Law Commons^™

The Transnational Mining Justice Social Movement: Indigenous Right To Consultation & Right To Remedy Law Reform Activism In Canada And Latin America From 1999-2019, Charis Kamphuis

PhD Dissertations

This portfolio dissertation studies the activism of the transnational mining justice social movement in Canada and Latin America from the late 1990s to 2019. It focuses on two of the movements most significant human rights projects in that period: Indigenous right to consultation in Latin American (company host states), and the right to remedy in Canada (company home state). Chapter One undertakes an in-depth study of the Peruvian Campesino Community San Andres de Negritos long battle in search of a legal remedy for its dispossession in favor of Yanacocha Mine in the early 1990s. The Communitys turn to the law …

Liquid Laws: Extractivism And Unstable Authority, Caitlin Rose Sargeant Murphy

LLM Theses

This thesis concerns the co-constitution of extractivism and claims to authority, particularly in contexts where the legal narrative hides the ways that extractivism is facilitated. I examine how law implicitly structures extractivism, as well as how states use extractivism to generate authority. I look at this relationship in the context of international legal debates over the Antarctic Treaty, and a history of extractive interventions by the settler colonial state towards the Murray-Darling River Basin in south-eastern Australia. The way I read claims to authority engages both the violence and instability of these claims. The specific ways in which the relationship …

Distinguishing Permissible Preemption From Unconstitutional Commandeering, Edward A. Hartnett

Notre Dame Law Review

For years, the preemption doctrine and the anticommandeering doctrine lived in an uneasy tension, with each threatening to consume the other. On the one hand, preemption permits Congress to insist that state law give way to congressional demands. On the other hand, the anticommandeering doctrine prohibits Congress from commandeering state legislatures or state executives. Without some way to establish a boundary between the two, preemption could swallow the anticommandeering doctrine by allowing Congress to control state law. Alternatively, absent some boundary, anticommandeering could swallow preemption by empowering states to refuse to be governed by the commands of federal law. Either …

From Humphrey's Executor To Seila Law: Ending Dual Federal Antitrust Authority, Alyson M. Cox

Notre Dame Law Review

This Note catalogues and proposes solutions to both the traditional concerns of efficiency and fairness and the modern constitutional problems posed by the current dual enforcement structure. Part I will compare the two antitrust agencies on the basis of their structures, accountability, statutory authority, and enforcement procedures, as well as evaluate potential concerns with vesting either agency with the sole authority to enforce civil antitrust laws. Part II will evaluate the perils of the current dual enforcement structure, exploring both the traditional arguments about efficiency and fairness and the modern constitutional challenges. Part III will evaluate potential legislative solutions to …

The Historical Origins Of Judicial Religious Exemptions, Stephanie H. Barclay

Notre Dame Law Review

The Supreme Court has recently expressed a renewed interest in the question of when the Free Exercise Clause requires exemptions from generally applicable laws. While scholars have vigorously debated what the historical evidence has to say about this question, the conventional wisdom holds that judicially created exemptions would have been a new or extraordinary means of protecting religious exercise—a sea change in the American approach to judicial review when compared to the English common law.

This Article, however, questions that assumption and looks at this question from a broader perspective. When one views judicial decisions through the lens of equitable …

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Notre Dame Law Review

“Reversed and remanded.” Or “vacated and remanded.” These familiar words, often found at the end of an appellate decision, emphasize that an appellate court’s conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …

Irreconcilable Differences: The Thresholds For Armed Attack And International Armed Conflict, Laurie R. Blank

Notre Dame Law Review

This Article explores the gap between the definition of armed attack and the threshold for international armed conflict to identify such possible consequences of the different definitions for the application of either or both bodies of law and to consider whether efforts to reconcile the different meanings are feasible and, more importantly, desirable or problematic. The first Part briefly presents the definition of armed attack and the threshold for international armed conflict, with a focus on the purpose of the particular thresholds and definitions for the two terms in order to provide a foundation for the main comparisons and discussion …

Class Action Squared: Multistate Actions And Agency Dilemmas, Elysa M. Dishman

Notre Dame Law Review

As the Supreme Court continues to restrict the reach of private class actions, numerous commentators have championed public enforcement actions by state attorneys general (AGs) as a superior alternative to hold corporations accountable for misconduct. While AG actions fill some of the void left by the forced retreat of the private class action, few scholars have seriously considered whether the agency problems that exist in private class actions also occur in AG actions. And, until now, no scholar has recognized the unique agency problems that arise when AGs act together in multistate actions.

Multistate actions are made up of two …

Cardozo Law News Brief: November 13, 2020, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2020

Featured Faculty:

• Kate Shaw
• Michael Herz
• Christopher Buccafusco
• Michel Rosenfeld
• Anthony Sebok
• Suzanne Stone
• Edward Zelinsky

Campus News:

• Cardozo Ranked A+ in Racial Justice and Business Law by PreLaw Magazine
• Cardozo's Moot Court Honor Society Earns a Spot as a Regional Finalist at Tang Competition

Events:

• Town Hall with Dean Melanie Leslie
• Dean's Speaker Series: A Conversation with John LaBarre ‘05

Rios V. Bayer: The Illinois Supreme Court Recognizes Bristol-Myers Squibb, Jamison Winters

SLU Law Journal Online

Madison County, Illinois is a favorite venue among forum shoppers. Jamison Winters discusses how, by recognizing Bristol-Myers Squibb’s narrowing of the relatedness standard in specific personal jurisdiction, the recent Illinois Supreme Court decision in Rios v. Bayer may work to discourage forum shopping in venues like Madison County.

The Due Process Protections Act: Is The Juice Worth The Squeeze?, Allyson Benko

SLU Law Journal Online

President Trump signed the Due Process Protections Act into law on October 21, 2020. Allyson Benko discusses how Federal judges must now remind prosecutors on the record of their obligation under Brady v. Maryland to disclose exculpatory evidence to the defense in every criminal case.

The American Law Of Overruling Necessity: The Exceptional Origins Of State Police Power, William J. Novak

Book Chapters

One of the most significant legal-constitutional moments in the history of the American republic occurred in the Confederation Congress on September 26 and 27, 1787. On those dates, the handiwork of the historic Constitutional Convention in Philadelphia was now "laid before the United States in Congress assembled." And the momentous question for the extant official lawmaking body of the US government was what to do next. Under Article 1 3 of the Articles of Confederation, any alteration of the articles had to be agreed to by Congress and confirmed by the legislatures of every state. Notably, the Philadelphia convention had …

State Of Utah, Appellee V. Russell Keith Harper, Appellant : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from convictions for theft, a second degree felony; criminal mischief, a second degree felony; and three counts of burglary, third degree felonies, in the Seventh Judicial District, Carbon County, the Honorable Douglas B. Thomas presiding

K. ANDREW FITZGERALD, Counsel for Appellant

JEFFREY D. MANN, SEAN D. REYES, Utah Attorney General, JEREMIAH HUMES, Counsel for Appellee

E-Museletter: November 2020, William Taylor Muse Law Library

Museletter

This Issue:

Director's Message

News You Can Use

Featured Resources

New Materials

Cathleen Loyens, Appellant/Petitioner, V. David Loyens, Trial Court : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

APPEAL FROM THE THIRD DISTRICT COURT FOR SUMMIT COUNTY JUDGE KENT R. HOLMBERG PRESIDING

Appellant/Petitioner, Asa Kelley, Esq.

Appellee/Respondent Pro se, David Loyens

Procedural Discretionary Decisions And Access To Justice Before Administrative Tribunals, Rachel Elizabeth Weiner

LLM Theses

This thesis considers procedural discretionary decision-making by administrative tribunals and access to justice for marginalized and low-income individuals. I begin by reviewing literature regarding discretionary decision-making, access to justice, procedural justice, and ideal theories focusing on transparent and respectful engagement and dialogue between decision-makers and litigants. I then analyze three case studies regarding procedural discretionary decision-making and accommodations in the hearing process, addressing primarily disability and language barriers experienced by litigants before the Social Benefits Tribunal, Human Rights Tribunal of Ontario, and Landlord and Tenant Board. I then compare theories of discretionary decision-making with actual decision-making practices employed by tribunal …

Picks On Clicks With An Rg Schtick: Building Long Term Sustainability In Esports Betting Growth, Brett Abarbanel

UNLV Gaming Research & Review Journal

During the COVID-19 pandemic, esports and its associated betting markets grew – and in some cases, continue to grow – exponentially as consumer entertainment filled the gap left by a sport shut down around the world. What does this mean for gambling-focused organizations seeking to enter the esports and gaming space? What lessons from gambling should gaming and esports organizations be aware of as they embark on the hunt for gambling-related partners? What potential consumer impacts exist as brands, both endemic and non-endemic to esports and gaming, peddle their gambling wares?

Interrogating Power Dynamics In Research: Why Black Voices Matter, Jason Williams

Black Lives Matter in Research

No abstract provided.

A Letter To The United States Government On Wealth And Income Inequality, Matthieu Maier

English Department: Research for Change - Wicked Problems in Our World

The United States of America is the world’s hotspot when it comes to income and wealth inequality. The wealthiest Americans are accumulating more and more wealth everyday while most Americans, who fall somewhere around middle-class, remain struggling and stagnant. The United States’ unchecked and deregulated system of capitalism is the root cause of our country’s inequities along with our government’s refusal to set aside self-interests and biases in order to combat these issues. From the inequality caused by rouged American systems larger issues are created that lead to complications in health, wages, standard of living, and race relations within our …

Pham V. Chavez: Brief Of Amici Curiae Human Rights First And International Law Scholars In Support Of Respondent, James C. Hathaway

Appellate Briefs

Introduction and Summary of Argument: This amicus brief addresses the obligation of U.S. courts to construe federal statutes, including the Immigration and Nationality Act (“INA”), in a manner consistent with the nation’s obligations under binding international treaties. This has been an established canon of statutory construction since Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). Applying that canon here, this Court should avoid an interpretation of the INA that allows for detention without a prompt individualized determination by a court, independent of the detaining authorities and capable of ordering release, that detention is reasonable, …

Cathleen Loyens, Appellant/Petitioner, V. David Loyens, Trial Court : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Asa Kelly, Counsel for Appellant

David Loyens, Appellee Pro Se

Supreme Court Institute Annual Report, 2019-2020, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2019—corresponding to the 2019-2020 academic year—the Supreme Court Institute (SCI) provided moot courts for advocates in 100% of the cases heard by the Supreme Court, offered a variety of programs related to the Court, and continued to integrate the moot court program into the Law Center curriculum. As in past Terms, the varied affiliations of advocates mooted this Term reflect the SCI’s commitment to assist advocates without regard to the party represented or the position advanced.

The OT 2019 Term was significantly impacted by the COVID-19 Pandemic. The Supreme Court cancelled its …

Dean's Desk: Iu Maurer Research Focusing On Most Topical Issues Of 2020, Austen L. Parrish

Austen Parrish (2014-2022)

The three major stories of 2020 — the COVID-19 pandemic, the heightened awareness of racial injustice and the election — have made this year one that we will remember. While we couldn’t have envisioned all that would happen at the beginning of the year, our faculty are producing useful and thought-provoking scholarship on all these topics.

I often use my Dean’s Desk columns to celebrate student and alumni achievement, to describe new and innovative programs in our curriculum, or to share how the law school supports and collaborates with community organizations and the courts to provide pro bono legal services …

Permission Granted: The Requirement Of Consent Under The Louisiana Mineral Code, Patrick S. Ottinger

Louisiana Law Review

The article addresses the requirement of consent under the Louisiana Mineral Code, which represents the culmination of an effort to codify the law of Louisiana pertaining to mineral rights, including oil and gas.

Protecting A Defendant’S Right To Appeal Adverse Judgments Under Louisiana Code Of Civil Procedure Article 966(G), William Bell

Louisiana Law Review

The article addresses Louisiana Code of Civil Procedure Article 966(G) about the protection of a defendant's right to appeal adverse judgments.

Reworking Louisiana’S Private Works Act, L. David Cromwell, Mallory Waller

Louisiana Law Review

The article addresses the 2019 revision to the Private Works Act, the culmination of a long history of legislative efforts to protect contractors, laborers, suppliers and others who contribute to the improvement of an immovable, and its significance in Louisiana law.

Le Deuxième Grand Dérangement: Expelling Louisiana’S Taking Of Private Property Through Article 450, Michael C. Schimpf

Louisiana Law Review

The article explains classification of things in Louisiana in relation to water bottom ownership and the state's protection of private property.

A Louisiana Theory Of Juridical Acts, Nikolaos A. Davrados

Louisiana Law Review

The article examines the concept of juridical act from both a comparative and Louisiana law perspective to establish the validity of the general theory of juridical acts and to determine the useful components drawn from each system.

Will Formalities In Louisiana: Yesterday, Today, And Tomorrow, Ronald J. Scalise Jr.

Louisiana Law Review

The article provides a brief history of wills against the backdrop of the purpose of the form requirements for wills and history of Louisiana's experience with will formalities, the law of yesterday and the law of today.

Let Louisiana’S Bastards Beat The Clock: It’S Time To Amend Article 197, Emily M. Gauthier

Louisiana Law Review

The article suggests that the Louisiana Legislature can bring clarity to the state's law and provide equity for children born out of wedlock by amending Louisiana Civil Code article 197.