Digital Commons Network^™

Bail At The Founding, Sandra G. Mayson, Kellen R. Funk

Articles

How did criminal bail work in the founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related provisions in state and federal constitutions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including founding-era statutes, case …

Enhancing Public Access To Agency Law, Cary Coglianese, Bernard W. Bell, Michael Herz, Margaret Kwoka, Orly Lobel

Articles

"A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

Adventure Capital, Elizabeth Pollman

Articles

This symposium Article traces the history and rise of venture capital and venture-backed startups in the United States from a business law perspective and explores the current big questions in the field. This examination highlights that after lawmakers shaped the enabling environment for venture capital to flourish, corporate and securities law has responded to the rise of venture-backed startups incrementally but with profound effect. Although business law has not always fit easily with the distinctive features of venture backed startups, it has provided an enormous space in the private realm for them to order their governance and maneuver with relative …

Partisanship Creep, Kate Shaw

Articles

It was once well settled and uncontroversial—reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture—that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries.

For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton …

Overseeing The Administrative State, Jill Fisch

Articles

"In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A HISTORY OF SECURITIES LAW IN THE SUPREME COURT, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

Barring Judicial Review, Laura Dolbow

Articles

"Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are continuing in challenges to the recently created Medicare price negotiation program. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review. This Article provides new insights about express preclusion by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of …

When A Wrong Creates A Life: Tort Responses To Children Born From Institutional Sexual Violence, Karen M. Tani

Articles

Today, the paradigm case of “wrongful life” involves a claim on behalf of a child—typically, a disabled child—who would not exist but for an act of negligent reproductive healthcare. Framed in this way, the tort of “wrongful life” is controversial, and rightfully so. This Article, part of a symposium on “new torts,” reminds readers that one of the nation’s earliest reported “wrongful life” cases arose from a very different set of facts: Williams v. State, filed in 1963 in New York City, stemmed from the alleged rape and impregnation of a patient at a large, state-run psychiatric hospital; through a …

What's In A Name?: Common Carriage, Social Media, And The First Amendment, Christopher S. Yoo

Articles

Courts and legislatures have suggested that classifying social media as common carriers would make restrictions on their right to exclude users more constitutionally permissible under the First Amendment. A review of the relevant statutory definitions reveals that the statutes provide no support for classifying social media as common carriers. Moreover, the fact that a legislature may apply a label to a particular actor plays no significant role in the constitutional analysis. A further review of the elements of the common law definition of common carrier reveals that four of the purported criteria (whether the industry is affected with a public …

Toward Abolitionist Remedies: Police (Non)Reform Litigation After The 2020 Uprisings, Cara Mcclellan, Jamelia N. Morgan

Articles

In the summer of 2020, across the country, Americans took to the street in protest of Mr. George Floyd’s murder and the police killings of countless other Black people. In too many cases, police responded to protesters with excessive force and the very brutality that had led people to protest police in the first place. In the wake of these horrific displays of force, over 40 lawsuits were filed nationwide that challenged police conduct at protests. Smith v. City of Philadelphia, one of the lawsuits brought on behalf of residents and protesters in Philadelphia, was unique because the tragic underlying …

A Rapidly Shifting Landscape : Why Digitized Violence Is The Newest Category Of Gender-Based Violence, Rangita De Silva De Alwis

Articles

This paper proposes that new research on technology-facilitated violence must shape gender-based violence against women laws. Given the AI revolution, including large language models (“ LLMs ”), and generative artificial intelligence, new technologies continue to create power disparities that help facilitate gender-based violence both online and offline. The paper argues that the veil of anonymity provided by the digital realm facilitates violence ; and the automation capabilities offered by technology amplify the scope and impact of abusive behavior. Although the direct physical act of sexual violence is different from offline violence, there are similarities. Firstly, both acts share the structural …

Dobbs And Democracy, Melissa Murray, Katherine Shaw

Articles

In Dobbs v. Jackson Women’s Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree …

Credit Markets And The Visible Hand: The Discount Window And The Macroeconomy, David Skeel, Peter Conti-Brown

Articles

In times of crisis such as the 2008 financial crisis and the 2020 COVID-19 pandemic central banks throughout the world engage in interventions with lasting effects on financial markets and the macroeconomy, for better and worse. The negative political consequences of these interventions—fears of politicizing central banking and inflationary concerns about dramatic interventions among them—can dampen the enthusiasm for such interventions early in the face of crisis. This dynamic creates a dilemma for the US central bank, the Federal Reserve, causing it to eschew interventions beyond monetary policy until the crisis has already crashed, at which point the Fed moves …

The Critical Role Of History After Dobbs, Serena Mayeri

Articles

The Dobbs majority’s reliance on a flawed and impoverished account of “history and tradition” to deny fundamental freedoms today may tempt us to despair of appealing to the past as a source of constitutional rights or principles. But the problem with Dobbs is not its discussion of history per se; rather, it is how and for what purposes the Court looks to the past. History need not preserve archaic values; it can counsel against past errors and justify affirmative approaches to protecting rights and combating inequality. This essay explores critical roles for history in legal, constitutional, and political arguments about …

Grid Reliability In The Electric Era, Joshua Macey, Shelley Welton, Hannah Wiseman

Articles

The United States has delegated the weighty responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Despite the fact that NERC is one of the largest and most important examples of industry-led governance—and regulates in an area that is central to our economy and basic human survival—this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To achieve deep decarbonization, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run largely …

Disability And The Ongoing Federalism Revolution, Karen M. Tani, Katie Eyer

Articles

The Supreme Court’s “new federalism” revolution remains one of the most important developments in recent U.S. legal history. The Court revitalized “states’ rights” doctrines under the Tenth and Eleventh Amendments, rendering states partially or wholly immune from many types of federal litigation. Simultaneously, the Court retrenched the authority of national legislators—and aggrandized its own authority—by limiting what Congress may do under its Commerce Clause, Spending Clause, and Fourteenth Amendment powers. But one important facet of this “new federalism” revolution has gone unappreciated: the load-bearing role of earlier disability-related cases. In the 1970s and 1980s, this Feature shows, the Court used …

Lessons From Gdpr For Ai Policymaking, Christopher S. Yoo, Josephine Wolff, William Lehr

Articles

The ChatGPT chatbot has not just caught the public imagination; it is also amplifying concern across industry, academia, and government policymakers interested in the regulation of Artificial Intelligence (AI) about how to understand the risks and threats associated with AI applications. Following the release of ChatGPT, some EU regulators proposed changes to the EU AI Act to classify AI systems like ChatGPT that generate complex texts without any human oversight as “high-risk” AI systems that would fall under the law’s requirements. That classification was a controversial one, with other regulators arguing that technologies like ChatGPT, which merely generate text, are …

Chaotic Childhoods, Stephanos Bibas

Articles

Rob Henderson’s breakout memoir, Troubled, gives us a window on troubled youth. Henderson, a brilliant young psychologist, illumines how harmful childhood instability is by reflecting on his own experience. He never knew his father, was abandoned by his drug-addicted mother, and bounced around foster care. After squandering much of his early education and drowning his rage in alcohol, drugs, fights, and vandalism, he made his way through the Air Force to Yale and now Cambridge. But few of his friends escaped the wounds from their childhoods; many wound up unemployed, in prison, or dead. As an outsider to the elites …

Democracy's Bureaucracy: The Complicated Case Of Voter Registration Lists, Michael Morse

Articles

This Article calls attention to the development and derailment of a novel cross-governmental bureaucracy for voter registration. It focuses specifically on voter registration lists as the vulnerable backbone of election administration. In short, the constitutional allocation of election authority has left a mobile electorate scattered across fifty different state registration lists. The result is more than a tenth of the electorate likely registered in their former jurisdiction and more than a third not registered at all. The solution, in the vocabulary of election officials, has become “list maintenance”—or, identifying when voters, previously registered at one address, subsequently move or die, …

Derivative Foreign Relations Law, Jean Galbraith

Articles

We treat U.S. foreign relations law as a discrete body of law—and it is. But it is not independent. To the contrary, it relies on the same institutional actors that govern more generally: the President, Congress, the federal judiciary, administrative agencies, and sub-national governments. And far from being static, these institutions change radically over time in how they are constituted, in what internal rules they apply, and in what legal outputs they produce. The Trump Administration is a recent and painful example whose legacy continues to loom large, including on the Supreme Court. This symposium contribution considers what these broader …

Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw

Articles

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics—electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants—measured by the fixed terms of state and federal executive officials—may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts—measured by the fixed terms of state judges—creates openings for strategic behavior among litigants (both public …

Corporate Democracy And The Intermediary Voting Dilemma, Jill E. Fisch, Jeff Schwartz

Articles

Corporate governance is changing. For the past two decades, the focus of shareholder voting and engagement was deconstructing impediments to shareholder power and increasing managerial accountability. The goal of these interventions was to increase firm value by reducing agency costs. Increasingly, however, environmental and social issues have risen to the fore. This new focus is arguably more about values than value. This Article is the first to argue that, because of this shift, institutional intermediaries—namely, pension and mutual fund managers—can no longer vote and engage on the affairs of their portfolio companies without seeking the input of the pension-plan participants …

Expecting Specific Performance, Tess Wilkinson-Ryan, David Hoffman, Emily Campbell

Articles

Using a series of surveys and experiments, we find that ordinary people think that courts will give them exactly what they bargained for after breach of contract; in other words, specific performance is the expected contractual remedy. This expectation is widespread even for the diverse array of deals where the legal remedy is traditionally limited to money damages. But for a significant fraction of people, the focus on equity seems to be a naïve belief that is open to updating. In the studies reported here, individuals were less likely to anticipate specific performance when they were briefly introduced to the …

Defeating The Empire Of Forms, David Hoffman

Articles

For generations, contract scholars have waged a faint-hearted campaign against form contracts. It’s widely believed that adhesive forms are unread and chock full of terms that courts will not, or should not, enforce. Most think that the market for contract terms is broken, for both employees and consumer adherents. And yet forms are so embedded in our economy that it’s hard to imagine modern commercial life without them. Scholars thus push calibrated, careful solutions that walk a deeply rutted path. Notwithstanding hundreds of proposals calling for their retrenchment, the empire of forms has continued to advance into new areas of …

Startup Failure, Elizabeth Pollman

Articles

Venture-backed startups famously aim for a successful “exit” by going public or selling to another company through an acquisition deal and achieving financial return for all equity holders. A different path, however, is vastly more likely to occur—failure. Although high-risk innovative ventures fail at exceedingly high rates, no scholarly account systematically explains what happens to these startups at the end of their life cycle. This Article provides an original theory of startup failure: how law and culture have shaped a system for dealing with the large number of startups that cannot reach an exit that will produce a financial return …

Promoting Corporate Diversity: The Uncertain Role Of Institutional Investors, Jill Fisch

Articles

Two developments are having an impact on corporate decisions. One is the increased engagement by institutional intermediaries, and a shift in the focus of that engagement from corporate governance to environmental and social issues. The other is a heightened societal awareness of diversity, equity and inclusion (DEI) issues, particularly the importance of diversity in corporate leadership. This Article considers the intersection between the two. It describes how institutional investors have focused their attention on increasing diversity in corporate leadership, the potential motivations for that focus, and the impact of that focus, to date. It highlights the tensions that result from …

Algorithms And Competition In The Digital Economy, Cary Coglianese, Alicia Lai

Articles

No abstract provided.

Standing Back And Standing Down: Citizen Non-Cooperation And Police Non-Intervention As Causes Of Justice Failure And Crime, Paul H. Robinson, Jeffrey Seaman, Muhammad Sarahne

Articles

The article discusses the failures of the American justice system to find and punish offenders for the majority of serious crimes. It highlight the low clearance and conviction rates for crimes such as murder, rape, and assault. It further argues that these failures of justice have practical consequences on crime rates and also disproportionately affect racial minorities and low-income communities.

Chevron And Administrative Antitrust, Redux, Gus Hurwitz

Articles

No abstract provided.

Winners And Losers In The Debate Over The Expansion Of Medicare, Allison Hoffman

Articles

Over its nearly sixty years, Medicare’s reach in terms of beneficiary groups and benefits has remained surprisingly stable, not for lack of attempts at expansion. This essay considers several of the most ambitious attempts at Medicare expansion, including adding benefits for prescription drugs, long-term care, and vision, dental, and hearing care. Some failures and some successful, these efforts considered in conjunction illuminate Medicare’s changing identity, drifting gradually yet fundamentally from its social insurance roots. Understanding the winners and losers in the debates over Medicare expansion reveals the changing political economy and collective understanding of Medicare as a cornerstone of the …

How Crime Shapes Insurance And Insurance Shapes Crime, Tom Baker, Anja Shortland

Articles

Crime creates demand for insurance but supplying insurance may promote crime. We examine five case studies of insured crimes (auto theft, art theft, kidnap and hijack for ransom, ransomware, and payment card fraud) and find a co-evolutionary process through which insurers engage with insureds, governments, and legal and extralegal third parties to mitigate losses, particularly when criminal innovations destabilize the insurance market. “Insurance as crime governance” stimulates demand for security, shapes criminal incentives, engages with the state to combat crime, and tolerates some crime in the interest of profitability.