Institutionalized Ostracism

Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism. Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe the phenomenon of “institutionalized ostracism”: When government institutions ostracize people in ways that threaten their sense of belonging. This institutionalized ostracism is mostly lawful under current anti-discrimination law. Second, I draw from social psychology literature to explain why institutionalized ostracism is so harmful—in some ways comparable to physical violence. Third, I identify and critique several ways in which current jurisprudence supports and facilitates institutionalized ostracism. In discussing these, I make some preliminary suggestions as to how our jurisprudence ought to attend to the harm of ostracism

THE PARADOXICAL SOLUTION TO ENFORCE RESALE ROYALTIES AND KEEP THE NFT MARKET DECENTRALIZED

This article examines the role of resale royalties in maintaining decentralization in the NFT ecosystem and supporting financial sustainability for artists. Although resale royalties, also known as creator royalties, are widely valued by NFT artists, they have been frequently undermined by the centralized policies of large NFT marketplaces. These include zero-royalty policies that are driven by the competitive pressure to gain market share, where platforms allow buyers and sellers to bypass creator royalties. This behavior has led to a destructive race to the bottom and the overall erosion of resale royalties. To address this problem in the NFT market, this article proposes the adoption of Limit Break’s ERC721-C smart contract and the establishment of a collecting society, which would act on behalf of the artists to oversee the enforcement of their resale royalties. This proposal would ensure robust, on-chain royalty enforcement and allow for the ideals of decentralization to be implemented practically. This article presents a compelling framework for sustaining artists’ careers and preserving the integrity of the NFT market

Visual Map of U.S. v. Washington Subproceedings

This visualization shows the subproceedings of U.S. v. Washington and includes 90 subproceedings and sub-subproceedings. Some of the subproceedings have no caption other than TBD because although reference was found to their existence, no docket or information about the actual matter covered has been identified

Designing Legal Writing Problems for the NextGeneration

When reviewing the legal writing curriculum at our school for these NextGen skills, we discovered that our primary class activities and assignments already provided our students with opportunities to practice NextGen’s fundamental skills. This essay highlights some of our activities and describes how those assignments hone relevant NextGen skills

CARANO V. DISNEY: THE FIRST AMENDMENT RIGHT OF EXPRESSIVE ASSOCIATION AS A DEFENSE TO FIRING EMPLOYEES FOR THEIR POLITICAL SPEECH

Following a series of controversial social media posts by actress Gina Carano, a cast member of the Disney+ Star Wars series, The Mandalorian, Disney terminated her employment on the show and announced that Carano would not appear in any future Star Wars projects. According to Disney, Carano was terminated because the views expressed in her posts did not align with the company’s values. Carano filed suit against Disney, claiming Disney violated California state labor laws that generally prohibit employers from sanctioning employees for their political activities. In response, Disney claims that the First Amendment right of expressive association provides an absolute defense to Carano’s action. Disney argues that this right allows an employer who is engaged in expressive activity, or protected speech, to terminate employees who the employer believes will interfere with or compromise the message the employer wants to send with its speech, even when that termination would otherwise violate the law. In essence, Disney is arguing that the high-profile, controversial positions Carano has taken detracts viewers of The Mandalorian from the show’s messages, and that the First Amendment protects its decision to terminate her employment as a result. This article examines case law on the right of expressive association, as well as the main arguments made by each of the parties in the case, to conclude that the weight of authority is on Disney’s side

Abortion Ally or Abettor: Accomplice and Conspiracy Liability After Dobbs

The bristle of state laws criminalizing abortion after Dobbs v. Jackson Women’s Health Organization raises important questions about accomplice and conspiracy liability for helping people pursue reproductive freedoms out of state. Abortion funds, grassroots organizations, pilots, and other humanitarian volunteers are vital for people in need of abortions, who often are trapped by a lack of resources in abortion criminalization jurisdictions. Threats of prosecution are chilling and even shutting down assistance by abortion funds for travel to pursue reproductive freedoms. The liability questions after Dobbs arise against a backdrop of increasing prosecutions in Europe and the United States for crimes of compassion—providing aid to migrants across international borders. This Article is the first to ground defenses to liability for helping people pursue reproductive and gender freedoms after Dobbs in anti-totalitarian theory and in light of how courts have curbed the criminalization of compassion to migrants. The Article offers a normative and theoretical frame for new questions about the criminalization of assistance after Dobbs, grounded in the tradition of anti-totalitarianism that protected against pervasive government control of movements, bodies, and information. Through the anti-totalitarian lens, the Article frames clusters of defenses grounded in freedom of speech, the right of interstate travel, and canons of statutory construction. Although the primary targets thus far have been in the abortion context, which is the Article’s focus, the Article’s insights also have wider impact as a growing number of states criminalize the provision of gender-affirming care to minors, raising important questions about liability for aiding the pursuit of gender-affirming as well as reproductive freedoms

THE COMPACT CLAUSE AND CYBERWAR

This article seeks to bring attention to the potential modern utility of Article 1, Section 10, Clause 3: the Compact Clause. This section of the Constitution has historically been archived. However, given cyberspace’s ever-growing prominence, the Compact Clause should be reconsidered as cyber warfare presents a novel opportunity for states to exercise their sovereign rights. Section 10 restricts states’ powers to engage with foreign entities. Without the consent of Congress, states cannot enter into agreements with foreign powers or engage in war. These restrictions on states were necessary when the Constitution was drafted. To navigate foreign affairs nimbly, the United States needed to act as a unified force. Given that individual states\u27 interests can and will vary from national interests, there was a need for the states to be explicitly bound together. The internet has complicated this understanding of federalism. States are being hacked by foreign entities and the federal government is late to act. As a result, states are beginning to take matters into their own hands, disturbing the traditional balance of power between the states and the federal government. This challenge of tradition prompts a review of history. States did not sacrifice their voices for free. In exchange for foreign influence, states were guaranteed protection by the federal military in the case of invasion or military threat. States were promised that they need not fight stronger forces alone and were assured that the federal government would “wage defensive war” if a state was invaded. Historically, the United States has honored this promise by developing itself as a military superpower. As a country, the United States has prepared itself for threats arising from land, sea, or air. However, cyberspace presents a new landscape in which the United States is not prepared, leaving room for states to advance their reserved war powers. This article examines whether states can defend themselves and their constituents against cyberattacks while remaining consistent with the spirit of the Constitution. Part 1 will examine the historical backdrop of Section 10 and provide an overview of the past and present interpretations of invasion, imminent danger, and other related concepts. Part II will argue that warfare is becoming less kinetic and increasingly digital. Such digitization has led to states being attacked by foreign adversaries and other actors without organized federal aid. Part III points out the constitutional leeway permitting states to act during this cyber-era. While Montana’s attempt to ban TikTok, a popular social media platform, may not be constitutionally feasible, states may be able to take cyber matters into their own hands until the federal government can protect the United States in cyberspace