Volume 2022, No. 1

PDF linkTable of Contents


PDF linkInvisible Victims

by Mihailis E. Diamantis

The criminal courtroom is closed to invisible victims. They did nothing to forfeit their claims to justice. However heinous the wrongs they suffered, however certain their evidence, however eager the prosecutors on their cases, no criminal tribunal will ever see them.

Invisible victims exist because of doctrines that immunize certain people from any criminal inquiry and punishment. These people include suspects whose alleged misdeeds occurred long ago, diplomats, legislators, pardon recipients, and the deceased, among many others. Shielding such individuals from criminal sanction often makes sound policy sense, but criminal law has yet to reckon with the moral cost of deferring unconditionally to their interests.

This Article offers a more balanced approach by disentangling the possibility of trial from the availability of punishment. In other words, criminal law should permit courts to hold trials of suspects who are otherwise immune from punishment. Even if sentencing will not follow, trials give victims a voice and juries an opportunity to recognize and condemn wrongdoing. Familiar procedural safeguards can protect unpunishable criminals’ weightiest interests, even as invisible victims receive the recognition they deserve.

PDF linkOverstepping: U.S. Immigration Judges and the Power to Develop the Record

by Jayanth K. Krishnan

In 1952, Congress established a new federal position to be filled by “special inquiry officers” charged with overseeing deportation cases. These immigration judges—as they eventually came to be called—were assigned to work within the executive branch, namely, the Department of Justice, and they were to be answerable ultimately to a political appointee, the attorney general. Importantly, they received specific statutory authority allowing them to “develop the record” during an immigration case. This power enabled immigration judges to assemble evidence and call, “interrogate, examine, and cross‑examine . . . any witnesses.”

Given that many immigrants who appear in immigration court do so pro se, it is certainly understandable why Congress believed arming the judge with this power would be beneficial. After all, in the absence of counsel, who else might safeguard these immigrants’ interests? Moreover, the federal courts have uniformly found this statute to be legally valid and normatively valuable as well.

But assume that the immigrant has a lawyer. Should the immigration judge still be able to develop the record in the same way? On this question, the federal courts have not reached a consensus. This Article argues that the answer should be no and proposes an approach to address this situation—one that allows the lawyer and immigrant-client to opt out of having the immigration judge intervene. The analytical model offered here is especially necessary at this moment because, given the intense political pressure on immigration judges, they frequently overstep and encroach upon the lawyer-client relationship, often adversely affecting the immigrant’s legal representation.

PDF linkA Queer Analysis of Intellectual Property

by Eden Sarid

Intellectual property (IP) is a legal framework associated with economic rationality and that is supposedly neutral toward diverse manifestations of sexuality, gender identities, and unorthodoxy in the cultural landscape. But is that the case? This Article proposes a queer analysis of IP, asserting that IP is a major mechanism through which sexuality, gender, citizenship, and normativity are institutionalized and hierarchized in cultural and social life.

Applying two interconnected methodologies—examining creative spaces in which queer creativity thrives, including drag, fanfiction, and the Queercore punk subculture, and appraising several IP doctrines through a queer theory lens—this Article demonstrates how queer creative communities organize and resist IP and mainstream culture and illustrates how IP law institutionalizes hegemonic notions of normativity, sexuality, and culture. This Article also exposes a counterintuitive nexus between IP law and queer theory, showing that while IP structures a hegemonic culture, it simultaneously defines a field of marginal cultural production based on a rejection of IP’s rules and aesthetics.

This Article then suggests a reparative reading of queer theory and IP, holding that queering IP allows us to better appreciate the value of queer theory and queer creativity to wider discourses around normativity and meaning, as well as to promote diversity and visibility of nonconforming sexualities and identities in cultural and social life.

PDF linkThe Legal Struggle for Rights of Nature in the United States

by Alexandra Huneeus

In February 2019, residents of Toledo, Ohio, adopted the Lake Erie Bill of Rights (LEBOR). Through this amendment to their city charter, Toledoans sought to transform one of North America’s Great Lakes into a legal subject with the right to “exist, flourish, and naturally evolve.” Toledoans also granted Lake Erie standing to pursue its rights in the local court of common pleas through an action by any citizen, even as they stripped corporations that might infringe on Lake Erie’s rights—by polluting it with fertilizer, for example—of their personhood rights.

For a brief time, Lake Erie found itself in the select company of the Earth’s rights-bearing natural features. Over the past two decades, rivers, forests, glaciers, mountains, lakes, highland plateaus, wild rice, and Mother Earth herself have been granted positive legal rights and have begun to litigate in court in countries as diverse as Mexico, New Zealand, Ecuador, and India. At the international level, the United Nations General Assembly has taken note of this phenomenon and initiated a dialogue with experts of “Earth jurisprudence,” and one international court has declared that rights protect nature “not only for its connection to human use . . . but also for its importance to other living organisms with whom we share the planet, and who are worthy of protection in and of themselves.” Scholars have also taken note, publishing books, journal symposia, and articles focused on¬—and often advocating for—rights of nature, published in fields as varied as natural science, history, political science, anthropology, critical humanities, and law.

An aspect of this emerging environmental movement that legal scholars have explored less is how it not only claims its origins in the United States, but also continues to unfold stateside through the passage of town and city ordinances. Over fifty communities in eleven states and four Native American Nations have passed laws recognizing rights of ecosystems, natural communities, and particular entities. Further, two states have introduced legislation granting nature rights, and at least one state political party has incorporated rights of nature into its official platform. In other words, the movement is anchored not just in smaller countries or developing economies—it also is anchored, albeit less sturdily, in the United States.


PDF linkWhen the Soapbox Talks: Platforms as Public Utilities

by Patrick A. Ward

Soapboxes are frequently used to illustrate the utility of modern-day informational platforms. The Supreme Court in Reno v. ACLU described chat rooms as allowing “any person with a phone line [to] become a town crier with a voice that resonates farther than it could from any soapbox.” However, the legal literature rarely goes further in the comparison than conjuring the idyllic scene of a soapbox orator in the classic town square. Instead, scholars focus more often on the shift from mass media to “many-media” and how to update laws to fit mass media’s regulatory environment to the present day, including First Amendment concerns and extending liability to platforms.

These comparisons miss half the story. Comparisons to mass media rightly capture the concentration of corporate power inherent in mass media and present in modern-day platforms. The comparisons, however, miss the amplification, portability, and affordability for the speaker in both the soapbox and social media eras. Overlooking these eras’ shared democratization of speech, the current literature fails to acknowledge the public and democratic aspects of the control of speech in the soapbox era. The literature thus fails to consider the same types of controls for speech on informational platforms today and whether sustaining democratic discourse demands these controls. This Essay addresses this deficiency by making a robust comparison to the soapbox era, arguing that informational platforms are public utilities, and exploring policy responses that provide public, democratic control of speech on informational platforms.

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