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A Democracy Story: Reframing a Free Speech Landmark
Get PDFA review of Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. By Samantha Barbas
Front Matter
Get PDFFront Matter for Volume 13, Issue 2 of Michigan Journal of Environmental & Administrative La
The Class Counsel Draft Gender Gap: An Analysis of Class Counsel Applicants
Get PDFThis Article accomplishes three important and distinct objectives. First, it provides an updated window into the class counsel gender gap. Second, and most critically, it analyzes a to date unexamined data point—MDL class counsel applications. And third, based on its analysis of the data gathered, it demonstrates: (1) female class counsel application rates are correlated with appointment rates and (2) gender equal class counsel applicants’ success rate, suggesting courts are not discriminating against female class counsel applicants. Instead, the class counsel gender gap appears to be a product of the class counsel draft gender gap. To narrow the gap, more women must apply to represent class members. But female candidates must be qualified and meet Rule 23(g)’s adequacy requirements, and they cannot easily attain the experience and financial resources required under the Rule without the class counsel bar’s investment and endorsement. In the recent past, the bar has been motivated by courts’ vocal efforts to appoint diverse candidates, but with courts’ diversity efforts in Constitutional jeopardy, the bar’s incentives to train, retain, and sponsor female candidates will likely decrease. It is up to the class counsel bar now to recognize, as several courts have, the many benefits gender-diverse representation affords class members and class counsel, whose ultimate financial success is tied to the success of the class
Child-Taking
Get PDFA ruling group at times takes certain children out of their community and then tries to remake them in its image. It tries to rid the child of undesired differences, in ethnicity or nationality, religion or politics, race or ancestry, culture or class. There are too many examples: the colonialist residential schools that forced settler cultures on Indigenous children; the military juntas that kidnapped dissidents’ children; and today’s reports of abductions amid crises like that in Syria. Too often nothing is done, and the children are lost. But that may be changing, as the International Criminal Court (“ICC”) is seeking to arrest Russian President Vladimir Putin and Commissioner for Children’s Rights Maria Lvova-Belova for the war crimes of unlawfully deporting or transferring children from Ukraine to Russia.
This article examines the criminal phenomenon that it names “child-taking.” By its definition, the crime occurs when a state or similar powerful entity, first, takes a child, and second, endeavors, whether successfully or not, to alter, erase, or remake the child’s identity. Using the ICC case as a springboard, this article relies on historical and legal events to produce an original account of child-taking. Newly available trial transcripts help bring to life a bereft mother and five teenaged survivors, plus the lone woman defendant, who testified at a little-known child-kidnapping trial before a postwar Nuremberg tribunal. Their stories, viewed in the context of the evolution of international child law, inform this article’s definition. These sources further reveal child-taking to be what the law calls a matter of international concern. At its most serious, child-taking may constitute genocide or another crime within the ICC’s jurisdiction. Yet even if circumstances preclude punishment in that permanent criminal court, child-taking remains a grave offense warranting prosecution or other forms of local and global transitional justice. This is as true for the Indigenous children of residential schools in North America, Australia, and elsewhere, and for children in Syria and many other places in the world, as it is for the children of Ukraine
Bounded Extraterritoriality
Get PDFTwenty-first-century politics has inspired a new mode of interstate rivalries and reprisals consisting not of the tariffs that plagued the Founding but rather of regulations with significant impacts outside the enacting state’s borders. Employing the dormant Commerce Clause doctrine of extraterritoriality, the Supreme Court has limited overbroad state regulations, but the extraterritoriality doctrine is unclear both in its normative grounding and practical application. This Article proposes a conceptual framework that situates the prohibition of extraterritoriality as an aspect of horizontal federalism. Our conceptualization of extraterritoriality enables us to distinguish it from two dormant Commerce Clause doctrines with which it is often conflated—nexus and “undue burdens” on interstate commerce. We also propose several approaches to deciding extraterritoriality cases
Generative artificial intelligence: Basic terminology and concepts
Get PDFGenerative artificial intelligence (GenAI) has been a hard topic to avoid in the media for more than a year. But what do all of the terms mean and what are areas of concern with GenAI tools?
This column aims to provide a baseline explanation of terminology and concepts that are frequently in the media
Rethinking Crime and Punishment: Women Who Kill Their Abusers in South Africa
Get PDFThe battered women’s movement in the United States was galvanized in the 1970s and ushered in a paradigm shift in how we understand domestic violence. For women who kill their abusers, the movement attempted to incorporate their lived experiences of domestic violence into legal doctrine. Decades later, the battered women’s movement has generated criticisms such as stereotyping women, failing to take an intersectional lens, and over-reliance on the carceral system. These lessons from feminists in the United States present cautionary tales for other contexts, especially for unequal societies impacted by domestic violence, crime, and mass incarceration. Prompted by personal experiences inspecting prisons across post-apartheid South Africa, I explore why women in South Africa resort to killing their abusers and why these women end up incarcerated with lengthy sentences. I engage with how the law responds–and ought to respond–to women who kill their abusers. After outlining lessons from the battered women’s movement in the United States, I concentrate on South Africa’s transition from apartheid to democracy, with a particular focus on how the government instituted legal reforms to tackle violence against women. I explore the transitional period, noting that the post-apartheid government retreated from progressive forms of punishment, such as correctional supervision, and relapsed to punitive forms of punishment by establishing the mandatory minimum sentencing regime. I show how South Africa’s over-reliance on the carceral system, inspired by the United States’ tough-on-crime zeitgeist, inadvertently extends to women who kill their abusers. After acknowledging empirical gaps in data and uncovering a social movement, I critically analyze various cases involving women who kill their abusers in anticipation of, or after experiencing, cycles of abuse.
I make three key findings: first, there is a lacuna in the criminal law regarding defenses for women who kill their abusers; second, no sentencing norms have been established; third, beyond legal doctrine, practical barriers hinder women’s access to the legal system. I argue that filling defense lacunas, establishing sentencing norms, and rectifying social barriers to access legal assistance are necessary, but not sufficient. I contend that the retributive criminal justice system is not tailored to deal with women who kill their abusers and propose, through a social justice lens, restorative and transformative justice mechanisms to hold women accountable. This paper lays the ground for a constructive dialogue for feminists in post-apartheid South Africa to engage with those in the United States and sets an agenda for further research, reform, and activism
From Biased Data Inputs To Your Discriminatory Diagnosis Outputs: A Review of Legal Liability For Artificial Intelligence in Healthcare
Get PDFWhile health disparities in America occur due to non-medical circumstances, certain protected classes experience healthcare disparities due to the biases of medical professionals. Biased diagnoses, both intentional or unintentional, have existed throughout the history of the medical profession. That those biases are becoming data for training algorithms raises concerns as the medical field increasingly incorporates and standardizes artificial and augmented intelligence in patient diagnosis and treatment. Currently unregulated but with lifedetermining potential, artificial intelligence (AI) when used in patient treatment leads to important questions: should the doctor, the provider, or the AI developers be liable, and for what? Section II discusses how bias manifests in healthcare and the legal avenues available for negligent, non-AI diagnosis and treatments. Section III then addresses how AI outputs can perpetuate discriminatory care and how negligent AI fits into the current legal framework. Finally, Section IV proposes how resulting biased AI diagnosis and treatments should be legally handlined moving forward
Repair as Research: How Copyright Impedes Learning About Devices
Get PDFWidespread computerization and ubiquitous smart devices have enabled software-based copyright governance to reach into new domains. Beyond their instrumental utility, those devices contain vast amounts of information in the form of software and technical know-how. Through copyright and anti-circumvention rules, however, this information can be cordoned off and confined to exclusive distribution channels, significantly constraining research. While copyright law traditionally conceives of research as the use of expressive works within institutional settings, we propose a broader conceptualization that embraces device research, including informal inquiries and DIY activities. Whether for the purposes of modification, repair, user innovation, or testing, device research involves analytical engagement with physical devices. With a particular focus on repair-related activities as a modality of device research, this Article considers product teardowns, reverse engineering, security research, and testing analyses. It then looks to case studies that exemplify the ways in which copyright can impede this type of research. In highlighting the conceptual overlap between the Right to Repair and Right to Research movements, we argue that a broader concept of research in copyright that includes device research could normatively reinforce and bolster support for a Right to Research in international copyright law