Digital Commons Network^™

U.S. International Adoption Subsidies: Shining Light On The Dark History Of The Baby "Black Market", Rachel Briner

The International Law Review Association Student Forum

While international adoption is a beautiful concept in theory, it often leads to dark consequences. From its inception, human trafficking has enabled international adoptions. While the United States alone cannot dismantle the entire baby “black market” and the likely black market for children’s organs intertwined with it, the U.S. can remove its large contribution. By limiting the federal adoption subsidy to only domestic adoptions, the United States can ensure it only aids systems within its control and address the needs of its own children without homes more effectively. Many other authors have also noted various human trafficking and potential organ …

Impact Ipsa Loquitur: A Reverse Hand Rule For Consumer Finance, Susan Block-Lieb, Edward J. Janger

Cardozo Law Review

The topic of this symposium—Automating Bias—considers how artificial intelligence can produce, reinforce, and hide racial and other forms of discrimination in consumer finance. The animating intuition is that the complexity and opacity of algorithms and artificial intelligence in consumer lending create a greater need for disparate impact analysis to combat lending discrimination. This view was articulated forcefully by the current Director of the Consumer Financial Protection Bureau (CFPB), Rohit Chopra, when he was still a commissioner at the Federal Trade Commission (FTC).

Law’S Impact On Collaboration: A Three-Case Study Of Federal Advisory Committees Managed By The U. S. Coast Guard, Brian K. Mcnamara

School of Public Service Theses & Dissertations

Much remains to be learned about law’s impact on collaboration. Although law is one of the foundational disciplines of public administration, scholars assert that the field focuses on management principles to the detriment of law. Whether this assertion is correct as a general matter for the field, collaboration scholarship lacks empirical examination of the law’s role in collaboration processes.

This three-case study of federal advisory committees managed by the U.S. Coast Guard examines law’s impact on collaboration through the lens of Thomson and Perry’s (2006) Process Model. A qualitative method is used to capture participants’ perceptions of law and their …

Open Source Perfume, Amanda Levendowski

Cardozo Law Review

Perfume is a powerful art and technology, but its secrets are closely held by a privileged few by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. The Western perfume industry prizes perfumers with elite pedigrees, which often precludes marginalized perfumers. It also perpetuates non-Western cultures, that push some marginalized perfumers into teaching themselves perfumery. But teaching oneself through recreating and remixing existing fragrances presents a different challenge. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) plays a complicated role …

The Last Colony Of The Mind: Narrative, Legal Advocacy, And The Decolonization Of Legal Knowledge, Ayodeji Kamau Perrin

Faculty Scholarship

Philippe Sands’ The Last Colony¹ tells the story of how Chagos Islanders won the right to return to the lands of their birth through a 2019 Advisory Opinion of the International Court of Justice (ICJ).² In 1965, while the United Kingdom stood in the midst of conceding to the independence claims of myriad anti-colonialists throughout its imperial holdings, it took the anachronistic step of creating a colony—the British Indian Ocean Territory (BIOT).³ In flagrant violation of UN Resolution 1514,⁴ the United Kingdom detached the Chagos Archipelago from the colony of Mauritius. And between 1967 and 1973, …

Exasperated But Not Exhausted: Unlocking The Trap Set By The Exhaustion Doctrine On The Fda’S Rems Petitioners, Michael Krupka

Vanderbilt Law Review

When health is at stake, bureaucratic delays can be disastrous. This is especially true in the field of pharmaceutical regulation. Fortunately, concerned parties—ranging from research institutions and universities to doctors and pharmaceutical companies—can file citizen petitions to urge the Food and Drug Administration (“FDA”) to regulate potentially risky drugs through Risk Evaluation and Mitigation Strategies (“REMS”) programs. But despite submitting comprehensive citizen petitions calling for changes to REMS determinations, petitioners regularly await the FDA’s response for years. When these petitioners, still awaiting an FDA determination, have sought recourse in the courts, the agency has argued that these petitioners have not …

Authentication Of Cybernetic Avatars And Legal System Challenges; With A View To The Trial Concept Of New Dimensional Domain Jurisprudence (Ai, Robot, And Avatar Law), Fumio Shimpo

Japanese Society and Culture

This article aims to illustrate the basis for the development of authentication, which will be the foundation of future cybernetic-avatar (CA) infrastructures, enabling the safe and secure use of CA’s. This will be realised by the authentication of CA operators (User Authentication Technology), identification and authentication of CA’s (CA Authentication), and ensuring connectivity and existence between operators (User Entities) and the CA’s themselves (CA Notarisation). An ELSI (Ethical, Legal, Social Implications) research platform will be established, to develop a new dimension of the legal field, that is, AI, Robot, and Avatar Law to solve the social issues and realise an …

Forced To Bear The Burden And Now The Children: The Dobbs Decision And Environmental Justice Communities, Mia Petrucci

Washington Journal of Social & Environmental Justice

No abstract provided.

Pursuing The Exemption: The Makah's White Whale, Sarah Van Voorhis

Washington Journal of Social & Environmental Justice

No abstract provided.

Crisis In The Oil And Gas Industry: Custody Of Orphan Wells, Katie Plas

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

Fountains Of Living Waters: How Early Mormon Irrigation Innovated The Legal Landscape Of The West, Ellen (Melton) Carr

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

The Wild, Wild West Of Laboratory Developed Tests, John Gilmore

Washington and Lee Law Review Online

Since the 1950’s, scientists have built novel technologies to screen for genetic diseases and other biological irregularities. Recently, researchers have developed a method called “liquid biopsy” (as opposed to a standard tissue biopsy) that uses a liquid sample (e.g., blood) to non‑invasively spot biomarkers indicating different types of cancers in the patient’s body. While the U.S. Food and Drug Administration (FDA) has fully cleared a small number of liquid biopsy tests under its rigorous and expensive review process, most biotech companies have instead followed a less restrictive regulatory path through the Centers for Medicare and Medicaid Services (CMS), which label …

Financing Reforms To Meet A Pivotal Moment In Global Health, Kevin A. Klock, Alexandra Finch, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

2024 will be the most important moment for global health since the World Health Organization’s founding in 1948, but only if states give major reforms their full political and financial backing. Bold new commitments in disease surveillance, capacity building, and more equitable access to health products cannot be achieved without ample and sustainable funding. In this essay, we discuss major reforms found in the emerging pandemic agreement and reformed International Health Regulations and then explore the significant challenges and opportunities for financing them.

Editor's Note, Shade Streeter, Reagan Ferris

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

From Shield To Sword: Straying From The Original Meaning Of The Establishment Clause, Tavia Bruxellas Mcalister

Nebraska Law Bulletin (Selected Issues)

Clause jurisprudence has strayed far from its original roots, leaving a string of nonsensical decisions, on every topic, in its wake. Kennedy v. Bremerton School District can serve as the North Star, guiding courts back to a consistent standard of history and tradition, but it alone will not be sufficient. Courts should return to the original force and funds view of the framers by making actual legal coercion the cornerstone of Establishment Clause standards. This clear-cut standard would save the courts from subjectivity and help heal the fractured precedent, leaving room for reasonable and consistent application. If the Court returned …

Operationalising Progressive Ideas About Property: Resilient Property, Scale, And Systemic Compromise, Lorna Fox O'Mahony, Marc Roark

Texas A&M Journal of Property Law

Property theory is at a crossroads. In recent decades, scholars seeking to advance progressive ideas about property have embraced ‘Progressive Property’ theories that seek to advance the goals of social justice and the common good, offering a vital counter-weight to utilitarian and neo-conservative accounts of property. Progressive Property theories seek to correct an imbalance in American property discourse which—across the temporal scale—has sustained a range of narratives and normative commitments, but which has veered towards extreme acquisitive individualism and the rhetoric of property absolutism since the 1970s. The idea that individual property rights are not absolute but defined by the …

Sustainable Mining Challenges: Alaska Water Permitting And The United States Green Energy Transition, Morgan Pettit

Alaska Law Review

This Note addresses the myriad of legal and regulatory barriers new mining projects face in Alaska at present. These barriers have become increasingly important at a time when the United States has sought to bolster its domestic mineral supply chain. With over 100 newly located critical mineral deposits, Alaska may be the best place in the United States to establish further domestic sources of critical minerals. By streamlining the regulatory process at both the federal and state level, Alaska can better (1) protect domestic supply chains from global disruptions; (2) maximize the economic benefits of meeting increased global demand for …

Among The Rarest: Saving The Eastern North Pacific Right Whale, Elza Bouhassira

Alaska Law Review

The North Pacific Right Whale (NPRW) is perhaps the rarest, most endangered large whale species in the world. Only about thirty surviving individuals make up the eastern population, which lives in waters around Alaska. This note aims to highlight the crisis facing eastern NPRWs and the steps that can be taken to support the recovery of this rare whale. The paper first presents information on the history of the species and its importance. It next examines existing international and domestic U.S. legal regimes as well as a pending petition to revise NPRW critical habitat off of Alaska. Finally, it advances …

The Unregulated Digital Playground: Why Kids Need Right Of Publicity Protections From Their Parents, Sophie Polo

Journal of Intellectual Property Law

As social media continues to become more prevalent in society, profitability on social media platforms continues to increase. Parents have discovered ways to profit online by using their children in content to gather views, therefore taking advantage of their children's right of publicity. While some parents use this profit to raise their children, there is no guarantee that children benefit from their parent's use of their name, image, or likeness. Since social media is still a relatively new space, there are not many protections for the interests of children on social media compared to other areas such as child acting. …

The Heteronomy Of Flesh: A Minor Jurisprudence Of The Use Of The Human Dead And Tissues, Joshua David Michael Shaw

PhD Dissertations

The dissertation addresses historical and contemporary legal literatures—generally literatures that have not succeeded in becoming convention (Peter Goodrich)—that assert or rely on the human body’s “jurisgenerativity” (Robert Cover) to evaluate and determine what should be lawfully done with the human dead or tissues. These literatures demonstrate the limits of doctrinal legal methods and conventional jurisprudence which ordinarily deploy concepts of property or personhood. Instead of property or personhood, these literatures require the jurisprudent to attune to the heteronomy of flesh, a law engendered in the materiality of the body decomposing, cut into parts, or as fragments falling away from the …

A Denial Of Personhood: Why Hate Crime Legislation Is Necessary To Assure Proportionality In Punishment, Clare Godfryd

JCLC Online

The term “hate crime” entered the mainstream in the United States during the 1980s, when advocates began to track incidents of bias-motivated violence. Since then, hate crimes have continued to garner significant attention. Advocates and legislators have traditionally justified hate crime law under the “expressive theory,” the idea that the purpose of such laws is to condemn prejudice and express messages of tolerance and equality.

In this Comment, I offer a distinct justification for hate crime legislation. Specifically, I argue that, when a perpetrator targets a victim because of perceived immutable characteristics, the hate crime offender denies the victim’s agency …

We're Gonna Need A Bigger Boat: The Importance Of Increased Shark Conservation Across Countries, States, And The High Seas, Emma Shahabi

Duke Environmental Law & Policy Forum

Sharks serve invaluable roles as apex predators in the world's ocean ecosystems. However, the rise of the shark fin trade and incidental bycatch have drastically eliminated shark populations so that several species are close to extinction. Without substantial upgrades to existing international frameworks including CITES, CMS, and IPOA-Sharks, and regulatory bodies such as RFMOs, shark populations may pass beyond recovery. However, strengthening those regulations, along with expanding the U.S.'s role as a leader in shark conservation carries significant potential in protecting shark populations. Lastly, governments and conservation entities must substantially increase research and public awareness regarding the issue to ensure …

Stare Decisis And Remedy, Melissa Murray

Duke Law Journal

Much ink has been spilled on the Roberts Court’s approach to stare decisis and precedent. Such commentary is hardly surprising. In just the last five years, the Court has overruled extant precedents on issues that range from abortion and jury convictions to property rights and public unions. It has also substantially narrowed and limited existing precedents, curbing the reach of earlier decisions in ways that disrupt and distort the jurisprudential landscape.

Some view the Court’s uneven approach to precedent as ideologically determined. As these critics maintain, the Court adheres to precedents that are consistent with the views of its six-member …

The Return Of Three-Judge Constitutional Courts, Matt Queen

Duke Law Journal

State courts wield the authority to elevate state constitutional protections above those afforded by the U.S. Constitution. That power is great—so great that some legislatures have intervened in constitutional adjudication, purportedly to undermine forum shopping and check a single judge’s influence. Accordingly, North Carolina and Tennessee require that three-judge trial courts hear constitutional challenges to state laws. These courts echo twentieth-century congressional efforts to trim federal courts’ equitable jurisdiction. They also present new and familiar drawbacks spawned by their federal ancestors.

This Note examines these new constitutional courts through several lenses: their historical context, political development, advantages, and drawbacks. Although …

Uncreative Designs, Sarah Burstein

Duke Law Journal

It is often said that the standards for patent protection are higher than the standards for copyright protection. Specifically, commentators assert that the copyright requirement of originality is easier to satisfy than the patent requirements of novelty and nonobviousness. And yet, the USPTO regularly grants patents for designs that fall below the low standard of copyright originality set by the Supreme Court in Feist v. Rural. Some may suggest that the existence of these “sub-Feist” design patents is a result of the USPTO abandoning its duty to scrutinize design patent applications. Or they may suggest that it is a result …

The Death Dignity Demands: The Eighth Amendment Requires Incarcerated People Decide Their Method Of Execution, Kali A. Haney

Georgia Criminal Law Review

Recently, there have been a number of incarcerated people on death-row challenging their method of execution and proposing an alternative: usually, firing squad. Courts are hesitant to grant this request for a number of reasons, including the rare use of the firing squad. But there is substantial evidence this method is the most humane. Additionally, it appears incarcerated people think so, which is why so many in recent years chose—or petitioned for—death by firing squad rather than lethal injection or electrocution. As pharmaceutical companies halt their drugs’ distribution to prisons, prisons are forced to come up with their own—often more …

Purpose’S Purposes: Culpability, Liberty, Legal Wrongs, And Accomplice Mens Rea, Kevin Cole

Georgia Criminal Law Review

The federal mens rea for accomplice liability—important in its own right and also as an example to the states—is unsettled. Three cases from the just completed Supreme Court term hint (somewhat surprisingly) at various directions the justices might take. This essay examines the cases with a particular focus on the alternative explanations that might be given for the traditional requirement of purposeful facilitation for accomplice liability. The purpose requirement is contestable so long as it is justified in terms of a narrow conception of culpability. It is better understood as serving a liberty-enhancing function. The liberty focus clarifies difficult questions …

Hearing Before The United States Senate Committee On The Judiciary The Continued Assault On Reproductive Freedoms In A Post-Dobbs America, O. Carter Snead

Congressional Testimony

O. Carter Snead, Charles E. Rice Professor of Law and director of the de Nicola Center for Ethics and Culture at the University of Notre Dame, offered expert testimony on March 20, 2024 before the U.S. Senate Committee on the Judiciary, "The Continued Assault on Reproductive Freedoms in a Post-Dobbs America," on the current legal landscape following the landmark Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.

Originally posted U.S. Senate Committee on the Judiciary.

Perma.cc

Manufactured State Immigration Emergencies As State Vigilantism, Kate Huddleston

Texas A&M Law Review

President Trump shattered norms when he declared a national emergency at the U.S.–Mexico border to build a border wall. State governors have now followed that lead in taking up what Justice Jackson, dissenting in Korematsu v. United States (1944), called the “loaded weapon” of emergency—doing so, like Trump, in the context of the border. Governors of Texas, Arizona, and Florida have all issued state declarations of emergency based on (1) migration, and (2) the Biden administration’s purported failure to engage in immigration enforcement. These state emergency declarations have not been studied or even identified in legal literature as a state …

Looking And Seeing, Nicolas Cornell

Book Chapters

On November 6, 1938, Charles T. Dashiell, Jr, was driving south through Maryland. Around 5.30 or 6, Dashiell picked up two 19-year- old hitchhikers, J. Reginald Moore and Reginald Porter. Moore and Porter had been dropped off by Moore’s older brother and were now seeking to rejoin him several miles further on. The two boys got into Dashiell’s one-seat coup, with Moore sitting in the middle and Porter sitting on the right. It was a clear day, and the road was dry. Dashiell’s car lights were turned on and in good working condition.