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Difficult and Novel Legal Issues Explored by the Students Who Represented the University of Bucharest in the 2023-2024 Edition of the Willem Vis Moot Court Competition
No full textThis article provides an overview of the Willem Vis International Commercial Arbitration Moot in general and of the novel and difficult legal issues raised by the 2023-2024 moot Problem. On the merits, the main legal issues involved liability for misdirected payments as a result of cyberattacks and the existence of an obligation of information and/or good faith in the performance of a contract between commercial parties to a contract governed by the CISG. The procedural issues concerned the mechanisms for adding a new claim after the signature of the Terms of Reference and/or for consolidating two arbitrations, under the ICC Rules, in the presence of several arbitration agreements, comprising a clause included in a framework agreement and clauses included in specific purchase orders under the umbrella of that framework agreement
The Electoral College
No full textThursday, September 26, 2024 | 12:30 PM | Eck Hall of Law, Room 1130
The Federalist Society invites you to a lecture by Mr. Michael Maibach on the Electoral College. Mr. Maibach is a Distinguished Fellow at Save Our States and gives talks nationwide in defense of the Founders’ Federalism and the Electoral College design. The lecture will take place in Eck 1130 on Thursday, 9/26 at 12:30 PM, and lunch will be provided!
Sponsor: Notre Dame Law School Federalist Societyhttps://scholarship.law.nd.edu/ndls_posters/1898/thumbnail.jp
Child-Taking
No full textA ruling group at times takes certain children out of their community and then tries to remake them in its image. It tries to rid the child of undesired differences, in ethnicity or nationality, religion or politics, race or ancestry, culture or class. There are too many examples: the colonialist residential schools that forced settler cultures on Indigenous children; the military juntas that kidnapped dissidents’ children; and today’s reports of abductions amid crises like that in Syria. Too often nothing is done, and the children are lost. But that may be changing, as the International Criminal Court (“ICC”) is seeking to arrest Russian President Vladimir Putin and Commissioner for Children’s Rights Maria Lvova-Belova for the war crimes of unlawfully deporting or transferring children from Ukraine to Russia.
This article examines the criminal phenomenon that it names “child-taking.” By its definition, the crime occurs when a state or similar powerful entity, first, takes a child, and second, endeavors, whether successfully or not, to alter, erase, or remake the child’s identity. Using the ICC case as a springboard, this article relies on historical and legal events to produce an original account of child-taking. Newly available trial transcripts help bring to life a bereft mother and five teenaged survivors, plus the lone woman defendant, who testified at a little-known child-kidnapping trial before a postwar Nuremberg tribunal. Their stories, viewed in the context of the evolution of international child law, inform this article’s definition. These sources further reveal child-taking to be what the law calls a matter of international concern. At its most serious, child-taking may constitute genocide or another crime within the ICC’s jurisdiction. Yet even if circumstances preclude punishment in that permanent criminal court, child-taking remains a grave offense warranting prosecution or other forms of local and global transitional justice. This is as true for the Indigenous children of residential schools in North America, Australia, and elsewhere, and for children in Syria and many other places in the world, as it is for the children of Ukraine
Investment Treaty Arbitration Caught in The Public-Private Law Divide
No full textThe ongoing reform of investor-state dispute settlement (“ISDS”) underlines the pertinence of an old question that has received various and conflicting answers: Is investment arbitration a public or private method of dispute settlement? A key criticism leveled at investment treaty arbitration is that public interest disputes are decided by a system of private justice. This article critically reviews the dominant interpretations of investment treaty arbitration as public, private, or hybrid. It argues that the subjective nature of each interpretation means that none of them can be definitively adopted. Rather, the real arguments in favor of or against arbitration lie beyond the traditional debate. The article shows that investment arbitration displays important commonalities with international court systems, with its presumed unique features—including party autonomy—appearing a little less unique on closer inspection. Ultimately, a system is what states make it, irrespective of whether its particular features are described as public or private
Make America Fake Again?: Banning Deepfakes of Federal Candidates in Political Advertisements Under the First Amendment
No full textIn recent years, artificial intelligence (AI) technology has developed rapidly. Accompanying this advancement in sophistication and accessibility are various societal benefits and risks. For example, political campaigns and political action committees have begun to use AI in advertisements to generate deepfakes of opposing candidates to influence voters. Deepfakes of political candidates interfere with voters’ ability to discern falsity from reality and make informed decisions at the ballot box. As a result, these deepfakes pose a threat to the integrity of elections and the existence of democracy. Despite the dangers of deepfakes, regulating false political speech raises significant First Amendment questions.
This Note considers whether the Protect Elections from Deceptive AI Act, a proposed federal ban of AI-generated deepfakes portraying federal candidates in political advertisements, is constitutional. This Note concludes that the bill is constitutional under the First Amendment and that less speech restrictive alternatives fail to address the risks of deepfakes. Finally, this Note suggests revisions to narrow the bill’s application and ensure its apolitical enforcement
Bridging the False Certification Gap: Why “Resulting from” in the 2010 AKS Amendment Requires But-For Causation
No full textBefore 2010, violators of the Anti-Kickback Statute (AKS) could avoid False Claims Act (FCA) liability if claims for items or services borne of their kickback scheme were submitted to federal healthcare programs by a third party. In 2010, as part of the Affordable Care Act (ACA), Congress attempted to close this loophole in the FCA by amending the AKS. Under the amendment’s terms, claims submitted to federal healthcare programs for items or services “resulting from” an AKS scheme are false for the purposes of establishing FCA liability, regardless of who submitted the claims.
Although the amendment widened the FCA liability net, its language also raised a new question as courts grappled with what “resulting from” requires plaintiffs to prove in AKS-based FCA claims. This Note examines how federal circuit courts have analyzed the amendment’s “resulting from” causation standard. The U.S. Court of Appeals for the Third Circuit imposed a relaxed standard that requires plaintiffs to establish a connection that is less stringent than but-for causation, whereas the U.S. Courts of Appeals for the Sixth and Eighth Circuits concluded that a but-for standard is required by the amendment’s language. This Note argues that a but-for causation standard, like the one adopted by the Sixth and Eighth Circuits, is the proper standard considering the amendment’s plain language. Ultimately, this Note argues a but-for standard is likely to be adopted by the U.S. Supreme Court should the Court grant certiorari on the question of what “resulting from” in the 2010 AKS amendment requires
California
No full textIn general, California may be the most hospitable state to public sector collective bargaining. The basic rules are far more favorable to placing matters within the scope of mandatory subjects than any other state. There are, however, serious differences in how police and non-police bargaining is treated. Choice of Forum for Police. Under California’s public sector collective bargaining law, most unions and employers must resolve their conflicts about the scope of bargaining through California’s Public Employment Relations Board (PERB). For police only, however, the parties can also bring the disputes to court. Los Angeles Labor Relations. The scope of bargaining for employees of the City of Los Angeles is governed by a unique city ordinance and enforcement agency. This leads to diffusion of rules, difficulty in finding the decisions, and potential conflicts with state law. Interest Arbitration for Police. In 2000, the California legislature enacted a statute requiring interest arbitration for the resolution of any impasses in police and fire departments. In 2003 that statute was declared unconstitutional. Nevertheless, many charter cities continue to require interest arbitration. LOEBOR. California has a robust Law Enforcement Officers Bill of Rights statute providing protections in discipline investigations; these matters that are left to bargaining for every other type of employee. Oversight Common Law Different for Police. The PERB decisions on the implementation of outside oversight are more favorable to bargaining in the police context than in the non-police context. In addition, PERB is more accommodating of police bargaining on oversight than the California Courts. Transfer of Work Common Law is Different for Police. PERB’s decisions in this area are slightly more favorable to police bargaining than non-police
