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SHAPING A MORE EQUITABLE ELECTION SYSTEM: A CANADIAN APPROACH TO SOLVING THE VOTING RIGHTS CRISIS IN AMERICA
Full text linkIn 1965, the Voting Rights Act was passed, ushering in a new era of voting freedom. The Act brought an end to many of the overtly discriminatory practices that had persisted for nearly two centuries. Over time, however, states began to introduce more subtle and complex voting regulations that gradually undermined the gains achieved through the civil rights movement. In 2021, the Supreme Court dismantled an essential safeguard for voters, significantly weakening the protections the Act once guaranteed. This erosion of protections is largely attributable to a single doctrinal standard within the Act, known as the totality of the circumstances test, which determines if voting policies are discriminatory. By analyzing voting regulations individually, rather than in their broader context, this test often fails to capture the cumulative and systemic effects of multiple laws that, together, can suppress voter participation. This Note explores the proportionality test used in Canada to evaluate potentially discriminatory voting laws. This test offers a more rigorous and structured analytical framework that is better equipped to assess how seemingly neutral laws may disproportionately impact minority groups. As a result, it provides a more consistent and equitable means of protecting voting rights. Ultimately, this Note advocates for amending the Voting Rights Act to replace the totality of the circumstances test with the proportionality test
Social (in)Securities: Should Mass Communication via Social Media Give Rise to Seller Liability Under Section 12(a) of the Securities Act? A Proposal to Reconcile the Emerging Circuit Split After Pino
Full text linkThe internet and social media have not only changed the way we shop, communicate, and seek information, but has also profoundly transformed the financial industry, reshaping how we seek and receive financial advice. Moving away from traditional advisor-client interactions, younger, digital-savvy generations favor seamless online experiences in every aspect of their lives. The rise of user-friendly trading applications and pandemic-driven online engagement has further accelerated this trend, introducing both opportunities and risks for users and those offering financial advice. The use of social media in promoting investments raises concerns about market manipulation, inadequate investor protections, and the application of outdated legal frameworks to modern communication methods. Two United States Courts of Appeals were recently confronted with the question of whether mass communication via social media can give rise to seller liability under section 12(a)(2) of the Securities Act of 1933. As more courts and regulators grapple with how to apply old securities laws to new modes of communication, the need for clear guidance becomes increasingly urgent. This Note argues that solicitation via social media should trigger seller liability, particularly given its widespread influence on unsophisticated and younger investors. To balance investor protection with the risk of overextending liability, this Note proposes a three-part test focused on the quality and nature of the solicitation, ensuring legal frameworks evolve to meet the challenges of the digital age
Questioning US Immigration Law Compliance with Treaties for Trade and Investment
Full text linkThis Article examines the extent to which US immigration law complies with the United States’ treaty obligations to admit qualifying foreign nationals as treaty traders (E-1) or treaty investors (E-2). These immigration categories are grounded in international agreements—specifically Friendship, Commerce and Navigation treaties (FCNs), Bilateral Investment Treaties (BITs), and Free Trade Agreements (FTAs)—that commit the United States to grant entry to certain foreign individuals and enterprises for the purposes of trade or investment. Although each treaty includes specifically tailored terms and conditions, US immigration regulations apply a single, harmonized set of regulations that often diverge from the treaty texts. This Article documents how US regulatory practice has largely ignored the heterogeneity of treaty obligations, instead adopting uniform domestic rules that fail to reflect the specific commitments undertaken in individual treaties. The Article analyzes three key dimensions of visa eligibility—qualifying individuals or enterprises, qualifying trade or investment, and qualifying employees—and compares the US regulatory criteria against the treaty terms, identifying a long list of potential treaty violations. By demonstrating that US immigration law in some instances narrows, expands, or otherwise misapplies treaty-based requirements, the Article concludes that the United States is not in full compliance with its binding international obligations. It calls for a more differentiated regulatory approach that accurately incorporates the substantive content of each treaty, thereby restoring consistency between US domestic practice and international legal commitments. And it cautions that there are enforcement options available for these treaty violations
Wine Unwelcome: The Constitutional Contours of Wine Regulation
Full text linkWine retail shops face a dizzying labyrinth of state laws that severely restrict their ability to ship wine to out-of-state consumers. While the dormant Commerce Clause would normally strike down laws that impose restrictions on interstate commerce, wine (and alcoholic beverages) must contend with Section Two of the Twenty-first Amendment, which gives the states control over the importation and distribution of wine intending to be consumed within their borders. Court of Appeals cases interpreting Supreme Court precedent on the tension between the dormant Commerce Clause and Section Two have practically stripped the dormant Commerce Clause of any power. This Note critiques Court of Appeals decisions which have impermissibly relegated the dormant Commerce Clause to a mere afterthought. Additionally, this Note encourages courts to adopt a stronger, more onerous dormant Commerce Clause analysis – one that, in the end, is more faithful to the Supreme Court precedent they purport to obey. In doing so, courts can remove the shackles that stringent, discriminatory wine laws impose and mend an unjustifiably splintered market
Who Owns Your Adventure? A Need for Legislative Clarity for Streamed Performances of Video Games
Full text linkVideo games contain copyrighted material that could easily be infringed upon by people streaming a performance of them playing the game. However, the streamers can protect themselves from infringement liability by transforming the content in some form or fashion such that their performance constitutes “fair use” of the copyrighted material. This is often accomplished by the streamer providing commentary while playing the game or adding a small video of themselves in the corner of the stream so that the viewers can see the streamers’ reactions to the content. With artificial intelligence seeing exponential growth in the past couple of years both in use and in quality of output, it is only a matter of time before artificial intelligence becomes a prevalent component or feature present in video games. For example, artificial intelligence has already been used to create video game characters that utilize ChatGPT so that the player can provide the character with unique dialogue inputs and in return receive unique dialogue outputs. This Note argues that the mere performance of a video game that utilizes artificial intelligence, without any sort of additional commentary or reactionary video content, is sufficiently transformative as to constitute fair use under copyright law. Additionally, this Note considers the possibility of legislative action providing such protection
Court Appointed Monitorships: Effective Remedy or Modern Misstep?
Full text linkWhen a corporate entity or organization violates the law, there are several remedies the courts may enforce against the bad actor. Most common are damages—both compensatory and punitive—and injunctive relief. The class of injunctive relief that most are familiar with is the kind that restrains the bad actor from a conduct or behavior. However, courts in certain instances may decide, either on their own volition or after being asked to consider such a remedy by a prosecuting entity, to appoint a compliance monitor with the function of ensuring that the bad actor continues traversing a legally sound path. Although court-ordered monitors are not a new remedy per se, over the past decades a new trend of court ordered monitors gaining increased power has emerged. This trend has concerned those who believe an improperly unrestrained monitor is a dangerous overreach of judicial power in an entity’s private affairs. This Note delves into the history of how the court ordered monitor has become what it is today, provides theories as to how and why the touted issues have come to be, and offers a solution for creating a more consistent application of the remedy in the future
Municipal Overreach: The Case Against Benefit-Based Land Use Exactions
Full text linkIn the Summer of 2023, a quiet buzz was building in New York City that Madison Square Garden’s Special Permit—the land use vehicle that allows it to operate an arena— was in jeopardy. Contributing to the hubbub were discussions about a controversial form of land use regulation: benefit-based exactions. Exactions are requirements imposed on property owners by local governments whereby, in return for a discretionary land use approval, property owners dedicate a portion of their property to further the government’s interest or pay a fee in lieu thereof. While exactions are primarily used by a municipality when a new development creates negative externalities, a fringe theory has developed that exactions may be based on the benefit accrued to the property owner from the government’s approval of a land use application. This Note argues against such a theory, specifically that benefit-based exactions can lead to abuses of the government’s police power, extortion, and corruption, ultimately subjecting the government to liability under the Takings Clause. This Note, therefore, recommends that the New York State legislature amend the State’s General City Law to explicitly outlaw benefit-based exactions. By banning this form of private property regulation, property owners will be protected from government overreach and abuse
Harmonizing ESG: Standardizing Rating Agency Processes to Rectify the ESG Framework
Full text linkGreta Gerwig’s Barbie film did not merely revive a cultural icon. It highlighted the intersection of brand loyalty, consumer behavior, and corporate culture, which, in turn, revealed a broader trend in investment strategies. As consumers increasingly seek to make investments in companies that align with their values, investors are similarly drawn to firms with strong environmental, social, and governance (ESG) practices. Increasing investor focus on corporate practices has given rise to ESG investing, where investment decisions are influenced by a company’s commitment to sustainability and ethical governance. Despite ESG-driven investments directly correlating with boosts in corporate valuation and market performance, challenges persist due to inconsistent ESG ratings and lackluster standardization of disclosure practices across companies. For example, third-party rating agencies provide differing metrics and methodologies for assessing ESG performance, creating ambiguity for investors. In response, the SEC proposed a rule seeking to standardize ESG disclosures, ensuring transparency and comparability for investors. However, the proposed rule does not adequately address the core issue of rating agency methodologies, potentially undermining the rule’s ultimate goal. This Note proposes that achieving meaningful and reliable ESG reporting requires amending the rule to treat rating agencies as investment advisers. By imposing fiduciary duties on rating agencies, such as the obligation to act with the utmost good faith and fully disclose all material facts, the SEC could enhance the quality and accuracy of ESG assessments. The proposed regulatory framework would address concerns about inconsistency and potential biases in ESG ratings, improving overall market efficiency and investor confidence
Unveiling Injustice: An Analysis of IRC Section 7430 and the Quest for Fairness in Taxpayer Administrative and Judicial Proceedings with the IRS
Full text linkThe American rule and doctrine of sovereign immunity are serious barriers affecting access to justice for individuals and small businesses. In this Article, we explore the legislative history of and evolution of the amendments to section 7430 of the Internal Revenue Code, which allows prevailing taxpayers in tax proceedings who meet certain substantive and procedural requirements to recover their attorneys’ fees and costs. We also examine in depth the requirements under section 7430 for recovering administrative and litigation costs, looking at select judicial decisions at how these requirements have been applied, including decisions applying the statutory limitations on attorneys’ fees recoverable, limiting the recoverability of fees by pro se litigants, determining the effect of the bifurcation requirement on recoverability, applying the substantially prevailed standard in the context of both the amount in controversy and significant issues presented, determining whether the position of the government is substantially justified, and imposing the net worth requirement for standing. We conclude with recommendations to improve section 7430 with needed clarity and fairness to further level the playing field between the prevailing taxpayer and the government in tax proceedings when it comes to the taxpayers’ recovery of attorneys’ fees and costs
Barbarians at the Gate or Angels at the Crossroads? Examining the Impact of the UK Green Taxonomy on Private Equity Firms
Full text linkThis Article explores whether the UK Green Taxonomy will foster sustainable corporate governance in private equity-backed portfolio companies. We explore how the Taxonomy will address the greenwashing problem that plagues financial markets, including the private equity industry. Our analysis suggests that general partners will have a twofold response to the new reforms. In the short term, they will seek to address the social concerns of limited partners by negatively screening unsustainable companies and cherry-picking more sustainable ones (the so-called “exit” strategy). In the long term, however, they will adopt a dynamic strategy to transform unsustainable targets into sustainable enterprises on exit (the so-called “voice” strategy). We explain these findings through the lens of law and economics and show that competitive pressure and better integration of sustainability in market pricing shape this dynamic. Lastly, we advance a policy proposal that can further incentivize engagement on environmental sustainability issues