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This Comment tells the story of how California's 2014 Sustainable Groundwater Management Act (SGMA) has been applied in Owens Valley. Owens Valley, called Payahuunadu by the Native Paiute and Shoshone [...]

The passage of the Human Rights Act 2019 (Qld) ('HRA 2019') was a significant achievement, particularly in a state often known for its parochial conservatism and disinterest in, if not outright rejection of, human rights. The HRA 2019 is substantially based upon the human rights Acts in place in Victoria and the Australian Capital Territory. However, there are some small, but potentially important differences between the HRA 2019 and the corresponding state and territory equivalents. In this article, i focus on one of these differences: the definition of discrimination contained in the HRA 2019. Unlike the Charter of Human Rights and Responsibilities Act 2006 (Vic) the definition of discrimination in the HRA 2019 is not tied to the definition or grounds of discrimination in the state discrimination legislation. This small but important distinction could feasibly allow courts to define discrimination and the broader notion of equality in a more substantive manner, covering a wider variety of actions and conduct, and apply that wider definition to a broader range of attributes (commonly understood as 'grounds'). The purpose of this article is to consider the possibilities and potential challenges confronting Queensland courts in broadening the definition of discrimination in the context of HRA 2019. I argue that, though a substantive interpretation of discrimination and equality is challenging and requires a degree of 'creativity' on the part of judges, it is a challenge worth undertaking., I INTRODUCTION The manner in which the meanings of discrimination and equality have been interpreted by Australian courts has been consistently critiqued. (1) With respect to anti-discrimination statutes, while courts [...]

I. Introduction Investment advice is designed to be tailored to the risk profiles of clients as they navigate their personal financial situations and goals. (1) But how can investment advice [...]

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs' lawyers have tried challenging class action-banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court's ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit--until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area attack on the arbitral edifice may be fruitful. More consequentially, in my view, the Supreme Court has cast substantial doubt on the 'liberal federal policy favoring arbitration' upon which contemporary FAA jurisprudence rests. This is big news, suggesting that all judge-made, arbitration-specific rules created in the service of a supposed policy favoring arbitration are ripe for reexamination. One consequence, I show, is that the FAA must now be understood to exempt the contracts of all workers engaged in interstate commerce. Meanwhile, entrepreneurial plaintiffs' firms have sought to force corporate defendants to make good on their contractual promises to bear the cost of arbitrating large numbers of nominally individual claims. By marketing broadly to would-be claimants via social media and then financing the claimants' portion of arbitral filing fees, these firms have filed thousands of simultaneous claims, forcing defendants to either settle or spend tens of millions of dollars on arbitral fees alone. At present, companies are groping for contractual tweaks to foreclose the risk of mass arbitration. But I expect those efforts will be thwarted by state unconscionability law in many states. And I also expect that companies will increasingly drop their arbitration clauses altogether and seek to implement standalone class action-waiver clauses, removing any pretense that the defense community was ever interested in arbitration, as opposed to class-action bans. But here, too, I think state unconscionability law will bring us back full circle to the state-by-state map that existed prior to Concepcion. In short, there are reasons to believe that the hegemony of class-banning arbitration is unraveling before our very eyes., INTRODUCTION 1064 I. IN CONGRESS 1069 A. Early Jurisprudence Under the EFAA 1074 B. Charting a Legislative Course Forward 1077 II. IN THE COURTS 1081 A. FAA [section] 1: New [...]

I. INTRODUCTION 941 II. DEVELOPMENTS IN RELIGIOUS EXEMPTIONS 942 III. THE MINISTERIAL EXCEPTION 944 A. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL V. 945 EEOC B. EEOC V. R.G. & G.R. [...]

The start of the name, image, and likeness (NIL) era stirred public fervor about the new earning potential of high-profile student-athletes. Since institutional policies and state laws governing NIL require student-athletes to broadly disclose information about their NIL activities to their respective institutions, the several state laws that follow the approach of the federal Freedom of Information Act (FOIA) can jeopardize the privacy of student-athlete NIL information. Major universities have repeatedly resorted to the unreliable defense of the Family Educational Rights and Privacy Act as well as sporadic state legislation to protect student-athlete privacy in the new NIL space. However, they have largely ignored the simpler solution embedded within their own state FOIA laws. This Article argues that state FOIA laws bar student-athlete NIL information from public disclosure. FOIA laws serve the important societal function of informing the public about their government, but fundamental public misunderstandings about NIL based on a backwards misconception of the relationship between student-athletes and their institutions have caused the media to pry into details that are completely unrelated to any public interest. The recent shift toward student-athlete empowerment highlights the reality that student-athletes are autonomous actors, not simply children to be commandeered as an extension of coaches and other university personnel for public entertainment. The simplest way for universities to protect student-athletes in this new opportunity space is to reject FOIA requests for NIL information on the grounds that such requests propose an unwarranted invasion of personal privacy., 'I want to show you can do whatever you love--whether it's gymnastics or music or painting--and capitalize on it and create your own business.' Olivia Dunne (1) TABLE OF CONTENTS [...]

There are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project's uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence. Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules. Given the superfluous rules' covert mission, it should not be surprising that the rules' drafters were not transparent about their nature. Instead, the drafters incorporated these rules so seamlessly into the overall project that their evidentiary insignificance goes largely unnoticed. This Essay pulls back the curtain to reveal the superfluous nature of many of the celebrated rules of evidence. The presence of so many superfluous rules says something interesting about the rules project and sheds light on how the evidence rules should be taught, interpreted, and applied., INTRODUCTION 1770 I. THE ORIGIN STORY OF SUPERFLUOUS RULES 1774 II. RULE 805 (HEARSAY WITHIN HEARSAY) 1779 III. RULES 1001 TO 1008 (BEST EVIDENCE) 1780 IV. RULE 411 (INSURANCE) 1781 [...]

Judges and scholars have often claimed that delegations of governmental power to private parties are constitutionally prohibited. However, such a 'private nondelegation doctrine' is elusive, if not nonexistent. To understand [...]

Control orders are restrictive measures placed on individuals that pose an identified threat to public safety as a component of domestic counterterrorism policy. Control orders and their compliance with International Human Rights Law have been the subject of extensive litigation within the European Court of Human Rights and domestic states courts. Controlling provisions are applied in either the pre-conviction or the post-release stage of a state's criminal procedure. Pre-conviction control orders face significant criticism for the potential conflicts with due process protections of the right to a fair trial and the broader right of liberty. This Note describes the current jurisprudence and analyzes its potential application to states that have yet to fully establish control order regimes. Because there is a lack of evidence indicating that pre-conviction control orders are necessary to prevent coordinated terrorist attacks, this Note finds that states should weigh the protection of individual liberties over the undetermined benefits of such restrictions. This Note concludes that states should only utilize pre-conviction control orders in the narrowest sense with ample oversight and judicial review mechanisms. It also concludes, however, that post-release control orders should be adopted into any system focused on terrorism prevention to prevent recidivism and ensure the reintegration of individuals previously engaged in terrorism-related activities into society. This Note is particularly pertinent to the number of Balkan states that are currently planning or considering implementing extensive control order regimes., TABLE OF CONTENTS I. INTRODUCTION 1354 II. BACKGROUND 1355 A. Control Order Regime Due Process Concerns 1356 B. European Court of Human Rights Jurisprudence 1361 C. Derogations Law 1365 D. [...]

Antitrust laws in the United States and competition rules in Europe are usually set out in statutes of general applicability, written in broad, almost constitutional, form. This is a 'one size fits all' statutory style. There is another possible style of antitrust, which we call 'bespoke antitrust.' It consists of specialized rules customized for the industry, for a particular plaintiff or defendant, or for the practice in question. In this article we describe the under-appreciated trend toward bespoke antitrust law. We think that this trend shows up in case law, enforcement agency practice, and regulatory alternatives. We also look at existing and new proposals to create more bespoke antitrust rules and institutions to deal with the challenges of digital platforms and other dominant firms in the tech space. This, we believe, is a particularly important example of the trend toward more bespoke rules for competition law. We conclude with a cautious endorsement and some caveats. There are important areas where targeted efforts are worth the price, but bespoke antitrust can be expensive to implement. More importantly, it can threaten the rule of law by carving out exemptions if society (or the beneficiaries) are willing to pay the price. Nevertheless, custom tailoring does have an important place in the design of antitrust law., I. INTRODUCTION: OFF-THE-RACK OR COUTURE? Antitrust law in the United States ('U.S.') is often referred to as the 'Magna Carta of free enterprise.' (1) It provides the ground rules for [...]

This Essay examines the moral and policy implications of the NCAA's use of Title IX to argue for legislative immunity from antitrust and employment law. Regardless of if there is merit to the NCAA's in-court assertions that Title IX prevents employment status, revenue sharing, and other reforms, the NCAA's requests to Congress for legislative protection and immunity requires a monumental degree of faith that an all-powerful NCAA would sincerely carry out its supposed commitment to gender equity. Yet this Essay finds that the NCAA has hardly earned the level of trust necessary to grant it that power. To the contrary, the NCAA has shown repeatedly that they cannot be trusted to follow through on this implicit promise in light of the NCAA and its' member schools' historical battles against Title IX and incessant use of loopholes, each of which highlight their bad faith in these discussions. While the NCAA's arguments regarding Title IX are compelling to many, history simply does not support trusting an above-the-law NCAA to actually work to ensure gender equality in college sports. As such, this Essay argues that it is at the utmost levels of bad faith for the NCAA to attempt to use Title IX as a shield when the NCAA and its stakeholders have been fighting Title IX's on-paper and inspirit application to college sports at every turn., INTRODUCTION 40 I. THE NCAA'S INVOCATION OF TITLE IX TO SHIELD ITSELF FROM 44 MEANINGFUL REFORM A. THE RISE OF THE NCAA'S LUCRATIVE 'AMATEUR' SPORTS BUSINESS 44 MODEL B. THE [...]

The IRS is struggling. Phone calls from confused taxpayers ring unanswered, paper returns pile up, aggressive tax filers are confident they are unlikely to be audited. Congress piles new responsibilities on the agency while (so far) maintaining its budget at close to modern lows. This is a strange time, then, to launch perhaps the largest-ever experiment in tax administration. Yet that is what some courts and executive decisions, encouraged by some tax law scholarship, have begun. In at least four distinct ways, the IRS and its regulatory partner, the U.S. Treasury, are now facing greater procedural obstacles to their efforts to guide and constrain the taxpaying public. Recent judicial decisions would suggest the IRS must reissue existing administrative guidance, going back for an uncertain period, but at least six years, using costly and time-consuming 'notice and comment' procedures. A 2021 Supreme Court decision narrowly applied the 100-year-old Anti-Injunction Act to allow litigants for the first time to challenge IRS anti-tax shelter guidance on a pre-enforcement basis in court. And in 2018 the White House and Treasury agreed that many more tax rules would be subject to Office of Management and Budget cost-benefit analysis review, though that policy was recently reversed. Supporters of these changes argue that they simply are bringing tax administration more in line with the administrative law governing other agencies, but these claims overlook key ways in which tax administration differs from other rulemaking. As other scholars have observed, tax administration must thread the impossible needle of communicating rules that touch every aspect of modern life to an audience of hundreds of millions of individual taxpayers, some of whom do not even speak English, let alone have the capacity to parse legislative text. Our contribution is to identify and explore the implications of another key difference: the systematic 'tilt' of administrative law against revenue. IRS and Treasury effectively cannot be challenged in court for an action or decision that favors taxpayers, causing the government to lose money. The agencies' decisions to eschew enforcement against particular taxpayers are invisible to the public. These simple facts have profound implications, particularly when combined with the increasing obstacles to the agencies' action we have just mentioned. As action becomes more costly and more time-consuming, the option to do nothing becomes ever more appealing. We review literature suggesting the power this asymmetric effect has had on tax rulemaking. We then examine how the tilt should affect the way that administrative law is applied to tax rulemaking., INTRODUCTION 1647 I. THE NEW PROCEDURAL FORMALISM IN TAX GUIDANCE 1656 A. Notice and Comment Requirements 1656 B. Deference 1660 C. Pre-Enforcement Judicial Review 1661 D. OIRA Review 1663 E. [...]

With several fresh faces on the bench, lawsuits have been testing the waters on a variety of issues to determine the direction of this new Supreme Court. One of these [...]

INTRODUCTION Dobbs v. Jackson Women's Health Organization held that no constitutional right to abortion exists, (1) overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. (2) After [...]

INTRODUCTION In Transgender Law Center v. Immigrations and Customs Enforcement, (1) the Ninth Circuit explored the acceptable boundaries of the requisite specificity and reviewability of responses to Freedom of Information [...]

The United States has one of the largest subsovereign debt markets in the world, (1) and the municipal securities market--its structure, and its regulation--is markedly different from the corporate securities [...]

Commercial bank loans and other banking transactions have become increasingly multi-jurisdictional, even virtual, as our nation's economy evolves in that technology-driven direction. Yet the practice of law remains a state-regulated [...]

I. INTRODUCTION 265 II. PRESCRIPTION BIRTH CONTROL AND EMERGENCY CONTRACEPTION: A HISTORY 266 A. TYPES OF CONTRACEPTION DEFINED 266 B. THE RIGHT TO ACCESS TO CONTRACEPTION 270 C THE PATIENT [...]

'Permitting an entity to engage in the unauthorized duplication and forwarding of unknowing users' information would render permissible the most common methods of intrusion, allowing the exception to swallow the [...]

The human rights codes, which are the primary instrument of discrimination law in Canada, are supposed to be interpreted liberally and purposively--at least according to the Supreme Court of Canada. Here, I argue that one type of human rights code provision has so far managed to escape this established interpretive method. These provisions are the 'special organization exemptions,' which provide that organizations like social clubs, religious organizations, and charitable institutions are permitted to discriminate in choosing their members. This paper argues that the existing interpretation of 'special organization exemption' provisions is out of step with the interpretive method that is supposed to be applied to human rights legislation. A narrower interpretation, which would require a claimant to justify their discriminatory policy with reference to a valid purpose, would appropriately focus scrutiny on discriminatory policies without defeating the purpose of the exemption and advance the Code's purpose of substantive equality. KEYWORDS Discrimination law, Human Rights Code, religious organization exemption, equality., I INTRODUCTION II WHAT'S STRANGE ABOUT SECTION 18? III CAN THE BROAD READING BE JUSTIFIED? IV TIPTOEING TOWARDS RATIONAL CONNECTION V APPLYING RATIONAL CONNECTION VI CONCLUSION I INTRODUCTION There is [...]