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UN©ERTAINTY AND DIS©OMFORT
No full textThis essay explores creative works that produce powerful reactions of discernment, hostility, or deep uncertainty from mysterious forms of “blankness.” They all use silence or similarly ineffable qualities to challenge the thoughtfulness and tolerance of audience members. They force us to understand that creativity sometimes manifests itself in strange and bizarre ways that test not only our viewing tolerance, but also our traditional notions of creativity and of intellectual property boundary lines. It is like forcing fully sensory-enabled people to think about creativity in ways that may mimic a small fragment of the daily experience of those with limited sight or hearing. Indeed, it is long overdue to think of the world of intellectual property through the perception of those with sensory limitations. Should copyright law be altered in some ways to accommodate that perspective?
In the history of art, music, and dance, defiant creative souls have periodically driven a reluctant world to new feelings about the legitimacy of unusual endeavors seen initially by many as bizarre. They have challenged us to think about the creative and artistic meanings of silent music, blank canvases, invisible sculpture, motionless dance, and inaudible drama, and by analogy to the ways in which the deaf and blind process creativity. And they also have challenged us to consider whether the coverage of copyright law should be altered or rethought to better embody the legal needs of the defiantly creative. Copyright protection is available for “original works of authorship fixed in any tangible medium of expression.” What this means for works “filled” with subtle blankness is certainly unclear. Can works lacking characteristics most associated with our standard notions of copyrightable creativity—tangibility, visibility, sound, or movement—still be treated as “fixed,” “original,” and “expressive?” Are they actually “better” suited for those with sensory limitations than for others? Those are the seminal issues explored in this essay
Reproductive Governance in China: National Policies, Human Rights, and Accountability under International Law
Full text linkChina’s reproductive policies, including the One-Child, Two-Child, and Three-Child Policies, have been widely criticized for violating women’s reproductive rights through coercive enforcement measures such as forced abortion, sterilization, and employment discrimination. This Article argues that these policies violate international human rights law, particularly the right to freely determine the number and spacing of children as protected under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
Despite international scrutiny, China has largely resisted direct responses to criticisms from treaty-based and charter-based human rights monitoring bodies, including the CEDAW Committee, the Universal Periodic Review and Special Procedures under the United Nations Human Rights Council. However, international pressure has had some influence, compelling China to make limited policy adjustments, such as abolishing explicit penalties for exceeding the birth quota and taking some measures to address employment discrimination.
This Article further evaluates the effectiveness of existing international enforcement mechanisms and proposes additional strategies to enhance their impact. It suggests that human rights monitoring bodies should directly challenge China’s justification that population control policies are necessary for economic development and emphasize the equal importance of all human rights, including reproductive rights, under international law. By increasing international scrutiny and directly refuting China’s justifications, human rights institutions can exert greater pressure to prompt meaningful policy changes and enhance the protection of reproductive rights in China
Take in Case of Emergency: Reconciling Necessity Takings with the Original Meaning of the Takings Clause
Full text linkDoes the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that.
Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social problems, ranging from climate change mitigation to expanded public restroom access.
This Note attempts to ground necessity doctrine in the text and history of the Fifth Amendment’s Takings Clause through an originalist lens. The Takings Clause and necessity have a rich history, ripe for originalist analysis. After compiling and considering the relevant evidence, this Note argues the original meaning of the Fifth Amendment does not support a necessity exception to its compensation requirement. Instead, it argues that only in circumscribed circumstances does the state’s compensation obligation fail to attach when it destroys private property
What Does NPEP Mean to Us?
No full textThe Northwestern Prison Education Program (NPEP) provides currently incarcerated individuals across Illinois an undergraduate education from Northwestern University. At Stateville and Logan Correctional Centers, admitted NPEP students work toward a Bachelor of Science degree, taking a full course load taught by Northwestern professors within the prisons’ walls. On November 14, 2023, the inaugural cohort of NPEP students at Stateville graduated from the program, making history as the first incarcerated students in the United States to earn a bachelor’s degree from a top ten university as ranked by U.S. News and World Report. This piece is a collection of personal reflections from currently enrolled NPEP students, who were asked to answer an open-ended prompt: “What does NPEP mean to you?” Students were encouraged to respond in any way they saw fit, and the essays included here represent various and varied takes on the simple question. Thomas Gordon, Justin Foster, and Scott Sanders reflect on the application and enrollment process of NPEP and the opportunities the program has given its students. Meanwhile, Juan Garcia and Brandon V. Wyatt write more generally about the importance and intersections of education and abolition. Bookending the collection, Tony Triplett and Giovanni Rios vividly describe NPEP as not just a program, but a lifesaving endeavor
Preventive Transparency in Third-Party Litigation Funding
No full textFor years, efforts to comprehensively regulate third-party litigation funding have been unsuccessful. But bills requiring mandatory disclosure are being introduced in Congress, and the Advisory Committee for Civil Rules has finally agreed to take up the issue. By grounding the discussion of third-party litigation funding in both the broader civil procedure and professional responsibility scholarship, this Article identifies an easy, uncontroversial reform to preventively address the categorical concerns raised by the practice. The primary contribution is a doctrinal intervention, identifying how legal ethics are an integral part of federal civil procedure and then drawing out the implications for third-party litigation funding transparency. The policy upshot of anchoring the analysis in legal ethics is that at minimum, litigants must disclose, in camera, both the existence of any third-party litigation funding agreements and provisions giving any control over the litigation to the funder. While the framework and resulting recommendation are modest—a first step based on a close study of where the law already is, not what it could or should be as a matter of first principles or other policy considerations—their effects should be significant, highlighting what is necessary to conform current practices to the federal judicial disqualification statute and several nationally uniform professional-conduct rules while breaking the existing policy stalemate
First Amendment Exceptions to Otherwise Valid Laws: A Doctrinal and Meta-Doctrinal Perspective
No full textWhen do the First Amendment’s Free Speech and Free Exercise Clauses require exceptions to generally valid laws? Recently, the Supreme Court has upheld a number of such exceptions, which excuse some speakers and religiously motivated actors from legal duties that apply to others, including in prominent cases under antidiscrimination statutes and emergency pandemic regulations. By contrast, other landmark cases––such as United States v. O’Brien and Employment Division v. Smith—insist that First Amendment exceptions should be rare.
In analyzing the fraught and confusing issues that surround First Amendment exceptions, this Article makes four main contributions. First, it conceptualizes claims to First Amendment exceptions as as-applied challenges, which the Supreme Court purports to welcome in other contexts, and elucidates the role of “severability” principles in making as-applied challenges possible. Insofar as as-applied challenges are unavailable, the Article argues, applicable doctrine necessarily relies on facial challenges to protect First Amendment rights. Second, the Article conducts a doctrinal survey of judicially mandated exceptions under both the Free Speech and Free Exercise Clauses and highlights the diverse variety of tests that determine when claims to exceptions can succeed. The survey confirms that First Amendment exceptions are indeed exceptional, though not anomalous. It additionally establishes, however, that facial challenges are the more common mechanism for protecting First Amendment rights––a conclusion contrary to the Supreme Court’s frequent admonition that facial challenges should be rare and disfavored. Third, the Article probes beneath the surface of current doctrines authorizing First Amendment exceptions and generates insights about the nature of First Amendment rights and the diverse interests that those rights protect. Based on variance in the Supreme Court’s receptivity to claims to First Amendment exceptions, the Article draws provocative conclusions about which underlying interests the Justices view as more and less deserving of judicial protection. Fourth, the Article exposes flaws in the Supreme Court’s reasoning in designing and applying frameworks authorizing First Amendment exceptions in two recent leading cases, 303 Creative LLC v. Elenis under the Free Speech Clause and Tandon v. Newsom under the Free Exercise Clause. Overall, the Article enriches previous understandings of how exceptions do and should fit into a complex ecosystem of First Amendment rights and interests