Law Commons^™

Board Of Officers - Vol. 54, No. 3 2024

Seton Hall Law Review

No abstract provided.

Ndls Communicator: Week Of 01.22.24, Notre Dame Law School

NDLS Communicator

The Latest News

• U.S. Supreme Court Justice Amy Coney Barrett and Israel Supreme Court Justice Alex Stein to speak at Notre Dame Law School
• Professor Carter Snead featured speaker at the most important Science, Technology, and Innovation Conference in Latin America
• Derek Muller has published a new paper, "Ideological Leanings in Likely Pro Bono Biglaw Amicus Briefs in the United States Supreme Court" in the Harvard Journal of Law and Public Policy.
• Rick Garnett filed an amicus brief in the 9th Circuit for Bates v. Pakseresht. The brief argues that Oregon DHS violated the plaintiff's First Amendment rights by denying …

Technology In Real Practice Systems, John Lande

Faculty Blogs

This post uses the RPS mediation checklists to illustrate practitioners’ great reliance on technology.

The Second Founding And Self-Incrimination, William M. Carter Jr.

Northwestern University Law Review

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment’s Self-Incrimination and Due Process Clauses. Although the Supreme Court’s self-incrimination cases have examined the privilege’s historical roots in British and early American common law, the Court’s jurisprudence has overlooked an important source of historical evidence: the …

The Unwritten Norms Of Civil Procedure, Diego A. Zambrano

Northwestern University Law Review

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and …

Law School News: From The Community, For The Community 1/21/24, Suzi Morales, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Hung Out To Try: A Rule 29 Revision To Stop Hung Jury Retrials, Elijah N. Gelman

Northwestern University Law Review

How many times can a defendant be retried? For those facing hung jury retrials, it’s as many times as the government pleases. Double jeopardy prohibitions do not apply when juries fail to reach a verdict.

There is, theoretically, a built-in procedural solution to stop the government from endlessly retrying defendants. Rule 29 of the Federal Rules of Criminal Procedure allows judges to acquit defendants when “the evidence is insufficient to sustain a conviction.” Considering that a hung jury indicates the jurors could not agree on the sufficiency of the evidence, defendants facing hung jury retrials are prime candidates for this …

Sentence Served And No Place To Go: An Eighth Amendment Analysis Of "Dead Time" Incarceration, Christopher B. Scheren

Northwestern University Law Review

Although the state typically releases incarcerated people to reintegrate into society after completing their terms, indigent people convicted of sex offenses in Illinois and New York have been forced to remain behind bars for months, or even years, past their scheduled release dates. A wide range of residency restrictions limit the ability of people convicted of sex offenses to live near schools and other public areas. Few addresses are available for them, especially in high-density cities such as Chicago or New York City, where schools and other public locations are especially difficult to avoid. At the intersection of sex offenses …

Data Is What Data Does: Regulating Based On Harm And Risk Instead Of Sensitive Data, Daniel J. Solove

Northwestern University Law Review

Heightened protection for sensitive data is becoming quite trendy in privacy laws around the world. Originating in European Union (EU) data protection law and included in the EU’s General Data Protection Regulation, sensitive data singles out certain categories of personal data for extra protection. Commonly recognized special categories of sensitive data include racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sexual orientation and sex life, and biometric and genetic data.

Although heightened protection for sensitive data appropriately recognizes that not all situations involving personal data should be protected uniformly, the sensitive data approach is …

Constitutional Clash: Labor, Capital, And Democracy, Kate Andrias

Northwestern University Law Review

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts—“labor’s” efforts for short—seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would also support the Constitution’s …

Table Of Contents & Masthead, Sophie Nelson

Pepperdine Law Review

No abstract provided.

The Angel Wears Prada, The Devil Buys It On The Realreal: Expanding Trademark Rights Beyond The First Sale Doctrine, Junajoy Vinoya Frianeza

Pepperdine Law Review

Luxury brands derive their goodwill from the high-class exclusivity and first-rate quality signified in their trademarks. The Trademark Act of 1946, commonly known as the Lanham Act, grants trademark holders the right to control use of their mark. However, under common law, the first sale doctrine restricts trademark protection after holders authorize the initial sale of their trademarked product. Such limitation particularly jeopardizes the luxury industry as trademark holders ultimately bear the loss of goodwill when counterfeit luxury goods enter the market due to the negligence of resellers. This Comment illustrates how blockchain authentication offers all luxury industry participants—the brands, …

Give Or Take—Is The Droit De Suite A Taking Without Just Compensation?, Jeremy Cohen

Pepperdine Law Review

The Constitution mandates Congress to protect the arts and sciences directly by creating an exclusive right called copyright. However, visual artists such as painters, sculptors, and photographers in the United States still cannot participate in the significant profits from the secondary sales of their copyrighted works at public and private auctions. In over eighty countries worldwide, the droit de suite, also known as the Artist Resale Royalty (ARR), grants visual artists such royalties. Unfortunately, the United States currently lacks such a royalty, despite multiple unsuccessful attempts by Congress to pass federal legislation. Although California enacted its own version of the …

A Haven For Traffickers: How The United States Provides A Legal Safe Haven For Businesses That Rely On Forced Labor In The International Supply Chain, Ramona Lampley

Pepperdine Law Review

Congress enacted the Trafficking Victims Protection Act (“TVPRA” or “Act”) in 2000, which, through its amendments, gives victims of human trafficking, including forced labor or slave labor, a private right of action against those who knowingly benefit from the abusive labor practices perpetrated on them. Even though slave labor, particularly child labor, is a perceived evil in the foreign supply chains of many domestic companies, courts appear uncomfortable with the some of the civil liability provisions of the TVPRA. This Article examines recent cases brought under the TVPRA, and how, in some cases, courts have eviscerated the private right of …

Judicial Fidelity, Caprice L. Roberts

Pepperdine Law Review

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …

Respect My Authority: The Past, Present, And Future Of The Public Authority, Tom J. Letourneau

Ocean and Coastal Law Journal

This comment synthesizes various historical aspects of motor vehicle infrastructure in the United States. The network of issues at play involves centuries of public policy decisions made at the local, state, and federal level, which twentieth century legal innovations hastened and curdled into the car culture we are all a part of today. The public authority is the paradigm of these legal innovations, but it has outlived its usefulness in the face climate change and burgeoning issues relating to urbanism.

Windward Woes: The Misalignment Of Economic Incentives And Renewable Energy Development Goals, Matthew S. Edwards

Ocean and Coastal Law Journal

Energy tax credits have always been a significant driver of renewable energy development, but the recent Inflation Reduction Act in response to new national development goals represents the most significant change in several decades. The Inflation Reduction Act is certainly a step in the right direction, but there are numerous factors that limit the impact on future developments that should be remedied to allow for the nation’s best chance to reach 2030 renewable energy goals.

30 Years Removed, Oil-Spill Liability Insurance's Evolution Since The 1989 Exxon Valdez Incident, Rejo Mathew

Ocean and Coastal Law Journal

In the thirty years since the Exxon Valdez incident, much has changed. This article looks back at the events of the accident and the subsequent changes to the marine pollution insurance industry, from the statutes regulating oil tankers in 1989 to the Oil Pollution Act of the 1990. The regulatory framework resulting from the Exxon Valdez is examined and compared to the litigation deriving from the spill.

It's A Soft Shell Life For Me: The Case For Expanding Npdes Permitting To Include Causes Of Ocean Acidification, Natalie L. Nowatzke

Ocean and Coastal Law Journal

Ocean acidification, a lesser-known counterpart to climate change, is primarily caused by the ocean’s absorption of carbon dioxide from the atmosphere. This absorption, in turn, reduces the ocean’s pH, and has detrimental effects on the health of the entire ecosystem. This Comment examines the applicability of the “functional equivalent test,” coined by the Supreme Court in County of Maui v. Hawaii Wildlife Fund, to the causes of ocean acidification. Using this test, this Comment proposes expanding NPDES permitting under the Clean Water Act to cover some landbased sources emitting carbon dioxide.

Fishing Communities And Public Participation In Federal Decisionmaking: A Case Study Of Community Opposition To The Mid-Barataria Sediment Diversion Project, Stephanie Showalter Otts

Ocean and Coastal Law Journal

In debates surrounding coastal restoration projects, the word “community” is heard frequently. Coastal restoration projects have the potential to affect a wide range of communities, both those which are place-based as well as communities of practice that are not geographically bound. However, the lack of a single, accepted definition of community can lead to faulty assumptions about who is being represented in policy debates which can undermine efforts to build consensus and support for coastal restoration efforts. This Article presents a case study of community conflicts and public participation surrounding a large, controversial coastal restoration project in Louisiana—the Mid-Barataria Sediment …

Editorial Board Vol. 29, No. 1 (2024), Alicia M. Rea Editor-In-Chief

Ocean and Coastal Law Journal

No abstract provided.

When Fines Don't Go Far Enough: The Failure Of Prison Settlements And Proposals For More Effective Enforcement Methods, Tori Collins

Maine Law Review

The Eighth Amendment’s Punishments Clause provides the basis on which prisoners may bring suit alleging unconstitutional conditions of confinement. Only a small number of these suits are successful. The suits that do survive typically end in a settlement in which prison authorities agree to address the unconstitutional conditions. However, settlements such as these are easily flouted for two primary reasons: prison authorities are not personally held liable when settlements are broken, and prisoners largely lack the political and practical leverage to self-advocate beyond the courtroom. Because of this, unconstitutional prison conditions may linger for years after prison authorities have agreed …

Getting The Green Light: Renewable Energy As An Internal Tribal Matter, J. Shinay

Maine Law Review

For over forty years the Wabanaki people of Maine have had their sovereignty diminished as a result of the Maine Indian Claims Settlement Act (MICSA), an arrangement with the state and federal government unlike any other tribal sovereignty arrangement in the Unites States. The MICSA was born from a decades-long debate over land rights and resource rights in Maine, culminating in a “compromise” that avoided political conflict at the expense of Wabanaki sovereignty. Under the MICSA, the Wabanaki do not have sovereign status, instead only holding sovereign control over those matters the state deems “internal tribal matters.” Among the many …

The Case For Second Chances: A Pathway To Decarceration In Maine, Catherine Besteman, Leo Hylton

Maine Law Review

The Article argues that Maine incarcerates too many people, for too long, for too many things, at too great of an expense. We offer evidence to support this claim, briefly review some of the criminal legal legislation that shaped our present reality, and show how recent efforts at reform have been, at best, only modestly successful. In concert with a growing number of expert voices across the country calling for strategies of decarceration, our goal is to demonstrate the need for second chance legislation in Maine in the form of the reinstatement of parole, an effective clemency process, a far-reaching …

The New People V. Collins: How Can Probabilistic Evidence Be Properly Admitted?, David Crump

Maine Law Review

The California Supreme Court’s decision in People v. Collins is a staple in Evidence casebooks. An innovative assistant district attorney in the trial court had presented a mathematician who applied probabilities to questions about the perpetrators’ characteristics. The state supreme court disapproved the injection of an equation featuring what mathematicians call the “product rule.” The opinion contains thank-goodness-we-escaped-that-disaster reasoning and condemnation of this use of mathematics with probabilities. But the court’s analysis probably would be different if the case were decided today, as the “new” People v. Collins. Therefore, this Article considers what the author calls the new People v. …

Power V. Power: Federal Pattern-Or-Practice Enforcement Actions Applied To Local Prosecutors, Thomas P. Hogan

Maine Law Review

One of the most powerful tools available to the United States Department of Justice (DOJ) to stop abuses in the criminal justice system is the federal pattern-or-practice statute, which allows DOJ to bring an enforcement action to prevent discriminatory conduct by government agencies. The most powerful actor in the criminal justice system is the district attorney, the local prosecutor who is at the center of the system. Does DOJ’s pattern-or-practice enforcement authority extend to local prosecutors? This crucial question remains unresolved in formal precedent and has not been addressed in the relevant literature. This Article explores the issue in detail, …

Editorial Board Vol. 76 No. 1 (2024), Lisa A. Prosienski Editor-In-Chief

Maine Law Review

No abstract provided.

Meanings, Speech Acts, And Legal Contents Produced By Plural Lawmaking Bodies, Scott Soames

The Journal of Contemporary Legal Issues

Language is both our most powerful cognitive tool and our most basic social institution, without which neither law, government, nor science would be possible. Because it is so central to nearly everything we do, its familiarity tempts us to overestimate how much we understand about the way it functions in different domains. My task is to illuminate (i) how to extract legal content from linguistic acts of lawmakers in the United States, and (ii) how this linguistically expressed content is sometimes modified by legal interpretation, when law is applied to particular cases. Although (i-ii) are grounded in facts about ordinary …

Nature, Tradition, And Virtue: Restoring The Conservative Good Life, Bruce P. Frohnen

The Journal of Contemporary Legal Issues

Conservatism, always a contested term, has become the subject of major confusion in the post-Cold War era. As it emerged after the Second World War in the writings of Russell Kirk and the pages of William F. Buckley’s National Review, the conservative movement already was more coalition than single program or philosophy. The notion of conservative “fusionism” was a convenient but superficial means of holding together libertarians, politically under-defined anti-communists, and traditional conservatives in pursuit of their common public policy goals. As the Cold War wound down and the Republican Party devolved into neoliberal globalism, the movement dissolved into mutually …

Return To Deliberation, Richard M. Reinsch Ii

The Journal of Contemporary Legal Issues

American conservatism finds itself facing an array of difficult if not intractable challenges and problems. Progressive elements dictate revolutionary claims about gender, race, economics, policing, alongside their dismissal of American history as just racism, sexism, and homophobia. Moreover, progressives sit atop the commanding heights of culture, education, social media, influential corporations, and the federal bureaucracy. Conservatives still win elections about half the time, but face incredible problems in governing because of this political, cultural, and educational imbalance of power.