Digital Commons Network^™

Ghost-Hunting In Al And The Law, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Generative AI is booming. This technology offers amazing opportunities for growth in various business sectors and creates the opportunity for swift progress on medical innovations, climate change, world hunger, and innumerable other areas. AI also poses a number of challenges, though, such as replacing human workers and exacerbating pernicious biases. Another major concern about generative AI is singularity-the idea that this technology could surpass human intelligence and subjugate us or render us extinct. Although some commentators discount this possibility, the fact that AI experts such as Geoffrey Hinton, Sam Altman, and Elon Musk share the singularity concern should at least …

The Emerging Crime Of Persecution Based On Sexual Orientation, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article argues that persecution based on sexual orientation constitutes a crime against humanity under international law. Unlike other scholarship that has focused on the definition of crimes against humanity in the 1998 Rome Statute for the International Criminal Court—which does not explicitly enumerate “sexual orientation” as a protected classification—this Article looks to customary international law made up by the practices of states.

Diligent research has revealed that between 1998 and 2022, at least 107 states enacted laws or revised existing laws decriminalizing sexual orientation and/or categorizing sexual orientation as a protected classification from discrimination. This is in addition to …

Can Machines Commit Crimes Under U.S. Antitrust Laws?, Aslihan Asil, Thomas G. Wollmann

The University of Chicago Business Law Review

Generative artificial intelligence is being rapidly deployed for corporate tasks including pricing. Suppose one of these machines communicates with the pricing manager of a competing firm, proposes to collude, receives assent, and raises price. Is this a crime under U.S. antitrust laws, and, if so, who is liable? Based on the observed behavior of the most widely adopted large language model, we argue that this conduct is imminent, satisfies the requirements for agreement and intent under Section 1 of the Sherman Act, and could confer criminal liability to both firms as well as the pricing manager of the competing firm.

“Killer Acquisitions” Reexamined: Economic Hyperbole In The Age Of Populist Antitrust, Jonathan M. Barnett

The University of Chicago Business Law Review

Major competition regulators, and substantial portions of the scholarly community, have rapidly adopted the view that “killer acquisitions” and “kill zones” constitute significant sources of competitive risk arising from incumbent acquisitions of emerging firms in digital markets. Based on this view, policymakers in the United States, European Union, and other jurisdictions have advocated for, and in some cases have taken, substantial changes to merger review policies that would erect significant obstacles to incumbent/startup acquisitions. A review of the relevant body of evidence finds that these widely-held views concerning incumbent/startup acquisitions rest on meager support, confined to ambiguous evidence drawn from …

From Deference To Indifference: Judicial Review Of The Scope Of Public Health Authority During The Covid-19 Pandemic, Wendy E. Parmet

Saint Louis University Journal of Health Law & Policy

For most of American history, courts have granted public health officials significant deference in construing the scope of their own authority. This changed during the COVID-19 pandemic, especially in the federal courts, where deference was replaced with skepticism as courts used the major questions doctrine to narrow the scope of public health powers. This Article examines this development and considers its implications for public health. Part II begins by recounting the long history of judicial deference to officials’ determination of the scope of their public health powers. Part III notes some of the problems with such deference and the pre-pandemic …

The Model Public-Health Emergency Authority Act, Robert Gatter

Saint Louis University Journal of Health Law & Policy

The Uniform Law Commission recently approved the Model Public-Health Emergency Authority Act (MPHEAA or the Act or the Model Act). The MPHEAA grants governors specific and plenary powers to issue public health emergency orders while also ensuring executive branch transparency and accountability. The Act improves public health emergency preparedness by resecuring the legal foundation for states to respond effectively to future emergencies. However, more work is needed to enhance data collection and support vulnerable populations in emergencies.

This Article discusses the origins of the MPHEAA, key policy and drafting choices the Drafting Committee made in creating the MPHEAA, and the …

Divine Law Or Constitutional Flaw: The Clash Of Religious Belief And Legal Neutrality In Missouri’S Abortion Ban, Caela M. Camazine

Saint Louis University Journal of Health Law & Policy

This Note explores the constitutional implications of Missouri’s recent abortion ban enacted in the wake of the Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade and Planned Parenthood v. Casey. This Note examines the clash of religious beliefs and the law by dissecting the legislative history and intent behind Missouri’s abortion ban. The ban, known as House Bill 126 or the “Missouri Stands for the Unborn Act,” took effect immediately upon certification by State Attorney General Eric Schmitt and prohibits nearly all abortions, except in cases of a narrowly defined “medical emergency.” Notably, the law invokes …

Regulating The Pains Of Racial Discrimination, Alice Abrokwa

Saint Louis University Journal of Health Law & Policy

This essay examines the relationship between experiences of racial discrimination and pain, assessing how social, legal, and regulatory responses to racial pain in the United States can enable further discrimination and compound the underlying pain. The essay articulates a conceptual framework for understanding this relationship, contending that: racial discrimination can contribute to pain severity and sensitivity; patients of color seeking pain relief are subject to heavy social scrutiny, including from their medical providers; social scrutiny and regulatory restriction together limit patients’ lawful avenues for pain relief, including their access to controlled substances that are used to manage pain; patients who …

Desegregating Behavioral Health Care For Medicaid Youth, Caroline M. Marsh, Valarie K. Blake

Saint Louis University Journal of Health Law & Policy

The Supreme Court held in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 581 (1999) that it is a violation of the Americans with Disabilities Act (ADA) for states to rely on institutionalized care when home and community-based care is more appropriate. Yet, over a quarter of a century later, states persist in institutionalizing youth experiencing behavioral health disabilities. This article explores Olmstead’s impact thus far on deinstitutionalization of youth behavioral health care, and the limits of Olmstead as a vehicle for lasting change. We argue that, although recent enforcement actions reflect critical change, Olmstead enforcements alone cannot succeed …

Climate Change, Policy Paralysis, And A Nuclear Waste Island? Exploring Perceptions Of Risk, Trust, And Community Agency In Navigating Uncertain Futures Facing Humboldt Bay's Spent Nuclear Fuel Storage Site, Alexander Brown

Cal Poly Humboldt theses and projects

Climate and coastal hazards threaten the long-term viability of indefinite in-situ nuclear waste storage in the U.S., especially at vulnerable “stranded” sites like Humboldt Bay, California. The national policy framework is fundamentally incompatible with emergent climate realities and does not adequately accommodate uncertainty, localized hazard conditions, and the sociocultural and political dynamics that manifest in diverse and contested public arenas. I interviewed 21 community-experts working at the intersection of climate change and nuclear waste, and co-facilitated three scenario planning workshops to gather insights on how to responsibly manage Humboldt Bay’s nuclear waste in a climate-altered world. Qualitative findings indicate variation …

Gender (Discrimination) Trouble, Katharine K. Baker

South Carolina Law Review

No abstract provided.

Ductus Exemplo: A Model Municipal Executive Order On Food Waste Reduction, Linda Breggin, Darby Hoover, Jessica Sugarman

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Managing Hazardous Waste Pharmaceuticals In Healthcare: A Perplexing Prescription, Garrison Rosser

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Speaking For The States: A Response To The Proposal Of Subnational Forest Federalization, Joseph White

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Clean Water Act Section 401 Water Quality Certification Improvement Rule And Why It Deserves Chevron Deference, Joseph Retzer

Saint Louis University Law Journal

This Article reviews the history of CWA Section 401 and finds that it supports affording EPA’s newest interpretive rule Chevron deference. The CWA Section 401 Water Quality Certification Improvement Rule serves as an important case study of the doctrine which faces mounting criticisms and two cases challenging its legality in the Supreme Court at the time of this publication. Although its application delegates lawmaking authority to unelected officials who change policies with the tides of each election, this delegation has been necessary in many areas of the law due to Congress’s failure to act in recent years. Instead of simply …

Intentional Parenthood, Contingent Fetal Personhood, And The Right To Reproductive Self-Determination, Laura D. Hermer

Faculty Scholarship

This Article argues that intent should govern legal parenthood, regardless of the method of conception, the person’s biological or genetic relationship to the resulting embryo/fetus, or the person’s gender. This proposition is not new. This Article adds to scholarly discourse by extending the concept: Intent should not just determine parenthood, but also fetal rights. When a pregnant person establishes their procreational intent (or lack thereof) prior to birth, then both the existence (or lack thereof) of legal protections for the embryo/fetus and the gestator’s rights and duties (or lack thereof) should flow from this intent. Non-gestating gamete contributors would do …

The Automated Fourth Amendment, Maneka Sinha

Emory Law Journal

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible.

Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Space Mining, Isabelle M. Thibault

Journal of Air Law and Commerce

The Outer Space Treaty, the leading source of law for activities in space, has laid out various limitations and regulations regarding actions in space and how space can be used. One of these limitations is commonly referred to as the “non-appropriation principle.” The non-appropriation principle prohibits nations from making claims of sovereignty over celestial bodies in space. This presents a problem as the space industry continues to progress because it causes uncertainty regarding the meaning of appropriation, what is classified as a celestial body, what acts are allowed, and who specifically is prohibited from acting. This Comment identifies these problems …

The Scandal Of Particularity: A New Approach To Rural Attorney Shortages And Access To Justice, Michele Statz

South Dakota Law Review

No abstract provided.

The Line: Ai And The Future Of Personhood, James Boyle

Faculty Books

The line that distinguishes people from animals, systems, and things is getting harder to draw. For all the concern about AI and genetic engineering, there has been surprisingly little discussion of the possible personhood of the new entities this century will bring us: what about their claims to be inside the line, to be "us" -- not machines or animals but persons -- deserving all the moral and legal respect that any other person has by virtue of their status?

Conservation As Multiple Use, Sandra B. Zellmer

Faculty Law Review Articles

The world is facing unprecedented species extinctions, wrought in large part by climate change. Slashing greenhouse gas emissions is one crucial response to the climate/biodiversity crisis. The conservation of intact ecosystems and the life-sustaining services they provide is another. This goal will be beyond reach if conservation commitments do not cover federal public lands, particularly multiple use lands.

The Bureau of Land Management (“BLM”) has recently proposed a pathbreaking new rule that explicitly defines conservation as a multiple use. In doing so, the Conservation and Landscape Health Public Lands Rule (“Conservation Rule”) puts conservation on par with other statutorily listed …

Multi-Parent Custody, Jessica Feinberg

Faculty Publications

In recent years, a number of jurisdictions have enacted laws recognizing that a child may have more than two legal parents (multi-parentage). Recognition of multi-parentage represents a significant change to the legal framework governing parentage— for most of U.S. history, it was well established that a child could have a maximum of two legal parents. While commentators undoubtedly will continue to debate the wisdom of multi-parentage recognition, it is clear both that multi-parentage has arrived and that its arrival raises many novel and important questions across a variety of areas of the law. Proponents and opponents of multi-parentage agree that …

Rebalancing Judicial Immunity For Civil Rights Actions, Bailey D. Barnes

Faculty Publications

Sterilization for shorter jail sentences. Vasectomies and birth control implants for freedom. In 2017, a criminal court judge in rural Tennessee made this offer to people incarcerated through sentences issued by his court. When litigators sought monetary damages and to enjoin the practice, and the local media exposed the scheme, the judge begrudgingly rescinded the order while expressing surprise that it was controversial. The Board of Judicial Conduct issued a letter of reprimand to the judge. Meanwhile, the United States District Court for the Middle District of Tennessee summarily dismissed the constitutional tort claims against the judge based on absolute …

The Success Of Pre-Enforcement Challenges To Antidiscrimination Laws, Alexander Gouzoules

Faculty Publications

Formally, judicial analysis of a challenged statute's validity should be consistent, regardless of the challenge's pre- or post-enforcement posture. A post-enforcement posture arises when an aggrieved party defensively challenges a purportedly unconstitutional statute being enforced against them. Alternatively, a pre-enforcement posture arises when an impacted party strikes first, attacking the statute by asserting a credible threat that the law will be enforced against them in the future. Either way, judicial evaluation of a statute's validity should turn on its content and effect-not on whether it was challenged before or after enforcement.

This Article challenges that assumption, arguing that pre-enforcement challengers …

Petition Power, Erika Lietzan

Faculty Publications

The law cannot be kept secret. We cannot comply with rules that we do not know. Nor can we question their legitimacy, which is both our right and our duty as citizens. And yet, a substantial body of law applied in this country is difficult for anyone but federal agency insiders to piece together. Rather than publishing regulations that lay out standards of conduct for the future, many agencies interpret the law, and articulate and implement new policies, as they go. Those subject to the law they implement are left to piece the rules together by studying whatever information is …

Article 103 Of The United Nations Charter: Uncharted Possibilities? The Ukraine Conflict And Beyond, Eran Sthoeger

Michigan Journal of International Law

Article 103 of the United Nations Charter establishes the primacy of states’ obligations under the Charter over their other international obligations. The effect of Article 103 on states’ obligations has been discussed in the jurisprudence and literature but only in the context of obligations conflicting with binding Security Council decisions. Those discussions fail to shed light on its legal significance in a variety of other situations. This writing explores the application of Article 103 in other contexts. It explores the legal ramifications of Article 103 applied to states’ obligations that conflict with the Charter itself, with obligations contained in certain …

A Model State Compensation Law For The Wrongfully Convicted, Jacqueline Kamel

Journal of Legislation

No abstract provided.

Biogen Int’L V. Banner Life Scis. Llc: Exploring The Other Possibility That Could Have Resulted, Priyal Patel

UIC Review of Intellectual Property Law

No abstract provided.

Covid-19 Pediatric Vaccine Authorization, Fda Authority, And Individual Misperception Of Risk, Joanna K. Sax, Neal Doran

Faculty Scholarship

Vaccines are one component to the public health strategies to alleviate the COVID-19 pandemic. Hesitancy regarding COVID-19 vaccines in the United States has been problematic, which is not surprising given increasing overall vaccine hesitancy in recent decades. Most vaccines are administered during childhood years. Consequently, understanding hesitancy toward administration of vaccines in this age group may provide insight into possible interventions to reduce vaccine hesitancy. The present study analyzed a subset of over 130,000 public comments posted in response to a notice of meeting of the vaccine advisory group to the Food and Drug Administration. The meeting addressed whether to …

A Critical Assessment Of Bill S-203, Ending The Captivity Of Whales And Dolphins Act: Challenging The Exclusivity Of Anthropocentrism And Science-Based Justifications, Rachel De Graaf

Animal Law Review

Bill S-203, An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins) became Canadian law in 2019, banning the captivity of cetaceans. This Article critically examines Bill S-203, arguing that it is underpinned by anthropocentric and science-based justifications that will work as exclusionary forces against many animals in need of legal protection. Instead, the Article advocates for an empathetic and multi-jural approach that accounts for human-animal interconnectedness and the unique cultures of animals. This argument is theoretically rooted in vegan ecofeminism’s empathic and non-binaristic perspective. As such, this Article scrutinizes the reasoning behind …