Law Commons^™

Why Florida Copied Its ‘Don’T Say Gay’ Bill From Hungary & What It Means For Democracy In The United States, Floersheimer Center For Constitutional Democracy

2022–2023 Flyers

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Letting Offenders Choose Their Punishment?, Gilles Grolleau, Murat C. Mungan, Naoufel Mzoughi

Faculty Scholarship

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options. We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes. We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. Our observations thus constitute a challenge, based on behavioral arguments, to the …

Another Bite At The Apple Or The Same Bite? Characterizing Habeas Petitions On Appeal As Pending Instead Of Fully Adjudicated, Gregory Winder

William & Mary Law Review

[...] One of the Act's [Antiterrorism and Effective Death Penalty Act] most significant aspects is its restriction on the filing of successive habeas corpus petitions. Responding to this restriction, prisoners have attempted to circumvent the AEDPA through a number of different procedural routes with varying degrees of success.

This Note examines the circuit split that has emerged for one of those procedural attempts—motions to amend habeas petitions following adjudication on the merits and while on appeal in a circuit court. This Note argues that allowing amendment of habeas petitions on appeal is both consistent with the history of habeas corpus …

Incitement And Social Media-Algorithmic Speech: Redefining Brandenburg For A Different Kind Of Speech, Anna Rhoads

William & Mary Law Review

Assuming that these scholars are correct and that social media algorithms’ decisions qualify as speech to which the First Amendment applies (social media-algorithmic speech), this Note proposes a legal solution to the increasing problem of violence stemming from social media. This Note asserts that the incitement standard for social media-algorithmic speech should be less stringent because the Brandenburg standard does not apply well to new media, social media-algorithmic speech is much more likely than other speech to actually produce lawless action, and the traditional First Amendment justifications do not apply to social media algorithms’ speech. Therefore, the Supreme Court should …

Proving Copying, Shyamkrishna Balganesh, Peter S. Menell

William & Mary Law Review

Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …

Aggregation And Abuse: Mass Torts In Bankruptcy, Edward J. Janger

Faculty Scholarship

No abstract provided.

Statutory Interpretation And Agency Disgorgement Power, Caprice L. Roberts

Journal Articles

What happens when obstacles foreclose claims and threaten to leave parties without adequate relief? Or, when the cause of action escapes conventional classification? Or, when Supreme Court decisions frustrate private litigation causing pressure for public enforcement by agencies? Or, when individuals engage in novel forms of wrongdoing that the law may fail to reach? It becomes hard to resist the siren call of equity and its powerful remedies. This trend includes sweeping national injunctions, constructive trusts, and more. Disgorgement is also one such remedy, and its popularity is rising in terms of private and public applications and challenges. It is …

The Constitutional Problem Of Nondebtor Releases In Bankruptcy, Adam J. Levitin

Fordham Law Review

In recent years, nondebtor releases have become a common feature of big-case Chapter 11 bankruptcy practice. Nondebtor releases involve the release of creditor claims against third-party nondebtors pursuant to a bankruptcy plan confirmation order. Some nondebtor releases are consensual, meaning that they are done with the assent of the releasing creditor, but some are not.

This Essay argues that all nonconsensual nondebtor releases in bankruptcy are unconstitutional. The constitutional infirmities of nondebtor releases are layered: all non debtor releases—consensual or nonconsensual—are outside the scope of Congress’s authority under an original understanding of the Bankruptcy Clause; all nonconsensual nondebtor releases are …

Unfair, Abusive, And Unlawful: Protecting Debtors And Society From Unrestrained Bank Account Garnishment, Kevin Green

Fordham Law Review

In the span of a generation, consumer credit has reshaped the financial lives of millions of Americans. Today, some seventy million Americans have a debt in collections, and creditors file millions of actions annually to secure repayment of these loans. Despite the rapid expansion of consumer debt, the Consumer Credit Protection Act, the only federal law limiting garnishment, has not been updated since its enactment in 1968. Moreover, courts have narrowly construed its provisions to permit creditors to empty a debtor’s bank account to repay a delinquent debt.

To afford debtors the basic protections of the Consumer Credit Protection Act, …

Infringement Or Identification?: Nominative Fair Use And The Resale Of Luxury Goods, Jordan Phelan

Fordham Law Review

The market for luxury resale is booming and is predicted to continue its massive growth. Luxury resellers typically market and describe goods using the luxury brand’s trademarks, including the brand name and logos. Luxury brands utilize their market power to “bully” smaller resellers and often take issue with third parties using their trademarks in any context, even when the use of the mark does not encroach on the luxury brand’s share of the market. However, the doctrine of nominative fair use allows the use of a brand’s trademark when referring to that brand’s goods. An alleged infringer will be found …

Emerging Best Practices In International Atmospheric Trust Case Law, Rachel M. Pemberton, Michael Blumm

Utah Law Review

With climate change litigation proliferating throughout the world, a substantial body of case law is emerging. As part of a project of the IUCN World Commission on Environmental Law's Climate Change Specialist Group, this Article, a version of which will be included in a “Judicial Handbook on Climate Litigation,” explains the public trust doctrine’s influence on climate change litigation internationally. We select what we view as judicial “best practices” as a kind of restatement of international atmospheric trust law in 2022. International atmospheric trust law is at the forefront of many best practices, as state and federal courts in the …

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Improving (And Avoiding) Interstate Interpretive Encounters, Aaron-Andrew P. Bruhl

Faculty Publications

State courts often encounter the statutes of other states. Any encounter with another state’s statutes raises an interesting but inconspicuous question about choice of law. In particular, the interstate encounter presents a choice of interpretive law. Despite some universal practices in statutory interpretation, there are methodological differences across jurisdictions—both at the level of overall approach and in the details of particular interpretive canons. When a state court encounters the statute of a sister state, may the forum state use its own interpretive methods or must it instead use the methods of the enacting state?

The existing doctrine on this choice-of-law …

Nomos, Narrative, And Nephi: Legal Interpretation In The Book Of Mormon, Nathan B. Oman

Faculty Publications

The Book of Mormon helped launch one of America’s most successful religions, and millions around the world accept it as scripture. It is thus one of the more influential books to have been published in the United States. Ironically, precisely because of its role in the founding of Mormonism, the text of the Book of Mormon has often been ignored. Recently, however, the Book of Mormon has begun to attract the attention of scholars whose interest in the text goes beyond either religious devotion or the academic study of Mormonism. Rather, they look to the text as a literary creation …

The Future Of College Sports After Alston: Reforming The Ncaa Via Conditional Antitrust Immunity, Nathaniel Grow

William & Mary Law Review

In June 2021, a unanimous U.S. Supreme Court issued its eagerly anticipated decision in National Collegiate Athletic Association v. Alston, ruling for the first time that NCAA rules governing student-athlete eligibility are subject to full scrutiny under federal antitrust law. Although the immediate impact of the Alston decision was rather modest—merely requiring the NCAA to allow its schools to compete by offering prospective players education-related benefits such as laptop computers and stipends for future graduate-level study—the Court hinted that it was prepared to extend the logic of this ruling much further, calling into question the legality of the NCAA’s …

A World Without Roe: The Constitutional Future Of Unwanted Pregnancy, Julie C. Suk

William & Mary Law Review

With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing …

Good Newsletter November 1, 2022, Seattle University School Of Law Dean

GOOD NEWSletter

No abstract provided.

10-Minute Ebd: Is Oil-Pulling Useful In Treating Periodontal Disease?, Heather Willey Rda

The Journal of the Michigan Dental Association

The 10-Minute Evidence-Based Dentistry Column illustrates how to implement the evidence-based dentistry search process to quickly identify and apply the best literature to answer a clinical question. Through critical appraisal, the author of this article answers the clinical question: Is Oil-Pulling Useful in Treating Periodontal Disease? Examining the potential utility of oil-pulling as a treatment for periodontal disease and comparing it to conventional periodontal therapies. The study conducted an evidence-based search using various databases and keywords related to oil-pulling, periodontal disease, and oral health. The results revealed that oil-pulling is not a substitute for standard oral hygiene practices, and insufficient …

Dentistry And The Law: Ex-Employees Who Solicit Patients Using Stolen Information, Dan Schulte Jd

The Journal of the Michigan Dental Association

This month’s Dentistry and the Law column discusses actions to take with a former employee who solicits patients. In cases where former employees solicit patients using stolen patient information, dental practices can take legal action. Employment agreements and employee handbooks should include confidentiality clauses. Breach of these clauses allows for lawsuits, seeking damages for business loss. Additional claims like tortious interference, unfair competition, and misappropriation may also apply. Michigan's Uniform Trade Secrets Act can provide injunctive relief and damages if the patient information is deemed a "trade secret." Seeking legal advice from an experienced attorney is essential.

Be Bullish About Dentistry — Stop Doom Scrolling!, Christopher J. Smiley Dds

The Journal of the Michigan Dental Association

This editorial encourages readers to stop focusing on negative news feeds and provides a positive outlook on the profession of dentistry, emphasizing the potential for growth and improvement. It highlights the impact of emerging technology, increased public awareness of oral health, and the enthusiasm of new professionals. The author also stresses the need for continuous adaptation and collaboration within the dental community.

How To Budget Better For Dental Supplies, Theodore C. Schumann Ii Mba, Msf, Cfp, Aif

The Journal of the Michigan Dental Association

Managing costs effectively is essential for dental practices in an era of rising inflation. One area where overspending can occur is clinical supplies. Over time, complacency among practice owners or staff in charge of ordering supplies can lead to repeated, uninformed purchases. Setting a budget and utilizing technology for supply-sourcing decisions can help control costs. Group purchasing organizations like The Dentists Supply Company (TDSC) can offer significant savings compared to traditional dental distributors. Additionally, practice owners need to strike a balance between bargain shopping for supplies and productive dentistry. Using inferior, cheaper products can lead to complications and costly rework, …

Covid-19 Heroes: From Skis To Face Shields, Christopher J. Smiley Dds

The Journal of the Michigan Dental Association

Shaggy's Skis in Boyne City, Michigan, repurposed its ski manufacturing operations to create essential personal protective equipment (PPE) for healthcare workers during the COVID-19 pandemic. After their Facebook post asking how they could aid pandemic efforts, McLaren Hospital approached them with a request to manufacture protective face shields. Shaggy's responded by producing over 150,000 disposable shields for McLaren Health System hospitals, keeping their team employed during the shutdown. They also created shields for dental professionals, accommodating optical loops and light. The company's history of repurposing operations and Jeff Thompson's mechanical engineering background helped them adapt to manufacturing PPE. This effort …

How The Mda Meets Your Need For Quality, Affordable Ce, Kevin Sloan Dds, Ms

The Journal of the Michigan Dental Association

The Michigan Dental Association (MDA) is a prominent provider of continuing dental education (CE) in Michigan. This article includes a guide to State of Michigan Dental Licensure CE requirements and the mandated distribution of subject topics. To aid members in complying with these requirements, the MDA offers diverse educational sessions, live webinars, in-person seminars, and on-demand webinars tailored for dental professionals, including dentists, hygienists, assistants, and office staff. The MDA's CE program is shaped by its Committee on Continuing Education, comprised of diverse member dentists. The MDA collaborates with various committees, organizations, and dental societies to curate a comprehensive lineup …

A Butterfly In Covid: Structural Racism And Baltimore's Pretrial Legal System, Doug Colbert, Colin Starger

All Faculty Scholarship

Summer of 2020 represented a potentially pivotal moment in the movements against mass incarceration and for racial justice. The authors commenced a study of Baltimore’s pretrial legal system just as the convergence of the COVID-19 pandemic and urgent cries of Black Lives Matter appeared to present a once-in-a-generation opportunity for meaningful decarceration. Over forty-four weekdays in June and July, the team observed bail review hearings in 509 cases and collected extensive data from the arguments and recommendations offered by the pretrial agency and prosecuting and defense attorneys. Unfortunately, the hoped-for reform failed to materialize as judges held nearly 62% of …

Microcontextual Considerations In Ouster Clause Analysis: A Comparative Study Of Parallel Trends In The United Kingdom And Singapore, Kenny Chng

Research Collection Yong Pung How School Of Law

The classic legal approach to legislative ouster clauses in the common law was articulated by the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission. However, recent developments in both the United Kingdom and Singapore indicate a judicial desire to shift away from that approach towards a more flexible analysis of an ouster clause’s effect, centered on the rule of law. This article highlights the significance of those parallel developments, especially given the starkly differing constitutional contexts shaping the approach to ouster clauses in the two jurisdictions. Capitalizing on these trends, it proposes a comparative assessment of the materiality …

Prevention Of Child Sexual Abuse In South Africa: Assessing The Role Of Parents, Community Leaders, Educators, And Social Workers, Nosisa Mabetshe, Emeka E. Obioha, Ishmael Mugari, Elphina N. Cishe

Dignity: A Journal of Analysis of Exploitation and Violence

Child sexual abuse is a global problem and is prevalent in South Africa. Child sexual abuse significantly harms the victims. This study looked at child sexual abuse prevention, focusing on the community, school system, and social workers. A mixed methods research method was used. Data were collected from 115 questionnaire respondents, of which 15 in-depth interview participants were selected. The sample was selected using purposive sampling and stratified random sampling techniques. Low reporting of incidents is hindering the effective response to child sexual abuse. The study revealed the significant role parents and community members could play in preventing child sexual …

Choosing Your Next Educational Adventure: Postgraduate Programs And Creating Your Path, Partha Mukherji Dds

The Journal of the Michigan Dental Association

This article discusses the importance of choosing the right educational path after dental school, including post-graduate programs and self-directed learning. The author reflects on their experience in opting for a General Practice Residency (GPR) program and the advantages it offered regarding skill development and career advancement. The article emphasizes the value of lifelong learning, mentorship, and the variety of continuing education options available to dentists. It encourages new dentists to take charge of their professional development and create their unique educational track.

حمایة حقوق الملكیة الفكریة بنظام السجل الرقمي (البلوكتشین), حصة محمد الكعبي

Theses

Protection of Intellectual Property Rights through the Digital Recording System (Blockchain)

The digital ledger system (Blockchain) appeared in 2008 by the Japanese programmer Satoshi Nakamoto, and his innovation came to ensure the circulation of the digital currency Bitcoin. The digital system (blockchain) has been likened to a digital record; In which information is stored and documented in an elaborate manner that is difficult to penetrate.

The UAE government has adopted the technology of digital transactions (Blockchain) in executing government transactions. To achieve the desired results, the country launched the UAE Digital Transactions Strategy 2021 and the Dubai Digital Transactions Strategy. …

الصلح الجزائي كبدیل للدعوى الجزائیة (دراسة مقارنة بین القانون الإماراتي والقانون المصري), فاخرة سیف المنصوري

Theses

Penal Conciliation as an Alternative Settlement of the Criminal Case (Comparative Study between Emirati Law and Egyptian Law)

This study compares the UAE Criminal Procedures Law to the Egyptian Criminal Procedures Law and examines the penal reconciliation system as a procedural system that aims to end litigation without a criminal case. In addition to demonstrating the nature of penal reconciliation, this study clarified the procedural provisions of the penal conciliation system and their implications.

Given that this study focuses on the penal reconciliation system, I chose to support my arguments about the nature of reconciliation and its procedural requirements with …

سلطات الإدارة في العقد الإداري بين مقتضيات الصالح العام والتوازن المالي, جاسم محمد سعيد الشرياني

Theses

This study deals with the concept of financial balance of the administrative contract as a right of the contracting party against the exceptional and unusual powers the Administration enjoys in this type of contracts in the light of the legislation and judicial rulings in the United Arab Emirates at the federal and local levels of the Emirate of Abu Dhabi. The study clarifies the concept of the financial balance of the contract, the legal nature of such concept and the circumstances of establishment of this concept. As well as this study deals with the powers vested in the contracting Administration, …