Law Commons^™

The Five Internet Rights, Nicholas J. Nugent

Washington Law Review

Since the dawn of the commercial internet, content moderation has operated under an implicit social contract that website operators could accept or reject users and content as they saw fit, but users in turn could self-publish their views on their own websites if no one else would have them. However, as online service providers and activists have become ever more innovative and aggressive in their efforts to deplatform controversial speakers, content moderation has progressively moved down into the core infrastructure of the internet, targeting critical resources, such as networks, domain names, and IP addresses, on which all websites depend. These …

Public Ownership And The Wto In A Post Covid-19 Era: From Trade Disputes To A 'Social' Function, Paolo Davide Farah, Davide Zoppolato

Articles

Public ownership is closely bound to the need of the government to protect and guarantee the well-being of its citizens. Where the market cannot, or does not want to, provide goods and services, the State uses different tools to intervene, influence, and control some aspects of the private sphere of expression of its citizens in the name and interest of the collectivity. Although, in the past century, this behavior was accepted as one of the expressions of the public authority and part of the social contract, this perception has shifted partially in accordance with the wave of privatization programs initiated …

Algorithmic Governance From The Bottom Up, Hannah Bloch-Wehba

Faculty Scholarship

Artificial intelligence and machine learning are both a blessing and a curse for governance. In theory, algorithmic governance makes government more efficient, more accurate, and more fair. But the emergence of automation in governance also rests on public-private collaborations that expand both public and private power, aggravate transparency and accountability gaps, and create significant obstacles for those seeking algorithmic justice. In response, a nascent body of law proposes technocratic policy changes to foster algorithmic accountability, ethics, and transparency.

This Article examines an alternative vision of algorithmic governance, one advanced primarily by social and labor movements instead of technocrats and firms. …

Third-Party Beneficiaries Of Government Contracts: Imagining An Equitable Approach And Applying It To Broken Promises In Detroit, Gabe Chess

Michigan Law Review

Courts have widely adopted a heightened standard for recognizing third-party beneficiaries of government contracts. But the justifications offered for the heightened standard do not withstand scrutiny. Instead, courts should apply a series of equitable factors to produce results consistent with the concern for “manifest justice” that animates third-party beneficiary doctrine. Governments make contracts frequently, often to address issues of huge importance to their citizens, including housing, economic development, and healthcare. In each of these areas, third-party beneficiary doctrine may be an important avenue of relief to citizens harmed by broken promises and may encourage the government and its contracting partners …

Patents And Plants: Rethinking The Role Of International Law In Relation To The Appropriation Of Traditional Knowledge Of The Uses Of Plants (Tkup), Ikechi Mgbeoji

PhD Dissertations

Legal control and ownership of plants and traditional knowledge of the uses of plants (TKUP) is often a vexed issue, particularly at the international level because of the conflicting interests of states or groups of states in the matter. The most widely used form of juridical control of plants and TKUP is the patent system which originated in Europe. This thesis rethinks the role of international law and legal concepts, the major patent systems of the world and international agricultural research institutions as they affect legal ownership and control of plants and TKUP. The analysis is cast in various contexts …

Nomos And Nation: On Nation In An Age Of “Populism”, John Valery White

Touro Law Review

Robert Cover’s Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals’ ability to participate in the development of an idea of nation, is necessary to avoid “a total crushing of the jurisgenerative character” of nomoi by the state, or by …

Publicly Traded Justice, Samuel Ludington

University of Miami Business Law Review

Private prisons, like hotels, are most profitable when they are at maximum occupancy and their guests stay for longer periods of time. Because the business-model for private prisons is predicated on incarceration rates dictated by public policy, one would presume that private prison corporations expend great resources to advocating for stricter criminal laws and sentencing. This note explores the role of political lobbying and campaign contributions of private prison corporations to see if a correlative relationship exists between their advocacy and stricter crime laws. Part I of the note provides a history of private prisons in America and explores the …

Blackwater Rising: The Legal Issues Raised By The Unprecedented Privatization Of U.S. Military Functions, Robert D. Peltz

University of Miami Law Review

The Army has used civilian contractors to provide supplies and services to its forces in the field since the Revolutionary War. These early contractors fed the cavalry’s horses and transported supplies. Over the years, the role of the civilian contractor has dramatically evolved. Following the Vietnam War and the end of the draft, there has been an ever-increasing privatization of functions previously performed by the military.
The wars in Iraq and Afghanistan, which began in response to the September 11 attacks and have only recently started to come to a formal end, have significantly accelerated this process. As a result, …

Tinjauan Pengusahaan Air Dalam Pembangunan Plta Menurut Peraturan Perundang-Undangan Tentang Sumber Daya Air, Cerli Febri Ramadani

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Changes in regulations regarding water exploitation have occurred in Indonesia and there are many rejections from various parties, namely when the Act No. 7/2004 on Water Resources changed the conception of state control over water resources to management by the private. That is what makes Act No. 7/2004 filed a judicial riview lawsuit to the Constitutional Court, and the end of the COURT's decision to repeal Act No. 7/2004 and re-enact Act No. 11/ 1974 About Watering. Which in Act No. 11/1974 adheres to the principle of joint ventures and family. In 2019 then, the government established a new regulation, …

Transparency's Ai Problem, Hannah Bloch-Wehba

Faculty Scholarship

A consensus seems to be emerging that algorithmic governance is too opaque and ought to be made more accountable and transparent. But algorithmic governance underscores the limited capacity of transparency law—the Freedom of Information Act and its state equivalents—to promote accountability. Drawing on the critical literature on “open government,” this Essay shows that algorithmic governance reflects and amplifies systemic weaknesses in the transparency regime, including privatization, secrecy, private sector cooptation, and reactive disclosure. These deficiencies highlight the urgent need to reorient transparency and accountability law toward meaningful public engagement in ongoing oversight. This shift requires rethinking FOIA’s core commitment to …

Legal Obstacles Of Detainees In For-Profit Immigration Detention Facilities, Catalina Miller-Booth

Undergraduate Honors Theses

In an effort to reshape the US correctional system, one of President Joe Biden’s first executive orders ended future contracts between the Department of Justice (DOJ) and private prison corporations. Symbolic at best, this left in place the biggest money-maker of the private prison system, private immigration detention facilities. The contracts that guide US Immigration and Customs Enforcement (ICE) facilities favor profit over detainee well-being. This research showcases the poor quality of private immigration detention facilities with a focus on access to legal representation. With financial and physical barriers preventing detainees from receiving legal help, the US detention system works …

The Extent Of Constitutional Protection For Public Utilities, Sam Dallah

UAEU Law Journal

Regardless of the role of the State and the extent of its intervention, the public utilities, in its organic dimension connected with the public authority concept and the objective dimension connected with the concept of public activity, is considered one of the main tools by which the state exercises its sovereign functions and interventions.

Given the changes that have occurred in the role of the State, which led either to more intervention or more of its withdrawal from some sectors, and the subsequent crisis in the concept of public utilities, in addition to the emergence of mandate exercises or privatization …

Rethinking Grid Governance For The Climate Change Era, Shelley Welton

Faculty Publications

The electricity sector is often appropriately called the linchpin of efforts to respond to climate change. Over the next few decades, the U.S. electricity sector will need to double in size to accommodate electric vehicles, at the same time that it transforms to run entirely on clean energy. To drive this transformation, states are increasingly adopting 100% clean energy targets. But fossil fuel corporations are pushing back, seeking to maintain their structural domination of the U.S. energy sector. This article calls attention to one central but under-scrutinized way that these companies impede the clean energy transition: Incumbent fossil fuel companies …

Rethinking Grid Governance For The Climate Change Era, Shelley Welton

All Faculty Scholarship

The electricity sector is often appropriately called the linchpin of efforts to respond to climate change. Over the next few decades, the U.S. electricity sector will need to double in size to accommodate electric vehicles, at the same time that it transforms to run entirely on clean energy. To drive this transformation, states are increasingly adopting 100% clean energy targets. But fossil fuel corporations are pushing back, seeking to maintain their structural domination of the U.S. energy sector. This article calls attention to one central but under-scrutinized way that these companies impede the clean energy transition: Incumbent fossil fuel companies …

Health Reform Reconstruction, Lindsay F. Wiley, Elizabeth Y. Mccuskey, Matthew B. Lawrence, Erin C. Fuse Brown

Faculty Articles

This Article connects the failed, inequitable U.S. coronavirus pandemic response to conceptual and structural constraints that have held back U.S health reform for decades and calls for reconstruction. For more than a half-century, a cramped “iron triangle” ethos has constrained health reform conceptually. Reforms aimed to balance individual interests in cost, quality, and access to health care, while marginalizing equity, solidarity, and public health. In the iron triangle era, reforms unquestioningly accommodated four legally and logistically entrenched fixtures — individualism, fiscal fragmentation, privatization, and federalism — that distort and diffuse any reach toward social justice. The profound racial disparities and …

La Privatización, La Desregulación Y El Interés Público: Un Análisis Comparado, Alfred C. Aman

Articles by Maurer Faculty

This Spanish-language paper analyzes the structural elements of Administrative Law in the United States of America, such as deregulation and privatization, which define the particular relationship between State and Society in that country. The analysis focuses on the limits to privatization in some sectors (prisons, water, health care) using a comparative approach with Spain. From a critical position with the marketization and hegemony of economics, alternatives are proposed for a reform of the Administrative Law that allows a more democratic and inclusive functioning of the governmental institutions.

Food In Prison: An Eighth Amendment Violation Or Permissible Punishment?, Natasha M. Clark

Honors Thesis

This piece analyzes aspects such as; Eighth Amendment provisions, penology, case law, privatization and monopoly, and food law, that play into the constitutionality of privatized prisons using food as punishment. Prisoners have protection from excessive bail and fines and from cruel and unusual punishment, as per the 8^th Amendment; however, deprivations such as restricted diets and harm caused by them is only a valid violation if the prisoner can prove deliberate indifference. Privatization of the prison industry has led to reduced quality, choice, and diversity in areas such as food, which comes at a detrimental cost to prisoners. Serving …

The United Postal Service—The One Word That Makes All The Difference, Jena Martin, Matthew Titolo

Law Faculty Scholarship

In recent months, the United States Postal Service (USPS) has taken center stage on a number of intersecting issues in our society: the pandemic; the upcoming election (through mail-in voting) and the controversy surrounding the appointment of Louis DeJoy to the position of Postmaster General. President Donald Trump has frequently made derogatory remarks regarding the Postal Service, calling it a “joke,” and has made repeated statements encouraging its privatization. However, President Trump’s rhetoric (as well as the rhetoric of others before him) obfuscates the critical mission of the USPS – to provide service to every American in the country; not …

Constitutionally Unaccountable: Privatized Immigration Detention, Danielle C. Jefferis

Indiana Law Journal

For-profit, civil immigration detention is one of this nation’s fastest growing industries. About two-thirds of the more than 50,000 people in the civil custody of federal immigration authorities find themselves at one point or another in a private, corporate-run prison that contracts with the federal government. Conditions of confinement in many of these facilities are dismal. Detainees have suffered from untreated medical conditions and endured months, in some cases years, of detention in environments that are unsafe and, at times, violent. Some have died. Yet, the spaces are largely unregulated. This Article exposes and examines the absence of a constitutional …

Private Prisons & Human Rights: Examining Israel's Ban On Private Prisons In A Us Context, Brandy F. Henry

Concordia Law Review

This article users a human rights lens to examine prison privatization in the US. The analysis builds on the 2009 Israeli Supreme Court ruling against the privatization of prisons, which relied on the human rights theories of both decommodification and dignity. The Israeli interpretations of dignity, and decommodification theory as related to the privatization of prisons suggest that prison privatization results in the commodification of both the state and prisoner, through the improper delegation of governmental power, which results in an infringement of the prisoner's human right to dignity. This argument is examined in the context of US statute and …

Water Privatization Trends In The United States: Human Rights, National Security, And Public Stewardship, Craig Anthony (Tony) Arnold

Craig Anthony (Tony) Arnold

No abstract provided.

The Street View Of Property, Vanessa Casado-Pérez

Faculty Scholarship

Parking on public streets is scarce. The current allocation system for parking spots based on rule of capture coupled with low parking fees creates a tragedy of the commons scenario. The misallocation of parking has consequences for commerce, for access to public spaces, and for pollution and congestion. Municipalities have not widely adopted the solution that economists propose to solve this scarcity problem: increase the price. Politics aside, the reluctance of municipalities to do so may be explained by the unique nature of public property as reflected in well-rooted legal and societal constraints. This unique nature helps explain, for example, …

Book Review: An Examination Of Maine's Public Beach Access, Ariel A. Hampton

Ocean and Coastal Law Journal

Many people assume that access rights to public resources are unwavering. Two Maine Supreme Judicial Court cases concerning limitations to public access to Maine beaches rebut this assumption. In his book, Maine's Beaches Are Public Property: The Bell Cases Must Be Reexamined, Professor Orlando E. Delogu challenges the modifications to public beach access that resulted from these two cases. This Review focuses on the historical and legal arguments that Professor Delogu presents as justification for the reversal of the Bell cases. Professor Delogu gives compelling reasons for his take on the Bell cases and why the State of Maine should …

Privatizing The Reservation?, Kristen A. Carpenter, Angela R. Riley

Publications

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, …

Forgotten Statutes: Trade Law's Domestic (Re)Turn, Kathleen Claussen

Articles

Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral …

Private Government And The Transparency Deficit, Alfred C. Aman, Landyn W. Rookard

Articles by Maurer Faculty

Modern government is comprised of a complex admixture of public and private actors. From the provision of public services, to growing movements to sell off national parks, to the very task of legislating, the public is unlikely to encounter an area of government that is untouched by privatization. But public transparency mechanisms, including the seminal Freedom of Information Act (FOIA), rely upon an outdated, rigid conception of the private-public dichotomy. They fail to provide the public with any meaningful access to what we call the “private government,” which includes the private actors who bear an increasing responsibility for performing governmental …

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Neil L Sobol

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication services too often …

Liberty And Separation Of Powers In Judicial Review Of Privatized Governance Regimes, Jeffrey Kleeger

Journal of the National Association of Administrative Law Judiciary

This article examines the power difference between homeowner association (HOA) owners, members, and their governing boards. Administrative adjudication can remedy the imbalance to better secure member rights. What is necessary is a heightened standard of judicial review and a requirement to produce a comprehensive record for review. Boards enjoy an advantage in disputes with members—courts uphold board actions unless they are arbitrary and capricious. Boards also possess largely unrestricted state-delegated authority to make and enforce rules, as well as decide penalties for infractions. These clearly governmental functions are not restrained by the state action doctrine. Tools of administrative adjudication are …

Connecting The Disconnected: Communication Technologies For The Incarcerated, Neil Sobol

Faculty Scholarship

Incarceration is a family problem—more than 2.7 million children in the United States have a parent in jail or prison. It adversely impacts family relationships, financial stability, and the mental health and well-being of family members. Empirical research shows that communications between inmates and their families improve family stability and successful reintegration while also reducing the inmate’s incidence of behavioral issues and recidivism rates. However, systemic barriers significantly impact the ability of inmates and their families to communicate. Both traditional and newly developed technological communication tools have inherent advantages and disadvantages. In addition, private contracting of communication services too often …

Cashing In On Convicts: Privatization, Punishment, And The People, Laura I. Appleman

Utah Law Review

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, …