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This research note delineates the conflict of hotel rate parity and key clauses of competition laws in both Europe and the U.S. We trace the origin of hotel rate parity to the principle of most favored nation (MFN) in international trade agreements. We show that rate parity challenges two pillars of competition law. Under rate parity agreements, it is travel intermediaries—not hotels—that demand rate parity, which comes down to the dominance of travel intermediaries over small and independent hotels. The courts view MFN status as a hindrance to competition and therefore in violation of competition law. The trend and message in Europe are clear: the clause is most likely to be judged as not complying with EU competition law and its national equivalents. In the U.S. though, a lack of case decisions precludes us from reaching any conclusion about the fate of the MFN clause. [ABSTRACT FROM AUTHOR]

On June 30, 2022, the Iowa Supreme Court, in a 4-3 decision, overruled 18-year-old precedent to find that Iowa's right-to-farm statute, Iowa Code section 657.11, does not violate the Inalienable Rights Clause of the Iowa Constitution, overruling the test set out in Gacke v. Pork Xtra, L.L.C. This decision will have a large impact on Iowa's right-to-farm laws and could potentially lead to the overturning of other right-to-farm cases, specifically Bormann v. Board of Supervisors. This Note examines the history and impacts of CAFOs in Iowa, as well as examining Iowa case law and the constitutional provisions utilized in those cases. It also examines the future of Bormann under the Garrison decision and the Iowa Supreme Court's ideology that precedent does not always matter. This Note proposes that the Iowa Supreme Court should adhere to stare decisis principles. This Note also proposes legislation that the Iowa Legislature should adopt now that Garrison has been decided and CAFOs seem to have free rein. The Iowa Legislature must put policy in place to protect Iowans and their communities. [ABSTRACT FROM AUTHOR]

The article focuses on the expansion of the ministerial exception through originalist deference in interpreting the First Amendment's Religion Clauses.

The impact of foreign investment on the human rights generally has increased and interaction between them has shown to be complex in nowadays. Human rights considerations enter into the discourse of international investment law since increasing number of states are beginning to include references to human rights in their investment treaties and investor-state contracts, in particular for the new generation of investment treaties. Human rights related issues have played a vital role in various contexts of investment proceedings as w ell and whether an investment tribunal can apply to human rights law depends both on the relevant jurisdictional clause and the applicable law. To consider all this issue, the article takes a qualitative approach by examining secondary data, in particular, difference concepts, legal documents and applying case law as well. Moreover, in order to present existing window of opportunity for States, article outlined some findings and recommendations. [ABSTRACT FROM AUTHOR]

Constitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. Scholars advancing the first view contend that the Clause prohibits the government from racially classifying people. But scholars promoting the second view argue that racial classifications are permissible--provided that the government does not engage in racial subjugation. On no issue have these competing perspectives clashed more intensely than affirmative action. Where the anticlassification view deems those policies unconstitutional for exhibiting race consciousness, the antisubordination view finds them permissible because they do not racially subjugate anyone. Conventional antisubordination scholars portray the concept's support for affirmative action as one part of its larger intellectual program that inexorably champions racial egalitarianism. This Article challenges that conventional account by demonstrating that anti-subordination's career has been far more protean, complex, and--above all--strange than scholars typically allow. Some of the most reviled opinions in Supreme Court history were predicated upon antisubordination rhetoric, as that concept has been used both to challenge and to maintain racist regimes. Legal luminaries from across the ideological spectrum, moreover, have often contended that affirmative action marks Black and brown people as substandard. Indeed, it is impossible to understand last Term's decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College without foregrounding antisubordination's multiplicity. That decision introduced "antisubordination" into the U.S. Reports, reframed how affirmative action subjugates racial minorities, and witnessed the Justices talking past each other by wielding the concept in divergent fashions. Grappling with anti-subordination 's complexity remains urgent today because the theory has been exported to an ever-growing, astonishingly diverse array of legal domains. This Article contends neither that antisubordination must be abandoned nor that affirmative action should have been invalidated. To the contrary, it explores arguments designed to shore up antisubordination and to provide alternate grounds for affirmative action's constitutionality. It will no longer do, however, simply to ignore antisubordination's considerable complexity. By tracing the winding, peculiar path of antisubordination, this Article not only recasts Justice Clarence Thomas's much-debated jurisprudence but also clarifies our nation's garbled constitutional discourse. [ABSTRACT FROM AUTHOR]

In The "Free White Person" Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government's attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a "super-statute." While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era as a "critical juncture" when the U.S. government could have taken a counterfactual path that was less racist. The counterfactual path would have required legal interpretations of Constitutional equality and statutory nondiscrimination that remained cognizant of racial implications of purportedly race neutral laws, which was briefly captured in language rights and voting rights statutes in the late 1960s to 1970s. But the egalitarian interpretations unraveled due to contradictions within the liberal national ideology that permitted a post-racial pragmatism about colorblindness that stalled the political incorporation of some non-White immigrants--Asian, Latino/a, Arab--due to their racialization as perpetual foreigners (racialized foreigners). [ABSTRACT FROM AUTHOR]

A body of legal scholarship persuasively contends that some judicial decisions are so important that they should be considered part of the canon of constitutional law including, unquestionably, Marbury v. Madison and Brown v. Board of Education. Some decisions, while blunders, were nevertheless profoundly influential in undermining justice and the public good. Scholars call cases such as Dred Scott v. Sandford and Plessy v. Ferguson the anticanon. Recognizing the contemporary centrality of statutes, Professors William Eskridge and John Ferejohn propose that certain federal laws should be recognized as part of legal canon because of their extraordinary influence and duration. These so-called "super-statutes" include the Sherman Antitrust Act of 1890 and the Civil Rights Act of 1964. This Article proposes that the Naturalization Act of 1790 is a super-statute whose impact is not fully appreciated. Responding to George Washington's first Address to Congress and reflecting a complaint leveled against King George III in the Declaration of Independence, in the 1790 Act, the First Congress limited naturalization to "any alien being a free white person." The racial restriction, as modified, would remain in effect until 1952, inducing White immigration and discouraging that of others. Through the mechanism of the "declaration of intent to naturalize," added in a 1795 amendment, Congress made it possible for state and federal law to grant political and economic rights to White immigrants immediately upon arrival while ensuring that non-White immigrants could never enjoy them. The Naturalization Act of 1790 helps explain why, for example, as late as 1960, more than 99 percent of Americans were White or Black. It also resolves the question of the racial attitudes of the Framers--whether or not they supported slavery, a majority of them unambiguously conceived of the United States as a White country. Notwithstanding its racism, the Naturalization Act of 1790 has earned recognition as among the most effective pieces of legislation ever enacted by Congress. It deserves a place of dishonor alongside segregation laws, the Indian Removal Act, prohibitions on interracial marriage, and other laws establishing White supremacy. [ABSTRACT FROM AUTHOR]

This article argues that the Charter's notwithstanding clause makes exception to judicial review. In the counter-factual world where laws "shall operate" as they "would have but for" Charter provisions, courts may not question the consistency of laws with selected Charter rights. Courts must legally treat such laws as though selected Charter provisions do not exist to be applied to them; but of course, they continue to exist. Because the provisions do exist, judgements about their consistency with statutes invoking section 33 are left to the political process. This reading is grounded in the subjunctive mood (conditionnel passé) of the text. It aligns with Alan Blakeney's and Peter Lougheed's historical purpose for the clause in 1982: to allow legislated rights as trumps against judicial review. This is justifiable as a matter of political morality because it offers a standard for holding legislators accountable for using the clause to protect rather than trump rights. [ABSTRACT FROM AUTHOR]

Copyright of Zeitschrift für Bankrecht und Bankwirtschaft is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The article focuses on the application of Material Adverse Effect (MAE) clauses in merger agreements, specifically analyzing the LVMH-Tiffany dispute in the context of Delaware court precedents. Topics include an overview of MAE clauses and their contractual carve-outs, the Delaware court's evolution toward a seller-friendly MAE standard, and a hypothetical analysis of how the LVMH-Tiffany case might have been resolved without settlement.

The standard terms and conditions that are appended to cross-border commercial contracts frequently contain jurisdiction clauses. Different legal systems have divergent rules and practices regarding these clauses, however, which may affect their validity and hence undermine certainty and predictability in international commerce. Thanks to its geostrategic location, Turkey is an important trading partner for some of the leading global trade players, particularly the European Union. Hence, companies doing business in Turkey may frequently include jurisdiction clauses in favour of a foreign court in standard terms and conditions. This paper examines the validity of such jurisdiction clauses from a Turkish legal perspective, with examples from case law. [ABSTRACT FROM AUTHOR]

Purpose: The purpose of this paper is to highlight the regulatory barriers to achieving sustainable buildings in Kosovo. The present paper focuses on regulatory barriers viewed from the perspective of construction industry experts in achieving sustainable buildings. Design/methodology/approach: The present study uses a qualitative research method and semi-structured interviews as a research instrument. The present study interviews around 20 experts in construction and property management, property development, spatial planning and energy management. Findings: The study finds that Kosovo building laws and regulations provide for the materials assessment criteria, but the materials assessment criteria are only for mechanic strength. The study further finds that the sustainability concept is not included and incorporated in Kosovo's urban planning laws and regulations. The study also finds that despite specific clauses mentioning energy performance certificates in the Law on Energy Performance of Buildings in Kosovo, energy performance certificates appears to be not enforced and the nature of the barrier is more organizational rather than regulatory. Finally, the study finds that Kosovo laws are silent as far as green labeling of building materials is concerned. Practical implications: The implication of the present finding is that policymakers in Kosovo not only should include clear sustainable materials assessment criteria in the law, but also enforce those criteria through testing and inspection mechanisms included in the law and implemented in practice through funding and organizational support. Nonetheless, policymakers in Kosovo should contemplate amending the urban planning laws in Kosovo and include both the term of sustainability at the planning level and conformity guidelines for sustainable design that can be done at the administrative directive level. Further, the clauses in the law do not suffice if the clauses are not accompanied by specific systemic and organizational support in the issuance of energy performance certificates. Policymakers in Kosovo should be proactive in designing clauses that specify green labeling standards for materials; however, these labeling standards should not adversely affect the cost of construction and reduce the demand for real estate. Originality/value: The study is the first qualitative study about the perception of construction professionals in Kosovo, regarding the regulatory barriers of sustainable buildings in Kosovo. [ABSTRACT FROM AUTHOR]

The article discusses the funding structure of the U.S. Consumer Financial Protection Bureau (CFPB), the Fifth Circuit decision finding the structure unconstitutional, and the Second Circuit's contrary decision in CFPB v. Law Offices of Crystal Maroney, P.C. Topics include the funding structure of the CFPB, the Appropriations Clause of Article 1, Section 9 of the Constitution, and the case Community Financial Services Association of America v. CFPB.

Copyright of FinanzRundschau is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Robust retaliation protections are an essential component of any effective enforcement regime. Recognizing this, Congress has included a provision prohibiting retaliation in nearly every workplace statute passed in the past century. In statutes more than a century old, like the Civil Rights Act of 1866, where Congress neglected to include an explicit anti-retaliation provision in the statutory language, the Supreme Court has found an implied proscription against retributory behavior. Anti-retaliation protections are undoubtedly integral to effective enforcement. However, they have an equally important counterpart that is often overlooked in compliance discussions--interference protections. Several workplace statutes contain interference provisions--statutory language that makes it unlawful for employers to interfere with the substantive rights created by the statute. However, interference clauses are much less common than retaliation clauses. Compared to retaliation clauses, interference clauses appear to be a stronger mechanism for enforcing the regulatory scheme Congress has created for labor and employment laws. They enjoy broader judicial interpretation and have an analytical framework that makes it easier for employees to successfully prove employer misconduct given the information asymmetries that exist between companies and their employees. This Article explores the origins of interference theory and investigates the presence of interference clauses in some statutes and their absence in others. It argues that, like they have interpreted retaliation proscriptions, the courts should interpret workplace statutes as containing implied interference prohibitions, as protections against interference with workplace rights is an essential component of compliance with any regulatory intervention. The Article further argues that Congress can broaden protections for employees, strengthen enforcement, and better support the goal of the statutory regimes by expressly including interference clauses in all workplace statutes. [ABSTRACT FROM AUTHOR]

The article argues that the best way to understand the foundational purpose of the material adverse change (MAC) clause is through a combination of Robert T. Miller's acquirer-focused theory and Gilson & Schwartz's seller-focused theory. Topics discussed include background on how MAC clauses operate in merger and acquisition agreements, development and usage of MAC clauses as influenced by major events, and major Delaware case law addressing enforcement of MAC clauses.

Interaction between different levels of fundamental rights protection is a widely debated topic in EU scholarship, which has long dealt with situations in which national legislation lowered legal standards in the EU. Less explored, however, is the opposite case: when Member State regulations set standards higher than those enshrined at EU level. This can occur through application of the more favourable provision (MFP) clause – commonly enshrined in EU directives dealing with (but not limited to) immigration and asylum. Under it, Member States can apply more favourable standards insofar as they comply with EU legislation. Though seldom discussed in existing literature, the MFP clause is a critical issue of EU migration law and illustrative of challenges facing the EU constitutional order, for it highlights the relationship between fundamental rights protection in the multi-layered EU system and general principles of EU law. Against this backdrop, this paper will investigate the features of the MFP clause in EU migration law and analyse the CJEU's adjudication in immigration and asylum cases, exploring its reasoning in testing application of MFP clause against EU law. [ABSTRACT FROM AUTHOR]

The author discusses the U.S. Supreme Court case Students for Fair Admissions, Inc. versus President & Fellows of Harvard College on applying the Equal Protection Clause that eliminates all forms of racial discrimination. He cites the Court's ruling that the Harvard programs failed strict scrutiny on required colorblindness, and that the Clause had transcendent aims. The author states that the Clause is not necessarily about colorblindness, and that it is not the right principle for the Clause.

The development of digital technology has also influenced the development of Indonesian legal regulations in the Reformation Era. For example, relating to the clause on violations of the law in the form of “disgraceful acts” in the dismissal of state officials. So far, it has been focused on actions that are contrary to customary norms, religious norms, and moral norms in general within the scope of conventional crimes only. This has given rise to the motivation to study “disgraceful acts” in the scope of the use of technology/cybercrime which is very likely to occur. The study was carried out using a statutory and conceptual approach, using primary legal materials in the form of legislation that applies to state officials, literature searches, and prescriptive analysis. The result is an understanding that “disgraceful acts” should be understood as acts that are contrary to customary norms, religious norms, and moral norms within the scope of conventional crime and cybercrime. This is regulated because the laws in force in Indonesia are expected to be full of moral and ethical values so that the state officials who are elected are, basically, officials with integrity, quality, and trust. [ABSTRACT FROM AUTHOR]

The article focuses on the legal and constitutional implications of the Supreme Court case Moore v. Harper, particularly concerning the Independent State Legislature Theory (ISLT) and its impact on the interpretation of state and federal election laws. It examines the text and historical background of the Elections Clause of the Constitution, analyzes the Court's interpretation of the clause in Moore, Bush v. Gore, and other relevant cases.

Imagine this: You have signed on the dotted line to purchase a home for $500,000. You have put down an earnest money deposit of $25,000. Right before closing, you find out that your bank will not provide the financing you thought you had secured. You can no longer afford to purchase your dream home. You are coming to grips with the reality that you are going to lose $25,000, which comprises the bulk of your life savings. Then you hear from the seller, telling you that they are going to come after you for $100,000 in "actual damages"--the amount the house depreciated between the time you signed the purchase and sale agreement and the time you breached the contract. How is this possible? It is bad enough that you are going to lose $25,000. How can you be on the hook for even more? It is because of a little-known clause in your purchase and sale agreement that provides the seller with the option of retaining the deposit as liquidated damages or suing for actual damages instead. These clauses have a variety of names: election clauses, election of remedies clauses, optional liquidated damages clauses, or cake-and-eat-it-too clauses. A surprising number of courts are prepared to give effect to these clauses, reasoning that they represent the parties' intent, and that freedom of contract demands that they be enforced. This Article argues that courts are getting it wrong: liquidated damages clauses cannot be reconciled with election clauses. No amount of freedom of contract logic can get around the fact that the two clauses are legally incompatible. This Article examines the two different contexts in which liquidated damages clauses and election clauses intersect. First, a buyer may seek a return of his earnest money deposit, arguing that the presence of an election clause renders the liquidated damages a penalty. Second, a buyer may seek to foreclose a seller from pursuing actual damages under an election clause, reasoning that such a clause is fundamentally at odds with a liquidated damages clause. In the first scenario, the buyer seeks to invalidate the liquidated damages clause; in the second, he seeks to invalidate the election clause. This Article encourages courts to prohibit liquidated damages clauses and election clauses from coexisting in contracts. A seller who attempts to have his cake and eat it too should be relegated to the lesser of the two amounts. [ABSTRACT FROM AUTHOR]

Copyright of Revista Digital de Derecho Administrativo is the property of Universidad Externado de Colombia and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article analyses how investment tribunals apply attribution standards in their case practice. Attribution standards as applied by investment tribunals will be assessed in two different categories. First, the article will survey how tribunals apply traditional attribution tests, which originally refer to establishing internationally wrongful acts, as defined under Articles 4, 5 and 8 of ARSIWA. Second, the article will examine how attribution tests are applied and defined in so called non-traditional attribution scenarios, such as in the context of establishing the jurisdiction of arbitral tribunals, the applicability of the umbrella clause, certain declarations of the state (right of representation in the field of estoppel), as well as certain issues relevant to decide about the state's involvement in private contracts in situations of corruption. The article ultimately presents a plea for nuanced application for attribution standards under different attribution scenarios instead of the automatic application of ARSIWA attribution standards. [ABSTRACT FROM AUTHOR]

The First Amendment singles out "religion" for special treatment, but the boundaries of that concept have always been difficult to describe. Nevertheless, there is a growing consensus that--at least as an original matter--"religion" in the First Amendment refers only to more-or-less theistic doctrines. But scholars have long struggled to explain why theistic doctrines would be worth treating differently than their alternatives. This Article argues instead that the concept of "religion" in the lateeighteenth century must have been broader than it is today, referring more generically to something like "worldview." In the pre-Darwinian intellectual climate in which the First Amendment was written, all plausible worldviews were what we would today think of as "religious." "Religion" was not a concept bounded by, or an alternative to, "science," or a "secular lifestyle," or "non-religious doctrines." The concept necessarily encompassed all remotely plausible accounts of the nature of the universe and foundations of ethics. And although our understanding of "religion" has fundamentally changed, the First Amendment incorporates the earlier, broader understanding. Reading "religion" in this broader way further helps explain contextual features of the First Amendment--its general purposes, its grammatical structure, and the nature of the rights its framers were trying to protect. And this interpretation lets us reckon with the purpose and contemporary relevance of the Religion Clauses, as a commitment not to privilege certain worldviews, but to ensure that questions about how we ought to live and why are a private, not governmental, concern. [ABSTRACT FROM AUTHOR]

Parties involved in transnational business naturally expose themselves to peculiar international risks, including the possibility of having aforeign court resolve theirfuture disputes. To reduce uncertainty, transnational contracts often contain a so-called "choice of court" (or "choice of forum") clause to dictate where future disputes should be resolved. Chosen courts, however, do not always enforce such clauses. Indeed, absent a convention or a treaty, the enforcement of a choice of court clause is purely a matter of national law and, in the case of federal tystems like the United States, even of sub-national domestic law. To guarantee predictability, several countries have ratified the Hague Convention of 30 June 2005 on Choice of Court Agreements (the 'Convention"), which aims at ensuring that the parties' choice will be respected. The United States, however, was not among them, and U.S. courts continue to apply a variety of tests to determine whether they willfollow the parties' selection of forum. This Article analyses recentjudicial decisions involving the enforceability of choice of court clauses in transnational agreements under the Convention (i.e., TLrmgassen & Co Limited v. Sixcap Financials Pte Limited, and Motacus Constructions Lid v. Paolo Castelli SpA), and under the internal laws of selected jurisdictions (France, United Kingdom, Florida, New York, and California). Such analysis aims to ascertain whether the Convention was successful in guaranteeing the enforcement of choice of court clause in transnational contexts, and whether the United States should finally ratify it. [ABSTRACT FROM AUTHOR]

This article is a response to the lack of practical legal scholarship concerning the retrospective operation of contractual terms under New Zealand law. It discusses the key case law, commentary and theory concerning contractual retrospectivity, before considering the practical application of these principles in three distinct contexts, that is, retrospective agreements, retrospective standard terms and retrospective exclusion clauses. It is acknowledged that, as with all instances of contractual interpretation and implication, significant weight must be placed on the relevant context and the language used by the parties when determining whether or not a particular contractual term should operate retrospectively. It is, however, possible to derive various helpful "rules of thumb" from the cases, which may assist contractual parties, their legal advisers and the courts in resolving this issue. [ABSTRACT FROM AUTHOR]

This paper argues for reforming the rules governing the control of remedial clauses in (Commonwealth) common law jurisdictions. In simple terms, this paper argues that remedial terms should not be seen, as some would have it, as creating a debt or ironclad obligation on the promisor. Instead, such clauses should be treated as a security against default, which is adjustable according to circumstances prevailing at the time of breach or enforcement. This argument is based on two socioeconomic levers--radical uncertainty and (the imperative to curb) over-indebtedness. Based on the first lever, a case is made for applying hindsight in enforcing remedial provisions. The second lever aims to demonstrate the fragility of economic systems and that widespread indebtedness, coupled with the strict enforcement of remedial clauses, can weaken promisor firms' resilience in a climate of economic contraction or recession. [ABSTRACT FROM AUTHOR]

Copyright of Revista Chilena de Derecho Privado is the property of Fundacion Fernando Fueyo Laneri and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Over the last decade, Washington State has seen a substantial increase in its unhoused population and an increase in laws that harm this group. Many of these laws subject unhoused and unsheltered people to fines, fees, and forfeitures that are exceedingly difficult for them to afford. The Excessive Fines Clauses in the United States and Washington Constitutions protect citizens from fines deemed constitutionally excessive and could be used to shield unsheltered people from the burden of paying unjust fines they cannot afford. In City of Seattle v. Long, the Washington State Supreme Court analyzed the ability to pay of a person who lived in his vehicle when deciding whether the fines imposed on him violated the state or federal Excessive Fines Clauses. This Note contends that the Long decision offers a strong constitutional foundation for arguments against the enforcement of many laws and policies that adversely affect vehicle residents and unsheltered people. Part I reviews the housing crisis in Washington and the legal ramifications unhoused people face. Part II discusses the historical jurisprudence of the Washington State and the federal Excessive Fines Clauses and their relation to a person's ability to pay. Part II also outlines the Long case and how it fits into the framework of the Excessive Fines Clause. Finally, Part III argues that an expansive reading of the Long decision is both constitutionally appropriate in light of current jurisprudence and an important tool for advocating for unsheltered people. [ABSTRACT FROM AUTHOR]

The author argues that the Speech or Debate Clause does not offer immunity for incitement by members of Congress, except when that speech is explicitly protected by the text of the Clause, because incitement falls outside of the sphere of legitimate legislative activity.

The conventional wisdom is that the Commander-in-Chief Clause arms the President with a panoply of martial powers. By some lights, the Clause not only equips the President with exclusive control over military operations, but also conveys the powers to start wars, create military courts, direct and remove officers, and wield emergency wartime powers. Under such readings, the meaning of “commander in chief” is as obvious as it is unequivocal—it confers some measure of absolute and unchallengeable authority upon the President. Yet, seemingly paradoxically, proponents of this stance cannot say where the Commander in Chief’s power begins and ends. In particular, establishing the Clause’s limits is an acute and persistent problem. Using eighteenth-century understandings as a yardstick, this Article topples the orthodox reading of the Clause and demarcates the Clause’s elusive frontiers. In contrast to modern assumptions, the Article reveals that eighteenth-century commanders in chief enjoyed neither sole nor supreme authority over the military. Throughout the seventeenth and eighteenth centuries, there were, at any one time, a multitude of British and American commanders in chief, and both assemblies and other military officials consistently directed these commanders, often in quite intrusive ways. By borrowing a familiar expression, the Constitution incorporated the modest, contemporary conception. Rather than being a sui generis military potentate, the President is nothing more than a chief commander, or what Alexander Hamilton called the “first General and Admiral.” The Commander in Chief of the Army and Navy lacks a vast arsenal of military authority but instead possesses only the constrained powers of a general and admiral. Crucially, the Clause does not grant any exclusive authority over peacetime operations or even the conduct of war. Nothing about the term “commander in chief” would have suggested such autonomy because previous chief commanders had lacked such independence. Indeed, early Presidents never objected to congressional bills that sought to regulate military operations pervasively, including wars. Rather, they signed the proposals into law and, thereafter, sought to faithfully execute them. To be sure, the President is more than a mere general and admiral. Due to the rest of Article II and the Presentment Clause, the President wields considerable authority and influence over the military, far more than a generic commander in chief would. These other sources of power convey authority over the appointment, direction, and removal of military officers and substantial influence on which military bills will become law. In the grand scheme of things, the Commander-in-Chief Clause is far less significant than these other clauses. How we read the Commander-in-Chief Clause matters. Without a sense of the Clause’s alpha and omega, Presidents will continue to cite it to evade, minimize, and commandeer congressional powers. If this Article’s assertions are correct, however, Presidents will no longer be able to insist that the Founders established a chief commander that can start wars or one that enjoys exclusive authority over operations. By decrypting the Clause, this Article highlights the extent to which Presidents have amassed power untethered from constitutional moorings and also may help fend off further executive overreach. Although some puzzles remain, this Article takes some initial strides in the long march towards deciphering the Commander-in-Chief Clause. [ABSTRACT FROM AUTHOR]

In the article, the author discusses issues regarding the transfer of personal data from the United Kingdom (UK) to the U.S. through the UK international data transfer agreement (IDTA) or the international data transfer addendum to the European Commission's Standard Contractual Clauses. Also cited are the provisions of the European Union (EU) General Data Protection Regulation (GDPR) on said transfers.

The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed Of both; the subtle interplay of influence one on the other is among the imponderables.1 What is the constitutional status of transgenderinclusive school sports? The Equal Protection Clause requires that laws which differentiate between men and women honor the enduring reality of biological sex and neither stereotype nor disadvantage women. These principles help address a new and important question: whether the systemic inclusion of biological males in women's school sporting events is prohibited by the United States Constitution. [ABSTRACT FROM AUTHOR]

Universities have been put in an impossible situation. They are liable under nondiscrimination laws if they allow hostile speech to interfere with someone's education, but they are increasingly said to be liable under the Free Speech Clause if they do anything to stop speech before that point. Put simply, universities are liable for acting until the moment when they are liable for not having acted. This conundrum--what this Article calls the Double Liability Dilemma-- is the result of remarkably successful litigation brought in courts across the country by a new, conservative free-speech organization called Speech First. Three courts of appeals, with a fourth perhaps soon to come, have recently enjoined universities from enforcing their harassment policies. These schools now find themselves unable to act to counteract hostile speech based on race or sex before it is too late. To see the Double Liability Dilemma is to see that these cases simply cannot be rightly decided--and to wonder how courts or commentators might ever think otherwise. Providing the first close look at litigation that is reshaping speech and harassment regulation throughout American higher education, this Article highlights the procedural mechanisms Speech First has used to push courts into taking what critical race theorists have long referred to as the "perpetrator perspective." By contrast, this Article shows how a broader perspective, taking both sides of the dilemma into account, forces us to rethink the meaning and reach of the First Amendment on college and university campuses. [ABSTRACT FROM AUTHOR]

This Essay analyzes three methods of avoiding the doctrinal disarray in American choice of law: imposing constitutional restrictions on personal jurisdiction and therefore limiting the plaintiff's ability to forum shop for favorable choice of law; applying the presumption against extraterritorial application of federal statutes; and enforcing contractual choice-of-forum and choice-of-law clauses. Each method of avoidance has its advantages and its disadvantages. The former consist mainly in giving the parties and the courts more control over choice of law in a more determinate way. The latter arise from the uncertainty created by adding another layer of ad hoc evasions to the other complications of choice of law. The law of personal jurisdiction largely depends upon an analysis of all the factors that go into establishing "minimum contacts." The extraterritorial application of federal statutes depends upon the context, both textual and factual, in which they operate. And choice-of-forum and choice-of-law clauses depend upon the terms and interpretation of the contracts in which they are found. [ABSTRACT FROM AUTHOR]

The article discusses the influence of evangelical separationism on the religion clauses of the First Amendment of the U.S. Constitution by citing the role of evangelical separationist Isaac Backus of the American Baptist church. Also cited are Backus' views on religious freedom and the influence of evangelical separatists on the religious clauses of the First Amendment.

This article postulates a two-step hybrid approach in the control of remedial clauses-eg, liquidated damages, forfeiture clauses, deposits, accelerated performance clauses, etc. It restates the imperatives for rethinking the strict enforcement of such terms. The currently prevailing strict approach is premised on the view that conditions prevailing at the time of contracting should shape the enforcement of such provisions. In place of that approach, it is proposed that the award and control of pre-determined remedies be parallel to the default common law rules that govern the judicial exercise for determining damages/compensation. In essence, this article argues for the reinstatement of a 'just compensation' standard in the control of such terms; notably, one that takes account of hindsight knowledge or information. [ABSTRACT FROM AUTHOR]

In recent decades, jurisdictionally separate common law commercial courts have emerged alongside existing civil law judicial systems, particularly in the Middle East. Although these unique common law judicial outposts are creating complex jurisdictional dynamics with their local civil law counterparts, their existence is also inspiring innovative structural solutions and cultural interactions. Recent cases in Dubai and Qatar reveal that the originally intended limited jurisdiction of these common law courts is expanding beyond what Michael Hwang once famously termed 'common law lakes in civil law oceans'. One of the ways in which common law courts are expanding their remit beyond the bounds of their financial centre 'lakes' is by making it easier for litigants to 'opt in' to the jurisdiction. Increasingly, an identity crisis has also gripped some of these courts as they now regularly accept and identify themselves as local 'State courts'. From the perspective of these courts and their institutional credibility, the State court designation is positive for their growth and acceptance. Being a State court allows financial centre courts to capture litigation where contractual language has employed the State courts language in forum election clauses. This article explores the expansion of these international commercial courts and consequent or potential tensions with local judicial structures. Delicately managed, the expansion of jurisdiction of these common law 'outposts' can contribute to a legal synthesis influencing both law and legal cultures, including the broader judicial systems of host States. The experience of the two jurisdictions explored in this article is instructive for the future design of similar judicial instrumentalities in similar financial centre projects in other emerging economies. [ABSTRACT FROM AUTHOR]

On April 11, 2019, the Constitutional Court ruled that Article 269 (1) of the crime of self-abortion and Article 270 (1) of the crime of abortion in the conduct of business violate the pregnant woman's right to self-determination. Since then, the National Assembly has been obligated to legislate for improvement until December 31, 2020, but the government-proposed amendment was submitted to the National Assembly on November 25, 2020, and Articles 269 (1) and 270 (1) of the Criminal Code have ceased to be effective from January 1, 2021. The Constitutional Court ruled that the degree of protection can be changed from when the fetus can survive independently of the mother on condition that fundamental rights of fetus, and to ban a whole abortion during the decision period (from implantation to 22 weeks before the fetus can leave the mother and survive independently) goes against the proportionality. The main argument of the fundamental rights of the fetus is the continuity argument, which has the problem that early embryos, eventually sperm and eggs, can be interpreted as the subject of the right to life. In addition, it has already been confirmed through the Constitutional Court that it is not possible to protect the life of the fetus only by recognizing the right to life of the fetus, and that protection is possible if the necessity of protecting the life of the fetus is fully recognized. When legal protection measures are taken according to the need to protect the fetus' life without recognizing the right to life of the fetus, administrative sanctions for violations of counseling procedures within 22 weeks of pregnancy, and criminal sanctions should be introduced after 22 weeks of pregnancy, including social and economic reasons. [ABSTRACT FROM AUTHOR]

The defining purpose of the Diversity Clause of the United States Constitution is to provide a neutral federal forum for out-of-state litigants concerned that local courts and legislatures would be biased against them. That avoiding geographic bias is the purpose of the Diversity Clause as attested in the state ratifying conferences, the congressional record, and twenty U.S. Supreme Court opinions. In 2022, an empirical study demonstrated, using data from over one million district court actions arising under diversity jurisdiction (from 1990 to 2019), that geographic bias was no longer a concern of out-of-state litigants. As a result, diversity jurisdiction is no longer necessary and should be eliminated. Elimination of diversity jurisdiction would save billions of dollars each year, improve the application of state law, send a signal on national unity, improve the fairness of the system, and decrease friction between the federal and state courts. The central counterargument to eliminating diversity jurisdiction is that it provides a "neutral" or "bias-free" forum for litigants afraid of bias in the state courts. This counterargument fails because the empirical evidence demonstrates both that geographic bias is no longer an issue and that the federal forum is no bias-free Eden--multiple forms of pernicious bias, including racial, gender, and socioeconomic bias, are present in the federal system. [ABSTRACT FROM AUTHOR]