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Full-Text Articles in Law

Protests, Terrorism, And Development: On Ethiopia's Perpetual State Of Emergency, Awol Allo Feb 2018

Protests, Terrorism, And Development: On Ethiopia's Perpetual State Of Emergency, Awol Allo

Yale Human Rights and Development Journal

On October 8, 2016, the Ethiopian government officially declared a nationwide state of emergency in response to a year-long protest by members of Ethiopia's two largest ethnic groups, the Oromo and the Amhara. The Directive issued to implement the state of emergency institutes a new normative regime, astonishing in scope and scale, in which the de jure reversal of the relationship between the rule and the exception has culminated in a new legal reality. This Article argues that Ethiopia's de jure emergency is merely the latest manifestation of the de facto state of emergency in operation since the ...


The Efficacy Of National Human Rights Institutions Seen In Context: Lessons From The Myanmar National Human Rights Commission, Jonathan Liljeblad Feb 2018

The Efficacy Of National Human Rights Institutions Seen In Context: Lessons From The Myanmar National Human Rights Commission, Jonathan Liljeblad

Yale Human Rights and Development Journal

In Human Rights Resolution 2005/74, the United Nations Commission
on Human Rights recognized the importance of National Human Rights Institutions (NHRis) in protecting human rights and called for further work to nurture their growth. In an effort to address critiques that it fell short of U.N. expectations for NHRis, in March 2014 Myanmar's government enacted the Myanmar National Human Rights Commission Law to reform the Myanmar National Human Rights Commission (MNHRC) in accord with the Paris Principles.


The Risk Of Statelessness: Reasserting A Rule For The Protection Of The Right To Nationality, David C. Baluarte Feb 2018

The Risk Of Statelessness: Reasserting A Rule For The Protection Of The Right To Nationality, David C. Baluarte

Yale Human Rights and Development Law Journal

A global effort to combat statelessness and defend the universal right to
nationality is currently underway. Nevertheless, questions persist about the proper scope of the right to nationality, the appropriate form of statelessness protection, and the legal limits of state discretion to deny or deprive an individual of nationality. These questions have animated a heated transnational debate about statelessness in Hispaniola, where the government of the
Dominican Republic has designed a legal system that excludes persons of Haitian descent from Dominican nationality. Central to this conflict is a question about whether actions by the Dominican state leave persons of Haitian ...


Rights-Based And Tech-Driven: Open Data, Freedom Of Information, And The Future Of Government Transparency, Beth Simone Noveck Feb 2018

Rights-Based And Tech-Driven: Open Data, Freedom Of Information, And The Future Of Government Transparency, Beth Simone Noveck

Yale Human Rights and Development Journal

Open data policy mandates that government proactively publish its data
online for the public to reuse. It is a radically different approach to transparency than traditional right-to-know strategies as embodied in Freedom of Information Act (FOIA) legislation in that it involves ex ante rather than ex post disclosure of whole datasets. Although both open data and FOIA deal with information sharing, the normative essence of open data is participation rather than litigation. By fostering public engagement, open data shifts the relationship between state and citizen from a monitorial to a collaborative one, centered around using information to solve problems together.


Trademark Issues Relating To Digitalized Flavor, John T. Cross Jan 2018

Trademark Issues Relating To Digitalized Flavor, John T. Cross

Yale Journal of Law and Technology

Over the past three decades, most people have become accustomed to dealing with music, film, photography, and other expressive media stored in digital format. However, while great strides have been made in digitalizing what we see and hear, there has been far less progress in digitalizing the other senses. This lack of progress is especially evident for the chemical senses of smell and taste. However, all this may soon change. Recently, several groups of researchers have commenced various projects that could store odors and flavors in a digital format, and replicate them for humans.


Block-By-Block: Leveraging The Power Of Blockchain Technology To Build Trust And Promote Cyber Peace, Scott J. Shackelford, Steve Myers Jan 2018

Block-By-Block: Leveraging The Power Of Blockchain Technology To Build Trust And Promote Cyber Peace, Scott J. Shackelford, Steve Myers

Yale Journal of Law and Technology

There has been increasing interest in the transformative power of not only crypto-currencies like Bitcoin, but also the technology underlying them-namely blockchain. To the uninitiated, a blockchain is a sophisticated, distributed online ledger that has the potential, according to Goldman Sachs, to "change 'everything."' From making businesses more efficient to recording property deeds to engendering the growth of 'smart' contracts, blockchain technology is now being investigated by a huge range of organizations and is attracting billions in venture funding. Even the U.S. Defense Advanced Research Projects Agency (DARPA) is investigating blockchain technology to "create an unhackable messaging system."


Whose Song Is That? Searching For Equity And Inspiration For Music Vocalists Under The Copyright Act, Tuneen E. Chisolm Jan 2018

Whose Song Is That? Searching For Equity And Inspiration For Music Vocalists Under The Copyright Act, Tuneen E. Chisolm

Yale Journal of Law and Technology

This article examines some of the inherent inequities that

exist for music vocalists under the United States Copyright Act and related music industry practices, due to the limited scope of protection given to sound recordings and the absence of an express inclusion of nondramatic music performance as a protected work under Section 102(a). It argues for expansion of the rights afforded to include, for music vocalists with respect to nondramatic works, an inalienable copyright, separate from the sound recording copyright, based upon a sole right of authorship in their performance as an applied composition, once fixed. It also argues ...


Social Media Searches And The Reasonable Expectation Of Privacy, Brian Mund Jan 2018

Social Media Searches And The Reasonable Expectation Of Privacy, Brian Mund

Yale Journal of Law and Technology

Under existing law, social media information communicated through behind password -protected pages receives no reasonable expectation of privacy. The Note argues that the Fourth Amendment requires a greater degree of privacy protection for social media data. Judicial and legislative activity provides indicia of a willingness to reconsider citizens' reasonable expectation of privacy and reverse an anachronistic equation of privacy with secrecy.
Government monitoring of private social media pages constitutes a deeply invasive form of surveillance and, if government agents employ covert tactics to gain access to private social media network s, then the Fourth Amendment controls government use of that ...


Don't Fence Me In: Reforming Trade And Investment Law To Better Facilitate Cross-Border Data Transfer, Andrew D. Mitchell, Jarrod Hepburn Jan 2018

Don't Fence Me In: Reforming Trade And Investment Law To Better Facilitate Cross-Border Data Transfer, Andrew D. Mitchell, Jarrod Hepburn

Yale Journal of Law and Technology

The transfer of data across borders support s trade in most service industries around the world as well as the growth of traditional manufacturing sectors. However, several countries have begun to adopt laws impeding the cross-border transfer of data, ostensibly in pursuit of policy objectives such as national security, public morals or public order, and privacy. Such domestic measures create potential concerns under both international trade law and international investment law. Accordingly, recent trade and investment negotiations such as the Trans-Pacific Partnership Agreement (TPP) include specific provisions mandating the permissibility of cross-border data transfer and prohibiting data localization in certain ...


Tackling The Algorithmic Control Crisis -The Technical, Legal, And Ethical Challenges Of Research Into Algorithmic Agents, B. Bodo, N Helberger, K Irion, K Zuiderveen Borgesius, J Moller, B Van De Velde, N Bol, B Van Es, C De Vreese Jan 2018

Tackling The Algorithmic Control Crisis -The Technical, Legal, And Ethical Challenges Of Research Into Algorithmic Agents, B. Bodo, N Helberger, K Irion, K Zuiderveen Borgesius, J Moller, B Van De Velde, N Bol, B Van Es, C De Vreese

Yale Journal of Law and Technology

Algorithmic agents permeate every instant of our online existence. Based on our digital profiles built from the massive surveillance of our digital existence, algorithmic agents rank search results, filter our emails, hide and show news items on social networks feeds, try to guess what products we might buy next for ourselves and for others, what movies we want to watch, and when we might be pregnant. Algorithmic agents select, filter, and recommend products,
information, and people; they increasingly customize our physical environments, including the temperature and the mood .


Going Native: Can Consumers Recognize Native Advertising? Does It Matter?, David A. Hyman, David Franklyn, Calla Yee, Mohammad Rahmati Jan 2018

Going Native: Can Consumers Recognize Native Advertising? Does It Matter?, David A. Hyman, David Franklyn, Calla Yee, Mohammad Rahmati

Yale Journal of Law and Technology

Native advertising, which matches the look and feel of unpaid news and editorials, has exploded online. The Federal Trade Commission has long required advertising to be clearly and conspicuously labeled, and it recently reiterated that these requirements apply to native advertising. We explore whether respondents can distinguish native advertising and "regular" ads from unpaid content, using 16 native ads, 5 ''regular" ads, and 8 examples of news / editorial content, drawn from multiple sources and plat forms. Overall, only 37% of respondents thought that the tested examples of native
advertising were paid content, compared to 81% for "regular" advertising, with variation ...


When Timekeeping Software Undermines Compliance, Elizabeth Tippett, Charlotte S. Alexander, Zev J. Eigen Jan 2018

When Timekeeping Software Undermines Compliance, Elizabeth Tippett, Charlotte S. Alexander, Zev J. Eigen

Yale Journal of Law and Technology

Electronic timekeeping is a ubiquitous feature of the modern workplace. Time and attendance software enables employers to record employees' hours worked, breaks taken, and related data to determine compensation. Sometimes this software also undermines wage and hour law, allowing bad actor employers more readily to manipulate employee time cards, set up automatic default rules that shave hours from employees' paychecks, and disguise edits to records of wages and hours. Software could enable transparency, but when it serves to obfuscate instead, it misses an opportunity to reduce costly legal risk for employers and protect employee rights. This article examines thirteen commonly ...


Suffrage For People With Intellectual Disabilities And Mental Illness: Observations On A Civic Controversy, Charles Kopel Dec 2017

Suffrage For People With Intellectual Disabilities And Mental Illness: Observations On A Civic Controversy, Charles Kopel

Yale Journal of Health Policy, Law, and Ethics

Most electoral democracies, including forty-three states in the United States,
deny people the right to vote on the basis of intellectual disability or mental illness. Scholars in several fields have addressed these disenfranchisements, including legal scholars who analyze their validity under U.S. constitutional law and international-human-rights law, philosophers and political scientists who analyze their validity under democratic theory, and mental-health
researchers who analyze their relationship to scientific categories.


Regulatory Disruption And Arbitrage In Health-Care Data Protection, Nicolas P. Terry Dec 2017

Regulatory Disruption And Arbitrage In Health-Care Data Protection, Nicolas P. Terry

Yale Journal of Health Policy, Law, and Ethics

This article explains how the structure of U.S. health-care data protection
(specifically its sectoral and downstream properties) has led to a chronically uneven policy environment for different types of health-care data. It examines claims for health-care data protection exceptionalism and competing demands such as data liquidity. In conclusion, the article takes the position that health­ care-data exceptionalism remains a valid imperative and that even current concerns about data liquidity can be accommodated in an exceptional protective model. However, re-calibrating our protection of health-care data residing outside of the traditional health-care domain is challenging, currently even
politically impossible.


Revisiting Incentive-Based Contracts, Wendy Netter Epstein Dec 2017

Revisiting Incentive-Based Contracts, Wendy Netter Epstein

Yale Journal of Health Policy, Law, and Ethics

Incentive-based pay is rational, intuitive, and popular. Agency theory tells us
that a principal seeking to align its incentives with an agent's should be able to simply pay the agent to achieve the principal's desired results. Indeed, this strategy has long been used across diverse industries-from executive compensation to education, professional sports to public service-but with mixed results. Now a new convert to incentive compensation has appeared on the
scene: the United States' behemoth health-care industry. In many ways, the incentive mismatch story is the same. Insurance companies and employers are concerned about constraining the cost of care ...


Paying Research Participants: Regulatory Uncertainty, Conceptual Confusion, And A Path Forward, Emily A. Largent, Holly Fernandez Lynch Dec 2017

Paying Research Participants: Regulatory Uncertainty, Conceptual Confusion, And A Path Forward, Emily A. Largent, Holly Fernandez Lynch

Yale Journal of Health Policy, Law, and Ethics

The practice of offering payment to individuals in exchange for their
participation in clinical research is widespread and longstanding. Nevertheless, such payment remains the source of substantial debate, in particular about whether or the extent to which offers of payment coerce and/or unduly induce individuals to participate. Yet, the various laws, regulations, and ethical guidelines that govern the conduct of human subjects research offer
relatively little in the way of specific guidance regarding what makes a payment offer ethically acceptable-or not. Moreover, there is a lack of definitional agreement regarding what the terms coercion and undue inducement mean in ...


Review Of Cathleen Kaveny, Prophecy Without Contempt: Religious Discourse In The Public Square, Andrew Forsyth Oct 2017

Review Of Cathleen Kaveny, Prophecy Without Contempt: Religious Discourse In The Public Square, Andrew Forsyth

Yale Journal of Law & the Humanities

Then Jesus said to them, "Prophets are not without honor, except in their hometown, and among their own kin, and in their own house" (Mark 6:4).

Hear the word of the LORD, 0 people of Israel; for the LORD has an indictment against the inhabitants of the land (Hosea 4:1 a).

Unsurprisingly, perhaps, presidential elections prompt Americans to take stock of the state of the nation, and, in particular, the state of democracy: the institutions, conventions, and habits, that is, which allow for representative government, and which-in principal, at least-ground and ensure equal rights and fair treatment. Countless ...


The Rules Of The Game And The Morality Of Efficient Breach, Gregory Klass Oct 2017

The Rules Of The Game And The Morality Of Efficient Breach, Gregory Klass

Yale Journal of Law & the Humanities

Because contractual obligations result from acts of agreement, every contract has an origin story-a story about what the parties did to change their legal situation, to enter into a contract. Theories of contract law, in turn, often tell stylized versions of such stories. These theory stories tell us about the character of the parties, what they want from their transaction, how they arrive at an agreement, and how the law figures into their relationship.


The Riddle Of Ruth Bryan Owen, Daniel B. Rice Oct 2017

The Riddle Of Ruth Bryan Owen, Daniel B. Rice

Yale Journal of Law & the Humanities

Her ancestors helped win America's independence. As a child, she watched House debates with rapt attention, vowing eventually to return to her beloved Capitol building. She gazed out on millions of cheering faces during her father's three presidential campaigns. Her uncle was a governor and vice-presidential nominee, her father the American Secretary of State. She ran the American Women's War Relief Fund alongside future First Lady Lou Hoover and nursed dying Allied soldiers. After establishing herself as Florida's leading female activist, she campaigned for the House of Representatives in 1928, promising to send her district's ...


Liberty To Misread: Sanctuary And Possibility In The Comedy Of Errors, Benjamin Woodring Oct 2017

Liberty To Misread: Sanctuary And Possibility In The Comedy Of Errors, Benjamin Woodring

Yale Journal of Law & the Humanities

Late in 1582, Christopher Jones scuffled with law enforcement officials on the streets of London. Breaking away in the middle of an attempted arrest, he bounded down an alley looking for cover. In this brief stint of time, he found assistance from clergy within St. Paul's and took sanctuary in the church.


Mor[T]Ality And Identity: Wills, Narratives, And Cherished Possessions, Deborah S. Gordon Oct 2017

Mor[T]Ality And Identity: Wills, Narratives, And Cherished Possessions, Deborah S. Gordon

Yale Journal of Law & the Humanities

Franz Kafka is credited with observing that "the meaning of life is that it stops." This recognition-that life's one certainty is certain death-has been the source of great inspiration. Indeed, much of what we do and create depends on our very human desire to make a mark on this world that will outlast our sentient selves.


Justice And Art, Face To Face, Desmond Manderson, Cristina S. Martinez Oct 2017

Justice And Art, Face To Face, Desmond Manderson, Cristina S. Martinez

Yale Journal of Law & the Humanities

This essay studies in detail, for the first time and in the context of legal as well as art history, Sir Joshua Reynolds's representation of Justice (1779). We argue that the image is of particular significance in the history of representations of justice, and marks the emergence of neoclassical ideals. These ideals became, for example in the work of Sir William Blackstone, central to the development of Anglo-American concepts of the common law. We argue that Reynolds's work exemplifies a profound shift and a rich complexity in these concepts.


The Foundations Of The Rule Of Law, Aleardo Zanghellini Oct 2017

The Foundations Of The Rule Of Law, Aleardo Zanghellini

Yale Journal of Law & the Humanities

An uncontroversial definition of the rule of law eludes us. There is broad agreement about the features that should characterise the rules of a legal system if this is to conform with the rule of law - namely, generality, publicity, clarity, relative stability etc. Scholars, however, disagree on what institutional and procedural arrangements the rule of law requires, on whether it has inherent moral value and on whether or not it imposes substantive constraints on the content of law.


Laughing At Censorship, Laura E. Little Oct 2017

Laughing At Censorship, Laura E. Little

Yale Journal of Law & the Humanities

Can a speech restriction ever be inherently good? Can we ever justify censorship as intrinsically beneficial, and not simply a justifiable means of protecting something more important than free expression?
For those steeped in American law and culture, these questions may seem almost heretical. But they deserve exploring, particularly given the prevalence and variety of censorship in the United States and elsewhere in the world. Happily, a context exists for exploring the questions that is less threatening and more entertaining than totalitarian thought control. The context is humor: jokes, cartoons, vignettes, and other expressions that make us laugh.


Closing Remarks: Law And Inequality After The Crisis, David Singh Grewal Apr 2017

Closing Remarks: Law And Inequality After The Crisis, David Singh Grewal

Yale Law & Policy Review

I am honored to have been asked to give the closing remarks to what has
been an inspiring and insightful conference, and humbled to do so before so many respected friends and colleagues.
I think my most important duty before doing so is to thank the truly amaz­ing students who conceived of and executed this conference from start to finish: Brian Highsmith, Lina Khan, Urja Mittal, and Jake Struebing, and also all of the student moderators too.
I also want to thank all the marvelous panelists who traveled from far and near to be here with us. It has ...


From Economic Inequality To Economic Freedom: Constitutional Political Economy In The New Gilded Age, K. Sabeel Rahman Apr 2017

From Economic Inequality To Economic Freedom: Constitutional Political Economy In The New Gilded Age, K. Sabeel Rahman

Yale Law & Policy Review

We live in a new Gilded Age. In the years since the 2008 financial crisis, it
has become increasingly clear that income inequality is widening dramatically, and that social mobility and genuine economic opportunity are an illusion for most Americans. Such economic inequality magnifies and interacts with chron­ic crises of structural racial injustice and persisting political dysfunction. The urgency of this moment is reflected not only in the virulent exclusionary
popu­lisms resurgent on the right, but also in the wide array of social movements and reform communities mobilizing on the left: from alternative labor organizing among low-wage and ...


Two Narratives Of Platform Capitalism, Frank Pasquale Apr 2017

Two Narratives Of Platform Capitalism, Frank Pasquale

Yale Law & Policy Review

Mainstream economists tend to pride themselves on the discipline's
resem­blance to science. But growing concerns about the reproducibility of economic research are undermining that source of legitimacy. These concerns have fueled renewed interest in another aspect of economic thought: its narrative nature. When presenting or framing their work, neoliberal economists tend to tell sto­ries about supply and demand, unintended consequences, and
transaction costs in order to justify certain policy positions. These stories often make sense, and warn policymakers against simplistic solutionism.


Law And Economics: Contemporary Approaches, Martha T Mccluskey, Frank Pasquale, Jennifer Taub Apr 2017

Law And Economics: Contemporary Approaches, Martha T Mccluskey, Frank Pasquale, Jennifer Taub

Yale Law & Policy Review

With a new project entitled Law and Economics: Contemporary Approaches,
we hope to liberate casebook examples of economic analysis of law from their current cramped confines. While law and economics associations increasingly feature empirical work in their annual conferences, casebooks in property, torts, contracts, and other core legal subjects all too often feature simple models of economic activity developed decades ago.' While new ways of thinking about
finance, health care, and privacy have developed rapidly in the past few decades (and particularly after the global financial crisis of 2008), casebooks all too often
rely on simple models of market-driven supply ...


Constitutional Economic Justice: Structural Power For We The People, Martha T. Mccluskey Apr 2017

Constitutional Economic Justice: Structural Power For We The People, Martha T. Mccluskey

Yale Law & Policy Review

It is time for an ambitious constitutional vision of economic justice.1 Since
the end of the Lochner era, the prevailing constitutional narrative has taught that the Constitution generally should leave economic policy decisions to the legislative and executive branches. That structural theory treats economic jus­ tice as discretionary, separate from and subordinate to fundamental constitu­tional protections for political and civil justice. At most, that narrative supports constitutional protections against economic inequality as narrow
exceptions subject to careful scrutiny and constraint.


Uncivil Procedure: How State Court Proceedings Perpetuate Inequality, Hannah Lieberman Apr 2017

Uncivil Procedure: How State Court Proceedings Perpetuate Inequality, Hannah Lieberman

Yale Law & Policy Review

Rules of civil procedure presuppose a level playing field where litigants have
structured opportunities to develop and present their claims to a neutral fact­ finder. In millions of cases-the vast majority processed by state courts today­ the field is neither level nor fair. Instead, enormous numbers of small dollar value cases are disposed of mechanically, without meaningful adjudication. High-volume state court dockets involve serious asymmetries of power and
knowledge, where plaintiffs' lawyers are able to manipulate or short-circuit the
rules against unrepresented and generally unsophisticated low-income defendants.