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Deeply Rooted or Deeply Flawed? A Constitutional Criticism of Dobbs and Roe\u27s Potential Resurrection
Get PDFAbortion has been a divisive issue in this country for decades. Some believe that abortion should be illegal under any circumstance, others believe that abortion under certain circumstances should be legal, and still others believe that abortion should be legal in all circumstances. The issue of abortion was initially decided by the Court in 1973 under Roe v. Wade, where the Court devised a trimester approach
Walking the Talk: An Exploration of Pathways in Implementation of the 2013 Marrakesh Treaty - A Case Study of Uganda
Get PDFThe Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, is a WIPO administered treaty on copyright that was adopted in Marrakesh, Morocco, on 27thJune 2013. The year 2023 therefore marks 10 years since its adoption. It is therefore an ideal time to do some stock taking as to how effective the treaty has been, thus far, in creating avenues through which blind or visually impaired persons can have easier access to published works.
This article looks at the implementation of the Marrakesh Treaty specifically in Uganda where it was ratified and domesticated in 2018. The article explores the regulatory landscape in Uganda in matters related to access to education and the right to research for blind or visually impaired persons. In evaluating the relevant legislations in this area and the shortfalls therein, the article delves into other jurisdictions and analyzes how they have been able to navigate through the challenges affecting the right to research for blind and visually impaired persons. Lessons learnt from successfully maneuvering through such challenges are used to inform the direction that Uganda should take in the implementation of the Marrakesh treaty where similar challenges abide.
The article relies heavily upon interviews from various stakeholders to portray the extent to which Uganda is walking its talk in fulfilling its obligations as a Contracting State of the Marrakesh treaty. By synchronizing the views generated from the field research, together with secondary information from scholarly work, the article fronts proposals as to how Uganda can do much better in practicing what its legislation is preaching
No Harm No Foul?: The Remnants of Pure Consumer Harm in Monopsony Cases under the Sherman Act
Get PDFPart II of this Comment discusses the contested development of the consumer harm standard under the antitrust laws, the economic underpinnings of monopsonies as opposed to traditional monopolies, and the problems that courts have faced (or more frequently ignored) when deciding monopsony cases under the Sherman Act. Part III analyzes how courts that have abandoned a strict requirement of consumer harm are better able to conform with the true purpose of the Sherman Act. Part IV recommends that the U.S. Supreme Court must formally disavow the consumer harm standard in monopsony cases, or Congress must amend the Sherman Act to account for the fundamental differences between monopolies and monopsonies to better protect workers and small suppliers
Are Children\u27s Rights Enough?
Get PDFAre parental rights or children’s rights better for protecting children and vindicating their interests? In this ongoing debate, American family law scholars and advocates are deeply divided. Children’s rights proponents often criticize the United States for failing to ratify the Convention on the Rights of the Child and for denying children constitutional family rights. This critique of U.S. family law assumes that incorporating children’s rights would result in better outcomes for children. This Article challenges the assumption that children’s rights are enough to vindicate children’s interests. Instead, this Article identifies how current conceptions of children’s rights present structural barriers to full vindication of the child’s interests.
To illustrate how these structural barriers operate, this Article analyzes case law on custody and family separation from a jurisdiction that uses a strong children’s rights approach, the European Court of Human Rights. These cases provide a valuable comparator to test whether children’s rights framing changes how courts reason about children.
This Article contends that three major obstacles thwart the efficacy of a children’s rights framework. First, when children’s interests conflict with their parents, someone must decide whose interest will prevail. This conflict empowers states to intervene in families’ lives in ways that can undermine children’s wellbeing. Second, a children’s rights model must give children a voice in legal proceedings. However, rights litigation is traditionally the purview of adults, and children often lack standing to assert their own rights claims. Even when they do, young children lack the capacity to assert their interests in a way that is cognizable by a court. Finally, a children’s rights model must address the ways in which the state uses children as leverage to deter or compel their parents. To be effective rights-holders, children must be agents and not merely objects in the eyes of the law
Buck As (Anti) Canon: the Misuse of Eugenics Rhetoric in Selective-Abortion Jurisprudence and the Dangers for Tort Law
Get PDFAmerica’s notorious eugenics case Buck v. Bell is being resurrected as anticanon in abortion jurisprudence. Buck became one of the Court’s worst decisions by upholding eugenic practices, but these recent anticanonical citations also prove harmful by misidentifying eugenics. This Article joins critics of this misuse of “eugenics” labeling and warns that the rhetorical use of Buck in abortion cases has dangerous implications for reproductive medicine. It draws on Buck as the leading precedent for eugenics under the law and demonstrates that selective-abortion cases are distinguishable because of two failures of the Buck Court: the failure to recognize state interference with reproductive choices and a failure to engage with the underlying science. When judges misidentify eugenics today, they do so by recreating these same mistakes in their decisions. If these mistakes are ignored, the only remaining meaning of eugenics will be that some element of selection occurs after fertilization but before birth.
Defining eugenics as selection goes too far and implicates a host of other factual settings well-engrained in society and reproductive medicine. These medical procedures are already being met with mixed reception in tort law— despite having secured reception in medicine and society—and a eugenics label would feed courts’ rejection of these claims. Moreover, the reasoning underlying those courts’ rejection reflects the same two failures underlying Buck and the misapplication of the eugenics label in selective-abortion cases. Therefore, a better analysis of these two factors in each context, selective-abortions and torts, can lead to better resolutions in both cases.
This Article does not purport to take a normative stance on abortion, but it instead aims to relocate the debate surrounding selective abortions away from eugenics and into conversation with medical negligence through the courts’ own inclination to draw on Buck v. Bell. It concludes by looking to Dobbs and the opportunity that decision provides for judges to either reevaluate the rhetoric employed in reproduction law or continue the mistakes of the past
The Disability Docket
Get PDFThe monumental changes emanating from the contemporary Supreme Court have now generated abundant commentary—but it remains possible to glean new insights if we review the Court’s work from an alternative perspective, one that does not often inform mainstream accounts. Drawing on insights from Disability Legal Studies and other critical approaches to law, as well as from the trenches of disability advocacy and civil litigation, this Article applies a “disability lens” to the Supreme Court’s 2021 and 2022 Terms. Our review of the Court’s published decisions and broader docket suggests three themes. We highlight (1) the role of disability cases in the retrenchment of civil rights, (2) the vast and underappreciated effects that certain “non-disability” cases are likely to have on people with disabilities, and (3) the difficult choices that disability law litigators and advocates face when disability law cases end up before this Court. Throughout the Article, we suggest legal areas that would benefit from further examination through a “disability lens.
A Guide to Federal Agency Adjudication, Third Edition
No full textCompletely rewritten, this handbook reflects important developments in federal agency adjudication. Government and private counsel engaged in administrative adjudication will benefit from its expanded treatment of law and practice, and its new, in-depth discussion of organizational and management issues will prove invaluable for government policymakers, judges, researchers, advocates, and others.
Jeffrey Lubbers contributed three chapters to the ABA Guide to Federal Adjudication (3d ed. 2023):
Chapter 6 (Congressional Delegation of Adjudicative Authority),
Chapter 9 (Selection, Supervision and Oversight of Adjudicators), and
Chapter 15 (Constitutional and Statutory Foundations).https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1423/thumbnail.jp
The Revolution Will Not Be Moderated: Examining Florida and Texas\u27s Attempts to Prohibit Social Media Content Moderation
Get PDFToday, around seventy percent of American citizens actively use social media for news content, entertainment, and social engagement. Since 2005, the number of Americans using social media in some capacity has increased 13 fold from five to sixty-five percent. Despite numerous studies demonstrating a correlation between social media rhetoric and real-world violence against women, racial and ethnic minority communities, and the LGBTQIA community, both Florida and Texas passed bills limiting the ways in which social media sites can moderate the content and users on their platforms in 2021. Florida’s Senate Bill 7072 requires social media platforms to allow political candidates to have a presence on their platforms during campaigning. In Texas, House Bill 20 prohibits social media platforms from moderating or removing any content or users that are legal but might be contrary to the platform’s guidelines
Copyright and Generative AI
No full textWhat are the the specific legal issues presented by generative artificial intelligence under US copyright law? This question is considered in this presentation by Professors Mike Carroll and Charles Duan of American University. Modern copyright law arose when existing modes of regulation for information technology proved inadequate to meet the challenge of transformative information technology. Over the last 200 years, by contrast, the copyright system has met other such challenges – from the rise of electronic mass media to the digital turn in expression, more or less successfully – often by adapting or even fictionalizing existing doctrine. Now, we are asked to consider what adjustments may be required to accommodate Generative Artificial Intelligence, the next new technology to challenge the doctrinal paradigm of copyright.
Michael W. Carroll is Professor of Law and Faculty Director of the Program on Information Justice and Intellectual Property (2009 – present). He teaches and writes about intellectual property law and cyberlaw. Professor Carroll\u27s research focuses on the search for balance in intellectual property law over time in the face of challenges posed by new technologies. His research includes projects about the social costs imposed by one-size-fits-all intellectual property rights and about the history of copyright in music.
Charles Duan is Assistant Professor at PIJIP. He designs and manages research projects at the intersection of intellectual property and public interest policy. His current research is focusing on the impact of patent law on generic drug availability and scientific research, computer software copyrights, and competition and interoperability in digital markets