Law Commons^™

Rethinking The Efficiency Of The Common Law, D. Daniel Sokol

Notre Dame Law Review

This Article shows how Posner and other scholars who claimed that common law was efficient misunderstood the structure of common law. If common law was more efficient, there would have been a noticeable push across most, if not all, doctrines to greater efficiency. This has not been the case. Rather, common law, better recast as a “platform,” could, under a certain set of parameters, lead to efficient outcomes. Next, the Article’s analysis suggests that while not every judge thinks about efficiency in decisionmaking, there must be some architectural or governance feature pushing in the direction of efficiency—which exists in some …

De Facto State: Social Media Networks And The First Amendment, Paul Domer

Notre Dame Law Review

In Marsh v. Alabama, a Jehovah’s Witness was arrested and convicted of trespassing for proselytizing on a public sidewalk that nonetheless was, like everything else in the “company town,” privately owned. The Court reversed, holding that the First and Fourteenth Amendments applied against a private actor if it exercised all the powers and responsibilities traditionally associated with a government—policing, utilities, and traffic control, for example. Writing for the majority, Justice Black declared, “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the …

Combating Judicial Misconduct: A Stoic Approach, Michael D. Cicchini

Buffalo Law Review

Judicial ethics rules require criminal court judges to be competent, even-tempered, and impartial. In reality, however, many judges are grossly ignorant of the law, incredibly hostile toward the defense, and outright biased in favor of the state. Such acts of judicial misconduct pose serious problems for the criminal defense lawyer and violate many of the defendant’s statutory and constitutional rights.

This Article presents a framework for the defense lawyer to use in combating judicial misconduct. The approach is rooted in a principle of Stoic philosophy called “negative visualization.” That is, the lawyer should anticipate and visualize judicial incompetence, hostility, and …

Platform Pleading: Analyzing Employment Disputes In The Technology Sector, Joseph A. Seiner

Washington Law Review

The technology sector has created thousands of new jobs for workers across the country in an emerging multi-billion dollar industry. Many companies in this platform-based sector are attempting to characterize their workers as independent contractors rather than employees, thus stripping them of both federal and state workplace protections—including the right to bargain collectively, receive fair compensation, and avoid discrimination. The federal courts, which have always grappled with the question of worker classification, are now struggling to define employment with respect to these gig sector jobs. The result has been scattered court decisions with inconsistent and conflicting analyses. This Essay seeks …

The Failings Of Title Ix For Survivors Of Sexual Violence: Utilizing Restorative Justice On College Campuses, Katie Vail

Washington Law Review

Universities should adopt restorative justice practices to serve the legal and personal needs of student survivors of sexual violence. Title IX prohibits discrimination on the basis of sex in education programs and activities operated by recipients of federal financial assistance. Since 1997, the Department of Education’s Office for Civil Rights has issued “Dear Colleague Letters” to federally funded institutions to assist with Title IX compliance and implement procedures for complaints of sexual violence. In 2011, Assistant Secretary for Civil Rights Russlyn Ali under the Obama administration issued a Dear Colleague Letter, which expanded protections for survivors. However, it prohibited the …

The Promise And Peril Of Using Disability Law As A Tool For School Reform, Claire Raj

Washington Law Review

Advocates have recently devised a radical litigation approach to force broad systemic changes in public schools using the most unlikely of tools: disability law. If they succeed, disability law stands to eclipse any other cause of action as the most effective means of school reform. This novel approach relies on groundbreaking research demonstrating a correlation between Adverse Childhood Experiences (ACEs) that children encounter outside school and the learning challenges they face in school. Focusing on this link, advocates claim that children from impoverished and crime-ridden neighborhoods, by virtue of where they live, have disabilities that entitle them to system-wide school …

Clarifying Vagueness: Rethinking The Supreme Court’S Vagueness Doctrine, Emily M. Snoddon

University of Chicago Law Review

For over a hundred years, the Supreme Court has struggled to articulate a coherent test for analyzing constitutional challenges based on vagueness. The current formulation of the vagueness test is rooted in due process principles and calls for invalidation of laws when they either (1) fail to “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden” by the law, or (2) encourage “arbitrary arrests and convictions.” Certain aspects of this test suggest that the separation of powers is relevant to the analysis. Nevertheless, it is currently unclear what role this constitutional protection plays.

Recent Supreme …

A Path Towards Arctic Presence: Stricter Regulation As The First Step In Free Navigation, Luke A. Sanders

UC Law Journal

The Arctic ice cap is melting. As the ice recedes, shipping lanes are opening that present shorter transport routes across the top of the globe. Industry analysts predict an Arctic shipping boom in coming years. In response, the International Maritime Organization (IMO) implemented a Polar Code (the “Polar Code” or the “Code”) to place heightened environmental and safety requirements on ships traversing the Arctic and Antarctic regions. These rules are binding on the United States, and the U.S. Coast Guard published the rulemaking for Polar Ship requirements. However, the rules have multiple shortcomings and loopholes. At the IMO, conversations have …

The Efficacy, Limitations, And Continued Need For Authorizations For Use Of Military Force, Waseem Ahmad Qureshi

San Diego International Law Journal

In the fight against ISIS, the U.S. has conducted airstrikes, deployed forces, supported rebellions, trained nonstate actors, and used military funds in Iraq and Syria. This fight has raised questions regarding the validity of U.S. authority to use force against ISIS. Imperialists, comprising the U.S. president and a few congressmen, seek to fight ISIS and believe that the authority to use force against ISIS comes from the independent presidential executive powers and Authorizations for Use of Military Force (AUMFs) in 2001 and 2002. Contrary to their legal conviction and justifications, imperialists are seeking a new AUMF from Congress to be …

Don’T Google It: The European Union’S Antitrust Parade (“Enforcement”) Against America’S Tech Giants, Mariah Witt

San Diego International Law Journal

This Article details several case studies, each exemplifying the EU’s pro- competition practices versus the American monopoly-like corporations of Google, Microsoft, and Amazon. The EU claims that each of these companies have abused their dominant position in their respective markets. Many companies (including those not listed in this comment) that have faced the EU’s antitrust wrath are merely the successful giants of their field, who should be enjoying their success, not sitting in fear of success’s implications in the global arena. This comment will conclude with a warning to future American corporations on the path to monopoly-like power and status …

Corporate Governance And Institutional Investors: Proxy Voting Behavior After The Stewardship Code (コーポレートガバナンスと機関投資家―スチュワードシップコード改訂後の議決権行使の状況について), Mari Yamauchi, Toru Yoshikawa

Research Collection Lee Kong Chian School Of Business

本稿では，日本版スチュワードシップコードの改訂により始まった機関投資家 による議決権行使の結果について，投資家のタイプごとに分析し，どのような投 資家がどのような会社提案議案についてより多くの反対票を投じているかについ て検討した。先行研究に従えば，資産運用会社のように投資先企業とアームズレ ングスの関係を持つ投資家は，保険会社のように投資先企業とビジネス上の関係 を持つ投資家と比較すると，会社側提案に対して異議を唱える可能性が高いとさ れる。また，株式持ち合いなど日本的背景を考慮すると，日本においては，外資 系投資家の方が国内の投資家に比べて，会社提案に対して反対票を投じる可能性 が高いことも予想される。2018年度の議決権行使の結果を分析したところ，ほぼ 先行研究と同じ結果が得られ，業種で分類した場合，資産運用会社の方が生損保 のような保険会社より反対票の比率が高いこと，資本国籍で分類すると，外資投 資家の方が買収防衛策の導入や退任役員への退職慰労金の支給など特定の項目に ついて，日系の投資家に比べて反対率が高いことが確認された。

Condominium Government And The Right To Live In The City, Douglas C. Harris

All Faculty Publications

Condominium is an architecture of land ownership that produces separate, privately owned units within multi-unit developments. Condominium also constructs a form of private, democratic government, described as a fourth order of government, that acts beneath federal and provincial governments, and alongside municipal government, to govern owners and their property. This article considers a conflict between residential-unit owners and a commercial-unit owner within a condominium development in Vancouver’s Downtown Eastside. Drawing from material produced in litigation, the article situates the dispute within its property and urban contexts to argue that condominium government requires attention, and not just for its impact on …

How Countries Seek To Strengthen Anti-Money Laundering Laws In Response To The Panama Papers, And The Ethical Implications Of Incentivizing Whistleblowers, Carmina Franchesca S. Del Mundo

Northwestern Journal of International Law & Business

The Panama Papers is currently the world’s largest whistleblower case that involved 11.5 million leaked documents and over 214,000 offshore entities. It all linked back to one Panamanian law firm, Mossack Fonseca. In 2016, over 400 investigative journalists collaboratively and simultaneously published stories that exposed the money laundering and tax-evading schemes committed by the rich and powerful. This included political figures and heads of states, celebrities, sports figures, criminal organizations, and terrorist groups.

This article aims to dissect the innerworkings of Mossack Fonseca’s asset-shielding strategy and investigate how the Panamanian law firm was able to circumvent the tax and anti-money …

Corporate Social Responsibility Versus Shareholder Value Maximization: Through The Lens Of Hard And Soft Law, Min Yan

Northwestern Journal of International Law & Business

Even with a significant increase in the number of firms around the world engaging in corporate social responsibility (“CSR”), many people still perceive CSR as a voluntary commitment and shareholder value maximization (“SVM”) as a mandatory requirement. This paper borrows the concept of hard law and soft law in terms of coerciveness and overturns the stereotype that SVM is a hard-law constraint and CSR a soft-law constraint. The paper first demonstrates that directors of the board are not obliged to maximize shareholder value even in the Anglo-American jurisdictions where shareholder primacy culture is more dominant. Next, the paper critically discusses …

Western Corporate Fiscal Citizenship In The 21st Century, Alex Freund

Northwestern Journal of International Law & Business

For the Western world, the challenges of the 21st Century are numerous, from climate change’s effects on food production and coastal cities to underfunded social safety nets to automation’s impact on the middle class. To handle such costly problems, government intervention will be required. Government intervention, however, always comes at a cost to either individuals or corporations. To determine who should bear these costs, scholars and experts should turn to notions of fiscal citizenship – the social contract between the state and private parties through taxation and the provision of goods and services. By applying principles of individual fiscal citizenship …

Front Matter

Journal of International Business and Law

No abstract provided.

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

Front Matter

ACTEC Law Journal

No abstract provided.

Re-Considering Undue Influence In The Digital Era, Jodie Distler

ACTEC Law Journal

No abstract provided.

Decision And Persuasion: Re-Conceiving The Role Of The Planner Where Undue Influence Is Suspected, James C. Milton, Katheleen R. Guzman

ACTEC Law Journal

No abstract provided.

Making Directed Trusts Work: The Uniform Directed Trust Act, John D. Morley, Robert H. Sitkoff

ACTEC Law Journal

Directed trusts have become a familiar feature of trust practice in spite of considerable legal uncertainty about them. Fortunately, the Uniform Law Commission has just finished work on the Uniform Directed Trust Act (UDTA), a new uniform law that offers clear solutions to the many legal uncertainties surrounding directed trusts. This article offers an overview of the UDTA, with particular emphasis on four areas of practical innovation. The first is a careful allocation of fiduciary duties. The UDTA’s basic approach is to take the law of trusteeship and attach it to whichever person holds the powers of trusteeship, even if …

A New Age Of Evolution: Protecting The Consumer’S Moral And Legal Right To Know Through The Clear And Transparent Labeling Of All Genetically Modified Foods, Halie M. Evans

Journal of Law and Health

The United States government, until recently, did not require the labeling of genetically modified organisms (GMOs). On July 29, 2016, President Barack Obama signed into law the National Bioengineered Food Disclosure Standard (NBFDS). This law directs the United States Department of Agriculture (USDA) to create regulations that require manufacturers to disclose certain bioengineered products on food labels. On December 20, 2018, the USDA released the final regulations for the NBFDS, which requires food manufactures, importers, and certain retailers to ensure bioengineered foods are appropriately disclosed. The final regulations include provisions that will leave the majority of GMO derived foods unlabeled. …

Parens Patriae And Parental Rights: When Should The State Override Parental Medical Decisions?, Elchanan G. Stern

Journal of Law and Health

Alfie Evans was a terminally ill British child whose parents, clinging to hope, were desperately trying to save his life. Hospital authorities disagreed and petitioned the court to enjoin the parents from removing him and taking him elsewhere for treatment. The court stepped in and compelled the hospital to discontinue life support and claimed that further treatment was not in the child’s best interest. This note discusses the heartbreaking stories of Alfie and two other children whose parents’ medical decisions on their behalf were overridden by the court. It argues that courts should never decide that death is in a …

Sexual Assault By Federal Actors, #Metoo, And Civil Rights, Julie Goldscheid

Washington Law Review

Calls for accountability for gender violence have permeated public discourse in the aftermath of the #MeToo movement. While much attention has focused on high profile individuals accused of harassment, less attention has been paid to sexual assaults of more vulnerable and marginalized people, including low wage workers, lesbian, gay, bisexual, transgender and gender non-conforming people, and immigrants. In addition, at the same time that calls for accountability have targeted Hollywood, employers, universities, and even the Catholic church, relatively little outcry has focused on the longstanding and under-recognized problem of sexual assaults by government actors. This Article focuses on sexual assault …

Addiction-Informed Immigration Reform, Rebecca Sharpless

Washington Law Review

Immigration law fails to align with the contemporary understanding of substance addiction as a medical condition. The Immigration and Nationality Act regards noncitizens who suffer from drug or alcohol substance use disorder as immoral and undesirable. Addiction is a ground of exclusion and deportation and can prevent the finding of “good moral character” needed for certain immigration applications. Substance use disorder can lead to criminal behavior that lands noncitizens, including lawful permanent residents, in removal proceedings with no defense. The time has come for immigration law to catch up to today’s understanding of addiction. The damage done by failing to …

Piecing Together Precedent: Fragmented Decisions From The Washington State Supreme Court, Rachael Clark

Washington Law Review

For decades, countless jurisdictions have grappled with the ambiguous precedential weight of court decisions that lack a majority opinion. In American jurisprudence, applying a “majority,” “lead,” “concurrence,” or “dissent” label to an appellate court opinion indicates agreement or disagreement with the judgment of the case. When a decision is fragmented (that is, there is no majority opinion), courts often express the judgment of the court with one opinion labeled as the “plurality” or “lead” opinion. Traditionally, labeling an opinion as a “lead opinion” indicates that the reasoning expressed within the opinion has more support than the other opinions written for …

A Proposal To Improve Washington's Rules On Ex Parte Contact, Connor Rowinski

Washington Law Review

Privilege doctrines play an important role in allowing clients to confide in their trusted attorneys and doctors. The intersection of two privilege doctrines in medical malpractice litigation—physician-patient privilege and attorney-client privilege—places physicians working at corporate hospitals in a catch-22 of allegiances. On one hand, physicians cannot disclose patient information, whereas on the other, they must assist their employer in defending the case. These concerns are heightened when attorneys seek to communicate with non-party physicians ex parte—that is, unsupervised. In Youngs v. Peacehealth, the Washington State Supreme Court allowed corporate defendants to communicate ex parte with the plaintiff’s treating physician under …

Between You, Me, And Alexa: On The Legality Of Virtual Assistant Devices In Two-Party Consent States, Ria Kuruvilla

Washington Law Review

When an Amazon Echo is activated, the device is constantly recording and sending those recordings to Amazon’s cloud. For an always recording device such as the Echo, getting consent from every person subject to a recording proves difficult. An Echo-owner consents to the recordings when they purchase and register the device, but when does a guest in an Echo-owner’s home consent to being recorded? This Comment uses Amazon’s Echo and Washington’s privacy statute to illustrate the tension between speech-activated devices and two-party consent laws—which require that all parties subject to a recording consent to being recorded. This Comment argues that …

Updating The Building Code To Include Indoor Farming Operations, Clint Simpson

Journal of Food Law & Policy

Urban agricultural production has grown to be a critical tool in the battles for food security and sustainability. A common regulatory barrier to urban agricultural operations big and small has been ambiguity in land-use laws. Local governments are increasingly friendly toward community gardens, small greenhouse farming operations, farmers markets, and the like. Many have sought to lift regulatory restrictions and provide clarity in the law. However, while these efforts benefit a multitude of local food production efforts, they do little to address the regulatory ambiguities faced by commercial-scale, indoor farming operations, especially vertical farms. Particularly concerning to indoor vertical farms …

Avoiding Market Definition Under Section 1 Of The Sherman Act, Johnny Shaw

Fordham Law Review

The 2018 U.S. Supreme Court decision in Ohio v. American Express Co. was at odds with a trend among antitrust commentators and enforcement authorities away from dependence on formal market definition as part of plaintiffs’ burden of proof. Reliance on market definition as a dispositive issue has been ubiquitous in antitrust cases, but the costs from errors, inefficiency, and uncertainty inherent in that approach are glaring. The issue is ripe for clarification, and this Note suggests a new rule to that end. The proposed rule aims to delineate a set of cases in which formal market definition can confidently be …