LARC Cardoso Law (Yeshida Univ)
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The Need for Fentanyl-Specific Drug Education in Schools
No full textThe note advocates for the implementation of state legislation requiring fentanyl-specific drug education in K-12 schools to combat the escalating opioid epidemic, particularly among teenagers. It emphasizes the critical role of schools in providing comprehensive education to raise awareness about the dangers of fentanyl and prevent overdose deaths. The proposal includes mandates for fentanyl-awareness campaigns, updated curricula, and the use of tools like fentanyl test strips and naloxone in schools
South Korea’s Financial Supervisory Service Mediating Disputes Over Hong Kong-Tied Equity-Linked Security Losses
No full textSince January 8, 2024, South Korea’s financial regulator, Financial Supervisory Service (FSS), has investigated major Korean banks for selling high-risk equity-linked securities (ELS) products linked to Hong Kong’s Hang Seng China Enterprises Index (HSCEI), which resulted in substantial financial losses among South Korean investors. An ELS is a derivative product that promises returns if the underlying asset—in this case, the HSCEI—stays above a specified “knock-in” level until it matures. Due to the severe decline in the HSCEI, many ELS products have seen drastic devaluations, leading to significant losses for investors, including those who are risk averse. Investors aged 65 and older invested in over 5.4 trillion won in these products, and 8.6 percent were first-time ELS investors. Many of these products were marketed without adequate risk disclosure, resulting in potential losses of up to 14.2 billion, or 5.8 trillion won, if redeemed at end-February values.[6] With 80% of these products maturing this year amid a sharp HSCEI decline, investors are now seeking compensation.
The print edition of the issue has also been released. This post was originally published on the Cardozo Journal of Conflict Resolution website on November 10, 2024
ADR in the Digital Age: How Online Platforms are Better Suited to Resolve Disputes Than Traditional Forums
No full textSince Covid-19 remote work has been increasing astronomically in the US. According to a Gallup poll, even now that Covid-19 is in the past, approximately 27% of workers are fully remote, 53% hybrid, and 21% fully on site. While there are significant benefits to working from home, there are detriments including losing key relationships with coworkers. As people could not physically see their coworkers in person and grow and learn from each other’s body language and personal observations, they started losing respect for each other. This led to an increase in conflicts amongst remote workers with one survey finding that 80% of remote workers have work related conflicts.
The print edition of the issue has also been released. This post was originally published on the Cardozo Journal of Conflict Resolution website on November 05, 2024
Luxury, Legacy, and Resolution: ADR in the World of Branded Residences
No full textAs of mid-2023, there were 690 completed branded residence schemes across the world, with over 600 schemes in the pipeline expected to be delivered by 2030. Branded residences have become increasingly popular in the luxury real estate market, offering a unique blend of high-end living and hotel-like amenities. These developments, often associated with renowned hotels, present an attractive proposition for buyers seeking both a personal retreat and an investment opportunity. The rental programs offered by developers and branding partners in these luxury projects is one of the main attractive aspects for buyers. It offers the owner the best of both worlds; the luxury of enjoying the elegant lifestyle while at the same time offsetting the premium cost, such as service charges and other fixed costs when not in-residence. Typically overseen by the brand operator, these programs handle all aspects of rentals, from marketing and bookings to guest services and maintenance. The differing goals of buyers can create tension and conflicts within the community, especially when it comes to revenue distributions and amenity usage. As conflicts arise, Alternative Dispute Resolution offers a more efficient and harmonious approach to resolving disputes in the unique context of branded residences\u27 rental programs.
The print edition of the issue has also been released. This post was originally published on the Cardozo Journal of Conflict Resolution website on November 04, 2024
The Role of Mediation in Resolving First Amendment Disputes, Particularly in Cases Involving Freedom of Speech or Religion
No full textThe First Amendment of the United States Constitution reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In other words, all U.S. residents are guaranteed freedom of expression, religious practices, and free assembly. This article explores how Alternative Dispute Resolution could be applied to First Amendment conflicts, particularly in disputes over freedom of speech.
The print edition of the issue has also been released. This post was originally published on the Cardozo Journal of Conflict Resolution website on November 19, 2024
Arrest the President, Hypothetically
No full textBy what authority does one dare direct that famous phrase, “j’accuse!” at the state’s supreme executor of law? Is there a mechanism, through which a citizen can hold a national government to account? Can the citizen\u27s arrest serve as a symbolic insistence that international humanitarian law be enforced? International humanitarian law is coming to be defined by the dereliction of duty. Where a rules-based international order once stood as a lofty ideal, the reality of a nuclear-armed world now looms over the field’s failures.
This post was originally published on the Cardozo International & Comparative Law Review on November 14, 2024. The original post can be accessed via the Archived Link button above
No Child Left Online: Influencer “Sharenting” as a Breach of Fiduciary Duty
Get PDFA controversy erupted on the video-sharing app TikTok in the summer of 2022, with audiences accusing a parenting influencer of exploiting her toddler daughter by posting compromising videos of her on the platform. The child’s mother, Jacquelyn, who runs the account @wren.eleanor, frequently shared videos of then-two-year-old Wren engaged in everyday activities such as riding a bicycle, going to the park, and eating snacks with the duo’s 17.1 million followers. Jacquelyn also regularly posted paid partnerships with brands such as SHEIN and Kohl’s, and, in lieu of working a regular job, provided for Wren through earnings from online content creation. Followers began expressing suspicion because of TikTok’s “save video” function that allows viewers to save videos made by other accounts to watch again later: “Videos of Wren that could, in the wrong hands, be interpreted as suggestive, such as those depicting her eating pickles or hot dogs, playing with a tampon, or wearing a crop top, were saved tens of thousands of times each, exponentially more than other videos.” Comments on these videos also included discussion about Wren’s appearance, with some comments attributed to accounts run by grown men. Viewers and other creators criticized Jacquelyn for “exploit[ing]” Wren by posting images that could fall into the hands of child predators and continuing to expose her daughter to such an audience to bring in sponsorships and income from TikTok.
This example is at the more extreme margin of a phenomenon known as “sharenting,” the act of parents sharing information about their children on social media. The term encompasses a wide range of activity, from posting a casual photo to detailing the child’s personal information. The quickly evolving nature of social media trends has resulted in a lagging response by lawmakers to address current and potential legal concerns surrounding sharenting. A discourse is developing around the privacy of children whose parents “sharent” as the public becomes more aware of dangers such as identity theft, data harvesting, and emotional harms to children from the public exposure of their personal information and private moments. A parent who generates income from sharenting faces a particular dilemma—the methods for deriving income from social media create an incentive for family-centric accounts to post a large volume of content, including information about their children, while the children stand to incur more risk and harm with increased exposure.
In the ever-changing online landscape, difficulty lies in determining how to guide parents toward making informed decisions when posting about their children and how to sanction parents that go outside the parameters of acceptable practice. Given the common law tradition in the United States of familial autonomy and broad discretion for parents to make decisions for their children, courts are generally unwilling to intrude upon a parent’s judgment. Additionally, the nature of social media production, which occurs primarily in the home with no outsiders involved, makes the prospect of monitoring sharenting activity onerous.
This Note explores balancing the privacy interests of children on the internet with the historic latitude given to parental rights—which serves important functions of its own—and proposes that fiduciary duty principles, akin to those governing corporations, be used to harmonize the inherent conflict of interest between a parent’s financial incentive to sharent on a monetized social media account and the child’s overall well-being. This Note proposes that children, once they reach the age of majority, be given a right of action for breach of fiduciary duty against their parents for harms incurred through egregious forms of sharenting. This right of action would work alongside expert-driven, extralegal social norms and primarily serve as a deterrent, incentivizing parents to prioritize their children’s online privacy, while also preserving enough latitude in parental decision-making to maintain the level of liberty well established in parental rights jurisprudence.
Part I first explores the evolution of sharenting and its intersection with the development of the influencer industry and social media in general, as well as the risks posed by sharenting, particularly monetized sharenting. Part I then discusses how the Supreme Court has approached parental rights throughout the past century, as well as other government responses to the issue of parents’ versus children’s rights. Part II explores potential remedies to the risks presented by sharenting and analyzes the drawbacks associated with each, before outlining the framework of fiduciary duties and how it can be used to accommodate the parent-child relationship within the sharenting context. Part III proposes granting children, upon reaching the age of majority, a right of action for breach of fiduciary duty against their parents, the scope of which should be defined by social consensus and expert guidance
Emotionally Harmed? It Might Not Matter: An Analysis of \u3ci\u3eCummings v. Premier Rehab Keller\u3c/i\u3e and Its Implications for Title II of the Americans with Disabilities Act of 1990
Get PDFOn April 28, 2022, the U.S. Supreme Court handed down an opinion that shocked the disability rights community. In Cummings v. Premier Rehab Keller, P.L.L.C., the Court ruled that compensatory damages for emotional distress may not be recovered by claimants who sue for disability discrimination under section 504 of the Rehabilitation Act of 1973 (section 504) and section 1557 of the Patient Protection and Affordable Care Act of 2010..
Cummings involved a woman, Jane Cummings, who is both deaf and legally blind. Because of her disabilities, she communicates through American Sign Language (ASL)—her first and primary language—and cannot communicate effectively in writing. On October 27, 2016, Ms. Cummings contacted Premier Rehab Keller (Premier), a physical therapy provider that receives federal funds, for physical therapy treatment for her chronic back pain. Ms. Cummings requested an ASL interpreter for her visit, which Premier refused to provide. Instead, Premier suggested Ms. Cummings provide an ASL interpreter herself, or attempt to communicate through written notes, lip reading, and gesturing—all of which were ineffective for Ms. Cummings because of her visual impairment. She subsequently visited another physical therapy provider but “received unsatisfactory care.” Ms. Cummings again, on two separate occasions, contacted the defendant for an appointment and an interpreter. Premier again denied her request. In response to these denials, Ms. Cummings exercised her federally protected rights against discrimination by suing Premier for the emotional distress caused by her experience at its facility. To her dismay, she was denied recovery of damages for her emotional distress.
Emotional distress damages have been an important form of relief for individuals with disabilities who have suffered discrimination. As Justice Breyer noted in his dissenting opinion in Cummings, “Often, emotional injury is the primary (sometimes the only) harm caused by discrimination.” Further, it is a rather foreseeable consequence of disability discrimination that the individual will be emotionally harmed. The Supreme Court’s holding in Cummings opens the door for the complete annihilation of emotional distress damages—as recent district court and court of appeals decisions have shown—in future claims brought under Title II of the Americans with Disabilities Act of 1990 (Title II). Section 504—the statute directly addressed in Cummings—and Title II are similar statutes in that they both aim to prevent discrimination against people with disabilities. Although the Americans with Disabilities Act (ADA) references the Rehabilitation Act in terms of remedies, these two statutes should be analyzed differently for the purposes of emotional distress damages.
While Cummings’s holding is clear—emotional distress damages are not recoverable under Spending Clause legislation like the Rehabilitation Act because federal fund recipients are not on notice that they would be liable for these types of damages—what is far from certain is the effect it will have on ADA Title II claims. In response to this lack of clarity, this Note takes the position that the Cummings decision should not be read so broadly as to implicate claims under Title II of the ADA because the constitutional basis for this statute and the rights therein differ from that of section 504 of the Rehabilitation Act and Title VI of the Civil Right Act of 1964 (Title VI). Additionally, significant barriers are already present for claimants attempting to recover compensatory damages in Title II ADA cases, and further barriers should not be placed on Title II because it would frustrate the purpose of the statute. As will be explained in further detail below, Title II’s remedial provision references and incorporates the rights and remedies of section 504. In turn, section 504’s remedial provision, which is supposed to provide the remedies available to Title II claimants, references and incorporates the remedies available under Title VI.
Part I of this Note will first provide an overview of Title II of the ADA and section 504 of the Rehabilitation Act, as well as their respective remedial provisions. It will explore the similarities and differences between Title II and section 504, and the considerable limitations that exist for recovering compensatory damages under these statutes. Additionally, it will discuss why any concern about applying emotional distress damages, such as the difficulty of determining the value of a plaintiff’s claim, is unfounded. Next, it will provide background information on the Spending Clause—as section 504 and Title VI of the Civil Rights Act are pieces of Spending Clause legislation—and the Court-developed “on notice” requirement. Lastly, Part I will provide an in-depth exploration of the Cummings decision and how the Court reached its conclusion.
Part II will then discuss pre-Cummings decisions and how courts have treated emotional distress damages under Title II, section 504, and Title VI, as well as Cummings’s implications for Title II claims. It will argue that courts have generally allowed emotional distress damages under section 504 and Title II and should continue to do so. Moreover, it will call attention to the significant errors made by the Cummings Court, such as the disregard of binding precedent and congressional intent. Furthermore, it will go on to analyze why Title II should not be affected by Cummings by pointing out that Title II was enacted by Congress under the Fourteenth Amendment and the Commerce Clause powers, and concludes that the “on notice” requirement cannot apply to Title II. Finally, Part II will highlight specific scholarship that, using similar rationales, argues for abolishing the intentional discrimination standard, which would justify allowing emotional distress damages for Title II violations