Digital Commons Network^™

The Identity Factor, Jessica Feinberg

University of Colorado Law Review

No abstract provided.

Red Flag Officers, Rachel Moran

University of Colorado Law Review

No abstract provided.

Ending The Paper Chase At The Supreme Court, William J. Aceves

University of Colorado Law Review

No abstract provided.

Accessible Financial Data For Crowdfunding Investors, David Nows

University of Colorado Law Review

No abstract provided.

Taylor Swift And Grimes's Competing Versions Of Music Ownership: Copyright Protections Versus Creative Innovation, Grace Detwiler

University of Colorado Law Review

No abstract provided.

The Hub-And-Spoke Model: How Everyone Can Get In On The Action In Colorado, Sebastian Blitt

University of Colorado Law Review

No abstract provided.

The Economics Of Healthcare Fraud, Jetson Leder-Luis, Anup Malani

Public Law and Legal Theory Working Papers

Healthcare fraud imposes a sizable cost on U.S. public healthcare budgets and distorts health care provision. We examine the economics of health care fraud and enforcement using theory and data and connect to a growing literature on the topic. We first offer a new economic definition of health care fraud that captures and connects the wide range of activities prosecuted as fraud. We define fraud as any divergence between the care an insurer says a patient qualifies for, the care a provider provides, and the care a provider bills for. Our definition clarifies the economic consequences of different categories of …

Can Ai Hold Office Hours?, Lisa Larrimore Ouellette, Amy R. Motomura, Jason Reinecke, Jonathan S. Masur

Public Law and Legal Theory Working Papers

Rapid improvements in AI tools offer transformative opportunities in legal education, including the possibility of students using AI tools to answer questions that students might otherwise ask during office hours. But a critical challenge is the accuracy of these tools’ responses. Both general-purpose and law-specific AI models have been shown to “hallucinate” incorrect responses to a range of legal questions. Here, we evaluate the current capabilities of AI models when given the more constrained task of answering questions about a specific legal text. We provided three AI tools—OpenAI’s GPT-4o, Anthropic’s Claude 3.5 Sonnet, and Google’s NotebookLM—with the text of Masur …

The Exactions Illusion: Sheetz's Missing Dissent, Lee Anne Fennell, Timothy M. Mulvaney

Public Law and Legal Theory Working Papers

No abstract provided.

The Society Cases, Adam A. Davidson

Public Law and Legal Theory Working Papers

No abstract provided.

On Disciplining States, Aziz Z. Huq

Public Law and Legal Theory Working Papers

No abstract provided.

Pillar Two: Much Ado About Next To Nothing?, Julie Roin

Public Law and Legal Theory Working Papers

The OECD has spent the last fifteen years working on the design and implementation of rules for the taxation of the income derived from international transactions, rules that its members hope will both increase corporate tax revenues and minimize “destructive” tax competition. In 2021, it released its two-part “Inclusive Framework.” Although Pillar One of this Framework still languishes, legislation necessary for the implementation of Pillar Two, which is designed to force all countries to impose a minimum tax on income derived by large multinational enterprises, has been enacted by most of the countries in the European Union, Japan, South Korea …

From Wtp To Wtf: Valuation And Distributive Discourse, Lee Anne Fennell

Public Law and Legal Theory Working Papers

No abstract provided.

Structural Logics Of Presidential Immunity, Aziz Z. Huq

Public Law and Legal Theory Working Papers

In Trump v. United States, the Supreme Court wrought two new presidential immunities from criminal prosecution. Supplemented by a pair of penumbral evidentiary rules, these inhibit criminal indictment or conviction of the president, and indeed many subordinate officials, across many imaginable fact-patterns. The Court justified this result on consequentialist, not originalist or precedential, grounds. But its analysis of immunity’s effects was radically incomplete. It focused narrowly on the person of the president, eschewing any attempt to situate or relate that individual’s incentives and behavior to the wider institutional contexts of the executive branch at large or the partisan-political environment of …

Islands Of Algorithmic Integrity: Imagining A Democratic Digital Public Sphere, Aziz Z. Huq

Public Law and Legal Theory Working Papers

This essay offers a new analytic lens for evaluating the design of digital platforms from the perspective of democratic values. It develops a model of desirable platform design, and them ask present legal interventions move is toward that aspiration. The aspirational model is not draws on an idea found in the scholarly literatures in political science and sociology about economic development . This is the notion that development policy should aim to seed “islands of integrity,” into patrimonial or nepotistic state structures as a way of building foundations for a more robust and hence public-regarding state apparatus. This literature explores …

Safety Score Liability, Omri Ben-Shaharz

Public Law and Legal Theory Working Papers

Data technology is increasingly deployed to assign safety scores to people and products. Could these scores be used by tort law to apportion liability for accidents? Instead of basing tort liability on negligence—on the level of care leading to the specific accident—“safety score liability” would impose liability commensurate with a party’s habitual propensity to behave unsafely. This article describes how safety score liability would work, the incentives it would create, and the principles limiting its adoption. The article suggests that the precision of AI tools generating such scores—scores that have already reshaped other channels of safety regulation in society— offers …

Family, Faith And Nation: The Roberts Court And The Global Pivot Against Legal Liberalism, Aziz Z. Huq, Tom Ginsburg

Public Law and Legal Theory Working Papers

The Roberts Court has veered sharply in a culturally conservative direction. Traditional solidarities of faith, family, and nation have been elevated above the individual autonomy interests that motivated the justices in the twentieth century. The Supreme Court’s jurisprudence in this vein complements and is reinforced by changes in public law more generally—for example, in recent executive orders that amplify the same values. In legal scholarship, this jurisprudential shift is pervasively framed in terms of domestic electoral politics, in particular as a product of Republican dominance of the presidency and the Senate at key moments.

But expand the analytic lens outward, …

Constitutional Drafting Processes And Constitutional Success, Adam Chilton, Murat C. Mungan, Mila Versteeg

Public Law and Legal Theory Working Papers

Several recent constitution-making processes have been celebrated for being participatory, inclusive, and representative. However, many of these processes also failed. We theorize that aspects of these kinds of constitutional drafting processes could reduce the probability of constitutional success. To show why, we construct a “Constitution Drafting game” (CD game) in which representatives from different interest groups must draft a constitution. We consider the case where the probability of constitutional success is single peaked, but the value from successful adoption is increasing in the degree of issue protection chosen. The drafting process then leads to protection choices that are above those …

When The Executive Has Unclean Hands, William Baude, Samuel L. Bray

Public Law and Legal Theory Working Papers

Those who come into equity must come with clean hands. But what happens when it is the executive who seeks equitable relief? This Essay argues that the unclean-hands doctrine applies to the executive, though in a modified form that reflects the relation- ships between officials in the executive branch, between the executive and legislative branch, and between the government and the people. It then applies the doctrine to current controversies such as government requests for stays from the Supreme Court, and a pending lawsuit against the District of Maryland.

Bypassing Agency Adjudication, Brian Lipshutz

Public Law and Legal Theory Working Papers

This Article examines the contested practice of bypassing agency adjudication to accelerate judicial review of non-final executive action. Parties typically challenge final action under the Administrative Procedure Act (APA). But parties may also seek an injunction or declaratory judgment with respect to a non-final action that violates a statute or the Constitution. Traditionally, such “ultra vires” review required a clearly unlawful action and an inadequate administrative remedy. But modern courts further limit it by applying three judicially developed timing doctrines—exhaustion, ripeness, and Thunder Basin.

This Article explains why the traditional ultra vires model— without the timing doctrines—should govern the bypassing …

Function Over Form In Federal Drug Sentencing, Alison Siegler, Grant Delaune

Public Law and Legal Theory Working Papers

No abstract provided.

Liquidation, Then And Now, William Baude

Public Law and Legal Theory Working Papers

No abstract provided.

The American Attack On Academic Freedom In Comparative Perspective, Tom Ginsburg

Public Law and Legal Theory Working Papers

Academic freedom is under threat in many countries, and the United States is no exception. This chapter places the American framework for academic freedom in comparative perspective, and describes the techniques being deployed against it. A common threat is to leverage the use of government funds as a way to change internal university governance. Less common, however, is something that we have seen in the United States, which is a threat to academic freedom from civil society itself. The trend is accelerating through social media, and is structurally similar to that of the fascist period in Europe in which there …

Remedies For A Constitutional Crisis, William Baude, Samuel L. Bray, Marin K. Levy

Public Law and Legal Theory Working Papers

Remedies for a Constitutional Crisis William Baude,* Samuel L. Bray,** and Marin K. Levy*** 139 Harv. L. Rev. (forthcoming 2026) Draft of September 29, 2025 In a crisis of authority, where it is unclear whether executive officials will comply with judicial decisions, the courts may seem to have limited remedial options. What can they do other than order that their decisions be followed, and hope for the best? This Essay shows that even once judges are firmly convinced that the executive has violated the law, their remedial options are wide and complicated. Moreover, the best path is frequently not obvious. …

Agonistic Federalism, Aziz Z. Huq, Zachary D. Clopton

Public Law and Legal Theory Working Papers

It’s been called the “oldest question” of American constitutional law: How does the national government deal with its sovereign subnational states? Judges and scholars have tried to capture this dynamic via theories of “dual federalism,” “process federalism,” “cooperative federalism,” or “federalism by integration.” But all these models suddenly seem to have superseded, and even perhaps rendered obsolete, by an unexpected step-change in the intensity of federal-state conflicts. In the place of longstanding federalism models, this article demonstrates, an underappreciated form of intergovernmental relations has emerged. We call this model “agonistic federalism.” The article’s aim is to introduce and theorize this …

Pretrial Detention Without Counsel, Alison M. Siegler, Jaden M. Lessnick

Public Law and Legal Theory Working Papers

In federal courts across the country, judges are locking defendants in jail before trial without first giving them a lawyer. This deprivation-of-counsel crisis not only violates the statutory, regulatory, and administrative right to counsel at initial appearance hearings, but may even contravene the Sixth Amendment. This article builds on our Freedom Denied report—the first nationwide study of federal pretrial detention—and new data collected since. It makes three primary contributions. First, we explain the sources and nature of the right to counsel at federal initial appearance hearings (the first bail hearing in federal court). Second, we provide a data-driven illustration of …

The Reception Of Novella, Daughter Of The Bolognese Jurist Giovanni D'Andrea, In Christine De Pizan's City Of Ladies, Mary Anne Case

Public Law and Legal Theory Working Papers

Although the announced theme of Book 2, Chapter 36 of the Livre de la cité des dames is “against those men who claim it is not good for women to be educated,” a clear subtheme is filiation, since each of the three learned women on whom the chapter focuses – Hortensia, Novella, and Christine herself – is educated by her learned father. As it happens, the three women also have in common that they used their learning to defend their sex, but, interestingly, the chapter only discusses this “support for the cause of women” with respect to one of them, …

A Meditation On The Thirteenth Amendment And Constitutional Redemption, Darrel A. H. Miller

Public Law and Legal Theory Working Papers

No abstract provided.

Monarchy, Tom Ginsburg

Public Law and Legal Theory Working Papers

No abstract provided.

Falsifying Tradition, Darrell A.H. Miller

Public Law and Legal Theory Working Papers

From cases spanning gun rights, reproductive freedom, religious liberty, and personal jurisdiction; to separation of powers and other structural features of the Constitution, courts increasingly rely on tradition to guide their decisions. Often, judges appeal to tradition in a vaguely empirical way, as “facts to study, not convictions to demonstrate about,” in the words of Justice Antonin Scalia. Yet, for a claim that purports to be factual, there’s very little agreement, or even analysis, about what renders this factual assertion—tradition—true or false. This Article tackles that foundational issue.

Part I surveys the ways in which courts use tradition in different …