Law Commons^™

Mere Conduit, David G. Carlson

Articles

"Mere conduit" is a legal fiction in fraudulent transfer and other avoidance cases. This article argues that the legal fiction is misleading, unnecessary and rendered obsolete by the Supreme Court's recent opinion in Merit Management Group v. FTI Consulting, Inc. (2018). The article further contends that a huge majority of leading cases confound fraudulent transfer law with the law of corporate theft. This error leads to depriving financial intermediaries of their opportunity to avoid liability on the ground of being bona fide transferees for value. Finally, courts often mistake banks as initial transferees of fraudulent transfers (absolutely liable in spite …

Fall 2019

The Weldon Times

A student-run publication from the Schulich School of Law at Dalhousie University.

Editors in Chief: Justin Monahan, Anthony Buckland

Editor: Joel Tichinoff

Graphic Design & Layout: Alexandra Fox

Photography: Luke MacGillivray

Flor Freire V. Ecuador, Raymond Chavez

Loyola of Los Angeles International and Comparative Law Review

This case is about the discharge from duty of a Second Lieutenant of the Ecuadorian army who had been accused of engaging in homosexual conduct. The Court found violation of several articles of the American Convention. The violation of the prohibition of discrimination is the most significant one.

Israeli Exception-Alism: The Nation-State Law And Its Place In The Israeli Geopolitical Zeitgeist, Daniel Bral

Loyola of Los Angeles International and Comparative Law Review

Israel is no stranger to the scorn of the international community. In many respects, Israel is held to a different standard than other nations. In July 2018, that hypothesis was tested when Israel’s Knesset passed The Basic Law: Israel – The Nation State of the Jewish People. Though largely symbolic, the Law declares, inter alia, “[t]he exercise of the right to national self-determination in the State of Israel is unique to the Jewish People.” Critics lambasted the clause for allegedly violating international law by rejecting non-Jews’ right to exercise self-determination in the State of Israel. This note argues that the …

Net Neutrality And The European Union’S Copyright Directive For The Digital Single Market, Nathan Guzé

Loyola of Los Angeles International and Comparative Law Review

The European Union’s Copyright Directive for the Digital Single Market should cause concern for net neutrality advocates. This article casts a critical gaze at Article 17 (previously Article 13) of this new Directive. It chronicles the Directive’s life: starting as a reaction to the perceived inadequate copyright protections provided by the previous Information Society Copyright Directive through to its then-present status circa May 2019. Next, net neutrality is defined, and its benefits and detriments are weighed to ultimately determine the policy is desirable. Article 17’s call for eliminating safe-harbor provisions for content hosts and its call for content filters signal …

A Wall Runs Through It: Comparing Mexican And Californian Legal Regimes In The California Floristic Province, Joseph E. Farewell

Loyola of Los Angeles International and Comparative Law Review

Habitats are often divided by international borders, leaving ecosystems in varying states of protection, development, and danger. The California Floristic Province, which traverses the United States-Mexico border, is one such example. This border, which divides a once-continuous ecological region, not only represents an international crossing, but also a shift in legal, land, and conservation regimes. These differences reveal particular vulnerabilities for California Floristic Province habitat on the Mexican side of the border region, showing that the ecosystem is in danger because of rapid real estate development pressures and unfavorable environmental laws. Accordingly, this note recommends three main changes to Mexican …

Algorithmic Advertising Discrimination, Joseph Blass

Northwestern University Law Review

The ability of social media companies to precisely target advertisements to individual users based on those users’ characteristics is changing how job opportunities are advertised. Companies like Facebook use machine learning to place their ads, and machine learning systems present risks of discrimination, which current legal doctrines are not designed to deal with. This Note will explain why it is difficult to ensure such systems do not learn discriminatory functions and why it is hard to discern what they have learned as long as they appear to be performing well on their assigned task. This Note then shows how litigation …

حقوق المشتبه فیه في قانون الإجراءات الجزائية الاتحادي والقانون الإنجليزي (دراسة مقارنة), فیصل صالح محمد الخوري

Theses

تتناول ھذه الدراسة حقوق المشتبه فیه في مرحلة الاستدلال من خلال دراسة مقارنة بین قانون

الإجراءات الجزائية الإتحادي بالنظام الإنجليزي، وذلك بعرض سير الدعوى الجزائية فیھما،

وكفالة حقوق المشتبه فیه، وآلية ذلك في كلا النظامين، وبیان ما إذا استطعنا تحقيق الموازنة بین

الحقوق والحریات الفردیة وحق المجتمع بحفظ أمنه استقراره.

ولقد حاولتْ الدراسة الإجابة على ھذه الإشكالية من خلال تقسيم البحث إلى مبحث تمھیدي ھو:

ماھیة مرحلة الاستدلال وصول إلي ماھیة المشتبه فیه التطرق إلى معرفة ذلك لغة وفقھًا، ثم

تعریفھا في الاتفاقیات الدولة والتشريعات الأجنبية والعربية، أما الفصل الأول فيتناول حقوق

المشتبه فیه قبل وبعد تقیید حریته، والفصل الثاني …

Marshall As A Judge, Robert Post

Fordham Law Review

Marshall is a towering and inspirational figure in the history of American constitutional law. He changed American life forever and unquestionably for the better. But the contemporary significance of Marshall’s legacy is also, in ways that challenge present practices and beliefs, ambiguous.

Lawmakers As Job Buyers, Edward W. De Barbieri

Fordham Law Review

In 2013, Washington State authorized the largest state tax incentive for private industry in U.S. history. It is not remarkable for a state legislature to use tax benefits to retain a major employer—in this case, the global aerospace manufacturer Boeing. Laws across all states and thousands of cities routinely incentivize companies such as Amazon to relocate or remain in particular areas. Notably, however, Washington did not recover any of the subsidies it authorized despite Boeing’s significant post-incentive workforce reductions. This story leads to several important questions: (1) How effective are state and local legislatures at influencing business-location decisions?; (2) Do …

Regulating Habit-Forming Technology, Kyle Langvardt

Fordham Law Review

Tech developers, like slot machine designers, strive to maximize the user’s “time on device.” They do so by designing habit-forming products— products that draw consciously on the same behavioral design strategies that the casino industry pioneered. The predictable result is that most tech users spend more time on device than they would like, about five hours of phone time a day, while a substantial minority develop life-changing behavioral problems similar to problem gambling. Other countries have begun to regulate habit-forming tech, and American jurisdictions may soon follow suit. Several state legislatures today are considering bills to regulate “loot boxes,” a …

Third-Party Bankruptcy Releases: An Analysis Of Consent Through The Lenses Of Due Process And Contract Law, Dorothy Coco

Fordham Law Review

Bankruptcy courts disagree on the use of third-party releases in Chapter 11 bankruptcy plans, the different factors that circuit courts consider when deciding whether to approve a third-party release, and the impact of the various consent definitions on whether a release is or should be binding on the creditor. Affirmative consent, “deemed consent,” and silence are important elements in this discussion. Both contract law and due process provide lenses to evaluate consent definitions to determine whether nondebtor third-party releases should bind certain creditor groups. This Note proposes a solution that follows an affirmative consent approach to protect against due process …

Breaking Up The Focus On Relationships For Nonpecuniary Insider Trading Personal Benefits, Bradley Larkin

Fordham Law Review

In 1983, the U.S. Supreme Court adopted the “personal benefit” requirement as an objective test for insider trading to help determine when confidential information is tipped for an improper purpose. Under this test, a tipper acts improperly by receiving a personal benefit for sharing confidential, nonpublic information, even if the tipper does not trade using the information. For instance, when a tipper leaks confidential information to a trading friend or relative, the tipper benefits personally because this amounts to trading on the confidential information and then gifting the profits. The personal benefit requirement is applied differently among the circuits, however, …

Makeup Or Fakeup?: The Need To Regulate Counterfeit Cosmetics Through Improved Chinese Intellectual Property Enforcement, Jennifer Lei

Fordham Law Review

This Note examines whether new developments in intellectual property enforcement are able to fix the notorious counterfeiting issue in China, particularly with counterfeit cosmetics. Counterfeit cosmetics are a threat to public safety in the United States and globally, especially as the cosmetics industry continues to expand. There are two opposing views on whether China’s intellectual property regime—in light of the 2017 to 2019 developments—is able to address the issue. This Note proposes that even with recent developments, current laws and enforcement methods do not reduce counterfeit production. Instead, this Note argues that the Chinese government should use educational campaigns to …

Prosecuting Dark Net Drug Marketplace Operators Under The Federal Crack House Statute, Thomas J. Nugent

Fordham Law Review

Over 70,000 Americans died as the result of a drug overdose in 2017, a record year following a record year. Amidst this crisis, the popularity of drug marketplaces on what has been called the “dark net” has exploded. Illicit substances are sold freely on such marketplaces, and the anonymity these marketplaces provide has proved troublesome for law enforcement. Law enforcement has responded by taking down several of these marketplaces and prosecuting their creators, such as Ross Ulbricht of the former Silk Road. Prosecutors have typically leveled conspiracy charges against the operators of these marketplaces—in Ulbricht’s case, alleging a single drug …

Masthead, Volume 41 (2019-2020)

Cardozo Law Review

No abstract provided.

A Judge's Attempt At Sentencing Consistency After Booker: Judge Jack B. Weinstein's Guidelines For Sentencing, Carolin E. Guentert, Ryan H. Gerber

Cardozo Law Review

No abstract provided.

A Second Step Act For The States (And Counties, And Cities), John F. Pfaff

Cardozo Law Review

No abstract provided.

The First Step Is Actually The ‘Next Step’ After Fifteen Years Of Successful Reforms To The Federal Criminal Justice System, Jesselyn Mccurdy

Cardozo Law Review

No abstract provided.

A Judge’S Attempt At Sentencing Inconsistency After Booker: Judge (Ret.) Mark W. Bennett’S Guidelines For Sentencing, Mark W. Bennett

Cardozo Law Review

No abstract provided.

When Deprivation Of Access To Literacy Infringes On Indigent Parents' Right To Direct The Education Of Their Children, Dana Leone Kennedy

Cardozo Law Review

No abstract provided.

The Right To Appointed Counsel: The Case For Unaccompanied Immigrant Children, Amanda Kavita Sewanan

Cardozo Law Review

No abstract provided.

Regulating The Internet Of Things: Discrimination, Privacy, And Cybersecurity In The Artificial Intelligence Age, Charlotte A. Tschider

Denver Law Review

No abstract provided.

Defining A State-Owned Enterprise In International Investment Agreements, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

The objective of this article is to establish a unified conceptual framework for State-owned enterprises in international investment law. I hope to furnish drafters and negotiators with the tools to define such enterprises in accordance with their policy concerns. The central thesis is that five definitional criteria must be considered: (i) separate legal personality; (ii) extent and form of control; (iii) eligible governmental units; (iv) nature of activity; and (v) purpose of activity. While variations within each criterion can reflect the policy choices of contracting parties, failure to adequately delimit the boundaries of all five will confer discretion on arbitrators …

The Statutory Interpretation Muddle, Richard H. Fallon, Jr.

Northwestern University Law Review

Debates about statutory interpretation typically proceed on the assumption that statutes have linguistic meanings that we can identify in the same way that we identify the meaning of utterances in ordinary conversation. But that premise is false. We identify the meaning of conversational utterances largely based on inferences about what the speaker intended to communicate. With legislatures, as now is widely recognized, there is no unitary speaker with the sort of communicative intentions that speakers in ordinary conversation possess. One might expect this recognition to trigger abandonment of the model of conversational interpretation as a framework for interpreting statutes. Instead, …

Reconstituting We The People: Frederick Douglass And Jürgen Habermas In Conversation, Paul Gowder

Northwestern University Law Review

This Article draws on Black American intellectual history to offer an approach to fundamental questions of constitutional theory from the standpoint of the politically excluded.

Democratic constitutional theory is vexed by a series of well-known challenges rooted in the inability to justify law without democracy (“the countermajoritarian difficulty”) and the inability to justify any particular composition of the popular demos without law (“the problem of constituent power”). Under conditions of genuine egalitarian political inclusion, a constitutional conception of popular sovereignty derived primarily from the civic republican constitutional patriotism associated with Jürgen Habermas and others can resolve these challenges by providing …

This Isn't Lochner, It's The First Amendment: Reorienting The Right To Contract And Commercial Speech, William French

Northwestern University Law Review

The commercial speech doctrine has long weathered accusations that it is simply an attempt to reinvigorate the laissez-faire protections provided by Lochner v. New York. The modern interpretation of Lochner is generally condemnatory, arguing that its “right to contract” is a symbol of the Supreme Court’s unprincipled decision to impose its own economic preferences upon the nation. Even though Lochnerism itself has been dead for nearly 100 years, some scholars believe that the First Amendment’s commercial speech doctrine is on its way to replicating the defenses provided by the right to contract. The argument goes that because speech pervades …

Accredited Investors: A Need For Increased Protection In Private Offerings, Christopher R. Zimmerman

Northwestern University Law Review

On June 19, 2019, the SEC released a report examining, in part, the adequacy of the accredited investor definition contained within Regulation D of the Securities Act of 1933 and soliciting public comment on potential changes to that definition. This Note argues that the current accredited investor definition, which determines who may invest in a private offering, does not adequately protect retail investors. Implemented in 1982 with fixed wealth requirements to qualify, the accredited investor definition has never been significantly revised, despite four decades of inflation that dramatically increased the percentage of households who meet the qualifications of an “accredited …

Truth, Lies, And Copyright, Cathay Y. N. Smith

Faculty Law Review Articles

Fake news may be trending right now, but fake news is not the only source of fake facts that we consume. We encounter fake facts every day in the historical or biographical books we read, the movies we watch, the maps we study, the tele-phone directories and dictionaries we reference, and the religious or spiritual guides we consult. While it is well-established that copyright does not protect facts because facts are discovered rather than created, fake facts are created and can often be as original and creative as fiction.

This Article is the first to offer a comprehensive analysis of …

Indiana University's Storied Past, Austen L. Parrish

Articles by Maurer Faculty

Indiana University celebrates its bicentennial this year, and the excitement is building on the Bloomington campus. Although the Maurer School of Law is a few years younger – we were founded in 1842 – we are joining the festivities with a yearlong list of events that honor our past and look toward the future. . .