Law Commons^™

Litigation, Referendum Or Legislation? The Road To Becoming The First In Asia To Institutionalize Same-Sex Marriage, Tzu-Chiang Huang

Michigan Journal of Gender & Law

In the pursuit of same-sex marriage, advocates in each country evaluate the appropriate decision-making process for addressing this highly disputed issue—litigation, legislation, or referendum. The choice may be partially based on the institutional advantages of each approach, but more importantly, the choice is also conditioned by the legal and political context of each country, such as the authority of the court, the framing of public opinion, and the dynamics between movement and countermovement. Uniquely, all three decision-making processes are involved in the course of the institutionalization of same-sex marriage in Taiwan. This Article, focusing on the experience in Taiwan, examines …

Let It Burn: A Case Study On The Risk Management Practices Of Burning Man Project, Ethan S. De La Torre

Experience Industry Management

Risk management can be defined as a decision-making process of planning, identifying, analyzing, developing a response for, and controlling potential risks with the goal of minimizing the negative impacts of those risks. Risk management is an essential practice for all events, especially large-scale, live entertainment events. The purpose of this study was to examine the risk management practices for Burning Man. The instrument utilized in this study was a best practices guide developed by the researcher. Data were collected prior to, during, and following Burning Man 2022: Waking Dreams. Sources of data include printed material and online sources published by …

Bostock And Textualism: A Response To Berman And Krishnamurthi, Andrew Koppelman

Notre Dame Law Review Reflection

The Bostock Court adopted an argument I’ve been making for years, and that I pressed upon it in an amicus brief: that discrimina-tion against gay people is necessarily sex discrimination. I defended Justice Neil Gorsuch’s opinion for the Court in my article, Bostock, LGBT Discrimination, and the Subtractive Moves, which catalogues various common but unsuccessful strategies for evading the force of the sex discrimination argument. That piece, originally drafted before the Supreme Court’s decision as a critique of arguments by Court of Appeals judges, was easy to revise and update. The dissenters, Justices Samuel Alito (joined by Clarence …

On The Rightful Deprivation Of Rights, Frederick Schauer

Notre Dame Law Review

When people are deprived of their property rights so that the state can build a highway, a school, or a hospital, they are typically compensated through what is commonly referred to as “takings” doctrine. But when people are deprived of their free speech rights because of a clear and present danger, or deprived of their equal protection, due process, or free exercise rights because of a “compelling” governmental interest, they typically get nothing. Why this is so, and whether it should be so, is the puzzle that motivates this Article. Drawing on the philosophical literature on conflicts of rights and …

Wrongful Improvers As A Guiding Principle For Application Of The Ftc’S Ip Deletion Requirement, Emma Elder

Washington Law Review

The 2021 Federal Trade Commission (FTC) investigation into cloud storage app developer Everalbum resulted in a consent decree that required Everalbum to delete not only unlawfully collected data, but also algorithms created using that data. The FTC had imposed this kind of penalty only once before. Questions remain about how the FTC will apply this so-called intellectual property (IP) deletion requirement in the future. This Comment argues that situations where companies develop intellectual property from misappropriated consumer data are analogous to cases where courts seek to apply the property law rule of the wrongful improver, i.e., where one party knowingly …

Put Mahanoy Where Your Mouth Is: A Closer Look At When Schools Can Regulate Online Student Speech, Courtney Klaus

Notre Dame Law Review

This Note proposes a way to approach online student speech in three different contexts: cyberbullying, online threats, and other kinds of incendiary speech. Each approach is informed by a combination of lower court precedent, historical trends, and Supreme Court dicta to piece together when exceptions to online student speech protection may apply. Each analysis provides an explanation of how Tinker can and should be used to justify school discretion over particular kinds of online speech. Part I provides the history behind how the First Amendment has been used to protect public school student speech and discusses the unique issues the …

A Candle In The Labyrinth: A Guide For Immigration Attorneys To Assert Habeas Corpus After Dhs V. Thuraissigiam, Joshua J. Schroeder

UC Law Constitutional Quarterly

In the summer of 2020, immigration law seemed to become the gravitational center of presidential power. After the Supreme Court decided several immigration cases in favor of the executive department, former President Trump cited “the DACA case” to support a new constitutional theory that “[t]he Supreme Court gave the president of the United States powers that nobody thought the president had.” Accordingly, Trump began to issue presidential legislation including “an immigration plan, a health care plan, and various other plans.”

Trump also began to occupy cities that were politically opposed to his presidency with ICE and CBP agents, including BORTAC …

The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino

Notre Dame Law Review Reflection

This backdrop illustrates a throughline that runs throughout, and creates tension within, the Military Justice system. On the one hand, there is a need to protect the individual rights of servicemembers. This concern is driven (in part) by the intuition reflected in Judge O’Connor’s opening sentences—those sworn to protect constitutional liberties should surely enjoy the benefits of that which they protect. On the other, individual rights protections must yield, to some degree, to the needs of military life and military exigency. Of course, "to some degree" is the space in which debate and maneuverability resides. But while discretionary space certainly …

Revisiting The Fried Chicken Recipe, Zachary B. Pohlman

Notre Dame Law Review Reflection

Twenty-five years ago, Gary Lawson introduced us to legal theory’s tastiest analogy. He told us about a late-eighteenth-century recipe for making fried chicken and how we ought to interpret it. Lawson’s pithy essay has much to be praised. Yet, even twenty-five years later, there remains more to be said about legal theory’s most famous recipe. In particular, there remains much more to be said about the recipe’s author, a person (or, perhaps, group of people) whom Lawson does not discuss. Lawson’s analysis of the recipe leads him to an “obvious” conclusion: the recipe’s meaning is its original public meaning. If …

Toward Recognizing An International Human Right To Claim Innocence, Brandon Garrett, Laurence R. Helfer, Jayne C. Huckerby, Mark Godsey, Luca Lupària

Judicature International

No abstract provided.

Social Trust In Criminal Justice: A Metric, Joshua Kleinfeld, Hadar Dancig-Rosenberg

Notre Dame Law Review

What is the metric by which to measure a well-functioning criminal justice system? If a modern state is going to measure performance by counting something—and a modern state will always count something—what, in the criminal justice context, should it count? Remarkably, there is at present no widely accepted metric of success or failure in criminal justice. Those there are—like arrest rates, conviction rates, and crime rates—are deeply flawed. And the search for a better metric is complicated by the cacophony of different goals that theorists, policymakers, and the public bring to the criminal justice system, including crime control, racial justice, …

Democracy's Forgotten Possessions: U.S. Territories' Right To Statehood Through Constitutional Liquidation, Joshua Stephen Ebiner

Notre Dame Law Review

This Note argues that the Territories must be granted statehood consistent with the equal footing doctrine. This thesis does not challenge Congress’s power to acquire or govern territory, or its constitutional authority to admit (and place reasonable conditions on the admission of) territory into the Union as states. These matters have long been settled through constitutional practice. Neither does this thesis suggest that acquired territory must be immediately annexed into the Union, since there are valid reasons to delay such a decision. Instead, the claim is that permanently inhabited territories that have longstanding, constitutionally significant relationships with the United States …

Reserve System Design For Allocation Of Scarce Medical Resources In A Pandemic: Some Perspectives From The Field, Parag A. Pathak, Govind C. Persad, Tayfun Sönmez, M. Utku Unver

Sturm College of Law: Faculty Scholarship

No abstract provided.

Beware What You Google: Fourth Amendment Constitutionality Of Keyword Warrants, Chelsa Camille Edano

Washington Law Review

Many Americans have potentially had their privacy rights invaded through invisible, widespread police searches. In recent years, local and federal governments have compelled Google and other search engine companies to produce the personal information of users who have conducted a search query related to a crime. By using keyword warrants, the government can conduct a dragnet search for suspects, imposing suspicion on users and exposing their personal information. The keyword warrant is a symptom of the erosion of the Fourth Amendment protection against suspicionless searches. Not only is scholarship scarce on keyword warrants, but also instances of these warrants are …

Examining Comity And The Exhaustion Doctrine In Tribal Court Civil Jurisdiction: The Cherokee Nation’S Opioid Litigation, Joëlle Klein

Washington Law Review

The opioid epidemic has devastated communities throughout the United States over the last two decades. Native American and Alaska Native tribes faced disproportionate impacts and suffered the long-lasting consequences that opioid addiction causes families and communities. In response, states and municipalities across the United States sued the distributors and pharmacies responsible for illegally diverting opioids. In April of 2017, the Attorney General for the Cherokee Nation, Todd Hembree, initiated a civil suit against opioid pharmaceutical distributors and retailers: CVS, Walgreens, Wal-Mart (pharmacies), and McKesson, Cardinal Health, and AmerisourceBergen (distributors). Although other tribes in the United States also brought claims against …

A Call To Abolish Determinate-Plus Sentencing In Washington, Rachel Stenberg

Washington Law Review

For certain incarcerated individuals who commit sex offenses, Washington State’s determinate-plus sentencing structure requires a showing of rehabilitation before release. This highly subjective “releasability” determination occurs after an individual has already served a standard sentence. A review of recent releasability determinations reveals sentences are often extended on arbitrary and inconsistent grounds—especially for individuals who face systemic challenges in prison due to their identity or condition. This Comment shows that the criteria to determine whether individuals are releasable is an incomplete picture of their actual experience in the carceral setting, using the distinct example of incarcerated individuals with mental illness. While …

Expanding Judicial Discretion To Grant Compassionate Release During Covid-19, Deborah Wang

Washington Law Review

In the 1980s, Congress introduced compassionate release to counteract the increased rigidity of our federal sentencing system. This mechanism allowed courts, through a motion filed by the Bureau of Prison’s director, to reduce a prisoner’s sentence if “extraordinary and compelling” circumstances warrant such a reduction. However, because the Bureau of Prisons (BOP) seldom brought these motions, few people were released early via compassionate release. At the same time, public discourse and concerns regarding mass incarceration have continued to grow, causing lawmakers to revisit and revise compassionate release through the First Step Act of 2018 to ensure that this mechanism’s potential …

Business Associations: Veil Piercing In Georgia, Judd F. Sneirson

Mercer Law Review

This year saw few developments in Georgia corporate law. The one reported case on the topic involved veil piercing and related doctrines—nothing novel, but an opportunity to review and clarify this important area of Georgia law.

Measuring The Inventor's Contribution

The University of New Hampshire Law Review

All inventors should be compensated for the value of their contributions. Inventors contribute both to the patent system and to the technology commercialization process by providing access to a qualifying disclosure describing a qualifying idea. Yet today, a schism divides the patent world and the commercial world over the value of these inventive contributions. Unlike the commercial world, the patent world pays inventors for the contributions of noninventor technology commercialization roles. In particular, seminal reasonable royalty cases like Georgia-Pacific and TWM Manufacturing allow patentees to recover infringer profits and proxies thereof—in violation of congressional mandate and the Supreme Court’s opinion …

Constitutional Adjudication In The United States As A Means Of Advancing The Equal Stature Of Men And Women Under The Law, Ruth Bader Ginsburg

Hofstra Law Review

In this article, the author discusses dissenting opinion in which the Supreme Court held that, under the Constitution's equal protection principle, the Commonwealth of Virginia could not exclude from a public military college. It mentions commitment in the Declaration of Independence to equality and in the Declaration and Bill of Rights to individual liberty. It also mentions Civil War ended slavery, through the addition of the Equal Protection Clause to the Constitution.

The Value Of Fiduciary Duties: Evidence From En Bloc Sales In Singapore, Jianfeng Hu, Kelvin F. K. Low, Wei Zhang

Research Collection Lee Kong Chian School Of Business

This paper examines the impact of fiduciary duties on collective asset sales in the case of owners acting as delegates for other owners, thereby potentially inducing conflicts of interests. Our identification strategy exploits a unique legal shock in Singapore, which established fiduciary duties in those transactions in the real estate market known colloquially as en bloc sales. The imposition of fiduciary duties caused the price premium of units sold via en bloc sales to increase over units ineligible for en bloc sale, as well as over units that, although eligible for en bloc sale, are sold individually. In addition, this …

Making Mandates Last: Increasing Female Representation On Corporate Boards In The U.S., Nikki Williams

Michigan Journal of Gender & Law

A lack of female representation on corporate boards has plagued our country for decades. Until a few years ago, there was not a single state or federal regulation that required corporations to fill board seats with female directors. Instead, the federal government talked around the issue. In 2010, the SEC established an optional reporting structure for corporations to communicate their hiring practices, but did little else. With no national plan in place, many states implemented legislation that urged corporations to hire female directors. But this legislation barely moved the needle. The country needed a mandate. And in 2018, California implemented …

Debs And The Federal Equity Jurisdiction, Aditya Bamzai, Samuel L. Bray

Notre Dame Law Review

The United States can sue for equitable relief without statutory authorization. The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance. Debs was a monumental opinion that prompted responses in the political platforms of major parties, presidential addresses, and enormous academic commentary. In the early twentieth century, Congress enacted several pieces of labor legislation that reduced Debs’s importance in the specific context of strikes. But in other contexts, the question whether the United States can bring suit in equity remains disputed to this day. The …

The Constitutional Law Of Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

Notre Dame Law Review

The current debate over constitutional interpretation often proceeds on the assumption that the Constitution does not provide rules for its own interpretation. Accordingly, several scholars have attempted to identify applicable rules by consulting external sources that governed analogous legal texts (such as statutes, treaties, contracts, etc.). The distinctive function of the Constitution—often forgotten or overlooked—renders these analogies largely unnecessary. The Constitution was an instrument used by the people of the several States to transfer a fixed set of sovereign rights and powers from one group of sovereigns (the States) to another sovereign (the federal government), while maintaining the “States” as …

Foreign Judgments And Foreign Arbitral Awards Enforceability As A Factor And A Guarantee For Foreign Investments: The Case Of Saudi Arabia, Mohammed Rashed Mohammed Arhama Alshamsi

Maurer Theses and Dissertations

Foreign investments are considered an efficient and effective instrument to diversify and strengthen the economy; foreign investors generally need guarantees before entering a new market. One of these guarantees is a stable, transparent, predictable legal and judicial system. Such a system must be open to foreign laws and judgments as well as foreign arbitral awards, and it must also be flexible to increase foreign investments. Saudi Arabia has tried since the 50s’ to be more attractive to foreign investors and investments by enacting legislation and creating a modern court system to diversify their economy. However, the discretion of Saudi judges …

A Uniform Approach To Farm Animal Welfare Laws: Thought For Our Food Instead Of Food For Our Thought, Channing Burd

Journal of Food Law & Policy

We have all seen the commercials and know “Happy Cows Come from California,” but there is a larger issue hidden inside the phrase. Why should not all farm animals be happy, regardless of which state they were raised in? Why are only the cows in California happy, but not the chickens and the hogs as well? Farm animal welfare in the United States needs regulatory overhaul, and we needed it decades ago. This article will illustrate why regulatory overhaul is needed. First, we will examine how a new system of laws, which are part of a uniform code enacted by …

The Cow Has Left The Barn: Updating Standards Of Identity To Reflect Consumer Understanding Of Plant-Based Foods, Nicholas G. Miller

Journal of Food Law & Policy

Have you ever seen “tofurkey” at the supermarket and thought it was a rare, delicious cousin of the turkey? The animal based food industries, led by milk and meat producers, are claiming that the reasonable consumer might. On the other hand, the plant based food substitutes are appearing on supermarket shelves with increasingly bold names for their products that tap into our familiarity with animal-based foods, using names like “Beyond Meat.” Where do we draw the line on what plant based food can be called? And who should draw that line? This paper examines the debate surrounding the labeling of …

The Cost Of Compassion: Why State Ballot Initiatives Complicate Farm Animal Welfare And Overlook The True Problems In Modern Agriculture, Seth Victor

Journal of Food Law & Policy

Farm animal welfare is a concern for many Americans, both among those who value a higher standard of care for the animals’ own sake, and those concerned with food safety. Industrial agriculture has become the dominant form of animal production to satiate a daunting demand for meat, eggs, and dairy products. Industrial animal-raising facilities, also known as concentrated animal feeding operations (“CAFOs”), prioritize volume and efficiency and are a key factor in keeping consumer prices low. CAFOs are highly specialized and excel at production by minimizing inputs, maximizing confined animals, and externalizing environmental costs. This production method comes at the …

Federal Food Safety Framework: Where Does Seaweed Fit In?, Catherine M. Janasie

Journal of Food Law & Policy

When one mentions seaweed as food, what do you think of? The dried nori used to wrap your sushi roll or perhaps the seaweed salad on the side? In fact, seaweed has many uses, including as both a food source in its own right and as a food additive. While the seaweed market has been dominated by East Asian countries, seaweed is cultivated in about 50 countries, and the U.S. seaweed industry is steadily growing. The global seaweed industry is currently worth about $6 billion annually. Food products for human consumption account for about 85% of this value.

Do States Prefer Alcohol Over Marijuana? A Look At Labeling Regulatory Differences Between The Alcohol And Edibles Industries, Mckinley H. Groves

Journal of Food Law & Policy

In the children’s book "Through the Looking Glass and What Alice Found There", Alice interacts with Humpty Dumpty. During their conversation, Humpty notes that he, alone, can decide the meaning of words. Even Alice, at the young age of seven, casts doubt on this idea. Definitions of words and phrases play an important role in human interactions and even more so when the words and phrases defined are within a statute. In the United States, Congress and state legislatures play the role of Humpty Dumpty by coming up with meanings of important words and phrases found in the laws they …