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The Legal Profession Must Confront Its Role in Slavery
No full textAcknowledging and discussing the modern citation of slave cases is a first step. The Citing Slavery Project provides a database of slave cases and the modern cases that continue to cite them as precedent.
American slavery generated thousands of legal disputes. Lawyers legitimized slavery by fitting cases involving enslaved people into standard legal categories. The law of slavery became an important part of American law. Such support from lawyers helped slave commerce function.
American courts directly participated in slave commerce, frequently auctioning enslaved people to satisfy debts. These sales even took place on courthouse steps. Courthouse auctions forcibly separated families. They helped enslavers to concentrate economic power.
After emancipation, lawyers continued to treat slave cases as good law. They even enforced debts based on contracts for enslaved people. The failure of the legal profession to grapple with its role in the law of slavery is a failure of transitional justice. Lawyers have obscured their role in slavery by never fully acknowledging it.
Today, American judges and lawyers continue to cite slave cases for fundamental legal propositions. These citation practices cause serious harm and reveal the legal profession’s ethical limitations.Justin Simard, assistant professor, Michigan State University College of Law, has research that studies the modern citation of slavery and will present on this topic
Medical Necessity and Prior Authorization: The Unregulated Power of Insurers
Full text linkThe absence of a uniform federal definition of “medical necessity” in employer-sponsored health plans has allowed insurers to create their own coverage standards, often resulting in inconsistent and opaque determinations that limit access to essential care. This Note argues that ERISA’s silence on medical necessity grants insurers excessive discretion, enabling restrictive prior authorization policies that disadvantage patients and providers alike. By analyzing judicial interpretations, regulatory gaps, and the disparate standards imposed by insurers, this Note makes the case for a federally mandated definition of medical necessity applicable to all employer-sponsored plans. A standardized definition would promote transparency, reduce litigation, and ensure that coverage determinations are based on medical evidence rather than cost-containment strategies
A Taking or Public Interest Intent: Launching a Universal Standard for Indirect Expropriation
Full text linkOutstanding note of the year 2025
In 2023, the Russian government announced drastic measures to take control over the management of specific foreign investments located in Russia in response to sanctions imposed on Russian assets abroad. These measures affected nearly onefourth of the largest 200 companies in the world. Expropriation clauses in bilateral investment treaties between nations exist to prevent the usurpation of foreign investments by host state governments, yet the standards for what constitutes indirect expropriation remain unclear and unpredictable and fail to adequately balance government and investor interests. This Note proposes and rationalizes a new definition for indirect expropriation, which requires substantial deprivation, lack of proportionality, and lack of foreseeability. (Abstract from author.
From One Prison to Another: The Inordinate Criminalization of Women Who Kill Abusive Partners and a Proposed U.N. Response
Full text linkParadoxically, criminal justice systems around the world punish women who kill abusive partners with inordinate sentences despite explicitly recognizing the victimization that led them to homicide. This Note examines how universally entrenched gender stereotypes lead to such overcriminalization and amount to a violation of women’s rights to equality before the law. This Note then proposes a U.N. resolution offering guidelines for criminal justice systems to craft appropriate judicial responses to women’s survival strategies
Autonomous Weapons Systems and the Need to Update International Humanitarian Law?
Full text linkThis Article discusses whether the relevant rules of International Humanitarian Law (IHL), and in particular, the 1949 Geneva Conventions and their 1977 Additional Protocols should be updated in order to develop a clearer framework regarding the permissibility and legality of the use of Autonomous Weapon Systems (AWS) in armed conflict. This Article first discusses the existing Geneva Conventions and Additional Protocols’ rules applicable to the use of all weapons, including AWS. Next, this Article discusses possible ways of reshaping and reconceptualizing IHL in order to adapt its current rules or to develop new rules that would better regulate the use of AWS. This Article concludes that it is desirable to adapt the Geneva Conventions and the Additional Protocols to the use of modernday weapons, such as AWS, through the development of additional soft law instruments such as guidelines, which could in turn become binding customary law in the near future. (Abstract from author.
Causation’s Due Process Dimensions
Full text linkFor decades, courts have grappled with the tension between compensating victims of mass harms and maintaining fairness to defendants when causation is difficult to prove. This Article argues that the Supreme Court’s due process jurisprudence provides a relevant framework for navigating this tension. We contend that the Court over the last three decades has established a consistent due process approach in punitive damages and personal jurisdiction cases, which is rooted in antecedents tracing to the nineteenth century and relies on a nexus of interests that balances individual rights, state interests, and federalism concerns. This framework, we argue, has significant implications for evaluating the constitutionality of tort doctrines like market-share liability and innovator liability, which challenge traditional notions of causation. Our analysis reveals that these doctrines may be vulnerable in some applications to constitutional challenge under the Court’s modern due process approach. We trace the evolution of the Court’s jurisprudence, demonstrating how it emphasizes the relationship between plaintiff’s harm, defendant’s conduct, and the forum state’s interest. Applying this framework to market-share and innovator liability, we suggest that causation itself may have constitutional dimensions. This finding has far-reaching implications for mass tort litigation and could reshape how courts approach cases involving multiple actors and attenuated chains of causation. By bridging the gap between due process jurisprudence and tort law, this Article offers a new perspective on longstanding debates about liability in complex cases and provides a roadmap for courts navigating these challenging waters
Sam Altman, OpenAI, and The Importance of Corporate Governance
Full text linkThe sudden firing of CEO Sam Altman by OpenAI’s three independent directors highlights concerns about whether a leading AI company, susceptible to internal conflict and unclear accusations, can be trusted to develop a technology with far-reaching consequences for billions of people.
This paper examines how OpenAI’s board of directors terminated CEO Sam Altman’s employment, a decision that risked hundreds of highly skilled employees walking out the door, disrupted billions of dollars in value, and jeopardized critical knowledge of this important technology. It is hoped that corporate directors—whether at for-profit and non-profit companies—along with venture capitalists, technologists, and government regulators can draw valuable lessons from this near-disastrous crisis.
This paper proceeds in five parts: first is a discussion about the significance of artificial intelligence; second is a look at OpenAI\u27s history, mission, relationship with Microsoft, and unique corporate structure; third, the importance of professional, experienced corporate governance is discussed; fourth is an examination of the OpenAI governance crisis culminating with the ouster of CEO Sam Altman on November 17, 2023; and last, we conclude
The U.S. Approach to AI Regulation: Federal Laws, Policies, and Strategies Explained
Full text linkThis article comprehensively analyzes how the United States (“U.S.”) approaches artificial intelligence (“AI”) governance. Unlike the European Union’s AI Act, which provides a legally binding framework, the U.S. adopts a decentralized, sector-specific regulatory strategy, primarily driven by voluntary commitments from private companies and guided by federal agencies. Additionally, state-level initiatives, often influenced by specific local concerns, contribute to a diverse regulatory environment. The article examines federal legislative and executive initiatives, agency regulations, and industry participation, highlighting the challenges this fragmented approach poses for achieving uniformity and addressing critical issues such as privacy, security, and accountability. It also explores the broader implications of the U.S. model on global AI governance and the potential need for more comprehensive legislation to balance innovation with ethical considerations and risk management
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