Law Commons^™

The Future Of Property, Yael R. Lifshitz, Maytal Gilboa, Yotam Kaplan

Cardozo Law Review

Property law focuses predominantly on spatial conflicts of interest between neighbors but neglects temporal conflicts between generations. This lack of attention to the temporal dimension leads to a troubling mismatch in property law: while property rights last forever, the corresponding duties that require property holders to respect the interests of others are remarkably short lived. The result is that property law currently does not adequately protect the rights of future generations. In this Article, we offer a blueprint for correcting this anomaly. We advocate a change in the current conception of property and propose that property law focus more on …

Legalized Sports Wagering In America, John T. Holden, Marc Edelman, Keith Miller

Cardozo Law Review

For twenty-five years, state legislative efforts to legalize, tax, and regulate sports wagering were forestalled by a federal law that disallowed new states from legalizing sports wagering. This freeze on new state-sponsored sports wagering ended abruptly on May 14, 2018, when the U.S. Supreme Court ruled in Murphy v. National Collegiate Athletic Ass'n that the Professional and Amateur Sports Protection Act violated the U.S. Constitution by impermissibly commandeering the states.

Since the U.S. Supreme Court's ruling in Murphy, there has been a rapid proliferation of legalized and regulated sports wagering throughout much of the United States. At present, thirty-five states …

How Private Enforcement Exacerbates Climate Change, Anna A. Mance

Cardozo Law Review

Private enforcement-the practice of allowing private actors to directly enforce statutes or regulations-has been a fixture of environmental law for the last fifty years. In the absence of comprehensive climate legislation, climate change has been brought under the fold of the environmental regime and its emphasis on private enforcement. Yet climate change presents a distinct global challenge from those harms that the 1970s environmental regime was designed to address. This Article investigates how private enforcement is limiting our ability to respond to the crisis of climate change. The central claim is that private enforcers are using the mantle of environmental …

Debtor Embezzlement Of Collateral, Jonathon S. Byington

Faculty Law Review Articles

This Article is about collateral and the “embezzlement” exception to
/="/">discharge under § 523(a)(4) of the Bankruptcy Code. Under the Uniform
/="/">Commercial Code, collateral is property subject to a security interest. The
/="/">“embezzlement” exception to discharge requires a debtor fraudulently
/="/">appropriate entrusted property. A debtor fraudulently appropriates a
/="/">security interest when the debtor, in conjunction with circumstances
/="/">indicating fraud, transfers collateral or proceeds of collateral to a transferee
/="/">who takes free of the security interest. A secured party “entrusts” its
/="/">security interest to a debtor in situations where a debtor has power …

اﻟﺘﻌﻮﯾﺾ ﻋﻦ ﺗﻔﺎﻗﻢ اﻟﻀﺮر اﻟﺠﺴﺪي ﺑﻌﺪ ﺻﺪور اﻟﺤﻜﻢ اﻟﻨﮭﺎﺋﻲ (ﻓﻲ ﺿﻮء ﻗﺎﻧﻮن اﻟﻤﻌﺎﻣﻼت اﻟﻤﺪﻧﯿﺔ اﻻﺗﺤﺎدي رﻗﻢ 5 ﻟﺴﻨﺔ 1985 وﺗﻌﺪﯾﻼته), منى محمد البلوشي

Theses

Bodily harm is considered one of the most complex types of damages to estimate compensation for, as it affects the life, work, and livelihood of the injured person. Especially since the physical injury that remains from the harmful act may exacerbate in the future after the issuance of the final judgment in a manner that may not be foreseen by the judge or medical experience, whether in terms of the exacerbation of the harm itself and its constituent elements or in terms of the exacerbation of the harm's value due to currency fluctuations.

This study demonstrates the jurisprudential differences regarding …

أثر جائحة كورونا (كوفيد 19) على تنفيذ العقود الإدارية, عبدالله عبدالحكيم بني مخزوم

Theses

The study raised the problems of the extent to which the Corona pandemic is considered a force majeure or an exceptional circumstance, as each adaptation has legal effects arising from it. Therefore, it was necessary to search the extent to which force majeure conditions or emergency circumstances apply to the Corona pandemic (Covid 19) and its effects. The researcher concluded that it is not generally possible to assert that the Corona pandemic is an emergency circumstance or force majeure. Rather, it is necessary to search the impact of the Corona pandemic on the administrative contract, and then the adaptation is …

مشروعية الأنشطة العسكرية في المنطقة الإقتصادية الخالصة (دولة الإمارات العربية المتحدة نموذجاً تطبيقيا), عمار يوسف النقبي

Theses

One of the innovations in the United Nations Convention on the Law of the Sea for the year 1982 is the system of the exclusive economic zone, where it was discussed for the first time in this agreement. The exclusive economic zone is defined as an area located deep in the sea and adjacent to the contiguous zone and the territorial sea and extends beyond that for a distance of 200 nautical miles. However, the legal system in the exclusive economic zone raises many problems that were excluded from the negotiations of the United Nations Convention on the Law of …

المسؤولیة التضامنیة لأعضاء مجلس الإدارة في شركة المساھمة العامة وفقا للمرسوم بقانون اتحادي رقم (32) لسنة 2021 بشأن الشركات التجاریة, نورة جمعة الشامسي

Theses

This study aims to identify the joint liability of the members of the board of directors in public joint stock company. The descriptive and analytical approach was adopted to identify the joint responsibility of the members of the Board of Directors in a joint stock company the analyses of the provisions related thereto in Federal Law by Decree No. (32) of 2021 regarding commercial companies in order to structure the limits of such responsibility.

This study has reached a number of results, the main result stipulates the general rule of the responsibility of the members of the board of directors …

'99-To-1’ Property Deals: Stamp Duty Avoidance Or Honest Mistake, Vincent Ooi

Research Collection Yong Pung How School Of Law

This article explains in detail the legal issues surrounding the recent ABSD audit and how exactly the general anti-avoidance rule and the stamp duty avoidance surcharge in the Stamp Duties Act 1929 can be invoked by the IRAS.The article highlights the fact that it may not be enough for a property buyer to show that the '99-to-1' holding was intended to enable the buyer to qualify for a home loan and not 'for stamp duty avoidance'. The property buyer must be able to answer the additional question of why the transfer of the property is 'staggered' in two stages and …

Interconnectedness And Financial Stability In The Era Of Artificial Intelligence, Nydia Remolina Leon

Research Collection Yong Pung How School Of Law

This chapter explains AI use cases may amplify some threats to the stability of the financial system. It argues that lack of a consistent approach to AI Governance by financial regulators and limited oversight on some AI models in terms of systemic risks need to be addressed to preserve the stability of the financial system. To illustrate the problem and propose specific policy recommendations, the chapter first explains how the widespread use AI in finance impacts systemic risk in the financial sector. Then, it explains why trustworthiness of AI encompasses not only the typical ethical principles about transparency, explainability, fairness, …

Aesthetics Of Slavery & Slave Trade Crimes, Jocelyn Getgen Kestenbaum

Articles

In his insightful new book, Invisible Atrocities, Randle DeFalco examines the aesthetic biases of international criminal law (ICL). DeFalco astutely argues that ICL prioritizes punishing "horrific spectacles" of violence while ignoring less visible, attritive forms of violence that cause similar levels of harm and suffering, generally over longer periods of time. While ICL is selective in its preference for "horrific spectacles," even the spectacular violence has been rendered invisible in ICL when inconvenient factual evidence counters dominant narratives in international law.

One such dominant narrative is the successful abolition of slavery and the slave trade of the nineteenth and twentieth …

24/7 Clean Energy, Todd S. Aagaard

Faculty Publications

In the face of the rapidly escalating climate crisis, the electricity sector is moving toward renewable energy. To date, policies and strategies have focused on increasing overall renewable energy generation, with little regard for timing and location. The result has been a misalignment of supply and demand in renewable energy markets. Renewable power projects produce energy when and where it is least expensive, leaving supply scarce at other times and places. Consumers, meanwhile, continue to use power when and where they need it. This mismatch increases the electricity grid’s dependence on fossil fuel–fired electricity to meet electricity demand at times …

The Future Of Roe And The Gender Pay Gap: An Empirical Assesment, Itay Ravid, Jonathan Zandberg

Faculty Publications

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court upheld a Mississippi law that prohibits nearly all abortions after the fifteenth week of pregnancy and overruled the holding in Roe v. Wade. Among the many arguments raised in Dobbs in an attempt to overturn Roe, the State of Mississippi argued that due to “the march of progress” in women’s role in society, abortion rights are no longer necessary for women to participate equally in economic life. It has also been argued that there is no empirical support to the relationship between abortion rights and women’s economic success in society. …

Taxing Digital Platforms, Andrew Hayashi, Young Ran (Christine) Kim

Articles

The proliferation of digital services taxes (DSTs) in Europe is generally understood as a way for those countries to claim taxing rights over the profits of large digital platforms such as Google, Facebook, and Amazon. Under prevailing norms of international income taxation, these businesses had been able to avoid paying taxes in countries where they had no physical presence, even if they had many users in those countries. But the rise of big tech has generated a set of regulatory and political challenges, and tax is only one of these. The adoption of DSTs is not only about the fair …

Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud

Articles

This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.

Reflections On Fees And Fines As Stategraft, Rebekah Diller, Mitali Nagrecha, Alicia Bannon

Articles

In A Theory of Stategraft, Bernadette Atuahene advances the concept of “stategraft” to describe situations in which “state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights.” This Essay delineates the ways in which criminal legal system fees and fines can be characterized as stategraft and explores the value of this concept for social movements. In many ways, the stategraft frame, with its focus on illegality, fits well with much of the litigation and advocacy against unconstitutional fees-and-fines practices that have occurred over the last decade. Exposing illegal practices …

The Commerciality Of Non-Profit Hospitals Requires Them To Be Taxed: Bringing The Debate To A Conclusion, Edward A. Zelinsky

Articles

It is now time to conclude our prolonged debate about the tax-exempt status of nonprofit hospitals. The contemporary nonprofit hospital is a commercial enterprise, materially indistinguishable for tax purposes from its profit-making, taxed competitor. The federal income tax and the states’ income, sales and property taxes should treat all hospitals alike, regardless of whether such hospitals are nonprofit or for-profit enterprises. In the interests of equity and efficiency, these similar institutions should be taxed similarly.

As a political matter, nonprofit hospitals will continue to defend their tax-exempt status. Like any other lucrative, vested interest, nonprofit hospitals will continue to fight …

Management’S Substantive Edges, Alexander A. Reinert

Articles

The article examines the evolution of judicial management in federal courts since Judith Resnik's seminal work, *Managerial Judges*, highlighting both advancements and persistent challenges. While increased transparency and the expanded role of magistrate judges have mitigated some concerns, issues like discovery disputes and the impact of the Prison Litigation Reform Act (PLRA) continue to shape judicial practice. The article critiques the disuniformity introduced by judges' individual standing orders, which, despite offering flexibility, raise concerns about procedural fairness, transparency, and consistency in federal procedure.

Pathogen Genomes As Global Public Goods (And Why They Should Not Be Patented), Jorge L. Contreras

Utah Law Faculty Scholarship

During past viral outbreaks, researchers rushed to patent genomic sequences of the viruses as they were discovered, leading to disputes and delays in research coordination. Yet similar disputes did not occur with respect to the genomic sequence of SARS-CoV-2, the virus responsible for COVID-19. With respect to COVID-19, global research collaboration occurred rapidly, leading to the identification of new variants, the ability to track the spread of the disease, and the development of vaccines and therapeutics in record time. The lack of patenting of SARS-CoV-2 is likely due the U.S. Supreme Court’s 2013 ruling in Association for Molecular Pathology v. …

Inflation, Market Failures, And Algorithms, Rory Van Loo

Faculty Scholarship

Inflation is a problem of tremendous scale. But the leading response to inflation-raising interest rates-also poses economic risks. Raising interest rates rapidly may increase unemployment and heighten the chance of recession. This Article argues that there is a better way to think about antiinflation policy. Rather than defaulting to interest rate hikes that harm markets, policymakers should prioritize laws that lower prices while improving markets. Most importantly, there is evidence that businesses have raised prices by colluding with one another, exploiting consumers' behavioral and informational limits, and lobbying for protectionist laws that block competition. Artificial intelligence pricing algorithms and dark …

Beyond More Accurate Algorithms: Takeaways From Mccleskey Revisited, Ngozi Okidegbe

Faculty Scholarship

McCleskey v. Kemp¹ operates as a barrier to using the Equal Protection Clause to achieve racial justice in criminal administration.² By restricting the use of statistical evidence in equal protection challenges, McCleskey stifled the power of the discriminatory intent doctrine to combat the colorblind racism emanating from facially neutral criminal law statutes and governmental actions.³ But what if McCleskey had been decided differently? Given that Washington v. Davis⁴ held that the challenged law or governmental action had to be “traced to a discriminatory racial purpose,”⁵ could McCleskey have articulated an approach to equal protection doctrine …

The Long Shadow Of Inevitable Disclosure, Stacey Dogan, Felicity Slater

Faculty Scholarship

A growing body of evidence has highlighted the human and economic costs associated with contractual restrictions on employee mobility. News accounts describe abusive use of non-compete clauses to prevent low wage workers from seeking better options. Economists, meanwhile, have demonstrated that innovation and economic dynamism may suffer when employers can easily prevent their employees from changing jobs. While state legislatures have attempted to address these concerns by restricting employers' use of non-compete agreements, the Federal Trade Commission recently announced a plan to prohibit them altogether. As policymakers focus attention on contractual limits on employment mobility, however, a more insidious threat …

Climate Services: The Business Of Physical Risk, Madison Condon

Faculty Scholarship

A growing number of investors, insurers, financial services providers, and nonprofits rely on information about localized physical climate risks, like floods, hurricanes, and wildfires. The outcomes of these risk projections have significant consequences in the economy, including allocating investment capital, impacting housing prices and demographic shifts, and prioritizing adaptation infrastructure projects. The climate risk information available to individual citizens and municipalities, however, is limited and expensive to access. Further, many providers of climate services use black box models that make overseeing the scientific rigor of their methodologies impossible— a concern given scientific critiques that many may be obfuscating the uncertainty …

Understanding Dark Patterns In Home Iot Devices, Monica Kowalczyk, Johanna Gunawan, David Choffnes, Daniel J. Dubois, Woodrow Hartzog, Christo Wilson

Faculty Scholarship

Internet-of-Things (IoT) devices are ubiquitous, but little attention has been paid to how they may incorporate dark patterns despite consumer protections and privacy concerns arising from their unique access to intimate spaces and always-on capabilities. This paper conducts a systematic investigation of dark patterns in 57 popular, diverse smart home devices. We update manual interaction and annotation methods for the IoT context, then analyze dark pattern frequency across device types, manufacturers, and interaction modalities. We find that dark patterns are pervasive in IoT experiences, but manifest in diverse ways across device traits. Speakers, doorbells, and camera devices contain the most …

The Millennial Corporation: Strong Stakeholders, Weak Managers, Michal Barzuza, Quinn Curtis, David H. Webber

Faculty Scholarship

In a prior paper, Shareholder Value(s): Index Fund ESG Activism and The New Millennial Corporate Governance, we argued that the index funds’ sudden shift towards socially-responsible investment, after decades of ignoring or opposing it, was driven by the competition to manage growing Millennial wealth. In our view, the main contribution of that paper was identifying sharp differences between Millennials and prior generations over investment, consumption, and employment. It has now become clear that this contribution has implications far beyond index-fund environmental, social and governance (“ESG”) activism and is in fact completely transforming the corporate world, marking a fundamental shift in …

Dual Sovereignty In The U.S. Territories, Emmanuel Hiram Arnaud

Faculty Scholarship

This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.

Foreword: Finding Balance In The Fight Against Gun Violence, Michael Ulrich

Faculty Scholarship

The United States is distinct among high-income countries for its problem with gun violence, with Americans 25 times more likely to be killed by gun homicide than people in other high-income countries.¹ Suicides make up a majority of annual gun deaths — though that gap is closing as homicides are on the rise — and the U.S. accounts for 35% of global firearm suicides despite making up only 4% of the world’s population.² More concerning, gun deaths are only getting worse. In 2021, firearm fatalities approached 50,000, the highest we have seen in at least 40 years.^{3 …}

Reliance Interests In Statutory And Constitutional Interpretation, William N. Eskridge Jr.,

Vanderbilt Law Review

People and companies rely on public law when they plan their activities; society relies on legal entitlements when it adapts to new technology, economic conditions, and social groups; legislators, administrators, and judges rely on settled law when they pass, implement, and interpret statutes (respectively). Such private, societal, and public “reliance interests” are the “dark matter” of America’s law of interpretation. They underwrite most interpretive doctrine, and their perceived force broadly and deeply affects the application of doctrine.

Reliance interests anchor the constitutional bias in favor of interpretive continuity, and they provide guardrails for the leading theories of interpretation-—namely-—textualism or original …

Water We Cannot See: Codifying A Progressive Public Trust To Protect Groundwater Resources From Depletion, Susan E. Ness

Vanderbilt Law Review

Groundwater provides a vital water supply and plays an integral role in hydrological systems by supporting biodiversity and the overall health and functioning of surface waters. Yet, the current legal landscape in the United States premises groundwater management on outdated scientific understandings of hydrology and fails to adequately protect critical groundwater resources. Moreover, states differ significantly in their groundwater management practices despite the interstate nature of many aquifers. As climate change exacerbates stress to groundwater resources, many of the United States’ largest aquifers rapidly approach depletion.

The public trust doctrine may provide a mechanism to regulate groundwater resources in the …

Antitrust’S Healthcare Conundrum: Cross-Market Mergers And The Rise Of System Power, Jaime S. King, Alexandra D. Montague, Daniel R. Arnold, Thomas L. Greaney

UC Law Journal

As healthcare markets continue to consolidate and prices continue to rise, economists, legal scholars, antitrust enforcers, and policymakers have the opportunity and the obligation to examine how the dynamics of our healthcare markets have changed over time and how those changes affect consumers and competition. Although antitrust merger law is designed to arrest anticompetitive harms in their incipiency, it has failed to prevent anticompetitive consolidation in most sectors of the healthcare industry. Of particular concern is the inattention of antitrust enforcers to the growing market power of healthcare systems that span multiple local geographic markets. While more than half of …