Digital Commons Network^™

The Great Effacement: New Zealand's Silencing On The 2019 Mosque Shooter, J.C. Oleson

University of San Francisco Law Review

No abstract provided.

Critical Erase Theory: The Assault On Public School Curriculum, Brooks R. Cain

Oklahoma Law Review

No abstract provided.

A Week To Prep, Two Minutes To Talk, And Two Days To Move: Why Oklahoma’S Eviction Courts Are Out Of Step With The Constitution, Adam H. Hines

Oklahoma Law Review

No abstract provided.

Easing Evictions: The Need For Mediation And Formal Eviction Guidelines Between New York City Landlords And Rent-Stabilized Tenants, Halle Jaffe

Cardozo Journal of Conflict Resolution

No abstract provided.

Oil, Gas & Mineral Law, Austin W. Brister, Logan Jones

SMU Annual Texas Survey

This Article summarizes, sorts, and discusses the most impactful cases relating to oil, gas, and mineral law in Texas decided by the Texas Courts of Appeals and the Texas Supreme Court during the Survey period.

Comments Of The Cordell Institute On Ai Accountability, Neil M. Richards, Woodrow Hartzog, Jordan Francis

Scholarship@WashULaw

These comments are a response to the National Telecommunications and Information Administration's 2023 request for comment on AI accountability (AI Accountability RFC, NTIA–2023–0005).

Responding to NTIA’s recent inquiry into AI assurance and accountability, we offer two main arguments regarding the importance of substantive legal protections. First, a myopic focus on concepts of transparency, bias mitigation, and ethics (for which procedural compliance efforts such as audits, assessments, and certifications are proxies) is insufficient when it comes to the design and implementation of accountable AI systems. We call rules built around transparency and bias mitigation “AI half-measures,” because they provide the appearance …

Are Lawyers’ Case Selection Decisions Biased? A Field Experiment On Access To Justice, Jens Frankenreiter, Michael A. Livermore

Scholarship@WashULaw

The attorney-client relationship is pivotal in providing access to courts. This paper presents results from a large-scale field experiment exploring how demographic information (encoded in potential clients’ names) affects how attorneys respond to initial inquiries in private injury cases. On the basis of prior literature, we hypothesize that race is a significant factor, but we also explore race and gender interactions. We find that ostensibly Black or Hispanic inquirers receive fewer responses than ostensibly White inquirers, a result largely driven by preferential treatment of White female inquirers. The racial disparities are larger than those previously documented in contexts such as …

Natural Language Processing In Legal Tech, Jens Frankenreiter, Julian Nyarko

Scholarship@WashULaw

Natural language processing techniques promise to automate an activity that lies at the core of many tasks performed by lawyers, namely the extraction and processing of information from unstructured text. The relevant methods are thought to be a key ingredient for both current and future legal tech applications. This chapter provides a non-technical overview of the current state of NLP techniques, focusing on their promise and potential pitfalls in the context of legal tech applications. It argues that, while NLP-powered legal tech can be expected to outperform humans in specific categories of tasks that play to the strengths of current …

A Scientific Method For International Taxation?, Luiza Leite De Queiroz

Emory International Law Review Recent Developments

Fractioning and fairly distributing parts of a whole is never quite straightforward. Whether we speak of justly portioning and dividing scrambled eggs between siblings or jurisdictional claims over the ocean space between nations, reckoning with the dilemmas of sharing is an integral part of the human experience. Acknowledging that, this essay contends that contemporary discussions on fairness in international taxation ought to be situated within this broader context. It is centrally argued that justly allocating taxing entitlements over cross-border wealth is a task contingent on the same subjective predicaments seen in the division process of any given valuable whole. The …

How To Get Away With Discrimination: The Use Of Algorithms To Discriminate In The Internet Entertainment Industry, Sumra Wahid

American University Journal of Gender, Social Policy & the Law

In July 2021, Ziggi Tyler posted a video on TikTok, a popular video sharing platform, where he expressed his frustration with being a Black content creator on TikTok. The video showed Ziggi typing phrases such as “Black Lives Matter” or “Black success” into his Marketplace creator bio, which the app would immediately flag as inappropriate content. However, when Ziggi replaced those words with “white supremacy” or “white success,” no inappropriateness warning appeared. Although a TikTok spokesperson responded to the video clarifying that the app had mistakenly flagged phrases without considering word order, Ziggi refused to let an algorithm absolve TikTok …

Blockchain, The Superhero That The Healthcare Industry Needs, Victor Wang

Cardozo Arts & Entertainment Law Journal

The note argues that blockchain technology holds significant potential for transforming the healthcare industry by enhancing data security and efficiency. However, its integration faces legal challenges due to conflicts with existing healthcare laws, particularly the Health Insurance Portability and Accountability Act (HIPAA) and the HITECH Act. The note contends that blockchain's decentralized and immutable nature violates key HIPAA requirements, such as data disposal and accountability standards. It advocates for updating these laws to accommodate blockchain technology and ensure compliance, emphasizing the need for legal frameworks to evolve alongside technological advancements.

Impossibility Of Emergent Works’ Protection In U.S. And Eu Copyright Law, Mateusz Blaszczyk

Scholarly Works

Protection of emergent works is impossible. Without an author, there is no expression of ideas which can be original, and thus no copyrightable work. Indeed, the whole system of copyright law, its conceptual building blocks of idea-expression dichotomy, originality, authorship, and the concept of a protectable work operate in the notation of human creativity. Emergent works fall outside of copyright’s positive ontology, being akin to ideas, facts, or subject-matter predicated by technical considerations, rather than authorial creativity. In other words, they do not exist as things in law and thus cannot as such be owned. Rather, like any idea, they …

The Tripartite Model Of Facial Recognition: Bridging The Gap Between Privacy, Public Safety, Technology And The Fourth And First Amendments, Shlomit Yanisky-Ravid, Kyle Fleming

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Tackling The Intangible: Why The Supreme Court Needs To Define Intellectual Property And What Facebook Stands To Lose (Or Win), John Paul A. Galgano

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Death Of The Legal Subject, Katrina Geddes

Vanderbilt Law School Faculty Publications

The law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child.

Relative to other areas of law, criminal law is oversaturated with prediction. Almost …

Reasonable Classification Versus Equality Under The Indian Constitution, Jahnavi Sindhu, Vikram Aditya Narayan

National Law School Journal

This article critiques the standard of review most prominently applied in cases involving claims of violations of Article 14 of the Constitution: the reasonable classification test. We argue that this test is woefully inadequate in appreciating and protecting the wide-ranging nature of the right to equality. Through an examination of the origins of the reasonable classification test, we demonstrate the weak justifications initially advanced by the Indian judiciary to import it from dated United States (US) case law. Further, we highlight the substantial weaknesses of the test and explain how it precludes the judiciary from safeguarding the content of substantive …

The Secret Sauce: Examining Law Schools That Overperform On The Bar Exam, Derek T. Muller, Christopher J. Ryan Jr.

Journal Articles

Since 2010, law schools have faced declining enrollment and entering classes with lower predictors of success despite recent signs of improvement. At least partly as a result, rates at which law school graduates pass the bar exam have declined and remain at historic lows. Yet, during this time, many schools have improved their graduates' chances of success on the bar exam, and some schools have dramatically outperformed their predicted bar exam passage rates. This Article examines which schools do so and why.

Research for this Article began by accounting for law schools' incoming class credentials to predict an expected bar …

Exploring Jury Nullification: Its Political History, Current, And Potential Impact On Policy, David Harold Penny

Walden Dissertations and Doctoral Studies

Jury nullification (JN) is when a jury knows a defendant is legally guilty, but states they are not guilty, believing that their verdict better serves justice in that case. The problem is the violation of the Constitution’s equal protection clause for all citizens, caused by the intentional omission in most judges’ instructions to juries of JN. The purpose of the study was to fill the gap in the literature on jury behavior and address the problem of JN. The study framework is chaos theory as applied by Horowitz to jury behavior. It describes judges and lawmakers mistrust of juries associated …

Exploring Jury Nullification: Its Political History, Current, And Potential Impact On Policy, David Harold Penny

Walden Dissertations and Doctoral Studies

Jury nullification (JN) is when a jury knows a defendant is legally guilty, but states they are not guilty, believing that their verdict better serves justice in that case. The problem is the violation of the Constitution’s equal protection clause for all citizens, caused by the intentional omission in most judges’ instructions to juries of JN. The purpose of the study was to fill the gap in the literature on jury behavior and address the problem of JN. The study framework is chaos theory as applied by Horowitz to jury behavior. It describes judges and lawmakers mistrust of juries associated …

Regulating History, Sara C. Bronin, Leslie R. Irwin

GW Law Faculty Publications & Other Works

America’s local historic commissions collectively wield tremendous influence over millions of privately-owned parcels of land. By reviewing rehab proposals, blocking demolitions, and mandating property maintenance, these commissions have helped to protect many of America’s most beloved neighborhoods. They fill a vacuum left by federal and state governments, which have declined to offer robust legal protections to private historic sites. Litigation challenging local historic decisions and press vilifying commissions for their alleged elitism, anti-environmental decisions, and general obstruction of progress have put preservation in the contemporary crosshairs. While we align with those who believe that clear-thinking commissions can successfully mediate between …

Identities Of Women In Indian Art And History, Nalini Rao

Monsoon: South Asian Studies Association Journal

The stereotypical image of Indian women portrayed in the art of stone sculpture is often interpreted as images of beauty that are sensuous, religious as well depict social life. There are historical reasons for depicting her as such. This paper inquires into the changing depiction and social forces that influenced feminine imagery. This paper examines the portrayal of beauty through idealization of female body which has evolved over the centuries in India. It also aims to understand their changing status and explores issues of feminine identity, status, and empowerment largely in ancient and medieval India. It also provides a brief …

Reconceptualizing Conception: Making Room For Artificial Intelligence Inventions, Villasenor, John

Santa Clara High Technology Law Journal

Artificial intelligence (AI) enables the creation of inventions that no natural person conceived, at least as conception is traditionally understood in patent law. These can be termed “AI inventions,” i.e., inventions for which an AI system has contributed to the conception in a manner that, if the AI system were a person, would lead to that person being named as an inventor. Deeming such inventions unpatentable would undermine the incentives at the core of the patent system, denying society access to the full benefits of the extraordinary potential of AI systems with respect to innovation. But naming AI systems as …

Artificial Intelligence In Government: Risks And Challenges Of Algorithmic Governance In The Administrative State, Jose Vida Fernandez

Indiana Journal of Global Legal Studies

This article analyzes the legal implications of using artificial intelligence in government and how it is challenging the foundations of the administrative state. It begins by demonstrating that a new model of government is emerging, based on information and intelligence (i-Gov). To understand the nature and scope of this new i-Gov model, this article will explain what artificial intelligence really is and analyze the applications that are currently being carried out in the US and the EU. Next, it will review the regulatory framework that is emerging that regulates government use of artificial intelligence in both the US and the …

Natural Language Processing In The Legal Domain, Daniel Martin Katz, Dirk Hartung, Lauritz Gerlach, Abhik Jana, Michael J. Ii Bommarito

Research Collection Yong Pung How School Of Law

In this paper, we summarize the current state of the field of NLP and Law with a specific focus on recent technical and substantive developments. To support our analysis, we construct and analyze a corpus of more than six hundred NLP and Law related papers published over the past decade. Our analysis highlights several major trends. Namely, we document an increasing number of papers written, tasks undertaken, and languages covered over the course of the past decade. We observe an increase in the sophistication of the methods which researchers deployed in this applied context. Slowly but surely, Legal NLP is …

The Purcell Principle And The Antiblackness Of Constitutional Fundamentalism, Brittany Carter

American University Law Review

In Milligan v. Merrill, a district court in Alabama found that the state legislature designed Alabama’s new congressional district map in a way that diminished Black political power, and ordered the legislature to redraw its map to remedy the violation. Two weeks later, the Supreme Court stayed the district court’s order, allowing Alabama’s congressional elections to proceed under the discriminatory maps. The only stated rationale, offered by Justices Kavanaugh and Alito in a concurring opinion, was the so-called Purcell principle – the notion that federal courts should not enjoin a state’s election laws in the period close to an election. …

Treaty Interpretation At The Human Rights Committee: Reconciling International Law And Normativity, David H. Moore

Faculty Scholarship

The Human Rights Committee, the expert body overseeing states’ compliance with the International Covenant on Civil and Political Rights (“ICCPR”), is a key institution in the international human rights architecture. The Committee’s work requires constant interpretation of the ICCPR’s human rights guarantees. While international law dictates how to interpret treaty provisions, including those of the ICCPR, the Committee does not consistently follow the international law of treaty interpretation. Rather, normativity plays an influential role in the Committee’s interpretations. This approach is not uniformly negative; it has both costs and benefits. To minimize the costs, however, this Article identifies a path …

Frederick Douglass And The Original Originalists, Bradley Rebeiro

Faculty Scholarship

Constitutional scholars incessantly grapple over the significance of the Constitution’s original meaning. More specifically, they are preoccupied with, on the one hand, what that meaning is (if such meaning exists) and, on the other hand, the exact nature of that meaning’s authority (if any) over the Constitution and its interpreters. But this debate is hardly novel. In fact, one of the most compelling voices in U.S. history was immersed in similar debates and, out of the constitutional sparring of his time, forged an arresting theory of constitutional interpretation. Frederick Douglass, once a fierce opponent of the U.S. Constitution, evolved into …

The Transparency Machine, Talia B. Gillis

Faculty Scholarship

Orly Lobel’s rich and insightful book provides a clear-eyed view of the use of artificial intelligence in personal and societal domains and its distributional implications. The book sets out to evaluate how technology can promote equality, which is far from the natural perspective of us law professors, who tend to feel more comfortable as technology alarmists. Lobel challenges us to take the perspective that “digitization and automation are here to stay” and to find ways in which technology can “do better than our current systems” even when it is not perfect.

Short Circuiting The Administrative Judiciary: A Response To Linda Jellum, Marshall J. Breger

Scholarly Articles

Linda Jellum provides a powerful analysis of the status of the exhaustion process for the SEC administrative judiciary and more broadly of the entire administrative judiciary. Many of her arguments are telling and on point. I disagree with a number of her technical and statutory arguments, and even more so the consequences of her analysis for the administrative state as we know it.

Jellum's argument is that Congress did not intend to preclude district courts from hearing constitutional challenges to SEC adjudications because agency ALJs are not the right adjudicators to hear challenges to the constitutionality of their own operations.

Judging Better Together: Understanding The Psychology Of Group Decision-Making On Panel Courts And Tribunals, Brian M. Barry Dr

Articles

While the psychological phenomena that affect group decisionmaking have been thoroughly investigated for decades, how these phenomena apply to decision-making by judges on panel courts is under-examined. This article examines the main psychological phenomena of group decision-making, both positive and negative, and considers their implications for panel courts and other groups of professional legal decision-makers such as adjudicators serving on tribunals. This article argues that experimental studies on judges and adjudicators testing the effects of these phenomena would improve understanding of legal decision-making by these groups and could help to devise ways to improve their decision-making processes to reach higher …