Law Commons^™

State Securities Enforcement, Andrew K. Jennings

BYU Law Review

Each year, state securities regulators bring over twice the enforcement actions brought by the Securities and Exchange Commission, yet their work is largely missing from the literature. This Article provides an institutional account of state securities enforcement and identifies two key advantages — detection granularity and institutional decentralization — that states enjoy over their federal counterparts in policing localized frauds involving individual, often small-dollar, victims. Although states share enforcement jurisdiction with the SEC and DOJ, their enforcement activity reflects their institutional advantages and constraints and thus largely does not overlap with that of federal authorities. Instead, states serve as the …

Relational Enforcement Of Stock Exchange Rules, Geeyoung Min, Kwon-Yong Jin

BYU Law Review

Stock exchanges, as regulating entities supervised by the Securities and Exchange Commission (SEC), have wielded their rulemaking power on various corporate governance issues, ranging from the independent board committee requirement adopted in 2003 to the board diversity requirement approved in 2021. Simultaneously, as for-profit corporate entities, major stock exchanges have been competing against each other to attract and retain more companies. This dual status of stock exchanges — as regulators and as profit driven entities — brings into question the stock exchanges' incentive to enforce their own rules against listed companies. What happens if a listed company violates stock exchange …

Non-Consensual Disclosures, Nina Varsava

BYU Law Review

In the course of biomedical research on humans — for example, flu, imaging, and genomic studies — researchers often uncover information about participants that is important to their health and wellbeing. In many cases, the information is not anticipated in advance, and participants did not consent to receiving it. This Article examines the law and policy governing human subjects research, focusing on the set of regulations known as the "Common Rule." I argue that human subjects researchers will often have strong ethical reason s to disclose results even when participants did not consent to the disclosure in advance. I also …

Creating Oases Throughout America’S Food Deserts, Hannah M. Dahle

BYU Law Review

No abstract provided.

Admitting A Wrong: Apology For The Historical Injustice Of The Dred Scott Case, Laura Kyte

BYU Law Review

No abstract provided.

A Symbol Of Unity: Freeing The Aboriginal Flag, Dominic Shaw

BYU Law Review

No abstract provided.

Establishing A Legitimate Indonesia’S Government Electronic Surveillance Regulation: A Comparison With The U.S. Legal Practices, Citra Yuda Nur Fatihah

Indonesia Law Review

Cybersecurity and privacy have now become a matter of increasing concern for citizens, the private sector, and the Indonesian government. The government is currently struggling to combat cyberattacks and data breaches. Indonesia is, in fact, in the early stages of developing a national cybersecurity strategy. The legal framework for cybersecurity in Indonesia is still weak. The one and only legal basis for regulating cybersecurity, privacy, and security, in Indonesia so far is the Electronic Information and Transactions Law No. 11/2008 and its revised version Law No.19/2016. Furthermore, the government through the Indonesian Ministry of Communication and Information has just issued …

An Ineffective Institutional Investors Law In Indonesia? Why Bother, Luther Lie, Yetty Komalasari Dewi

Indonesia Law Review

Corporate governance failures are one of the major factors that have crippled the Indonesian economy through financial crises. In response, the OECD has prescribed Principles II and III of the G20/OECD Principles of Corporate Governance to ensure the rights and equitable treatment of all shareholders and the acknowledged role of institutional investors in improving corporate governance. Institutional investors play a significant role as corporate monitors in protecting the public investors’ money and improving corporate financial performance. They are therefore acknowledged as the policies of economic crises, creators of firm values, and drivers of economic development. However, as this paper explains, …

The Illegally Traded Elephant In The Room: Species Terrorism & Combating Illegal Wildlife Trade, Áine Dillon

Pace International Law Review

The illegal wildlife trade has been a dilemma for decades

and remains prevalent globally – international intervention is

required now. While most countries participate in the Convention

on International Trade in Endangered Species of Wild

Fauna and Flora (“CITES”), not all countries have the same approaches

to combating the illegal wildlife trade. Unique approaches

can be beneficial because each illegally traded species

requires a different response, and countries with limited resources

can also participate. However, the lack of a unified response

hinders the global fight against the illegal wildlife trade.

While traditional methods to combat crime, such as passing

laws, …

Securing The Precipitous Heights: U.S. Lawfare As A Means To Confront China At Sea, In Space, And Cyberspace, Garret S. Bowman

Pace International Law Review

No abstract provided.

Corporate Wealth Over Public Health? Assessing The Resilience Of Developing Countries' Covid-19 Responses Against Investment Claims And The Implications For Future Public Health Crises, Tim Hagemann

Pace International Law Review

In the wake of the Covid-19 pandemic, states around the world swiftly enacted a multitude of far-reaching emergency responses to contain the viruses’ spread and to cope with the economic repercussions of the ensuing crisis. However, these measures detrimentally impacted the operating conditions of many businesses or, at the least, decreased their profitability. As this inevitably affected foreign investments, investors could be tempted to invoke “Investor State Dispute Settlement” (“ISDS”) clauses in International Investment Agreements (IIAs) to initiate proceedings before arbitral tribunals and seek compensation for loss of profit caused by states’ Covid-19 responses. Due to the specific circumstances in …

Overhaul Of The Sdt Provisions In The Wto: Separating The Eligible From The Ineligible, Md. Rizwanul Islam

Pace International Law Review

The special and differential treatment (“SDT”) provisions have been a recurring feature in the agreements of the World Trade Organization (“WTO”) treaties. However, most analysts would probably agree that the many SDT provisions have been more aspirational than operational. Hence, there is little surprise that even a selective review of the WTO jurisprudence would demonstrate that the SDT provisions have, in most cases, not done enough for their intended beneficiaries. This paper will analyze the limitations of the SDT provisions with reference to the relevant WTO jurisprudence. It will seek to explore two potential avenues of endeavoring to make the …

Overview On The Lebanese Environmental Governance System: Main Hazards In The Oil And Gaz Sector, Rami Harkous

BAU Journal - Science and Technology

Due to harsh environment and vulnerability of marine ecosystems, many challenges are faced regarding offshore oil and gas activities. Many steps are currently undertaken to overcome such challenges.

As Lebanon is inside the new oil and gas sector in its offshore region, plans should be made to address environmental challenges that may occur in this sector. The Lebanese environmental governance system meets international standards in various aspects but some gaps are addressed to manage such risks that may be encountered with oil and gas activities in the Lebanese offshore. This article ends by a fast run through environmental regulatory authority, …

State Revenue Dedicated For Special Purposes: A Proposed Constitutional Amendment, Mark Andrews

Alaska Law Review

The Alaska State budget has decreased in recent years, and because of the lower price of oil, it is not expected to recover in the near term. This smaller budgetary pie may intensify the impulse to protect the funding of individual projects. However, the Alaska Constitution forbids the dedication of taxes for specific purposes. This Essay proposes a state constitutional amendment that would allow such dedications, subject to limits designed to avoid potential problems. The Essay describes the effect the proposal would have had on past decisions of the Alaska Supreme Court and compares the dedication of tax revenue to …

The Importance Of Soft Law Issued By The European Banking Authority For Establishing The Normative Consumer Protection Standard On The Financial Market, Magdalena Fedorowicz

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

In financial market legal acts, the normative accent lately underlines supervision issues, with particular emphasis of consumer protection issues, which is common for EU and domestic lawmakers. It is important to adopt a regulatory philosophy that properly supports the protection of the legal interests of consumers on the financial market. The main aim of this paper is to analyze the consumer protection standard, the normative consumer protection pattern on the financial market, reconstructed and specified from and by EBA soft law acts, within the legal space of the European System of Financial Supervision, having regard to EU and domestic binding …

The Amendment To The Provisions On Consumer Bankruptcy In The Time Of The Crisis Caused By Covid-19, Wanesa Choptiany

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article focuses on the analysis of the amended Polish provisions on the procedure for declaring consumer bankruptcy and the beginning of their operation, which coincided with the pandemic crisis and significant economic constraints. Numerous restrictions and announced blockades led to the deterioration of the economic situation of many companies, entrepreneurs and natural persons, therefore the new regulations were immediately put through a special test. The article consists of two parts: dogmatic and empirical. The former presents the new as well as the planned bankruptcy regulations. On the other hand, in the empirical part, statistics and reports on the functioning …

A Few Words On Current Problems And Challenges Of Consumer Protection In The Financial Services Market, Edyta Rutkowska-Tomaszewska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

From the volume editor.

Liability For The Execution Of A Payment Transaction With The Use Of An Incorrect Unique Identifier Under The Payment Services Act, Bartosz Wyżykowski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article concerns certain aspects of pursuing claims by the payer in order to retrieve the amount of a payment transaction executed with the use of an incorrect unique identifier. For this purpose, an analysis is carried out of the provisions of the Payment Services Act, which was amended in 2018 as a result of the implementation of the Second Payment Services Directive into the Polish legal system. Reviewed in the paper are also judgments of courts issued in cases where a transaction was executed with the use of an incorrect unique identifier.

Entire Issue Vol. 10 No. 7

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Vol. 10(7)

Foreword: The Free Speech Record Of The Roberts Court, William D. Araiza

Brooklyn Law Review

On April 9, 2021, scholars gathered at Brooklyn Law School to consider the free speech themes highlighted by a catalogue of the Roberts Court’s free speech jurisprudence. The speakers provided incisive and timely insight on these themes—insight that is reflected in the catalogue and accompanying papers published in this symposium issue of the Brooklyn Law Review. This introduction provides an overview of this symposium issue and the questions presented by each article and essay.

The Roberts Court—Its First Amendment Free Expression Jurisprudence: 2005­–2021, Ronald K.L. Collins, David L. Hudson Jr.

Brooklyn Law Review

The decisional law of the First Amendment is an area of law formulated, for the most part, by the high court of the land. At the same time, the study of free speech is equally a study in political philosophy and law. Supreme Court justices have left their mark on the First Amendment free speech doctrine and have made names for themselves in the process. This study explores the impact of Chief Justice John Roberts and the Roberts Court on the free speech doctrine. By examining the case law in this area and the justices and lawyers who craft it, …

The Law Of License Plates And Other Inevitabilities Of Free Speech Context Sensitivity, William D. Araiza

Brooklyn Law Review

This article, written for a symposium on Ronald Collins’s and Professor David Hudson’s catalogue of the Roberts Court’s First Amendment free speech jurisprudence, reconsiders the longstanding tension between rigid free speech rules and more contextual standards. It examines that debate by considering a set of relatively recent free speech cases in which the Court ostensibly adopted rigid rules, but in doing so arguably cloaked its reliance on more contextual factors by manipulating those rules. In cases dealing with national security and judicial electoral speech, the Court manipulated the strict scrutiny the Court insists applies to nearly every content-based speech restriction …

Punishing Drug Use During Pregnancy: Is It Time To “Just Say No” To Fetal Rights?, Danika E. Gallup

Brooklyn Law Review

In family courts throughout the country, civil neglect and abuse petitions are routinely brought against individuals based on their drug use during pregnancy. While some may be quick to justify such state interventions in the name of child protection based on the presumption that drug use always harms fetuses in utero and the child once it is born, this note questions the propriety of such justifications. While drug use during pregnancy may result in detrimental health outcomes, the theoretical underpinning of this premise has been dramatically distorted due to racist and classist assumptions that permeate child protective schemes. Medical research …

Paging Doctor Robot: Medical Artificial Intelligence, Tort Liability, And Why Personhood May Be The Answer, Benedict See

Brooklyn Law Review

Artificial intelligence (AI) is a part of everyday life. From our phones, to social media accounts, to online shopping, AI is present and enhances our daily experiences. One area where AI has a heavy (and an increasing) presence is the medical industry. Just as humans make mistakes, so does AI. However, when a human doctor makes a mistake, they can be sued for malpractice, but when AI makes a mistake, who is to be held responsible? Because tort law was designed with humans in mind, it may be hard to apply to medical AI, who’s “black box” algorithms make their …

Introductory Remarks: The Roberts Court And The First Amendment: An Introduction, Geoffrey R. Stone

Brooklyn Law Review

On April 9, 2021, Geoffrey R. Stone delivered the following introductory remarks at The Roberts Court and Free Speech Symposium at Brooklyn Law School. An adaptation of Geoffrey R. Stone, Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century Lead Article (2008), Dean Stone detailed the history of the pre-Roberts Court First Amendment jurisprudence and laid the foundation for the symposium’s scholarly discourse.

Free Speech Still Matters, Joel M. Gora

Brooklyn Law Review

In its first ten years, the Roberts Court proved to be the most speech protective Court in a generation, if not in our history; however, in the intervening five years, the Court has faced intense pressures, ranging from heightened criticism of its First Amendment jurisprudence to seismic changes in the makeup of the Court to very real proposals for court “packing.” Despite these powerful forces, the Roberts Court has surprisingly stayed true to its commitment to—and guardianship of—the First Amendment. Nevertheless, in the face of modern political correctness and cancel culture, free speech has rarely been in a more precarious …

The Anti-Free Speech Movement, Robert Corn-Revere

Brooklyn Law Review

What does it mean for the Supreme Court, under Chief Justice John Roberts, to be “good” when it comes to the First Amendment? First Amendment lawyer Robert Corn-Revere tackles this question, by looking at the history of censorship in the United States. Through a historical lens, Mr. Corn-Revere examines the arguments for regulating “bad” speech in order to promote “good” speech, and analogizes this approach to the work of early American censors like Anthony Comstock. This article examines how the history of censorship has shaped First Amendment law, and ultimately through his analysis, Mr. Corn-Revere identifies several examples of what …

The Online Criminal Trial As A Public Trial, Stephen Smith

Faculty Publications

There are two ways of favorably conceiving online trials in Sixth Amendment terms. One is that an online trial is a public trial, by its terms. The other is that an online trial may not be public, for Sixth Amendment purposes, but may nonetheless satisfy applicable constitutional demands for trials considered “closed.” This Essay proposes both: that an online trial is fundamentally “public” for Sixth Amendment purposes and, if it is not, it may still be a constitutional accommodation of the Sixth Amendment’s public trial guarantee, in appropriate circumstances.

The constitutionality of an online trial may be largely an idle …

Law School News: Rwu Law Remembers Sarah Weddington 12/30/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Ware V. Ware And The Presumption Of Undue Influence In Confidential Relationships, Ian W. Fraser

Alaska Law Review

Alaska law has long recognized that a presumption of undue influence arises as a matter of law when a will’s primary beneficiary participates in its drafting and has a fiduciary or confidential relationship with the testator. In its 2007 decision Ware v. Ware, the Alaska Supreme Court extended this principle beyond testamentary scenarios to any situation in which the principal in a confidential relationship benefits from the relationship. But the decision stated the law incorrectly. The court’s analysis, cited precedents, and common sense all demonstrate that the court meant to say that the presumption of undue influence arises when a …