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Manifest Disregard in International Commercial Arbitration: Whether Manifest Disregard Holds, However Good, Bad, or Ugly
Full text linkManifest disregard is a common law reason for not enforcing an arbitration award. This principle applies when the arbitrator knew and understood the law, but the arbitrator disregarded the applicable law. Presently, the United States Supreme Court has not made a definite decision on whether manifest disregard is still a valid reason for vacating the award (known as “vacatur”), and the Court is highly deferential to arbitrator decisions. Consequently, the lower courts are split on the issue. For international commercial arbitration awards, manifest disregard can only apply to a foreign award that is decided under United States law or in the United States. This Note will argue that manifest disregard should still apply to arbitration awards. However, arbitration contract clauses would be improved with the addition of language for appeals based upon manifest disregard to an arbitration appeals tribunal. The customary goal of arbitration is to provide a confidential, cost effective and expedited resolution of contract disputes. Therefore, an arbitration contract clause requiring that an appeals tribunal decide all manifest disregard questions would further these traditional arbitration goals
Better By Design: Implementing Meaningful Change for the Next Generation of Law Students
No full textThis article presents a fictitious, utopian law school to challenge the assumption that legal education has met adequately the challenges of preparing law students for an evolving profession. By presenting the utopian ideal, the author highlights how adoption of best practices in learning and cognitive sciences could transform legal education from a highly criticized institution to a dynamic, self-transforming academy designed to meet the changing needs of students and the practicing bar
Going to the Clerk’s Office and We’re Not Going to Get Married
Full text linkSame-sex marriage is a controversial topic subject to great debate. The Supreme Court in 2015 federally recognized the legality of same-sex marriages in Obergefell v. Hodges. Despite this ruling, some people looked for any reason to denounce the holding. Perhaps none were more vocal than those who rejected same-sex marriage on the basis of their religious tenets. Miller v. Davis provided people who were morally opposed to same-sex marriage a platform to support their concerns grounded in a First Amendment right to freedom of religion. The question is how far does one’s freedom of religion extend? Does freedom of religion give one the right to deny to others their federally recognized rights? Many have sought to define the boundaries separating church and state; however, those boundaries remain malleable and oftentimes hard to enforce, presenting a challenge to those seeking to define them. This comment explores the bounds of freedom of religion and analyzes the rights and protections associated with marriage. Specifically, this comment suggests a balancing test for determining when a government official may exempt themselves from issuing marriage licenses based on their religious tenets. Broadly, the test determines when religious exemptions are appropriate
The Profit and Loss Report on Animal Rights: How Profit Maximization Has Driven the Stagnation of the Legal Identification of Animals as Property
Full text linkThe concern for the wellbeing and humane treatment of animals continues to grow in the United States. However, while public opinion on how animals should be treated has largely changed, the legal classification for animals has not. Nonhuman animals today, just as in centuries past, keep only a property classification in the law. This classification, which we humans assign to furniture, jewelry, and paper plates, comes with a set of legal rights held exclusively by the owner of the property. These rights bestow upon the owner the abilities to sell, use, and destroy the property as they see fit with little regard to factors outside of the owner’s mere whim. This property classification, while perfectly suited to inanimate objects, does little to adequately address the pain and suffering felt by a sentient nonhuman animal. Many articles exist exploring the psychological aversion towards giving nonhuman animals the same rights as humans or exploring the deficiencies in statutes intended to protect animals. This Article, however, takes a different look at the status of nonhuman animals in the law and instead looks at the role capitalism has played in maintaining the property classification. To accomplish this goal the Article looks to one of the few other instances of sentient beings classified as property, the enslavement of African Americans, and the role capitalism played in driving and maintaining the institution of slavery past the economic purpose. Additionally, the Article discusses some of the animal rights issues that exist and how the current legal field fails to protect the nonhuman animals involved. Finally, the Article considers the psychological and emotional opposition to human rights and suggests a compromise that can advance the nonhuman animal’s interests to some degree while resulting in minimal impact on the average person’s day to day exploitation of nonhuman animals
State-Level Ruling Shows U.S. Courts Still Leery of Internet Jurisdiction
No full textLate in 2017, the Supreme Judicial Court of Massachusetts (SJC), in the United States, remanded an internet jurisdiction case because the lower court jumped to constitutional law before first applying the state’s jurisdictional statute, or “long-arm” statute. The superior court had rejected jurisdiction over the defendant on constitutional grounds, and in September 2018, the superior court reaffirmed that rejection under state law. SCVNGR v. Punchh is not a landmark case. But its dual iteration, reaching the same conclusion on constitutional and statutory grounds, exemplifies a persistent leeriness of internet jurisdiction in U.S. state courts, with ramifications in global jurisdiction
Too Clever by Half: Commanding the Nonuse of State Authority to Regulate Health Benefits in the ACA
Full text linkPrior to the enactment of the Patient Protection and Affordable Care Act (ACA), state legislatures routinely passed laws requiring health insurance carriers to cover certain health care services or providers. At the behest of the insurance industry, Congress attempted to use the health reform law as a vehicle to reign in state-specific “mandated benefit” laws. That being said, the ACA does not prevent states from enacting mandated benefit laws; in fact, the statute expressly permits states to enact such laws. Instead, Congress created a significant barrier to continued state-specific regulation of health insurance benefits. Specifically, 42 U.S.C. § 18031(d)(3)(B)(ii) (Section 1311(d)(3)(B)(ii) of the Act) requires states to “defray” the cost of any mandated benefit that exceeds the federally defined “essential health benefits” (EHB) package. In other words, were a state to enact a mandated benefit law that requires coverage for a benefit or service not included in the EHB package, the state would be legally obligated to appropriate state general revenue to either the individual subscribers or health plans to cover the cost of that benefit. In an apparent attempt to forestall state level health insurance regulation, Congress exacted a financial penalty from states for performing their essential role as the primary regulator of the insurance industry. This article will explore the constitutional implications of this ACA innovation
Changing the First Lady’s Mystique: Defining the First Lady’s Legal Role and Upending Gender Norms
Full text linkThis Article explores the lack of formal guidelines governing the First Lady by first considering the history of the role and how the three branches of government have typically dealt with the role. Attention is also given to the possible intersection with the anti-nepotism statute when and if the First Lady acts as an advisor to the President. This Article then goes on to suggest that this lack of formality has allowed gender norms to govern the role. In an era where women’s rights have resurfaced as a central theme in political discourse, this Article concludes by suggesting some possible guidelines that may displace the gender norms that have been governing the role for far too long. Upending these gender norms from the White House would send a message that not only redefines the First Lady’s role but also redefines gender roles for the American public
Denial Is Not An Option, Or Is It? How the Turkish Denial of the Armenian Genocide Blocked Recovery in the United States
Full text linkMany articles have been written on the Armenian Genocide, both in the context of how to obtain Turkish recognition and how to obtain monetary relief in the courts of the United States. This Article summarizes the issues with the Movsesian III holding with regards to lack of precedent and the Ninth Circuit’s failure to follow the Supreme Court’s trend of limiting preemption. This Article then analyzes related decisions from four other circuits, demonstrating a clear circuit split on judicial understanding of the 5-4 Supreme Court ruling in Garamendi. This Article provides a roadmap to a friendly forum for victims of the Armenian Genocide, or victims of any other similar foreign tragedy, who seek redress in the American judicial system. By focusing their efforts on litigating and passing legislation in these friendly circuits, individuals seeking justice may realize better results than the victims and plaintiffs in the Movsesian line of cases
Comparing Public Concern and Support for Drone Regulation to the Current Legal Framework
No full textIn this study we assess the extent to which the regulations governing the use of drones in the United States address the concerns held by the public they are meant to protect. In general, respondents were most supportive of those regulations that could be categorized as limiting one\u27s exposure to an unwanted drone. The most popular policies were those that protected personal privacy, while the least popular were those that hampered drones used for public safety. The largest discrepancy was found to be respondents\u27 preference for laws protecting personal privacy compared with the lack of regulatory constraints currently in place. Federal regulators have only begun to introduce regulations on how drones can be used in our national airspace, with additional regulations for other types and sizes of drones likely to be introduced in the future. The results of this study may be utilized by regulators and lawmakers to create a regulatory structure that effectively mitigates risk and supports the public interest
Ganging Up on Immigration Law: Asylum Law and the Particular Social Group Standard - Former Gang Members and Their Need for Asylum Protections
Full text linkThe Refugee Act of 1980 was a significant piece of legislation for the development of asylum law, and the United States’ commitment to human rights and humanitarian concern for the struggles of refugees worldwide. The Act recognized the urgent needs of persons fleeing persecution in their homelands, asylees, and their need for protection and resettlement. The protections afforded in the Act extended to asylum seekers that were persecuted on the basis of (1) race, (2) religion, (3) nationality, (4) membership in a particular social group, or (5) political opinion. However, Congress did not define “membership in a particular social group” in the Refugee Act of 1980 or otherwise, and have left it to the Board of Immigration Appeals to interpret the term “membership in particular social group.” As such, the Board of Immigration Appeals has developed, through case law, an arbitrary and loose definition for “membership in a particular social group.” With such arbitrariness, as discussed in this Article, any group, including former gang members fleeing their country and seeking asylum could make a cognizable claim that they are a “member of a particular social group,” and therefore ought to be afforded protections under the Refugee Act of 1980. This Article examines the history of asylum law that developed after the passing of the Refugee Act of 1980, specifically the “particular social group” standard as it was developed through Board of Immigration Appeals decisions, and a brief history of the development of the MS-13 and 18th Street gangs in the Northern Triangle of Central America. Ultimately, this Article examines a circuit court split on whether former gang members constitute a “particular social group.” This Article takes the position that former gang members do constitute a “particular social group,” and thus should be afforded asylum protections