13203 research outputs found
Sort by
Seeking Safety and Losing the Self: Affirmative Action Bans and the Whitening of Mexican American Identity
No full text
JBS’s Initial Public Offering: Threats to Environmental and Human Rights
No full textThis paper centers around the decision to be made regarding JBS, the world’s largest meat company, wanting to list shares on the New York Stock Exchange (NYSE), and the environmental and social impacts that could result from the Security and Exchange Commission’s (SEC) approval. JBS has been at the center of various controversies over the last several years, including sourcing cattle from ranches acquired through illegal deforestation, engaging in greenwashing practices, incorrectly reporting greenhouse gas emissions, and engaging in human rights abuses. Many environmental groups have filed complaints with the SEC concerning JBS’s bid to list on the NYSE. The SEC recently approved “The Enhancement and Standardization of Climate-Related Disclosures for Investors” rule, which requires public companies to disclose and report certain environmental, social, and governance (ESG) information such as their emissions and carbon footprint relating to their business practices. As the SEC has issued a stay on the final rule pending litigation in the Eighth Circuit, public companies are not yet required to disclose their environmental impact to investors or the Commission until the rule goes into effect. Additionally, human rights abuses have been largely governed by soft law—non-binding guidelines —which could allow JBS to escape liability if the SEC assents to its bid to go public. If the JBS proposal is approved, it is likely the increase in investment, funding, and widespread knowledge may lead to an escalated disregard for human rights and environmental concerns. While this paper will largely disagree with JBS’s proposed dual listing on the NYSE, it will also address arguments in favor of the decision and ways that the environment and humans can be protected going forward
Genetic Privacy
Full text linkThe last decade has brought many technological advances to genetic testing. Increasingly, genetic testing, which was previously reserved for clinical or medical settings, has made its way to other spaces. Most significantly, we are now seeing the re-introduction of genetic testing to the workplace. Although the Genetic Information Nondiscrimination Act (GINA), which became law in 2009, would seemingly prohibit genetic testing in the workplace, genetic testing, as part of workplace wellness programs, is lawful under the aegis of the Affordable Care Act (ACA). This poses a threat to genetic privacy in the workplace. While some, like the actor Angelina Jolie, who credits genetic testing with her choice to undergo a double mastectomy and oophorectomy after discovering she carried the BRCA mutated gene, and Chris Hemsworth, who stepped away from acting after genetic testing revealed his genetic propensity for Alzheimer’s disease, see genetic testing as affording agency, others see any type of genetic testing as raising the specter of eugenics and genetic discrimination. Genetic data, which is unique, personal, and yet communal, stretches the limits of existing legal protections for workers’ privacy. This Article offers an analysis of the legal history and challenges associated with genetic testing, especially in the workplace. The Article provides an overview of the limited state-bystate protections afforded to subjects of genetic testing as well as the scant national regulation of genetic testing companies. The Article then sets forth five legal policy recommendations for regulating genetic privacy in the workplace, such as (1) strengthening GINA to close loopholes; (2) guidance from the Equal Employment Opportunity Commission (EEOC) for when genetic discrimination could give rise to a claim under the Americans with Disabilities Act; (3) a recognition that consent to genetic testing under workplace wellness programs is “murky” and should be treated as limited consent; (4) expanding FDA oversight over genetic testing; and (5) the promulgation of more stringent rules for the protection of genetic data
Super-Groups: Legal Empowerment and Public Law
Full text linkNot all interest groups are created equal. Some groups are created by or with the help of law. Law can confer political power on groups through wealth, rents, concentrated interest, and durability, creating synthetic factions that use their stategiven influence to dominate lawmaking. Deregulatory and progressive traditions in public law have long thought differently about laws that empower. A deregulatory tradition sees legal empowerment as a democratic pathology that counsels against lawmaking, citing empowerment concerns as a perennial rhetorical point against consumer protection, environmental protection, and social welfare programs, among others, for fear they will lead to “capture.” At the same time, progressives dispute that such capture concerns are serious enough to counsel against otherwise-needed reforms, celebrate salutary uses of legal empowerment of marginalized groups as a counterweight to subordination, and ignore counterexamples of legal empowerment gone wrong.
Overlooked in this often-unsatisfying debate about how to think about laws that empower groups in public law has been the question how to think about groups that law empowers. This Article traces, problematizes, and begins to address that gap. It argues that legal scholars should differentiate ordinary interest groups from legally empowered super-groups and recognize super-groups as quasi-constitutional actors whose creation, composition, and behavior is an appropriate and indispensable site of democratic contestation and constitutional design.
Distinguishing super-groups carries important theoretical advantages. Doing so offers a richer understanding of democratic constitutionalism; inverts the conceptual relationship between substantive fields like criminal law or health law and “public law” fields like constitutional law; raises the possibility of creating super-groups as a more-inclusive and flexible substitute to constitutional rights for entrenching priorities against majority will; offers a deeper understanding of one driver of inequity in the “New Gilded Age”; and provides a framework for confronting prevailing power as a promising front for advancing political equality that patches a hole in Brandeisian antitrust. Finally, the Article shows through a case study of the American Medical Association’s capture of Medicare reimbursement policy that it is possible to develop actionable prescriptions by naming and problematizing super-groups
Climate Litigation and Third-Party Litigation Finance
Full text linkFor the last 200 years, human activities have been the main driver of global climate change, particularly the burning of fossil fuels. Increased emissions from fossil fuels have contributed to rising temperatures, food scarcity, and natural disasters, including fires, flooding, and droughts. Although climate change has been an issue in the public eye for the last several decades, global emissions are projected to continue increasing. At this point, it is clear that current actions at the individual and state level are not enough to meaningfully reduce greenhouse gas emissions. In this Note, I will discuss the idea of using third-party litigation finance in climate lawsuits as a mechanism to hold the world’s biggest contributors to climate change accountable for their actions. I will argue that if more funding exists for plaintiffs to bring lawsuits against climate “bad actor” corporations, these companies will be forced to bear the expenses of litigation on a more frequent and greater scale. Additionally, I will discuss why litigation finance for climate lawsuits could present an attractive opportunity for outside investors
International Law Institutions and the Control of Multinational Corporate Economic Violations: the Role of Financial and Arbitral Mechanisms
No full textSome investors, including multinational corporations (MNCs), engage in economic crimes and illegal activities without facing accountability, often due to inadequate oversight. These investors wield significant power and operate across multiple jurisdictions, requiring collective efforts from international institutions, states, and private actors to address these challenges. While oversight and control mechanisms exist, some remain underutilized. This study examines the role of international law in addressing investors’ economic misconduct through financial and dispute settlement mechanisms. It explores whether international financial institutions (IFIs), such as the International Finance Corporation (IFC), and dispute resolution centers, particularly the International Center for Settlement of Investment Disputes (ICSID), can effectively regulate and respond to such activities. The study considers the strengths of IFIs, including insurance and guarantee organizations, in curbing illegal financial practices through preventive measures, such as contractual power, and assesses the role of arbitration institutions and arbitrators in resolving disputes and deterring future violations. Oversight remains a key focus at the financing stage, whereas arbitration primarily involves greater control at a later stage, emphasizing the complementary roles of these mechanisms. By examining the potential of the IFC and ICSID, this research highlights their respective capacities as leading institutions within the World Bank framework. While the study focuses on these institutions due to their prominence, its analysis may be applicable to other international financial and arbitration mechanisms addressing similar challenges
Ninth Amendment Neurorights
Full text linkNeurotechnology developments threaten two fundamental human rights: freedom of thought and mental privacy. For example, neuroscientists use brain scans to decode unspoken thoughts and to predict political ideology and sexual orientation. Additionally, they have successfully implanted false memories in the minds of mice. There are undoubtedly beneficial uses of this dual-use technology, such as identifying and treating a variety of medical conditions. But left unchecked, neurotechnology will be exploited by public and private actors alike. There is a growing and contested literature about how the law should respond to the increasing risks of neurotechnology. This Essay contributes to that literature by making the relatively easy case that the Ninth Amendment protects freedom of thought and mental privacy from uses of neurotechnology. It concludes by suggesting that the state action doctrine once again deserves reconsideration because commercial actors pose at least as much risk of exploiting the forum internum as government actors. Along the way, this Essay helps celebrate this centennial volume of the Indiana Law Journal by engaging with works in prior volumes, most notably a 1936 article that is widely viewed as the first scholarly analysis of the Ninth Amendment
Unlocking Platform Data for Research
Full text linkDigital platforms, which control unique access points to the rich data stored on their servers, have become a “living lab” of real-time information. Scientists and researchers increasingly use platform data for various purposes, such as training machine learning (ML) systems and Natural Language Processing (NLP) models, and for studying diverse fields such as medicine, humanities, and social sciences, including the influence of digital platforms on society. However, researchers increasingly encounter significant barriers when attempting to access platform data. Although platforms typically lack proprietary rights over the data itself, they exert strong control over its use by imposing digital locks and boilerplate contractual limitations. Faced with the legal risk of potential breach-of-contract lawsuits filed by well-funded platforms, researchers may simply opt to steer clear of platform data research.
This Article proposes private-law-centered solutions to overcome platform data lockout. First, researchers who access and use platform data without explicit permission should be able to contest breach-of-contract claims made against them by claiming copyright preemption. Platform data falls under copyright law, either because it is protected by copyright (such as user-generated-content) or because it constitutes basic “building blocks,” such as users’ digital data trails, which are specifically excluded from copyright protection. When platforms robustly ban any reproduction of data, they effectively benefit from quasi-copyright protection, through private ordering, albeit compromising fundamental copyright principles, including fair use. Their contractual claims should, therefore, be preempted by copyright law. Second, courts should facilitate platform data research by narrowly interpreting boilerplate contractual bans on data access. Third, nuisance law may further support platform data research by empowering researchers to demand the removal of technological barriers that hinder access to public, non-proprietary data.
Private law solutions to platform data lockout, however, do not grant researchers an affirmative right to use platform data for research. Legislative action of the type recently pursued by the European Union is required to establish such a right to research. This Article therefore concludes by examining regulatory approaches to platform data lockout, concluding that combining private law solutions with regulatory intervention offers the most effective means of adequately facilitating platform data research