Legislation Commons^™

Creativity For The Common Good: The Case For Fair Use Of Prosthetics Patents, Roxanneh Mousavi

Seattle University Law Review

This Note examines how patent law inhibits accessibility to prosthetics, and how a fair use defense for patent infringement will make them more widely accessible. Part I will explain the basics of patent law, including its history, scope, and process of infringement. Part II will discuss the fair use defense against copyright and trademark infringement and explain why this defense should also be enforceable for patent infringement. Part III will provide an overview of 3D printing. Part IV will focus on 3D prosthetics, specifically on the story of two young prosthetic recipients, Griffin Matuszek and Evie Lambert. Finally, Part V …

Is The Shipwreck I Found In Lake Michigan Mine? Great Lakes Shipwreck Legal Research Basics And Sources, Kincaid C. Brown

Law Librarian Scholarship

There have been approximately 6,000 shipwrecks claiming an estimated 30,000 lives in the Great Lakes and new shipwrecks continue to be located, such as the recently discovered Atlanta. There are many opportunities for divers, boaters, and other users of the Great Lakes to come across found and new shipwrecks. This article discusses the basic framework of federal, state, and other law governing these shipwrecks.

Honor Thyself, Alonzo O. Williams

Dance (MFA) Theses

The black male experience and identity in America are filled with complexity. We struggle to know ourselves. We work to see the way of love and the peace of an unviolated free spirit. We want to engage with ourselves with the highest degree of freedom and comfort, not to continue to question our identity in a life-threatening white patriarchal masculinity ideal. Honoring oneself from the lenses of the Reconstruction era of the United States is essential. Reconceptualizing this history explores the significance of emphasizing Reconstruction in my life as a black male to go through a process of self-discovery and …

Platforms, Encryption, And The Cfaa: The Case Of Whatsapp V Nso Group, Jonathon Penney, Bruce Schneier

Articles, Book Chapters, & Popular Press

End-to-end encryption technology has gone mainstream. But this wider use has led hackers, cybercriminals, foreign governments, and other threat actors to employ creative and novel attacks to compromise or workaround these protections, raising important questions as to how the Computer Fraud and Abuse Act (CFAA), the primary federal anti-hacking statute, is best applied to these new encryption implementations. Now, after the Supreme Court recently narrowed the CFAA’s scope in Van Buren and suggested it favors a code-based approach to liability under the statute, understanding how best to theorize sophisticated code-based access barriers like end-to-end encryption, and their circumvention, is now …

Judicial Workbook On Bill C-92 — An Act Respecting First Nations, Inuit And Métis Children, Youth And Families, Hadley Friedland, Naiomi Metallic, Koren Lightning-Earle

Articles, Book Chapters, & Popular Press

Objective: Based on the purpose, history, textual wording and relevant interpretative principles, these are the approaches to the provisions of the Act that we believe will best achieve its purpose, which Canada has identified as “to protect and ensure the well-being of Indigenous children, families and communities by promoting culturally sensitive child welfare services, with the goal of putting an end to the overrepresentation of Indigenous children in child and family services systems."

A Congressional Review Act For The Major Questions Doctrine, Christopher J. Walker

Articles

Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate on a question of great economic or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond: by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could establish a fast-track …

The Dubious Constitutional Origins Of Treaty Overrides: A Response To Rosenbloom And Shaheen, Reuven Avi-Yonah

Articles

In 1888, the Supreme Court decided a case called Whitney v. Robert- son, which is generally considered to be the source of the proposition that, under the Constitution, later-in-time statutes can override earlier treaties (the Rule). The Rule is highly controversial because it violates articles 26 and 27 of the Vienna Convention on the Law of Treaties (VCLT), which the United States has accepted as binding on it as cus- tomary international law (CIL). Despite that, the United States has since Whitney routinely engaged in treaty overrides, and the Court has repeatedly endorsed the Rule even while narrowing its application …

Zombie Laws, Howard M. Wasserman

Lewis & Clark Law Review

A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes …

Requiring Majority Winners For Congressional Elections: Harnessing Federalism To Combat Extremism, Edward B. Foley

Lewis & Clark Law Review

Congress should enact a law requiring a candidate for a seat in Congress to receive a majority of votes in order to win the election. Congress should let states determine what particular procedure to use to determine whether a candidate wins a majority, as there are significantly different methods of identifying a majority winner. While this simple piece of legislation might seem inconsequential—many Americans assume, erroneously, that elections already require majority winners—it in fact would cause states to undertake a form of experimentation in the details of electoral system design that would have the effect of counteracting the threat that …

One Step Further For Protection: Why Oregon Should Adopt Additional Requirements For The Appointment Of Counsel To Youths Accused Of Crime, Ivy-Rose Kramer

Lewis & Clark Law Review

Current procedures for interrogating and investigating youths accused of crime do not provide sufficient protection for youths and their rights. Oregon should follow the example of other states that have adopted greater protections for youths—beyond what the Constitution currently requires. Specifically, Oregon should enact legislation that would provide counsel to youths who are (1) detained and being investigated based on probable cause of criminal activity; (2) undergoing custodial interrogation; and (3) in possession of property law enforcement wishes to search. This consultation with counsel should not be waivable. Such a law would counteract the harmful effects of disparate treatment and …

Securing Gun Rights By Statute: The Right To Keep And Bear Arms Outside The Constitution, Jacob D. Charles

Faculty Scholarship

In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike …

Strengthening Marine Species Protections In Cuba: A Case Study On The Critically Endangered Smalltooth Sawfish, Olga Koubrak, Fabián Pina Amargós, José Alberto Álvarez Lemus, Tonya Wiley, Katie Thompson, Tamara Figueredo Martín, Fernando Bretos, Sonja Fordham

Gulf and Caribbean Research

The Smalltooth Sawfish (Pristis pectinate), a critically endangered species of ray, is in urgent need of strong legal protection and conservation action in the Wider Caribbean Region, particularly in Cuba. Cuba has a long history of conservation initiatives for other marine species and is a signatory to multiple multinational agreements that direct the country to protect sawfish. Nevertheless, sawfish are only just beginning to be a species of concern on the island. Here we review existing domestic laws relevant to biodiversity and endangered species protection in Cuba, with a focus on safeguarding sawfish. We offer specific recommendations to …

The Extraterritorial Reach Of Section 10(B): A Wolf Hunt Off Wall Street, Radley Gillis

Emory Law Journal

Born to combat the market effects of the Great Depression, the Securities Exchange Act of 1934 protects American investors and maintains American confidence in the U.S. securities market. These objectives are largely accomplished through the imposition of liability from Section 10(b) of the Securities Exchange Act and the SEC’s Rule 10b-5. These federal laws impose civil and criminal penalties for domestic insider trading and securities fraud violations. Because Section 10(b) and Rule 10b-5 only apply domestically, when securities violations occur both within the United States and abroad, the reach of federal law becomes questionable, leaving federal courts with a complex …

Delaware’S Dominance, Wyoming’S Dare: New Challenge, Same Outcome?, Pierluigi Matera

Fordham Journal of Corporate & Financial Law

Despite increasing criticism, Delaware’s dominance in corporate law has not experienced a significant decline: as of today, 67.8 percent of Fortune 500 companies are still incorporated in its jurisdiction. Nevada is known as Delaware’s most important competitor, with an aggressive strategy that has overridden the efforts of any other jurisdiction. Yet, its success has been limited to a specific market segment: small firms with low institutional shareholding and high insider ownership.

Scholars suggest several explanations for both the rise and the staying power of Delaware. These explanations are essentially subsumed under the credible commitment theory and the network theory. According …

Deepfakes, Shallowfakes, And The Need For A Private Right Of Action, Eric Kocsis

Dickinson Law Review (2017-Present)

For nearly as long as there have been photographs and videos, people have been editing and manipulating them to make them appear to be something they are not. Usually edited or manipulated photographs are relatively easy to detect, but those days are numbered. Technology has no morality; as it advances, so do the ways it can be misused. The lack of morality is no clearer than with deepfake technology.

People create deepfakes by inputting data sets, most often pictures or videos into a computer. A series of neural networks attempt to mimic the original data set until they are nearly …

Comment: The Necessary Evolution Of State Data Breach Notification Laws: Keeping Pace With New Cyber Threats, Quantum Decryption, And The Rapid Expansion Of Technology, Beth Burgin Waller, Elaine Mccafferty

Washington and Lee Law Review

The legal framework that was built almost two decades ago now struggles to keep pace with the rapid expansion of technology, including quantum computing and artificial intelligence, and an ever-evolving cyber threat landscape. In 2002, California passed the first data breach notification law, with all fifty states following suit to require notice of unauthorized access to and acquisition of an individual’s personal information.1 These data breach notification laws, originally designed to capture one-off unauthorized views of data in a computerized database, were not built to address PowerShell scripts by cyber terrorists run across thousands of servers, leaving automated accessed data …

Statutory Interpretation From The Outside, Kevin Tobia, Brian G. Slocum, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

How should judges decide which linguistic canons to apply in inter­preting statutes? One important answer looks to the inside of the legisla­tive process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional …

Sex, Money, And Free Speech: The Many Harms Of Fosta/Sesta, Desmond Mantle

CMC Senior Theses

This thesis tracks the development of the Fight Online Sex Trafficking Act/Stop Enabling Sex Traffickers Act, or FOSTA/SESTA, which became federal law in 2018. The law's passage followed as a natural consequence of popular concerns about human trafficking. Congress passed the legislation by large margins in both houses given bipartisan opposition to sex trafficking. This thesis identifies plausible reasons for the only two Senate votes against the bill: those of Senators Rand Paul and Ron Wyden. Though these senators came from opposite sides of the aisle, they shared concerns about the future of free speech online and the potential failure …

Including Unmarried Women In The Homestead Act Of 1862, Hannah Haksgaard

Faculty Publications

When Congress passed the Homestead Act of 1862, it decided to distribute land to single, unmarried women. Most Congressional members who supported including unmarried women did so because women were a necessary part of empire building—women were expected to marry, bear children, and engage in building permanent communities. Few Congressional members cared about women’s equality or the progressive goals of the women’s rights movements, although some Congressional members thought women would be incapable of successfully homesteading. This Article presents the fascinating history of including unmarried women in the Homestead Act of 1862 by conducting an intensive study of the Act’s …

Disabled Litigants’ Standing Issue: Ensuring Rhode Island’S Standing Doctrine Is Accessible To Ada Tester Litigants, Colten H. Erickson

Roger Williams University Law Review

No abstract provided.

The Ret. Bd. Of The Emples. Ret. Sys. Of R.I. V. Randall, 249 A.3d 629 (R.I. 2021), Yee Yee Myint

Roger Williams University Law Review

No abstract provided.

Rhode Island And Sports Law, Adam Epstein

Roger Williams University Law Review

No abstract provided.

The Future Of Electronic Wills In Rhode Island After Covid-19, Crystal L. Collins.

Roger Williams University Law Review

No abstract provided.

2021 Surveys Of Rhode Island Law

Roger Williams University Law Review

No abstract provided.

How Can Federal Actors Compete On Noncompetes? Examining The Need For And Possibility Of Federal Action On Noncompetition Agreements, Robert Mcavoy

Dickinson Law Review (2017-Present)

Employees have been frustrated by the restrictiveness of noncompete agreements and confused about their enforceability for decades. The added complication of choice-of-law provisions in employment contracts with noncompetes creates a sea of unpredictability for both employees and employers.

Each state applies its own policy to noncompete agreements. While every state treats noncompetes differently than typical contract provisions, a broad spectrum exists between the states that are friendly and those that are hostile to the enforcement of noncompetes. Employees and employers often fail to understand whether their noncompete is enforceable under the jurisdiction chosen by the contract, and courts override choice-of-law …

Dobbs V. Jackson Women’S Health And The Post-Roe Landscape, Yvonne F. Lindgren

Faculty Works

This Article examines some of the important takeaways of the Dobbs v. Jackson Women’s Health decision and the likely reverberations it will have on other areas of law and reproductive healthcare more broadly. The Article proceeds in three parts. Part I examines the majority, concurring, and dissenting opinions to consider what they reveal about the new standard of review for abortion, the shift in power among the members of the Court itself, as well as what the opinion signals might come next. Part II explores the future of abortion in a post-Roe landscape as the abortion rights movement moves from …

Fat Rights, Public Health Oppression And Prejudice, And The “Obesity Epidemic”, Nicholas D. Lawson

Touro Law Review

The pervasiveness, frequency, and intensity of fat shaming, bullying, and harassment experienced by fat people is well-documented, and three quarters of the American public support antidiscrimination protections for fat people. Yet fat people generally remain unprotected from discrimination under federal and state law in all but two jurisdictions. This Article traces these problems to the agendas of public health leaders, organizations (the Centers for Disease Control and Prevention and the World Health Organization), and associated industries, which are fighting an “obesity epidemic.” It describes some of their fat-shaming strategies and persistent public-health-crisis framings, as well as sensationalized presentations of research …

Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans

Faculty Publications

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Lawmaking Without Law: How Overreliance On Economics Fails Financial Regulation (And What To Do About It), Steven L. Schwarcz, Theodore L. Leonhardt

Faculty Scholarship

This Article examines a fundamental failure of process in lawmaking: the overreliance of lawmakers on economists and economic scholarship when designing and implementing financial regulation, to the virtual exclusion of lawyers and legal scholarship. This overreliance leads to regulation that often is based on theoretical models and assumptions that are poorly informed by experience and may not withstand real-world testing. The Article examines how to improve financial regulation by better integrating legal scholarship and lawyerly insights into the lawmaking process. Among other things, that will require law professors to gain the attention, and earn the respect, of lawmakers by writing …