5033 research outputs found
Sort by
Motion for Leave and Brief of Amici Curiae 1129 Law Students and 51 Law Student Organizations in Support of Plaintiff\u27s Motion for Summary Judgment
Get PDFAmici are 1129 law students and 51 law student organizations from law schools across the United States. They are diverse geographically, economically, socially, and politically. They study law for different reasons. They will go on to represent a wide range of clients and causes. Yet amici are united in one fundamental respect. They have dedicated themselves to the idea that we are a society governed by laws, not by raw power. They recognize that the executive order attacks their chosen profession. It attacks the values that cause law practice to be meaningful in American life. Amici ask this Court to protect the legal profession they are preparing to join and the core values that the profession serves
Signaling Through National Security Lawmaking
Get PDFAn often-overlooked element of the ongoing TikTok saga is China’s export control law, which prohibits the sale of TikTok’s core content recommendation algorithm without prior approval from the Chinese government. This law is just one example of the extensive national security lawmaking China has undertaken in recent years. Closely paralleling similar institutions in the U.S., China has established a comprehensive national security legal framework that authorizes the government to restrict exports, sanction foreign entities, screen foreign investments, and block transactions involving cyber infrastructure.
Why turn towards legality when China has the ability to employ these actions without a formal legal apparatus? Drawing on interviews, this article argues that lawmaking serves a signaling function. By formalizing national security-related actions within a legal framework, the Chinese government signals its resolve to take systematic countermeasures against economic restrictions on Chinese entities, while mitigating the associated economic costs, a particularly pressing concern given the current economic challenges China faces.
Understanding China’s use of national security lawmaking as a signaling mechanism carries significant implications. The threat of deploying these legal tools enhances the Chinese government’s bargaining leverage in bilateral negotiations, pressures market participants to limit compliance with U.S. economic restrictions, and resonates with domestic nationalist sentiment. However, if the lawmaking fails to achieve its deterrent effect, China is likely to follow through on its threats to maintain credibility, potentially accelerating U.S.-China decoupling, disintegrating global supply chains away from China, and shifting the international economic order toward economic nationalism
Decriminalization Matters: LGBTQ Transnational Litigation Networks and Movement Lawyering in the Global South
Get PDFIn the last decade, a distinct sociolegal phenomenon has been sweeping across the Global South—the judicial decriminalization of same-sex sexual conduct. On the other hand, progress on LGBTQ rights has occurred in parallel to transnational countermobilization and backlash against LGBTQ rights. Yet, neither the phenomenon of judicial decriminalization nor the countermobilization and backlash to decriminalization has attracted the attention that these phenomena deserve from doctrinal legal scholars, comparative and international law scholars, or legal mobilization scholars.
In this paper, I help to remedy this oversight by making three contributions to legal mobilization scholarship and to international law and relations scholarship. First, I demonstrate that at the heart of decriminalization legal mobilization in the Global South is a transnational advocacy network whose goal is to promote and to assist decriminalization of consensual same-sex sexual conduct through litigation—a transnational litigation network.
Second, I discuss two normative critiques of human rights advocacy applicable to transnational litigation networks. The first critique, “human rights imperialism,” posits that Global North states and actors situated therein seek to impose the human rights regime upon the states and populations of the Global South. Consequently, as I describe in the Article, state actors and religious officials are able to invoke an anti-colonial discourse when resisting decriminalization efforts. The second critique, “human rights elitism,” alleges that shifting political contestation to the courts risks marginalizing already marginalized groups that constitute the grassroots of most social movements. Legal mobilization prompted by transnational decriminalization litigation network actors in the Global North is vulnerable to both critiques. Yet, decriminalization is too important an issue to cede the ground entirely to the so-called “traditionalists” or to eschew litigation altogether.
In response to the critiques of human rights imperialism and human rights elitism, the third contribution I make in this paper is to prescribe a set of ethical lawyering approaches for transnational decriminalization litigation network actors to adopt—which I term transnational movement lawyering. Transnational decriminalization litigation network actors must use their financial and knowledge resources to support—rather than to direct, to overshadow, or to supplant—local actors and their goals and strategies. Ultimately, transnational movement lawyering might even mean not litigating in some cases.
This framework has broad implications. In the twenty-first century, human rights litigation is central to domestic and transnational politics. If activists are to spread human rights norms globally, they must take seriously the critiques of the human rights regime and of litigation as a social change strategy
The Impact of Foreign Investors\u27 Challenges to Domestic Regulations
Get PDFWe examine how foreign investors’ ability to challenge allegedly harmful host-country regulations before an international arbitral tribunal through investor-state dispute settlement (ISDS) affects regulatory policymaking and the value of foreign direct investment. Consistent with ISDS deterring costly host-country regulations, following an ISDS challenge of an industry-level regulation, the equity values of firms in the affected industry increase significantly. Domestic firms without ready access to ISDS also experience higher equity values, suggesting that our results are not driven by expectations of future damage awards. The results are concentrated in developed countries, where stronger legal institutions likely bind governments to their previous commitments to foreign investors. Additionally, capital expenditures by foreign firms in the host country fall before a case is filed and then increase significantly afterward. Taken together, our evidence suggests that ISDS deters domestic regulatory interventions that decrease the profitability of existing foreign direct investments in the host country
Against Monetary Primacy
Get PDFTo reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has remained unchallenged by either political party and largely ignored by legal scholars.
This Article exposes monetary primacy’s incoherence and proposes an alternative framework that relegates interest rate hikes to a supporting role in the fight against inflation. Governments possess other policy tools for controlling inflation that are better situated to lead. Examples include supply-side reforms to sectors facing bottlenecks, tighter fiscal policy, and more vigilant antitrust and consumer law enforcement. Between 2021 and 2023, the United States deployed many of these tools, albeit not necessarily motivated by inflation concerns. And while the Fed has received much attention for lowering inflation during this period, it likely had limited impact. Thus, our framework has descriptive power for the astonishing recent success in moderating excess inflation without causing a recession. That reality has, however, been missed—increasing the chances that the Fed keeps rates too high as the economy slows.
Instead of monetary primacy, the Fed should set interest rates at a level that is best for long-term employment and price stability, known as the “natural” rate of interest. If inflation remains too high when interest rates equal the natural rate, then the Fed, the Executive Branch, and Congress should compare the sacrifice associated with raising interest rates above their natural rate to the alternative policy tools and choose the least costly option. We assert that, in many but not all cases, the preferred option will not be elevated interest rates, and we propose reforms to enable other institutions to respond effectively to inflation alongside the Fed. This proposal would shift U.S. policy from monetary primacy to macroeconomic pluralism, which means leveraging an array of economically beneficial (or at least less harmful) tools. In both the short term and the long term, moving away from monetary primacy will help increase the chances of conquering inflation, avoiding a recession, and expanding economic opportunity
Benchmarking Age-Gates
Get PDFThis article examines how legal actors—particularly legislators, judges, and attorneys—invoke chronological age to justify the application of legal rules to adolescents. In doing so, they often rely on comparisons to existing “age-gates,” treating these thresholds (such as ages 18 or 21) as self-justifying reference points. Age 18, marking the legal transition from childhood to adulthood, and age 21, the former age of majority and current sales age for certain controlled substances, serve as especially powerful rhetorical anchors in age-based legal reasoning. These anchor points shape how legal actors advocate for or against particular age thresholds, often substituting analogy for substantive justification. This article argues that the rhetorical force of anchor age-gates is difficult to avoid, and therefore age-gates in one area are likely to influence decisions about other age-gates in other areas. Legal actors should recognize the influence of benchmarking arguments and cannot avoid responsibility for the risk that their advocacy in one context will be misused in another. At the same time, legal actors should resist treating age-gates as inherently dispositive. Instead, decision-makers should supplement age-based comparisons with principled reasoning grounded in the purposes and effects of the legal rule at issue. The article concludes by exploring the status-transforming quality of legal marriage and its implications for determining the appropriate age of legal consent to marry
A New Legal Standard for Medical Malpractice
No full textImportance Patients in the US have persistent needs for safe, evidence-based care. Physicians in the US report fear of liability risk and the need to practice “defensive medicine.” In 2024, the American Law Institute revised the legal standard for assessing medical negligence. Understanding the implications of this change is crucial for balancing patient safety, physician autonomy, and the legal system’s role in health care.
Observations The updated standard from the American Law Institute shifts away from the traditional reliance on customary practice toward a more patient-centered concept of reasonable medical care. Although this revised standard still includes elements of prevailing medical practice, it defines reasonable care as the skill and knowledge regarded as competent among similar medical clinicians under comparable circumstances and acknowledges that, in some cases, juries can override customary practices if they fall short of contemporary standards. The restatement also embraces evidence-based practice guidelines, while leaving questions open about the variations in the quality of those guidelines. The restatement makes additional recommendations regarding informed consent and other aspects of physician-patient communication.
Conclusions and Relevance The new standard of care from the American Law Institute represents a shift away from strict reliance on medical custom and invites courts to incorporate evidence-based medicine into malpractice law. Although states may adopt the recommendations from the American Law Institute at different times and to varying degrees, the restatement offers health professionals and the organizations in which they practice an opportunity to reconsider how medical negligence will be assessed, and to focus more directly on promoting patient safety and improving care delivery. Nonetheless, physicians should recognize that, at least for now, many courts will continue to rely significantly on prevailing practice in assessing medical liability
How Theories of Art Can Inform Debates About AI
Get PDFDebates about artificial intelligence (AI) tend to swing between the optimistic and the apocalyptic. I propose a less binary approach that frames conversations about AI from the perspectives of theories of art and creativity. Whether we agree that AI is artificial or intelligent, whether it should be constrained or liberated, we cannot deny its influence on literary, artistic, and innovative production. AI may be described as simply a new tool to produce art and science, like the camera or the microscope, or it may transform art and science, the way the internet transformed global communication. Either way, these debates about AI concern its relationship to treasured human activity, and thus, this Essay asserts, they have something to learn from philosophies of art and aesthetics. Copyright law may be the most obvious legal regime to address some of AI’s effects on creative practices, but copyright cannot and should not solve the problems AI raises for artists and authors. Better automation (improved technology) or more precise laws (targeting harms) inadequately address the problems generative-AI pose. Instead, art history and aesthetic theory – and its attention to literature, painting, poetry, music or any other art form (or “artifice”) – provide better frameworks for thinking about the challenges and opportunities of generative-AI because of their focus on struggles over our common humanity
Copyright Law and Property Law
No full textProperty is at the core of state law since it is the exclusive power of the individual state governments to define and protect property rights within their jurisdiction. In this paper I will discuss the general connection between copyright and property generally. I will argue that property law sheds important light on copyright law and can help us cut through modern controversies in copyright law. If I am correct in this view, any judge sufficiently familiar with property law doctrines could do better than the Supreme Court of the United States in resolving a new copyright controversy. Specifically, property law can be usefully applied to resolve fair use disputes. Of course, property law alone is not enough to resolve these problems. Courts will also have to determine what constitutes an “invasion” or an “interference” with a copyright. These are matters that turn toward economics
Readers are Authors, Especially in the AI Age
No full textIn this essay, Abraham Drassinower updates the argument in his 2015 book What’s Wrong With Copying (Harvard University Press) with an elaboration of the nature of copyright’s public domain: it is a domain of unauthorized yet lawful copying. As in his book, Drassinower explains that the public domain is not properly understood as a problem of balancing between copyright’s public benefits and private rewards. Instead, he understands the public domain as part of authorship and thus inseparable from copyright’s construction