Law Commons^™

When Inventors Go Bankrupt, Joseph Dietz

Cybaris®

No abstract provided.

Washington’S Capital Gains Tax Isn’T An Income Tax, Erik M. Jensen

Faculty Publications

This article considers a widely noted decision of the Supreme Court of Washington, Quinn v. Washington, concluding that a state capital gains tax enacted in 2021 is not subject to the stringent limitations in the state constitution applicable to property taxes. That result was a surprise to many in that Washington courts for nearly a century had treated income taxes as property taxes for this purpose, and what is a tax on realized capital gains other than an income tax? This article sets out the constitutional requirements, explains the taxing statute, and critiques the Court’s decision.

Is Realization Necessary To Have Taxable Income? The Supreme Court Might Tell Us, Erik M. Jensen

Faculty Publications

The Supreme Court granted certiorari in Moore v. United States to consider whether realization is a requirement to have income within the meaning of the Sixteenth Amendment. Both a district court and a panel of the Ninth Circuit had concluded that the Mandatory Repatriation Tax enacted in 2017 was valid even though a married couple was taxed on undistributed earnings of a controlled foreign corporation and the earnings may have been attributable to tax years going back as far as 1987. This article describes the basics of the controversy and considers some of the issues associated with the case, including …

New Jersey’S In-State College Sports Gambling Prohibition: Effective Or Futile?, Ryan Neumann

Student Works

No abstract provided.

Between An Abercrombie Rock And A Hard(Ison) Place: Muslim Head Coverings, Corporate Dress Policies, And The Unresolved Tensions Between Workplace Religious Accommodation And Undue Hardship, Richard D. Crane

Student Works

No abstract provided.

Revenue Sharing: A Potential Method Of Compensating Athletes, Julia Pudimott

Student Works

No abstract provided.

Getting To The Root Of The Problem: How Biden’S “Root Causes Initiative” Can Bypass The Title 42 Immigration Dilemma, Randolph Portugal

Student Works

No abstract provided.

Precedent, Reliance, And Morality At The End Of Roe V. Wade, Max Stearns

Maryland Law Review Online

No abstract provided.

Congress Is From Mars & Courts Are From Venus: Reconceptualizing Our Understanding Of Interbranch Relations, Lauren Hanson-Figueroa, Alexandra Piccirillo, Amy Steigerwalt

Emory Law Journal

In this Article, we argue for a reconceptualization of how to understand legislative-judicial relations in the United States. We propose that the Legislative and Judicial Branches of the U.S. government broadly reflect gender-stereotypical relations and divisions of labor in terms of both function and design. Congress was intended to be agentic and public, securely positioned as the public, lawmaking body; it fits the prototypical definition of Arendt’s “space of appearance.” The Legislative Branch can be conceptualized as men in a patriarchal culture, given agency and invited to action. In contrast, the courts reside in a more private sphere, toiling away …

Procedural Justice And The Shadow Docket, Taraleigh Davis, Sara C. Benesh

Emory Law Journal

This Article critically examines the role of procedural justice in shaping public perceptions of the U.S. Supreme Court’s legitimacy, particularly in light of recent Court actions, including the leak of a major opinion and the increasing, potentially politicized, use of its shadow docket. Drawing from the procedural justice model—which posits that legitimacy is primarily founded on the decision-making processes and principled judgments of the Court—this Article investigates whether the decline in confidence experienced by the Court can be attributed, at least in part, to its shadow docket.

Utilizing an experimental survey conducted over three critical time points—coinciding with the leak …

Alternative Facts: The Strategy Of Judicial Rhetoric, Tonja Jacobi, Eryn Mascia

Emory Law Journal

Studies have established the influence of ideology on the answers justices give to legal questions; this study shows that the questions themselves are often selected, framed, and phrased in a way that promotes ideologically-driven answers. By examining a variety of linguistic techniques used to describe just the facts of constitutional criminal procedure cases—separate from the legal analysis—we show the justices are engaging in highly strategic behavior. The facts included, omitted, or emphasized vary with the ideology of the justices and are predictable not just based on voting behavior in other criminal procedure cases but in all Supreme Court cases. We …

What Cybersecurity Policymakers Can Learn From Medical, Accounting, And Legal Professionals, Vadim Barkalov

Student Works

No abstract provided.

India’S Use Of Public/Private Partnerships To Promote Rapid Expansion Of Solar Electricity Facilities, Kara Consalo

Journal Publications

This Article will explore the use of PPPs to encourage the flow of private capital and expertise toward development of low-carbon, low pollution, sustainable energy generation in India to achieve the country's ambitious goal of creating 175 gigawatts of renewably sourced electricity by 2022. The lessons in India's extensive use of PPPs to achieve such ambitious electricity goals should serve as a model for other governments to engage the private sector to successfully develop solar and other renewable energy projects with limited risk but with significant benefits for their citizens.

An Essay About Privacy, Ronald Griffin

Journal Publications

Jessye Norman was an American opera singer. She died on October 1, 2019. On October 2, 2019, my wife got a grim diagnosis that put me in a stupor and reminded me, now more than ever, that my generation (that did so much good in the world) stands in line waiting for the Grim Reaper’s call. In a seventy-years (that have gone by too fast) I have watched my peers run from the realms of privacy, spaces where people implemented life plans uninterrupted by neighbours that were discernible, palpable, and real to everybody, to a realm where there is none. …

What, To The Marginalized Person, Is The American Dream, Deidre Keller

Journal Publications

I will organize this Note around three themes Douglass articulated in his speech. These themes, which remain timely and relevant over 170 years later, are (1) the importance of attending to those most impacted by injustices; (2) the responsibility of each of us to address the injustices we see in the world around us; and (3) the practice of remaining hopeful in the face of what, at times, may feel like daunting circumstances. I will structure this Note around these three themes as I consider what the American Dream means for marginalized persons. Throughout, I will weave in examples of …

Book Review: Critical Race Judgments: Rewritten U.S. Court Opinions On Race And The Law, Julia M. Pluta

Faculty Works

No abstract provided.

Book Review: The Walled Garden: Law And Privacy In Modern Society, Ariel Newman

Faculty Works

No abstract provided.

Purposivist Reasoning In Federal Civil Procedure, Lumen N. Mulligan, Emily Pennington

Faculty Works

This invited Article both reviews the Tenth Circuit’s stance on the circuit split addressing repleading counterclaims in amended answers and observes broader interpretive-approach trends in Federal Rules of Civil Procedure cases. In Sinclair Wyoming Refining Co. v. A & B Builders, Ltd., the Tenth Circuit holds that, absent prejudice to the opposing party, the failure to replead a counterclaim in an amended answer does not constitute abandonment; thus, taking the so-called permissive side of a circuit split on this question. In so doing, the Tenth Circuit adopts a purposivist approach to interpretation of the Federal Rules of Civil Procedure. In …

Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks

Faculty Works

Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world's largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland's biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan's Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG which lost $5.5 billion. Archegos, itself lost $20 billion over two days. The unique characteristics of total return swaps and …

Reclaiming Tort Law To Protect Reproductive Rights, Yvonne F. Lindgren, Nancy Levit

Faculty Works

In Dobbs v. Jackson Women’s Health, the Supreme Court overruled Roe v. Wade, the constitutional floor that had protected the abortion right for nearly fifty years, and returned the issue of abortion to the states to regulate, restrict, criminalize, or protect at the state-level. In the post-Roe era, states are increasingly turning to private law to restrict travel, access to medical care, and undermine privacy of individuals seeking abortion. Three states have passed antiabortion civil enforcement “bounty” provisions patterned on Texas’s SB8 that allows private citizens to sue providers or third parties who aid and abet an abortion that violates …

Tenancy By The Entirety Property And Transfers To Trusts, Julie M. Cheslik

Faculty Works

Lawyers practicing in the area of matrimonial law encounter the structuring of property transactions as their clients contem­plate marriage, during the marriage, and upon dissolution of the marriage. At all three periods in the life of a marriage, whether for creditor asset protection purposes, estate planning purposes, or dissolution purposes, whether and how to deviate from the state's default property laws is of utmost concern for the matri­monial lawyer. Of special concern is how default laws intended to protect the spouses' marital estate from creditors - including the tenancy by the entirety estate - may be implicated or abro­gated by …

Self-Intervention, Lumen N. Mulligan

Faculty Works

You cannot intervene in your own case, duh! Yet the United States Supreme Court granted certiorari on just this issue: Does Federal Rule of Civil Procedure 24(a)(2) allow state legislative leaders, seeking to represent the state’s sovereign interest, intervene when the attorney general is already representing the state’s sovereign interest. In this article, I contend that the text, history, and practice of Rule 24(a)(2) prohibits such “self-intervention.” I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties-in-interest. Next, I …

Antibody Patents: Use Of The Written Description And Enablement Requirements At The Patent & Trademark Office, S. Sean Tu, Christopher M. Holman

Faculty Works

No abstract provided.

Constraining Corporate Law Principles In Affiliate World, Anita K. Krug

Emory Law Journal

No abstract provided.

A Child’S Constitutional Right To Family Integrity And Counsel In Dependency Proceedings, Rachel Kennedy

Emory Law Journal

Since the child welfare system’s inception, abuse and neglect laws have conflated poverty-related neglect with active parental violence and willful neglect. The ensuing state surveillance has disproportionately harmed poor children and children of color. Pursuant to the state’s expansive parens patriae authority, countless families are investigated, and thousands of children are separated from their caretakers each year—only to be returned within days or weeks after a finding that the reasons for removal were unsubstantiated. Other children risk drifting in foster care limbo until they experience the termination of parental rights—an adjudication so severe that some courts call it the “civil …

Section 1115 Waivers: Innovation Through Experimentation, Or Stagnation Through Routine?, Nicole Johnson

Emory Law Journal

The Medicaid program operates as a federal-state partnership, in which the states agree to meet certain federally mandated requirements in exchange for federal matching funds for program expenditures. These federal matching funds can be anywhere from 50–90% of health care expenses incurred through state Medicaid programs. As such, states have a substantial interest in continuing this partnership and ensuring that their state plans comply with federal requirements. There is a way, though, in which states can gain more freedom in building their individual state plans. Through section 1115 waivers, states can ask the Centers for Medicare and Medicaid Services (“CMS”) …

The Expected Risks And Exacerbations Of Poverty, Mental Health Disorders, And Maternal Mortality From Abortion Bans: A Comparative Literature Analysis, Daniel J. Francisco

All Master's Theses

Background. Early termination of a pregnancy (hereinafter referred to as an “abortion”) has been debated in the United States (U.S.) for decades, without much regard to the negative outcomes that forced pregnancies have for those assigned female at birth regarding poverty, mental health and maternal mortality. In 1973, access to safe abortions was protected so long that the procedure was done within the legal gestational period and/or was necessary for the health and safety of the patient (Blackmun, 1972). Unfortunately, in 2022, the Supreme Court took that protection away and made it legal for states to determine the reproductive rights …

Ukraine On My Mind: Cultural Heritage And The Current Armed Conflict, Irina Tarsis

Fordham Intellectual Property, Media and Entertainment Law Journal

The following keynote address was delivered on October 7, 2022, during the Fordham Law Intellectual Property, Media & Entertainment Law Journal Symposium, “Duplicate, Decolonize, Destroy: Current Topics in Art & Cultural Heritage.” It was prefaced by a YouTube video of “Ukrainian Folk Song ARMY REMIX | Andriy Khlyvnyuk x The Kiffness.” The upbeat remix of a folk song was performed as a collaboration between South African musical talent David Scott, known as the Kiffniss, and Andriy Khlyvnyuk, the lead singer of the Ukrainian band, Boombox (Бумбокс), who took leave from his concert tours to join the military forces of Ukraine …

Trademark Counterfeiting Enforcement Beyond Borders: The Complexities Of Enforcing Trademark Rights Extraterritorially In A Global Marketplace With Territorial-Based Enforcement, Kari Kammel, Matthew Azim-Kramer, Daniel Duquet, Lillie Patterson

Fordham Intellectual Property, Media and Entertainment Law Journal

We focus on the enforcement of trademark rights, particularly those used against counterfeiters, or those who use unauthorized trademarks of another. We examine the concept of extraterritorial enforcement of trademark rights—the extending of enforcement across national borders—and reviewing how different countries and jurisdictions view this concept or even allow it.

The By-Design Approach Revisited: Lessons From Covid-19 Contact Tracing Apps, Mickey Zar, Niva Elkin-Koren

Fordham Intellectual Property, Media and Entertainment Law Journal

This paper challenges the by-design regulatory approach by exploring the case study of Contact Tracing Apps. It aims to account for the gap between the hopes that were pinned on digital technologies and the rock of reality into which they have crashed. This gap, we argue, results from overestimating the regulatory power of technology and underestimating the co-influence of various regulatory pillars. To address this gap, it is necessary to adopt an ecosystem perspective on sociotechnical systems, where technological design is but one form of regulation. This perspective allows technological design to acquire a social meaning through interaction with other …