Law Commons^™

Derechos Fundamentales E Inteligencia Artificial Constitutional Rights And Artificial Intelligence, Carlos L. Bernal

School of Law Faculty Publications

En su artículo Computing Machinery and Intelligence, publicado en la revista Mind en 1950,1 Alan M. Turing se preguntó si, como los seres humanos, las máquinas podían pensar y comunicarse mediante lenguaje natural. Seis años después, John McCarthy, Marvin Minsky, Oliver Selfridge, Ray Solomonoff y Trenchard More celebraron un congreso en el Dartmouth College.2 Allí discutieron si las máquinas tenían capacidad de pensamiento, aprendizaje, razonamiento, y de búsqueda y adquisición de conocimiento. En aquel congreso se acuñó el término “inteligencia artificial” para referirse al despliegue de estas capacidades por parte de las máquinas.

First Amendment Contradictions And Pathologies In Discourse, Erica Goldberg

School of Law Faculty Publications

A robust, principled application of the First Amendment produces contradictions that undermine the very justifications for free speech protections. Strong free speech protections are justified by the idea that rational, informed deliberation leads to peaceful decision-making, yet our marketplace of ideas is crowded with lies, reductive narratives, emotional appeals, and speech that leads to violence. Our current First Amendment model creates pathologies in discourse, which I term problems in speech quality and problems of speaker identity, that are exacerbated in our modern age of easy communication. The reason for these pathologies lies in the relationship between reason and emotion, both …

Deporting Jane Doe: When Immigrant Crime Victims Fall Through The Cracks Of The Law Designed To Protect Them, Ericka Curran

School of Law Faculty Publications

No abstract provided.

Slavery And The History Of Congress’S Enumerated Powers, Jeffrey Schmitt

School of Law Faculty Publications

In his first inaugural address, President Abraham Lincoln declared, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Like virtually all Americans before the Civil War, Lincoln believed in what historians call the “national consensus” on slavery. According to this consensus, Congress’s enumerated powers were not broad enough to justify any regulation of slavery within the states. Legal scholars who support the modern reach of federal powers have thus conventionally argued …

Three Legitimacy Challenges Of The Inter-American Human Rights System, Carlos Bernal

School of Law Faculty Publications

This article analyses three core challenges that hinder the legitimacy of the Inter-American System of Human Rights. They relate to the Inter-American standards, the observance of due process, and the nature and proportionality of compensatory remedies. The analysis accounts for challenges, and outlines a proposal for overcoming them as well.

Este artículo lleva a cabo un análisis relativo a tres desafíos relevantes que aquejan la legitimidad del Sistema Interamericano de Derechos Humanos. Ellos se refieren a los estándares interamericanos, el respeto del debido proceso y a la naturaleza y proporcionalidad de las medidas de reparación. El análisis comprende tanto un …

Common Law Baselines And Current Free Speech Doctrine, Erica Goldberg

School of Law Faculty Publications

No abstract provided.

When Trade Secrecy Goes Too Far: Public Health And Safety Should Trump Corporate Profits, Julie Zink

School of Law Faculty Publications

This Article addresses the historical and ongoing use of trade secrets to withhold critical information from the public. Through its text and footnotes, the Article discusses the positives and negatives of trade secret protection; addresses historical and current examples of trade secret abuse; analyzes the inadequate solutions that have been tried and proposed; and, ultimately, recommends changing trade secret law by incorporating the precautionary principle into the definition of a trade secret to ensure that protection will no longer be available for information that endangers public health. This Article is both timely and necessary, as the public is continually bombarded …

A Historical Reassessment Of Congress's "Power To Dispose Of" The Public Lands, Jeffrey M. Schmitt

School of Law Faculty Publications

The Property Clause of the Constitution grants Congress the “Power to Dispose” of federal land. Congress uses this Clause to justify permanent federal land ownership of approximately one-third of the land within the United States. Legal scholars, however, are divided as to whether the original understanding of the Clause supports this practice. While many scholars argue that the text and intent of the framers show that Congress has the power to permanently own land within the states, others contend that these sources demonstrate that Congress has a duty to dispose of all federal land not held pursuant to another enumerated …

The Assessment Mandates In The Aba Accreditation Standards And Their Impact On Individual Academic Freedom Rights, Victoria L. Vanzandt

School of Law Faculty Publications

No abstract provided.

Remnants Of Apartheid Common Law Justice: The Primacy Of The Spirit, Purport And Objects Of The Bills Of Rights For Developing The Common Law And Bringing Horizontal Rights To Fruition, Christopher J. Roederer

School of Law Faculty Publications

The Constitutional Court in Carmichele was correct to hold that ‘[where] the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation.’ Professor Anton Fagan’s argument that this is false is flawed because he misquotes, misrepresents and misunderstands the Court’s argument. Further, Fagan’s argument that the spirit, purport and objects of the Bill of Rights is merely a secondary reason for developing the common law that can be trumped by the individual moral views of judges, is also flawed. It is based on a …

Access To Trade Secret Environmental Information: Are Trips And Trips Plus Obligations A Hidden Landmine?, Dalindyebo Shabalala

School of Law Faculty Publications

Freedom of Information Acts (FOIAs) have been fundamental to enabling access to environmental information. The effectiveness of domestic and international environmental regulatory standards has been dependent on ensuring strong information access regimes, especially for information submitted to governments by firms. However, there has been an ongoing tension between providing and accessing complete regulatory information on the one hand, and the interest in maintaining the economic value of trade secrets. Such tensions have historically been managed at the domestic level within constitutional structures balancing access to information, privacy interests, and economic interests. However, the almost simultaneous advent of international norms and …

Remedies For Regulatory Takings (Constructive Expropriations), Deprivations, Expropriations Or Custodianship In South Africa And The U.S., Christopher J. Roederer

School of Law Faculty Publications

Oliver Wendell Holmes, writing for the Court in Pennsylvania Coal Co. v. Mahon (1922), started the regulatory takings tradition in the U.S. with his famous line that “if regulation goes too far it will be recognized as a taking” deserving of just compensation. As this paper will show, how far is too far depends on where you are. Under the Fifth Amendment to the U.S. Constitution, regulations do not need to go as far as they once did, and under the law in states like Oregon and Florida, regulations do not need to go very far at all before one …

Social Media Law In A Nutshell, Ryan Garcia, Thaddeus A. Hoffmeister

School of Law Faculty Publications

Social media has transformed how the world communicates. Its impact has been felt in every corner of our society including the law. Social Media Law in a Nutshell is a wide-ranging look of how the social media transformation has impacted various legal fields. From marketing to employment to torts to criminal law to copyright and beyond, virtually every legal field has been changed by social media. By looking at high level concerns and example cases, Social Media Law in a Nutshell attempts to give practitioners exposure to social media issues and concerns so they can better advise clients and approach …

Reasonable Accommodations And The Ada Amendments’ Overlooked Potential, Jeannette Cox

School of Law Faculty Publications

There is “a dearth of precedent” outlining the scope of the Americans with Disabilities Act’s reasonable accommodations provision. The “little precedent” available “remains severely underdeveloped,” “in a state of chaos,” and leaves “many issues unresolved.” Circuit splits abound. For example, courts widely differ in their perspectives about whether the ADA requires employers to permit employees with disabilities to work from home. Similarly, in circumstances in which an employee with a disability can no longer do his or her current job, courts differ on the question of whether the ADA requires the employer to prefer the employee with a disability for …

Title Ix, Sexual Assault, And The Issue Of Effective Consent: Blurred Lines—When Should “Yes” Mean “No”?, Lori E. Shaw

School of Law Faculty Publications

This Article is intended to set the process in motion by providing the DOE and the educational institutions governed by Title IX with a proposed standard for “effective consent.” Part I provides an overview of the realities of campus life in the 2010s, delving into the root causes of sexual assault and other forms of unwanted sexual contact. Sexual hookups and binge drinking, two aspects of campus life inextricably linked to one another and to unwanted sexual contact, are explored in depth.

Part II presents an overview of the traditional role, structures, and processes of the student-conduct system. It then …

In Defense Of Shelby County’S Principle Of Equal State Sovereignty, Jeffrey M. Schmitt

School of Law Faculty Publications

In Shelby County v. Holder, the Supreme Court struck down a key aspect of the Voting Rights Act of 1965 based on “the principle that all States enjoy equal sovereignty.” Legal scholars have exhaustively attacked Shelby County’s equal sovereignty principle with a surprising degree of unanimity and contempt. These critics argue that the principle is theoretically unworkable, finds no support in the Supreme Court’s precedent, is inconsistent with constitutional history, undermines individual rights, and is tainted by its association with slavery and Jim Crow. This Article responds to such criticism by arguing that the principle of equal sovereignty is a …

Rethinking The State Sovereignty Interest In Personal Jurisdiction, Jeffrey M. Schmitt

School of Law Faculty Publications

The Supreme Court has never articulated a coherent theoretical justification for the law of personal jurisdiction. While some opinions state that the law is based on state sovereignty, others hold that it is instead derived exclusively from the Due Process Clause’s concern for fairness. None of the opinions, however, clearly ties either of these theories to the blackletter law of personal jurisdiction. This confusion over the purpose of the doctrine has helped to create divisions both within the Court and among the Circuits on a number of important jurisdictional issues.

This Article argues that the law of personal jurisdiction must …

The Transformation Of South African Private Law After Twenty Years Of Democracy, Christopher J. Roederer

School of Law Faculty Publications

In The Transformation of South African Private Law after Ten Years of Democracy, 37 COLUM. HUM. RTS. L. REV. 447 (2006), I evaluated the role of private law in consolidating South Africa’s constitutional democracy. There, I traced the negative effects of apartheid from public law to private law, and then to the law of delict, South Africa’s counterpart to tort law. I demonstrated that the law of delict failed to develop under apartheid and that the values animating the law of delict under apartheid were inconsistent with the values and aspirations of South Africa’s democratic transformation. By the end of …

Immigration Enforcement Reform: Learning From The History Of Fugitive Slave Rendition, Jeffrey M. Schmitt

School of Law Faculty Publications

The United States deports hundreds of thousands of immigrants each year, leaving many of the country’s eleven million undocumented immigrants living in constant fear of being torn from their families and homes. Because Congress has been unable to address this humanitarian crisis with meaningful legislative reform, President Obama recently announced that his administration will consider changes to its enforcement policy. By drawing a parallel to the nation’s experience with fugitive slave rendition, this Essay argues that President Obama should allow the states to work with U.S. Immigration and Customs Enforcement (ICE) to moderate the implementation of federal enforcement programs.

Intellectual Property, Climate Change And Development, Dalindyebo Shabalala

School of Law Faculty Publications

Since the wave of independence that swept former European colonies in the middle to late twentieth century, access to technology and knowledge has been at the core of demands for restitution and aid by developing countries. The demands found their strongest expression in the Declaration on the Establishment of a New International Economic Order (NIEO) 1974 which sought, among other things:

“Giving to the developing countries access to the achievements of modern science and technology, and promoting the transfer of technology and the creation of indigenous technology for the benefit of the developing countries in forms and in accordance with …

Is Fracking An Inflammatory Word?, Blake Watson

School of Law Faculty Publications

Hydraulic fracturing is a method of oil and gas extraction. It involves the pumping of a mixture of proppants, chemicals, and large amounts of water into wells to exert pressure and fracture rock formations, thereby allowing otherwise “trapped” gas and oil to flow more freely. See Railroad Commission of Texas v. Citizens for a Safe Future and Clean Water, 336 S.W.3d 619, 621 (Tex. 2011) (describing the “fracing” process). With the development of horizontal drilling and more effective lubricants, it is now possible to remove “unconventional” sources of oil and gas located in shale and other dense substrata. Positive …

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew E. Taslitz

School of Law Faculty Publications

The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to …

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew E. Taslitz

School of Law Faculty Publications

Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference …

Confessing In The Human Voice: A Defense Of The Privilege Against Self-Incrimination, Andrew E. Taslitz

School of Law Faculty Publications

ABSTRACT OF CONFESSING IN THE HUMAN VOICE: A DEFENSE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION

By Andrew E. Taslitz

The privilege against self-incrimination has fallen on hard times. Miranda rights shrink, as do those more traditional “core” aspects of the privilege. Partly this is due to an implicit skepticism by the courts about the value of the privilege, despite their occasional explicit words of praise for its role in our constitutional scheme. Scholars largely, though not uniformly, agree that the privilege cannot be justified as a philosophical matter, viewing it as an unfortunate burden we are stuck with because of its …

In Defense Of Disparate Impact: An Opportunity To Realize The Promise Of The Fair Housing Act, Valerie Schneider

School of Law Faculty Publications

Abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of …

Mutual Recognition Based On Substituted Compliance: An Integral Component Of The Sec’S Mandate, Cheryl C. Nichols

School of Law Faculty Publications

The U.S. Securities and Exchange Commission (“SEC”) must utilize mutual recognition based on substituted compliance to maintain American preeminence in the global securities market. In fact, mutual recognition based on substituted compliance facilitates the SEC’s ability to fulfill its statutory mandate-- to protect investors; maintain fair, orderly, and efficient markets; and facilitate capital formation. Currently, all US investors may have access to foreign exchanges in the global securities market without the protection of the U.S. federal securities laws; at a minimum, the SEC must take action to fulfill the first prong of its statutory mandate--to protect investors. In addition, maintaining …

Ferguson, The Rebellious Law Professor, And The Neoliberal University, Harold A. Mcdougall Iii

School of Law Faculty Publications

Neoliberalism, a business-oriented ideology promoting corporatism, profit-seeking, and elite management, has found its way into the modern American university. As neoliberal ideology envelops university campuses, the idea of law professors as learned academicians and advisors to students as citizens in training, has given way to the concept of professors as brokers of marketable skills with students as consumers. In a legal setting, this concept pushes law students to view their education not as a means to contribute to society and the professional field, but rather as a means to make money. These developments are especially problematic for minority students and …

Emergency Alert: This Is Not A Test! An International Disaster Relief Plan For Protecting Children And Families, Cynthia R. Mabry

School of Law Faculty Publications

There are more than 132,000,000 orphans worldwide. As a result of recent natural disasters in the United States and other countries, the number of orphans has increased. Recent events in the Gulf Coast in the United States, Haiti and Japan showed that thousands of children become separated from their parents or guardians when disasters strike. Family members were scattered during these tragedies. Many children were reunited with their families; but some children were sent to orphanages while others waited in classrooms for their family members to come for them. Many Haitian children were sent to foreign countries far from their …

Once More Unto The Breach: An Analysis Of Legal, Technological And Policy Issues Involving Data Breach Notification Statutes, Dana J. Lesemann

School of Law Faculty Publications

Once More Unto the Breach: An Analysis of Legal, Technological, and Policy Issues Involving Data Breach Notification Statutes

Dana J. Lesemann

Companies facing the loss of a laptop or a compromised server have long waged battles on several fronts: investigating the source of the breach, identifying potentially criminal behavior, retrieving or replicating lost or manipulated data, and putting better security in place, to name a few generalized steps. As recently as seven years ago, the broader consequences of a data breach were largely deflected from the party on whose resource the data resided and instead rested essentially on those whose …

Preventing Juror Misconduct In A Digital World: A Comparative Analysis, Thaddeus A. Hoffmeister

School of Law Faculty Publications

This article examines the reform efforts employed by common law countries to address internet-related juror misconduct, which generally arises when jurors use technology to improperly research or discuss a case. The three specific areas of reform are (1) punishment, (2) oversight, and (3) education. The first measure can take various forms ranging from fines to public embarrassment to incarceration. The common theme with all punishments is that once imposed, they make citizens less inclined to want to serve as jurors. Therefore, penalties should be a last resort in preventing juror misconduct.

The second reform measure is oversight, which occurs in …