the district court correctly found that the attorneys did in fact violate Nevada Rule of Professional Conduct 3.3(a)(1).

Does Missouri’S Video Service Providers Act Apply To Streaming Services? Netflix Argues No., Kayla Epstein

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

In August of this year the City of Creve Coeur, the named party in a class action, filed an action against the video streaming services Netflix and Hulu for failing to comply with the Video Services Providers Act, which was enacted by the state of Missouri in 2007. The Act enables a “franchise entity,” such as a town, to collect a fee from video service providers that were previously authorized by the public commission. The plaintiffs in this suit are at minimum 40 Missouri municipalities. This month Netflix responded with a motion to dismiss for failure to state a claim. …

Brief To The National Labor Relations Board By Amicus Curiae Professor Jeffrey M. Hirsch, Jeffrey M. Hirsch

Faculty Publications

In Purple Communications, Inc., 361 N.L.R.B. 1050 (2014), the NLRB set forth a new analysis covering employees’ use of employer-provided email. Under this analysis, which is based on the Supreme Court’s seminal decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), the Board presumes that employees who have access to their employer’s email as part of their work duties can use that email for Section 7 purposes during nonwork time. Purple Communications, 361 N.L.R.B. at 1063. The employer can rebut this presumption by showing that special business circumstances justify additional restrictions on employees’ email use. …

They Try: How The Supreme Court Has Addressed Issues Of Racial And Gender Discrimination In The Jury Selection Process, Jana C. Kelnhofer

Scholarly Undergraduate Research Journal at Clark (SURJ)

The rise of publicized police brutality cases (but not the rise in number of cases themselves) has resulted in an increase of public scrutiny of the court process. More often than not, police officers are found not guilty by a jury of their peers, only for the public to later find out that the jury was composed almost entirely of whites. How did this process start? How does it persist? Has the legal system attempted to address this problem, and discrimination in the jury selection process in general? By examining past Supreme Court decisions, this review explores the ways that …

September 26, 2018: Constitution Day Talk At Robert Morris University, Bruce Ledewitz

Hallowed Secularism

Blog post, “Constitution Day Talk at Robert Morris University“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Bradley Macfarlane, Appellant V. Utah Department Of Public Safety, Appellee : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Appeal from the Career Service Review Office Findings of Fact, Conclusions of Law and Decision in re Termination of Bradley Macfarlane

The Problem Of Purely Procedural Preemption Presented By The Federal Hear Act, William L. Charron

Pepperdine Law Review

The underlying purpose of the Holocaust Expropriated Art Recovery Act of 2016 (the HEAR Act), which is to return Nazi-looted artwork to victims or their families, is undeniably laudable. Restituting Nazi-looted artwork is and has been a moral objective of this country since the conclusion of World War II. It is equally clear that victims and their families can often face obstacles to gathering evidence from the war that would demonstrate Nazi theft in court. The HEAR Act strives to address these concerns by imposing a federal statute of limitations over all state law causes of action that would enable …

Ericsson, Inc. V. Regents Of The University Of Minnesota And A New Frontier For The Waiver By Litigation Conduct Doctrine, Jason Kornmehl

Pepperdine Law Review

Eleventh Amendment sovereign immunity is one of the most confusing areas of constitutional law. The waiver by litigation conduct doctrine represents a particularly complex aspect of Eleventh Amendment immunity. Courts, for example, have not precisely defined the extent to which waiver in a prior proceeding might extend to a future one. The Patent Trial and Appeals Board recently considered this issue in a novel context. In Ericsson, Inc. v. Regents of the University of Minnesota, the Patent Trial and Appeals Board applied the waiver by litigation conduct doctrine in an inter partes review proceeding. Combining the Eleventh Amendment, non-Article III …

The Security Court, Matt Steilen

Maryland Law Review Online

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

A Rash Decision In Sunnyslope: Confusion Lingers Over Collateral Valuation, Michael D. Manzo

St. John's Law Review

(Excerpt)

This Comment argues that the Ninth Circuit’s Sunnyslope decision misconstrued the Rash Court’s holding and is divorced from the text and structure of the Code. Rash does not provide a brightline rule that answers valuation questions in cramdowns; it offers a flexible standard that is compatible with the Code’s protections for both debtors and secured creditors. Further, this Comment also argues that Sunnyslope could have been answered not as a valuation issue, but as a lien priority issue. In any event, the Ninth Circuit completely missed the mark in interpreting the Supreme Court’s holding in Rash and in understanding …

Increasing Investor Protection Through Improving Hedge Fund Valuation, Deirdre Farrell

St. John's Law Review

(Excerpt)

This Note examines the current hedge fund regulations in the United States and in Europe, and proposes ways for regulators to improve hedge fund valuation in the United States to increase investor protection. Although valuation issues affect all pooled investment vehicles that invest in illiquid, difficult-to-value assets, this Note focuses only on the valuation systems of hedge funds.

Part I gives an overview of hedge funds in general—their structure and the major stakeholders involved. Part II summarizes the valuation process and its associated issues. Part III describes recent regulatory changes in the United States affecting hedge funds, including the …

Reasonable Action: Reproductive Rights, The Free Exercise Clause, And Religious Freedom In The United States And The Republic Of Ireland, Liam Ray

St. John's Law Review

(Excerpt)

This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland (“ROI”) presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with …

Endangered Deference: Separation Of Powers And Judicial Review Of Agency Interpretation, Kathryn M. Baldwin

St. John's Law Review

(Excerpt)

This Note proceeds in four parts: Part I consists of a brief history of the development of agency deference doctrine. Part II examines the decline of deference from the perspective of all three branches of government: the overuse by the executive agency that catalyzed deference’s denouement, the underuse by the United States Supreme Court and renewed separation of powers challenges, and the parallel assault from Congress under the pending SOPRA. Part III addresses the proposed de novo review standard and highlights the deficiencies in that solution, emphasizing instead the tools that Congress already employs to meaningfully check agency interpretations. …

An Antitrust Approach To Corporate Free Exercise Claims, Ronald J. Colombo

St. John's Law Review

(Excerpt)

This Article suggests that antitrust law’s concept of market power could similarly be employed in balancing the free exercise rights of a corporation or any for-profit business venture against the rights of individuals. When a business enterprise seeks a religious liberty exemption from a rights-granting law, a major factor in assessing its claim should be the degree to which it wields market power in the relevant market. If the business is a monopolist, and, a fortiori, wielding tremendous market power, its claim for a free exercise exemption should probably fail. If, conversely, the business is but a minor marketplace …

Locked Up, Shut Up: Why Speech In Prison Matters, Evan Bianchi, David Shapiro

St. John's Law Review

(Excerpt)

This Article proceeds in three Parts. Part I describes the deferential Turner standard that governs First Amendment claims brought by prisoners. Virtually every word uttered or written to a prisoner and virtually every word uttered or written by a prisoner receives extremely limited legal protection. Largely as a result of this legal regime, senseless censorship is all too common in American prisons. Jailers and prison officials seem to have received the message that they can ban speech with impunity.

Part II argues that the combination of Turner deference and mass incarceration divests prisoners of expressive power, thereby distorting public …

Searching For The Parental Causes Of The School-To-Prison Pipeline Problem: A Critical, Conceptual Essay, Reginald Leamon Robinson

Journal of Civil Rights and Economic Development

(Abstract)

In this critical, conceptual essay, the author argues that the School-to-Prison Pipeline (“STPP”) simply does not exist. Long before Columbine and the enactment of zero tolerance, caregivers have been wrongly harming their children, something causing them toxic stress that triggers their stress-response system, and making it nigh impossible for children easily ensnared by suspensions, expulsions, referrals to alternative schools, and SRO arrests to have the best developmental start and cognitive abilities to succeed in public schools. Further, teachers and administrators who are pressured to report great educational metrics, and for their own childhood reasons have a near inflexible need …

Examining The School-To-Prison Pipeline: Sending Students To Prison Instead Of School, Fatema Ghasletwala

Journal of Civil Rights and Economic Development

(Excerpt)

Juvenile delinquents are often thought of as intrinsically evil. These youths are blamed for their own plight, believed to be a result of innate character flaws. However, such an obtuse perception is problematic. In many cases, these juvenile delinquents were made delinquents by a faulty system, namely, the School-to-Prison Pipeline. The School-to-Prison Pipeline is a troubling phenomenon in which students are suspended, expelled or even arrested for minor offenses instead of being sent simply to an administrator’s office. Often, these students have backgrounds of poverty, abuse, neglect, and may even have learning disabilities. Instead of being offered counseling, “unruly” …

Complexity In The Determination Of Child Abuse: A Statistical And Rights Based Approach, Yvonne M. Vissing, Phd, Quixada Moore-Vissing, Phd, Leah Salloway, Abd

Journal of Civil Rights and Economic Development

(Excerpt)

Every year more than 3.6 million referrals are made to child protection agencies, which involve more than 6.6 million children. A determination of child abuse is a complex process for both courts and child protective service workers. When an allegation of suspected child abuse is made findings may, or may not, lead to court action. Courts rely upon accurate determinations of abuse. While some cases are clear-cut, many are not. The lack of clear-cut data and legal findings, however, does not dissuade the press and public from making determinations of whether children are being adequately protected, and whether parents …

Flooding Events Post Hurricane Harvey: Potential Liability For Dam And Reservoir Operators And Recommendations Moving Forward, David Ayala, Ashley Graves, Colton Lauer, Henrik Strand, Chad Taylor, Kyle Weldon, Ryan Wood

EENRS Program Reports & Publications

When Hurricane Harvey hit the Texas coast as a category 4 hurricane on August 25, 2017, it resulted in $125 billion in damage, rivaling only Hurricane Katrina in the amount of damage caused. It also resulted in the deaths of 88 people and destroyed or damaged 135,000 homes. Much of that devastation was the result of flooding. The storm dumped over 27 trillion gallons of rain over Texas in a matter of days. Some parts of Houston received over 50 inches of rainfall.

The potential liability that dam and reservoir operators may face for decisions they make during storm and …

Week Of September 24, 2018 - September 28, 2018, Benjamin N. Cardozo School Of Law

Today at Cardozo 2018

Events occurring this week have been sponsored by:

• Cardozo Criminal Law Society (CCLS)
• Cardozo Cross-Border Practice Society
• Cardozo Entertainment Law Society
• Cardozo South Asian Law Students Association (SALSA)
• Chabad at Cardozo
• Floersheimer Center for Constitutional Democracy
• Jewish Law Students Association (JLSA)
• Latin American Law Student Association (LALSA)
• New York Intellectual Property Law Association (NYIPLA)
• Suspension Representation Project
• United States Patent and Trademark Office
• Women Entrepreneurs NYC

When Both Apply, Does Title Vii Displace Title Ix In Employee-On-Employee Sexual Harassment Cases?, Ryan Butler

SLU Law Journal Online

Ryan Butler explores the possibility of an employee-on-employee sexual harassment circuit split, causing some employees to have a remedy under only Title VII, while others may have remedies under both Title VII and Title IX.

Vol. 55, No. 06 (September 24, 2018)

Indiana Law Annotated

No abstract provided.

Mmu: 09/24/18–09/30/18, Student Bar Association

Monday Morning Update

SOFTBALL

Mass Schedule

Follow the Crossings Café

LEGAL WRITING CENTER

INVITATION TO ALL NDLS STUDENT GROUPS

Health & Wellness Information

This Week @ NDLS

1L OF THE WEEK: Nick Osterman.

In The Matter Of C.S.N. And T.R.S And Concerning Ted Taylor Jr. And Jessica Ducheneaux V. Tricia Taylor, Aarin Nygaard, And Terrance Stanley, Frank Pommersheim

Tribal Court Opinions Authored by Emeritus Professor of Law Frank Pommersheim

No abstract provided.

Weapons Review Obligation Under Customary International Law, Natalia Jevglevskaja

International Law Studies

Under Article 36 of the 1977 Additional Protocol I to the Geneva Conventions, States are required to review new weapons for their compliance with international law. While recent discussions on the regulation of lethal autonomous weapons systems under the auspices of the UN Certain Conventional Weapons Convention increasingly emphasize the importance of national weapons review mechanisms, Article 36 is known to be implemented only by a handful of States. Some legal scholars have nonetheless argued that the Article 36 obligation has attained customary international law status. Remarkably, substantive analysis of State practice and opinio juris required to evidence that certain …

Reality-Testing Questions For Real Life And Simulations – And Ideas For Stone Soup Assignments, John Lande

Faculty Blogs

Although litigants and their lawyers may generally recognize that litigants will incur some intangible costs, they often do not consider the numerous intangible ways that litigants can be harmed and do not carefully assess these costs when making litigation decisions. Sometimes litigants’ intangible costs are much more important to them than the tangible costs. This post provides detailed descriptions of some of these costs, and includes questions that lawyers and mediators should ask clients to identify and value intangible costs.

September 23, 2018: Politics After The Death Of God, Bruce Ledewitz

Hallowed Secularism

Blog post, “Politics After the Death of God“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.