Dokdo/Takeshima and Maritime Delimitation Between the Republic of Korea and Japan: A Comment on ICJ Dispute Resolution

The Republic of Korea (Korea) should agree to submit the issue of sovereignty over Dokdo/Takeshima and the issue of maritime delimitation in the East Sea/Sea of Japan to the International Court of Justice (ICJ) because the ICJ is likely to decide that Dokdo/Takeshima is Korean territory and the tensions in the East Sea/Sea of Japan can be resolved to allow further cooperation between the two nations. The ICJ is the primary avenue for peacefully resolving territorial and maritime delimitation disputes between nations, and the ICJ has developed a substantial body of case law analyzing these issues. The ICJ considers various means of acquiring title to determine sovereignty disputes and draws on either customary international law or, if the parties are both signatories, the United Nations Convention on the Law of the Sea (UNCLOS) to resolve these issues. Since both Korea and Japan are parties to UNCLOS, the ICJ is especially equipped to apply that body of law to the dispute

Tokenization of Financial Market Products

Conference overview: New financial market technologies and products are reshaping how risk is distributed across capital markets. These changes offer opportunities for growth and efficiency, but also pose challenges for financial stability. The third IMF-IOSCO conference will continue its tradition of robust dialogue between policymakers, industry experts, and stakeholders on these important issues. This year, the focus of the discussion will be on tokenization of financial market products and retail investor exposure to illiquid assets. The conference will feature fourteen distinguished speakers who will offer their insights into these pressing issues. Senior panelists from both industry and policy sectors will engage in discussions on key trends in tokenization and retailization, with particular attention to their implications for financial stability. In addition, a fireside chat between Mr. Paul S. Atkins from the US SEC and Mr. Jean-Paul Servais from IOSCO will provide valuable perspectives on regulatory approaches in U.S. markets

A Prosecutor’s Ethical Duty to Divert

In an American courtroom, litigants are divided across an aisle, a gavel grants or divests rights, and a community takes sides. This creates a narrative of duality in the justice system, which many believe is vital to the adversarial legal system. A criminal trial is seen as perpetrator versus victim, but the legal posture is actually government versus individual. In fact, a prosecuting attorney has ethical obligations not just to victims, witnesses, and the broader community, but to defendants as well, in part due to their tremendous discretion to bring or dismiss criminal charges. A prosecutor’s power is far too immense to deploy it with partisanship and without caution. This essay argues that prosecutors have an ethical duty to both implement diversion programs and divert defendants likely to succeed in a diversion program, and the model rules should be amended to reflect this duty. First, I review current guidelines regarding prosecutorial ethics related to diversion and criminal justice reform. Then, I survey different types of diversion programs and discuss benefits and challenges of prosecutor-led diversion, court-led diversion, and jail diversion. Next, I discuss two cases where courts overturned a prosecutor’s decision to deny diversion to a defendant. I analyze how these cases demonstrate that denial of diversion can violate existing ethical duties and discuss the challenges of prosecutorial oversight. Finally, I propose an addition to the Model Rules of Professional Conduct to proactively prevent this harm and promote justice

Clear & Convincing: Modern Legal Writing

The authors\u27 building-block approach introduces legal writing skills in stages, beginning with foundational concepts and progressing to more complex forms of analysis and advocacy in both objective and persuasive legal writing. A modular organization of topics by chapter offers optimal versatility for teaching and course design. The comprehensive coverage in Clear and Convincing: Modern Legal Writing extends to legal research strategies, grammar, editing, oral argument, and professional development. Numerous examples and writing samples illustrate legal writing. Exercises throughout develop students\u27 skills. Integrated coverage of digital research and generative AI in legal writing and practice prepares students to use these tools responsibly and ethically.https://digitalcommons.wcl.american.edu/facsch_bks/1300/thumbnail.jp

Kidfluencer Protection: Illinois’ Attempt at Expanding its Version of the Coogan Law.

On July 1, 2024, Illinois enacted pioneering legislation, which expanded its child labor laws to “[m]inors featured in vlogs.” This legislation marks the first successful attempt at protecting the finances of children in the business of social media influencing. Over the past several years, society has started recognizing the dangers of the otherwise lucrative child influencer industry, notably children’s lack of legal entitlement to their earnings. Accordingly, the Illinois legislation began inspiring similar child labor laws in other states. This Comment analyzes whether Section 95 and Section 100 of Illinois’ Child Labor Law of 2024 maintain parental autonomy and adequately protect child influencers (“kidfluencers”) from economic harm. Although the Illinois legislature made a promising first attempt at protecting kidfluencers’ earnings, the new statute creates a significant gap. The statutory language, “[m]inors featured in vlogs,” categorically excludes earnings made by minors who profit off photo content from protection. Illinois courts use a statute’s plain language to determine legislative intent. Therefore, if the Illinois legislature intended to protect kidfluencers’ finances earned through all types of social media content, it should adjust the statutory language of Sections 95 and 100 of the Child Labor Law of 2024. This Comment argues for an amendment that broadens the statutory language to encompass all mediums in which kidfluencers generate income. Once amended, the statute will continue serving as a template for other state legislatures

Re-Examining U.S. Bailouts In The Digital Era: Moral Hazard and Adverse Consequences

Financial institutional bailouts have become the new normal in recent decades. From the savings and loan crisis, to the sub-prime, to SVB and Signature, the U.S. government and regulators have decided that the failure to protect depositors and investors could lead to bank runs, a destabilized banking sector, and ultimately economic turmoil inflicting tremendous monetary and social costs on citizens. However, the mainstreaming of bailouts has led to moral hazard, i.e., the expectation among all stakeholders including financial institutions, investors, creditors, and regulators, that a government rescue is inevitable. The problem of moral hazard is the creation of incentives to engage in riskier business decisions, such as lending to more speculative borrowers, offering above-market rates to creditors, or engaging in criminal conduct. Indeed, despite bailouts—or perhaps because of them— irresponsible speculation, excessive risk-taking, and misconduct continues unabated. Thus, because losses arising from bad behavior are in essence “insured” recidivism is encouraged thereby raising the question of whether bailouts themselves constitute a proximate cause of financial crises. As U.S. financial institutions are allowed to interact with digital assets such as Bitcoin, and new financial intermediaries are integrated into the financial eco-system, the question of whether moral hazard proximately causes crises is of significant importance

Procedural Good Faith in Investment Arbitration—What is It and What Could It Be?

When I selected the topic of procedural good faith for this lecture, I did not expect it to be as unwieldy as it proved to be. After all, good faith is a fundamental concept for every law student, and it anchors our approach to legal analysis and “thinking like a lawyer.” As counsel, our core belief is that proceedings must be conducted in good faith, and we each have a professional duty to act in good faith in arbitration. Nonetheless, I am certain that each of you has witnessed conduct during an arbitration—by the opposite party, of course—that struck you as “not right.” We often hear “war stories” from colleagues recounting improper practices they have witnessed, which are frequently described as “guerrilla tactics.” It is conduct that is not illegal per se, as it does not breach any specific arbitration rule, but it is conduct that we know should not be permitted because it upsets the equilibrium of the process and thereby jeopardizes a fair outcome. As Professor Gaillard explained, under the rubric of abuse of process, such conduct “does not violate any hard and fast legal rule and cannot be tackled by the application of classic legal tools. Abuse of process can nonetheless cause significant prejudice to the party against whom it is aimed and can undermine the fair and orderly resolution of disputes by international arbitration.” In short, good faith is something we all instinctively recognize and endorse. That gut reaction to such conduct is probably as accurate as any technical definition of good faith. It is impossible to find an agreed-upon definition of good faith in legal literature. Most authors describe good faith by listing its attributes. For example, good faith imports a requirement of honest dealing, acting reasonably, ensuring equality of arms, or accounting for the legitimate expectations of the other party. All are useful examples of good faith conduct, but it is hard to call such lists a proper definition. Others define good faith by what it is not. For example, good faith has been defined as a requirement to avoid misuse of the law; not acting solely out of self-interest; not acting in an arbitrary manner; refraining from taking advantage of the opposite party; or, more broadly, avoiding conduct that defeats the purpose of fair and effective dispute resolution. Again, these are all useful guideposts, but they do not define good faith.  Not surprisingly, many authors seeking to elaborate a precise definition of good faith ultimately conclude that it is impossible to formulate, but, paraphrasing Justice Potter seeking to define obscenity in a 1964 United States Supreme Court case, “I know it when I see it.

Campbell at 30: A Retrospective Appreciation

This Article traces the intellectual history of copyright law’s fair use doctrine at the Supreme Court from its first encounter with fair use to its landmark decision slightly more than three decades ago in Campbell v. Acuff-Rose Music, Inc. Campbell provided courts with a coherent, user-centered theory for applying the four statutory fair use factors provided under 17 U.S.C. § 107, a standard the Court recently ratified in Google LLC v. Oracle Am., Inc. and Andy Warhol Foundation for the Visual Arts v. Goldsmith. As one of three related articles, this Article advances two principal claims to contribute to the intellectual history of fair use. This Article demonstrates how contested the role of fair use in copyright law had been both before and after Congress codified the doctrine in 1976 until Campbell. Some parties and Justices treated fair use as a narrow doctrine, limited by presumptions against its application. Others understood the doctrine to be a central counterbalance to copyright law’s exclusive rights. By carefully analyzing the Court’s fair use jurisprudence up to, and including, Campbell, this Article shows that the Court and counsel appearing before it went through a learning process about fair use. In particular, until Campbell, the Court had not fully appreciated the impact of fair use’s codification or the need for the Court to provide lower courts with a coherent theory for applying the four fair use factors in § 107. This Article’s second claim rebuts recent attempts by some courts and commentators to construe Campbell narrowly in the wake of the Court’s Warhol decision. As of this writing, these revisionist arguments have been submitted in two currently pending appellate cases, one in the Ninth Circuit and the other in the Tenth Circuit. By analyzing both the public filings and the now-public internal case files of some of the Justices, this Article provides several new insights to support the case for reading Campbell capaciously. Indeed, Campbell’s adoption of the transformative use standard reflects the hard-won triumph of an important idea about the role of fair use in copyright law

Originalism as Disruption

This Article challenges the conventional understanding of originalism as a method that promotes unchanging constitutional meanings. Drawing on four and a half decades of experience since Attorney General Edwin Meese first championed originalism as a conservative project, this Article demonstrates that originalism has generally proven destabilizing rather than stabilizing to constitutional law. Landmark cases such as New York State Rifle & Pistol Association v. Bruen, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, and Shelby County v. Holder show that the Supreme Court frequently deploys originalism when it seeks to upend settled constitutional doctrine, contradicting claims that originalism promotes constraint and predictability. This Article surveys the proliferation of originalism “brands,” documenting at least thirty different labels, and suggests that this theoretical fragmentation reflects what intellectual historian Thomas Kuhn describes as the late stages preceding “paradigm” collapse in intellectual disciplines. As originalist theory becomes increasingly complex and internally conflicted, it fails to provide the methodological coherence its proponents claim. Some now argue for traditionalism as a modified paradigm that may better describe the Court’s actual interpretive practice. Rather than abandoning originalism and traditionalism, this Article advocates for using “modest” and “pluralist” originalism, supplemented with living traditionalism. This approach can help provide accessible explanations for judicial decisions, offer some interpretive guardrails, and, in an important but thus far overlooked virtue, serve as a tool for recovering forgotten constitutional meanings that merit reconsideration. This Article introduces the concept of “inspirational originalism,” meaning historical inquiry to revive neglected constitutional principles that may offer value in contemporary debates. Ultimately, this Article reframes originalism’s primary function as disruption. When constitutional precedent has strayed from founding principles or when settled doctrine ignores historically grounded values, originalism and traditionalism can serve as tools for constitutional change. This disruptive potential requires judgment about which traditions deserve preservation and which merit abandonment—judgments that originalism alone cannot provide. This Article concludes that originalism’s future lies in its use as one interpretive tool among others in the ongoing project of constitutional reconstruction