bluuebunny/crossref_metadata_2025 huggingface dataset:
Kazakhstan’s National Identity- Building Policy: Soviet Legacy, State Efforts, and Societal Reactions
Authors: Burkhanov Aziz
Published: July 2018

The collapse of the Soviet Union led to profound changes in ethnicity and identity policies and practices in the newly independent countries, including Kazakhstan. The multiethnic population of Kazakhstan presented an immense challenge for the new regime and its approaches to the identity-building policies. This Article focuses on the identity-building policies of Kazakhstan and offers an overview of the legal framework regulating language use, education, media, citizenship, and official identity policy. This Article also focuses on the implementation of the officially stated policies and explores reasons behind inconsistencies and discrepancies between the declared policies and the de facto situation on the ground. Finally, this Article looks at the societal reactions towards the official identity and language policies expressed in the country’s public and media discourse. This Article argues that Kazakhstan’s post-independence identity- building process is affected by several important implications, including the legacy of Soviet nationality policy, significant continuity with late-Soviet policies and practices, the search for a new identity, and the regime’s aim to prevent political confrontation along ethnic lines by assuring Kazakh hegemony while allowing nominal minority representation.
Law Libraries as Publishers: New Column
Authors: Keele Benjamin John
Published: July 2018

Keele, Benjamin J. (2014). Law Libraries as Publishers. ALL-SIS Newsletter, 34(1), 4.
Perma: A Tool for Addressing Link Rot in Published Scholarship
Authors: Keele Benjamin John
Published: July 2018

Keele, B.J. (2014). Perma: A Tool for Addressing Link Rot in Published Scholarship. InULA Notes 26(1): 9-10.
FERC v. EPSA and the Path to a Cleaner Electricity Sector
Authors: Eisen Joel B.
Published: July 2018

This article analyzes the impact of FERC v. Electric Power Supply Association, in which the Supreme Court upheld FERC’s demand response rule (Order 745) and confirmed FERC’s authority over “practices” “directly affecting” wholesale rates for electricity. It contends that the Supreme Court made a definitive pronouncement on FERC’s authority over end users of electricity who also provide resources back to the electric grid. It also contends that FERC v. EPSA marks the end of “dual federalism” in electricity law that treated federal and state jurisdiction as separate and distinct spheres of authority. Instead, it posits a new era of concurrent regulatory jurisdiction over the grid in which both FERC and the states can simultaneously take actions impacting the wholesale markets. Praising the “directly affecting” standard, and the Court’s application of it to Order 745, as a cogently articulated interpretation of the FPA, the Article notes that FERC has ample authority to innovate and pursue broad policy goals — such as promoting clean and renewable energy — in the wholesale markets, as long as its initiatives may be construed as “practices” that “directly affect” wholesale electricity rates. The Article concludes by identifying significant issues remaining with respect to the decision’s scope, particularly with respect to the allocation of jurisdictional responsibility between FERC and the states. Finally, it introduces the remaining articles in the Harvard Environmental Law Review special issue, dedicated to analysis of FERC v. EPSA.
Challenging Gender in Single-Sex Spaces: Lessons from a Feminist Softball League
Authors: Buzuvis Erin E.
Published: July 2018

Published: Erin E. Buzuvis, Challenging Gender in Single-Sex Spaces: Lessons from a Feminist Softball League, 80 L. & CONTEMP. PROBS. 155 (2017).This Article explores transgender inclusion within adult recreational women’s leagues by using the example of the Mary Vazquez Women’s Softball League (MVWSL), in Northampton, Massachusetts. A MVWSL policy addressing transgender inclusion became necessary due to a noticeable increase in gender-identity diversity. The resultant policy respects the league’s core lesbian constituency by providing individuals with the freedom to acknowledge openly a gender identity that has or is evolving from lesbian to something else, and reflects the league’s founding feminist principles by refusing to define for others the suitability of a women’s community.The Author demonstrates the successful creation of a policy based on internal principles and values rather than external ones, and defines inclusion and prohibits discrimination based on gender identity. This application can be applied in other sporting contexts that separate players by sex to determine the values-driven process of defining who is eligible in each category or, when separation is necessary, to promote the objectives of the leagues, particularly when such a policy is absent from public law.
A Complicated Alchemy: Theorizing Identity Politics and the Politicization of Migrant Remittances Under Donald Trump's Presidency
Authors: Wilks Stephen
Published: July 2018

Cornell International Law Journal: Vol. 50 : No. 2 , Article 4.Using law to conscript financial technology in aid of state goals is not new. Financial institutions have long been subject to myriad legal and regulatory reporting requirements designed to combat money laundering, enforce economic sanctions, support tax compliance, and interdict the financing of terrorism. Trump's particular approach to this tradition, however, seeks to capitalize on a particularly toxic convergence of race, class, economics, and globalization. America is not alone in its recent experience with surges in right wing, nationalist populism. Globalism's winds have posed challenges to those who have enjoyed the benefits of protectionist trade policies that no longer exist, placing them on a collision course with diaspora migrants from the poorest countries who are now mobile, thanks to financial technologies that ease the process of remitting funds home. This collision is a complicated alchemy, which lays bare the ways in which populist faith in the free market appears to be eroding under the strain of globalization's effects. In politicizing migrant remittance flows to Mexico, Donald Trump has signaled both a political recognition of this erosion and a willingness to exploit it. In doing so, he has done more than simply peddle a narrative that appeals to a base of voters increasingly dissatisfied with America's political class. He has likely prompted a new set of considerations among diaspora communities anxious to preserve existing remittance flows in the face of intense anxiety about America's working poor. Yet this conflict demonstrates how modem payment platforms now serve a range of functions one might have seen in a medieval town square: they facilitate commerce while serving as points of conflict and as places of protest. Every possible kind of human and institutional actor passes through this square, shaping its form and function, whether deliberately or unwittingly. The respective aspirations of globalism's human casualties are a deeply complex ecology-reflecting a range of outlooks in relation to one another. On the heels of a presidential campaign defined by explicitly divisive rhetoric transcending the traditional limits of dog-whistle politics, dismissive attitudes towards Trump's campaign proposal have crystalized into palpable fears among progressives who now worry about the potential of witnessing the deployment of proposals that once seemed unlikely. Whether or not President Trump ultimately expands federal regulations to require proof of lawful presence in the country as a precondition of access to international remittance services may matter less than the consequences of linking these transactions to undocumented immigrants in the minds of the white working class.
To the Yukon and Beyond: Local Laborers in a Global Market
Authors: Stone Katherine V.W.
Published: July 2018

3 Journal of Small and Emerging Business Law 93 (1999)This Article explores the possibilities for effective protection of labor rights in the emerging global labor market. It explores existing forms of transnational labor regulation, including both hard regulation, i.e., regulation by state-centered institutions, and soft regulation, i.e., regulation through private actors responding to market forces. The author finds that existing regulatory approaches are inadequate to ensure that the global marketplace will offer adequate labor standards to its global workforce. She proposes new approaches to global labor regulation, approaches that blend hard and soft law by reshaping market forces and embedding them in a regulatory framework that is protective of core labor rights.
Enhancing Enforcement of Economic, Social, and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR
Authors: Kalantry Sital , Kestenbaum Jocelyn Getgen
Published: July 2018

Nearly fifteen years ago, Audrey R. Chapman emphasized the importance of ascertaining violations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a means to enhance its enforcement. Today, the violations approach is even more salient given the recent adoption of the ICESCR’s Optional Protocol, a powerful tool to hold States parties accountable for violations.Indicators are essential tools for assessing violations of economic, social and cultural rights (ESCRs) because they are often the best way to measure progressive realization. Proposed guidelines on using indicators give guidance on the content of States parties reports to treaty monitoring bodies, but none creates a framework to assess violations of a specific right in a particular treaty.This article fills this void by providing a framework to assess State compliance that integrates indicators into the project of ascertaining specific violations of economic, social and cultural rights under the ICESCR. The methodology that we propose calls for: 1) analyzing the specific language of the treaty that pertains to the right in question; 2) defining the concept and scope of the right; 3) identifying appropriate indicators that correlate with State obligations; 4) setting benchmarks to measure progressive realization; and 5) clearly identifying violations of the right in question.We illustrate our approach by focusing on the right to education in the ICESCR. In addition to assessing right to education violations, this methodology can be employed to develop frameworks for ascertaining violations of other ESCRs as well.Published: Enhancing Enforcement of Economic, Social, and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR, 32 Human Rights Quarterly 255 (2010) (a peer-reviewed journal) (with Jocelyn Getgen and Steve Koh) and republished in “Economic, Social, and Cultural Rights,” edited by Manisuli Ssenyonjo, Ashgate Publishing.
R v Bingley and the importance of scientifically-guided legal analysis
Authors: Chin Jason
Published: July 2018

In R v Bingley, the Supreme Court considered a controversial subjective methodology used by police officers trained as drug recognition experts (DREs) pursuant to the Criminal Code. At issue was the admissibility of these experts’ evidence. A 5-2 majority held that Parliament conclusively established the reliability the DRE program’s methodology and the DRE’s qualifications to perform that methodology, and thus trial judges may not exclude DREs for those reasons. Bingley is problematic on multiple fronts. Most fundamentally, the Majority’s statutory interpretation was insensitive to the science behind the drug recognition program. Their analysis put this subjective methodology on the same footing as objective forms of evidence, like breathalyser analysis, where human judgment and bias play almost no role. More broadly, the Majority’s decision comes in light of recent findings that several forensic scientific disciplines are not as reliable as they purport to be. The Majority’s reasoning seemed largely driven by concerns about judicial economy, and in particular the worry that evaluating DREs would take too much court time. In response, we provide a more scientifically rigorous but less time-consuming way for trial judges to scrutinize DREs.
Of Coase and Comics, or the Comedy of Copyright
Authors: Madison Michael J
Published: July 2018

This Essay responds to There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, by Dotan Oliar and Christopher Sprigman. It argues that case studies of disciplines and domains that may be governed by intellectual property regimes are invaluable tools for comparative analysis of the respective roles of law and other forms of social order. The Essay examines the case of stand-up comedy under a lens that is somewhat broader than the one used by the authors of the original study, one that takes into account not only the social norms of individual comics themselves but also features of the entertainment market - and particularly the market for record albums - that shaped comics' incentives and behaviors and comic content itself.
Legal-Ware: Contract and Copyright in the Digital Age
Authors: Madison Michael J
Published: July 2018

ProCD, Inc. v. Zeidenberg, which enforced a shrinkwrap license for computer software, has encouraged the expansion of the shrinkwrap form beyond computer programs, forward, onto the Internet, and backward, toward such traditional works as books and magazines. Authors and publishers are using that case to advance norms of information use that exclude, practically and conceptually, a robust public domain and a meaningful doctrine of fair use. Contesting such efforts by focusing on the contractual nature of traditional shrinkwrap, by relying on market principles, on adhesion theory, on commercial law concepts of usage and custom, or on federal preemption doctrine, feeds rather than resists this trend. This article argues that instead of regulating shrinkwrap itself, reinforcing an adjudicative environment that focuses on public values inherent in copyright and information policy is the best means of preserving fair use and the public domain as meaningful concepts.
LEGISLATING MARKET WINNERS: DIGITAL SIGNATURE LAWS AND THE ELECTRONIC COMMERCE MARKETPLACE
Authors: Biddle C. Bradford
Published: July 2018

The argument goes something like this: Internet commerce is hampered by the authentication problem. There is no reliable way to ensure that the sender of an electronic transmission is in fact who they purport to be. Digital signatures, supported by a “public key infrastructure” of certification authorities (CAs) and certificate databases, can solve this authentication problem. CAs will not emerge under the current legal regime, however, because they face uncertain and potentially immense liability exposure. Additionally, the legal status of digitally signed documents is unclear. Therefore, legislation is needed which defines and limits CA liability and which establishes the legality of digitally signed documents. Such legislation will solve the authentication problem and result in robust Internet commerce.
State Ownership in Terms of Transition: Curse or Blessing
Authors: Nurgozhayeva Roza
Published: July 2018

Cornell International Law Journal: Vol. 50 : No. 1 , Article 3This Article argues that the institutional framework within transition economies, including the lack of a liquid capital market and a competitive product market, in addition to the focus on public benefits and socioeconomic development, favors state-owned companies in terms of a nonmarket-based system notwithstanding the popular concept of transaction costs and corporate efficiency. Despite the apparent costs of state ownership, including political considerations, soft budget constraints, and weak profit motivations, there is a rational choice for state ownership in cases when private firms are not able to deliver the same quality of goods at a lower cost. Therefore, this Article offers another insight into questions of corporate efficiency and alternative governance models of state ownership in transitional economies based on the example of Kazakhstan. It attempts to determine whether the models of state ownership existing in transition economies diminish institutional shortcomings and have important implications for capital costs.
Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory
Authors: Walsh Kevin C.
Published: July 2018

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own? This Article answers that question-a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges' own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions-character traits that pertain to judicial excellence-that can and should be criticized on their own terms.
Intellectual Property and Americana, or Why IP Gets the Blues
Authors: Madison Michael J
Published: July 2018

This essay, prepared as part of a Symposium on intellectual property law and business models, suggests the re-examination of the role of intellectual property law in the persistence of cultural forms of all sorts, including (but not limited to) business models. Some argue that the absence of intellectual property law inhibits the emergence of durable or persistent cultural forms; copyright and patent regimes are justified precisely because they supply foundations for durability. The essay tests that proposition via brief reviews of three persistent but very different cultural models, each of which represents a distinct form of American culture: The Rocky Horror Picture Show; the town band of Chatham, Massachusetts; and the musical form known as the blues. It concludes that that the relationship between cultural persistence and law is more complex than is generally understood. The essay applies some of that more complex understanding to contemporary problems involving business models, notably the copyright dispute involving Google's Book Search program.
Stricken: The Need for Positive Statutory Law to Prevent Discriminatory Peremptory Strikes of Disabled Jurors
Authors: Benson Jordan C
Published: July 2018

103 Cornell L. Rev. 437 (2018)A representative jury ensures a truly impartial trial and that all groups are able to share in this valuable opportunity for civic engagement. Though the disabled constitute a minority of the population, their viewpoint is no less necessary to securing the benefits of a representative jury than that of groups already afforded protection from discriminatory strikes. As the disabled become more represented in many areas of society, their continued underrepresentation on juries will become even more difficult to justify. Discriminatory peremptory strikes are a significant, discretionary means by which the disabled can continue to be excluded from juries even when other reforms aimed at increasing jury accessibility are put into place. Current equal protection jurisprudence provides scant protection for disabled jurors, but states can protect these jurors by statutory means, and will need to do so in order to secure the benefits of a truly representational jury.Unfortunately, much work remains to be done on many fronts before we will begin to see a significant increase in the representation of the disabled on juries. The ADA and other legislation designed to increase the accessibility of courts has removed many of the obstacles faced by disabled persons to serving on a jury, but do little to address many other sources of underrepresentation, including juror lists that systematically exclude the disabled. Peremptory strike reform will therefore need to be only a piece of a broader legislative strategy to increase the representation of the disabled on juries, but it will be an essential piece nonetheless.
Book Review of The Quiet Power of Indicators: Measuring Governance, Corruption, and the Rule of Law
Authors: Kalantry Sital
Published: July 2018

The published version of this book review appeared in vol. 34, no. 3 of Nordic Journal of Human Rights (2016). Sections of the book reviewed may be viewed at: http://catalog.library.cornell.edu/gb6.html?bib_key=ISBN:9781107075207&limit=Select%20chapters%20available
Full Federal Circuit Curbs On Sale Bar's Threat to Patents
Authors: Tian Zong-Qiang Bill , D'Amore Matthew
Published: July 2018

Morrison Foerster Client Alert, July 12, 2016Biotech and pharmaceutical companies received critical guidance from the Federal Circuit yesterday, when the en banc court exempted a broad category of common manufacturing and supply arrangements from the reach of the patent law’s “on sale” bar. In The Medicines Company v. Hospira, Inc., App. No. 14-1469 (Fed. Cir. 2016) (en banc), the Federal Circuit ruled unanimously that “the mere sale of manufacturing services by a contract manufacturer to an inventor to create embodiments of a patented product for the inventor does not constitute a ‘commercial sale’ of the invention” and does not create a potential bar to patentability under 35 U.S.C. § 102(b). The decision reduces the IP risk that smaller pharmaceutical companies faced when contracting out for manufacturing services during commercial development, and provides in-house counsel with signposts to craft agreements that will stay clear of the on sale bar.
Toward Coherent Federal Oversight of Medicine
Authors: Zettler Patricia
Published: July 2018

The conventional wisdom in U.S. health law and policy holds that states regulate medical practice - the activities of physicians and other health care professionals - while the federal government regulates medical products. But relying on states as the principal regulators of medical practice has, at times, driven law and policy in directions that are problematic from a public health perspective, as demonstrated by a deadly 2012 outbreak of fungal meningitis that was linked to a primarily state-regulated practice known as drug compounding. This Article argues that the federalism concerns underlying the conventional wisdom are misplaced. It demonstrates that, contrary to conventional wisdom, the federal government is deeply entangled in regulating medical practice, and such federal regulation is lawful. After examining the goals of federalism within the context of medicine, this Article proposes an alternate paradigm for guiding decisions about when the federal government should be involved in overseeing medicine: Congress and administrative agencies should exert federal authority when medical practice contributes to a national public health problem that states cannot address. This framework is applied to one pressing public health problem to which medical practice contributes - antibiotic resistance - to show how the framework could be implemented. Federal oversight of medical practice under this framework would be more principled and transparent than the scheme of federal control that is in place today.Published: Patricia J. Zettler, Toward Coherent Federal Oversight of Medicine, 52 San Diego L. Rev. 427 (2015).
First-Class Objects
Authors: Grimmelmann James
Published: July 2018

9 Journal of Telecommunications and High Technology Law 421 (2011)What is the difference between "James Grimmelmann" and "@grimmelm" and why should we care? Some computer systems, like Facebook and credit reporting agencies, are inherently "about" people. Others are not. This essay argues that the key technical difference is whether they use unique identifiers to refer to people in their databases. From this single distinction, a host of social and humanistic consequences follow. The essay taxonomizes them and teases out some of their implications for privacy law.
The Right to Read
Authors: Shaver Lea
Published: July 2018

Reading – for education and for pleasure – may be framed as a personal indulgence, a moral virtue, or even a civic duty. What are the implications of framing reading as a human right? Although novel, the rights-based frame finds strong support in international human rights law. The right to read need not be defended as a “new” human right. Rather, it can be located at the intersection of more familiar guarantees. Well-established rights to education, science, culture, and freedom of expression, among others, provide the necessary normative support for recognizing a universal right to read as already implicit in international law. This Article is the first to call for recognition of a right to read. Once recognized in principle, it remains necessary to translate the right to read from a vague ideal into concrete content. As a starting point, the right to read requires that every person be entitled to education for literacy and the liberty to freely choose the reading material they prefer. The right to read also means that everyone must have access to an adequate supply of reading material. Law and policy must be designed to ensure that books, ebooks, and other reading materials are made widely available and affordable – even to the poor and to speakers of minority languages. Reframing reading as a human right ultimately points to a reorientation of copyright law, as well as obligations upon publishers and technology companies to facilitate access for readers of all income levels and in every language. The conceptual elaboration of the right to read also holds lessons for rights theorists and advocates, as an illustration of an “intersectional” approach to human rights scholarship and advocacy.
Contested Visions: The Value of Systems Theory for Corporate Law
Authors: Belinfanti Tamara , Stout Lynn
Published: July 2018

Despite the dominant role corporations play in our economy, culture, and politics, the nature and purpose of corporations remains hotly contested. This conflict was brought to the fore in the recent Supreme Court opinions in Citizens United and Hobby Lobby. Although the prevailing narrative for the past quarter-century has been that corporations “belong” to shareholders and should pursue “shareholder value,” support for this approach, which has been justified as essential for managerial accountability, is eroding. It persists today primarily in the form of the argument that corporations should seek “long-term” shareholder value. Yet, as this Article shows, when shareholder value is interpreted to mean “long-term” shareholder value, it no longer offers the sought-after managerial accountability.What can? This Article argues that systems theory offers an answer. Systems theory is a well-developed design and performance measuring methodology routinely applied in fields such as engineering, biology, computer science, and environmental science. It provides an approach to understanding the nature and purpose of corporate entities that is not only consistent with elements of the many otherwise-conflicting visions of the corporation that have been developed, but also with important and otherwise difficult-to-explain features of corporate law and practice. It offers proven methods for measuring corporate performance that recognize the possibility of multiple goals and the importance of sustainability. And it cautions that, by ignoring the lessons of systems theory, shareholder value thinking may have encouraged regulatory and policy interventions into corporate governance that are not only ineffective, but destructive.
Charging on the Margin
Authors: Crane Paul T.
Published: July 2018

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses- penalties such as requirements to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. Although there is a wealth of scholarship studying the effect this development has on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence that collateral consequences exert on initial charging decisions in low-level prosecutions. Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors. As a result, prosecutors are now more likely to engage in a practice I term "strategic undercharging." A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own prosecutorial aims--and not as an act of grace or leniency. In other words, prosecutors can sometimes gain more by charging less. By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available. This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant. Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration. Changing this approach could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.
The Constitutional Law of Incarceration, Reconfigured
Authors: Schlanger Margo
Published: July 2018

103 Cornell L. Rev. 357 (2018)As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability. And lower courts compounded the error by importing that reading into Due Process doctrine as well. In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern. The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw. The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases. But commentary and developing caselaw since Kingsley has not fully recognized its implications. I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers. The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force. In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.
Discovering the Knowledge Monopoly of Law Librarianship Under the DIKW Pyramid
Authors: Zhang Alex
Published: July 2018

Historical debates demonstrated that knowledge monopoly is a key to a profession. This article explores the exclusive knowledge base of the law librarianship profession through the lens of the Data-Information-Knowledge-Wisdom (DIKW) paradigm.
Labor and the Global Economy: Four Approaches to Transnational Labor Regulation
Authors: Stone Katherine V.W.
Published: July 2018

16 Michigan Journal of International Law, (1994-95)
Criminals, Data Protection and the Right to a Second Chance
Authors: McIntyre TJ , O'Donnell Ian
Published: July 2018

In 2016 Ireland belatedly introduced legislation to allow for the expungement of adult criminal records and, in doing so, highlighted a changing technological and legal context which challenges the assumptions underlying rehabilitation laws. The potential impact of convictions on individuals’ life chances has increased as mandatory vetting has become more widespread. Even where vetting is not required, internet search engines render criminal histories easily accessible to curious third parties. In the other direction, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) have developed privacy and data protection principles which require states to limit the availability of information about old convictions. In this article we outline the limitations of the Irish legislation and use it as a case study to consider these wider issues, examining how it illustrates the growing importance of European privacy and data protection norms in national criminal justice and rehabilitation systems.
The Universal Declaration of Human Rights and the Modern History of Human Rights
Authors: Duan Fengyu
Published: July 2018

Beginning with the phrase “all human beings are born free and equal in dignity and rights,” the Universal Declaration of Human Rights (UDHR) proclaims its purpose of establishing global human rights from the outset. As a common standard of achievement for all signatory nations, the UDHR constitutes an essential cornerstone in the modern history of human rights by drawing upon ancient to contemporary philosophies, responses to the heinous crimes of World War II, and various visions for future human rights standards. Despite diverging viewpoints from many of the drafting parties and states, the UDHR eventually transcended conﬂict to form the underpinnings of a moral compass for all of humankind.This essay ﬁrst explores how the UDHR came into formation by reviewing the historical origins of human rights, global dynamics prior to the UDHR, the drafting process and key debates involved, and ﬁnally its achieved compromise and ultimate unanimous adoption. Then, the essay examines ways in which the UDHR has evolved, from both a legal and moral angle, since its adoption in the context of past achievements and current challenges. From a historical point of view, I argue that the UDHR is a living document that has and is expected to change as our societies continue to evolve.
Sex-selective Abortion Bans are Not Associated with Changes in Sex Ratios at Birth in Illinois and Pennsylvania
Authors: Kalantry Sital
Published: July 2018

Legal prohibitions on sex-selective abortions are proliferating in the United States. Eight state legislatures have banned abortions sought on the basis of the sex of the fetus, 21 states have considered such laws since 2009, and a similar bill is pending in U.S. Congress. These laws have been introduced and enacted without any empirical data about their impact or effectiveness. Prior studies of U.S. Census data found sex ratios among foreign-born Chinese, Korean and Indian immigrants were skewed in favor of boys, but only in families where there were already one or two girls. Using the variation in the timing of bans in Illinois and Pennsylvania as natural experiments, we compare the pre-ban and post-ban sex ratios of certain Asian newborn children in these states over 12-year periods. We then compare these ratios with the sex ratios of Asian newborn children in neighboring states during the same period. We find that the bans in Illinois and Pennsylvania are not associated with any changes in sex ratios at birth among Asians. In Illinois and its neighboring states, the sex ratio at birth of Asian children was not male-biased during our study period. On the other hand, the sex ratio at birth among Asians in Pennsylvania and its neighboring states was skewed slightly in favor of boys, but the enactment of the ban did not normalize the sex ratio. This strongly suggests that sex-selective abortion bans have had no impact on the practice of sex selection, to the extent that it occurs, in these states. This finding is highly relevant to legislative and policy debates in the U.S. Congress and state legislatures where sex-selective abortion laws are being considered.Published: Sex-selective Abortion Bans are Not Associated with Changes in Sex Ratios at Birth in Illinois and Pennsylvania (with Arindam Nandi and Brian Citro), Forum on Health and Economic Policy, December 2014 (peer-reviewed journal).
Objects of Art; Objects of Property
Authors: Alexander Gregory S.
Published: July 2018

26 Cornell Journal of Law and Public Policy 461 (2017)Seemingly worlds apart, art and the law of property in fact share much in common. Some of this shared space is obvious, the result of their intersection through property law's protection and regulation of art. But another aspect of their commonality is considerably less obvious. Both rely, implicitly and in ways not always acknowledged, on assumptions about objects in the world-thing-ness. That is, both have relied, or traditionally have done so, on certain assumptions about the nature of objects-the objects of art and the objects of property-and the upshot of those assumptions is that those objects are characterized by thing-ness, i.e., physicality, tangibility, stability, durability. Further, these assumptions are not only parallel to each realm but intersect with each other in functional ways. Notably, property law's interaction with art depends upon art's assumption of its own thing-ness, for property law itself traditionally has depended upon certain assumptions regarding the nature of property-what can be property. It has assumed that art is a tangible., stable, and durable object.
Can DNA Be Speech?, 33 Cardozo Arts & Ent. L.J. 163 (2016)
Authors: Roig Jorge R.
Published: July 2018

DNA is generally regarded as the basic building block of life itself. In the most fundamental sense, DNA is nothing more than a chemical compound, albeit a very complex and peculiar one. DNA is an information-carrying molecule. The specific sequence of base pairs contained in a DNA molecule carries with it genetic information, and encodes for the creation of particular proteins. When taken as a whole, the DNA contained in a single human cell is a complete blueprint and instruction manual for the creation of that human being.In this article we discuss myriad current and developing ways in which people are utilizing DNA to store or convey information of all kinds. For example, researchers have encoded the contents of a whole book in DNA, demonstrating the potential of DNA as a way of storing and transmitting information. In a different vein, some artists have begun to create living organisms with altered DNA as works of art. Hence, DNA is a medium for the communication of ideas. Because of the ability of DNA to store and convey information, its regulation must necessarily raise concerns associated with the First Amendment’s prohibition against the abridgment of freedom of speech.New and developing technologies, and the contemporary and future social practices they will engender, necessitate the renewal of an approach towards First Amendment coverage that takes into account the purposes and values incarnated in the Free Speech Clause of the Constitution. This article proposes and applies a framework for analysis in the context of contemporary social practices that involve the manipulation of DNA, as a case study from which we can hope to gain valuable insights regarding First Amendment doctrine in general.
District Court Opinions that Remain Hidden Despite a Longstanding Congressional Mandate of Transparency – The Result of Judicial Autonomy and Systemic Indifference
Authors: Martin Peter W
Published: July 2018

The E-Government Act of 2002 directed the federal courts to provide access to all their written opinions, in text-searchable format, via a website. Ten years later the Judicial Conference of the United States approved national implementation of a comprehensive database of those opinions through a joint venture between the courts and the Government Publishing Office (GPO). Despite the promise implicit in these initiatives, public access to many thousands of federal district court decisions each year remains blocked. They are effectively hidden. Many court websites lack a clear link to opinions, only a bare majority of district courts transmit decisions to the GPO, and far too many courts and judges fail to take the steps necessary for opinion distribution beyond the parties. Using the large volume of district court Social Security litigation to measure and illustrate these failures, the article examines their dimensions, consequences, and causes. It concludes that the problem is a large one, that it poses a major challenge to those carrying out empirical studies and judicial analytics, and that the courts' radical decentralization combined with judicial autonomy will continue to frustrate goals of public access unless serious measures are taken at the national level. Finally, it argues that inclusion in the GPO database of federal judicial opinions should cease being optional.
Reconsidering Trials in Absentia at the Special Tribunal for Lebanon: An Application of the Tribunal's Early Jurisprudence
Authors: Gardner Maggie
Published: July 2018

43 George Washington International Law Review 91 (2011)Since Nuremburg, no individual has been prosecuted in an international or internationalized court entirely in his or her absence. That may soon change. The Special Tribunal for Lebanon, which is empowered to try defendants in absentia, has now confirmed its first indictment. While its trial in absentia procedures were met with concern and criticism from some quarters when they were first announced, reconsideration is warranted in light of subsequent judicial developments. The judges of the Special Tribunal for Lebanon have now established in their preliminary decisions an interpretive approach to the Tribunal’s Statute that is adamantly purposive. This purposive approach should lead the judges to apply the Tribunal’s groundbreaking trial in absentia provisions in a manner that is consistent with international human rights jurisprudence, thereby quelling most, if not all, of the prior criticism. This Article first clarifies the debate by disentangling different notions of trials in absentia and by outlining the circumstances under which such trials are considered to accord with modern human rights standards. It then re-evaluates the framework for trials in absentia before the Special Tribunal for Lebanon in light of the Tribunal’s early jurisprudence, suggesting how the judges should interpret and apply these provisions in keeping with their prior case law. It ends with a more pragmatic evaluation of the costs and benefits of trials in absentia and cautions that such trials, while acceptable under the highest international standards of criminal justice, should be undertaken rarely, if at all.
Speech Engines
Authors: Grimmelmann James
Published: July 2018

98 Minnesota Law Review 868 (2014)Academic and regulatory debates about Google are dominated by two opposing theories of what search engines are and how law should treat them. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right. The conduit and editor theories give dramatically different policy prescriptions in areas ranging from antitrust to copyright. But they both systematically discount search users’ agency, regarding users merely as passive audiences.A better theory is that search engines are not primarily conduits or editors, but advisors. They help users achieve their diverse and individualized information goals by sorting through the unimaginable scale and chaos of the Internet. Search users are active listeners, affirmatively seeking out the speech they wish to receive. Search engine law can help them by ensuring two things: access to high-quality search engines, and loyalty from those search engines.The advisor theory yields fresh insights into long-running disputes about Google. It suggests, for example, a new approach to deciding when Google should be liable for giving a website the “wrong” ranking. Users’ goals are too subjective for there to be an absolute standard of correct and incorrect rankings; different search engines necessarily assess relevance differently. But users are also entitled to complain when a search engine deliberately misleads them about its own relevance assessments. The result is a sensible, workable compromise between the conduit and editor theories.