Digital Commons Network^™

Junk Science At Sentencing, Maneka Sinha

Faculty Scholarship

Junk science used in criminal trials has contributed to hundreds of wrongful convictions. But the problem is much worse than that. Junk science does not only harm criminal defendants who go to trial, but also the overwhelming majority of defendants—over ninety-five percent—who plead guilty, skip trial, and proceed straight to sentencing.

Scientific, technical, and other specialized evidence (“STS evidence”) is used regularly, and with increasing frequency, at sentencing. Despite this, Federal Rule of Evidence 702 and its state equivalents—which help filter unreliable STS evidence at trials—do not apply at the critical sentencing stage. In fact, at sentencing, no meaningful admissibility …

The Use And Disuse Of The Magna Carta: Due Process, Juries, And Punishment, Robert W. Emerson, John W. Hardwicke

North Carolina Journal of International Law

No abstract provided.

Inside-Out: Bringing Law Students Face-To-Face With Injustice, Romie Griesmer

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Unsophisticated Taxpayers, Rules Versus Standards, And Form Versus Substance, Emily Cauble

Loyola University Chicago Law Journal

Many features of tax law can simplify the law in some senses for some taxpayers but make it more complex in other ways and for other taxpayers. This Essay focuses, in particular, on design choices that make the form of a transaction more determinative of tax consequences than its substance or that make tax law more rule like and less standard based. While such measures may simplify matters for taxpayers who contemplate tax law prior to acting (by making tax consequences more predictable), they can make the law more complex for taxpayers who do not attempt to ascertain the content …

The Case Against Tax Subsidies In Innovation Policy, Charles J. Delmotte

Florida State University Law Review

Until recently, intellectual property (IP) scholars agreed that patents were the prime innovation tool to aggregate decentralized information. This case for the property approach, which argues patents are appropriate when information about possible inventions and the social value of inventions are hidden, is now also under pressure in the literature. IP scholars argue that tax subsidies for firms that invest in research and development (R&D) replicate many of the merits of the patent system under conditions of asymmetric information. Based on developments in institutional economics, this Article shows that tax subsidies are not market-set incentives and are not optimal tools …

Algorithmic Fairness, Algorithmic Discrimination, Thomas B. Nachbar

Florida State University Law Review

There has been an explosion of concern about the use of computers to make decisions affecting humans, from hiring to lending approvals to setting prison terms. Many have pointed out that using computer programs to make these decisions may result in the propagation of biases or otherwise lead to undesirable outcomes. Many have called for increased transparency and others have called for algorithms to be tuned to produce more racially balanced outcomes. Attention to the problem is likely to grow as computers make increasingly important and sophisticated decisions in our daily lives. Drawing on both the computer science and legal …

Uncertain Risk, Science Experiments, And The Courts, Eric E. Johnson

Florida State University Law Review

Legal scholarship has looked at problems of uncertainty- "unknown unknowns"-in a variety of contexts, from financial regulation to national security. This Article, however, focuses on uncertain risk in what may be its most challenging arena: experimental scientific research. Notably, this context imposes a key conceptual hurdle. In other arenas, law and regulation can work to lessen uncertainty. But with science-experiment risk, uncertainty cannot be sidestepped, since going beyond the current state of human knowledge is the whole point of experimental research. Moreover, scienceexperiment risk involves the highest possible stakes, since future experiments could plausibly lead to global catastrophe, even human …

Legal Realism And Legal Reality, Matthew X. Etchemendy

Tennessee Law Review

This Article critically reexamines the relationship between Legal Orthodoxy and American Legal Realism. Legal Orthodoxy is a familiar jurisprudential perspective according to which judges do not make law, the law is complete or gapless, and the answers to legal questions are determinable through autonomous inquiry. Legal Orthodoxy featured prominently in the legal thought of Christopher Columbus Langdell and Joseph Henry Beale, and the Realist critique of the Langdellian conception of legal science and education is widely viewed as a decisive refutation of Legal Orthodoxy.

Contrary to this conventional wisdom, I argue that the Realist critique of Langdellianism only justifies a …

Reconciling Legal And Technical Approaches To Algorithmic Bias, Alice Xiang

Tennessee Law Review

In recent years, there has been a proliferation of papers in the algorithmic fairness literature proposing various technical definitions of algorithmic bias and methods to mitigate bias. Whether these algorithmic bias mitigation methods would be permissible from a legal perspective is a complex but increasingly pressing question at a time when there are growing concerns about the potential for algorithmic decision-making to exacerbate societal inequities. In particular, there is a tension around the use of protected class variables: most algorithmic bias mitigation techniques utilize these variables or proxies, but anti-discrimination doctrine has a strong preference for decisions that are blind …

Education In The Time Of Covid-19: Remote Learning's Mixed Effects On Students And The School System, Ariel Katz

Children's Legal Rights Journal

No abstract provided.

Ai’S Risky Business: Embracing Ambiguity In Managing The Risks Of Ai, Ryan Budish

Journal of Business & Technology Law

No abstract provided.

Who Owns The Blockchain? How Copyright Law Allows Rights Holders To Control Blockchains, Sebastian Pech

Journal of Business & Technology Law

No abstract provided.

Oliver Wendell Holmes's Theory Of Contract Law At The Massachusetts Supreme Judicial Court, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

A Socio-Legal Framework For Improving The Accessibility Of Research Articles For People With Disabilities, Brian Wentz, Jonathan Lazar, Paul T. Jaeger, Ursula Gorham

Journal of Business & Technology Law

No abstract provided.

Fashion, Models, And Intellectual Property, Andres Sawicki

Articles

In this Article, I revisit the impact of Professor Kal Raustiala and Professor Christopher Sprigman 's landmark article, The Piracy Paradox. Their work identified an empirical anomaly that was difficult to explain in light of the standard justification for intellectual property rights: although IP law does not grant meaningful exclusivity in novel fashion designs, the fashion industry invests significant resources developing those novel designs. To account for this anomaly, The Piracy Paradox shifted the focus from the supply side of innovation to the demand side. The standard justification emphasized that innovators face threats of copying that they cannot easily …

Introductory Remarks: The Roberts Court And The First Amendment: An Introduction, Geoffrey Stone

Articles

No abstract provided.

Why The Corporation Locks In Financial Capital But The Partnership Does Not, Richard Squire

Vanderbilt Law Review

Each partner in an at-will partnership can obtain a cash payout of his interest at any time. The corporation, by contrast, locks in shareholder capital, denying general payout rights to shareholders unless the charter states otherwise. What explains this difference? This Article argues that partner payout rights reduce the costs of two other characteristics of the partnership: the non-transferability of partner control rights, and the possibility for partnerships to be formed inadvertently. While these characteristics serve valuable functions, they can introduce a bilateral-monopoly problem and a special freezeout hazard unless each partner can force the firm to cash out his …

Chancery Court Questions Whether Nominally Designated "Independent" Directors Satisfied Requirements Of Stockholders Agreement, Robert S. Reder, Eunice Lim

Vanderbilt Law Review En Banc

No abstract provided.

Pleading-Stage Dismissal Via Corwin Denied To 34.8% Stockholder Alleged To Control Both Sides Of Challenged Transaction, Robert S. Reder, John K. Neal Jr.

Vanderbilt Law Review En Banc

No abstract provided.

Mismanaging The Marketplace: The Economy Of The Online Public Forum And Section 230 Liability, Zachary Osborne

First Amendment Law Review

No abstract provided.

Our Imperial Federal Courts, Matthew Steilen

Vanderbilt Law Review En Banc

No abstract provided.

Rise Of Illiberal Democracy, Weakening Of The Rule Of Law, & Implementation Of Human Rights In The Philippines, Gemmo Bautista Fernandez

American University International Law Review

No abstract provided.

A Regulatory Roadmap For Financial Innovation, Cristie Ford

All Faculty Publications

Private sector innovation – whether it is fintech, biotechnology, the platformisation of the economy, or other developments – is the single most profound challenge that regulators confront today. Financial innovations, which are intangible and fast-moving, are especially challenging. Financial regulators are at the operational front line of making sense of the promise and the risks associated with fintech, and helping to ensure it operates for public benefit.

Faced with such a changeable and fast-moving problem, how can regulators “future proof” themselves?

This chapter outlines a roadmap for financial regulators who confront fast-moving and profound change in their sectors. It argues …

Regulating Glamour: A Quantitative Analysis Of The Health And Safety Training Of Appearance Professionals, 54 Uic J. Marshall L. Rev. 123 (2021), Daniel Greenberg

UIC Law Review

No abstract provided.

To Be “Impartial”, Must A Juror Reject His Own Life Experiences?, 54 Uic J. Marshall L. Rev. 627 (2021), Kevin Graff

UIC Law Review

No abstract provided.

The Nexus Of Law And Warfare In The Twenty-First Century, 53 Uic J. Marshall L. Rev. 513 (2021), Waseem Ahmad Qureshi

UIC Law Review

No abstract provided.

When The Math Matters: Improving Statistical Advocacy In Gerrymandering Litigation, Robin L. Juni

GW Law Faculty Publications & Other Works

Lawyers regularly joke about their supposed inability to address mathematical issues. However, mathematical concepts sometimes are at the core of a legal dispute, and lawyers do a disservice to their clients if they are not able to engage in effective advocacy in these contexts. This article discusses a gerrymandering dispute involving an important mathematical idea – the core statistical concept of regression analysis, particularly multivariable regression analysis – then explaining the underlying math involved and connecting it to the legal issues. The case involved is Gill v. Whitford, in which Chief Justice Roberts referred to the multivariable regression analysis that …

Algorithms In Business, Merchant-Consumer Interactions, & Regulation, Tabrez Y. Ebrahim

Faculty Scholarship

The shift towards the use of algorithms in business has transformed merchant–consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In …

Models, Race, And The Law, Moon Duchin, Douglas M. Spencer

Publications

Capitalizing on recent advances in algorithmic sampling, The Race-Blind Future of Voting Rights explores the implications of the long-standing conservative dream of certified race neutrality in redistricting. Computers seem promising because they are excellent at not taking race into account—but computers only do what you tell them to do, and the rest of the authors’ apparatus for measuring minority electoral opportunity failed every check of robustness and numerical stability that we applied. How many opportunity districts are there in the current Texas state House plan? Their methods can give any answer from thirty-four to fifty-one, depending on invisible settings. But …

Benchmark Competition, Sue S. Guan

Maryland Law Review

No abstract provided.