Law Commons^™

From Relic To Relevance, The Resurgence Of Tariffs, Reuven S. Avi-Yonah, Doron Narotzki, Tamir Shanan

UC Law Journal

Modern legal scholarship has largely relegated tariffs to economic analysis, overlooking their legal and policy significance. This Article challenges that view by examining tariffs as a potential pillar of fiscal policy, exploring their viability as a revenue source alongside or in place of traditional income and corporate taxation. While historically central to U.S. government funding, tariffs’ importance diminished with the rise of income taxation and trade liberalization. However, their recent resurgence as a tool for trade protection raises broader questions about their role in national economic strategy.

This Article critically assesses the feasibility of a tariff-based tax system, drawing on …

Understanding The Experiences And Visibility Of Asexual People And Guiding Policy To Effectively Protect Asexuality, Lizzie Stravens

University Honors Theses

Asexuality is sexual orientation defined by those who experience little to no sexual attraction. Despite asexuality being as common as red headedness or left handedness, it has been severely overlooked in research and conversations. Because many people are not aware of the existence of asexuality, it has not been directly attacked by anti-queer campaigns. Still, there have been some recent shifts in this dynamic as asexuality becomes more visible. I conducted a linear regression on the 2022 Ace Community Survey results. I analyzed the effect of theoretically important variables on the outness of asexual respondents. Results indicated an importance on …

Discriminatory Effect(S), W. Kerrel Murray

Faculty Scholarship

In constitutional law, “discriminatory effect” often matters. So it’s surprising how often we don’t quite know what it means. That opacity is trans-substantive; it has been a recent pitfall in contexts as diverse as admissions-policy challenges under the Equal Protection Clause, personal-jurisdiction disputes under the “dormant” Commerce Clause, and, under the Free Exercise Clause, requests for exemptions from facially neutral laws.

This Article’s first corrective is a novel typology. Constitutional discriminatory effect is murky, in part, because it has many types; we perceive it in myriad ways across constitutional domains. Comprehending this complexity enhances our understanding of what discriminatory-effect rules …

Performing Legality: When And Why Chinese Government Leaders Show Up In Court, Rachel E. Stern, Jieun Kim, Benjamin L. Liebman

Faculty Scholarship

Since 2015, Chinese government leaders have been required by law to appear in court when citizens sue their unit or to designate an employee to take their place. We frame this policy as a demand on leaders to “perform legality,” sacrificing their time to demonstrate how seriously the government takes legal proceedings. Drawing on an original dataset of 127,529 administrative lawsuits decided between 2015 and 2018, we investigate how often government leaders appear in Chinese courtrooms, and for which kinds of cases. Overall, leaders attended 24.72% of hearings. Contrary to the State Council’s instructions to prioritize attendance in lawsuits that …

Evidence And Assessing Verbatim Transcription Quality Of Black English And Standard American English, L. Alexander Walker Iii

Faculty Scholarship

This chapter explores the accuracy of private transcription services when transcribing Black English and Standard American English. Courts and lawyers in the US regularly rely on transcripts from such services, but third-party verification of their accuracy, especially with respect to their quality when faced with nonstandard language varieties, is lacking. This study draws on experimental methods to contrast the quality of transcription services offered by transcribers and AI route. The quantitative results show that transcription by humans and AI resulted in more mistakes when transcribing Black English than when transcribing Standard American English. Furthermore, a qualitative analysis reveals that these …

The Supreme Court's Policy Favoring Arbitration And Its Limits, George A. Bermann

Faculty Scholarship

While the federal policy favoring arbitration is codified in the 1925 Federal Arbitration Act (FAA), the strength of that policy depends on the treatment that arbitration receives in federal courts and in the United States Supreme Court in particular.

Courts in all jurisdictions play an important role in fashioning the treatment of arbitration agreements, arbitral proceedings and arbitral awards. However, the judicial role in this regard is especially pronounced in the United States, in view of the problematic state of legislation on the subject. The federal legislation on arbitration is 100 years old and has never been meaningfully amended. The …

The Mysterious Federal Policy In Favor Of Arbitration: Festschrifts Squared, Robert H. Smit

Faculty Scholarship

As far as I can tell, John Fellas and I think alike on most things, both as practicing international arbitrators and as professors of international arbitration law. As arbitrators in practice, all of the awards we have rendered together — whether John chaired, I chaired or we both served as party-appointed arbitrators — were unanimous awards. As professors in academics, we both independently submitted essays — on the occasion of a festschrift in honor of Professor George Bermann — addressing related issues concerning the federal policy in favor of arbitration in the United States. John’s festschrift essay is entitled “ …

The Law Of For Cause Removal, Jane Manners, Lev Menand

Faculty Scholarship

For the first time in American history, the Supreme Court is poised to decide what it means for the president to remove a principal officer “for cause.” The case — which arises from the attempted removal of Lisa Cook, a member of the Board of Governors of the Federal Reserve System — has major implications for central bank independence in the United States and, more broadly, for the U.S. administrative state. But given how long it has been since such offices were formally contested, courts and commentators have forgotten many aspects of the legal tradition governing “for cause” removal. In …

Sidewalk Living, Michael C. Pollack

Articles

In City of Grants Pass v. Johnson, the Supreme Court held that the Eighth Amendment does not prohibit a city from enforcing a criminal ban on encampments on public property such as parks and sidewalks. But even if municipalities are now permitted to use tactics such as policing, encampment clearing, arrests, and imprisonment, these are not the right ways to address the problems of public homelessness.

Instead, homelessness must be understood as one of many conflicts over limited public space. At its best, vibrant sidewalk life enhances communities and local economies. But at its worst, every use of these finite …

The Gig Is Up: How Rideshare Companies Operate Under The Guise Of Nontraditional Employment To Circumvent Labor Protections, Hope E. Newkirk

Pace Law Review

App-based rideshare platforms’ rapid expansion has transformed gig work from a temporary, flexible labor model into a sustained form of employment that serves as the primary source of income for millions of workers. Despite this evolution, leaders in the rideshare industry continue to classify drivers as independent contractors, thereby avoiding statutory obligations related to minimum wage, overtime, unemployment insurance, workers’ compensation, and healthcare benefits. This Comment argues that as platform-based labor becomes more permanent and economically dependent, the continued reliance on independent contractor classification becomes increasingly inconsistent with the governing legal standards designed to distinguish employees from independent contractors.

This …

The New Red Scare: The Shocking Truth Behind The Fda's Unethical Regulation Of Red 40 And Other Synthetic Food Dyes, Angelica Martuscello

Pace Law Review

For decades, the U.S. Food and Drug Administration (FDA) has allowed synthetic food dyes to remain in the American food supply, despite evidence linking them to cancer and behavioral issues in children. These additives offer no nutritional value yet remain common in everyday products. This essay scrutinizes the FDA’s failure to enforce its own legal obligations, particularly its continued approval of synthetic dyes, which were later found to be harmful to human health. Harmful dyes have been kept on the market due to weak oversight, outdated science, and industry lobbying. In 2025, the FDA finally announced a plan to phase …

Lessons In Pedagogy: My Experience With Problem-Based Learning, Leslie Y. Garfield Tenzer

Pace Law Review

This Article chronicles my experimental adoption of Problem-Based Learning (PBL) in first-year Contracts. After three decades of conventional teaching, I observed that Gen Z students struggled to transition from undergraduate memorization strategies to law school-level analytical reasoning, prompting my desire to engage in a fundamental pedagogical change. Drawing on successful PBL implementations in medical and mathematics education, I restructured my Contracts course around collaborative problem-solving in small groups, transforming my role from lecturer to facilitator. Students worked through authentic legal scenarios at whiteboards, developing rule-based reasoning through active engagement rather than passive reception.

This article first details my reasons for …

Section 302(A)'S "Arising From" Nexus Element: Need For A Tune-Up In The Aftermath Of Ford Motor?, Michael J. Hutter

Pace Law Review

This article traces the historical development of the “arising out of” and “relate to” nexus requirements, examines the evolution of state long- arm statutes following International Shoe Co., and analyzes the origins and judicial interpretation of C.P.L.R. § 302(a). It argues that New York’s statutory scheme no longer fully reflects the constitutional scope of specific jurisdiction as articulated by the Supreme Court. The article concludes by proposing a legislative amendment to C.P.L.R. 302(a) to add the phrase “relate to,” thereby aligning New York’s long-arm statute with Due Process and better effectuating the statute’s underlying purpose of affording New York residents …

Trust In Regulation In A Time Of Revolution, Cristie Ford

All Faculty Publications

In a moment when big-P Politics feel practically catastrophic, the suggestion that we should be focusing on regulation could seem foolish, or worse: it could seem like some kind of self-serving effort to pretend our work rearranging deck chairs continues to matter. Regulation can feel like the opposite of resistance, and resistance is on many peoples’ minds these days, particularly in the United States. And, the goal of this paper is to argue that failing to focus on regulation – and especially on trust in regulation, in this time of revolution – would be a terrible mistake. Regulation is at …

Perlindungan Hukum Penyelenggara Peer To Peer Lending Dalam Penagihan Wanprestasi Peminjam, Gina Marliana, Moch Teguh Al Baisar, Khoirul Amri Saputera

Technology and Economics Law Journal

The rapid growth of the peer-to-peer (P2P) lending industry in Indonesia has increased financial access for the public and micro-businesses, but this has been accompanied by an increase in default risks that threaten the stability of the industry. This study analyzes the legal framework governing protection for P2P lending operators and ethical and legally compliant collection strategies when borrowers default. Various regulations, including the PDP Law, ITE Law, P2SK Law, POJK 10/2022, POJK 40/2024, and SE OJK 19/2023, stipulate that operators must implement strict governance, identity verification, personal data protection, and collection ethics. Although the risk of default is in …

Peranan Money Changer Dalam Upaya Pencegahan Tindak Pidana Pencucian Uang, Dwi Setiya Arumnandiya, Eko Irianto Prayudha -, Septa Cahya Kanugraha

Technology and Economics Law Journal

Money changers, formally classified as Non-Bank Foreign Exchange Trading Businesses (KUPVA Non-Bank), play a strategic role in Indonesia’s financial system by facilitating foreign exchange transactions and cross-border economic activities. Nevertheless, the cash-intensive nature of money changer operations, flexible transaction values, and potential cross-jurisdictional exposure render this sector vulnerable to misuse for money laundering offenses. This study examines the role of money changers in preventing money laundering by analyzing the legal framework governing KUPVA Non-Bank within Indonesia’s Anti-Money Laundering and Counter-Terrorism Financing (AML/CFT). The discussion focuses on identifying vulnerabilities and potential money laundering typologies associated with money changer activities, as well …

Peran Ojk Dalam Pencegahan Fraud Pada Equity Crowdfunding: Studi Perbandingan Dengan Mekanisme Pengawasan Perbankan, Amanda Amelia Rizki, Ina Kurnia Savitri, Irsya Bakhtiar

Technology and Economics Law Journal

This study examines the role of the Financial Services Authority (Otoritas Jasa Keuangan/OJK) in preventing fraud in the implementation of Equity Crowdfunding (ECF) in Indonesia and compares it with the supervisory mechanisms of the banking sector, which are based on the prudential principle. Using a normative juridical approach and a comparative regulatory study, the research finds that although Financial Services Authority Regulation No. 17 of 2025 concerning the Offering of Securities through Information Technology Based Crowdfunding Services (POJK No. 17 of 2025) has strengthened the regulatory framework for ECF through licensing requirements, off-site and on-site supervision, issuer due diligence obligations, …

Efektivitas Lembaga Penjamin Simpanan (Lps) Dalam Meningkatkan Kepercayaan Masyarakat Berdasarkan Tinjauan Yuridis Dan Moral Hazard, Arnelia Kesumadianty, Desran Jw Saragih, Dwi Marlianto

Technology and Economics Law Journal

This study examines the effectiveness of the Indonesia Deposit Insurance Corporation (LPS) in enhancing public trust in the stability of the Indonesian banking system and analyzes the potential moral hazard arising from the deposit insurance scheme. Employing a normative juridical method with a descriptive-analytical approach, the research reviews the legal framework of LPS under Law Number 24 of 2004 and its amendments, as well as Law Number 4 of 2023 on the Development and Strengthening of the Financial Sector (P2SK), and compares it with deposit insurance practices in several other jurisdictions. The findings indicate that LPS plays a crucial role …

Perkembangan Dan Ruang Lingkup Sosiologi Hukum, Mulyana W. Kusumah

Jurnal Hukum & Pembangunan

Abstract

Mansion Markets: Re-Evaluating The Treatment Of Customs Unions In Antidumping Cases, Devin Humphreys

Mercer Law Review

Some customs unions look like glorified trade deals, while other customs unions look like nation‑states in the making. Since 1979, U.S. trade law has treated both kinds of customs unions the same, but this state of affairs ignores the variety of ways in which some (though not all) modern customs unions are remarkably economically integrated. Presidents from both parties have treated the European Union as a singular entity in regulating foreign trade with their Section 232 authority, and more recently, the current presidential administration has issued ad valorem tariffs against the European Union as a bloc. But due to a …

Marked For Prosecution: The Use Of Tattoo Recognition Technology In Criminal Trials And The Case For Evidentiary Limits, Marc Consalo

Mercer Law Review

In recent years, tattoos have taken on a new and largely overlooked role in our criminal trial system. Once viewed primarily as personal or cultural expression, tattoos are now treated by law enforcement as biometric data which can be analyzed, codified, and then searched by artificial intelligence (“AI”). Police departments and prosecutorial offices have begun using tattoo recognition software to identify suspects, assume gang membership, and establish guilt based on imagery or symbols. Yet, despite the rapid growth of this technology, its use in the courtroom has received almost no scholarly attention and even less judicial scrutiny.

This Article seeks …

Soil And Sovereignty: An Analysis Of Federal And State Laws Affecting Foreign Investment In U.S. Agricultural Land, Brantley Swindell

Mercer Law Review

Foreign ownership of U.S. agricultural land has risen significantly in recent years. From 2014 to 2023, the share of agricultural acres owned by foreign interests increased by 67%. Although the share of agricultural acres owned by foreign countries and interests only amounts to just over 3% of the total U.S. private farmland, the U.S. federal government and many states have passed laws to prohibit, restrict, limit, regulate or create requirements for foreign ownership of agricultural land and real property. As of 2025, twenty nine states have passed laws to regulate such foreign ownership.

This Comment outlines the regulations on foreign …

Hold Your Horses: The Eleventh Circuit Recognizes A Direct Cause Of Action Under The Takings Clause In Fulton V. Fulton County Board Of Commissioners, Brock Gumbel

Mercer Law Review

“[No person shall be] deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” In just twelve words, the drafters of the Bill of Rights guaranteed property owners a significant protection. The Fifth Amendment Takings Clause is not an express ban on government takings. Rather, it guarantees that when the government takes property from private citizens, it must provide just compensation. Although this guarantee is generally well established, its enforcement in federal court introduces unique and significant challenges.

Plaintiffs must have a cause of action to invoke …

The Culture Cure: Behavioral Supervision And The Regulation Of Financial Institutions, David B. Lourie

Mercer Law Review

This Article advances a normative claim: U.S. financial regulators must move beyond primarily adversarial, enforcement-driven models and adopt behavioral supervisory tools—particularly elements of culture assessments—to proactively help guide ethical firm conduct and mitigate systemic risk. Importantly, the proposal here is incremental and resource-efficient. Many recommendations place the onus on firms to assess and demonstrate their culture, while regulators set expectations, review outputs, and selectively verify findings. The framework proceeds in progressive stages—beginning with voluntary, partnership-based initiatives, moving toward light-touch integration within existing examinations, and scaling only where persistent governance weaknesses or systemic risks warrant closer attention. This tiered approach reflects …

Catching Up With The Constitution? Georgia Fixes Its Fatal Burden Of Proof For Findings Of Intellectual Disability In Capital Cases, Meagan R. Hurley

Mercer Law Review

In 1988, Georgia became the first state to prohibit the execution of individuals with intellectual disability—a landmark reform spurred by the execution of Jerome Bowden, a Black man with an IQ of 59. Yet, due to a drafting error, the statute imposed an insurmountable burden: requiring defendants to prove their intellectual disability beyond a reasonable doubt. For nearly four decades, that fatal flaw rendered Georgia’s protection illusory. Not a single capital defendant facing intentional murder charges prevailed. While nearly every other jurisdiction adopted the far more workable “preponderance of the evidence” standard, Georgia stood alone, out of step with both …

Stuck In The Waiting Room: Medina V. Planned Parenthood’S Restriction On The Enforcement Of Spending Statutes Through 42 U.S.C. § 1983, Rebekah Rooks

Mercer Law Review

42 U.S.C. § 1983 was originally enacted in response to Ku Klux Klan violence during the Reconstruction era that had gone largely unpunished in state courts. The statute granted individuals an alternative means to enforce their “rights, privileges, or immunities secured by the Constitution and laws” in federal courts. What began as a lifeline for civil rights violations soon expanded to allow enforcement of all rights secured by federal and constitutional law. This broad interpretation of § 1983 language expanded the statute’s reach to include private enforcement of federal spending statutes against the states. The expansion ignited extensive debate over …

No More Monkeying Around: The Eleventh Circuit Deepens The Circuit Split On Corporate Discharge Under 11 U.S.C. § 1192, Cole Wright

Mercer Law Review

For small businesses facing financial disarray, the federal bankruptcy system offers a way to bounce back and get a second chance. However, not all mistakes can be forgiven, and some debts must be paid. As Congress adapts and expands the Bankruptcy Code, interpretive issues can arise, making it difficult for creditors and debtors to understand their options and outlook. In 2019, Congress attempted to create a more flexible and forgiving option for small businesses when they enacted the Small Business Reorganization Act (“SBRA”), which created Subchapter V of Chapter 11 of the Bankruptcy code. This subchapter has given rise to …

Requesting Less, Winning More: A Plaintiff Strategy To Eliminate Low-Value Anchors, Emily V. Shaw, Jade E. Larson

Mercer Law Review

Picture this: You are a plaintiffs’ lawyer representing a permanently injured client in a high-stakes lawsuit. You think you can earn millions of dollars for your client based on their injuries—but something is holding you back: your client’s past medical bills. To date, she has only had to pay around $20,000. You worry that this fact might make your request for several million dollars in non-economic damages seem excessive to a jury. So, you make a plan: on the eve of trial, you withdraw your request for economic damages and stick to only requesting non-economic damages in the millions. There …

From Phone Booths To Digital Booths: Rethinking Fourth Amendment Privacy In The Age Of Open Source Intelligence, Major Theodore H. Massey Iii

Mercer Law Review

The use of Open Source Intelligence (“OSINT”) by the U.S. intelligence community marks a paradigm shift in national security practices, leveraging vast troves of publicly available and commercially acquired data. Yet this shift raises urgent constitutional questions regarding the applicability of the Fourth Amendment’s protections in the digital age. As OSINT practices increasingly rely on sophisticated aggregation techniques and artificial intelligence tools, the line between publicly available information and constitutionally protected privacy interests begins to blur. This Article critically examines whether certain forms of OSINT collection and analysis, particularly those that aggregate digital data at scale or use predictive algorithms, …

Mergers And Cooptive Acquisitions, Alexandros Kazimirov

Mercer Law Review

A new wave of emerging companies developing foundation models has unleashed fierce competition in generative artificial intelligence. These emergents have significant innovation capabilities threatening incumbent tech companies. To protect themselves, incumbents have responded by partnering with leading product developers and subsuming smaller startups through quasi‑mergers.

To determine whether quasi‑mergers are cooptive acquisitions, this Article scrutinizes the Google–Character, Microsoft–Inflection, and Amazon–Adept transactions. These case studies describe the deployment of acquired assets before and after the merger and explore their potential effects. However, the analysis is plagued by the uncertainty inherent in nascent competition. Consequently, through contextual comparisons of circumstantial evidence like …