Digital Commons Network^™

Ai Art And U.S. Copyright Decisions: What The U.S. Can Do Differently Than China And The E.U. To Efficiently Promote Balance Between Ai Innovation And Copyright Regulation, Adam Pycior

Loyola University Chicago International Law Review

The rapid development of Artificial Intelligence ("Al") in recent years has spurred a plethora of discussions concerning ethical boundaries, government regulations, and more. Thaler v. Perlmutter highlights a unique one: the challenging question of if, and how, AI generated artworks may be copyrightable. The court denied copyright to plaintiff Stephen Thaler's work "A Recent Entrance to Paradise" generated by his AI system, "The Creativity Machine," holding that autonomously generated works cannot be copyrighted under the existing precedent. However, the court failed to answer, though it acknowledged, the pressing question as to the degree of human input necessary to copyright such …

The Next Chapter Of Apartheid Is "Gender Apartheid", Naheed A. Farid

University of San Francisco Law Review

No abstract provided.

From Shield To A Sword: Using The Dormant Commerce Clause To Challenge State Laws Promoting Fossil Fuels, James Crisafulli

University of San Francisco Law Review

No abstract provided.

Free Speech Versus Property: When Deception Can (And Can't) Give Rise To Tresspass, Jareb Gleckel, Elizabeth Nisbet

University of San Francisco Law Review

No abstract provided.

The Excluded: Where Did Our Rights Come From, Who Paid The Price Trying To Establish Them, And Who Is Trying To Take Them Away? The Centuries-Long Struggle For Inclusion, Jim Brosnahan

University of San Francisco Law Review

No abstract provided.

Trauma-Informed Judicial Practice Meets Therapeutic Jurisprudence: Compassionate Written Judgments In Child Protection Cases, Shelley Kierstead

All Papers

Society has become acutely aware that trauma arises from many life events and manifests in a range of physical and psychological symptoms. The legal community is increasingly recognizing that clients living with trauma effects would be much better served with trauma-informed services. While much of the emerging literature in the legal field focuses on lawyers’ work, there is growing recognition that judges can also play a role in responding effectively to trauma.

In child protection cases, trauma frequently exists at different yet related levels – for the child who is the subject of protection proceedings, and for one or more …

An International Law Of The Emotions, Emily Kidd White

All Papers

Talk of the emotional or affective turn in international law is relatively recent though it tracks and echoes several other critical methods movements, including the turn to history, in the study of international law and, so too, a two-decade long wave of law and emotions research in several domestic legal systems. The affective turn in international law in several instances aims to critique a post-Cold War optimism that held out the promise that a rules and reason-based international order would work to abate war, and secure peace, prosperity and efficient capital flows. As outlined by the editors of this volume …

Freedom Of Peaceful Assembly Under Section 2(C) Of The Charter: A Call For Action, Jamie Cameron

All Papers

“A Call for Action” builds on the author’s previous work on s.2(c) for the Rouleau Commission (“Freedom of Assembly and Section 2(c) of the Charter”; available on SSRN and Osgoode Digital Commons). There is no framework of legality under the Charter for the scope and limits of peaceful assembly, and this follow-up paper begins the task of filling that gap. It addresses the relationship between s.2(b) and s.2(c), critiquing the “factual matrix principle” for subsuming issues freedom of assembly into freedom of expression, and explaining that assembly is a distinctive collective entitlement that is spatial and performative in nature. …

What Is The Standard Of Review For (Mixed) Constitutional Questions?, Anthony R. Sangiuliano, Mark Friedman

All Papers

According to the framework for selecting the standard of review in civil appeals developed in Housen v Nikolaisen, questions of mixed fact and law are reviewed on a standard of palpable and overriding error. This framework applies to allegations that a statute is constitutionally invalid. However, in Société des casinos du Québec inc v Association des cadres de la Société des casinos du Québec, the Supreme Court held that when a statute is challenged as unconstitutional before an administrative tribunal, questions of mixed fact and law are subject to a correctness standard on judicial review as an exception to the …

Indigenous Governance And The Charter: What Can Indigenous Constitutionalism Offer?, Karen Drake

All Papers

The question of whether the Charter should apply to Indigenous governance is often presented in terms of a contest between Indigenous self-determination and protections for vulnerable individuals. The two judgments applying the Charter in the Supreme Court of Canada’s decision in Dickson v. Vuntut Gwitchin First Nation exemplify this dichotomy. This approach, however, reflects a false dilemma; it overlooks Indigenous constitutionalism’s ability to resolve the kinds of issues that the Charter aims to resolve, but without sacrificing Indigenous self-determination. To illustrate this point, this article applies one form of Indigenous constitutionalism— Anishinaabe constitutionalism grounded within an Anishinaabe lifeworld—to the fact …

Emergency Oversight, Catherine Baylin Duryea

Faculty Publications

This Article examines one of the most pressing questions in administrative law: How much judicial oversight should administrative agencies face during an emergency? This issue was particularly salient during the COVID epidemic, but it is not new. The Second World War saw a significant expansion and consolidation of the power of administrative agencies as well as experimentation with the appropriate oversight role for courts. This Article analyzes one such experiment: judicial oversight of agencies implementing wartime anti-inflationary measures, i.e., price controls and rationing. During the war, Congress created a specialized court, the Emergency Court of Appeals (ECA), to hear disputes …

The Criminal System Under Racial Capitalism, Sandeep Singh Dhaliwal

Faculty Publications

In 2021, major segments of the business lobby converged around a consensus for criminal system reform. As the United States experienced historic levels of labor market tightness, business groups argued for removing “barriers” to employment that system-involved people face. Just a few months later, the orientation of business to the criminal system was decidedly more mixed. By March 2022, the U.S. Chamber of Commerce, the country’s most powerful business lobby, had stepped to the forefront of the national moral panic around retail theft, launching a vigorous campaign to defend and even strengthen criminal punishment across the country.

Anchoring its analysis …

Differentiation Or Dialectic: Pluralism And Contestation In European Economic Constitutionalism, Paul Linden-Retek, Marija Bartl

Journal Articles

In this contribution we ask how Přibáň’s theoretical choices shape the capacity of ‘European constitutional imaginaries’ to account for the ever more necessary work of recognition and redistribution within European society. While ‘European constitutional imaginaries’ reveal the intricate ideologies at play within European law and politics, as well as their power in motivating dominant currents of European political life, the project remains limited in that it accepts essential tenets of functional differentiation in society, obscuring the conditions of possibility for the formation of differentiated systems. Put differently, ‘European constitutional imaginaries’, both as forms of life and analytic concepts, have difficulty …

Landscape Intactness As A Necessary Component Of Multiple-Use And Sustained-Yield Management Of Bureau Of Land Management Public Lands, Matthew S. Dietz, Alison C. Flint, R. Travis Belote

Colorado Environmental Law Journal

No abstract provided.

Greenwashed Forest Management And Wildfire Resilience, Sarah A. Matsumoto

Colorado Environmental Law Journal

No abstract provided.

Dire Straits In The Gulf: Using The Endangered Species Act To Better Protect The World's Rarest Whale From Industrial Threats, Aidan Bodeo-Lomicky

Colorado Environmental Law Journal

No abstract provided.

Applying The Rights Of Nature To The Rights Of Animals: Comparing The Lake Erie Bill Of Rights To Happy The Elephant, Mason Liddell

Colorado Environmental Law Journal

No abstract provided.

Front Matter, Colorado Environmental Law Journal

Colorado Environmental Law Journal

No abstract provided.

Editor's Note, Colorado Environmental Law Journal

Colorado Environmental Law Journal

No abstract provided.

Editor's Note, Emily Derrenbacker

Colorado Environmental Law Journal

No abstract provided.

Interrogating Marine Plastics Pollution Regulations: The Intended Roles Of The Global Plastics Treaty, Ndubuisi Augustine Nwafor

Colorado Environmental Law Journal

No abstract provided.

Towards Multispecies Environmental Justice, Laura Street Cole

Colorado Environmental Law Journal

No abstract provided.

Holding Fossil Fuel Producers Accountable In U.S. And Other Foreign Courts: A Climate Justice Pathway For Sierra Leone, Jamil Sahid Fofanah

Colorado Environmental Law Journal

No abstract provided.

Still Silent: How The U.S. Regulatory Framework Fails To Address The Dangers Of Pesticides, Obie Johnson

Colorado Environmental Law Journal

No abstract provided.

Prosecutorial Reform And The Myth Of Individualized Enforcement, Justin Murray

Articles & Chapters

The American prosecutor’s legitimacy faces unprecedented challenges. A new wave of reformist prosecutors has risen to power promising to transform the criminal justice system from within, sparking fierce backlash from defenders of the prosecutorial status quo. Central to this conflict is a debate over the nature of prosecutorial discretion, influenced by a set of claims and assumptions that this Article terms the myth of individualized enforcement. This myth posits that prosecutors base discretionary decisions on case-specific facts and equitable circumstances rather than generalizable criteria or categorical nonenforcement practices, such as the policies some reformist prosecutors have adopted that disfavor prosecuting …

Testing The Waters: Expanding Chapter 9 Bankruptcy To Encourage Treatment Of Chemically Contaminated Drinking Water, Alexandra Zimmer

Emory Bankruptcy Developments Journal

Chemical contamination of drinking water supplies has become a significant issue across the globe with serious health and safety impacts. While the true extent of the impact is still being determined, costs associated with remediation efforts to clean up are astonishing. Municipalities, in particular cities, towns, and counties, suffer significant damages both through costs incurred directly for treatment of chemically contaminated drinking water supplies and through lost revenues resulting from municipal residents’ exposure.

This Comment argues Congress should expand municipal access to filing for bankruptcy under chapter 9 of the Bankruptcy Code to encourage local government efforts to clean up …

The Abuses Of History In Constitutional Interpretation, Sherif Girgis

Journal Articles

From the Article

Jack Balkin’s Memory and Authority powerfully describes the kaleidoscopic quality of historical arguments in constitutional law. The book also moves easily between description and prescription. This Essay explores whether it moves too easily from one to the other. I consider whether the book’s analysis is so keen to capture our actual practices that it leaves itself too few resources for evaluating them—whether its account of history’s uses, made expansive by a zeal to fit how lawyers actually reason, crowds out any robust account of how they ought not to reason. While I am inclined to think so, …

A Framework For Trauma-Informed Mediation: A Heart And Mind Approach To Conflict Resolution, Michael Saini, Raheena Lalani Dahya, Shely Polak

Cardozo Journal of Conflict Resolution

Unresolved trauma histories can have both short and long-term consequences on children and parents' overall functioning. Using a trauma-informed approach to mediation, we first briefly highlight the impactofadversechildhood experiencesandunresolvedtraumasonadults. We then consider the various vulnerabilities and activations presented within mediation and the fundamental principles of trauma-informed mediation to assist parties in remaining within the "window of tolerance" during the mediation. Trauma-informed mediation is an approach that encourages mediators to be aware of potential trauma activations and to engage in compassionate practices to allow parties to engage within their own individualized "window of tolerance" to resolve disputes. We explore the unique …

Design Matters: Modernizing The Federal Arbitration Act To Safeguard Party Autonomy, Sarah R. Cole

Cardozo Journal of Conflict Resolution

Arbitration is a creature of contract. And it is basic arbitration law that arbitrators must respect contracting parties’ intent. The Federal Arbitration Act’s 100th anniversary offers an ideal moment to reaffirm this principle: arbitrators resolving commercial disputes should honor parties’ intent while preserving arbitration’s core values: efficiency, finality, and autonomy. Unfortunately, routine judicial deference to arbitration decisions often undermines parties’ intent as expressed through party design of the arbitration process. In response to this issue, this Article proposes amending the Federal Arbitration Act (FAA) to empower courts to safeguard two common arbitral party directives: limits on arbitrators’ remedial authority and …

"Arbitration In Name Only": A Race Claims Mismatch, Michael Z. Green

Cardozo Journal of Conflict Resolution

With arbitration’s meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair “arbitration in name only” that should not be enforced.

Employers have become savvier in how they require employees to agree to resolve discrimination …