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Destroy, Rebuild, Repeat: How to Break the Climate Disaster Cycle
Full text linkClimate change is fundamentally reshaping how we live, where we live, and whether we invest in or retreat from climate-exposed communities—but climate and disaster law is not changing with the climate. This legal latency is driven by antiquated statutes, doctrines, and policies that have not kept pace with the climate moment. Ex ante adaptation decisions governing where to live are life and death choices that shape ex post disaster response. Laws and policies should facilitate sound climate decisionmaking, but too often they frustrate individual and governmental decisions on whether to stay or retreat. In this Article, I argue that laws designed for a different physical environment, an environment more stable than the one we currently have, harm our ability to respond to climate-induced disasters.
What is our national adaptation strategy to counteract the climate crisis? We do not have one. What we do have can be described as “unmanaged retreat”—a reactive, disjointed, and ad hoc “strategy” that exacerbates inequalities. Unmanaged retreat also traps communities in a cycle of repeated rebuilding after climate-induced destruction. This “strategy” stands in stark contrast to what climate change demands: proactive, forward-looking, and innovative laws and policies that address climate risk. Achieving a more effective legal framework begins by dismantling legal barriers and breaking the destroy, rebuild, repeat cycle.
This Article provides a new normative framework to break the climate disaster cycle. Legal evolution will require a shift away from a reactive “destroy, rebuild, repeat” model to a systematic, proactive “inform, retreat, suspend” strategy. This transformation favors information (by increased transparency with the public about climate risk), retreat (by voluntary buyouts from climate hazard zones), and suspension (by halting governmental services). Our ability to make this legal shift will determine future adaptation and disaster progress
Comparative Federalism in the US and the EU — The Winemaker\u27s Legal Perspective
Full text linkIn our lives, many of us will intersect with wine at some point, be it an aged bordeaux presented in elaborate fashion, or a box of nondescript cooler doled out at a backyard cookout. Beyond analyzing a wine for the complexity of its bouquet, or the strength of its tannins, the wine market as a whole beckons a nuanced study from the perspective of comparative law. The radical differences in business models, consumer base, and even expectations, between the “old world” and the “new world” give rise to a number of topics ranging from authenticity, legal protection, and government regulatory procedure that give insight to the respective regulatory procedures of the US and the European Union. At the heart of this paper is a comparative study of federalism as made manifest in these two worlds, comparing how these two regulatory bodies promulgate rules for an industry that requires a recognition of hyper-specific regionality on the one hand, and universal regulatory measures on the other. A conclusion as to what system might be preferable for wine law is not the aim of this discourse, only how different legal context and culture yields different approaches towards regulating the same industry
A Deep Look at Copyright’s Volitional Conduct Doctrine and Generative Artificial Intelligence
Full text linkThis Article examines copyright’s volitional conduct doctrine, as applied to generative artificial intelligence (AI) systems. It traces the doctrine’s origins and evolution through key court decisions, analyzing its underlying rationale as a response to the harshness of the RAM copy rule and its elaboration as a proximate causation doctrine. The Article then evaluates how classic volitional conduct analogies to copy shops and photocopies may fit generative AI systems. Ultimately, the Article proposes a jury instruction to guide application of the volitional conduct doctrine in generative AI cases. The Article argues that the doctrine serves an important role in copyright law, complementing fair use and secondary liability. It also explores how precautionary measures adopted by AI developers may factor into the volitional conduct analysis. The Article concludes that, while not dispositive alone, the volitional conduct requirement can help courts and juries properly frame copyright infringement inquiries in generative AI cases
The Globalization of Copyright Exceptions for AI Training
Full text linkGenerative AI, machine learning, and other computational uses of copyrighted works pose profound conceptual questions for copyright law. This Article surveys multiple countries with different legal traditions and local conditions to explore how they have responded to these questions in relation to the use of copyrighted works for AI training without express permission from the relevant rightsholders. Our survey suggests an emerging international equilibrium in which jurisdictions from around the world have found ways to reconcile copyright law and AI training. In this equilibrium, countries recognize that text and data mining, computational data analysis, and AI training can be socially valuable and may not inherently prejudice the copyright holders’ legitimate interests. Such uses should therefore be allowed without express authorization in some, but not all, circumstances.
We identify three forces driving toward this equilibrium: (1) the centrality of the idea-expression distinction in copyright law; (2) global competition in AI; and (3) the race to the middle among countries undertaking copyright law reforms. However, we also address factors that may upset this emerging equilibrium, including ongoing copyright litigation, partnerships, and licensing deals in the United States, as well as legislative and regulatory efforts in both the United States and the European Union, most notably the adoption of the EU Artificial Intelligence Act.
A key lesson of our multi-country survey is that, globally, the binary policy debate that assumes that text and data mining and AI training must be categorically condemned or applauded has been eclipsed by a more granular debate about the specific circumstances in which the unlicensed use of copyrighted works for AI training should be allowed or prohibited. Countries that have hesitated until now to modernize their copyright laws in the area of AI training have several templates open to them and little reason for hesitation
How Theories of Art Can Inform Debates About AI
Full text linkDebates about artificial intelligence (AI) tend to swing between the optimistic and the apocalyptic. I propose a less binary approach that frames conversations about AI from the perspectives of theories of art and creativity. Whether we agree that AI is artificial or intelligent, whether it should be constrained or liberated, we cannot deny its influence on literary, artistic, and innovative production. AI may be described as simply a new tool to produce art and science, like the camera or the microscope, or it may transform and reshape art and science, the way the internet transformed global communication. Either way, these debates about AI concern its relationship to treasured human activity, and, thus, this Article asserts they have something to learn from philosophies of art and aesthetics. Copyright law may be the most obvious legal regime to address some of AI’s effects on creative practices, but copyright cannot and should not solve the problems AI raises for artists and authors. Better automation or more precise laws inadequately address the problems generative AI poses. Instead, art history and aesthetic theory—and their attention to literature, painting, poetry, music, or any other art form or “artifice”—provide better frameworks for thinking about the challenges and opportunities of generative AI because of their focus on struggles over our common humanity
Islamic Finance, Commercial Law, and Economic Justice: Apocalyptic Challenges to the Global Order
Full text linkThis Article engages with the heated debates about the Islamic finance industry, which range from praise as an ethical model of ESG principles to sharp criticism as a vehicle for financing terrorism. Offering a novel lens, this Article examines several case studies of Islamic thinkers and movements that have disrupted global politics, exploring how they deploy apocalyptic ideology to promote vastly different visions of future economic orders. Some of these case studies reinterpret key concepts from Islamic commercial law—like unjust enrichment, limited liability partnerships, insurance, almsgiving, and inheritance—while others call for a return to abandoned practices, such as slavery, discriminatory taxation of religious minorities, and the confiscation of their property. These apocalyptic ideologies also critique broader global economic norms—challenging the use of fiat currencies, fractional reserve banking, and the inflationary policies—as well as the core assumptions underpinning classical and neoclassical economic theory, and the philosophy of utilitarianism. The political contexts vary: some movements use apocalyptic narratives as bottom-up critiques of the social and economic status quo, while others, particularly those in power, use these narratives to pacify and control economically distressed populations. Ultimately, this Article challenges prevailing paradigms in Islamic finance and raises critical questions about the future of Islamic commercial law and economic justice, especially in an era increasingly shaped by apocalyptic expectations
A Vicious Cycle: An Intersectional Analysis of Black Women’s Legal and Socio-Economic Vulnerability in the HIV/AIDS Epidemic
Full text linkDitching Deference: Redefining Particular Social Groups in the Wake of Loper Bright
No full textThousands of individuals flee gang-related violence and seek asylum in the United States every year. Many of these asylum seekers claim they suffer persecution because of their membership in a “particular social group” targeted by the gang’s brutality. Left undefined in the 1951 Refugee Convention, “social group” is interpreted by U.S. immigration agencies in an increasingly restrictive manner. Over the years, the Board of Immigration Appeals has adopted a three-part test for social group membership, and using these criteria, immigration courts often deny social groups based on opposition to gang recruitment. Thus, the United States is at odds with prevailing international standards, which generally recognize victims of gang violence as refugees.
Viewing the current test as a permissible interpretation of the ambiguous social group provision, federal courts have largely upheld the criteria through Chevron deference. While other scholars have criticized the application of Chevron to asylum determinations and credited the constriction of social group protection to its deferential mandate, this Comment concludes that Chevron accounts for only half the reality of judicial deference. Rather, this Comment untangles the muddled sources of deference in asylum cases, suggesting courts have relied both explicitly on Chevron deference and secondarily on traditional principles of plenary power to uphold agency interpretations of “social group.”
This recognition comes at a pivotal moment, as the Supreme Court’s decision in Loper Bright overrules reflexive deference to agency interpretations and directs courts to exercise independent judgment in determining the “best meaning” of statutory schemes. In this vein, this Comment ultimately suggests that Loper Bright opens the door for the Court’s independent reconsideration of the meaning of “social group.” However, with plenary power underscoring judicial deference in asylum cases, it concurrently addresses the inherent risk the Court will simply shift its rationale for deference to plenary power principles and, thus, circumvent judicial review altogether. Despite the lurking presence of plenary power, this Comment presents a path forward for the Court to sidestep special deference to immigration agencies and independently interpret the meaning of “social group” consistent with international standards
Eléonore Raoul: Early Years as Women\u27s Suffrage Advocate and Law Student (1916-1920)
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The AI Act Manipulation Gap
Full text linkThe European Union’s Artificial Intelligence Act (AI Act) represents a significant step in regulating AI technologies, but this paper argues that its provisions on manipulation are critically under-inclusive. Through a comprehensive analysis of AI-enabled manipulation and the current EU legal framework, this paper offers an account of how the AI Act’s narrow focus on subliminal techniques and purposeful manipulation fails to address the full spectrum of AI-driven manipulative practices.
The paper develops its argument in four parts. First, it provides an overview of AI-enabled manipulation, highlighting its unique characteristics and the structural changes it introduces to democratic processes. Second, it examines the relevant EU legal framework, including the Digital Services Act and the Regulation on political advertising. Third, it critiques the AI Act’s provisions, exposing the flaws in its assumptions about human rationality and its outdated focus on subliminal techniques. Finally, it proposes solutions to address the Act’s under-inclusiveness, including broader interpretations of key terms and a new definition of manipulation as “using someone as a means against themselves.” These insights offer valuable lessons both for the interpretation of the AI Act and for other jurisdictions. With increasingly agentic systems, it is expected for AI-enabled manipulation to become more pervasive, subtle, and potentially harmful, underscoring the urgency for robust and adaptive regulatory frameworks that can effectively safeguard individual autonomy, dignity, and the integrity of democratic processes