Law Commons^™

Outsourcing Self-Regulation, Marsha Griggs

All Faculty Scholarship

Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of a private corporate interest. By outsourcing the mechanisms that control admission to the bar, the legal profession has all but surrendered the most crucial component of its gatekeeping function to an industry that profits at the expense …

A Giant In The Field: Tribute To John S. Lowe, Monika U. Ehrman

SMU Law Review

No abstract provided.

Franchise Law, Deborah S. Coldwell, Kristina Pierre-Louis, Wes Dutton, Sam Mallick, Alexander Clark, Wilson Miller, Joe Pinto

SMU Annual Texas Survey

The 2022 Annual Texas Survey on Franchise Law presents an assortment of novel and familiar legal issues in Texas state and federal courts. This year’s Survey period contains decisions favorable to franchisors, franchisees, and third parties associated with franchised businesses on disputes involving intellectual property rights, enforceability of forum selection clauses, the essential elements of common law and statutory claims, and remedies available to franchise parties involved in litigation, among other issues. As in prior years, the Survey showcases developments in franchise law that serve as helpful reminders to practitioners advising parties involved in any stage of a franchise relationship.

Front Matter

The International Lawyer

No abstract provided.

The Trilogy Of Personal Jurisdiction And The Importance Of Ford, Jonathan M. Hoffman, Michaela Cloutier, Jason Proctor

SMU Law Review

Litigants and judges alike have struggled to understand and resolve the parameters of personal jurisdiction, particularly in product liability cases. This results in significant costs and time which is likely to be of little benefit to anyone.

Much of this confusion arises from two problems: (1) most of the early Supreme Court decisions on personal jurisdiction arose from contractual disputes; and (2) when the economy expanded after World War II, and new automobiles, commercial aircraft, appliances, and other complex products appeared, the Court’s attempts to resolve personal jurisdiction issues were unsuccessful. For over three decades, the Supreme Court failed to …

Data For Sale: Navigating The Role Of Data Brokers And Reproductive Health Information In A Post-Dobbs World, Heather Chong

SMU Science and Technology Law Review

Data privacy is a growing concern in our fast-paced society, as it has become increasingly necessary to relay and retain information digitally. However, the United States trails behind its counterparts in terms of the strength of existing data protection legislation. Unlike the European Union and its General Data Protection Regulation (“GDPR”) law, the United States has no similar comprehensive data protection act. This lack of legislation has led to the exploitation of people’s private data and allowed companies to utilize loopholes in current laws to access sensitive health information. Data brokers have been collecting and reselling consumers’ personal information, including …

The Law And Economics Of Freshwater, Bruce R. Huber

Book Chapters

The chapter is a tribute to Klaus Mathis for his invaluable contributions at the intersection of law and economics.

Law and Economics in all seinen Facetten Festschrift zu Ehren von Klaus Mathis trans: Law and Economics in All His Facets: Festschrift in Honor of Klaus Mathis

Series: Schriften zur Rechtstheorie, vol. 309

Nudge Efficiency, Avishalom Tor

Book Chapters

Only a small portion of the substantial literature on behavioral interventions ("nudges") that developed over the last fifteen to twenty years has considered nudges from an economic perspective. Moreover, despite the importance of the topic for a law and economics assessment of this increasingly common form of regulation, even fewer contributions have examined whether and when behavioral instruments are likely to make an efficient means for increasing social welfare. This chapter therefore offers some basic observations about nudge efficiency: Part I opens with a reminder that behavioral instruments should be implemented only when they are the most efficient means available …

On Launching Environmental Law Into Orbit In The Age Of Satellite Constellations, Michael B. Runnels

Journal of Air Law and Commerce

In September 2022, the Federal Communications Commission adopted a new rule changing the deorbiting timeframe for satellites ending their missions in low Earth orbit from a twenty-five-year recommendation to a five-year legal requirement. The adoption of this rule, which seeks to cultivate a sustainable orbital environment for satellites, followed the United States’ July 2022 National Orbital Debris Implementation Plan, which tasked federal agencies with reviewing the effectiveness of their orbital debris-related rules. In the wake of the Supreme Court’s June 2022 West Virginia v. EPA decision, however, federal rulemaking in the area of orbital debris may not survive judicial scrutiny …

Deregulating Consumers From The Airline Industry—Dot’S Proposed Rule In Response To U.S. Airlines’ Refusal To Refund Unused Tickets During Covid-19, Alicia L. Hinton, Diana Hyunjin Malcolm

Journal of Air Law and Commerce

The COVID-19 pandemic has resulted in significant delays and cancellation of airline tickets without proper refunds to consumers by U.S. airlines. In response to an unprecedented number of consumer complaints, in August 2022, the Department of Transportation (Department or DOT) proposed new rules regarding airline ticket refunds and consumer protections.Does this rule go far enough?

This article provides a summary of the events and policy changes leading up to the Airline Deregulation Act (ADA) of 1978 and challenges the scope of federal preemption over the field of airline regulation that has created a boon to air carriers while essentially eliminating …

The Major Questions Doctrine And The Threat To Regulating Emerging Technologies, Johnson, Walter G., Tournas, Lucille M.

Santa Clara High Technology Law Journal

Emerging technologies offer the potential to improve health and quality of life but also pose notable risks to safety, wellbeing, and equity. Law and technology scholarship posits that robust policy and regulatory strategies in the public interest are required to manage these complex benefits, risks, and uncertainties. At the same time, the Supreme Court in its recent jurisprudence appears eager to revitalize nondelegation legal norms, especially through the major questions doctrine—a shifting administrative law doctrine that increasingly appears to act as a clear statement rule when interpreting statutory grants of authority to regulatory agencies. This article argues the major questions …

Reconceptualizing Conception: Making Room For Artificial Intelligence Inventions, Villasenor, John

Santa Clara High Technology Law Journal

Artificial intelligence (AI) enables the creation of inventions that no natural person conceived, at least as conception is traditionally understood in patent law. These can be termed “AI inventions,” i.e., inventions for which an AI system has contributed to the conception in a manner that, if the AI system were a person, would lead to that person being named as an inventor. Deeming such inventions unpatentable would undermine the incentives at the core of the patent system, denying society access to the full benefits of the extraordinary potential of AI systems with respect to innovation. But naming AI systems as …

Remedies For Universal Service Funding Compassion Fatigue, Frieden, Rob

Santa Clara High Technology Law Journal

Nearly every nation in the world has a government mandated program aiming to make telecommunications service more widely available and affordable. Universal service funding subsidies have garnered popular support largely based on the shared view that society and individuals benefit from progress in achieving ubiquitous and affordable access, initially to voice telephone service. Technological developments and changes in consumer requirements have generated support for expanding the universal service mission to include broadband access to the Internet, and to identify a growing number of subsidy beneficiaries, now including schools, libraries, healthcare facilities, telephone companies operating in high-cost areas, and people with …

Welcome To The Land Of Trademark Cancellation––Where Not All Fraud Is Created Equal, Barbier, Janelle

Santa Clara High Technology Law Journal

The intellectual property community is buzzing about a recent decision by the U.S. Court of Appeals for the Federal Circuit handing down a ruling on trademark cancellation under the Lanham Act. A divided panel grappled with whether the Agency had authority to cancel a trademark registration as a punishment for filing a false declaration. The majority held that the Agency was precluded from canceling the registration as a remedy for fraud unrelated to the issuance or maintenance of that mark. However, the dissent took aim at the majority’s reasoning, making a compelling argument that green- lighting any type of fraud …

Policing Veterans: What The Veterans Affairs Police Can Illustrate About The Policing Of Disability In America, Zachary R.M. Outzen

Faculty Publications

The Department of Veterans Affairs Police (“VA Police”), a federal law enforcement agency tasked with law enforcement on Department of Veterans Affairs (VA) properties, has a shocking record of misconduct and brutality against veterans. Because the VA is the largest integrated healthcare system in the United States, the VA Police are primarily responsible for policing VA medical facilities. While issues facing the veteran community have largely been analyzed as separate from those facing the American public at large, VA medical facilities replicate broader socioeconomic trends in policing of vulnerable populations. Veterans receiving VA healthcare services are disproportionately likely to be …

Taxes, Administrative Law, And Agency Expertise: Questioning The Orthodoxy, Scott Schumacher

Articles

One of the foundations of administrative law is that federal agencies and their employees are experts in their respective fields. In addition, the many judgments and decisions made by these experts are based on a thorough record after extensive factfinding. As a result, so the theory goes, courts, particularly courts of general jurisdiction like the United States District Courts, should give deference to the determinations made by these experts. But what if the facts underpinning this foundation are not true in all cases? Should courts nevertheless provide deference to decisions by agencies when it is evident that an agency's determinations …

Due Process Deportations, Angelica Chazaro

Articles

Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: More lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, the argument goes, federally funded counsel for immigrants would improve due process and fairness, as well as make immigration enforcement more efficient. This Article argues the opposite: Federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts— and thus are impervious to immigration lawyering. Even for those who make it …

Winter 2023: Evolution

The Weldon Times

A student-run publication from the Schulich School of Law at Dalhousie University.

Editor in Chief: Madeline Heinke

I Owe My Teaching Career To Peter Henning, David A. Moran

Articles

In the late 1990s, I was very happily working as an appellate public defender in Detroit when the then-dean of Wayne State University Law School, Jim Robinson, contacted me to ask if I could teach a section of Criminal Procedure at night. Joe Grano, who had taught at Wayne for many years, had fallen ill, and so a replacement was needed. Dean Robinson was a close friend of Ralph Guy, the judge for whom I had clerked some years earlier, and Judge Guy had recommended me. I accepted the offer.

Even though I was just a lowly adjunct scheduled to …

Feedback Loops: E-D-I-T (Continued), Patrick Barry

Articles

In the "Feedback Loops" column back in March, we introduced the "E-D-I-T" framework:

• Find something to Eliminate
• Find something to Decrease
• Find something to Increase
• Find something to Try

This new column will discuss each category more in depth.

Letter From The Editor, Adriana E. Morquecho

American University Journal of Gender, Social Policy & the Law

It is an honor to write this editor’s note for Volume 30.2 of the Journal of Gender, Social Policy & the Law (“Journal”) commemorating our Symposium co-hosted by the National Institute for Workers’ Rights (“Institute”), “Enhancing Anti-Discrimination Laws in Education & Employment.” The Symposium and this Volume are a culmination of months of tireless work to draw attention to an area of law needing greater attention—employment and education discrimination

Panel 1 - Towards Effective Governmental Intervention: Ending Discrimination In The Workplace, Rebecca Salawdeh, Patrick Patterson, Victoria Lipnic, Carol Miaskoff, Hnin Khaing

American University Journal of Gender, Social Policy & the Law

FACILITATOR: Good morning, everyone and welcome to the “Enhancing Antidiscrimination Laws in Education and Employment Symposium”, hosted by the American University Journal of Gender, Social Policy & the Law, the American, and the National Institute for Workers’ Rights (“Institute”). And without further ado, let me pass it off to the Institute’s board president, Rebecca Salawdeh

Panel 2 - Unreported Shortcomings Of Title Ix, Lisa Taylor, Leslie Annexstein, Elizabeth Kristein, Natasha Martin, Elizabeth Kristen

American University Journal of Gender, Social Policy & the Law

MODERATOR: Hello, everyone, and welcome to our second panel, Unreported Shortcomings of Title IX. I’m going to start off with a quick introduction of our moderator. Today we have Dean Lisa Taylor who is our Dean for Diversity, Inclusion and Affinity Relations at WCL. She is much beloved by students of the Journal and students of WCL in general. And I know she is going to kick off a great panel. Dean Taylor, it’s all yours.

Panel 4 - Severe Or Pervasive: Towards Empowering Workers, Allegra Fishel, Joe Sellers, Bernice Yeung, Ann Mcginley, Alexis Ronickher

American University Journal of Gender, Social Policy & the Law

FACILITATOR: All right. We’re back and I wanted to introduce our moderator for our panel, Severe or Pervasive: Towards Empowering Workers. We have Ms. Allegra Fishel moderating. Ms. Fishel is a seasoned civil rights advocate and the founder of The Gender Equality Law Center. So, thank you so much for being here and, Ms. Fishel, I turn it over to you.

Panel 5 - The Future Of Employment Law, Karla Gilbride, Geraldine Sumter, Stephen Rich, Marcia Mccormick, Michael Selmi

American University Journal of Gender, Social Policy & the Law

FACILITATOR: All right everyone, welcome to our last panel, “The Future of Employment Law.” I want to quickly introduce our moderator, Karla Gilbride, the co-director of the Access to Justice Project. Karla, you can take it away.

Reflection On Progress Without Equity: Title Ix K-12 Athletics At Fifty, Elizabeth Kristen

American University Journal of Gender, Social Policy & the Law

Title IX of the Education Amendments of 1972 (“Title IX”) turned fifty this year. Despite tremendous progress for women and girls over the last five decades, the promise of gender equity in athletics remains elusive, especially at the K-12 level. Unlike so many other civil rights laws passed in the 1960s and 1970s, Title IX remains a highly under-litigated and underenforced statute. A basic Westlaw search for “Title VII of the Civil Rights Act of 1964” yields more than 10,000 federal cases. But the same search for “Title IX of the Education Amendments of 1972” yields about 2500 cases. Only …

Laboratories Of Democracy: State Law As A Partial Solution To Workplace Harassment, Ann C. Mcginley

American University Journal of Gender, Social Policy & the Law

Despite the recent public awakening concerning both sexism and racism in our society, the federal courts have systematically chipped away at employees’ civil rights under Title VII of the 1964 Civil Rights Act to be free of both sexual and racial harassment at work.

Alito Versus Roe V. Wade: Dobbs As A Means Of Circumvention, Avoidance, Attenuation And Betrayal Of The Constitution, Antony Hilton

American University Journal of Gender, Social Policy & the Law

There can be no argument that Justice Alito is a learned justice of great knowledge and reason, and has a superb grasp of the law. As such, despite any opposition to or disagreement with his legal opinions, he is deserving of respect for his intellectual prowess, in general and as it relates to the Constitution. Notwithstanding all the aforementioned, wrong is wrong.

Unlocking The Beauty From Within Title Vii: Arguing For An Expansive Interpretation Of Title Vii To Protect Against Attractiveness Discrimination, Michael Conklin

American University Journal of Gender, Social Policy & the Law

Beauty may only be skin deep, but discrimination against the unattractive runs far deeper. Research emphatically demonstrates that attractiveness discrimination affects nearly every aspect of life, including hiring and promotion decisions. For example, personal injury attorneys utilize economists as expert witnesses for how their clients’ reduced attractiveness will negatively affect their future earnings. Attractiveness discrimination is just as prevalent as discrimination based on ethnicity. Unfortunately, current interpretations of federal antidiscrimination legislation do not offer protections from attractiveness discrimination. This Article offers a comprehensive framework for providing such protections under an expansive interpretation of Title VII.

Hair Me Out: Why Discrimination Against Black Hair Is Race Discrimination Under Title Vii, Alexis Boyd

American University Journal of Gender, Social Policy & the Law

In May 2010, Chastity Jones sought employment as a customer service representative at Catastrophe Management Solutions (“CMS”), a claims processing company located in Mobile, Alabama. When asked for an inperson interview, Jones, a Black woman, arrived in a suit and her hair in “short dreadlocks,” or locs, a type of natural hairstyle common in the Black community. Despite being qualified for the position, Jones would later have her offer rescinded because of her hair. CMS claimed that locs “tend to get messy” and violated the “neutral” dress code and hair policy requiring employees to be “professional and business-like.” Therefore, CMS …