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Using Copyright to Combat Revenge Porn
Get PDFOver the past several years, the phenomenon of “revenge porn” – defined as sexually explicit images that are publicly shared online, without the consent of the pictured individual – has attracted national attention. Victims of revenge porn often suffer devastating consequences, including losing their jobs, but have had limited success using tort laws to prevent the spread of their images. Victims need a remedy that provides takedown procedures, civil liability for uploaders and websites, and the threat of money damages. Copyright law provides all of these remedies. Because an estimated 80 percent of revenge porn images are “selfies,” meaning that the subject and the photographer are one in the same, the vast majority of victims can use copyright law to protect themselves. Although copyright is not a perfect solution, it provides a powerful tool to combat revenge porn
Nuclear Kellogg-Briand Pact: Proposing a Treaty for the Renunciation of Nuclear Wars as an Instrument of National Policy
Get PDFThis article performs three functions. First, it offers a revisionist interpretation of the 1928 Kellogg-Briand Pact, the much-maligned treaty through which the key powers of the era, led by the United States, undertook to “outlaw” war, renouncing it as a tool of national policy and committing themselves to resort exclusively to pacific means for the resolution of their international disputes. Because of Kellogg-Briand’s inability to prevent the outbreak of World War II, the treaty has been derided for decades as a futile, utopian illusion, but this article argues that it was, in fact, a tremendous success in altering states’ attitudes toward, and concepts about, the initiation of hostilities. The treaty created a watershed in the world’s understanding of the controllability and need for a legal justification for warfare; it constitutes a major alteration in the intellectual history of warfare, even if it has hardly affected the frequency of armed combat.
Second, the article argues that the time has come to extend the concepts and strategy of Kellogg-Briand to confront the contemporary dangers of nuclear weapons, nuclear proliferation, and the specter of nuclear war. In particular, it argues in favor of a “nuclear version” of Kellogg-Briand, through which countries would commit themselves to condemning and refraining from nuclear war – at least any “first use” of nuclear weapons. The article surveys the existing arms control mechanisms that inhibit the reliance upon nuclear weapons and proposes important expansions.
Finally, the article offers a draft of the proposed new treaty, a Nuclear Kellogg-Briand Pact. The proffered instrument echoes the 1928 precedent, but stretches considerably beyond it, to incorporate “operational” provisions that would give meaningful “teeth” to the basic commitment. The draft treaty is accompanied by numerous annotations that explain the drafting choices and alternatives and cite analogous provisions in other treaties.
Overall, the ambition of the article is to build upon the inspiration of the original Kellogg-Briand Pact in prompting fresh thinking about the role of nuclear weapons in contemporary security policy, the “usability” of those armaments in combat, and the possibility of nudging the world closer to their complete elimination. An important step in that campaign is the social-psychological shift away from seeing nuclear weapons as an inevitable, permanent constituent of the global security structure, appreciating them, instead, as instruments that can be controlled, regulated and ultimately abolished
Artificial Meaning
Get PDFThis Essay investigates the concept of artificial meaning, meanings produced by entities other than individual natural persons. That investigation begins in Part I with a preliminary inquiry into the meaning of “meaning,” in which the concept of meaning is disambiguated. The relevant sense of “meaning” for the purpose of this inquiry is captured by the idea of communicative content, although the phrase “linguistic meaning” is also a rough equivalent. Part II presents a thought experiment, The Chinese Intersection, which investigates the creation of artificial meaning produced by an AI that creates legal rules for the regulation of a hyper-complex conflux of transportation systems. The implications of the thought experiment are explored in Part III, which sketches a theory of the production of communicative content by AI. Part IV returns to The Chinese Intersection, but Version 2.0 involves a twist—after a technological collapse, the AI is replaced by humans engaged in massive collaboration to duplicate the functions of the complex processes that had formerly governed the flow of automotive, bicycle, light-rail, and pedestrian traffic. The second thought experiment leads in Part V to an investigation of the production of artificial meaning by group agents—artificial persons constituted by rules that govern the interaction of natural persons. The payoff of the investigation is presented in Part VI. The communicative content created by group agents like constitutional conventions, legislatures, and teams of lawyers that draft complex transactional documents is artificial meaning, which can be contrasted with natural meaning—the communicative content of those exceptional legal texts that are produced by a single individual. This insight is key to any theory of the interpretation and construction of legal texts. A conclusion provides a speculative meditation on the implications of the new theory of artificial meaning for some of the great debates in legal theory
Toward an Ethics of Being Lobbied: Affirmative Obligations to Listen
Get PDFLobbying in the U.S. today grows out of a historical legal and, eventually, Constitutional right to petition the government for redress of grievances. English kings, the English Parliament, and American colonial legislatures had incentives for not only recognizing the right but treating it fulsomely, as a means for communicating extensively with the widest possible range of those over whom kings, Parliament, and legislatures had or sought to have power. Because of drastic changes in circumstance, today\u27s officials do not have this incentive. Financial and structural forces tend to narrow the range of people legislators and elected executives hear from. In other words, there is a systematic tendency for representatives and other elected officials to be lobbied only by a subset of people they govern. Those lobbied under these conditions have, I will argue, affirmative obligations to ensure that they communicate with those who lack the means, financial or otherwise to engage in lobbying and even with those who may lack present motivation to lobby because of relative unawareness of the need to communicate with those in political office.This paper identifies and elaborates the ethical importance attached of representatives and elected executives hearing from the widest range of the populace possible. Such ethical significance attaches regardless of one\u27s theory of representation in a republican democracy. The paper argues that legislators and executives have affirmative obligations to engage in meaningful communication even with people who cannot or ordinarily do not initiate efforts to reach them. It concludes by making some specific, concrete recommendations about measures elected representatives and executives could take to fulfill these ethical obligations
The ACA’s Contraceptive Mandate: Religious Freedom, Women’s Health, and Corporate Personhood
Get PDFOn June 30 2014 the Supreme Court decided Burwell v Hobby Lobby Stores, Inc, in a deeply divided judgment that engaged religious freedom, women’s health, and corporate personhood. Three closely held for-profit organizations challenged the Affordable Care Act’s contraceptive mandate, objecting to four contraceptive methods that they believe acted as abortifacients, in violation of their Christian beliefs.
The Court held that the contraceptive mandate violated the Religious Freedom Restoration Act of 1993, ruling that the Act’s protections extended to closely held corporations, with the mandate substantially burdening their religious freedoms. The Court acknowledged the federal government’s compelling interest in ensuring reproductive services, but said that the government could achieve this objective less restrictively, for example by directly funding the four contraceptive methods or by offering corporations the same accommodation given to non-profit religious organizations.
The Court’s judgment privileges corporate rights and religious freedoms, while burdening women’s health and reproductive autonomy. The Court failed to recognize the role of reproductive services in women’s equal participation in social and economic life, and deferred to companies’ subjective beliefs that the four contraceptive methods can prevent a fertilized egg from attaching to the uterus, for which there is no scientific evidence. The Supreme Court also created significant ambiguity around the definition of a ‘closely-held’ corporation, the extent to which large companies have religious freedoms, and whether Hobby Lobby applies to medical services beyond contraception. As well as undermining women’s reproductive health, the case solidifies a jurisprudential trend towards broadening corporate rights, which is constraining public health regulation in a wide range of areas including marketing of junk food, tobacco, and alcohol
A Tale of Two Rights
Get PDFIn part I of this article the author identifies and criticizes a cluster of constitutional rights, which she argues does tremendous and generally unreckoned harm to civil society, and does so for reasons poorly articulated in earlier critiques. At the heart of the new paradigm of constitutional rights that the author believes these rights exemplify is a “right to exit.” On this conception of individual rights, a constitutional right is a right to “opt out” of some central public or civic project. This understanding of what it means to have a constitutional right hit the scene a good two decades after civic republicans and critical legal theorists mostly had formed their respective critiques of individual rights. Consequently, such thinkers failed to incorporate the notion of constitutional rights into their critiques. The particular exit rights that she enumerates–that is, the rights to exit from the benefits and responsibilities of public projects, including public education, publicly funded policing, civil rights commitments, and public health projects–harm civil society in profound ways not appreciated by rights critics in the 1970s and 1980s. The harm these rights do, the author states, borrowing language from the title of Thomas Mann and Norman Ornstein’s recent book, has turned out to be even worse than it might have seemed in the heyday of our rights critiques. The author urges a reinvigorated rights critique that centers on these new rights and new harms.
In part II the author discusses a countertrend: the expansion of civil rights beyond those enumerated in the Civil Rights Act of 1964. Some of our most newly created civil rights, generally created by Congress and state legislatures rather than announced by courts, in effect extend to individuals various rights to entercivil society, or some civil project close to its core. She calls these civil rights “rights to enter”–these include, for example, the right to a high quality and public education, the right to purchase health insurance at affordable costs, the right to a safe home and neighborhood free of gun violence, the right to nurture a newborn or sick family member while not losing one’s job, the right to marry whom one loves regardless of sex, and the right to work and school environments free of discriminatory animus. All of these civil rights, imperfectly recognized in various statutes, invite participation in some core sphere of civil society: education, insurance markets, neighborhoods, family, marriage, or employment. These civil “rights to enter,” which stand in contrast to constitutional “rights to exit,” exemplify both an old idea that dates back to the early days of the republic, and a new idea that invites participation in a radically transformed civil society. Not only are these rights not harmful to civil society, they are integral to it.
The author states that, generally, civil rights to enter are clearly not buttressed by constitutional rights to exit, and increasingly are threatened by them. First, both our historical and more modern civil rights to enter civil society–the various civil rights won in the nineteenth century by freed slaves and wives, and in the twentieth century by racial and religious minorities; women; the disabled; the elderly; school children; gay, lesbian and transgendered citizens; laborers; economically struggling parents; and the victims of hate crimes and private and domestic violence–are not constitutional rights at all, and for the most part the courts have declared as much. Although there exists a civil right to these societal benefits, there is no clearly defined constitutional right to an adequate public education, to a police force, to some measure of health care, to be free of private discrimination in employment, to safe and fairly remunerated labor, or to help with child care while employed. All of these rights, however, are at least arguably civil rights. And some of them are core civil rights. But increasingly the Constitution not only fails to protect these civil rights but also threatens to undermine them, insofar as it grants individuals and corporations the right to exit precisely those civil projects and legal institutions that civil rights seek to guarantee others the right to enter. Civil rights and constitutional rights are thus decidedly not co-constitutive of a unified constitutional tradition, or of an articulable American identity, or a distinctively American conception of the nature of rights. Rather, civil rights and constitutional rights are on a collision course.
In both parts the author suggests that the almost ten-year-old constitutionally grounded, individual right to bear arms, particularly when combined with the broadened understanding of self-defense embodied in “stand your ground” laws, jointly constitute a paradigmatic, and maybe the paradigmatic, “exit right.” By contrast, the civil rights to physical security, and to state protection against private violence that interrupts it, are at least as old as the Constitution itself, and exemplify the civil rights paradigm that she tries to describe: the right to state protection against private violence is the quintessential and foundational “right to enter.” The author concludes with the observation that, while the constitutional right to own and use a gun and the civil right to protection from the state against private violence, are in obvious tension, the constitutional right to gun ownership recognized by the Supreme Court does not necessarily foreclose the possibility of a civil right to decent effective gun-control laws. Perhaps if we could spark a renewed civil rights movement, aimed at legislative activism rather than judicial activism, we might inspire a lawful and politically salient civil response to the threats to our safety and the tears to our social fabric that are occasioned by the Court’s newfound constitutional right to own and use lethal weapons. The same may also be true more broadly. The author’s general conclusion is that the way to repair the damage done to civil society by constitutional exit rights might be simply to reinvigorate our civil rights agenda
The Historic Role of Boards of Health in Local Innovation: New York City’s Soda Portion Case
Get PDFChildhood and adult obesity pose major risks for cancer, diabetes, and cardiovascular disease, with the poor and racial minorities suffering from disproportionately high burdens of obesity and chronic disease. With current policies failing, cities and states have moved forward with creative prevention measures–-with boards of health driving policy innovation in many local jurisdictions. The New York City Board of Board of Health’s (NYCBH) soda portion limit pushed the boundaries of innovation, but was struck down on June 26, 2014 by New York State’s highest court, which held that the Board trespassed on the City Council’s authority.
The Court’s decision ignored the critical role of local health agencies in responding to 21st century public health threats, including epidemics of obesity and chronic disease. The Court narrowly construed the NYCBH’s authority, characterizing its powers as administrative, and thus potentially stifling local innovation. The decision also obscured the fundamental truth that public health policymaking requires complex trade-offs and incremental action, as well as a multifaceted approach to reducing population weight gain. Policymaking often relies upon limited evidence, and agencies experiment with novel ideas while also transforming social norms and pushing the boundaries of public opinion. Although the portion rule would disproportionately affect disadvantaged individuals who drink the largest amount of soda, government’s failure to act represents a greater injustice. Enhancing opportunities to choose a healthy life path better serves the interests of justice, but the Court’s judgment takes us further away from realizing this social aspiration
Clinical Collaborations: Going Global to Advance Social Entrepreneurship
Get PDFIn the summer of 2012, transactional law clinics from three U.S. law schools: George Washington University; Georgetown University; and the University of Michigan launched a collaboration to serve a common client—Ashoka, a global nonprofit organization that supports close to 3,000 social entrepreneurs across 76 countries. While clinic collaborations within universities happen occasionally, clinic collaborations across universities are unusual. This essay focuses on the motivations, operations, lessons, and next steps of this cross-university, clinical collaboration aimed at advancing social entrepreneurship globally. Specifically, this essay examines why the collaboration was launched, how the collaboration is structured, what the collaboration offers clients and participating law students, how the collaboration has expanded the skills and knowledge of the three clinical directors who are participating in this collaboration, where this collaboration might go next, and finally, what others might learn from this experience when contemplating their own cross-university, clinical collaborations
The President’s National Security Agenda Curtailing Ebola, Safeguarding the Future
Get PDFA clear lesson of the Ebola epidemic in West Africa is the need for strong public health systems globally, including in the United States. Ebola has highlighted the dangers of weak public health systems, from the immense shortage of health workers in West Africa to the budget cuts at the U.S. Centers for Disease Control and Prevention. In response to Ebola and the broader threat of infectious disease, President Obama has proposed a $6.2 billion supplemental funding request to Congress. The supplemental would surge resources for containing and treating Ebola in West Africa -- including a reserve of funds to enable a robust, flexible response going forward--enhance prevention and detection of, and response to, Ebola in the United States, and buttress U.S. and partner country health systems to respond rapidly and flexibly to all infectious disease hazards in the future.
The additional resources the supplemental would devote to the ongoing Ebola crisis is critically important. So is the supplemental request\u27s funding to prepare for the future, including developing treatment centers in the United States that would provide advanced care and isolation facilities, and funding for research and development for vaccines and medicines for Ebola and other novel infections. The request would also provide the first significant batch of funding to the Global Health Security Agenda, which President Obama unveiled in February 2014. The Global Health Security Agenda takes an all-hazards approach to building greater global capacity to prevent, detect, and respond to infectious diseases, from zoonotic diseases and antibiotic resistant bacteria to biosecurity and bioterror threats.
From environmental degradation to increased human-animal interchange, the threats are only increasing. Strong public health systems at home and globally are our best defense. Congress should support the President\u27s supplemental funding request, furthering a bipartisan U.S. tradition of support for global health, continuing U.S. global leadership in the Ebola response, and preparing our country and our world for disease threats of the future
The Trickle-Down War
Get PDFThe history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and more technologically sophisticated armies.
The complexity and expense of maintaining more professionalized standing armies made it increasingly difficult for non-state groups to compete with states, giving centralized states a war-making advantage and enabling them to increasingly monopolize the means of large-scale violence. But the need to recruit, train and sustain ever-larger and more sophisticated armies also put pressure on these states to provide basic services, improving nutrition, education, and so on. Ultimately, we arrive at the late 20th century European welfare state, with its particular trade-offs between the state and its subjects