Digital Commons Network^™

Emerging Technology's Unfamiliarity With Commercial Law, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Over the course of a three-year, collaborative process that was open to the public, the Uniform Law Commission (ULC) and the American Law Institute (ALI) undertook a project to revise the Uniform Commercial Code (UCC) to account for the impact of emerging technologies on commercial transactions. The amendments, approved jointly by the ULC and ALI in July 2022, touch on aspects of the entire UCC, but one change has inspired ire and attracted national media attention: a proposed revision to the definition of “money.” The 2022 UCC Amendments alter the definition of “money” to account for the introduction of central …

One Year Post-Bruen: An Empirical Assessment, Eric Ruben, Rosanna Smart, Ali Rowhani-Rahbar

Faculty Journal Articles and Book Chapters

In the year after New York State Rifle & Pistol Association v. Bruen, a steady stream of highly publicized opinions struck down a wide range of previously upheld gun restrictions. Courts declared unconstitutional policies ranging from assault weapon bans to domestic abuser prohibitions to various limits on publicly carrying handguns. Those opinions can frequently be paired with others reaching the opposite conclusion. The extent to which Bruen shook up the Second Amendment landscape and has caused widespread confusion in the courts is starting to come into focus.

This Essay measures Bruen’s aftereffects by statistically analyzing a year’s worth …

Neglected Discovery, Jenia I. Turner, Ronald F. Wright, Michael Braun

Faculty Journal Articles and Book Chapters

In recent decades, many states have expanded discovery in criminal cases. These reforms were designed to make the criminal process fairer and more efficient. The success of these changes, however, depends on whether defense attorneys actually use the new discovery opportunities to represent their clients more effectively. Records from digital evidence platforms reveal that defense attorneys sometimes fail to carry out their professional duty to review discovery. Analyzing a novel dataset we obtained from digital evidence platforms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number of felony cases between 2018 …

Reconciling Domestic Violence Protections And The Second Amendment, Natalie Nanasi

Faculty Journal Articles and Book Chapters

In March of 2023, the Fifth Circuit Court of Appeals held that individuals subject to domestic violence protective orders could not be required to give up their guns. The decision was the first of a federal court to overturn a firearm regulation pursuant to New York State Rifle & Pistol Association v. Bruen, a 2022 Supreme Court opinion that created a new standard for determining the constitutionality of gun restrictions. After Bruen, only laws that are “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster.

The Fifth’s Circuit decision in U.S. v. Rahimi, which …

Defiance, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

Mass public defiance of legal authority has a lengthy history in America, extending back to the nation’s founding. Indeed, the very existence of the United States is the result of the ultimate act of defiance against legal authority—the revolution against Great Britain. It hardly stopped there, however. Defiance of legal authority has persisted from the outset to the present. Examples include Shays’ Rebellion, defiance of the Supreme Court’s decisions in M’Culloch v. Maryland and the Cherokee territory cases; the Nullification Crisis; slave revolts; defiance of the fugitive slave laws; resistance to the Supreme Court’s decision in the Dred Scott case; …

Corporate Human Trafficking, Carliss Chatman

Faculty Journal Articles and Book Chapters

The utilization of the internet for human trafficking and sexual exploitation is not an issue that can be tackled one corporation, one country, or one market sector at a time. It is an international problem that requires broader solutions that can protect and provide remedy to victims without chilling the freedom of speech and freedom of contract of consensual parties engaged in sex work. Recent changes to laws related to human trafficking have strengthened the power of litigation, authorizing civil lawsuits against perpetrators of human trafficking that may include third-parties who knowingly benefit from trafficking conduct—such as internet providers, business …

The Perilous Focus Shift From The Rule Of Law To Appellate Efficiency, Elizabeth Lee Thompson

Faculty Journal Articles and Book Chapters

Among the most significant—and by some estimations the most controversial—transformations of the federal appellate system occurred in the late 1960s and 1970s with effects still felt today: the shift from oral argument for all appeals and the view that study and disposition of each appeal were exclusively judicial tasks to the adoption of a tiered appellate system where the great majority of appeals receive no oral argument and instead summary disposition often involving staff attorneys. These transformative internal efficiency procedures have been subject to intense debate. Proponents have praised their efficiency and ability to avoid a backlog while critics complain …

Piercing The Procedural Veil Of Qualified Immunity: From The Guardians Of Civil Rights To The Guardians Of States’ Rights, Leo Yu

Faculty Journal Articles and Book Chapters

Scholars have found that despite a split on the burden of proof for qualified immunity, courts agreed that defendants must bear the burden of pleading to raise qualified immunity as a defense. This article is the first to find that over the past decade, this established consensus has been disrupted, culminating in a fresh circuit split.

This article investigates twelve Federal Courts of Appeals’ qualified immunity rulings on 42 U.S.C. § 1983 and finds that six have required plaintiffs to anticipate defendants’ qualified immunity arguments at the pleading stage, essentially treating the negating of qualified immunity as an element of …

From Criminalizing China To Criminalizing The Chinese, Leo Yu

Faculty Journal Articles and Book Chapters

Many scholars have studied the racialization of Asian Americans and found that perpetual foreignness stands at the core of their ascriptive identity. This identity was formed in the 19th century and is also closely related to the dominant society’s racial understanding of ‘the Chinese’—which refers, for the purposes of this article, to people of actual or perceived Chinese descent in the United States. This article investigates this racialization process, with a contemporary lens: What does perpetual foreignness mean to the Chinese in the 21st century?

This Article argues that, for the Chinese, their foreignness in today’s United States means more …

Socially Acceptable Securities Fraud, Christine Hurt

Faculty Journal Articles and Book Chapters

What is a lie? Moreover, where is it a lie? Lies are bad. Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 create liability for issuer firms and individuals who make “an untrue statement of a material fact” or omit “a material fact required to be stated therein or necessary to make the statements therein not misleading.” In the ninety years since the passage of the Securities Exchange Act, however, the number of ways in which market participants may publicly disseminate statements that will be consumed by investors has exploded; does 10b-5 really apply to all these …

Origins Of Russian Membership In The Council Of Europe And The Seeds Of Russia's Expulsion, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

The story of Russia’s membership in the Council of Europe now has a beginning, a middle, and an end. What can we learn about the values of this international organization, and its preeminent human rights convention, from Russia’s inclusion in them? Was Russia’s membership “worth it”? Any attempted answer must produce more questions: from which perspective – Russia’s, the Council’s, other Member States’ – should the effects of Russian membership be evaluated? How did the Council of Europe change Russia (if Russia was, indeed, changed) and how did Russia change the Council of Europe?

This paper examines the beginning of …

The Death Of The Evolving Standards Of Decency, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The Eighth Amendment Punishments Clause is in jeopardy. The constitutionality of punishments is usually judged according to the “evolving standards of decency that mark the progress of a maturing society.” And in evaluating these standards, the Court has traditionally looked to changing societal views on punishment. This is a living constitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly ap-plied such an approach. But a living constitution approach is diametrically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and …

Content Moderation Regulation As Legal Role-Scripting, Sari Mazzurco

Faculty Journal Articles and Book Chapters

Lawmakers and scholars concerned with content moderation regulation typically appeal to "analogies" to justify or undermine different forms of regulation. The logic goes: law should afford individuals due process rights against speech platforms because speech platforms are "like" speech governors as a matter of objective reality. Other common analogies include common carriers, publishers, distributors, shopping malls, and bookstores. Commentators attempt to invoke social roles to understand what the content moderation relationship is, what behaviors are "right" and "wrong" within it, and how law should police behavioral deviations. But they do so without relying on foundational sociology theory that explains what …

The Wages Of Hitching Wagons, Thomas B. Bennett

Faculty Journal Articles and Book Chapters

This article examines the challenges faced by states that align their constitutions with federal doctrine through the practice of "lockstepping"—adopting federal legal standards into state law. Lockstepping binds states to federal law, regardless of its trajectory. Part I traces the evolution of standing doctrine in both federal courts under Article III and Kentucky courts under its constitution. Part II presents an originalist critique of the federal injury-in-fact requirement, highlighting emerging efforts to abandon this requirement in federal courts. Part III discusses the dilemma states like Kentucky face, balancing constitutional interpretation, federalism, and legal stability.

Infringement Episodes, Shani Shisha

Faculty Journal Articles and Book Chapters

For decades, copyright scholars have waged a spirited campaign against statutory damages. Our remedial system, critics say, is an incoherent mess. The core problem is that copyright holders can recover a separate award of statutory damages for every infringed work. As a result, damages can rapidly add up in any case involving multiple works. Because the number of statutory awards is tethered to the number of works, even trivial claims can lead to crippling damages. Commentators, policymakers, and judges have criticized this system as arbitrary and overbroad. And yet it endures. This Article argues that copyright’s per-work scheme has obscured, …

The Emerging Constitutional Law Of Remote Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The COVID-19 pandemic compelled courts to experiment with a novel mode of criminal process: conducting proceedings via video. The remote format helped protect public health during the pandemic, and its convenience has led many states to continue using it in certain circumstances. Yet questions about its desirability and constitutionality have lingered, and many are concerned that it undermines the justice and integrity of criminal proceedings. As the future of remote criminal justice is up for debate, it is important to assess to what degree it complies with fundamental constitutional principles. To that end, this Article offers a comprehensive analysis of …

The Difference A Da Makes, Victoria Smiegocki, Shem Vinton, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

During his 2018 campaign to become Dallas County District Attorney, John Creuzot promised to decline prosecution of low-level marijuana misdemeanors. After his election, District Attorney Creuzot (DA Creuzot) honored this campaign promise, issuing policies designed to radically reduce misdemeanor marijuana prosecutions. Analyzing qualitative and quantitative data, the authors describe police enforcement changes associated with the Dallas County District Attorney's Office's (DAO) marijuana prosecution policies. The authors also explore how the DAO's Intake Unit successfully implemented and enforced these marijuana prosecution policies.

The authors show that DA Creuzot's policies were associated with a significant decrease in marijuana misdemeanor arrests and an …

Privacy Law’S Role In An Information Economy, Sari Mazzurco

Faculty Journal Articles and Book Chapters

What do we lose when we lose our privacy? A slew of recently enacted state laws suggest that the loss of privacy is merely a loss of individual choice in the market exchange of services for personal information. This Article argues that a loss of privacy risks something greater: the collapse of complex and fluid social identity. Without privacy, individuals cannot nurture their own senses of self because they are no longer free to try on different social roles across diverse relationships. Pervasive, private data collection threatens multifaceted selfhood by eliminating the boundaries that make social roles distinct and hindering …

Law’S Detrimental Reliance On Intermediaries, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Emerging technology is law’s magic mirror. Even as law seeks to cabin the effects of emerging technology in society, when we hold emerging technology up to law, emerging technology often reflects flaws or gaps in legal constructs. Of course, rather than recognizing those flaws or gaps, law retorts back “mirror, mirror, on the wall, who is the fairest of them all?,” demanding that all other disciplines and constructs bow before law’s mighty, near-perfect reach. Often, no matter how strongly emerging technology demands that law bend, legal evolution only occurs after regulatory failures harm individuals on a massive scale. One emerging …

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 …

"Reverse Divisibility" And "Subsequent Modification": Expanding The Scope Of Justified Non-Performance In Multiple Contract Situations, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Parties to a contract sometimes invoke divisibility arguments in an attempt to recharacterize the contract as being two or more separate contracts. This is often done in order to limit the justified non-performance consequences of a breach of contract on their part. This short article considers the often-overlooked symmetrical possibility of a non-breaching party attempting to recharacterize two or more facially separate but closely related contracts as a single contract, expanding the scope of their justified non-performance rights after one contract is breached. I describe two complementary arguments justifying such a single-contract recharacterization of the relationship as the "reverse divisibility" …

Scientific Context, Suicide Prevention, And The Second Amendment After Bruen, Eric Ruben

Faculty Journal Articles and Book Chapters

The Supreme Court declared in New York State Rifle & Pistol Ass’n v. Bruen that modern gun laws must be “consistent with this Nation’s historical tradition of firearm regulation” to survive Second Amendment challenges. Scholarship has shown how this test of historical analogy presents difficulties because of how technological, legal, and social change has shaped policy over the centuries. This Article is the first to assess Bruen as it applies to suicide- prevention laws, and, in doing so, illuminates another form of change that complicates Bruen’s implementation: scientific progress.

As this Article shows, early generations of Americans fundamentally misunderstood mental …

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 …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Route Competition In Hong Kong's Aviation Industry, Yizhang Qiu, Sinchit Lai

Journal of Air Law and Commerce

Open sky policies have been implemented for decades, giving birth to many airline newcomers from diverse backgrounds lifting off into liberalized skies. EasyJet, Ryanair, Wizz Air, and Southwest Airlines are examples of independent budget airlines, branding the outcome of aviation liberalization and contributing to interoute competition through their networks. However, Hong Kong International Airport, which aspires to be a better and greater air hub, is crowded with local carriers, and the airport flight timetables rarely show the presence of non-local budget airlines or competing routes. This Article examines the importance of interoute competition and the role that budget airlines play …

The Case Law Of The Court Of Justice Of The Eu On Art. 17 Of The 1999 Montreal Convention: An Evaluation From A Comparative Perspective, Michael Chatzipanagiotis

Journal of Air Law and Commerce

This paper analyzes the case law of the Court of Justice of the European Union (CJEU) on Article 17(1) of the 1999 Montreal Convention (MC99) regarding the liability of international air carriers for death or bodily injury to passengers. The interpretational principles and methods applied by the CJEU are examined, accounting also for the particularities of the EU legal order. Furthermore, the results reached by the CJEU are compared with the case law of other jurisdictions, mainly the US, and doctrinal writings. Nonetheless, this paper does not explore the pertinent issues from a de lege ferenda perspective.

The paper concludes …

Treaties Establishing Icao And Imo – A Comparative Study, Ruwantissa Indranath Abeyratne

Journal of Air Law and Commerce

The comparison between air law and maritime law reveals both similarities and distinctions rooted in the unique frameworks of the International Civil Aviation Organization (ICAO) and The International Maritime Organization (IMO). While both entities were established through separate treaties, the Chicago Convention birthed ICAO, emphasizing the organization’s Assembly, Council, and auxiliary bodies. In contrast, the IMO Convention, also known as the Convention on the International Maritime Organization, forms the basis for IMO’s structure and functions as outlined in its preamble. The core objectives of IMO revolve around fostering collaboration among governments to enhance regulatory frameworks for international maritime trade. This …

Still Far From Home – How Personal Jurisdiction Doctrine Undercuts The Montreal Convention’S “Fifth Jurisdiction” For “Wandering Americans”, Hans Huggler

Journal of Air Law and Commerce

The rapid growth of global air travel in the mid-20th century gave rise to the problem of the “wandering American”—American residents whose air travel injury claims could not be heard in United States courts under the Warsaw Convention’s Article 28. Prominent cases prompted adoption of a “fifth jurisdiction” in the Montreal Convention’s Article 33, allowing injury suits in the Contracting State where an injured passenger had her “principal and permanent residence” so long as the international carrier served the forum. U.S. officials toasted their success in providing Americans with a domestic forum, but the adoption of the fifth jurisdiction did …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Space ‘Tourism’: A Framework For Ensuring ‘Safe And Orderly Development’ Lessons Learnt From The U.S. And Aviation, Sarah J. Fox

Journal of Air Law and Commerce

In August 2023, following its successful mission, Virgin Galactic announced the intention to provide scheduled services into space. Yet, this paper sets out to present evidence to argue that, from an international (U.N.) perspective, there has been a lack of activity to establish safeguards and to ensure a fit for purpose governance and oversight mechanism is in place for this new and growing sector—space tourism. The research is undertaken by way of a comparison law/policy analysis which factors in key historic events across both aviation and space. The main focus is given to the developments and approach of …