Law Commons^™

Was The Niit A Treaty Override?, Reuven S. Avi-Yonah

Articles

Three court decisions have recently addressed the interaction of the NetInvestment Income Tax (NIIT) and U.S. tax treaties. The issue waswhether the treaty provided an independent basis for crediting a foreigntax against the NIIT, because no such credit is available under the Code.First,in Toulouse, the Tax Court held that there was no treaty-based credit.Second,in Christensen, the Court of Federal Claims held that a treaty-based credit wasavailable, distinguishing Toulouse.Third, in Bruyea, the Court of Federal Claimsissued a broader opinion that allowed the credit.

Fletcher's Uncertainty Principle, Matthew L.M. Fletcher

Articles

am here to talk about the equal protection challenges facing Indian Country. I am going to give you my thesis right off the bat, which is that Haaland v. Brackeen decided the equal protection issue for us already, and we should behave as if it is decided.

I will explain what I mean by that. But first, let’s talk about what we will call the Mancari rule. The Mancari rule is fundamentally what Indian law is about, and it goes something like this—I am going to more or less paraphrase the guiding principle of Morton v. Mancari from 1974. Any …

Nanaboozhoo And Derrick Bell Go For A Walk, Matthew L.M. Fletcher

Articles

When the Anishinaabeg were new to Anishinaabewaki, they knew little about how to fend for themselves. The animals and plants took pity on them and taught the Anishinaabeg. One winter, as the food stores of the Anishinaabeg were running out, an ininaatig (maple tree) saw an Anishinaabe innini (man) weakly scavenge for food. The ininaatig decided to offer part of itself to the Anishinaabeg. The ininaatig told the innini to cut off a branch. Ininaatigwabo, delicious, thick maple syrup, oozed from the stump. There was enough to feed the innini for many days. And there were many, many ininaatigoog …

The Sovereignty Problem In Federal Indian Law, Matthew L.M. Fletcher

Articles

There is a sovereignty problem in federal Indian law-namely, that the federal government's sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests. Conversely, tribal judiciaries allow claims to proceed to the merits, invoking customary and traditional law to hold tribal governments accountable.

Sovereignty theory helps to explain why justice can be done in one court system but not another. But federal, state, and tribal …

Understanding Federal Rule Of Evidence 104(B) On Building Walls And Missing Bricks, Len Niehoff, Shannon Hickey

Articles

We use individual pieces of evidence to construct our cases, recognizing that no one of them, taken in isolation, suffices to get the job done. As Professor McCormick famously said of evidence, “a brick is not a wall.” Federal Rule of Evidence 104(b) explains the logical relationship between those various pieces of evidence and how they help us build our proofs. Or perhaps we should say that the rule tries to explain it, without much success.

The Birth Of The Franchised Dealer Model, Daniel A. Crane

Book Chapters

Chapter 1 traces the history of the franchise dealer model of car distribution, from the early wild west days of the internal combustion automobile to the political confrontations between Detroit’s Big Three and the “mom and pop” car dealers during the mid-twentieth century. The chapter examines the thinking of legendary management figures such as Henry Ford and Alfred P. Sloan, explains the dealer protection rationale behind state franchise dealer laws, and shows how the legacy car companies largely acquiesced in those laws until Tesla’s entry onto the scene.

Blood Quantum And The Auto-Colonization Of The Michigan Anishinaabek, Matthew L.M. Fletcher

Book Chapters

Anishinaabe storyteller Basil Johnston described the chronological path of life in four stages, what he called the four hills of life. The first stage, linked to the East, is infancy and early childhood, a time of preparation and listening. The second stage, linked to the South, is youth, a time of doing things. The third stage, linked to the West, is adulthood, a time of vision. The fourth stage, linked to the North, is Old Age, a time of the fulfillment of the vision and a time of sacred learning and teaching.

The twelve Michigan Anishinaabek tribal nations are in …

Social Data's Role In Law And Political Economy, Salome Viljoen

Book Chapters

Over the past several years, the digital economy has been a notable uptick in interest from scholars across areas of law. This should come as no surprise. The digital economy encompasses some of the largest companies in the world, whose business models pioneer and spread new strategies to concentrate private power across the political economy more broadly. Digital companies have transformed commercial and social life, and they raise problems of concentrated private power. They are also charged with a slew of downstream disruptions resulting from collective pursuit of that power: global, social, and interpersonal forms of dislocation, oppression, impoverishment, alienation, …

Business Law In The Ring: Nevada's Rebel Rules Versus Delaware's Corporate Crown, Kalin Sokell, Collin Weires

Nevada Law Journal Forum

This White Paper will begin with an analysis of specialized courts, starting with the Delaware Court of Chancery. It will then compare Delaware’s courts with the business courts in Texas and Nevada and will provide a detailed implementation plan for a specialized business court in Nevada. Next, this White Paper will address the differences between the corporate laws in Nevada and Delaware, including the benefits of incorporating in Nevada versus Delaware. The White Paper will then briefly discuss the proposed general jurisdiction bill in Nevada, and why it ultimately failed. Finally, this White Paper will end with remarks on where …

From Likes To Legislation: How The Internet Has Facilitated Hate Speech, Anti-Dei Discourse And Policy, And Threatens Our Democracy, Carmen Lynn Benavides-Garb

Undergraduate Scholarship

I argue that the way hate speech, and Anti-DEI rhetoric spreads online, through social media and algorithms, has impacted real-world Anti-DEI policies, attitudes, and overall backlash. In this essay I will begin by discussing the four themes found in my literature review, 1) Online Hate Speech, 2) Social Media and Algorithms, 3) Diversity, Equity, and Inclusion (DEI), and 4) Anti-DEI Movements. From there, I will discuss the historical background of DEI movements in America to provide context about what makes this moment in history unique. I will then discuss the role of the Trump Presidency in relation to Anti-DEI work. …

Strikes And The Struggle For Democracy, Angela B. Cornell, Ruth Dukes

Cornell Law Faculty Publications

The right to strike is fundamental to the development and maintenance of democratic forms of government. In struggles to construct and defend democratic regimes, strikes, including general strikes, are often an important weapon. In established democracies, the right to strike can aid the spread of democratic decision-making in workplaces and the wider economy, serving indirectly to strengthen participation and confidence in political processes and institutions. And it can underpin systems of collective bargaining that function to narrow income and wealth inequalities, in a manner that is conducive, if not necessary, to the maintenance of democratic government. Wherever the right to …

Choice Of Law In The American Courts In 2024: Thirty-Eighth Annual Survey, John F. Coyle, William S. Dodge, Aaron D. Simowitz

GW Law Faculty Publications & Other Works

This is the Thirty-Eighth Annual Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws. It is intended as a service to fellow teachers and to students of conflicts law, both inside and outside of the United States. Its purpose remains to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts during 2024.

Allies Bridging The Valley Of Death: How Nato’S Defence Innovation Accelerator For The North Atlantic Will Help Maintain Nato’S Technological Edge, Thomas Mcsorley, Maciel Macenowicz, Matthew Maddison, Christopher R. Yukins

GW Law Faculty Publications & Other Works

Around the world, governments hope to leverage procurement for innovation—and then to carry that innovation into sustained production, across the “valley of death” where many innovative technologies fail in development. To access technologies emerging across the Alliance for the common defense, the North Atlantic Treaty Organization (NATO) has launched the Defense Innovation Accelerator for the North Atlantic (DIANA). DIANA nurtures dual use (military and commercial) technologies across the NATO Alliance, and offers important strategies—including funding, accelerator programming, connections with end users and commercial expertise, testing and demonstration opportunities, private investment, and rapid adoption—for technological innovation in public procurement. This article …

Feature Comment: President Trump And Tariffs—The Procurement Exception, Christopher R. Yukins, Kristen Ittig, Lynn Fischer Fox

GW Law Faculty Publications & Other Works

President Trump’s first administration was marked by very strong “Buy American” protectionism, focused closely on procurement. Since President Trump took office again on Jan. 20, 2025, the second Trump administration instead has focused, at least preliminarily, on tariffs as a policy and revenue-generating tool. This article reviews the Trump administration’s initial moves to impose new tariffs and their potential effect on procurement. The article explains that goods purchased by federal agencies are generally exempt from tariffs, as a matter of regulation, though how exactly that exemption will be applied is often unclear. The article reviews those and other policy issues …

Hierarchies Of Violence, Victimhood, And Remedy In The Pursuit Of Women's Rights After War, Marie Berry, Milli Lake, Sinduja Raja, Soraya Zarook

English Faculty Publications

Recent postwar recovery efforts have paved the way for reforms that advance women's participation in politics, inclusion in the economy, and access to justice. In this article, we show how a singular emphasis on gender reforms after war that are inattentive to other societal cleavages can leave various forms of marginalization in the shadows. Subnational interviews on the reverberations of gender reforms in five postwar countries expose three hierarchies that structure access to rights for war-affected communities. We reveal which violence is privileged, whose violence is privileged, and which responses are privileged from the perspectives of differently situated war-affected women, …

[Review Of The Book Closed Seasons: The Transformation Of Hunting In The Modern South, By J. Brock]., Tracy L. Barnett

History Faculty Publications

[Introduction] The hunt has long occupied a central place in southern lore and literature. For generations, fathers and grandfathers initiated their sons into its rituals, teaching them to steady a rifle, bait a hook, and cast a line. In the twentieth century, William Faulkner and other writers elevated this long-held tradition into mythology, evoking both the exhilaration of the chase and the gothic romance of Mississippi’s pine forests. And, today, around 5.3 million southerners (of all races and genders) hold hunting licenses and organize their calendars around the season’s rhythms and associated social gatherings. Focusing on the Deep South states …

A Forgotten Piece Of History: The Story Of The First Municipal Council Of Colombo, Sri Lanka, Chandra Richard De Silva

History Faculty Publications

The website of the Municipal Council of Colombo asserts that it was founded in 1865 (Colombo Municipal Council, 2015). This is also the story that is recounted in scholarly histories of Colombo, in modern websites and in popular accounts of the history of the city. The objective of this article is to demonstrate that Colombo had a municipal council as early as the sixteenth century and to illuminate the story of its existence for over 70 years - until well into the seventeenth century. It also explores the functions of the council, its relationship with Portuguese officials who ruled the …

Crisis Pricing, John F. Duffy, Richard M. Hynes

Emory Law Journal

Extraordinary times beget extraordinary measures. Multiple national emergencies during the past quarter century have generated a pitched debate as to whether, and to what extent, a crisis justifies deviations from fundamental legal rules. That debate has often focused on constitutional law and has produced sharply divergent views. Some theorists advocate a “business-as-usual” approach, eschewing emergency deviations, but societies rarely hold that course. More pragmatic scholars would permit some emergency measures but also defend fundamental social structures that have great value even during emergencies.

Emergencies, however, pose challenges not only to constitutional rules but to law generally, including the basic structures …

La "Vie" Continue: Legal Recognition As A Gateway To Sustainable Cross-Border Investments Between China And The U.S., Zhen Tian

Emory Law Journal

The Variable Interest Entity (VIE) structure is a network of contracts that connects the shell company listed on U.S. exchanges to the operating company in China. In 2000, Chinese enterprises first created the VIE structure to circumvent stringent PRC regulations and gain direct access to capital markets overseas. However, despite its strategic utility, the VIE structure has remained in a regulatory gray area. While the VIE contracts effectively mimic equity control, they face an uncertain reception from the PRC government, posing significant risks to U.S. investors.

Following the Luckin Coffee fraud scandal in 2020, the U.S. government passed the Holding …

Safety Whistleblowing, Benjamin L. Cavataro

Emory Law Journal

When companies fail to do the right thing, critical safety-law violations often go unchecked. Using previously unstudied records, this Article provides the first critique of a core component of the federal consumer product safety whistleblower regime created by Congress in 2008.

This Article reveals why and how the current law—which provides protections only to employee-whistleblowers who are retaliated against—has failed to protect consumers from death and injury. First, documents obtained via the Freedom of Information Act provide evidence suggesting that the current program fails on its own terms. Very few workers have filed complaints; the number of successful complaints is …

Farewell, Feres: Does The Camp Lejeune Justice Act Overturn The Feres Doctrine?, Megan E. Rohn

Emory Law Journal

In 1950, the Supreme Court held in Feres v. United States that soldiers cannot sue the government for injuries incurred “incident to service.” This holding set a precedent for denying suits by injured soldiers and their families, and the precedent became known as the Feres Doctrine. Over time, the Feres Doctrine has been expanded and abused to universally dismiss lawsuits by soldiers for negligence, medical malpractice, sexual assault, and intentional torts including sexual assault. Because the original decision did not adequately define “incident to service,” the Feres doctrine has been applied differently in different judicial circuits, causing confusion and drawing …

The New Constitutional Challenge To Qui Tam, Emily Mitchell

Emory Law Journal

Following the June 2023 Supreme Court decision in United States ex rel. Polansky v. Executive Health Resources, Inc., the ability of qui tam relators to litigate False Claims Act actions faces renewed challenges on multiple constitutional grounds. Specifically, in his Polansky dissent, Justice Thomas raises a novel Article I concern that Congress does not have the authority to partially assign the government’s litigation claim to relators, thus leaving them without standing to sue. Defendants in False Claims Act cases have already begun raising Thomas’s constitutional arguments in federal courts. What is heralded as the government’s most effective tool to …

Defying Goldilocks: Why The Flsa Collective Action Notice Standard Set Forth In Lusardi Is “Just Right”, Maguire Tausch

Emory Law Journal

Since the 1980s, federal district courts have applied a lenient standard under § 216 of the Fair Labor Standards Act of 1938 (FLSA), allowing plaintiffs to more easily notify “similarly situated” coworkers of an employer’s potential minimum wage and overtime violations. But recent circuit court decisions have contested this lenient standard. And today, three approaches exist for sending notice to “similarly situated” coworkers hoping to form an FLSA collective action: one lenient, one strict, and one attempting to chart a middle ground. Challenges to the lenient standard threaten workers’ abilities to vindicate their rights and uphold their inherit dignity, eroding …

Rethinking Misdemeanor Incompetence, Susan A. Mcmahon

Emory Law Journal

The competence to stand trial system is a “slow-moving tsunami” that has grown exponentially in recent years, capturing far more people than jurisdictions have the capacity to handle. As a result, individuals who are incompetent become trapped in pretrial competence purgatory, often detained in jail for months or even years. The harms of this system can be tragic. Competence detainees have died by suicide, starvation, and beatings. They are placed in solitary confinement, experience neglect and abuse, and deteriorate mentally and physically while confined. Often, these individuals are accused of misdemeanors. Often, they go through the competence process only to …

Beyond Jarkesy: Rethinking The Role Of Administrative Law Judges In Sec Administrative Proceedings, Mark T. Uyeda, Jaime Marinaro

Fordham Journal of Corporate & Financial Law

No abstract provided.

Pitching For Reform: Cangrejeros' Push To Level The Legal Playing Field By Challenging Baseball's Antitrust Exemption, Justin P. Chaljub

Fordham Journal of Corporate & Financial Law

For over one-hundred years, professional baseball has enjoyed an antitrust exemption unique among American major sports leagues, stemming from Supreme Court decisions in Federal Baseball and its progeny. This exemption has significantly influenced the evolution and structure of Major League Baseball (MLB). Despite extensive criticism and challenges for judicial and legislative reform, the exemption persists today.

However, new efforts have emerged to comprehensively disrupt this framework. In 2023, Nostalgic Partners was brought and structured to reach the U.S. Supreme Court. Plaintiffs anticipated they would lose at the lower court levels and garnered widespread support for the Court to grant a …

The Federal Reserve’S Fight Against Covid-19: A Study Of The Corporate Bond Intervention, Noah Seilgson

Fordham Journal of Corporate & Financial Law

In response to the COVID-19 pandemic, the Federal Reserve (Fed) embarked on an unprecedented mission to stabilize the U.S. economy as businesses shut down. One emergency Fed facility, the Secondary Market Corporate Credit Facility (SMCCF), was used to purchase corporate bonds and corporate bond exchange-traded funds (ETFs) in the secondary market. This extraordinary measure, which injected liquidity into the corporate bond market, aimed to mitigate economic fallout for large companies. Purchasing corporate bonds marked a departure from previous Federal Reserve interventions, but the statutory authority was the same as had been used in past crises: Section 13(3) of the Federal …

Company Districts, C.J. Suglia

Fordham Journal of Corporate & Financial Law

Special districts that are owned or controlled by private entities and act almost uniformly like a company town can be dubbed a “company district.” These special districts, similar to historical company towns, have autonomy over the districts, control the local government, and only have to answer to the state government. Historical company towns like Pullman, Illinois and Hershey, Pennsylvania had almost canonical command over the land within their boundaries. Company districts operate their business similar to a company town—in a city that the private entity controls, but do not have employees living on-site. Company districts benefit by being immune to …

Alternatives To Delaware? Evaluating Corporate Law In Nevada, Texas, And Wyoming, Joseph Landau, Bailey Swartz, Anthony Rickey, Robert Ragazzo, Benjamin Edwards, George A. Mocsary

Fordham Journal of Corporate & Financial Law

No abstract provided.

Algorithms In Finance: Balancing First Amendment Protections And Regulation, Yusraa Tadj

Fordham Journal of Corporate & Financial Law

As algorithms become a function of decision-making in the financial sector, policymakers, the judiciary, and academics grapple with regulatory questions. With the increased reliance on algorithms in finance, the Securities and Exchange Commission (SEC) proposed a rule to mitigate potential conflicts of interest that can arise out of financial firms using algorithms. Algorithm users, including financial firms, are finding novel ways to protect algorithm use, such as by offering them First Amendment protections.

This Note considers to what extent algorithms can be considered protected speech amidst the complexity of algorithms and relationship within the financial sector. The Note argues that …