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The Needless Search for a Founding-Era Hearsay Definition
Get PDFModern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced by the Court in its opinions so far, is a modern innovation. In future cases, the Court will have to identify a founding-era hearsay definition or chart an alternate path.
Since there was no precise definition of hearsay in 1791, this essay proposes an alternate path: reframing the Clause as prohibiting unconfronted “testimonial statements” (not “testimonial hearsay”). It also suggests that the Court’s insight regarding the unobjectionable nature of non-hearsay can be incorporated into the definition of “testimonial.” The current test for whether a statement is “testimonial” focuses exclusively on the context in which the statement arose. A more robust test would examine both the statement’s context and the subsequent use of that statement at trial.
With the proposed addendum, an out-of-court statement would only be “testimonial” if generated in a testimonial context and introduced to prove the declarant’s assertions. This broader inquiry neatly parallels the Sixth Amendment text, identifying circumstances when an out-of-court speaker truly bears witness at trial and thus becomes a “witness against” the accused. And this inquiry eliminates any need to address the often-unanswerable question of whether a statement would have been “hearsay” in 1791
Regulating Crypto Intermediaries
Get PDFEarly 2024 produced a dramatic rebound in cryptocurrency markets as Bitcoin hit an all-time high price in March 2024. This surge was fueled in large part by judicial and regulatory action. After years of denials and a high-profile defeat in court, the U.S. Securities and Exchange Commission (SEC) finally approved the first exchange-traded funds (ETFs) for Bitcoin in January 2024. Many believe that these approvals will lead to a greater shift of investment funds into crypto. Crypto regulation is not, however, ready for this shift. While ETFs have clear treatment under current law, other institutions lack the same clarity or simply operate outside of regulation. These regulatory gaps produced the failures and scandals of recent years, such as Voyager and FTX, which inflicted large losses on investors. Policymakers should fill these gaps by treating crypto like a subspecialty of financial regulation, which supports the safety and operation of intermediaries like mutual funds and banks. Intermediaries, like crypto exchanges, should be required to hold appropriate assets to secure customers’ claims. These reserves must also be segregated to guard against self-dealing and insolvency. Ultimately, the goal should not be to make cryptocurrency safe. Rather, regulation should focus on the soundness of institutions (like FTX) that offer crypto to investors
When Amazon Drivers Kill: Accidents, Agency Law, and the Contractor Economy
Get PDFAmazon vans and Uber drivers frequently crash into other cars. Despite the many injuries and deaths that result from these accidents, Amazon and Uber deny responsibility for such claims because they categorize their drivers as “independent contractors.” But this contractor defense distorts the basic rules of agency law. Over a century ago, courts crafted agency standards that forced businesses to pay for the harms that their workers caused. Since that time, American firms have attempted to skirt this rule by labeling their workers as “contractors” rather than as “employees.” Aware of this age-old tactic to avoid liability, courts historically built sufficient flexibility into agency standards to hold companies responsible for injuries to others, even when ostensible “contractors” committed those torts.
In the years to come, a growing number of drivers for Amazon, Uber, and other on-demand firms will hit the road, make mistakes, and harm members of the public. Applying agency standards to this emerging problem, this Article develops a legal framework for determining when to hold on-demand firms accountable for the accidents that their contractors cause
Press Play to Presume: The Policy Benefits Behind the Trademark Modernization Act\u27s Resurrection of the Irreparable Harm Presumption in False Advertising Cases
Get PDFPart I of this Note provides background information on the history and principles surrounding injunctions generally, the Supreme Court’s rulings in eBay and Winter, federal courts’ rulings after these decisions, and the Trademark Modernization Act of 2020. Part II presents anti-presumption advocates’ arguments against the presumption due to longstanding equitable concerns and because, in their view, requiring a showing of irreparable harm is not too difficult. Lastly, Part III discusses why the irreparable harm presumption in the TMA serves as beneficial policy by presenting counterarguments to anti-presumption reasoning and additional benefits of the presumption.
This abstract has been taken from the author\u27s introduction
The Corporate Right to Bear Arms
Get PDFThe ability of a corporation to exercise constitutional protections has been rife with uncertainty and change since the conception of corporate rights came into existence. The history and rapid development of the corporation, combined with the misapplied and misunderstood “corporate personhood” theory, have resulted in an almost unintelligible hodgepodge of corporate constitutional applications. Similarly, the concept of the right to bear arms has equally been muddled and applied very differently at varying times and locations since before the establishment of the Second Amendment. This Article attempts to clarify how an alternative to the “corporate personhood” theory, namely the “purpose” theory is increasingly relied on by the Supreme Court to more consistently and transparently extend or restrict constitutional rights. Purpose analysis provides a sound legal basis to conclude that the Second Amendment should also be applied to corporations.
In recent years, the Supreme Court has dramatically increased the rights of corporations. Simultaneously the Court has also significantly augmented the right of Americans to possess and publicly carry a vast array of firearms. However, the Court has never said whether this right is one possessed by corporations. Nevertheless, the reasoning in many cases generally dealing with corporate rights and gun rights, including the Court’s most recent Second Amendment case, point to the answer that corporations are entitled to the right to bear arms. While there is an understandable amount of antipathy on the part of many scholars to expanding Second Amendment rights in the manner that the 2022 Supreme Court decision in New York State Rifle & Pistol Association v. Bruen did, a corporate right to bear arms does not reflect the same risks discussed in Bruen. Currently, there is a split in whether lower courts have held in favor of corporations (or other collectives) having Second Amendment rights, and this disagreement could and should eventually come before the Supreme Court.
Whether one agrees with the outcome of Bruen or not, purpose analysis, which entails judicial examination of the purpose behind particular constitutional provisions to determine their boundaries, dictates that corporations should have Second Amendment rights. Indeed, corporations’ interests in these rights are rooted in and further the key purposes of the Second Amendment: self-defense, protection of third parties, and defense of property
Likes, Camera, Action: Safeguarding Child Influencers Through Expanded Coogan Protections and Increased Regulation of Social Media
Get PDFAs a result of the increased popularity of influencer marketing, various “child influencers” have risen to stardom on popular social media platforms such as YouTube, TikTok, and Instagram. To date, these children have no protections under the law to safeguard them from the dangers of the influencer industry. Namely, there are no safeguards from financial exploitation by parents and guardians; children hold no guarantee that they can retain their earnings from social media. Further, there are no regulations in place regarding the number of hours child influencers may work and such children sometimes maintain little control over the extent of the content posted on their platforms. In fact, some parents log chronicles of their children before, during, and immediately after birth and continue to display their children’s lives as they grow and develop.
This Note addresses the dangers that child influencers face and compares the current crisis to the struggles of childhood actors. Further, it recommends the expansion of child actor laws to also cover child influencers while recognizing potential oversight problems that may follow. Critics of other literature on this topic suggest that it is too difficult to track and regulate parents filming children in the home. To address oversight problems, this Note suggests further action through a three-pronged solution: (1) expand existing child actor laws to cover child influencers; (2) enact greater regulation of social media companies themselves to ensure compliance with child labor laws; and (3) increase enforcement through social media platforms’ community guidelines. Cracking down on social media companies and content posted on their platforms leads to a discussion about immunity under Section 230 of the Telecommunications Act. To that end, this Note calls for a revision of Section 230 to account for changes in the modern era. Together, these three solutions can help prevent the exploitation of children and afford them the protections they deserve
National Security and Federalizing Data Privacy Infrastructure for AI Governance
Get PDFThis Essay contends that data infrastructure, when implemented on a national scale, can transform the way we conceptualize artificial intelligence (AI) governance. AI governance is often viewed as necessary for a wide range of strategic goals, including national security. It is widely understood that allowing AI and generative AI to remain self-regulated by the U.S. AI industry poses significant national security risks. Data infrastructure and AI oversight can assist in multiple goals, including: maintaining data privacy and data integrity; increasing cybersecurity; and guarding against information warfare threats. This Essay concludes that conceptualizing data infrastructure as a form of critical infrastructure can reinforce domestic national security strategies. With the growing threat of AI weaponry and information warfare, data privacy and information security are core to cyber defense and national security. Data infrastructure can be seen as an integrated critical infrastructure strategy in constructing AI governance legally and technically
Intellectual Property and the Myth of Nonrivalry
Get PDFThe concept of rivalry is central to modern accounts of property. When one person’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all.
This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that framework, it argues that rivalry should be understood as a function of the extent that any one person’s desires with respect to the disposition of a given resource are incompatible with the desires of others, and it criticizes the assumption that rivalrousness should only concern clashes between two people’s desire to make active use of the same resource. In a range of contexts, such as land conservation or ideological disagreement, conflicts arise because one person wants to use a resource and another simply wants that person to refrain from doing so.
This Article then applies this understanding to intellectual property. It shows that although the notion that information goods are nonrivalrous is treated as a statement of self-evident fact, the basic claim depends upon either unsubstantiated, and often improbable, empirical assumptions about individual preferences or, more likely, a substantial element of normative judgment about different motivations to restrict use. Ideas and information can generate the sort of conflicts property law exists to mediate, and if the law should generally favor rights to use over rights to withhold access, more than a reflexive invocation of nonrivalry is needed to explain why. The rivalrousness of informational goods is apparent in many contexts ranging from trademarks to privacy to digital assets like cryptocurrency, and the potential for rivalry remains for other objects of intellectual property protection like inventions and expressive works. In borrowing from the conceptual vocabulary of public goods economics, the literature on intellectual property has tended to mischaracterize and conflate different public goods issues, thereby obscuring the nature of the conditions that might justify or undermine rights in information goods. This Article concludes by looking at ways these insights bear upon several specific legal problems, such as copyright’s fair-use doctrine, remedies for IP infringement, and the question of whether copying information constitutes a seizure for Fourth Amendment purposes
The Co-Optation of Restorative Justice and Its Consequences for an Abolitionist Future
Get PDFThis Article explores the ways in which RJ [restorative justice] has been co-opted, argues that RJ’s core principles can never coexist with the criminal punishment system, and analyzes how RJ co-optation is a barrier to abolitionist goals. It proceeds in three parts. In Part I, I present the fundamental principles upon which RJ processes should be based. While many scholars and practitioners have identified the lack of a consistent RJ definition by which to guide the work, I propose that there are fundamental principles that serve to guide RJ, and these are in stark contrast with the principles and realities of the criminal punishment system. Part II describes how RJ has been co-opted by law enforcement, prosecutors, courts, and state law. I provide examples of how co-optation occurs via these state actors and how this cooptation results in a distortion and often a complete obfuscation of RJ’s fundamental principles. Finally, Part III discusses how the cooptation of RJ lends legitimacy to the criminal punishment system and expands the web of punitive actors in a way that detracts from abolitionist goals. It also contemplates whether all hope is lost with RJ or whether it can be utilized as an incremental step towards abolition.
This abstract has been taken from the author\u27s introduction