2419 research outputs found
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Overcoming Racial Harms to Democracy from Artificial Intelligence
While the United States is becoming more racially diverse, generative artificial intelligence and related technologies threaten to undermine truly representative democracy. Left unchecked, AI will exacerbate already substantial existing challenges, such as racial polarization, cultural anxiety, antidemocratic attitudes, racial vote dilution, and voter suppression. Synthetic video and audio (“deepfakes”) receive the bulk of popular attention—but are just the tip of the iceberg. Microtargeting of racially tailored disinformation, racial bias in automated election administration, discriminatory voting restrictions, racially targeted cyberattacks, and AI-powered surveillance that chills racial justice claims are just a few examples of how AI is threatening democracy. Unfortunately, existing laws—including the Voting Rights Act—are unlikely to address the challenges. These problems, however, are not insurmountable if policymakers, activists, and technology companies act now. This Article asserts that AI should be regulated to facilitate a racially inclusive democracy, proposes novel principles that provide a framework to regulate AI, and offers specific policy interventions to illustrate the implementation of the principles. Even though race is the most significant demographic factor that shapes voting patterns in the United States, this is the first article to comprehensively identify the racial harms to democracy posed by AI and offer a way forward
The Sentinel Stirs: Government Procurement Law After Loper Bright Enterprises
Administrative law – and by extension, government procurement law – is in a period of transition in the United States. The judiciary, sometimes alarmed by the perceived excesses of the administrative state, is reexamining the deference traditionally afforded agency interpretations of law. As part of that transition, the Supreme Court in Loper Bright Enterprises v. Raimondo (June 2024) overruled the test it first established in Chevron v. Natural Resources Defense Council (1984), which held that if a statute was ambiguous, the courts would defer to an agency’s reading of that statute so long as the agency’s interpretation was reasonable. This article assesses the collapse of the Chevron test, which may send shock waves across government procurement law as well, as agencies and contractors contest the meaning of laws before the courts
Conflicts of Law and the Abortion War Between the States
On the subject of abortion, the so-called “United” States of America are becoming more disunited than ever. The U.S. Supreme Court’s precipitous decision in Dobbs v. Jackson Women’s Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Since the U.S. Supreme Court agreed to hear the Dobbs case, at least twenty-four states have enacted statutes or state constitutional provisions restricting abortion access, while at least sixteen states have adopted new legal regimes that explicitly seek to protect the right to an abortion.
These partisan and geographic divides create perhaps the biggest set of nationwide conflicts-of-law problems since the era of the Fugitive Slave Act before the Civil War. Indeed, practically every aspect of the new abortion legal landscape is now characterized by uncertainty, creating potential constitutional and federal preemption questions, state v. state conflicts of law issues, and new concerns based on various forms of private regulation related to abortion access.
This Article seeks to provide a comprehensive survey of the current state of the law with regard to how such conflicts-of-law questions might be resolved in the abortion context. Part One briefly surveys the widely divergent state laws being debated or enacted in the country in the wake of Dobbs. Part Two discusses potential constitutional challenges to the extraterritorial application of these abortion statutes. If statutes criminalize or impose civil liability on the actual pregnant person seeking the abortion, such statutes might be challenged under the Privileges and Immunities Clause of Article IV specifically, or as a violation of the constitutional right to travel more generally. Alternatively, if statutes seek to impose criminal or civil penalties on out-of-state healthcare providers or other actors, those statutes may be vulnerable to a challenge under theCommerce Clause. Part Three turns to potential federal preemption of state anti-abortion laws under the Food, Drug, and Cosmetics Act or the Emergency Medical Treatment and Active Labor Act. Part Four addresses the question of whether states can impose civil liability on out-of-state acts or actors—even beyond the right to travel and Commerce Clause concerns—focusing on the classic conflicts-of-law doctrines of jurisdiction, choice of law, and judgment recognition. Finally, Part Five considers the activities of private actors as sources of regulatory authority that create conflicts questions. Here, we discuss the degree to which a state can prevent employers from covering abortion-related expenses as part of their health insurance plans, the privacy concerns that arise when private actors collect data that might be used in criminal prosecutions or civil suits regarding abortions, and the possibility that private religious groups might invoke the First Amendment to claim exemptions from state anti-abortion laws
Are Book Bans Unconstitutional? Reflections on Public School Libraries and the Limits of Law
Since 2021, the number of demands that public school libraries remove materials from their shelves based on content has accelerated almost too quickly to track. Book removal incidents are more prevalent today than at any time since data became available, doubling between 2021 and 2022. Such “book bans” (as opponents characterize them) or “targeted book removals” (as the courts call them) arise in the context of intense political and cultural divisions and, in turn, exacerbate those conflicts. Indeed, national organizations as well as politicians at every level have played a role in the contemporary attack on library materials, which disproportionately targets books about or by LGBTQ+ people and racial and ethnic minorities. Targeted book removals have led to a spate of litigation, most of it still working its way through the judicial system.
While it might seem a simple proposition that removing books from school libraries based on their content always violates the First Amendment, the governing law is far more complex. Public schools exist in a special constitutional zone in which students and others have a limited right to free expression. Libraries play a special role within that zone, it is argued, as a place devoted to free inquiry, where students have asserted a right to receive information.
This Essay delves into the granular distinctions among settings, decisionmakers, and materials in public schools before analyzing the current constitutional status of targeted book removals. When courts consider legal challenges to book removals, they face a number of complexities, including (1) the fragility and diminished stature of the sole Supreme Court case addressing library book removals, which is the basis of students’ right to receive information; (2) limited (or no) guidance from appellate courts; and (3) the need to assess the standing of a variety of plaintiffs (including students, teachers, and librarians as well as authors and publishers) in relation to a range of distinct constitutional claims that receive different levels of judicial review. Meanwhile, competing visions of parental rights add to the stakes.
The Essay reveals the jurisprudential obstacles to successfully challenging targeted book removals in court. It argues, however, that—with the right plaintiffs—a range of constitutional arguments offer a path to keeping controversial library books available to public school students in every jurisdiction
Copyright and the Training of Human Authors and Generative Machines
There are many limitations on copyright of which human authors can and do take advantage as they are learning. However, there is no blanket fair use immunity for use of copyrighted works to educate human authors, even though those authors typically do not go on to create substantially similar works. Human authors typically end up paying, directly or indirectly, for most of the copyrighted works from which they learn. Should it be different when human beings use copyrighted works to train generative AI models? This article concludes that it should not, in spite of two prominent arguments to the contrary.
The first argument is that such training involves “nonexpressive use” of those works. Under the only definition of that term that distinguishes generative AI training from human learning, a “nonexpressive use” is one that does not result in an aesthetic or hedonic reaction to a work. However, copyright should be and usually has been considered to protect not just the entertainment value of works for passive and unchanging human beings, but the educational value of works for human beings who want to learn and change, both individually and collectively.
The second argument is that generative AI training is functionally equivalent to human reading, viewing, or listening – activities outside the scope of copyright’s exclusive rights. However, the distinctions between and limitations on exclusive rights presuppose limited human memory and cognition, and current and future generative models are not subject to those constraints. Moreover, the very inability of computers to have any hedonic or aesthetic reactions to the works they are processing, and their inability to remember and act on those reactions, makes computer processing fundamentally different than human experience of works
Presidential Power to Exit Treaties: Reflecting on the Mirror Principle
In The National Security Constitution in the 21st Century (2024), Professor Harold Hongju Koh considers the legality of unilateral presidential withdrawal from international agreements, and advocates for a “mirror principle.” Under that principle, the degree of congressional approval needed to exit from an international agreement mirrors the degree of congressional approval needed to enter into that agreement in the first place. This issue is important, not the least because President Donald Trump withdrew from important agreements, such as the 1987 Intermediate-Range Nuclear Forces (INF) Treaty and the 1945 UNESCO Constitution, and threatened withdrawal from others, such as the 1949 North Atlantic Treaty that created NATO. The merits of this issue were not resolved by the Supreme Court’s 1979 decision in Goldwater v. Carter.
This essay expresses doubt as to the mirror principle being a legal rule. The U.S. Constitution’s text does not require such a principle, and there is no evidence favoring it in the constitutional drafting and ratification history. Moreover, post-ratification practice by the three branches does not embrace such a principle. Indeed, there are circumstances where unilateral presidential action seems permissible even if not mirroring the original authorization. For example, there may be consensus that the president can unilaterally terminate an agreement if he or she determines that the agreement has ceased to be binding on the United States as a matter of international law, such as due to another state’s conduct (e.g., material breach), due to circumstances such as force majeure or impossibility, due to the effects of armed conflict, or due to a superseding later-in-time treaty or rule of customary international law.
As such, a mirroring concept serves better as part of an aspiration for greater inter-branch cooperation in making and unmaking international agreements, rather than as a legally-enforceable rule. Prevailing law and practice is far more differentiated and fact-sensitive on this issue—a conclusion we think is quite consistent with Koh’s overall, compelling objective of avoiding a rigid rule whereby the president can always terminate agreements unilaterally
Durability, Flexibility and Plasticity in the U.N. Convention on the Law of the Sea
The overall resilience of the U.N. Convention on the Law of the Sea during the forty years since its adoption in 1982—its durability, its flexibility and its plasticity in the face of myriad challenges that have unfolded over time—is largely attributable to certain design features within the Convention, to a willingness to ‘bend’ the Convention toward practical outcomes when necessary, and to the foresight of the drafters in closely tying the Convention to other agreements and standards, as well as to the general field of international law, so that the Convention might evolve as the world evolves. There are risks in flexibility and plasticity; in measured doses they promote resilience, while if taken too far they can erode confidence and support in the regime. Ultimately, such resilience rests on the good faith of States and other relevant actors in pursuing common ground in regulating a common space
The Intentional Pursuit of Purpose: Nurturing Students’ Authentic Motivation for Practicing Law
“Why do you want to pursue a career in the law?” Nearly every aspiring attorney answers this question as part of their law school application personal statement. They pour their hopes, dreams, and challenges into the answer to this question—their formative struggles, deeply held values, and resolve to make the world a better place as legal practitioners. Soon after starting law school, however, law students turn their attention from core aspirations to immediate concerns. Forgotten and slowly choked by the thorns of competition, prestige, and external validation, law students’ internal sense of self and purpose begin to wither away until, at the end of three years in law school, they are just a faint shadow of what once was. Unmoored from their personal values and seeing no higher meaning behind their efforts, many law students soon “grow up” to be directionless, helpless, and hopeless lawyers in a profession marked by profound unhappiness.
The blame does not lie with the students. The curriculum prevalent in most law schools today does little to help students appreciate their personal values, nurture their well-being, and find their calling. Indeed, it actively thwarts this important work. As educators, it is our moral obligation to correct this unfortunate, long-standing, and dangerous process. In a historic time of reassessing life choices and norms after a worldwide pandemic, now more than ever it is crucial for legal educators not only to help students learn how to practice law well, but also to empower them to find and nurture their authentic answers for why they want to practice law in the first place. This interdisciplinary Article offers a blueprint for how to achieve this in a first-year legal practice class. First, the Article explores the current research on professional identity formation and argues that teaching law students to critically question their choices and to pursue meaningful work is the most effective way to combat the crisis of identity facing the legal profession. Second, it examines the philosophical and psychological underpinnings of purpose and meaning, and reviews medical data demonstrating that living a life of purpose tremendously enhances one’s physical, mental, and emotional wellbeing. Lastly, it brings tested methods from the fields of cognitive and positive psychology into the legal writing classroom and offers tangible curricular approaches to help students better direct their lives
Mandated Reporting and The Legal Educator\u27s Duty
As lawyers and educators, law teachers often navigate systems that have failed to account for the needs of the communities that are subject to regulation. These same systems generally fail to appreciate the hybrid role exercised by lawyers who face competing demands as educators. A key example is the tension that exists for legal educators who engage students in clinical and other forms of experiential learning where questions of abuse or maltreatment of vulnerable community members may trigger mandated reporting to government officials. These laws can place legal faculty in the fraught position of needing to reconcile statutory reporting mandates, duties of privilege and confidentiality, and broader social justice considerations. At the same time, this tension presents a unique opportunity for legal educators to confront questions about the implications of mandated reporting head-on, to discuss complex issues about the ethical obligations of attorneys with students, and to work to change the status quo. This article explores the state of the law on mandatory reporting of child maltreatment, while offering practices and pedagogical interventions for legal educators, alongside proposals for legislative reform
Policy Brief: On Remand in Cantero, the Second Circuit Should Uphold New York\u27s Interest-on-Escrow Law and Reject Bank of America\u27s Preemption Claim
In Cantero v. Bank of America, N.A., 144 S. Ct. 1290 (2024), the Supreme Court vacated and remanded a decision of the Second Circuit Court of Appeals. Bank of America argued that the National Bank Act (NBA) preempted New York General Obligation Law (NYGOL) § 5-601, thereby exempting the bank from any duty to comply with the New York statute. The Second Circuit agreed with the bank’s preemption claim.
NYGOL § 5-601 requires national banks and other mortgage lenders operating in New York to pay at least 2% annual interest on funds deposited by borrowers in mortgage escrow accounts. The New York statute is a “State consumer financial law” as defined in the Dodd- Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). Under Dodd-Frank, a state consumer financial law that does not discriminate against national banks is preempted “only if” that law “prevents or significantly interferes with the exercise by the national bank of its powers.”
The Second Circuit held that the National Bank Act preempted NYGOL § 5-601 because the New York statute “would exert control over a banking power granted by the federal government, so it would impermissibly interfere with national banks’ exercise of that power.” The Supreme Court determined that the Second Circuit’s decision did not conform to “the controlling legal standard” for determining whether § 5-601 is preempted with respect to national banks. The Supreme Court held that the “controlling legal standard” for deciding cases like Cantero is the “prevents or significantly interferes” preemption standard established by the Supreme Court in Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25 (1996), and codified by Dodd-Frank in 12 U.S.C. § 25b(b)(1)(B).
The Supreme Court explained in Cantero that “Barnett Bank did not draw a bright line” between state laws that are preempted and those that are not preempted under the “prevents or significantly interferes” standard. A court applying Barnett Bank’s “prevents or significantly interferes” standard must therefore make “a practical assessment of the nature and degree of the interference caused by a state law . . . with the national bank’s exercise of its powers.”
The Supreme Court vacated and remanded the Second Circuit’s decision because the Second Circuit “did not conduct [the] kind of nuanced comparative analysis” required by Barnett Bank’s preemption standard. The Second Circuit erred by adopting a “categorical test,” which “would preempt virtually all state laws that regulate national banks, at least other than generally applicable state laws such as contract or property laws.” The Supreme Court instructed the Second Circuit, on remand, to evaluate the “nature and degree of interference” caused by NYGOL § 5-601 with the “powers” of national banks in a manner that is consistent with the Supreme Court’s assessments of state laws that were preempted, or not preempted, in Barnett Bank and six other Supreme Court decisions identified in Cantero.
Part 1 of this Policy Brief discusses NYGOL § 5-601’s relatively minor economic and financial impact on national banks. Parts 2 through 4 review the Supreme Court’s analysis of the economic, financial, and competitive effects of the state laws that were challenged in Barnett Bank and six other Supreme Court decisions identified in Cantero. As shown in Part 5, the New York statute’s interference with national bank powers is much less significant than the interference caused by the state laws that were challenged in those seven key decisions, including three state laws that were upheld against preemption claims. Accordingly, on remand the Second Circuit should uphold the validity of NYGOL § 5-601 because that statute does not prevent or significantly interfere with the exercise of national bank powers.
As explained in Part 6, the Second Circuit should also reject two additional preemption arguments that Bank of America might advance on remand. As shown in Part 7, the First and Ninth Circuit Courts of Appeal should uphold similar interest-on-escrow laws enacted by Rhode Island and California, which have been challenged in two other pending cases