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2021

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Full-Text Articles in Law

Regulating Mobility Limitations In The Franchise Relationship As Dependency In The Joint Employment Doctrine, Andrew Elmore Dec 2021

Regulating Mobility Limitations In The Franchise Relationship As Dependency In The Joint Employment Doctrine, Andrew Elmore

Articles

Franchisors often impose exhaustive operational standards on franchisees, and enforce those standards by restricting the mobility of their franchisees and their franchisees' employees. But courts often ignore mobility limits when applying joint employer doctrine. This Article argues that courts and agencies should be more likely to find, and presume, that franchisors and their franchisees are joint employers under federal and state employment law based on proof that a franchisor restricts the mobility of franchisees or their employees. In so doing, this Article traces how the Chicago School's efficiency arguments in favor of relaxing antitrust law enforcement of vertical restraints developed …

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Textual Gerrymandering: The Eclipse Of Republican Government In An Era Of Statutory Populism, William N. Eskridge, Victoria Frances Nourse Dec 2021

Textual Gerrymandering: The Eclipse Of Republican Government In An Era Of Statutory Populism, William N. Eskridge, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

We have entered the era dominated by a dogmatic textualism—albeit one that is fracturing, as illustrated by the three warring original public meaning opinions in the blockbuster sexual orientation case, Bostock v. Clayton County. This Article provides conceptual tools that allow lawyers and students to understand the deep analytical problems faced and created by the new textualism advanced by Justice Scalia and his heirs. The key is to think about choice of text—why one piece of text rather than another—and choice of context—what materials are relevant to confirm or clarify textual meaning. Professors Eskridge and Nourse apply these concepts …

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Facing Injustice: How Face Recognition Technology May Increase The Incidence Of Misidentifications And Wrongful Convictions, Laura M. Moy Dec 2021

Facing Injustice: How Face Recognition Technology May Increase The Incidence Of Misidentifications And Wrongful Convictions, Laura M. Moy

Georgetown Law Faculty Publications and Other Works

Does law enforcement use of face recognition technology paired with eyewitness identifications increase the incidence of wrongful convictions in U.S. criminal law? This Article explores this critical question and posits that the answer may be yes. Facial recognition is frequently used by law enforcement agencies to help generate investigative leads that are then presented to eyewitnesses for positive identification. But erroneous eyewitness accounts are the number one cause of wrongful convictions, and the use of face recognition to generate investigative leads may create the conditions for erroneous eyewitness identifications to take place. This is because face recognition technology is designed …

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The Singapore Green Plan 2030: Analysing Its Implications On Law And The Legal Industry In Singapore, Wei Yao, Kenny Chng, Ken Wei Ong Dec 2021

The Singapore Green Plan 2030: Analysing Its Implications On Law And The Legal Industry In Singapore, Wei Yao, Kenny Chng, Ken Wei Ong

Research Collection Yong Pung How School Of Law

While sustainability has always been an important policy imperative in Singapore, the advent of the Singapore Green Plan 2030 marks a significant development in this regard. Announced in February 2021, the Green Plan represents a concerted national-level strategic shift towards advancing the sustainability agenda in Singapore. With sustainable development now being a ‘major policy priority’, it is inevitable that the Green Plan will have important legal implications, each of which will be identified and analysed in this paper. More broadly, however, the paper also suggests that the Green Plan will open up valuable opportunities for environmental law to receive greater …

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New Civil Procedure Rules In Singapore, Adeline Chong Dec 2021

New Civil Procedure Rules In Singapore, Adeline Chong

Research Collection Yong Pung How School Of Law

No abstract provided.

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Extraterritoriality Of Chinese Law: Myths, Realities And The Future, Zhengxin Huo, Man Yip Dec 2021

Extraterritoriality Of Chinese Law: Myths, Realities And The Future, Zhengxin Huo, Man Yip

Research Collection Yong Pung How School Of Law

While China strongly opposes the US practice of ‘long-arm jurisdiction’, it has decided to build its own legal system of extraterritoriality. This paradox reflects the crossroads at which China finds itself currently. Being a country weaker than the sole global superpower, it needs to stand firmly against the American ‘legal bullyism’ by invoking the shield of territorial sovereignty. Yet, as an emerging world power, it is in China’s interest to establish a legal system of extraterritoriality to safeguard its own national interests that extend globally. This article has two aims. First, it provides a comprehensive overview of the current model …

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Die Finanzierung Der Nachhaltigkeitsziele: Welche Rolle Spielen Handels- Und Investitionsabkommen?, Stefanie Schacherer Dec 2021

Die Finanzierung Der Nachhaltigkeitsziele: Welche Rolle Spielen Handels- Und Investitionsabkommen?, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

The relationship between foreign direct investment (FDI) and sustainable development is controversial. Studies on the concrete benefits of FDI for sustainable development have not yielded clear results. Nevertheless, sustainable development is central to the ongoing reform process of international investment law. Ideally, international investment agreements (IIAs) should promote the Sustainable Development Goals (SDGs). In any case, IIAs should not undermine national implementation of the SDGs. The following analysis and conceptualization of current developments and legal standards for international investment law will be presented.

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Conceptualising A Role For The Common Law In Environmental Protection In Singapore, Kenny Chng Dec 2021

Conceptualising A Role For The Common Law In Environmental Protection In Singapore, Kenny Chng

Research Collection Yong Pung How School Of Law

In Singapore, the key institutions driving environmental protection are the legislature and the executive. The judiciary’s role in environmental protection has thus far been relatively minor. By drawing upon environmental law theory and comparative analysis of other common law jurisdictions, this paper aims to explore avenues through which the common law can be engaged more meaningfully to further environmental protection in Singapore. A conceptualisation of environmental law as directed at furthering the rule of law by promoting carefully-considered and participatory environmental governance will be suggested as a fruitful way forward for thinking about the role of the common law in …

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'Good Administration' And The 'Good': The Normative Foundation For The Protection Of Legitimate Expectations, Wei Yao, Kenny Chng Dec 2021

'Good Administration' And The 'Good': The Normative Foundation For The Protection Of Legitimate Expectations, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

An idea that has gained significant traction in both case law and academic commentary as a justification for the protection of legitimate expectations is the concept of ‘good administration’. Going beyond the usual criticisms of the concept’s ambiguity, this article aims to highlight an additional set of difficulties with the invocation of ‘good administration’ as the normative justification for the doctrine. This article’s central argument is that the concept of ‘good’ invoked by the idea of ‘good administration’ inevitably falls to be substantiated by a particular conception of what the ‘good’ requires as a matter of political philosophy. And given …

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Stamp Duty Traps To Watch Out For, Hern Kuan Liu, Vincent Ooi Dec 2021

Stamp Duty Traps To Watch Out For, Hern Kuan Liu, Vincent Ooi

Research Collection Yong Pung How School Of Law

On 15 December 2021, the Ministry of Finance introduced a new package of measures designed to cool the residential property market. The measures include increases in Additional Buyer’s Stamp Duty (“ABSD”), the tightening of the Total Debt Servicing Ratio, adjustments to the Loan to Valuation limit for loans from HDB and a planned increase of housing supply.Notably, there were significant increases in the ABSD rates applicable to almost all categories of buyers. The ABSD rates only remained unchanged for Singapore Citizens and Permanent Residents purchasing their first residential property (0% and 5% respectively). This article focuses on the implications of …

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Reconceptualising Fiduciary Regulation In Actual Conflicts, Man Yip, Kelvin Low Dec 2021

Reconceptualising Fiduciary Regulation In Actual Conflicts, Man Yip, Kelvin Low

Research Collection Yong Pung How School Of Law

Tis article reviews the fiduciary duty to avoid actual conflicts. It argues that the duty to avoid actual conflicts adds limited substantive value to fiduciary accountability. Its present form has also contributed to widespread misconception of what should be expected of an unfortunate fiduciary who finds themselves in such a position. In this respect, we propose that many of the modern scenarios involving actual conflicts of duties or conflicts of duties and interests are better analysed not in terms of conflict avoidance but in terms of conflict management. Our analysis paves the way for thoughtfully working out what the fiduciaries’ …

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Transformative Governance Of Biodiversity: Insights For Sustainable Development, J. Visseren-Hamakers Ingrid, Jona Razzaque, Pamela Mcelwee, Esther Turnhout, Eszter Kelemen, Graciela M. Rusch, Álvaro Fernández-Llamazares, Ivis Chan, Michelle Mei Ling Lim, Et Al. Dec 2021

Transformative Governance Of Biodiversity: Insights For Sustainable Development, J. Visseren-Hamakers Ingrid, Jona Razzaque, Pamela Mcelwee, Esther Turnhout, Eszter Kelemen, Graciela M. Rusch, Álvaro Fernández-Llamazares, Ivis Chan, Michelle Mei Ling Lim, Et Al.

Research Collection Yong Pung How School Of Law

While there is much debate on transformative change among academics and policymakers, the discussion on how to govern such change is still in its infancy. This article argues that transformative governance is needed to enable the transformative change necessary for achieving global sustainability goals. Based on a literature review, the article unpacks this concept of transformative governance. It is: integrative, to ensure local solutions also have sustainable impacts elsewhere (across scales, places, issues and sectors); inclusive, to empower those whose interests are currently not being met and represent values embodying transformative change for sustainability; adaptive, enabling learning, experimentation, and reflexivity, …

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Table Of Contents - Cardozo Law Review, Volume 43, Issue 2 Dec 2021

Table Of Contents - Cardozo Law Review, Volume 43, Issue 2

Cardozo Law Review

No abstract provided.

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Free Justice: A History Of The Public Defender In Twentieth-Century America, Kate Levine Dec 2021

Free Justice: A History Of The Public Defender In Twentieth-Century America, Kate Levine

Articles

Levine reviews Free justice: A history of the public defender in twentieth-century America. By Sara Mayeux. Chapel Hill, NC: University of North Carolina Press, 2020. 286 pp. $26.95 paperback.

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Table Of Contents Dec 2021

Table Of Contents

Georgia Law Review

No abstract provided.

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The Lost History Of Delegation At The Founding, Christine Chabot Dec 2021

The Lost History Of Delegation At The Founding, Christine Chabot

Georgia Law Review

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch’s dissent in Gundy v. United States—an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …

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Criticizing Judges: A Lawyer's Professional Responsibility, Lonnie T. Brown Dec 2021

Criticizing Judges: A Lawyer's Professional Responsibility, Lonnie T. Brown

Georgia Law Review

Lawyers, as officers of the court, are expected to act with deference and respect toward judges. Speaking sharply to or publicly criticizing members of the bench is frowned upon and not infrequently met with punitive responses. The judiciary, however, is not above reproach. Judges are fallible and may possess personal biases, tainting self-interest, or even prejudice. As such, at times, they must disqualify themselves if their ability to dispense justice fairly and impartially can reasonably be questioned. Indeed, the very nature of a judge’s role requires avoidance of even the “appearance of impropriety.” When judges fail to adhere to this …

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Deadly 'Toxins': A National Empirical Study Of Racial Bias And Future Dangerousness Determinations, Justin D. Levinson, G. Ben Cohen, Koichi Hioki Dec 2021

Deadly 'Toxins': A National Empirical Study Of Racial Bias And Future Dangerousness Determinations, Justin D. Levinson, G. Ben Cohen, Koichi Hioki

Georgia Law Review

Since the beginning of the modern Death Penalty Era, one of the most important—and fraught—areas of capital punishment has been the so-called “future dangerousness” determination, a threshold inquiry that literally rests the defendant’s life or death on jurors’ predictions of the future. An overwhelming majority of capital executions have occurred in jurisdictions that embrace the perceived legitimacy of the future dangerousness inquiry, despite its obvious flaws and potential connection to the age-old racial disparities that continue to plague capital punishment. This Article presents, and empirically tests, the hypothesis that jurors’ future dangerousness assessments cannot be separated from their racial and …

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The Gig Economy’S Short Reach: An Analysis Of The Scope Of The Federal Arbitration Act’S “Transportation Worker” Exemption, Emina Sadic Herzberger Dec 2021

The Gig Economy’S Short Reach: An Analysis Of The Scope Of The Federal Arbitration Act’S “Transportation Worker” Exemption, Emina Sadic Herzberger

Georgia Law Review

The Federal Arbitration Act (FAA) governs arbitration agreements in the United States. Section 1 of the FAA provides an exemption from arbitration for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” In a 2001 decision, Circuit City Stores, Inc. v. Adams, the U.S. Supreme Court held that the residual phrase “any other class of workers engaged in foreign or interstate commerce” includes transportation workers. But, such language is ambiguous, and the Supreme Court did not expound upon what it means to be a transportation worker or to be engaged …

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Agents Of Bioshield: The Fda, Emergency Use Authorizations, And Public Trust, Kirstiana Perryman Dec 2021

Agents Of Bioshield: The Fda, Emergency Use Authorizations, And Public Trust, Kirstiana Perryman

Georgia Law Review

The SARS-CoV-2 pandemic spurred the U.S. Food & Drug Administration (FDA) to utilize the Emergency Use Authorization (EUA) procedure more than ever before. The pandemic pushed the relatively obscure procedure into public consciousness, making it a frequent topic of discussion and debate. The EUA procedure permits the FDA Commissioner to authorize the introduction of drugs, devices, or biological products into interstate commerce for use in an actual or potential emergency. To issue an authorization, the FDA Commissioner must determine that it is “reasonable to believe,” based on the “totality of the evidence,” that the product “may be effective.” This standard …

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Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution In The Post-Covid World, Jessie Daniel Rankin Dec 2021

Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution In The Post-Covid World, Jessie Daniel Rankin

Georgia Law Review

In the wake of the COVID-19 pandemic, Georgia Governor Brian Kemp and other state governors issued emergency executive orders authorizing the attestation and execution of wills, trusts, and other testamentary documents through the use of audio-video technology. Most states have traditionally required that such testamentary documents be signed in the physical presence of two or more witnesses to be valid. Georgia’s executive order permits these witnesses to instead observe the signing via video-conferencing software, alleviating the requirement that the witnesses be physically present with the testator. This authorization, however, only exists through this executive order and could lapse or be …

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Boom Or Bust: Ensuring The Georgia State-Wide Business Court Fulfills Its Constitutional Promise, Roya Naghepour Dec 2021

Boom Or Bust: Ensuring The Georgia State-Wide Business Court Fulfills Its Constitutional Promise, Roya Naghepour

Georgia Law Review

The United States judiciary includes specialized court systems within its baseline civil and criminal justice structure that provide more efficient and expert adjudication in a wide variety of areas. Since the creation of the Delaware Court of Chancery in 1792, many states have established specialized business courts with jurisdiction over commercial and corporate disputes. Today, many states have business court models, all choosing to employ some version of a specialized forum for corporate and commercial issues for the sake of judicial efficiency. The Georgia State-wide Business Court was established in 2019 with limited jurisdiction over narrow categories of commercial disputes. …

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Going, Going, Gone: Takings Clause Challenges To The Cdc’S Eviction Moratorium, Meredith Bradshaw Dec 2021

Going, Going, Gone: Takings Clause Challenges To The Cdc’S Eviction Moratorium, Meredith Bradshaw

Georgia Law Review

In September 2020, in response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services issued a residential eviction moratorium to prevent the further spread of COVID- 19. One year later, the U.S. Supreme Court terminated the moratorium. During the year that the moratorium was in effect, landlords across the country filed lawsuits against the CDC because they were unable to evict tenants who did not satisfy their rental obligations. Because the moratorium allowed tenants to remain on the property without paying rent, some landlords argued that the regulation effected …

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Environmental Law, Disrupted By Covid-19, Rebecca Bratspies, Vanessa Casado-Pérez, Robin Kundis Craig, Lissa Griffin, Keith Hirokawa, Sarah Krakoff, Katrina Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, Erin Ryan, David Takacs Dec 2021

Environmental Law, Disrupted By Covid-19, Rebecca Bratspies, Vanessa Casado-Pérez, Robin Kundis Craig, Lissa Griffin, Keith Hirokawa, Sarah Krakoff, Katrina Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, Erin Ryan, David Takacs

Faculty Scholarship

As we were in the final phases of editing a book on disruption in environmental law, a pandemic swept across the world disrupting daily life and the functioning of society to an extent unprecedented in living memory. The novel coronavirus known as COVID-19 was identified in China in late 2019 and by late February 2020, it had spread to every continent except Antarctica; as of April, 2021, the World Health Organization (WHO) estimated that over 148 million people had been infected worldwide with over 3 million deaths. Scientists and public health experts have raced to understand the virus—how is it …

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Securities Law: Overview And Contemporary Issues, Neal Newman, Lawrence J. Trautman Dec 2021

Securities Law: Overview And Contemporary Issues, Neal Newman, Lawrence J. Trautman

Faculty Scholarship

This is not your grandfather’s SEC anymore. Rapid technological change has resulted in novel regulatory issues and challenges, as law and policy struggles to keep pace. The U.S. Securities and Exchange Commission (SEC) reports that “the U.S. capital markets are the deepest, most dynamic, and most liquid in the world. They also have evolved to become increasingly fast and extraordinarily complex. It is our job to be responsive and innovative in the face of significant market developments and trends.” With global markets increasingly interdependent and interconnected and, “as technological advancements and commercial developments have changed how our securities markets operate, …

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The Case For Corporate Climate Ratings: Nudging Financial Markets, Felix Mormann, Milica Mormann Dec 2021

The Case For Corporate Climate Ratings: Nudging Financial Markets, Felix Mormann, Milica Mormann

Faculty Scholarship

Capital markets are cast as both villain and hero in the climate playbill. The trillions of dollars required to combat climate change leave ample room for heroics from the financial sector. For the time being, however, capital continues to flow readily toward fossil fuels and other carbon-intensive industries. Drawing on the results of an empirical study, this Article posits that ratings of corporate climate risk and governance can help overcome pervasive information asymmetries and nudge investors toward more climate-conscious investment choices with welfare-enhancing effects.

In the absence of a meaningful price on carbon, three private ordering initiatives are trying to …

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What The Pandemic Taught Us: The Health Care System We Have Is Not The System We Hoped We Had, William M. Sage Dec 2021

What The Pandemic Taught Us: The Health Care System We Have Is Not The System We Hoped We Had, William M. Sage

Faculty Scholarship

The United States spends nearly twice as much per capita on medical care as any other country. The United States has the world’s most advanced biomedical technologies, sophisticated hospitals, and skilled health professionals. The United States has a national public health body, the Centers for Disease Control and Prevention (CDC), that is generally considered the world’s leader in infectious disease detection and response. Nonetheless, the United States suffered among the world’s worst COVID-19 disease burdens and outcomes, inflicting largely avoidable harm on patients, health professionals, and the broader community.

Why this happened is clearly important. But that it happened is …

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The Public Meaning Thesis: An Originalist Theory Of Constitutional Meaning, Lawrence B. Solum Dec 2021

The Public Meaning Thesis: An Originalist Theory Of Constitutional Meaning, Lawrence B. Solum

Faculty Scholarship

Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process …

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Decolonizing Shipwrecks Through Considerations Of Indigeneity In Underwater Cultural Property Decisions, Chelle Haynes Nov 2021

Decolonizing Shipwrecks Through Considerations Of Indigeneity In Underwater Cultural Property Decisions, Chelle Haynes

Florida Journal of International Law

Under current international law, indigenous rights are not considered in ascertaining ownership of underwater cultural property. Indigenous people in Latin America and South America have faced long histories of colonialism, wherein their resources, property, and heritage were appropriated and taken by imperial powers. In this Article, I present the historical context of both the San Jose and Mercedes shipwrecks—Spanish colonial ships that were sunk in battle. I explore the history and legal decisions in both cases, while also considering how indigenous rights can be introduced into the current legal framework. Current international law concerning underwater cultural resources is primarily comprised …

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International Law And Limits On The Sovereignty Of African States, John Mukum Mbaku Nov 2021

International Law And Limits On The Sovereignty Of African States, John Mukum Mbaku

Florida Journal of International Law

Since the end of the Cold War, there has been an acceleration in globalization, a process that has resulted in significant increases in interaction between peoples and nations. As a consequence, it has become increasingly difficult for national governments to have full control over what happens within their territorial boundaries. In fact, globalization has made it quite difficult for national governments to exercise full control over their domestic economies and political processes. An important consequence of globalization is the internationalization of constitutional law. This process has resulted in the virtual disappearance from almost all countries of the concept of complete …

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