Digital Commons Network^™

The End Of Balancing? Text, History & Tradition In First Amendment Speech Cases After Bruen, Clay Calvert, Mary-Rose Papandrea

UF Law Faculty Publications

This Article examines the potential impact on First Amendment free-speech jurisprudence of the U.S. Supreme Court’s increasing reliance on text, history, and tradition in 2022 decisions such as New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court embraced a new test for examining Second Amendment cases. It concentrates on whether there is a historical tradition of regulating the conduct in question, and it eliminates any use of constitutionally common means-end standards of review such as strict and intermediate scrutiny. Those two scrutiny standards often guide the Court’s free-speech decisions. The Bruen majority, however, asserted that its …

Negligent Ai Speech: Some Thoughts About Duty, Jane R. Bambauer

UF Law Faculty Publications

Careless speech has always existed on a very large scale. When people talk, they often give bad advice or wrong information, and occasionally this leads the listener to act in a way that causes physical harm. The scale was made more visible by the public Internet as the musings and conversations of billions of participants became accessible and searchable to all. This dynamic produced a set of tort and free speech principles that we have debated and adjusted to over the last three decades.

AI speech systems bring a new dynamic. Unlike the disaggregated production of misinformation in the Internet …

Witness Hide-And-Seek: Why Federal Prosecutors Should Record Pretrial Interviews, Christina Frohock, Jeffrey E. Marcus

Articles

This Article pays long-overdue attention to a federal appellate court's warning against "playing hide-and-seek" with witnesses. Specifically, prosecutors should record interviews. While courtroom cameras dominate the topic of judicial transparency, cameras can play a critical role in a sleepier corner of criminal proceedings: pretrial witness interviews. The Article first tracks the history of open judicial proceedings as a tradition of our Anglo- American jurisprudence. Next, the Article identifies the normative thread running through that history. Fairness may suffer when cameras transform public proceedings into publicized proceedings. Finally, the Article argues that this same issue of fairness applies to pretrial witness …

The Future Of Substantive Due Process: What Are The Stakes?, Erwin Chemerinsky

SMU Law Review

No abstract provided.

The Ultimate Metaverse Match: An Analysis Of First Amendment Protections And Unauthorized Trademark Use In Non-Fungible Tokens, Alena Khan

SMU Law Review

The First Amendment has long provided protections for artists’ creative expression and is a fundamental right for all United States citizens. However, with the rise of a predominantly digital world, those protections begin to blur with the introduction of non-fungible tokens (NFTs). Artistic creation often stems from an inspired source, and sometimes, that inspiration may come from registered intellectual property, specifically trademarks. Trademarks are everywhere we look, so it is not unusual for artists to be inspired by the logos, images, colors, figures, or symbols that are featured on billboards, magazine covers, or everyday items. When these trademarks are used …

The Tallinn Manual 2.0 On Nation-State Cyber Operations Affecting Critical Infrastructure, Terence Check

American University National Security Law Brief

Protecting critical infrastructure from cyber threats is difficult and complex. News headlines abound with reports that show how critical infrastructure—ranging from voting machines to steel mills—have become increasingly vulnerable to cyber operations from state and sophisticated nonstate actors. As critical infrastructure becomes increasingly entangled with the Internet and as new tactics, techniques, and procedures rapidly proliferate and evolve, governments and businesses alike must contend with a mutating threat environment that may put sensitive and highly important critical infrastructure assets in serious jeopardy. The vulnerabilities of critical infrastructure, which provide vital services and functions to societies, may pose a particularly tempting …

Regulating The Use Of Military Human Enhancements That Can Cause Side Effects Under The Law Of Armed Conflict: Towards A Method-Based Approach, Yang Liu

American University National Security Law Brief

The development of human enhancement (HE) technology has rendered its military potential increasingly noticed by major military powers. It can be expected that “enhanced warfighters” or “super soldiers” will be used on the battleground in the foreseeable future, which can give rise to many legal issues.

Front Matter

St. Thomas Law Review

Front Matter includes Masthead, advisors, and Table of Contents for St. Thomas Law Review Volume 36, Issue 1, Fall 2023.

The Curtailment Of Constitutional Rights And Mechanisms Of Social Control In The People's Republic Of China: Hubei Province Case At The Onset Of The Covid-19 Pandemic, Fabio Ratto Trabucco

Indiana Journal of Global Legal Studies

This paper analyzes the curtailment of constitutional rights arising from the implementation of emergency measures due to the COVID-19 pandemic in China’s Hubei Province, which was not at all counterbalanced by introducing new forms of due constitutional protection. Likewise, high expectations cannot be set on pre-existing means of constitutional safeguards since the Chinese government clearly refused to establish new or different safeguarding procedures nor did it deem it necessary to establish ad hoc courts in order to tackle the COVID-19 pandemic. The paper is laid out as follows: (1) fundamental rights in a contemporary socialist state: an overview; (2) containment …

Gastrophysics And Intellectual Property Law: Analyzing The Legal And Market Effects Of A Reimagined Form Of Culinary Art And Science, Mark Edward Blankenship Jr.

South Carolina Law Review

No abstract provided.

No Harm No Foul?: The Remnants Of Pure Consumer Harm In Monopsony Cases Under The Sherman Act, William Jackson

American University Business Law Review

Part II of this Comment discusses the contested development of the consumer harm standard under the antitrust laws, the economic underpinnings of monopsonies as opposed to traditional monopolies, and the problems that courts have faced (or more frequently ignored) when deciding monopsony cases under the Sherman Act. Part III analyzes how courts that have abandoned a strict requirement of consumer harm are better able to conform with the true purpose of the Sherman Act. Part IV recommends that the U.S. Supreme Court must formally disavow the consumer harm standard in monopsony cases, or Congress must amend the Sherman Act to …

Income Tax (Treasury) Unhappy: Efficacy Of Media Campaigns And Tax Noncompliance, Limor Riza

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article systematically evaluates the effectiveness of governmental media campaigns and considers whether we should invest in educating society via such campaigns to increase tax compliance, primarily in light of the intrinsic flaw of taxation.

Is a radio spot that starts with the sound of scary footsteps approaching you, followed by an announcer who says in a deep and intimidating voice, “we’re closing in on undeclared income,” effective? To answer those questions, this Article proposes and showcases a four-step analysis—the ARMS scheme (Aim, Reason, Media-Methods, Sorting). First, the government’s aim of increased tax compliance is identified and declared (Step I: …

Neurorights And New Charts Of Digital Rights: A Dialogue Beyond The Limits Of The Law, Rafael Yuste

Indiana Journal of Global Legal Studies

In this article, the authors address some of the most pressing issues that stem from the relationship between the technological advancements of the twenty-first century and legal regulation. The development of neurotechnology and artificial intelligence (AI), while offering considerable opportunities for the betterment of social life, also poses unprecedented risks. These challenges manifest in a wide variety of topics. Areas such as human rights treaties, antitrust law, property law, and labor law are affected by these developments. The risks associated with the unregulated use of neurotechnology and AI do not cease at the sectorial stage. Some of the values upon …

Trust In Artificial Intelligence: Analysis Of The European Commission Proposal For A Regulation Of Artificial Intelligence, Antonio Estella

Indiana Journal of Global Legal Studies

I shall start by reflecting on the importance that trust has for society (section 2). From there, I will define what is to be understood in this paper by trust (section 3). I shall then review the basis of trust (section 4) and shall make a reference to the main sources of evidence on trust (like, surveys and laboratory experiments), and to some of the results that these sources reveal on interpersonal and institutional trust (section 5). In the next section (section 6), I shall go on to analyse specifically the issue of trust in AI, will refer to the …

Socioeconomic Rights, Competition, And Systemic Neutrality: Approaching The Right(S) Contribution To Emancipatory Social Movements, Joshua Curtis

Indiana Journal of Global Legal Studies

Debate over the emancipatory potential of socioeconomic rights and their relevance to broader social movements is long-standing but is now picking up steam and taking on a life well beyond its traditionally legal disciplinary confines. This article contributes to the widening debate by emphasising the need for socioeconomic rights to be re-thought simultaneously outward (through deeper engagement with extant economic and political systems) and inward (by re-assessing various doctrines ingrained in their own construction). I pursue this ‘two-track’ methodology by first constructing a novel theory regarding the outward engagement of socioeconomic rights with competition law and policy, focusing on the …

What Comes Next?, Neil Fulton

Faculty Publications

The United States stands at an important crossroads. Polarization and paralysis are the political norm. Social divisions are deep and seemingly intractable. Concerted action is disappointingly rare. Social and political pressures continue to build like tectonic plates waiting to release. What will come next? This Article begins with a description of the current situation before turning to a consideration of five possible paths forward. First, stasis. There may be more of the same with limited systemic shocks releasing small amounts of pressure without a fundamental change of circumstances. Second, rupture. Building pressure may tear the current political and social system …

South Dakota Legisprudence: A Catalog And Analysis, Neil Fulton

Faculty Publications

Statutes provide much of the modern legal body of law. It is necessary for any lawyer to have a good understanding of "legisprudence," the rules for enactment and interpretation of statutes. South Dakota has developed a useful body of legisprudence through both statutes and cases that provide direction about how statutes should be read. This article provides a descriptive collection and normative assessment of these interpretive rules.

The Supreme Court Corrects A Seventy-Five Year Distortion In Establishment Clause Jurisprudence, Patrick Garry

Faculty Publications

In Kennedy v. Bremerton School District, the US. Supreme Court ruled that the Establishment Clause did not prohibit a high school football coach from offering a brief midfield prayer at the conclusion of games. The Ninth Circuit had held that the coach's free exercise rights had to yield to the Establishment Clause's prohibition of conduct that might reflect a state endorsement of religion. In overturning the Ninth Circuit, the Supreme Court issued an historic and far-reaching ruling on the scope and nature of the Establishment Clause, providing the first truly clarifying decision in this area in the past seventy-five years. …

Untangling Defamation Law: Guideposts For Reform, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This article, which is based on a keynote address given at the 2023 Missouri Law Review Symposium, addresses the past and predicted future of defamation law in hopes of galvanizing needed reforms. As a necessary backdrop, this article explains why today’s defamation law remains so complex, tracks reforms over the last half-century, and explains why the common law of defamation has not adapted adequately to the challenges posed by cheap speech in the digital era. The article then turns to assessing the complaints of defamation law’s most prominent would-be reformers and finds them to rest on an incomplete understanding of …

Asymmetries, Norm Matching, And The Pursuit Of Equity Between The Police And The Public, Eang Ngov

Faculty Articles

Concerns about police abuse and overcriminalization are on the forefront of public conscientiousness. In spite of the Black Lives Matter movement and calls for police reform, law enforcement officials enjoy a variety of criminal procedure loopholes and double standards, which the United States Supreme Court has ratified through its creation of the open fields, mistake of law, and third party doctrines, as well as its acceptance of deceptive police practices. This Article analyzes the asymmetries between permissible civilian conduct and permissible police conduct to make a broader, systemic critique of the double standards and loopholes that pervade constitutional criminal procedure. …

Trade Policing, Kathleen Claussen

Articles

At the core of U.S. economic governance, there is a novel and under-noticed phenomenon that challenges longstanding frameworks of international law and corporate compliance. This practice, which this Article terms the new "trade policing," has extraordinary reach. Recent regulatory makeovers and pathbreaking statutes empower our trade agencies to target, for the first time, companies, rather than foreign governments, as used to be their purview. Trade police now pursue companies wherever they may be in the world, not just for violating U.S. law but also for violating foreign law in areas as diverse as labor rights and environmental protections. Such a …

Employers As Information Fiduciaries, Bodie, Matthew T.

Santa Clara Law Review

In order to better protect users from the predations of large tech companies amassing their data, commentators have argued that these companies should be considered information fiduciaries for the purposes of collection, use, storage, and disclosure of that data. This Essay considers the application of the “information fiduciary” label to employers in the context of employee data. Because employers are handling ever greater quantities of employee data, and because that data is becoming more sensitive and potentially damaging to workers if misused, the law should account for this expanded role with expanded protections. The beginnings of how such a set …

Brokered Abuse, Thomas E. Kadri

Articles

No abstract provided.

The Judicial Nondelegation Doctrine, Jason Iuliano

Utah Law Faculty Scholarship

“Nondelegation doctrine.” Lawyers know it as the rule barring Congress from delegating power to other branches of government. The doctrine, however, has another side—one that applies to the judiciary. This aspect of the doctrine holds that courts may not delegate judicial power to other branches of government. Nonetheless, courts do precisely that. And they do it thousands of times each and every day. Judges empower non-judicial actors to do everything from making legal findings and rendering sentences to resolving custody disputes and setting probation conditions.

This Article is the first to explore the constitutionality of these kinds of delegations. To …

Ai Regulation In Health Care: How Washington State Can Conquer The New Territory Of Ai Regulation, Natalie Shen

Seattle Journal of Technology, Environmental, & Innovation Law

1. The use of artificial intelligence both generally and in the health care field has exploded over the last decade. AI is now used in the health care field in areas like disease diagnostics, patient engagement, and administrative tasks. In disease diagnostics specifically, AI is being used to make life-altering diagnoses. This technology, however, does not come without its risks. Specifically, inherent bias is deeply rooted in the AI algorithms. This is because humans are inherently bias, and humans are the people creating the AI algorithms. The problem is, however, is that there are no federal regulations to mitigate the risks …

Artificial Intelligence And Ethics, Carol M. Bast

Faculty Scholarship and Creative Works

This paper focuses on the impact that artificial intelligence has had on the practice of law and ethics rules. In some respects, the ethics rules, comments, and continuing legal education requirements incorporate knowledge of technology into the duty of attorney competence. After offering a primer on artificial intelligence and attorney ethics, the paper discusses certain proposals for revising the ethics rules, comments, and continuing legal education requirements.

Universal Forms Of Influence: Support For Women On Boards, Cindy A. Schipani, Paula J. Caproni

Seattle University Law Review

There are various efforts underway to increase gender diversity on corporate boards, including legislation in California, a recent SEC approved comply or explain rule for companies listed on the Nasdaq stock exchange, and efforts by institutional investors such as State Street and BlackRock to recognize the value diversity brings to corporate decisionmaking. Although some of these efforts are being contested in the courts, many companies have begun to comply with these initiatives.

This Article is organized as follows. Part I provides an overview of several efforts to increase gender diversity on boards along with numerous research studies showcasing the benefits …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

Partnership Law, Troy Christensen, Jeff Dorrill, Matthew Schindel, Madeline Ballard, James Barnett

SMU Annual Texas Survey

This Article describes and analyzes major developments in partnership law that occurred in Texas between December 1 and November 30 of 2022.

Professional Liability, Josh Sherman, Abbie Baker

SMU Annual Texas Survey

This Article describes and analyzes major developments in professional liability law that occurred in Texas between December 1 and November 30 of 2022.