Law Commons^™

May The Micro Forces Be With You: Pharmaceutical Research And Patents In Space, Erin R. Gaddes

The University of New Hampshire Law Review

No abstract provided.

Generative Ai's Illusory Case For Fair Use, Jacqueline C. Charlesworth

Vanderbilt Journal of Entertainment & Technology Law

Pointing to Authors Guild, Inc. v. Google Inc., Authors Guild, Inc. v. HathiTrust, Sega Enterprises Ltd. v. Accolade, Inc. and other leading technology-driven fair use precedents, artificial intelligence (AI) companies and those who advocate for their interests claim that mass unauthorized reproduction of books, music, photographs, visual art, news articles, and other copyrighted works to train generative AI systems is a fair use of those works. Though acknowledging that works are copied without permission for the training process, the proponents of fair use maintain that an AI machine learns only uncopyrightable information about the works during that process. Once trained, …

The First Amendment And The Commencement Provocateur, Duncan Hosie

William & Mary Bill of Rights Journal

This Article explores an untheorized area of First Amendment doctrine: students’ graduation speeches at public or private universities that embrace free speech principles, either by state statute, state constitutional law, or internal policy. Responding to recent graduation speech controversies, it develops a two-tier theory that reconciles a multiplicity of values, including students’ expressive interests, universities’ institutional interests in curating commencement ceremonies and preventing reputational damage and political reprisals, and the interests of captive audiences in avoiding speech they deem offensive or profane. The Article challenges the prevailing view that university students’ graduation speeches implicate individual First Amendment rights. It develops …

But For A Free Press: A Response To Press Freedom Skeptics, Patrick J. Charles, Kevin Francis O'Neill

William & Mary Bill of Rights Journal

This Article is divided into three Parts. Part I will outline the history-in-law case for why the historical record sufficiently supports recognizing distinct constitutional press freedoms. Part II then provides a history-in-law response to some of the most common arguments made by press freedom skeptics as to why distinct constitutional press freedoms should not be recognized by the courts. Lastly, Part III makes the case for why the recognition of distinct constitutional press freedoms should become a jurisprudential reality and provides a roadmap to accomplish this.

This abstract has been taken from the authors' introduction.

Second Amendment Principles, Jamie G. Mcwilliam

William & Mary Bill of Rights Journal

In United States v. Rahimi, the Supreme Court explained that firearm regulations “must comport with the principles underlying the Second Amendment.” This Article examines what those principles are, how to derive them, and how to apply them in concrete cases. It begins with the Second Amendment’s core principle of defense of self and community, which traces its lineage back to classical thinkers like Aquinas and Grotius. The tradition of firearm regulation that surrounded the adoption of the Second Amendment depended on this fundamental principle. But it also developed subsidiary principles that implement the defense principle in specific ways. This …

Understanding Dobbs V. Jackson Women's Health Organization: How The Modern Supreme Court Broke From Tradition And Changed The Original Meaning Of Due Process, Matthew W. Lunder

William & Mary Bill of Rights Journal

What follows here describes and criticizes the modern liberal and conservative approaches to substantive due process. Part I shows how substantive due process came about in the mid-twentieth century as the union of two extant doctrines: incorporation and fundamental rights. Part II then describes how modern conservatism used the doctrine to arrive at the deeply rooted-in-history-and-tradition test and shows the deliberate reconfiguration of the jurisprudence during the latter twentieth century into the novel patchwork of the modern-conservative method applied in Dobbs. Part III offers a contrast, describing and explaining the traditional due-process analysis of medieval origin and the concept of …

The Bare-Majority Requirement Of The Delaware Judiciary And Its Unfortunate Violation Of The First Amendment, Tyler Mayhew

William & Mary Bill of Rights Journal

This Note will attempt to remedy the circuit split on the issue of whether judges are policymakers for purposes of the First Amendment, and if they are not—as this Note concludes—whether the Delaware Constitution is in violation of the First Amendment through its major-party and bare-majority requirement.

First, this Note will analyze the development of the only challenge to article IV, section 3 of the Delaware Constitution as it proceeded from the U.S. District Court for the District of Delaware to the U.S. Supreme Court where it was thrown out on standing. Second, this Note will argue that judges are …

Hunting For Meaningful Boundaries: Virginia's Dog Retrieval Statute And Defining Per Se Regulatory Takings Under Cedar Point, Mason Miller

William & Mary Bill of Rights Journal

This Note will begin with a summary of the [Cedar Point Nursery v. Hassid] decision. Next, it will provide an overview of Virginia’s dog retrieval statute and discuss a recent case challenging the same. The Note will then analyze the statute by applying the Cedar Point standard, with special attention given to the exceptions, to determine if the law constitutes a per se taking. Finally, the Note will conclude by exploring some implications of the analysis, again emphasizing the effect of the amorphous exceptions.

This abstract has been taken from the author's introduction.

A Fate Worse Than Death: The Perpetuation Of Ableism Through California's "End Of Life Option Act", Skyler Powell

William & Mary Bill of Rights Journal

This Note discusses why physician-assisted suicide is inconsistent with California’s laws and how it should be remedied. First, Part I examines the history of physician-assisted suicide in the United States; the federal and Californian stances on the issue; how the EOLOA [End of Life Option Act] works today; and California’s stance on suicide prevention. Next, Part II looks at how California’s Equal Protection Clause and Civil Rights laws apply to individuals eligible for aid-in-dying medication, then analyzes a recent lawsuit brought against the state of California by disability advocacy groups regarding the EOLOA. Part III considers California and supporters’ interests …

Foreward, Edward Rubin

Vanderbilt Social Justice Reporter

No abstract provided.

Big Banks: Go Small!, Rashmi Dyal-Chand

Connecticut Law Review

Despite the promise of the Fair Housing Act and other civil rights laws, racial gaps in wealth, homeownership, and mortgage lending persist today. Our nation’s biggest banks deny mortgage loan applications to Black and Brown consumers at a rate higher than the rest of the industry, often claiming that lending to historically marginalized consumers is too risky. Instead, these lending institutions focus on providing highly profitable financial services to wealthy consumers.

Banking institutions, especially our nation’s biggest banks, have both a moral and economic obligation to serve all members of the public who need and desire financial services. It is …

The (Quorum) Call Is Coming From Inside The House: Incongruity Between The Current Interpretation Of The Quorum Clause And The Supreme Court’S First Congress Canon, Sam Mahler

Connecticut Law Review

Since the start of the twenty-first century, Congress members have faced more threats to their safety than at any other point in American history. Up to this point, none of the attacks have been successful in killing a majority of the members. However, such a prospect comes with the possibility of a reality where all Congressional action is stalled until replacement elections are held and new members are seated. In order to address this fear, Congress has changed its interpretation of the Quorum Clause to define the majority needed to conduct business as the majority of the members who are …

Legal And Policy Responses To Sexual Harassment In Housing, Rigel C. Oliveri

Connecticut Law Review

The sexual harassment of low-income women by their housing providers is a clear national problem that has only recently become the focus of coordinated nationwide enforcement efforts by federal agencies, including the Department of Justice. While these developments are welcome, the problem requires proactive responses as well. This Essay examines data from a study of all of DOJ’s sexual harassment in housing cases and uses this information to identify the most problematic types of housing providers and the most common forms of harassment. Specifically, harassment appears to occur most frequently in private rental housing and is perpetuated by managers (usually …

Ai Governance: Overcoming Policy Barriers To Fairness And Privacy, Michael Akinwumi

Connecticut Law Review

Artificial intelligence (“AI”) is increasingly influencing critical sectors such as housing and finance, and raising concerns about fairness, bias, and regulatory compliance. This Essay explores the policy considerations essential for operationalizing AI fairness, particularly in regulated industries. It examines the interplay between algorithmic transparency, privacy, and the responsible use of protected class data under existing legal frameworks such as the Equal Credit Opportunity Act (“ECOA”) and the Fair Housing Act (“FHA”). The Essay identifies key policy gaps and challenges in implementing fairness-enhancing techniques, offering actionable recommendations for policymakers, regulators, and AI practitioners. These recommendations propose a holistic framework that integrates …

Revisiting Geography And Sovereignty In The Digital Age, Melvin J. Kelley Iv

Connecticut Law Review

Fair housing advocates have already brought successful lawsuits challenging the use of property technology (“PropTech”) where it has been found to perpetuate or replicate discriminatory practices in a range of contexts including the use of automated screening tools to evaluate prospective tenants. While substantive interventions in unlawful exclusions and differential treatment via PropTech are laudatory, this Article argues that these steps do not go far enough and moreover, that insufficient attention has been paid to the procedural implications of the federal Fair Housing Act (“FHA”) as a source of ex ante enforcement.

The nation’s first fair housing law, the 1866 …

Eliminating Extratextual Exemptions From The Fair Housing Act, Stacy E. Seicshnaydre

Connecticut Law Review

The Supreme Court has held that the language of the Fair Housing Act (“FHA”) is “broad and inclusive,” and the Court has given it a broad construction. Correspondingly, the traditional interpretive canons suggest that courts must construe exceptions narrowly. However, some courts have restricted coverage under the FHA by broadly reading an exception or by inferring an exception. The Essay provides several illustrations of this practice and argues against inferred statutory exemptions to the FHA, at least for courts that otherwise adopt a strict textualist approach to statutory construction.

Parenting Under Siege: Reckoning With Coercive Control, Courtney Cross, Gillian Chadwick

Connecticut Law Review

Coercive control is a pervasive form of domestic violence in which one partner engages in a prolonged and multifaceted campaign of abuse in order to gain and maintain dominance over the other partner. While some coercively controlling partners employ physical violence to ensure compliance with their demands, others use exclusively non-violent tactics. In co-parenting relationships, coercive control not only inflicts severe harm on the targeted parent but also affects children as co-victims of both direct and indirect abuse. As a result, co-victim children suffer significant emotional, developmental, and social harm, and adverse health outcomes, even in the absence of physical …

Let It Flow: Information Exchange In Video Conferences Versus Face-To-Face Meetings, Hadar Y. Jabotinsky, Roee Sarel

Connecticut Law Review

When the COVID-19 pandemic hit, policymakers faced a seemingly difficult choice. On the one hand, health considerations required imposing restrictions on face-to-face meetings. On the other, intuition suggested that switching to video conferencing might lead to information loss. As the pandemic progressed, in-person meetings largely turned digital, including court hearings, lawyer-client consultations, board meetings, and more. But did this turn actually cause an information loss?

Figuring out whether information is lost in video conferences is pivotal not only as a reflection on the pandemic but also to determine how to move forward in a post-pandemic world. In particular, identifying whether …

Slum Managers, Anika Singh Lemar

Connecticut Law Review

All sorts of landlords—governmental landlords, cooperatives, large-scale corporate landlords, and mom-and-pops—engage in slumlording to some degree. Despite that fact, some of the most popular proposed solutions to the problem focus on a property owner’s size and corporate form, rather than its property management practices. This Essay contends that management, not ownership, is the proper target for regulations intended to improve the conditions under which many tenants live. It then proposes pairing and using in tandem two mechanisms for addressing management: licensing and receivership.

First Amendment Protection Under Connecticut’S Free Speech Statute: Inconsistent Interpretations And Disappointing Results, Elizabeth C. Anderson

Connecticut Law Review

Connecticut has taken unique strides in safeguarding employees’ constitutional rights by granting private employees the same First Amendment protections offered to public employees. However, the definition of “discipline” adopted by most courts permits employers to punish employees for exercising their free speech through non-affirmative acts like retracting promised promotions and bonuses. The absence of a clear, universal definition of “discipline” creates uncertainty for employees and employers, undermining the protective purpose of Connecticut’s free speech statute. This Comment argues that if or when the Connecticut Appellate Court takes up the issue of defining “discipline” under Connecticut General Statutes Section 31-51q, the …

Locating Timbre In Copyright Law’S Modern Musical Work, Lauren Wilson

Connecticut Law Review

Copyright law requires courts deciding music infringement cases to locate two copyrights within a single song: one in the “musical work” and another in the “sound recording.” But songs do not naturally divide into such pieces. Instead, judges untrained in music must parse from a unified song the musical elements belonging to each copyright and to whom those copyrights belong. They have historically approached the task as a simple matter of identifying elements notated on a score as belonging to the musical work and placing “everything else” on the sound recording, but such a formalistic approach does not suit the …

Ethical Investments: Correcting Erisa’S Misinterpretation, Yifat Naftali Ben Zion

Connecticut Law Review

The market for socially responsible investing—commonly referred to as ESG (environmental, social, and governance) investing—is experiencing rapid growth. Yet a crucial question, that could shape this market’s potential to better our world, remains unresolved: can institutional investors consider ESG factors when making investment decisions? These investors hold a significant portion of global corporate equity, currently valued in the trillions of dollars. Consequently, they stand in a unique position from which they can influence the actions of corporations. But institutional investors also manage other people’s money, which binds them to fiduciary duties that govern their investment decision-making. Do these duties prevent …

California’S Ban On Cruel Or Unusual Punishment: A State Constitutional Analysis Of Anti-Camping Ordinances, Anna R. Janson

Connecticut Law Review

In Martin v. City of Boise, the United States Court of Appeals for the Ninth Circuit relied on the Cruel and Unusual Punishment Clause of the Eighth Amendment to rule that a class of involuntarily unhoused individuals may not be criminally punished for sleeping on public property in the absence of “sufficient alternatives” for all unhoused people. In Johnson v. City of Grants Pass, the Ninth Circuit elaborated that civil schemes which lead to criminal punishment are unconstitutional as well. However, the United States Supreme Court granted certiorari in the latter case and disrupted both Ninth Circuit decisions. The Court …

Initiating Remedies For Our Unconstitutional And Unlawful Residential Segregation, Richard Rothstein

Connecticut Law Review

In 1866, Congress passed a Civil Rights Act outlawing burdens on freed slaves not also imposed on free whites, reasoning that racial discrimination—both public and private—undermined effective emancipation. However, subsequent Supreme Court jurisprudence did not honor or uphold this law and its progeny. Had it done so, the hard-fought promise of equality would not have been broken, the America we know today would not be so racially segregated, and the “badges and incidents” of slavery could have been timely eliminated.

The racial segregation of America’s neighborhoods is not, as was long thought, merely the result of private activities such as …

Evicted By Default, Nicole G. Summers, Justin Steil

Connecticut Law Review

The prevalence of default judgments in eviction cases affects housing stability and raises concerns about access to procedural justice for tenants. There is substantial variation across states in the rules governing default judgments that may contribute to variation in the frequency of eviction cases ending in defaults. In this Article, we first construct an original dataset of eviction case data from one jurisdiction and analyze that quantitatively, assessing the share of eviction cases that experience a default, the share of cases that are cured, and the correlates of cases ending in default judgment. Second, we review the state of the …

The New Reliability Override, Benjamin Rolsma

Connecticut Law Review

Section 202(c) of the Federal Power Act grants the Secretary of Energy a sweeping authority to exempt electric generation and transmission facilities from any federal, state, or local environmental laws. When Congress first adopted § 202(c) in 1935, it designed the provision as an emergency power that federal regulators could use to force fractious utilities to work together to preserve electricity reliability in times of war or natural disaster. But in the last decade things changed.

This Article, drawing on a novel catalog of all § 202(c) emergencies from the provision’s nearly ninety-year history, is the first to comprehensively describe …

Butterfly Effects: Women And Criminal Law, Pavithra Rajendran

Washington International Law Journal

Through a comparative analysis of the criminal laws of Sri Lanka and the United States, this paper examines how Sri Lanka’s legal framework on sexual offenses often hinders women’s access to justice and reinforces systemic gender discrimination. Recognizing the structural constraints inherited from older common law traditions, it underscores the potential for reform through targeted, gradual changes, drawing on developments in modern common law in the United States and relevant international legal standards. The discussion unfolds in three parts: first, a feminist critique of exiting criminal laws in postcolonial; common law systems such as Sri Lanka’s; second, a comparative analysis …

Taiwan: Legal Status, Legitimacy, And Lawfare, Monica Glenzer

Washington International Law Journal

This paper seeks to offer a fresh perspective into the Chinese Communist Party’s (“CCP”) implementation of lawfare to assert dominance over Taiwan. Rather than viewing lawfare as one doctrine with one outcome, this paper aims to reorganize lawfare in its many uses, identifying the three primary categories that the CCP uses to extend its sovereignty over Taiwan: (1) using law to legitimize a nation’s own goals, (2) using law to delegitimize an adversary’s actions, and (3) weaponizing an adversary’s laws. This paper seeks to analyze and recharacterize current and historical events in terms of these three lawfare categories, demonstrating how …

China's Experiment Of Dual-Class Equity Structures: Regulatory Frameworks And Investor Protection, Sang Yop Kang, Terry Ling

Washington International Law Journal

Mainland China traditionally upheld the one-share-one-vote (OSOV) principle. Since 2019, however, Chinese authorities have introduced the dual-class equity structure (DCES) for innovative enterprises. Due to investor-protection concerns, China’s DCES operates on a “stringent approval system,” with only eight corporations listed under DCES as of December 31, 2024. This Article provides a comprehensive policy analysis of the Chinese DCES system, including empirical analyses of the eight existing cases. It explores legal and economic aspects of investor protection within China’s DCES, examining “three sets of investor safeguard measures”: (1) “three numerically specified rules” (e.g., 10% equity rule, 10-time voting-right rule, and 2/3 …

Justifying The Law Of Unjust Enrichment: A Confucian Perspective, Siyi Lin

Washington International Law Journal

In a wide range of situations, the law in different jurisdictions requires that a person who has been unjustly enriched at another’s expense make restitution to the other. However, what justifies the liability for unjust enrichment? This fundamental question has perplexed unjust enrichment scholars, especially in the common law world, for decades, with various justificatory ideas being proposed while no consensus has been reached. This article explores the justification of the law of unjust enrichment within the context of China’s historical, legal, and social frameworks for the first time. A historical review reveals that the notion of unjust enrichment has …