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ANALYSIS OF GLOBAL DATA PRIVACY REGULATIONS AND HOW TRANSNATIONAL COMPANIES ARE IMPACTED
Full text linkPrivacy regulations are being developed and altered globally. An American company working transnationally will want to make sure to comply with the privacy regulations of each country in which the company either conducts business or otherwise utilizes that country’s citizens’ data. Currently, the GDPR has the strictest standards regarding data processing agreements between a primary organization and another data processor. While the CCPA/CPRA and the PDPA require DPAs, a company in compliance with the GDPR will likely comply with the CCPA/CPRA and the PDPA. Case law is evolving to address the extent of the reach of the extraterritorial legislation. However, if a company is engaged in extensive data collection, then the company should ensure compliance with all relevant privacy regulations.
As new legislative responses emerge worldwide, it is crucial for companies engaged in international business transactions to ensure compliance with the different standards of that extraterritorial legislation
NON-FUNGIBLE TOKENS (NFTS) AND COPYRIGHT LAW
Full text linkThe concept of using non-fungible tokens (NFTs) to facilitate and authenticate sales of digital art dates back to 2014; but it took several years before the concept really captured public attention. Since copyright law governs the reproduction of works of art, including digital images, the connection to NFTs seems obvious. Yet, copyright law is only tangentially related to NFTs, for two reasons. First, buying an NFT does not, by itself, convey any rights to reproduce or display the work associated with that token. Instead, those rights are governed entirely by the contract that accompanies the sale. Second, minting and selling an NFT, by itself, likely does not violate any of the exclusive rights provided by copyright. As a result, although copyright may provide a useful tool for artists seeking to monetize their art, it is probable that its usefulness will be limited in lawsuits concerning NFTs. Ultimately, other legal tools (such as trademark law) may provide better relief when litigation concerning NFTs becomes necessary
IN EVENT OF AN (AI) EMERGENCY: INTERPRETING CONTINUITY OF GOVERNMENT PROVISIONS IN STATE CONSTITUTIONS
Full text link“Of this I am certain: If we prepare ourselves so that a terrible attack—although it might hurt us—could not destroy us, then such an attack will never come.” - Edward Teller, the “Father of the Hydrogen Bomb,” in an interview with Allen Brown of This Week Magazine in 1957.
Bad actors have already used or may soon use AI to disrupt critical infrastructure, influence elections, and upend economies. Those most concerned about the risks posed by AI argue that it is a matter of when and not if state governments will have to respond to threatened or realized acts of AI aggression. Though a litany of scholars have examined the powers governors may use in emergency situations, less attention has been paid to the role of state legislatures in responding to destabilizing events.
Scholars have justified their focus on governors for practical reasons—the executive branch of state governments has been deemed the “the center of governmental response[s]” to public emergencies. Two trends caution against perpetuating neglect of state legislatures. First, the legal and social bases for governors to take sweeping action in response to emergencies eroded in many states during COVID-19. In turn, many state legislatures, by law, by popular support, or both, have amassed more authority to respond in worst-case scenarios. Second, the likelihood of states being thrown into disarray will only increase as AI evolves and spreads; thus, warranting a closer analysis of what powers state legislatures may exercise to restore normalcy.
Thirty-five state constitutions contain variants of a template “Continuity of Government” (CoG) provision promulgated by the federal government at the height of the Cold War. What events may trigger these provisions, as well as what powers they afford to state legislatures, has evaded judicial scrutiny as a result of state legislatures rarely invoking the relevant provision. It follows that the scholarly analysis of how best to interpret these important provisions should occur in the relative tranquility of the present rather than at the height of a calamity. This preemptive analysis may improve the ability of state legislatures to respond to disorder by clarifying the likely scope and duration of their powers and, ideally, by spurring amendments to clarify the provisions in advance of any such event.
This paper serves as one (and, likely, the first) entry in an inquiry that merits immediate and robust scholarly attention. Relying on the framework set forth by the New Haven School of Jurisprudence, this paper resolves one of the most consequential ambiguities contained in CoG provisions. This framework deserves special consideration given its inclusion of myriad disciplines and its characterization as an “explicitly policy-oriented jurisprudence.”
Scholars from across the legal profession have a role in contributing to this inquiry. The incorporation of AI into legal practice imposes a responsibility on scholars to anticipate how the technology may require new doctrines, laws, and methods of interpretation. Though this paper focuses on the continuation of state governments in the wake of an AI emergency, related inquiries such as how to rethink contract law, property law, and the like upon such an emergency demand more scholarly attention. The exploration of those topics can, in turn, inform what sorts of powers state legislatures may need to exercise and for how long
THE GOOD, THE BAD AND THE UGLY OF DOBBS: A CONSTITUTIONAL RECKONING
Full text linkThe United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization marked a constitutional reckoning, with pervasive and inescapable consequences for many Americans. This article discusses this constitutional reckoning in two senses. First, it was a reckoning with the Court’s own precedent, as it overturned nearly fifty years of precedent on abortion rights. Second, it was a reckoning with the Court’s role in American society, as it raised fundamental questions about the Court’s legitimacy and its ability to protect the rights of minorities.
This article begins by outlining a history of abortion rights in the United States, from the early days of the republic to the present day. The Court’s landmark decision in Roe v. Wade in 1973 established a constitutional right to abortion; and while it was a controversial decision, it has been challenged ever since.
The Dobbs decision, like every other decision made by the Supreme Court, was not immune to the interpretive whims of the individuals who currently inhabit their seats of judgment and power. While the Dobbs decision may be characterized as “flawed” by some, this article seeks to examine the notion that there are no “flawed” or “unflawed” interpretations of the United States Constitution; only ones which we like, or do not like. As such, this decision will have a devastating impact on women’s rights and reproductive health for many years to come.
This article concludes by discussing the potential future landscape of abortion rights in the United States. Although the Dobbs decision was a setback for abortion rights, this is nowhere near the end of the fight, considering other available levers outside of the judiciary, including and not limited to legislative action, public education, and grassroots organizing
DOBBS AND THE FUTURE OF SUBSTANTIVE LIBERTY
Full text linkIn Dobbs v. Jackson Women’s Health Organization, the Supreme Court did something it had never done before: It revoked an individual right (abortion) previously recognized as an unenumerated “liberty” protected by the Due Process Clauses. Regardless of how one feels about abortion, however, Dobbs has stirred a larger debate about its implication for constitutional law. Some argue that the decision marks a significant shift in the Court’s approach to substantive due process, while others claim it is a narrow decision limited to abortion. Which view ultimately proves accurate hinges upon whether there is now a fixed methodology for ascribing content to the word “liberty” under the Due Process Clauses.
This article examines whether such a fixed methodology now exists and what impact it may have on previously recognized liberties. Specifically, the article explores the history of substantive due process to explain how the Supreme Court’s elevation of the “deeply rooted” test signals its attempt to establish, after many decades of confusion, a consistent and more predictable approach to substantive liberty. This article concludes by arguing that by applying the “deeply rooted” test now casts a shadow over previously recognized liberties such contraceptive use, sexual activity, and marriage, and proffer an educated guess as to whether those precedents are now at risk of being overruled