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\u3cem\u3eSackett v. EPA\u3c/em\u3e and the Future of Wetland Protections
Get PDFThis Note will analyze prior CWA [Clean Water Act] jurisprudence to formulate a test that remains steadfast to Congress’s purpose in originally including “adjacent” wetlands and acknowledges the scientific understanding of wetlands’ relation to and impact on waters. Part I will provide an overview of the CWA legislation and its application in courts. Part II will specifically analyze the Sackett v. EPA decision in order to find a balance between the “significant nexus” and “continuous surface connection” tests. Part III will address criticisms surrounding the overreach of the CWA. Part IV will conversely address criticism concerning the Court’s decision to constrain the outer reaches of the CWA. Finally, Part V will set forth a new test, developed from Justice Kavanaugh’s concurrence in Sackett, that the Supreme Court should apply when analyzing whether any given wetland will be covered by the CWA.
This abstract has been taken from the author\u27s introduction
Defamation or Impersonation? Working Towards a Legislative Remedy for Deepfake Election Misinformation
Get PDFThis Note explores how election deepfakes fit into the broader frameworks of defamation and impersonation law and posits that Congress and the judiciary may remedy the threat by borrowing from both areas of law. It builds on existing scholarship that has addressed the issue of deepfakes in both the electoral context as well as the general context. Furthermore, it expands upon scholars’ prior identification of these areas of law as potential avenues for regulating election deepfakes.11 It posits that solutions to election deepfakes offered by Professors Rebecca Green and Rick Hasen could go even further while still surviving constitutional scrutiny, diverging from their proposals by suggesting that disclosure and timing-related exemptions from liability are not constitutionally necessary. Specifically, it calls for the passage of a federal law marrying defamation and impersonation law by establishing a criminal offense when a speaker “creates and publishes, with actual malice, doctored audio or visual content depicting a candidate for office, in order to deceive voters, and thereby gain electoral advantage relating to the target of the communication.”
This abstract has been taken from the author\u27s introduction
Constitution Day Lecture with Professor Pam Karlan
No full texthttps://scholarship.law.wm.edu/ibrlposters/1030/thumbnail.jp
Brigham-Kanner Property Rights Journal, Volume 13
Get PDFProperty and Propriety (or A Well-Ordered Society)
October 26-27, 2023
Panel 1: Property and Propriety (or A Well-Ordered Society): A Tribute to Gregory S. Alexander
Panel 2: Equity\u27s Role in Defining Property Rights
Panel 3: Roundtable: Emerging Issues
Panel 4: The Restatement\u27s Impact on Property Rights
Panel 5: The Scalability of Property Rights
Notehttps://scholarship.law.wm.edu/propertyjournal/1013/thumbnail.jp
Learning to Read Like an Eighteenth-Century Lawyer: The Historical Critique of Originalism Revisited
Get PDFHistorians have been among the fiercest critics of originalism. Among the many virtues of Jack Balkin’s book, Memory and Authority, is the deft way he analyzes and dismantles these efforts to insulate originalism from historical critique. In a short essay, it would be impossible to fully acknowledge the sophistication of Balkin’s analysis. Instead, I would like to build on his impressive achievement by pointing out additional problems with the originalist response to historical critique.
This abstract has been taken from the author\u27s opening paragraph
Rights and Redress for Transgender Survivors of Prison Rape: The Failures of the Prison Rape Elimination Act
Get PDFThis Note will argue that PREA [Prison Rape Elimination Act] provides meager protection and insufficient relief to transgender individuals who have been victims of sexual violence while incarcerated and that the existing mechanisms for relief are insufficient. Because PREA contains no private cause of action to allow survivors of rape to sue for violations of PREA, transgender rape survivors’ pain remains unredressed. To address this problem, this Note puts forth a combination of solutions to remove barriers to redress for transgender survivors of prison rape, including amending PREA to include a private cause of action and repealing provisions of the Prison Litigation Reform Act (PLRA) that unduly encumber prisoners’ legitimate legal claims. Part I outlines the realities of being transgender in prison and briefly introduces the contours of PREA. It also assesses the ways in which survivors can currently access justice and explains why they are insufficient. Part II examines the reasons PREA lacks a private cause of action and recommends a combination of solutions to fix this deficiency, including specific components to a private cause of action and addressing the ways in which PLRA hinders prisoner lawsuits. Finally, Part III addresses some likely counterarguments, which include the practical impossibility of amending a federal statute in today’s congressional climate and the possibility that an amendment to PREA will disturb existing laws designed to control excessive prisoner litigation.
This abstract has been taken from the author\u27s introduction
A Transformative Standard for Transformative Times: Protecting Student-Athlete Speech in the Era of Name, Image, and Likeness
Get PDFAs an entirely new and developing area of the law, NIL [name, image, and likeness] further complicates the existing struggles in determining how NCAA student-athletes should be viewed by the law in the employment context. Such a determination is crucial to understanding the extent of student-athletes’ First Amendment protections. Even as NIL drives the law further in the direction of student-athletes becoming employees of the university, student-athletes are still undeniably enrolled students of the university, and scholastic achievement is still a primary consideration for college athletics.
This unique relationship between student-athletes and their institutions necessitates an entirely new standard for First Amendment analysis. This Note will craft that standard and create a workable framework to protect student-athletes from broad, discretionary restrictions on the expressive content of their NIL activity. Part I will provide relevant background on where the NIL landscape currently stands, the trends in current and prospective legislation, and the reality that student-athletes are destined to become public employees under the law. In consideration of this reality, Part II will synthesize existing doctrine for student speech and public employee speech to create a new “Student-Athlete Standard” for analyzing the First Amendment protections that should be afforded to NIL deals. This Standard will afford student-athletes the First Amendment protections they deserve as they inevitably approach public employee status. In turn, Part III will apply this Standard to existing NIL policies, as well as proposed federal policies, to both illustrate the constitutional concerns of NIL law as it stands and conceptualize alterations to potentially avoid these concerns.
This abstract has been taken from the author\u27s introduction
Liu and the New SEC Disgorgement Statute
Get PDFIn early 2021, Congress enacted a new statute for enforcement cases brought by the Securities and Exchange Commission. The new statute resolved important questions about the availability of disgorgement as a remedy in SEC enforcement cases, but it created other questions. The purpose of this Article is to discuss one interpretive issue that is already arising in the federal courts of appeals.
That interpretive issue is whether “disgorgement” as authorized by the new statute must abide by equitable limitations the Supreme Court imposed on disgorgement relief in SEC cases in Liu v. SEC, 140 S. Ct. 1936 (2020). The statute was passed about six months after the Liu decision, which had found that disgorgement in an SEC enforcement case is an equitable remedy when it complies with three longstanding principles of equity: a defendant\u27s gains should be returned to wronged investors for their benefit; the disgorgement order should not extend to several wrongdoers under a joint-and-several liability theory; and disgorgement should not exceed the net profits from wrongdoing after deducting legitimate expenses. Does the new statute incorporate the Liu decision and equitable principles?
Answering that question is not straightforward. A careful review of the text, context, and legislative history of the new statute does not provide a persuasive basis to conclude that the new statute is meant to adopt equitable principles and define disgorgement the way Liu did. Neither the text of the statute nor materials from Congress commented with approval or disapproval of Liu. Canons of statutory interpretation are largely not helpful either.
A better approach to understanding the new statute is to think separately about the different equitable principles found in Liu and to analyze the statute to reach an appropriate interpretation of each one. The statutory text defining disgorgement as unjust enrichment the defendant “received” supports the application of a strict form of the Liu limitation preventing one defendant from being ordered to disgorge profits a different person received. A part of a 2010 securities enactment provides a solid ground for rejecting the Liu limitation requiring the return of disgorgement amounts to injured investors. Finally, a canon of construction provides a basis for applying the Liu principle limiting an award to net profits from wrongdoing after deducting legitimate expenses