Law Commons^™

Nil Enforcement Preemption, Josh Lens

Utah Law Review

The National Collegiate Athletic Association (NCAA), which serves as the multibillion-dollar college athletics industry’s primary governing body, has faced several recent legal challenges to its operations. One particularly prominent challenge projects to result in litigation that will significantly impact college athletics’s future. This article explores the circumstances that led to this precarious position: (1) the NCAA’s recent changes to its longstanding rules prohibiting student-athlete compensation for use of their names, images, and likenesses; (2) several state legislatures’ attempts to provide universities in their states with a competitive advantage by legislating restrictions on the NCAA’s ability to enforce its rules; and …

The Constitutional Meaning Of Financial Terms, Tomer Stein, Shelby Ponton

Utah Law Review

The Constitution has sixty-three financial terms. These financial terms include, for instance, “compensation,” “expenditures,” “debt,” “coin,” “revenue,” “securities,” and “bankruptcies”—all of which determine the elementary building blocks of our governmental makeup. When the Supreme Court interprets the meaning of these financial terms, it does so in isolation and without a consistent framework. This Article proposes a unified framework for the interpretation of financial terms in the Constitution which comprises two fundamental canons of construction.

First, this Article proposes that all financial terms in the Constitution should be interpreted with fiscal and monetary neutrality—interpreting financial terms in a way that does …

The Seven Essential Law School Simulation Courses, Mitch Zamoff

Utah Law Review

As we mark the ten-year anniversary of the American Bar Association’s six-credit experiential learning requirement and the launch of the NextGen bar exam, it is critical for U.S. law schools to conduct rigorous assessments of their experiential education curricula. While most law schools now offer students meaningful opportunities to develop lawyering skills in clinics and field placements, there is much less consistency in their simulation course offerings. Simulation courses are a critical component of experiential legal education. While students in clinics and field placements gain valuable, realistic experience addressing the issues presented by their actual clients, those issues may sometimes …

Echoing Into The Void: Rucho’S State-Level Progeny, Avery E. Emery

Utah Law Review

When politicians are given free rein to draw districts, they choose their voters rather than allowing the voters to choose their representatives. They rely on “highprofile paid consultants, armies of lawyers, terabytes worth of voting data, advanced software, and even a supercomputer or two”386 to guarantee large margins for their party. This decennial process has reduced electoral competition, made the House of Representatives less responsive,388 and spread a sentiment of disenfranchisement throughout the electorate.

Now is the time for the judiciary—staffed by judges whose role in our constitutional system is to check the political branches—to take decisive action to protect …

Distribution Through Taxation Versus Legal Rules, And The Epistemic Limits Of Law-And-Economics, Erick J. Sam

Utah Law Review

This Article develops an epistemic critique of the view, widely held in law-and-economics, that legal rules should always be chosen for efficiency and that redistribution to produce a fair distribution should be conducted solely through the tax-and-transfer system. In place of this orthodox view, I develop an alternative distributive theory.

The canonical ‘double distortion’ argument for the orthodox position, formulated by Kaplow and Shavell (1994), claims that opting for efficient legal rules minimizes economic distortions and maximizes aggregate social wealth, some of which can then be redistributed via the tax-and-transfer system to those who would have been better off under …

Issues Arising Out Of Mass Arbitrations & Solutions To Combat Them, Diana Pogosyan

Utah Law Review

Arbitrations have been around for thousands of years. The benefits derived from arbitrations are numerous, as they provide individuals with a more efficient and cost-effective way of disputing their claims. Importantly, arbitrations provide consumers with a network to dispute claims they may not otherwise litigate in civil court. However, within the last few years, the rapid spread of mass arbitrations throughout the nation has contributed to various ethical issues within our justice system.143 Combatting the issues presented with mass arbitration is crucial to maintaining and creating a more efficient adjudication process. To address the issues associated with mass arbitrations, companies …

Returning To A Keynesian Model Of Financial Stability: Public Banking As A Response To Financial Crises Created By Wall Street Banks, Khalil J. Ferguson

University of the Pacific Law Review

No abstract provided.

Protecting Your Digital Life: Congress Needs To Take Lessons From Hipaa’S Playbook To Amend The Proposed Federal Privacy Law, Taeyoon Kong Kim

University of the Pacific Law Review

No abstract provided.

Jurisdiction Over Justice: How Misinterpreting Procedures Under The Federal Tort Claims Act Harms Plaintiffs, Kara L. Anderson

University of the Pacific Law Review

No abstract provided.

One Is Not Enough: Session, The Social Status Provision, And Consistent And Definitive Constructions, Miles C. Skedsvold

Mercer Law Review

Originalism really is “a theory working itself pure.” But most of the blood, sweat, and tears in the enterprise are spilled over the federal constitution. At least partially as a result of those efforts, though, more and more important legal questions are examined under state law—and in particular, state constitutions. And so it is more important than ever to work through the hard methodological questions that will help produce answers. Presiding Justice Nels S.D. Peterson’s landmark article “Principles of Georgia Constitutional Interpretation” breaks key ground in this area—and this Article aims to take the shovel and keep digging. ...

Thus, …

Premises Liability And Third-Party Attacks: A Path Forward, Pamela A. Wilkins

Mercer Law Review

Recently, in Georgia CVS Pharmacy, LLC v. Carmichael, the Supreme Court of Georgia recognized a totality of circumstances approach for determining whether a landowner owes a duty to protect patrons from third-party attacks. So right now, in Georgia, the poor lighting, high-crime surroundings, and absence of functioning panic boxes are relevant considerations for the duty calculus.

Many members of the Georgia General Assembly find this outcome intolerable. Only months after the court’s ruling in Georgia CVS Pharmacy, several state senators, focusing on the supposed “unfriendliness to business” of the current totality of circumstances rule, introduced a bill that …

Evidence, John E. Hall Jr., W. Scott Henwood, Krysta Grymes

Mercer Law Review

Georgia courts’ interpretation and analysis of the evolution of evidentiary law since the adoption of Georgia’s new evidence code has played a major role in lawyers’ understanding of the scope and boundaries they are to operate within. Complexities involving coinciding new case law with the vast body of legal precedent established prior to the new code’s implementation make this task even more important, and ever changing as Georgia enters the second decade of the current evidentiary code. This Article delves into some of the updated case law relating to evidentiary issues and standards in Georgia for the period of June …

Insurance, Maren R. Cave, Jessica Phillips, Rebecca Strickland

Mercer Law Review

During this Survey period, the most important development was the Georgia General Assembly’s enactment of critical changes to the statute related to pre-suit demands in automobile cases. These changes to O.C.G.A. § 9-11-67.1 may very well mark the ultimate end of litigation in Georgia’s appellate courts related to what constitutes a binding settlement in automobile cases involving time limited demands. The Survey period also saw a number of decisions in the “first party” area where Georgia courts strictly upheld the insurance contract provisions related to suit limitations and reformation of those policies, and another decision related to “recoupment” of defense …

Labor And Employment Law, W. Jonathan Martin Ii, Alyssa K. Peters, David S. Cromer

Mercer Law Review

This Article reviews changes to the Official Code of Georgia Annotated (O.C.G.A.) and court decisions interpreting Georgia law that impact labor and employment relations for Georgia employers, covering the period from June 1, 2023, to May 31, 2024.

Legal Ethics, Patrick Emery Longan

Mercer Law Review

This Survey covers the period from June 1, 2023 to May 31, 2024. The Article discusses developments with respect to lawyer discipline, bar admission and reinstatement, malpractice, ineffective assistance of counsel, disqualification of counsel, judicial misconduct and recusal, attorney’s fees and liens, contempt and other sanctions, unauthorized practice of law, suits against the State Bar of Georgia, attorney-client privilege, amendments to the Georgia Rules of Professional Conduct, formal advisory opinions, and one miscellaneous matter.

Torts, Scott Key

Mercer Law Review

2023—2024 brought significant changes to the law of torts in the Supreme Court of Georgia, the Court of Appeals of Georgia, and the Georgia General Assembly. The most significant changes involve precedent loosening the reasonable foreseeability standard in negligence cases and the end of direct actions against insurers in motor carrier cases. This was a busy year in tort law, with sweeping changes from the courts and the legislature.

Workers' Compensation, H. Michael Bagley, J. Benson Ward

Mercer Law Review

This Survey period (2023–2024) was relatively calmer than most years, with no significant legislation and fewer decisions from Georgia’s appellate courts addressing workers’ compensation law. Nonetheless, the courts still wrestled with factually intensive disputes on issues such as authorized treating physician releases to return to work and concurrent dissimilar employment, and with the frequent appellate issue of the exclusive remedy provision.

Zoning And Land Use Law, Newton M. Galloway, Steven L. Jones, Joshua Williams

Mercer Law Review

For the first time since 2017, the cases reviewed for the Zoning and Land Use Law Survey did not focus on judicial decisions attempting to transform legislative zoning decisions into quasi-judicial actions. ...

For this Survey period, attention shifts to the impact of State v. SASS Group, LLC, the first case arising after the 2020 amendment to the Georgia Constitution of 1983 in which Georgia voters approved a constitutional amendment (the Amendment) which permitted a limited waiver of the state’s sovereign immunity for declaratory judgment claims seeking a judicial determination that an action of a governmental official was unconstitutional. …

The Grapes Of Roth, Bruce E. Boyden

Washington Law Review

Shortly after Roth Greeting Cards was decided in 1970, its offhand reference to the “total concept and feel” of the cards at issue became the dominant standard in copyright law for determining whether two works were substantially similar. That is a remarkable achievement for a phrase that, in the words of the influential Nimmer treatise, “threatens to subvert the very essence of copyright.” It nevertheless had enormous appeal for federal judges, and the reason extends well beyond copyright law. “Total concept and feel” appeared at a critical juncture for the federal judiciary, as an older model of decision-making, based on …

Toxic Narratives, Toxic Communities, And Enforcement Of Environmental (In)Justice, Alyse Bertenthal

Washington Law Review

The United States has committed to enforce environmental justice in ways it never has before. A spate of new policies aims to increase resources for environmental agencies’ enforcement sections, improve training for environmental enforcement staff, and ensure community engagement in environmental enforcement decision-making. Yet there exists mounting evidence that enforcement of environmental laws happens less frequently and less vigorously in low-income and minoritized communities.

We need to understand why that is happening. Many commentators, opining from a distance, point to insufficient resources for environmental enforcement and legal and political constraints on environmental agencies. While not discounting these reasons, this Article …

Legal Chefs’ Appetizing Taglines To Engage Consumers In The Age Of Social Media: The Struggle Against Trademark Genericide, Emily Mcdonald

Journal of Food Law & Policy

Many have heard the phrases “raisin bran,” “escalator,” “nylon,” and “aspirin,” all of which are “old” trademarks that have undergone genericide. Genericide occurs when a trademark has become common from the customer’s perspective concerning specific goods or services rather than associated with the source, which is usually the company that registered the trademark. In short, businesses are no longer able to use the trademark exclusively. Another common trademark phrase that became generic was “Taco Tuesday.” In light of the prolific use of social media today, recent data and statistics show that “food” has become a predominant category and trend on …

Food Identity, Mathilde Cohen

Journal of Food Law & Policy

Food identities are typically ascribed either based on medical or social definitions or chosen by individuals. But they can also be expressive dimensions of other identity traits such as race, ethnicity, religion, national origin, gender, age, body size, disability, and socio-economic status, among others. What role does the law play in supporting or undermining certain food identities? This Article makes two central contributions. First, it highlights that though U.S. law recognizes food identity as an interest to be protected in certain contexts, it does so in an unsystematized way, contributing to systemic deprivation and discrimination in relation to foodways. The …

Rwu Law Alumni Association Holiday Reception December 4, 2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Rwu Law Alumni Newsletter December 2024, Roger Williams University School Of Law, Pbn Connect, Edward Fitzpatrick, Danna Lorch

RWU Law

No abstract provided.

The Case Of Dr. Anna Pou: Criminal Or Hero?, Katherine Bonnell

Honors Thesis

This paper provides an analysis of the ethical and legal complexities of Dr. Anna Pou’s actions preceding Hurricane Katrina. Faced with the harsh reality that a handful of critically ill patients would not survive or be rescued from the hospital, Dr. Pou administered lethal doses of morphine in a desperate attempt to alleviate her patients' suffering. Ethical dilemmas of palliative care during catastrophic emergencies are explored, as well as an examination of where Memorial Hospital’s executive board failed in its preparedness. One year after Hurricane Katrina, the grand jury refused to indict Dr. Anna Pou and she was exonerated from …

Reframing A Data Sharing Mechanism For The Riparian Nations Of Helmand River Basin: Theory Of Planned Behavior Is Revisited, Najibullah Loodin, Gabriel Eckstein, Vijay P. Singh, Rosario Sanchez

Faculty Scholarship

Data and information exchange plays a crucial role in fostering water cooperation between the riparian nations of a shared watercourse. Taking an integrated approach combining Discourse Analysis and Document Analysis, this research aims at elucidating the challenges and the potential opportunities of data and information exchange on the Helmand River, a drought-stricken river basin shared between upstream Afghanistan and downstream Iran. Drawing on the Theory of Planned Behavior (TPB), we offer nuanced perspectives on the data exchange model developed by Wehn. We argue that there are other underlying and essential elements that hinder the meaningful engagement of the riparian nations …

The Adolescent Mental Health Crisis: A Case Study In Family Court Planning, Andrew Schepard

Hofstra Law Review

The article focuses on addressing the adolescent mental health crisis within the framework of family court planning, particularly in the context of parental separation and divorce. It emphasizes the need for comprehensive planning processes within family courts to integrate Family Dispute Resolution (FDR) as a central strategy for tackling this crisis effectively. It seeks to enhance mental health services for adolescents involved in family court proceedings.

Front Matter

Hofstra Law Review

No abstract provided.

The Rule Is A Mess, So It Needs Amendments: Reexamining And Revising The Religious Exemption Of The Copyright Act, Toniann Pasqueralle Sheridan

Hofstra Law Review

No abstract provided.

Marriage, Courts, And Substantive Equality: A Transformative Interpretation, Kushagr Bakshi

Michigan Law Review

Courts in various jurisdictions have relied on either the right to privacy or the right to equality to offer protections to the LGBTQ+ community. The use of different rights to achieve similar ends may seem like an empty distinction. But the differences in the nature and function of each right evince the differences in the construction of rights across jurisdictions. In the traditional liberal method of conceptualizing rights, privacy is typically a negative right, restricting the state from interfering in intimate relationships between individuals. Courts operating within a transformative framework of rights interpretation, however, rely on the positive right to …