7044 research outputs found
Sort by
CASE SUMMARY: SOTO-SOTO V. GARLAND: NINTH CIRCUIT RULES BIA APPLIED THE WRONG STANDARD OF REVIEW AND ERRED IN DENYING A VICTIM OF TORTURE DEFERRAL OF REMOVAL UNDER THE CONVENTION AGAINST TORTURE
Full text linkThe Ninth Circuit granted a petition for review of the Board of Immigration Appeals decision to deny a deferral of removal under the Convention Against Torture. The Board held that the Immigration Judge’s findings granting Delfina Soto-Soto relief under the convention were clearly erroneous. The Board reasoned that the judge failed to acknowledge certain facts that indicate Soto-Soto is not likely to suffer torture if sent back to her country, Mexico. On appeal, Soto-Soto argues that the Board did not apply the correct standard of review. Instead of reviewing the judge’s finding under the clear-error standard, Soto-Soto contends that the Board improperly engaged in de novo review.
The Ninth Circuit determined that the Board applied the wrong standard of review and held that Soto-Soto qualifies for relief under the clear error standard
Transnational Bankruptcy Under International Law: Making a Case for Establishing a Unified System
Full text linkIn recent years, there has been a rapid increase in transnational bankruptcy cases around the world. Taking the United States as an example, from 2005 to June 30, 2020, the U.S. bankruptcy court has accepted 1488 procedural cases under Chapter 15 of the U.S. bankruptcy Code. “Cross-border bankruptcy cases filed in the U.S. under chapter 15 of the Bankruptcy Code on behalf of foreign businesses doubled during 2020 and are on pace to set another record-breaking year in 2021 (with more than 123 filings in the first half of the year alone). Foreign debtors are increasingly looking to chapter 15 as a vehicle for enjoining creditor actions against their U.S. assets pending completion of foreign bankruptcy proceedings, enforcing foreign court orders issued or plans approved in such proceedings, avoiding preferential and fraudulent transfers involving U.S. transferees, and seeking discovery from U.S.-based parties in connection with pending or anticipated litigation.”[1]
At the same time, the international community is experiencing a golden period of development in the construction of transnational bankruptcy. International organizations and industry associations represented by the European Union, the United Nations Commission and the INSOL International practice association are making greater efforts for the development of transnational bankruptcy law.
With the increasing prevalence and frequency of transnational investment and trade activities, the status of transnational enterprises in various countries in the world and the interests involved have also become more complex. With the increasingly fierce market competition, various business mistakes, debt default and other situations, transnational bankruptcy cases are also increasing. Transnational insolvency law is one of the most complex issues in the field of private international law. According to the concept of private international law, the extraterritorial effect of law is the premise of conflict of laws. On the issue of private international law of transnational bankruptcy, there has always been a dispute between the theory of extraterritorial effect of bankruptcy between universal bankruptcyism and territorial bankruptcyism. The application of different theories of extraterritorial effect of bankruptcy will lead to completely different implementation effects of bankruptcy. Transnational bankruptcy law involves not only procedural issues such as jurisdiction, recognition and enforcement of foreign bankruptcy judgments, but also issues such as choice of law and application of law.
However, after reading the legislation of today\u27s transnational bankruptcy laws, most of these countries set out from the principle of national sovereignty and build transnational bankruptcy laws on the basis of fully considering their own interests. Therefore, the international transnational bankruptcy cases have caused constant conflicts in judicial procedures. In view of this, from the perspective of transnational bankruptcy law system, this dissertation makes reasonable use of different research and comparison methods to make recommendations for transnational bankruptcy law.
[1] NEWSLETTERS. Chapter 15 Update: U.S. Bankruptcy Court Refuses to Enforce Order Approving Indonesian Debt Restructuring Plan Due to Third-Party Releases. Jones Day. July 2021
Is Using Preferred Gender Pronouns Important in the Courtroom?
Full text linkIn relation to the Farmer v. Brennan, a case discussed in this blog, it is important to note that triggering language is used in the opinion, as the incorrect pronouns are used to refer to the petitioner throughout.
The use of proper gender pronouns is important to nearly every person in the world. In all cases, proper and preferred gender pronouns are the same. It is respectful and expected to use a person’s preferred pronouns e.g., the proper term for the person. Whether you are part of the LGBTQ+ community or not, the use of proper gender pronouns is only the baseline of respect for another human being. Using preferred gender pronouns is also imperative for anyone because it is important to people’s sense of identity.
Despite this, there are attorneys who still refuse to use preferred pronouns. In briefs, pleadings, and motions, some attorneys have purposely chosen to address trans people with incorrect pronouns as a strategy to intimidate and harass trans people within the court system. This problem affects more people than just the trans community. Non-binary people, whether they identify as part of the trans community or as part of the cis community, are also affected by this problem. To misgender a person is not only demeaning, but extremely disrespectful and offensive
Mandatory Minimums Require a Much-Needed Facelift
Full text linkHamedah Hassan was an overall upstanding member of our society until she became a victim of her extenuating circumstances. When Hamedah was 21 years old, she made a brave choice to flee from an extremely abusive relationship with her two children. At the time, Hamedah’s only option was to seek refuge at her cousin’s house. However, Hamedah’s cousin was dealing crack cocaine and soon roped her into running errands for his drug business. After two years of being involved in the drug business, Hamedah decided to return to her hometown as she wanted to earn an honest living for herself and her children. Shortly after returning to her hometown, Hamedah was arrested. Despite having a clean record, a single offense—likely caused by desperation—resulted in a sentence of 27 years in prison for Hamedah. This was the minimum term under the mandatory minimum sentencing guidelines for crack cocaine-related convictions. She will not be part of her children’s lives for nearly three decades. Hamedah appealed her sentence to the highest courts to no avail. She is one of many victims paying the harsh price of the mandatory minimum penalty.
Anyone who has ever designed something knows the futility of attempting a one-size-fits-all approach; even one-size-fits-all clothing is at best fits most! If the one-size-fits-all model doesn’t work for something as minor as clothing, then why do we apply this model to our criminal justice system? Mandatory minimums force the justice system to apply a one-size-fits-all sentencing approach and disregard the circumstances of individual defendants which then results in flawed and unfair sentencing practices, racial disparity, and overcrowding caused by mass incarceration. Reform must be sought, and mandatory minimums should be reimagined to where it only applies to extremely violent and inhumane crimes
Internally Displaced Persons & Covid-19 Under International Law
Full text linkThe issue of Internally Displaced Persons (IDP) has been overshadowed by global attention on those who flee across an international border, recognized as refugees. In most cases, the only difference between IDPs and refugees is crossing an international border. This research examines the plight of (IDPs) from the perspective of international law and the additional vulnerabilities the Covid 19 pandemic brought them. The rapid growth of IDPs due to wars and disasters is concerning. Furthermore, the challenges for these already vulnerable IDPs are exacerbated by the Covid-19 global pandemic. The authority to regulate IDPs and their rights is left to the sovereign nations they reside in. However, sovereignty is also grounds for not intervening internationally. This research will critically review international and regional conventions, commentaries, and other legal materials to expose the black hole of legal protections for IDPs. Whether existing legal frameworks and international institutions effectively protect their rights. This research will thoroughly analyze primary sources to demonstrate: (1) the vulnerability of IDPs; (2) the international legal framework available for their protection; (3) international institutions that offer humanitarian relief to guarantee the respect of the rights of the affected population; and (4) the added challenges of IDPs during the Covid-19 outbreak. (5) recommendations for the respect of human rights of IDPs. The research findings reveal the inconsistencies between the international rights granted to IDPs and their implementation
Mental Health Services Act Funding and Assisted Outpatient Treatment
Full text linkThis paper poses the issue of increasing mental health needs as the funding from the Mental Health Services Act of Prop 63 continues to grow with unspent funds that are difficult to track, according to the Department of Health Care Services. Separately, the ability for counties to optout of Assisted Outpatient Treatment (AOT), known as Laura\u27s Law, with the governing body\u27s approval, as the outcomes indicate that the rate of institutionalized individuals needing state bed stays and IMD stays have increased. The literature review will identify the issues disclosed by the State Auditor, the challenges of behavioral health client retention in programs, and the benefits and drawbacks of court-mandated mental health treatment with medication management. In addition, the literature identifies the full spectrum of challenges associated with funding, accountability, and the population of focus that require more community support to remain out of locked facilities. The research method included semi-structured interviews with subject matter experts in behavioral healthcare field that understand the challenges of program implementation, reporting, and outcome measurements. This report provides insight into the challenges and potential strategies to address the issues
Here’s Why it’s Time the Lanham Act Recognizes Personal Brands
Full text linkThe Lanham Act defines and governs trademarks, service marks, and unfair competition, all to protect American consumers from market confusion. Under the Lanham Act, a mark is famous if it is “widely recognizable to the general consuming public of the United States.” When a celebrity brings a claim under the Lanham Act for the unauthorized use of their image, courts may find that the celebrity’s name and image constitute an unregistered trademark, while the celebrity’s persona is the goods or services which the celebrity places into commerce. To analyze the claim, several factors help determine the likelihood of market confusion. Of these factors, strength of the mark—referring to the “level of recognition the celebrity enjoys among members of the population,”—poses interesting challenges to influencers and models, filtering out anyone who has not reached celebrity status
NOTE: JULIANA V. UNITED STATES: STANDING ON THE ‘EVE OF DESTRUCTION\u27
No full textIn Juliana v. United States, the Ninth Circuit held that the plaintiffs did not have standing to sue the federal government to enforce a claimed right to a “climate system capable of sustaining human life.” The court further held that the plaintiffs’ request for “an order requiring the government to develop a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric CO2’”—was beyond the court’s constitutional power, and a matter better suited for the political branches of government. The court did not hold that the case presented a political question.
Still, the court’s reasoning employed the rationale of the political question doctrine, creating a novel formulation of standing. This novel formulation required the plaintiffs to satisfy the requirements of both doctrines to establish standing
CASE SUMMARY: DR. SEUSS ENTERPRISES V. COMICMIX LLC: NINTH CIRCUIT AFFIRMS COPYRIGHT FAIR USE AND TRADEMARK INFRINGEMENT PRECEDENTS
Full text linkMore than twenty years ago, in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., the Ninth Circuit favored Seuss, concluding that The Cat NOT in the Hat!, a self-described “parody” of The Cat in the Hat, did not represent “fair use” of the children’s book under the Copyright Act. In 2019, Seuss entered litigation with ComicMix, the creator of Oh, the Places You’ll Boldly Go!
(“Boldly”), another self-proclaimed parody of the Dr. Seuss classic Oh, the Places You’ll Go! (“Go!”). The case presented a set of facts strikingly similar to those in Penguin. In Dr. Seuss Enterprises, L.P. v. ComicMix LLC, the district court held that Boldly, despite structural similarities with The Cat in the Hat, constituted a “fair use” of Dr. Seuss’s seminal work under the Copyright Act. The court held, First Amendment protections immunized Boldly from Seuss’s claim of trademark infringement under the Lanham Act. The court granted ComicMix’s motion for summary judgment on both claims.
The Ninth Circuit reinforced its prior holdings and Supreme Court precedent regarding ”fair use” under the Copyright and Lanham Acts. The Supreme Court tacitly reaffirmed established precedent regarding both copyright and trademark fair use by denying ComicMix’s petition for certiorari
