Law Commons^™

Interactional Ordering: Reconstructing Lon Fuller's Theory Of Private Law, Shyamkrishna Balganesh

Faculty Scholarship

While Lon Fuller is best remembered for his contributions to the fields of general jurisprudence and contract law, his work in each has long been seen as unrelated to the other. This Article shows that in a significantly underappreciated body of work, Fuller did connect the two and, in the process, developed the outlines of a robust theory of private law, best characterized as “interactional ordering.” Driven by Fuller’s efforts to develop a jurisprudence of form that was derived from conventionalism and natural law thinking, interactional ordering sees all normativity as originating in horizontal interactions between individuals in society, seeking …

The Equal Right To Exclude: Religious Speech And The Road To 303 Creative Llc V. Elenis, Kate Redburn

Faculty Scholarship

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment. Using extensive original archival research, case materials, and little-known accounts of key figures, I reconstruct the New Christian Right’s legal strategy to obtain speech coverage for service denial. By strategically co-opting the progressive free speech legacy, innovative lawyers in the religious wing of the conservative legal movement convinced liberal jurists …

The Compatibility Of The Substance Over Form Doctrine With Tax And Investment Treaties: A Case Study Of Lone Star V The Republic Of Korea, Blazej Kuzniacki

Research Collection School Of Accountancy

In late August 2022, the Lone Star tribunal concluded one of the latest awards in tax-related investment treaty disputes (the tax-related claims account for almost USD 1.5 billion of the total of almost USD 4.7 billion claimed in compensation). It also is the first award in which the tribunal dealt with the application of the substance over form doctrine (SOFD) by tax authorities and courts of the host state to prevent the abuse of a double tax treaty (DTT), and the impact of the refusal to accord the claimants the benefits under the DTT via a domestic (Korean) SOFD on …

Exploring Keebet Von Benda-Beckmann's Legal Pluralism In Slum Transformation: An Ethnographic Study Of Urban Revitalization In Indonesia, Imam Koeswahyono, Diah Pawestri Maharani, Nadyah Maylika Rahmawati, Ika Ismudyahwati

The Indonesian Journal of Socio-Legal Studies

Slum areas in Indonesia present a significant challenge, with government programs such as the National Slum Upgrading Program (NSUP) aiming to address urban poverty and improve living conditions. Despite the implementation of formal policies, the interplay between legal frameworks and local practices often determines the success of such initiatives. Drawing on Keebet von Benda-Beckmann’s theory of legal pluralism, this research examines the transformation of slums into productive and sustainable zones, focusing on Kampung Jodipan, Kampung Heritage Kajoetangan, and Kampung Kreatif Dago Pojok. These case studies reveal how formal legal systems interact with informal norms and community-driven practices in achieving urban …

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.

Lost At The South China Sea: A Legal Rationale For Joining Unclos, Dean Feinman

Fordham Law Review

Rising tensions in the South China Sea are a tired front of great power competition. Since President Barack Obama’s “pivot to Asia,” there has been renewed attention on growing Chinese naval power and influence, which stands to challenge the U.S. status as the world’s preeminent naval force. Despite a clear and obvious interest in maintaining a favorable global oceans regime, the United States has not ratified the United Nations Convention on the Law of the Sea (UNCLOS), the principal international instrument governing the use of the oceans. Instead, the United States argues that ratification is unnecessary because UNCLOS “embodies” customary …

The Equal Protection Case Against Disparate U.S. Humanitarian Parole Policies For Afghans Compared To Ukrainians, Darcy Gallego

Fordham Law Review

The disparities between the U.S. government’s use of humanitarian parole in response to the humanitarian crises in Afghanistan and Ukraine are indicative of discrimination and violate the Equal Protection Clause. As such, U.S.-based relatives of Afghans should prevail in seeking accountability for the thousands of Afghans who continue to wait for protection.

First, this Note explains what immigration parole is, provides an overview of standing, equal protection, and animus, and describes how the government has used parole for Afghans and Ukrainians. Second, it compares parole for Afghans and Ukrainians and discusses recent immigration equal protection challenges. Third, it demonstrates that …

A Broken Shield: Ineffective Assistance Of Counsel Claims In Cases Of Racist Defense Attorneys, Sophia Sabet

Fordham Law Review

Defense attorneys are not immune to racism, and a defense attorney who holds racist beliefs about their client’s race fundamentally calls into question the representation received. Under the Sixth Amendment, all criminal defendants have the right to the effective assistance of counsel. To prevail on an ineffective assistance of counsel claim, the U.S. Supreme Court held in Strickland v. Washington that a criminal defendant must prove that their counsel’s performance was deficient and that the deficiency prejudiced the defense. The Supreme Court supplemented the Strickland standard in Cuyler v. Sullivan and United States v. Cronic, holding that a conflict …

Compelling Compliance: An Analysis Of Methods For Enforcing New York’S Compulsory Education Law As Applied To Haredi Yeshivas, Kaitlyn Sivertsen

Fordham Law Review

This Note explains recent findings that many of New York’s Haredi yeshivas are failing to comply with the compulsory education laws and advocacy for the state to heighten enforcement. It examines other community members’ opposition to this belief and numerous legal challenges. This Note advances legal scholarship by pointing out that although these debates regarding education and religious freedom are important, in the context of New York’s Haredi yeshivas, they are futile without also recognizing that New York’s statute does not provide for efficient means of enforcement. There is little to no existing literature on this specific issue. Thus, this …

Table Of Contents - Cardozo Law Review, Volume 46, Issue 2

Cardozo Law Review

No abstract provided.

A Distinct System For Presidential Succession On Inauguration Day: Getting The Most Out Of Section 3 Of The Twentieth Amendment, Brian C. Kalt

Cardozo Law Review

The current presidential-succession statute uses the same line of succession for every conceivable situation. But there are many different types of potential succession scenarios. Succession need not—and should not—be governed by a one-size-fits-all approach.

Before the Twentieth Amendment was ratified in 1933, the Constitution authorized Congress to provide only for double vacancies during the term, when there already is a President and Vice President. Recognizing this gap, Section 3 of the Twentieth Amendment empowered Congress to cover inauguration-day double vacancies: at the outset of a term, when nobody is available to become President or Vice President in the first place. …

Human Capital Disclosure & Corporate Governance: The New Evidence, George S. Georgiev

Cardozo Law Review

This Article explores the evolution of human capital disclosure—firm-supplied information about various workforce-related matters—as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management (“HCM”) disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in board of directors’ oversight responsibilities in a number of areas, including HCM, while labor’s power has unexpectedly increased in some …

Predetermined Event Wagering And Betting On The Past, Emmaline Friederichs

Cardozo Law Review

The newfound freedom of states to legalize sports betting following the demise of the Professional and Amateur Sports Protection Act in 2018 has led to rapid growth of the sports betting market. In an attempt to further capitalize on the appetite for sports wagering, states and sportsbooks have recently started to expand their offerings by opening betting lines on entertainment award shows. This move, paired with WWE’s recent interest in entering the market, has raised concerns that predetermined events are particularly vulnerable to event manipulation and betting using insider information. This Note argues that the current state regulatory schemes are …

A One-Egg Wonder: Working To Cure Judicial Gender Bias And Increase Access To Pre-Embryos For Infertile Parties, Nicole Marks Kaufman

Cardozo Law Review

The first live birth of a child conceived from in vitro fertilization (“IVF”) happened in 1978. Today, over eight million children have been born through IVF procedures. The first dispute over the resulting pre-embryos was in 1990 when the Tennessee Supreme Court outlined a balancing approach with a presumption favoring non-use of the pre-embryos for courts to follow when resolving these matters. Numerous states have taken differing approaches—some have taken a contractual approach, others an approach requiring contemporaneous mutual consent before there can be a departure from the status quo, and very few state legislatures have directly addressed how to …

“Split My Award With Whom?” A Case For Plaintiff Incentive Awards And Plaintiff-Attorney Fee Splitting In Class Action Lawsuits, Ilana Kruchenetskaya

Cardozo Law Review

Named plaintiffs are the heart of class action lawsuits—without them, there is no class action. To motivate these individuals to be the face of the class and compensate them for their role in the litigation process, courts typically approve named plaintiff incentive awards when such awards are included in settlement offers. Recently, however, the Eleventh Circuit held that these awards are prohibited under purported Supreme Court precedent from the late 1800s. This decision undermines the future of class actions by removing any incentive individuals may have in taking on the extra work and scrutiny of bringing a class action lawsuit. …

Smile! You’Re On Camera: Police Use Of Automatic License Plate Readers And The Need For Statewide Legislation, Cailyn Hoang

University of Dayton Law Review

No abstract provided.

“Standing” In The Way Of Equality: Acheson Hotels, Llc, V. Laufer, Hayley R. Mullen

University of Dayton Law Review

No abstract provided.

The Nextgen Bar Exam Meets The Next Generation Law Student: A Revised Approach To Legal Analysis, Scott Caron

University of Dayton Law Review

No abstract provided.

Was 2024 A Good Year For You? Let’S Review Your Yardsticks…, Seow Hon Tan, Su Ching Lim

Research Collection Yong Pung How School Of Law

This op-ed encourages all to reflect on their year and examine whether they have lived meaningfully according to their yardstick of meaning, the legacy they want to leave behind, and whether their talents and credentials are empowering and enabling, rather than restricting them. It is written as part of a research project examining success and flourishing in Singapore.

Harvesting Hope: How La Casa De La Cultura Serves Migrant Families Through Health And Advocacy Programs, Ana Ruiz

Capstone Projects and Master's Theses

This project aims to enhance community engagement in Pajaro through strategic outreach and marketing efforts for weekly meetings hosted at La Casa de la Cultura. By increasing awareness and participation, the initiative seeks to empower residents, especially those from marginalized backgrounds, to access vital resources and services. The project will collect data on attendance and community interests, leading to more tailored presentations that address pressing concerns. Ultimately, this outreach aims to foster a unified, informed community capable of advocating for its needs and accessing available support systems effectively.

The Relationship Between Police Stress And Officer Misconduct, Leobardo Lopez-Cristobal

UNLV Theses, Dissertations, Professional Papers, and Capstones

Recent high-profile and controversial police-related incidents have sparked an intensified public discourse on police misconduct. This has resulted in increasing calls for greater accountability and transparency within U.S. police agencies. Much of the existing research on police misconduct centers around two competing explanations: the "bad apples" perspective, which attributes misconduct to individual officers, and the "bad barrels" perspective, which points to systemic or organizational factors (Rojek, Decker, & Wagner, 2015). However, one factor that has been underexplored in the literature is the role of police stress in influencing deviant police behavior. Previous studies suggest a potential link between police-related stress …

Masthead

UC Law Journal

No abstract provided.

Free The Market: How We Can Save Capitalism From The Capitalists, Mark A. Lemley

UC Law Journal

The free market works because no one person or company is making the decisions. In a competitive market, businesspeople make the wrong decisions all the time, just as central planners do. But the consequences of those decisions don’t infect the market as a whole. Businesses that guess wrong lose money or go out of business. But as long as there is a competitor out there who guesses right, the market provides people what they want.

But it turns out that the very last thing capitalists want is a free market. Capitalism may thrive under conditions of robust market competition, but …

Debt End: The “Texas Two-Step” And The Constitution, Kirk Rider

UC Law Journal

The “Texas Two-Step” is a novel means of forcing a settlement agreement on mass-tort claimants. Corporations utilize the Two-Step bankruptcy strategy using a state law merger statute to split itself in two. One half of the corporation retains all the value, and the other half retains all the liabilities associated with the mass tort claims. The shell-company, which inherits the liabilities and then files a bankruptcy petition, uses the Bankruptcy Code’s powers to attempt a forced settlement on all current and future litigants and shield its financially healthy parent company in the process. Throughout this Note, I will survey the …

Patent Infringement, Private Law, And Liability Standards, Robert P. Merges

UC Law Journal

Private law governs interactions among private parties. A large body of private law theory holds that private law is aimed at corrective justice: doing justice as between the two parties to a private interaction (the private law dyad). This in contrast to public law, the law of state-citizen interactions, whose purpose is usually said to be the pursuit of society-wide fairness, often understood as distributive justice. Torts, contracts and property are the three classic areas of private law in common law jurisdictions. A sizeable literature now concerns itself with classic private law topics as they apply to intellectual property (IP). …

Working From 10 To 5, What A Way To Make A Livin’: The Sec’S Most Recent Amendments To Promote Corporate Governance And Curb Exploitative Hedge Fund Activism, Richard Young

UC Law Journal

This Note investigates the evolving regulatory landscape following the 2023 SEC amendments regarding beneficial ownership reporting. It begins by analyzing the rise of hedge fund activism and its influence on corporate governance strategies, addressing benefits, controversies, and criticisms associated with this form of shareholder activism. This Note then traces the historical development of the regulatory requirements for beneficial ownership reporting such the Williams Act and now nearly forty years later, the 2023 SEC amendments to Schedule 13(d) and Schedule 13(g). Lastly, this Note analyzes the ongoing limitations and challenges in balancing market transparency with market competition, gleaning into the future …

How White Supremacy Travels Through Time: Anti-Literacy Laws, Dei Bans, And The Issue Of Black Self-Determination In Public Health., Nicole V. Ford

Electronic Theses and Dissertations

This dissertation used a qualitative policy content analysis (PCA) of historical anti-literacy laws and modern DEI bans to answer two research questions: What is the connection between anti-literacy laws and DEI bans? How do anti-literacy laws and DEI bans create an environment that maintains white supremacy? A PCA exercise informed the analysis of historical anti-literacy laws in South Carolina (1834), Georgia (1829), North Carolina (1830), Louisiana (1830), Virginia (1831), and Alabama (1833) and modern DEI bans in Texas (2023), Alabama (2024), and Florida (2023) to find the connection between the laws. Findings from this dissertation illustrate how white supremacy operates …

Human Capital Disclosure & Corporate Governance: The New Evidence, George S. Georgiev

Articles

This Article explores the evolution of human capital disclosure-firm-supplied information about various workforce-related matters-as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management ("HCM") disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in board of directors' oversight responsibilities in a number of areas, including HCM, while labor's power has unexpectedly increased in some …

Equitable Thriving: A Lifecourse Approach To Maternal And Child Health Justice, Yael Cannon

Georgetown Law Faculty Publications and Other Works

Black women are at least three times more likely to die due to a pregnancy-related cause than White women. Grave racial disparities also abound in severe maternal morbidity, or significant unexpected health consequences of labor and delivery. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, eliminating the constitutional right to abortion, has only further restricted reproductive healthcare options and raised concerns that these disparities will grow even starker. Black, Indigenous, and Latine infants and children also experience unjust—and avoidable—health inequities. As a general matter, people of color are sicker across their lifespans and die younger in …

Two Forms Of Formalism In Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Formalism in contract interpretation has had many defenders and many critics. What lawmakers need, however, is an account of when formalism works and when it does not. This article addresses that need by providing general theory of contract exposition and differentiating between two salient forms of formalism in contract law. Formalities effect legal change by virtue of their form alone, thereby obviating interpretation. Examples include “as is”, the seal, and sometimes contract boilerplate. Evidentiary formalism, in distinction, limits the evidence that goes into interpretation. Plain meaning rules are an example of evidentiary formalism. The article provides a detailed analysis of …