Law Commons^™

November / December 2021 Events, Cardozo Fame Center

2021 Event Invitations

Featured Events:

Exploring NFTs: Opportunities and Intellectual Property Issues

Tuesday, November 16 at 6:00 p.m.

The Future of the Box Office

Wednesday, November 17 at 6:30 p.m.

Follow the Law, Break the Mold: An Interview with Sarah Feingold, Etsy's First General Counsel

Thursday, December 2 at 6:30 p.m.

Lunch Lecture | Insider Trading: Overview And Developments, Ronald H. Filler Institute For Financial Services Law

Ronald H. Filler Institute for Financial Services Law

November 16, 2021

Why Do People Discriminate Against Jews?, David Abraham

Articles

No abstract provided.

Open Research Toolkit List Of References, Christopher Eaker

Copyright, Fair Use, Scholarly Communication, etc.

The Open Research Toolkit was created by Christopher Eaker during Faculty Development Leave, Fall 2021. While this toolkit was designed for librarians for learning open research concepts and skills and teaching them at their institutions, it would be useful for anyone interested in learning more about open research. Any questions related to this content can be directed to the author.

Taxpayer-Funded Covid Shots For Minks Just The Latest Nova Scotia Industry Outage, Jodi Lazare

Articles, Book Chapters, & Popular Press

Nova Scotia's Department of Agriculture has quietly announced its plan to prop up the mink farm industry, by paying for COVID-19 vaccines for minks. Throughout the pandemic, we’ve learned that minks can catch COVID, spread it between themselves, and transmit it to the humans who work on these farms. As part of Nova Scotia’s vaccination program, 54,000 doses will be administered to the animals whose pelts will eventually be sold overseas.

Integrating Doctrine And Diversity Speaker Series: Making Space, Taking Space 11-16-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

A Strategy Model For Workplace Mediation Success, Brian M. Barry Dr

Articles

The article proposes a three-step model to help workplace mediators decide on the optimum strategy for mediating workplace disputes. The model uses a grid – the Workplace Mediation Strategy Grid – which is based on a modified version of a grid Professor Leonard Riskin developed for categorising mediation orientations (Riskin 1994; Riskin 1996). The model asks the mediator to first consider the nature of the workplace dispute based on three facets of the dispute. This guides the mediator to plot a position on the Grid which represents two fundamental aspects of strategy for mediating that dispute: (1) how broadly the …

Beyond The Public Square: Imagining Digital Democracy, Mary Anne Franks

Articles

To create online spaces that do not merely replicate existing hierarchies and reinforce unequal distributions of social, economic, cultural, and political power, we must move beyond the simplistic clich6 of the unregulated public square and commit to the hard work of designing for democracy.

When we say 'public square,' ... we need to ask- who or what is this public? Who owns this space, what makes it public? . . . This is the essence of democracy: the ability to question power, and the power to do so. - Tom Wilkinson

Animating The U.S. War Crimes Act, Beth Van Schaack

International Law Studies

All war crimes are challenging to prosecute. Typical reasons include the technicality of some constitutive elements, the difficulties of amassing sufficient evidence, the vagaries of unreliable or unavailable witnesses, and the often-impenetrable khaki wall of silence. Adding to these challenges, the United States has erected a number of idiosyncratic structural barriers in the way in which it has incorporated the prohibitions against war crimes into its domestic legal frameworks, both military and civilian. This article addresses problems with the U.S. federal war crimes statute and proposes reforms that would (1) better conform to U.S. obligations under the Geneva Conventions and …

Saving Substantial Similarity, Daryl Lim

Florida Law Review

Substantial similarity, an analysis of the similarity between two works, is the fulcrum of copyright infringement. Recent cases involving Led Zeppelin’s signature song “Stairway to Heaven,” the award-winning movie “The Shape of Water,” and Google and Oracle’s dispute over computer code all required courts to grapple with this fundamental analysis. This Article reveals that today’s copyright plaintiffs have only a one-in-ten chance of winning—the worst in a century—and also discusses the cause of this trend—defendants’ devastatingly effective use of pretrial motions and the rise of lawsuits against nonrival defendants. Scholarly debates on substantial similarity typically revolve around the works of …

"You've Got [Open] [E]Mail"—The Unknown Email Privacy Issue And The Need For The Stored Communications Act To Reflect The Modern Utility Of The Inbox, James Palanica

Florida Law Review

This Note identifies the divided jurisprudence surrounding the protection of opened emails from unauthorized access under the Stored Communications Act and advocates for the interpretation espoused by the Fourth Circuit’s 2019 decision in Hately v. Watts. The traditional view of the Stored Communications Act, as employed by the Department of Justice, neither sufficiently protects opened emails nor reflects the modern usage of email inboxes. While the Eighth and Ninth Circuits have previously attempted to expand protection to opened emails by prioritizing user intent, such a standard has proved difficult to manage and has resulted in disparate outcomes depending on …

Categorical Confusion In Asylum Law, Brian Soucek

Florida Law Review

As the Trump administration placed ever-new categorical limits on asylum, its opponents countered that asylum decisions have to be made on an individualized basis. The government, they claimed, cannot categorically exclude groups, like former gang members or victims of gender-based violence, from protection against persecution. Successful as this insistence on case-by-case adjudication has recently been, it stands in tension with past cases in which groups such as nuclear families or gay men were categorically deemed eligible for asylum. The litigation and rulemaking currently reshaping asylum law suggest that neither side in this debate fully understands whether, when, and why case-by-case …

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Florida Law Review

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any “person” who violates federal rights. The U.S. Supreme Court has long held that “person” excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion—in legalese, Section 1983’s nonabrogation of sovereign immunity—along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983’s enactment, the caselaw …

Race And Reasonable Suspicion, Ric Simmons

Florida Law Review

The current political moment requires society to rethink the ways that race impacts policing. Many of the solutions will be political in nature, but legal reform is necessary as well. Law enforcement officers have a long history of considering a suspect’s race when conducting criminal investigations. The civil rights movement and the progressive criminal justice decisions of the Warren Court mitigated the explicit use of race as a factor, but there is ample evidence that many modern police officers still openly or implicitly use race to guide their investigative decisions.

This Article examines and critiques how courts have historically analyzed …

Codetermination In Theory And Practice, Grant M. Hayden, Matthew T. Bodie

Florida Law Review

Codetermination—a system of shared corporate governance between shareholders and workers—has been mostly ignored within the U.S. corporate governance literature. When it has made an appearance, it has largely served as a foil for shareholder primacy and as an example of corporate deviance. However, over the last fifteen years—and especially in the last five—empirical research on codetermination has shown surprising results as to the system’s efficiency, resilience, and benefits to stakeholders. This Article reviews the extant American legal scholarship on codetermination and provides a fresh look at the current state of codetermination theory and practice. Rather than experiencing the failures predicted …

Bespoke Bankruptcy, Laura N. Coordes

Florida Law Review

The U.S. Bankruptcy Code is the primary source of bankruptcy relief for debtors in the United States. But it is not the only source. Over the years, Congress has occasionally created bespoke bankruptcy— customized debt relief designed for a particular group of debtors. Bespoke bankruptcy may provide desperately needed bankruptcy relief to entities that are ineligible or otherwise unable to access bankruptcy through the Bankruptcy Code. But bespoke bankruptcy is also fraught with difficulties. To what extent should bespoke bankruptcy be used or developed instead of the Bankruptcy Code?

This Article takes up this question. It begins by acknowledging the …

Expanding Lgbt, Marie-Amélie George

Florida Law Review

In many circles, “LGBT” is an antiquated acronym that excludes many of the individuals that the movement is supposed to serve. “LGBTQ,” “LGBTQIA,” and other variations of the acronym have become ever more pervasive as nonbinary, intersex, and asexual individuals have become increasingly visible. The LGBT initials that once signaled solidarity and intersection are now appearing limited because they highlight only certain subgroups.

Although many movement organizations have adopted a more expansive formulation of LGBT, national legal rights organizations have limited their agendas to LGBT issues. Until recently, they devoted the bulk of their efforts to gay and lesbian concerns …

Drawing The Line: Refining The Baker Hughes Burden-Shifting Framework For Vertical Mergers, Matthew J. Ossorio

Florida Law Review

This Note both analyzes the problems that vertical mergers present in antitrust law and explores solutions to combat the difficulties enforcement agencies and merging entities face during injunctive relief proceedings. This Note was written to edify practitioners in both antitrust law and unrelated specialties. Although the goal of antitrust enforcement is the protection of competition, not competitors, vertical mergers pose a unique challenge for antitrust practitioners and enforcement agencies when they attempt to persuade a court of the proposed merger’s procompetitive and anticompetitive effects. This is because vertical mergers do not inherently result in the elimination of competition. …

Male Same-Sex "Horseplay": The Epicenter Of Sexual Harassment?, Kimberly D. Bailey

Florida Law Review

In Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court recognized same-sex sexual harassment as a cognizable claim of sex discrimination under Title VII of the Civil Rights Act of 1964. At the time, many scholars found this recognition to be significant and important, but some also argued that the Court provided an incomplete analysis regarding the meaning of discrimination “because of sex.” Specifically, some scholars argue that the Court’s opinion reinforces the sexual desire paradigm in the analysis of sexual harassment cases. Building upon this critique, this Article focuses specifically on the harassment of men who generally …

Beyond Bail, Jenny E. Carroll

Florida Law Review

From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of monetary bail, reform movements have altered the landscape of pretrial detention. Yet, reform movements have paid little attention to the emerging reality of a post-monetary-bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on nonmonetary conditions of release. These nonmonetary conditions can be problematic for many of the same reasons that monetary bail is problematic and can inject additional bias into the pretrial system.

In theory, nonmonetary conditions offer increased opportunities …

Policing As Public Good: Reflecting On The Term "To Protect And Serve" As Dialogues Of Abolition, Tracey Meares, Gwen Prowse

Florida Law Review

This Essay is based on a lecture that was to be delivered in person in March 2020 but was cancelled as a result of the initial ravages of the COVID-19 pandemic. That a discussion of policing in the United States was cancelled because of what may well turn out to be the most significant public health crisis of this decade, if not this century, is important as these two subjects are intimately related.

In the pages below, this Essay highlights how ordinary people discuss a reconceptualization of policing in ways that respond to the current moment. The data comprise a …

The Private Delegation Doctrine, Paul J. Larkin Jr.

Florida Law Review

Since its earliest days, Congress has delegated lawmaking authority to Executive Branch officials. Over time, a body of Supreme Court caselaw, known as the Delegation Doctrine, has grown up (ostensibly) to regulate Congress’s ability to offload legislative authority to administrative agencies. Occasionally, however, Congress, like state legislatures and municipal councils, bypasses executive officials and directly delegates lawmaking power to private parties. The Supreme Court has addressed those delegations in only a few cases and struck down three of them, the last one in 1936 in Carter v. Carter Coal Co. In those cases, the Court did not rely on …

Pemenuhan Hak Konstitusional Untuk Warga Negara Indonesia Melalui Program Perhutanan Sosial, Yusuf Adiwinata Damanhuri

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Social Forestry as a forest management system based on the independence and participation of local communities, ensuring the participation of the community's direct role in forest development can provide maximum benefits to local communities and indigenous peoples. Indonesia, as one of the countries that began to initiate social forestry programe, through the ministry of Environment and Forestry of the Republic of Indonesia, has provided legal certainty for the local community and indigenous people to obtain forest access as requested. Various types of social forestry schemes, namely Village Forests, Customary Forests, Community Plantation Forests, Community Forests, Community Forests, and Forestry Partnerships …

Tinjauan Yuridis Perbuatan Melawan Hukum Terhadap Cacat Badan Di Indonesia, Yulianto Manurung

"Dharmasisya” Jurnal Program Magister Hukum FHUI

One of the categories of acts against the law stipulated in Article 1365 to 1380 of the Civil Code is an unlawful act that causes bodily defects as stipulated in Article 1371 of the Civil Code What often causes problems in practice is the calculation of the amount of material compensation that must be given to victims who have disabilities as a result of unlawful acts because the Civil Code does not provide clear and complete benchmarks regarding this matter. Arrangements regarding compensation to victims of acts against the law especially those that cause bodily disabilities for the victim have …

Letter To Tennessee Board Of Law Examiners, Legislation/Civil Rights Clinic

Menstrual Policies and the Bar

No abstract provided.

Letter To Texas Board Of Law Examiners, Legislation/Civil Rights Clinic

Menstrual Policies and the Bar

No abstract provided.

Letter To Mississippi Board Of Bar Admissions, Legislation/Civil Rights Clinic

Menstrual Policies and the Bar

No abstract provided.

Letter To Pennsylvania Board Of Law Examiners, Legislation/Civil Rights Clinic

Menstrual Policies and the Bar

No abstract provided.

Finding A Governing Law To Resolve Conflicts Of Tax Laws, Catharine Marie Mcmillan

LLM Theses

This thesis explores how tax treaty articles providing foreign tax recognition, distributive rules, meanings for undefined terms, and anti-treaty shopping rules implicitly employ conflict of laws "choice of law" ("COL/col") principles to derive the governing law in situations where more than one tax law and therefore more than one legal system applies to characterize a person or income. COL/col principles are implicitly acknowledged and specifically operate in tax treaties to reconcile contending tax laws and therefore legal systems. Considering tax treaty articles implore countries to ascertain the governing law through reconciliation, supranational approaches that advocate harmonization to ascertain governing law …

Letter To Idaho State Bar, Board Of Commissioners, Legislation/Civil Rights Clinic

Menstrual Policies and the Bar

No abstract provided.