Law Commons^™

The Liminality Of Transactional Relationships, Victoria J. Haneman

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Tax Talk And Taxing Sugar Babies, Blaine G. Saito

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Clinicians In The Loop Of Medical Ai, W. Nicholson Price Ii

Emory Law Journal

As medical AI begins to mature as a health-care tool, the task of governance grows increasingly important. Ensuring that medical AI works, works where it’s used, and works for the patient in the moment is a challenging, multifaceted task. Some of this governance can be centralized—in review by FDA or by national accreditation labs, for instance. Some must be local, performed by the hospital or health system about to use the product in their own, unique environment. But a large amount of governance is left to the individual provider in the room, the human in the loop who presumably knows …

Children And Chairs, Artifacts And Reality, Adam J. Macleod

Scholarly Articles

Where do children come from? The source of childhood—either nature or political will—is a matter not merely of chronology but of authority. Whoever makes children gets to define childhood. Legal childhood is one type of legal personhood. Legal personhood matters because legal persons bear legal rights and duties. Rights and duties direct how we act toward each other. Thus, our ideas about how persons come to be, who counts as a person, and how persons are defined in law determine in large part how we act toward persons, both other persons and ourselves.

A legal person is an artifact of …

The Great Writ Of Popular Sovereignty, William M.M. Kamin

Scholarly Articles

American habeas corpus, long conventionally known as the Great Writ of Liberty, is more properly understood as the Great Writ of Popular Sovereignty—a tool for We the People to insist that when our agents in government exercise our delegated penal powers, they remain faithful to our sovereign will. Once we grasp this conceptual shift, the implications for the law of habeas are profound.

In the past fifteen years, novel archival research has shown the Great Writ of Liberty’s founding myth to be ahistorical—that ideas about sovereignty, rather than individual liberty, drove the common-law writ’s development in the centuries of English …

“Declaring Law”: A Pragmatic Analysis Of Law As Communication And Implications For The Hart-Fuller Debate, A.G. Harmon

Scholarly Articles

The year 2024 is the sixtieth anniversary of a seminal work in American jurisprudence, itself the consequence of the one of the most important debates in legal philosophy, the Hart-Fuller Debate conducted in 1958’s Harvard Law Review.

Legal philosopher Lon Fuller famously and controversially posited eight “legal principles” as constitutive of a “morality of law” (The Morality of Law, Yale University Press). Legal positivists stridently objected to Fuller’s theory, notably philosopher H.L.A. Hart. They rejected the idea that such things indicated a “moral” dimension to the law. The debate continued for many years, lately with many legal scholars reclaiming the …

Function Over Form: Toward A Safe Harbor Framework For Defi Regulation Of Utility Tokens, Seth C. Oranburg

Scholarly Articles

DeFi tokens perform distinct economic roles. These include governance, collateral, stability, and utility access. Existing securities doctrine often misclassifies non-investment tokens as securities. This error deters development of utility tokens that power decentralized applications.

This Article develops a function-based framework. As a first application, it proposes a narrow statutory safe harbor for utility tokens. Eligibility depends on three safeguards. First, technical resilience, supported by independent security audits and incident-response protocols. Second, accountable control, with defined upgrade authority and defined obligations for keyholders. Third, calibrated oversight, with consumer protection and operational requirements for access tokens, not investor protection regimes for capital …

The Human Dimension Of “Home”, Robert A. Destro

Scholarly Articles

All societies provide a legal framework that protects the pivotal functions of home and family. None provide a clear legal definition of “home”. Nor, this article argues, can they. “Home” is a concept rooted in the lived experience of human persons. In this article, the second in a series, the author employs the “human dimension” [HDIM] concept, initially developed by the U.S. military and later adopted by the Organization for Security and Cooperation in Europe, as the lens through which one can examine the “human element” of human rights. The framework for this analysis is the “four clusters of value-types” …

Public Right And Humane Punishment, Adam J. Macleod

Scholarly Articles

Retribution is the strategic lynchpin for securing justice and the presumption of innocence. It is the justification that takes the criminal defendant to be a human being rather than a mere instrument of social engineering and political control. By contrast, modern, results-oriented theories of punishment—deterrence, incapacitation, and rehabilitation—have made our institutions of criminal justice less humane in important ways. Gerard Bradley’s contemporary, detailed account of the old idea of retribution can be cashed out in legal doctrines that secure the presumption of innocence and limit the corrosive effects of strict-liability offenses. This new articulation of an old juristic concept provides …

Vessel Charters In Sea And Space, Adam J. Macleod

Scholarly Articles

When the ship MV Dali allided with the Francis Scott Key Bridge in Baltimore Harbor in March 2024, it caused the bridge to collapse. This collapse killed six people, destroyed a major highway in a large city, and closed one of America's busiest ports. Officials must determine who is responsible. Though the formal investigation is still ongoing, officials will likely identify the responsible parties using long-settled rules about the possession, command, and control of vessels engaged in maritime activities. Not all cases are as straight-forward. Around the world, it is getting more difficult to assign legal responsibility for illegal and …

Constitutional Theory And The Problem Of Disagreement, J. Joel Alicea

Scholarly Articles

For decades, constitutional theory has been haunted by the problem of disagreement: the reality that we are deeply divided on fundamental questions of justice and the good society. Theorists have generally responded to the problem of disagreement in one of two ways. One approach minimizes the extent to which constitutional theories rely on controversial moral premises and instead grounds constitutional theories in widely endorsed social practices. The other generally discards any social practices that reflect disagreement with the controversial moral views that the theorist holds.

Neither approach is sound. Constitutional theory requires both controversial moral claims and attention to social …

The Natural Law Moment In Constitutional Theory, J. Joel Alicea

Scholarly Articles

Something new is happening in American constitutional theory. Never before have so many legal scholars sought to ground constitutional theory in the natural-law tradition. Indeed, we can truly say that we are living through a natural-law moment in constitutional theory, a period of unprecedented interest in natural law among constitutional theorists. This immediately calls to mind three questions. First: how, if at all, are the theorists of this moment different from prior theorists who sought to ground constitutional theory in natural law? Second: what explains the rise of natural law in American constitutional theory? Third: what are the implications for …

Originalism And Truth-Telling: A Reply To Stephen Sachs, J. Joel Alicea

Scholarly Articles

Sachs focuses on my claim that a theory of constitutional adjudication needs to make a moral argument that justifies telling judges why they ought to decide constitutional disputes in a particular way rather than in some other way. Why be an originalist, for example, rather than a common-law constitutionalist? In answering that question, a theory of constitutional adjudication cannot depend exclusively on a positivist, descriptive account of what the law is—even if Sachs correctly identifies originalism as the law— because knowing that originalism is the “law” (in a positivist sense of “law”) does not tell us why anyone ought to …

The Failed Experiment Of §230 Of The Communications Decency Act: How It Facilitates Exploitation And How It Must Be Reformed, Mary Graw Leary

Scholarly Articles

Two truths coexist: The Internet has brought with it tremendous changes for learning, connection, and business; and the Internet and other digital platforms have led to an unprecedented exploitation of children on a scale never before imagined. This is due in large part to §230 of the Communications Decency Act – the law which tech platforms have perverted to immunize them from liability for their activity which causes extreme harm. This duality has led to a current vigorous debate about whether this 1996 law has any value in the 21st Century.

This article answers that question with a resounding no, …

Thinking Outside The Box With Ai: Adapting 20th Century Labor And Employment Law To 21st Century Algorithms That Select, Monitor, And Control Employees, Roger C. Hartley

Scholarly Articles

A transformative era is unfolding in the rapidly changing world of work. Increasingly, to a hitherto unimaginable degree, employers are able to deploy predictive analytics—artificial intelligence (AI)—that processes data about workers and their behaviors to identify patterns and make algorithmic predictions. There is a widely-held view among labor practitioners, scholars, and non- specialists that our current labor and employment regulatory scheme is insufficient to address many, perhaps most, of the workplace issues that workplace AI systems create. The thesis of this article is that skepticism is largely unfounded as it seriously underestimates the capacity of currently enacted federal labor and …

Charitable Giving And Civil Rights: A Defense Of Private Remedial Action, Roger Colinvaux

Scholarly Articles

Private charitable organizations have long enjoyed the freedom to determine their mission and render appropriate charitable assistance, including by taking race, ethnicity, gender, and other traits into account when responding to the harmful effects of past discrimination, a practice this Feature terms “private remedial action.” The legality of this kind of trait-conscious assistance is strongly supported by the early American history of trait-based associations, federal tax law, and core values of free association. However, new legal and political attacks on affirmative action of all types have put charities on the defensive, leading many groups to change their programs and behavior …

Masthead, Volume 49 (2025)

Canada-United States Law Journal

No abstract provided.

Introduction And Welcome, Canada-United States Law Journal

Canada-United States Law Journal

No abstract provided.

Approaches To Advancing Human Rights, Carina Van Vliet, Avidan Cover, Sara Ghebremusse, Brian Gran

Canada-United States Law Journal

A panel discussion on approaches (or lack thereof) by the United States and Canada to advance human rights. Also, whether or not human rights produce wellbeing.

True North, Strong And Free (From American Influence): The Case Against Defunding The Canadian Broadcasting Corporation, Tyler Rogerson

Canada-United States Law Journal

Since becoming the leader of the Conservative Party of Canada, Pierre Poilievre has campaigned on defunding Canada’s English-language national broadcaster, the Canadian Broadcasting Corporation (CBC). In the opinion of Mr. Poilievre, Canadian tax dollars would be put to better use if the Canadian government ceased subsidizing the CBC and encouraged private broadcasters to fill the cultural and entertainment void left in its wake. Mr. Poilievre’s campaign promise to defund the CBC comes at an interesting time in Canadian politics. With the resignation of Justin Trudeau, an imminent federal election, and the 51st State rhetoric echoing from the White House, Canadians …

Indigenous Reconciliation And Development, Diane Francis, Wenona T. Singel, Wayne Garnons-Williams

Canada-United States Law Journal

A panel discussion on efforts to provide reconciliation and developmental opportunities to indigenous people, especially in Canada and the United States.

From Free Trade To Strategic Constraints: U.S.-Led Sanctionsand Export Controls Against Russia And China, Dr. Miguel Angel Marmolejo Cervantes, Lisa Reilly Solis

Canada-United States Law Journal

This article examines the evolving role of sanctions and export controls led by the United States (U.S.) in shaping global trade dynamics, particularly in response to Russia’s invasion of Ukraine and China’s technological and military advancements. The U.S. has expanded its use of extraterritorial export control measures, particularly the Foreign Direct Product Rules, to regulate the global flow of strategic commodities, technology, and software. The study explores the extensive sanctions and export control regimes imposed on Russia following its 2022 invasion of Ukraine, including restrictions on energy, finance, and military-related technologies. The article also evaluates Canada’s parallel regulatory framework and …

Fireside Chat: Ai In Canada And The United States, Mark Schaan, Elham Tabassi, Christopher Sands

Canada-United States Law Journal

No abstract provided.

Climate Change And Human Rights, Jean-Francois Hould, Sonya Savage, Kristy Balsanek, Victor Flatt

Canada-United States Law Journal

A panel discussion on addressing climate change and human rights in Canada and the United States.

Decolonial Constitutionalism, Richard Albert

Chicago Journal of International Law

The American Declaration of Independence kindled the first successful decolonial movement in the modern world, culminating in the enactment of the United States Constitution. From colony to sovereign state to great power, the United States modeled for subordinated peoples abroad how to win their own battles for sovereignty. Since the end of the Second World War, however, America’s eighteenth-century precedent of revolutionary self-determination is no longer the prevailing path to decolonization. The traditional warmaking toolkit for winning independence—revolution, illegality, and violence—has been replaced by more orderly tactics consonant with the rule of law. Evolution, lawfulness, and continuity are the touchstones …

Survival Of The Fittest? Ai And Its Different Regulatory Models, Miklós Király

Emory International Law Review

Prof. Peter Hay is a regular visitor to Budapest, Hungary. He gives excellent lectures on conflict of laws, with a particular focus on the nuances of jurisdiction. At the same time, many of us are avid readers of his German textbook US-Amerikanisches Recht. This textbook provides an overview of US law, from legal history to constitutional law and administrative law or criminal law. His interest and work which spans legal disciplines and legal systems, encourages me to welcome him with a paper on comparative law than a study of private international law.

This paper provides an overview of the broad …

Public Policy’S Dual Function In Conflicts Law, Hossein Fazilatfar

Emory International Law Review

Public policy displays in conflicts law in various forms. It plays both a preventive and an offensive role. In its defensive form it may be used to refuse recognition of a foreign judgement or an arbitral award which violate forum’s public policy. It may also block the law chosen by the parties or any law otherwise applicable to the transaction for public policy violations. Simultaneously public policy provides for the direct application of its offensive function known as mandatory laws which will replace the law chosen by the parties or the law determined through any conflict analysis. This Article illustrates …

Peter Hay: An Academic Life In Full, Hans-Eric Rasmussen-Bonne

Emory International Law Review

No abstract provided.

Precautionary Measures And The Risk Of Escalation In The Use Of Nuclear Weapons, Jeffrey Biller

Emory International Law Review

The use of nuclear weapons presents an unparalleled risk of escalation, a reality that has become increasingly pressing due to recent geopolitical developments, particularly Russia’s revised nuclear doctrine and its ongoing conflict with Ukraine. While the legal frameworks governing armed conflict, particularly International Humanitarian Law (IHL), do not traditionally require an analysis of escalation risk before an attack, this article argues that the extreme and immediate consequences of nuclear escalation necessitate its inclusion within the precautionary measures framework.

This article first examines the concept of nuclear escalation, identifying both intended and unintended risks associated with nuclear strikes. While nuclear deterrence …

Transcending Boundaries In The Age Of International Corporate And Financial Law, Maria Lucia Passador

Emory International Law Review

This article critically examines the dynamic interplay between European corporate law and international corporate law (ICL) against the backdrop of globalization and regulatory competition, offering insights into the former’s multifaceted influences and contributions to the evolving dynamics of the latter.

The paper begins by exploring the role of legal transplants and implants in comparative company law, addressing both their advantages and challenges. The article then turns to key features of ICL, with particular attention to the influence of U.S. law. Notably, the influence of U.S. law on ICL prompts an examination of EU corporate law’s role – whether it passively …