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The Excessive Fines Clause in the Federal Courts: A Quarter-Century of Narrowing
Full text linkThe Eighth Amendment prohibits “excessive fines,” but what exactly does “excessive” mean? The question has taken on some urgency in recent years as American legislatures have sharply increased the economic penalties associated with criminal convictions. In 1998, in United States v. Bajakajian, the Supreme Court for the first time established a test of sorts to determine whether an economic penalty is “excessive” in violation of the Eighth Amendment. The test was not without its ambiguities but offered some potentially robust protection against the rising tide of fines, fees, forfeiture, and restitution. However, the promise of Bajakajian has been undermined in the lower courts.
This Article presents the first systematic analysis of how Bajakajian has been interpreted and applied by the federal circuit courts of appeals. The Article shows that, at practically every turn, the circuit courts have adopted narrowing interpretations of Bajakajian, which have largely negated the practical significance of the Eighth Amendment ban on excessive fines. Indeed, in some important respects, the circuit-court opinions more closely resemble the dissenting than the majority opinion in Bajakajian. The Article concludes with a consideration of what the Supreme Court might do in response to the circuit-court cases, from acquiescence to simple reaffirmation of Bajakajian to the development of an even more robust and easily enforceable approach to the Eighth Amendment right
Tik Tok! TikTok: Escalating Tension Between U.S. Privacy Rights and National Security Vulnerabilities
No full textVastly popular short-form video provider TikTok employs personalized content algorithms for each consumer. Because TikTok is controlled by the Chinese Communist Party (CCP) of the People’s Republic of China, a legitimate question exists whether TikTok constitutes a national security risk to the West like a number of influential and successful high growth social media platforms that have been used by nation-states during recent years for propaganda and disinformation purposes. Cyberattacks upon American interests have been attributed to China, Iran, North Korea, Russia, and others. Well-documented examples of foreign activity and exploitation resulting from disruption of the U.S. elections since 2016 now exist. It is the rise of Xi Jinping to lead both the state and the CCP during 2013 that sets the stage for foreign policy and intelligence information gathering against both domestic Chinese and foreign individuals. During late 2024, Senate Intelligence Committee Chair Mark Warner characterized China’s recent hack of the U.S. telecommunications system as, “Far and away the most serious telecom hack in our history.
Public Private Property
No full textMany struggles are being fought in America today around regulation and redistribution of private property rights: between owners’ right to develop land and society’s need for environmental conservation; between landlords’ privilege to charge higher rents and society’s need for affordable housing, between property owners’ desire for protection from negative effects and unhoused persons’ need to live in the only space accessible to them, etc. These struggles, however, are doomed by a widely shared notion that public and private are inherent qualities in a zero-sum game. This Article refutes this notion. Building upon Legal Realist, post-Realist, and poststructuralist insights, it argues that public and private are effects of publicizing and privatizing acts. They are not opponents, but accomplices that depend on each other for meaning. Property is both public and private. It is public when, to the extent, and precisely because it is private, and vice versa. A healthy property system must embrace the paradigmatic status of both private and public property. Recognizing the value of one but denying that of the other is to build a chair with half its legs.
This Article attributes the current conflicts around property regulation and redistribution to a lack of public property paradigm in American law. To fill this gap the Article presents a public property paradigm as a companion strategy to the existing private property paradigm. The core of this public property paradigm is a general and unconditional right for everyone in America to have and enjoy essential property rights such as housing and ecological commons. The Article grounds this public property paradigm on the dual human condition of transcendence (freedom) and facticity (fixedness), drawing from phenomenology, Hegelian freedom, Vulnerability Theory, and feminist theory.
This Article is radical, not so much because of the institutions it proposes, but because of how it gets there. The Article takes a highly eclectic approach, borrowing from diametrically opposing theories of property and the human condition, and building a theoretical house that is more capacious than a pure theory would allow. The borrowed theories are compatible in this Article, but only with a heavy dose of pragmatism and a deep commitment to cultural and political pluralism
Artificial Intelligence and Music Mash-Ups: Monetizing an Opt-In Closed Universe Database to Preserve Royalties and Credit for Composer and Sound Recording Rights Holders
No full textThis Article charts the development of an opt-in database of music publishing and sound recording catalogues that would allow music industry stakeholders to profit from those who use artificial intelligence to generate new creative content from existing intellectual property. The database would be a portal to content that rights holders would consent to include in a library made available to the public. The database could be advertiser-supported, allowing for no-cost access by the public, or users could pay for a blanket license or per- search fee. Proceeds from the database would be distributed to rights holders based on the content elements “scraped” from the database in answer to the user’s AI prompt. The Article proposes an “ingredient box” that would list the AI elements, proportionally, in the final product. With industry buy-in, stakeholders who participate in this system could receive royalty payments and credit acknowledgments for their work; in return, members of the public who use the system would get a safe harbor from copyright liability for use of the database content
The Intersection of Dementia and Criminal Behavior
No full textAs the number of individuals affected by dementia increases, the criminal justice system continues to face questions about dementia and criminal responsibility. However, gaps in the legal process have left these individuals, incapable of forming intent, vulnerable to wrongful punishment. Courts rely on traditional culpability frameworks that fail to account for the nuance in dementia-related cognitive decline, and, as a result, prisons are forced to function as de facto nursing homes lacking adequate resources to provide proper care. This Comment proposes treating dementia as a sliding scale, arguing for a context-specific response through streamlined crisis response, use of diversion programs, and implementation of specialized facilities
Beyond the Hype: The Use of “Artificial Intelligence” in Healthcare and the Legal and Business Risks Associated with this New Technology
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My Body, My Voice: Defining Vocal Identity Rights to Combat AI-Generated Deception
No full textKamran Moos emphasizes the growing risk of nonconsensual AI-generated voice misappropriation and suggests a novel legal framework to address the issue. Moos explains how AI models have made voice replication quick and easy, in some cases requiring only a two-second voice clip to produce a convincing audio recording. These AI-generated recordings can be used to carry out identity theft, misinformation, and commercial exploitation. Moos argues that current legal frameworks, such as the right of publicity, misappropriation, and copyright law, are inadequate to protect individuals from AI-generated voice misappropriation. He advocates for a new legal framework rooted in copyright and property law, which would grant individuals exclusive control over AI replications of their voice. The proposed framework emphasizes consent, transparency, and data protection and would require lawmakers to explicitly define vocal identity rights. Moos then addresses the First Amendment and Supremacy Clause challenges lawmakers and individuals should consider when implementing and enforcing the proposed framework
