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Is International Law Progressive
Full text linkThe rise of authoritarian populism in recent years has raised the question of whether international law can be coopted for authoritarian purposes. Tom Ginsburg has recently argued for the rise of what he calls “authoritarian international law” which, he claims, is undermining the hitherto progressive ethos of international law since the foundation of the United Nations. This paper critically examines this category of authoritarian international law. Adopting a Dworkinian interpretive methodology to the question of the normativity of international law, it argues that a putative authoritarian international law is incompatible with the normativity of international law as currently understood. This is the case, the paper concludes, notwithstanding the types of practices to which Ginsburg refers to support his Authoritarian International Law thesis
A Constitution of the Earth, to Save Humanity
Full text linkHumanity is facing one of the most dramatic moments in its history. There are several global challenges and problems that are not part of the political agenda of national governments, even though their solution is crucial for the survival of humanity
The Gettysburg Address: Lincoln’s Model Legal Argument
Full text linkThe Gettysburg Address does not appear to be a legal argument. One cannot find a rule anywhere in its few words. Nor does there seem to be any application of a rule to the facts of the case. There is a simple reason for this absence: the law in 1863 was wrong. Lincoln knew that, but he was too much the lawyer to advocate law-breaking. Instead, he used all the skills he had learned from his years in the courtroom to urge his listeners to look beyond the law’s flaws to find the truth of the Declaration’s “self-evident truth.
Mapping the Jurisprudence of the Facebook Court
Full text linkThe Oversight Board of Facebook (now Meta) has been described as a “court.” Acting like a judicial body, it adjudicates disputes about content moderation decisions of Meta. In some sense, the Board is a great experiment: it enables us, for the first time, to observe, analyze, and assess how private platforms can borrow the model of judicial review to enhance their governance, how the new platform laws have differed from and interacted with the old State laws, and what new principles, rules, and methods will emerge in this process of interaction, accommodation, and innovation. These developments constitute a crucial part of free speech jurisprudence for the Internet age.
This Article is the first piece that systematically and critically maps the jurisprudence of the Board in its initial three years of operation. First, the Board generally adheres to the European method, adopting a proportionality test and its permissive attitude toward speech regulation, while at the same time reconciling this approach with the American model by, for example, rigorously applying the “least intrusive means” requirement. Second, the Board tried to adapt both its procedural and substantive doctrines to the context of private moderation of online content, which is markedly different from governmental regulation of offline speech; several doctrinal tweaks have been devised in this process. Third, the Board has used various tools, such as information requests, continuous review, and policy advice to strengthen its supervisory power in its interaction with Meta
Agencies “Shall Cooperate”: A Blueprint for Affirmatively Furthering Fair Housing
Full text linkEvery federal agency perpetuates housing segregation. As if on autopilot, agencies routinely reinforce segregation unless they take intentional steps to counteract it. Building on my prior work on the Fair Housing Act’s statutory duty to “affirmatively further fair housing” (“AFFH”), this Article examines an agency’s obligation to reduce housing segregation in how it regulates, spends, and administers its programs. Addressing a gap in existing fair housing scholarship, this Article considers the overlooked statutory command that all federal agencies “shall cooperate” with the U.S. Department of Housing and Urban Development (“HUD”) to reduce housing segregation. In light of HUD’s newly proposed AFFH regulation, this Article examines what agencies must do to fulfill their statutory duty and what they can learn from HUD’s proposed approach. It also considers what legal mechanisms HUD and private actors may have to incentivize or compel other agencies to act. It concludes by offering a blueprint for how the executive branch can better coordinate AFFH enforcement and how agencies can reduce their segregative footprint
The Dark Side of Antitrust Statements of Interest
Full text link28 U.S.C. § 517 allows the Department of Justice (DOJ) to file a statement addressing a governmental interest in any pending suit. This procedural tool laid dormant for decades, utilized sparingly in litigation involving foreign sovereigns. In the 1960s, the government expanded its use to aid in developing civil rights. In 2009, the DOJ deployed Section 517 in a new arena: antitrust. Since then, each administration has followed suit. Though initially criticized, these statements now draw praise from antitrust scholars as a cost effective means for DOJ advocacy. This Article challenges these accolades. Its foundation is an analytical assessment of the DOJ’s statements of interest in antitrust cases. This data exposes a dark side to such filings. This Article explains how the DOJ’s use of Section 517 can tempt underenforcement of antitrust laws and overreach by the executive branch. This Article further discusses how the DOJ’s use of Section 517 wastes already scarce resources necessary to implement the United States’ antitrust laws
Second Look Myopia: State Sentencing Reform and the Local Prosecutorial Response
Full text linkThis Article advises caution against over-reliance on local prosecutors’ offices to effect second-look reforms and to filter cases worthy of review. Using the lens of New York’s recent second-look law, the Domestic Violence Survivors Justice Act (DVSJA), I analyze the ways in which the local prosecutor can serve as a functional barrier to statewide implementation of sentencing reform. The New York State Legislature enacted the DVSJA—after advocacy from hundreds of directly impacted individuals, stakeholders, and organizations and after significant opposition from only the District Attorneys’ Association—to change the way the State sentences survivors of domestic violence. The DVSJA also allows incarcerated survivors to seek resentencing under a reduced sentencing scheme. Data from the cases decided in the ’DVSJA’s first five years of implementation suggests that consent from prosecutors is correlated with success in securing resentencing. It also suggests that this consent is unevenly distributed throughout the state. In some jurisdictions, the DA’s office has served almost entirely to obstruct the path to relief. Even in those counties where prosecutors have demonstrated an openness to taking a second look, some categories of cases expose the limits of their willingness to pursue reform. This, I argue, should give us pause about the power of the local prosecutor both to implement and to thwart such statewide resentencing efforts. It offers, in turn, reason to be skeptical about second-look measures that depend on prosecutorial initiation or consent
Tribal Law: It’s Not That Scary
Full text linkTribal law is often presented in a negative light. Indeed, the Supreme Court’s skepticism about tribal law has resulted in severe limitations on tribal jurisdiction. This Article challenges perceptions of tribal law by surveying tribal law. While tribal law does rely on tribal customs, tribal law is largely consistent with mainstream American law. Tribal laws are often modeled on state codes or the Restatement.
This Article contends tribal law mirrors western law for two primary reasons—efficiency and legitimacy. Regarding efficiency, borrowing a western law is easier than creating a law from scratch; plus, many laws are common across cultures. A written western law is also easier to apply to disputes than unwritten tribal customs. Furthermore, harmonizing tribal law with the law of the surrounding state lowers transaction costs in disputes that cross the reservation border. The other reason tribal law parallels western law is legitimacy. Tribes know people may be suspicious of tribal law and sovereignty. By adopting western-style laws, tribes project an image non-Indians associate with governments. Thus, utilizing western laws can enhance tribal sovereignty
Indigenous Copyright Concepts and Indigenous Data Sovereignty: How Libraries and Archives Can Support It
Full text linkU.S. copyright law does not account for Indigenous knowledge. These items, such as stories, dances, songs, and oral teachings are data and works authored by a sovereign com- munity, not just individuals. Indigenous data sovereignty provides that data and cultural knowledge are subject to Tribal protections. Tribes have the right as a sovereign nation to govern the collection, ownership, and application of its own data and cultural knowledge. Assimilating Indigenous knowledge into non-Indigenous works is a copyright issue from an Indigenous perspective. Librarians can identify these Indigenous copyright issues to support local Indigenous Peoples and promote efforts toward achieving Indigenous data sovereignty