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TABLE OF CONTENTS INTRODUCTION 1204 I. OVERVIEW OF CULTURAL PROPERTY LEGISLATION 1207 II. ANECDOTAL EVIDENCE OF CONFLICTING CONNOTATIONS OF 'PROPERTY' 1212 A. Property Law: Historic Origins 1212 B. Legal Academic [...]

INTRODUCTION 510 I. FACTS AND HOLDING 511 II. BACKGROUND LAW: ACQUISITIVE PRESCRIPTION 515 A. THIRTY-YEAR ACQUISITIVE PRESCRIPTION AND PRECARIOUS POSSESSION 517 1. A PRECARIOUS POSSESSOR CANNOT ACQUIRE OWNERSHIP THROUGH ACQUISITIVE [...]

This case note examines the decision of the High Court of Australia in Bosanac v Federal Commissioner of Taxation. Part II provides a case summary. Part III considers the future of the presumptions of resulting trust and advancement following Bosanac. Part IV discusses the judicial references in Bosanac to the presumptions being 'weak', and analyses whether these were an observation of the current state of the law or represent a change to it. Part V reviews the Court's clarification of an earlier case concerning the application of the presumption of resulting trust to married couples, Trustees of the Property of Cummins (a bankrupt) v Cummins. The case note concludes that Bosanac is significant because it has paved the way for the future development of the presumptions, developed the law by weakening the presumptions of resulting trust and advancement, and helpfully clarified the effect of Cummins., I Introduction Bosanac v Federal Commissioner of Taxation concerned the application of the presumptions of resulting trust and advancement. (1) The presumption of resulting trust is an equitable presumption that [...]

In 2019 and 2021, respectively, California and Washington enacted laws banning the operation of private prisons within each state, including those operated by private companies in contracts with the federal government. Nevertheless, the federal government continues to contract with private prisons through Immigrations and Customs Enforcement for the detention of non-United States citizens. In 2022, the Ninth Circuit Court of Appeals held in GEO Group, Inc. v. Newsom that federal immigration law preempted California's private prison ban. Preemption--when federal law supersedes state law--is a doctrinal thicket. Federal courts analyze preemption issues in multiple different ways in a particular case, often leaving unclear rules as to which mode of analysis is applicable. However, recent United States Supreme Court precedent clarified how lower courts should apply preemption doctrines. This Note asserts that the Ninth Circuit erred in GEO Group v. Newsom. In doing so, it analyzes preemption doctrines, including intergovernmental immunity and an interpretive tool called the 'presumption against preemption.' It also analyzes GEO Group's impact on Washington's private prison statute and how the dissent's position in GEO Group not only applied the law correctly but resulted in a more manageable allocation of state and federal power. This Note concludes by offering solutions for Washington State to avoid preemption problems in the future., INTRODUCTION Preemption--when federal law supersedes state law (1)--is a doctrinal thicket. Many of its principles overlap, and the Supreme Court frequently uses multiple forms of preemption analysis when analyzing a [...]

TABLE OF CONTENTS INTRODUCTION 715 I. INJUNCTION, INJUNCTION: WHAT'S YOUR FUNCTION? 718 A. A Brief History of Injunctions 718 B. The eBay and Winter Decisions and Subsequent Court 720 Rulings [...]

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 [...]

I. INTRODUCTION Felons are not allowed to possess firearms--yet. New York State Rifle and Pistol Association v. Bruen is the Supreme Court's most recent elaboration on the Second Amendment, and [...]

When a litigant challenges an agency action, such as rulemaking, based on a relevant official' s unconstitutional appointment or tenure protection, another official often issues a ratification of the challenged action. In some circuits, the ratification defeats the challenge and shields the underlying constitutional defect from judicial review. But long-standing precedent teaches that retroactive government actions are disfavored and thus may be authorized by Congress only in express terms. For example, retroactive rulemaking may be undertaken only if there is clear congressional intent to authorize such rulemaking, apart from rulemaking in general. Because the ratification of rules has the effect of retroactive rulemaking, such ratification may be undertaken only with express authorization for retroactive rulemaking. Even if rule-ratification is not a species of retroactive rulemaking, it still has a retroactive character that requires clear authorization. Such authorization will usually be absent, and the ratifications should usually fail, such that the merits of appointment and removal claims should be reached despite the ratification attempt., TABLE OF CONTENTS INTRODUCTION 426 I. RATIFICATION IN STRUCTURAL CASES 427 A. The Appointments Clause 427 B. The Removal Power 429 C. Ratification 432 II. RETROACTIVITY 435 A. Explicitly Retroactive [...]

This article is informed by a survey carried out in 2021, which found that the application of the presumption of advancement in New Zealand has been inconsistent, and at times confused, in the past 20 years. Taking the analysis further, this article argues that the doctrine of the presumption of advancement should be abolished in New Zealand for transfers of property by parents to adult children ('parent-child transfers'). The doctrine has become increasingly irrelevant. Most notably, the Land Transfer Act 2017 has implicitly abolished the presumption of advancement as well as the presumption of resulting trust in transfers concerning interests in land. The rationales for the doctrine have also become unconvincing or inapplicable. Parental affection has been a synonym for the parent-child relationship, which was underpinned by the financial status of fathers in a bygone era. In the changed legal and societal context of contemporary New Zealand, the notion that parents owe a moral obligation to provide for able-bodied adult children should not entail legal consequences. Complications with relationship property disputes, protection of the elderly and other considerations also support abolition of the doctrine. This article proposes a presumption of loan instead to give certainty, assist court adjudication and guide public behaviour., I INTRODUCTION My New Zealand legal education was completed at Victoria University of Wellington, mostly during the time when Professor Tony Smith was the Dean of the Law School, apart [...]

This paper examines the theoretical and evidentiary challenges associated with interpreting the release of claims that are unknown to private parties at the time the release is executed. It has three objectives. First, the author examines the relevant case law concerning the judicial enforcement of releases of unknown claims. The author shows that courts regularly apply the doctrinal framework of objective contractual interpretation, while at the same time they state that the scope of the release is limited to the claims that are contemplated by the parties at the time of the execution of the release. The unclear relationship between objective intention and contemplation requirement is at the root of the legal uncertainty surrounding the determination of the scope of the release. Second, the author contends that the doctrinal framework of objective contractual interpretation confusingly characterizes the judicial task. When deciding whether unknown claims are included within the scope of broadly worded releases, courts do not engage in a genuine interpretive effort; rather, they engage in a gap-filling exercise. They determine how the risk of unanticipated claims should be allocated on the basis of what may reasonably be imposed on either the releasor or the releasee. Finally, the author proposes a default rule to provide guidance on the judicial allocation of the risk associated with unknown claims. The proposed rule consists of the three principles: (1) courts should presume that generally worded releases are objectively intended to release all claims that are discoverable with reasonable diligence by the parties at the time the release was executed; (2) the plaintiff-releasor advancing an unanticipated claim should bear the burden of proving that at the relevant time, they could not, with reasonable diligence, have acquired knowledge of the claim; (3) the plaintiffs knowledge of a claim is evidenced by their knowledge of the elements constituting a claim. The author contends that by adopting such proposed principles, Canadian courts will see an incremental improvement in both legal certainty and predictability in cases concerning the effect of general releases on unknown claims., Introduction I. Case Law A. The Blackmore Rule B. Decisions Interpreting Releases Narrowly (i) Words as a Factor Limiting the Scope of the Release (ii) The Transactional Context as a [...]

ABSTRACT In its most recent antitrust opinion, National Collegiate Athletic Association v. Alston (2021), the Supreme Court condemned the NCAA's policy against compensating student athletes as a violation of the [...]

Individuals convicted of sex offenses in Alaska are serving extremely long sentences in prison. The Alaska legislature made it impossible for those convicted of sex offenses to have their cases referred to three-judge panels for sentencing outside the presumptive sentencing range set by the legislature. The Alaska Supreme Court then held that different forms of sexual penetration are distinct and separate offenses, meaning that the associated charges cannot be merged and the sentences must run consecutively. Thus, Alaska has embraced lengthy sentences for sex offenses. Unfortunately, this punitive practice is doing little to protect Alaskan communities or rehabilitate the people who commit sex offenses. In fact, the Alaska legislature's decision to limit judicial discretion and, in turn, harshen sentences is rooted in unfounded and inaccurate assumptions about those who commit sex offenses. This Note proposes that Alaska's courts should be able to refer sex offense cases to three-judge panels for sentencing outside of Alaska's presumptive sentence ranges, that rehabilitation should replace over-punishment, and that prosecutors should not be able to stack offenses where redundant. Through these solutions, Alaska can protect its communities, help better rehabilitate those who commit sex offenses, and save taxpayer dollars through a more efficient and just criminal justice system., I. INTRODUCTION At the Lemon Creek Correctional Center treatment program for people convicted of sex offenses, incarcerated people are given the opportunity to write letters to their victims. (1) Although [...]

This article challenges the long-standing rule concerning the assessment of damages for breach of contract that, where the contract allows for alternative methods of performance by the promisor, damages are to be calculated by reference to the minimum level of performance provided for in the terms of the contract. It is argued that the rule is inconsistent with the compensatory principle and that, since it has been undermined by various qualifications or exceptions that severely curtail its operation, it would improve the coherence of the law of damages if it were abandoned., I INTRODUCTION In the recent case of Forest Holdings Ltd v Mangatu Blocks Incorporation (1) the Court of Appeal in a judgment delivered by Goddard J endorsed and applied the [...]

Antitrust is atomistic: deliberately focused on trees, not forests. It pays attention to the consequences of individual acts alleged to be anticompetitive. That focus is misplaced. Companies and markets don't focus on one particular act to the exclusion of all else. Business strategy emphasizes holistic, integrated planning. And market outcomes aren't determined by a single act, but by the result of multiple acts by multiple parties in the overall context of the structure and characteristics of the market. The atomistic nature of modern antitrust law causes it to miss two important classes of potential competitive harms. First, the focus on individual acts, coupled with the preponderance of the evidence standard for proving a violation, means that antitrust can't effectively deal with what we might call probabilistic competitive harm: multiple acts, any one of which might or might not harm competition. Second, atomistic antitrust tends to miss synergistic competitive harm: acts which are lawful when taken individually but which combine together in an anticompetitive way. Unfortunately, modern antitrust law has strayed too far down the atomistic pathway. Courts and agencies too often take a narrow, transaction-specific focus to challenged conduct. Instead of asking 'is the overall behavior of this company reducing competition in the market,' they focus on a particular merger or challenged monopolistic practice in isolation. Courts and agencies need to move beyond atomistic antitrust and take a more holistic look at the circumstances and effects of an overall pattern of conduct. Our goal in this Article is to set out a framework for integrated antitrust, in which individual actions can be understood not just on their own but also as part of a comprehensive whole. Only by doing so can the legal system both return antitrust to its roots and bring antitrust into the modern context of the business decisions that courts must analyze today., TABLE OF CONTENTS Introduction 1872 I. Antitrust's Focus on the Trees 1876 A. Standards of Proof 1876 B. Mergers and Future Harm 1879 C. Petitioning Agencies and Courts 1884 D. [...]

Before the Supreme Court's 2006 decision in eBay Inc. v. MercExchange, L.L.C., which ruled that courts should exercise equitable discretion when considering whether to issue permanent injunctions in patent infringement cases, courts routinely granted injunctions in copyright cases when plaintiff's proved that defendants had infringed or had likely infringed copyrights. Such findings triggered presumptions of irreparable harm, which were almost never rebutted. Only rarely would courts consider a balancing of hardships or effects of injunctions on public interests. In the first several years after eBay, commentators reported that eBay had had little impact on the availability of injunctive relief in copyright cases. However, after a key Second Circuit ruling in 2010 concluded that eBay requires plaintiff's to prove all four factors and that eBay had overturned presumptions of irreparable harm, courts have dutifully followed the dictates of eBay and have more frequently denied injunctions in four types of cases: (1) when copyright owners failed to offer persuasive evidence of irreparable harm and/or inadequacy of legal remedies, (2) when a balance of hardships favored defendants, (3) when public interests would be better served by denying the requested injunctions, and (4) when the plaintiff was seeking to vindicate non-copyright interests. While injunctions are still quite common in simple piracy cases, eBay has radically changed the injunctive relief calculus for copyright plaintiff's. Although numerous private law scholars have criticized eBay for its departures from traditional principles of equity, this Article explains why the post-eBay copyright rulings comport with those principles. It concludes that the eBay four-factor test has had, by and large, salutary effects on the exercise of equitable discretion in considering injunctions in copyright infringement cases. eBay notwithstanding, there are numerous reasons why courts in copyright cases continue to be reluctant to grant damage-only awards. After eBay, courts have eschewed categorical pro-injunction rules and induced them to carefully tailor copyright infringement remedies. TABLE OF CONTENTS Introduction 777 I. Pre-Campbell Case Law on Injunctive Relief 780 A. Unreasonable Delay and Triviality Defenses to Injunctive Relief 782 B. Substantial Investments in Non-Infringing Elements 783 C. Difficulty in Fashioning an Appropriate Remedy 786 D. Mixed Views About Injunctions in Close Fair Use Cases 788 E. Aftermath of the New Era Decision 795 II. The Evolution of Injunctive Relief from Campbell to eBay 798 A. The Campbell Decision and Its Note 10 799 B. The Modest Impact of Campbell's Note 10 on the Availability of Injunctive Relief Before eBay 802 C. Other Public Interest and Balance of Hardships Rationales for Withholding Injunctions Pre-eBay 807 D. Withholding Injunctions in Disputes Over License Agreements 812 III. The Impacts of eBay on Injunctions in Copyright Cases 813 A. eBay v. Merc Exchange 815 B. The Slow Demise of the Presumption of Irreparable Harm 819 C. Post-eBay Cases Denying Permanent Injunctions Despite Infringement 823 1. Failure to Prove Irreparable Harm and Inadequacy of Legal Remedies 824 2. Balance of Hardships Tipping to Defendants 825 3. Public Interest Considerations 827 4. Administrability Considerations 830 D. Post-eBay Cases Denying Preliminary Injunctions 831 1. Failure to Prove Irreparable Harm and Inadequate Legal Remedies 831 2. Balance of Hardships: Considering the Effects of an Injunction on the Defendant's Business or Third Parties 834 3. Considering the Public Interest in Close Cases 837 E. Injunctions Remain Common in 'Simple Piracy' Cases 838 F. No Preliminary Injunction to Protect Non-Copyright Interests 840 IV. Reflections on eBay and Equitable Principles 843 A. Effects of eBay's Departure from Traditional Equitable Principles 844 B. Why Don't Courts Withhold Injunctions More Often in Copyright Cases'? 848 Conclusion 854, INTRODUCTION The Supreme Court's 2006 eBay Inc. v. MercExchange, L.L.C. ruling has had transformative effects on the availability of injunctive relief for intellectual property (IP) infringements. (1) That decision held [...]

State ex rel. Becker v. Wood, 611 S.W.3d 510 (Mo. 2020) (en banc). I. INTRODUCTION In the American criminal justice system, prosecutors have an enormous amount of discretion and power. [...]

There exists a notion in the United States that the federal government manages land while the states manage wildlife. While it is true that the responsibilities of wildlife management have traditionally been reserved to the states, in many instances the federal government does have the authority to manage and conserve wildlife. This overlapping jurisdiction most often leads to the preemption of a state's laws and the frustration of its wildlife management goals. In the 2020 election, Colorado voters narrowly passed Proposition 114, which requires Colorado Parks and Wildlife to reintroduce wolves to the state by the end of 2023. This marks the first instance of voters requiring a wildlife agency to take such a broad action regarding the management of a species. While this fact may not have an impact on the exact plan that Colorado Parks and Wildlife creates, it presents a novel opportunity for Colorado, and any states that follow, to strengthen their authority over resident wildlife. By undertaking this reintroduction effort with a mandate from voters, Colorado may benefit from the heightened deference that courts often give, or suggest giving, to state ballot initiatives. Operating much like a presumption against preemption, this heightened deference would serve to tilt the scales in the states' favor in the event of a conflict with federal authority. This article explores how ballot initiatives present the opportunity for states to claw back some authority over their wildlife that has been eroded by courts over the last century, including introducing the deferential framework under which courts should analyze conflicts between federal authority and state ballot initiatives., INTRODUCTION Paws on the ground by 2023. In the 2020 election Colorado voters passed Proposition 114, which requires Colorado Parks and Wildlife ('CPW') to reintroduce wolves to the state by [...]

I. INTRODUCTION II. HISTORICAL CONTEXT OF THE DUTY TO DISCLOSE III. RATIONALE FAILS TO JUSTIFY THE DUTY IMPOSED IV. THE 21ST CENTURY PATENT OFFICE V. CONCLUSION I. INTRODUCTION We currently [...]

I. INTRODUCTION II. LAND RESTITUTION FOR INTERNALLY DISPLACED PERSONS A. Background on Law 1448 B. Innovations of Law 1448 1. Legal Presumptions in Favor of 'Informal' Restitution Claimants 2. Shifted [...]

Alaska law has long recognized that a presumption of undue influence arises as a matter of law when a will's primary beneficiary participates in its drafting and has a fiduciary or confidential relationship with the testator. In its 2007 decision Ware v. Ware, the Alaska Supreme Court extended this principle beyond testamentary scenarios to any situation in which the principal in a confidential relationship benefits from the relationship. But the decision stated the law incorrectly. The court's analysis, cited precedents, and common sense all demonstrate that the court meant to say that the presumption of undue influence arises when a fiduciary in a confidential relationship benefits from the relationship, not when a principal benefits., I. INTRODUCTION The Alaska Supreme Court has long held that there is a presumption of undue influence when the main beneficiary of a will has a confidential or fiduciary relationship [...]

TABLE OF CONTENTS INTRODUCTION 288 I. MOOTNESS DOCTRINE AND ITS EXCEPTIONS 290 A. Capable of Repetition, Yet Evading Review 291 B. Voluntary Cessation 292 II. VOLUNTARY CESSATION APPLIED TO GOVERNMENT [...]

This article proposes, as a matter of principle, that there should be a rebuttable presumption in favor of extending voting rights in local elections to permanent residents. It will justify why the proposed presumption should apply, the ways in which it could be rebutted, and offer some insight into how the presumption could serve as a guide to constitutional interpretation and design. It will review the reasons for the connection between citizenship and voting rights, and then address why permanent residents should be granted the right to vote in local elections. Three case studies will be used to illustrate how the presumption could apply to various constitutional democracies. This article ultimately concludes that normative considerations weigh in favor of enfranchising permanent residents. Noncitizens have demonstrated that they are stakeholders in their communities. Granting them the right to participate in local elections accommodates democratic principles without hindering the ability of national governments to pursue their interests. The article suggests that the proposed presumption should hold unless there is evidence that the issues discussed at the local level include issues generally associated with national policy and that the permanent residents have a reasonable opportunity to naturalize. Notions of fairness and practical considerations weigh in favor of enfranchising permanent residents in local elections., INTRODUCTION 212 I. THE PUSH FOR NONCITIZEN VOTING RIGHTS 216 A. Voting Rights and Political Underpinnings 218 B. Noncitizen Voting in Practice 221 II. THE UNIQUENESS OF LOCAL ELECTIONS 222 [...]

'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.' (1) INTRODUCTION On [...]

Text [*155] The Violent Crimes in Aid of Racketeering (VICAR) is a federal criminal statute that proscribes certain violent crimes committed to further an individual's position in an organized criminal [...]

INTRODUCTION The Armed Career Criminal Act (ACCA) imposes mandatory minimum sentences on individuals convicted of being a felon in possession of a firearm who have at least three prior convictions [...]

I. Introduction II. Immunity from Suit in Public International Law (A) Sovereign Immunity (i) Sources of Sovereign Immunity (ii) Legal Theory on Sovereign Immunity (iii) Doctrinal Evolution of Sovereign Immunity [...]