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Influencing “Kidfluencing”: Protecting Children by Limiting the Right to Profit From “Sharenting”
Get PDFStatistics on children’s digital presences are staggering, with an overwhelming majority of children having unique digital identities by age two. The phenomenon of “sharenting” (parents sharing content of their children on social media) can start as early as a sonogram photo or a birth video and evolve into parent-run Instagram and TikTok accounts soon after. Content is often intimate, sometimes embarrassing, and frequently shared without children’s consent. Sharenting poses a myriad of risks to children including identity theft, digital kidnapping, exposure to child predators, emotional trauma, and social isolation. In the face of such significant risks to children’s well-being, one can only hope that parents will take care in deciding what information to share about their children online or whether to share at all. In recent years, that delicate risk calculus has been skewed by the potential to garner immense wealth from sharing content about children on sites like YouTube, TikTok, and Instagram.
children online. However, attempts to regulate sharenting itself will struggle to overcome the strong countervailing parental constitutional rights to free speech and parental autonomy. This Note proposes limiting the ability to profit from sharenting so that settled parental rights are undisturbed while the perverse incentive to expose children to immense risk for the possibility of profit is mitigated. This Note: (1) provides an overview of the phenomenon of sharenting, (2) surveys the current regulatory framework and its lapses in adequately protecting child influencers, (3) addresses the strong countervailing parental rights to parental autonomy and free speech, and (4) introduces an incentives-based solution to reduce the incidence of harmful child exposure online while respecting parental rights
Are We Closing the Gap? Reforms to Legal Capacity in Latin America in Light of the Convention on the Rights of Persons with Disabilities
Get PDFThis Article examines the the reforms developed in Latin America over the last decade that have adapted domestic legislation regarding legal capacity toward the support model of the Convention on the Rights of Persons with Disabilities (CRPD). Our examination of the reforms in Costa Rica, Argentina, Peru, and Colombia focuses on the adoption process of the reforms, the main characteristics of the implemented support model, some transitional and implementation aspects of the reforms, and a critical examination of their relationship to the CRPD. Finally, this Article explores some weaknesses related to the reforms\u27 implementation processes
The Future of Natural Property Law: Comments on Eric Claeys\u27s Natural Property Rights
Get PDFProfessor Eric Claeys is among the most thoughtful modern proponents of natural property rights. His new book, provided to conference participants in draft form, is typical of his rigorously analytical approach. It is an impressive articulation of a natural rights-based account of property. It significantly advances the debate over natural rights and should be taken seriously even by those who do not find it entirely convincing.
There are real-world political stakes in abstract-seeming questions of property theory because natural rights are often deployed to limit government regulation of property. Natural rights contrast with positivist accounts that locate the content of property rights in the substance of positive law. Where property rights come from the State, the State has broad authority to reconfigure those rights. Natural rights theorists, like Claeys, want property to be a bulwark against regulation and so insist that property has a pre-political core.
That core is deeply contested, however. For rights to be natural, they must apply widely, if not universally, accepted, or at least be derivable in the abstract. To operate at this level, they generally underdetermine the substantive content of property law. Reasoning from natural rights, therefore, often devolves into contingent consequentialist or utilitarian arguments that look anything but natural.
Often, natural law is deployed to rationalize existing legal doctrines and rights. But this can sometimes feel like a bit of a failure of imagination, assuming aspects of law are necessary or inherent when in fact, they may be quite contingent. If natural law reasoning can defend even dramatically different substantive property rights, it becomes worryingly thin as a justificatory enterprise. It risks sliding into outcome-driven and conclusory analyses
Presumptive Use of Pretrial Risk Assessment Instruments
Get PDFOne proposed reform of the pretrial detention system is the adoption of risk assessment instruments to assist courts in determining who is at risk of reoffending or a flight risk. This Response to Professor Melissa Hamilton\u27s Article, Modelling Pretrial Detention, proposes that under most circumstances the results of well-validated instruments should not only inform pretrial outcomes but should dictate them, on the ground that such results are more likely to be accurate than judicial decision-making. The Response also provides evidence that this reform would significantly reduce pretrial detention rates and, consistent with Professor Hamilton\u27s findings, avoid producing racially disparate results
Comment
Get PDFLet\u27s start with the antecedent question that both the theme of this conference and all three papers in this session present. That is, before we ask how law schools might better advance the freedom of expression on campus, and even before asking what role law schools play in protecting or suppressing free speech more generally, we must ask the first order question: whether freedom of expression at U.S. law schools is indeed imperiled?
There is an underlying assumption in all three papers that something is amiss, that things are not quite at their optimal, that improve- ment is needed. And to be fair, each of the papers brings receipts. They correctly mention the rise in academic censorship by state and local governments; catalogue instances in which law school administrators have suppressed speech or speakers; and recount examples of students shouting down or forcing out certain speech and speakers. Professor Franks additionally looks at how powerful graduates of elite law schools are suppressing speech and manipulating public discourse about the freedom of speech, leading her to conclude that something must be rotten in the free speech ecosystems that molded and produced these leaders.\u27
But the antecedent question--whether any of this indicates that the state of free expression at American law schools is unhealthy--better illuminates the pathology we are studying, and ultimately lends good sup- port for several of the suggested correctives these papers propose. In these brief comments, I want to address these two points. First, I want to recast the free expression problem we are experiencing at U.S. law schools as less one of speech suppression and more one of speech temerity. Second, I want to respond to that problem by highlighting the proposed correctives in these papers that are most likely to encourage creative and searching dialogue amongst students and within the law school community more generally
Using Objective Characteristics to Target Household Recycling Policies
Get PDFHousehold recycling is valuable because it reduces demand for virgin raw materials and lessens the cost of making products containing paper, metal, glass, or plastic. Effective recycling programs limit the amount of materials sent to landfills. Understanding the policies and contexts that are most conducive to promot- ing recycling can assist in the development of more effective recycling systems. It can also help businesses that are concerned with the disposition of their products and packaging. Using the most comprehensive data set on U.S. household recycling behavior, this Comment quantifies the relative impact on recycling of characteristics associ- ated with recycling in different populations, under different governmental rules, and having different facilitating resources and amenities
Religion as Disobedience
Get PDFReligion today offers plaintiffs a ready path to disobey laws without consequence. Examples of such disobedience abound. In the past few years alone, courts have enjoined vaccine mandates, invalidated stay-at-home orders, and set aside antidiscrimination laws protecting same-sex couples. During the 2021-2022 Term, plaintiffs relied once again on free exercise to subvert laws governing public education, capital punishment, and school prayer. Some hospitals have begun denying fertility treatment to LGBTQ employees on this same basis.
How did religion become a skeleton key for lawbreaking without repercussion? The conventional wisdom is that, after decades of neglect, the Supreme Court finally began to take seriously the government\u27s burden in free exercise cases. When the Court now says that the government must prove its laws serve compelling interests and are narrowly tailored, it actually means it.
But that is just part of the story. Courts are not only making the government\u27s job harder. They are also making the plaintiff\u27s job easier. Before courts apply strict scrutiny, plaintiffs must show that their religious practices are sincere. Courts and scholars point to sincerity as serving an all-important gatekeeping function: letting in claims of genuine religious exercise and keeping out non-meritorious requests for accommodation.
Yet sincerity is in practice an empty requirement. A systematic review of nearly 350 federal appellate cases-the first such analysis of its kind-reveals that the Supreme Court has never, in the past thirty years, found a single plaintiff to be insincere. Federal appellate courts, likewise, have found plaintiffs sincere 93% of the time (compare that to employment discrimination and ADA cases, where plaintiffs carry their burden just 27% and 60% of the time, respectively). And who is insincere? Pro se plaintiffs. Per the data, parties proceeding pro se are almost 800% more likely to be found insincere than someone with counsel. The only population without a license for disobedience, it turns out, is the already marginalized.
These shortcomings matter. Without appropriate tools to discern genuine religious practice from opportunistic litigation, free exercise becomes an open invitation to true believers and make-believers alike to break the law. With religious exemptions becoming an increasingly visible part of state, federal, and international law, that comes with clear costs: to the rule of law, to the credibility of true believers, and to the public. To prevent religion as disobedience from running amok, it is time to start taking sincerity seriously
Risk-Seeking Governance
Get PDFVenture capitalists (“VCs”) are increasingly abandoning their traditional role as monitors of their portfolio companies. They are giving startup founders more equity and control and promising not to replace them with outside executives. At the same time, startups are taking unprecedented risks—defying regulators, scaling in unsustainable ways, and racking up billion-dollar losses. These trends raise doubts about the dominant model of VC behavior, which claims that VCs actively monitor startups to reduce the risk of moral hazard and adverse selection. We propose a new theory in which VCs use their role in corporate governance to persuade risk-averse founders to pursue high-risk strategies. VCs are motivated to take risks because most of the gains in venture funds come from the exponential growth of one or two outlier companies. By contrast, founders are reluctant to gamble because they bear firm-specific risk that cannot be diversified. To compensate founders for their risk exposure, VCs offer an implicit bargain in which the founders agree to pursue high-risk strategies and, in exchange, the VCs provide them private benefits. VCs can promise to give founders early liquidity when their startup grows, job security when it struggles, and a soft landing if it fails. In our model, VCs who develop a founder-friendly reputation have a competitive advantage in ex ante pricing but are more exposed to poor performance ex post due to suboptimal monitoring. Stakeholders who are not party to the VC-founder bargain—and society at large—are forced to bear uncompensated risk
Some Are More Equal Than Others: U.S. Supreme Court Clerkships
Get PDFThe most elite and scarce of all U.S. legal credentials is serving as a Justice on the U.S. Supreme Court. A close second is clerking for a Justice. A Court clerkship is a prize as well as a ticket to future success. Rich accounts of the experience fill bookshelves and journal pages. Yet the public lacks a clear story about who wins this clerkship lottery. Original analysis of forty years of clerkships tells that story. New datasets detail clerks’ paths from college to the Court to careers. Research shows that Court clerkships favor educational pedigree and status over pure achievement. Post-Court, clerks enjoy a bounty of opportunities that amplify their influence on society writ large. In the elite legal labor market, some people are, in fact, more equal than others
How to Fix Our Green Infrastructure Problem
No full textCurrently, 60% of electric power produced in the U.S. comes from fossil fuel combustion. Under any decarbonization scenario meeting national goals, therefore, new wind and solar power production infrastructure will need to dominate. According to the Princeton Net Zero America study, combined wind and solar power capacity must at least quadruple over current levels by 2030 to stay on a path to net zero. Yet we are far behind: The European Union currently has at least 5,400 offshore turbines in operation, whereas the U.S. has just seven.
What makes this infrastructure challenge even more daunting is the speed necessary to build it in time to meet our goals. We need system-wide coordination to simultaneously deploy vast new wind and solar generation facilities by 2030 and be fully built out and operating by 2050