Law Commons^™

Head In The Clouds, Head In The Sand: Federal Failure To Update Guidance On Computer Transaction In An International Context, Logan S. Weaver

Washington Law Review

The United States has two different rationales for taxing income of non-U.S. persons and entities. First, the income may be “sourced” to the United States, as defined in the Internal Revenue Code. Alternatively, the income may be effectively connected to a trade or business within the United States that provides income to the non-U.S. person or entity. The sourcing rules for income of non-U.S. persons and entities depend heavily on the nature of the underlying transaction and the geographical location where certain key elements of the transaction take place. So long as the non-U.S. person or entity avoids activities that …

Finality, Appealability, And The Scope Of Interlocutory Review, Bryan Lammon

Washington Law Review

Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of the …

Rape Messaging, Alena Allen

Fordham Law Review

When feminists began advocating for rape reform in the 1970s, the rape message was clear: rape was not a crime to be taken seriously because women lie. After decades of criminal law reform, the legal requirement that a woman vigorously resist a man’s sexual advances to prove that she was raped has largely disappeared from the statute books, and, in theory, rape shield laws make a woman’s prior sexual history irrelevant. Yet, despite what the law dictates, rape law reforms have not had a “trickle-down” effect, where changes in law lead to changes in attitude. Women are still believed to …

You Say Intrastate, I Say Interstate: Why We Should Call The Whole Thing Off, Andrew Wiktor

Fordham Law Review

As society evolves, so do criminals. In the early twentieth century, America embraced the automobile, passed the Volstead Act, and created a national highway program. These developments inadvertently paved the way for interstate criminal enterprise. Infamous gangsters such as Al Capone were able to operate large-scale racketeering syndicates without fear of being prosecuted for two primary reasons: (1) states lacked jurisdiction, resources, or both to go after such criminals, and (2) there was no federal criminal statute to fill the gap left by the states. But as criminals evolve, so does society. In 1961, Congress, at the urging of Attorney …

Case Note: Case Of Araya V. Nevsun Resources Ltd In The Canadian Courts, Jolene Hansell

Genocide Studies and Prevention: An International Journal

No abstract provided.

"I Wanted Them To Be Punished Or At Least Ask Us For Forgiveness”: Justice Interests Of Female Victim-Survivors Of Conflict-Related Sexual Violence And Their Experiences With Gacaca, Judith Rafferty

Genocide Studies and Prevention: An International Journal

Survivors of human rights abuses need to experience a sense of justice to support their individual recovery. Women who have experienced conflict-related sexual violence have specific justice interests that are distinct from those of survivors of other abuses. This article focuses on justice interests of Rwandan women who experienced sexual violence during the genocide in Rwanda and who had their cases tried in gacaca community courts between 2008 and 2012. The article discusses two justice interests that emerged during interviews with 23 Rwandan women about their gacaca experience. These interests include the punishment of perpetrators and perpetrators taking responsibility for …

The "Foreign Agent Problem": An International Legal Solution To Domestic Restrictions On Non-Governmental Organizations, Jacqueline Van De Velde

Cardozo Law Review

The United States' Foreign Agent Registration Act (FARA), has recently come into the spotlight due to its use in the ongoing Russian election interference investigation. But the United States 'foreign agent restriction is only one of many: while FARA was the first of its kind, it now exists among a multitude of such restrictions. Too, the U.S. foreign agent restriction is lenient, compared to the restrictions appearing in other countries- restrictions that now are crippling civil society and to which international law is ill-equipped to respond. This Article analyzes this sudden avalanche of 'foreign agent" legislation: restrictive domestic legislation that …

The Take Care Clause, Justice Department Independence, And White House Control, Andrew Mccanse Wright

West Virginia Law Review

Problematic relations between the White House and the U.S. Department of Justice stand out even amidst the broader tumult of President Donald Trump's first year in office. With respect to written policy restricting contacts between the White House staff and the Department, the Trump White House has followed the general contours of predecessor administrations. Those policies recognize that White House contacts restrictions vary with the Department’s complex functions, restrict channels of contact, and restrict personnel authorized to make contacts. They also grant limited exceptions where White House-Department contact is required to assist the President in the performance of a constitutional …

Liability For Unintentional Nuisances: How The Restatement Of Torts Almost Negligently Killed The Right To Exclude In Property Law, Jill M. Fraley

West Virginia Law Review

No abstract provided.

How Not To Regulate, Lisa E. Heinzerling

University of Chicago Law Review

Review of: How to Regulate: A Guide for Policymakers Thomas A. Lambert. Cambridge, 2017. 256 pages.

To Move Or Not To Move? That Is The Metaphysical Question, David J. Sandefer

University of Chicago Law Review

Circuit courts are currently split on how to apply the robbery abduction enhancement contained in the United States Sentencing Guidelines. As a result of patchwork interpretations and a failure to agree on when an abduction occurs, courts have come to drastically different conclusions in almost identical cases. In order to resolve the circuit split, courts need a functional test that applies a unified definition of location.

This Comment seeks to provide courts with such a test. In proposing this test, this Comment looks to (1) the Guidelines, (2) sexual assault case law, and (3) kidnapping case law

Waiving Chevron, Jeremy D. Rozansky

University of Chicago Law Review

By according agencies the power to interpret the law, Chevron deference increases the power of administrative agencies. Yet agencies may not always want the benefits of Chevron deference. If the agency is a party in a lawsuit, it might decide not to seek Chevron deference in the hope that the court will reverse its binding policy. Following the inauguration of President Donald Trump, the Federal Communications Commission did just that in Global Tel*Link Inc v FCC, a lawsuit concerning regulations of calling services at correctional facilities. At least initially, the DC Circuit did not apply the Chevron framework because the …

The Constitutionality Of Income-Based Fines, Alec Schierenbeck

University of Chicago Law Review

In America, fines are typically imposed without regard to income. The result is a system that traps low-income offenders in a cycle of debt and jail while letting rich offenders break the law without meaningful financial consequence. One-sizefits-all fines also fail to meet basic goals of the justice system: to treat like offenders alike, punish the deserving, and encourage respect for the law. Elsewhere in the world, however, systems that assess fines based on earnings have been around for nearly one hundred years. The most common model—known as the “day fine”— scales penalties according to a person’s daily income. These …

When One Word Changes Everything: How The Unitary Concept Dismantles The Basis Of Terry Frisks, Aaron D. Davison

North Carolina Law Review

No abstract provided.

Remedial Chevron, F. Andrew Hessick

North Carolina Law Review

No abstract provided.

Bank Sales And Bake Sales: Section 75-1.1 And The Hajmm Legacy, Robert T. Lucas Iv

North Carolina Law Review

No abstract provided.

Contents, North Carolina Law Review

North Carolina Law Review

No abstract provided.

The Preferred Preferences In Employment Discrimination Law, Emily Gold Waldman

North Carolina Law Review

No abstract provided.

Free Trade, Immigrant Workers, And Employment Discrimination, Angela D. Morrison

Faculty Scholarship

This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs.

This article shifts the focus. Instead, it argues that …

Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann

Faculty Scholarship

The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote lowcarbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …

Sweetheart Deals, Deferred Prosecution, And Making A Mockery Of The Criminal Justice System: U.S. Corporate Dpas Rejected On Many Fronts, Peter Reilly

Faculty Scholarship

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district …

Analysis Of Michigan Juvenile Detention Facilities, Loredana M. Cunningham

Honors Projects

The world of juvenile justice is a relatively new concept in today’s society dating back to the nineteenth century in comparison to the ancient structure of the criminal justice system. It is no wonder that the development of juvenile detention centers has been a slow process considering the late start to having modern research for this contemporary structure of a justice system for youth. While there are licensing standards for each juvenile detention facility to meet in order to continue having the beds to be occupied, there are unique ways that each facility can achieve that. The research focused on …

Secession And The Prevalence Of Both Militant Democracy And Eternity Clauses Worldwide, Rivka Weill

Cardozo Law Review

The prevalent approach suggests that constitutions are silent about secession and may even implicitly allow it. But an examination of world constitutions reveals that the overwhelming majority of countries vigorously protect territorial integrity. This is true even of countries classified as consociational or consensus democracies. Scholars further point to the existence of secessionist political parties as proof that secession may align with constitutionalism. This Article, however, explains how democracies engage in a delicate game to chase and eliminate secessionist political mobilization. Democracies have been able to conceal their fight against secessionists by creating a large gap between "the law on …

Comment In Response To Proposed Rulemaking: Inadmissibility On Public Charge Grounds, Brittany Thomas, Nahal Zamani, Joann Kamuf Ward

Human Rights Institute

The proposed rule on “Inadmissibility on Public Charge Grounds” would cause irreparable harm to communities across the United States, and immigrants and their families, in particular. The proposed change contravenes globally accepted human rights norms, which aim to ensure an adequate standard of living and prohibit discrimination, including specific human rights obligations and commitments of the United States.

As legal organizations devoted to ensuring justice and human rights accountability in the United States, we submit this joint comment in opposition to the proposed rule, which threatens to destabilize communities, and undermine public health and safety by penalizing individuals who seek …

Framing The Global Pact For The Environment: Why It’S Needed, What It Does, And How It Does It, Teresa Parejo Navajas, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

We face a critical environmental crisis. Humanity consumes unsustainably; we use resources at a rate fifty percent faster than they are reproduced by the planet. The population is growing exponentially and climate change, the most important challenge of this century, is already wreaking havoc around the world. Despite numerous existing international environmental treaties, the Earth, and, therefore, human safety and prosperity, is in peril. According to a recent study by scientists from Stanford University and the National Autonomous University of Mexico, the ongoing “sixth mass extinction” threatens to cause an “assault on the foundations of human civilization.” In November 2017, …

Tying The Knot: An Interdisciplinary Approach To Understanding The Human Right To Adequate Nutrition, Jessica Fanzo, Kaitlin Y. Cordes, Elizabeth F. Fox, Anna Bulman

Columbia Center on Sustainable Investment Staff Publications

Malnutrition is alarmingly prevalent, affecting one in three people worldwide. In this Article, we argue that a key reason the global community has been unsuccessful in combating malnutrition is a lack of clarity outside the field of nutrition regarding the true meaning of “nutrition.” In particular, this has limited the effectiveness of international human rights law as a mechanism for addressing malnutrition.

In this interdisciplinary Article, which draws from both the legal and nutrition fields, we unpack the meaning of nutrition and demonstrate that a standalone right to adequate nutrition does indeed exist in international human rights law as a …

Copyright Collective Management As Compulsory Licensing In Taiwan, Ping-Hsun Chen

Journal of International Business and Law

No abstract provided.

The Effects Of The Trump Agenda In A Global Economy: A Perspective From Mexico, Abraham Alejandro Martinez Lopez

Journal of International Business and Law

No abstract provided.

International Business And Investment In China, It Is Wrong To Read The Face Of The Chinese-Foreign Joint Venture Law That The Board Of Directors Is The Highest Authority, Fengping Gao

Journal of International Business and Law

Within the spectrum of international business and investment, China inbound Foreign Direct Investment hit an all-time high record 135 billion U.S. dollars in 2017. Meanwhile, a large number of international businesses, including American companies, pulled out from China and transferred their business to South Asian countries for a variety of considerations including but not limited to the cheaper labor and the lax environmental regulations, and/or to the United States in response to the recent corporate tax cut and/or other policy objectives initiated under the Trump Administration such as to bring the manufacturing jobs back to America. The departure of foreign …

The Relevance Of Fatf's Recommendations And Fourth Round Of Mutual Evaluations To The Legal Profession, Laurel S. Terry, Llerena Robles, Jose Carlos

Faculty Scholarly Works

More than two hundred countriesin the world have agreed to abide by the anti-money laundering ("AML") recommendations developed by the Financial Action Task Force ("FATF"), which is an intergovernmental organization. This Article focuses on the potential impact on the legal profession of FATF's fourth round of mutual evaluations. During these mutual evaluations, which currently are underway, FATF-affiliated countries examine each other's compliance with the FATF Recommendations and recommend follow-up action. This Article first presents the legal profession-related results from the completed Mutual Evaluation Reports. A number of these FATF Reports recommend changes that include requiring lawyers to report suspicious client …