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Barbarism Revisited
Full text linkIn January 2024, Kenneth Eugene Smith became the first person in recorded history to be executed by nitrogen hypoxia. By witness accounts, Smith appeared to suffer for as long as twenty-seven minutes as he was slowly suffocated. The incident unfolded much as medical experts and human rights advocates had predicted. Yet the Supreme Court declined to intervene either to stay the execution or to grant Smith’s request to be executed instead by firing squad. The facial incongruity of Smith’s killing with the Eight Amendment’s Punishments Clause provides a window into three fundamental failings in the Roberts Court’s allegedly history-oriented, individual-rights jurisprudence. First, the Court’s treatment of semantic originalism in its most relevant case, Bucklew v. Precythe, shows that the text-oriented version of the doctrine often fails to deliver on its promises of constraining judges and delivering conservative policy wins. Consequently, the originalist Justices muddle the theory to make their subjective choices appeared historically determined. Second, the Court has repeatedly declined to apply its novel traditionalist analysis—as seen in Bruen and Dobbs—in Punishments Clause cases. The emergence of traditionalism itself demonstrates the elective nature and limited utility of semantic originalism, while the Court’s failure to give equal methodological treatment to all parts of the Constitution demonstrates that neither approach is binding. Finally, a fuller investigation of the history of early American criminal-law practices demonstrates that both semantic originalism and traditionalism rely on assumptions that distort the very history they purport to uncover and miss a powerful statement of local control inherent in early-American understandings of the Punishments Clause
Forced Out?: Civil Legal Access and Housing Stability
Full text linkRecent legal developments, including the U.S. Supreme Court’s decision in City of Grants Pass v. Johnson and the proposed Eviction Right to Counsel Act of 2024, have highlighted the urgency of addressing housing instability and homelessness. Some have advocated expanding access to legal counsel as one solution. In the United States, tenants usually face eviction on their own, while landlords are typically represented by an attorney. Although it seems intuitive that legal representation would help tenants facing eviction, measuring the effects of counsel is quite challenging, because represented and unrepresented tenants are dissimilar across many dimensions, including wealth. A handful of randomized experiments suggest lawyers have appreciable impacts in housing court, but results are mixed, and these studies’ generalizability to the larger universe of civil legal housing assistance programs remains uncertain. This Article addresses that gap through a quasi-experimental evaluation of legal aid organizations funded by the Legal Services Corporation (LSC), the single largest funder of civil legal aid for low-income Americans in the nation. LSC grantees serve over 1.7 million people each year. This Article employs census data covering millions of households and exploits an eligibility rule that limits LSC services to households earning less than 125% of the federal poverty level. Using several methodological approaches, including regression-discontinuity, differences-in-differences, and a dose-response analysis, this Article demonstrates that access to civil legal aid improves housing stability. Our estimates suggest that LSC enables 75,000 households to maintain their housing each year at a rough cost of around $2,000 per prevented move. These impacts are on par with those observed in high-quality randomized trials, suggesting that civil legal aid, unlike many other interventions, does not lose efficacy with scale. Our large sample sizes allow us to measure how impacts of civil legal access vary for particular population subgroups, something not possible in prior work. Our findings suggest that access to civil legal aid is particularly beneficial for seniors aged 65+, people with less than a high school degree, Asians, and people who do not speak English well. Our findings highlight the important role that funding legal aid can play in curbing housing instability and homelessness
Reproductive Injustice, Feminist Resistance, and the Uses of History in Constitutional Interpretation
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Gendering the New International Convention on Cybercrimes and New Norms on Artificial Intelligence and Emerging Technologies
Full text linkThe trifecta of the Digital Global Compact (2024), the UN General Assembly Resolution on AI for Sustainable Development (2024) and the new Cyber Crime Convention (2025) come at a time of what seems to be an inexorable march of new technology. It is also at a time of transborder disruption caused by data breaches and cyber threats, that binding international norms can respond to global challenge. However, it must be emphasized that digital violence, developer bias, and data bias are not new phenomena, they have existed since the origins of the internet. Data that is used to train machine-learning algorithms have encoded inequities and reproduced historical patterns of discrimination, causing the algorithm to perpetuate inequitable treatment. These new and evolving historic normative frameworks are struggling to keep pace with the breakneck pace of technological development and the equally rapid pace of gendered forms of technology-facilitated discrimination and violence. This Article critically examines the role of gender in these burgeoning frameworks as pivotal elements in a rapidly changing digital ecosystem. While the current global normative foci overlook important aspects of gender equality, they also elide the rise of ChatGPT and other Generative AI and their impact on gender. In the final analysis, the primacy of gender equal participation in digital and cybersecurity governance should be a pillar of the new global digital order
Market Response to Court Rejection of California\u27s Board Diversity Laws
No full textCalifornia mandated that firms headquartered in the state include women (SB 826) and underrepresented minorities (AB 979) on their corporate boards. These laws, passed in 2018 and 2020 respectively, were held to violate the state\u27s constitution by judges on the Los Angeles County Superior Court in 2022. This paper examines the market reaction to these surprising court decisions, finding that California firms appreciated significantly on the days of the rulings, and there is evidence that firms that were not in compliance with the laws exhibited larger abnormal returns than firms that were in compliance
A Catalyst for Reform: Charting a Future for Orphan Drug Exclusivity
Full text linkForty years after the passage of the Orphan Drug Act, the Catalyst Pharmaceuticals v. Becerra decision has ignited debate over the scope of orphan drug exclusivity. After a court ordered the U.S. Food & Drug Administration (FDA) to revoke its approval of a drug for a rare neuromuscular disorder, which it found violated another drugmaker’s market exclusivity, FDA countered by reaffirming its commitment to its own interpretation of the Orphan Drug Act. This Comment explores the cascading effect that the clash between FDA and the Catalyst court has had, and could continue to have, by charting how these events have created doctrinal uncertainty—impacting the pharmaceutical industry, FDA, and federal courts. Uncertainty in the wake of Catalyst produces trickle-down effects that may deter orphan drug development, exacerbate high drug prices, and impede patient access. This Comment calls for resolving this unsettled landscape through congressional and agency actions to clarify the scope of orphan drug exclusivity and promote the goals of the Orphan Drug Act
Fair Use and Fair Price
No full textIn this Article, we present and develop a new justification for the fair use doctrine. The accepted lore among copyright law scholars is that fair use is a means for overcoming a market failure in the form of high transaction costs. According to this view, the doctrine sanctions unauthorized use of copyrighted works in cases where transaction costs hinder voluntary, mutually beneficial exchanges. Departing from conventional wisdom, we argue that the fair use doctrine serves as an important empowerment even in fully functional markets. Fair use enables users to secure more favorable licensing terms from copyright owners by endowing users with a threat point in their negotiations. Without fair use, users would have to pay the price demanded by copyright owners or not use the work. With fair use, many users can credibly assert that their intended use of copyrighted content is privileged by the fair use doctrine and thus they can use the desired content without authorization. The fair use doctrine, therefore, gives users leverage in their negotiations with copyright owners. We illustrate our thesis by applying it to the landmark fair use decisions of the Supreme Court, including the recent ruling in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, that determined the bargaining standpoint of users for decades to come. We demonstrate the distributive effects of the Supreme Court’s fair use jurisprudence and explain how the Court must act to preserve and augment the empowering effect of fair use. The theory presented in this Article proves that the reach of fair use goes well beyond market failures and that the impact of the doctrine is much more significant than previously thought
The Party\u27s Court or the Court for the Parties: An Empirical Assessment of the Fifth Judicial Reform in China
No full textThis article empirically assesses the effectiveness of China’s Fifth Judicial Reform, which was implemented from 2019 to 2023. The Reform endeavored to balance upholding the absolute leadership of the Party and ensuring the independent exercise of judicial power by the courts, as well as to realize the people’s expectations for fairness and justice. To date, empirical research on China’s Fifth Judicial Reform has been relatively limited. This article examines in detail the practical effects of the Reform through the perspective of frontline judges. The findings suggest that the courts have made some progress toward realizing the aims of the Reform. The courts have reinforced the absolute leadership of the Party. Moreover, the Reform has provided litigants with more convenient litigation services and established a remuneration system closely linked to the performance of judges. Thirty-eight per cent of the judges considered the Judicial Reform to be very effective. However, the analysis also reveals some underlying problems with the Reform. Despite the Reform’s aims of strengthening judicial independence, the symbiosis between the Party and the judiciary has become more pronounced. Local government interference in the judiciary still exists. Judicial openness has regressed, with fewer judgments being published. Judges also face pressure from litigants for false accusations. The construction of smart courts remains inadequate in terms of technological updates, data security, and privacy protection. Chinese courts still need further reforms to strengthen the role of the court in the administration of justice