Digital Commons Network^™

Disability, Race, And Health Beyond The Carceral State, Benjamin Barsky, Craig Konnoth, Michael A. Stein

Faculty Scholarship

No abstract provided.

Just Look At The Map: Bounding Environmental Review Of Housing Development In California, Eric Biber, Christopher S. Elmendorf, Nicholas Marantz, Moira O’Neill

Faculty Scholarship

California faces a dire housing crisis. California’s land-use regulatory system remains a key driver of this crisis. State law grants local governments broad power to craft their own regulations on how to review and approve housing development. Though state law may limit a locality’s ability to outright deny some types of housing development, local governments can and do use creative ways to stall approvals or functionally deny housing by making it infeasible to develop. One such strategy is to demand more intensive environmental review of new housing projects under the California Environmental Quality Act (CEQA) than what state law requires. …

Hierarchies Of Discrimination In Baby Making? A Response To Professor Carroll, Radhika Rao

Faculty Scholarship

No abstract provided.

The Additionality Double Standard, James Salzman, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

Carbon offsets are widely criticized for lacking additionality. The public debate, how- ever, has failed to recognize that the problem of additionality goes far beyond offsets. It arises any time the government subsidizes an activity. Programs with longer histories than offsets and far more money at stake offer valuable lessons for managing lack of additionality in offsets. The article sets out the current efforts to prove offset additionality, explains why major gov- ernment programs present comparable additionality challenges, and show why other programs’ problems of additionality are perceived as significantly different than those for offsets. We examine the toolkit used …

Property Moves: Assembling Service Streams, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

In this essay, I consider how we might retrofit property rights to meet modern urban and environmental challenges, which have foundationally rewritten property’s job description. The way forward requires attending to the beneficial services that resources provide, and to the central role of assembly (and reassembly) in generating and sustaining those service streams. To that end, I catalog a repertoire of “property moves” aimed at the moving target of resource optimization. While these moves can be pursued in limited ways within our current property framework, pursuing them in concert at scale requires ownership that is built for ongoing reconfiguration. I …

Beccaria, The Executioner, And The French Revolution, Willa Carlyle Reising

Graduate Theses, Dissertations, and Problem Reports (ETD)

This thesis explores ideas and practices in the French penal system during the Revolutionary era, especially during the Reign of Terror, considering the experiences of Revolutionary leaders and the executioner of Paris during the Revolution. It argues that while in some ways Revolutionary leaders used Enlightenment penal laws to justify their actions during the Reign of Terror, in other ways the Reign of Terror was a departure from Enlightenment penal reform laws. The main Enlightenment penal reformer which this thesis uses is Cesare Beccaria because he was influential in France and during the French Revolution in helping to create early …

Volo Foundation Lecture: Science, Free Speech, And Public Choice, Bret Stephens

FIU Law Review

In an era where science, free speech, and public choice clash, the historical unity between these pillars, as envisioned by America's founding fathers, is obscured. Examining Thomas Jefferson's reverence for Bacon, Locke, and Newton, reveals a past where reason and freedom intertwined. However, contemporary challenges, epitomized by the pandemic response, illustrate a divergence. Amidst censorship and expert dominance, the vital role of public scrutiny emerges. Acknowledging the fallibility of experts and embracing free speech as essential for reasoned discourse becomes imperative. To restore the balance, humility from scientific institutions, a renewed appreciation for free speech, and public courage are necessary …

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 …

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 …

The Influence Of The Spanish Legal System And Socialist Legal Systems On Cuban Civil Law, María Elena Cobas Cobiella

FIU Law Review

The essay “The influence of the Spanish legal system and socialist legal systems on Cuban civil law” fulfills an old desire to analyze how the current Cuban civil law has been shaped. The work addresses the influence of the law of the former socialist countries and Spanish law in the configuration of current Cuban civil law.

The Spree Of Principles And The Abuses Of The Balancing Doctrine In Brazil, Ronaldo Porto Macedo

FIU Law Review

This article delves into the nuanced distinction between principles and rules in legal discourse, emphasizing their differing grammatical functions. While acknowledging the necessity of principles in legal reasoning, it cautions against their unchecked proliferation, exemplified by the Ellwanger case. The analysis underscores the importance of contextual understanding in discerning between principles and policies, advocating for a philosophical-political reflective approach. It critiques the overreliance on balancing-proportionality as a universal method, warning against its potential for dogmatic reduction and infringement on fundamental rights like freedom of expression. Ultimately, it calls for a balanced, reflective interpretation of principles to mitigate the risks inherent …

Maurer Environmental Law Expert Is Lead Author On Science Insights Policy Forum Article, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Environmental champions and conservationists will mark the 50th anniversary of the Endangered Species Act later this month. That is the law requiring federal agencies to use all methods necessary to prevent extinctions and ensure that federal actions not jeopardize the continued existence of species on the brink of disappearing from the face of the Earth.

In the leadup to the December 27th anniversary, several publications have begun examining the Act’s history and impact over five decades.

Science, the world’s third-most influential scholarly journal based on Google Scholar citations, invited experts from around the country to look ahead as well …

Dobbs, Abortion Laws, And In Vitro Fertilization, Kerry L. Macintosh

Faculty Publications

Health Organization1 has upended abortion jurisprudence. The case concerned a Mississippi law barring most abortions when the probable gestational age of the fetus was greater than fifteen weeks.2 Holding that the U.S. Constitution did not protect a right to abortion through the Due Process Clause of the Fourteenth Amendment,3 the Court overruled Roe v. Wade4 and Planned Parenthood of Southeastern Pennsylvania v. Casey.

5 Abortion, it explained, differed from other protected acts because abortion destroyed potential life.6 Deeming rational basis review appropriate,7 the Court concluded that the Mississippi law was rationally related to what the Court accepted as legitimate state …

Outsourcing Voting To Ai: Can Chatgpt Advise Index Funds On Proxy Voting Decisions?, Chen Wang

Fordham Journal of Corporate & Financial Law

Released in November 2022, Chat Generative Pre-training Transformer (“ChatGPT”), has risen rapidly to prominence, and its versatile capabilities have already been shown in a variety of fields. Due to ChatGPT’s advanced features, such as extensive pre-training on diverse data, strong generalization ability, fine-tuning capabilities, and improved reasoning, the use of AI in the legal industry could experience a significant transformation. Since small passive funds with low-cost business models generally lack the financial resources to make informed proxy voting decisions that align with their shareholders’ interests, this Article considers the use of ChatGPT to assist small investment funds, particularly small passive …

The Public’S Companies, Andrew K. Jennings

Fordham Journal of Corporate & Financial Law

This Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?

The studies’ results are consistent with understandings that both public and private companies have greater public …

The Concept Of Legal Subject Competence In The Authority To Act On Marriage Law In Indonesia, Imelda Martinelli, F.X. Joko Priyono, Yunanto Yunanto

Indonesia Law Review

This article focuses on discussing legal politics related to one important issue which is very basic, namely regarding the criteria for the ability to act of a human being as a legal subject within the scope of civil law, especially marriage law regarding the minimum age limit for entering into a marriage, who come from backgrounds with different interests and ideologies, make this an issue that can be highlighted. So the problem in this paper becomes whether there is a concept regarding the legal subject's competence in the authority to act on marriage law in Indonesia that accommodates the law …

Reducing Food Scarcity: The Benefits Of Urban Farming, S.A. Claudell, Emilio Mejia

Journal of Nonprofit Innovation

Urban farming can enhance the lives of communities and help reduce food scarcity. This paper presents a conceptual prototype of an efficient urban farming community that can be scaled for a single apartment building or an entire community across all global geoeconomics regions, including densely populated cities and rural, developing towns and communities. When deployed in coordination with smart crop choices, local farm support, and efficient transportation then the result isn’t just sustainability, but also increasing fresh produce accessibility, optimizing nutritional value, eliminating the use of ‘forever chemicals’, reducing transportation costs, and fostering global environmental benefits.

Imagine Doris, who is …

Amended Brief Of Amici Curiae Freedom Project, Civil Survival, Fred T. Korematsu Center For Law And Equity, King County Department Of Public Defense, And Washington Association Of Criminal Defense Lawyers In Support Of Petitioner, Jessica Levin, Melissa Lee, Robert S. Chang, Prachi Dave, Ronald A. Peterson Law Clinic, Katherine Hurley, Brian Flaherty, Mark Middaugh

Center for Civil Rights and Critical Justice Advocacy

No abstract provided.

Ways Of Explaining Law, Dan Priel

Articles & Book Chapters

No abstract provided.

“Any”, James J. Brudney, Ethan J. Leib

BYU Law Review

Our statute books use the word “any” ubiquitously in coverage and exclusion provisions. As any reader of the Supreme Court’s statutory interpretation docket would know, a large number of cases turn on the contested application of this so-called universal quantifier. It is hard to make sense of the jurisprudence of “any.” And any effort to offer a unified approach—knowing precisely when its scope is expansive (along the “literal-meaning” lines of “every” and “all”) or confining (having a contained domain related to properties provided by contextual cues)—is likely to fail. This Article examines legislative drafting manuals, surveys centuries of Court decisions, …

Balance In The Basin, Casey Lee Mcclellan

BYU Law Review

The National Environmental Policy Act (NEPA) changed the way land managers and users interact with public lands. However, its stringent requirements are not responsive to today’s environmental and economic realities. For the future of sustainable mineral extraction, there must be a better way. Adaptive management, a more flexible planning process, should be used on public lands to ensure greater leeway for operators, environmentalists, and local economies. By analyzing rural northeastern Utah’s Uinta Basin’s history and existing public land use plans, this Note applies adaptive management to the area to show how thinking outside the box can solve seemingly unsolvable problems.

A Landmark Environmental Law Looks Ahead, Robert L. Fischman

Articles by Maurer Faculty

In late December 1973, the United States enacted what some would come to call “the pitbull of environmental laws.” In the 50 years since, the formidable regulatory teeth of the Endangered Species Act (ESA) have been credited with considerable successes, obliging agencies to draw upon the best available science to protect species and habitats. Yet human pressures continue to push the planet toward extinctions on a massive scale. With that prospect looming, and with scientific understanding ever changing, Science invited experts to discuss how the ESA has evolved and what its future might hold.

Family Time: A Selection Of Bills From The Virginia 2023 Legislative Session Relating To Family, Intimate Partner Violence, And Child Welfare, Valerie L'Herrou

Richmond Public Interest Law Review

In 2023, the Commonwealth of Virginia was forced to operate without a

finalized state budget following the adjournment of the regular session of its

legislative body. The Commonwealth waited (luckily without bated breath)

for its “caboose” budget for the 2023–2024 budget cycle for nearly six

months after the General Assembly adjourned sine die, which it did on its

normal date for a “short” (odd-numbered) year on February 25, 2023.

However, most other actions taken by the Virginia General Assembly during

its 2023 session did go into effect on July 1, 2023, as usual. These include a

number of bills that …

Covid-19 Response In An Alternative America: Legal Tools That The Us Government Failed To Invoke, Neil Davey

Minnesota Journal of Law, Science & Technology

No abstract provided.

Crawling To The Cure: The Monopolization Of The Breast Cancer Drug Market, Kira Le

Minnesota Journal of Law, Science & Technology

No abstract provided.

Artificial Intelligence And The Administrative State: Regulating The Government Use Of Decision-Making Technology, Gordon Unzen

Minnesota Journal of Law, Science & Technology

No abstract provided.

Rethinking The Presumption Of Enablement In Nonpatent Prior Art, Gabrielle Carlini

Duke Law Journal

The rising popularity of tools such as preprint servers, open-access data sources, and generative artificial intelligence has resulted in a proliferation of prior art that has never been seen before under the current patent system. In a rapidly changing world, patent law is slow to catch up, and the current system is not equipped to handle the flood of incoming prior art. In the academic research setting in particular, while the use of preprint servers and open-source data has allowed researchers to participate in widespread information exchange, these tools have also generated a new, large class of prior art dedicated …

Enablement For Genus Claims: A Bifurcated Approach, Jie Yang

Chicago-Kent Journal of Intellectual Property

Abstract After two jury trials, two trips to the Federal Circuit, and two petitions to the Supreme Court, the Court this past term decided Amgen Inc. v. Sanofi without much controversy. In a unanimous decision, the Court affirmed the invalidation of Amgen’s functional antibody claims for lack of enablement. As a result, inventors down the road, not just life sciences companies, may find it more difficult to obtain broad patents. Although the Court was clear that Amgen may not “monopolize an entire class of things defined by their function,” the opinion fell short of guiding lower courts on how to …

Motions To Submit Supplemental Information: An Infrequently Utilized Procedure, Matthew Johnson, Ashvi Patel

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Large Language Models: Ai's Legal Revolution, Adam Allen Bent

Pace Law Review

This article contemplates and advocates for the use of Artificial Intelligence (“AI”) through Large Language Models (“LLM”) in legal practice. The author ultimately addresses the need to orient LMMs within varying legal contexts including academia, private practice, as well as the U.S. court system. Additionally, the author emphasizes the inevitability of AI and LLM systems infiltrating legal practice, and the reality that the industry must acknowledge and accept these systems to regulate and to provide better while still ethical legal services. Large Language Models: AI’s Legal Revolution, begins by walking the reader through the history of technological innovation of AI, …