Digital Commons Network^™

How Patents Became Politics, Steven Wilf

Cardozo Arts & Entertainment Law Journal

Political mobilization in the digital age often coalesces around opposition to the far-reaching protection of intellectual property. Both copyright and patent have materialized as the centerpiece of major political and legal debates that take a variety of forms, including the European pirate parties, NGOs such as the Electronic Frontier Foundation in the United States, and the call for open source software. The commonplace narrative is that self-interested stakeholders over the past century successfully fashioned an ever-expanding intellectual property system, and that resistance to such legal control of knowledge only emerged in our times. By contrast, this article recovers a littleknown …

Implementing War Torts, Rebecca Crootof

Law Faculty Publications

Under the law of armed conflict, no entity is accountable for lawful acts in war that cause harm, and accountability mechanisms for unlawful acts (like war crimes) rarely create a right to compensation for victims. Accordingly, states now regularly create bespoke institutions, like the proposed International Claims Commission for Ukraine, to resolve mass claims associated with international crises. While helpful for specific and politically popular populations, these one-off institutions have limited jurisdiction and thus limited effect. Creating an international “war torts” regime—which would establish route to compensation for civilians harmed in armed conflict—would better address this accountability gap for all …

Prosecuting Rape As Genocide: An Analysis Of The Legal Framework And Challenges In International Law, Anya Syed

CMC Senior Theses

Rape can be used to annihilate, control, and humiliate populations. Mass rape can have genocidal intent. Yet, thus far, the legal definition of genocide has failed to codify rape. These severe limitations in the definition of genocide create legal impunity and impede the rehabilitation of rape survivors. This failure also results in legal challenges, including the lack of basis to distinguish between rape during war and genocide. This paper seeks to provide readers with sufficient background to understand the legal challenges currently preventing the prosecution of rape as genocide. After presenting this information, the paper details past courts that have …

Political Advertising In Virtual Reality, Scott P. Bloomberg

Faculty Publications

This Article is about how biometric data collected through VR technologies will greatly exacerbate existing problems with political ad microtargeting. Commercially available VR devices can—and in some cases, must—be integrated with sensors that track users’ eyes, faces, hands, and bodies. Political campaigns will be able to leverage this data to target ads with extraordinary precision. Indeed, targeting ads with biometric data may well be the next step in the evolution of microtargeted political messaging—a practice that has contributed to a rise in disinformation, filter-bubbles, and privacy invasions. If this sounds like science fiction, it is closer than you may think. …

Humans In The Loop, Nicholson Price Ii, Rebecca Crootof, Margot Kaminski

Articles

From lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these “human in the loop” systems. We make four contributions to the discourse.

First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify “the MABA-MABA trap,” which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into decision making process. Regardless …

How Private Actors Are Impacting U.S. Economic Sanctions, Maryam Jamshidi

Publications

Economic and trade sanctions are typically understood as the exclusive province of governments and intergovernmental organizations. Private parties have, however, long played a role in sanctions regimes. For example, private plaintiffs holding unsatisfied, terrorism-related civil judgments have used various U.S. federal statutes to enforce those judgments against assets blocked by U.S. sanctions. Most recently, plaintiffs with judgments against the Taliban have used some of those federal laws to execute against the financial assets of Afghanistan’s central bank. These and other efforts to enforce terrorism-related civil judgments are more than just attempts to collect on outstanding damages awards. Rather, they allow …

Privacy Peg, Trade Hole: Why We (Still) Shouldn’T Put Data Privacy In Trade Law, Margot E. Kaminski, Kristina Irion, Svetlana Yakovleva

Publications

No abstract provided.

Introduction: Negotiation Strategies For War By Other Means, Chris Honeyman, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

We are delighted to introduce the topic of hybrid warfare into the dispute resolution field, with the first symposium for a law audience focused on how hybrid warfare might be more effectively understood, and defended against, through negotiation theories. In the last three-plus years we, along with three colleagues, have enlisted a number of additional colleagues from a variety of fields in a very unusual project-how to engage with a type of conflict often called grey zone conflict (by some people) or hybrid warfare (by others). Our conflict management experts have come from a wide array of disciplines, as well …

Negotiation Theories Engage Hybrid Warfare, Nancy A. Welsh, Sharon Press, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

When Calvin Chrustie and Chris Honeyman first approached the authors of this Article regarding the potential application of negotiation scholars' expertise to the problem of hybrid warfare, our first reaction was confusion. First, what exactly was hybrid warfare? Second, since "war" was in its name, what did our field have to say that could even potentially be useful? This Article, in some sense, is designed to begin to respond to those questions and, hopefully, to encourage other scholars in our field to weigh in with their contributions and criticisms. This Article represents only a start.

Indigenous Boarding Schools In The United States And Canada: Potential Issues And Opportunities For Redress As The United States Government Initiates Formal Investigation, Keiteyana I. Parks

American Indian Law Review

No abstract provided.

Regulation As Respect, Cristie Ford

All Faculty Publications

The so-called “meme stock” phenomenon of early 2021 was an unexpected, riveting, short-lived, and ultimately tragicomic (or maybe just tragic) event. It was the product of many things but, on some level and for some investors, it was political protest: grassroots “voice” in the form of online stock purchases.

The modern regulatory state does not have effective mechanisms for absorbing public perspectives in all their variety and nuance. Public input mechanisms (including but not limited to notice and comment rulemaking) are embedded within what Julie Cohen and Ari Waldman have called the “regulatory managerialist” model. Within this paradigm, non-expert knowledges …

Gender Dynamics In The Management Care Of Internally Displaced Persons: The Boko Haram Insurgency, Evelyn Kikelomo Ikuenobe Otaigbe

Walden Dissertations and Doctoral Studies

The Boko Haram asymmetric insurgency and warfare have decimated the Northeastern region of Nigeria and its neighboring environs of Chad, Niger, and Benin. The purpose of this study was to explore the peculiar socioethnic and cultural challenges encountered by female victims of Boko Haram terrorism at internally displaced persons camps in Abuja, Nigeria, including challenges in functioning, relocating, and acclimating back into society. A phenomenological approach was applied to understand participants’ lived experiences. Data collection occurred through interviews and observation. Data analysis involved the synthesis of narratives, and generation of themes. Among the emergent themes were poor feeding; lack of …

Establishment Clause Mythology, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

For 75 years, the Supreme Court’s opinions have reflected stark conflict between two competing narratives about the Establishment Clause’s meaning and legal foundation. One view holds that the Constitution requires a separation between church and state. The other view asserts that the government may promote religion. The former view—which we call separationism—is based on the framers’ understanding of the nature of civil government, and on a political theory of liberal pluralism. The latter view—which we call religionism—is usually grounded in tradition, and principally has its roots in the Second Great Awakening of the nineteenth century and its urge to transform …

The Targeting Of Underseas Communications Cables: Armed Conflict, Developing States, And The Need For A Twail Approach, Stephen Floyd

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

No abstract provided.

Mai Bhago And Amrita Devi Bishnoi: Women Of Strength, Sowmya Ayyar

Monsoon: South Asian Studies Association Journal

Mai Bhago (1670-1720), also known as Bhag Kaur, distinguished herself on the battlefield to defend the Sikh faith. Amrita Devi Bishnoi (d. 1730) is said to have sacrificed her life with 362 others to protect the Khejari trees in the Rajasthan desert. Both women continue to inspire social justice and ecological activism.

An Examination Of Gandhian Economic And Political Thought And Its Relevance To The Empowerment Of Women, Purnima Mehta Bhatt

Monsoon: South Asian Studies Association Journal

Mahatma Gandhi (1869-1948) sought to alleviate poverty and empower women. His commitment to nonviolence and the economic ideal of “small is beautiful” continue to inspire grassroots movements around the globe. This article discusses the Chipko movement of northern India, the protection of rain forests in Kerala’s Silent Valley, the Self Employed Women’s Association (SEWA), and Medha Patkar’s valiant though ultimately futile attempt to save the Narmada River from a massive government damming project. The ongoing legacy of these movements can be found in AWAG, the Ahmedabad Women’s Action Group and Women’s Shanti Sena (Peace Force).

Report Of The International Commission Of Human Rights Experts On Ethiopia, Mohamed Chande Othman, Steven Ratner, Radhika Coomaraswamy

Other Publications

In the present report, submitted pursuant to Human Rights Council resolution 51/27, the International Commission of Human Rights Experts on Ethiopia provides an overview of the human rights situation in Ethiopia. It identifies grave and systematic violations of international law and crimes committed in Tigray, as well as in Amhara, Afar and Oromia. Violations include mass killings, rape, starvation, forced displacement and arbitrary detention. The conflict in Tigray has not ended, with Eritrean troops and Amhara militias engaging in ongoing violations. Past and current violations and abuses in the four regions mentioned above demand further investigation. The Government of Ethiopia …

The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth

Touro Law Review

This Article provides a comparative analysis of Judge Benjamin Cardozo’s tort decisions in Palsgraf v. Long Island Railroad Co., one of his most famous tort decisions, contrasted with a lesser-known tort opinion in Hynes v. New York Central Railroad Co. The Author attempts to address Cardozo’s humanistic and intellectual dichotomies which are exemplified by these two real-life tort precedents—one of which, Palsgraf, most practitioners may only have a distant recall. A historical overview of Cardozo’s life is also discussed. These two decisions portray Cardozo as an emotive human being exercising hit-or-miss judging. This theme provides a differ viewpoint from Cardozo’s …

Amending The Defense Production Act: Preventing Another Pandemic, Madalyn Mcgunagle

Roger Williams University Law Review

No abstract provided.

Accounting For Disability In International Humanitarian Law, Janet E. Lord

All Faculty Scholarship

The adoption of the Convention on the Rights of Persons with Disabilities (CRPD)

represents an important and (potentially) progressive development in the protection

framework under international humanitarian law (IHL). Article 11 of the CRPD

specifically obliges States to protect persons with disabilities from harm in

situations of risk, including armed conflict, consistent with IHL and human rights

law. The CRPD framework signals the need to address the traditional framing of

disability under IHL and to draw from human rights concepts in the CRPD in

order to inform the protection accorded to persons with disabilities in armed conflict.

This article is …

The U.K.’S ‘Appetite’ For Space: An Increased Craving!, Sarah Jane Fox

Journal of Air Law and Commerce

Launching into space was once the pursuit of super-power nations, who, during a period of international tensions, competed to be the first—the first into space and the first to the Moon. While the United Kingdom (U.K.) had a similar appetite it never achieved a space launch from its national soils, often thwarted by political and economic constraints. This said, the U.K. has played a key role, working alongside other nations in technological advancements related to space. This paper revisits the historical legacy of the U.K.’s space ventures and its space policies before comment is made to the current strategy …

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 …

The Contours Of Gun Industry Immunity: Separation Of Powers, Federalism, And The Second Amendment, Hillel Y. Levin, Timothy D. Lytton

Scholarly Works

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), granting the firearms industry sweeping immunity from civil lawsuits. However, PLCAA immunity is not absolute. This Article demonstrates that both state and federal courts have fundamentally misread PLCAA when adjudicating cases involving the scope of gun industry immunity. Properly understood, PLCAA permits lawsuits against the gun industry so long as they are based on statutory causes of action rather than common law. While broadly preempting state common law claims, PLCAA affords state legislatures autonomy in deciding how to regulate the gun industry within their borders.

Additionally, this …

Rights-Based Sanctions Procedures, Desiree Leclercq

Scholarly Works

Federal agencies are increasingly interpreting international labor rights and imposing a wide array of economic and financial penalties, or “rights-based sanctions,” under various laws and regulations. Congress recently vested the Office of the United States Trade Representative (USTR) with authority to impose targeted rights-based sanctions on foreign factories. USTR has begun administering its new authority with vigor. Policymakers and rights advocates hope that USTR’s enforcement activities will strengthen the protection of workers abroad.

Hidden from view, and thus largely overlooked, are the exclusory procedures that agencies follow when they administer rights-based sanctions. The Treasury Department’s Office of Financial Asset Control …

On Beauty, Scholarship, And Function: The Lessons From, And Importance Of, Legal History In The Development Of The Law Of Marine Insurance: [Review Of] Marine Insurance: A Legal History By Rob Merkin, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

A few words of explanation at the outset are perhaps necessary – if nothing else than to explain the apparently cryptic title of this review essay. What in fact began as a somewhat straightforward review of a book on the history of marine insurance took a wholly unexpected turn and morphed into a general essay on the beauty, scholarship and function of legal history as viewed through the lenses of marine insurance. Indeed, in addition to being a magisterial two-volume history of the law of marine insurance, the present work demonstrates – in the most vividly possible way – at …

Banning Autonomous Weapons: A Legal And Ethical Mandate, Mary Ellen O'Connell

Journal Articles

From the Introduction

The ongoing debate over the law and ethics of lethal autonomous weapon systems (LAWS) reflects two very different perspectives. One sees the development of such weapons as an essential part of national security that depends on a strong military in possession of the latest weapons technology. If legal or ethical norms impede staying ahead in the race for new weapons, those norms need to be reinterpreted or modified. The other perspective maintains that security depends first and foremost on robust respect for legal principles that are derived from fundamental moral principles. Such principles are not subject to …

Delegating War Powers, Michael D. Ramsey, Matthew C. Waxman

Faculty Scholarship

Academic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars. And yet, every major U.S. war in the last sixty years was fought pursuant to war-initiation power that Congress gave to the President in the form of authorizations for the use of military force. As a practical matter, the central constitutional question of modern war initiation is not the President’s independent war power; it is Congress’s ability to delegate its war power to the President.

It was not until quite late in American history that the practice of war power delegation became well accepted as …

The Use And Limits Of Longstanding Practice In Constitutional Law, Spencer G. Livingstone

Maryland Law Review

No abstract provided.

The National Security Consequences Of The Major Questions Doctrine, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare …

Central Americans At A Crossroads: Asylum Seekers’ Testimonios Of Mental Health After Detention And Family Separation, Corie E. Schwabenland Garcia

Master's Theses

Though Central American asylum seekers are presently hypervisible in the U.S. consciousness, this population continues to be inadequately understood or cared for. Discussion of this population often presents them as a helpless and damaged population, in need of saving, fixing, or shelter -- beyond their trauma, they cease to exist. This qualitative study utilizes first-person testimonio methodology to understand the psychological experiences of Central American migrants seeking asylum in the United States, the stressors they face, and the mental health support that can and should be provided to them. Their stories speak to a space of sociopolitical precarity in the …