Law Commons^™

Ask The Professor: How Has The Recent U.S. Supreme Court Opinion In Murray V. Ubs Securities Provided Much Needed Protection To Whistleblowers?, Ronald Filler

Articles & Chapters

No abstract provided.

I Saw Guns And Sharp Swords In The Hands Of Young Children: Why Mental Health Courts For Juveniles With Autism Spectrum Disorder And Fetal Alcohol Spectrum/Disorder Are Needed, Michael L. Perlin, Heather Ellis Cucolo, Deborah Dorfman

Articles & Chapters

In this article, we offer – we believe for the first time in the scholarly literature -- a potentially (at least partially) ameliorative solution to the problems faced by persons with autism(ASD) and fetal alcohol syndrome/disorder (FAS/FASD) in the criminal justice system: the creation of (separate sets of) problem-solving juvenile mental health courts specifically to deal with cases of juveniles in the criminal justice system with ASD, and with FAS/FASD. There is currently at least one juvenile mental health court that explicitly accepts juveniles with autism, but there are, to the best of our knowledge, no courts set up specifically …

Congress's Untapped Authority To Certify U Visas, Elora Mukherjee, Fatma Marouf, Sabrineh Ardalan

Faculty Scholarship

A crucial path to legal status for immigrant victims of crimes is the U visa, which Congress established with strong bipartisan support to protect victims of particular crimes who are helpful to law enforcement. Because the U visa was intended to encourage reporting of crimes, the application requires a certification form to be completed by a federal, state, or local authority that is investigating or prosecuting the alleged offense. Arbitrary and inconsistent certification decisions by state and local authorities make it especially important to identify relevant federal authorities that can serve as certifying authorities for U visas. This Piece argues …

Separation Of Powers By Contract: How Collective Bargaining Reshapes Presidential Power, Nicholas Handler

Faculty Scholarship

This Article demonstrates for the first time how civil servants check and restrain presidential power through collective bargaining. The executive branch is typically depicted as a top-down hierarchy. The President, as chief executive, issues directives with vast implications for federal policy. Usually, the tenured bureaucracy of civil servants below him follow these directives. Occasionally, when the President’s policies appear corrupt or ill-advised, bureaucrats may illicitly “resist” them. This presumed top-down structure shapes many influential critiques of the modern administrative state. Proponents of a strong President decry civil servants as an unelected “deep state” usurping popular will. Skeptics of presidential power …

Are Employee Noncompete Agreements Coercive? Why The Ftc's Wrong Answer Disqualifies It From Rulemaking (For Now), Alan J. Meese

Faculty Publications

The Federal Trade Commission recently proposed a rule banning nearly all employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the Federal Trade Commission Act. The proposed rule reflects two complementary pillars of an aggressive new enforcement agenda championed by Commission Chair Lina Khan, a leading voice in the Neo-Brandeisian antitrust movement. First, such a rule depends on the assumption, rejected by most prior Commissions, that the Act empowers the Commission to issue legislative rules. Proceeding by rulemaking is essential, the Commission has said, to fight a “hyperconcentrated economy” that injures employees and consumers alike. Second, …

The Real Wrongs Of Icwa, James G. Dwyer

Faculty Publications

Haaland v. Brackeen rejected federalism-based challenges to the Indian Child Welfare Act (ICWA) but signaled receptivity to future challenges based on individual rights. The adult-focused rights claims presented in Haaland, however, miss the mark of what is truly problematic about ICWA. This Article presents an in-depth, children’s-rights based critique of the Act, explaining how it violates a fundamental right against state exertion of power over central aspects of persons’ private lives to their detriment for illicit purposes. In fact, the Act’s defenders are complicit in the same sort of government violence that motivated ICWA’s enactment—erasing aspects of children’s heritage …

Holding Aggressors Responsible For International Crimes: Implementing The Unequal Enforcement Doctrine, Nancy Amoury Combs

Faculty Publications

It is a fundamental tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party such as Russia — that illegally launches a war — benefits from all the same rights as a party such as Ukraine — that is forced to defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible because defenders should have more rights and fewer responsibilities than aggressors. Legal scholars continue to support the equal application doctrine, however, because they reasonably fear that applying different rules to …

Contagion. Ftx, A Sector's Crisis & Crypto's Silent Victims, Lev E. Breydo

Faculty Publications

Late 2022 was crypto’s Minsky moment, characterized by wholesale sector collapse and over a dozen major bankruptcies, including FTX’s implosion. For millions of investors, it was the worst of all worlds, combining the frenetic contagion of 2008 with consumer protections most reminiscent of the Panic of 1907.

While the industry’s challenges are often attributed to the nature of crypto itself, the true root cause reflects a fundamental category error. This Article’s comprehensive market taxonomy identifies as the sector’s nexus of risk entities it terms “Crypto Platforms,” like FTX. Crypto Platforms are essentially financial institutions – a cauldron of externalities subject …

The Art Of Discovery: Part 2, David Spratt

Scholarly Articles in Law Reviews & Journals

Form discovery is undeniably useful, particularly for seeing the types of questions or documents that are usually asked in a certain type of case. Unfortunately, many form interrogatories and document requests are outdated and do not follow effective writing strategies of clarity and precision. Many of the sample discovery requests are full of legalese, which often results in ambiguity. Grab your comb and razor, as we work together to “clean up” your discovery requests.

مبدأ الاقتناع القضائي في ضوء أحكام المحكمة الاتحادیة العلیا, محمد حسن العیدروس

Theses

/="/">

The Principle of Judicial Conviction in View of the Rulings of the Federal Supreme

The principle of judicial conviction is the main pillar of the theory of criminal evidence, it is not imagined that the criminal judge issues his judgment without basing this judgment on a firm conviction that has no doubt or guess, as it is known that criminal judgments of conviction are based on certainty and certainty, and the principle of judicial conviction represents a major guarantee of reassurance of the validity and integrity of penal judgments and access to justice, and this study dealt with rooting …

اﺳﺘﻌﻤﺎل اﻟﻌﻘﻮد اﻟﺬﻛﯿﺔ ﻓﻲ ﺳﻮق اﻷوراق اﻟﻤﺎﻟﯿﺔ: دراﺳﺔ تحليلية, ﻣﺤﻤﺪ ﺧﺎﻟﺪ إﺑﺮاھﯿﻢ

Theses

/="/">

Using Smart Contracts in Financial Stock Market: An Analytical Study

Smart contracts are considered one of the latest technologies that have obtained attention from many Legalists and Engineers. Smart contracts are a set of arrangements written via programming languages through computer programs or by programmers without the need for an intermediary. Smart contracts are self-executing. It executes once the terms and conditions agreed between the parties happen.

Perspectives differ among legalists about the legality of smart contracts. Some legalists consider these contracts as binding legal contracts, while others believe that a smart contract might be just a part of …

اﻻﺧﺘﺼﺎص اﻟﻨﻮﻋﻲ ﻟﻤﺤﻜﻤﺘﻲ اﻟﺠﻨﺎﯾﺎت اﻟﻜﺒﺮى واﻟﺼﻐﺮى طﺒﻘﺎ ﻟﻘﺎﻧﻮن اﻹﺟﺮاءات اﻟﺠﺰاﺋﯿﺔ اﻻﺗﺤﺎدي, ﺧﺎﻟﺪ ﻧﺪﯾﻠﮫ اﻟﻨﻌﯿﻤﻲ

Theses

The Specific Jurisdiction of the Major and Minor Criminal Courts in Accordance with the Federal Criminal Procedure Law

This study deals with the rules of specific jurisdiction for the major and minor criminal courts in accordance with the Federal Code of Criminal Procedure, where specific jurisdiction is one of the most important jurisdictions stipulated by the federal legislator, by allocating specific courts to specific types of crimes. In light of this, the federal legislator in the United Arab Emirates has singled out a new system with regard to specific jurisdiction, distinguishing between the major and minor criminal courts in terms …

اﻷﻣﺒﻮدﺳﻤﺎن ﻛﺂﻟﯿﺔ ﻧﺤﻮ ﺗﻌﺰﯾﺰ ﺛﻘﺔ اﻟﻤﺘﻌﺎﻣﻠﯿﻦ بجهة اﻹدارة ﻓﻲ دوﻟﺔ اﻹﻣﺎرات اﻟﻌﺮﺑﯿﺔ اﻟﻤﺘﺤﺪة, ﻋﺒﺪاﻟﺤﻤﯿﺪ أﺣﻤﺪ اﻟﻮاﺣﺪي

Dissertations

The Ombudsman Serves as a Mechanism to Enhance Trust in Administrative Entities in the United Arab Emirates

In the midst of governments’ trend towards re-evaluating the relationship with customers by building a partnership relationship between them to achieve common and diverse interests at the legal, administrative, social and economic levels, the researcher sought to find mechanisms that would enhance trust between the government and customers to find alternative solutions to address customer’s complaints and disputes arising from administrative work.

Therefore, the choice fell on the experience of the State of Sweden in establishing the Ombudsman system, which aims to protect …

ﻣﺪى ﻛﻔﺎﯾﺔ ﺿﻤﺎﻧﺎت اﻻﺳﺘﺜﻤﺎر اﻷﺟﻨﺒﻲ اﻟﻤﺒﺎﺷﺮ - دراﺳﺔٌ ﺗﺤﻠﯿﻠﯿﺔٌ وَ ﻓﻘًﺎ ﻷﺣﻜﺎم اﻟﻘﺎﻧﻮن اﻻﺗﺤﺎدي رﻗﻢ (32) ﻟﺴﻨﺔ 2021, Mohammed Ibrahim Almemari

Dissertations

The Adequacy of Foreign Direct Investment Guarantees Analytical Study in Accordance with the Provisions of Federal Law No. (32) of 2021

The great economic competition between countries, and their endeavor to strengthen their economy through various fields; Make them compete with each other in attracting foreign direct investments to their territories; However, these investments cannot move from their home country to another country without having economic advantages and incentives that encourage them to invest in a country other than the home country. Likewise, these investments cannot carry out their work in any country without having The investor has many guarantees …

مدى كفاية ضمانات الاستثمار الأجنبي المباشر وفقًا لأحكام القانون الاتحادي رقم (32) لسنة 2021: دراسة تحليلية, Mohammed Ibrahim Almemari

Dissertations

The Adequacy of Foreign Direct Investment Guarantees: Analytical Study in Accordance with the Provisions of Federal Law No. (32) of 2021

The great economic competition between countries, and their endeavor to strengthen their economy through various fields; Make them compete with each other in attracting foreign direct investments to their territories; However, these investments cannot move from their home country to another country without having economic advantages and incentives that encourage them to invest in a country other than the home country. Likewise, these investments cannot carry out their work in any country without having The investor has many guarantees …

Conceptualising State-Centric Mediation: An Analysis Of China's Foreign Investment Complaints Mechanism, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

This article argues that China's foreign investor complaints system constitutes 'state-centric investment mediation'. The Rules on Handling Complaints of Foreign-Invested Enterprises, which entered into force on 1 October 2020, place a state agency in the position of facilitating negotiations between a foreign investor and the agency being complained against. The prospects for this complaints system depend on how the state-as-mediator dynamic is perceived by foreign investors. To this end, it will be argued that settlement agreements reached pursuant to this system may be enforceable under the Singapore Convention on Mediation in certain circumstances. Investors and government entities operating similar systems …

Constitutional Supremacy, Inherent Powers, And Orders That Damages Or Costs Be Paid In Instalments: Tan Meow Hiang V Ong Kay Yong [2023] Sghc 286, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The General Division of the High Court of Singapore stated (obiter) in Tan Meow Hiang v Ong Kay Yong that it does not have a general power to order that damages or costs be paid in instalments. It reasoned that any such power must have been impliedly restricted by legislation. So instalment orders can only be made (a) by certain subordinate courts; (b) by the General Division on appeal; (c) by the General Division at first instance in personal injury cases. In response, this note aims to advance the conversation on the law on instalment orders and what the Constitution …

Legal Hypergraphs, Corinna Coupette, Dirk Hartung, Daniel Martin Katz

Research Collection Yong Pung How School Of Law

Complexity science provides a powerful framework for understanding physical, biological and social systems, and network analysis is one of its principal tools. Since many complex systems exhibit multilateral interactions that change over time, in recent years, network scientists have become increasingly interested in modelling and measuring dynamic networks featuring higher-order relations. At the same time, while network analysis has been more widely adopted to investigate the structure and evolution of law as a complex system, the utility of dynamic higher-order networks in the legal domain has remained largely unexplored. Setting out to change this, we introduce temporal hypergraphs as a …

Executive Actions To Ensure Safe And Responsible Ocean Carbon Dioxide Removal Research In The United States, Romany M. Webb, Korey Silverman-Roati

Sabin Center for Climate Change Law

This paper presents recommended actions that federal agencies could take, under existing law, to ensure safe and responsible permitting and regulation of ocean carbon dioxide removal (CDR) research in U.S. waters. Controlled field trials and other in-ocean research is critical to improve scientific and societal understanding of ocean CDR techniques that could help the U.S. reach its climate goals. That could raise a host of legal issues, however. Existing legal frameworks were not designed to regulate ocean CDR, and federal agencies have yet to fully explain how decades-old environmental laws will be applied to a new set of activities. This …

Advisory Opinion On Climate Change: Summary Of Written Observations Submitted To The Inter-American Court Of Human Rights (Part 1), Maria Antonia Tigre

Sabin Center for Climate Change Law

On January 9, 2023, the Foreign Ministers of Chile and Colombia requested an advisory opinion from the Inter-American Court of Human Rights (IACtHR) on the scope of state obligations for responding to the climate emergency under the frame of international human rights law and, specifically, under the American Convention on Human Rights. Within this context, the IACtHR received a total of 255 amicus brief submissions.

This report includes summaries of the amicus briefs submitted to the Court. Due to the number of submissions received and the short timeframe prior to the hearings, the report is divided into parts. This first …

Racing Dobbs, Katherine M. Franke, Ria Tabacco Mar

Faculty Scholarship

In Dobbs v. Jackson Women's Health Organization, the U.S. Supreme Court reversed Roe v. Wade's limits on a state's ability to restrict, and indeed completely outlaw, abortion. The case raises fundamentally important questions about rights to reproductive autonomy, bodily integrity, sex equality, privacy, and health.

Upon closer examination, Dobbs is also about race and the nation's racial history, as the two papers published here argue. In Dreding Dobbs, Professor Katherine Franke suggests that Dobbs should be read alongside the Supreme Court's 1857 decision in Dred Scott v. Sandford, in which the Court held that Black people-even free or freed Black …

Democracy And Defections, Madhav Khosla, Milan Vaishnav

Faculty Scholarship

Within comparative constitutional law, there is an emerging consensus that political fragmentation has weakened political parties and hindered the functioning of legislative bodies. This article examines legal efforts to curb fragmentation in parliamentary systems by prohibiting floor crossing, or “defections” — a constitutional approach that concentrates power within party leaders. It conducts a detailed case study of India, exploring what is arguably the most exten¬sive experiment in anti-defection law and its impact on accountability and representation. The article goes on to analyze similar laws in Israel and South Africa, highlighting the challenges of self-regulation. After evaluating the limitations of narrow …

The Will To Chaos And Disorder: The Behemoth As A Model Of Political Economy, Bernard E. Harcourt

Faculty Scholarship

The history of political economy is tormented by beasts. The most famous is the Leviathan, the giant serpentine monster that figures in Hobbes’s masterpiece of modern political theory. Robert Fredona and Sophus Reinert spotlight another sea monster, the Kraken, that giant octopus or squid with a particular morphology (i.e., its tentacles) that so fittingly describes the grip of multinational corporations, stateless financial capital, social media, and tech giants today. But there are still other monsters in the bestiary of political economy. In this essay, I highlight the Behemoth, a land monster that captures another critical dimension of political economy: the …

Patient Access To Health Device Data: Toward A Legal Framework, Charles Duan, Christopher J. Morten

Faculty Scholarship

New health care devices, including at-home diagnostic devices, are generating and aggregating data on patients’ health at a staggering pace. Yet much of that data is inaccessible because it is held in data siloes, most often cloud services controlled by device manufacturers. This proprietary siloing of patient data is problematic from ethical, economic, scientific, and broad public policy perspectives. This chapter frames these concerns and begins to sketch a regulatory framework for patient access to health care device data. As with other consumer data, breaking down siloes and securing patients’ access to their device data safeguards patients’ ownership interests, promotes …

Urban Flooding: Legal Tools To Address A Growing Crisis, Michael B. Gerrard

Faculty Scholarship

While sea level rise has long received a great deal of attention, another impact of climate change is now getting greater notice — increases in extreme precipitation. As the atmosphere warms, it can hold more moisture; for every increase of one degree Celsius, seven percent more water vapor is carried in the air. When that moisture is quickly released as intense rainstorms, stormwater systems can be overwhelmed, and cities can suffer devastating floods.

The frequency and intensity of heavy precipitation events have increased since the 1950s over most of the world's land areas. One 2023 study — generally consistent with …

Big Property, Thomas W. Merrill

Faculty Scholarship

Yun-chien Chang’s Property Law: Comparative, Empirical, and Economic Analysis, is an impressive piece of scholarship. Ten years in the making, Yun-chien has developed the most comprehensive comparative analysis of property law ever undertaken. The effort involved was herculean. He consulted codes in eight different languages and translations into these languages of dozens of others, enlisted the assistance of a small army of research assistants, and solicited the assistance of scholars and lawyers from around the world. The result is nothing less than revelatory. Anyone interested in property law, even if only from the perspective of their own legal system, …

Proactive International Law, Michal Saliternik, Sivan Shlomo Agon

UC Law Journal

This Article challenges the centuries-old reactive and past-oriented approach of international law. It suggests that while the reactive paradigm has facilitated practical solutions to the concrete problems faced by the international community, this paradigm has also led international law to become backward-looking and short-sighted, thereby hindering the discipline from acting in anticipation of long-term problems and developments.

Against this backdrop, this Article calls for a conceptual shift. It argues that the time has come to couple international law’s traditional reactive paradigm with a more proactive, forward-looking approach that is geared toward the future, with a view to preventing risks and …

Antara Tuntutan Dan Kesepakatan: Blbi Dan Era Deferred Prosecution Agreement, Melva Retta Ruby Simanjuntak, Febby Mutiara Nelson

Jurnal Hukum & Pembangunan

This article discusses the settlement of criminal cases through Deferred Prosecution Agreement (“DPA”) procedures, particularly in the context of the Bantuan Likuiditas Bank Indonesia (“BLBI”) Case. The purpose of this discussion is to find a mechanism for settling criminal cases that aligns with principles of simple, fast, and cost-effective justice, especially in cases involving corporations. The focus of the article includes two aspects: the impact of using DPA mechanisms in resolving criminal cases and the impact of using DPA mechanisms in improving the efficiency of BLBI case resolution. The method used in this research is a …

Konstitusionalitas Open Legal Policy Mengenai Kebijakan Earmarking Pajak Karbon Di Indonesia, Mahaarum Kusuma Pertiwi, Praditya Janu Wisaksono

Jurnal Hukum & Pembangunan

The Law on Harmonization of Tax Regulation mandates government regulation to regulate the allocation of carbon tax revenue for controlling climate change. Based on Article 13 paragraph (12) and paragraph (15) letter b of the Law on Harmonization of Tax Regulation as well as the Constitutional Court's judicial review decisions regarding open legal policies and tax earmarking, this article answers questions regarding the legal construction of open legal policy options in Indonesia which confirms further delegation of carbon tax earmarking through government regulation. The government may allocate state revenue from carbon tax to control climate change. This means that carbon …

Dinamika Kebijakan Ganja Dalam Politik Hukum Global Dan Indonesia, Aristo Pangaribuan

Jurnal Hukum & Pembangunan

This article discusses legal and political issues related to marijuana in global literature and its influence in the Indonesian context. Moreover, this article also tries to predict the dynamics of the ongoing reform process related to Indonesian narcotic laws. To achieve such missions, mainly, this article summarizes the debate within marijuana literature and highlights its influence within the Indonesian context. The first part of this article discusses the legal and political dynamics of marijuana laws globally. Here, this article found that there is a paradigm shift toward marijuana use -- from a crime problem to a health problem. Subsequently, this …