Law Commons^™

"Major Questions" About Preemption, Kamaile A.N. Turčan

Villanova Law Review (1956 - )

No abstract provided.

Penny-Wise But Not Pound-Foolish: The Second Circuit Limits The Scope Of Scheme Liability For Securities Fraud In Sec V. Rio Tinto Plc, Julia Sullivan

Villanova Law Review (1956 - )

No abstract provided.

The Privacy Act Of 1974: The American Bill Of Rights On Data And Its Unfinished Business, Dongsheng Zang

Articles

In the midst of the artificial intelligence (“AI”) revolution and the debates around it in 2023, this Article proposes to revisit the history of the Privacy Act of 1974, a federal statute that attempted to revolutionize the notion of privacy in response to automated data processing in the computer age. By recognizing that an individual should have the right to control data about herself, the 1974 Act went beyond the Warren-Brandeis framework of privacy based on tort law—the 1974 Act was essentially an American Bill of Rights on data.

The Article first tracks the conceptual development of this new idea …

Predicting (And Protecting) The Future Of Environmental Law After Loper Bright, Sanne H. Knudsen

Articles

Nostradamus, the sixteenth-century French philosopher and seer, is said to have predicted many things: the French Revolution, the rise of Napoleon, the Great Fire of London, the rise of Adolf Hitler, the 9/11 attacks on the World Trade Center. Of course, there are skeptics. The predictions, after all, tended to be “cryptic and vague.”

Still, if alive today, I wonder what quatrain Nostradamus might write—and what elusive meaning his fans might try to decode—about the future of environmental law in the United States. Would he predict that environmental law will be ravaged by the binary politics of the moment, reduced …

Disability Discrimination By Clinical Algorithm, Elizabeth Pendo, Jennifer D. Oliva

Articles

In response to America’s escalating drug poisoning crisis, the federal government has funded, incentivized, and mandated that states adopt and implement prescription drug monitoring programs (“PDMPs”) to electronically surveil controlled substances and other “drugs of concern.” State PDMPs utilize proprietary, predictive software platforms that deploy algorithms to determine whether a patient is at risk for drug misuse, drug diversion, doctor shopping, or substance use disorder. PDMPs have never been validated by a federal agency or peer review, yet states have mandated their use throughout the health care delivery system.

Research demonstrates that clinical overreliance on the risk scores generated by …

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.

Metagenomic Sequencing For Early Detection Of Future Engineered Pandemics: Foreshadowing The Privacy Challenge, Nir Eyal, Bridget Williams, Kevin M. Esvelt, Jane R. Bambauer

UF Law Faculty Publications

In this commentary, we imagine how a global system of metagenomic sequencing could be governed in order to reap the benefits and manage the risks. Global institutional engineers and their academic partners would need to develop a new governance model to ensure that all partners involved in a global metagenomic surveillance system cooperate as needed.

How Detrimental Is Transunion V. Ramirez, Really? Understanding The Impact On Environmental Law, Lauren Young

Washington Law Review

In 2021, the United States Supreme Court issued a controversial opinion with the potential to constrict the standing doctrine. TransUnion v. Ramirez appeared to alter standing’s “concrete harm” requirement, which would significantly restrict plaintiffs’ ability to invoke the jurisdiction of federal district courts. Building off its 2016 case, Spokeo v. Robins, the Court declared that intangible harms are only concrete when “plaintiffs have identified a close historical or common-law analog[] for their asserted injury.” The “common-law analog[]” required a “close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.” The Court mandated this requirement …

Note From The Editor-In-Chief, Kara L. Anderson

University of the Pacific Law Review

No abstract provided.

Note From Chief Comment Editor, Sunny Gorba

University of the Pacific Law Review

No abstract provided.

Mcmarriage Equality, William N. Eskridge Jr.

University of the Pacific Law Review

No abstract provided.

Navigating Neither, Susan S. Kuo

University of the Pacific Law Review

No abstract provided.