Digital Commons Network^™

Framing Online Speech Governance As An Algorithmic Accountability Issue, Mehtab Khan

Indiana Law Journal

Automated tools used in online speech governance are prone to errors on a large-scale yet widely used. Legal and policy responses have largely focused on case-by-case evaluations of these errors, instead of an examination of the development process of the tools. Moreover, information on the internet is no longer simply generated by users, but also by sophisticated language tools like ChatGPT, that are going to pose a challenge to speech governance. Yet, legal and policy measures have not responded adequately to AI tools becoming more dynamic and impactful. In order to address the challenges posed by algorithmic content governance, I …

Accommodating Religion After Groff, Charles A. Sullivan

SMU Law Review

At the end of last term, Groff v. DeJoy “clarified” an earlier Supreme Court decision that had largely nullified Title VII’s duty that employers reasonably accommodate their workers’ religious practices by virtue of a very broad interpretation of a statutory exception. That exception permitted denying accommodation when the result would be “undue hardship,” and the Court in the earlier case had described that defense as triggered whenever the accommodation would impose “more than de minimis” costs. This atextual reading had the effect of largely erasing the duty, and over time became increasingly out of sync with the Court’s religious liberties …

History Vs. Originalism: The Bill Comes Due, Stephen M. Griffin

Constitutional Commentary, Vol. 37 and later (2023–present)

No abstract provided.

The Trouble With Classifications, Aziz Z. Huq

Public Law and Legal Theory Working Papers

The Supreme Court relies increasingly on anti-classification rules to implement the Constitution’s commands of even-handed state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—triggering the familiar strict scrutiny analysis. So defined, anti-classification rules now dominate Equal Protection, Free Speech, ‘dormant’ Commerce Clause, and even Free Exercise jurisprudence. The Roberts Court celebrates them as “commonsense,” citing their …

Making A Mother: The Supreme Court And The Constitutive Rhetoric Of Motherhood, Lucy Williams

North Carolina Law Review

No abstract provided.

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

Academically Productive Talk In The Classroom Through Fishbowl Discussions, Mandee Baumer

Faculty Scholarship

No abstract provided.

Does The Constitution Follow The Flag? The Paradox Of Puerto Rican Identity And Citizenship, Laura Somoza Velez

CMC Senior Theses

How do identity and citizenship interact? Puerto Rico’s current political status is that of an unincorporated, organized territory of the United States, under the shiny title of ‘Commonwealth.’ Although they have US Citizenship, Puerto Rican residents aren’t protected by the US Constitution. This source of dual identification, American and Puerto Rican, creates a unique circumstance where questions of identity, and belonging naturally arise. In this thesis, I aim to answer how the citizenship condition created in Puerto Rico and how it is experienced measure up to current debates and scholarship surrounding citizenship. Achieved through a historical analysis of the formation …

Righteous Fury: A Natural Rights Approach To The Individual Right To Bear Arms Under The Ninth And Fourteenth Amendments, Nikhil Agarwal

CMC Senior Theses

The individual right to bear arms for self-defence has been grounded by the modern Supreme Court in the Second Amendment and incorporated against the States by the Due Process Clause of the Fourteenth Amendment. However, a close examination of both the majority and dissenting opinions in each of the three landmark gun-rights cases decided by the Supreme Court this century- DC v. Heller, McDonald v. Chicago, and New York State Rifle & Pistol Association v. Bruen- reveal how difficult is to determine the original meaning of the Second Amendment, and expose weaknesses in the Court’s current substantive due process …

The Radical Challenge To The Antitrust Order, Daniel A. Crane

Articles

The U.S. antitrust order is undergoing a radical challenge along three key dimensions. First, the challengers seek to denaturalize markets and replace a commitment to competition with an anti-domination norm. Second, the challengers seek to dramatically alter institutional arrangements, with Congressional legislation and agency rulemaking replacing antitrust's longstanding commitment to judicial common law incrementalism. Finally, the challengers would replace the antitrust order's preferred juridical approach-open-ended rule of reason analysiswith a return to bright-line prohibitory rules and a related demotion of economists as decision-makers. Each of these challenges entails significant consequences, many of them unintended, counter-productive, or perverse. Contrary to the …

Effects Of Dehumanization And Disgust-Eliciting Language On Attitudes Toward Immigration: A Sentiment Analysis Of Twitter Data, Katherine S. Wahrer, Cynthia J. Najdowski, John V. Passarelli

Psychology Faculty Scholarship

Attitudes towards immigration have been shown to be driven by dehumanization and disgust. The more people dehumanize immigrants and the more disgusted they feel, the more negative attitudes they tend to have toward immigrants. However, little is known about how exposure to social media content that links dehumanization, disgust, and immigration influences users’ attitudes on this issue. This is important to consider because the majority of adults in the United States are on social media. We used Twitter data, machine learning, and sentiment analysis to investigate whether exposure to dehumanizing or disgust-eliciting tweets about immigration impacts users’ own sentiment toward …

Deconstructing The Blueprint For Infringement: Remedying Flawed Interpretations Of The § 120(A) Exception To Architecture Copyrights, Margalit Zimand

Kernochan Center for Law, Media, and the Arts

Drafting the Architectural Works Copyright Protection Act of 1990 (“AWCPA”) consisted of a bizarre hodgepodge of considerations. Ostensibly, the goal of the Act was to bring the United States unquestionably into compliance with the Berne Convention for the Protection of Literary and Artistic Works, which the United States had just recently joined, with as minimal an impact on U.S. law as possible. In reality, this goal — itself not without built-in tensions — was but one of several competing forces at play in the drafting process. The other forces generally fell into three camps. There were the proponents of preserving …

Human Capital Disclosure & Corporate Governance: The New Evidence, George S. Georgiev

Faculty Articles

This Article explores the evolution of human capital disclosure—firm-supplied information about various workforce-related matters—as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management (“HCM”) disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in board of directors’ oversight responsibilities in a number of areas, including HCM, while labor’s power has unexpectedly increased in some …

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 …

Section 94 Of The Land Code B.E. 2497: Legal Issues Concerning Illegal Acquisition, Disposal, And Retention Of Land By Foreigners, Methawee Suephithakmongkhon

Chulalongkorn University Theses and Dissertations (Chula ETD)

In practice, many foreigners have managed to acquire land in Thailand through nominee structures or proxy companies, despite legal prohibitions. Even when such unlawful acquisitions are discovered, Section 94 of Thailand’s Land Code B.E. 2497 does not penalize the conduct but instead allows foreigners to dispose of the land and retain both their initial investment and any resulting profit. This Independent Research Paper investigates Section 94 of Thailand’s Land Code B.E. 2497, a provision that permits foreigners who have unlawfully acquired land to dispose of it and retain the proceeds. Despite the formal prohibition on foreign land ownership, Section 94 …

Whistleblower Protection In The Private Sector: A Comparative Study Of Laws In Thailand, The Us, And The Uk, Lena Sukprasongphol

Chulalongkorn University Theses and Dissertations (Chula ETD)

Whistleblower protection plays a vital role in promoting transparency, deterring misconduct, and strengthening regulatory and corporate accountability. Despite its importance, Thailand’s current legal framework for protecting private-sector whistleblowers remains fragmented and underdeveloped. In the absence of a dedicated statute, legal protections are primarily dispersed across general labour and securities laws, leaving significant legal and practical gaps that undermine effective protection. This study adopts a doctrinal legal methodology to examine the scope and effectiveness of existing Thai legal provisions, identifying key areas of ambiguity and weakness in both legislation and enforcement. To inform and strengthen the analysis, a comparative legal approach …

Legal Ambiguities Of Anonymous Shareholder Under A Nominee Shareholding Agreement In China, Meng Lin

Chulalongkorn University Theses and Dissertations (Chula ETD)

The nominee shareholding agreement, as a flexible investment arrangement, caters to the specific needs of the Chinese commercial environment, such as safeguarding privacy, circumventing investment restrictions, and facilitating the intergenerational transfer of family businesses. While such agreements have played a positive role in broadening investment channels and promoting the development of a market-oriented economy, their inherent secrecy and lack of regulatory clarity have also introduced instability and legal uncertainty into the market. Despite the widespread use of nominee shareholding agreements in China, there is still no comprehensive and explicit legal framework to define their nature or to regulate their use. …

Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins

Law Faculty Publications

Drug courts-and the litany of other problem-solving courts that soon followed in their wake-began as a series of small-scale judicial experiments in criminal punishment reform. They were earnest efforts by criminal court judges to redress an issue that they were well-equipped to see: many people were returning to their courtrooms time and again, often for low-level drug charges, and at a time when court dockets were ballooning because of tough-on-crime arrest and prosecution policies. Early drug court judges combined their power to punish with their authority to control their dockets to create specialized court calendars aimed at providing substance abuse …

Indefinite Detention Under Part Xx.1 Of The Criminal Code And Winko V. British Columbia, Jamie Cameron

Articles & Book Chapters

“Indefinite Detention Under Part XX.1 of the Criminal Code and Winko v. British Columbia” is chapter 27 in a textbook titled Canadian Anthology on Mental Health and the Law. It draws on the author’s ten years as a legal member and alternate chair on the Ontario Review Board, as well as on her participation in a research study on perceptions of fairness in ORB proceedings, to provide critical comment on the procedural fairness and constitutionality of forensic detention for mentally disordered criminal offenders (i.e. not criminally responsible (NCR); unfit to stand trial (UST); and dual status offenders …

Sanctuary Without Resistance, Ava Ayers

Lewis & Clark Law Review

Activist movements that embrace the idea of sanctuary for noncitizens are rich with narratives of resistance. These narratives vary; some sanctuary advocates pursue resistance only to specific federal immigration policies, while others offer more radical critiques that challenge the very legitimacy of U.S. immigration law. But when local and state governments adopt sanctuary policies, the idea of resistance is often altogether lost.

Local and state governments who adopt policies of noncooperation with federal immigration enforcement sometimes offer narratives in which the values that motivate sanctuary policies involve not resistance to injustice, but public safety, economic development, and other more traditional …

Moore V. United States: The Constitutionality Of The Taxation Of Unrealized Gains, Loren Naldoza

Lewis & Clark Law Review

Rarely in modern tax jurisprudence does the common adage “nothing is certain except death and taxes” receive a challenge in the highest court in the land. This year, the Supreme Court is considering the most existential question concerning the federal income tax in over a century: what is “income”? The definition of “income” has gone through several developments and adjustments since the enactment of the Sixteenth Amendment. Two taxpayers have reached the Supreme Court to challenge one such aspect of the definition of “income”— whether realization is a constitutional requirement as required by the Sixteenth Amendment. When an accession to …

Restricting The Use Of Rap Lyrics As Evidence In Courts: A Targeted Approach To Tackling Discrimination In Criminal Procedure, Paige M. Walker

Lewis & Clark Law Review

This Article is a review of Rap on Trial: Race, Lyrics, and Guilt in America. The book largely focuses on the dangers of allowing rap lyrics to be presented as evidence in criminal trials. The authors posit that the fictitious and hyperbolic nature of rap lyrics are misrepresented by prosecutors as autobiographical confessions that document illegal activity and violent character traits of defendants. The authors compare rap to other musical genres and conclude that racism is the underlying cause for why the genres are treated differently in court. The authors also advocate for evidence nullification and argue for a complete …

Competition And Congestion In Trademark Law, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna

Faculty Scholarship

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this Article, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being …

Fair Notice And Criminalizing Abortions, Brian G. Slocum, Nadia Banteka

Journal of Criminal Law and Criminology

The principle of legality requires that individuals receive “fair notice” of conduct that is criminal. Courts enforce this fair notice requirement through various interpretive principles and practices, including the void-for- vagueness doctrine. The void-for-vagueness doctrine remains undertheorized, however, despite its centrality to the interpretation of criminal statutes. We offer a new theory of the void-for-vagueness doctrine that accounts for recent Supreme Court decisions. Specifically, we propose a scalar theory that fair notice is a matter of degree, dependent on various factors. We explore the implications of this theory for anti-abortion statutes post-Dobbs and explain why many of these statutes do …

The Rule Of Lenity As A Disruptor, Maciej Hulicki, Melanie M. Reid

Journal of Criminal Law and Criminology

This article discusses the application of the rule of lenity in the American legal system. Although this constitutes a substantial element of criminal law in the United States and has been duly established in jurisprudence and legal science, it has still not been adequately applied in judicial practice. The authors of the article reflect on this situation, analyzing the historical background and the origins of this principle, as well as its current implementation in the U.S. criminal law. The work also includes a comparative analysis, where the authors juxtapose the rule of lenity with similar principles known in civil law …

A (Sovereign) License To Kill? The Boundaries Of Jurisdictional Immunities For State-Sponsored Crimes, Thibault Moulin

Emory International Law Review

Thanks to their immunities, states are normally not subject to civil proceedings before foreign courts. While some may argue there are exceptions to this principle, in particular regarding acta de jure gestionis, the International Court of Justice refused to recognize the existence of further limitations to this principle in the Jurisdictional Immunities of the State case. However, even after the judgment, several questions remain unresolved. This article clarifies the boundaries of civil immunities in the field, and especially vis-à-vis state-sponsored crimes. This article finds that state-sponsored crimes may qualify as sovereign acts and that contradiction with jus cogens is …

Self-Determination And Territorial Agreements In The Middle East: From The Ottomans To Colonial Rule, Ilias Bantekas, Moza Al-Thani

Emory International Law Review

A Pan-Arab uprising against the Ottomans must have seemed unlikely in the late nineteenth century. Yet, grounded around a common language, history and culture, Arab nationalists demanded their unification in a single nation state. To achieve this aim, they allied with the British and the Entente but soon discovered that territorial and self-determination commitments made to them were not always forthcoming and were interjected with secret agreements and unilateral acts to which they were not privy. While Gulf sheikhdoms entered into consensual protectorate treaties with the British, the former Ottoman territories of the Middle East and the Levante were still …

Foundations And Principles: An Introduction To Islamic Jurisprudence & A Brief Comparison To American Jurisprudence, Zacky H. Sungkar

Student Works

No abstract provided.

United States Of America Needs To Learn From The World: "Nonhuman Legal Personhood" - The Right Of Animals, Tiya Singh

Student Works

No abstract provided.