Nationalism, Populism, Religion, and the Quest To Reframe Fundamental Rights

One of the central pillars of liberal constitutional democracy originating in the Enlightenment has been adherence to institutional secularism. Institutional secularism, which is well exemplified by the U.S. Constitution’s First Amendment Establishment and Free Exercise Clauses, requires sufficient separation between state and religion to allow for a pluralistic polity in which various religious and non-religious conceptions of the good can be accommodated in ways that sustain peaceful coexistence. In the American case, the Establishment Clause prohibits the state from embracing any particular religion or from preferring any of them over others. At the same time, the Free Exercise Clause guarantees freedom of belief and the right of every person to practice the religion of her choice. Other liberal constitutional democracies draw the line somewhat differently, with some like France requiring stricter separation between the state and religion, and others like the United Kingdom enshrining an official state religion that does not operate in any way that curtails the religious liberties of the religiously-diverse citizenry. The key to maintaining institutional secularism consists of the state and the public sphere operating, in substance, independently from religion, while in the private sphere affording a maximum opportunity for religions to thrive and to coexist. Consistent with the values of the Enlightenment, ideally religions should be completely depoliticized and removed from the public sphere in exchange for being guaranteed a privileged status within the private sphere.

Deeply Fake, Deeply Disturbing, Deeply Constitutional: Why the First Amendment Likely Protects the Creation of Pornographic Deepfakes

In June of 2018, investigative journalist Rana Ayyub told the BBC, “The last few weeks I think I’ve witnessed hell because every morning I wake up and I see this stream of tweets with screenshots of a pornographic video with my image morphed on it.” The episode began when Ayyub, an Indian and Muslim investigative journalist, accepted an invitation from the BBC and Al Jazeera to discuss India’s protection of child sex abusers. At the time, an eight-year-old girl had just been raped, and the Bharatiya Janata Party (BJP), an Indian nationalist party, had marched in support of the accused rapist. The day after the interview, Ayyub experienced harassment and abuse on social media. But the next day, the abuse escalated when someone from the BJP texted Ayyub a link to a video that appeared to show Ayyub in a pornographic video. Ayyub watched the first few seconds of the video and froze. She quickly realized the video was fake, since she has curly hair, but she claimed that an average viewer would actually think it was real. Before long, the video was shared all across the internet and social media, and people even reached out to Ayyub in an attempt to pay her for sex. Ayyub suffered immediate effects from this episode, and she checked into a hospital because of horrible reactions from the stress. Now, Ayyub recognizes that she was the victim of a deepfake sex video.

"What Makes You Think You Can Do That?": How Venue Restrictions Prevent Access to Abortion for Minors in Arkansas

A pregnant seventeen-year-old in Benton, Arkansas, has access to over a dozen doctors’ offices, several charities, and an adoption agency. Benton is a city of over 30,000 people, which likely makes good use of all these types of services. As the county seat of Saline County, Benton also serves as a judicial district, with easy access to state courts. A pregnant seventeen-year-old in Roland, Arkansas, has none of these services; and indeed, there is not much of anything in the town of about 800. A small town in Pulaski County, Roland boasts mostly churches and farms; the town does not even have a courthouse. Both these adolescents are a half-hour drive from Arkansas’s major abortion clinic, Little Rock Family Planning Services. In order for either of these minors to obtain an abortion without parental consent, they must file a petition for a judicial bypass in their county of residence. The county line between Benton and Roland means that the seventeen-year-old in Roland will have access to a judge who is familiar with the judicial bypass process, which allows a minor to consent to their own abortion, while the seventeen-year-old in Benton will either have to obtain parental consent or carry the pregnancy to term.

"And the Oscar Goes To . . .": Why the Academy Awards May Create Antitrust Drama with Proposed Eligibility Rule Changes

At the ninety-first Academy Awards in February 2019, streaming service Netflix earned its first Best Picture nomination for its film Roma. Though Roma ultimately failed to win, the fact that a streaming service was nominated for one of Hollywood’s biggest awards worried filmmakers who believed that films should only be viewed in a movie theater. As a result, the Academy of Motion Picture Arts and Sciences (the Academy), the organization that gives out the Academy Awards, or the “Oscars,” met in April 2019 to discuss potential changes to its eligibility rules to address this worry. Currently, films must be shown in a theater in Los Angeles County for one week to be eligible for an Academy Award. Proposed rule changes included lengthening this requirement from one week to as long as four weeks.

How Do You Know It Was Me? A Case Comment on Cobbler Nevada, LLC v. Gonzales

A company discovers that a user downloaded its copyrighted movie using BitTorrent. The company cannot identify the user but, luckily, it does have the user’s Internet Protocol address (IPA). Seeking to defend its copyright, the company sues for copyright infringement, listing a John Doe and his IPA as the defendant. The company then moves for expedited discovery to subpoena the user’s internet service provider (ISP) to identify the internet subscriber. Armed with the user’s identity, the company offers to settle. Some defendants agree to settle, perhaps because they were caught red-handed and are being offered an olive branch, or perhaps because they are innocent but fear protracted litigation.

Oklahoma v. Purdue Pharma: Public Nuisance in Your Medicine Cabinet

Oklahoma v. Purdue Pharma (Opioid Case) marked the first time that a drug manufacturer was declared legally liable for the destruction wrought by prescription painkillers. The landmark decision held Johnson & Johnson (J&J) accountable for causing the opioid epidemic in Oklahoma under a novel application of the public nuisance doctrine. Judge Thad Balkman, who delivered the bench trial decision, concluded that J&J’s deceptive and misleading marketing of prescription opioids created a public nuisance that interfered with the rights of Oklahomans. Though the plaintiffs had initially requested over $17 billion, Judge Balkman ordered J&J to pay $465 million—the estimated cost of one year of Oklahoma’s Abatement Plan—to abate the public nuisance in Oklahoma, where around 6,000 people have died from opioid overdoses and countless more are struggling with opioid addiction to this day.

Is the U.S. Government Violating the Safe Conducts of Noncitizens? How a Turn to Strict Originalism Could Revitalize the Alien Tort Statute

The United States’s increasingly severe immigration enforcement apparatus has generated intense scrutiny and triggered a flood of federal litigation. In particular, the crackdown on asylum seekers, refugees, and other noncitizens who fear returning to their home countries has driven a renewed interest in the United States’s sparingly-examined obligations under the international legal prohibition against refoulement, as well as the availability of corresponding civil remedies for noncitizens in federal courts. At the same time, the U.S. Supreme Court has substantially narrowed one of the key remedies accessible to foreign nationals who suffer violations of international law—the Alien Tort Statute (ATS)—and strongly signaled that even more restrictions are to come. Following a trilogy of Supreme Court decisions, most recently in Jesner v. Arab Bank, it remains an open question whether noncitizens can rely on the ATS for bringing human rights-based actions.

Untag Me: Why Federal Judges are Broadly Construing Illinois’s Biometric Privacy Law

Have you ever wondered how Facebook recommends for you to “tag your friends” in new posts? Biometrics is the umbrella term for any technology that either identifies who you are or authenticates who you are via physiological or behavioral characteristics. These technologies include facial recognition, voice recognition, fingerprinting, vein geometry mapping, heartbeat recognition, and iris and retina scan recognition. Fingerprinting and facial recognition are most familiar to the eighty-one percent of Americans who own smartphones—it is how your smartphone ensures that you are, in fact, you. Facial recognition is also how Facebook recognizes your friends and prompts you to tag your friends in your newly shared posts.

Fintech: New Battle Lines in the Patent Wars?

Historically, financial institutions have relied on trade secrets and first-mover advantages, rather than patents, to protect their inventions. For the few financial patents that were issued, conventional wisdom was that they weren’t terribly interesting or important. In our 2014 study on financial patents, we showed that banks were breaking from past patterns and increasingly seeking patent protection. We explained that financial institutions were primarily building their patent portfolios as a defensive measure—i.e., to protect themselves from infringement suits. Indeed, the finance industry successfully lobbied Congress to include provisions in the America Invents Act of 2011 that made it easier to invalidate financial patents through administrative review. Yet, two significant developments call for a revisit of our 2014 study: first, the rise of fintech and, second, the recent $300 million verdict in the first bank-on-bank patent infringement suits—United Services Automobile Association (USAA) v. Wells Fargo. This paper explores how the rise of fintech has changed the purpose of patenting among banks, and what a possible fintech patent war would mean for the future of both the financial and patent systems in this country.

Accommodating Legal Ignorance

A hoary criminal law maxim provides that “ignorance of the law is no excuse.” The maxim’s apparent premise is that people should know (and abide by) the law. When the content of a law reflects deeply ingrained social norms, the premise is uncontroversial. A criminal defense predicated on ignorance of prohibitions on murder, theft, assault, or sale of narcotics would—and should—fail for multiple reasons. First, the assertion of ignorance is implausible. Second, even if it happens to be true, a defendant bears moral culpability for failing to absorb such basic social norms. Moreover, the principle extends beyond the realm of criminal law. An employer who fires an employee because of the employee’s race or religious faith similarly violates both legal proscriptions and moral norms; whether the employer actually knows of the legal prohibition is and should be irrelevant to the discharged employee’s claim.