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Full-Text Articles in Law

Protecting The Promise To The Families Of Tuskegee: Banning The Use Of Persuasive Ai In Obtaining Informed Consent For Commercial Drug Trials, Jennifer S. Bard Jan 2024

Protecting The Promise To The Families Of Tuskegee: Banning The Use Of Persuasive Ai In Obtaining Informed Consent For Commercial Drug Trials, Jennifer S. Bard

San Diego Law Review

This is the first article to call for a ban on the use of AI technology designed to influence human decision-making, “Persuasive AI,” for the purpose of recruiting or enrolling human participants in drug trials sponsored by commercial entities. It does so from a perspective of precaution, not fear. Advances in Artificial Technology that can assist human decision-making have tremendous potential for good. It makes the case for doing so based on both the substantial risk of harm to the decision-making process and the ineffectiveness of intermediate regulatory measures. This Article looks directly at Persuasive AI, a type of AI …


Reexamining The Consent Definition Under Article 213: Sexual Assault And Related Offenses Of The Model Penal Code And Its Troubling Influence On Affirmative Consent Definition States, Samantha Newman Aug 2023

Reexamining The Consent Definition Under Article 213: Sexual Assault And Related Offenses Of The Model Penal Code And Its Troubling Influence On Affirmative Consent Definition States, Samantha Newman

Georgia Criminal Law Review

In the past decade, and in response to criticism surrounding Article 213 Sexual Assault and Related Offenses of the 1962 Model Penal Code (MPC), the American Law Institute (ALI) sought to re-examine these specific provisions. In doing so, the ALI attempted to incorporate a more modern standard of sexual behavior and consent, without making the model code too punitive. Recently in 2022, the ALI approved revisions to Article 213 MPC, referred to in this Article as the “Revised Code,” including the rejection of an affirmative consent definition. This Article argues that despite the noble intentions of revising an outdated code, …


Aadhaar: India’S National Identification System And Consent-Based Privacy Rights, Anvitha S. Yalavarthy Mar 2023

Aadhaar: India’S National Identification System And Consent-Based Privacy Rights, Anvitha S. Yalavarthy

Vanderbilt Journal of Transnational Law

India’s national identification program, Aadhaar, created the largest national biometric database in the world. While the program is touted as voluntary, the increasing dependence on it, and the laws surrounding it, make it de facto mandatory. This Note examines the social and legal landscapes surrounding the Aadhaar program along with the principles of data privacy and biometric data collection in the European Union and the United States to show how those principles can and should apply to the Aadhaar system.

This Note suggests that the way to strengthen the Aadhaar system’s privacy regime is by balancing the principles of necessity …


The Inconsistencies Of Consent, Chunlin Leonhard Dec 2022

The Inconsistencies Of Consent, Chunlin Leonhard

Catholic University Law Review

U.S. legal scholars have devoted a lot of attention to the role that consent has played in laws and judicial consent jurisprudence. This essay contributes to the discussion on consent by examining judicial approaches to determining the existence of consent in three selected areas--contracts, tort claims involving medical treatment, and criminal cases involving admissibility of confessions, from the late nineteenth century until the present. This article examines how courts have approached the basic factual question of finding consent and how judicial approaches in those areas have evolved over time. The review shows that the late 19th century saw courts adopting …


Reclaiming The Right To Consent: Judicial Bypass Mechanism As A Way For Persons With Disabilities To Lawfully Consent To Sexual Activity In Ohio, Melissa S. Obodzinski Jun 2022

Reclaiming The Right To Consent: Judicial Bypass Mechanism As A Way For Persons With Disabilities To Lawfully Consent To Sexual Activity In Ohio, Melissa S. Obodzinski

Cleveland State Law Review

In Ohio, it is a criminal offense to engage in sexual conduct with another when his or her ability to consent is “substantially impaired” because of a mental or physical condition. There is no mechanism for persons with intellectual and/or developmental disabilities to receive judicial notice of whether their ability to consent is “substantially impaired” prior to criminal adjudication, nor is there a way for them to affirmatively prove that they have the capacity to consent to sexual activity. Thus, under Ohio law, intellectually and/or developmentally disabled individuals may be functionally and irrevocably barred from engaging in sexual intimacy for …


How To Expand Rape By Deception And Protect Consent, Ricardo Licea May 2022

How To Expand Rape By Deception And Protect Consent, Ricardo Licea

University of Massachusetts Law Review

The trend towards accepting the violation of consent as the underlying wrong addressed by rape law conflicts with the almost universal rejection of rape by deception. Rape by deception is limited to fraud in the factum, however the exclusion of fraud in the inducement finds no support under a consent framework. The principal objections to the expansion of rape by deception are that it will criminalize common behavior, that rape by deception produces only minor harm, and that self-protection is a viable alternative. Analogizing from the criminalization of deception to obtain money shows that the criminal deception statutes need not …


Illusory Privacy, Thomas Haley Jan 2022

Illusory Privacy, Thomas Haley

Indiana Law Journal

For decades, regulators, consumer advocates, and privacy theorists have grappled with one of privacy’s most important questions: how to protect private information that consumers unwittingly give away with the click of an “I accept” button. Reform efforts remain mired in a morass of text, focusing on the increasing volume and complexity of firms’ terms of service and privacy policies. This Article moves beyond such existing approaches. By analyzing terms of service and privacy policies from hundreds of top websites—which this Article calls “platform terms”—this Article demonstrates that the prevailing “notice and consent” paradigm of privacy regulation cannot provide meaningful protection. …


On Time, (In)Equality, And Death, Fred O. Smith Jr. Nov 2021

On Time, (In)Equality, And Death, Fred O. Smith Jr.

Michigan Law Review

In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common features of these discoveries, accompanied by cultural debates about what “respect” means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition.

Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of …


Making The Impractical, Practical: A Modest And Overdue Approach To Reforming Fourth Amendment Consent Search Doctrine, Augustine P. Manga Oct 2021

Making The Impractical, Practical: A Modest And Overdue Approach To Reforming Fourth Amendment Consent Search Doctrine, Augustine P. Manga

William & Mary Journal of Race, Gender, and Social Justice

At some point in your life, you may have a personal encounter with a police officer. During that moment, you may feel utterly powerless, especially if you do not know your rights. One important right that police are not required to inform people of is their right to deny an officer’s request to search their property. Forty-eight years ago, the Supreme Court made its position clear in Schneckloth v. Bustamonte that requiring law enforcement to provide citizens with this warning would be “thoroughly impractical.” Since then, the relationship between law enforcement and society—especially communities of color—has gradually deteriorated, and states …


Beyond #Metoo: Addressing Workplace Sexual Misconduct Cases And The Targeted Use Of Non-Disclosure Agreements, Taylor Percival, Lane Gibbons Apr 2021

Beyond #Metoo: Addressing Workplace Sexual Misconduct Cases And The Targeted Use Of Non-Disclosure Agreements, Taylor Percival, Lane Gibbons

Brigham Young University Prelaw Review

Recent allegations against prominent figures have brought the targeted use of non-disclosure agreements (NDAs) in sexual misconduct cases to public knowledge. NDAs have historically been used in a variety of ways in such cases, but situations of coercion and uneven power dynamics often leave victims with no real choice, and they end up losing their right to speak publicly about their experiences. This paper discusses the history of NDAs in sexual misconduct cases, explores when and why their enforcement is unlawful, and proposes the adoption of federal legislation like the BE HEARD Act to limit the inappropriate use of NDAs.


Terrorism The Phenomenon That Has No Common Consent On Its Definition, Mohamed Hasan Alqassimi Mar 2021

Terrorism The Phenomenon That Has No Common Consent On Its Definition, Mohamed Hasan Alqassimi

UAEU Law Journal

Recently, the world has witnessed arbitrary acts of terrorism and violence carried out by various individuals and/or organizations. The significance of studying terrorism - whatever the focus in such a potential study is - lies in that numerous international legal principles that are firmly established in international treaties or conventions have now become subject to controversy or - at least - have lost their practical value owing to different reactions vis - à - vis this phenomenon.

Undoubtedly, many studies have explored the phenomenon of terrorism in order to decipher the main motives behind its spread and to furnish relevant, …


Disposition Of Frozen Preembryos In The Case Of Divorce: New York Should Implement A Modified Mutual Contemporaneous Consent Approach, Kasey Bray Jan 2021

Disposition Of Frozen Preembryos In The Case Of Divorce: New York Should Implement A Modified Mutual Contemporaneous Consent Approach, Kasey Bray

Touro Law Review

No abstract provided.


The Slippery Discourse Of Sexual Consent: Feminist Acumen And Feminist Excess, Dan Subotnik Jan 2021

The Slippery Discourse Of Sexual Consent: Feminist Acumen And Feminist Excess, Dan Subotnik

Touro Law Review

The Kavanaugh confirmation hearings, the Harvey Weinstein case, and the Jeffrey Epstein case have done us a valuable service. By focusing mass media attention and academic discourse on consent to sex and on assault, they have brought to a boil two issues that have been simmering for some time in feminist circles. The present essay invites readers to consider feminist writings over the last half-century that have influenced this discourse and continue to incite febrile talk today.

First to be examined is the American “heartbalm” regime, an early effort to protect women from the emotional harm resulting from seduction by …


Show Me The (Data About The) Money!, Nizan Geslevich Packin Jan 2021

Show Me The (Data About The) Money!, Nizan Geslevich Packin

Utah Law Review

Information about consumers, their money, and what they do with it is the lifeblood of the flourishing financial technology (“FinTech”) sector. Historically, highly regulated banks jealously protected this data. However, consumers themselves now share their data with businesses more than ever before. These businesses monetize and use the data for countless prospects, often without the consumers’ actual consent. Understanding the dimensions of this recent phenomenon, more and more consumer groups, scholars, and lawmakers have started advocating for consumers to have the ability to control their data as a modern imperative. This ability is tightly linked to the concept of open …


"If Consent Is Bought, It Is Not Freely Chosen": Compromised Consent In Prostituted Sex In Ireland, Ivana Bacik Dec 2020

"If Consent Is Bought, It Is Not Freely Chosen": Compromised Consent In Prostituted Sex In Ireland, Ivana Bacik

Dignity: A Journal of Analysis of Exploitation and Violence

This article offers feminist arguments for the reconsideration of consent as a legal concept, informed by insights gained through the work of the #MeToo movement and other feminist campaigns. It suggests that consent may be seen as legally compromised in certain contexts of structured gender inequality, such as domestic violence, workplace sexual harassment, and prostitution. The legal understanding of consent in such contexts is antithetical to the conception of consent as “freely and voluntarily” given within a mutual sexual relationship. This understanding of consent underpins the recent introduction of the Nordic model approach into Irish law through the Criminal Law …


Trading Privacy For Promotion? Fourth Amendment Implications Of Employers Using Wearable Sensors To Assess Worker Performance, George M. Dery Iii Dec 2020

Trading Privacy For Promotion? Fourth Amendment Implications Of Employers Using Wearable Sensors To Assess Worker Performance, George M. Dery Iii

Northwestern Journal of Law & Social Policy

This Article considers the Fourth Amendment implications of a study on a passive monitoring system where employees shared data from wearables, phone applications, and position beacons that provided private information such as weekend phone use, sleep patterns in the bedroom, and emotional states. The study’s authors hope to use the data collected to create a new system for objectively assessing employee performance that will replace the current system which is plagued by the inherent bias of self-reporting and peer-review and which is labor intensive and inefficient. The researchers were able to successfully link the data collected with the quality of …


Does “No, Not Without A Condom” Mean “Yes, Even Without A Condom”?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant Dec 2020

Does “No, Not Without A Condom” Mean “Yes, Even Without A Condom”?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant

Dalhousie Law Journal

In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully …


Pervasive Infancy: Reassessing The Contract Capacity Of Adults In Modern America, Michael S. Lewis Nov 2020

Pervasive Infancy: Reassessing The Contract Capacity Of Adults In Modern America, Michael S. Lewis

The University of New Hampshire Law Review

This article argues that the law of consumer contracts should permit adults to access the same protections available to children where data about adult performance indicates that the two categories of people are similarly situated within the domain of consumer contracts. In making this claim, this article relies upon a description of capacity articulated by Professor Martha Nussbaum in her important work on the subject. Professor Nussbaum explains that capacity is a function, not only of a person’s innate capabilities, but of a person’s opportunity or ability to deploy those capabilities within environmental limitations. Capacity to contract in a free …


The Unwritten Rules Of Liberal Democracy, Charles W. Collier Oct 2020

The Unwritten Rules Of Liberal Democracy, Charles W. Collier

University of Massachusetts Law Review

This Article is set amidst the distinctly unsettled and unsettling state of governmental practices, legislative policy, and presidential politics of contemporary America. Immediacy, too, introduces its own uncertainty—as compared to the comfortable vantage point of the distant future. But, as I shall argue, there is no realistic alternative to beginning in medias res. To address these issues as they inherently demand, the usual precedents and protocols and precautions must be set aside—if they are not already “gone with the wind.”6 Since the 2016 Presidential Election, and even before, threats to liberal democracy have emerged, in plausible form, as never before …


Consent To Student Loan Bankruptcy Discharge, John P. Hunt Oct 2020

Consent To Student Loan Bankruptcy Discharge, John P. Hunt

Indiana Law Journal

As the Department of Education reconsiders its rules governing consent to discharge of federal student loans in bankruptcy, this Article argues for the first time that the Department should approach the problem specifically as an operator of programs to promote education and benefit students, rather than as an entity interested only in debt collection. This Article shows that the Department’s rules to date have treated whether to consent to discharge primarily as a pecuniary issue, without regard to the educational goals of the student loan programs. For example, the Department apparently has never considered whether making it difficult to discharge …


From Protecting To Performing Privacy, Garfield Benjamin May 2020

From Protecting To Performing Privacy, Garfield Benjamin

The Journal of Sociotechnical Critique

Privacy is increasingly important in an age of facial recognition technologies, mass data collection, and algorithmic decision-making. Yet it persists as a contested term, a behavioural paradox, and often fails users in practice. This article critiques current methods of thinking privacy in protectionist terms, building on Deleuze's conception of the society of control, through its problematic relation to freedom, property and power. Instead, a new mode of understanding privacy in terms of performativity is provided, drawing on Butler and Sedgwick as well as Cohen and Nissenbaum. This new form of privacy is based on identity, consent and collective action, a …


Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla Apr 2020

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …


Dna Is Different: An Exploration Of The Current Inadequacies Of Genetic Privacy Protection In Recreational Dna Databases, Jamie M. Zeevi Mar 2020

Dna Is Different: An Exploration Of The Current Inadequacies Of Genetic Privacy Protection In Recreational Dna Databases, Jamie M. Zeevi

St. John's Law Review

(Excerpt)

Part I of this Note discusses the fundamental science behind DNA and defines and explains the process of familial DNA searching. Part I also discusses how Carpenter v. United States provides a framework to begin thinking about the unique nature of DNA and privacy implications for its use, and why the revealing nature of this type of data warrants protection. Part II of this Note delves into the lack of constitutional and statutory protections for DNA in recreational DNA databases. First, Part II explains that traditional Fourth Amendment concepts, like search warrants, probable cause, reasonable expectation of privacy, third-party …


Customary Law Of Indigenous Communities: Making Space On The Global Environmental Stage, Melissa L. Tatum Mar 2020

Customary Law Of Indigenous Communities: Making Space On The Global Environmental Stage, Melissa L. Tatum

Michigan Journal of Environmental & Administrative Law

The high stakes often involved in controversies regarding who owns valuable natural resources and who has the authority to regulate environmental contaminants have resulted in fierce legal battles and struggles to establish and define international principles of law. Grand theoretical debates have played out on the international stage regarding the principle of free, prior, and informed consent and the legal contours of corporate social responsibility. Meanwhile, often under the radar, Indigenous people around the world have worked to create a sustained niche for their community and culture in the face of exploitation and environmental devastation at the hands of the …


Trimming The Fat: The Gdpr As A Model For Cleaning Up Our Data Usage, Kassandra Polanco Jan 2020

Trimming The Fat: The Gdpr As A Model For Cleaning Up Our Data Usage, Kassandra Polanco

Touro Law Review

No abstract provided.


Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Cordes Jan 2020

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Cordes

Northwestern Journal of International Law & Business

Investor-state contracts are regularly used in low- and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.

This article explores how …


Due Process Supreme Court Appellate Division Jul 2019

Due Process Supreme Court Appellate Division

Touro Law Review

No abstract provided.


Double Jeopardy Jul 2019

Double Jeopardy

Touro Law Review

No abstract provided.


General Data Protection Regulation (Gdpr): Prioritizing Resources, Jennifer Dumas Apr 2019

General Data Protection Regulation (Gdpr): Prioritizing Resources, Jennifer Dumas

Seattle University Law Review

This Article will discuss and analyze the years of preparation for the GDPR and provide recommendations for dealing with the GDPR forevermore. It will assess whether the preparation and panic were worth it. In other words, was the time, expense, and distraction my peers and I expended and experienced over the past years proportionate to the requirements and impact of the GDPR? Further, was the high level of preparation and panic many legal departments in countless companies undertook and experienced appropriate now that we have had a chance to see the initial impact of the GDPR?


Face Off: An Examination Of State Biometric Privacy Statutes & Data Harm Remedies, Maya E. Rivera Jan 2019

Face Off: An Examination Of State Biometric Privacy Statutes & Data Harm Remedies, Maya E. Rivera

Fordham Intellectual Property, Media and Entertainment Law Journal

As biometric authentication becomes an increasingly popular method of security among consumers, only three states currently have statutes detailing how such data may be collected, used, retained, and released. The Illinois Biometric Information Privacy Act is the only statute of the three that enshrines a private right of action for those who fail to properly handle biometric data. Both the Texas Capture or Use Biometric Identifier Act Information Act and the Washington Biometric Privacy Act allow for state Attorneys General to bring suit on behalf of aggrieved consumers. This Note examines these three statutes in the context of data security …