LARC Cardoso Law (Yeshida Univ)
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\u3ci\u3eImpact IPSA Loquitur\u3c/i\u3e: A Reverse Hand Rule for Consumer Finance
Get PDFThe topic of this symposium—Automating Bias—considers how artificial intelligence can produce, reinforce, and hide racial and other forms of discrimination in consumer finance. The animating intuition is that the complexity and opacity of algorithms and artificial intelligence in consumer lending create a greater need for disparate impact analysis to combat lending discrimination. This view was articulated forcefully by the current Director of the Consumer Financial Protection Bureau (CFPB), Rohit Chopra, when he was still a commissioner at the Federal Trade Commission (FTC)
Speaking Authorship: Honoring Indigenous Language Sovereignty in Joint Authorship Doctrines
Get PDFIn 2022, the Standing Rock Sioux Tribal Council unanimously voted to banish the Lakota Language Consortium (LLC) and its two European founders from the reservation. The LLC began working with the Tribe in the early 2000s to document the Lakota language and created numerous recordings of Lakota elders, a Lakota dictionary, and many other educational materials. However, the LLC registered those works’ copyrights solely under its own name, so Tribe members must now seek the LLC’s permission to use or access them, which may require payment and may not be granted at all, even for recordings of the requestor’s own family. The LLC has repeatedly stated that it has not copyrighted the language itself, but what does it mean for a language with few fluent speakers when one of the only ways it can be taught is owned by a single, outside entity? Consider that each language embodies a worldview and way of thinking that is specific to its speakers, connecting them to their ancestors’ beliefs and history—their heritage. The fate of a language, then, is tied to that of its speakers’ culture and identity. Advocates of English-language supremacy racialize non-English languages and non-American accents to create racial categories by which to organize social hierarchies, often targeting immigrants and languages that are widely spoken around the world. However, when the affected language has a small and dwindling number of speakers, the stakes are even higher—threatening the existence of the language itself and limiting that existence to what those speakers can document and convey to other members of the community. The LLC, especially since it has used millions in federal grants that could have been used by Indigenous-led organizations, now holds significant influence over the development and growth of the Lakota language even outside of the Standing Rock Reservation.
Though the LLC has received attention recently, it is not the first time non-Native people have entered a Native community, learned the language from Native speakers, taken recordings of speakers, and then claimed sole copyright in the educational materials they create. Nor is the Standing Rock Sioux Tribal Council the only community that has taken issue with how, through such educational materials, a non-Indigenous party has shaped their language. The underlying issue here is that the copyright system does not support Indigenous language sovereignty due to the specific circumstances Indigenous languages face and the disconnect between Indigenous and Western literary and language traditions. However, the United States enacted the Native American Languages Act (NALA) in 1990, setting explicit policy commitments to “preserve, protect, and promote the rights and freedom of Native Americans to use, practice, and develop Native American languages.” Further, the State Department issued a statement in 2011 supporting (four years after voting against) the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP), which sets forth such rights as fundamental human rights, though UNDRIP has yet to be ratified and adopted domestically.
In this Note, I propose that Congress stand behind these policies and work towards giving them teeth by amending the Copyright Act to include a presumption of joint authorship between tribes and non-Indigenous authors when the non-Indigenous person creates copyrightable materials that document or educate the consumer about how to communicate in the language of a tribe recognized by a U.S. government (Language Materials).
Part I of this Note looks at the historical and legal contexts facing Indigenous people and languages in the United States. It first discusses the historical and political basis on which modern Indigenous language concerns manifest and why resolution of these concerns is so crucial for the survival of Indigenous people and cultures. Part I then describes the unique relationship between the United States and Indigenous tribes that is vital to understanding the landscape of federal Indigenous law in the United States today, as well as the bounds of U.S. jurisdiction over Indigenous people. Part I also situates American legal commitments towards Indigenous people, including through NALA and UNDRIP, against that social, political, and legal background, and lays out its implications for American policy where the propagation of Native American languages is curbed by American copyright law.
Lastly, Part I discusses how Indigenous languages and oral traditions conflict with federal copyright law. Using parallels to copyright law’s treatment of Black oral traditions, Part I also shows that those conflicts with Indigenous creation are a symptom of how copyright law systemically disadvantages already marginalized communities in the United States.
Part II turns to the joint authorship doctrines that currently exist in American copyright law, including the elements needed to establish such a relationship between collaborators.
In Part III, this Note outlines the proposed presumption of joint authorship for Language Materials, looking to other presumptions and designations of authorship in the United States and abroad. This proposition approaches joint authorship by recognizing the literary and expressive qualities woven into Indigenous languages, highlighting the role of language and oral traditions in Indigenous cultural production, and examining the collaborative relationship built between the Indigenous and non-Indigenous contributors through the lens of the intent, control, and contribution elements of joint authorship doctrines
Power for the People: Recognizing the Constitutional Right to Vote for President
Get PDFOn January 6, 2021, a mob attacked the United States Capitol to overthrow the certification of the legitimately elected president and install the election loser, Donald Trump. Before this, there was another coup attempt. Trump and his team pressured state legislators and officials not to certify legitimately elected presidential electors, and to instead certify fake electors for Trump. This was based on the theory that the Constitution grants states “plenary power” to select presidential electors, even if this means cancelling citizen elections or rejecting their outcome. The coups failed—this time.
There should be no next time. The Supreme Court should reject the “plenary power” theory, and rule instead that citizens have a right to vote for president under the Constitution.
The “plenary power” theory is radically wrong because several constitutional amendments establish that citizens have what the Constitution calls a “right to vote”—including the right to choose presidential electors. The “plenary power” theory was born in Supreme Court decisions during the late 1800s Jim Crow era and re-embraced by the Court in its controversial 2000 Bush v. Gore decision. This Article explains how the “plenary power” theory is wrong as a matter of constitutional textualism, irreconcilable with other Court right-to-vote precedent, abrogated by history, and irredeemably illegitimate because of its juridical origins in racism and sexism
The Death of the GID Exclusion: \u3ci\u3eWilliams v. Kincaid\u3c/i\u3e Revitalizes the ADA for Trans Litigants
Get PDFKesha Williams is a transgender woman with gender dysphoria who spent six months incarcerated in the Fairfax County Adult Detention Center in Virginia. When Williams first entered the facility, she was assigned to women’s housing and given the uniforms typically provided to female inmates. However, upon learning that Williams had not undergone transfeminine bottom surgery, prison deputies stripped Williams of her female undergarments and transferred her to the men’s side of the facility. There, Williams was harassed by other inmates, misgendered by prison deputies, and delayed in receiving medical treatment for her gender dysphoria. Following her release, Williams asserted several claims, among them a violation of the Americans with Disabilities Act (ADA).
Although the ADA has been recognized as one of the most pivotal pieces of civil rights legislation in this country, it has been largely unsuccessful in protecting against discrimination towards transgender people. While the ADA purports to guarantee protection for those with disabilities, § 12211 of the Act contains an exclusionary clause commonly referred to as the gender identity disorder (GID) exclusion. This section prevents “gender identity disorders not resulting from physical impairments” from being recognized as a protected “disability” under the Act. Thus, until recently, many transgender litigants have left the GID exclusion virtually unchallenged.
However, in Williams v. Kincaid, the Fourth Circuit became the first circuit court to rule that gender dysphoria was not within the GID exclusion, such that gender dysphoria constitutes a disability warranting protection under the ADA. Critically, the Williams majority recognized that there has been a shift in medical understanding as psychiatric authorities have replaced the term “gender identity disorder” with “gender dysphoria,” which suggests that the courts should pay deference to such distinction when interpreting technical words in a statute.
This Note discusses the groundbreaking ruling of Williams v. Kincaid and its important impact on transgender civil rights. Part I provides context by defining gender-related terms, detailing a brief history of the ADA, and explaining how courts interpret the ADA. Part I also examines the GID exclusion in the face of medical advances and ends by detailing the current legal landscape for gender dysphoria claims brought under the ADA. Part II outlines the facts and procedural history of Williams, and Part III describes its holding, reasoning, and dissent. Part IV offers support for the Fourth Circuit’s reasoning and argues that the Williams majority was correct in taking an approach to statutory interpretation that goes slightly beyond traditional textualism in resolving this matter. Part IV further suggests that moving forward, trans litigants bringing claims under the ADA should follow Williams’ lead in presenting a three-pronged approach grounded, in part, in textualism. This Note concludes by highlighting Williams’ potential implications and the questions that it leaves unanswered, while also recognizing Williams as a victory for transgender advocates
A Band-Aid Solution: New York\u27s Proposal to Address the Maternal Health Crisis
Get PDFA pregnancy-related death is a death “that occur[s] within one year of pregnancy.” In the United States, approximately 700 women die each year as a result of pregnancy or pregnancy-related complications. Notably, pregnancy-related mortality rates are significantly higher for Black and American Indian and Alaska Native (AIAN) women. Even in the face of high income levels, Black women in America face a disproportionately higher risk of pregnancy-related death. In New York, such disparities are even more prominent: Black women are “over four times more likely to die from childbirth-related complications.” In New York City, Black women are “nine times more likely to die from pregnancy or childbirth.”
This post was originally published on the Cardozo Journal of Equal Rights and Social Justice website on February 9, 2024. The original post can be accessed via the Archived Link button above
Human Capital Disclosure & Corporate Governance: The New Evidence
Get PDFThis Article explores the evolution of human capital disclosure—firm-supplied information about various workforce-related matters—as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management (“HCM”) disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in board of directors’ oversight responsibilities in a number of areas, including HCM, while labor’s power has unexpectedly increased in some areas and decreased in others. HCM-focused shareholder proposals have proliferated and now cover a range of heretofore unexplored topics. This dynamic new landscape raises important analytical and normative questions: Has the SEC’s disclosure intervention from 2020 been effective and, if not, what should a revised HCM disclosure framework look like? More broadly, does the increased visibility of labor in corporate filings indicate that its role and status within corporate governance, which had been static for decades, have now changed?
To answer these questions, the Article examines six complementary types of evidence selected throughan original “mixed methods” research design—a methodological approach popular in the social and behavioral sciences but underutilized in corporate law. The new evidence includes: (1) a meta-analysis of large-scale quantitative studies examining the incidence and characteristics of HCM disclosure; (2) hand-collected data from the SEC review process for initial public offering (“IPO”) filings; (3) an original case study showing the existence of material disclosure gaps in regulatory filings; (4) evidence from HCM-related shareholder proposals; (5) evidence from recent labor market developments; and (6) a new line of Delaware fiduciary duty cases focused on board oversight of “mission-critical” matters. While these six lines of inquiry in isolation offer only fragmented depictions, combining them through the mixed methods approach generates a more nuanced and comprehensive picture that can inform both policy and academic discourse.
The principal implications are twofold. With respect to securities law, the analysis highlights the need for a revised HCM disclosure framework that: (1) elicits more detailed, standardized, and, where appropriate, quantitative information; (2) covers both traditional employees and the so-called shadow workforce comprised of contingent workers; and (3) pays much-needed attention to the complementarities and substitutability between human capital and AI-enabled technology. With respect to corporate governance writ large, the analysis underscores the enduring precarity of labor’s status within the firm, which will likely be deepened by the AI revolution
An Information Flow Model of Online Mediation: Jeopardizing Privacy and Autonomy in the Shadow of Innovation
Get PDFOnline mediation has developed significantly over the past decade, and increasingly so following the COVID-19 pandemic. Online mediation platforms are now integrated into both private and public settings, enabling mediation through diverse means-from videoconferencing software to dedicated platforms that use various procedural and technological tools, including artificial intelligencepowered applications. The digital transformation of the mediation process introduces challenges and opportunities for mediators, parties, and mediation platforms, many of which stem from new digital datahandling practices. This article explores how such digital transformation of mediation impacts the parties\u27 rights to self-determination and privacy. Recognizing that these rights derive from the parties\u27 right to autonomy, the article argues that the rights can be construed in terms of the parties\u27 control over the flow of information in mediation. The parties exert their control over information communication (the transfer of information among disputing parties and the mediator) and information analysis (identification and analysis of relevant information to support informed decision-making). Accordingly, this article proposes a model that conceptualizes mediation tasks and associated risks on two axes: the information reveals axis, which captures the types of information revealed and generated in online mediation; and the information processing axis, which reflects the analytical operations that the parties, mediator, and mediation platform perform on the information that has been revealed. Next, the article analyzes the norms that regulate participants\u27 control over the flow of information in the process, namely mediation norms that protect the confidentiality of the process and the self-determination of the parties, and privacy and data protection norms that govern the parties\u27 control over their personal information. Subsequently, the article discusses how the involvement of digital platforms alters the flow of information in online mediation by creating new types of information and effectuating new means of information processing that may undermine the parties\u27 control over the decision-making process and outcome, their privacy, and the confidentiality of the mediation
The International Longshoremen’s Association Strike & Removing Public and Political Pressures From the Bargaining Table
No full textThe International Longshoremen’s Association (“ILA”) is the labor union that represents dockworkers in ports along the East Coast and Gulf of Mexico. The management counterpart to the ILA is the United States Maritime Alliance (“USMX”) which represents the various employers associated with the East and Gulf Coast ports. The most recent ILA-USMX master contract, or collective bargaining agreement, ran from October 1, 2018 to September 30, 2024 (the “2018 Agreement”). As ILA workers prepared for a new contract, their two main concerns were securing pay increases and continuing assurances that human jobs would not be replaced by automation.
The print edition of the issue has also been released. This post was originally published on the Cardozo Journal of Conflict Resolution website on November 26, 2024