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Revengence Taken: Russian Active Measures and our Entrenched Racial Divide
Get PDFOur racial divide has always been a national security threat. An early observer of our American project, Alexis de Tocqueville, wrote about this threat to our future union in “Democracy in America,” learned by merely travelling the young nation thirty years before our Civil War.1 Despite generations of societal and legal evolution, our nation has not overcome the wounds and disabilities that our racial divide left behind — now ripe for modern security threats. In 2019, the United States Senate Select Committee on Intelligence released Volume II of their years long investigation into Russian Active Measures of interference with our elections and democracy, referring to the effort as an “information warfare campaign” designed to stoke “societal division in the United States.”2 Our racial divide was the fault line under attack in the Russian Active Measures campaign. The Senate’s “integrated” recommendations avoided the critical issue of proven vulnerability through our racial fault lines and mainly offered that social media companies, citizens, and the Executive Branch should simply self-regulate in face of this national security threat. More critically, the Senate recommendations mandated that any “approach” to guard against this threat “must be rooted in protecting democratic values, including the freedom of speech.” The weak Senate recommendations, coupled with the unprecedented siege on the Capitol on January 6, 2021, require an urgent review of the ways that our laws have disabled us from properly analyzing the impact of race as a legal matter. Three landmark cases, Brandenburg v. Ohio, Washington v. Davis, and McCleskey v. Kemp, are all post-Civil Rights Movement cases that opened America up to assaultive speech, attempting to usher in race-neutrality and a “law and economics” framework. These cases made our racial lines a bit deeper, leaving us with scar tissue exposed to the world, rather than sound and protective case law. Indeed, the landmark Brandenburg opinion supports this argument.4 Clarence Brandenburg, who spoke his works a few days after the Civil Rights Bill of 1964 was passed in the Senate, threatened to march the Klan to Mississippi and St. Augustine, Florida. There was nothing random about those locations. Brandenburg spoke a few days after three young Civil Rights workers were murdered by the Ku Klux Klan in the infamous Mississippi Burning case, their bodies were still missing when he spoke. Then-President Lyndon B. Johnson sent the F.B.I. and troops to Mississippi as a response — the murders gripped the nation and our government. Clarence Brandenburg also spoke while widespread violence engulfed St. Augustine, Florida as Dr. Martin Luther King, Jr. was spending the month in St. Augustine to desegregate the city — violence was ongoing and rampant. Yet this context was sanitized in a hastily written per curium opinion originally authored by Abe Fortas as he was forced to resign over financial improprieties. Adding to this uniquely odd circumstance, no opinions were released on Brandenburg in the state courts below. This acontextual, ahistorical opinion, stripped of the power of judicial speech, is ironically our landmark Free Speech decision. The Davis and McCleskey opinions warrant review as the Senate was not short on data, facts, or intent in the Russian Active Measures campaign report, yet somehow the data on race was not acted upon nor appeared in the recommendations. These cases frame why when our racial division is at the forefront of an issue factually, it is disabled as a legal matter. Demanding attention to where the law has failed us on matters of race is fiercely important now as the relevant matters of national security uncovered by the Senate remained unanswered legally. Indeed, the January 6, 2021 “Save America” rally is eerily reminiscent of Clarence Brandenburg’s exhortation to “Save America” in his Klan speech in 1964. The studied blindness of racism and racial harms in law has not solved our problems, rather, it has left us more vulnerable than ever
Mommy Dearest?: Postpartum Psychosis, The American Legal System, And The Criminalization Of Mental Illness
Get PDFChildren are often regarded as the most sacred beings in all of society—appealing to our collective sense of human dignity and protecting the most vulnerable. Mothers fiercely protecting their young children from perceived dangers is ostensibly a natural and moral response. This notion of the loving mother is in stark contrast to filicide, or the act of a parent murdering their child. It is a bedrock principle of the American criminal-justice system that a defendant is not responsible for their actions if the defendant was “laboring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.”1 Given the bleak reality of filicide, how should American criminal law treat mothers who commit the heinous crime of killing their child when the mother was suffering from a postpartum disorder at the time of the crime? This essay will detail women’s lived experiences of postpartum disorders, describe the current American criminal law approach to defendants who are mentally ill, and propose changes to American criminal procedure to reflect postpartum disorders’ effect on a mother’s mental state
Gambling On Video Games: The Global Esports Betting Market And The Dawn Of Legalized Esports Gambling In The United States
Get PDFThis Note compares eSports gambling regulations in the United States with regulations implemented in various foreign countries. eSports is a rapidly growing form of sport competition centered around video games. Video games have been a widely popular form of entertainment spanning the globe for many years. However, treating video games as a professional sport and form of monetized competition is a very recent phenomenon in the global mainstream market. Like traditional sports such as football and basketball, eSports have garnered significant attention in the gambling market. Sports betting has long been prevalent in the underworld of the United States, but the recent Supreme Court repeal of the Professional and Amateur Sports Protection Act (PASPA) marked a historical development in legalized American sports gambling. This repeal has resulted in the legalization of betting for traditional sports in many jurisdictions; however, some states have been hesitant to also legalize eSports betting. As individual states continue paving the road to legalized and regulated sports betting, they should consider eSports gambling regulatory frameworks in jurisdictions like Isle of Man, the United Kingdom and South Korea as guidelines before adopting their own eSports wagering laws and regulation
Epidemics And International Law: The Need For International Regulation
Get PDFThis article presents comments by the author made to open the Miami Law Review conference on Epidemics1 and International Law.2 Its main purpose is to refer to the impact of COVID-19 on different norms and legal regimes, focusing mainly on the 2005 International Health Regulations (IHR), addressing areas of reform as well as the interactions of those norms with international human rights law. This will include the proposals of change for the 2005 IHR, designed to better protect vulnerable peoples in future global health crises. Some of the ideas presented in this contribution are included in a proposal that I have presented with a colleague from Sierra Leone, Professor Charles Jalloh, for consideration by the International Law Commission, on epidemics and international law. Additionally, I was appointed as a member of the Committee on Epidemics and International Law for the Institute of International Law (IDI), whose rapporteur was Shinya Murase. Both his contributions and leadership, as well as the discussion in the committee, are of great influence on this topic. The exchanges in this conference, and to a certain extent captured in this publication, could have an impact in the proposal that is designed to strengthen our response before, during, and after epidemics whose impact on human life cannot be exaggerated
Expert Testimony by Public University Faculty: Exposing Doctrinal Deficiencies of Academic Freedom as a Legal Right and Proposing a Solution Within the Public-Employee Speech Doctrine
Get PDFWhen the University of Florida (“UF”) prohibited three professors in 2021 from serving as expert witnesses in a lawsuit filed against the State of Florida, the decision sparked a national debate about academic freedom and free speech at public universities. The professors also sued UF in federal court in Austin v. University of Florida Board of Trustees alleging a violation of their First Amendment rights. This Article asserts that the constitutional doctrine of academic freedom is sadly deficient for resolving such lawsuits. The Article explains, instead, that the public-employee speech doctrine provides the appropriate framework for analyzing cases filed by public university professors who are barred from testifying as experts in litigation where the state affiliated with the professors’ university is a defendant. The Article avers, however, that this should not render irrelevant the constitutional value of academic freedom when courts examine such cases under the public-employee speech doctrine. Indeed, the Article contends that academic freedom should be treated as a substantial interest that must be balanced against a university’s rationale for blocking expert-witness testimony. Importing academic freedom into the public-employee speech framework in this manner serves what former Yale Law School Dean Robert Post aptly calls “the value of democratic competence.
Next-Generation Agreements and the WTO
No full textThis paper reviews the trade agreement landscape and argues that the conventional understanding of trade agreements as encapsulated in the WTO Agreements is now outdated. This misperception about trade agreements is not just an institutional insufficiency. Concentration on those agreements has led many practitioners and commentators to underestimate the variable texture of the global trade agreement fabric. But these shortcomings have not inhibited states from concluding innovative alternatives to regulate and manage the cross-border movement of goods and services. As this paper shows, trade-related agreements that do not fit the perceived traditional mold have proliferated. Given these advances, more policy and scholarly attention is required. Accordingly, this paper serves as a roadmap for the accommodation of trade agreements within the WTO and as an agenda for additional research
Judging Offensiveness: A Rubric for Privacy Torts
Get PDFHow do we judge whether a violation of someone\u27s privacy is offensive? Currently, U.S. tort law requires privacy violations be highly offensive to a reasonable person to afford redress. However, our research reveals that there is no effective analysis-or rhyme or reason-to determine what conduct, disclosure, or implication is offensive. Our review of hundreds of privacy tort cases concludes that the ambiguity of the offensiveness prong has created opportunity for both significant legal errors and thriving biases, which often lead to discriminatory and neglectful treatment of women, racial minorities, and other marginalized groups. This is particularly alarming because the offensiveness analysis figures prominently in not only the most consequential privacy-related cases of our day, including data collection, geolocation tracking, revenge porn, sexual harassment, and transgender bathroom access, but also in corporate boardrooms, universities and schools, and policymaking bodies.
This Article argues that we must develop a systematic mechanism to judge offensiveness, if the concept is to continue as a gatekeeper for privacy violations. Despite the concept\u27s social significance and pervasiveness, alarmingly few legal scholars have written about offensiveness vis-a-vis privacy and its effects in entrenching social privilege and questionable norms. This Article seeks to fill this gap in privacy law with a view towards informing legal reform (including the upcoming Restatement (Third) of Torts) and providing guidelines for an unbiased analysis for judges and other decision-makers who must increasingly decide whether an alleged invasion of privacy is offensive. Guided by social science and philosophy, the Article proposes a factor-based rubric to guide decision-makers in determining whether conduct or content is highly offensive in the privacy context
