Law Commons^™

The Business Case For Lawyers To Advocate For Corporate Supply Chains Free Of Labor Trafficking And Child Labor, E. Christopher Johnson Jr., Fernanda Beraldi, Edwin Broecker, Emily Brown, Susan Maslow

American University Law Review

No abstract provided.

Introduction: Barnette At 75, Howard M. Wasserman

FIU Law Review

No abstract provided.

A Close Reading Of Barnette, In Honor Of Vincent Blasi, Paul Horwitz

FIU Law Review

No abstract provided.

Not Such A Fixed Star After All: West Virginia State Board Of Education V. Barnette, And The Changing Meaning Of The First Amendment Right Not To Speak, Genevieve Lakier

FIU Law Review

No abstract provided.

“Fixed Star” Or Twin Star?: The Ambiguity Of Barnette, Steven D. Smith

FIU Law Review

No abstract provided.

Post-Panel Commentary, Joëlle A. Moreno Et Al

FIU Law Review

No abstract provided.

Immunity Incorporated: All The Injustice That Jeffrey Epstein Can Buy, Janice G. Raymond

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Commercial Speech Protection As Consumer Protection, Felix T. Wu

University of Colorado Law Review

No abstract provided.

Environmental Gentrification, Sarah Fox

University of Colorado Law Review

Gentrification is a term often used, much maligned, and difficult to define. A few general principles can nonetheless be distilled regarding the concept. First, gentrification is spurred by rising desirability of an area for housing or commercial purposes. Second, this rising desirability, following basic supply-and-demand principles, leads to higher property values and rents in an uncontrolled market. Third, gentrification leads to a shift in the demographics of a neighborhood. This shift can change not only the socioeconomic and racial composition of the area but also the community's character, as residential and commercial options begin to reflect the preferences of the …

Insulation By Separation: When Dual-Class Stock Met Corporate Spin-Offs, Young Ran Kim, Geeyoung Min

Ira M. Millstein Center for Global Markets and Corporate Ownership

The recent rise of shareholder engagement has revamped companies’ corporate governance structures so as to empower shareholder rights and to constrain managerial opportunism. The general trend notwithstanding, this Article uncovers corporate spin-off transactions — which divide a single company into two or more companies — as a unique mechanism that insulates the management from shareholder intervention. In a spin-off, the company’s managers can fundamentally change the governance arrangements of the new spun-off company without being subject to monitoring mechanisms, such as shareholder approval or market check. Furthermore, most spin-off transactions enjoy tax benefits. The potential agency problems associated with the …

Risk Management For Persons With Serious Mental Illness: A Process Analysis Of Washington State Department Of Corrections' Tools, Martin J. Tobin

Antioch University Dissertations & Theses

Although many evidence-based techniques are outlined in the literature, systems often assess, plan, and mitigate risk for Persons with Serious Mental Illness (PSMI) in significantly divergent ways. For more than 20 years now, the Washington State Department of Corrections has relied on the Offender Reentry Community Safety Program (ORCSP) to appraise dangerousness and presence of mental disorder, utilizing a staged process that considers a wide-ranging set of criminogenic and non-criminogenic variables. A growing body of research suggests that the ORCSP is effectively decreasing recidivism through collaborative reentry planning and mitigation between mental health and criminal justice professionals; however, whether ORCSP …

Exploring The Development Of Three Law-Based Competency Models For Public Health Practitioners, Montrece Mcneill Ransom, Brianne Yassine

Journal of Social, Behavioral, and Health Sciences

As public health promotion and protection become increasingly complex and integrated into various fields, public health law is emerging as an important tool for public health professionals. To ensure that public health professionals are adequately trained public health law, public health law-related competencies should to be integrated into educational and other programming. This article provides three competency models developed by the Public Health Law Program at the Centers for Disease Control and Prevention: (a) the public health emergency law competency model, (b) the public health law competency model, and (c) the legal epidemiology competency model. These competency models provide a …

Uncitral Working Group Iii: Can Reforming Procedures Rebalance Investor Rights And Obligations?, Lorenzo Cotula, Terrence Neal

Faculty Scholarship

The work of the United Nations Commission on International Trade Law (UNCITRAL) provides an opportunity to rebalance the international investment regime – but only if the full gamut of key issues are identified. Requiring investors to uphold standards of responsible business conduct (RBC) is largely a function of substantive rights and obligations, but it also presents procedural dimensions that fall within the purview of the UNCITRAL process. This policy brief explores the issues and discusses possible options for reform.

Central Clearing Of Financial Contracts: Theory And Regulatory Implications, Steven L. Schwarcz

Faculty Scholarship

To protect economic stability, post-crisis regulation requires financial institutions to clear and settle most of their derivatives contracts through central counterparties, such as clearinghouses associated with securities exchanges. This Article asks whether regulators should expand the central clearing requirement to non-derivative financial contracts, such as loan agreements. The Article begins by theorizing how and why central clearing can reduce systemic risk. It then examines the theory’s regulatory and economic efficiency implications, first for current requirements to centrally clear derivatives contracts and thereafter for deciding whether to extend those requirements to non-derivative contracts. The inquiry has real practical importance because the …

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and …

Unconstitutionally Illegitimate Discrimination, Brandon L. Garrett

Faculty Scholarship

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is and should be enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as its stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that Constitutional doctrine, in its broad outlines, …

Flotsam, Financing And Flotation: Is Canada “Resolution Ready” For Insurance Company Insolvency?, Janis P. Sarra

All Faculty Publications

Insurance represents almost 2 per cent of Canada’s gross domestic product (GDP), yet there is little public policy discussion regarding the viability of the companies that insure Canadians or about the policyholder protection and resolution regime that underpins the provision of these services. As new products and technology develop, and as the complexity of multinational insurance enterprises increases, new risks pose challenges for Canada’s oversight and policyholder protection regimes. This article provides an overview of the insolvency regime for insurers in Canada, focusing primarily on the federal regime as the exemplar of how Canadian regulators and the insurance industry have …

Social Media Crime In Canada: Annotated Criminal Code, R.S.C., 1985, C. C-46, 2nd Ed., Benjamin Perrin

All Faculty Publications

Over 80% of Canadians use the Internet and approximately 20 million Canadians are active on social media networks. It is not surprising that criminal activity is taking place in these global digital communities and this is raising challenges for criminal law and the criminal justice system. The Supreme Court of Canada recently recognized in R. v. K.R.J. that “[t]he rate of technological change over the past decade has fundamentally altered the social context” in which certain crimes are occurring and social media networks have given “unprecedented access to potential victims and avenues” for offending.

This annotated Criminal Code aims to …

The Digital Services Tax On The Verge Of Implementation, Wei Cui

All Faculty Publications

France enacted the digital services tax (DST) in 2019, and similar legislation is pending in the United Kingdom, Spain, Italy, and other countries. The DST can be viewed as a tax on location-specific rent (LSR), and it arguably solves genuinely new problems in international taxation. The author briefly reviews this justification of the DST and further examines the DST design in light of three criticisms. The first criticism is that certain features of the DST render it similar to distortionary import tariffs. The second is that the DST would not be borne by digital platforms but would only be shifted …

Nagwediẑk’An Gwaneŝ Gangu Ch’Inidẑed Ganexwilagh: The Fires Awakened Us: Tsilhqot’In Report On The 2017 Wildfires, Jocelyn Stacey, Crystal Verhaeghe, Emma Feltes

All Faculty Publications

This report documents the experiences of the Tsilhqot'in Nation during the historic 2017 wildfire season. It identifies needs and recommendations for moving forward with nation-to-nation emergency management.

Environmental Determinism: Functional Egalitarian Spaces Promote Functional Egalitarian Practices, Katharine B. Silbaugh

Faculty Scholarship

Egalitarian, place-based thinking belongs at the table when considering approaches to improving early childhood. Places connect people’s lives. They also generate patterns that organize, and can re-organize, our social order and behavior. Places can spark and support the development of self-governance and cultivate a political voice grounded in the needs of the same community that place generates. Whether considered as community schools, community centers, or more ambitiously, community housing developments designed to include services that meet the needs of residents, the spatial dimensions of early childhood policy require explicit consideration.

The Hidden Costs Of Dissent, Robert L. Tsai

Faculty Scholarship

This essay appears as part of a symposium dedicated to the book, ROBERT L. TSAI, PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION (W.W. Norton 2019), and published in CONSTITUTIONAL COMMENTARY. In it, I jointly respond to two separate review essays by Franita Tolson and Nelson Tebbe. First, I emphasize that the book presents not a comprehensive theory of equality, i.e., what egalitarianism should look like under ideal conditions, but instead an account of egalitarian ethics and a menu of work-arounds that can be useful to promote egalitarian goals under more trying circumstances. Second, as to the concern that over-reliance …

The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog

Faculty Scholarship

It’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic …

Immigration Unilateralism And American Ethnonationalism, Robert L. Tsai

Faculty Scholarship

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …

Manufactured Emergencies, Robert L. Tsai

Faculty Scholarship

Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce …

Control Over Contemporary Photography: A Tangle Of Copyright, Right Of Publicity, And The First Amendment, Jessica Silbey

Faculty Scholarship

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks …

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

Faculty Scholarship

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

Research Report On Federal Agency Alj Hiring After Lucia And Executive Order 13843, Jack M. Beermann

Faculty Scholarship

This draft report examines federal agency hiring practices for administrative law judges ("ALJs"), who preside over formal agency hearings, in light of the Supreme Court's determination that ALJs are constitutional officers and President Trump's executive order to exempt ALJs from certain statutory competitive-service hiring requirements. The report also provides recommendations for best agency hiring practices. Professors Jack Beermann and Jennifer Mascott co-authored this initial draft report. After Professor Mascott stepped down from the Administrative Conference of the United States to work in the Department of Justice's Office of Legal Counsel, Professor Beermann edited the report and produced its final May …

Disproportionate Exposure To Antibiotics In Children At Risk For Invasive Pneumococcal Disease: Potential For Emerging Resistance And Opportunity For Antibiotic Stewardship, Tamar F. Barlam, Jake R. Morgan, Warren A. Kaplan, Kevin Outterson, Stephen I. Pelton

Faculty Scholarship

We compared antibiotic prescribing for children with and those without an underlying chronic condition associated with increased risk for invasive pneumococcal disease. Children with a chronic condition had significantly greater cumulative exposure to antibiotics and higher rates of prescriptions per person-year than those without a chronic condition; this population is at increased risk for the emergence of multidrug-resistant pathogens.

Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey

Faculty Scholarship

This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. …