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Playing to Win: The Use of Export Controls to Address Non-military Strategic Competition
Full text linkTechnology and national security have been intimately related throughout American history. Over the past eighty-five years, the United States has increasingly made use of export controls to prevent adversarial countries from using the fruits of its technological advancement to strengthen their militaries and harm American interests. Today, strategic competition with the People’s Republic of China involves a myriad of technologies which present risks outside of, as well as within, the military context. Chinese exports of technologies, including artificial intelligence, quantum computing, and 5G communications, can promote the country’s authoritarian model abroad, enable economic coercion, and help to enrich the regime. The Belt and Road and “Made in China 2025” initiatives illustrate China’s use of novel technologies to further its global ambitions. Export controls may help to confront these threats. This note asks whether the Bureau of Industry and Security (a government body tasked with implementing export controls) can regulate exports of novel technologies for purposes of non-military strategic competition. Through examination of the statutes authorizing export controls and of the deference traditionally afforded to the Executive in administrative and foreign affairs matters, this note concludes that such export controls are authorized
To Infinity and Beyond (And Beyond): The Legal and Ethical Imperative for Rocket Reusability
Full text linkAlthough the Space Shuttle’s first flight was in the 1980s, reusable rocket technology did not achieve mainstream viability until SpaceX’s reusable Falcon 9 rocket revolutionized access to space. This note argues that transitioning to reusable rocket technology is not only a practical and economic advancement, but also a legal and ethical imperative. By analyzing reusable rockets through the “due regard” framework of the Outer Space Treaty, this note demonstrates how reusable rockets mitigate space debris, expand access to space, and can reduce environmental harm. Additionally, reusable rockets address critical ethical concerns by lowering barriers to space exploration, allowing the benefits of space exploration to be shared by more nations, and conserving resources which can be redirected to other pressing needs on Earth. As the global launch cadence continues to rise, widespread adoption of reusable rocket technology is essential to ensuring the long-term sustainability of space exploration while fulfilling international legal obligations and inherent ethical responsibilities
Hell Comes with High Water: Hurricanes, Climate Change, and Louisiana\u27s Dire Warning About the Erosion of Our Speedy Trial Right
Full text linkThe Sixth Amendment Speedy Trial Clause purportedly protects against undue delays in criminal cases. In order to obtain relief for a speedy trial violation, a defendant must show that a delay has lasted so long as to trigger the four-factor test in Barker v. Wingo (1972). Over time, however, states have codified procedural barriers to this speedy trial analysis. Simultaneously, courts have eroded Barker itself, namely by excusing “neutral” delays and by shifting the burden of proving prejudice resulting from such delays onto defendants. Louisiana is a particularly egregious example of these concerning trends, partly because hurricanes regularly disrupt the state’s criminal legal system, generating a large number of speedy trial claims. Especially as climate change increases the frequency and intensity of natural disasters countrywide, Louisiana’s treacherous laws and flagrant manipulation of Barker serve as a dire warning: We must restore speedy trial protections nationally. Using Louisiana as a case study, and drawing parallels to Florida and Texas, this Note identifies possible legislative and judicial solutions
Music Copyright, Creativity, and Culture
No full textMusic Copyright, Creativity, and Culture is an interdisciplinary introduction to the economics, history, and law that shape the music we love. The book has an innovative design, combining accessible prose with timelines, infographics, flowcharts, and excerpts from a graphic novel. Through a series of chapters that take readers step by step through the fundamentals of copyright and creativity, Jennifer Jenkins clarifies basic concepts, lays out an engaging history, points out cultural effects of legal rules, and tells scores of stories of great musical controversies, past and present. The book is paired with a series of Spotify and YouTube playlists, so that readers can listen to the material under review. The end result is neither dry nor obscure. And this is as it should be, because the legal rules surrounding our musical culture are both important and captivating.You have probably heard stories where one musician is accused of copying another’s song. Maybe one of your favorite artists has been involved in such a dispute. By the time you finish reading this book, you know what the law might say about it: the lines it would draw between legitimate inspiration by shared cultural themes and outright theft that will result in substantial monetary damages. But you will know a lot more. You will have explored how a society even comes to think of music as something that can be owned: the cultural, technological, economic, and legal prerequisites of the system. You will have traced out the history of the great technologies that affected music, from musical notation—the invention of writing, musically speaking—through to the printing press, the player piano and phonograph, the radio, the internet, and generative AI. You will have thought through how we set up incentives to make, and to distribute, the music all of us love. How can society ensure that the next great composer or performer devotes her time and talent to that task instead of something else? How can we set up a system that gives creators control of their work, and yet still leaves free the genres, styles, techniques, and other building blocks that make up the musical commons, upon which all artists draw?By the time you finish this book you should be able to have an informed opinion about where we need to strike that balance, and whether the law we have today has done a good job of doing so. You will understand the legal difficulties in clearing samples and in navigating the tangled thicket of music licenses, each invented to deal with a particular technology of the past. You will delve into evolving business models, today’s streaming economy, and the challenges posed by generative AI. But you will also have gone deeper. For example, the book examines the history of attempts to control music in American culture along racial lines: from the legal and social barriers that prevented African-American and other minority musicians from receiving the credit and financial reward their talents deserved, to the vexed question of appropriation and the line between benign mutual cultural influence and unjust, uncredited exploitation. Along the way, you will get to think about the law, culture, aesthetics, and economics of an art form that touches us more profoundly than we know.https://scholarship.law.duke.edu/faculty_books/1036/thumbnail.jp
Scientific and Technical Expertise After Loper Bright
No full textCourts once trusted federal agencies for their expertise in administering complex statutory schemes, particularly regarding science and technology. Unlike judges, agency officials can narrowly focus on a specific area of law and have access to experts to inform their decision making. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court created a presumption that, absent language to the contrary, Congress intends for agencies to interpret statutory ambiguities. Chevron allowed agencies to utilize their varied forms of expertise while ensuring oversight from generalist judges. This court–agency partnership abruptly ended, however, in Loper Bright Enterprises v. Raimondo. The Court distinguished between legal and scientific expertise, noting that the former receives no deference while the latter has merely the power to persuade. Although the Court ultimately ruled on statutory grounds, it invoked Article III to support the argument that judges have an affirmative obligation to independently interpret statutes. But by shifting primary interpretive authority from agencies to reviewing courts, the Court has forced generalist judges to grapple with complex scientific and technical concepts that they are ill-equipped to understand. Loper Bright could result in a heavier workload for judges—or worse, could cause them to fall back on partisan preferences. Congress is not wholly without power, however. Beyond expressly delegating interpretive authority to agencies where constitutionally permissible, Congress could give appellate courts access to neutral experts with relevant backgrounds. By enabling appellate courts to hire and use neutral experts in administrative law cases, Congress would reduce judges’ workload, improve the quality of judicial decision making, and ensure that judges independently interpret statutes
Presidential Administration and the Accountability Illusion
No full textFor over a decade, the Supreme Court has upended executive-branch structures that insulated administrative agencies from the White House. Judges and scholars justify this project in part by claiming that presidential control over administration boosts agencies’ accountability to the American people. Yet, despite the importance of “the people” as this endeavor’s asserted beneficiaries, public attitudes concerning this foundational claim are unknown. This Article puts this claimed connection to the test. Grounded in a set of novel experiments involving over five thousand participants, it presents the first evidence of Americans’ views regarding whether greater presidential authority over agencies enhances accountability to people like them. These experiments reveal that participants presented with an agency over which the president possesses the authority to appoint decision-makers, remove them for any reason, or review the agency’s proposed regulations are no more likely to perceive the agency as accountable than are participants presented with a politically insulated agency. Whereas prominent judges and scholars claim that these presidential-control mechanisms—that is, appointment, removal, and review authority—bolster agencies’ accountability to the people, the people do not agree. In a politically divided country, Americans do not experience presidential power over agencies as fostering accountability. This finding challenges the ongoing judicial project of tethering agencies to the president for the supposed benefit of the American people
No Eyes in the Skies: State of Alaska v. McKelvey’s Impact on Aerial Surveillance in Alaska
No full textAlaska contains a dynamic and complex aviation culture. As one of the most visually captivating places on earth, Alaska also hosts enthralling scenery that could be deemed a photographer’s dream landscape, creating an interesting desire for aerial capture of certain scenes. The Alaska Supreme Court considered whether Alaska’s unique aviation culture, in conjunction with aerial police surveillance, infringes on residents’ right to privacy in State of Alaska v. McKelvey. While the United States Constitution contains no express right to privacy, the Alaskan Constitution explicitly ensures that the right to privacy of Alaskan residents will not be infringed upon. The United States Supreme Court has yet to address the issue of warrantless searches involving enhanced aerial surveillance, but the decision rendered by Alaska’s Supreme Court in State of Alaska v. McKelvey should be the standing precedent followed by all states. Alaska reached the correct decision in protecting citizens’ privacy, and other states should also consider placing this high of a premium on respective privacy rights
“Murder the Media”: Press Freedom, Violence, and the Public Sphere
No full textThe first goal of this chapter is to argue that the press as an institution is entitled to special solicitude under the First Amendment, not only because it is textually specified in the Constitution or because it serves important roles such as checking public and private power, but because it can contribute to the marketplace of ideas in ways that a healthy democracy needs. In other words, the press as an institution can provide an important link between the First Amendment’s epistemic and democratic values. The chapter’s second goal is to provide a rough and preliminary sketch of the relationship between press freedom, violence, and public discourse. Some elements seem straightforward enough. Violence and harassment obstruct the press’s function, including its traditional role in constituting and shaping public discourse. Distrust, disinformation, violence, and press degradation exist in a mutually reinforcing ecosystem. And even as violence shapes the media, the media shapes the social conditions, understandings, and practice of violence in return. Journalism, albeit in different ways than legal interpretation, “takes place on a field of pain and death,” to repurpose Robert Cover’s famous phrase – not only in describing it but in making it real. This, it should go without saying, is no excuse for violence against media members. The point is, rather, that a healthy press can be a bulwark not only for knowledge and democracy but against the kinds of private and public violence that threaten both