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ALL EYEZ ON RAP & HIP-HOP: ANALYZING HOW BLACK EXPRESSION IS CRIMINALIZED AND THE LANGUAGE OF THE RAP ACT OF 2022
Get PDFThe Black existence, in the United States of America, has always been regarded as a conditional right. Conventionally, Blackness must always be nonviolent and non-disruptive to safely exist. Because of this, Blackness cannot be confined to restraints and disrupts these conventions with acts of joy and creative expression. Black creativity is both unconventional and sacred. Black creative expression documents, preserves, and unifies cultural lived experiences, from a first-hand lens of those oppressed. Creative and artistic expression celebrates the myriad of stories that are a part of the collective Black experience. Yet, Black creative expression is now being weaponized by prosecutors against artists, despite once being employed by artists against societal injustice. Specifically, criminal prosecutors manipulate the context of Black creative expression and seek to admit it into evidence to exploit and penalize artists in a criminal proceeding. Thus, punishing artists for their cadence rather than their conduct. Rap music is not deleterious, it is a transformative musical account of an artist’s life and circumstances. Further, this practice imposes a dangerous burden on the criminal legal system to analyze questions of both fact and fiction. This Note will examine the corrupt practice of admitting rap lyrics into evidence against an artist in a criminal proceeding and its impact on rap artists and rap music. This Note will also deconstruct the language of the Restoring Artistic Protection Act of 2022 and offer an alternative critique of the proposed legislation. Ultimately, this Note will argue that rap music and hip-hop culture are innately creative, requiring an artistic interpretation of its content and protection within the criminal legal system. Rap songs are lyrical narratives, not criminal confessions
CONSTITUTIONAL RIGHTS OF ARTIFICIAL INTELLIGENCE
Get PDFOn February 8, 2022, the Italian Parliament approved constitutional amendments to protect the environment. A member of Parliament stated that the environment is an element of Italy, and that safeguarding the environment means safeguarding humans. The need to protect the environment seems to have become a critical component of public conscience. Likewise, if society perceives that artificial intelligence is vitally important for humanity, does constitutional law allow constitutional rights for artificial intelligence to be created?
Extending constitutional rights to artificial intelligence may be consistent with the jurisprudential history of rights. Constitutional rights have undergone metamorphosis over time to protect new subjects and create new rights. For example, in 1994, the United States Supreme Court extended free speech rights under the First Amendment to cable operators because they were new actors that emerged with the development of cable technology. Artificial intelligence is also a new actor that emerged with the advent of digital technology.
What could be the justifications for the constitutional protection of artificial intelligence? Both the decision of the Conseil Constitutionnel of France of June 18, 2020, and the opinion of the United States Supreme Court in Packingham v. North Carolina suggest a reasoning based on necessity. When certain artificial intelligence is indispensable for preventing the violation of existing constitutional rights, this need may provide a justification for protecting the existence of such artificial intelligence through constitutional rights. Attaining pleasures of benevolence under Jeremy Bentham’s philosophy could be another justification for conferring constitutional rights to artificial intelligence. This justification, however, invokes questions on what happiness of artificial intelligence might mean, prompting a reconsideration of the criterion of the utility calculus. Meanwhile, justifications for conferring constitutional free speech rights to artificial intelligence include the pursuit of truth and the facilitation of the technology’s characteristic activity that contributes to humanity
REMBRANDT’S MISSING PIECE: AI ART AND THE FALLACIES OF COPYRIGHT LAW
Get PDFThis article discusses contemporary problems related to Artificial Intelligence (AI), law and the visual arts. It suggests that the fallacies of copyright law are already visible in legal conundrums raised by AI in the creative sector. These include, for instance, the lack of uniformity in relation to creations’ copyrightability, the massive scale of copyright infringement affecting visual artists and the creative industry, and the difficulties in implementing media regulation and cyber-regulation. The deeply cherished ‘human authorship’ criterion that was sustained recently by a US Federal Appeals Court in Thaler, in particular, is a short-term solution to the legal challenges raised in the field of intellectual property law, vis-à-vis the rapid developments in AI systems. Further, the article discusses the limited linkages between IP law and human rights law (including the views of universal and regional human rights bodies), as well as the limited effect of companies’ regulation in resolving the problem of copyright infringement. This article therefore submits that alternative solutions should urgently be sought to address these legal challenges in different spheres of law, and most importantly, human rights law. An example is the incorporation in the copyright discourse of positive state obligations accompanying the rights of authors to benefit from their intellectual and artistic creations (article 15 of the ICESCR), in conjunction with due diligence obligations in relation to AI companies as non-state actors. This article therefore suggests that international human rights bodies should have a greater voice in the role of science and AI technologies around the world, including in relation to authors’ rights. It concludes that a human-rights based approach to IP rights could also increase responsible conduct by creators who use AI tools in their art, since the freedom of expression – and artistic freedom – protected by human rights law carries with it ‘duties and responsibilities’
Reynolds Revisited: The Original Meaning of Reynolds v. United States and Free Exercise after Fulton
Get PDFThis Article calls for a profound reevaluation of the stories that are being told today about the Supreme Court’s free exercise jurisprudence starting with the Court’s seminal 1879 decision in Reynolds v. United States and proceeding up to the present day. Scholars and judges today agree that the Supreme Court in Reynolds interpreted the Free Exercise Clause of the First Amendment to protect only religious belief and not religiously motivated action. All casebooks today embrace this interpretation of the case, and the Supreme Court has regularly endorsed it over the past twenty years, most recently in 2022. However, this Article shows that this reading of Reynolds appeared recently and is wrong. It shows, as well, that restoring the proper understanding of Reynolds could have profound consequences, both for our understanding of the history of American free exercise jurisprudence up until the Court’s notorious 1990 decision in Employment Division v. Smith and for our imagination as we think about directions in which free exercise jurisprudence could move in the future when, as is increasingly likely, Smith is overruled.The Justices who signed the Reynolds opinion understood themselves to be adopting a position very different from the one today ascribed to them. To them, the Clause protects not only belief, but also the natural right to act in accordance with the dictates of one’s religion, and it thus required judges to subject religiously neutral, generally applicable laws to a form of independent review to ensure that the government was not interfering with religious practice in a manner that those judges found to be objectively unreasonable. Adopted before the classic tiers of scrutiny analysis had emerged, it functioned in practice like what would be today a mild form of heightened scrutiny more demanding than rational basis but less demanding than strict scrutiny. For roughly a century thereafter, the Supreme Court appears consistently to have recognized that Reynolds had protected religiously motivated actions as well as beliefs, although they were unclear and occasionally inconsistent about the level of protection each should receive as the Court moved towards its contemporary tiers of scrutiny framework.Unfortunately, during the 1960s and 70s, academics began to misread Reynolds as a case holding that the Free Exercise Clause leaves religious action entirely unprotected. Inexplicably, this reading became orthodox, and in 1990, in Employment Division v. Smith, the Supreme Court imported this misreading into the Court’s jurisprudence, citing Reynolds as a reason to stop applying any form of heightened review to neutral, generally applicable laws which interfere with religious obligations. Restoring the original meaning of Reynolds and its progeny will help us reframe our understanding of the history of U.S. free exercise jurisprudence up until Smith, and it will provide a roadmap for the current Court as its Justices consider ways that they can overcome the deep divisions laid bare recently in Fulton v. City of Philadelphia—disagreements about whether to overrule Smith and, if so, about what standard of scrutiny to apply to laws interfering with a person’s religious obligations. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced. There would be a number of issues to work through if Smith were overruled...What forms of scrutiny should apply
Internet Drug Prohibition and the Opioid Overdose Crisis
Get PDFThe Ryan Haight Online Pharmacy Consumer Protection Act (Ryan Haight Act) prohibits controlled substance tele-prescribing when it occurs without a preliminary in-person medical evaluation. This Article details the Ryan Haight Act’s consequences for the practice of telemedicine in general and opioid addiction treatment in particular. In doing so, it builds on literature exploring the tension between the federal criminal regulation of controlled substance prescribing and the management of large-scale public health crises, particularly the opioid overdose crisis.
By restricting the tele-prescription of certain controlled substances used for opioid addiction treatment, the Ryan Haight Act limits access to care for a highly vulnerable patient population that surpasses six million people nationwide. This issue has persisted despite telemedicine proving to be as effective as in-person health care for this form of treatment.
Furthermore, U.S. telemedicine governance has evolved since the passage of the Ryan Haight Act, with several states adopting their own restrictions on controlled substance tele-prescribing. Using Medicare claims data and a dataset of state telemedicine policies, and leveraging the federal enforcement waiver of the in-person medical evaluation rule during the coronavirus (COVID-19) pandemic, this Article investigates state policymaking behavior and its health service implications. Forty-two states and the District of Columbia affirmatively liberalized controlled substance tele-prescribing during the COVID-19 pandemic, while eight states imposed their own in-person medical evaluation requirements. Patients in states with restrictions were twenty-two percent less likely to start opioid addiction treatment via telemedicine than patients in states without restrictions. Conceptually, these findings illuminate the contours and porosity of states’ autonomy in the regulation of medicine. Practically, these findings reveal that changes in federal controlled substance policy will be insufficient to maximize treatment access if they fail to account for state tele-prescribing restrictions.
Against this backdrop, this Article offers a blueprint for controlled substance law that seeks to improve access to opioid addiction treatment, and that accounts for the variation in postures that the federal and state governments have adopted toward controlled substance teleprescribing. It proposes legislative, regulatory, and judicial remedies that share a common purpose: shielding clinicians from law enforcement actions when tele-prescribing opioid addiction medications
From Credit Information to Credit Data Regulation: Building an Inclusive Sustainable Financial System in China
Get PDFA lack of information about potential borrowers is a major obstacle to access to financing from the traditional financial sector. To prevent fraud, increase access to finance, and support balanced sustainable development, countries aroun6d the world have moved over the past several decades to develop credit information reporting requirements and systems to improve the coverage and quality of credit information. Until recently, such requirements mainly covered banks. However, with the process of digital transformation in China and around the world, a range of new credit providers have emerged, in the context of financial technology (FinTech, TechFin, and BigTech). Application of advanced data and analytics technologies provides major opportunities for market participants–both traditional and otherwise–as well as for credit information agencies. By utilizing advanced technologies, these participants and credit reporting agencies can collect massive amounts of information from various online and other activities (‘Big Data’), which contributes to the analysis of borrowing behavior and improves the accuracy of creditworthiness assessments. Thereby, enhancing availability of finance and supporting growth and development while also moderating prudential, behavioral and conduct related concerns are at the heart of financial regulation.
Aligning with the international trend, China has developed a regulatory regime for credit information reporting and business over the past decades. However, this development has not come without its problems, even in the context of traditional banking and credit. With the rapid growth and development of FinTech, TechFin, and BigTech lenders, opportunities to leverage credit information and data, and challenges around its regulation have emerged. For example, due to fragmented sources of borrower information and the involvement of several actors, difficulties arise in clarifying the business scope of credit reporting and customer protection. Moreover, inadequate incentives for credit information and data sharing pose a challenge for regulators in promoting competition and innovation in the credit market.
Drawing upon the experiences of other jurisdictions, including the United States, United Kingdom, European Union, Singapore, and Hong Kong, this paper argues that China should establish a sophisticated licensing regime and set out differentiated requirements for credit reporting agencies in line with the scope and nature of their business, thus addressing potential for regulatory arbitrage. Further, this paper argues that China should formulate specific rules governing the provision of customer information to credit reporting agencies and resolving disputes arising from accuracy and completeness of credit data. An effective information and data sharing scheme should be enacted to help lenders make appropriate credit decisions and facilitate access to financing. The lessons from China’s experience hold key insights for other jurisdictions as they move from credit information to credit data regulation in their financial systems
