Digital Commons Network^™

Dismantling The Wall, Charles Shane Ellison, Anjum Gupta

Michigan Law Review Online

In this Essay, we will summarize the status quo of this crisis. We will highlight warning signs that began to appear even before the Trump Administration to understand how we reached this point. We will then propose solutions to chart a pathway forward, exploring strategies for implementing lasting reforms aimed at tearing down this administrative wall and replacing it with a more fair and welcoming system.

Culture And Fair Use, Michael P. Goodyear

Fordham Intellectual Property, Media and Entertainment Law Journal

The intersections of race and copyright have been underexamined in legal scholarship, despite repeated calls for further scrutiny. The scholarship has so far focused primarily on identifying where copyright has fallen short in protecting the creative works of artists of color. This Article, instead, hopes to offer one viable solution for creating more inclusivity of different cultures in copyright: the approval of cultural adaptations under fair use.

Cultural adaptations—the transformation of preexisting works to reflect the cultural and social mores and norms of a different group—would appear at first glance to be prohibited as derivative works, which, under the Copyright …

The Incompatibility Of Artificial Intelligence And Citizens United, Michael R. Siebecker

Sturm College of Law: Faculty Scholarship

In Citizens United v. FEC, the Supreme Court granted corporations essentially the same political speech rights as human beings. But does the growing prevalence of artificial intelligence (“AI”) in directing the content and dissemination of political communications call into question the jurisprudential soundness of such a commitment? Would continuing to construe the corporation as a constitutional rights bearer make much sense if AI entities could wholly own and operate business entities without any human oversight? Those questions seem particularly important, because in the new era of AI, the nature and practices of the modern corporation are quickly evolving. The magnitude …

Reimagining The Refugee & Asylee Experience Through Law: Exploring U.S. Culpability And (Un) Exceptionalism, Thea Cabrera Montejo, Angela Altieri, Katherine Pratty, Alexandra Curbelo

Human Rights Brief

No abstract provided.

Data Property, James Grimmelmann, Christina Mulligan

American University Law Review

In this, the Information Age, people and businesses depend on data. From your family photos to Google’s search index, data has become one of society’s most important resources. But there is a gaping hole in the law’s treatment of data. If someone destroys your car, they have committed the tort of conversion, and the law gives a remedy. But if someone deletes your data, it is far from clear that they have done you a legally actionable wrong. If you are lucky, and the data was stored on your own computer, you may be able to sue them for trespass …

Human Rights, Constitutional Rights, And Judicial Review: Comparing And Assessing Michael Perry's Early And Contemporary Arguments, Daniel O. Conkle

Emory Law Journal

No abstract provided.

Endogenous, Exogenous And Existential Risk-New Global Solutions, G. A. Walker

The International Lawyer

No abstract provided.

Persecution And Labor Migrations Due To Corporate “Environmental” Exploitation: Waiting For The Unhrc’S Binding Treaty On Transnational Business Activities?, Riccardo Vecellio Segate

Loyola University Chicago International Law Review

Policy debates on the rights and international status of climate refugees, environmental migrants, or environmentally displaced persons have unleashed detailed scholarly commentaries over the last decade, and virtually all standpoints have been scrutinized in literature already. Nevertheless, one aspect of this debate has gone somewhat off the radar in recent years: the (co-)responsibilities of incorporated subsidiaries of transnational corporations in triggering or exacerbating pseudo-environmentally motivated mass-movements of workers and related strata of the populations domiciled where these corporations operate. Despite such neglect, mentioned exploitative occurrences only increased in recent years, and the trend speaks for their further expansion …

A Declaration Of Rights Lost: The Diminution Of Tennesseans' Civil Rights, Bailey D. Barnes

Faculty Publications

The Constitution of the State of Tennessee, in its current form, offers to the citizens of the Volunteer State a "Declaration of Rights" that prevents abuses by those in power against the governed. To paraphrase late Associate United States Supreme Court Justice Antonin Scalia, the Tennessee Constitution, which was adopted following the state's secession from and eventual return to the United States during the Civil War, continues to serve as the charter of Tennesseans' liberties. Indeed, the Tennessee Constitution's Declaration of Rights proclaims in the very first section, "[A]ll power is inherent in the people, and all free governments are …

Re-Indigenizing Yellowstone, Kekek Jason Stark, Autumn L. Bernhardt, Monte Mills, Jason A. Robison

Wyoming Law Review

No abstract provided.

Statutory Interpretation From The Outside, Kevin Tobia, Victoria Nourse, Brian G. Slocum

McGeorge School of Law Scholarly Articles

How should judges decide which linguistic canons to apply in inter­preting statutes? One important answer looks to the inside of the legisla­tive process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional …

Guide On Multisectional Responses For The Protection Of Migrants, Refugees, And Internally Displaced Persons During And After The Covid-19 Pandemic, Diego Rodriguez-Pinzon, Claudia Martin

Research Reports & White Papers

The Guide on Multisectoral Responses for the Protection of Migrants, Refugees, and Internally Displaced Persons during and after the COVID19 pandemic is an initiative of the Department of Social Inclusion of the Secretariat for Access to Rights and Equity of the Organization of American States (OAS) that offers a situational analysis and promotes a dialogue on proposals to address the particular needs of migrants, refugees, and internally displaced persons in the face of the emergency generated by COVID-19. It also seeks to define proposals with a post-pandemic perspective that provide multisectoral responses to address the needs of vulnerable populations.

This …

Defining And Demystifying Automated Decision Systems, Rashida Richardson

Maryland Law Review

No abstract provided.

Evaluating Legal Needs, Luz E. Herrera, Amber Baylor, Nandita Chaudhuri, Felipe Hinojosa

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Whither The Lofty Goals Of The Environmental Laws?: Can Statutory Directives Restore Purposivism When We Are All Textualists Now?, Stephen M. Johnson

Articles

Congress set ambitious goals to protect public health and the environment when it enacted the federal environmental laws through bipartisan efforts in the 1970s. For many years, the federal courts interpreted the environmental laws to carry out those enacted purposes. Over time, however, courts greatly reduced their focus on the environmental and public health purposes of the environmental laws when interpreting those statutes due to the rise in textualism, the declining influence of the Chevron doctrine, and the increasing willingness of courts to defer to agency underenforcement of statutory responsibilities across all regulatory statutes.

In 2020, the Environmental Protection Network, …

Arctic Navigation And Climate Change: Projections From Science For The Law Of The Sea, Charles H. Norchi, Amanda H. Lynch

Faculty Publications

Above latitude 66°33’44” north of the Equator lies the Arctic Circle. The center of the Circle is water, mostly covered by ice. The smallest of the world’s five oceans, it has been paddled, sailed, and traversed over centu-ries—to access its abundant resources, to reach the magnetic north pole, to discover routes connecting the Atlantic and Pacific Oceans, to expand sci-entific knowledge, to live, to discover, and to conquer. Peoples indigenous to the Arctic have long thrived in the lands and near-shore environments that bound the ocean.

By the age of European exploration of the Arctic, the 1648 Peace of Westphalia …

Police Agencies On Facebook Overreport On Black Suspects, Ben Grunwald, Julian Nyarko, John Rappaport

Articles

A large and growing share of the American public turns to Facebook for news. On this platform, reports about crime increasingly come directly from law enforcement agencies, raising questions about content curation. We gathered all posts from almost 14,000 Facebook pages maintained by US law enforcement agencies, focusing on reporting about crime and race. We found that Facebook users are exposed to posts that overrepresent Black suspects by 25 percentage points relative to local arrest rates. This overexposure occurs across crime types and geographic regions and increases with the proportion of both Republican voters and non-Black residents. Widespread exposure to …

Procedural Losses And The Pyrrhic Victory Of Abolishing Qualified Immunity, Adam A. Davidson

Articles

Who decides? Failing to consider this simple question could turn attempts to abolish qualified immunity into a Pyrrhic victory. That is because removing qualified immunity does not change the answer to this question; the federal courts will always decide. For an outcome-neutral critic of qualified immunity who cares only about its doctrinal failures, this does not matter. But for the vast majority of critics who are outcome- sensitive, meaning they care about qualified immunity because of its role in police accountability, this is a troubling realization. Building on earlier work on the equilibration thesis, as well as on qualitative and …

Trademark Confusion Revealed: An Empirical Analysis, Daryl Lim

Faculty Scholarly Works

The likelihood of confusion standard defines the scope of trademark infringement. Likelihood of confusion examines whether there is a substantial risk that consumers will be confused as to the source, identity, sponsorship, or origin of the defendants’ goods or services. This Article presents a contemporary empirical analysis of the various factors and how they interact. Conventional wisdom teaches us that courts should comprehensively traverse each factor and that likelihood of confusion cases generally require jury determination. However, the data reveals that neither is true. Instead, courts provide early off-ramps to litigants by “economizing,” and analyzing only a handful of factors …

Rigour Required: Recent Direction From The Supreme Court Of Canada On Binding And Non-Binding Sources Of International Law In Charter Interpretation, Ravi Amarnath, Courtney Harris

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

It is not uncommon for parties to plead principles of international law to inform a court’s analysis of the Canadian Charter of Rights and Freedoms (the “Charter”). However, commentators have long expressed concern about the Supreme Court of Canada’s lack of clarity on how it uses international human rights law and for what purpose in Charter interpretation. This paper addresses how a divided Supreme Court of Canada in Quebec (Attorney General) v. 9147-0732 Québec inc. (“9147-0732 Québec inc.”) attempted to clarify when it is appropriate for a court to use international law to interpret the scope of a Charter protection …

Amar's Words That Made Us, Michael J. Gerhardt

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

No abstract provided.

K Is For Contract--Why Is It, Though? A K'S Study On The Origins, Persistence And Propagation Of Legal Konventions, Hanjo Hamann

Minnesota Law Review Headnotes, Vols. 94-106 (2009-2022)

No abstract provided.

Transforming Sociology Courses With Human Rights Education: Curriculum, Pedagogy, And Classroom Environment Considerations, Karie Jo Peralta

Societies Without Borders

Sociology courses have significant potential to liberate students. A promising way to achieve this aim is by grounding courses in human rights principles such as respect, equity, equality, and democratic participation. Using a college-level, introductory sociology course as an example, this paper explores how a human rights education (HRE) framework can serve as a foundation for the teaching of sociology. The purpose is to show how sociology educators can relatively easily embed HRE into the learning experience. To begin, I will present a HRE framework. Then, I will illustrate how common course topics, teaching methods, and classroom conditions can be …

Reparations, Or Hush Money?, Christina Glekas

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Indigenous Alternative: Tek, Lel, And Solutions For The Unsolvable, Cara Victoria Sawyer

Loyola University Chicago International Law Review

This comment addresses the intentional exclusion of Indigenous nations from the United Nations and, consequently, from the UNFCCC and subsequent climate regime. It cautions of the adverse consequences that have resulted from such exclusion, both to the warming planet and to all its human residents. Critics say that the climate regime has fallen woefully short of reaching its goals. However, this comment suggests that including Indigenous nations in substantial international climate change conversations and decisions could result in yet-to-be-made progress toward reducing global warming. The permanent position status that the Inuit people hold on the Arctic Council, for example, helped …

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Maryland Law Review

No abstract provided.

Griswold For Google: Algorithmic Determinism And Decisional Privacy, Joshua Fairfield, Nathaniel Reynolds

Scholarly Articles

As surveillance capitalism continues to collect data and automate decisions, those on the receiving end of such actions are often rendered speechless. We are less left in awe of the great force of these technologies than we lack the language that could properly define and defend against their onslaught. Often, we feel powerless as our data is extracted then aimed at us to manipulate our own choices, and yet the conversation around these practices seems stultified. Algorithms have shifted the technological landscape by co-opting human decision-making and in the process co-opted the very tool that we use to respond to …

Who Owns The Critical Vision In International Legal History?: Reflections On Anne Orford's International Law And The Politics Of History, Afroditi Giovanopoulou

Scholarly Publications

No abstract provided.

Forecasting The How And Why Of Corporate Crime’S Demise, Miriam H. Baer

Faculty Scholarship

The law of corporate criminal liability has long elicited deep criticism from many quarters. Respondeat superior, the judge-created attribution rule that affixes criminal blame to corporations, enables the government to exercise too much power while securing too little accountability. It is hardly surprising, then, that the Journal of Corporation Law has published a symposium volume called, “Imagining a World Without Corporate Criminal Law,” of which this article is part.

My contribution predicts that corporate crime’s demise will arise, not from a direct attack, but rather from a series of indirect punches. Respondeat superior premises the corporation’s liability on that of …

Textualism, Dynamism, And The Meaning Of "Sex", Bill Watson

Cardozo Law Review de•novo

A recent Article by Professors William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries critically examines textualism, both in general and as applied in Bostock v. Clayton County. This Essay makes three points in reply. First, the authors criticize strawman versions of textualism that no mainstream legal interpreter claims to hold. Second, the authors’ examples of “societal dynamism” do not put any pressure on textualism properly understood. And third, the authors’ corpus-linguistics analysis of the word “sex” is, from a textualist perspective, irrelevant to the issue in Bostock.