Digital Commons Network^™

Infinite Queerness And American Settler Colonialism, Jeremiah A. Ho

All Faculty Scholarship

In Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes For Racial Reform, the late Derrick Bell refined his theory of racial progress in the United States by merging his interest convergence and racial sacrifice theses into a theoretical “two-sided coin” he called “racial fortuity.”¹  Bell’s original interest convergence thesis posited that racial progress for Blacks would only occur if their interests in obtaining equality for themselves and the interests of the dominant White establishment in granting such equality “converged.”²  This theory famously underpinned Bell’s interpretation of Brown and the Supreme Court’s eagerness to overturn …

Book-And-Claim System For Sustainable Aviation Fuels, Christine Kranich, Sarah J. Haas

Journal of Air Law and Commerce

This Article provides an overview of the regulatory (legal) framework in which the decarbonisation of aviation is embedded, with a focus on European law. The Article further provides updates on EU-ETS, CORISA, RED III and the minimum quota of SAF supply in accordance with Refuel EU Aviation up to October 2023. Sustainable Aviation Fuels (SAF) will be described in detail in this Article, and it is further explained that the use of SAF could significantly contribute to aviation becoming “greener”. As the availability of SAF is still rather scarce, the Article revolves around a mechanism of a global book-and-claim system …

Non-Fungible Tokens (Nfts) And Copyright Law, Ochoa, Tyler T.

Santa Clara High Technology Law Journal

The concept of using non-fungible tokens (NFTs) to facilitate and authenticate sales of digital art dates back to 2014; but it took several years before the concept really captured public attention. Since copyright law governs the reproduction of works of art, including digital images, the connection to NFTs seems obvious. Yet, copyright law is only tangentially related to NFTs, for two reasons. First, buying an NFT does not, by itself, convey any rights to reproduce or display the work associated with that token. Instead, those rights are governed entirely by the contract that accompanies the sale. Second, minting and selling …

Human Reproductive Cloning, Heritable Genome Editing, And The Future Of Novel Reproductive Technologies, Macintosh, Kerry Lynn

Santa Clara High Technology Law Journal

This Article compares human reproductive cloning (HRC) and heritable genome editing (HGE) to identify factors that encourage bans on novel reproductive technologies. HRC drew legislative opposition in part because it involved asexual reproduction and was incorrectly associated with copying. HGE and other technologies that involve sexual reproduction do not have those problematic qualities. HRC also became entangled with research in which human embryos were cloned to be harvested for their stem cells. HGE did not because scientists learned how to create and edit pluripotent stem cells without creating embryos. However, the legal history of HRC predicts that reproductive technologies strongly …

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 …

Redistributing Justice, Benjamin Levin, Kate Levine

Scholarship@WashULaw

This article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas—often areas where defendants are imagined as powerful and victims as particularly vulnerable. In this article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system can …

"The Reed That Bends With The Wind Does Not Break"-The Complexities Of Multicultural Mediation And The Use Of Artistic Tools To Overcome Them, Nokukhanya Ntuli

Cardozo Journal of Conflict Resolution

Mediation processes are inherently complex and require flexibility and adaptability. This is especially true for mediation processes involving multiple parties with diverse cultural backgrounds. This paper examines the complexities created by cultural diversity in mediation. The paper highlights a dispute between the local community of Msango, West Africa, and an international mining company. It highlights how linguistic and literacy barriers complicated the process, undermining effective communication and progress. The complication identified at the start of the process necessitated the process design to encompass tools to overcome the barriers identified early on. As the mediation progressed, the mediators continued to uncover …

Granting Rights To Rivers In The Shadow Of Extractivism, Helena Alviar Garcia

FIU Law Review

In Colombia, the Atrato River, situated in the region of Chocó, was granted rights in a 2016 ruling. More than ten other rivers have been granted rights in the following years. This judicial intervention has been influenced by other jurisdictions where rights have been granted to rivers like New Zealand and India. The article situates itself within this trend by providing a more granular, local context. In particular, the goal is to foreground the structural characteristics—specifically the historical, economic, and social centrality of extractivism—within which granting rights to nature takes place. The final objective will be to explore the possibilities …

Conflicts And Confluences Between Surface And Mineral Estates In Ccus, Joseph Schremmer

Wyoming Law Review

Carbon capture, utilization, and storage (CCUS) presents a new way of using an old resource: the subterranean rock structures and their interstitial “pore” space that make up the subsurface of the earth. Injecting carbon into these structures also raises a number of new legal questions about their ownership and the relations between the owners of the structures and the owners of other subsurface resources contained within them, like oil and gas, coal, coalbed methane, and geologically native carbon dioxide. This Article explores these new legal questions and the conceptual difficulties they present with the aim of guiding participants in CCUS …

Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Gutte

Faculty Scholarship

Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the "injurer-innovator problem." Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation …

A Codified Liability Regime To Stimulate Greater Investment In Subpatentable Innovation, Jerome H. Reichman, Ana Santos Rutschman

Faculty Scholarship

The global intellectual property system rests on a distinction between exclusive property rights and free competition. Exclusive rights vary in strength and intensity, but the opposite of protection is almost always free competition. Distinctions of intensity are drawn in terms of the length of protection given to different subject matters plus variable lists of exceptions and limitations to exclusive rights. But the bottom line is that, when protection is not available under the existing system, free competition prevails, and vice-versa (i.e., where there is exclusivity, free competition is deferred for a specified period of time).

This Article departs from a …

Between The Entrepreneurial Impetus For Higher Profits And Consumer Rights Or Types Of Unfair And Misleading Commercial Practices: Insights From Bulgaria, Silviya Atanasova Topleva

International Journal on Consumer Law and Practice

The application of unfair misleading commercial practices affects the economic interests of consumers, threatening legal security and the achievement of market equilibrium. In response to these imbalances, the law builds a solid regulatory network for consumer protection. In the codification of the protection of consumer interests from unfair commercial practices, an important place is occupied by secondary legislation of the EU, and in particular Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market. The article presents a classification of the types of unfair misleading commercial practices based on the regulatory framework at the European and national level. The …

Infringement Episodes, Shani Shisha

Faculty Journal Articles and Book Chapters

For decades, copyright scholars have waged a spirited campaign against statutory damages. Our remedial system, critics say, is an incoherent mess. The core problem is that copyright holders can recover a separate award of statutory damages for every infringed work. As a result, damages can rapidly add up in any case involving multiple works. Because the number of statutory awards is tethered to the number of works, even trivial claims can lead to crippling damages. Commentators, policymakers, and judges have criticized this system as arbitrary and overbroad. And yet it endures. This Article argues that copyright’s per-work scheme has obscured, …

Biophilic Design And Biophilic Cities: An Explainer, Kincaid Brown

Law Librarian Scholarship

The COVID-19 pandemic brought into focus that outdoor activities in natural settings have a positive impact on mental health, and individuals participating in outdoor activity report higher rates of emotional well-being than individuals who do not participate in such activity. Biophilic design is an architectural practice that aims to connect people to nature through design concepts with one of the benefits being psychological. Other benefits of biophilic design include improvements to environmental quality, physical health, support of animal species and habitats, and more resilient and energy-efficient cities.

What Fischer V. United States Gets Wrong About Prosecutorial Discretion, Cindy J. Cho

Articles by Maurer Faculty

Conservative Supreme Court Justices have recently expressed heightened concerns about prosecutorial power in cases involving former President Donald Trump and the Capitol siege on January 6, 2021.  Making good on those worries, the conservative majority in Fischer v. United States, rested its decision in part on theoretical concerns about government overreach. The Department of Justice has pushed back on those concerns, but to this point, the debate has been mostly rhetorical and hypothetical.

This article attempts to fill that rhetorical void—and concretely answer the concerns animating Fischer—with evidence from actual cases.  A survey of ten January 6 cases …

Through Smoke And Mirrors: Excluding Malingering Expert Testimony Under The Daubert Standard, Chunlin Leonhard, Christoph Leonhard

Georgia Law Review

Because of science’s claim to objectivity, scientific testimony is persuasive and often outcome-determinative. Our adversarial system incentivizes litigants to proffer scientific evidence to support their positions. The task falls on trial judges as gatekeepers to distinguish valid scientific evidence from junk science. Drawing this line is difficult because scientific evidence covers a broad spectrum. The United States Supreme Court has set forth the standard of admissibility of scientific evidence in Daubert and its progeny (the Daubert Standard). Trial judges are supposed to admit scientific evidence only if reliable and relevant under the Daubert Standard. But three decades after Daubert, …

A Philosophical Look Into The Morality And Legality Of Abortion, Alexis J. Agnew

Honors College Theses

In his Nicomachean Ethics, Greek philosopher Aristotle posits an understanding of ethics and how human life is characterized by the “good.” Aristotle argues that (I) ethics involve humans possessing a rational capacity and specific function; (II) ethics are habitual, and the “doctrine of the mean” is used to gauge proper action; and (III) justice is linked to virtue. A moral issue that can be analyzed through Aristotle’s Ethics, as well as works of contemporary philosophers, is abortion. Abortion has been a controversial topic and has been brought before the Supreme Court to determine its morality and legality. Using …

Social Control And Homeless Encampments: Shifting The Role Of Shelters Through Judicial Review, Alexandra Flynn

All Faculty Publications

This paper examines the recent Canadian judicial decisions in relation to the eviction of encampment residents from public space to analyze what constitutes “reasonableness” in government decision-making in relation to short-term shelters. I argue that courts have called into question a key aspect of social control that relates to unhoused populations: the institutional belief that temporary shelters serve as a reasonable form of accommodation and an appropriate alternative to living in encampments. Recent legal decisions have challenged both this institutional belief and the methods used by officials to track which shelters are available. I conclude that the legal approach of …

Improving The Affirmative Disclosure Of Agency Legal Materials, Bernard W. Bell, Cary Coglianese, Michael E. Herz, Margaret B. Kwoka, Orly Lobel

Articles

It is axiomatic that in a democratic society the law must be broadly accessible. Administrative agencies produce a plethora of materials imposing legal obligations on commercial or individual actors in the private sector. Other materials bind the agencies themselves in ways that affect the rights or interests of private parties. Still other materials provide the public with information about how agencies interpret and apply the statutes and rules they administer, or how agencies seek to deploy their discretion or take other actions that can affect private individuals or organizations. This Article focuses on improving the public availability of all of …

The Constitutionality Of Barring Undocumented Immigrants From Second Amendment Protections, Abby Vorhees

American University Law Review

Under current federal law, undocumented immigrants remain unable to access one of the most fundamental rights contained within our Constitution: the Second Amendment right to keep and bear arms. Several undocumented immigrants have challenged the constitutionality of the federal prohibition (18 U.S.C. § 922(g)(5)(A)), resulting in a three-way circuit split on whether undocumented immigrants are protected by the Second Amendment. The Supreme Court, however, has remained silent on the issue, leaving undocumented immigrants unprotected.

The Supreme Court’s 2022 Second Amendment decision, N.Y. State Pistol & Rifle Ass’n v. Bruen, upended the traditional method of constitutional review, means-end scrutiny, in favor …

Conservation As Multiple Use, Sandra B. Zellmer

Faculty Law Review Articles

The world is facing unprecedented species extinctions, wrought in large part by climate change. Slashing greenhouse gas emissions is one crucial response to the climate/biodiversity crisis. The conservation of intact ecosystems and the life-sustaining services they provide is another. This goal will be beyond reach if conservation commitments do not cover federal public lands, particularly multiple use lands.

The Bureau of Land Management (“BLM”) has recently proposed a pathbreaking new rule that explicitly defines conservation as a multiple use. In doing so, the Conservation and Landscape Health Public Lands Rule (“Conservation Rule”) puts conservation on par with other statutorily listed …

Keeping The Perpetual In Florida's Conservation Easements, Nancy A. Mclaughlin

FIU Law Review

Hundreds of millions of dollars are being invested in the protection of the Florida Wildlife Corridor and other environmentally sensitive lands. One of the primary tools being used to accomplish this protection is the perpetual conservation easement, which is touted to landowners and the public as providing a permanent guarantee that the subject lands will never be developed. There is a very real danger, however, that perpetual conservation easements in Florida may not, in fact, be perpetual, and the protections put in place today will vanish over time—along with the public funds invested therein—as government and nonprofit holders “release” the …

Tarnished Gold: The Endangered Species Act At 50, Jonathan H. Adler

FIU Law Review

The ESA is arguably the most powerful and stringent federal environmental law on the books. Yet for all of the Act’s force and ambition, it is unclear how much the law has done much to achieve its central purpose: the conservation of endangered species. The law has been slow to recover listed species and has fostered conflict over land use and scientific determinations that frustrate cooperative conservation efforts. The Article aims to take stock of the ESA’s success and failures during its first fifty years, particularly with regard the conservation of species habitat on private land. While the Act authorizes …

Reforming The Federal Regulatory Review Process, Joanne Spalding, Andres Restrepo

FIU Law Review

For decades, the Office of Information and Regulatory Affairs (OIRA) has overseen the development of federal regulatory policies with a strong emphasis on benefit-cost analysis. Despite its conceptual appeal, this analytic tool consistently shortchanges environmental and public health protection, with especially negative consequences for environmental justice communities. In this article, we address some of those shortcomings, focusing in particular on the standard agency practice of arithmetically discounting regulatory costs and benefits that accrue in the future. We propose that the OIRA abandon this practice as it relates to non-market goods, such as human lives saved, and instead work toward a …

Immigration Detention Abolition And The Violence Of Digital Cages, Sarah R. Sherman-Stokes

Faculty Scholarship

The United States has a long history of devastating immigration enforcement and surveillance. Today, in addition to more than 34,000 people held in immigration detention, Immigration and Customs Enforcement (“ICE”) surveils an astounding 296,000 people under its “Alternatives to Detention” program. The number of people subjected to this surveillance has grown dramatically in the last two decades, from just 1,339 in 2005. ICE’s rapidly expanding Alternatives to Detention program is marked by “digital cages,” consisting of GPS-outfitted ankle shackles and invasive phone and location tracking. Government officials and some immigrant advocates have categorized these digital cages as a humane “reform”; …

Counseling Oppression, Angelo Petrigh

Faculty Scholarship

Critical scholars and public defenders alike have grappled with the contradictions at the heart of counseling clients in a carceral system. Systems of oppression operate within the public defender - client relationship because the defender’s role in translating the law also enforces its inequities. Counseling can obscure the workings of the system, providing an illusion of choice despite privileging certain forms of knowledge and tactics.

But the counseling site is also where defenders become exposed to client’s lived experiences, encounter collectivist tactics, and critically examine the tension of their role in the system. Likewise, through counseling defenders can pull back …

Criminal Law's Hidden Consensus, Steven Arrigg Koh

Faculty Scholarship

American criminal law is facing a crisis of meaning. On one hand, the “traditional school” invokes the archetype of the violent criminal—a murderer, rapist, or thief—who must be prosecuted and punished. On the other hand, the “critical school” invokes the archetype of the low-level drug offender, sentenced to a draconian prison term for mere possession of low levels of marijuana. On this account, the criminal legal system is itself systemically pathological, perhaps even warranting abolition. Like ships passing in the night, the two schools appear irreconcilable. This Article helps break this impasse and builds toward a justification for criminal law …

The War On Higher Education, Athena Mutua, Jonathan Feingold, Angela Harris, Emily Houh, Matthew Patrick Shaw, Frank Valdes

Faculty Scholarship

Academic freedom is under assault in the United States.¹ Like the authoritarian populism rising across the globe, domestic attacks on individual professors and academic institutions buttress a broader and multifaceted campaign to undermine multiracial democracy and the institutions that sustain and safeguard it.² The individuals and entities driving this antidemocratic movement have also targeted the electoral process; public education; the right to bodily autonomy; the civil rights and liberties of minoritized and marginalized communities; and freedom of speech and expression (increasingly marshaled against pro-Palestinian advocacy).³ Their openly stated goal is to delegitimize, defund, and “lay siege to” …

Constitutionalizing Racism, Jonathan Feingold

Faculty Scholarship

Unreasonable is Devon Carbado at his best. Through accessible prose, carefully crafted hypotheticals, effective visualizations, and some cross-examination (for the reader), Carbado reintroduces us to the Fourth Amendment. In arresting detail, Unreasonable" exposes how the Supreme Court has turned the Fourth Amendment against “the people”—and specifically, against people racialized as Black. Part of the “Bill of Rights,” the Fourth Amendment was adopted to protect “the right of the people” from police overreach. Yet over the past half-century, the Supreme Court has systematically repositioned the Fourth Amendment as a weapon of police power. Or as Carbado argues: whereas many assume …

Innovative Approaches To On-Demand Continuing Legal Education Ethics Training: A Case Study, Tigran W. Eldred, Molly J. Walker Wilson

Faculty Scholarship

In the ongoing discussions about continuing legal education (CLE), concerns have been raised about the quality of programming that is created and delivered. Critics have emphasized the weaknesses in mandatory programs, arguing that requiring annual training on topics such as legal ethics tends to fall short of stated goals.¹ Too often, it is said, such programs fail to deliver content in an engaging manner that is likely to improve competence.² The picture conjured up is of the bored lawyer, sitting in the back of a room flipping through a newspaper or some other distraction, as CLE instructors passively …