5033 research outputs found
Sort by
Abolishing Ius Sanguinis Citizenship: A Proposal Too Restrained and Too Radical
Get PDFCostica Dumbrava maintains that ius sanguinis citizenship is a historically tainted, outmoded, and unnecessary means of designating political membership. He argues that it is time to abandon it. Dumbrava limits his challenge to ius sanguinis citizenship per se, and even suggests that family-based migration rights could be used to minimise the disruptive effect of abolishing citizenship-by-descent. But his core complaints about ius sanguinis citizenship – the mismatch of biological parentage and political affinity, the difficulties of determining legal parentage – can be, and have been, levied against these various family-based preferences and statuses, which are likely found in every nation’s nationality laws. It is therefore important to consider his proposal in light of the role that the parent-child relationship plays in the regulation of migration, naturalisation, and citizenship more generally. I also argue that, as a remedy for the problems that he has identified, Dumbrava’s proposal is at once too restrained and too radical
Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court\u27s Use of Social Science
Get PDFIn McCleskey v. Kemp, the Supreme Court rendered statistical evidence of racial disparities doctrinally irrelevant to a criminal defendant’s equal protection claim. Fifteen years later in Grutter v. Bollinger, Chief Justice Rehnquist—part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School had unconstitutionally discriminated against White applicants. This facially inconsistent treatment of statistical data invites the following inquiry: Why do judges (including Supreme Court Justices) rely on social science in some cases, yet reject it in others? We suggest that one answer lies at the intersection of Critical Race Theory and empirical scholarship on motivated social cognition. This “eCRT” lens illuminates how ostensibly neutral biases and heuristics, when informed by socially salient racial stereotypes, will predictably and systematically lead judges to overvalue “evidence” that rationalizes existing racial disparities and legitimizes the status quo
Formative Projects, Formative Influences: Of Martha Albertson Fineman and Feminist, Liberal, and Vulnerable Subjects
Get PDFThis essay, contributed to a symposium on the work of Professor Martha Albertson Fineman, argues that Fineman is a truly generative and transformative scholar, spurring people to think in new ways about key terms like “dependency,” “autonomy,” and “vulnerability” and about basic institutions such as the family and the state. It also recounts Fineman’s role in creating spaces for the generation of scholarship by others. The essay traces critical shifts in Fineman’s scholarly concerns, such as from a theory of dependency to vulnerability theory and from a gender lens to a skepticism about a focus on identities and discrimination. In evaluating Fineman’s call to move beyond identities and antidiscrimination law, the essay explores the rhetoric of vulnerability in the briefs in the recent Masterpiece Cakeshop litigation. This essay also charts my own critical engagement with Fineman’s critique of liberalism and the liberal subject in my constructing a form of liberal feminist legal and political theory. The essay identifies parallel concerns about the role of the state and civil society, comparing a liberal feminist formative project of fostering capacity and vulnerability theory’s project of building resilience
Law Schools Should Make Students\u27 Borrowing Data Public, Include with Admissions Offers, Report Says
No full textRecent law grads have on average 96,054 in law school debt if they went to a public school, according to a new report from Law School Transparency. But the median entry-level salary for 2016 grads in full-time, long-term law jobs was just $66,499
Stays
Get PDFAfter judges issue orders or judgments, they often face the difficult task of making a determination even more complex than that of the underlying order, but in less time, with less guidance, and with high stakes. These judges are deciding whether to grant a stay pending appeal — whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Although stays may seem to be a mere procedural technicality, stays are, instead, the new battleground for injunctive litigation. While review was pending, stay determinations have decided if abortion providers could operate in Texas, if 300,000 registered voters in Wisconsin would be able to vote, if same-sex couples could marry, if a transgender teenager could use the boys’ restrooms at his high school, if the government could enforce an Executive Order banning certain Muslims from entering the country, and, arguably, decided who would be the forty-third U.S. President. Although the standard for stay determinations ostensibly includes four factors — the likelihood of success on appeal, the likelihood of irreparable harm pending appeal, the balance of the hardships, and the public interest — courts vary so widely regarding what constitutes each prong and the manner in which courts should weigh each prong, if at all, that there is more idiosyncrasy than standard. Compounding the absence of a uniform stays standard, courts frequently give no reasoning or opinion for stay determinations. With life- and potentially world-changing issues on the line pending appeal, stays are a nearly law-free zone. There has been no cohesive, principled, and practical basis for the standards or procedures that judges use to determine applications for stays pending appeal. This Article is the first in a series that attempts to fill that gap. The author argues that the purpose of a stay pending appeal is to protect a meaningful opportunity to appeal where guaranteed. The Article suggests different standards for stays turning on whether review is guaranteed or discretionary. The author also asserts that courts should write reasoned opinions for stay decisions
Technology Regulation by Default: Platforms, Privacy, and the CFPB
Get PDFIn the absence of a technology-focused regulator, diverse administrative agencies have been forced to develop regulatory models for governing their sphere of the data economy. These largely uncoordinated efforts offer a laboratory of regulatory experimentation on governance architecture. This symposium essay explores what the Consumer Financial Protection Bureau (CFPB) has done in its first several years to regulate financial technology (“fintech”), in the context of broader technology-related concerns identified in the literature. It begins with a survey of what the CFPB has undertaken using more traditional administrative agency tools—enforcement and rulemaking—in areas such as privacy, consumer control over data, and regulatory sandboxes. It then looks at how the CFPB has used technology to protect consumers, through Twitter and online advisory tools. The essay closes by considering open questions, including the possibility of the CFPB’s privacy activities extending its oversight of tech giants like Facebook and Amazon, and the extent to which the CFPB might exercise additional authority to inspect financial algorithms. More systematic study of the agency’s activities is needed, but the CFPB’s early experiences both provide examples that other agencies might follow and indicate the difficulty of relying on industry-specific regulators to govern the data economy, rather than an agency focused on technology
Quick Decisions in Patent Cases
Get PDFPatent litigation is notoriously expensive and time consuming. In the past decade, however, patent law has changed in many ways that expedite resolution of infringement disputes. This article identifies and evaluates this trend toward quick decisions in patent cases. Balancing the savings in litigation costs against the potential for error, the article defends many recent and controversial developments, including the Supreme Court’s invigoration of the patent eligible subject matter requirement, the new administrative proceedings created by the America Invents Act, and changes in the requirements for pleading patent infringement. These developments permit defendants to obtain rulings of invalidity or noninfringement before discovery begins, which was previously impossible. Pre-discovery rulings cost relatively little and can discourage nuisance litigation. But resolving complex questions of validity or infringement on a thin factual record increases the risk of error, so the article suggests additional reforms to help ensure that quick decisions are also accurate decisions
Twenty Years of Web Scraping and the Computer Fraud and Abuse Act
Get PDFWeb scraping is a ubiquitous technique for extracting data from the World Wide Web, done through a computer script that will send tailored queries to websites to retrieve specific pieces of content. The technique has proliferated under the ever-expanding shadow of the Computer Fraud and Abuse Act (CFAA), which, among other things, prohibits obtaining information from a computer by accessing the computer without authorization or exceeding one\u27s authorized access. Unsurprisingly, many litigants have now turned to the CFAA in attempt to police against unwanted web scraping. Yet despite the rise in both web scraping and lawsuits about web scraping, practical advice about the legality of web scraping is hard to come by, and rarely extends beyond a rough combination of try not to get caught and talk to a lawyer. Most often the legal status of scraping is characterized as something just shy of unknowable, or a matter entirely left to the whims of courts, plaintiffs, or prosecutors. Uncertainty does indeed exist in the caselaw, and may stem in part from how courts approach the act of web scraping on a technical level. In the way that courts describe the act of web scraping, they misstate some of the qualities of scraping to suggest that the technique is inherently more invasive or burdensome. The first goal of this piece is to clarify how web scrapers operate, and explain why one should not think of web scraping as being inherently more burdensome or invasive than humans browsing the web. The second goal of this piece is to more fully articulate how courts approach the all-important question of whether a web scraper accesses a website without authorization under the CFAA. I aim to suggest here that there is a fair amount of madness in the caselaw, but not without some method. Specifically, this piece breaks down the twenty years of web scraping litigation (and the sixty-one opinions that this litigation has generated) into four rough phases of thinking around the critical access question. The first runs through the first decade of scraping litigation, and is marked with cases that adopt an expansive interpretation of the CFAA, with the potential to extend to all scrapers so long as a website can point to some mechanism that signaled access was unauthorized. The second, starting in the late 2000s, was marked by a narrowing of the CFAA and a focus more on the code-based controls of scraping, a move that tended to benefit scrapers. In the third phase courts have receded back to a broad view of the CFAA, brought about by the development of a revocation theory of unauthorized access. And most recently, spurred in part by the same policy concerns that led courts to initially constrain the CFAA in the first place, courts have begun to rethink this result. The conclusion of this piece identifies the broader questions about the CFAA and web scraping that courts must contend with in order to bring more harmony and comprehension to this area of law. They include how to deal with conflicting instructions on authorization coming different channels on the same website, how the analysis should interact with existing technical protocols that regulate web scraping, including the Robots Exclusion Standard, and what other factors beyond the wishes of the website host should govern application of the CFAA to unwanted web scraping
The Problem Isn\u27t Just Backpage: Revising Section 230 Immunity
Get PDFBackpage is a classifieds hub that hosts “80 percent of the online advertising for illegal commercial sex in the United States.” This is not by happenstance but rather by design. Evidence suggests that the advertising hub selectively removed postings discouraging sex trafficking. The site also tailored its rules to protect the practice from detection, including allowing anonymized email and photographs stripped of metadata. Under the prevailing interpretation of 47 U.S.C. § 230 (“Section 230”) of the CDA, however, Backpage would be immune from liability connected to sex trafficking even though it proactively helped sex traffickers from getting caught. No matter that Backpage knew about the illegal activity and designed the site to ensure that the activity could continue without detection, Section 230 has come to its rescue. As courts have interpreted Section 230, Backpage has enjoyed broad immunity from liability arising from user-generated content. Dirty.com is a site devoted to spreading gossip, often about college students. The site’s founder, Nik Richie, has encouraged readers to email him “dirt” on people they know. Richie pastes his favorite emails in blog posts, often alongside images showing ordinary people “scantily clad, inebriated, and unfaithful.” Posts have led to a torrent of abuse, with commenters accusing the subjects of “dirt” of having sexually transmitted infections, psychiatric disorders, and financial problems. Richie has admittedly “ruined people sometimes out of fun.” That admission is not against interest—he knows well that he cannot be sued for his role in the abuse because the onus of the abuse is on the users. Courts applying Section 230’s immunity provision have dismissed efforts to hold Richie responsible for defamatory posts that have damaged lives and careers. Now consider the relationship between social media companies and terrorist groups. Last year, one of us (Wittes) undertook a survey of overseas groups that were formally designated as foreign terrorist groups yet still had active social media accounts. Federal law allows civil and criminal penalties for providing material support—including anything of value—to designated foreign terrorist groups. Yet numerous designated terrorist groups, including Hamas, Hezbollah, the PKK, and Lakshar-e-Taiba, openly maintained an online presence on well-known social media services, including Facebook and Twitter; several of those accounts were suspended after publication of the corresponding article. Yet because of Section 230’s immunity provision, efforts to hold social media companies responsible under the civil provisions of the federal material support statute have consistently failed. We offer the modest proposition that Section 230 immunity is too sweeping
The Emancipation and its Challenges in the South Carolina Sea Islands
No full texthttps://scholarship.law.bu.edu/clark_speakers/1019/thumbnail.jp