Law Commons^™

How Crisis Affects Crypto: Coronavirus As A Test Case, Hadar Y. Jabotinsky, Roee Sarel

UC Law Journal

Everybody is talking about cryptocurrencies. These digital tokens, which started in a one-asset market, have swiftly ballooned into a massive and diverse “cryptomarket.” The cryptomarket is still mostly unregulated, but this is about to change. With President Biden’s adoption of the Executive Order on Ensuring Responsible Development of Digital Assets, regulatory initiatives are being adopted abroad, and global regulation looms ahead. In light of the expected regulatory changes, two important questions emerge: is there a clear rationale for legal intervention in the cryptomarket? And if so, what type of regulation is optimal?

This Article is the first to consider how …

Mistreatment And Exploitation Of Skilled Foreign Workers Through H- Visa Precarity, Isha Vazirani

UC Law Journal

The Department of Homeland Security (DHS) announced that beginning on May 26, 2015, certain H-4 dependents of H-1B nonimmigrants would be eligible to apply for an Employment Authorization Document (EAD). The H-4 EAD program was the target of several threats and changes under the Trump Administration, which made it increasingly difficult for H-4 EAD holders to maintain uninterrupted employment authorization. These difficulties prompted several lawsuits against the U.S. Citizenship and Immigration Services (USCIS), under DHS. USCIS favorably settled one such class-action lawsuit. Still, the H-4 EAD program remains only precariously in place because it was never officially codified and exists …

Immigration Law’S Boundary Problem: Determining The Scope Of Executive Discretion, Peter Margulies

UC Law Journal

In immigration law, executive discretion has become contested terrain. Courts, officials, and scholars have rarely distinguished between regulatory discretion, which facilitates exclusion and removal of noncitizens, and protective discretion, which safeguards noncitizens’ reliance interests. Moreover, courts have long discerned an internal-external divide in discretion, deferring to executive measures that exclude noncitizens abroad, while reducing deference for measures concerning noncitizens who have already entered the United States. Immigration law needs a cohesive framework for executive discretion. This Article suggests a stewardship model to fill that gap.

Recent developments have emphasized the need for a coherent model of discretion. The Trump Administration …

Loyalties V. Royalties, Sarah Polcz

UC Law Journal

Friendship rewards us with a bond of loyalty and equality. The marketplace rewards us based on what we have to offer. When friends work together to create something, and when the market judges their creation to have value, this sets up a clash between realms. Should the pie of profits be sliced according to the values of friendship or the values of the marketplace? The answer matters for policymakers concerned with creative incentives. How satisfied people are with their monetary rewards can turn more on how much others are getting—their relative rewards—than on the absolute amount received. Nevertheless, it is …

The Surprisingly Strong Case For Local Income Taxes In The Era Of Increased Remote Work, Erin Adele Scharff, Darien Shanske

UC Law Journal

Traditional theoretical literature on fiscal federalism urges cities to finance themselves with taxes on immobile sources. Thus, the literature sees real property taxes as the best source of local revenue; real property, after all, cannot be easily moved. This same literature eschews local income taxes because it is easy for a taxpayer to move, thus allowing exit from local income tax obligations.

Practice here seems to follow theory: cities do not tend to levy income taxes. However, this general trend has caused scholars to overlook important exceptions. In fact, many cities impose income taxes and have for a long time. …

Mitigating Catastrophe Risk For Landowners, Stewart E. Sterk

UC Law Journal

Local, national, and global catastrophes entail significant risk for landowners. The governmentsponsored National Flood Insurance Program illustrates how subsidizing insurance against catastrophe risk can result in overinvestment in risk-prone properties. Government intervention, however, has largely been a response to the historical failure of the private insurance industry to provide adequate protection against correlated risks, a failure with the potential to generate underinvestment in land and devastate existing owners.

When data is available about the incidence and severity of potential disasters, improvements in technology have made it more feasible for insurers to calibrate premiums and discounts with greater accuracy, and sophisticated …

When Further Incarceration Is No Longer In The Interest Of Justice: Instituting A Federal Prosecutor-Initiated Resentencing Framework, Lydia Tonozzi

UC Law Journal

The dire state of the prison population in the United States has become common knowledge both at home and abroad. Mass incarceration in the United States has been caused by nearly four decades of retributive criminal justice policies that do little to reduce crime. This mass incarceration imposes a multitude of costs on American society, both financially and socially. Furthermore, congressional goals to reduce crime rates are necessarily undermined by punitive policies at the federal level. The history of California’s penal system during the same time frame parallels the federal history. Yet in 2017, California began to remedy this history …

Foreign Investment And National Security Challenges In The Data Age: An Assessment Of The Current Regime And Recommendations, Irene Yu

UC Law Journal

This Note contributes to the growing literature that attempts to grasp the current landscape of international trade and investment norms and policies in the data age. Focusing on the disputes between the United States and China surrounding Chinese investment in American businesses that gather private user data, this Note adds to the argument that new challenges posed by the internet age and the use of private data have transformed current international trade policy and the national security exception regime. The U.S. government in the recent years has demonstrated little self-restraint in employing national security grounds to justify its interference with …

Human-Centered Design To Address Biases In Artificial Intelligence, Ellen W. Clayton, You Chen, Laurie L. Novak, Shilo Anders, Bradley Malin

Vanderbilt Law School Faculty Publications

The potential of artificial intelligence (AI) to reduce health care disparities and inequities is recognized, but it can also exacerbate these issues if not implemented in an equitable manner. This perspective identifies potential biases in each stage of the AI life cycle, including data collection, annotation, machine learning model development, evaluation, deployment, operationalization, monitoring, and feedback integration. To mitigate these biases, we suggest involving a diverse group of stakeholders, using human-centered AI principles. Human-centered AI can help ensure that AI systems are designed and used in a way that benefits patients and society, which can reduce health disparities and inequities. …

Using An Evolutionary Approach To Improve Predictive Ability In Social Sciences: Property, The Endowment Effect, And Law, Owen D. Jones, Sarah F. Brosnan

Vanderbilt Law School Faculty Publications

From the perspective of other disciplines, evolutionary approaches more often provide explanation and coherence than they help to solve discrete problems. We believe that more examples of the latter sort will help both with disciplinary synthesis and with the advance of knowledge. Here we describe a 20-year arc of research to demonstrate the problem-solving utility of an evolutionary perspective by focusing, as a case study, on a particular cognitive bias – the endowment effect – that has implications for law. Legal systems often assume that humans make decisions that are substantively rational, consistent, and aimed at maximizing their own wellbeing. …

The Scope Of Generic Choice Of Law Clauses, Tanya J. Monestier

Journal Articles

Non-proceduralists have the perception that questions of jurisdiction or choice of law are just preliminary issues that need to be dealt with before getting to the real dispute, the things that matter. What they do not realize is that these preliminary issues are often, themselves, the real dispute. They are the lever which permits litigation to proceed or which stops a claim dead in its tracks. Thus, these procedural matters — often dismissed as technicalities — have the potential to shape the dispute in significant ways.

Take for instance, a staple of commercial and consumer contracting: the ubiquitous choice of …

Comment: The United Nations And Robot Rights, Heather Alexander

Canadian Journal of Law and Technology

This comment predicts that robot rights under the law are likely to become a reality in the next fifty years, possibly in multiple countries, as governments pass laws granting rights to robots, including civil rights like voting. This comment calls on the United Nations (‘‘UN”) to be pro-active in guiding the emergence of robot rights by convening a working group on robot rights to better guide member states through what will be a time of momentous change.

Why are robots likely to soon gain rights in some UN member states? There have been huge advances in AI that can pass …

Regulating Uncertain States: A Risk-Based Policy Agenda For Quantum Technologies, Tina Dekker, Florian Martin-Bariteau

Canadian Journal of Law and Technology

Many countries are taking a national approach to developing quantum strategies with a strong focus on innovation. However, societal, ethical, legal, and policy considerations should not be an afterthought that is pushed aside by the drive for innovation. A responsible, global approach to quantum technologies that considers the legal, ethical, and societal dimensions of quantum technologies is necessary to avoid exacerbating existing global inequalities. Quantum technologies are expected to disrupt other transformative technologies whose legal landscape is still under development (e.g., artificial intelligence [‘‘AI”], blockchain, etc.). The shortcomings of global policies regarding AI and the digital context teach lessons that …

Cryptocurrencies And Climate Change: A Net-Zero Paradox, Jason Maclean

Canadian Journal of Law and Technology

Cryptocurrencies pose a number of complex law and policy problems, the most pressing of which are the industry’s climate and environmental impacts. This article examines the climate and environmental impacts of crypto-assets in the broader law and policy context of the UN Paris Agreement and the global goal of reaching net-zero emissions by 2050 or earlier. This approach not only illuminates the limitations and paradoxical nature of the crypto-industry’s climate commitments, but also the limitations and paradoxical nature of ‘‘net zero” itself as the predominant framing of national, subnational, and nonstate actors’ climate pledges. The article concludes by examining the …

Crowdsourcing Justice, Matthew Dylag

Canadian Journal of Law and Technology

Social media has become ubiquitous in the daily lives of Canadians. Beyond connecting with friends and family, people also turn to social media to find information and seek advice on any number of topics, be it home cooking, workout routines, or automobile purchases. Indeed, social media is a flexible vehicle that can be leveraged for communication on almost any topic. It is not surprising, therefore, that individuals are also turning to social media to help resolve their legal problems. Even a cursory examination of social media will reveal that it is not uncommon for individuals who are experiencing legal difficulties …

From Cartier To Codification: Website-Blocking Injunctions And Third-Party Internet Service Provider Respondents, Dan Mackwood

Canadian Journal of Law and Technology

In recent years, the proliferation of commercial-scale copyright infringement through unauthorized online content streaming has created persisting legal hurdles for Canadian rights holders seeking redress. John Doe defendants in online copyright disputes can easily preserve their anonymity and operate their infringing enterprises from unknown locations, undeterred by injunctions issued against them directly. These anonymized administrators of illicit streaming platforms offer users unauthorized access to content for a lower cost than or as a free alternative to the access provided by the legitimate rights holder. This form of copyright infringement has reportedly resulted in up to hundreds of thousands of lost …

Qualified Immunity’S Flawed Foundation, Alexander A. Reinert

Articles

Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine—fundamental errors that have never been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction—namely, that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common …

Repugnant Precedents And The Court Of History, Daniel B. Rice

Michigan Law Review

Aged Supreme Court precedents continue to tolerate many practices that would shock modern sensibilities. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very cultural shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot genuinely explain what ails societally outmoded decisions. Even for justices inclined to condemn these embarrassments in less clinical terms, it is unclear what qualifies courts to make universalist claims about contemporary American values.

The Court recently sidestepped these difficulties by insisting that one of its …

Legal Dispositionism And Artificially-Intelligent Attributions, Jerrold Soh

Research Collection Yong Pung How School Of Law

It is conventionally argued that because an artificially-intelligent (AI) system acts autonomously, its makers cannot easily be held liable should the system's actions harm. Since the system cannot be liable on its own account either, existing laws expose victims to accountability gaps and need to be reformed. Recent legal instruments have nonetheless established obligations against AI developers and providers. Drawing on attribution theory, this paper examines how these seemingly opposing positions are shaped by the ways in which AI systems are conceptualised. Specifically, folk dispositionism underpins conventional legal discourse on AI liability, personality, publications, and inventions and leads us towards …

Repeal Of The Recja And Transfer Of Countries To The Refja, Adeline Chong

Research Collection Yong Pung How School Of Law

Singapore’s Reciprocal Enforcement of Commonwealth Judgments Act 1921 (‘RECJA’) is based on the UK Administration of Justice Act 1920 and its Reciprocal Enforcement of Foreign Judgments Act 1959 (‘REFJA’) is based on the UK Foreign Judgments (Reciprocal Enforcement) Act 1933. In 2019, the government amended the REFJA in significant ways (previously detailed here), expanding its scope to include the registration of judgments from non-superior courts of gazetted countries, judicial settlements, non-money judgments and interlocutory judgments. At the same time, the RECJA was repealed from a date to be determined by the government.

A Review Of The 2021/22 International Moots Season, Siyuan Chen

Research Collection Yong Pung How School Of Law

This is the eighth1 annual review of Singapore’s performance in international moot court competitions.2 An overview of the results for this season is presented at Table #1 below, while Tables #2 and #3 provide a snapshot of the results of the past 10 seasons. Despite the substantial lifting of travel restrictions throughout the world, the 2021/22 international moots season remained a virtually conducted one for many competitions, though competitions such as IP, Stetson, PAX, and WTO saw a much-welcomed return to in-person hearings, allowing students to compete and interact with teams and judges from around the world at places such …

Measuring Corruption As A Threat To International Security: An Emerging Indicator For Enhancement Of Global Corruption Governance, Sungyong Kang

Michigan Journal of International Law

The conceptual changes to international security after the end of the Cold War, and particularly those following the al-Qaeda attacks of 2001, clarified the symbiotic relationship between corruption and international security: Corruption destroys the social political environment required to create human security and to ensure safety from terrorist attacks, and national borders increasingly fail to restrain its negative consequences.

To achieve human security though policy intervention in domestic affairs, global corruption governance relies on numerical indicators that measure corruption. By evaluating states through public comparison, indicators pressure states to improve their domestic institutions and structures to align them with the …

International Advisory Proceedings On Climate Change, Benoit Mayer

Michigan Journal of International Law

Several island states are expected to be severely harmed by climate change and rising sea levels. In late 2021, several island states launched two legal initiatives aimed at requesting advisory opinions of international courts on the law applicable to climate change. In the hope of fostering more action to combat climate change, these states are asking international courts to clarify the obligations of states to cut greenhouse gas emissions and pay reparations for harm already caused.

This article provides the first comprehensive assessment of the feasibility and desirability of international advisory proceedings on climate change. It analyzes recent developments and …

New Investment Rulemaking In Asia: Between Regionalism And Domestication, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

The article analyses investment rulemaking in new Asian regionalism in the context of evolving national legislation and regional trade strategies. It argues that the Association of Southeast Asian Nations (ASEAN) and the Regional Comprehensive Economic Partnership (RCEP) represent Asia's pragmatic incrementalism in reforming the investment regime. The process reinforces the relationship between international economic law and domestic investment laws. In tandem with transforming international investment agreements, ASEAN expedited investment and services trade, and established the modern investor–state dispute settlement (ISDS) mechanism. The RCEP further buttresses the ASEAN centrality in regional frameworks by consolidating ASEAN Plus One agreements. Yet, the RCEP's …

Re-Examining Judicial Review Of Delegated Legislation, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

The usage of delegated legislation as a means of governance deserves significant attention, in view of the enormous impact that it is capable of having on the lives of citizens. While reforms to the process of parliamentary scrutiny are an important means of minimising the inappropriate usage of delegated legislation, this paper explores the possibility of drawing more fruitfully upon judicial review as an additional control mechanism. It undertakes a theoretical analysis of what makes delegated legislation distinct from primary legislation and other types of executive action for the purposes of judicial review, with a view towards identifying the proper …

Establishing A Conditional Driver Permit In Texas, Luz E. Herrera, Taylor Garner, Crystal Hernandez, Lisa Mares

Faculty Scholarship

The article presents supporting data to expand access to state-issued driver permits for Texans who cannot provide the required documents to obtain a driver’s license. Part I examines the unlicensed and uninsured population in Texas that these efforts attempt to address. Part II discusses state jurisdiction to issue driver licenses and permits. It discusses existing Texas statutes that authorize the issuance of driver’s licenses and permits. The section also offers examples of other state statutes that have expanded their right to regulate driving privileges beyond Real ID Act requirements. Part III presents a partial economic analysis illustrating potential economic benefits …

The Impact Of The Rule Of Law On National Security In African Countries, Catherine Lena Kelly

Judicature International

No abstract provided.

Insider Expungement, Brian M. Murray

Utah Law Review

Like many phases of the criminal justice system, insiders dominate the practice of expungement and there is little to no involvement of the broader community. Recently, scholars in favor of democratization in criminal justice have called for enhanced public involvement during policing, charging, bail determinations, plea-bargaining, and sentencing to improve accountability, transparency, and democratic participation. This Article is the first to extend this critique to decision-making during the expungement process. It conveys how expungement always has been the province of insiders and how recent expungement reforms, while broadening some substantive expungement remedies, double down on this paradigm. Procedures are implemented …

Free Market State (Of Mind): Antitrust Federalism, John J. Flynn And The Utah Constitution’S Free Market Clause, Jorge L. Contreras

Utah Law Review

The Utah Constitution states that “[i]t is the policy of the state of Utah that a free market system shall govern trade and commerce in this state to promote the dispersion of economic and political power and the general welfare of all the people.” Utah’s so-called Free Market Clause, adopted in 1992, is unique among the constitutions of the fifty states. Through an excavation of the historical record and contemporary literature, this Article shows that the Free Market Clause owes its existence to the influence of Professor John J. Flynn of the University of Utah, whose pioneering work on antitrust …

Adopting Social Media In Family And Adoption Law, Stacey B. Steinberg, Meredith Burgess, Karla Herrera

Utah Law Review

Social media has dramatically changed the landscape facing families brought together through adoption. Just as adoptive families thirty years ago could not have predicted the impact of DNA technology on postadoption family life, adoptive families are only now beginning to grasp the impact of social media connectivity on the lives of their growing children. This change is related both to social media’s impact on family life and to fundamental shifts in our understanding of privacy more generally. Understanding the legal rights of parents and children in these circumstances is a novel and underexplored area of family law, constitutional law, and …