Law Commons^™

A Free Speech-Based Response To Media Polarization, R. George Wright

FIU Law Review

The degree of polarization, distrust, and animosity in the political elements of our social media have reached remarkable levels. But any attempt to address the relevant problems that requires legal enforcement inevitably raises serious issues of free speech and free press. Relying instead on fact checkers has its own numerous, substantial, and inevitable limitations, some of which parallel the very problems sought to be addressed. More promising are political social media reforms, akin to that proposed herein, that are voluntary, generally pluralistic and critical, reflective of the relevant social science evidence, and unlikely to raise problems of free speech and …

How Florida’S Courts Should Evaluate The Admissibility Of Field Sobriety Testing And Blood Thc Levels Evidence In Marijuana Impaired Driving Prosecutions, Christopher Bomhoff

FIU Law Review

Field sobriety and blood alcohol concentration tests are proven reliable techniques to determine whether a person us under the influence of alcohol. No such technique has been developed to reliably determine whether a person is under the influence of marijuana. However, despite a lack of scientific consensus regarding the reliability of field sobriety and blood toxicology tests to determine marijuana impairment, these methods are routinely used as evidence of guilt in marijuana impaired driving prosecutions. Twenty-four states have legalized the recreational use of marijuana, and Florida appears to be set to join them in the near future. As a result …

Baby Steps: Why The Florida Supreme Court’S New Parental Leave Continuance Rule Reinvigorates The Fmla’S Underlying Gender Equity Goals Within The Legal Profession And Why More States Should Follow Suit, Katie B. Miesner

FIU Law Review

Although women are enrolling in law school and joining the legal profession in significant numbers, law firms are struggling to retain female lawyers. This poses a significant challenge to achieving gender equity at the highest levels of the legal profession, prompting several important questions: Why are women leaving the profession early; what policies or changes should be implemented to address this problem; and who is best suited to lead these efforts? One of the main reasons women leave the profession early is due to their disproportionate caregiving responsibilities. In response, both public and private measures have been introduced to address …

How To Interpret A Vending Machine: Smart Contracts And Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

A smart contract is software designed to do the job of a legal contract: ensuring the performance of parties who might not otherwise trust one another to do so. By running a smart contract on blockchain, users can lock themselves into future performances without relying on a third-party enforcer or platform host, thereby realizing a “fully trustless” exchange. This new technology has wide range of potential applications, and contracts are likely to become an increasingly common part of the economy.

Some have argued that smart contracts represent a new type of legal contract, analogizing the software’s code to a contractual …

Antitrust Worker Protections: Rejecting Multi-Market Balancing As A Justification For Anticompetitive Harms To Workers, Laura Alexander, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

Anticompetitive conduct toward upstream trading partners may have the effect of benefiting downstream consumers even as the conduct harms the firms’ workers or suppliers. Defendants may attempt to justify their upstream conduct—and may rely on the ancillary restraints doctrine in doing so—on the grounds that the restraints create efficiencies benefitting ` purchasers, rather than focusing solely on the impact of the restraint on the workers or suppliers in the upstream market. Such balancing of harms against out-of-market benefits achieved by a different group should be rejected by antitrust doctrine generally, and specifically in the case of harms to workers. This …

The Paradoxes Of A Unified Judicial Philosophy: An Empirical Study Of The New Supreme Court, 2020-2022, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile …

The Who’S 75th Anniversary: Who At A Pivotal Moment In History, Lawrence O. Gostin, Danwood Mzikenge Chirwa, Helen Clark, Roojin Habibi, Björn Kümmel, Jemilah Mahmood, Benjamin Mason Meier, Winnie Mpanju-Shumbusho, K. Srinath Reddy, Attiya Waris, Miriam Were

Georgetown Law Faculty Publications and Other Works

The World Health Organisation (WHO) was inaugurated in 1948 to bring the world together to ensure the highest attainable standard of health for all. Establishing health governance under the United Nations (UN), WHO was seen as the preeminent leader in public health, promoting a healthier world following the destruction of World War II and ensuring global solidarity to prevent disease and promote health. Its constitutional function would be ‘to act as the directing and coordinating authority on international health work’. Yet today, as the world commemorates WHO’s 75th anniversary, it faces a historic global health crisis, with governments presenting challenges …

Infrastructuring The Digital Public Sphere, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The idea of a "public sphere"--a shared, ideologically neutral domain where ideas and arguments may be shared, encountered, and contested--serves as a powerful imaginary in legal and policy discourse, informing both assumptions about how public communication works and ideals to which inevitably imperfect realities are compared. In debates about feasible and legally permissible content governance mechanisms for digital platforms, the public sphere ideal has counseled attention to questions of ownership and control rather than to other, arguably more pressing questions about systemic configuration. This essay interrogates such debates through the lens of infrastructure, with particular reference to the ways that …

Noticing Patents, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Patents take the form of public letters that the U.S. Patent and Trademark Office (USPTO) actively disseminates. Whether these documents sufficiently provide the public with notice of the technologies they describe, as well as the proprietary rights that they assert, has been subject to long-standing debate. Many commentators conclude that patents are often filed too early in the research and development cycle, are deliberately drafted in a vague or obtuse manner, or are simply too numerous. As a result, identifying the relevant patent landscape is not just difficult for technology implementers, but possibly undesirable as a matter of innovation policy. …

Hatch-Waxman’S Renegades, John R. Thomas

Georgetown Law Faculty Publications and Other Works

No intellectual property rights impact society more forcefully than patents on pharmaceuticals. But as a practical matter, only a handful of jurists resolve disputes involving them. Two neighboring federal districts, Delaware and New Jersey, adjudicate the vast majority of patent contests between brand-name drug companies and generic manufacturers. And in contrast to Eastern Texas, which has been persistently derided as a renegade jurisdiction, the authority of the mid-Atlantic courts has seldom been questioned. The complex workings of the Hatch-Waxman Act, the compromise legislation that governs pharmaceutical patent litigation, go a long way to explaining such distinct shareholder reactions to highly …

Recent Developments In Mandatory Arbitration Warfare: Winners And Losers (So Far) In Mass Arbitration, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Mass arbitration has sent shock waves through the civil justice system and unnerved the defense bar. To see how quickly and dramatically this phenomenon has entered both the civil justice landscape and the public discourse, one need look no further than the January 2023 filings of hundreds of individual arbitration demands by former Twitter employees against Elon Musk, along with threats to file hundreds more—threats that were announced, no doubt intentionally, on Twitter itself. Plaintiffs are increasingly more aware of mass arbitration as a tool in their arsenal, and defendants are, perhaps for the first time in decades of mandatory …

Gouverneur Morris And The Drafting Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger …

Commercially Reasonable Sales In The 21st Century, David G. Carlson

Articles

It has been over 20 years since the 2000 amendments profoundly amended the foreclosure procedures in Article 9 of the UCC. This article reviews how the amendments have fared in the case law since then.

Title Theft, Stewart E. Sterk

Articles

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand. Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title. Recovery of title, however, involves costs and …

Powerful, More Powerful, Magdalena Knapp

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

From the volume editor

Table Of Contents

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

Table of Contents

On Selected Current Financial Market Problems, Iwona Dorota Czechowska, Edyta Rutkowska-Tomaszewska

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

From the issue’s thematic editors

Table Of Contents

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

Table of contents

Entire Issue Vol. 12 No. 7

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

Vol. 12(7)

Defamation With Bayesian Audiences, Yonathan A. Arbel, Murat C. Mungan

Articles

How strictly should the law regulate false defamatory statements? We first show that the presence of judicial errors often puts defamation law on a Laffer curve: regulation that is too lax or too strict is inferior to moderate regulation. While moderate regulation is ideal, it is not always attainable because of practical and legal constraints. With these constraints, we consider a Bayesian audience that takes the strictness of defamation law into account when evaluating statements. The optimal standard is then taxer than is prescribed by standard models with naive audiences. These findings underscore the importance of accounting for audience effects …

Disarmament Is Good, But What We Need Now Is Arms Control, Daniel H. Joyner

Articles

This article aims to correct a number of misconceptions held by both scholars and activists about the United Nations Treaty on the Prohibition of Nuclear Weapons (TPNW), and international nuclear weapons law generally. It first reviews the development of international law related to nuclear weapons, and provides a novel taxonomy of legal obligations divided into three substantive categories. It then examines the TPNW within that taxonomy, and considers how it should be understood to fit within this legal context. It concludes that the TPNW is essentially a nuclear disarmament treaty. While it should be welcomed as a contribution to nuclear …

Crying Wolf: Neo-Patriots, Critical Race Theory, And The Constitutional Protection Of "Dangerous" Ideas, Bryan K. Fair

Articles

Most Americans do not realize that, notwithstanding the First Amendment's free speech guarantee, for most of our nation's history, judges sent men and women to prison for expressing ideas considered too "dangerous." It was not until the late 1960s that the Supreme Court rejected the clear and present danger doctrine, insisting that statutes banning speech must draw a distinction between advocacy of ideas and advocacy of imminent lawless action. The Court held that under that constitutional norm, the government could not send a Klansman to prison for expressing racist, anti-Semitic, or otherwise dangerous or offensive ideas. Since then, banning the …

At The Nexus Of Antitrust & Consumer Protection, Luke Herrine

Articles

This Essay uses Section 5 of the Federal Trade Commission Act to examine the theoretical and practical relationship between antitrust and consumer protection law. It argues that, since roughly 1980, there has been a hegemonic "neoliberal"framework, one that has in recent years been challenged by an emerging "moral economy" framework. The neoliberal framework conceptualizes antitrust as preventing firms from conspiring to throttle output, with a focus primarily on consumers' interests in low prices, and consumer protection as making consumers informed, rational, and able to switch between competitors with relatively low cost. The moral economy framework conceptualizes both areas of law …

From Cannabis To Crypto: Federal Reserve Discretion In Payments, Julie Andersen Hill

Articles

From its inception, the Federal Reserve has operated payment systems that let banks move money for their customers. Checks, wire transfers, and electronic consumer payments all happen thanks to the Federal Reserve. Congress by statute specified which banks get access to the Fed's payment services. For more than a century, the Federal Reserve provided services to all legally eligible banks. But when the Federal Reserve received requests for payments access from a cannabis-focused credit union and a cryptocurrency custody bank (both of whom are legally eligible), it denied them. The Fed also issued sweeping guidelines claiming discretion to conduct risk …

Opening A Federal Reserve Account, Julie Andersen Hill

Articles

To open bank accounts, new customers provide personal information and make a deposit. Within a few minutes (or perhaps a few days), new customers get access to payment services. For many years, the process financial institutions used to open accounts at FederalReserve Banks was similar. Eligible banks filled out a one-page form and within a week received an account allowing them access to the FederalReserve's payment systems. Recently, however, Federal Reserve Banks have spent years considering account requests from novel banks.

This Article examines the Federal Reserve's process for evaluating requests for accounts. Using interviews, court documents, and other sources, …

Noncitizen Harboring And The Freedom Of Association, Shalini Bhargava Ray

Articles

The United States has long criminalized assistance to unauthorized migrants. It is a crime to smuggle, transport, harbor, or encourage unauthorized migrants to remain in the country, regardless of the reasons for such aid. In response to recent federal harboring prosecutions of humanitarians assisting migrants at the U.S.- Mexico border, scholars and advocates have shown tremendous interest in a defense to liability under the Religious Freedom Restoration Act and the First Amendment's Free Speech Clause. But a comparative analysis of harboring law reveals that some foreign jurisdictions conceptualize harboring law and defenses to liability in terms of citizen-migrant associations rather …

Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll

Articles

Speech is more than just an individual right-it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights - either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines …

The Public Voice Of The Defender,, Russell M. Gold, Kay L. Levine

Articles

For decades, police and prosecutors have controlled the public narrative about criminal law. The news landscape features salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets. Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about the overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations-all of which inflict severe harm on defendants and …

The (Tax) Policy Entrepreneur, Mirit Eyal-Cohen

Articles

No abstract provided.

The Credibility Effect: Defamation Law And Audiences, Yonathan A. Arbel

Articles

What should be the legal response to false statements? In the context of defamation law, courts try to set a standard that balances the interests of speakers and their potential targets. This article empirically demonstrates an unappreciated effect of such decisions on third parties: a credibility effect. Using a series of lab experiments, I find that defamation law makes individuals more trusting of reports from various media. This credibility effect is desirable when the report is true but can lead to unintended consequences in the case of misinformation. In particular, the credibility effect is shown to cast a stigma on …