3320 research outputs found
Sort by
Just Research and Citation
Full text linkContemporary research and citation practices are often unjust. Data cartels like Westlaw and Lexis have parent companies that prioritize profits in ways that threaten immigrants. Even before the Dobbs decision, search engines could be deployed to weaponize data against pregnant people seeking reproductive care. Women and people of color have been legal scholars for more than a century but, as many scholars have observed, colleagues consistently under-cite, mis-cite or appropriate those scholars’ work with minimal recourse. Citation materials are often inaccessible to disabled people, poor people, or the public due to poor design, paywalls, or unpreserved content that falls prey to link rot. Yet many scholars and students still misunderstand citation practices as “just” research and citation—as in merely sourcing—and unknowingly perpetuate biased research practices. While resisting the “status quote” is imperative for many of these scholars, they simply haven’t been trained in just research and citation methods.
This Essay provides a framework for that training. Given how much legal research and citation is digital, that framework is grounded in feminist cyberlaw, a growing global movement that views through a feminist lens the influence of gender, race, sexuality disability, and class on cyberspace and the laws that govern it. Coupled with foundational methods, like Critical Legal Research and Critical Legal Information Literacy, this Essay examines why adopting and adapting critical methods with a feminist cyberlaw approach can help scholars align their work with the feminist cyberlaw values of safety, equity, and accessibility. Those values help scholars escape data cartels, engage marginalized scholars, embrace free and public resources, and ensure that those resources remain easily available—collectively promoting “just” research and citation, as in justice. Taken as a whole, this Essay provides practical tools for feminist cyberlawyers seeking to pursue just research and citation
Does the Original Meaning of the Fourteenth Amendment Protect Economic Liberty?
Full text linkIn my remarks today, I will defend the proposition that the original meaning of the Fourteenth Amendment protects economic liberty. To clarify the issue, let me being by defining economic liberty. I define economic liberty as the right to acquire, use and possess private property and the right to enter into private contracts of one\u27s choosing. If these rights are protected by the original meaning of the Fourteenth Amendment, then we can conclude that the Amendment does protect economic liberty.
In my view, the evidence that the original meaning Fourteenth Amendment protects rights of private property and contract is overwhelming. But to say that the Amendment protects the rights of property and contract is not to say exactly how these rights are to be protected. I will return to that important topic after I discuss what the original meaning of the Fourteenth Amendment protects
Pave Outer Space and Put Up A Parking Lot: Lagrange Points Should Be the Common Heritage of Mankind
Full text linkOuter space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.
This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford unique advantages for human-made space objects to loiter indefinitely with minimal expenditure of propulsive energy. Lagrange points constitute a scarce resource that is just beginning to be occupied; existing international law is inadequate for optimal governance of their future occupation and use.
This article proposes that the Lagrange points should be regarded as “the common heritage of mankind.” That structure has been applied—with intense controversy—in other domains, even though it remains imprecisely defined. The article offers a more comprehensive understanding of the concept, a portrait of how it could be applied to Lagrange points, and an argument in favor of that resolution
Biomanipulation
Full text linkScientific and technological advances in the latter part of the twentieth century transformed the field of biometrics. Carleton Simon, for instance, first postulated using retinal vasculature for biometric identification in 1935, but it was not until forty years later that an Eyedentify patent brought the idea to fruition. In 1937, John Henry Wigmore anticipated using oscilloscopes to identify individuals by speech patterns. Decades later, digitization and speech processors made voiceprint identification possible. In the 1970s, biological discoveries similarly led to the development of deoxyribonucleic acid (DNA) sequencing. And while Alphonse Bertillon in the late nineteenth century postulated iris distinctions, it was only in 1991 that John Daugman patented a means of extracting and encoding their unique patterns.
In this century, as algorithmic sciences, big data analytics, and artificial intelligence (AI) have gained ground, the biometric landscape again has radically altered. The range of collectable Physiological Biometric Characteristics (PBCs), which measure innate human traits, has exploded. The legal literature lags far behind, with almost every treatment of biometrics limited to a few PBCs, such as fingerprinting, facial recognition technology (FRT), or DNA. Nor have scholars considered the rapid expansion in Behavioral Biometric Characteristics (BBCs)—biologically grounded habits and proclivities, such as voice prints, eye movement, or gait signatures. Instead, just a handful of pieces focus on one or two BBCs. Yet thousands of scientific articles over the past fifteen years have focused on how to collect, analyze, and use PBCs and BBCs. Hundreds of thousands of patent applications have kept pace. Looking at just six of the most prominent companies, the numbers are staggering: between 2012 and 2022, they collectively applied for or obtained 12,000 to 19,000 biometric-related patents per year.
Legal scholarship has not only missed the depth and breadth of information that can be collected, analyzed, and deployed, but it also has largely overlooked a concerning new practice: biomanipulation, which I define as the use of biometric data to identify, analyze, predict, and manipulate a person’s beliefs, desires, emotions, cognitive processes, and/or behavior. Books and articles on consumer and market manipulation, of course, have been around for decades; but the role of biometric data in presenting an immediate, more personalized, and more concerning form of insight and potential control has gone largely unnoticed.
For the past fifteen years, companies have delved headlong into this realm, pushing the boundaries and looking for ways to capitalize on biometrically enabled inventions. Paralleled by scientific and technological advances, a fundamentally different world has emerged. Early on, emphasis was placed on consumer behavior. Meta, for example, has patented a system to extract linguistic data (words, word stems, and communication patterns) and facial markers, and pair them with demographic and social network information. It considers the level of influence wielded by a node in a network, the number of connections, and engagement patterns, as well as biographic data (e.g., affinities, work experience, education, hobbies, location, and preferences), for news feeds, ranking, advertising, and other activities.
What is at stake, though, is more than just purchasing patterns. Biometric data can be used to generate insight into an individual’s beliefs, desires, emotions, and fears—and then to alter them. In 2022, for instance, Amazon secured a patent to analyze an individual’s emotional state, set a new target state, deliver content to get the individual to hit that goal, evaluate the impact of stimuli delivered, and continue to shape the individual’s emotions until the desired emotional state has been reached. The company explained, [I]f a content provider intends to scare a user playing a game, the system may select content known to be scary, such as monsters or zombies, or may present video or audio (e.g., dark colors, scary sounds, or the like) to present in the game to the user. . . . The system may modify content based on a target or desired emotion to cause. For example, additional zombies may be added to an existing scene, or the tone or pitch of audio may be adjusted without causing an interruption to the presentation of the content.
Prior systems fell short; they failed to “account for a user’s current emotional state and how significant the transition from the user’s current emotional state to a target emotional state at a given time may be.” The proposed system selected and customized content to elicit the most direct emotional impact for each user, allowing it to obtain the “desired change to the user’s emotional state” within time limits. It employed “cameras, microphones, heartrate monitors, biometric sensors, [and] other . . . devices . . . to analyze and identify a user’s emotional state at a given time.” It could take into account body, arm, and hand position, heartrate, and other indicators, such as “fingerprints, face recognition, blood flow, retinal data, voice data, scents, and other data” to determine the user’s precise emotional state. The information could yield insight into “which content is associated with causing certain emotions, how often, how long it takes a user to transition from one emotion to another emotion, and other data.” The aim was to develop a system which could manipulate a target’s future emotions
Non-Extraterritoriality
Full text linkThe extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state’s law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law rule; it instructs courts to adjudicate the case under the law of another state. Because one state’s choice-of-law rules are not binding on the courts of other states, the provision may be disregarded by such courts, who may apply the statute’s substantive provisions to cases beyond the statute’s specified scope. On another view, cases beyond the reach of the statute are subject to another law of that state, such as its more general common law rules. Cases beyond the reach of the statute would thus be governed by another rule that state. A third view agrees with the first view that the enacting state has no law for excluded cases but insists that the provision limiting the law’s scope is not a choice-of-law rule. The provision is written as a limit on the law’s reach, and this substantive limitation must be respected by all courts. The statute cannot be applied to cases beyond its specified scope.
Each of the competing understandings of non-extraterritoriality has prominent judicial and scholarly adherents, and each finds support in successive iterations of the Restatement of Conflict of Laws. This article considers the judicial and scholarly defenses of each of the three positions and defends the view that external scope limitations are choice-of-law rules. Limitations on external scope reflect the legislature’s deference to the legislative authority of other states. They do not reflect a legislative preference that the statute’s substantive provisions not be applied to cases beyond their specified scope. If the legislature did intend to establish a different rule for cases involving out-of- state persons or events, the provision limiting the statute’s scope would in most cases be unconstitutional. In function and intended effect, a statutory provision limiting a statute’s external scope is a choice-of-law rule and, as such, can be disregarded by the courts of other states. But this position poses a conundrum: if the statute does not reach cases beyond its territorial scope, do courts violate their duty to decide cases according to law when they apply the statute to a set of facts that the statute does not purport to reach? Resolving this puzzle yields valuable insights into the nature of choice-of-law rules and the choice-of-law enterprise
The Lawlessness of Sackett v. EPA
Full text linkWhen the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis of the Court’s respect for other branches’ constitutional roles and, in particular, congressionally enacted policies; the predictability of statutory interpretation moves by the Court; the rigor and accuracy with which the justices grapple with other legal actors’ actions and contentions; plus the Court’s characterization and honest work with its own precedents. In addition, the Court’s opinions are lawlike or less lawlike depending on the clarity of the Court’s reasoning and fact-law linkages, so its own prospective effects are clear and knowable.
The Court’s ruling in Sackett v. EPA, which radically reduces the reach of the Clean Water Act’s protected “waters of the United States,” is unusually lawless even for a Court that in the last few years has often shown itself willing to overrule precedents. Overruling unsettles the law, but if done transparently and with full grappling with the old law and clear explanation, it is not necessarily lawless. Sackett involves unacknowledged overruling, and further shows lawlessness in its statutory interpretation, its characterization of its past Clean Water Act precedents, and in repeatedly characterizing the stakes and Act’s reach without hewing to the case facts, agency records, or balanced work with the Clean Water Act\u27s actual governing texts.
This brief Article, which is part of a follow-on paper symposium with scholars analyzing Sackett, parses the Sackett majority opinion against the backdrop of the statute’s actual provisions, the facts of the dispute, decades of tested and vetted regulatory materials, and key environmental and administrative law precedents. With almost no acknowledgment of the revolution wrought by the opinion, the Court—speaking through the majority opinion of Justice Samuel Alito—leaves a trail of abandoned, undercut, and unsettled bodies of law. Some owners of land-water borderline properties with an eye on new real estate development may have reasons to celebrate, antiregulatory think tanks have been rewarded, plus lawyers may benefit from sorting out new legal confusion. But as a result of Sackett, the nation’s waters are far more imperiled, others’ expectations dashed and needs neglected, and the nation’s legal fabric has been harmed. The majority opinion is built on layers of lawlessness
Equitable Thriving: A Lifecourse Approach to Maternal and Child Health Justice
Full text linkBlack women are at least three times more likely to die due to a pregnancy-related cause than White women. Grave racial disparities also abound in severe maternal morbidity, or significant unexpected health consequences of labor and delivery. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, eliminating the constitutional right to abortion, has only further restricted reproductive healthcare options and raised concerns that these disparities will grow even starker. Black, Indigenous, and Latine infants and children also experience unjust—and avoidable—health inequities. As a general matter, people of color are sicker across their lifespans and die younger in the United States.
A robust body of legal scholarship has surfaced significant problems with healthcare access and delivery, including racism within the healthcare system, that impact pregnancy, labor, and delivery and drive disparities in maternal and infant mortality and morbidity. Research shows that these inequities also have structural causes outside of healthcare and in many facets of life over a person’s lifespan. Indeed, myriad social conditions, such as housing insecurity, employment discrimination, and barriers to early childhood education, drive poor health and have an outsized impact on racial health disparities, including maternal and child health inequity. Laws in all these areas drive inequity in these conditions.
The health justice framework and movement aim to eliminate health disparities caused by laws and systems of subordination. This Article argues for urgent attention to maternal and child health injustice and proposes “equitable thriving” as a new approach—a lifecourse approach—to law and policy. Under-explored in legal scholarship, Lifecourse Health Development is a body of scientific theory and research that examines mechanisms of maternal and child health to promote human flourishing beyond the doctor’s office and the hospital room—and across the lifespan.
Building on ongoing efforts to attack barriers to maternal healthcare and the discrimination and bias within it, equitable thriving widens the analytical lens to examine maternal and child health justice across the broad range of sectors that impact health and across a wider time frame, long before and after pregnancy and across the lifespan and generations. The core thesis of this Article is simple: Legal action, informed by life-course science, is needed to preempt and mitigate grave racial disparities in maternal and child health—and to create the conditions necessary for children and parents from racially minoritized communities to not only survive but thrive
Client Confidentiality as Data Security
Full text linkThe duty of confidentiality has been a cornerstone of the attorney-client relationship for more than four centuries. Historically, this duty was not difficult to discharge. All a lawyer had to do to comply was not affirmatively share client information in public without consent. But that has all changed. The same technologies that provide unprecedented benefits of authorized access by lawyers and their clients create unprecedented risks of unauthorized access by others. As a result, although the duty of confidentiality was once synonymous with a duty to keep client confidences secret, today the duty necessitates that lawyers keep client confidences secure as well.
This critical shift did not go entirely unnoticed by the legal profession. In 2012, the American Bar Association adopted Model Rule of Professional Conduct 1.6(c) which requires lawyers to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to,” client confidences. This new rule had good intentions and was eventually adopted in some form by every state bar. Yet it has proven ineffective at protecting clients and difficult, if not impossible, to execute for lawyers. Worse, in the more than a decade since its adoption there has not been a single published disciplinary action for violating this duty in the digital context. Not one.
After telling the story of the legal profession’s adoption of a duty of data security and the shortcomings with the current approach to that duty, this Article seeks to outline its next chapter. Specifically, it argues that the lawyer’s duty of data security should not focus exclusively on the regulation of technological safeguards to prevent breaches and should focus instead on regulating the processes that lawyers must take to mitigate harm from potential breaches and the people that lawyers must consult when making data security decisions. This approach draws inspiration not only from professional responsibility scholarship but also from data security best practices from outside the legal profession that can help guide lawyers, protect clients, and incentivize enforcement by state bars despite constant technological innovation
How Should We Measure Effectiveness of Medical-Legal Partnerships?
Full text linkMedical-legal partnerships (MLPs) try to mitigate health inequity by uniting legal and health professionals to respond to legal determinants of patients’ health. While there is a long tradition of “patients-to-policy” work in MLPs, the current empirical evidence base has evaluated MLP effectiveness by assessing benefits to individual patients, clinicians, and hospital and legal systems. This article calls for future research to measure how community power, which includes shifting power to impacted communities to develop and lead equity-focused agendas, is built as both a process and an outcome of MLPs
The Persistent Public Health Emergency
Full text linkMay 11, 2023 was ostensibly a day of celebration. With infections and deaths from COVID-19 down, the federal government announced the end of the official Public Health Emergency three years after its initial declaration. But the conclusion of the Public Health Emergency also signaled the termination of unprecedented health protection measures—outside the realm of healthcare—such as eviction and utility shutoff moratoria and emergency rental and utility assistance. These COVID-era measures successfully cut eviction filings nationally by more than half and provided people in many jurisdictions with the protections and assistance needed to maintain their electricity, heat, water, and gas. Now that those measures have ended, evictions and residential utility shutoffs are again rampant, surpassing pre-pandemic levels in numerous places. For marginalized and minoritized communities that have long disproportionately experienced evictions and utility disconnections and their connected health harms, the health emergency persists.This Article scrutinizes legal drivers of health outside of healthcare—specifically in the areas of housing and residential energy access—and applies the theoretical lens of health justice to glean lessons from legal interventions in those areas during and after the COVID-19 Public Health Emergency. Drawing upon the critical theoretical perspectives that a health justice analysis necessitates, it contends that as contagion risks represented an alignment of interests among those who have long been marginalized and those with more privilege, the country engaged in a significant experiment in a time of crisis—taking unprecedented action in halting many evictions and utility disconnections and providing historic levels of emergency rental and utility assistance. Although these measures had positive impacts, they were ultimately temporary and inadequate. Instead of seizing on the opportunities for more transformative reform that can arise from a crisis, such COVID-era measures failed to lead to a meaningful disruption of the status quo. This Article concludes by arguing that to achieve health justice, reforms must be sustained, structural, and led by the communities who endure daily the legally constructed public health emergency of health inequity