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The Legal Origins of Catholic Conscientious Objection
Get PDFThis Article traces the origins of Catholic conscientious objection as a theory and practice of American constitutionalism. It argues that Catholic conscientious objection emerged during the 1960s from a confluence of left-wing and right-wing Catholic efforts to participate in American democratic culture more fully. The refusal of the American government to allow legitimate Catholic conscientious objection to the Vietnam War became a cause célèbre for clerical and lay leaders and provided a blueprint for Catholic legal critiques of other forms of federal regulation in the late 1960s and early 1970s — most especially regulations concerning the provision of contraception and abortion.
Over the past two decades, legal scholars have worked to unearth the social movements and constitutional arguments that paved the way for Roe v. Wade, as well as post-Roe law and politics. These efforts will likely intensify in the wake of Dobbs v. Jackson Women’s Health Organization. This Article contributes to the existing literature by reconstructing some of the institutional and ideological terrain that shaped the Catholic legal reception of Roe as an affront to the Catholic conscience — both coercive of the religious liberty of Catholics and a blow to their equal status as citizens. This history, in turn, helps to clarify the connection between the Roberts Court’s religious liberty and reproductive rights jurisprudence
FAQ on the New York State Equality Amendment
Get PDFAdopted in 1938, the New York State Constitution’s equality protections fall far short of a modern notion of equality that would protect the rights of all New Yorkers. Legislation currently pending in the New York Legislature would update the state’s constitution by prohibiting forms of discrimination that are currently unrecognized by the law
The Crime of Sedition: At the Crossroads of Reform and Resurgence
Get PDFThe offense of “sedition” — often characterized as criminalizing the incitement of rebellion against the government — is an archaic crime that is frequently used to target political speech. Introduced in the sixteenth century in England specifically to suppress dissent, sedition laws spread through the British colonies. These laws still persist in some legal systems, and while there are reforms underway in some of those jurisdictions, in a few outliers, the offense continues to be prosecuted — and in some there has been a resurgence in cases.
Sedition laws have been criticized by the United Nations (“U.N.”), human rights experts, courts, legislatures, advocates, and others for being a weapon used by governments to violate the right to freedom of expression. Moreover, the significant criminal penalties that usually accompany sedition laws have a chilling effect on political debate and can undermine democratic processes.
This report examines the movement to repeal or reform sedition laws, the reasons for these efforts, and abuses that take place where the charge of sedition continues to be used. It proceeds in three parts: first, a brief overview of sedition laws and the criticisms they have faced at the international and regional levels; second, an update on the substantial progress Commonwealth States have made to reform these laws; and third, an overview of several examples of States where prosecutors have weaponized sedition laws to stifle dissent, including examples arising from TrialWatch’s monitoring experience
Verification Dilemmas in Law and the Promise of Zero-Knowledge Proofs
Get PDFIndividuals who wish to access a website or qualify for a loan are expected to expose personally identifying information, undermining their privacy and security. Firms share proprietary information in dealmaking negotiations which, if the deal fails, may be used by the negotiating partner for a competitive advantage. Regulators are expected to disclose their algorithmic tools to comply with public transparency and oversight requirements, a practice that risks rendering these tools circumventable and ineffective. Litigants might have to reveal trade secrets in court proceedings to prove a claim or defense. Such “verification dilemmas” — costly choices between opportunities that require the verification of some fact and risks of exposing sensitive information in order to perform that verification — appear across the legal landscape. Yet existing legal responses to them are imperfect. Legal responses often depend on ex post litigation procedures that can be prohibitively expensive for those most in need or are otherwise ineffective.
Zero-knowledge proofs (ZKPs) — a class of cryptographic protocols that enables verification of a fact or characteristic of secret information without learning the actual secret — can help to avoid these verification dilemmas. ZKPs can provide a feasible means for a party who holds secret information to demonstrate desirable properties of this information while keeping the information otherwise hidden. Yet ZKPs have received scant notice in the legal literature. This Article fills that gap by providing the first deep dive into ZKPs’ broad relevance for law. It explains ZKPs’ conceptual power and technical operation to a legal audience. It then demonstrates how ZKPs can be applied as a governance tool to transform verification dilemmas in multiple legal contexts. Finally, the Article surfaces and provides a framework to address the policy issues implicated by introducing of ZKP governance tools into existing law and practice
The Last Line of Defense: Addressing Section 512(g)’s Dwindling Capacity to Protect Educational Fair Users on the Internet
Get PDFThe COVID-19 pandemic has rapidly transformed education from one of the least digitized sectors in the U.S. economy to a largely online phenomenon, with up to 93% of households with school-age children relying on distance learning. The value of online educational opportunities has extended beyond traditional purveyors of education as well, with online service providers (OSPs) like YouTube reporting an increase in average daily views for educational videos produced by subscribers (“users”).
The rise of user-generated content in online education (“educational content”) is merely part of a larger sea change as more content is uploaded to OSPs than ever before. But educational content provides a curious case study. While educational content is a nebulous concept to describe, here it may be defined as materials — from video lectures to digital course packs — that are created wholly or in part by users, uploaded to OSPs, and designed to aid in online educational pursuits. Because copyrighted works play a central role in the explication of such topics as literature, art, and music, any increase in educational content will also inevitably bring with it an increase in the use of copyrighted materials. Even though educational uses of copyrighted works are often considered to be fair use, users who incorporate these works into their educational content remain vulnerable to infringement claims, which can cause their educational content to be removed.
This lack of protection for educational content applies to all users — “non-institutional” or “institutional” — who create and upload teaching materials containing portions of copyrighted works. Educational content therefore provides a compelling case study illustrating the limited defenses afforded to all user-generated content, whether or not it is educational in nature: If fair use educational content is considered non-infringing but nevertheless subject to removal under the guise of copyright infringement, then any non-infringing user-generated content is potentially vulnerable to the same fate. Indeed, in response to the COVID-19 pandemic, YouTube increased the automation of its takedown practices, making it easier for rightsholders to have content that incorporates their copyrighted works removed — regardless of the purpose of the use.
While the situation may look bleak for producers of both educational and non-educational content, users possess a shield against erroneous takedown notices. Enacted as part of the Digital Millennium Copyright Act (DMCA), the § 512(g) counter-notification measure grants OSP users the ability to contest the takedown of their content. However, studies have shown that this feature may generally be under-utilized, both in terms of overall volume and in relation to the amount of potentially invalid takedown notices that may warrant its use. Moreover, given additional evidence that submitted counter-notifications may be erroneous more often than not, this Note argues that the main issues plaguing the counter-notification system point to an overdeterrence of the wrong users — that is, users such as university professors and other educational content creators who are permissibly using copyrighted materials.
This Note provides a more thorough examination of the issues besetting the counter-notification process, particularly with respect to its use in education. In Part I, I discuss the functionality of the counter-notification process within the greater legal and historical background of the DMCA, focusing on the unique challenges faced by educational content creators who seek to use counter-notifications on YouTube. In Part II, I discuss the tripartite problem facing counter-notification petitioners: (1) Counter-notifications are under-utilized overall; (2) counter-notifications are over-utilized by pirates for whom the educational fair use defense does not apply; and (3) the timeframe for “putting back” material is costly to users and rightsholders alike. Finally, in Part III, I propose a “First Shot” system whereby a preemptive “counter-notification” can be used to assert educational fair use and delay takedown of educational content before a rightsholder acts. The First Shot therefore substitutes for the regular counter-notification, a privilege only for educational “Fair Users.
Remarks from the 2022 Symposium: The Equal Rights Amendment: A New Guarantee of Sex Equality in the U.S. Constitution
Get PDFIn so many respects, the culmination of Ruth Bader Ginsburg’s career took place in 1996, three years after she joined the Supreme Court and twenty-four years before her death. In U.S. v. Virginia, Justice Ginsburg convinced a majority of the Supreme Court to embrace the strongest formulation of a constitutional norm condemning sex inequality in the Court’s history. The new rule articulated in the U.S. v. Virginia case declared that “[s]ex classifications ... may not be used, as they once were, ... to create or perpetuate the legal, social, and economic inferiority of women.
Law’s Contributions to the Mindfulness Revolution
Get PDFThese are phenomenally challenging times. Mindfulness is a tool that can help lawyers support themselves, each other, their clients, and their collaborators in the hard work needed to build community and take action. For these and other reasons, mindfulness has made major inroads into law and legal institutions. Law firms, law schools, and courthouses offer training in mindfulness meditation to support the cognitive clarity and emotional self-regulation necessary for the demanding work of analyzing problems, resolving conflicts, overcoming bias, and doing justice. A growing literature, from empirical social science to legal scholarship, catalogs these and other benefits of mindfulness for lawyers, judges, and law students.
The encounter between law and mindfulness has been framed, to date, as one that benefits legal actors. What has been overlooked is the way that law can benefit mindfulness. This Article argues that the developing relationship between law and mindfulness has the potential to address significant problems facing mindfulness in legal and other institutional settings.
Two major dilemmas threaten to undermine the institutional impact of mindfulness. The first dilemma (termed here the minimizing dilemma) presents this challenge: Is mindfulness so individualistic, passive, and nonjudgmental as to be irrelevant (or worse) to the tremendous injustice and other problems plaguing our society? The second dilemma (termed here the magnifying dilemma or the mandatory mindfulness problem) cuts the other way: Is the introduction of mindfulness into mainstream U.S. institutions, such as law schools and law firms, so powerful and intrusive as to be forcing people to meditate? This Article uses insights from law practice, legal pedagogy, and contract default-rule theory and research to respond to these dilemmas. Such contributions — from law to mindfulness — demonstrate that the synergies between these two seemingly disparate fields redound to the benefit of both. Recognizing the mutual benefits of this relationship helps us anticipate how law and mindfulness can both expect to grow stronger through the increasing incorporation of mindfulness programs into legal institutions
Principles for Responsibility Sharing: Proximity, Culpability, Moral Accountability, and Capability
Get PDFIn this Essay, we explore how responsibility based on culpability, moral accountability, and capability can improve the current regime that rests on responsibility by proximity. In doing so, we draw on the 2017 Model International Mobility Convention (MIMC), a model convention drafted by a commission of independent experts and currently supported as a project of the Carnegie Council for Ethics in International Affairs
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No full textPhoto of Ashok Chandran \u2715, Assistant Counsel, NAACP Legal Defense Fund.https://scholarship.law.columbia.edu/through_the_gale_podcast/1008/thumbnail.jp
Three New Federal Laws Aid New York’s Compliance With Climate Goals
Get PDFThe New York Climate Leadership and Community Protection Act of 2019 (CLCPA) requires total statewide greenhouse gas emissions to be reduced 40% from 1990 levels in 2030 and 85% in 2050, with a goal (aided by offsets) of 100% by 2050. It also requires 70% of electricity demand in 2030 to be met by renewables, and 100% from “zero emissions” sources (meaning renewables plus nuclear) in 2040