American Star Chamber: Online Misinformation, Government Intervention, and the Intellectual Matrix of the First Amendment

Just as monarchs and clerical authorities struggled to respond to seditious and heretical writings enabled by the invention of the printing press, twenty-first century governments are experiencing a similar information revolution as a result of the digital age and a rising tide of what the United States has labeled online misinformation. Like the printing press, the Internet has enabled the spread of information at an exponentially lower cost and an exponentially higher speed as it extends the ability to publish thoughts and opinions to an increasingly diverse array of individuals. Although this was largely celebrated during the first two decades of the twenty-first century, the 2020s have been defined by growing concern about the quality of information that is spreading on the Internet, and the potential political, social, and health ramifications of a decentralized, unvetted wildfire of divergent ideas. Concerns about online misinformation have been growing since the late 2010s, but these concerns were thrust into the spotlight of United States policy by the sudden onset of the novel COVID-19 pandemic in early 2020. This paper explores the question of whether the American notion of free speech can survive the digital age, and an even greater question—whether it should

Administrative Virtues

Administrative law has developed to incorporate insights from two philosophical perspectives: deontology and consequentialism. This Article elucidates administrative law’s reliance on those two perspectives and proposes that administrative law further develop to incorporate insights from a third perspective—virtue ethics—which the legal community has, in large part, ignored. Unlike deontology (which focuses on actions) and consequentialism (which focuses on actions’ consequences), virtue ethics focuses on actors. Thus, to begin incorporating virtue ethics’ insights into administrative law—a task that a wide range of scholars and jurists can embrace—this Article explores how a virtuous agency official might act in accordance with the virtues of prudence, temperance, justice, and courage. A focus on those virtues (known collectively as the “cardinal virtues”) counsels in favor of making important changes to administrative law—including by increasing the opportunities for judicial review of agency action. A focus on the cardinal virtues also offers additional support for existing administrative law doctrine—including the judicial deference courts give to an agency official’s decision to use one regulatory approach rather than another. In short, virtue ethics offers valuable insights that scholars have yet to consider, but which both transform and reinforce our understanding of administrative law in important ways

The Future of Art and Copyright in the World of AI

This paper focuses on the interpretive framework embodied in copyright law and its application to art-producing technologies, how this framework has been applied to new technologies in the past, and the issues surrounding the adaption of these old frameworks to the modern concern of AI-created art. The paper also considers how the application of copyright law to modern AI issues reflects the law’s capability, or inability, to evolve and address novel situations, specifically in relation to AI-based technology. Further, it examines what, if any, steps should be taken to promote courts maintaining a firm grip on copyright protections. The issues surrounding copyright law and AI-generated creations are progressing and will need updating as new concerns arise and litigation commences

Administrative Law Judges and the Erosion of the Administrative State: Why Jarkesy May Be the Straw that Breaks the Camel\u27s Back

The Trump-era unitary executive movement sought to expand presidential power and shrink the influence of the administrative state through deregulation. This movement ripples into the present moment, as Trump’s overhaul of the federal judiciary installed a comprehensive system to delegitimize administrative agency action— a system that is certain to endure. The independence and role of administrative law judges (ALJs) has proven a key target of the movement. Most recently, in the 2022 case of Jarkesy v. Securities and Exchange Commission, the Fifth Circuit held that the dual-tiered for-cause removal protections of SEC ALJs violated the Take Care Clause of Article II of the Constitution. This Comment argues that the Constitution sets out a functional inquiry for evaluating the removability of officials in the Take Care Clause, as opposed to the categorical inquiry erroneously adopted by the Fifth Circuit. If upheld by the Supreme Court, Jarkesy and the curtailment of ALJ independence will have a profound impact on not only the SEC, but all agencies, and the very fate of the administrative state

Lunch

The conference’s lunch break included a talk by Catholic Law’s Kevin C. Walsh, Knights of Columbus Professor of Law and the Catholic Tradition and codirector of the Project on Constitutional Originalism and the Catholic Intellectual Tradition. Walsh was introduced by Law Review lead articles editor Catherine Cook (3L). Walsh\u27s remarks expanded on his inaugural chair lecture, delivered in September 2023 and forthcoming in the next issue of Law Review, Judicial Power and Potential Unconstitutionality: A Scholastic Perspective

Dude, Where’s My Data? A Legislative Band-Aid for Data Brokers’ Bullet Hole in Consumer Privacy Protection

The development and proliferation of the Internet, GPS, cell phones, social media, and the associated data that support these now ubiquitous technologies have created a new ecosystem of information making up a person’s digital identity. Our digital footprints have traditionally been subject to different levels of privacy protection depending upon the kind of data at issue. Over time, court decisions have revealed tensions and a lack of consistency on the question of how the protections guaranteed by the Fourth Amendment apply to an individual’s digital footprint and their reasonable expectations of privacy over it. This Comment will examine the gaps in the current landscape of U.S. privacy protections in the absence of federally explicit legislative protections. First, it will examine current federal statutory privacy law and the piecemeal approach through which certain areas of information or categories of individuals are protected. Next, it will examine the development of the Supreme Court’s Fourth Amendment jurisprudence as applied to individual privacy rights. It will then analyze the gaps in privacy protection in both statutory and case law and recommend a unified federal statutory approach to ensure that currently legal uses of data do not, when aggregated, yield an impermissibly intrusive infringement of the privacy rights of U.S. citizens in violation of the spirit of the Fourth Amendment’s protections. It will recommend a legislative solution to fill those gaps, provide a clear expression of how certain kinds of data can and cannot be used, and ensure these critical protections are applied equally to all, regardless of the state in which any individual lives

Locke-ing Down Nonsense Trademarks: Applying the Property Theory of John Locke to the Issue of Nonsense Trademarks

In 2019, the United States Patent and Trademark Office received almost half a million trademark applications. This was the tenth year in a row in which the number of applications received broke the record from the previous year. Since 2015 there has been a marked increase in the number of applications for trademarks that are unusual. These applications are for trademarks that consist of an apparently random string of letters unpronounceable in English and with no meaning in another language. These unusual trademarks have come to be known as nonsense trademarks. Nonsense trademarks are a growing problem in intellectual property. The traditional tools used to address issues in intellectual property are ineffective against nonsense trademarks. The best solution is for Congress to include linguistic failure into the failure to function doctrine

Veterans Treatment Courts: Broadening Eligibility for Veterans Convicted of Violent Offenses

Veterans treatment courts (VTCs) have been gaining widespread popularity as a tool to divert justice-involved veterans from the criminal justice system. While a step in the right direction, most of these courts categorically exclude violent offenders for eligibility. Many jurisdictions conflate violent offenses with serious offenses, even when many violent offenses lack any physical harm. Additionally, prosecutors wield almost unbridled discretion in determining whether or not someone is charged with an offense considered to be violent, determining VTC eligibility even before a case reaches a sentencing hearing. This comment argues for admitting veterans convicted of violent offenses into VTCs. This comment compares VTCs that exclude violent offenses with those that include them, and argues that a standard-based approach serves public safety and the needs of a justice-involved veteran better than a rule-based approach that categorically excludes violent offenses. While the criminal justice system as a whole would benefit from diverting violent offenders, the veteran community has a particular need for such broadened eligibility. Most veterans incarcerated in state systems have been convicted of violent offenses, yet only a modest amount of VTC admissions represent veterans convicted of violent offenses. Additionally, even though the largest ground combat operations of the Global War on Terror have come to an end, there will continue to be justice-involved veterans who will benefit from broader eligibility for VTCs

Administrative law : cases and materials

Administrative Law: Cases and Materials is the product of a longstanding collaboration by a distinguished group of authors, each with extensive experience in the teaching, scholarship, and practice of administrative law. The Ninth Edition preserves the book’s distinctive features of functional organization and extensive use of case studies, with no sacrifice in doctrinal comprehensiveness or currency. By organizing over half of the book under the generic administrative functions of policymaking, adjudication, enforcement, and licensing, the book illuminates the common features of diverse administrative practices and the interconnection of otherwise disparate doctrines. Scattered throughout the book, case studies present leading judicial decisions in their political, legal, institutional, and technical context, thereby providing the reader with a much fuller sense of the reality of administrative practice and the important policy implications of seemingly technical legal doctrines. At the same time, the Ninth Edition fully captures the headline-grabbing nature of federal administrative practice in today’s politically divided world.https://scholarship.law.edu/fac_books/1149/thumbnail.jp