Law Commons^™

“Major” Challenges For Lower Courts: Inconsistent Applications Of The Major Questions Doctrine In Lower Courts After West Virginia V. Environmental Protection Agency, Sarah A. Schmoyer

Fordham Law Review

Under the major questions doctrine, an agency requires clear congressional authorization to regulate on an issue of major national significance. Although a version of the doctrine has existed for several years, its rise in importance is recent. The U.S. Supreme Court invoked the doctrine by name for the first time in 2022 in West Virginia v. Environmental Protection Agency, warning that in certain “extraordinary cases,” the “history and the breadth” and the “economic and political significance” of the agency action may “provide a reason to hesitate” before accepting the agency’s authority. West Virginia has since inspired a wave of …

Incremental Improvement Of The Patentability Standard Of Nonobviousness, Kayla Siletti Brown

Fordham Law Review

Patents incentivize innovation, but the face of innovation has changed over the past several decades. Patent law is adapting to the radical growth of the pharmaceutical and biotechnological industries, which produce drugs and biologics respectively. Research and development in these fields is largely incremental—new products are often derived from existing products. However, patents do not protect “obvious” improvements, those that anyone skilled in the relevant scientific field could have discovered through predictable, routine work. The line between incremental R&D and routine, obvious improvements is difficult to draw. The U.S. Court of Appeals for the Federal Circuit and the Patent Trial …

Fool’S Gold: An Exploratory Analysis Into How Recent Student Successes Against The Ncaa Poses A Serious Risk To Equity In College Sports, Justin Elkin

University of Dayton Law Review

No abstract provided.

Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker

Articles

This Term, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, the Supreme Court will expressly consider whether to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.—a bedrock precedent in administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. In our contribution to this Chevron on Trial Symposium, we argue that the Court should decline this invitation because the pull of statutory stare decisis is too strong to overcome.

Barring Judicial Review, Laura E. Dolbow

Vanderbilt Law Review

Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of …

Masthead

UC Law Journal

No abstract provided.

Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski

UC Law Journal

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies. Putting the intricacies of copyright licensing aside, what motivates artists to object to the use of their songs …

Trickle-Down Compliance: How Codifying The Mandatory Presidential Audit Can Improve Tax Morale And Tax Compliance, Emma Braden

UC Law Journal

A functioning government requires tax revenue, and democratic legitimacy requires a nation’s leaders be subject to the same laws as its citizens. The president’s tax behavior is an opportunity to address both needs. With a projected increase in the tax gap, there is a need for a politically viable, cost-effective way to increase revenues. In December 2022, the House Ways and Means Committee released a report revealing that the IRS failed to perform mandatory annual audits of former President Donald Trump’s taxes. The revelation imperils public trust in tax administration, requiring a new approach to guarantee accountability for a president’s …

I Spy With My Many Eyes: The Government’S Unbridled Use Of Your Surveillance Cameras, Brian A. Weikel

UC Law Journal

Surveillance cameras are increasingly used by the public and law enforcement to prevent and prosecute criminal activity. Individuals and companies can grant law enforcement access to private cameras for both live monitoring feeds and recorded footage, thereby creating a quasi- public network of private cameras. According to the third-party doctrine, the government can access all information from these surveillance cameras without a subpoena or warrant and without infringing upon Fourth Amendment privacy protections. However, as technology advances and the prevalence of surveillance cameras rises, this per se rule fails to account for one’s reasonable expectation of privacy in the public …

Baselining Historical And Cultural Context For Law Students: Aba Standard 303(C) And New York Law School’S “Community Days: Law In Context” Programme, Anthony W. Crowell

Articles & Chapters

No abstract provided.

Usaid Response To Ostp Memo, 2022: Public Access Plan (March 2024)

Copyright, Fair Use, Scholarly Communication, etc.

USAID response to OSTP memo, 2022: Public Access Plan (March 2024)

Sabin Center For Climate Change Law Annual Report 2023, Sabin Center For Climate Change Law

Sabin Center for Climate Change Law

This year the Sabin Center for Climate Change introduces its first annual report, which highlights and synthesizes our cutting-edge research and innovative engagements in 2023.

Common But Differentiated Constitutionalisms: Does ‘Environmental Constitutionalism’ Offer Realistic Policy Options For Improving Un Environmental Law And Governance? Us And Latin American Perspectives, Erin Daly, Maria Antonia Tigre, Natalia Urzola

Sabin Center for Climate Change Law

Environmental law and governance have taken many different forms in the Americas in response to climate change mitigation. This contribution describes recent developments in the United States, Colombia, and Brazil, illustrating the divergent approaches to climate protection. The chapter highlights the common but differentiated ways in which the three countries in the Americas approach environment constitutionalism in the midst of the climate crisis. On one hand, Brazil and Colombia adopt a rights-based approach to tackle complex issues related to environmental law and governance in their context-specific responses to climate protection. In particular, the courts of Colombia and Brazil have been …

Non-Extraterritoriality, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state’s law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law …

Multiple Proceedings And Abuse Of Procedure On Bri Disputes, Mariam Gotsiridze

Research Collection Yong Pung How School Of Law

This article argues that specific mechanisms and best practices should be adopted by different players in the Belt and Road Initiative (BRI) dispute resolution ecosystem to mitigate the risks of multiple proceedings and abuse of procedure. Specifically, (i) states should enhance their multilateral and bilateral treaty practices; (ii) arbitral institutions should enhance their arbitral rules as well as cooperate with each other; and (iii) states should direct more efforts to dispute prevention and amicable dispute settlement. This article will explain what these best practices and mechanisms are.

Not Such Massively Discretionary Trusts: Proper Purposes Doctrine And Protectors As Means Of Control, Man Yip, Hang Wu Tang

Research Collection Yong Pung How School Of Law

Innovation in drafting trust deeds has been central to international trust practice resulting in the discretionary trusts being the norm in modern wealth management. In a seminal article, Lionel Smith observes that these trust drafting practices have ‘led to an increase in the dispositive discretions held by trustees’. His analysis deprecates this development where the ‘trustees’ dispositive discretions effectively govern the whole trust structure’—which he labels ‘massively discretionary trusts’. Smith goes on to detail the various legal risks entailed in massively discretionary trusts which generally arise from the fact that the explicitly identified residuary or default beneficiaries are usually not …

Constitutional, Governance Or Market Failures: China, Climate Change And Energy Transition, Henry S. Gao, Weihuan Zhou

Research Collection Yong Pung How School Of Law

Jinping announced China’s plan to further scale up its Intended Nationally Determined Contributions, aiming at achieving CO2 emissions peak before 2030 and carbon neutrality before 2060.2 A central element of the plan is reducing China’s heavy reliance on coal power. As a result, China’s use of coal already saw a steady decrease between 2013 and 2018. While coal demand increased in 2019 and 2020, new coal power plants approved in 2021 declined by approximately 58% compared to 2020.3 However, the good progress in energy transition was interrupted by the power outage sprawling over 20 provinces in China in September 2021, …

Prior Racist Acts And The Character Evidence Ban In Hate Crime Prosecutions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The killing of unarmed African-American Ahmaud Arbery and others ignited a wave of public outrage and re-focused attention on race and the criminal justice system. During the recent federal hate crimes proceedings for Arbery’s death, the prosecution introduced evidence relating to the alleged past racist acts of the defendants. This type of evidence may be seen as highly probative and desperately needed to do justice in hate crimes cases. On its face, however, such type of evidence appears to be inadmissible owing to the well-known—but little understood— evidentiary ban on character evidence prescribed in Federal Rule of Evidence 404(b) and …

Deny, Defund, And Divert: The Law And American Miseducation, Janel A. George

Georgetown Law Faculty Publications and Other Works

Racial inequality in public education is not inevitable, it is constructed. The law has been elemental in crafting racial inequality in public education. In this Article, I posit that lawmakers seeking to entrench racial inequality in and through public education do so by enacting laws designed to deny Black children access to education, defund public schools disproportionately attended by Black children, and divert many Black educators away from the public education system. This Article draws a through-line between laws enacted to prevent desegregation in the aftermath of the Brown v. Board of Education ruling—an era known as massive resistance—and recently …

Online Gaming Laws In India: An Analysis Of The Legislative Intent Vis-À-Vis The Future Roadmap, Alaukik Shrivastava, Kashish Siddiqui Khan

UNLV Gaming Law Journal

No abstract provided.

Post-Terrestrial Indian Gaming, Aryeh Price

UNLV Gaming Law Journal

U.S. Federal Indian Law is built upon presumptions that tribal sovereign power derives from land claims. But as the digital economy grows, land-based constraints on tribal authority effectively punish tribes who attempt to participate. This terrestrial notion of tribal sovereignty will also block tribes from engaging in the space economy once it matures. Land-centered sovereignty is embedded within the Indian Gaming regulatory framework. The Indian Gaming Regulatory Act’s (“IGRA”) “Indian Lands” requirement and its presumption of land-based casinos make Indian Gaming an expression of terrestrial sovereignty only. Online gambling and mobile sports wagering are not land-based and therefore are not …

The Effects Of The Hyper-Globalization Of Legalized Sports Betting On Match-Fixing And Competition Manipulation In The Olympics, Riley Helgren

UNLV Gaming Law Journal

The Supreme Court’s decision to strike down the Professional and Amateur Sports Protection Act (PASPA) in Murphy v. National Collegiate Athletic Association (NCAA) opened the floodgates for states to permit sports betting. With the expansion of online sportsbooks, individuals can place bets on virtually any sporting event from their smartphone. The legalization of online sports betting is quickly expanding worldwide and has created a multi-billion-dollar industry. The globalization of legal sports betting and lack of uniform regulations poses a threat to the Olympic Games by providing additional incentives for athletes, coaches, and officials to participate in match-fixing and competition manipulation. …

The State Where Sex Is Everywhere, Yet Is Still A Sin On The Books: Why Prostitution Should Be Decriminalized In Nevada, Madison Johnson

UNLV Gaming Law Journal

No abstract provided.

New Hurdles To Redistricting Reform: State Evasion, Moore, And Partisan Gerrymandering, Manoj Mate

Journal Articles

Proponents of fair districting reforms continue to face challenges in seeking to address the problem of partisan gerrymandering. Even in states that have successfully enacted redistricting reforms, state actors have been able to evade compliance, and state courts have been unable to guarantee fair districts. In addition, the Supreme Court’s decision in Moore v. Harper could also limit state court efforts to guarantee fair districts. This Article argues that state evasion and Moore threaten to undermine the efficacy of fair districting norms recognized by state courts or enacted through either state political processes. Moore could create a one-way ratchet by …

Four Futures Of Chevron Deference, Daniel Walters

Faculty Scholarship

In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …

Rico's Long Arm, Randy D. Gordon

Faculty Scholarship

RICO has for over 50 years presented something of a parlor game for lawyers, mostly because its text leaves wide latitude in interpretation. And, as is often the case with RICO, resolution of one question begets more. The Supreme Court’s recent decision in Yegiazaryan v. Smagin proves no exception. Here, the Court brought some clarity to a question left open by RJR Nabisco: viz, what must one plead and prove to satisfy the “domestic injury” requirement necessary to invoke an extraterritorial application of RICO. The Court held that a foreign plaintiff can indeed, given the right facts and circumstances, establish …

Pushing A Square Pin Into A Round Hole? Intellectual Property Challenges To A Sustainable And Circular Economy, And What To Do About It, Irene Calboli

Faculty Scholarship

It is old news that the world is facing growing environmental problems related to industrial manufacturing and waste management. Finally, consumers are demanding change due to the increasing threat of climate change, and industries are being forced to adapt. Repairing, reselling, upcycling, and recycling existing products are key activities to promote sustainability and a circular economy, but current intellectual property (IP) rules may stand in the way when these activities are not conducted by, or with the consent of IP owners. This opinion argues that IP cannot be used to prevent a greener and more sustainable economy. Instead, it needs …

Outcome Reasons And Process Reasons In Normative Constitutional Theory, Lawrence B. Solum

Faculty Scholarship

Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on “outcome reasons,” justifications that rely on the theorist’s beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called “canonical cases” argument, which evaluates positions in normative constitutional theory on the basis of its counterfactual implications for a handful of prior decisions of the Supreme Court. …

Harmonizing Freedom Of Speech And Free Exercise Of Religion, John Fee

William & Mary Bill of Rights Journal

[...]The close relationship between the free exercise of religion and the freedom of speech points to the sensible assumption that they should receive similar interpretation when dealing with parallel types of problems, or at least that differences in interpretation should be carefully justified.

With this premise, this Article compares freedom of speech and free exercise jurisprudence in various parallel applications, with the suggestion of harmonizing them more closely. While other commentators have compared freedom of speech and free exercise case law with a narrower focus (most commonly, focusing on the incidental burdens issue presented in [Employment Division v. Smith] …

Eavesdropping, The Fourth Amendment, And The Common Law (Of Eavesdropping), Donald A. Dripps

William & Mary Bill of Rights Journal

This Article addresses two of the most momentous and controversial issues raised by the Fourth Amendment. These issues are closely related but distinct. First, is eavesdropping a “search” subject to the Fourth Amendment? Second, are Fourth Amendment “searches” limited to the interests against physical intrusion protected by the common-law torts of trespass and false arrest?

[...]

Remarkably, the debate about the Fourth Amendment, the common law, and eavesdropping has almost completely ignored the common law of eavesdropping. This Article is the first to consider the Fourth Amendment in light of an in-depth examination of the common law’s prohibition of …