Law Commons^™

Clean Slate, Dirty Data: An Audit Of Algorithmic Automated Criminal Expungement Laws, Colleen V. Chien

North Carolina Law Review

No abstract provided.

Competition In The Global Law Market: Offshore Development Of The Statutory "Rule In Hastings-Bass", Andrew P. Morriss

Faculty Scholarship

This Article examines the competitive dynamics in the global law market through the lens of the statutory evolution of the Rule in Hastings-Bass across various International Financial Centers (IFCs). Following the UK Supreme Court's 2013 decision in Pitt v Holt and Futter v Futter, which significantly restricted the judiciary's ability to void trustee decisions under the Rule, seven IFCs (Jersey, Bermuda, The Bahamas, the Dubai International Financial Center, the Cayman Islands, and the British Virgin Islands) enacted statutes to preserve and clarify the Rule within their jurisdictions. These legislative actions highlight the strategic adaptations by IFCs to enhance their legal …

Water Flowing Down Wall Street, Vanessa Casado-Pérez

Faculty Scholarship

Water scarcity is a perennial problem with dire consequences for the United States and governments around the world. A lack of adequate water resources is a systematic cause of environmental harm, economic damage, and societal division. Climate change has exacerbated these problems making water even more valuable and essential.

Financial actors have turned water into the new oil. These large financial actors profiteer from buying and selling water without any interest in its actual use as an input of production. Instead, they typically seek to hold these rights until dire situations, like droughts and fires, cause temporary, but large, spikes …

Curative Identity Formation Themes To Counteract Law School’S Hidden Curriculum, Aric K. Short

Faculty Scholarship

Especially given the sensitive and malleable life stage that many of our students are in, law schools should take meaningful steps to blunt and counteract the negative effects of the hidden curriculum, including in ways suggested in other articles in this symposium. One direct way to present countervailing messaging is through a required 1L course on professional identity formation (PIF). As described in this article, there are a number of benefits of explicitly addressing PIF topics early in law school, and doing so not only more effectively prepares our students to become practicing attorneys, it also responds directly to some …

Nato Self-Defense – Is Article 5 The Right Framework For Responding To Sub-Kinetic Cyber Aggression?, Shreyas Kumar, Gary D. Brown, Srividhya Ragavan, Maddalena Cerrato, Gourav Nagar

Faculty Scholarship

Cyber aggression presents a significant challenge to traditional frameworks of collective defense, particularly under Article 5 of the NATO Washington Treaty, which obligates member states to respond collectively to an "armed attack." While NATO has acknowledged that cyber incidents may trigger Article 5, ambiguity persists over what constitutes a cyber "armed attack," especially in the absence of kinetic effects. This uncertainty complicates NATO’s ability to address increasingly prevalent sub-kinetic cyber threats, such as economic disruption, data manipulation, and interference in democratic processes. Unlike conventional military threats, cyber operations often fall below the traditional threshold of armed conflict while still exerting …

Ai For Good: Expanding Legal Services For Immigrants, Huyen Pham, Bryan Garcia

Faculty Scholarship

In this Essay, we explore the possibilities for putting AI technology in the hands of clients themselves, considering the advantages and disadvantages. Thinking about the specific context of immigration law, we could envision apps that help individuals to prepare for interviews for affirmative asylum, visas, or naturalization; to educate them about their rights in ways that are more specific, timely, and convenient than current know-your-rights formats; or, in a more attorney-adjacent interaction, using an app to conduct the initial intake interview and organize that information, making the usual time-consuming intake process more efficient and effective. We are not envisioning apps …

Thailand V. Katanyu Muenkhamruang “Pan”, Andrew Khoo, Human Rights Institute

Human Rights Institute

The criminal proceedings against Ms. Katanyu Muenkhamruang (“Pan”), a 27-year-old Thai student and pro-democracy activist, violated international fair trial standards and Thailand’s human rights obligations under the International Covenant on Civil and Political Rights (ICCPR). Pan was convicted under Thailand’s sedition law and the Computer-Related Crimes Act for Facebook posts promoting peaceful anti-government protests in 2021. The trial revealed numerous due process violations, including violation of the presumption of innocence, reliance on unsubstantiated claims, and a lack of reasoned judgment. Despite the absence of direct evidence linking Pan to the alleged posts, the court inferred guilt, and arbitrarily disregarded exculpatory …

Igniting Action To Reduce Gas Flaring: Real Opportunities. Real Projects. Real Results., Andrew Bernstein, Mark Davis, Thomas Mitro, Perrine Toledano

Columbia Center on Sustainable Investment

Gas flaring is a major global challenge. Despite bold commitments from governments, national oil companies (NOCs), international oil companies (IOCs), and leading independents, global flaring levels have stagnated at around 140–150 BCM per year, emitting up to 1 billion tonnes of CO2-equivalent greenhouse gases annually, while representing as much as $30 billion per year in potential lost revenue.

Numerous studies have outlined how flared gas can be captured and monetized – through power generation, fertilizers, petrochemicals, LNG and pipeline exports, among other use cases. Substantial reductions in flaring are not only technically achievable but can often create significant commercial value …

From Promise To Performance: Reforming Blended Finance For Scale, Perrine Toledano, Ana M. Camelo Vega, Tucker Wilke

Columbia Center on Sustainable Investment

Blended finance has the potential to help close the sustainable development financing gap. Strategically combining public and philanthropic capital to unlock private investment, it has proven to be an effective tool to de-risk impact investments. But without bold, structural reform, it risks remaining a niche tool – promising in theory, underperforming in practice. Drawing on over 65 expert interviews and in-depth analysis, this report from the Columbia Center on Sustainable Investment (CCSI) maps the systemic barriers preventing blended finance from operating at scale, and outlines a practical path forward. With bold leadership and coordinated reform, blended finance can become a …

Looking For The Public In Public Law, Nikhil Menezes, David E. Pozen

Faculty Scholarship

The “public” is everywhere and nowhere in contemporary public law. Everywhere, in that the term is constantly invoked to justify and explain existing arrangements. Nowhere, in that serious attempts to identify a relevant public and elicit its input are few and far between. Scholars and officials depict the U.S. public as playing myriad roles in governance — checking, guiding, approving, repudiating—without offering an account of how public preferences are formed or how they exercise influence on questions of interest.

This Article seeks to identify and call attention to the foundational dilemmas underlying this disconnect, to clarify their normative contours and …

The Administrative State's Second Face, Emily R. Chertoff, Jessica Bulman-Pozen

Faculty Scholarship

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that …

Addressing Missingness In Serialized Bureaucratic Data: The Case Of Chinese Courts, Xiaohan Wu, Margaret Roberts, Rachel E. Stern, Benjamin L. Liebman, Amarnath Gupta, Luke Sanford

Faculty Scholarship

Courts around the world are putting their data online, making information about caseloads, parties, and decisions available to the public. Yet, this data is far from complete, and often only reflects a portion of courts’ dockets. We offer and validate a set of tools for leveraging serialized bureaucratic data from courts to estimate the proportion of cases available to the public and the time courts take to make decisions. Using data from more than 3,000 courts in China, our methods allow us to assess patterns of missingness in court data across provinces and cities by type of case and to …

The Past, Present, And Future Of Proxy Voting Choice, Dorothy S. Lund

Faculty Scholarship

This article provides an early attempt at understanding what voluntary pass-through voting could mean for the marketplace. I first provide an overview of my argument in my 2018 Journal of Corporation Law article and the events that followed. I then survey passthrough voting initiatives that have taken hold at three asset managers — BlackRock, Vanguard, and State Street. I then conclude with some preliminary observations about how voting choice is likely to affect the proxy voting landscape and outline open questions.

Beyond Issuers: The Future Of Private Securities Litigation, Joshua Mitts

Faculty Scholarship

Private securities litigation has traditionally been viewed as a subfield of corporate governance, reducing agency costs by disciplining wayward management. In this brief Symposium essay, I argue that the future of private securities litigation lies beyond issuers. I discuss how a fraud claim under Rule 10b-5 can be understood as a kind of economic tort, and set out, in broad strokes, an economic analysis of claims against non-issuer defendants. I then consider emerging trends in the case law against non-issuers in social media and market manipulation cases. I conclude by identifying some challenges and opportunities for securities litigation in a …

Presidential Supremacy Over Administrative Agencies, Gary Gensler, Lev Menand

Faculty Scholarship

In the United States, the public has long benefited from the role played by administrative agencies with a degree of autonomy from the White House, each agency with distinct duties and authorities to implement the law as set out by Congress.

In its first hundred days, the second Trump administration has moved rapidly to centralise control over all administrative agencies, including so-called independent agencies, which have long operated at a greater remove from the White House than ‘executive’ agencies like the Department of State and the Department of Commerce. The administration is asserting an interpretation of the Constitution known as …

The Financial Sector And Global Dollar System, Gary Gensler, Lev Menand, Joshua Younger

Faculty Scholarship

The second Trump administration’s approach to financial markets and institutions mixes familiar deregulatory policies with a range of other policies (financial and non-financial) that are largely without precedent and may lead to significant structural change in the long term. Combined, these policies have the potential to affect the financial sector in at least four ways. First, they could threaten the foundations of the global dollar system – mutual cooperation, trust, and interdependency, both between the producers and consumers of financial instruments and among the nations that constitute the dollar bloc. Second, they may undermine financial stability by loosening prudential standards, …

Competence-Competence, Delegation, And The Aaa/Icdr Rules, Christopher R. Drahozal, George A. Bermann, Jack J. Coe Jr., Catherine A. Rogers

Faculty Scholarship

In 2021 and 2022, the American Arbitration Association (AAA) and the International Centre for Dispute Resolution (ICDR) amended their arbitration rules to address a “potential controversy” said to be caused by the Restatement of the U.S. Law of International Commercial and Investor-State Arbitration. The “potential controversy” is over whether the rules providing that arbitrators have “the power to rule on [their] own jurisdiction” should be interpreted as delegation clauses — that is, as “clearly and unmistakably” delegating exclusive authority to resolve jurisdictional challenges to the arbitrators instead of the court. Most courts have so interpreted the rules.

By contrast, the …

The Mda's Impact: Going Beyond Insurance Reimbursements, Todd Christy D.D.S.

The Journal of the Michigan Dental Association

Dr. Todd Christy, MDA Immediate Past President, acknowledges that inadequate insurance reimbursement rates are a major concern for dental practices. He explains that federal antitrust laws restrict the MDA from directly intervening to "fix" these rates. However, the article emphasizes that the MDA provides significant value and advocacy in many other areas crucial to dentists. Key achievements include eliminating the tax on dental prosthetics, legislating network leasing protections, expanding kindergarten oral health assessments, and regulating mobile dentistry. The MDA also offered vital support during the COVID-19 pandemic, advocated for increased Medicaid facility fees for anesthesia procedures, and assists members with …

A Bad Apple: Supreme Court Of Georgia Delivers Loss To Educators Holding It Is Constitutional For Tenured Georgia Educators To Lose Tenure When Public Schools Convert To Charter Schools, Brantley B. Swindell

Mercer Law Review

The Supreme Court of Georgia dealt a major blow to educators in existing charter school systems with tenure rights earned under the Fair Dismissal Act (FDA) after 1993. The court’s decision in Woods v. Barnes meant a big win for existing charter school systems and public school systems that intend to convert to charter systems. In Woods, a public school teacher and the Georgia Association of Educators (GAE) sought enforcement of tenure rights afforded by the Fair Dismissal Act in a charter school system that was previously a public school system. These rights included notice of the reasons for …

Being Independent Together: Georgia Adopts Eleventh Circuit’S Two-Step Analysis In Cases Involving The Independent Source Doctrine, Madison Shaw

Mercer Law Review

The exclusionary rule is a judicially created sanction applied by the Supreme Court of the United States to effectuate the intent of the protections provided by the Fourth Amendment. This rule aims to deter police misconduct by presenting a sanction barring the prosecution from presenting evidence obtained through a Fourth Amendment violation. Despite this honorable intention, however, the rule’s exceptions have arguably eroded the protections it seeks to provide. One such exception is the independent source doctrine. Tatum v. State is one of the most recent decisions by the Supreme Court of Georgia in which the court considered applying this …

The Unfulfilled Promise Of Confédération Des Syndicats Nationaux: A Case Study On The Reconciliation Of Equality And Freedom Of Association, Andrea Talarico

Dalhousie Law Journal

The evolution of the protection of collective bargaining rights in Canada has been marked by a tension between freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms, “the Charter”) and equality (section 15(1) of the Charter). In most cases before the Supreme Court of Canada (“the SCC”), the SCC has examined both rights separately. More recently, the SCC has treated equality as a value (rather than a right), using the value of equality to inform its interpretation of freedom of association. Both these approaches (the “Siloed Approach” and the “Charter Values” approach) fail …

Don’T Mess With Mr. In-Between, Brian Langille, Ben Mayer-Goodman

Dalhousie Law Journal

In a separate, related paper, we reveal and criticize an important “methodical error” which is commonly made in labour law jurisprudence. In this paper, we undertake a review of the attempts by Canadian and UK legislators and decision makers to overcome some of the problems of applying labour law’s traditional orthodoxy in the face of an ever more complex world by creating new categories “in between” the existing classes of employees and independent contractors. These attempts often fail precisely because they perpetuate the traditional approach and its methodological error, maintaining its perverse incentive structures. Our advice: “Don’t mess with Mr. …

Crip Time, Castoriadis, And Transcending The Duty To Accommodate In The Workplace, Ravi Malhotra, Jacqueline Moizer

Dalhousie Law Journal

Disabled people often experience time in a manner that is distinct from able-bodied individuals. Disabled people may have shorter careers, have difficulty maintaining full-time employment, and may be forced to work part-time due to the impact of their impairments. Many disabled people face considerable barriers every day in accessing services to participate fully in the workplace, including accessible transportation and attendant services. These underfunded services are often late if delivered at all, wreaking havoc on the ability of workers with disabilities to plan their day and make firm commitments. Yet disability scholars have attempted to reclaim this experience as one …

The Impact Of Artificial Intelligence On Access To Justice: Predictive Analytics And The Legal Services Market, Matthew Dylag

Dalhousie Law Journal

This paper examines how developers of predictive analytics—a technology using artificial intelligence (AI) to predict the outcomes of legal disputes—position their product vis-à-vis access to justice. In particular, it examines how two companies market their software to better understand how this technology is being integrated into the legal services market and to comment on the software’s potential impact on access to justice. The first part of this paper reviews the access to justice landscape and examines existing critiques of AI supported technology from an access to justice perspective. The second part briefly outlines the scope and design of the study, …

“17 Going On 23”: Sentencing Young People To Life In Canada, Debra Parkes

Dalhousie Law Journal

Canada is one of 67 countries worldwide that allows young people—those under the age of 18—to be sentenced to life imprisonment. In 2008, the Supreme Court of Canada recognized the presumption of diminished moral blameworthiness of young people as a constitutional principle of fundamental justice and invalidated a law that presumed youth should be sentenced as adults for some serious crimes, including murder. The burden is, therefore, always on the Crown to rebut the presumption and prove that a youth sentence would not be long enough to hold the young person accountable for their behaviour. Where the presumption can be …

The Role Of Advisory Opinions In International Law In The Context Of The Climate Crisis, Maria Antonia Tigre, Armando Rocha

Sabin Center for Climate Change Law

Between December 2022 and March 2023, three requests for an advisory opinion were submitted to the International Tribunal for the Law of the Sea (ITLOS), the Inter-American Court of Human Rights (IACtHR), and the International Court of Justice (ICJ). Furthermore, a request for an advisory opinion from the African Court on Human and Peoples’ Rights (AfCtHPR) is being prepared. As such, 2024–2025 marks an unprecedented moment in global climate litigation: as of November 2024, we are on the verge of having four of the world’s most important international and regional courts and tribunals answering crucial legal questions on the (ex …

Technology And The Unique Challenges Of Applying Law To The Realm Of Outer Space And Space Activities, F.G. Von Der Dunk

Chicago Journal of International Law

For better or worse, technology at heart is—except to the extent that artificial intelligence fundamentally becomes involved—not so much a creator as a facilitator and enhancer of human acts, actions and activities, allowing them to become more effective, less costly, or sometimes even just merely feasible. Perhaps nowhere that is more pertinent then when it comes to human activities in outer space, which are still overwhelmingly conducted remotely and hence crucially dependent on technology. Given that “the law” has always been geared to address humans and their acts, actions, and activities, this gives rise to a rather special approach to …

Digital Investigations Of Systematic And Conflict-Related Sexual Violence: Practice And Possibilities, Alexa Koenig

Chicago Journal of International Law

This article discusses a new guide that has been developed to support the responsible use of digital open-source information to investigate systematic and conflict-related sexual violence (SCRSV). Drafted by the Institute for International Criminal Investigations and the Human Rights Center at UC Berkeley School of Law, the just-published pilot version of the Open- Source Practitioner’s Guide to the Murad Code aims to minimize the risks and maximize the potential for digital investigations into SCRSV. Part I of this article opens with a brief history of accountability for SCRSV, touching on the need to strengthen SCRSV investigations and providing a brief …

The Click-And-Commit World Order, Melissa J. Durkee

Chicago Journal of International Law

This Article explores the rise of a new model of global governance: the “click-and-commit world order,” characterized by digitally mediated pledging platforms through which a wide array of actors—states, corporations, cities, NGOs, and individuals—publicly commit to addressing global problems through non-binding promises. In contrast to traditional treaty-making, these pledging platforms offer a decentralized, voluntary framework for international cooperation that relies on public declarations rather than negotiated obligations.

Within the U.N. system, this mode of governance developed within the United Nations Global Compact and the Paris Climate Agreement, where bottom-up pledges were institutionalized within formal and informal international structures. The internet …

From Human Mapping To Machine Embedding: Uncovering Key Legal Drivers And Deterrents Of Isds Filing Frequencies, Sangchul Park

Chicago Journal of International Law

International investment agreements (IIAs), while intended to prop cross-border investment, have faced persistent criticism for potentially undermining the regulatory sovereignty of developing countries. Various mechanisms have been proposed as alternatives to traditional bilateral investment treaty (BIT) models, often with the goal of curbing investor-state dispute settlement (ISDS) filings. While existing research has uncovered the impact of nonlegal factors, such as macroeconomic crises, little has been done to systematically examine how legal provisions in either major model BITs or ISDS reform toolboxes influence ISDS filing patterns. To address this gap, this Article analyzes the interplay between (i) legal texts of 2,148 …