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Embodied Ecologies and Legal Wars: The Use of Force, Ukraine, and Feminist Perspectives on International Law
Full text linkIn this article, I examine the international law on the use of force alongside a feminist analysis of the ongoing Russian aggression in Ukraine. I draw on records of mushroom foraging to evidence how everyday practices of communities are destroyed by military aggression that disrupts the embodied ecologies reproduced in intergenerational human and nonhuman encounters. The mushrooms foraged in Ukraine, the mushrooms destroyed during military encounters, and the mushrooms growing beside land mines provide an aperture for shifting both feminist and international legal accounts of armed conflict. I argue that ecologies of harm produce means to understand the gendered violence in armed conflict prompting a shift beyond the status quo of international law and legal relations on the use of force and the preoccupation with justifications and authorisations for military force
Context Matters for Deep Knowledge: What Cognitive Science Can Teach Us About Legal Writing
Full text linkMany law school graduates are entering the workforce unable to write well. The legal field requires so much writing, yet law schools emphasize neither writing nor practical skills. We need not overhaul law school curricula to address the problem. Cognitive science teaches us that students internalize material when they understand the context. Without context, even the best planned lessons will remain only “shallow knowledge.” To create “deep knowledge,” we must provide context: students must know why they are writing. For example, a student asked to write a motion to dismiss the complaint has the best chance of success if they understand the story of how the parties arrived at that juncture and what lies ahead. Providing students with the story surrounding a writing assignment helps students internalize writing skills; it also imparts practical skills, leading eventually to better writers and more proficient junior lawyers
The Return of Boy Scouts of America v. Dale
Full text linkIn 2000, the Supreme Court’s decision in Boy Scouts of America v. Dale seemed to upend the law of freedom of association. Fears surfaced that the right of expressive association would be “an easy trump of any antidiscrimination law”—and perhaps other regulations of conduct. Organizations from schools to employers, social service providers to unions, could mount constitutional claims against the inclusion of individuals unwanted because of their sex, sexuality, race, disability, or beyond.
Instead, lower courts read Dale narrowly. Expressive associational rights would, it seemed, be bound by the facts of the case. Freedom of association would not override equality under the law.
The ground, however, is now shifting. This essay identifies a rapid and dramatic resurgence of expressive association claims. In a series of decisions, courts have begun to read Dale as broadly as commentators once feared. Indeed, they have gone further still, taking the right to expressive association far beyond its foundations in the membership of non-profit, non-commercial groups. Employers, commercial entities, and social service providers have notched recent wins on expressive association claims. Several decisions conclude that an employer becomes expressive simply by articulating a desire to discriminate. Others deny a state interest in requiring nondiscrimination in employment on the ground that dissenting employees can work elsewhere—a proposition that would dismantle all of labor and employment law.
The essay offers some tentative explanations of the recent successes of expressive association claims. It predicts that the Supreme Court’s compelled speech opinion in 303 Creative, LLC v. Elenis will further fuel expansion. The essay concludes with a call to scholars to pay attention to the lower courts, where doctrinal siloes no longer hold and the antiregulatory agenda of the conservative legal movement is fast developing
Second-Tier Marriages
Full text linkThis Essay interrogates the reasoning behind the retrenchment toward LGBTQ rights progress that has taken place since marriage equality. With marriage rights for same-sex couples now “on the books,” the Supreme Court’s treatment of same-sex couples in both Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n and 303 Creative LLC v. Elenis reveals the status quo’s hesitancy to recognize same-sex relationships on equal footing. Retrenchment, however, only describes the moment itself; it alludes to but offers no comprehensive or satisfying theory that identifies the motives behind the moves. This Essay theorizes from within the context of the Supreme Court’s LGBTQ rights advancement cases why such diminishment has occurred in Masterpiece and 303 Creative and what these recent decisions mean for sexual minorities.
Retrenchment is not an unexpected halt to the LGBTQ rights progress of the early 2010s because of some new grievance from the status quo; rather, retrenchment is part of the ongoing establishment’s maneuverings involving group rights and identities that have always been at play in our democratic commitments—particularly as a settler colonial state. Specifically, from a historical-political perspective, this Essay anchors Masterpiece and 303 Creative within our American settler colonial experience to explain the persistence of retrenchment. From this anchoring, the Court’s motivations in 303 Creative become clearer. Ultimately, the American settler colonial experience informs the Court’s normative vision of queer people and relationships post-Obergefell. As this Essay reveals, these post-Obergefell decisions that involve same-sex couples allow the Court to normatively envision same-sex relationships after marriage equality—putting an imprimatur on same-sex relationships as second-tier to opposite-sex relationships as a way to ultimately preserve or privilege a discriminatory, heteronormative status quo
Labor, Authorship, and Unionism in the Age of Artificial Intelligence
Full text linkThe rapid improvement of writing and art created by artificial intelligence (AI) is often discussed as either a revolution in productivity and efficiency, or a uniquely destructive tool that will render human creative labor obsolete. A significant barrier to either claim is that AI-generated works are fundamentally incompatible with copyright as expressed in the United States Constitution and the Copyright Act. It is not clear whether the process of training AI models on copyrighted works is consistent with copyright doctrine. Moreover, the notion of granting copyright protection to AI-generated works conflicts with the constitutional, philosophic, and economic rationales for copyright and intellectual property
The Persistent, Solvable Malady of Law Student Multimedia Multitasking
Full text linkIn today’s world of popular and enticing social media platforms that constantly lure the attention of students away from course work, many professors find it difficult to keep the attention of their students. There is good reason to be concerned. There are numerous studies from multiple countries at the undergraduate, graduate, and professional school level that find multimedia multitasking during the learning process is detrimental to knowledge retention and grades. This article summarizes many of these studies. More importantly, this paper significantly adds to the body of work on multimedia multitasking by providing anecdotal evidence of its negative effects on U.S. law school grades via a comparison of two years’ worth of survey results on multitasking to final grades in one of the author’s courses.
With the goal of providing ample tools for professors to use to combat multimedia multitasking, this article also reviews published solutions, reveals what specific tools worked at stemming multimedia multitasking in the author’s course, and, most significantly, presents a basic multimedia multitasking avoidance strategy that provides several tools from which to choose
Federalism: Analyses of Economic Effects of Domestic Violence on Interstate Commerce Under the U.S. Constitution
Full text linkThis work explains that there are instances where congressional intent may necessitate immediate or sporadic regulation of local or intrastate activities. However, when Congress does act or takes steps to regulate a necessary local or intrastate activity, it must do so only if it is constitutionally proper and when it does not lead to the unfettered accumulation of states’ plenary powers and does not violate the enumeration of constitutional powers. This work bifurcates the U.S. Supreme Court cases on the Commerce Clause into the formalist and realist approaches as provided under Article 1. Section 8, Clause 3 of the Constitution. It also explains the relevance of those two approaches and how they have affected the Court’s decision in the seminal case of United States v. Morrison. This work further amplifies the reasoning of the Supreme Court in Morrison—that it is more important for Congress to stay within its constitutionally enumerated powers when discharging its duties than overreaching its constitutional limits to regulate a noneconomic activity like domestic violence. Although it is factual that domestic violence affects interstate commerce, it should be regulated under a state’s police power and not under the Commerce Clause. This work reasons that, in some instances, where Congress’s regulation falls within the outer limits of its powers, congressional statutes will almost always face legal constraints and the possibility of being held unconstitutional by the Supreme Court, irrespective of any congressional intent. This paper explains that the Supreme Court did not give substantial weight to the actual congressional findings of the economic effects of domestic violence on interstate commerce in the case of Morrison. The Court emphasizes the values of constitutional enumeration of governmental powers to decide that Congress acted beyond its Commerce Clause limits to only regulate the channels, instrumentalities, people, and activities that have substantial economic effects on interstate commerce
A Step in the Right Direction: Artificial Intelligence Inventorship
Full text linkThe intersection of artificial intelligence (AI) and patent law has sparked debates regarding the inventorship status of AI-assisted creations. This article examines the USPTO’s 2024 “Inventorship Guidance for AI-Assisted Inventions,” which affirms that AI systems cannot be inventors, as only natural persons can conceive inventions under U.S. law. By emphasizing human contribution as essential for patent eligibility, the Guidance draws on existing principles reinforcing that AI systems are tools rather than inventors. This article argues that the Guidance is a step in the right direction balancing the need to encourage technological innovation while also aligning with statutory language and judicial precedents. Particular focus is given to the duty to disclose AI involvement, an area of growing significance as AI systems increasingly contribute to innovation. This article proposes enhanced disclosure standards to ensure transparency and accountability, along with incentive mechanisms for inventors and the USPTO. It further explores how this framework balances the promotion of human ingenuity with the growing reliance on AI during the inventive process. While the Guidance represents progress and provides an important foundation, this article identifies gaps in its application and concludes that further legal and regulatory developments will be necessary to address unresolved issues and fully integrate AI into the patent system
