Law Commons^™

Unveiling Misconceptions Of Tunneling: Market Capitalization-Based Analysis, Sang Yop Kang

Michigan Business & Entrepreneurial Law Review

In internal transactions between affiliated companies, there are two opposite directions of wealth-transfer: (1) in the “forward transfer of wealth” (FTW), the wealth-transfer arises from an affiliated company where a controller’s “economic interest” (i.e., “cash-flow right”) is smaller relative to another affiliated company where the controller’s economic interest is larger; (2) in the “reverse transfer of wealth” (RTW), the wealth-transfer arises from an affiliated company where a controller’s economic interest is larger relative to another affiliated company, where the controller’s economic interest is smaller. This Article puts forward a new finding that the extent of internal-transaction tunneling is affected not …

Developing A Professional Identity: Lessons For Women, Bipoc, And First-Generation Law Students From The Canaries In The Coalmines, Christine M. Venter

Michigan Journal of Gender & Law

This Article explores the concept of professional identity formation in the law, particularly as it pertains to women and lawyers of color. The topic of professional identity formation is an understudied area in legal education, despite the ABA’s new Standard 303(b)(3), which requires law schools to provide substantial opportunities for the development of professional identity. In the legal field, professional identity is often conflated with professionalism, which leads to confusion about how law schools should best prepare their students for their professional lives, and fails to fully equip students to join the profession.

Studies from other professions have shown that …

The Ugly Rhetoric Of Dobbs, Or, Why Jack Balkin Is History, Andrew Koppelman

William & Mary Bill of Rights Journal

This Essay has three claims. First, I want to emphasize an underappreciated ethical virtue elicited by the practice of rhetoric: it demands that the speaker get out of his own head and focus on his audience and what they care about. History matters because it speaks to us. It tells us who we are and why we are doing what we are doing. The rhetorical deployment of historical narrative in political discourse can help to forge a collective identity in which we all can recognize ourselves, and so make the polity more inclusive. Second, if this aspect of rhetoric is …

Originalism's Selection Problem, Darrell A.H. Miller

William & Mary Bill of Rights Journal

This Essay examines the problem of selection with any originalist theory and what it means for constitutional adjudication. Part I surveys the major branches of originalism, explains how each share a commitment to the pursuit of objective, knowable, falsifiable fact, and then use that fact as a fixed point to constrain discretion. Part II discusses how each of these theories are vulnerable to methodological challenges familiar to all empirical projects. Part III explores the implications of these methodological challenges for originalism in particular and for constitutional doctrine and theory more generally.

This abstract has been taken from the author's introduction.

A Disability-Inclusive Theory Of “Ordinary” Care: Redistributing Accommodative Labor In Torts, Rachel Caldwell

University of Chicago Law Review

Everyone generally owes each other a duty of ordinary care—but what is “ordinary”? How does one act reasonably to meet this burden? The answer depends on a plaintiff’s disability status. This Comment analyzes the current reasonable per- son standard for disabled plaintiffs and the corresponding duty of “ordinary care” provided by defendants through a critical disability studies lens. The current system burdens disabled plaintiffs with accommodating themselves, rather than requiring defendants to include accessible care in meeting their general duty of ordinary care. To redistribute this inequitable distribution of accommodative labor, this Comment proposes three stackable policies: (1) courts should …

Weighing In: Why Obesity Should Be Considered A Qualifying Disability Under The Americans With Disabilities Act, Anne Marie Hawley

University of Chicago Law Review

Anti-fat bias has been described as the last socially acceptable form of prejudice. Weight discrimination persists even though obesity affects over 100 million adults in the United States and obesity rates have continued climbing over the past few decades. Despite the discrimination that fat people face, there is no federal protection against weight discrimination. One potential solution to the lack of existing legal protections is the Americans with Disabilities Act (ADA).

Claimants challenging weight discrimination under the ADA argue that weight discrimination is a form of disability discrimination—namely, discrimination based on the medical condition of obesity. Although the medical community …

Can Labor Law Still Protect Concerted Activity?, Charlotte Garden

Chicago-Kent Law Review

No abstract provided.

Breaking Bad- The Third Circuit's View In United States V. Lewis Mischaracterizes Uniformity In Federal Sentencing, Noah Swanson

Villanova Law Review (1956 - )

No abstract provided.

Time For A Copyright Remix: Learning From Djs’ Problematic Pandemic Livestreams & Reimagining A More Productive Framework For Music On Social Media, Aaron Thompson

Chicago-Kent Law Review

No abstract provided.

Indigenous Justice Initiatives: A Summary Current To 2024, Kito Romero, Dara Heravi, Karen Drake, Yanika Mullings-Smith

Commissioned Reports, Studies and Public Policy Documents

This resource is intended to provide a guide to Indigenous justice initiatives across what is now known as Canada, based on publicly available information. The guide includes information on independent Indigenous courts that operate under the authority of an Indigenous people and separately from the Canadian legal system, Indigenous Persons Courts that operate within the Canadian legal system yet apply or uphold Indigenous laws, and restorative justice initiatives available to Indigenous peoples. This resource also includes academic literature on Indigenous laws, Indigenous justice models and practices, evaluations of existing Indigenous justice initiatives, and international comparative works. The focus is on …

Pack Your Bags…We’Re Moving To The Public Domain: The Expiration Of Copyright Terms And Its Implications On Future Protection, Sophie Ganion

UC Law SF Communications and Entertainment Journal

The following Note addresses the expiration of copyright terms for a multitude of creative works and the various implications of that expiration for their future IP protection. It explores the conflicting perspectives of stakeholders, from the excitement of artists and everyday creatives versus the concerns of industry leaders about the potential erosion of their copyright monopolies. Drawing from landmark cases like Baker v. Selden and Dastar Corporation v. Twentieth Century Fox Film Corp., this Note highlights the complex questions surrounding copyright expiration and the strategic use of trademark protection. The Note emphasizes the necessity for coherent legal frameworks to ensure …

The Right To Inequality: Conservative Politics And Precedent Collide, Jonathan P. Feingold

Connecticut Law Review

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the Equal Protection Clause against equality itself. Even if normatively jarring, a right to inequality might seem a natural …

Defining Law But Not Justice, Franciska Coleman

Chicago-Kent Law Review

No abstract provided.

How Not To Teach Criminal Law, Evan D. Bernick

Chicago-Kent Law Review

No abstract provided.

Will The Supreme Court Ever Help Victims Of Workplace Sexual Harassment Again? Why Adopting A Uniform Reasonableness Standard May Resolve A 20+ Year Circuit Split, Allyson Buchanan

Chicago-Kent Law Review

No abstract provided.

Consumer Protection Rights Lost In The Undergrowth Of The Amazon: Amazon’S Policies Quietly Facilityating An Anticompetitive E-Commerce Enviornment, Stephen Cruz

Chicago-Kent Law Review

No abstract provided.

Discrimination In Contractual Performance: Theory, Evidence, And Preliminary Policy Prescriptions, Meirav Furth-Matzkin

Washington Law Review

This Article examines the often-overlooked practice of “selective performance” of standard form consumer contracts—where sellers permit employees to exercise discretion by waiving or modifying contractual terms to maintain customer satisfaction. While such flexibility can benefit consumers, it raises serious concerns about discrimination. Through both theoretical analysis and empirical evidence, this Article demonstrates that discretionary performance can disproportionately favor certain consumer groups, particularly along racial and gender lines, leading to biased and inequitable outcomes. Drawing on examples from diverse sectors, including retail, insurance, and mortgage services, the Article highlights how marginalized communities, especially Black consumers, frequently face harsher treatment and greater …

An Empire Of Anti-Democracy: The Imperial Legacies Of American Territorial Labor, Jedidiah J. Kroncke

Washington Law Review

A great deal of recent attention has been given to acknowledging the full historical scope of American empire and its legal foundations. A recurrent focus of this attention has been the impact of the Insular Cases—a set of early twentieth century doctrines that legitimate American territorial acquisitions while denying their full incorporation under the United States Constitution. Issues of political citizenship and property have thus predominated critical work on the Insular Cases.

This Article expands on this resurgent interest by focusing on another critical element of this acknowledgment: the history of territorial labor which has long been central …

Too Woke To Fail? Esg And Silicon Valley Bank's Demise, Xuan-Thao Nguyen

Washington Law Review

The anti-Environmental, Social, and Governance (ESG) movement is unfolding in many states as part of the new culture wars. When Silicon Valley Bank (SVB) collapsed in March of 2023, ESG was named as the cause. Corporations, particularly those operating in the financial and banking sector, are justifiably concerned about attracting negative attention from the anti-ESG movement.

This Article posits that the ESG embraced by the financial sector, particularly by banks operating in the venture capital and startup ecosystem, is both timely and necessary. Despite the fierce attack against ESG as seen through a series of state laws and regulations passed …

Between Hope And Despair: The Misery Of International Law – Confrontations With Injustice In The Global Economy, Kanad Bagchi

Indian Journal of International Economic Law

No abstract provided.

The Constitutional Case Against State-Controlled Fact-Checking: A Case Comment On Kunal Kamra V. Union Of India, Abhinav Ravi, Aravind Sundar

National Law School of India Review

The Bombay High Court in Kunal Kamra v Union of India struck down the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, which had established a centralised fact-checking unit to issue takedown orders against social media posts that were identified as “fake or false or misleading”. The Rules threatened the safe harbour protection of social media intermediaries for failing to adhere to such takedown orders. The Court held that the establishment of the fact-check unit violates the rights of free speech, profession and equality under the Indian Constitution. This article explores the free speech implications of …

Constitutionalism, Social Justice, And Social Contract: Unpacking The Debate On Scheduled Caste Reservation For Christian And Muslim Dalits, Arvind Kumar

National Law School Journal

This article examines the constitutional, historical, and political debates surrounding the demand for extending Scheduled Caste (SC) status to Christian and Muslim Dalits in India. Drawing on Constituent Assembly Debates, archival materials, judicial decisions, government affidavits, petitions, and my previous scholarship, it challenges the claim that SC reservation was originally conceived as religion-neutral. The article argues that SC reservation emerged as a specific pre-constitutional agreement rooted in the Poona Pact and designed to address the historical injustice of untouchability within Hindu society. Its provisions were subsequently extended to Sikh and Buddhist converts under particular historical and political circumstances but did …

Antitrust’S Environmental Footprint: Redefining The Boundaries Of Green Antitrust, Sandra Marco Colino

North Carolina Law Review

No abstract provided.

Spoiling The “Fruits Of Their Own Labor”: Mole’ V. City Of Durham, Drew Alexander

North Carolina Law Review

No abstract provided.

Case Brief: State V. Flow–Did The Trial Court Put The Cart Before The Horse?, Sam W. Scheipers

North Carolina Law Review

No abstract provided.

Masthead

UC Law Science and Technology Journal

No abstract provided.

How Attorneys Can Be Quasi-Mediators, John Lande

Faculty Publications

This distills insights from a forthcoming article, How Can You Turn Adversarial Attorneys into Quasi-Mediators? The article is a Theory Meets Practice column in CPR’s Alternatives magazine that summarizes a discussion with members of the Association of Attorney-Mediators.

Attorneys acting as quasi-mediators prefer to be cooperative and use mediation techniques but they aren’t neutral. They tailor their actions based on their clients’ preferences and the other side’s approach. Another term for quasi-mediators is “good lawyers.”

Based on the forthcoming article and the Real Practice Systems Project Menu of Mediation Checklists, this two-page article lists things that mediators can do to …

Truth In Advertising For Environmental Sustainability, Robin M. Rotman, Aidan David-Pennington

Faculty Publications

“Sustainability” is in—but what does that term mean, when applied to products, services or brands? This article explores existing Federal Trade Commission (“FTC”) oversight of “sustainable” claims in marketing, centering on the FTC’s Guidelines for the Use of Environmental Marketing Claims (often referred to as the “Green Guides”). It analyzes thousands of public comments filed in a recent FTC quasi-rulemaking docket to inform proposed revisions to the Green Guides. The article suggests that the FTC include guidance on “sustainable” claims in its next revision to the Green Guides, and further recommends that the FTC formally extend the Green Guides to …

Limitation For Liberty: A Commentary On Federalism And The Tenth Amendment, Riley Banker

Senior Honors Theses

The concept of Federalism is essential to the very survival of the United States. However, recent decisions by the Supreme Court have illustrated attempts by the federal government to expand its authority and undermine the balance of power created by Federalism. This thesis will explore the concept of Federalism to demonstrate how it can best be protected. First, this thesis will address the origins of Federalism. Second, it will show how the principles of Federalism are manifested within the founding documents of the United States. Finally, this thesis will analyze current events including Supreme Court cases to demonstrate a concerning …

Parole Under Ina 212(D)(5)(A): Balancing Humanitarian Needs And Legal Boundaries, Jorge Miguel Magdaniel Manzur

Immigration Law Blog

This article examines how various uses and interpretations of parole under INA § 212(d)(5) have shaped immigrants' access to benefits, highlighting the balance between executive discretion and statutory limits within recent political and humanitarian contexts.