Journal of Law and Commerce

Recailibrating the Use of Zero-Day Vulnerabilities

Kellen Carleton — 2024-05-07

Zero-day vulnerabilities in critical software systems are of the highest priority for government agencies, black market hackers, and private software vendors. Each of these parties has different priorities and uses for zero-day vulnerabilities, but because of the global economy’s reliance on technology and software, they represent a significant threat to much of the critical infrastructure of the United States. The United States Intelligence Community is among one of the most sophisticated players in the zero-day market, and their decision making with respect to these unknown vulnerabilities has widespread impacts. This note examines the current state of the Vulnerabilities Equities Process, the executive branch policy designed to weigh various equities when determining the fate of a zero-day vulnerability discovered by the Intelligence Community; to use the zero-day to collect intelligence or to disclose the vulnerability and see that it is patched. I argue that the current Vulnerabilities Equities Process does not produce the most optimal outcomes, and that the decision making process must be ‘recalibrated’ to properly weigh all relevant equities and to ensure that zero-day vulnerabilities are not being used irresponsibly.

The Lochneress Monster

John Ejzak — 2024-05-07

This Note will canvas the history and legacy of Lochner v. New York, and examine the effect that Lochnerism has had on American judges. It will discuss the Lochneress Monster, a new name for a familiar idea, and it will focus on how Lochnerism is utilized as an argumentative tool. Finally, the Note will discuss the importance of continuing to give Lochnerism the measured apprehension that it deserves.

Smells Like Teen Exploitation

Erica Wilson — 2024-05-07

The naked baby on the band Nirvana’s popular album, Nevermind, who is now in his thirties, sued Nirvana and other associated individuals in 2022 on the grounds that the cover of the album depicted child pornography. This note examines the validity of the lawsuit, as well as how “going viral” around the world can affect children, even before the Internet and social media. However, this note specifically assesses how social media can be detrimental on children and their development, especially when those children are social media influencers. Additionally, this note will discuss the current online privacy laws and how they can be improved to better protect one of our society’s most vulnerable population demographics.

Foreign Investments and Energy Transition in the Netherlands

Olga Hrynkiv — 2024-05-07

Affordability, competitiveness, security of supply, and sustainability are among the goals set for the field of the energy transition for 2030 through 2050. In order to meet these goals, the energy sector of the European Union (EU) will require a continuous inflow of capital, particularly Foreign Direct Investment (FDI). Unfortunately, FDI has raised severe national security concerns in EU Member States, leading to the need to adopt and subsequently revisit the FDI screening framework on the EU level. On a domestic level, several EU Member States, such as the Netherlands, have either strengthened or are considering strengthening their screening mechanisms. States have been screening FDI on national security grounds for decades, but the scope of new mechanisms has dramatically expanded to cover more sectors, transactions, and types of investors. In particular, FDIs that affect energy infrastructure, supply of energy, raw materials, dual-use items, and critical technologies necessary for the energy transition should be subjected to more rigid scrutiny. These regulatory and policy developments might hinder the flow of investments into the energy sector and the advancement of new technologies and thus have implications for the prospects and speed of the energy transition in Europe.

This Article will discuss the overarching question of how states can organize their investment screening mechanisms in a way that balances their national security interests against the need for free flow of FDI to stimulate development of technologies that accelerate the energy transition. This includes a case study of the FDI policy of the Netherlands, one of the major destinations of global FDI. This Article initially distills the principles necessary to balancing competing security and economic interests of host states in the investment law context. Based on such principles, it further examines the extent to which existing regulatory mechanisms in the Netherlands are adequate in addressing security concerns posed by FDI while continuing to attract investments in the energy sector and related technologies. Specifically, this Article aims to identify trends in investment screening in the Netherlands, reflect on their coherence with overarching EU investment policy objectives and the multilateral guidance on a good policy design, and discuss the potential implications of recent regulatory developments for the future of the energy transition in Europe. More broadly, this Article contextualizes the case of the Netherlands within the global movement of tightening control over FDI and explores the relationship between the investment policy of a State, on the one hand, and its objectives to combat climate change and safeguard energy security, on the other.

The Decentralised Autonomous Organization

Guy Charleton — 2024-05-07

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Volume 42 Issue 1 Front Matter

Patrick Sullivan — 2024-05-07

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