Law Commons^™

Challenging The Criminalization Of Undocumented Drivers Through A Health-Justice Framework, Jason A. Cade

Scholarly Works

States increasingly use driver’s license laws to further policy objectives unrelated to road safety. This symposium contribution employs a health justice lens to focus on one manifestation of this trend—state schemes that prohibit noncitizen residents from accessing driver’s licenses and then impose criminal sanctions for driving without authorization. Status-based no-license laws not only facilitate legally questionable enforcement of local immigration priorities but also impose structural inequities with long-term health consequences for immigrants and their family members, including US citizen children. Safe, reliable transportation is a significant social determinant of health for individuals, families, and communities. Applying a health justice lens …

Chevron And Stare Decisis, Kent H. Barnett, Christopher J. Walker

Scholarly Works

In our contribution to this Chevron on Trial Symposium, we argue that the Supreme Court should not overrule Chevron in Loper Bright Enterprises v. Raimondo and its companion case Relentless v. Department of Commerce. We based our argument largely on statutory stare decisis. In particular, Chevron deference is a bedrock precedent in administrative law, relied on by the Supreme Court and the lower federal courts thousands of times since Chevron was decided in 1984. Congress, federal agencies, and the regulated public have also structured their affairs around the precedent. Conversely, the constitutional arguments against Chevron are unpersuasive, and the debate …

Physical Fitness And The Police: The Case For Unisex Testing, Peter Siegelman

Connecticut Law Review

Many jurisdictions require applicants for police jobs to take physical fitness tests, many of which have easier passing requirements for women than for men. While the goal of increasing women’s representation among police is laudable, this Article argues that the use of gendered cutoff scores violates Title VII for two distinct reasons: not only does it constitute disparate treatment under the core provision of the statute, but it also violates a separate Section that expressly bars the use of different cutoff scores by gender. (Surprisingly, the very few cases to have considered these issues have wrongly concluded that gendered cutoff …

Victims’ Participation In An Era Of Multi-Door Criminal Justice, Béatrice Coscas-Williams, Hadar Dancig-Rosenberg, Michal Alberstein

Connecticut Law Review

Victims’ right to participate in their cases—to hear and be heard—has gained formal recognition in both common law and continental legal cultures over the past two decades. Paradoxically, even as victims’ rights are acknowledged, their participation in the judicial process is increasingly circumscribed due to the proliferation of abbreviated and efficiency oriented judicial procedures. Focusing on this paradox, this Article uncovers and analyzes the level of victims’ participation in an era of convergence and transformation of legal cultures and traditions. By exploring new ways to conceptualize the role of victims within contemporary criminal legal systems, this Article explores various and …

Truth Bounties: A Market Solution To Fake News, Yonathan A. Arbel, Michael D. Gilbert

Articles

False information poses a threat to individuals, groups, and society. Many people struggle to judge the veracity of the information around them, whether that information travels through newspapers, talk radio, TV, or social media. Concerned with the spread of misinformation and harmful falsehoods, much of the policy, popular, and scholarly conversation today revolves around proposals to expand the regulation of individuals, platforms, and the media. While more regulation may seem inevitable, it faces constitutional and political hurdles. Furthermore, regulation can have undesirable side effects and be ripe for abuse by powerful actors, public and private.

This Article presents an alternative …

Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role Of Barnette In 303 Creative Llc V. Eleni, Linda C. Mcclain

Faculty Scholarship

This article addresses the U.S. Supreme Court’s embrace, in 303 Creative LLC v. Elenis, of a First Amendment objection to state public accommodations laws that the Court avoided in Masterpiece Cakeshop v. Colorado Civil Rights Commission: such laws compel governmental orthodoxy. These objections invoke West Virginia Board of Education v. Barnette’s celebrated language: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.” They also …

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 …

Diamonds (And War Crimes) Are Forever: Creating A Time-Immune Framework For The Repatriation Of Stolen Cultural Heritage Objects Applying Pillage Principles, Olivia Tyler Dickinson Dibb

Emory International Law Review Recent Developments

There is a long global history of invading countries laying claim to the cultural heritage object of the states they conquer. In the modern age, there is some international law in place to govern the repatriation of misappropriated (stolen) cultural heritage items. However, none of the applicable conventions is retroactive, rendering them ineffective concerning all objects misappropriated prior to 1954. Given the timing of globalization and global colonization practices, this means that the range of object to which existing international law applies is very limited indeed. This comment proposes a new legal framework for repatriation of cultural heritage objects incorporating …

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Faculty Publications

The concept of rivalry is central to modern accounts of property. When one person’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all.

This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that framework, it argues that rivalry should …

Corporations As International Economic Law Actors, Barnali Choudhury

All Papers

Actors in international law are presumed to be states. Yet in the international economic law arena, the corporation is one of the most prominent non-state actors. Indeed, in some instances, the corporation may even be more influential than the state in some arenas of international economic law. This short piece examines three instances of this influence. First, it looks at the role of corporations in law-making; second, it examines corporations’ role in monitoring and compliance; and, third, it explores corporations’ legal personality in international economic law. Finding corporations’ immense influence on law-making and monitoring and compliance, combined with a robust …

Labour, Labour Law And Capitalist Rent-Seeking: Rentier Capitalism And Labour In Historical Perspective, Eric Tucker

All Papers

The rise of rentier capitalism in advanced capitalist countries has detrimentally affected large numbers of worker and impaired the efficacy of protective labour and employment laws. However, capitalist rent-seeking is not unique to rentier capitalism, but rather has taken a variety of forms over time. This chapter begins by exploring the evolving meaning of rent and changing practices of capitalist rent-seeking. It then considers the ways in which workers responded to those practices in both rent-rich and rent-poor sectors of the economy, including through the enactment of labour and employment laws appropriate to, but only partially successful in addressing labour …

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …

Promoting Esg Investing By Trustees: Risk Management And Structuring Solutions, Vincent Ooi, Alvin W. L. See

Research Collection Yong Pung How School Of Law

The world is falling behind on its commitments to tackle some of the most pressing problems of this century: climate change, inequality, and other obstacles to building a sustainable future. In 2015, all Member States of the United Nations adopted the 2030 Agenda for Sustainable Development which set out 17 Sustainable Development Goals (‘UNSDG’) and 169 targets spanning the spectrum of environmental, social and economic dimensions of development. At the mid-point to 2030, the UN Secretary-General reported that of the roughly 140 targets for which data is available, about 12 per cent are on track; more than half are moderately …

National Security And Federalizing Data Privacy Infrastructure For Ai Governance, Margaret Hu, Eliott Behar, Davi Ottenheimer

Faculty Publications

This Essay contends that data infrastructure, when implemented on a national scale, can transform the way we conceptualize artificial intelligence (AI) governance. AI governance is often viewed as necessary for a wide range of strategic goals, including national security. It is widely understood that allowing AI and generative AI to remain self-regulated by the U.S. AI industry poses significant national security risks. Data infrastructure and AI oversight can assist in multiple goals, including: maintaining data privacy and data integrity; increasing cybersecurity; and guarding against information warfare threats. This Essay concludes that conceptualizing data infrastructure as a form of critical infrastructure …

Regulating Driving Automation Safety, Matthew Wansley

Articles

Over forty thousand people die in motor vehicle crashes in the United States each year, and over two million are injured. The careful deployment of driving automation systems could prevent many of these deaths and injuries, but only if it is accompanied by effective regulation. Conventional vehicle safety standards are inadequate because they can only test how technology performs in a controlled environment. To assess the safety of a driving automation system, regulators must observe how it performs in a range of unpredictable, real world edge cases. The National Highway Traffic Safety Administration (NHTSA) is trying to adapt by experimenting …

Update On Patent-Related Cases In Computers And Electronics, Karishma Jiva Cartwright, Timothy T. Hsieh, Saurabh Vishnubhakat

Articles

This paper provides an overview of patent cases relating to computer and electronics technology that were not taken up by the Supreme Court during the October 2022 term. As of this writing, the Supreme Court has not granted certiorari in any patent-related cases for its October 2021 Term. The Court has, however, called for the views of the Solictor General in four cases, indicating higher interest and raising the possibility that one or more of these cases may appear on the Court's merits docket for the October 2022 Term. Additionally, though the Court denied certiorari in Baxter v. Becton, Dickinson, …

Just Don’T Do It: Why Cannabis Regulations Are The Reason Cannabis Businesses Are Failing, Edward Adams

Articles

Part I will provide a historical overview of the cannabis plant and our country’s experience with it prior to the election of President Richard Nixon. It is at that point, the early 1970s, that the current federal cannabis scheme began to take shape. Sections I.A though I.C will discuss the inception of the War on Drugs during the Nixon Administration and examine the subsequent social movement that led President Reagan to revamp and expand the War on Drugs throughout the 1980s.

The legal framework for federal cannabis regulation has largely remained stagnant since the Reagan Administration. Nevertheless, the federal stance …

Editing Classic Books: A Threat To The Public Domain?, Cathay Y. N. Smith

Faculty Law Review Articles

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Faculty Scholarship

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah Brake

Articles

The scope and pace of legislative activity targeting transgender individuals is nothing short of a gender panic. From restrictions on medical care to the regulation of library books and the use of pronouns in schools, attacks on the transgender community have reached crisis proportions. A growing number of families with transgender children are being forced to leave their states of residence to keep their children healthy and their families safe and intact. The breadth and pace of these developments is striking. Although the anti-transgender backlash now extends broadly into health and family governance, sport was one of the first settings—the …

Keep Charitable Oversight In The Irs, Philip Hackney

Articles

Critics are increasingly calling for Congress to remove charity regulation from the IRS. The critics are wrong. Congress should maintain charity regulation in the IRS. What is at stake is balancing power between the state, charity as civil society, and the economic order. In a well-balanced democracy, civil society maintains its independence from the state and the economic order. Removing charitable jurisdiction from the IRS would blind the IRS to dollars placed in charitable solution increasing tax and political shelters and wealthy dominance of charities as civil society. A new agency without understanding of, or jurisdiction over, tax cannot act …

Toward A Better Criminal Legal System: Improving Prisons, Prosecution, And Criminal Defense, David A. Harris, Created And Presented Jointly By Students From State Correctional Institution - Greene, Waynesburg, Pa, And University Of Pittsburgh School Of Law, Chief Editor: David A. Harris

Articles

During the Fall 2023 semester, 15 law (Outside) students from the University of Pittsburgh School of Law and 13 incarcerated (Inside) students from the State Correctional Institution – Greene, in Waynesburg, Pennsylvania, took a full semester class together called Issues in Criminal Justice and Law. The class, occurring each week at the prison, utilized the Inside-Out Prison Exchange pedagogy, and was facilitated by Professor David Harris. Subjects include the purposes of prison, addressing crime, the criminal legal system and race, and issues surrounding victims and survivors of crime. The course culminated in a Group Project; under the heading “improving the …

The Lawyer's Duty Of Competence In A Climate-Imperiled World, John C. Dernbach, Irma S. Russell, Matthew Bogoshian

Faculty Works

The United States has more than 1.3 million practicing lawyers. Under Model Rule 1.1 of the ABA Model Rules of Professional Conduct and every state’s rules of conduct, each of these lawyers owes clients competent representation. Under the rule, “[c]ompetent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the services.” While law and rules will undoubtedly change in response to the climate crisis, the duty of competence does not await such change or legal reform. The ubiquitous nature of the duty of competence means it is applicable to each lawyer now and will continue to evolve as …

The Role Of Pornography In The “Rough Sex” Defence In Canada, Lisa Gotell, Isabel Grant, Elizabeth Sheehy

All Faculty Publications

Drawing upon the authors’ earlier research studying the consent defence when it is used to suggest that the complainant agreed to “rough sex” involving violence, this paper develops an extended analysis of the complex role of pornography in these decisions. This paper focuses on a subset of “rough sex” cases, where pornography played a role in “scripting” the accused’s behaviour. Thematically, these cases included: those where the accused had a substantial history of consumption of violent pornography; cases in which the accused forced the complainant to view pornography as part of the assault; cases where the accused recorded the attack, …

Boom Or Bust: The Public Trust Doctrine In Canadian Climate Change Litigation, Hassan M. Ahmad

All Faculty Publications

Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrine’s limited and arguably parochial interpretation has diverged from its …

Social Control And Homeless Encampments: Shifting The Role Of Shelters Through Judicial Review, Alexandra Flynn

All Faculty Publications

This paper examines the recent Canadian judicial decisions in relation to the eviction of encampment residents from public space to analyze what constitutes “reasonableness” in government decision-making in relation to short-term shelters. I argue that courts have called into question a key aspect of social control that relates to unhoused populations: the institutional belief that temporary shelters serve as a reasonable form of accommodation and an appropriate alternative to living in encampments. Recent legal decisions have challenged both this institutional belief and the methods used by officials to track which shelters are available. I conclude that the legal approach of …

The Chinese Tax System: Where It Stands And How We Should Study It, Wei Cui

All Faculty Publications

This book chapter offers an overview of where China’s tax system stands, critically assesses recent scholarship on Chinese taxation, and urges researchers to attend more to normative questions of tax design (e.g., economic efficiency and redistribution). After surveying major tax instruments deployed in China today, the chapter reviews recent studies of taxation’s impact on the Chinese economy, arguing that such scholarship often falls short of providing systematic support for policy analyses, and that ignoring normative questions in tax design leads to poor conceptual framing in positive analyses. The chapter then considers some themes at the intersection between Chinese political institutions …

Second Amendment Immigration Exceptionalism, Pratheepan Gulasekaram

Publications

This Essay critiques the decision to uphold federal gun restrictions on unlawfully present noncitizens on the basis of "immigration exceptionalism." It argues that courts should avoid applying bespoke constitutionalism to criminal laws, including gun laws, simply because the law regulates noncitizens. This Essay shows why such exceptional modes misapprehend long-decided Supreme Court cases and well-established legal doctrine. Further, it warns that an exceptional approach to Second Amendment claims by unlawfully present noncitizens cannot be cabined to either firearms or the unlawfully present. Rather, it portends a wider gulf in constitutional protections for all noncitizens across a variety of fundamental criminal …

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 …

Making Law Practice Technology More Simulation-Based, Jacob Sayward

Articles

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