Law Commons^™

October 22, 2019: What Is The Universe?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Universe?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Made To Order: Using Gubernatorial Executive Orders To Promote Health In All Policies, Maxim Gakh

Environmental & Global Health Faculty Research

The Health in All Policies (HiAP) approach presents different and often complementary avenues to address the social determinants of health. But at its core, HiAP relies on collaborations to make health a governmental priority across sectors. In the United States, HiAP efforts can involve multiple levels of government and strategies that may vary in formality. In some states, state-level HiAP efforts may be advanced by gubernatorial executive orders (GEOs). GEOs are often used to promote health. GEOs may be powerful in the HiAP context because of their potential to manage the different sectors that comprise state government and thereby address …

Reclaiming Place-Based Development Incentive, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Professor Michelle Layser's forthcoming article is an attack on the current form of place-based tax incentive programs. Layser argues that while rhetorically such programs are said to help the poor, by design they support gentrification in ways that harm the poor. The article ends with a call to reform place-based incentive programs so that the poor in selected areas actually benefit.

Cacs And Doorknobs, Anna Gelpern, Jeromin Zettelmeyer

Georgetown Law Faculty Publications and Other Works

In response to debt crises, policy makers often feature Collective Action Clauses (CACs) in sovereign bonds among the pillars of international financial architecture. However, the content of official pronouncements about CACs suggests that CACs are more like doorknobs: a process tool with limited impact on the incidence or ultimate outcome of a debt restructuring. We ask whether CACs are welfare improving and, if so, whether they are pillars or doorknobs. The history of CACs in corporate debt suggests that CACs can be good, bad or unimportant depending on their vulnerability to abuse and the available alternatives, including bankruptcy and debt …

Wto’Ing A Resolution To The China Subsidy Problem, Chad P. Brown, Jennifer A. Hillman

Georgetown Law Faculty Publications and Other Works

The United States, European Union, and Japan have begun a trilateral process to confront the Chinese economic model, including its use of industrial subsidies and deployment of state-owned enterprises. This paper seeks to identify the main areas of tension and to assess the legal-economic challenges to constructing new rules to address the underlying conflict. It begins by providing a brief history of subsidy disciplines in the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) predating any concerns introduced by China. It then describes contemporary economic problems with China's approach to subsidies, their impact, and the …

Perpetual Affordability Covenants: Can These Land Use Tools Solve The Affordable Housing Crisis?, Elizabeth Elia

Faculty Scholarship

Approximately 3.8 million privately-owned residential housing units in America today contain affordability covenants recorded in their chains of title. State and local agencies and the District of Columbia use these covenants to ensure that publicly-subsidized properties are actually used to provide affordable housing. With rents at all-time highs and stagnant wages, the affordable housing crisis has reached a fever pitch. House Democrats are proposing billions more in housing subsidy. To the extent those funds subsidize privately-owned housing development they, too, will be secured by affordability covenants. In response to this crisis, a new trend in high cost markets is to …

The Law Of Coal, Oil And Gas In West Virginia And Virginia, C. E. Goodwin

West Virginia Law Review

No abstract provided.

The Road To Provider Status: Legislative Obstacles And Precursors, Todd A. Tucker Jr., Sarah Turley, Kaila Bollinger, Lara Long, Jenelle Sobotka, Amy Fanous

Pharmacy and Wellness Review

No abstract provided.

Prescription Drug Abuse: What Are We Doing About It?, Heather Helsel, Thomas Otroba, Juliana Zschoche, Brandon Haas

Pharmacy and Wellness Review

No abstract provided.

Genetic Predispositions To Opioid Addiction, Legislative Action And Implications To Pharmacy Practice, Adam N. Trimble, David N. Jones, Courtney L. Salvino, Michael M. Milks, David Kisor

Pharmacy and Wellness Review

Prescription pain-relievers can be powerfully effective agents in the treatment of moderate to severe pain; however, these drugs are also strongly associated with drug abuse and addiction. In the brain, opioid analgesics bind to various receptors in the mesocorticolimbic dopaminergic pathways, which play a multifaceted interaction of role in reward. Several specific single nucleotide polymorphisms (SNPs) have been identified as potential genetic factors that increase an individual's risk for addiction; however, confounding studies and lack of large trials prohibit definitive conclusions from being drawn. As a result of genetic testing, federal and state laws have been enacted to protect individuals …

The Personhood Paradox: Citizens United As Rejection Of Corporate Personhood?, Stefan J. Padfield

ConLawNOW

This ConLawNOW submission is an excerpt from a previously published piece. The following abstract is from that piece.

UCLA Law Professor Adam Winkler has published an excellent book on the history of corporate rights. The book, We the Corporations: How American Businesses Won Their Civil Rights, “reveals the secret history of one of America’s most successful yet least-known ‘civil rights movements’—the centuries-long struggle for equal rights for corporations.” The book has been highly praised by some of the greatest minds in corporate and constitutional law, and the praise is well-deserved. However, the book is not without its controversial assertions, …

Reconsidering The Strength Of The Boundary Line, Sarah Schindler

Sturm College of Law: Faculty Scholarship

I was thrilled when I discovered Property’s Edges, a recent article by David Dana and Nadav Shoked, who are both at Northwestern University School of Law. Their article sets up an extremely helpful framework to think about boundaries, borders, and the liminal spaces in between purely public and purely private. Specifically, Dana and Shoked suggest that property law distinguishes the borders of an asset from its center. Thus, we have (or should have) weaker rights of ownership in the edges of an asset, which are close to its boundary with private property, than we do at its core.

Week Of October 21, 2019 - October 25, 2019, Benjamin N. Cardozo School Of Law

Today at Cardozo 2019

Events occurring this week have been sponsored by:

• Cardozo Federalist Society
• Cardozo Law Institute in Holocaust and Human Rights (CLIHHR)
• Cardozo South Asian Law Students Association (SALSA)
• Cardozo Women's Law Initiative (WLI)
• Floersheimer Center for Constitutional Democracy
• Heyman Center on Corporate Law and Governance
• Intellectual Property Law Society (IPLS)
• Jacob Burns Center for Ethics in the Practice of Law
• Jewish Law Students Association (JLSA)
• Public Interest Law Advocacy Week (P*LAW)
• Reservists on Duty

Vol. 57, No. 08 (October 21, 2019)

Indiana Law Annotated

No abstract provided.

Data First, Tax Next: How Fiji’S Technology Can Improve New Zealand’S ‘Netflix Tax’ (Part 4), Richard Thompson Ainsworth

Faculty Scholarship

This is the fourth paper examining the recent amendments to the New Zealand Goods and Services Tax (GST); amendments that are collectively known as the Netflix Tax. These papers assess the effectiveness of the Netflix provisions, and how they could be enhanced if New Zealand adopted the technology and vision of Fiji’s VAT Monitoring System (VMS). The Netflix provisions were effective, July 1, 2017.

This final paper considers: (a) the treatment of domestic agents when they are used by remote service providers to facilitate sales to New Zealand customers; (b) how New Zealand intends to respond to resident consumers who …

The Occupation Of Maritime Territory Under International Humanitarian Law, Marco Longobardo

International Law Studies

This article explores whether it is possible to apply the law of occupation beyond land territory, to maritime areas characterized here as “maritime territory.” The article argues that the definition of territory under Article 42 of the 1907 Hague Regulations comprises internal waters, territorial sea, and archipelagic waters, whereas other areas such as the continental shelf, the exclusive economic zone, and high seas fall outside the scope of Article 42. Accordingly, internal waters, the territorial sea, and archipelagic waters may be placed under occupation if a hostile force exercises actual authority over them without valid legal title. The article describes …

The Amish Beard Cutting Case: A Defense Lawyer’S Perspective, Edward Bryan

Journal of Amish and Plain Anabaptist Studies

An assistant federal public defender who represents Sam Mullet from the Bergholz, Ohio, Amish community shares his take on the case.

On November 23, 2011, I met Amish bishop Samuel Mullet in a holding cell in the federal courthouse in Youngstown, Ohio. He was arrested that morning, along with six other men from his Amish community in Bergholz, Ohio. In the fall of 2011, there was a series of beard and hair cutting incidents in Amish communities throughout eastern Ohio, and Mullet and the others arrested were accused of these attacks and charged with violating the Federal Hate Crimes Act …

Old Order Amish Education: The Yoder Decision In The 21st Century, Karen Johnson-Weiner

Journal of Amish and Plain Anabaptist Studies

Prior to the 1972 ruling by the U.S. Supreme Court in Wisconsin v. Yoder, et al., parents found themselves in court in a number of states. This essay explores the Yoder decision and its relevance for the Amish today, contrasting the understanding of Amish life implicit in the Supreme Court decision with the reality of the twenty-first century Amish world. In particular, it notes that the agency afforded the Amish by the Supreme Court’s decision in the Yoder case means that, as the Amish increasingly engage with the mainstream, education has for many become less about isolating children from the …

Law School News: A Busy, Busy Time In Admiralty Law 10-18-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Law School News: Inside Rwu Law's Small 'Admiralty Empire' 10-18-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Regarding Docket No. Fr-6111-P-02, Hud’S Implementation Of The Fair Housing Act’S Disparate Impact Standard, Sonia Gipson Rankin, Alfred Mathewson, Melanie Moses, G. Matthew Fricke, Kathy Powers, Gabriel R. Sanchez, Christopher Moore, Elizabeth Bradley, Mirta Galesic, Joshua Garland

Faculty Scholarship

The is a Comment on the Department of Housing and Urban Development (HUD) Proposed Rule: FR-6111-P-02 HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard . This comment examines how algorithms in housing applications may be inherently biased against certain groups of people.

Their arguments against the proposed legislation:

1. To ensure that an algorithm does not have disparate impact, it is not enough to show that individual input factors are not “substitutes or close proxies” for protected characteristics.

2. It is impossible to audit an algorithm for bias without an adequate level of transparency or access to the …

Bad Company? The Rise (Again) Of Association Health Plans, Brendan Williams

The Journal of Business, Entrepreneurship & the Law

This article first examines the rule adopted by the DOL and the criticism it has drawn. It then assesses the state of the small-group insurance market for small businesses, and the flawed approach that the ACA took to assisting them. Finally it takes a look at the uncertain future for small businesses and health insurance, and it suggests new approaches

Government-Sponsored Patent Monetizing Entities, Garry A. Gabison

The Journal of Business, Entrepreneurship & the Law

Government-sponsored patent assertion entities have materialized all over the world. This article looks at the market failure associated with the patent system. These entities have an opportunity to address these market inefficiencies. But, these entities can damage the innovation more by decreasing competition and increasing protectionism. This article looks at three such entities and argues that the US could use such an entity.

Making Room For Big Data: Web Scraping And An Affirmative Right To Access Publicly Available Information Online, Amber Zamora

The Journal of Business, Entrepreneurship & the Law

This paper will explore the legality of web scraping through the lens of recent litigation between web scraper hiQ Labs and the online professional networking platform, LinkedIn. First, the paper will study the background of web scraping litigation, some challenges courts face in issuing consistent verdicts, and the most common claims companies make against web scrapers. Then the paper will address three of the most common claims and identify court motivations and limitations within the doctrines. The first claims are those arising from the federal Computer Fraud and Abuse Act (CFAA). Next, the paper will investigate copyright claims and defenses …

Protecting The Little Guys: How To Prevent The California Supreme Court’S New “Abc” Test From Stunting Cash-Strapped Startups, Braden Seibert

The Journal of Business, Entrepreneurship & the Law

California startups and independent contractors are in desperate need of a lifeline before they are gone for good. This state has long favored the employee over the employer, but the California Supreme Court’s new “ABC” test tips the scales even further by making it practically impossible for startups to compensate their workers. As a remedy, I propose exemptions to the test for sophisticated contractors who do not need the state’s protection, certified owners who have demonstrated fair play, and small businesses which are still in the developmental stages. Though the Court based its decision largely on a policy of protecting …

Direct Listing: How Spotify Is Streaming On The Nyse And Why The Sec Should Press Play, Cody L. Lipke

The Journal of Business, Entrepreneurship & the Law

This Note proposes that given Spotify’s successful launch on the NYSE, direct listings will become increasingly popular—primarily for start-ups but also as an exit strategy for VC and PE firms in their nonpublic investments. Part II of this Note will discuss the process of “going public” via an IPO or a direct listing. Part III will use Spotify as an illustrative example of the direct listing process. Part IV will consider the advantages and disadvantages of direct listing. Part V will conclude that the Securities and Exchange Commission (SEC or the Commission) should embrace the direct listing process and will …

American Oligarchy: How The Enfeebling Of Antitrust Law Corrodes The Republic, Zachariah Foge

The Journal of Business, Entrepreneurship & the Law

In this note, I will argue that the current antitrust framework is misguided and based on erroneous legal and economic theories originating from the Chicago School. I will argue that the neoclassical approach is not only wrong when examining the legislative intent of Congress but is also in contravention with the policy goals and foundational principles of antitrust law. Furthermore, I will argue that the Chicago School’s narrow, outcome-based view of antitrust is ill-equipped to deal with the demands of the twenty-first century and especially with the online marketplace. The tech giants are unprecedented in their scale, and the online …

Marijuana’S Continuing Illegality And Investors’ Securities Fraud Problem: The Doctrines Of Unclean Hands And In Pari Delicto, Casey W. Baker

The Journal of Business, Entrepreneurship & the Law

Marijuana-related businesses have blossomed into an industry with an estimated total market value of $7.2 billion in 2016, with annual growth projected at 17%. Industry surveys report that 62% of marijuana-related businesses have offered equity stakes to investors and approximately one-half of marijuana-related businesses planned to actively seek investment funding in 2017. Along with the investment opportunity comes heightened fraud risk, with regulators cautioning investors against investment due to the lack of accurate and publicly-available information. Also, despite state-level decriminalization, marijuana possession, sale, and distribution continues to be a crime under federal law. The criminal nature of the marijuana industry …

Sabotage By Cabotage: The Jones Act’S Attack On U.S. Energy, Kyle Mason

The Journal of Business, Entrepreneurship & the Law

This article will explore the ramifications that the Jones Act has on those other crucial areas of the U.S. economy, specifically looking at the U.S. energy market and analyzing how the Jones Act’s interplay with the domestic energy transportation market has been affected. Because of the substantial burden the Jones Act places on the shipping of natural resources, the U.S. energy market has been hindered, as this law continues to adversely impact both U.S. consumers and energy industry development in general. Given the U.S.’s renewed interest in development of an independent energy market, it is time to revise or repeal …

Behavioural Economics And The Non-Frustration Rule: Accounting For Bias, Matthew Cole

The Journal of Business, Entrepreneurship & the Law

The purpose of this paper is to argue how reforming the UK takeover and merger rules can lead to greater long-term investment by UK firms, while causing commensurate growth in productivity without hindering overseas investment or entrenching inefficient management.