Digital Commons Network^™

Medical-Legal Partnerships Reinvigorate Systems Lawyering Using An Upstream Approach, Kate L. Mitchell, Debra Chopp

Articles

The upstream framework presented in public health and medicine considers health problems from a preventive perspective, seeking to understand and address the root causes of poor health. Medical-legal partnerships (MLPs) have demonstrated the value of this upstream framework in the practice of law and engage in upstream lawyering by utilizing systemic advocacy to address root causes of injustices and health inequities. This article explores upstreaming and its use by MLPs in reframing legal practice.

What Do Consumers Understand About Predispute Arbitration Agreements? An Empirical Investigation, Roseanna Sommers

Articles

The results of a survey of 1,071 adults in the United States reveal that most consumers do not pay attention to, let alone understand, arbitration clauses in their everyday lives. The vast majority of survey respondents (over 97%) report having opened an account with a company that requires disputes to be submitted to binding arbitration (e.g., Netflix, Hulu, Cash App, a phone or cable company), yet most are unaware that they have, in fact, agreed to mandatory arbitration (also known as “forced arbitration”). Indeed, over 99% of respondents who think they have never entered into an arbitration agreement likely have …

Locating Liability For Medical Ai, W. Nicholson Price Ii, I. Glenn Cohen

Articles

When medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed …

The Meme Stock Fenzy: Origins And Implications, Dhruv Aggarwal, Albert H. Choi, Yoon-Ho Alex Lee

Articles

In 2021, several publicly traded companies, such as GameStop, Bed Bath & Beyond, and AMC, became “meme stocks,” experiencing a sharp rise in their stock prices through a dramatic influx of retail investors into their shareholder base. Analyses of the meme stock surge and its implications for corporate governance have focused on the idiosyncratic creation of online communities around particular stocks during the COVID-19 pandemic. In this Article, we argue that the emergence of meme stocks is part of longer-running and more structural digital transformations in trading, investing, and governance. On the trading front, the abolition of commissions by major …

Research Access To Social Media Data: Lessons From Clinical Trial Data Sharing, Christopher J. Morten, Gabriel Nicholas, Salomé Vilgoen

Articles

For years, social media companies have sparred with lawmakers over how much independent access to platform data they should provide researchers. Sharing data with researchers allows the public to better understand the risks and harms associated with social media, including areas such as misinformation, child safety, and political polarization. Yet researcher access is controversial. Privacy advocates and companies raise the potential privacy threats of researchers using such data irresponsibly. In addition, social media companies raise concerns over trade secrecy: the data these companies hold and the algorithms powered by that data are secretive sources of competitive advantage. This Article shows …

Une Histoire Pragmatique Du Politique, William J. Novak, Stephen W. Sawyer

Articles

Comme le montre ce numero, nous ne sommes guere en manque de tentatives recentes de repenser l'histoire du politique. En effet, deux generations d'historiens ont deja produit un grand nombre de nouvelles approches et de perspectives a partir desquelles il est maintenant possible d'etudier l'histoire politique a nouveaux frais. Dans le contexte historiographique americain, nous avons ete temoins d'une serie de nouvelles approches allant de ce que l'on a appele la « nouvelle histoire sociale politique » des annees 1970 a l'effort des sciences sociales pour « repenser l'Etat » (Bringing the State Back In) dans les annees 1980 et …

Consent Searches And Underestimation Of Compliance: Robustness To Type Of Search, Consequences Of Search, And Demographic Sample, Roseanna Sommers, Vanessa K. Bohns

Articles

Most police searches today are authorized by citizens' consent, rather than probable cause or reasonable suspicion. The main constitutional limitation on so-called “consent searches” is the voluntariness test: whether a reasonable person would have felt free to refuse the officer's request to conduct the search. We investigate whether this legal inquiry is subject to a systematic bias whereby uninvolved decision-makers overstate the voluntariness of consent and underestimate the psychological pressure individuals feel to comply. We find evidence for a robust bias extending to requests, tasks, and populations that have not been examined previously. Across three pre-registered experiments, we approached participants …

Covid-19 Pandemic’S Impact On Online Sex Advertising And Sex Trafficking, Coxen O. Julia, Vanessa Castro, Bridgette Carr, Glen Redin

Articles

Disruptive social events such as the COVID-19 pandemic can have a significant impact on sex trafficking and the working conditions of victims, yet these effects have been little understood. This paper examines the effect of the COVID-19 pandemic on sex trafficking in the United States, based on analysis of over one million sexual service advertisements from the online platform Rubratings.com, using indicators of third-party management as potential proxies for trafficking. Our results show that there have been measurable changes in online commercial sexual service advertising, both with and without third-party management indicators, in the United States, with a significant decrease …

Back To Basics: The Benefits Of Paradigmatic International Organizations, Kristina Daugirdas, Katerina Linos

Articles

In the early 2000s, small “coalitions of the willing,” flexible networks, and nimble private-public partnerships were promoted as alternatives to bureaucratic, consensus-seeking, and slow-moving international organizations. The Global Fund to Fight AIDS, Tuberculosis and Malaria was established as an efficient alternative to the lumbering World Health Organization. The Basel Committee, the Financial Stability Forum, and the Financial Action Task Force were lauded as global market regulators. The Pompidou Group, the Dublin Group, and Interpol were touted as effective police networks in the battle against transnational crime.

We systematically reviewed the evolution of these celebrated networks in the ensuing decades by …

Humans In The Loop, Nicholson Price Ii, Rebecca Crootof, Margot Kaminski

Articles

From lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these “human in the loop” systems. We make four contributions to the discourse.

First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify “the MABA-MABA trap,” which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into decision making process. Regardless …

Meeting Clean Energy Goals Will Require The Grid Of The Future, Ken Berlin, Rob Gramlich, Alexandra B. Klass, Josiah Neeley

Articles

The transmission grid is the critical superhighway that connects energy supply and demand. But our grid was designed for the power plants of the past—not for the diverse range of resources and technologies of our clean energy future. Over 70 percent of the nation’s transmission infrastructure is more than 25 years old, and in many areas of the country constraints have already been an impediment to renewable power. To meet greenhouse gas reduction goals, we will need to expand electric transmission systems by 60 percent by 2030 and possibly triple the capacity of these systems by 2050. The Infl ation …

Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker

Articles

Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the feld of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

In Search Of The First-Round Knockout A Rule 12(B) Primer, Kate Rogers, Leonard Niehoff

Articles

Boxing enthusiasts define success not just by wins and losses but also by knockouts. Many of the greatest fighters in the history of boxing—Rocky Marciano, Mike Tyson, Jack Dempsey, and Sugar Ray Robinson—were known for their knockout punching power. Within the category of knockouts, the gold standard is the first-round knockout, the moment when stunned fans watch a fighter take the opponent out of the contest before either of them has broken a sweat.

Hierarchy, Race & Gender In Legal Scholarly Networks, Nicholson W. Price, Keerthana Nunna, Jonathan Tietz

Articles

A potent myth of legal academic scholarship is that it is mostly meritocratic and mostly solitary. Reality is more complicated. In this Article, we plumb the networks of knowledge co-production in legal academia by analyzing the star footnotes that appear at the beginning of most law review articles. Acknowledgments paint a rich picture of both the currency of scholarly credit and the relationships among scholars. Building on others’ prior work characterizing the potent impact of hierarchy, race, and gender in legal academia more generally, we examine the patterns of scholarly networks and probe the effects of those factors. The landscape …

How The Blockchain Undermined Digital Ownership, Aaron Perzanowski

Articles

The shift from a market built around the sale of tangible goods to one premised on the licensing of digital content and services has done significant and lasting damage to the notion of individual ownership. The emergence of blockchain technology, while certainly not necessary to reverse these trends, promised an opportunity to attract investment and demonstrate consumer demand for marketplaces that recognize meaningful digital ownership. Simultaneously, it offered an avenue for alleviating worries about hypothetical widespread reproduction and unchecked distribution of copyrighted works. Instead, many of the most visible blockchain projects in recent years—the proliferation of new cryptocurrencies and the …

Designing A Fulfilling Life In The Law, Bridgette Carr, Vivek Sankaran, Taylor J. Wilson

Articles

There is a mental health crisis in the legal profession. This isn’t news; in 2017, the National Task Force on Lawyering Well-Being acknowledged that the profession has failed to give adequate regard to the well-being of lawyers. High rates of chronic stress, depression, and substance use suggest that “the current state of lawyers’ health cannot support a profession dedicated to client service and dependent on the public trust.”

Pillar 2 And The Credits., Reuven S. Avi-Yonah

Articles

The international tax provisions of the Build Back Better Act (BBB) passed by the House of Representatives represent a reasonable compromise. They are consistent with the OECD’s Pillar Two statement, and they represent a significant move toward the implementation of the single tax principle (STP). In what follows, we will discuss the proposed changes and how they fit in with the new international tax regime (ITR). We will also address the possible interactions with the ITR if BBB is not enacted.

How Not To Lie: A Don't-Do-It-Yourself Guide For Litigators, Leonard Niehoff

Articles

Over the past few years, a number of high-profile attorneys have been sanctioned or suspended from the practice of law because they lied. The instance that probably received the greatest media attention came in June of 2021, when the Appellate Division of the Supreme Court of the State of New York ordered the immediate suspension of Rudy Giuliani’s license because he had made demonstrably false statements to the courts, lawmakers, and the public at large concerning the 2020 presidential election. In a 33- page opinion, the court considered the arguments Giuliani raised in his defense but concluded that his pants …

Dethroning Langdell, Beth H. Wilensky

Articles

I come not to bury the case method. I come merely to dethrone it. While the case method’s monopolistic hold on the law school classroom has loosened somewhat in recent years, it is still the dominant approach to pedagogy in many law school classrooms—and especially in the first-year law student experience. That is also true of the case method’s traditional pedagogical partners, the Socratic method and the cold call: their dominance has declined somewhat, even while they still have remarkable staying power.

This Essay identifies one fault with our continued acquiescence to these pedagogical mainstays of law school classrooms: it …

Terrible Freedom, Ambiguous Authenticity, And The Pragmatism Of The Endangered: Why Free Speech In Law School Gets Complicated, Leonard M. Niehoff

Articles

We idealize colleges and universities as places of unfettered inquiry, where freedom of expression flourishes. The Supreme Court has described the university classroom as “peculiarly the ‘marketplace of ideas.’” It declared: “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.” The exchange of competing ideas takes place not only in classrooms, but also in public spaces, dormitories, student organizations, and in countless other campus contexts.

Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley

Articles

This essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective …

Open-Source Clinical Machine Learning Models: Critical Appraisal Of Feasibility, Advantages, And Challenges, Keerthi B. Harish, W. Nicholson Price Ii, Yindalon Aphinyanaphongs

Articles

Machine learning applications promise to augment clinical capabilities and at least 64 models have already been approved by the US Food and Drug Administration. These tools are developed, shared, and used in an environment in which regulations and market forces remain immature. An important consideration when evaluating this environment is the introduction of open-source solutions in which innovations are freely shared; such solutions have long been a facet of digital culture. We discuss the feasibility and implications of open-source machine learning in a health care infrastructure built upon proprietary information. The decreased cost of development as compared to drugs and …

Reducing Prejudice Through Law: Evidence From Experimental Psychology, Sara Emily Burke, Roseanna Sommers

Articles

Can antidiscrimination law effect changes in public attitudes toward minority groups? Could learning, for instance, that employment discrimination against people with clinical depression is legally prohibited cause members of the public to be more accepting toward people with mental health conditions? In this Article, we report the results of a series of experiments that test the effect of inducing the belief that discrimination against a given group is legal (versus illegal) on interpersonal attitudes toward members of that group. We find that learning that discrimination is unlawful does not simply lead people to believe that an employer is more likely …

The Case For Banning (And Mandating) Ransomware Insurance, Kyle D. Logue, Adam B. Shniderman

Articles

Ransomware attacks are becoming increasingly pervasive and disruptive, resulting in ransom demands becoming more exorbitant. Payments for ransom costs are increasingly being covered by insurance, which may offer coverage for a variety of cyber-related losses. Some commentators have expressed concern over this market phenomenon. Specifically, the concern is that the presence of insurance is making the ransomware problem worse based on the following theory: because there is ransomware insurance that covers ransom payments, and because paying the ransom is often far cheaper than paying the restoration and business interruption costs covered under the policy, there is an increased tendency to …

Ai Insurance: How Liability Insurance Can Drive The Responsible Adoption Of Artificial Intelligence In Health Care, Ariel Dora Stern, Avi Goldfarb, Timo Minssen, W. Nicholson Price Ii

Articles

Despite enthusiasm about the potential to apply artificial intelligence (AI) to medicine and health care delivery, adoption remains tepid, even for the most compelling technologies. In this article, the authors focus on one set of challenges to AI adoption: those related to liability. Well-designed AI liability insurance can mitigate predictable liability risks and uncertainties in a way that is aligned with the interests of health care’s main stakeholders, including patients, physicians, and health care organization leadership. A market for AI insurance will encourage the use of high-quality AI, because insurers will be most keen to underwrite those products that are …

New Innovation Models In Medical Ai, W Nicholson Price Ii, Rachel E. Sachs, Rebecca S. Eisenberg

Articles

In recent years, scientists and researchers have devoted considerable resources to developing medical artificial intelligence (AI) technologies. Many of these technologies—particularly those that resemble traditional medical devices in their functions—have received substantial attention in the legal and policy literature. But other types of novel AI technologies, such as those related to quality improvement and optimizing use of scarce facilities, have been largely absent from the discussion thus far. These AI innovations have the potential to shed light on important aspects of health innovation policy. First, these AI innovations interact less with the legal regimes that scholars traditionally conceive of as …

The Impact Of The Covid-19 Pandemic On First-Generation Women Test-Takers: Magnifying Adversities, Stress, And Consequences For Bar Exam Performance., Freiburger Erin, Victor D. Quintanilla, Kurt Hugenberg, Sam Erman, Nedim Yel, Anita Kim, Mary C. Murphy

Articles

By magnifying gender- and socioeconomic status-based inequalities, the COVID-19 pandemic caused stress and disrupted career progress for professional students. The present work investigated the impact of pandemic-related stress and prevailing barriers on structurally disadvantaged women preparing for a high-stakes professional exam. In Study 1, we found that among US law students preparing for the October 2020 California Bar Exam—the professional exam that enables one to become a practicing attorney in California—first-generation women reported the greatest stress from pandemic-related burdens and underperformed on the exam relative to others overall, and particularly compared to continuing-generation women. This underperformance was explained by pandemic-related …

A Congressional Review Act For The Major Questions Doctrine, Christopher J. Walker

Articles

Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate on a question of great economic or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond: by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could establish a fast-track …

Exclusion Cycles: Reinforcing Disparities In Medicine, Ana Bracic, Shawneequa L. Callier, Nicholson Price

Articles

Minoritized populations face exclusion across contexts from politics to welfare to medicine. In medicine, exclusion manifests in substantial disparities in practice and in outcome. While these disparities arise from many sources, the interaction between institutions, dominant-group behaviors, and minoritized responses shape the overall pattern and are key to improving it. We apply the theory of exclusion cycles to medical practice, the collection of medical big data, and the development of artificial intelligence in medicine. These cycles are both self-reinforcing and other-reinforcing, leading to dismayingly persistent exclusion. The interactions between such cycles offer lessons and prescriptions for effective policy.

The Everyday First Amendment, Leonard M. Niehoff, Thomas Sullivan

Articles

On June 26 and June 27, 2019, some twenty contenders for the Democratic nomination for President of the United States participated in two evenings of political debate. The outsized group included Rep. Tulsi Gabbard of Hawaii, who was struggling to gain traction with voters. Shortly after the debate, while many viewers were conducting online searches to learn more about the candidates, Google temporarily suspended her campaign’s advertising account.

Google claimed that the interruption occurred because an automated system flagged unusual activity on the account. But Gabbard did not accept this explanation; she believed that Google deliberately had tried to undermine …