Law Commons^™

Administrative Law—Say Goodbye To Agencies: The Shift From Agency To Citizen Enforcement Of The Clean Water Act—Naturaland Tr. V. Dakota Fin. L.L.C., 41 F.4th 342 (4th Cir. 2022), Sara Spencer

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Employers And The Privatization Of Public Health, Sharona Hoffman

Faculty Publications

This Article focuses on the role of employers in public health and argues that they constitute increasingly important actors in the U.S. public health arena. In the aftermath of the COVID-19 pandemic, a series of judicial decisions and newly enacted statutes enfeebled the public health powers of the federal and state governments. In a 2023 statement, Supreme Court Justice Neil Gorsuch clearly articulated his antagonism towards government-initiated COVID-19 interventions, describing them as “the greatest intrusions on civil liberties in the peacetime history of this country.” All too many share his views.

Employers may be highly motivated to safeguard their workers’ …

Proxy Taxes: Taxing The Wrong Person Can Be The Right Policy, Linda Sugin

Faculty Scholarship

Congress seems unable to fix the inequities and inefficiencies that riddle the tax law. This article suggests such a new strategy for building a better tax system that Congress should find politically possible. It proposes taxing the wrong taxpayer for the right reasons-to raise revenue and improve fairness. It introduces a conceptual and theoretical framework for provisions that are already in the Internal Revenue Code, explaining why they should be understood as examples of "proxy taxes," and proposes that proxy taxes can solve many intractable problems in the law.

“Proxy taxes,” as defined in this article, impose liability on taxpayers …

Protecting Title Ix’S Promise: The Injustice Of Indifference In Title Ix Peer Sexual Harassment Cases, Emily Harvey

Emory Law Journal

Title IX of the Education Amendments of 1972 promised dramatic measures to address sex-based discrimination in education. In the context of civil suits against schools involving peer sexual harassment, these measures have yet to live up to their promise. Under the existing standard, student victims of peer sexual harassment must demonstrate that their educational institutions responded to their reports of harassment with “deliberate indifference.” This standard favors institutions over students as it imposes liability only in the most egregious cases. A deepening conflict between the circuit courts regarding what deliberate indifference actually requires compounds concerns over the standard’s ineffectiveness. Courts …

The End Of Arbitrage: Recent Chancery Court Decisions Highlight Delaware’S Need To Overturn Transkaryotic, Celia Golod

Emory Law Journal

Appraisal is a legislatively created right that affords a shareholder the ability to seek a judicial ruling on the fair value of their stock when their corporation undergoes a merger that they do not support. While this remedy is intended to protect shareholders from faulty merger negotiating, in the 2010s hedge fund petitioners in Delaware flooded the Delaware Chancery Court to use the remedy to make a profit—a tactic called appraisal arbitrage. While appraisal arbitrage theoretically acts as a back-end market check on controller abuses, appraisal litigation is lengthy and requires court resources. Further, appraisal arbitrage allows hedge fund petitioners, …

Defensive Rule Of Law, Jon Smibert

Emory Law Journal

The rule of law has been tested over the past decade, not only in developing countries but also worldwide. The rule of law community has, in the past, focused mostly on improving the rule of law but has not emphasized building resilience into those rule of law gains. This Article will explore how development programs might encourage more robust features in their partner countries to withstand attempts to undermine the rule of law. This exploration will draw upon an umbrella concept of guardrails and norms, often associated with protecting democracy, and look at four approaches that might be used for …

Vertical And Horizontal Dimensions Of The Rule Of Law, Brian Z. Tamanaha

Emory Law Journal

Scholarly discussions about the rule of law have become a cacophony of disagreement. The more that is written about the topic, it seems, the less that we know. Thus, bringing clarity to basic issues is essential. This Essay draws out the implications of a conceptual distinction between the vertical and horizontal dimensions of the rule of law at domestic and international levels. The vertical dimension—which focuses on liberty and restraints on arbitrary government power—examines the top-down relationship between government officials and private actors in relation to how the ruling regime treats citizens and entities on matters of interest to the …

The Procedure Of Democratic Erosion, Kevin L. Cope, Mila Versteeg

Emory Law Journal

In recent years, several popularly elected leaders have moved to consolidate their power by eroding checks and balances. Courts are commonly the target of such power-consolidating reforms, though they are not the only such target. Depending on their nature, such reforms are variously characterized as eroding democracy or being illiberal. But while they may be substantively undemocratic or illiberal, these reforms tend to be procedurally lawful. That is, they do not subvert the constitution outright but work within the existing constitutional framework, with reformers either formally changing the constitution or seeking new interpretations.

Why would leaders pursuing undemocratic reform follow …

Antisemitism: A View From Within The Rabbinic Legal Tradition, Suzanne L. Stone

Book Chapters

What does it mean to reflect on antisemitism and law? From an interdisciplinary perspective, the contributors examine the connections within this field of research for the first time. Approaches from diverse disciplines, including history, philosophy, sociology, literary studies, and law, fill initial gaps but also reveal problems, challenges, and areas for further study. Ultimately, this volume lays the foundation for a deeper understanding of antisemitism in legal scholarship and practice.

The Notes You Don’T Play: An Empirical Analysis Of The Ninth Circuit’S Filtration Problem In Music Copyright Cases, Robert D. Capodilupo

Fordham Intellectual Property, Media and Entertainment Law Journal

The Ninth Circuit’s approach to music copyright cases has failed to provide artists with a clear landscape of the boundaries of copyright protection for creative works. Perhaps most disconcerting is the doctrine’s lack of rigid guidance as to which elements of a composition are protected by copyright. Since the court’s controversial ruling in Williams v. Gaye, which showcased the court’s failure to differentiate between protectable and unprotectable musical elements, the literature has taken a greater interest in analyzing the effects of this muddied doctrine. In their 2019 article, Christopher Jon Sprigman and Samantha Fink Hedrick theorize how the doctrine of …

Forming A More Perfect Union With Blockchains And Nfts: Why The United States Should Embrace An E-Government, Alexandria Labaro

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note analyzes blockchain and non-fungible token (“NFT”) technology in the government, emphasizing the benefits of technological integration for improved data security and streamlined bureaucratic processes. It follows the growing popularity of “e-government” practices across the globe and considers factors associated with integrating blockchain and NFT technology in U.S. governmental procedures.

Misappropriation Of Drawing Power (Free-Riding) In Trademarks, Tony Bortolin

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article advances the cause of action regarding the Misappropriation of Drawing Power (“free-riding”). It is a form of anti-dilution, along the lines of European Union laws regarding parasitism, and is analogous to other laws such as the protection of personality rights. It could also help settle long-standing debates in the trademark field, such as those regarding dilution by blurring, initial-interest confusion, comparative advertising, and whether and how to protect marks beyond the geographical scope of the plaintiff’s sales (such as protecting U.S. marks used internationally).

Business Empire To Patent Umpire: Amazon And The Ascent Of Platform Patent Adjudication, Shih-Wei Chao

Fordham Intellectual Property, Media and Entertainment Law Journal

A trend in patent law is mounting, one which this Article refers to as Platform Patent Adjudication. Amazon’s Patent Evaluation Express (“APEX”) now allows patent owners and sellers to resolve infringement disputes without using courts, and even without traditional alternative dispute resolution mechanisms like arbitration or mediation, but instead entirely within the platform setting. Amazon touts, and many practitioners agree, that its procedure is much less expensive and much quicker than litigating in court. But why is Amazon doing this? And why have other platforms not done this before? This Article takes a step back to examine the conditions and …

Foreign Intelligence Surveillance Act Section 702: The Good, The Bad, And A Proposal To Make It Less Ugly, Kevin Burns

Fordham Intellectual Property, Media and Entertainment Law Journal

Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) has been controversial since its inception. Created to allow intelligence collection against targeted foreign persons, electronic surveillance under Section 702 casts a wide net, often capturing communications sent to or by United States persons. Opponents point to the invasion of privacy such collection presents, and to the well-documented abuse and biased use of Section 702 data against U.S. citizens. This Note argues that despite this, Section 702 is a vital tool in the fight against terrorism and drug trafficking and the case against Section 702 is weaker than it appears. This …

A Glance Not Taken—When Claim Interpretation Ignores The Best Evidence, David R. Soucy, Esq.

Fordham Intellectual Property, Media and Entertainment Law Journal

A little-known but longstanding rule of patent law is that the article “a” means one or more than one when recited within a patent claim. But the commonly understood meaning of “a” is a numerosity of just one. The case of Salazar v. AT&T Mobility is about the misapplication of the patent law general rule of indefinite articles to find that the term “a microprocessor” means just one microchip. That fundamental tenet states that “a” means one or more than one, unless a patentee disavowed that meaning as evidenced by: (1) other language of the claims (i.e., dependent …

Good Readers, Good Writers, And Ai: Tool, Collaborator, Author?, Katherine Jung

Fordham Intellectual Property, Media and Entertainment Law Journal

Artificial Intelligence (“AI”) systems have revolutionized the world of creative writing. Beyond providing simple grammar or spelling assistance, the most advanced of these systems can now play a collaborative role in the writing process, increasing productivity while pushing content in new and surprising directions. AI-generated creativity raises compelling questions in the context of copyright law, which has long been predicated on the assumption of human authorship. The capacity of AI to one day generate writing at a level of mastery on par with human beings complicates traditional notions of creativity, the protection of which the entire copy …

Algorithmic Dead Hands: What Is Dead May Never Die, Zachary L. Catanzaro

Fordham Intellectual Property, Media and Entertainment Law Journal

Can we transcend death? By harnessing large language models and the invasive data harvesting of surveillance capitalism, AI systems now offer testators unprecedented posthumous control over property and heirs. These algorithmic ‘dead hands’ promise a seductive form of digital immortality, but if left unchecked, they threaten to spawn a novel breed of perpetuities. This technology risks birthing a digitized techno-feudal Necrocracy marked by inalienable property, extreme wealth consolidation, and the dead’s perpetual dominion over the living.

While modern reforms have weakened the common law’s traditional hostility to dead hand control, these reforms failed to anticipate technologically embodied intentionality persisting beyond …

A Trade-Off In Smart Contract Arbitration; Sacrificing Arbitrators’ Anonymity For Transparency?, Bahadir Köksal

Fordham Intellectual Property, Media and Entertainment Law Journal

The recent growth in blockchain usage has substantially affected the number of transactions executed via smart contracts. In parallel, the number of transactions will likely increase the number of disputes that arise from these smart transactions. Some innovative arbitration platforms have emerged in response to the urgent need for a tailor-made dispute resolution mechanism. These platforms tend to promote the anonymity of arbitrators because of their decentralized nature and secured proceedings. Does the anonymity of arbitrators’ identities and skills increase the transparency in smart contract arbitration? And to what extent can the anonymity of arbitrators be sacrificed for more transparent …

The Problem With The Performance Of Alternative Or Military Service Of Ukrainian Adventists In War Conditions, Valentyna Kuryliak Dr

Occasional Papers on Religion in Eastern Europe

The article discusses the lack of legal documentation faced by Ukraine in defending its borders and national interests, taking into account its historical experience. Attention is drawn to the issues encountered by Protestant churches, especially, but not exclusively, the Seventh-day Adventist Church. A proposal has been made to utilize the volunteer non-combatant potential of churches, regulating it legislatively without involving the Ukrainian court system. The question of alternative (non-combatant) service during mobilization and in times of war in Ukraine is analyzed. The author argues the necessity of preserving the right to alternative service for church members, which according to the …

Democratic Backsliding In The American States: The Case Of Judicial Independence, Meghan Leonard

Faculty Publications – Politics and Government

With ever-increasing gridlock and polarization at the national level, many new policy changes in the U.S. have come at the state level, including legislation that takes the form of democratic backsliding by restricting the right to vote, limiting free speech and expression, and gerrymandering state and federal legislative districts. A key component missing from scholarly discussion of federalism and the erosion of electoral democratic norms is the effect of federalism on the structure of institutions within the states, particularly on judicial independence. In this article, I examine the relationship between measures of democracy and introduction of court-curbing legislation in the …

Cognitive Decline And The Law, Case Western Reserve University School Of Law, Law-Medicine Center

Case Law-Med

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A Half-Century Of Pacific Salmon Saving Efforts: A Primer On Law, Policy, And Biology, Michael C. Blumm, Daniel J. Rohlf, Adam Eno

Natural Resources Journal

Pacific salmon, the signature species of the Pacific Northwest, have declined across their range for well over a century, due to a myriad of human-caused effects on their habitat and the fish themselves. Restoration efforts—some successful, some halting—began in earnest in the late 20th century, with considerable attention focused on the Columbia Basin, where historically salmon runs were crippled by a large interconnected hydroelectric system of federal and non-federal dams. In the 1980 Northwest Power Act, Congress created an interstate agency, the Northwest Power and Conservation Council, with access to a substantial amount of ratepayer dollars; the agency has chosen …

Symposium On New Mexico's Just Transition, Melanie Coffing, Logan Stokes

Natural Resources Journal

A Just Transition aims to develop capacity for a low-carbon, climate-resilient economy while maximizing benefits and minimizing hardships for working communities. The ideation and implementation of such a sweeping, intersectional policy framework requires thoughtful conversation, collaborative action, and years of dedication from community members and policy makers alike. On November 3, 2023, the Natural Resources Journal, through the University of New Mexico School of Law, and the New Mexico Speaker of the House, Javier Martínez, hosted the Symposium on New Mexico’s Just Transition. Students from the law school and the Natural Resources Journal had the opportunity to collaborate with community …

“With Intent To Destroy, In Whole Or In Part”: Genocide, Ethnic Cleansing, And A Lost History, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Drawing upon original research into the travaux préparatoires of the 1948 Genocide Convention, this Article advances several claims that complicate the standard account according to which genocide must entail a purpose to physically destroy at least a substantial part of a protected group. The core of the Article closely explores the words “intent,” “destroy,” and “in part,” showing how international authorities have settled on a received and largely uninterrogated wisdom regarding the meaning of these terms, one which is supported neither by the drafting history of the Genocide Convention, nor even by the actual results of the judicial decisions that …

How Much Does U.S. Fiscal System Redistribute?, Thomas Coleman, David A. Weisbach

Public Law and Legal Theory Working Papers

There is a widespread view that the tax and transfer system has become less progressive and less redistributive. To assess this view, we compare data from three studies: Con- gressional Budget Office (2024), Piketty, Saez, Zucman (2018), and Auten and Splinter (2024). Although they use different definitions of income, units, and taxes and transfers, all three show that the tax and transfer system has become more redistributive, not less. We also review all studies of the issue since 2012, which confirms these findings. In short, there is robust evidence across definitions and methodologies, that the tax system has become more …

The Additionality Double Standard, James Salzman

Public Law and Legal Theory Working Papers

Carbon offsets are widely criticized for lacking additionality. The public debate, how- ever, has failed to recognize that the problem of additionality goes far beyond offsets. It arises any time the government subsidizes an activity. Programs with longer histories than offsets and far more money at stake offer valuable lessons for managing lack of additionality in offsets. The article sets out the current efforts to prove offset additionality, explains why major government programs present comparable additionality challenges, and show why other programs’ problems of additionality are perceived as significantly different than those for offsets. We examine the toolkit used to …

The Shadow Of The Law Of The Police, Adam Davidson

Public Law and Legal Theory Working Papers

Joanna Schwartz’s Shielded: How the Police Became Untouchable is, in many ways, a triumph. It catalogues the laws regulating police with a breadth and depth unexpected from a book targeted to a popular audience, and it does so in gripping style. Although her ability as a researcher is well known to those who have encountered her earlier work, it is Schwartz’s ability as a storyteller that sets Shielded apart and makes the stakes of these doctrinal discussions clear. Admittedly, for those lawyers, judges, and academics who come to Shielded already familiar with Schwartz’s academic work, there is little new analytical …

Innovator Ecosystem Diversity As A Global Competitiveness Imperative, Margo A. Bagley

Marquette Intellectual Property & Innovation Law Review

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Looking For Liability For Harmful Social Media Content And Cyberbullying After Gonzalez V. Google, Llc, Elizabeth M. Jaffe

Marquette Intellectual Property & Innovation Law Review

None

A Questionable Categorization — Trademark's Struggle To Protect Tribal Cultural Property, Emilie (Smith) Rohde

Marquette Intellectual Property & Innovation Law Review

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