Law Commons^™

Mmu: 10/25/21–10/31/21, Student Bar Association

Monday Morning Update

This Week @ NDLS

General Announcements

Stoic Start to the Week

Sport Report by Ashley Topel

1L of the Week: Shaniya Raheja

2Ls Taking Ls: Matteo Taraborelli

Ask a 3L: Emily Dufner

Regulation Of Loot Box Mechanics, Mamoon Saleemi

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

There has been debate among legal scholars as to whether loot boxes can be considered a form of gambling and whether they should or how they should be regulated. Loot boxes are virtual items users can purchase within video games for real money. These “boxes” contain random items which can range from cosmetic items that alter the appearance of characters in the game, to new weapons and tools or even access to new characters. In 2017 loot boxes brought in a record 30 billion dollars worldwide. It is projected that loot boxes will bring in 50 billion dollars in 2022. …

Ndls Communicator: Week Of 10.25.21, Notre Dame Law School

NDLS Communicator

The Latest News

• Professor Joseph Bauer receives McCafferty Award from Notre Dame Law Association
• One ND Law professor and one graduate are clerking at the U.S. Supreme Court this term
• Rudy Monterrosa to receive Excellence in Community Service award
• Teaching Thomas
• Sherif Girgis writes for The Washington Post
• Emily Bremer writes for Yale Journal of Legislation
• Nicole Garnett writes for The 74
• Lloyd Mayer interviewed in Daily Beast
• Carter Snead honored by St. Thomas More Society Dallas chapter
• Emily Bremer to speak AALS webinar on Administrative Law
• Inside the Family, Faith and Foundations of New Holy Cross President Vincent Rougeau …

What Counts As Data?, Anya Bernstein

Journal Articles

We live in an age of information. But whether information counts as data depends on the questions we put to it. The same bit of information can constitute important data for some questions, but be irrelevant to others. And even when relevant, the same bit of data can speak to one aspect of our question while having little to say about another. Knowing what counts as data, and what it is data of, makes or breaks a data-driven approach. Yet that need for clarity sometimes gets ignored or assumed away. In this essay, I examine what counts as data in …

Rules In The Workplace: Does The Nlra Protect Employees’ Ability To Record Working Conditions?, Avery Lubbes

SLU Law Journal Online

In the wake of the COVID-19 pandemic, some employees have recorded videos at work and posted them online to express their disagreement with working conditions. The NLRB recently created a new standard of review for evaluation of employer work rules, and the Board upheld an employer's "no-camera" rule, which included cell phones capable of taking photographs and videos. In this article, Avery Lubbes analyzes whether the Biden Board overturn this ruling as violative of labor rights.

Closing The Data Gap: Protecting Biometric Information Under The Biometric Information Privacy Act And The California Consumer Protection Act, Eva-Maria Ghelardi

St. John's Law Review

(Excerpt)

Between May and June of 2014, Stacy Rosenbach bought her son, Alexander, a Six Flags season pass online. She submitted Alexander’s personal information and read that Alexander would complete the sign-up process at the park. No details described what the sign-up process would entail.

After showing his online receipt at Six Flags, Alexander was brought to an office to provide the customary thumb scan. Alexander’s thumb scan, along with the season pass card, was required to permit him to enter the various rides. He was not given any information about how his thumb scan would be stored or used …

Arbitrating Security Class Actions: The Limits Of Forum Selection Bylaws, Paul Schochet

St. John's Law Review

No abstract provided.

An Immigration Innovation: A Comparative Analysis Of The American Diversity Visa Lottery Program And The Canadian Points-Based System, Jennifer Hopkins

St. John's Law Review

(Excerpt)

United States immigration policy has historically been a strategy for national growth. Congress passed the Immigration Act of 1990 to stimulate further growth by increasing immigration opportunities. This substantial immigration reform created the Diversity Visa (“DV”) lottery program, which administers 50,000 lawful permanent residence visas annually. These visas are drawn randomly from a pool of applicants from countries with low rates of immigration to the United States.

Donald J. Trump pushed for major immigration reform beginning on his first day in office, including the repeal of the DV program and the development of a points-based system modeling the current …

Nazi Germany's Race Laws, The United States, And American Indians, Robert J. Miller

St. John's Law Review

(Excerpt)

Most Americans would be shocked to learn that in the 1920s and 1930s Adolf Hitler and Nazi scholars, lawyers, and officials were studying United States law while developing Germany’s policies and laws concerning Jews and the conquest of Eastern Europe. Most Americans would also be surprised that, as the leaders of the Third Reich were turning racist ideas into official German policies, Nazis were carefully studying United States federal Indian law and state laws that discriminated against Indian nations and American Indians.

Winston Churchill On The American Constitution, Gerard N. Magliocca

St. John's Law Review

(Excerpt)

Though best known for leading Britain during World War II, Winston Churchill was a keen observer of constitutional law. Most of his insights concerned the unwritten conventions of the British Constitution, but Churchill also commented extensively on the American Constitution. Intellectual curiosity and a desire to forge a closer alliance between Great Britain and the United States were at the root of Churchill’s interest in the institutions of what he called “The Great Republic.” As with all things Churchill, his observations on our Constitution were sometimes inspiring, sometimes illuminating, and sometimes noxious.

This Article provides the first comprehensive analysis …

Shareholder Wealth Maximization: A Schelling Point, Martin Edwards

St. John's Law Review

(Excerpt)

Imagine a reality television game show where two contestants begin the game in two different places in New York City. The object of the game is for the two contestants to find each other, but they do not know anything about each other and they have no way of communicating. If they succeed, both contestants win a prize. If they fail, they get nothing. With no ability to explicitly bargain over the meeting, the parties have to make an educated guess about what the other person is most likely to do. Most people, confronted with this sort of tacit …

Free Speech Has Gotten Very Expensive: Rethinking Political Speech Regulation In A Post-Truth World, John A. Barrett, Jr.

St. John's Law Review

(Excerpt)

Protecting free speech has been a foundational principle of American democracy since the nation’s founding. A core element of free speech has long been a prohibition on regulating political speech. The principle behind this protection holds that citizens are free to make whatever political pronouncements they wish and that their speech shall remain free from government suppression. Even within the limited exceptions to unfettered political speech, like defamation or libel, the speech is not banned but may merely result in liability. A premise underlying this view is that competing viewpoints, by being made available to us all, will allow …

Book Talk: The Cult Of The Constitution, Mary Anne Franks

ConLawNOW

In this essay based on remarks delivered as the 2020 Constitution Day lecture at the Center for Constitutional Law, Professor Franks previews her book, The Cult of the Constitution. It addresses Franks’ key thesis about fundamentalist approaches to legal texts and Constitution, which read texts in selective and self-interested ways that verify a particular world view and ignore interpretations or passages that complicate it. Her work highlights debates over guns and the Second Amendment and Black Lives Matter protests and the First Amendment as examples of this problematic constitutional fundamentalism. Instead, the book and essay point to the Fourteenth …

Hon. Peter Dearing, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding his involvement in the Jacksonville school desegregation case Mims v. Duval County School Board.

Cardozo Law News Brief: October 22, 2021, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2021

Featured Faculty:

• Betsy Ginsberg
• Kate Shaw
• Edward Zelinsky
• Christopher Buccafusco
• Pamela Foohey
• Barbara Kolsun
• Kathryn Miller
• Alexander A. Reinert
• Jeanne L. Schroeder
• David G. Carlson

Campus News:

• Sports Law Society Panel Debates NCAA “Name, Image, and Likeness” Policy
• The Future of Fashion: A Conversation with Vanessa Friedman

Events:

• A Discussion with Former Solicitor General Noel Francisco & Professor Alex Reinert About the Supreme Court's 2021-22 Docket
• Back to Broadway
• Lawyers Behaving Badly: Episode 1 - The Executive Branch
• The COVID-19 Pandemic, Diversity and Inclusion, and the Practice of Law
• Attica: Screening and Conversation
• Supporting Mental and Public Health Prevention Work …

Mediation And Negotiation In South Korea And Japan, Julie Kim

Cardozo Journal of Conflict Resolution (CJCR) Blog

Since Japan’s colonization of Korea from 1910 to 1945, relations between the two countries have been rocky. In 1965, the United States helped with the signing of a normalization treaty between Japan and South Korea; Japan believes that this resolved all reparation questions. However, the treaty was signed secretly and pushed through the legislature under South Korean dictator Park Chung-Hee. Additionally, Japan possessed much greater power than South Korea at the time, leaving Koreans with few options and raising questions from Koreans’ perspective of the treaty’s legitimacy. More importantly, the treaty did not properly address the issues of Japanese wartime …

An Uncomfortable Truth: Indigenous Communities And Law In New England: Roger Williams University Law Review Symposium 10/22/2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

State Of Utah Plaintiff - Petitioner, V. Alfonso Valdez, Defendant - Respondent : Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

Brief of Amicus Curiae National Association of Criminal Defense Lawyers

Emily Adams, Freyja Johnson, Attorneys for Respondent, John J. Nielsen, Sean Reyes, Attorneys for Petitioner

Jeffery C. Corey, John E. Cutler, Jordan E. Westgate, Attorneys for Amicus Curiae

Much Needed Reformation In South Korea’S Juvenile Act, William Kim

Cardozo International & Comparative Law Review (CICLR) Blog

On December 26, 2019, in Guri, South Korea, a fifth-grade student stabbed a fellow schoolmate to death. The student was reportedly enraged by the victim’s verbal assault on her family. Yet, in stark contrast to South Korea’s Criminal Act, which mandates a minimum punishment of at least five years in prison for a homicide case, the defendant was sentenced to be transferred to the Juvenile Reformatory for a long-term period. Under the Juvenile Act, children aged 10 to 14 are exempt from criminal punishment, and they must be tried under protection by the Juvenile Department. Because the defendant was a …

Motion For Leave To File And Brief For Amici Curiae Legal Scholars And Academics In Support Of Petitioner, David Rudenstine

Amicus Briefs

Amici Curiae are legal scholars and academics who have dedicated their careers to the study, teaching and practice of United States constitutional law, including the death penalty and methods of execution. Many amici have written scholarly articles on these topics.

Many amici listed below earlier wrote to this Court in 2018 by submitting a brief in Bucklew v. Precythe, 139 S. Ct. 1112 (2019), to apprise the Court of information regarding the availability of alternative methods of execution to be considered in clarifying the applicable Eighth Amendment standard for method-of-execution challenges. Amici agreed with the Court’s clear statement in …

Afghanistan – What’S At Stake: National Security, Human Rights, And The Rule Of Law, Cardozo International & Comparative Law Review

2021 Event Invitations

Panelists will discuss the history of the Afghan legal system and the obstacles to development. Is democracy a prerequisite to a rule of law system? How, if at all, did Afghanistan’s 2004 Constitution change the legal landscape? Panelists will also discuss peacebuilding strategies and whether international law can be used as leverage over the Taliban, which is now in control of the government. If the Taliban thwarts monitoring efforts about suspected human rights violations, what can be done by the international community as a response?

Central Bank Activism, Christina Parajon Skinner

Duke Law Journal

Today, the Federal Reserve is at a critical juncture in its evolution. Unlike any prior period in U.S. history, the Fed now faces increasing demands to expand its policy objectives to tackle a wide range of social and political problems—including climate change, inequality, and foreign and small business aid.

This Article develops a framework for recognizing and identifying the problems with “central bank activism.” It refers to central bank activism as situations in which immediate public policy problems push the Fed to aggrandize its power beyond the text and purpose of its legal mandates, which Congress has established. To illustrate, …

Journal Staff

Duke Law Journal

No abstract provided.

Trust The Process? Rethinking Procedural Due Process And The President’S Emergency Powers Over The Digital Economy, Jonathan W. Ellison

Duke Law Journal

To protect U.S. user data from foreign threats, presidents have wielded their emergency power to ban transactions with certain technology companies. This emergency power, if unchecked, threatens both the procedural rights of some technology companies and U.S. constitutional structure.

Concerning procedural rights, this Note evaluates existing procedural due process jurisprudence to identify the scope of these protections in the data security context, which remains unexplored in scholarship and judicial opinions. For guidance, this Note looks to cases involving counterterrorist financing and national security reviews of foreign investment, and it concludes that procedural due process protects many technology companies that collect …

Who Defends: Judge Sutton's Vision And The Challenge Of A Plural Executive, Katherine A. Shaw

Online Publications

It’s no secret that this is a perilous moment for American democracy. We’re nine months out from a deadly attack on the U.S. Capitol, launched with the explicit goal of disrupting the peaceful transfer of power following the 2020 presidential election. Congress appears gridlocked on basic questions of debt and spending, and the possibility of a default before the end of the year remains a live one, with the covid pandemic still ongoing. The U.S. Supreme Court is facing an unprecedented legitimacy deficit in the eyes of the public. Election experts warn that future American elections, including the 2024 election, …

The Brief (Edition #12, October 2021), William & Mary Law School

The Brief

No abstract provided.

Rent-A-Bank: Bank Partnerships And The Evasion Of Usury Laws, Adam J. Levitin

Duke Law Journal

“Rent-a-bank” arrangements are the vehicle of choice for subprime lenders seeking to avoid state consumer protection laws. In a rent-a-bank arrangement, a nonbank lender contracts with a bank to make loans per its specifications and then buys the loans from the bank. The nonbank lender then claims to shelter in the bank’s federal statutory exemptions from state regulation. The validity of these arrangements is the most bitterly contested legal question in consumer finance.

The rent-a-bank phenomenon is a function of a binary, entity-based regulatory approach that treats banks differently than nonbanks and that treats bank safety-and-soundness regulation as a substitute …

Federal Judge Seeks Patent Cases, J. Jonas Anderson, Paul R. Gugliuzza

Duke Law Journal

That probably seems like a bizarre Craigslist ad. It’s not real—we mocked it up for this article. Still, and startlingly, it accurately portrays what’s happening in the Waco Division of the U.S. District Court for the Western District of Texas. One judge, appointed to the Western District only three years ago, has been advertising his courtroom through presentations to patent lawyers, comments to the media, procedural practices, and decisions in patent cases as the place to file a patent infringement lawsuit. That advertising has succeeded. In 2016 and 2017, the Waco Division received a total of five patent cases. In …

Treating Diagnostics: Protecting In Vitro Diagnostic Testing In An Uncertain § 101 Landscape, Emily Iroz Rich

Akron Law Review

Beyond question, medical diagnostic tests, they save lives. The diagnostic tests also contribute to the overall health of the U.S. economy. However, the current state of subject-matter eligibility for patent protection does not incentivize the research and development of these life-saving tools. Previous legislative and judicial efforts to fix subject-matter eligibility have failed. This article proposes a diagnostic patent act to allow the protection of in vitro diagnostic tests. The proposed diagnostic patent act would include safeguards to allow adequate access to fundamental research while incentivizing the return of investment to the patent holder. Safeguards would include exceptions to patent …

A Typology Of Disclosure, Sharon K. Sandeen

Akron Law Review

Information and data have always been valuable to businesses, but in the Information Age, as businesses have figured out more ways to commoditize the information and data they possess, there has been a corresponding increase in expressed concerns about the unauthorized “disclosure” of information. Often, these concerns are expressed in absolute terms, as if any unauthorized disclosure of information constitutes an act of unfair competition or theft. The problem is that the common understanding of disclosure, particularly among information owners that seek to restrict access to the information they possess, belies the legal meaning of the term as used in …