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Loose Canons: The Supreme Court\u27s New Interpretive Methodology
Get PDFJust over fifty years ago, Congress enacted the Clean Water Act (“CWA”) to address burning rivers and bacteria infested waterways that plagued the United States. The objective of the Act was to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The judicial branch is responsible for reviewing and interpreting the law, and through such review, the United States Supreme Court has been tasked with interpreting the CWA more than any piece of environmental legislation. In Sackett v. EPA, it did so using a new interpretive approach: canonism
Top Ten Ways to Improve Your Mediation Skills
No full textThis article uses Real Practice Systems (RPS) theory to identify things that mediators can do to improve their mediation skills. This begins by mediators recognizing that they have a complex mediation practice system if they mediate regularly. The article includes links to a short video and articles to help mediators understand their unique systems. Using these insights, mediators can complete a self-assessment questionnaire and take advantage of the RPS Menu of Mediation Checklists to tailor their own checklists to fit their practices. Mediators can continuously improve by participating in ongoing educational practice groups
Incorporating Real-World Legal Practice Into Law School Curricula
No full textThis annotated bibliography was prepared for the program, “Pracademically Speaking: Incorporating Real-World Legal Practice Into the Curriculum,” at the 2024 Annual Conference of the ABA Section of Dispute Resolution. It includes relevant entries from the Real Practice Systems Project Annotated Bibliography.This includes three sections, identifying: (1) problems with legal education and licensing, (2) resources for law schools and faculty, and (3) resources for law students. It particularly focuses on teaching skills for helping clients, which is critically important because practitioners often fail to recognize and respect clients’ perspectives and interests. Teaching students to work well with clients – and counterparts, among others – can “plant a seed” that may grow when graduates are in practice. This may help them resist some foibles in legal practice.Most of the entries are short blog posts and articles, though this also includes longer law review articles. There are links for the entries, so readers can access them with only one or two clicks
Helping You Do the Best Mediation You Can
No full textThis article is Part 2 of a two-part series presenting action research about factors affecting mediators’ individual practice systems and how they can improve their systems. Mediators’ systems grow out of their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and subjects in their cases. From their mediation experiences, they develop categories of cases, parties, and behavior patterns, and they design routine procedures and strategies for dealing with recurring challenges before, during, and after their mediation sessions.Part 1 describes a study of mediators at educational programs to help them learn why they developed their individual practice systems and to encourage them to improve them. The study supports the premises of “real practice systems” theory. Many attendees said that the programs helped them learn about their own practice systems and inspired them to continue developing them.Based on the findings in Part 1, this article suggests a program for mediators to understand and improve their practice systems, individually and in groups. It includes links to a 20-minute video, practical articles, a self-assessment worksheet, and a menu of checklists for mediators to refine their systems. It provides suggestions for educational practice groups where members help each other grapple with challenging cases. This article also includes suggestions for sponsors of educational programs, faculty, and trainers
Modern Mediation Practice in American Legal Cases
No full textThis article provides excerpts of It\u27s Time to Make Important Upgrades to Our Mediation Curriculum. It notes significant changes in mediation practice in the past five decades and highlights the nature of modern mediation practice in American legal cases. It suggests that law school faculty upgrade of our mediation instruction to reflect the realities of modern practice
The Policy and Politics of Alternative Minimum Taxes
Get PDFThis paper contributes to a literature offering qualified justifications for alternative minimum tax (AMT) structures. We conclude that there is a narrow case for justifying AMTs even from the social planner perspective and that the proposed Billionaire’s Minimum Income Tax satisfies that narrow case. Next, incorporating governance collective action problems and electoral political constraints, we conclude that these considerations support a broader case for justifying AMTs that potentially also supports both preference-disallowance AMTs and the new corporate alternative minimum tax enacted in 2022
Exploring Key Antitrust Implications of Conference Consolidation in College Football
Get PDFThis paper explores a future in which two “super conferences” dominate college football. Considering the erosion of the PAC 12 Conference and the looming threats to the Atlantic Coast Conference against the skyrocketing media rights revenues of the Big Ten Conference and the Southeastern Conference (“Power Two”), thought leaders across college athletics anticipate that future industry changes will be characterized by a continued consolidation of valuable college football brands into fewer high major conferences than we see today. At the same time, the frequency and public sentiment toward legal attacks on student-athlete compensation restrictions are now such that major college football student-athletes are soon likely to gain access to greater compensation, through employment, collective bargaining, revenue-sharing, or otherwise. As college football becomes captured by the Power Two, there will be a greater incentive for the two rival conferences to work together to maximize the revenues associated with their media rights agreements and minimize the expenses associated with student-athlete compensation. This article argues that antitrust concerns related to media rights agreements are more salient than those related to student-athlete compensation, because courts will be more likely to find that the Power Two controls the relevant product market with respect to high major college football broadcasts than with respect to elite football student-athlete talent. The distinction is grounded in the presence or absence of a reasonable substitute for Power Two products in the context of different consumer groups. Regardless of the legal viability, this article also argues that public perception is such that conferences should avoid using their authority to cap student-athlete benefits. Instead, each institution should decide to compensate its student-athletes at fair, but fiscally responsible, levels that will sustain the college athletics framework
Ombuds Programs: How Alternative Dispute Resolution Improves the Lives of Native Long-Term Care Residents
Get PDFMany Americans will spend at least some time in a long-term care facility. During their stay, every resident should receive competent care and maintain the highest possible quality of life. Long-term care ombuds programs exist to help achieve these goals. Long-term care ombuds (“LTCOs”) advocate for individuals living in long-term care facilities and for improvements to the long-term care system. Tribal long-term care ombuds are a subset of LTCOs who connect with and advocate for Native residents living in long-term care facilities. LTCOs help facilitate dispute resolution between residents, facilities, and family members, and work to improve resident care. The success of LTCO programs exemplifies how alternative dispute resolution can and should be utilized in the long-term care setting to promote resident health, ensure culturally competent care, and improve resident quality of life
Filling the Enforcement Gap: Alternative Dispute Resolution as an Approach to Solving Copyright Disputes for AI-Generated Content
Get PDFOn August 12, 2019, the United States Copyright Office (“the Copyright Office”) sent Stephen Thaler a rejection letter stating it would not issue him federal copyright protection for artwork generated by a computer program he owned. After countless appeals to the Copyright Office and the Federal District Court under various legal theories, one thing was made clear: The U.S. Copyright system would not protect works created by non-human authors. This principle presents a problem. Artificial intelligence (“AI”) is a rapidly developing tool in business and a rapidly developing issue in the law. Courts have routinely held that to be copyrightable, works must be authored by humans. The Third Circuit Court of Appeals interpreted this principle in Thaler v. Perlmutter to mean works created purely by AI are not eligible to be copyrighted by the work’s human facilitator. However, courts’ application of the Copyright Act is problematic because AI-generated blog content, computer code, artwork, and other content are valuable to the humans who facilitate its creation. This application creates a gap in the law between protected human-authored and unprotected AI-authored content, even though there is industry benefit to protecting both content types
Investigating “Good Moral Character” for Liquor License Applications
Get PDFSince the repeal of prohibition, nearly every state has adopted a morality test on whether a person is fit to hold a liquor license. Missouri is no exception, adopting good moral character through § 311.060, RSMo in 1939. Eighty-three years later, on August 30, 2022, the Missouri Division of Alcohol and Tobacco Control codified a definition of “good moral character” limiting the inquiry to “honesty, fairness, and respect for the rights of others and for the laws of the state and nation.” This definition appears to nod to both Missouri’s Administrative Hearing Commission as well as other regulated industries’ coded rules. Nebraska adopts a similar, but negative, standard using the phrase “not of good character” as an investigation determining whether the applicant has a lack of good faith or honesty of pur-pose. Despite no guidance from the 21st Amendment, states have come to similar conclusions about what “good moral character” actually means. Regardless of broad language like “honesty,” “respect,” “fairness,” and “good faith,” the outcomes are surprisingly consistent nationwide and vary only on the fringes