Law Commons^™

The Rise Of Nationalism In International Finance: The Perennial Lure Of Populism In International Financial Relations, Federico Lupo-Pasini

Duke Journal of Comparative & International Law

Populism and nationalism are key drivers of current international economic relations, affecting almost all aspects of foreign economic policy. After almost four decades of cooperation in international financial relations, recent events suggest that we are now potentially entering a new phase of progressive disengagement. This new era would be dominated by the explicit need to safeguard domestic interests, in which regulatory barriers to cross-border finance will be more pronounced and curtailing the expansion of global financial markets will no longer be considered a policy taboo. This Article presents a brief history of financial nationalism and discusses some of its more …

Oligarchs, Foreign Powers, And The Oppressed Minority: Regulating Corporate Control In Latin America, Carlos Berdejó

Duke Journal of Comparative & International Law

Corporate law and governance scholarship have traditionally focused on understanding the agency costs that result from unresolved conflicts of interest between shareholders and management. This agency problem becomes trivial when corporate ownership is concentrated, as is the case in many countries outside the United States. In this context, the more pressing agency problem results from conflicts of interest between minority shareholders and controlling shareholders seeking to divert resources at the expense of the former.

When ownership is concentrated, legal rules must seek to protect minority shareholders from controlling shareholders, rather than shareholders from managers. In many countries, minority shareholders are …

It’S Not The Robot’S Fault! Russian And American Perspectives On Responsibility For Robot Harms, Bryant Walker Smith, Andrey Neznamov

Duke Journal of Comparative & International Law

As automated vehicles, personal robots, and other cyberphysical systems enter our world, law must confront important questions about civil liability for harms caused by these systems. Two legal scholars—one from Russia and one from the United States—come together to tackle these questions with an integrated approach that draws on the law of both countries.

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Sail We Must: Why Icsid Proceedings Should Not Lie At Anchor For Arbitrator Challenges, Natalie Pita

Duke Journal of Comparative & International Law

This Article shows that the International Centre for Settlement of Investment Disputes’ (ICSID) current rules for arbitration, which automatically suspend the arbitration proceeds, are direct contributors to the high costs and long proceedings in ICSID. The Articles also argues that failing to eliminate the automatic suspension of proceedings is simply putting off a change that will inevitably need to be made. Following complaints that investment arbitrations were too costly and too lengthy, ICSID finally began addressing the issue of arbitrator disqualifications by initiating a round of amendments in October 2016. ICSID has proposed two different remedies to this problem, which …

Call It What It Is: Genocide Through Male Rape And Sexual Violence In The Former Yugoslavia And Rwanda, Claire Bradford Di Caro

Duke Journal of Comparative & International Law

Genocide and its various iterations have repeatedly been contextualized in narratives assuming that victims are female. Part of this is due to the irrefutable data that shows the overwhelming number of victims are female. The United Nations 1948 treaty known as the Convention on the Prevention and Punishment of the Crime of Genocide provided for a definition for genocide that purposefully included other forms of genocide, particularly genocidal rape and sexual violence. Yet the two most comprehensive genocidal tribunals, the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), refrained from charging criminals with genocide …

Kim Hayes And Nancy Hayes, Appellants V. Intermountain Geoenvironmental Services, Inc. : Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

APPEAL FROM THE UTAH COURT OF APPEALS

ANNA NELSON MORGAN, MINNOCK, RICE & MINER,L.C. Attorneys for Appellee Cameron B. Diehl ( 13197) UTAH LEAGUE OF CITIES AND TOWNS Attorney for Amicus Curiae Gary R. Crane (5054) Steven L. Garside (4323) J. Mason Kjar (14227) LAYTON CITY ATTORNEY Attorney for Amicus Curiae Paul D. Dodd WEST JORDAN CITY Attorney for Amicus Curiae

DAMIAN C. SMITH TECHLA W VENTURES, PLLC 3290 W. MAYFLOWER WAYLEHI, UTAH 84043 Attorneys for Appellants

Dog Whistles And Discriminatory Intent: Proving Intent Through Campaign Speech In Voting Rights Litigation, Nabiha Aziz

Duke Law Journal

Politicians are increasingly employing dog whistles in campaign speech to appeal to a divided electorate. Simultaneously, states continue to pass legislation restricting minority access to the ballot box. Litigants attempting to challenge new vote denial laws are left with only one tool—Section 3 of the Voting Rights Act—which requires the difficult task of demonstrating that the jurisdiction violated the Fourteenth Amendment. Despite the frequency of dog whistles, courts have declined to use campaign rhetoric as evidence of discriminatory intent in Fourteenth Amendment challenges.

This Note argues that, to ease the nearly insurmountable burden of proving discriminatory intent in voting rights …

Understanding The (Ir)Relevance Of Shareholder Votes On M&A Deals, James D. Cox, Tomas J. Mondino, Randall S. Thomas

Duke Law Journal

Has corporate law and its bundles of fiduciary obligations become irrelevant? Over the last thirty years, the American public corporation has undergone a profound metamorphosis, transforming itself from a business with dispersed ownership to one whose ownership is highly concentrated in the hands of sophisticated financial institutions. Corporate law has not been immutable to these changes. Current doctrine now accords to a shareholder vote two effects: first, the vote satisfies a statutory mandate that shareholders approve a deal, and second and significantly, the vote insulates the transaction and its actors from any claim of misconduct incident to the approved transaction. …

Whose Forum Is It Anyway: Individual Government Officials And Their Authority To Create Public Forums On Social Media, Joseph A. D’Antonio

Duke Law Journal

Modern technology and the internet have radically transformed the ways in which individuals interact and communicate. At the forefront of this digital-speech movement are social media sites like Twitter and Facebook, which the Supreme Court has identified as among “the most important places . . . for the exchange of views” in our modern culture. But these platforms are not just for private citizens; government officials also use social media sites as a way to connect with their constituents. However, First Amendment questions have arisen as these officials have sought to regulate their pages by “blocking” individual users. To date, …

Journal Staff

Duke Law Journal

No abstract provided.

How The States Can Fix Sell: Forced Medication Of Mentally Ill Criminal Defendants In State Courts, Nick Katz

Duke Law Journal

In Sell v. United States , the Supreme Court announced a constitutional standard permitting involuntary medication of mentally ill criminal defendants to render them competent to stand trial. Lower federal courts have struggled to apply the Court’s balancing test, reading the same Sell language to impose different requirements.

While much ink has been spilled debating whether the Sell standard is sufficiently rights-protective, less attention has been devoted to the state court implementations of Sell . But because many more criminal prosecutions take place in state court than in federal court, it stands to reason that significantly more Sell requests should …

The Internet Of Torts: Expanding Civil Liability Standards To Address Corporate Remote Interference, Rebecca Crootof

Duke Law Journal

Thanks to the proliferation of internet-connected devices that constitute the “Internet of Things” (“IoT”), companies can now remotely and automatically alter or deactivate household items. In addition to empowering industry at the expense of individuals, this remote interference can cause property damage and bodily injury when an otherwise operational car, alarm system, or implanted medical device abruptly ceases to function.

Even as the potential for harm escalates, contract and tort law work in tandem to shield IoT companies from liability. Exculpatory clauses limit civil remedies, IoT devices’ bundled object/service nature thwarts implied warranty claims, and contractual notice of remote interference …

Reconsidering Nondemocratic Political Regimes, Richard Arneson

San Diego Law Review

Asking what the best feasible political governance system for a country at a time is admits of different interpretations, depending on the gloss we are placing on “feasible.” We might be thinking of the best feasible system as the best system that could be installed, in present circumstances, if a set of people sufficient to bring about the shift could be convinced to team up to effect it. A more restricted feasibility question would be posed if we asked instead, taking for granted the actual beliefs and attitudes and their entrenchment in the present members of society now, what is …

Preview—Atlantic Richfield Company V. Christian: The Intersection Of Superfund And State-Law Restoration Claims, Emily M. Mcculloch

Public Land & Resources Law Review

The Supreme Court of the United States will hear oral arguments in this matter on Tuesday, December 3, 2019, at 11:00 a.m. in the Supreme Court Building in Washington, D.C. Lisa S. Blatt will likely appear for the Petitioner. Joseph R. Palmore will likely appear for the Respondents. Solicitor General Noel J. Francisco will likely argue on behalf of the United States.

June Medical Services L.L.C. V. Gee: Brief For Constitutional Law Scholars Ashutosh Bhagwat, Lee C. Bollinger, Erwin Chemerinsky, Michael C. Dorf, Daniel Farber, Joanna L. Grossman, Pamela S. Karlan, Leah Litman, Martha Minow, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David A. Strauss, Laurence H. Tribe, And Mary Ziegler As Amici Curiae Supporting Petitioners, Leah Litman

Appellate Briefs

Amici are constitutional law scholars who teach and write in the field of constitutional law, including as it relates to regulation of abortion, and who have a shared interest in identifying the proper standards of review. This brief sets forth Amici's considered understanding of the framework governing abortion regulation, as established by the decisions of this Court, and how to preserve the undue burden test as established in this Court's precedents over the last two decades. It also explains why the decision below, if permitted to stand, would threaten the uniformity and supremacy of federal law.

Louisiana's Act 620 requires …

Brief Of Amici Curiae National Health Law Program And National Network Of Abortion Funds, Yvonne F. Lindgren

Faculty Works

No abstract provided.

Legal Realism And Legal Doctrine, Dan Priel

All Papers

Legal realism is widely perceived to be hostile to legal doctrine. In the familiar narrative, the realists showed that legal doctrine does not, and cannot, constrain judges from using existing legal materials to reach virtually any outcome they want. As such, doctrine only serves to hides and obfuscate what is better discussed openly. The purpose of this essay is to complicate this familiar story. I focus on one contemporary take on legal realism that argues that an open discussion of values will give the law greater determinacy. I counter this view, first, by showing that it does not, in fact, …

State Of Utah, Plaintiff And, Appellee V. Gregory Higley, Defendant And, Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

State's Opposition to Defendant 's Motion for 23B Remand

CHARLOTTE HOWARD (15727) Deputy Utah County Attorney DAVID O. L EAVITT (6990) Utah County Attorney' s Office Attorneys for Plaintiff/Appellee

Devany Hall V. Matthew Oullette, Frank Pommersheim

Tribal Court Opinions Authored by Emeritus Professor of Law Frank Pommersheim

No abstract provided.

Week Of December 2, 2019 - December 6, 2019, Benjamin N. Cardozo School Of Law

Today at Cardozo 2019

Events occurring this week have been sponsored by:

• Cardozo Law Review
• Cardozo Minority Law Student Association (MLSA)
• Cardozo Office of Student Services & Advising
• Innocence Project Clinic

Richard Rousseau V. Ronald And Michael Rousseau, Frank Pommersheim

Tribal Court Opinions Authored by Emeritus Professor of Law Frank Pommersheim

No abstract provided.

Law School News: Among The Trailblazers 12/02/2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Washington’S 'Cutting-Edge' Solution To Combat Sales Tax Fraud, Richard Thompson Ainsworth, Robert Chicoine, Andrew Leahey, Sunder Gee

Faculty Scholarship

Globally, consumption tax compliance (value added tax and retail sales tax) has gone digital – digital invoices are becoming mandatory, centralized monitoring of transactions and tax payments are increasingly common, and artificial intelligence is assessing fraud risks in real-time. When tax is collected, it is increasingly being remitted in near-real-time. This is the trajectory for the modern retail sales tax (RST) imposed by most states in the US. While this may appear to be revolutionary to the average American, it is a well-worn path among global nations using the value added tax (VAT). The RST will eventually be following suit. …

A Churchillian And Benthamite Defense Of Democracy, James Allan

San Diego Law Review

In this Article, I am going to defend democracy against those Cassandras who are pessimistic, even in a comparative sense, about its capabilities and worth. I expect that many of those pessimists about democracy will think me something of a Pollyanna, all too inclined to see the world through rose-colored spectacles that transmogrify what the Cassandras perceive as the three-quarters empty glass into what I claim is a three-quarters full one. So, let me be blunt right from the start. Mine will be a least-bad or Churchillian defense of democracy, one that readily concedes that democratic decision-making has its flaws …

Mmu: 12/02/19–12/08/19, Student Bar Association

Monday Morning Update

This Week @ NDLS

• Christmas Tree Decorating
• Daily Commons Menu Specials
• SBA Store Hours
• Daily Mass Schedule
• ND Glee Club Caroling
• Championship Week--PAC12, SEC, Big 10, Big 12, and ACC
• Next Week: Dog Dayz of Finals

General Announcements

• LVCY Angel Tree
• Health & Wellness Center
• Legal Writing Center
• Volunteer Opportunity at Green Bridge Growers
• Notice to student visitors to Sinai Synagogue
• Mock Trial Coaches Wanted
• Advertise Law School Events on the Law Library e-board

A Little Lagniappe (In Louisiana it means "a little something extra".)

• Marge's Message
• Sport Report
• Professor Spotlight–no one this week
• 1L of the Week–study hard and …

The Special Norms Thesis: Why Congress's Constitutional Decision-Making Should Be Disciplined By More Than The Usual Norms Of Politics, Mark Rosen

All Faculty Scholarship

No abstract provided.

After Janus, Martin Malin, Catherine Fisk

All Faculty Scholarship

The Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31 upended public sector labor law by finding a novel First Amendment right of public employees to refuse to pay union fees and declaring unconstitutional scores of laws and thousands of labor contracts. This Article assesses the constraints on public sector labor law post-Janus, examines the variety of legislative responses, and proposes a path forward.Janus makes it difficult to address the collective action problem facing all large groups. Although it is in the interest of every member of a group to engage in collective action …

The Torch (December 2019), Crtp

Torch: The Civil Rights Team Project Newsletter

Civic and Community Engagement | Civil Rights and Discrimination | Education | Gender and Sexuality | Inequality and Stratification | Politics and Social Change | Public Policy | Race and Ethnicity

Affordable Renewables - Unjust And Unreasonable?, Grace Brosofsky

Cornell Law Review

The Federal Energy Regulatory Commission (FERC)-an independent agency tasked with ensuring 'just and reasonable" energy rates-has begun to use energy market payment systems to prop up fossil fuels. FERC has issued orders that prevent renewables from competing with fossil fuels by forcing renewables to bid into energy markets at artificially high rates. FERC has argued that state clean energy subsidies distort energy markets by "suppressing prices" and pushing "needed" fossil fuel generators out of the market. According to FERC, a federal intervention is necessary to protect "market integrity" and ensure that consumers can access reliable electricity.

This Note argues that …