Executive Order 14105 "Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern" was enacted to protect U.S. national security interests in light of China's military technological growth. This Executive Order creates an outbound investment review program that restricts investments by a U.S. person into companies in specified countries operating in certain technology sectors. This Note will discuss the background ofgeopolitical tensions between the United States and China, review E.O. 14105, and argue that the program it creates results in burdensome unintended consequences to the U.S. economy. These unintended circumstances include: (1) high regulatory compliance costs, (2) trade wars, (3) a decrease in U.S. competitiveness, and (4) retaliatory policies from China. Along the way, this Note will propose methods and considerations to alleviate some of these burdens.
Rap music has earned its prominent place in American music culture.1 It provides a unique creative outlet for artists to share their experiences and criticize the systems in which they live. Rap lyrics, often metaphorical or exaggerated, have been weaponized by prosecutors to attack the character of artist-defendants at a level not seen with other modes of creative expression. The lyrics of an artist are turned against them in a manner that invites unfair prejudice and improper character evidence into legal proceedings. In the 2020s, major progress has been made to curb this practice, with several jurisdictions introducing legislation that would limit the use of creative expression, such as rap lyrics, as evidence in trials. While these proposed laws are a significant step to protecting creative expression, they leave gaps that allow prosecutors to continue their misuse of lyrics as evidence. This Note argues that an effective creative expression evidence rule must have the following characteristics: (1) a presumption of inadmissibility, (2) a distinct framework to investigate whether a lyric can be properly interpreted literally, thereby rebutting the presumption of inadmissibility, (3) an exception for lyrics that create a cause of action by themselves, and (4) a requirement that creative expression evidence be presented to a jury in the least prejudicial medium available. This Note invites legislators wishing to protect creative expression to consider Rule X, a model rule that combines the strengths of current legislation to strike a balance between protecting creative expression and ensuring such expression cannot be used to shield wrongdoings or genuine confessions with immunity.
California is currently facing an insurance crisis. The increased impact of climate change, including extreme droughts and wildfires, poses new risks to the insurance industry, especially when it comes to homeowner's insurance. Insurance providers have limited their homeowner coverage, with many companies leaving the state entirely due to the undervaluation of climate risk in the policies they provide. A so-called "climate insurance bubble" is already beginning to burst. The state's last-resort public insurance program, the FAIR Plan, has expanded rapidly to fill in for the lack of insurance providers in the state. But because FAIR Plan policies are expensive and limited, many Californians are forced to go without any home insurance coverage at all.1 This Note will examine California's ongoing insurance crisis, focusing on the factors driving the increased severity and frequency of wildfires in the state. It will then explore the impact of these wildfires on the housing market and provide an overview of California's insurance regulations and the current state of the insurance market. The Note will highlight the drawbacks and benefits of sustainable Insurance Strategy, and offer recommendations to strengthen wildfire insurance regulation by incorporating more consumer-focused strategies. The recommendations include providing additional financial incentives for homeowners to fireproof their properties, expanding wildfire preparedness education, and rebuilding communities affected by fires with greater resilience by utilizing smarter, more sustainable land use practices.
All three branches of the federal government have wrestled with how the law could or should regulate social media applications to mitigate the harms of disinformation. However, most proposed solutions make the same critical mistake: Lawmakers may focus on speech regulation or even economic regulation to solve for disinformation but these solutions do not actually address contemporary, technological vectors of disinformation. In today's increasingly technologically driven global speech environment, the lynchpin for disinformation is not speech but data. In particular, algorithmic personalization is a new, technological factor that makes disinformation especially harmful. Luckily, data protection and privacy regulation can greatly curb the impact of algorithmic personalization and, correspondingly, disinformation harms as well. These privacy regulatory solutions also do not have the negative factors that make speech and economic regulatory solutions difficult and ineffective. Thus, lawmakers would be better off moving away from speech and economic regulation to instead focus on privacy regulation to mitigate the harms of disinformation, including disinformation found on foreign-owned social media applications, like TikTok. Legal solutions that focus on data privacy, instead of pure speech regulation or economic regulation, are better solutions for disinformation for four reasons. First, privacy regulation addresses the root of the problem for today's disinformation: the technological factor of personalization, driven by technological developments like the internet and artificial intelligence ("AI"). Second, privacy regulations are more likely to pass constitutional muster, avoidingFirstAmendment roadblocks. Third, privacy regulations are likely less controversial to an American public primed to fear censorship. Finally, privacy regulations would be less likely to discriminate harshly against foreign companies, resolving international tensions around perceived economic protectionism and trade unfairness.
A recent challenge to the Biden Administration's military aid to Israel as aiding genocide presents an important question of the role of U.S. courts in adjudicating claims that top U.S. officials, in their execution of U.S foreign policy, are violating fundamental international law norms, such as the prohibition against committing or aiding and abetting genocide. Both the District Court and the Court ofAppeals for the Ninth Circuit dismissed the case as presenting a non-justiciable political question. The Ninth Circuit's decision raises the broad question of whether challenges to U.S. government violations of fundamental norms of international law can ever be justiciable in domestic courts. The court's holding suggests that all cases challenging a broad U.S. policy of committing or aiding torture or genocide abroad will be dismissed as a political question. While the panel attempted to temper its holding by asserting that "although some cases involving alleged genocide will be justiciable," the decision's rationale contradicts this. This essay will analyze Defense for Children International-Palestine v. Biden ("Defense for Children") as a window into broader, theoretical questions of the legitimacy and viability of the political question doctrine as the courts have applied it to foreign affairs disputes. Further, this discussion of Defense for Children will fashion a proposed solution to the conundrum federal courts face when confronted with broad challenges to U.S. foreign policy as violative of the Constitution, congressional statutes, or international law.
Brain injuries often result in varying degrees of impairment to communication and cognitive processes, impeding an individual's ability to engage in daily activities, participate in social interactions, and achieve independence. This paper builds upon our legislative proposal from Designing An Americans With Abilities Act: Consciousness, Capabilities, and Civil Rights, published in the Boston College Law Review in 2022. That paper proposed new legislation called "The Americans with Abilities Act" ("AWAA"), a comprehensive framework for the effective development, uptake, and utilization of advanced assistive technology ("AT"). These technologies aid individuals with brain injuries in realizing their capabilities and reintegrating into broader society. Addressing the crucial need for person-centered disability legislation, the AWAA would establish a comprehensive and coordinated governmental effort to assist the recovery journey of brain injury survivors and their families. It does this through establishing tailored support networks and new mechanisms for improved research, development, and uptake of accessible AT. When offered to those with brain injuries, AT can foster communication and improve reintegration. This paper builds on our 2022 paper, focusing on administrative law and civil rights to introduce a central component of the AWAA: an innovative interagency committee called "The Interagency Committee for Brain Injury Recovery" ("ICBIR"). The ICBIR will synergize efforts among healthcare providers, technology experts, rehabilitation specialists, those with brain injuries and their family members, to create cohesive individualized care plans. These plans will more effectively address the multifaceted needs of brain injury survivors throughout their long recovery, while supporting their civil liberties and fostering reintegration. Our legislation includes a structured framework that ensures equitable access to rehabilitation, medical support, and state-of-the-art AT tailored to the needs of brain injury survivors. These benefits improve independence, quality of life, and communication. By facilitating effective communication, cognitive rehabilitation, and community reintegration, the AWAA aims to address the unique challenges that brain injury survivors encounter during their recovery process. The AWAA will also nurture the independence and well-being of brain injury survivors by broadening their capabilities, thus enhancing their prospects for community reintegration and independent living. Through a person-centered administrative law approach, the AWAA and its constitutive ICBIR catalyze governmental support systems for brain injury survivors by bolstering their capabilities and safeguarding their civil rights. Ultimately, this legislative endeavor exemplifies a transformative step toward fostering inclusivity, maximizing potential, and creating a society that embraces diverse abilities.
With large and powerful social media companies operating as worldwide speech regulators, it is unsurprising that governments have attempted to not only regulate how these companies address platform speech but also pressure them to deliver preferred speech outcomes. In 2024, the Supreme Court decided two cases addressing both themes in the U.S. context. In Moody v. NetChoice, the Court explained how legislation regulating private platform curation of user-generated content runs afoul of First Amendment protections. And, in Murthy v. Missouri, the Court appeared to erect significant hurdles to challenging alleged governmental coercion of such platforms. These cases have left many wondering what can be done to achieve the legitimate societal aim of promoting broad and fair protections for user-generated speech on large social media platforms while addressing illicit governmental interference with such discourse. This Essay seeks to spur a dialogue about the potential for global corporate responsibility and free expression standards to provide a way forward. Under such standards, companies would apply a principled free expression framework in curating platform speech as well as proactively resist illicit governmental pressure. That said, as corporate adoption of these standards remains voluntary, this Essay urges a range of stakeholders to seize this norm-building moment to encourage platform adoption of these global standards or otherwise risk cementing unprincipled approaches to online speech.
Extended reality (XR)-the integration of virtual, augmented, and mixed reality technologies-creates immersive, embodied, and behaviorally integrated forms of communication that challenge traditional understandings offreedom of expression. While XR offers new opportunities for creativity, civic engagement, and cross-cultural participation, its immersive nature introduces risks of censorship, surveillance, biometric profiling, algorithmic manipulation, and inequitable access. This Article situates XR within the framework of European human rights law. It begins by identifying the technical and psychological features that distinguish XR from conventional platforms, particularly presence, immersion, and embodiment, which transform speech into multisensory and interactive experiences. It then evaluates how existing legal protections- chiefly Article 10 of the European Convention on Human Rights, the EU Charter of Fundamental Rights, and Council of Europe recommendations-apply to XR contexts. Although these frameworks emphasize legality, necessity, and proportionality, their application remains underdeveloped where expression occurs through avatars, immersive environments, and biometric data. Key cases such as Handyside v. United Kingdom, Delfi AS v. Estonia, and B & abreve;rbulescu v. Romania illustrate both the adaptability and limits of current doctrine when extended into immersive settings. The Article concludes by proposing reforms to adapt human rights protections to XR. These include clarifying platform liability for real-time immersive interactions, enhancing transparency in algorithmic governance, strengthening privacy safeguards for biometric and behavioral data, addressing immersive misinformation or "mis-experience,"and promoting equitable access to XR technologies. Taken together, these measures would help ensure that XR develops as an inclusive and rights-respecting medium rather than a frontier for unchecked corporate or state control. By grounding its analysis in European legal traditions, this Article demonstrates both the urgency and feasibility of adapting existing frameworks to safeguard expressive freedoms in the age of immersive computing.
I confess. As a tax professor, it has long hurt my feelings that economists label tax as a market distortion. My field is summed up as an impurity on the otherwise pristine complexion of the economist's pure market. I like to think that tax scholars are not so disparaging of economics. We do not view economically motivated action as a distortion to our tax system, but as a component of it. It is tax planning. This Article proposes that tax should be viewed as a component of a market system. Just as tax scholarship acknowledges that an imagined world in which tax is imposed in isolation does not and cannot exist, might economic scholarship similarly concede that it lacks a robust basis to characterize tax as a distortion to the market, as opposed to a component of it? After all, could a market exist without government enforcement of market rules, and could a lasting, functioning government exist without tax? This Article argues that an income tax is the vestibular system of our market economy. It can balance the market and help send better information to our brains. Without an income tax to balance the otherwise harmful effects of excessive risk aversion, narrow framing, and the disposition effect, transactions would be made by brains that are preoccupied with avoiding loss. The market system would lean inefficiently against risk. Luckily, an income tax ramps up risk-taking and counterbalances risk aversion. Viewing tax as a component of a market system, rather than viewing it in isolation, reveals that the income tax corrects the market. It mitigates the harmful economic consequences of loss aversion. The implications of this insight are significant. They support arguments that: higher income tax rates might fuel economic growth, loss offsets encourage risk-taking better than preferred rates do, and the realization requirement offers additional corrective power.
A new, previously unstudied institution is addressing felonies, including violent felonies of the highest levels, without imposing incarceration as the sanction. Attempts to abolish prisons, or at least reduce racialized mass incarceration, must consider how to respond to serious and violent crimes. This Article offers an analysis of a real-world, ongoing experiment in doing so. The Manhattan Felony Alternative-to-Incarceration Court ("ATI Court") is the first and, thus far, the only court in the country that systematically offers defendants of any demographic and any charge the opportunity to be diverted from the traditional criminal legal system and to avoid prison. Defendants are mandated instead to engage with community-based social services, such as education, mental health treatment, job skills training, substance use programming, and housing support. This Article is the first academic work to describe and conduct an institutional analysis of this paradigm-shifting phenomenon, and the first text providing an in-depth, publicly available account of the court. I collected empirical data using qualitative methods. Based on my site visits, my interviews and correspondence with court actors, and court documents, this Article describes the court, situates it in the context of existing "alternatives to incarceration,"and analyzes the court's design.
One way to evaluate various legal interventions in people's lives is to ask whether they make choosers better off by their own lights, or "as judged by themselves." This criterion can be understood to borrow from the liberal political tradition insofar as it makes the judgments of choosers authoritative. If lawyers, judges, and policymakers give ultimate authority to choosers, this might be taken as respecting choosers' own judgments and promoting their welfare (insofar as people are uniquely situated to know whether choices make them better off). But for certain decisions, the "as judged by themselves" criterion is indeterminate. In these situations, which involve life-changing, transformative experiences, the criterion does not offer a unique solution; people might be happy with their choices either way. It is possible that welfarist criteria will resolve the indeterminacy, despite serious questions about incommensurability.
With the growing prevalence of artificial intelligence (AI) in various aspects of our lives, it is not surprising that it has become a subject of legal disputes and controversy. In 2023, an individual filed the first defamation lawsuit against AI company, OpenAI, for its ChatGPT service, leaving many to speculate how the court will proceed. This Note assesses the viability of defamation actions against generative AI platforms and their broader effect on defamation law. Particularly, this Note considers how courts may characterize these platforms and how specific characterizations could further the controversy over an already polarizing and hotly debated piece of legislation-Section 230 of the Communications Decency Act ("CDA"). Suppose courts remain consistent with prior broad interpretations of Section 230 and grant generative AI platforms "internet provider" status. This would protect AI platforms from liability for outputs that spread false, misleading, or dangerous information to users. Consequently, harmed plaintiffs would be left without any recourse or recovery options against the companies and programs behind the AI algorithms. The potential for a continuation of such expansive judicial interpretations should prompt Congress to revisit the legislation that has granted internet providers sweeping protection for decades. This Note argues that Congress should use the contentions associated with AI and defamation to clarify the contours of the current Section 230 legal framework and adjust it to fit the range of technological advancements that have developed since its enactment. Specifically, Congress should not simply leave it up to individual courts to decipher the statute's reach on their own. Instead, Congress should act now to eradicate or radically restructure this controversial and outdated legislation before it seeps into areas of technology beyond its purpose. Thus, generative artificial intelligence programs emphasize the antiquity and inflexibility ofSection 230 in today's technological society, giving AI the potential to ignite congressional removal or reform of one of the most influential internet laws today.
Artwork is unique and irreplaceable. It is signifier and signified. The signified of a work of art is its coherent purpose. But the signified of a work of art can be altered when not protected. The ramifications of unduly altering the signified of a work of art are consequential for both living and future generations. While the law provides protection to artists and art owners, it fails to grant rights to works of art themselves. The current legal paradigm, designed around the interest of owners and artists, also falls short of protecting Indigenous art aimed at conserving traditions and cultural identity, rather than monetizing creativity. This Article provides a theoretical framework for recognizing legal personhood for works of art, in the interests of art in and of itself as well as of current and future generations of human beings. This new paradigm protects artwork through the features of legal personhood. Legal personhood for artwork prioritizes the protection of art in and of itself and enhances intergenerational equity.
In the United States, Australia, New Zealand, and elsewhere, people kill sentient creatures-by the millions every year-in the crusade to conserve biodiversity. I explain how laws permit, and in some instances require, killing to save nonhuman species and to keep ecosystems functioning. In Australia, the nation with the worst record of mammalian extinctions, the government has tagged various invaders as "Key Threatening Processes." In 2023, it laid out elaborate plans to rid the nation of as many feral cats as poison and hunters could kill. Similarly, "Predator Free New Zealand 2050" is the New Zealand government's elaborate plan to trap and kill every stoat, weasel, fox, and rat that imperils the nation's largely defenseless flightless bird species. The United States has no overarching plan to get rid of invasive animals that threaten endangered species, but nonetheless sanctions killing barred owls to save northern spotted owls, goats and sheep to save Hawaii's Palila bird, and Burmese pythons to protect numerous Everglades species ... the list goes on. I explain how, where, and why these laws exist and function. In some nations, for some species and ecosystems, the moral calculus tilts towards killing for conservation. As in any conversation about biodiversity in the Anthropocene, the answers hinge on fundamental questions: What kind of planet do we want? Who do we want to share it with going forward? How much can we homogenize our surrounding ecosystems and still sustain human life? I advocate that in many cases, governments should continue to kill sentient, non-native creatures to save other creatures that are critical to maintaining the functioning ecosystems that sustain human lives.
Corporate laws in the United States require corporations to be governed by a board of directors consisting of humans-otherwise known as the natural person requirement. Mandating governance by individual persons stands in contrast to typical American business ideals and the freedom of contract. There are various reasons for corporate law's imposition of the natural person requirement-many of them historical. But the justification for the natural person requirement has not been sufficiently critiqued, particularly in the context of AI. This Note argues this corporate law requirement should be amended to give corporations the option to permit AI directors in addition to other human and organizational entity directors. After reviewing the current corporate law landscape, this Note shows that the changes advocated for are quite simple to implement from a purely legal standpoint. Next, the Note presents three reasons for amending the requirement: (1) AI directors can be beneficial in ways that human directors cannot; (2) the justifications normally put forth in support of the natural person requirement fail; and (3) doing so would promote American ideals. Lastly, this Note discusses additional caveats and considerations to its proposal and compares approaches to organizational entity directors to the proposal made in this Note. The natural person requirement is outdated when considered in the context of modern artificial intelligence technology, and it should be amended to provide corporations with flexibility in designing their boards of directors.
Over the last decade, many states have passed laws seeking to restrict or ban certain medications approved by the United States Food and Drug Administration (FDA). One of the most recent examples: gender-affirming care medications for transgender youth and young adults. As of January 2025, twenty-six states have passed laws banning or restricting the provision of gender-affirming care to minors. Proponents of these laws challenge the procedures and prescription drugs as "experimental,"while critics of these laws characterize both as best-practice medical care. In either case, these laws demonstrate a second-guessing of the FDA's long-established authority in determining the safety of prescription drugs. Although the FDA does not regulate the practice of medicine, the effect of these healthcare regulations is to limit or prohibit access to FDA-approved medications. This inconsistency raises the question of what the FDA's role is- and should be-in protecting access to medicines. This Article considers the FDA's role in securing access to medications, focusing on the case of gender-affirming care medications. In doing so, this Article makes three key contributions. First, this Article provides a comprehensive account of the state laws restricting access to gender-affirming care. Second, this Article analyzes how these state laws interact with federal prescription drug regulation and demonstrates the limitations of FDA authority in preempting state laws on gender-affirming care medications. Third, this Article argues that federal prescription drug regulation must be strengthened in order to protect patients' equitable access to medicines, including, but not limited to, gender-affirming care medications. Noting the historical role of the FDA in medical care and drug regulations, as well as the federalist implications of expanding this authority, this Article frames the FDA as not only a consumer protection agency, but also as an access to medicines agency. This framework will support the development of reforms centered at the FDA aiming to secure and expand the availability of prescription drugs for patients across the country.
Forced labor is rampant across global supply chains. Addressing it at individual sites of production results in a game of whack-a-mole. An effective response must target the structural drivers of the problem: the large firms at the top and middle of supply chains that pressure suppliers at the bottom to cut labor costs in order to remain competitive. In the absence of other U.S. laws that address the structural causes of forced labor, this Article argues that the forced labor import ban in section 307 of the United States TariffAct may have the potential to be utilized by civil society organizations and the State in top-down ways to hold lead firms at the top and middle of supply chains accountable for facilitating forced labor. Additionally, it may offer a resource to bottom-up efforts by workers in supply chains and the unions that represent them to demand that both brands and suppliers take responsibility for improving working conditions. This Article makes three contributions. First, it contends that although enforcement of section 307 to date has been sporadic and often influenced by foreign policy concerns, the U.S. government possesses the legal authority under existing statutes and regulations to target enforcement in ways that address the structural drivers of forced labor both from the top down and the bottom up. Second, it offers the only account to date of how civil society actors have used the law's public petition mechanism and other interventions in efforts to direct government resources towards a systemic enforcement approach. Drawing on interviews with key civil society and government actors and a review of both confidential and public petitions, this Article maps advocates' strategies and the government's response, illustrating the government's resistance to enforcing section 307 against lead firms at the top of supply chains and its partial openness to a structural enforcement approach at the middle and bottom. Third, it highlights the urgency of solutions to forced labor that support the exercise of freedom of association by supply chain workers. Here, it proposes a novel way for unions to draw on section 307 as leverage when they organize in supply chain contexts.
Many have voiced concerns that the digital dollar, a digital form of central bank money, will facilitate government surveillance, thus depriving users of privacy. This Article investigates critical technical designs proposed by leading think tanks, central banks, and scholars from interdisciplinary fields, reaching a surprising conclusion that contradicts popular belief: a digital dollar can offer better privacy protection than existing digital payment systems. The Article argues that those expressing concerns have made two flawed assumptions: (1) that digital dollar data is fully transparent regarding personal information and transaction details and (2) that the government or Federal Reserve has unrestricted access to this fully transparent data, posing a significant risk for misuse. In reality, the designs directly oppose these assumptions by allowing for a certain degree of anonymity-whether through payer anonymity, transaction anonymity, or a combination of both-while preventing government access to identity data and transaction details. The real issue is that if the digital dollar adopts these privacy-preserving designs, it will directly conflict with existing anti-money laundering and countering the financing of terrorism (AML/CFT) regulations that require transparent data to combat financial crimes. Accordingly, this Article proposes changes to financial institutions' record-keeping, reporting, and information-sharing practices. It also suggests modernizing AML/CFT requirements to allow a certain degree of anonymity to protect privacy while still fulfilling public interest objectives such as combating money laundering and terrorist financing.
