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A \u3cem\u3eNew\u3c/em\u3e Equal Protection and Due Process Clause: Pushing Back on the Eleventh Circuit’s Error in \u3cem\u3eCorbitt\u3c/em\u3e
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Blunting the “Tools at Hand”: Recent Developments in Delaware Books-and-Records Demand Law
Full text linkIn recent years, and despite their heeding the guidance of Delaware courts, stockholders’ use of the statutory books-and-records investigation mechanism under Delaware Code Title 8, Section 220 (“Section 220”) has been much maligned, with commentators blaming Section 220 actions for straining judicial resources and causing companies unnecessary costs and burdens. Moreover, Delaware’s legislature and courts have taken steps to curb stockholders’ inspection rights, blunting a crucial tool needed to develop allegations in meritorious cases so that stockholders can bring cases that survive motions to dismiss and continue into plenary discovery.
Instead of blindly accepting a narrative regarding a Section 220 crisis, this Article looks at the court’s docket and concludes that the vast majority of Section 220 petitions do not require judges to render decisions on the merits. Instead, most of these actions are voluntarily dismissed, meaning that they result in little to no substantive burden on the judiciary.
This Article also analyzes the supposed legislative and judicial “fixes” to Section 220. With respect to the recent, hurried amendments to Section 220, this Article observes that the new statute contains many ambiguities that likely will result in increased Section 220 litigation and its attendant burdens on the court and parties. Likewise, with respect to recent Section 220 case law, this Article predicts that the Delaware Supreme Court’s adoption of a novel aspect of the relevant standard will result in more litigation. In other words, the so-called solutions to an unsubstantiated problem likely—and perversely—will lead to an exacerbation of that very problem in the form of increased strains on the court and costs and burdens for Delaware companies
The Mic Drop: The Urgent Call for SCOTUS to Settle the Discord on Right of Publicity Preemption and the Split that Never Was
Full text linkThe Roberts Court and . . . 50 Cent? Surely, no one predicted this duo, but sooner rather than later, it may be reflected in casebooks across the nation. In 2020, the Second Circuit joined what has been referred to as a growing circuit split over the tension between state law right of publicity claims and federal copyright preemption. Aligning with the Eighth and Ninth Circuits, the Second Circuit held that a state law right of publicity claim was preempted. Conversely, the Third, Fifth, and Seventh Circuits have held that copyright law does not preempt state law right of publicity claims.
This Note examines the diverging precedents shaping this discourse and the resulting tension as courts attempt to balance an individual’s right to control the use of their identity, likeness, and persona under state law while giving effect to the supremacy of federal law. Through an examination of the precedent set by either side of the split, as well as the history and purpose of federal copyright law and state law right of publicity, this Note will unravel the complexities of intellectual property and explore why the alleged circuit split may, in fact, be reconciled.
It will highlight how the Second Circuit’s decision sets a precedent inconsistent with either side of the coined circuit split. The Second Circuit’s ambiguous decision carries significant negative implications for the vibrant and ever-evolving entertainment industry. This Note contributes to the ongoing dialogue by addressing the need for a clear, uniform framework for the circuit courts and explaining why the Second Circuit got it wrong. Lastly, it will recommend how the United States Supreme Court should resolve this issue, in this ultimate rap battle
Silent Shores: The ASEAN Human Rights Response to Refugee Protections
Full text linkEstablished on August 8, 1967, the Association of Southeast Asian Nations (“ASEAN”) emerged as the first intergovernmental organization dedicated to promoting peace, security, and regional unity in Southeast Asia. In 2009, ASEAN affirmed its commitment to human rights by founding the ASEAN Intergovernmental Commission on Human Rights (“AICHR”), the first regional human rights system in Asia. This note offers a critical evaluation of the ASEAN human rights system and its response to refugee rights, recognition, and protections in Southeast Asia. It begins by assessing the historical foundation that has shaped ASEAN’s contemporary constraints. Building on this historical analysis, the focus shifts to an in-depth case study on the Rohingya refugee crisis, a revealing display of ASEAN’s deficiencies in addressing urgent, regional humanitarian concerns. The discussion then expands to a comparative analysis of ASEAN in relation to the United Nations, European, Inter-American, and African human rights systems. Through a close exploration of the diverse international and regional frameworks addressing refugee issues worldwide, this note culminates in offering structural and substantive recommendations to strengthen refugee rights and protections under the ASEAN system
Pretrial Decision-Making in Brazil under Inter-American Human Rights Law
Full text linkIn recent decades, pretrial detention has been a key contributor to Brazil’s mass incarceration. This is true, despite domestic and international norms limiting pretrial detention to exceptional circumstances and mounting evidence linking it to worse outcomes for arrestees in their criminal proceedings and post-release life prospects. As a longitudinal multivariate pretrial research in Brazil, this Article investigates the key mechanisms and factors that explain pretrial detention in relation to inter-American human rights standards. This Article conducts a quantitative case study of the first one hundred days of detention for all 2,158 non-confidential flagrant arrests in the first eight months of 2016 reviewed by the state courts of Campo Grande, the capital city of the midwestern state of Mato Grosso do Sul. The findings offer a grim picture of a non-exceptional use of pretrial detention, mostly through orders issued by bail hearing judges denying release based on public order rationales (incapacitation and anticipated punishment). Additionally, these findings show consistently high judge-specific rates of denial of release. Reasons for the high number of pretrial detention also include outright illegal denials of release, the long duration of orders denying release, and instances where denial of release is disproportionate to a case’s ultimate outcome. Release by bail was found to be an insignificant pathway to pretrial detention. The increased severity of an arrestee’s offense and adult and juvenile records revealed a strong link to a worse pretrial status. The magnitude of these effects, combined with evidence that judges tend to rely on the latter factors to assess public order grounds for denial of release, reinforces concerns over abusive detention orders. Lastly, this Article makes proposals that target the Brazilian pretrial regulation, the culture of key judicial actors, and the structure underlying pretrial decision-making
