Law Commons^™

Debt, Doubt, And Dreams: Understanding The Latino College Completion Gap, Kate Sablosky Elengold, Jess Dorrance, Robert Agans, Amanda Martinez, Patricia Foxen

Faculty Publications

We surveyed individuals who had matriculated to, but never completed, at least one college program (community college, college, university, trade school, or certificate program). With a survey sample of more than 1,500 respondents, 35 percent of whom self-identified as Latino* (Latino = 522; non-Latino = 985), we gathered critical information about the most salient barriers to college completion, especially those that disproportionately burden Latino students. Based on prior literature and research, we paid particular attention to the relationship between debt, attitudes about debt, and college completion. We organized the barriers to college completion into four categories: precollege, institutional, environmental, and …

The Invisible Web At Work: Artificial Intelligence And Electronic Surveillance In The Workplace, Richard A. Bales, Katherine Vw Stone

AI-DR Collection

Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. These tools enable employers to record their workers’ every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (A-I) algorithms into a permanent electronic resume that can identify and predict an individual’s performance as well as …

The Paradox Of Automation As Anti-Bias Intervention, Ifeoma Ajunwa

AI-DR Collection

A received wisdom is that automated decision-making serves as an anti-bias intervention. The conceit is that removing humans from the decision-making process will also eliminate human bias. The paradox, however, is that in some instances, automated decision-making has served to replicate and amplify bias. With a case study of the algorithmic capture of hiring as heuristic device, this Article provides a taxonomy of problematic features associated with algorithmic decision-making as anti-bias intervention and argues that those features are at odds with the fundamental principle of equal opportunity in employment. To examine these problematic features within the context of algorithmic hiring …

Is Algorithmic Affirmative Action Legal?, Jason R. Bent

AI-DR Collection

This Article is the first to comprehensively explore whether algorithmic affirmative action is lawful. It concludes that both statutory and constitutional antidiscrimination law leave room for race-aware affirmative action in the design of fair algorithms. Along the way, the Article recommends some clarifications of current doctrine and proposes the pursuit of formally race-neutral methods to achieve the admittedly race-conscious goals of algorithmic affirmative action.

The Article proceeds as follows. Part I introduces algorithmic affirmative action. It begins with a brief review of the bias problem in machine learning and then identifies multiple design options for algorithmic fairness. These designs are …

Treating Professionals Professionally: Requiring Security Of Position For All Skills-Focused Faculty Under Aba Accreditation Standard 405(C) And Eliminating 405(D), J. Lyn Entrikin, Lucy Jewel, Susie Salmon, Craig T. Smith, Kristen K. Tiscoine, Melissa H. Weresh

Faculty Publications

No abstract provided.

The Value Of An Academic Law Library In The 21st Century, Anne Klinefelter

Faculty Publications

Law school deans and university provosts may ask how law libraries can deliver value as new technologies, practices, and economic pressures inspire reassessment of legal education and of higher education more generally. The proliferation of information delivery systems, trends towards centralized management of higher education infrastructure, and changes in the law practice market suggest that the traditional law library may not meet current needs. But law libraries have the potential and opportunity to deliver strong value in this environment due largely to the sophistication of today's law librarians. The law library can be a center for expertise that can advance …

The Paradox Of Automation As Anti-Bias Intervention, Ifeoma Ajunwa

Faculty Publications

A received wisdom is that automated decision-making serves as an anti-bias intervention. The conceit is that removing humans from the decision-making process will also eliminate human bias. The paradox, however, is that in some instances, automated decision-making has served to replicate and amplify bias. With a case study of the algorithmic capture of hiring as a heuristic device, this Article provides a taxonomy of problematic features associated with algorithmic decision-making as anti-bias intervention and argues that those features are at odds with the fundamental principle of equal opportunity in employment. To examine these problematic features within the context of algorithmic …

Protecting The Role Of The Press In Times Of Crisis, Mary-Rose Papandrea

Faculty Publications

Part I of this Article will discuss defamation law with a focus on the Court’s decision in New York Times Co. v. Sullivan. This decision “constitutionalized” the common law tort of defamation and dealt a death blow to a series of lawsuits by southern government officials aimed at silencing the publication.14 The decision has since provided an essential foundation for press freedom for over fifty years. At the same time, because the decision did not grant the press (or the public generally) absolute immunity for the publication of defamatory information about matters of public concern, speakers potentially face years …

Legal Calculators And The Tax System, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

Legal calculators often embody a characteristic that can be termed “simplexity.” As we have theorized, simplexity occurs when the government presents clear and simple explanations of the law without highlighting its underlying complexity or reducing this complexity through formal legal changes. In earlier work, we have argued that some elements of IRS publications (plain language summaries of the law for the general public) present contested tax law as clear tax rules, add administrative gloss to the tax law, and fail to fully explain the tax law.

In this Article, we show that simplexity also occurs when the government offers legal …

The First Anti-Sanctuary Law: Proposition 187 And The Transformation Of Immigration Enforcement, Rick Su

Faculty Publications

Anti-sanctuary efforts are sweeping the country, as the federal government and a growing number of states impose stringent restrictions on the ability of cities and other localities to limit their involvement in federal immigration enforcement. Many are now wondering how far this movement will go. But where and how did this movement begin? This Essay argues that the roots of the contemporary anti-sanctuary movement can be traced to Proposition 187, a ballot initiative adopted by California voters in 1994. As the nation’s first anti-sanctuary law, Proposition 187 established the basic provisions featured in nearly every anti-sanctuary measure enacted since. Moreover, …

Agency Legislative Fixes, Leigh Z. Osofsky

Faculty Publications

Legislative drafting mistakes can upset statutory schemes. The Affordable Care Act was nearly undone by such mistakes. The recent Tax Cuts and Jobs Act is rife with them. Traditional legal scholarship has examined whether courts should help resolve Congress’ mistakes. But courts have remained stubbornly resistant to implementing fixes.

In the face of legislative error and judicial inaction, administrative agencies have taken it upon themselves to fix legislative drafting mistakes.

This Article provides the first comprehensive analysis of these “agency legislative fixes.” It identifies features and complexities of such fixes that existing scholarship does not capture. It also describes the …

Identity: Obstacles And Openings, Osamudia James

Faculty Publications

No abstract provided.

Future Work, Jeffrey M. Hirsch

Faculty Publications

The Industrial Revolution. The Digital Age. These revolutions radi-cally altered the workplace and society. We may be on the cusp of a new era -- one that will rival or even surpass these historical disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article …

Like Sand From The Pyramids: Using Rare Books And Manuscripts To Facilitate Object-Based Learning In The Law School Classroom, Melissa M. Hyland

Faculty Publications

This article advocates adding object-based learning, utilizing rare legal books and manuscripts, to the legal education toolbox. Object-based learning is an educational methodology that explains the many learning benefits resulting from student engagement with tangible objects of material culture. Studies into the use of this methodology with undergraduate and graduate students are rather new, but research indicates that object-based learning produces measurable positive results across the curriculum.

Part I of this article provides an overview of object-based learning, with subsections addressing its relationship to active learning, its incorporation of multiple learning styles, and its ability to encourage affective learning. Part …

Bot Contracts, Deborah R. Gerhardt, David Thaw

Faculty Publications

In this Article, we explain why the transactions commonly known as “smart contracts” are better understood as “bot contracts.” Taking an interdisciplinary approach, we show why the “smart contracts” moniker is misdescriptive in two important ways. First, these transactions are automated, not smart. Second, they do not afford parties many enforcement rights and defenses that one expects from common law contractual relationships. To fully understand these transactions, it is important to appreciate how the term “smart contracts” differs from what the technology delivers.

Our review of the technology explains that these transactions have tremendous practical utility in reducing risk and …

The Death Of Custom: Winners And Losers In The Legal Transformation Of Peri-Urban Land In Niger, Thomas A. Kelley Iii

Faculty Publications

No abstract provided.

Picking Prosecutors, Carissa Byrne Hessick, Michael Morse

Faculty Publications

The conventional academic wisdom is that prosecutor elections are little more than empty exercises. Using a new, national survey of local prosecutor elections — the first of its kind — this Article offers a more complete account of the legal and empirical landscape. It confirms that incumbents are rarely contested and almost always win. But it moves beyond extant work to consider the nature of local political conflict, including how often local prosecutors face any contestation or any degree of competition. It also demonstrates a significant difference in the degree of incumbent entrenchment based on time in office. Most importantly, …

Internet Service Provider Liability For Disseminating False Information About Voting Requirments And Procedures, William P. Marshall

Faculty Publications

This Article will examine the constitutionality of deceptive campaign practices acts under the First Amendment. It will also take the analysis one step further by analyzing whether Internet service providers may be held liable for the deceptive campaign messages posted by their customers and users, similar to the way that providers can be held liable for instances of copyright infringement posted by their customers and users.

Korematzu, Hirabayashi, And The Second Monster, Eric L. Muller

Faculty Publications

It is a trope at least as old as Beowulf: the unexpected second monster. Beowulf arrives in Heorot to take on Grendel, the demon who has been terrorizing the Ring-Danes’ mead-hall. He bests the monster in battle and Grendel slinks off, one-armed and bloodied, to die. The Ring-Danes honor Beowulf with a great banquet; he has slaughtered their nemesis and there is much to celebrate. Full of mead and a newfound sense of safety, the revelers drift off to sleep. That is when a terrible new monster bursts upon the scene—Grendel’s mother, the beast that brought Grendel into the …

Forcing Judges To Criminalize Poverty In North Carolina, Gene R. Nichol

Faculty Publications

No abstract provided.

Automated Legal Guidance, Leigh Z. Osofsky, Joshua D. Blank

Faculty Publications

Through online tools, virtual assistants, and other technology, governments increasingly rely on artificial intelligence to help the public understand and apply the law. The Internal Revenue Service, for example, encourages taxpayers to seek answers regarding various tax credits and deductions through its online “Interactive Tax Assistant.” The U.S. Army directs individuals with questions about enlistment to its virtual guide, “Sgt. Star.” And the U.S. Citizenship and Immigration Services suggests that potential green card holders and citizens speak with its interactive chatbot, “Emma.” Through such automated legal guidance, the government seeks to provide advice to the public at a fraction of …

Social Utility Of Music: A Case For A Copyright Exemption For Therapeutic Uses, Amanda Reid

Faculty Publications

No abstract provided.

Copyright Publication On The Internet, Deborah R. Gerhardt

Faculty Publications

This Article tackles the question of when a work distributed over the Internet is published as a matter of copyright law. Copyright publication doctrine retains significant practical importance and can have a dispositive impact on the economic value of a work. Publication can also determine whether a court has jurisdiction over a copyright claim. For many twentieth century works, publication with observance of formalities was required if copyrights were to attach to creative works at all. Publication remains relevant in determining the length of copyright protection, but duration is far from the only copyright issue that turns on this concept. …

Joint Employment In The United States, Jeffrey M. Hirsch

Faculty Publications

The joint-employer doctrine in the United States is as fissured as the economy itself. As this paper’s brief survey of the different joint-employer standards used in the U.S. shows, the diverse set of work laws and governing authorities involved in workplace disputes have led to an unpredictable and confusing set of joint-employer standards. Although most of these standards share similarities, there are numerous differences based on the statute involved, whether the dispute is brought under federal or state law, which federal court is hearing the case, and which political party controls a relevant agency. Moreover, thanks in large part to …

In Pursuit Of Economic Justice: The Political Economy Of Domestic Violence Law And Policies, Deborah M. Weissman

Faculty Publications

Intimate partner violence (“IPV”) is often exercised as an act of coercion by abusers who engage in strategies to interfere with their partners’ ability to engage productively in the workplace and deny them control over economic resources, that is, to deny them agency. Certainly, awareness of the insidious facets of economic coercion of IPV has expanded in recent years. However, attention to the efficacy of legal and policy responses to the economic consequences of such abuse has not received commensurate attention. Federal and state laws designed to address economic abuse are applied haphazardly if at all. The laws themselves, moreover, …

Review Of Tammy Pettinato Oltz, Lawyering Skills In The Doctrinal Classroom: Using Legal Writing Pedagogy To Enhance Teaching Across The Law School Curriculum, Oscar J. Salinas

Faculty Publications

No abstract provided.

The Ends And Means Of Decarbonization: The Green New Deal In Context, Jonas J. Monast

Faculty Publications

Disputes about climate policy involve much more than whether or not to reduce greenhouse gas emissions. There is general agreement among proponents of climate policy that strategies should be cost effective, address distributional impacts, and incentivize investments in low-carbon technologies. Yet disagreements abound regarding additional goals of climate policy design.

Decarbonizing the economy means changing the sources of energy we use, how we transport people and products, how we produce food, and which resources we consume. Yet even among proponents of federal climate legislation there is strong disagreement regarding policy instruments. Recent proposals for a revenue-neutral carbon tax and a …

Legal Writing's Harmful Psyche, Kevin Bennardo

Faculty Publications

This essay proceeds in four parts. It first supports the descriptive claim that many in the legal writing discipline perceive themselves as victims of unfair treatment within legal academia. Second, it explores the consequences of that self-perception, including the norm of protectionism that has developed within the discipline. The narrative that legal writing professors are mistreated by those outside the discipline has resulted in an internal culture in which many members of the discipline support their own no matter what.

Third, the essay explores how such protectionism is harmful to the development of the legal writing discipline. An academic discipline …