Law Commons^™

The Article Iii Publication Power And The Foreign Intelligence Surveillance Court, John Langford

Cardozo Law Review

The Framers vested “the judicial Power of the United States” in independent courts so that they may protect individual liberty and serve as a check on the legislative and executive branches. The judicial power, however, is narrow and not self-executing. As Chief Justice Marshall put it, it is merely the power “to say what the law is.” Federal courts cannot raise armies or pay money to enforce their decrees. Having neither force nor will, courts must instead rely on cultivating public support to secure the authoritative legitimacy necessary to effectuate their judgments.

But what happens when the executive branch asserts …

A Clarified Standard? A Case Note On Monasky V. Taglieri, Rebecca Jacobson

Cardozo Law Review

No abstract provided.

Towards A Data-Driven Financial System: The Impact Of Covid-19, Nydia Remolina Leon

Research Collection Yong Pung How School Of Law

The COVID-19 outbreak has a growing impact on the global economy and the financial sector, which plays a critical role in mitigating the unprecedented macroeconomic and financial shock caused by the pandemic. Given the unprecedented nature of the current crisis, financial regulators and supervisors, central banks, along with governments and legislatures face challenges to maintain financial stability, preserve the well-functioning core markets, and ensure the flow of credit to the real economy. Even though the COVID-19 has slowed down our daily lives and stopped the operation of many industries, it did not have the same effect in the data-driven finance …

Quilombo Land Rights, Brazilian Constitutionalism, And Racial Capitalism, Karen Engle, Lucas Lixinski

Vanderbilt Journal of Transnational Law

The 1988 Brazilian Constitution, the first in a wave of new democratic and multicultural constitutions in Latin America, contains a transitory provision guaranteeing collective land rights to quilombo communities. These communities are composed of quilombolas, primarily descendants of formerly enslaved Africans, many of whom had escaped slavery. A 2003 executive decree to implement the land title provision became the subject of a constitutional challenge lasting over fifteen years. When the Brazilian constitutional court eventually upheld the decree in 2018, it relied heavily on the work of US political theorist Nancy Fraser to justify quilombo land title as both recognition and …

Unilateral Cyber Sanctions: Between Questioned Legality And Normative Value, Iryna Bogdanova, Maria Vasquez Callo-Muller

Vanderbilt Journal of Transnational Law

The current legal vacuum regarding binding international norms regulating malicious conduct in cyberspace has paved the way for the emergence of a unilateral tool: cyber sanctions. They have already been introduced by the United States, the European Union, and the United Kingdom. Notwithstanding their obvious importance, their interrelations with international law- especially international economic law-have remained largely unexplored in academic research. This gap is perplexing given the fact that the existing unilateral cyber sanctions have been formulated in such a way as to be prone to misuse. In particular, they bear a significant potential to disrupt economic relations and undermine …

Solving The Unsolvable? How A Joint Development Zone Could Extinguish The Natural Gas Conflict In The Eastern Mediterranean, Kimberlyn Hughes

Vanderbilt Journal of Transnational Law

Recently, the Cyprus conflict has manifested itself in the competing claims of Greek Cyprus, Turkish Cyprus, and Turkey over their maritime jurisdictions. During the past decade, the discovery of natural gas exacerbated these preexisting claim disputes. Solutions have been nonexistent due to the unwillingness of the parties to conduct multilateral negotiations or use international courts and are complicated by the fact that not all parties are signatories to the United Nations Convention on the Law of the Sea, an instrument most countries defer to in comparable disagreements. While prior publications have proposed mechanisms that could solve maritime disputes in this …

Weaponizing Copyright, Cathay Y. N. Smith

Faculty Law Review Articles

Copyright grants authors exclusive rights in their works in order to encourage creation and dissemination of socially valuable works. It permits copyright owners to assert their copyright against violations of those rights when necessary to protect their market exclusivity and economic interests. Increasingly, however, copyright is being used by individuals to achieve other objectives. This Article examines the increasingly widespread phenomenon of individuals using copyright to vindicate noncopyright interests, which this Article refers to as “weaponizing copyright.” In some cases, copyright is weaponized to silence criticism and legitimate speech. In other instances, the objective is to erase facts and make …

Explicit Instruction In Legal Education: Boon Or Spoon?, Beth A. Brennan

Faculty Law Review Articles

While legal education unquestionably hones students’ critical thinking skills, it also privileges students who are faster readers and have prior background knowledge or larger working memories. According to the prevailing mythology of law school pedagogy, students learn by struggling to find their way out of chaos. Only then is their learning deep enough to permit them to engage in critical thinking and legal reasoning. Learning theory and research suggest this type of “inquiry” learning is not an effective way to introduce novice learners to a subject. Lacking basic substantive and procedural knowledge, students’ struggles are often unproductive and dispiriting. Initial …

Climate Attribution Science And The Endangered Species Act, Jessica A. Wentz

Sabin Center for Climate Change Law

Climate change poses an enormous risk to plant and animal species across the planet. Mean global temperatures have already increased by approximately 1ºC, causing environmental changes that affect species abundance, distribution, behavior, physiology, genetics, and survival prospects. These changes, combined with other human stressors, have already resulted in the extinction of some species and imperiled many others. Some scientists describe this as the “Holocene” or “Anthropocene” mass extinction event. The fate of many vulnerable species will depend on emissions trajectories and mitigation efforts. But there is also a compelling need for adaptive species management in the context of a changing …

Caring For The Souls Of Our Students: The Evolution Of A Community Economic Development Clinic During Turbulent Times, Gowri Krishna, Kelly Pfeifer, Dana Thompson

Articles & Chapters

Community Economic Development (CED) clinicians regularly address issues surrounding economic, racial, and social justice, as those are the core principles motivating their work to promote vibrant, diverse, and sustainable communities. When COVID-19 arrived, and heightened attention to police brutality and racial injustice ensued, CED clinicians focused not only on how to begin to address these issues in their clinics, but on how to discuss these issues more deeply and effectively with their students. This essay highlights the ways in which the pandemic school year influenced significant rethinking of one CED clinic’s operations: first, the pandemic sharpened the clinic’s mission to …

Book Review: Public Legal Education - The Role Of Law Schools In Building A More Legally Literate Society (Routledge 2021), Amy Wallace

Articles & Chapters

No abstract provided.

Directed Questions: A Non-Socratic Dialogue About Non-Socratic Teaching, Kris Franklin, Rory Bahadur

Articles & Chapters

Despite frequent criticism of Socratic and case-method teaching, the core teaching in most foundational law classes has been remarkably stagnant. But in a time of turmoil and reexamination of the traditions we have all inherited, there is also opportunity for meaningful adaptation to the modern era. This Article introduces Directed Questions methodology as an alternative to the traditional teaching models currently operating in most law schools. Directed reading pedagogy allows legal educators to seamlessly transition to a modern and effective pedagogy incorporating best practices which recognizes that fostering inclusion and the success of diverse students is mandatory in post-Langdellian legal …

"My Bewildering Brain Toils In Vain": Traumatic Brain Injury, The Criminal Trial Process, And The Case Of Lisa Montgomery, Alison Lynch, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment. Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced …

The Jury Trial Reinvented, Christopher Robertson, Michael Shammas

Faculty Scholarship

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.
/="/">
/="/">Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts …

The Covid-19 Pandemic And Bar Performance: Magnifying Adversities, Stress, And Disparities Among Bar Test-Takers, Victor D. Quintanilla, Erin Freiburger, Sam Erman

Articles by Maurer Faculty

Distinguished Commentary column.

The Breakdown Of The Public-Private Divide In Securities Law: Causes, Consequences, And Reforms, George S. Georgiev

Articles

As a regulatory scheme, U.S. securities law has traditionally been designed around a set of lines-the 'public-private divide"-which separate public companies, public capital, and public markets, from private companies, private capital, and private markets. Until the early 2000s, the lines were successful in establishing two largely coherent legal realms-a highly regulated public realm and a lightly regulated private realm. A series of bold and often-inconsistent reforms between 2002 and 2020, however, have transformed this longstanding regime into a low-friction system wherein public capital flows to both public and private companies, private capital is ever more abundant, and firms can effectively …

Privacy As The Price Of Drug Access, Laura Karas

Articles

In response to the recent increase in FDA-approved specialty drugs and escalating specialty drug prices, drug companies now offer patient support programs ("PSPs") for eligible patients prescribed a particular pharmaceutical drug. Such programs encompass both financial assistance for the purchase of a specialty drug and behavioral services, including nursing support and injection training, intended to improve drug adherence. Although ostensibly gratuitous, these programs have a steep and underappreciated cost: disclosure of protected health information. In effect, patient support programs compel patients to trade protected health information for drug access. This Article provides the first in-depth examination of the legal and …

Special Matters: Filtering Privileged Materials In Federal Prosecutions, Christina Frohock

Articles

This Article reviews the U.S. Department of Justice's toolbox for handling potentially privileged materials, with close attention to the evolution from filter teams to the Special Matters Unit in fraud prosecutions. Significant case opinions from the U.S. Courts of Appeals for the Fourth, Sixth, and Eleventh Circuits reveal the judiciary's diverse views on filter teams. The recent case of United States v. Esformes in the U.S. District Court for the Southern District of Florida, now on appeal to the Eleventh Circuit, illustrates how a filter team can fall short and draw unflattering attention to the Department of Justice. In the …

Department Of Homeland Security V. Regents Of The University Of California And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The Trump Administration's effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court's decision, and its potential legal implications.

The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences for many of DACA’s hundreds of thousands …

Building A Restructuring Hub: Lessons From Singapore, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

This article analyses the legal, market and institutional features needed to become an international hub for debt restructuring. For that purpose, it explores the strategy followed by Singapore, as well as the market and institutional factors generally found in other leading centres for legal and financial services such as the United States, the United Kingdom and Hong Kong. In jurisdictions traditionally having creditor-oriented insolvency systems, such as the United Kingdom, Hong Kong and Singapore, one of the primary challenges for the improvement of the restructuring framework for debtors consists of making sure that the insolvency system remains protective of the …

Rebuilding Trust: Regulation Of Financial Advisers In The Uk, Weiping He, Han-Wei Liu

Research Collection Yong Pung How School Of Law

Key pointsThe 2006 UK Retail Distribution Review identified much-needed reforms to the retail investment markets. It suffered chronic problems arising from the provision of conflicted advice by financial advisers to their clients. The global financial crisis (GFC) added intense urgency to the need for reforms.As a result, commission-based charging for financial advisers were banned in 2012, and the requirements under the suitability rule were more sharply defined.This article traces the trajectory of the pre- and post-GFC reforms and the ways in which the judicial interpretations of the legislative reforms played an important role in regulating the retail investment markets.The article …

The New Law On Foreign Interference – What’S Next For Businesses, Tan K. B. Eugene, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

In a joint commentary, SMU Associate Professor of Law Eugene Tan and SMU Assistant Professor of Law Benjamin Joshua Ong discussed what the Foreign Interference (Countermeasures) Bill (Fica) means for businesses. They opined that businesses could have disclosure policies for themselves and their stakeholders, akin to conflict of interest disclosures. They also noted that more can be done to clarify the limits to government powers under Fica, and pointed out that conversations about foreign interference must go beyond Fica.

Assumption Of Risk In Consumer Contracts And The Distraction Of Unconscionability, Zahra Takhshid

Cardozo Law Review

For years, courts have struggled to determine when to enforce exculpatory clauses that would prevent personal injury victims from availing themselves of tort remedies under the doctrine of express assumption of risk. In the past, when courts declined to enforce these clauses, they did so on the ground that enforcing such a waiver for the activities in question was “against public policy.” Recently, however, many courts have addressed the issue through the contract doctrine of “unconscionability.” This change in focus has subtly but importantly altered the enforceability inquiry by emphasizing the conditions under which the plaintiff agreed to the contract, …

Suffering Uncompounded: Civilizing Healthcare Standards For Gender Dysphoric Prisoners, Julian S. Cohen

Cardozo Law Review

No abstract provided.

The New Law On Foreign Interference: What's Next For Businesses?, Tan K. B. Eugene, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The Foreign Interference (Countermeasures) Bill (Fica) was passed in Parliament on Monday after about 10 hours of impassioned debate. Despite the government agreeing to several amendments proposed by the Workers' Party, the substance was not changed in any significant way. Although the government provided more details on how Fica is to operate, more details will be unveiled when it comes into operation. What does all this mean for businesses?

Fica: What Checks & Balances Are Needed Against Powers Being Used Inappropriately?, Tan K. B. Eugene, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

COMMENTARY: "The key question is not whether the state should have powers to take countermeasures, but rather whether there are adequate checks against the risk of those powers being inappropriately used."

Compensation For Frivolous Or Vexatious Prosecution, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

According to section 359(3) of the Criminal Procedure Code, an acquitted accused person may receive compensation if the prosecution was “frivolous or vexatious”. In Parti Liyani v Public Prosecutor, Singapore’s High Court – for the first time – comprehensively discussed what section 359(3) means and how it is to be applied. This article aims to outline and comment on the High Court’s decision, and to highlight several issues which may be explored in future.

#Blacklivesmatter: From Protest To Policy, Jamillah Bowman Williams, Naomi Mezey, Lisa O. Singh

Georgetown Law Faculty Publications and Other Works

In summer 2020, mass protests spread across the globe challenging police brutality and racial injustice and demanding change. Fueled by the Black Lives Matter (BLM) movement in the wake of the police murder of George Floyd, these protests drew 15 million to 26 million participants in the United States alone to participate in late May and June of 2020. The sheer scale of these protests made them the largest movement in U.S. history. While there has been some consensus that this unprecedented protest movement pushed social awareness and changed the national conversation around race, existing research has yet to clearly …

Developing An Innovative Pandemic Treaty To Advance Global Health Security, Lawrence O. Gostin, Benjamin Mason Meier, Barbara Stocking

Georgetown Law Faculty Publications and Other Works

Recognizing marked limitations of global health law in the COVID-19 pandemic, a rising number of states are supporting the development of a new pandemic treaty. This prospective treaty has the potential to clarify state obligations for pandemic preparedness and response and strengthen World Health Organization authorities to promote global health security. Examining the essential scope and content of a pandemic treaty, this column analyzes the policymaking processes and substantive authorities necessary to meet this historic moment.

The Nonracist And Antiracist History Of Firearms Public Carry Regulation, Mark A. Frassetto

SMU Law Review Forum

This term, the Supreme Court will consider New York State Rifle & Pistol Ass’n v. Bruen, a Second Amendment challenge to New York State’s concealed carry weapon licensing system. Bruen is the first major Second Amendment case that the Court will decide on the merits in more than a decade. Briefing by the plaintiffs and gun rights scholars has in large part focused on arguments that laws regulating the carrying of guns in public, as well as gun regulation more generally, were historically intended to discriminate against minority groups. This argument is consistent with a broader effort in the conservative …