Law school seminars dive deep in FOI, free press, film

RJ Peltz-Steele with Google Gemini CC0 1.0

Students in my spring seminars, in Freedom of Information Law and in Free Press and Film, did outstanding work, and I am indebted both to them and to colleagues who joined my classes for teaching me and enriching my intellectual life.

Recently I spoke on the telephone to a long-time friend in academics, a professor at another university, many miles away. We shared strikingly similar stories of well paid administrators, whose numbers on campus seems to grow faster than the wealth gap, even while they lament cuts of not-nearly-as-well-paid staff and faculty positions to keep us within budget.

Well, the similarity would be striking if we were not accustomed to it. Universities in the United States combating financial exigency now seem to me like the nation of Oceania in George Orwell's 1984. They are forever locked in conflict with one or another enemy that is not in fact the greatest existential threat. Rather, the government itself perpetuates a state of emergency so that apparatchiks (administrators) can consume the fruits of labor while the masses (faculty and students) abide oppressive regulation and a diminishing standard of living.

My friend suggested that I propose and apply for a new university office, perhaps a Vice Chancellor of Financial Exigency. That sounds ironically lucrative. As they say, "when in Rome"; if the empire is falling, grab all the grapes you can.

Our conversation devolved, as it invariably does, into why we put up with it all. Coming in a very close second to paying the mortgage is an answer that I fear is both cliché and self-condemnatory: We are gratified when our students learn and excel.

Faculty Seminar Contributors

In the spring, I had the privilege to teach two seminars, one my recurring offering in freedom-of-information (FOI) law, the other a one-off, a course on free press and film. The FOI class coincided with the conclusion of my term on the federal Freedom of Information Act (FOIA) Advisory Committee, which service afforded me an opportunity to expose my students to leading-edge issues in the field.

The free-press-and-film class allowed me and the class to sink our teeth into the captivating book, featured at The Savory Tort in 2024, Filming the First: Cinematic Portrayals of Freedom of the Press (Lexington Books 2025), by my friend and colleague Helen J. Knowles-Gardner, formerly a political science professor and now research director at the Institute for Free Speech (IFS), and co-authors Professor Emeritus Bruce E. Altschuler, retired from political science at SUNY Oswego, and Professor Brandon T. Metroka, faculty in political science at the University of the Incarnate Word (UIW). (Photos: Knowles-Gardner, from IFS; Altschuler, 2017, by Jim Russel, SUNY Oswego '83, Metroka, from UIW).

My classes were enriched by colleagues who gave generously of their time and energy. Professor Knowles-Gardner joined us in person in Free Press and Film to discuss the book's treatment of the films Denial (2016) and Deliberate Intent (2000) (and to give a campus lecture). Professor Altschuler joined us for three classes, discussing his first three chapters of the book and the films Citizen Kane (1941), RKO 281 (1999), All the President's Men (1976), The Post (2017), Network (1976), and The Social Network (2010). Attorney Dan Greenberg, of the Cato Institute, joined Free Press and Film to discuss his documentary film, American Libel (2025), featured at The Savory Tort last year. (Photo: Dan Greenberg, from Cato.)

My FOI class welcomed attorney and information practice Professor Jason Baron, University of Maryland (U. Md.), and a fellow member of the FOIA Advisory Committee; Arkansas investigative journalist Brandon Howard; independent filmmaker and journalism and mass communication Professor Natalie Pattillo, and a university student leader and student journalist; Professor Robert Steinbuch, featured recently here at The Savory Tort, Bowen Law School, University of Arkansas, Little Rock (UALR); attorney and adjunct professor Gregory V. Sullivan, president of Malloy & Sullivan and president of the New England First Amendment Coalition; and journalism and media studies Professor A.Jay Wagner, Diederich College of Communication, Marquette University, a past member of the FOIA Advisory Committee.

Professor Baron discussed the science of artificial intelligence and how advancements in the era will change the practice of FOI law for both requesters and record officers. Journalist Howard joined the class to talk about his past newspaper reporting and ongoing pro se FOI litigation to access a cold murder investigation case file in northwest Arkansas (see, e.g., The Weekly Vista; see also breaking news). Professor Steinbuch discussed his ongoing transparency advocacy in Arkansas and opinion writing for The Arkansas Democrat-Gazette. Attorney Sullivan discussed his remarkable record of high-profile access litigation and appellate argument on behalf of New England journalists. Professor Wagner discussed his recent work on statutory citizenship requirements to block state access to public records and the ongoing debate over the constitutionality of the laws.

Professor Pattillo and her student, whose identity I am protecting just in case, discussed contemporary challenges facing campus journalists, including recalcitrant administrators. Professor Pattillo's teaching contract at UMass Dartmouth was not renewed this academic year (e.g., LinkedIn, New Bedford Light, Boston Globe (paywall)). 

(Photos: Jason Baron, from U. Md.; Brandon Howard, from LinkedIn; Natalie Pattillo, from the Center for Independent Documentary; Robert Steinbuch, from UALR; Gregory V. Sullivan, from Malloy & Sullivan; A.Jay Wagner, from Marquette University.)

Student Seminar Contributors

Students in both seminars produced a range of thought-provoking papers built upon insightful research and analysis. I am here honored to share selected titles and abstract, with authors' permission. I thank these stars for their work and for their collaborative spirit in learning with and from each other, and I anticipate with great pleasure their shining future contributions to the legal profession.

—in Freedom of Information Law

Jeremy Aylward, Retaining Transparency in the Digital Age: Retention of Electronic Records Under Federal and State Freedom of Information Laws. The proliferation of electronic records and digital communications has fundamentally challenged the legal frameworks governing government transparency and public accountability. While the federal Freedom of Information Act (FOIA) and Federal Records Act (FRA) establish baseline obligations for the retention and disclosure of electronic records, the enforceability of those obligations remains structurally compromised. This paper analyzes and synthesizes the legal frameworks governing the retention and disclosure of electronic records and messages under federal law and the open records statutes of California, Colorado, and Virginia, with particular attention to how those frameworks can be meaningfully enforced. Drawing on statutory text, agency guidance, and judicial interpretation, this paper examines how each jurisdiction defines "electronic records," what retention schedules apply, how personal device and third-party platform use by public officials is treated, and critically, what mechanisms exist to compel compliance, sanction violations, and remedy the destruction or concealment of covered records. The paper argues that across all four jurisdictions, electronic records retention law suffers from a common structural deficiency: obligations are broad in theory but weak in enforcement. This leaves agencies largely self-policing in an environment where the incentives to retain records often conflict with the incentives to delete them. While California's content-focused judicial approach offers the most expansive access framework, and Colorado and Virginia provide more structured but still under-enforced retention regimes, none of the examined frameworks provides a reliably enforceable mechanism for preventing loss of electronic records at the point of creation or ensuring accountability after the fact. The paper concludes by identifying the enforcement gaps that most critically undermine the transparency purposes of freedom of information law and by synthesizing lessons across jurisdictions for legislative and judicial reform. (Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)

Davis Preston, The Public Records Law Battles with State University Athletic Programs. Universities have taken advantage of state public record exemptions to skirt disclosures of their spending. To combat the skirting of disclosures and to provide more transparency, the NCAA mandates budget disclosures. Public records law exemptions still apply to the schools, but the NCAA mandates force the schools to disclose certain financial information anyway. These mandatory budget disclosures have their own limitations that allow schools to avoid full disclosure. They open the door to what money goes where, but withhold important information, such as who donates, how much they donate, and how the fundraising is organized. There are different structures for how athletic departments operate, but most use private or semi-private entities. Schools use privatization to avoid full disclosure after they meet the NCAA mandate. Different states have different laws that allow universities to avoid full disclosure. The University of Arkansas utilizes a private foundation, multiple universities in Florida utilize direct support organizations, and the University of Georgia utilizes disclosure time extensions. The laws are used to circumvent the public records law, which was enacted to hold public bodies accountable and provide transparency. The universities argue that they should have privacy on financials, as this allows them to keep a competitive advantage over other universities. This argument is met with the public interest in how the government spends money and whether this is done with transparency. There should be statutory change to prevent this circumvention of disclosure. Statutory change would entail eliminating exemption for direct support organizations, standardization of the function equivalent test, and the elimination of time extensions. (Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)

Tryon P. Woods, Prison Conditions and Public Access Or 1(st Am.) + 5(th Am.) + 8(th Am.) + 14(th Am.) < 0—Public Access Math. This paper examines the ongoing problem of prison conditions and the public’s access to information about what goes on inside prisons. I approach the topic as a twin problem in which access and conditions are opposite sides of the same coin. The correlation between access restrictions and the unconstitutional treatment of prisoners has a long history and nation-wide scope. Tracking the aftermath of the seminal case of the Attica Prison uprising in 1971 through several lawsuits arising from institutional failures in Arizona, California, Massachusetts, and NYC, this paper argues that in a "total institution" such as a prison or jail, visibility is the leverage on which control hinges. This relationship between the public’s access to information about prison conditions and the constitutional violations suffered by prisoners is refracted in the Court’s First, Fifth, Eighth, and Fourteenth Amendment jurisprudence on prisons since the passage of FOIA in 1966. Despite the Court’s best efforts, together with prison administrators, the relational reality of law remains undeniable: the undoing of legal personhood for people inside serves as the precondition for inventing the human outside. (When not appearing in class as a law student to sate his insatiable appetite for learning, Professor Woods also is a gifted faculty colleague in crime and justice studies at UMass Dartmouth.—RJPS) (Image: Attica Correctional Facility, 2007, by Bronayur via Wikimedia Commons CC BY-SA 3.0.)

—in Free Press and Film

Bryce Mayo, "A Victim of the Modern Age": Soft Law, Private Suppression, and the Gap in First Amendment Theory. Film: A Clockwork Orange (1971). The First Amendment limits government suppression of speech but does not restrict decisions by private actors. Constitutional doctrine therefore provides little guidance when expression is constrained through private pressures, market incentives, or self-censorship. These forms of non-governmental suppression rarely enter the public consciousness until controversy surrounding particular works expose gaps in the protection of free expression. Stanley Kubrick’s decision to withdraw A Clockwork Orange from circulation in the United Kingdom illustrates this limitation. Although the film was not subject to a nationwide legal prohibition, public controversy, media criticism, and local regulatory pressures preceded Kubrick’s nearly three-decade self-removal. The film thus remained legally protected yet practically inaccessible within the United Kingdom. This incident provides an example of how expressive works may be limited without formal government censorship. This paper examines Kubrick’s withdrawal through a United States constitutional framework. It focuses on the distinction between state restriction and private control over distribution and argues that the quasi-ban of A Clockwork Orange reveals a structural gap in First Amendment theory: while speech is protected from government censorship, it may nonetheless be suppressed through "soft law" mechanisms that operate outside formal doctrine. By separating the concept of legal protection from the reality of circulation, the paper clarifies how expression may be constrained outside traditional censorship models. Recognizing this distinction clarifies the practical limits of First Amendment protections and refines how free speech is understood in modern media environments shaped by market forces, rating systems, and distribution controls.

Amanda McKim, Speech is Free, But Lies You (Should) Have to Pay For: Alex Jones as a Case Study for the Inefficacies of Defamation Remedies. Film: The Truth vs. Alex Jones (2024). The First Amendment to the United States Constitution protects against government-imposed limitations on freedom of speech and the press. However, the First Amendment does not protect false, defamatory statements. The intersection of these two areas of law has been analyzed at length, but changes in the way society communicates raises new and more dangerous problems regarding the ways in which courts address the impacts of defamation. With the continually expanding use of smart phones, access to endless perspectives in media, and few ways to definitively “fact-check” sources, misinformation is rampant, and defamation remedies provide increasingly less meaningful relief to victims. Alex Jones, a prominent radio show host, was sued in two states and has three judgments against him for defaming victims’ families in the 2012 Sandy Hook school shooting. The complaints were filed in 2018 and resulted in final judgements in 2022 of $1.5 billion dollars in damages. Jones has since filed for bankruptcy, has yet to pay the victims. He continues to disparage the proceedings to his audience of 30 million daily listeners. The plaintiffs’ inability to recover and Jones’s continuing perpetuation of harmful rhetoric exemplify the ineffectiveness of current remedies to meaningfully address serious speech-based harms. Despite legal scholars’ critiques of equitable remedies in defamation cases, equity might be the best way to address previous harm, prevent future harm, and provide victims with the most appropriate relief. (Image: Instagram post by WBRC-TV 6 News, 2025. With characteristic wisdom and compassion, Ms. McKim suggested that the visual element for this post might honor the victims of Sandy Hook, rather than draw further attention to Alex Jones, who doesn't need help with publicity. I could not agree more.—RJPS)

Sean Pillai, Embedded Reporting and Freedom of the Press in Contemporary U.S. Military Operations. Films: Restrepo (2010), Korengal (2014). Embedding journalists with U.S. military combat operations highlights the ongoing struggle to balance democratic transparency with the practical realities of fighting a war. The system of embed reporting was created to give the public a clearer view of what happens on the front lines, but it also has raised continuing legal and ethical questions about how independent reporters truly can be when the military controls their access and movement. This paper looks at those tensions through the perspectives offered in Restrepo (2010) and Korengal (2014), while examining the most recent policy behind U.S. military media policy. The embed system shows why some limits on access are required in combat zones and that journalists must continue to expose themselves to risk both in the legal realm and physically in combat to protect speech. 

Carson Powell, From Accessible Knowledge to Smoldering Ashes: How a 1953 Novel Reflects a Growing Current Reality. Film: Fahrenheit 451 (2018). A story created in 1953, in which books are outlawed, and "firemen" burn any that are found, illustrates the censorship of knowledge and literature. In Arkansas, on March 30, 2023, the legislature approved Act 372, which included new standards for individuals selling books, whether that be public libraries or small bookstores. Act 372 in theory was approved to protect minors from stumbling onto books and materials of mature topics, but many librarians disagreed with that sentiment. The librarians of Fayetteville Public Library, joined by many other librarians believed that the act forces libraries and bookstores to segregate novels with "mature subjects" into "adult only" areas, with a risk of criminal prosecution for failing to do so. The Fayetteville Public Library, American Civil Liberties Union of Arkansas, and others filed complaints alleging that Act 372, like outright book banning, violates the First Amendment as overbreadth, vague, and content based. The lawsuit further alleged that the Act was intended to limit access of books and media to individuals who have a constitutional right to the books in question. The Arkansas legislature follows a growing trend around the United States of State’s legislators introducing and implementing acts regarding content-based censorship. Increasing enactments of laws aimed at removing “obscene” materials to protect children effectively discriminates against people of color, underrepresented communities, and members of the LGBTQ+ community. The suppression of media, whether by segregating books in the library or bookstore, or by facilitating their removal smaller institutions having to take the books off the shelves at risk of prosecution, reflects the themes of Ray Bradbury’s Fahrenheit 451.

Jakob Resnik, Apocalypse When? Latent Power of 47 U.S.C. § 606. Film: Apocalypse Now (1979). 47 U.S.C. § 606 ("the Act"), "The War Powers of the President," is an unused emergency provision of the Telecommunications Act that threatens freedom of speech. Apocalypse Now contains a scene depicting a Time magazine article reporting inaccurately on the Vietnam War. The movie does not say whether Time published the article of its own volition or at the direction of the Government. In the "real world," the Act enables the President to seize and control certain media outlets during emergencies, possibly controlling public reception of the emergency. The Act lacks clear definitions or statutory guardrails, conferring power so broadly that it is easily abused. Apocalypse Now used a prop magazine article to illustrate dishonesty in the media without showing where the lie really came from. Under the Act, a censored message can easily be spread to deceive the public regardless of free speech objections that outlets may raise. This is a threat to free speech.

Corie Scott, Tried Inside a Story: Pretrial Narrative and the Fragility of the Presumption of Innocence. Film: When They See Us (2019). Ava DuVernay’s When They See Us documents what happens when narrative precedes adjudication. The prosecution of the Central Park Five—who now identify as the Exonerated Five—illustrates how media coverage, official statements, and public discourse can converge to construct a story of guilt before evidence is tested in court. That story proved more durable than the convictions it preceded and more resistant to correction than the exonerations that followed. The case is extraordinary in its consequences. The dynamic it reflects is not. This paper examines the tension between First Amendment press freedom and the Sixth Amendment guarantee of a fair trial through doctrinal analysis and a preliminary comparative study of contemporary criminal reporting. Drawing on a close reading of fifteen articles across local news outlets, national publications, tabloid media, and government press releases, the analysis examines patterns in headline labeling, suspect characterization, moral descriptor language, victim framing, contextual background, and the presence or absence of presumption-of-innocence language. The sample is illustrative rather than representative and is offered to surface patterns consistent with the doctrinal concerns the paper identifies. The findings identify patterns that warrant closer legal and empirical attention. Narrative intensity, humanizing context, and presumption-of-innocence framing vary consistently across source types – and, with regularity that raises due process and equal protection concerns, across defendants. White defendants were disproportionately introduced through professional identity and personal context. Black and Latino defendants were more frequently framed through criminal identity and categorical threat language, with government press releases producing the most authoritative and criminalized framing of any source category examined. These patterns point to a structural gap in existing doctrine. First Amendment protections permit the circulation of narratives that assign meaning to accusation. Sixth Amendment safeguards operate within the courtroom to mitigate identifiable prejudice. Neither framework fully addresses how pretrial narratives shape the ground on which guilt is adjudicated. This paper argues that the law’s current approach is incomplete—not because it fails on its own terms, but because it was not designed for an information environment in which narrative formation is rapid, self-reinforcing, and difficult to unwind. The presumption of innocence survives as a formal rule. Whether it survives as a lived condition of adjudication, for all defendants equally, is the question the paper raises—and the one it calls on doctrine and empirical scholarship to more fully answer.

Alayna Wageman, Accountability Gaps at The International Criminal Court: How States Get Away with Murder. Film: A Private War (2018). Women journalists operating in conflict zones are targeted not only because of their reporting, but because of their gender. Sexual violence, intimidation, and physical assault are deployed as deliberate tools to silence women in the press, yet international law has failed to translate its formal protections into meaningful, enforceable accountability. This paper investigates that failure through the legendary war correspondent Marie Colvin. In Colvin v. Syrian Arab Republic, the United States District Court for the District of Columbia granted a default judgment of $302,511,836.00 against Syria for the deliberate targeting and killing of Marie Colvin during her reporting in Homs in 2012. Syria has never paid. Additionally, the conduct that killed Colvin, a state-directed attack on civilian journalists in armed conflict, falls within the jurisdictional reach of the Rome Statute as a war crime under Article 8, yet no International Criminal Court (ICC) prosecution followed. Syria is not a signatory and the UN Security Council vetoed the referral. Thus, even when liability is established, the absence of enforceable international laws leaves victims without remedies and states without consequences. Colvin's case is not exceptional. It is representative of a systemic pattern in which gender-based violence suppresses journalistic work and states face no meaningful consequences. This paper highlights three structural deficiencies within the International Criminal Court framework revealed by the Colvin case. This paper contends that addressing these gaps necessitates structural reforms beyond the scope of the current system.

Rebecca Wood, A Relic of the Past: It’s Time To Deal With The Equal Time Rule. Film: Man of the Year (2006). This paper utilizes the 2006 film Man Of The Year to introduce and illustrate systemic inconsistencies in the Federal Communication Commission’s (FCC) enforcement of the equal time rule. The rule, Section 315(a) of the Communications Act of 1934, requires broadcast licensees providing airtime to a legally qualified candidate must also provide equal air time all opposing candidates. The rule is introduced by examining the absence of discussion and enforcement of it and its requirements throughout the film despite a talk-show host’s presidential campaign. This paper suggests that the omission is illustrative of the inconsistent and arbitrary application of the rule in the real world. Next, the history and origins of the rule are explored beginning with the rule’s origin in the Radio Act of 1927 through present day talk show challenges. Subsequently, the rule’s inconsistent implementation and the question of censorship are investigated with examples in media, case law, and FCC proceedings and notices from the rule’s beginning through present day. Finally, possible remedies such as further defining the rule, post-Chevron challenges, or repealing the rule are considered.

No third term for Trump upon nonconsecutive-term theory, Vyas concludes in 22nd Amendment research

Trump at CPAC 2019
Mike Licht via Flickr CC BY 2.0

The theory that the President may seek a third term because his two terms were nonconsecutive holds no water.

That's the finding of law professor and constitutional scholar, and my friend and colleague, Anoo Vyas, in a short but important new piece in Wisconsin Law Review Forward: No Third Term: Rejecting the Nonconsecutive Loophole (2026).

Speaking about Trump at the Conservative Political Action Conference in March, televangelist Franklin Graham urged the crowd "to get him reelected!"

Graham subsequently said he misspoke (Yahoo News). His cry nevertheless stoked anxiety among Trump skeptics and opponents, amplified by the March 28 No Kings rallies, about the President's sometimes clingy affection for the office. 

Commenters have spilt much ink on how the President might circumvent the two-term limit of the 22nd Amendment.

With sound interpretive methodology and inquiry into historical sources, Professor Vyas's research takes the wind out of one circumvention theory. Here is the abstract:

The text of the Twenty-Second Amendment seems clear that a president cannot be elected to a third term: "No person shall be elected to the office of the President more than twice." This Essay looks further to the history surrounding the Twenty-Second Amendment, an exercise sometimes employed by judges, particularly those who favor the constitutional interpretive method of originalism. History shows that a president cannot be elected to a third term on the theory that the previous terms were nonconsecutive.

I'm a fan of Professor Vyas's work, such as his 2025 Why Capping the House at 435 is Unconstitutional (at The Savory Tort), besides his expertise in intellectual property law. So I have full confidence in his conclusion here and am gratified that he has shared it.

Workplace mobbing researchers plan global conference

The third annual Niagara Conference on Workplace Mobbing (NCWM) is open for proposals and registration and will occur hybrid, online and in person, at Niagara University, New York, on July 20-22, 2026.

The NCWM is the conference of the World Association for Research on Workplace Mobbing (WARWM), which publishes the Journal of Workplace Mobbing. It has been my honor to serve as an inaugural organizer of the conference, organization, and journal. (Read about previous conference convenings at The Savory Tort.)

Following is the call for proposals, recently dispatched by my friend and colleague at Niagara University, the president of the WARWM, Dr. Qingli Meng. Dr. Meng spoke to Tegan Osmond, a workplace abuse recovery coach, about workplace mobbing in 2025. More information is at the conference website.

---

We are pleased to invite you to the third annual hybrid Niagara Conference on Workplace Mobbing (NCWM), to be held July 20–22, 2026, at Niagara University, Niagara Falls, New York.

Hosted by the World Association for Research on Workplace Mobbing (WARWM) and Niagara University, this year's theme, "From Awareness to Action: Creating Healthy, Respectful, and Dignified Workplaces," continues our commitment to advancing research, dialogue, and practical strategies for addressing workplace mobbing. All conference participants are automatically become member of WARWM.

We warmly invite proposals for:

• Individual paper presentations
• Panel discussions
• Roundtable discussions
• Poster presentations

The purpose of the conference is to advance the understanding of workplace mobbing as a distinct phenomenon. Proposals will focus specifically on workplace mobbing. We welcome submissions that examine different aspects of mobbing, including leadership and power dynamics, cross-cultural and comparative perspectives, legal and ethical frameworks, psychological impact, trauma and recovery, organizational change, and preventive practices.

Both in-person and virtual participation options are available. The registration fee is $225 for in-person participants and $100 for virtual participants.

Please submit proposals through the online portal (linked on the conference website). For questions, you may contact us.

Conference presenters and participants are invited to submit their papers for publication in the Journal of Workplace Mobbing.

Follow us on Facebook.

We look forward to welcoming you to Niagara Falls in July 2026 for an inspiring and collaborative international gathering.

Comparative law students explore world with guests, online cohort, and enrich field with new research

Boasting about the accomplishments of my students is a rich indulgence I selfishly embrace. The Savory Tort hosts collections of student abstracts from past courses in Comparative Law and Freedom of Information Law.

This winter, I am happy to share abstracts from students who completed papers in Comparative Law in fall 2025. These might be the most scholarly capable set of papers I've yet seen in a seminar. Their work was a pleasure to read, and I am grateful for all that these students taught me.

Besides their research projects, these students participated vitally in the Global Law Classroom (GLC). They were leaders in their groups and exchanged knowledge and experiences with students from 13 countries over eight weeks of class sessions with contributing faculty.

The students also served as a gracious and inquisitive audience for several guests in the fall semester. I thank my colleagues who gave of their time and expertise to enrich our class:

• Anna Conley, Cliff Edwards Professor of Excellence in Trial Advocacy at the Alexander Blewett III School of Law, University of Montana, and also a member of the GLC faculty, joined us via Zoom to explore customary law and the rights of indigenous peoples.
• Bernard Freamon, professor of law at Roger Williams University Law School, and co-chair of the Bristol (R.I.) Middle Passage Port Marker Project, treated us to a thorough and thought-provoking introduction to Islamic law.
• Dan Greenberg, Cato Institute, shared with us a special screening of the documentary film he produced and directed, American Libel (2025), in relation to the disparate "actual malice" and "public interest" defenses to defamation in U.S. and UK law.
• Wojciech Jarosiński, founding partner of Peak Legal in Poland, and Stefanie Chiba, a corporate attorney and data privacy expert in Austria, led us via Zoom in exploration of differences between civil law and common law practice.
• Ferhat Pekin, attorney with Pekin Bayar Mizraha, and adjunct professor at UMass Law, led us in a study of Turkish law and exercises in the cross-cultural competence required for transnational law practice.
• A friend and colleague working in the international aid sector joined us via Zoom to talk about the challenges of delivering aid from western sources to conflict areas amid political and cultural challenges on the ground. His identity is not published here to protect his security while deployed in Asia.

Here are the fall's compelling student projects:

Jake Fruchter, Civil Rights in Extra-Ordinary Prosecutions: a Comparative Analysis of Ireland and the United States Trial Rights in Terrorism Prosecutions. The United States is witnessing a growth in domestic terrorism charges. As these cases make their way through state and federal courts, questions arise over what rights and procedures apply. One country with a well established history of prosecuting domestic terrorism is the Republic of Ireland. This history led the Republic to establish a Special Criminal Court with unique rules and procedures for terrorism and organized crime cases. This paper, using a comparative method, compares the Republic’s Special Criminal Court with procedures in the United States at the state and federal level. In particular, the rights this paper analyzes pertain to the right to silence as, protected by the Fifth Amendment to the U.S. Constitution, and the right to a trial by jury and to face your accuser, as protected by the Sixth Amendment to the U.S. Constitution.

Kyle LaMont, Belonging by Blood or Soil?: A Functionalist-Historical Comparison of Italian and American Citizenship Traditions. This paper examines how Italy and the United States have developed their jus sanguinis and jus soli citizenship traditions, respectively, over time. Using a functionalist and historical approach, it compares and analyzes the legal frameworks and the different legal consequences of citizenship for each country. Culturally, Italy has had a long-standing tradition of focusing on citizenship through lineage, which was a core part of Italy’s unification since 1861 and further reinforced with Law No. 91/1992. In stark contrast, the United States primarily uses jus soli and the territory approach of the Fourteenth Amendment to the Constitution. These different approaches to citizenship show how historical, cultural, and economic factors have molded the traditions that each country has embraced. By comparing these different systems, this paper reveals differing understandings of belonging and how both traditions survive in each country today. 

Kennis Levano, Language, Law, and Identity: A Functionalist Comparison of Indigenous Language Rights Protection in Bolivia and Peru. Focusing on the divergent political trajectories since the 1980s, this paper conducts a functionalist microcomparison of the frameworks for indigenous language rights in Bolivia and Peru. The research first establishes the historical and political contexts of both countries. It then provides a detailed examination of the Bolivia legal framework, highlighting recent legislative advancements, key provisions, and their successful implementation and impact in the country. In contrast, I discuss Peru's evolving legal framework, identifying differences and significant challenges in implementation. The analysis uses a functionalist approach to compare legal frameworks, identifying successful elements in the Bolivian model that are absent or underdeveloped in the Peruvian. The study culminates in the proposal of a solution designed to catalyze a significant leap forward in Peru's constitutional recognition of indigenous language rights, mirroring the progress achieved in Bolivia.

John McCauley, The Merchant: The Object of Economic Legislation & Regulation. This paper is focused on the differences and similarities between the U.S. Uniform Commercial Code Article 2 definition of “merchant” and the Egyptian Commercial Code definition of “Trader,” and how those definitions work into other statutes when a dispute arises. The UCC is analyzed according to different jurisdictions within the United States, with jurisdictional splits being noted, particularly around farmers. The topic is introduced with a brief history of each codification effort, how disputes of trade are handled procedurally, and how the courts of each respective jurisdiction interpret their definitions of those who conduct trade. This paper seeks to adhere to critical comparative methodologies and be mindful of the different cultural contexts that lead to the expression and subsequent regulation of one who conducts trade and said merchant’s explicit duties. In essence, this paper seeks to unravel choices of law with policies in mind which lead to the defined terms of “merchant” and “trader,” and who or what is interpreted as falling within and without that category, and what are some of the obligations attached to the merchant status. This paper looks at global market dynamics, and interpretive and legislative fiats, as well as statutory language to conclude who or what is defined as a merchant in the United States and Egypt and why. A commercial code is an expression of what a government believes is the proper way of doing business and thus regulates it, and the merchant or trader is the one who is to adhere to that regulation. With those premises in mind, it is key to look at the similarities and differences in these systems and cultural contexts to examine potential policy goals in enacting such legislation.

Hannah Patalsky, Comparing Mechanisms for Artist Compensation in the United States and the European Union (Taylor’s Version). This paper compares two distinct legal frameworks: the Living Wage for Musicians Act (2024) (LWMA), a bill recently reintroduced in the U.S. House Judiciary Committee, and Articles 18 through 22 of the EU Digital Single Market Directive (DSM Directive). Both of these mechanisms are designed to address the persistent issue of inadequate artist compensatory rights in the era of online streaming. The LWMA aims to establish an “Artist Compensation Royalty Fund” as an economic intervention, which would guarantee artists near-immediate payment through a statutory framework and additional stream of revenue flowing from listener to musician. In contrast, the DSM Directive focuses on member-state involvement in a contractual approach, seeking to balance the relationship between artists, on one side, and labels and agents, on the other. The primary DSM Directive articles of focus in this paper are Articles 18 through 22, which are designed to counteract the power dynamics and inequalities between these groups. This paper examines the benefits of each approach, as well as the limitations and drawbacks. The paper demonstratively applies each framework to the well-known ownership dispute between Taylor Swift and Scooter Braun, demonstrating how outcomes may differ under each mechanism to showcase the practical, real-world applications of these compensatory mechanisms. Fundamentally, this paper compares a statutory and contractual framework to find the best approach to artist compensation. Ultimately, this paper argues that each framework seeks to remedy a different issue in the modern digital and stream-based economy, and that understanding the differences among these remedies is essential to evaluating how legal systems can meaningfully address inherent inequalities and imbalances across the music industry. The LWMA aims to address the problem of insufficient streams of revenue for artists. At the same time, the DSM Directive directly targets any inequalities that may have arisen during the contracting phase that may lead to long-term exploitation of artists. In comparing these legal mechanisms that are addressing the same issue, this comparison reveals not only the strengths and weaknesses of each approach, but also the potential benefits of creating a hybrid model, including fair revenue and fair contracting conditions.

Tamar Shimon, Hate Speech: Overprotected or Undervalued? A Comparative Analysis Between U.S. and German Student Speech on College and University Campuses Post October 7. This paper analyzes the impact of protecting hate speech, particularly antisemitic speech, on post-secondary institutions within the United States and Germany. The world is no stranger to antisemitism. This type of hate has existed for millennia. However, with the events of October 7, 2023, a new wave of antisemitism found a home amongst a new generation of people: young university and college students. For months, U.S. college and university officials allowed for antisemitism to take hold on their campuses, subjugating Jewish students to abuse from their fellow students. But this was not the same response in Germany. Rather than allow the “protests” to become rampant and violent, German university and college officials quickly placed bans and restrictions for fears of antisemitism reemerging at such a drastic rate that was last seen in the 1920s. Free speech is a fundamental right within the United States and Germany; however, both countries take different approaches when it comes to protecting hate speech. This paper explores the differentiations in each country’s free speech rule, specifically focusing on the way in which each country sees the importance of hate speech to its society. To understand this differentiation, the events on and post October 7, 2023, on college and university campuses across the United States and Germany will be analyzed to determine whether the United States can somehow implement Germany’s model but still uphold the values of free speech.

Tryon P. Woods, Indigenous Fishing Rights, Comparative Settler Colonialism, and the Problem of Modern Law. This paper is a comparative legal analysis of United States v. Washington (W.D. Wash. 1974), known as the “Boldt decision” after the presiding judge’s opinion, and the 2024 ruling in Sapporo District Court on the Raporo Ainu Nation fishing rights lawsuit in Japan. Regarded as a legal landmark in indigenous rights and land use management in North America, the Boldt decision recognized the treaty rights of Native tribes to off-reservation inland fishing.  It held that such Native fishing was not subject to State regulation.  The recent Ainu lawsuit in Japan similarly sought to assert indigenous rights to fish Japanese inland waters but was rejected by the court. Comparative analysis of the two cases reveals distinct national histories regarding indigenous rights in law, which in turn, are indicative of differing forms of racialization in the national development of the United States and Japan that align with distinct histories of settler colonialism. This discrete legal comparison raises further questions regarding law’s mutability in the face of dynamic culture; how dominance is reworked as rule of law; and the problems stemming from shared ecology.

Ellie Zhang, Fair Use vs. Second Creation: A Comparative Study of Short-Video Law Between the United States and China. This paper examines how U.S. and Chinese copyright law treat short-video “second creations,” focusing on two common formats: (1) reaction and review videos that intersperse short excerpts and (2) parody. After setting out the U.S. open-ended, fair-use framework under 17 U.S.C. § 107 and China’s rights-first, enumerated “reasonable use” approach under Article 24, the paper asks when these videos amount to protected commentary and when they become unlicensed, market-substituting derivatives. For interspersed-clip reactions, U.S. doctrine tends to credit transformation and lack of substitution, whereas Chinese courts emphasize “reasonable use” and substitution risks; both systems disfavor compilation-style recaps. For parody, U.S. law treats targeted critique as paradigmatic transformative use so long as the borrowing is reasonably necessary and does not usurp cognizable licensing markets. By contrast, Chinese law lacks an explicit parody exception, channeling analysis through “appropriate quotation,” the two-step constraints, and moral-rights concerns, producing a narrower space for unlicensed parody. The paper closes with practical guidance for creators and a policy recommendation: clearer, semi-open exceptions in China and more attention in U.S. cases to audiovisual modes of critique when judging transformation and necessity.

The students' research was well supported by ace Law Librarian Katelyn Golesby, who updated and reconstructed a superb library guide in foreign, comparative, and international legal research.

Lead image by Google Gemini. Guest images from respective biographical pages, as linked; no claim to rights. Flags by Flagpedia.

LoMonte tells timely Tenn. tale of vanishing public records, legislative response in retention requirement

My friend and colleague Frank LoMonte, CNN senior legal counsel, has published a superb and timely new article, "The Race to Erase: Destruction of Government Documents Undermines Freedom-of-Information Laws," in the Seattle University Law Review.

Here is the abstract.

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law did nothing to require agencies to retain public records after receiving a request to produce them, exposing a gaping hole in right-to- know laws that goes well beyond one state.

This Article looks at the state of records-retention law in the United States and how the lack of forceful and well-enforced retention requirements can frustrate the good-government objectives of FOI laws. Part I lays out the animating principles behind right-to-know laws, how they operate, and how requesters have productively used public records to uncover government secrets. Part II examines the state of records-retention laws and regulations, and how their lack of clarity—particularly when it comes to emails, texts and other twenty-first-century electronic communication methods—has led to frustrating results for requesters. Part III looks at the meager remedies under federal and state law to enforce records retention requirements; paradoxically, these remedies provide hidebound government officials with an incentive to destroy, rather than just withhold, embarrassing records. Part IV focuses on the special case of police personnel files and body-cam videos, which hold promise as tools of accountability if the public can actually obtain them. This Part uses a recent California dispute—in which a municipal police department destroyed video footage of officers removing homeless people’s campsites while a requester was still fighting to obtain the footage—to exemplify the larger problem of inadequately rigorous retention laws. Finally, the Conclusion discusses what a legislative remedy to patch this hole in the public’s information safety net might look like, returning to the example of the Chattanooga Times Free Press’ unfulfilled request and the legislative response it inspired.

LoMonte's apt paean to record retention is nicely complemented by a new release from UNC's David Ardia pressing for a constitutional dimension to the freedom of information (HT @ Professor Robert Steinbuch).

I am grateful for references in LoMonte's article to something I wrote many years ago on record retention. I oft lament that my early-career work from flyover country on record retention and court record access are rarely if ever cited, even while they represent first publication of many points later repeated in the literature. Attorney and Georgia law professor LoMonte seems set on taking the wind from my whiny sails.

At the same time, I observe and lament that our strange times—with such as the firing of the National Archivist, the disappearance of federal records, and a privacy-obsessed generation baffled by the custom of open courts—have sent researchers scurrying for past findings in these areas. Who knew.

Comparative law research reaches prisoner rights; women's rights; tech patents; internet, drug reg

Law Offices of James L. Arrasmith CC BY-NC 4.0

In fall 2024, I had the privilege of teaching Comparative Law for the sixth time.

For my time and energies, the course is the best one to teach, because it offers the best opportunity for a lifelong learner. Law teaching usually requires mastering a broad and deep range of content so that one can guide students capably through it. Not so in Comparative Law, in which the teacher cannot possibly know the substantive content of all of the legal systems of the world. Rather, the course is about arming students with the tools of comparative methodology, and then savoring the opportunity to learn from them, what they find in their own research.

This year was not lacking in the savory. As I have in the past, I am proud and pleased to share a collection of abstracts representing the yeoman work of my students in the fall semester. You will see that the students devised some wonderfully innovative theses. The subject matter that researchers tackled spanned prisoner legal rights, marijuana and gambling regulation, black women's representation in the legal profession, women's rights in Afghanistan and in Dutch sex work, semiconductor patents, and regulation of online misinformation.

Alayna Wageman, Prisoners Are Human Too: A Comparative Analysis of Prisoners' Right to Legal Assistance in Chile and the United States. Both Chile and the United States guarantee, through their constitutions, the right to legal counsel for individuals who cannot afford a lawyer during criminal prosecutions. However, prisoners lack resources to access legal assistance when their basic human rights are violated while incarcerated. This project seeks to show how the extreme traumatization of citizens in the United States from the years of slavery and the extreme traumatization of citizens in Chile from the years of dictatorship continue to impact the treatment of prisoners today. This paper begins with an overview of the history of slavery in the United States, specifically in Massachusetts, and an overview of the history of dictatorship in Chile. Next, the paper will explain the laws that define the right to legal assistance for prisoners in Chile and Massachusetts. Finally, the paper compares two programs designed to improve prisoners' access to legal resources: the Prisoners' Legal Services (PLS) of Massachusetts in the United States and the Penitentiary Defense Program (Programa de Defensa Penal Pública Penitenciaria) in Chile. This analysis demonstrates how the influence of the historical extreme traumatization of societies continues to impact the treatment of prisoners in both countries, with focus on the limitation of access to legal assistance in prisons. The paper concludes by acknowledging the efforts of the PLS and the Penitentiary Defense Program, which are working to further protect the rights of prisoners.

Bryce Mayo, Comparing the Impact of Sports Gambling Advertising: A Legal Exploration of the United States and Australia. The recent legalization of sports gambling has taken the United States by storm, and as a result, an influx of advertising has taken over every commercial break. Sports fans, avid and casual viewers alike, cannot help but notice sportsbooks like BetMGM, FanDuel, and DraftKings attempt to entice an already invested community into raising the stakes of a game or match. These companies use tactics such as celebrity endorsements, sign-up promotions, and "can't lose bets" on your first wager. This paper compares how the United States and Australia have approached the regulation of sports gambling advertising since its legalization in 2018 and 1983, respectively. Although both countries follow the common law system, the legalization of sports gambling came about in drastically different ways. The United States struck down a longstanding congressional act, while Australia codified sports gambling, even making the first sportsbooks state owned and operated. Recently, Australia has issued licenses to private or publicly owned sportsbooks and their advertising regulations have changed as a result; whereas in the United States, private and publicly owned sportsbooks are the primary recipients of licenses, yet the regulations mirror that of Australia in 1983. Legalizing sports gambling in the United States is in its infancy, and growing pains are inevitable. It appears to be the wild west, quite reminiscent of tobacco advertising in years past. The United States can learn from Australia's experience and seek a balance between maintaining a profitable market and minimizing the creation of degenerate gamblers.

Carson Powell, Quality Over Quantity: A Comparative Analysis of Marijuana Quality Control Regulations Between the Netherlands and the United States. This paper compares the law and regulations of the United States and the Netherlands, on the regulations that are used to ensure the quality of marijuana sold legally. First, the paper focus will be on the Dutch marijuana policy, and its past, current and future regulation protecting the quality of the marijuana sold in "coffee shops." Next, the focus will shift to the United States and specifically Colorado regulations when testing the quality of marijuana. The paper views policies implemented to ensure quality and safety within the production, testing, distribution and the sale of cannabis/marijuana products. Finally, the paper compares Netherlands regulations on marijuana quality assurance and with Colorado laws and regulations that establish the safety of state citizens. The paper compares the laws and regulations, how they relate to each other, and the social results. The paper concludes with recommendations based on the comparisons drawn from the two parties, and whether each can become more effective and efficient with its own processes.

Kennia Joseph, A Comparative Analysis of Gender and Racial Equality for Black and Nigerian Women in the Legal Profession. This paper compares the laws in the United States and Nigeria that address gender and racial equality and their effect on black and Nigerian women in the workforce, specifically in the legal profession. One of the key issues in ensuring gender equality in employment lies in enforcing existing laws and policies. The comparison between Title VII of the Civil Rights Act and the overturned affirmative action practices thereunder, Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the failed Nigerian Gender and Equal Opportunity Bill of 2016 highlight underrepresentation in the legal field. Despite developing systems to support and encourage race and gender equality, black women from different cultures, and political, societal, and economic climates share experiences in the same profession with similar laws, initiatives, and policies.

Nick Saathoff, A Comparison Between Patents on Semiconductors in Germany and the United States. Patent law in Germany and the United States protects those who invent or discover patentable processes. Ideologies between the two countries differ in the field. In the United States, a patent is mainly a monetary protection. In Germany, in addition to monetary protection, there is an honor and prestige associated with inventing. This paper discusses patent law in each country specific to the field of semiconductors. Semiconductors are one of the most technologically significant patentable items in the world today. The paper initially provides an overview of patent law in each country and what role semiconductors play. This paper identifies similarities and differences between patent protections, patent quality, and patent strategies in the United States and Germany. In doing so, the paper discusses key requirements of obtaining a patent. The paper discusses one requirement at a time, discussing the interpretation in the United States and the interpretation in Germany. The paper then notes patent statutes in each country specific to the semiconductor industry. Additionally, the paper will discuss nuances in each country’s patent laws in the semiconductor industry.

Rebecca Stump, A Comparative Look at Sex Work in the United States and the Netherlands. Sex work, historically, has been a controversial occupation for a variety of reasons, including religious beliefs, women’s rights, bodily autonomy, and the extent to which the state should regulate an individual's choices over their own bodies. During this period, sex work has been considered a shameful profession, one which must be criminalized to deter human trafficking or coercion. However, as understanding and advocacy for bodily autonomy and freedom to self, and countries such as the Netherlands reform and change their sex work laws, there are movements for change to law in the United States. The aim is for a discussion, through comparison of the legal systems of Nevada and the Netherlands and the main avenues for reform, partial decriminalization and full decriminalization or legalization, the social and legal implications of legalization of sex work to further investigate reform in the United States. Within research regarding sex work, there are critical biases that must be acknowledged prior to engaging in discussion. First, and foremost, is the moral and ethical considerations of sex work. Sex work is not merely seen as an occupation free from moral implication, but an occupation for which every person may offer their individual consideration as to the ethical value of the work. To engage in substantive discussion, morality must be stripped away. Instead, one must be willing to engage in discussion solely on the legal ability of an individual to make a choice regarding the services they offer using their person, and the role of the state in legislating that decision. To that point, a discussion regarding the legality of sex work is necessarily a discussion of the extent to which the state should regulate labor. There exist various viewpoints as to the question of federalism and the role of the state to regulate. This bias must also be considered.

Sean Pillai, Afghan Women's Human Rights: A Legal Analysis of Constitutional Governance vs. the Taliban Rule. Afghanistan’s history of political turbulence and violent turmoil have repeatedly challenged the legal and social status of women. Afghanistan attempted to rebuild as a democratic nation and included rights to protect women. Under the 2004 constitution, women gained significant legal rights, such as access to education, safety and freedom of movement and employment opportunities, marking a stark contrast to the Taliban's earlier reign (1996-2001). However, the progress made was curtailed with the withdrawal of U.S. forces in 2021 and the Taliban return to power. This analysis will address the shift in legal protections and the impact on societal roles for women contrasting the two eras: the 2004 constitutional government and the Taliban regime 2021 to present. By comparing the legal frameworks and implementation of women's rights in key domains such as women's access to education, safety and freedom of movement, and women's access to employment, this paper seeks to provide an understanding of the impact the two legal systems have on women.

Shiloh Worthington, The Digital Services Act vs. Section 230: The Western Hemisphere's Battle Against Misinformation. The European Union and the United States have both recognized the disparate effects of rampant and unchecked misinformation spreading across the internet. However, each has a distinct approach to combatting this epidemic of troublesome content. The EU battle against misinformation is best exemplified by the recently passed Digital Services Act (DSA), which places the primary responsibility of stopping the spread on the platforms themselves. Meanwhile, in the United States, the struggle to fight misinformation is at odds with the First Amendment rights of the platforms. Section 230 of the Communications Decency Act offers platforms total immunity for their misinformation content-removal practices, no matter how it conflicts with individual freedom of expression. Further conflict arises as the EU's DSA attempts to force American-based platforms with European audiences to comply with its content-removal practices under misinformation-related pretenses, even if doing so would remove American citizens' content otherwise protected by the U.S. Constitution.

Watch for these students on upcoming bar pass lists in a state near you!

Flags from Flagpedia, except Afghanistan Taliban from Wikimedia Commons, all public domain.