Digital Commons Network^™

Jurisdictional Choice For Space Resource Utilization Projects: Current Space Resource Utilization Laws, Giannoni-Crystal, Francesca

Santa Clara Journal of International Law

Space resource utilization is coming. While some legal impediments exist, they are not insurmountable. The ban on the appropriation of resources found in Article II of the Outer Space Treaty (“OST”) does not apply to extracted resources, according to the most reasonable interpretation of Article II and the view held by almost all countries and the overwhelming majority of scholars. The Moon Agreement is not a barrier to space resource utilization because it has not been adopted by many countries (and none of the major space-faring ones). By contrast, the Artemis Accords, which have been signed by a significant number …

Racial Classifications In Higher Education Admissions Before And After Sffa, David E. Bernstein

SMU Law Review

Hundreds of law review articles have discussed the legality of affirmative action programs. Virtually all of them begin with the implicit assumption that the racial classifications used in these programs are legitimate and uncontroversial (an assumption I challenge in my 2022 book, Classified: The Untold Story of Racial Classifications In America). That assumption has been undermined by Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (“SFFA”).

Chief Justice Roberts, writing for a 6–3 majority, asserted that the underlying classifications are “imprecise in many ways” and “opaque.” He quoted Justice Gorsuch’s concurring opinion, which criticized the classifications …

Race Preferences, Diversity, And Students For Fair Admissions: A New Day, A New Clarity, Maimon Schwarzschild, Gail Heriot

SMU Law Review

This Article traces the legal path to the Supreme Court’s decision in Students for Fair Admissions v. Harvard and the University of North Carolina (2023), from the famous Bakke case in 1978 to the Grutter decision twenty-five years later. It reviews the shifting fortunes of the “diversity” rationale for racial preferences in higher education and assesses the widening—rather than narrowing—gulf between the Court’s majority and the dissenting Justices on the issue of racial preferences.

After half a century of closely contested Supreme Court decisions, some of them seeming to point in opposing directions, others relying on fragmented pluralities among the …

Assemblages And Actor Networks In The Borderlands - The Apposition Of Reproductive Rights Along The Mexican-American Border, Madeleine M. Plasencia

Articles

In 1971, Sarah Weddington argued Roe v. Wade as a class action on behalf of pregnant women living in Texas, many of whom, including herself had to flee the State to obtain an abortion in Mexico. In 2021, Texas enacted S. B. 8, otherwise known as the Texas Heartbeat Act, which created a private cause of action for injunctive relief and statutory damages awards against any person assisting in and any physician accused of performing an abortion, thus reigniting the cross-border flows that historically have made Mexico a haven for runaway enslaved people and pregnant persons heading south to freedom. …

Can Crt Save Dei?: Workplace Diversity, Equity & Inclusion In The Shadow Of Anti-Affirmative Action, Tanya K. Hernandez

Faculty Scholarship

Just four years after the nation’s summer of 2020 protests—sparked by the murder of George Floyd— culminated in a racial reckoning in which many organizations across the country instituted racial equity measures and policies, legislators across the nation are enacting anti-Critical Race Theory (CRT) bans in a seeming backlash to this advocacy for racial justice. The bans simultaneously mischaracterize CRT as anti-White discrimination while strategically conflating it with workplace diversity, equity, and inclusion (DEI) initiatives. Further inflaming the racially hostile public discourse is the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard (2023), which greatly narrows …

Exploring The Factors That Influence Female Offending In The U.S. And Mexico, Dana Villasenor

CMC Senior Theses

Hollywood has painted a picture of the criminal woman as a sexy, sneaky, and often psychotic female fatale. This is because men run Hollywood. Much like movies, research on why women offend had historically focused on men as their stellar. However, towards the turn of the century and with the disproportionate rise in female incarceration, literature caught up to the fact that women and men do not experience the same socialization, standards, or reality and, therefore, have different reasons for and ways of offending. This research explores those reasons for women in the U.S. and Mexico and paints the picture …

Pathways For Recognition: Indigenous Land Rights In Panamá, Caruna Gillespie, William Ascher

CMC Senior Theses

Indigenous communities in Panamá face the same challenge that many Indigenous communities experience around the globe: a lack of recognition of their land rights. Over the last several decades, the Panamanian government has developed policies and ratified international agreements that recognize Indigenous rights. The comarcas that institutionalize these rights have had some success. However, despite a seemingly progressive framework for recognition, Indigenous communities across the country continuously have their rights violated by conservation projects and resource extraction efforts in the name of economic development. The Panamanian government crafts recognition policies using loopholes, exceptions, and ambiguous language that allow for them …

The Past As A Colonialist Resource, Deepa Das Acevedo

Faculty Articles

Originalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.

Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on …

Cultivating Attentiveness To Law In India Through Legal Anthropology, Deepa Das Acevedo, Jahnavi Chamarthi

Faculty Articles

This Article reviews and analyses scholarship at the intersection of anthropology and law. The first half of the Article provides context for understanding the boundaries, animating concerns, and tensions that have characterised the anthropology of law as an area of interdisciplinary inquiry. We focus especially on the subdiscipline’s Anglo-American history and show how a promising early period of engagement dissipated as both anthropologists and legal scholars lost enthusiasm for each others’ insights and methods. Then, we expand our analysis outward. Because legal anthropology belongs within, and is increasingly attentive to, the broader field of law and society scholarship, we explore …

Effective Public Health Communication In A Post-Covid-19 America: Lessons From Behavioral Science, Molly J. Walker Wilson

Lewis & Clark Law Review

As we emerge from the worst of the COVID-19 pandemic, Americans are still reeling from the loss of life, the financial fallout, and the deep divide that continues to characterize our social and political institutions. Public health experts who were tasked with communicating facts and advice to the American public faced a daunting challenge, particularly because three distinct groups of Americans received messages differently. One group of Americans was receptive to scientific findings and amenable to taking recommended precautions. A second group was skeptical about the safety and efficacy of available vaccines, and genuinely confused or suspicious about the source …

Knowledge Commons Past, Present, And Future, Michael J. Madison

Lewis & Clark Law Review

The project now known as Governing Knowledge Commons, or GKC, was launched more than 15 years ago on the intuition that skepticism of intellectual property law and information exclusivity was grounded in anecdote and ideology rather than in empiricism. Structured, systematic, empirical research on mechanisms of knowledge sharing was needed. GKC aimed to help scholars produce it. Over multiple books, case studies, and other work, the scope of GKC has expanded considerably, from innovation to governance; from invention and creativity to data, privacy, and markets; and from social dilemmas focused on things to governance strategies directed to communities and collectives. …

End-Of-Life Choice For People Living With Alzheimer’S Disease And Related Dementias: Comparing American And Canadian Approaches, Amy Subach

Lewis & Clark Law Review

This Note argues for an expansion of end-of-life choice for people diagnosed with Alzheimer’s Disease and Related Dementias in the state of Oregon, using both Canadian waiver of final consent and Supported Decision-Making models, with additional proposed safeguards to prevent coercion and missed diagnoses of treatable conditions.

Evidence-Based Transitional Justice: Incorporating Public Opinion Into The Field, With New Data From Iraq And Ukraine, Mara Revkin, Ala Alrababah, Rachel Myrick

Faculty Scholarship

The field of “transitional justice” refers to a range of processes and mechanisms for accountability, truth-seeking, and reconciliation that governments and communities pursue in the aftermath of major societal traumas, including civil war, mass atrocities, and authoritarianism. This relatively new field emerged in the 1980s as scholars, practitioners, and policymakers looked for guidance to support post-authoritarian and post-communist transitions to democracy in Eastern Europe and Latin America. Since then, the field has grown rapidly—so rapidly that it is outpacing its capacity to learn from past mistakes. Recent methodological advances in the study of public attitudes about transitional justice through quantitative …

Decoding U.S. Tort Liability In Healthcare's Black-Box Ai Era: Lessons From The European Union, Mindy Duffourc, Sara Gerke

Faculty Scholarly Works

The rapid development of sophisticated artificial intelligence (“AI”) tools in healthcare presents new possibilities for improving medical treatment and general health. Currently, such AI tools can perform a wide range of health-related tasks, from specialized autonomous systems that diagnose diabetic retinopathy to general-use generative models like ChatGPT that answer users’ health-related questions. On the other hand, significant liability concerns arise as medical professionals and consumers increasingly turn to AI for health information. This is particularly true for black-box AI because while potentially enhancing the AI’s capability and accuracy, these systems also operate without transparency, making it difficult or even impossible …

Awards And Prizes, University Of Notre Dame

Commencement Programs

The University's listing of Awards and Prizes for 2024, including the full descriptions of each award, could not be printed and included in the Commencement Program for 2024. [It was later included in the Official Program posted by the University Archives.]

Media + Vigilante Violence: The Formula For American Atrocity, Tiffany D. Atkins

Law Faculty Scholarly Articles

This Article provides an overview of the international and domestic responses to media-fueled violence and demonstrates how both legal systems have failed to provide meaningful protections for Black Americans from vigilante violence and atrocity. Part I explores the history of media as a propaganda tool against underrepresented groups, detailing how it has promoted atrocity domestically and internationally. There are parallels between the historical and contemporary use of media as a method to fuel atrocity against minority groups; illustrating these examples indicates the continued risk of violence and atrocity faced by Black Americans due to these models of persuasive communication. Part …

Global Value Chains And Workers: Reconstructing An Epistemology For The Transnational Labor Question, Ulla Liukkunen

Emory International Law Review

This article examines transnational labor governance and contractualization in global value chains, arguing that framing the transnational labor question is essential to encapsulate workers’ needs for protection. At the same time, this question is fundamentally epistemological. Framing the question requires an epistemological reconstruction that moves beyond the dominant dichotomies inherent in evolving transnational private law – dichotomies that marginalize workers and obscure the role of employment contracts within transnational regulatory frameworks. The article points not only to the inadequacy of the transnational epistemological foundation, but also to the epistemic imbalance between the Global North and the Global South and the …

Ai-Ip? Copyright In An Age Of Internet Propaganda With Artificial Intelligence, Sonya Saepoff

Cybaris®

No abstract provided.

Defense Against The Dark Arts: The Diversity Rationale And The Failed Affirmative Defense Of Affirmative Action, Sheldon Bernard Lyke

Faculty Publications & Other Works

Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action-like remedying an institution's history of discrimination, or curing a school's present and ongoing discrimination by …

Corporate Esg Falls Short: Systemic Anti-Black Racism And Inequality Should Be Addressed Through A Cumulative Integrated Approach, Ferrell L. Littlejohn

Fordham Journal of Corporate & Financial Law

In the 1896 case Plessy v. Ferguson, the Supreme Court endorsed the “separate but equal” doctrine, essentially codifying racial segregation. This decision guaranteed that systemic racism would permeate every fabric of society despite the abolition of slavery. Recently, many corporate institutions have pledged to actively support the fight against systemic racism through their environmental, social, and governance (“ESG”) initiatives. Corporate stakeholders have actively advocated for these initiatives, particularly in response to recent scholarship revealing the significant involvement of capitalist institutions in historical slavery, and the continued perpetuation of anti-Black racism. Nevertheless, such initiatives, for example, internal diversity, equity, and …

Organs For Sale: Does Autonomy Necessitate The Right To Commodify?, Reghan Pattwell

Student Works

No abstract provided.

Colonizing Queerness, Jeremiah A. Ho

University of Colorado Law Review

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives …

Police Vigilantism, Nadia Banteka

Scholarly Publications

This Article uncovers a critical yet unexplored dimension of policing: the strategic oscillation of police officers between their roles as state actors and private individuals, and its significant implications for police accountability frameworks. As officers toggle between these two roles to their legal advantage, they exploit a deep, systemic flaw in the structural design of policing. Tracing the trajectory of policing from its vigilante origins to its institutionalized form today, this Article argues that contemporary policing merges state-sanctioned power with vestiges of vigilantism to blur the public-private divide. This duality enables a form of state-sanctioned vigilantism through which officers exploit …

The Very Idea Of Tradition In The Law, Marc O. Degirolami

Scholarly Articles

This lecture was delivered in connection with the St. John Henry Newman Chair in Law at The Catholic University of America, Columbus School of Law, and as part of a conference on "St. John Henry Newman, Tradition, and Law." It reflects on the worth of the idea of tradition in life, law, and Christianity.

Defense Against The Dark Arts: The Diversity Rationale And The Failed Affirmative Defense Of Affirmative Action, Sheldon Bernard Lyke

Washington and Lee Law Review

Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action—like remedying an institution’s history of discrimination, or curing a school’s present and ongoing discrimination by …

Mandatory Anti-Bias Cle: A Serious Problem Deserves More Meaningful Response, Rima Sirota

Georgetown Law Faculty Publications and Other Works

This essay addresses the problematic convergence of two recent trends: (1) the expansion of jurisdictions requiring anti-bias training (ABT) as part of mandatory continuing legal education (CLE), and (2) the growing recognition among social scientists that such training, at least as currently practiced, is of limited effectiveness.

Forty-six American states require continuing legal education (CLE), and eleven of these states now require lawyer ABT as one facet of CLE requirements. I have previously criticized the mandatory CLE system because so little evidence supports the conclusion that it results in more competent lawyers. The central question tackled by this essay is …

Environmental Law For A Just Transition, Dayna Nadine Scott

Articles & Book Chapters

The environmental justice movement, which turns our attention to fairness in the distribution of environmental benefits and burdens and in the processes, biases and
structures that determine those distributions, is challenging the foundations of environmental law.
• ‘Extractivism’ – a mode of accumulation that necessitates both a high pace and a large scale of taking of natural resources such as fossil fuels – is deeply embedded in environmental law, producing uneven costs/benefits and intense, concentrated impacts on people and ecosystems. Even as we move towards a greener economy, environmental laws and regulations governing such areas as facility siting, pollution permitting, …

Emerging Technology's Unfamiliarity With Commercial Law, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Over the course of a three-year, collaborative process that was open to the public, the Uniform Law Commission (ULC) and the American Law Institute (ALI) undertook a project to revise the Uniform Commercial Code (UCC) to account for the impact of emerging technologies on commercial transactions. The amendments, approved jointly by the ULC and ALI in July 2022, touch on aspects of the entire UCC, but one change has inspired ire and attracted national media attention: a proposed revision to the definition of “money.” The 2022 UCC Amendments alter the definition of “money” to account for the introduction of central …

Tiktok, Copyright, And Justice, Brittany Morris

Journal of Law, Technology, & the Internet

In 2019, the Copyright Office refused registration for two "dances" that were highly recognizable and traceable to specific individuals. The "Carlton" was refused because it is a "simple routine that is not registrable as a choreographic work." The "Milly Rock" was also refused registration on the same grounds. Epic Games was selling the dances as an add-on to its wildly popular video game, Fortnite, which primarily derives profits from microtransactions. The app TikTok is experiencing an analogous problem. In July 2021, Black Creators were on strike from the app.1 They alleged that the original dances they created for the app …

A Questionable Categorization — Trademark's Struggle To Protect Tribal Cultural Property, Emilie (Smith) Rohde

Marquette Intellectual Property & Innovation Law Review

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