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Can\u27t Really Teach: CRT Bans Impose upon Teachers\u27 First Amendment Pedagogical Rights
Get PDFThe jurisprudence governing K-12 teachers’ speech protection has been a convoluted hodgepodge of caselaw since the 1960s when the Supreme Court established that teachers retain at least some First Amendment protection as public educators. Now, as new so-called Critical Race Theory bans prohibit an array of hot button topics in the classroom, K-12 teachers must either preemptively censor themselves or risk running afoul of these vague bans with indeterminate legal protection. This Note proposes an elucidation of K-12 teachers’ free speech rights via a two-part test to assess the reasonability of instructional speech. Rather than analogizing K-12 teacher speech to citizen speech, student speech, or public employee speech, as the leading Supreme Court cases direct lower courts to do, this test would account for the specific interests at play in K-12 education and consider the teacher’s pedagogical expertise.
As school board meetings host heated arguments and state legislatures ban books, the contours of K-12 public school teachers’ rights have never been more relevant. The Court continues to voice a need to maintain K-12 schools as the nurseries of democracy but does not articulate how teachers might do so in light of increasingly intrusive restrictions on speech. In higher education classrooms, professors retain academic freedom to cultivate a marketplace of ideas. In K-12 classrooms, teachers should preserve a corresponding freedom: the pedagogical freedom to teach permissible concepts in as myriad of ways. This Note argues that approaching K-12 teacher speech cases from the proposed two-step approach will clarify teachers’ First Amendment pedagogical freedom rights and thereby shield the kind of teacher instructional speech that is so crucial to U.S. democratic values
A Zebra\u27s Trust: How Rare Disease Communities\u27 Participation in Data Trusts\u27 Governance Builds Trust and Drives Research
Get PDFData sharing plays an increasingly prominent role in society, but it remains a necessary component of rare disease research. Because rare diseases are--as the name indicates-- rare, researchers have only a small number of patients from whom to collect data, and the expense of cross-border data sharing to increase research data is significant. Nevertheless, the rise of artificial intelligence and precision medicine increases the need for usable rare disease data. Current legislation and regulations aimed at addressing rare diseases fall short in addressing these data sharing needs for rare disease research. While the European Union (EU) has invested in rare disease data sharing more than most of the world, its programs are fragmented and limited to the rare disease community.
Simultaneously, data is becoming increasingly viewed as a necessary component of a competitive economy, driving interest in data sharing platforms and initiatives, including the EU\u27s new Trusted Secure Data Sharing Space (TRUSTS) initiative. Perhaps the most promising instrument for data sharing is the data trust, but it suffers from an undefined and uncertain legal structure. This Note suggests that the rare disease community should embrace these broader data sharing initiatives in order to ensure the representation of rare disease data in these data sets and to harness the power of large-scale data sharing. Simultaneously, data trusts should look to rare disease communities for representation in their governance structures in order to establish the patient-centricity and public trust necessary for data trusts to thrive in an uncertain legal environment
Nonparty Jurisdiction
Get PDFThe Supreme Court\u27s recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must have personal jurisdiction over a person in order to obtain preliminary relief, and a court must have jurisdiction, either personal jurisdiction or attachment jurisdiction, in order to recognize and enforce a foreign country judgment or arbitral award. In the development of its jurisdictional jurisprudence, the Supreme Court has never paused to consider the implications of its decisions on these other applications of personal jurisdiction.
This Article attempts to chart a path by examining these other forms of personal jurisdiction that arise, often in connection with the assertion of jurisdiction over a nonparty to the initial litigation. This Article presents a coherent approach to the power of courts over nonparties that is consistent with the prevailing constitutional doctrine on personal jurisdiction developed in the context of traditional plenary claims. This Article offers a comprehensive consideration of how courts should approach the question of their authority over nonparties-a theory of nonparty or discovery jurisdiction that fits comfortably with the Court\u27s present jurisprudence
Independence and Liability in Civil Aviation Accident Investigations through Annex 13 and the Montreal Convention
Get PDFInternational law governs the investigation of civil aviation accidents through the Chicago Convention and the International Civil Aviation Organization. Their standards, outlined primarily in Annex 13 to the Chicago Convention, require accident investigations to be conducted in an independent and impartial manner. Notwithstanding this requirement, a state with a nationalized airline may lead an Annex 13 investigation into an accident involving (essentially) itself. The conflict that arises when this occurs challenges Annex 13 independence-a challenge that may be difficult to avoid given the prevalence of nationalized airlines. While Annex 13 independence is threatened when a state assumes the role of investigating its own civil aviation asset, this Note exposes a deeper source of conflict in the Annex 13 investigation process that stems from the civil aviation liability provisions contained in the Montreal Convention. Using Malaysia Airlines Flight 370 and other notable air disasters to illustrate, this Note shows how Montreal\u27s liability rules create incentives for state owners of airlines to conduct investigations in ways that reduce their exposure to liability, exacerbating the treat that conflicted investigations pose to Annex 13 independence. This troubling dynamic undermines the fundamental aims of international civil aviation governance: to promote safe skies and passenger parity. It also demonstrates that consideration of Annex 13 independence is incomplete without understanding Montreal Convention\u27s effect on the investigation process. Using this insight, this Note proposes bolstering investigation independence with reforms to both Annex 13 and the Montreal Convention, and invites further consideration by civil aviation policymakers, practitioners, and scholars
Disclosure of Private Climate Transition Risks
Get PDFThis Article identifies a gap in the securities disclosure regime for climate change and demonstrates how filling the gap can improve fi nancial disclosures and accelerate climate change mitigation. Private climate initiatives have proliferated in the last decade. Often led by advocacy groups, these private initiatives have used naming and shaming campaigns and other means to induce investors, lenders, insurers, retail customers, supply chain customers, and employees to pressure firms to engage in climate change mitigation. Based on an empirical assessment of the annual reports filed with the Securities and Exchange Commission (SEC) by Fortune 100 firms and the largest firms in several fossil fuel-heavy sectors, this Article concludes that roughly a third of these firms disclose the risks and opportunities posed by private environmental governance (PEG) initiatives. The assessment also finds, however, that disclosures vary substantially among similar firms and among similar sectors. The Article argues that this heterogeneity in disclosure is not surprising given that the SEC\u27s 2010 climate guidance and other disclosure regimes do not call sufficient attention to PEG climate initiatives, and many lawyers think of environmental risks as synonymous with governmental regulatory risks. The legal literature on climate transition risk focuses principally on whether regulatory and market- based risks should be disclosed, but it overlooks the importance of the material risks posed by PEG climate initiatives. PEG climate ini- tiatives pose a discrete form of climate transition risk for many firms, and revisions to the SEC guidance and other disclosure regimes to account for PEG climate initiatives can be adopted more quickly, produce more complete financial disclosures, and yield greater and more durable emissions reductions than many other approaches
The Ideological Divide on Gun Regulation
Get PDFThis article examines survey results on how ideology and vulnerability affect attitudes toward gun regulation. It finds that ideology is more of a driver of differences in these views than the personal risk of gun violence. Nonetheless, the survey data find majority support among opposed political groups for some gun regulations-- including some of the regulations incorporated in the new federal legislation
The Hierarchy and Performance of State Recycling and Deposit Laws
Get PDFStates can foster recycling of waste materials through a variety of policies. The majority of the states have recycling laws for waste products such as glass, plastic, cans, and paper. These laws vary in terms of stringency. The hierarchy we developed orders the laws as follows: laws that make recycling mandatory, laws that require the provision of recycling opportunities, laws that require the development of a recycling plan, and laws that specify a recycling goal. Based on national recycling data with over 400,000 observations, we find that the amount of recycling households undertake increases with the degree of stringency of the legal structure. Other legal recycling initiatives consist of laws that have established deposit policies, which a minority of states have done. Deposit policies establish financial incentives to promote recycling. States with deposit policies exhibit higher recycling rates for glass, plastic, and cans than states that have not enacted such laws. The higher recycling rates, for paper in the bottle deposit states, may reflect a broader impact of deposit policies on households’ recycling behavior for products not covered by the deposits
Nondelegation in the States
Get PDFAmerican public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation. This Article takes up that task by describing the kaleidoscope of contexts in which states apply the nondelegation doctrine. Significantly, state nondelegation reaches deep into public law and covers far more than the legislature-to-agency delegations that preoccupy the discussion at the federal level. This Article analyzes this mess of state nondelegation jurisprudence, arguing that it can be explained coherently by two theories underlying nondelegation: the separation of powers and sovereignty. While these theories overlap to an extent, each supplies a distinct logic to nondelegation, thus motivating the doctrine\u27s disparate and varied applications. Finally, the Article argues that the Supreme Court ought to consult state nondelegation jurisprudence when it revives the federal nondelegation doctrine. The states\u27 experience counsels important lessons for the federal doctrine. On one hand, should a revived federal doctrine follow the logic of state nondelegation, key features of American public law may need to be reworked. On the other hand, there is reason to think that a revived doctrine would not present insurmountable obstacles to effective government
Innovation Policy and Chronic Emergencies
Get PDFThe COVID-19 pandemic has thrust the potential role of the state as a driver of scientific innovation onto center stage. Vaccines have been developed and brought to market in a timescale that seemed almost impossible when the crisis first struck. The pivotal nature of government intervention in this crisis has added to calls from academics and policy makers to adopt a more proactive, mission-oriented approach to innovation policy to tackle other key global challenges.
This Article considers the merits of these calls and argues that an important distinction must be drawn between what this Article terms acute and chronic emergencies. COVID-19 is a paradigmatic example of an acute emergency: its onset was rapid, its impact was dramatic, and it is a problem that demands resolution for life to proceed “as normal.” Chronic emergencies, such as the problem of Anti-Microbial Resistance, can be just as, or more deadly than, acute emergencies but have a “frog in the pot” quality. They emerge over time, and, although they can have profound social and economic effects, they do so in ways that are less immediate and hence less demanding of government attention. Without the urgency, sense of purpose, and spirit of cooperation that accompany acute emergencies, there is a risk that mission-oriented approaches may fail to deliver new technologies the world urgently needs. This Article considers the problem of applying mission-oriented approaches to chronic emergencies. The analysis is grounded in an examination of Britain’s system of innovation rewards in the eighteenth and nineteenth centuries, drawing on an extensive historical data set that the authors are continuing to develop. The central argument put forward in this Article is that Britain’s historical system offers lessons for crafting state intervention to spur innovation aimed at chronic emergencies today. Britain’s historical system was effective because rewards were largely bestowed post hoc with relatively little prescription as to the problems at which innovators should direct their efforts, and still less as to the methods and means that should be used to tackle them. Perhaps most importantly, these rewards fed into and helped create a culture of innovation.
The Article concludes with a proposal for change—namely, that the way innovation prizes are designed should be reconsidered. Prizes must preserve space for scientific and technical freedom and ought not to be built around the sort of rigidly defined criteria that proponents of mission-oriented innovation policies often advocate
The Future of AI Accountability in the Financial Markets
Get PDFConsumer interaction with the financial market ranges from applying for credit cards, to financing the purchase of a home, to buying and selling securities. And with each transaction, the lender, bank, and brokerage firm are likely utilizing artificial intelligence (AI) behind the scenes to augment their operations. While AI’s ability to process data at high speeds and in large quantities makes it an important tool for financial institutions, it is imperative to be attentive to the risks and limitations that accompany its use. In the context of financial markets, AI’s lack of decision-making transparency, often called the “black box problem,” along with AI’s dependence on quality data, present additional complexities when considering the aggregate effect of algorithms deployed in the market. Owing to these issues, the benefits of AI must be weighed against the particular risks that accompany the spread of this technology throughout the markets.
Financial regulation, as it stands, is complex, expensive, and often involves overlapping regulations and regulators. Thus far, financial regulators have responded by publishing guidance and standards for firms utilizing AI tools, but they have stopped short of demanding access to source codes, setting specific standards for developers, or otherwise altering traditional regulatory frameworks. While regulators are no strangers to regulating new financial products or technology, fitting AI within the traditional frameworks of prudential regulation, registration requirements, supervision, and enforcement actions leaves concerning gaps in oversight.
This Article examines the suitability of the current financial regulatory frameworks for overseeing AI in the financial markets. It suggests that regulators consider developing multi-faceted approaches to promote AI accountability. This Article recognizes the potential harms and likelihood for regulatory arbitrage if these regulatory gaps remain unattended and thus suggests focusing on key elements for future regulation—namely, the human developers and regulation of data to truly “hold AI accountable.” Therefore, holding AI accountable requires identifying the different ways in which sophisticated algorithms may cause harm to the markets and consumers if ineffectively regulated, and developing an approach that can flexibly respond to these broad concerns. Notably, this Article cautions against reliance on self-regulation and recommends that future policies take an adaptive approach to address current and future AI technologies