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Establishing an End to \u3cem\u3eLemon\u3c/em\u3e in the Eleventh Circuit
Get PDFOver half a century ago, the Supreme Court decided Lemon v. Kurtzman, the most controversial Establishment Clause case in judicial history. And despite the Lemon test’s constant criticism, the Court has never expressly overruled the decision in its entirety. This continues to be the case even after Kennedy v. Bremerton School District, in which the Court noted Lemon’s abandonment rather than its complete abrogation. As a result, lower federal district courts have been left in limbo regarding whether Lemon is fair game for any of their Establishment Clause determinations and have been inconsistent in using it as continued precedent. This is creating a quagmire of First Amendment decisions through- out the country in an area of law that is already a muddled mess.
Fortunately, this jurisprudential ambiguity no longer exists for those federal district courts in the Eleventh Circuit. Less than a month after the Kennedy decision, the Eleventh Circuit issued the clear guidance that the Supreme Court has perpetually failed to provide by expressly acknowledging the termination of the Lemon test in its jurisdiction in Rojas v. City of Ocala. In doing so, the Eleventh Circuit concurrently refused to accede to the Kennedy majority’s unsubstantiated claim that Lemon’s long abandonment was an uncontroverted part of the Court’s First Amendment jurisprudence. In doing so, the Circuit established a fitting end to the application of Lemon within its geographical jurisdiction while holding the Court accountable for its inaccurate statements about that case.
This Article argues that the Eleventh Circuit’s Rojas approach should become the standard bearer for other circuits’ post-Kennedy determinations on the official termination of Lemon in their jurisdictions. Given the Supreme Court’s continued failure to expressly overrule Lemon in its entirety, it has become incumbent upon the federal circuit courts to officially close this interpretive chapter to alleviate inconsistencies in one of the most divisive areas of constitutional law and to achieve efficiencies within their overwhelmed lower court dockets. As the judicial leader stepping into this void, the Eleventh Circuit has significantly contributed to clarifying a chaotic First Amendment doctrine. Consequently, the Rojas approach will prove to be an invaluable circuit breaker in the Establishment Clause jurisprudential canon
Are We Atoning for Our Past or Creating More Problems: How COVID-19 Legislative Relief Laws Are Shaping the Identities of Indigenous Populations in North America
Get PDFThis student’s note will attempt to answer three questions: 1) How Canadian and American legal precedent affects the modern identity of Indigenous Populations? 2) How COVID-19 legislative relief continues to shape indigenous identities? and 3) Can a comparative study teach legislators about enacting legislation that withstands shifts in political climates
Regulating Best Interest: SEC Confronts the Brave New Markets
Get PDFThis Note comments on how recent developments in securities regulation deal with today’s securities industry challenges. As usual, the law advances much slower than technology. After decades of debate over heightened standards for broker-dealers giving investment advice, the Securities and Exchange Commission (“SEC”) introduced Regulation Best Interest (Reg BI). Our modern market demands that broker-dealers execute quick trades on behalf of their clients as well as provide broader investment advice. The popularity of online trading platforms (“OTPs”) only exacerbated the need for regulatory changes. The theme of this paper surmises how Reg BI responds to the rise of the retail investor’s trading app.
Part II, the Introduction, will provide a brief history of the American brokerage business. This timeline will demonstrate how equities started out as a market only for the wealthy but eventually turned into an exchange where brokers compete for the everyday person’s business.
Part III will then explore the SEC’s issues with current securities providers. Part III(A) discusses the methods that OTPs use to garner clients and bring in revenue. It will discuss how application designers use “gamification” to retain clients and encourage trading. Brokerages use a free-to-play system that encourages more trading through visual, process, and social media components. Part III(B) will explain the payment for order flow (“PFOF”) model. OTPs allow clients to conduct “cost-free” trading on the OTP while still bringing in revenue for the brokerage. The practice of PFOF involves selling retail market order data to market makers. After all, data is the new oil. In contrast to the expansive regulations in the oil and gas industry, however, Reg BI obligations show a more measured approach. Thus, consumers derive significant cost savings from PFOF even when retailers sell their order data to market makers who in turn sell securities to those same consumers. Part III(C) of this Note will provide insights into market interactions from a behavioral finance perspective. Behavioral finance studies show how OTPs subtly influence investor strategy, execution, and long-term goals. Studies show that the accessibility and visual appeal of online brokerage applications affects investor risk tolerance as well as trading patterns. Firms want their customers to use as many of their applications as possible. The implication is that firms want customers to use their digital applications because then they can influence them to use premium features, other firm products, or engage in behavior that adds more value to the brokerage or its other lines of business. These influences can lead to serious consequences for uninformed customers who cannot properly assess the firm’s financial products or services.
After spending time on the technical aspects of OTPs, Part IV will review the history of stockbroker duties. Part IV(A) goes into common law fiduciary duties: stockbrokers maintained an agency relationship through contract. Thereafter, Part IV(B) discusses circumstances that turn a broker into a fiduciary. A popular analysis—the “trust and confidence test”—determines whether a stockbroker has a fiduciary duty to its customer. In addition to the trust and confidence test, courts look at other control factors to determine whether to impose obligations on brokerages. In Part IV(C), this Note will also expound on the historical dichotomy between broker-dealers and financial advisers. Because brokers perform an increasingly enlarged advisory function, one must understand the different standards brokers and advisers are held to. The historical context gives an added justification for Reg BI’s supplemental obligations to their customers.
Part V will opine on the new SEC rule that requires broker-dealers to only recommend financial products that are in their customers’ best interests. Falling under the Securities and Exchange Act of 1934, Reg BI hopes to safeguard investors and standardize the conduct of broker-dealers who also provide financial advice. This Note will discuss the benefits and criticisms of the new regulation. For the most part, Reg BI adds needed reinforcement of securities laws while not overburdening broker-dealers.
Ultimately, Part VI suggests that we should remain cautiously optimistic about such technologies. No doubt, the market should encourage fintech innovations. Consumer access to markets should remain a large priority given today’s economic climate. Still, financial services remain a highly regulated industry because of the need to protect risk-bearing consumer
ChatGPT, Esq.: Recasting Unauthorized Practice of Law in the Era of Generative AI
Get PDFIn March of 2023, OpenAI released GPT-4, an autoregressive language model that uses deep learning to produce text. GPT-4 has unprecedented ability to practice law: drafting briefs and memos, plotting litigation strategy, and providing general legal advice. However, scholars and practitioners have yet to unpack the implications of large language models, such as GPT-4, for long-standing bar association rules on the unauthorized practice of law ( UPL ). The intersection of large language models with UPL raises manifold issues, including those pertaining to important and developing jurisprudence on free speech, antitrust, occupational licensing, and the inherent-powers doctrine. How the intersection is navigated, moreover, is of vital importance in the durative struggle for access to justice, and low-income individuals will be disproportionately impacted.
In this Article, we offer a recommendation that is both attuned to technological advances and avoids the extremes that have characterized the past decades of the UPL debate. Rather than abandon UPL rules, and rather than leave them undisturbed, we propose that they be recast as primarily regulation of entity-type claims. Through this recasting, bar associations can retain their role as the ultimate determiners of lawyer and attorney classifications while allowing nonlawyers, including the AI-powered entities that have emerged in recent years, to provide legal services-save for a narrow and clearly defined subset. Although this recommendation is novel, it is easy to implement, comes with few downsides, and would further the twin UPL aims of competency and ethicality better than traditional UPL enforcement. Legal technology companies would be freed from operating in a legal gray area; states would no longer have to create elaborate UPLavoiding mechanisms, such as Utah\u27s legal sandbox ; consumers-both individuals and companies-would benefit from better and cheaper legal services; and the dismantling of access-to-justice barriers would finally be possible. Moreover, the clouds of free speech and antitrust challenges that are massing above current UPL rules would dissipate, and bar associations would be able to focus on fulfilling their already established UPL-related aims
Approaches to Sea Level Rise and International Law: A Comparative View of Emerging Policy Responses by the African and the Americas Regions
Get PDFThe Replication Crisis and IP Law: A Novel Policy Tool for Open Science
Get PDFIn recent years, the scientific community has faced a considerable problem the replication crisis. Replication is the process of verifying scientific findings by repeating a published study. It is considered a cornerstone of the scientific enterprise, contributing to the credibility of research findings. Over the past two decades, however, replication has become increasingly difficult; in fact, in some disciplines the non-replicability rate is over 50%. A major factor accounting for this is diminished access to research materials required for replication (replication materials). This problem is particularly acute in computational studies, where the code, software documentation, datasets, and other information are often not shared.
In this Article, we address the replication crisis from the perspective of intellectual property (IP) law. Our goal is twofold: first, to investigate the extent to which IP law plays a part in impeding access to replication materials; and second, to explore potential solutions that could minimize this detrimental effect. One branch of IP law that has been identified by scholars as having a potential adverse effect on the ability to conduct replication studies is copyright law. This Article, however, shows that the impact of copyright law is likely minor, whereas other IP regimes patent and trade secret law have a greater impact in this domain. We find that a major reason for scientists to avoid sharing replication materials is the fear that doing so will compromise their ability to secure patent and trade secret protection. As a solution, this Article proposes the Conditional-Access-Agreement (CAA) -a novel policy tool that establishes a private and controlled channel of communication between authors and replicators. Authors would be able to provide access to replication materials on demand, through this channel, for the exclusive purpose of conducting replication studies. The CAA mechanism provides a win-win solution: facilitating access to replication materials without jeopardizing scientists\u27 chances of obtaining IP protectio
Afterword: LatCrit at Twenty-Five and beyond, Part II - Challenges and/as Opportunities: Centering Hybridized Advocacy Projects in Antisubordination Praxis to Connect Campuses and Communities for Material Long-Term Progress
Get PDFAdapting to 4 Degrees C World
Get PDFThe Paris Agreement\u27s goal to hold warming to 1.50-2 0 C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 40 C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 40 C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions
Autonomous Vehicle Regulation & Trust: The Impact of Failures to Comply with Standards
Get PDFThe autonomous vehicle (AV) industry works very hard to create public trust in both AV technology and its developers. Building trust is part of a strategy to permit the industry itself to manage the testing and deployment of AV technology without regulatory interference. This article explains how industry actions to promote trust (both individually and collectively) have created concerns rather than comfort with this emerging technology. The article suggests how the industry might change its current approach to law and regulation from an adversarial posture to a more cooperative one in which a space is created for government regulation consistent with technology development. This article proposes a way forward that involves re-thinking the use of SAE J3016 as part of AV law and regulation, instead taking a new direction based on distinguishing test platforms from production vehicles