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The Influencers and the Influenced: Effects of Social Media Influencers on Enforcement of Trademark Law in the U.S. and Europe
Get PDFReconceptualizing Bankruptcy Education Requirements for Incarcerated Debtors
Get PDFIn the eighteen years since Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), bankruptcy scholars and professionals have launched countless critiques against two of the Act’s more drastic amendments: (1) mandatory pre-filing credit counseling and (2) a mandatory post-filing financial management course. Without completing the pre-filing requirement, one cannot qualify as a debtor under the Code and is thus barred from filing for bankruptcy. Without completing the post-filing requirement, one cannot receive a discharge. Notwithstanding the volume and breadth of valid criticisms, the specific harm of BAPCPA’s education requirements has been largely ignored for one population: incarcerated debtors. People in prison have debt; they enter prison with debt, they incur debt while in prison, and they leave prison with debt, along with a whole slew of financial hurdles to overcome.
As they currently stand, BAPCPA’s education requirements present an additional, empty hurdle that incarcerated debtors must overcome. A hurdle, because incarcerated persons face liberty constraints that make it exceptionally difficult to obtain the required courses. Empty, because the one-size-fits-all courses are ineffective as educational programs. Bankruptcy education is not a hopeless endeavor, but the system is in need of an overhaul.
This Comment proposes a two-pronged solution. First, the education courses should be made more accessible through implementation of in-prison programming. Second, the requirements for program approval should be altered to incorporate the educational theory of differentiation and impose specific guidelines to address the unique needs of incarcerated debtors
The Travesty of The US News Rankings: How Legal Education Should Be Measured
Get PDFToday, law schools and their deans measure success not by the practical accomplishments of their alumni or their faculty; they measure success by numerical rankings accorded by a for-profit publication called U.S. News which – ironically – is no longer in the news business. It is not just the institutions; too many law school faculty measure their value not by the cases they have brought – or the legal theories they have developed to bring cases that perhaps change of the lives of those who need representation – but by the number of law review articles they publish and the number of times those articles have been cited by other academics. There is actually “scholarly work” addressing the citation game and whether article quality is always the basis for citation. If these numerical measurements were only for the purpose of cocktail hour banter, no one would care. Unfortunately, these benchmarks are having a profound – indeed adverse – impact on the training of lawyers and rule of law
The War on Tenure
Get PDFLegislative attacks on faculty tenure are proliferating at an alarming rate. Politicians seeking to abolish or restrict the practice argue that tenure encourages bad behavior and impedes warranted terminations, granting undeserving academics “jobs for life.” But does tenure really facilitate—much less incentivize—such undesirable outcomes? This Article marshals an original and unprecedented dataset of “tenured-terminations” as well as existing social science research to show that the likely answer to both questions is “No.”
Instead, the data suggest that tenure is largely operating as it should: as a form of “just cause” employment where cause for termination is difficult but not impossible to find. University narratives explaining terminations overwhelmingly allege classic bad acts for which termination seems warranted, indicating that tenure is most often breached for good cause. Conversely, most terminations occur at public institutions, undermining political claims that tenure hampers these institutions’ ability to fire bad actors. Further support for the view that tenure is functioning well lies in case law and in previous scholarship, which this Article synthesizes with legal analysis for the first time. Tenure thus offers reasonable job security to workers whose exit options are surprisingly poor relative to their high threshold investments and ongoing financial costs, and it does so without excessively restraining university-employers. As this Article shows, there is little empirical or legal justification for the accelerating war on tenure
Rage against the Machine: Who Is Responsible for Regulating Generative Artificial Intelligence in Domestic and Cross-Border Litigation?
Get PDFIn 2023, ChatGPT—an early form of generative artificial intelligence (AI) capable of creating entirely new content—took the world by storm. The first shock came when ChatGPT demonstrated its ability to pass the U.S. bar exam. Soon thereafter, the world learned that ChatGPT was being used by both lawyers and judges in actual litigation.
Some within the legal community find the use of generative AI in civil and criminal litigation entirely unproblematic. Others find generative AI troubling as a matter of due process and procedural fairness due to its propensity not only to misinterpret legitimate legal authorities but to create fictitious sources through a process known as hallucination. These phenomena suggest that judges and litigants cannot rely on anything contained in a document created by generative AI.
Thus far, the legal response to generative AI has been partial, piecemeal, and panicked. No consensus exists as to what can or should be done, let alone who should be responsible for regulating the use of generative AI by lawyers, litigants, judges, and judicial clerks.
This Article analyzes the narrow issue of which public and private bodies are best-suited to address the problems associated with generative AI in domestic and cross-border litigation. Rather than proposing specific solutions to the issues facing the criminal and civil justice systems, this Article focuses on identifying who can and should act in the short, medium, and long terms. In so doing, this Article provides the legal profession with a content-neutral blueprint for action
The SEC’s SPAC Solution
Get PDFThe SPAC craze has ebbed and flowed over the past few years, creating fortunes and ruining others. The SEC stepped into the mix in 2022 and proposed rules governing SPACs. The proposed rules artfully balance the interests of investor protection while retaining some of the featured characteristics of SPACs as innovative ways to take companies public. This Article details the history of SPACs, including their benefits and risks, and analyzes the SEC’s proposed rules, arguing that the SEC is well within its Congressional authority to regulate SPACs, and that the proposed rules are both well-tailored and necessary
Jackpot! The Gambler’s Chance to Win Big Through RICO: The Definitive Argument of Liability Against the Gambling Industry
Get PDFCompulsive gamblers and their family members have had a long, unsuccessful history of lawsuits against the gambling industry in the United States. With the emergence of online gambling and sports betting, the gambling industry is becoming less and less regulated, preying on compulsive gamblers and nurturing their addiction for profit. Although gambling is diagnosed as a legitimate addiction disorder in medicine, the law has been slow and even reluctant to recognize and grant legal protection to addicted gambler plaintiffs. However, the recent wave of litigation brought against a similar addiction-for-profit industry, the opioid industry, seems to suggest there is an alternative solution for compulsive gambler plaintiffs to seek relief for the gambling industry’s fraudulent and deceptive practices.
This Comment argues that compulsive gamblers should allege that the gambling industry used the United States mail system to defraud them in violation of the civil Racketeer Influenced and Corrupt Organizations Act (RICO). First, this Comment highlights the deceptive practices of the gambling industry and explains why it has continued to profit without any legal accountability thus far. Through the mutually beneficial relationship between the state governments and the casinos, state governments can receive a cut of revenue generated each year and even hold proprietary interests in the casino machines’ software. In return, casinos are able to run their businesses with minimal regulations and legal immunity from self-exclusion programs.
Next, this Comment breaks new ground by arguing that compulsive gamblers can leverage recent RICO litigation against opioid pharmaceutical companies in their own RICO claims. Compulsive gamblers bringing civil RICO claims against gambling companies can make comparisons between the opioid industry’s fraudulent industry-wide tactics and the gambling industry’s practices.
Finally, this Comment highlights the new boom of sports betting after its legalization in 2018. Following the establishment of a new gambling industry, the timing is perfect for compulsive gambler plaintiffs to pursue legal accountability in the courts. Furthermore, the hidden tool of internal discovery documents released to the public will aid compulsive gamblers in fighting for legal recourse and government regulatory action to stop the manipulations of the gambling industry
Response to Professor Dinner
Get PDFI want to thank the Texas A&M Law Review for including my work in this special Issue and express my appreciation to Professor Dinner for her thoughtful comments concerning the evolution of my scholarship. Professor Dinner raises the question of whether that earlier work is relevant to the Dobbs v. Jackson Women’s Health Organization opinion, specifically, and to broader issues of reproductive justice, more generally. For me, Dobbs illustrates—once again—how our American obsession with both individual rights and Supreme Court jurisprudence can distort our sense of the possibilities for achieving social (or reproductive) justice. I see my work as an attempt to argue for a different perspective, one that might have the ability to alter or redirect that obsession. I also believe that the universal vulnerability approach has the potential to expand, and perhaps even refine, debates about reproductive justice
The Market for Corporate Criminals
Get PDFThis Article identifies problems and opportunities at the intersection of mergers and acquisitions (M&A) and corporate crime and compliance. In M&A, criminal successor liability is of particular importance, because it is quantitatively less predictable and qualitatively more threatening to buyers than successor liability in tort or contract. Private successor liability requires a buyer to bear bounded economic costs, which can in turn be reallocated to sellers via the contracting process. Criminal successor liability, however, threatens a buyer with non-indemnifiable and potentially ruinous punishment for another firm’s wrongful acts.
This threat may inhibit the marketability of businesses that have criminal exposure, creating social cost in the form of inefficient allocations of corporate control. Such a result would be unfortunate because M&A could instead be a lever for promoting compliance. Yet criminal successor liability undermines this possibility and, in turn, the public’s interest in compliance. To countervail these problems, this Article proposes new prosecutorial policies that, through better-targeted sanctions and compliance-enhancing mergers, would promote M&A markets, deter corporate crime, and foster corporate reform
A Settlement In Crisis: How In Re Opioid Litigation Fails To Put People Before Corporations
Get PDFSince 1999, 932,000 people in the United States have died from a drug overdose. In 2021 alone over 100,000 people died from a drug overdose. Seventy-eight percent of those overdoses involved opioids. As the opioid epidemic has torn families apart and decimated American communities, the natural response is to find someone to blame. State and local governments, Native-American tribes, labor unions, insurance companies, hospitals, and individuals have all pointed the finger at the same culprits: opioid manufacturers and distributors.
The result—over 3,000 state and local governments alongside Native American tribes joined In Re Opiate Litigation, a multidistrict litigation, alleging “improper marketing of and inappropriate distribution of various prescription opiate medications into cities, states and towns across the country.” On February 25, 2022, five years after these actions were first centralized in the Northern District of Ohio, the “Big Three” distributors (“the Distributors”)—McKesson, AmerisourceBergen, and Cardinal Health—finalized a $21 billion settlement for their role in the opioid crisis. This perspective analyzes the two main provisions of the opioid settlement—the abatement fund and Clearinghouse provisions—and compares them to equivalent provisions in the Tobacco Master Settlement Agreement (“tobacco settlement”). This juxtaposition highlights that while the opioid Global Settlement Agreement (“opioid settlement”) took a cue from the tobacco settlement agreement’s ineffective abatement fund provisions, the opioid settlement failed to mirror the biggest strength of the Tobacco Master Settlement Agreement: strong, robust transparency provisions