Law Commons^™

Plausible To Proper: Clarifying Federal Circuit Jurisdiction Over Walker Process Appeals, Peter James Rozewicz

American University Business Law Review

This Comment will describe what the Walker Process Doctrine is and explain the jurisdictional state of the Federal Circuit. Next, this Comment will examine the impact Gunn v. Minton has had on the scope of the Federal Circuit’s jurisdiction, the support and criticisms of Federal Circuit jurisdiction over Walker Process appeals, and how the Grable test plays into this issue. To do this, it will focus on how the jurisdictional analysis changed after Gunn and will discuss where each court’s argument for and against jurisdiction has merit and where it falters. To advance a solution, this Comment will recommend a …

Melodies Manipulated: Intellectual Property & The Music Industry, Fordham Iplj

Fordham Intellectual Property, Media and Entertainment Law Journal

Marilyn Mosby, Founder and Managing Partner of Mahogany Elite Consulting, opened the IPLJ Symposium with her Keynote Address which focused on the cultural, political, and social context surrounding the use of rap lyrics as evidence in criminal prosecutions.

The opening panel, “Do You Get Déjà Vu?,” comprised of Gary Adelman, Partner, Adelman Matz PC; Linna Chen, Senior Legal Counsel, Litigation & Copyright, Spotify; and Ilene Farkas, Partner, Pryor Cashman, and was moderated by Sarah Matz, Partner, Adelman Matz PC, and Adjunct Professor at Fordham University School of Law. The panel discussed recent copyright cases, specifically Williams v. Gaye …

Out-Of-State Abortion On Company Dime: An Analysis Of State Legislation And Erisa, Erin Elizabeth Hanlon

American University Business Law Review

This Note analyzes the various types of state abortion bans, focusing on those with aiding and abetting clauses. These bans impose civil liability for anyone, including companies providing abortion access benefits, who help a pregnant person gain access to abortion. Additionally, this Note analyzes federal legislation to determine if any retaliatory actions taken against companies violate federal law. This legislation includes the Employee Retirement Income Security Act (“ERISA”) which creates uniformity in insurance and benefits coverage by superseding any state law that references or relates to an ERISA plan. Many advocates believe that ERISA is a company’s greatest defense to …

The Validity Of Trade Restrictions On Artificial Intelligence Technology Under The General Agreement On Tariffs And Trade's National Security Exception, Isabelle Brundieck

American University International Law Review

This Comment argues that the U.S. restrictions on the export of semiconductors and other AI technology to China do not violate the General Agreement on Tariffs and Trade 1994 (GATT 1994). Instead, such measures are legitimate expressions under GATT 1994’s Article XXI national security exception, which allows a country to break other articles within the agreement if necessary to protect the country’s essential national security interests. Given the national security risks associated with the rise of AI technology and the likelihood that such technology will be supplied to a military enterprise, the current trade restrictions qualify for the exception. However, …

Defining "Use In Commerce": The Supreme Court's Evolving Extraterritorial Application Of The Lanham Act, Hannah Lief

American University Business Law Review

On June 29, 2023, the Supreme Court redefined the scope of the extraterritorial impact of the Trademark Act of 1946, also known as the Lanham Act (the “Act”). Overturning the ruling by the Tenth Circuit, the Court narrowed the focus of the Act to solely domestic uses in commerce. While the Court acknowledged that it had interpreted the statute in a manner that granted Congress expansive power over foreign conduct, it stated that the broad language of the Lanham Act does not indicate international application. By instituting newfound principles on congressional authority under the Lanham Act, U.S. trademark registrants can …

Neglected Riches: Exposing China’S Selective Default On The Hukuang Railway Bonds And The Avenue For Financial Accountability Under The Successor Government Doctrine, William Krag

American University International Law Review

The People’s Republic of China (“P.R.C.”) is in selective default for refusing to pay back private investors from the Hukuang Railway Bond default of 1911. The P.R.C. is the successor government to the Republic of China (“R.O.C.”) and Qing Dynasty. This Comment argues that though it is the successor government, the P.R.C. retains the legal rights and obligations of the former government and is the legal inheritor of these debts. This Comment takes this syllogism one step further and argues that the successor government doctrine is customary international law—applying the lessons from the Russian bond default of 1918. Finally, this …

Addressing Base Erosion: Impact Of The No Tax Breaks For Outsourcing Act On Tax Inversions And Profit Shifting, T. Scott Shogren

American University Business Law Review

The modern landscape of international taxation presents complex challenges arising from cross-border transactions and diverse tax regimes. This Comment delves into the intricate world of tax inversions, a process whereby U.S. firms shift their corporate headquarters abroad, thereby exploiting different tax jurisdictions. The implications of tax inversions are significant, and some scholars estimate there are substantial global tax revenue losses.

This Comment examines the mechanics of tax inversions, analyzing the tools employed by multinational corporations to reduce their tax liabilities, such as debt concentration and earnings stripping. This Comment also explores legislative responses, including the No Tax Breaks for Outsourcing …

A Little Less Conversation, A Little More Action: How American Unwillingness To Escalate Emboldens Mexico’S Populist Ambitions, David Montero

American University International Law Review

Part II of this Comment will explain the history of Mexico’s relationship with trade, as well as the finer details of the dispute resolution provisions of the USMCA that are of note. Part III will analyze two key violations of the USMCA by AMLO’s administration, contrasting the American response between the two and demonstrating the cycle of violations that has largely been created as a result of the failure to act. Part IV provides a simple recommendation to the U.S. administration for how to effectively halt its southern neighbor’s decline into unfettered populism that harms U.S. trade interests: employ the …

Amnesty Laws In Modern Peace Agreements: An Analysis Of The Northern Ireland Legacy Act Under International Law, Mckenzie Gallagher

American University International Law Review

In September 2023, the United Kingdom passed the Northern Ireland Troubles (Legacy and Reconciliation) Act (“Legacy Act”), which grants amnesty to anyone who discloses information regarding murders, disappearances, or other unsolved crimes during the period known as “The Troubles” in Northern Ireland. The Legacy Act’s amnesty provision is expected to hinder the peace process in Northern Ireland and in turn, avert accountability for serious international crimes. This Comment considers to what extent the Legacy Act’s amnesty provision violates the Good Friday Agreement, the peace accord ending decades of conflict in Northern Ireland, the European Convention on Human Rights, the United …

“Show Me The Money”: The Sec’S Use Of Distribution As A Tool For Investor Protection, Coleman Gilkey Newton

American University Business Law Review

In Section II, this Comment will present a background on the relevant law of securities regulations by focusing on the SEC’s enforcement remedies, through various statutes, cases, and regulations. Section II further discusses the disgorgement and fair funds provisions that are crucial to the Commission’s distribution practices. Then, Section III shows how this background impacts SEC operations and presents a framework for the relationship between disgorgement and distribution. Finally, Section IV offers recommendations that would allow the SEC to continue to utilize disgorgement to ensure maximum distribution for harmed investors.

Restorative Justice As A Democratic Practice, Daniel S. Mcconkie Jr.

Loyola University Chicago Law Journal

Our criminal justice system, to be truly democratic, should be more responsive to those most affected by it, and this calls for significant participation from citizens. Unfortunately, the state-centered, professionalized criminal justice system marginalizes citizens at every stage, depriving them of a voice and power. Instead, the system should embody and encourage criminal justice citizenship, which refers to the rights and privileges of ordinary people to participate directly in certain aspects of the criminal justice system and to deliberate in some of its workings. Such citizenship is indispensable to democracy, or rule by the people.

Restorative justice, especially where it …

From 1965 To 2023: How Allen V. Milligan Upheld The Voting Rights Act But Failed To Adapt To The Age Of Computers, Rachel E. Dudley

Loyola University Chicago Law Journal

In 1982, Congress amended Section 2 of the Voting Rights Act of 1965 to outlaw voting practices that deprive or abridge minorities’ voting rights on account of race. This amendment outlaws both intentional discrimination and disparate impacts. For the past thirty years, private citizens have used Section 2 to challenge redistricting maps that dilute minority voters’ voices.

In Allen v. Milligan, the Supreme Court protected Section 2 when it held that Alabama’s redistricting map diluted minority voters’ right to vote. The Court rejected Alabama’s proposal for a new test to compare states’ maps to computer-generated redistricting maps that did …

Introduction, Jake Gnolfo

Loyola University Chicago Law Journal

No abstract provided.

Usurping Authority: Illinois Sheriffs Declare Law Unconstitutional, Jason M. Cieslik

Loyola University Chicago Law Journal

In January of 2023, Illinois signed the Protect Illinois Communities Act into law. The law’s passage caused concern for those who were strong proponents of the Second Amendment. The law prohibited the possession, ownership, distribution, and sale of assault weapons. As a result, approximately ninety Illinois county sheriffs issued statements opposing the law as an infringement of one’s right to bear arms. Furthermore, many of the county sheriffs stated that they would not enforce the law because it was unconstitutional. In most states, the office of county sheriff is created through the state constitution. A county sheriff’s duties, including enforcement …

’It Is Time To End This Madness’: Why The Protect Illinois Communities Act Is Constitutional Under The Second Amendment, Kellie Kleitsch

Loyola University Chicago Law Journal

The United States is plagued by an epidemic of gun violence. In particular, mass public shootings, perpetrated by gunmen armed with assault weapons, have risen exponentially since the Supreme Court found that the Second Amendment protected an individual’s right to bear arms in 2008 and 2010. In an attempt to stem the rising tide of bloodshed, states have passed legislation banning assault weapons within their borders. After a horrific shooting at a local Fourth of July parade in 2022, Illinois became the ninth state to enact a such a ban. However, this ban immediately faced challenges under New York State …

Spring-Cleaning The American Legal Pantheon? Reputations Rivalled: Justices Harlan The First And Holmes & Justices Frankfurter And Harland The Second, Gerard Hogan

Loyola University Chicago Law Journal

In the general common law world, few things are more contestable than what constitutes judicial greatness. Is it the capacity to anticipate developments in the law or to champion new ideas that, in time, will become accepted? Or is it the elegance of judicial style? Or is it a combination of some or all of these things? These are the subjects of endless jurisprudential debates. Yet no matter where you stand in this debate, one thing is clear: the U.S. Supreme Court has been fortunate in having had among its ranks some of the greatest judges which the common law …

The Conflict Of Laws In The South China Sea And Its Threats To The Indo-Pacific Rules-Based Order, Rex Lien Doan

Loyola University Chicago Law Journal

History has warned the world of the grave consequences of territorial disputes between neighboring states. The turn of the early 2020s has been no different. As the war between Ukraine and Russia persists, the South China Sea territorial and maritime conflict is gradually reemerging after a lull. Despite an international arbitral tribunal ruling against China in 2016 (the Award), the situation in the South China Sea remains in a gridlock years later. Minimal progress has been made toward a lasting, peaceful resolution or a stable, rules-based regional order. The realization of any joint security agreement remains elusive, especially as China, …

“Commanding The Price Of Labor”: Confronting The Human Cost Of Labor Monopsony, Alvaro M. Bedoya, Catherine M. Sanchez

Loyola University Chicago Law Journal

Since 1890, the architects of American antitrust law made clear that they aimed to protect labor market competition against the abuses of concentrated capital. Yet antitrust enforcers have only recently begun to challenge mergers based on their impact on labor markets, and only last year issued formal guidelines to publicize how law enforcement should analyze the labor market effects of such combinations. Comparing the conditions of modern-day meatpacking workers to those of the early twentieth century Beef Trust, the authors underscore the human cost of labor monopsony, and stress the importance of challenging mergers that allow corporations to "command the …

The Fallacies Behind The Excise Tax: On “Excessive” Charity Compensation, Elaine Waterhouse Wilson

Loyola University Chicago Law Journal

This Article examines the fundamental flaws in Section 4960 of the Internal Revenue Code, which imposes an excise tax on nonprofit executive compensation exceeding $1 million. The provision, enacted as part of the 2017 Tax Cuts and Jobs Act, rests on three problematic fallacies. First, Congress incorrectly assumed that an excise tax on nonprofits would function equivalently to the elimination of a tax deduction for excessive compensation in the for-profit sector under Section 162(m). Second, lawmakers failed to recognize that nonprofits respond differently to tax incentives than for-profit entities due to their distinct governance structures and sensitivity to public opinion …

After Beaver: Reviving A Unified Test For Section 24 Charter Exclusion, Chris Rudnicki

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Exclusion under section 24(2) of the Charter is an important part of every criminal judge’s remedial toolkit. But in Beaver, the Supreme Court significantly constrained access to section 24(2) by endorsing the “fresh start” doctrine. Evidence will not be “obtained in a manner” that infringed the Charter — and thus will be put beyond the remedial reach of section 24(2) — where police conduct following a breach “severs” its temporal, contextual or causal connection to the evidence sought to be excluded. In my view, this doctrine will deprive worthy claimants of proportionate remedies. In this paper, I explore whether claimants …

Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass

Articles

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals …

The Original Presidency: A Conception Of Administrative Control, Ilan Wurman

Articles

The two predominant conceptions of executive power and supervision over the administrative state are inadequate. One maintains that all administrative discretion is the President’s, and that by virtue of the grant of executive power the President can both remove and control the discretion of all subordinate offcers. That poses a possible textual problem: it seems to make the Opinions Clause superfuous. The other conception maintains that the President is, at best, a “persuader-in-chief,” with no constitutional right to control administrative discretion or to remove offcers tasked with implementing statutory duties. Although this view makes sense of the Opinions Clause, there …

Publisher

FIU Law Review

No abstract provided.

The Right To Fail, Alexander Boni-Saenz

Articles

In 2013, the Department of Justice entered into a consent decree with the state of New York concerning the lives of 4,000 people with mental illness who had been segregated into group homes in the state. These group homes were overcrowded and dangerous, and New York agreed to move all but the most severely mentally ill people into supportive housing, if they desired it. This outcome was seen as vindicating the dignity of risk, a foundational value of disability rights scholarship and politics. This principle holds that it is normatively desirable for individuals to be able to make their own …

Scotus House: Can A Supreme Court Ethics Lawyer And Inspector General Help Get This Fraternity Under Control?, Richard Painter

Articles

Today, the United States Supreme Court is immersed in an ethics crisis of unprecedented proportions. Public confidence in the Court is at an all-time low and Congress is considering action. The Court is less likely to police itself than it was over fifty years ago when Justice Abraham Fortas resigned over a scandal that was probably less serious than that facing at least one justice today. This article discusses the Court’s recent scandals and explains multiple factors that make the Court prone to ethics lapses, perhaps more so than the other two branches of government. This Article then proposes that …

Stakeholder Engagement, Brett H. Mcdonnell

Articles

No abstract provided.

Chevron On The Eve Of Loper Bright, Nicholas Bednar

Articles

Chevron is dead. What does this mean for judicial review of agency interpretations of statutes in the lower courts? Perhaps not much. Using new data of circuit court decisions from 2012 and 2022, this Essay examines how lower courts changed their decision-making as the Supreme Court became more skeptical of Chevron deference. This Essay finds that---contrary to the assertion of some justices---circuit courts had not stopped applying Chevron in the lead up to Loper Bright. Moreover, courts agreed with agency interpretations of statutes at similar rates in both 2012 and 2022. Nevertheless, the data shows that the Supreme Court's …

The Seven Essential Law School Simulation Courses, Mitch Zamoff

Articles

As we mark the ten-year anniversary of the American Bar Association’s six-credit experiential learning requirement and the launch of the NextGen bar exam, it is critical for U.S. law schools to conduct rigorous assessments of their experiential education curricula. While most law schools now offer students meaningful opportunities to develop lawyering skills in clinics and field placements, there is much less consistency in their simulation course offerings. Simulation courses are a critical component of experiential legal education. While students in clinics and field placements gain valuable, realistic experience addressing the issues presented by their actual clients, those issues may sometimes …

Why Mass Incarceration Is Uniquely American, Michael Tonry

Articles

Mass incarceration, among Western countries a uniquely American phenomenon, resulted from a transformation of American criminal justice systems. Indeterminate sentencing systems in which legislatures established maximum sentences, prosecutors processed cases, judges decided who went to prison, and parole boards decided how long people stayed there were replaced by determinate systems in which legislatures prescribed minimum sentences, prosecutors made the key charging and sentencing decisions, judges processed cases and sentenced minor crimes, and parole boards lost much of their authority. Parole boards and judges become largely irrelevant whenever prosecutors file charges subject to mandatory sentence, three-strikes, truth-in-sentencing, and life without parole …

Derivatives Markets Fragilities And The Energy Transition, James W. Coleman, Colleen Baker

Articles

It is common knowledge that climate change concerns have prompted countries around the world to plan for a reduction in their fossil fuel dependencies. Yet while much attention has been placed on new low-carbon sources of energy such as wind, solar, and nuclear, comparatively little focus has centered on the commodity inputs, critical metals, needed to create this clean energy. In this article, we argue that at the heart of the energy transition is a commodities transition representing an unprecedented international reliance on critical metals, traditionally capricious commodities traded in global markets. Indeed, nations around the world have begun to …