Law Commons^™

The Future Of Work In The Era Of Ai, Orly Lobel

Indiana Law Journal

Artificial intelligence (AI) is revolutionizing both work itself and the processes of employment—hiring, recruitment, evaluation, compensation, performance analysis, retention, and job mobility. This Essay, based upon the 2024 Indiana Law Journal annual William R. Stewart Lecture, examines the effects of AI on work and argues for a holistic approach that harnesses the benefits of automation while addressing the inevitable systemic changes that AI is rapidly bringing to the labor market. The Essay examines two industries in which AI is already changing labor market demands: trucking and the performing arts. The Essay argues that while the automation can often increase efficiency …

Is The Constitution Of 1787 A White Supremacist Document? Against Essentialism In Constitutional Interpretation, David S. Schwartz

William & Mary Bill of Rights Journal

A curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, “neo-Garrisonian” scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their “essentialism” in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments.

This Article argues …

Section Three Of The Fourteenth Amendment: Insurrection, Mark A. Graber

William & Mary Bill of Rights Journal

The public, scholarly, and legal debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/ common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing. Trump v. Anderson (2024) focused on state incapacity to disqualify “oathbreaking insurrectionists” rather than on whether Trump was an …

Life, Liberty, And Freedom From Non-Consensual Pelvic Exams?, Michaela Cotton

William & Mary Bill of Rights Journal

[T]here is a need for the federal government to intervene and finally ban the practice of performing non-consensual pelvic exams, and it can do so under the Due Process Clause of the Fourteenth Amendment, which guarantees the right to refuse involuntary medical treatment. Part I will provide a brief overview of pelvic exams and informed consent; Part II draws on policy considerations for banning this practice and tackles counter-arguments; Part III will discuss the relevant federal law and case precedent; Part IV demonstrates how federal law applies to non-consensual pelvic exams; and, finally, Part V will further explain the need …

Balancing Tradition And Inclusion: Framework Principles For An Afghan Accord, M. Hamed Isar

William & Mary Bill of Rights Journal

This Article examines the turbulent constitutional history of Afghanistan and proposes a pragmatic constitutional framework balancing Islamic principles with rights, protections, and constraints on power. After analyzing the Taliban’s current extraconstitutional rule and ideological objections to an inclusive order, it makes the case for principled compromise. The first step to constitutional reform for Afghanistan is to recognize that Afghans, the Taliban, and the international community pay a high price for disregarding law and accountability in governance. To that end, this Article canvasses the many factors that could motivate the Taliban to accept the rule of law, despite the constraints it …

Excluded But Equal, Gali Racabi

William & Mary Bill of Rights Journal

Work law is excessively exclusionary. Canonical examples include agriculture workers, independent contractors, and domestic workers. But work law excludes far more workers and employers than those familiar categories. Whole sectors, occupations, business sizes, wage arrangements, geographical areas, and more are excluded from the basic tenets of economic citizenship, including federal, state, and local minimum wage; overtime; and safety and labor protection laws.

Equal protection claims govern the authority of legislatures to determine who is in and who is out of work laws. Excluded workers and included employers now routinely use state and federal constitutional equal protection arguments against exclusionary work …

The First Amendment In Education: May Faculty At Public Schools Be Disciplined For Political Hate Speech?, Ken M. Levy

William & Mary Bill of Rights Journal

At a House hearing on December 5, 2023, the presidents of three universities— Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by …

Independent Environmental Regulator--The Transformation India Needs In Environmental Governance, Abhishek Chakravarty

William & Mary Environmental Law and Policy Review

If we look back fifty years to the Stockholm Conference on Human Environment, one of the key principles the states agreed on was Principle 17, which states, “appropriate national institutions must be entrusted with the task of planning, managing or controlling the environmental resources of States with a view to enhancing environmental quality.” This principle can be interpreted to require the creation of an independent environmental regulator at the national level for environmental regulations and governance.

In 2011, the Honorable Supreme Court in deciding Lafarge Umiam Mining Private Ltd. v. The Union of India directed the Union Government to set …

Approaching A U.S. Regulatory Framework For Sporeless Seaweed Biotechnology, Gabriela Martinez, Terra Bowling, Catherine M. Janasie, Charlie Doering-Powell, Amalia Aruda Almada

William & Mary Environmental Law and Policy Review

Seaweed farming is the fastest-growing aquaculture sector in the United States. The development of sterile, selectively bred (sporeless) seaweed aims to support the economic viability of future large offshore seaweed operations and minimize the environmental risks of these operations to wild seaweed beds. Farmers have implemented analogous breeding techniques to control and enhance most terrestrial crops and common aquaculture products (e.g., oysters and carp). This Article draws from existing federal and state aquaculture policies to explore four pillars critical to a future sporeless seaweed regulatory framework: ensuring maintained sterility, tracing the geographic origin of seed, securing offshore permits, and facilitating …

Notre Dame Lawyers Connect: Fall 2024, Notre Dame Law School

Notre Dame Lawyers Connect

Dean G. Marcus Cole awarded the Dignitatis Humanae Award by the University of St. Thomas School of Law

Bryan Stevenson delivers powerful message about ‘proximity’ at Institute for Social Concerns lecture

Events

• Law Homecoming Weekend
• NDLA Board Fall Meeting
• Notre Dame Law Review Centennial Celebration
• AI and the Future of Law Panel
• 1L/Alumni Mixer
• Law Class of 1984 mini-reunion
• BLSA Fireside Chat: Staying in the Game
• Law Homecoming Tailgate

Faculty

• Law School Professor Derek Muller joins CNN as legal contributor
• Welcome New Faculty and Visiting Scholars
• Alumni can help!

Students

• 2024 Hispanic National Bar Association convention
• 2024-25 Murphy Fellows

Alumni …

Humanitarian Parole To The United States: The Case Of A Gay Man Fleeing Afghanistan, Melanie Shapiro

Dignity: A Journal of Analysis of Exploitation and Violence

This article will discuss my experience as an immigration attorney representing a gay man from Afghanistan fleeing the Taliban. First, it will give an overview of the Taliban’s role in Afghanistan and the Taliban takeover in August 2021. It will then discuss the treatment of lesbian, gay, bisexual, and transgender (LGBT) individuals in Afghanistan. Next, the article will discuss how I became involved in representing individuals fleeing Afghanistan and the humanitarian parole process.

Cartel Breakdown: The Impact Of Demonopsonization On Market Concentration, Nathan Ashby, Miguel A. Ramos-Gonzalez

Hunt Institute Working Paper Series

The exogenous removal of labor restrictions mandated by Alston vs. NCAA (National Collegiate Athletic Association) has provided a unique natural experiment for analyzing the impact of demonopsonization on market concentration. Using basketball tournament data between 2003 and 2024 we find evidence of increased concentration in performance among higher-tiered programs. The larger magnitude of estimates for women’s programs likely results from wider dispersion in market demand for participating programs predating the reforms. We also analyze parity in regular-season conference play and fail to detect a relationship between the changes and dispersion for higher-tiered conferences, but we do find a relationship for …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Advancing Academic Freedom Through State Constitutional Protections, Karlie M. Bischoff

UC Law Constitutional Quarterly

No abstract provided.

The Unbearable Inevitability Of Content Regulation, Jerome O’Callaghan

UC Law Constitutional Quarterly

No abstract provided.

Tiktok The Tortfeasor: A Framework To Discuss Social-Platform Externalities And Arguments Favoring Ex Ante Mitigations, Karan Lala

University of Chicago Law Review

In recent years, social media platforms have grown increasingly complex in how they invite, intersect with, and influence third-party speech. This complexity lies in stark contrast to the simplicity of the statute that governs those very platforms: Section 230 of the Communications Decency Act. Although Section 230 has cabined liability for platforms in the past, some have advocated for activist judges to deploy tools available to them to hold platforms accountable and mitigate harm to users as research documenting the negative impact of social products on user well-being has matured

This Comment reviews Section 230 jurisprudence to develop a novel …

Rogue Ai Patents And The Uspto’S Rejection Of Alice Joshua A. Z, Joshua A. Zuchniarz

University of Chicago Law Review

AI inventions, from ChatGPT to self-driving taxis, have taken the world by storm. Many of these inventions are protected by patents, and the number of AI patents is rapidly growing. Yet a large number of AI patents are flawed, prone to invalidation in court. This Comment argues that many AI patents were granted on legally flawed grounds, pursuant to United States Patent and Trademark Office (USPTO) regulations that systematically departed from controlling case law. The existence of these flawed patents poses a growing problem. Courts may invalidate the patents, upsetting expectations of an important, nascent industry. On the other hand, …

Rethinking The Pharmaceutical Knowledge- Economy: Patents, The Trips Agreement, And Skewed Utilitarianism In The Evolving Ideological Paradigms, Morris Odeh

Articles, Book Chapters, & Popular Press

The TRIPS Agreement introduced a unique globalized pharmaceutical patent economy. This article examines the social costs of this patent regime in low-income countries and makes three contributions. Firstly, it highlights how, in the early development of the patent system, nations perceived patents as privileges and displayed considerable reluctance in protecting pharmaceutical products and processes. This allowed net importers of technologies to replicate foreign innovations without the constraints of IP rights, and in some cases, invalidate unnecessary patents. However, this took a different turn towards the tail end of the 20th century when the patent norms and rules were harmonized and …

Cisg, Wayne R. Barnes

Faculty Scholarship

This survey article discusses cases during the prior year, which are decided based on one or more provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is a United Nations treaty that provides a uniform international sales law. It was adopted in Vienna in 1980 and went into effect in 1988. The CISG governs contracts for the international sale of goods between businesses located in different countries that have ratified the treaty. It has been adopted by 95+ countries, including major trading nations like the United States, China, and most European countries. …

Regulating Crypto Intermediaries, Eric D. Chason

Faculty Publications

Early 2024 produced a dramatic rebound in cryptocurrency markets as Bitcoin hit an all-time high price in March 2024. This surge was fueled in large part by judicial and regulatory action. After years of denials and a high-profile defeat in court, the U.S. Securities and Exchange Commission (SEC) finally approved the first exchange-traded funds (ETFs) for Bitcoin in January 2024. Many believe that these approvals will lead to a greater shift of investment funds into crypto. Crypto regulation is not, however, ready for this shift. While ETFs have clear treatment under current law, other institutions lack the same clarity or …

The False Choice Between Digital Regulation And Innovation, Anu Bradford

Faculty Scholarship

This Article challenges the common view that more stringent regulation of the digital economy inevitably compromises innovation and undermines technological progress. This view, vigorously advocated by the tech industry, has shaped the public discourse in the United States, where the country’s thriving tech economy is often associated with a staunch commitment to free markets. U.S. lawmakers have also traditionally embraced this perspective, which explains their hesitancy to regulate the tech industry to date. The European Union has chosen another path, regulating the digital economy with stringent data privacy, antitrust, content moderation, and other digital regulations designed to shape the evolution …

Breaking Free: Strategies For Governments On Terminating Investment Treaties And Removing Isds Provisions, Ladan Mehranvar, Martin Dietrich Brauch

Columbia Center on Sustainable Investment

Our report, "Breaking Free: Strategies for Governments on Terminating Investment Treaties and Removing ISDS Provisions," is a guidebook for government officials and policymakers on the reform or exit of the investment treaty regime that is currently impeding climate action and other national and global goals. The report includes the following: (1) strategies for exiting or reforming investment treaties and the legal consequences that follow; (2) eliminating ISDS exposure in national investment laws and contracts; (3) withdrawing from the International Centre for Settlement of Investment Disputes (ICSID) Convention and the minimal legal consequences of such action; (4) examples of country- and …

Screening For Responsible Investment In Agriculture And Food Systems: Guidance And Tools For Government Officials, Anna Bulman, Jesse Coleman, Ella Merrill, Esther Akwii, Madeleine Songy, Yannick Fiedler

Columbia Center on Sustainable Investment

Strong screening processes help to identify and avoid or mitigate risks associated with larger-scale investments in agriculture and food systems at the early stage of the investment assessment process before any commitment has been made, costs incurred, or harms suffered. This publication, Screening for Responsible Investment in Agriculture and Food Systems: Guidance and Tools for Government Officials, seeks to unpack the “what, why, and how” of screening.

Governments are the gatekeepers to investments. They can, in consultation with stakeholders, decide which investors are allowed to conduct business in their country and what types of investments are permitted. This gatekeeping role …

The Cycle Of Delegitimization: Lessons From Dred Scott On The Relationship Between The Supreme Court And The Nation, Jonathon J. Booth

UC Law Constitutional Quarterly

This Article examines how Chief Justice Taney’s opinion in Dred Scott v. Sandford sparked a cycle of delegitimization that parallels contemporary debates about the Supreme Court’s legitimacy crisis. Part I explicates how one family’s fight for freedom in Missouri reached the Supreme Court, the resulting radical decision, and the nation’s reaction to show the initial stages of this cycle. Part II examines the impact of Dred Scott on politics and law during the James Buchanan administration (1857–1861). During this period, the federal government, Southern states, and some Western territories swiftly implemented the decision, for example by expelling free Black residents. …

How American Society And Law Continue To Undermine People With Disabilities Seeking Education And Employment, Angelica Guevara

UC Law Constitutional Quarterly

Our Founders specifically identified education as necessary to economic success and full participation in our democracy and society. However, the Supreme Court held in San Antonio Independent School District v. Rodriguez that education in America is not a constitutional right; instead, it is a commodity that few can afford. Then, in 2023, Biden v. Nebraska exposed the direct result of that ruling: the average American––regardless of their disability status––struggles to pay back their student loans, even when they have a well-paying job. The student debt crisis significantly impacts the economic future of students with disabilities, who make on average sixty-six …

Will The New Roberts Court Revive A Formalist Approach To Fourth Amendment Jurisprudence?, Roger Antonio Tejada

UC Law Constitutional Quarterly

While all Chief Justices leave behind distinctive periods of judicial thought and practice, the quantitative and qualitative data presented in this article show that the Roberts Court in particular stands out in the development of Fourth Amendment precedent. The key cases that shaped the search and seizure doctrine before and during his rise show that, contrary to what many may expect, Chief Justice Roberts will likely oversee limited, pro-defendant decisions that could grant additional legitimacy to the Court’s crime-control jurisprudence. On the other hand, the new Justices’ voting records and writings suggest that there are several potential coalitions that could …

Executive Power And Patronage: Lessons From Puerto Rico, Stephen A. Plass, Naomy M. Rivera

UC Law Constitutional Quarterly

Conservatives have made reforming the civil service a top priority, and this was exemplified by former President Donald Trump’s open opposition to job protections that federal civil servants enjoy. President Trump and others who advance a unitary executive theory, pledged to reshape the civil service by amassing appointment, disciplinary and removal powers in the president, although this would make a patronage system more feasible. To this end, President Trump issued an executive order that exposed many career federal civil service workers to a spoils system. This came on the heels of other executive orders that reduced existing workplace protections for …

No Need To Wait: Congress Has The Power Under Section Five Of The Fourteenth Amendment To Abolish The Death Penalty In The States, Eric M. Freedman

Hofstra Law Faculty Scholarship

Congress has the authority to abolish the death penalty in the states, and good reason to exercise it.

This Article takes as a given the Supreme Court’s view that the death penalty is not itself unconstitutional.

But under existing law Congress would have no difficulty in compiling a record that would support the use of its enforcement power under Section Five of the Fourteenth Amendment to enact a statute forbidding the imposition of capital punishment by those states that retain the practice. The statute would be congruent and proportional legislation to remedy and prevent an amply documented history of violations …

Antitrust After The Coming Wave, Daniel A. Crane

Articles

A coming wave of general-purpose technologies, including artificial intelligence ("AI"), robotics, quantum computing, synthetic biology, energy expansion, and nanotechnology, is likely to fundamentally reshape the economy and erode the assumptions on which the antitrust order is predicated. First, AI-driven systems will vastly improve firms' ability to detect (and even program) consumer preferences without the benefit of price signals, which will undermine the traditional information-producing benefit of competitive markets. Similarly, these systems will be able to determine comparative producer efficiency without relying on competitive signals. Second, AI systems will invert the salient characteristics of human managers, whose intentions are opaque but …

Chenery Ii Revisited, Daniel T. Deacon

Articles

Ever since the Supreme Court’s 1947 decision in SEC v. Chenery Corporation, known as Chenery II, agencies have enjoyed wide latitude to develop policy through individual adjudications in addition to rulemaking. Chenery II has never been completely uncontroversial, and in recent years, calls to overturn or limit it have been expressed in increasingly fervent tones. Agency policymaking by adjudication has emerged as a new front in the struggle over the administrative state.

Against the backdrop of such calls, this Article revisits some of the fundamental questions concerning the Chenery II doctrine. I argue in favor of retaining Chenery II’s core …