Governing through technology has proven irresistibly seductive. Everything from the Internet backbone to consumer devices employs technological design to regulate behavior purposefully by promoting values such as privacy, security, intellectual property protection, innovation, and freedom of expression. Legal and policy scholarship has discussed individual skirmishes over the political impact of technical choices—from whether intelligence and police agencies can gain access to privately encrypted data to debates over digital rights management. But it has failed to come to terms with the reality that “governance-by-design—the purposeful effort to use technology to embed values—is becoming a central mode of policymaking, and that our existing regulatory system is fundamentally ill-equipped to prevent that phenomenon from subverting public governance.
This Note analyzes how the current push for digitization of library and museum collections exacerbates the infringement and appropriation of intangible tribal cultural property and how current statutory schemes fail to adequately protect such property. Cultural property includes any sacred traditional knowledge essential to tribal ways of life and is often privileged information. Intangible cultural […]
This Note discusses two new multilateral development banks (MDBs), the New Development Bank (NDB) and the Asian Infrastructure Investment Bank (AIIB), which are rising to challenge the hegemony of the World Bank and other Western-led development finance institutions. Supporters have argued that these new banks will be sources of empowerment and reclamation, allowing the Global […]
After judges issue final orders and judgments, losing defendants often ask courts to make a determination that may seem to be a mere procedural technicality, but is, instead, a new battleground for injunctive litigation. These judges are deciding whether to grant a stay pending appeal—whether to prevent the enforcement of a court order or judgment […]
The United States currently detains more families seeking asylum than any nation in the world, but little is known about how these families fare in the immigration court process. In this Article, we analyze government data from all immigration court cases initiated between 2001 and 2016 to provide the first empirical analysis of asylum adjudication […]
Why did, and does, the federal government own most of the public domain within the United States? The standard historical answers—that states ceded their lands to the federal government and that the Property Clause confirmed this authority—turn out to be incomplete, masking a neglected process in the 1780s and ’90s in which legitimate ownership came […]
The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes […]