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Articles 1 - 30 of 1976
Full-Text Articles in Entire DC Network
False Conscience: Sustainability And Smart Evolution—Between Law And Power, Ugo Mattei
False Conscience: Sustainability And Smart Evolution—Between Law And Power, Ugo Mattei
Faculty Scholarship
The contribution describes the legal phenomenon as a playing field characterized by a progressive regression of the law, understood as a sovereign will from top to bottom, both in the vision of formalist legal positivisms in continental Europe and in realist terms, in the United States. Soft law represents the main strategy to subordinate the law to the interests of the economy, elasticizing environmental law, making it favorable to the market, reducing ecology to the simplistic metric of CO2 emissions. The consequence is a retreat of the statist vertical normativity of law which is not replaced by a de facto …
The Legal Metaverse And Comparative Taxonomy: A Reappraisal, Ugo Mattei
The Legal Metaverse And Comparative Taxonomy: A Reappraisal, Ugo Mattei
Faculty Scholarship
The present Article revisits my “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems”—published in this very Journal a quarter century ago—which acknowledged the ideological nature of the law versus politics distinction and posited taxonomy as a means for understanding law. The original article classified law into professional law, political law, and traditional law, and heralded the tentative and dynamic natures of such classification. The two purposes of the present Article are to (i) reflect on legal transformations that have since occurred as reactions to global geopolitical, technological, and economic changes, and (ii) interrogate whether epistemological assumptions …
The Magnetic Pull Of American Discovery: Second Thoughts About American Exceptionalism?, Richard L. Marcus
The Magnetic Pull Of American Discovery: Second Thoughts About American Exceptionalism?, Richard L. Marcus
Faculty Scholarship
No abstract provided.
Social Enterprise Governance Post-Sox, Alina Ball
Social Enterprise Governance Post-Sox, Alina Ball
Faculty Scholarship
Social enterprises-nonprofit and for-profit businesses that use market-based strate gies to achieve social change for marginalized populations-demonstrate a new para digm for doing business in the United States. The Sarbanes-Oxley Act of 2002 ("SOX"), which transformed financial reporting and heightened internal controls for public com panies, has, perhaps unintentionally, also had an outsized influence on the development of social enterprise governance. The primary impact of SOX is found in the state-level auditing and reporting reforms imposed on large nonprofits. Moreover, "benefit re ports," the lynchpin of social enterprise state legislation, also mirror the SOX emphasis on transparency through third-party assessment. …
Aspirational Laws In Action: A Field Experiment, Ben Depoorter, Stephan Tontrup
Aspirational Laws In Action: A Field Experiment, Ben Depoorter, Stephan Tontrup
Faculty Scholarship
This article examines aspirational laws in a randomized field experiment. We analyze the impact of an unenforced public smoking ban on individual behavior and attitudes. The findings indicate that aspirational laws, like public smoking bans, can make rights holders sensitive to behavior that violates their rights, irrespective of the material consequences of infringements and their personal views about the law. The results present a mixed position in the debate between rights-based social movement lawyering and critics of hollow rights. On the one hand, aspirational laws can create unforeseen social frictions when rights are declared, but their implementation and enforcement are …
Rule 4 And Personal Jurisdiction, Scott Dodson
Rule 4 And Personal Jurisdiction, Scott Dodson
Faculty Scholarship
State-court personal jurisdiction is regulated intensely by the Fourteenth Amend- ment’s Due Process Clause, which the Court has famously used to tie state-court personal jurisdiction to state borders. Although the Fourteenth Amendment doesn’t apply to federal courts, the prevailing wisdom is that federal courts nevertheless are largely confined to the same personal-jurisdiction limits as state courts because of Rule 4(k), which provides that service “establishes personal jurisdiction” in federal court only upon specified conditions, including when the state courts would have personal jurisdiction. Some commentators have further argued that Rule 4(k) sets a limit on federal-court personal jurisdiction independent of …
Patent Term Extensions And The Last Man Standing, Robin Feldman
Patent Term Extensions And The Last Man Standing, Robin Feldman
Faculty Scholarship
In 1984, with the passing of the Hatch-Waxman Act, Congress orchestrated a compromise that permanently changed how drug markets operate. This piece of legislation created an expedited pathway for generics to enter the market, and, in exchange, brand drugs could extend their patents to account for time lost during their market approval process. Although this well-configured trade was supposed to help generics enter the scene quicker, the current drug market landscape makes one question whether this legislation has succeeded in its aims. The following study explores the lifecycle of top-selling brand drugs in comparison to the vision put forth by …
Leading With The Trailing Edge: Facilitating Patient Choice For Insulin Products, Robin Feldman
Leading With The Trailing Edge: Facilitating Patient Choice For Insulin Products, Robin Feldman
Faculty Scholarship
Insulin prices have risen sharply, despite a century since its introduction. Against this backdrop, companies have discontinued dozens of insulin prod- ucts. Discontinuation could relate to safety or effectiveness, or to the over- whelming benefits of newer products. On the other hand, discontinuation could suggest strategic behavior hampering competition and supporting prices. To test these theories, this project examined every insulin discontin- uation, analyzing the role discontinuations play in insulin affordability. No evidence emerged of any discontinuation for safety or effectiveness. Rather, dozens of viable products were removed from the market, followed by more expensive versions, often with little or …
Federal Nonenforcement At A Crossroads, Zachary Price
Federal Nonenforcement At A Crossroads, Zachary Price
Faculty Scholarship
As a novel aspect of “presidential administration”—the president- centered approach to federal governance discussed in a 2001 article by then-Professor and future Supreme Court Justice Elena Kagan—broad federal nonenforcement policies have been a major source of controversy in the past decade. As illustrated by the Obama Administration’s ex- pansive nonenforcement policies relating to marijuana, immigration, and Affordable Care Act implementation, recent presidents have recog- nized nonenforcement’s potential to reshape statutory law to suit an administration’s policy aims. This Article takes stock of this develop- ment as it relates to the past three presidential administrations. While advocating a limited view of …
Restorative Justice Diversion As A Structural Health Intervention In The Criminal Legal System The Criminal Legal System, Thalia Gonzalez
Restorative Justice Diversion As A Structural Health Intervention In The Criminal Legal System The Criminal Legal System, Thalia Gonzalez
Faculty Scholarship
A new discourse at the intersection of criminal justice and public health is bringing to light how exposure to the ordinariness of racism in the criminal legal system—whether in policing practices or carceral settings—leads to extraordinary outcomes in health. Drawing on empirical evidence of the deleterious health effects of system involvement coupled with new threats posed by COVID-19, advocates and academics have increasingly called for race-conscious public health-driven reforms to carcerality in the United States. Recognizing the significance of health to carceral reform, the initiation of a health justice grounded lexicon in criminal justice has opened the doorway to new …
Vaccination Mandates—An Old Public Health Tool Faces New Challenges, Dorit Rubenstein Reiss, Lawrence O. Gostin, Michelle M. Mello
Vaccination Mandates—An Old Public Health Tool Faces New Challenges, Dorit Rubenstein Reiss, Lawrence O. Gostin, Michelle M. Mello
Faculty Scholarship
No abstract provided.
Misinformation And Covid-19, Dorit Rubenstein Reiss
Misinformation And Covid-19, Dorit Rubenstein Reiss
Faculty Scholarship
The COVID-19 pandemic’s impact on our world cannot be overstated. One of its noticeable features was the prominence of misinformation generally, and anti-vaccine misinformation more specifically. This article provides a breakdown of the five major themes of antivaccine misinformation and the way they were used to create fear, uncertainty, and doubt about COVID- 19 vaccines. Long before the pandemic, anti-vaccine activists argued using a five-part playbook. They argued that (1) vaccine preventable diseases were not really dangerous, (2) vaccines were dangerous and ineffective, (3) there were alternative treatments that were better than (dangerous and ineffective) vaccines, (4) there was a …
Empowering Victims Of Grand Corruption: An Emerging Trend, Naomi Roht-Arriaza
Empowering Victims Of Grand Corruption: An Emerging Trend, Naomi Roht-Arriaza
Faculty Scholarship
Who is the victim of systemic corruption? The traditional answer in law is everyone and no one, or public administration itself. When state funds are misused or go missing, at the most the State is the victim. Therefore, only the State has standing to sue for, or receive restitution of, the stolen assets. But that long-held consensus is changing. Activists and lawyers have begun to argue that under systematic corruption it’s not just states, but individuals and communities as well as society as a whole that suffer losses and need to be both represented and repaired. Courts are beginning to …
The Dog That Didn’T Bark: Looking For Techno-Libertarian Ideology In A Decade Of Public Discourse About Big Tech Regulation, Jodi L. Short, Reuel E, Schiller, Susan Sibley, Noah Jones, Babak Hammatian, Lee Anna Bowman-Carpio
The Dog That Didn’T Bark: Looking For Techno-Libertarian Ideology In A Decade Of Public Discourse About Big Tech Regulation, Jodi L. Short, Reuel E, Schiller, Susan Sibley, Noah Jones, Babak Hammatian, Lee Anna Bowman-Carpio
Faculty Scholarship
The internet was built on the techno-libertarian ideology that “information wants to be free,” and that ideology has played a prominent role in academic and policy debates about regulating the internet and the big technology companies that dominate it.2 Techno-libertarian ideology has generated a constellation of claims about tech and regulation—from the suggestion that regulation will stifle innovation in the complex, dynamic tech sector, to the assertion that the large platform companies are literally not regulable. In this article, we explore how much traction such claims and ideologies have in the broader public discourse about big tech and regulation. We …
A Trip To The Border: Legal History And Apa Originalism, Reuel E. Schiller
A Trip To The Border: Legal History And Apa Originalism, Reuel E. Schiller
Faculty Scholarship
This article examines originalist interpretations of the Administrative Procedure Act (APA) from the perspective of a legal historian. After ex amining two pieces of originalist scholarship, it concludes that the histor ical record may not produce narratives of enough specificity or coherence to assist the originalist project. Nonetheless, it highlights three under-examined subjects of historical inquiry that have the most potential to aid APA originalists: the nature of administrative procedure during the first three decades of the twentieth century when the modem "appellate model" of judicial review emerged; the actual practice of ad ministrative law during the New Deal, both …
Regulatory Managerialism As Gaslighting Government, Jodi L. Short
Regulatory Managerialism As Gaslighting Government, Jodi L. Short
Faculty Scholarship
No abstract provided.
Suing Spacs, Emily Strauss
Suing Spacs, Emily Strauss
Faculty Scholarship
In 2020, the financial world became transfixed by a massive increase in the number of firms going public through special purpose acquisition company (“SPAC”) transactions. A SPAC is a publicly traded company formed solely for the purpose of raising money from investors and choosing a merger partner, thereby bringing the target company public. SPAC shareholders vote on the proposed transaction, but also have the option to redeem their shares for the price paid plus interest prior to the merger. SPACs have always been controversial; they make risky ventures available to unsophisticated investors, may involve acute conflicts of interest, and do …
Wolf Law, David Takacs
Wolf Law, David Takacs
Faculty Scholarship
Various populations of wolves have been listed as threatened or endan- gered under the U.S. Endangered Species Act since the 1970s. But no listed species has aroused, and continues to arouse, so much controversy as the Northern Gray wolf. “Wolf law” is unique, odd, and often counterproductive— at least if the goal is to ensure the species’ survival and revitalize damaged ecosystems upon which healthy human communities depend. This Article identifies some of the unique characteristics of wolf law, analyzes how and why it has developed in this strange way, and proposes some more sensible ways for healthy human communities …
Administrative Constitutionalism And The History Of The Administrative State, Reuel E. Schiller
Administrative Constitutionalism And The History Of The Administrative State, Reuel E. Schiller
Faculty Scholarship
No abstract provided.
Scientific Guidelines For Evaluating The Validity Of Forensic Feature-Comparison Methods, David L. Faigman, Nicholas Scurich, Thomas D. Albright
Scientific Guidelines For Evaluating The Validity Of Forensic Feature-Comparison Methods, David L. Faigman, Nicholas Scurich, Thomas D. Albright
Faculty Scholarship
When it comes to questions of fact in a legal context— particularly questions about measurement, association, and causality—courts should employ ordinary standards of applied science. Applied sciences generally develop along a path that proceeds from a basic scientific discovery about some natural process to the formation of a theory of how the process works and what causes it to fail, to the development of an invention intended to assess, repair, or improve the process, to the specification of predictions of the instrument’s actions and, finally, empirical validation to determine that the instrument achieves the intended effect. These elements are salient …
A Roth Conversion Is Not Necessarily More Attractive During A Significant Stock Market Decline: Separating The Tax And Market Timing Effects, William Ks Wang
A Roth Conversion Is Not Necessarily More Attractive During A Significant Stock Market Decline: Separating The Tax And Market Timing Effects, William Ks Wang
Faculty Scholarship
No abstract provided.
Cop-“Like”: The First Amendment, Criminal Procedure, And The Regulation Of Police Social Media Speech, Jonathan Abel
Cop-“Like”: The First Amendment, Criminal Procedure, And The Regulation Of Police Social Media Speech, Jonathan Abel
Faculty Scholarship
What happens when a law-enforcement officer makes an offensive comment on social media? Increasingly, police departments, prosecutors, courts, and the public have been confronted with the legal and normative questions resulting from officers’ racist, sexist, and violent social media comments. On one side are calls for severe discipline and termination. On the other are demands that officers be permitted to express their views without fear of retaliation. The regulation of police social media speech has been largely conceived of in First Amendment terms. But because an officer’s comments affect her ability to testify, criminal procedure is also employed in regulating …
Transactional Community Lawyering, Alina S. Ball
Transactional Community Lawyering, Alina S. Ball
Faculty Scholarship
The racial reckoning during the summer of 2020 presented a renewed call to action for movement lawyers committed to collaborating with mobilized clients to advance racial equity and economic justice. During the last thirty years, community lawyering scholarship has made significant interventions into poverty lawyering and provides the theoretical framework for contemporary movement lawyers. Conceptually, community lawyering theory can be implemented in any practice area; however, prevailing narratives and models for community lawyering are based on group advocacy campaigns and, to a lesser extent, individual representation in dispute resolution. Transactional lawyers—who use private ordering to represent business entities as they …
Response: Radicalism And Democracy In Monetary System Reform, John Crawford
Response: Radicalism And Democracy In Monetary System Reform, John Crawford
Faculty Scholarship
No abstract provided.
Personal Jurisdiction, Comparativism, And Ford, Scott Dodson
Personal Jurisdiction, Comparativism, And Ford, Scott Dodson
Faculty Scholarship
No abstract provided.
Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser
Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser
Faculty Scholarship
Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …
Bankruptcy Process For Sale, Kenneth Ayotte, Jared Ellias
Bankruptcy Process For Sale, Kenneth Ayotte, Jared Ellias
Faculty Scholarship
The lenders that fund Chapter 11 reorganizations exert significant influence over the bankruptcy process through the contract associated with the debtor-in-possession (DIP) loan. In this Article, we study a large sample of DIP loan contracts and document a trend: over the past three decades, DIP lenders have steadily increased their contractual control of Chapter 11. In fact, today’s DIP loan agreements routinely go so far as to dictate the very outcome of the restructuring process. When managers sell control over the bankruptcy case to a subset of the creditors in exchange for compensation, we call this transaction a “bankruptcy process …
Ai Governance In The Financial Industry, Robin C. Feldman, Kara Stein
Ai Governance In The Financial Industry, Robin C. Feldman, Kara Stein
Faculty Scholarship
Legal regimes in the United States generally conceptualize obligations as attaching along one of two pathways: through the entity or the individual. Although these dual conceptualizations made sense in an ordinary pre-modem world, they no longer capture the financial system land scape, now that artificial intelligence has entered the scene. Neither person nor entity, artificial intelligence is an activity or a capacity, something that mediates relations between individuals and entities. And whether we like it or not, artificial intelligence has already reshaped financial markets. From Robinhood, to the Flash Crash, to Twitter's Hash Crash, to the Knight Capital incident, each …
Captive Generics: The Wolf In Sheep’S Clothing, Robin C. Feldman
Captive Generics: The Wolf In Sheep’S Clothing, Robin C. Feldman
Faculty Scholarship
No abstract provided.
Are State Public Option Health Plans Worth It?, Jaime S. King, Katherine L. Gudiksen, Erin C. Fuse Brown
Are State Public Option Health Plans Worth It?, Jaime S. King, Katherine L. Gudiksen, Erin C. Fuse Brown
Faculty Scholarship
The COVID-19 pandemic exposed the weaknesses of the U.S. health care system’s reliance on private, employer-based health insurance. The crisis in health care access and affordability has increased support for a public option— the choice to purchase a state-initiated health plan with publicly determined rates. Congressional gridlock, however, may dim the chances for a federal pub- lic option. States have stepped into the policy vacuum, proposing forty-nine bills to establish state public options since 2010, including three that became law. This article provides a comprehensive survey and taxonomy of state public op- tion proposals from 2010–2021, identifying three main models: …