Digital Commons Network^™

Results May Vary, Susan Nevelow Mart

Publications

No abstract provided.

Understanding The Human Element In Search Algorithms And Discovering How It Affects Search Results, Susan Nevelow Mart

Publications

When legal researchers search in online databases for the information they need to solve a legal problem, they need to remember that the algorithms that are returning results to them were designed by humans. The world of legal research is a human-constructed world, and the biases and assumptions the teams of humans that construct the online world bring to the task are imported into the systems we use for research. This article takes a look at what happens when six different teams of humans set out to solve the same problem: how to return results relevant to a searcher’s query …

Researching Colorado Health Law, Kerri Rowe

Publications

No abstract provided.

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

Publications

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

Government Lies And The Press Clause, Helen Norton

Publications

This essay considers a particular universe of potentially dangerous governmental falsehoods: the government's lies and misrepresentations about and to the press.

Government's efforts to regulate private speakers' lies clearly implicate the First Amendment, as many (but not all) of our own lies are protected by the Free Speech Clause. But because the government does not have First Amendment rights of its own when it speaks, the constitutional limits, if any, on the government's own lies are considerably less clear.

In earlier work I have explored in some detail the Free Speech and Due Process Clauses as possible constraints on certain …

Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel

Publications

The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years.

At …

"At Bears Ears We Can Hear The Voices Of Our Ancestors In Every Canyon And On Every Mesa Top": The Creation Of The First Native National Monument, Charles Wilkinson

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No abstract provided.

Data Collection, Ehrs, And Poverty Determinations, Craig Konnoth

Publications

Collecting and deploying poverty-related data is an important starting point for leveraging data regarding social determinants of health in precision medicine. However, we must rethink how we collect and deploy such data. Current modes of collection yield imprecise data that is unsuited for research. Better data can be collected by cross-referencing other sources such as employers and public benefit programs, and by incentivizing and encouraging patients and providers to provide more accurate information. Data thus collected can be used to provide appropriate individual-level clinical and non-clinical care, and to systematically determine what share of social resources healthcare should consume.

Privacy's Double Standards, Scott Skinner-Thompson

Publications

Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort …

Dethroning The Hierarchy Of Authority, Amy J. Griffin

Publications

The use of authority in legal argument is constantly evolving—both the types of information deemed authoritative and their degree of authoritativeness—and that evolution has accelerated in recent years with dramatic changes in access to legal information. In contrast, the uncontroversial and ubiquitous “hierarchy of authority” used as the cornerstone for all legal analysis has remained entirely fixed. This article argues that the use of the traditional hierarchy as the dominant model for legal authority is deeply flawed, impeding a deeper understanding of the use of authority in legal argument. Lawyers, judges, and academics all know this, and yet no scholarly …

The Evolution Of Entrepreneurial Finance: A New Typology, J. Brad Bernthal

Publications

There has been an explosion in new types of startup finance instruments. Whereas twenty years ago preferred stock dominated the field, startup companies and investors now use at least eight different instruments—six of which have only become widely used in the last decade. Legal scholars have yet to reflect upon the proliferation of instrument types in the aggregate. Notably missing is a way to organize instruments into a common framework that highlights their similarities and differences.

This Article makes four contributions. First, it catalogues the variety of startup investment forms. I describe novel instruments, such as revenue-based financing, which remain …

Book Review, Anna Spain Bradley

Publications

No abstract provided.

Its Own Dubious Battle: The Impossible Defense Of An Effective Right To Strike, Ahmed White

Publications

One of the most important statutes ever enacted, the National Labor Relations Act envisaged the right to strike as the centerpiece of a system of labor law whose central aims included dramatically diminishing the pervasive exploitation and steep inequality that are endemic to modern capitalism. These goals have never been more relevant. But they have proved difficult to realize via the labor law, in large part because an effective right to strike has long been elusive, undermined by courts, Congress, the NLRB, and powerful elements of the business community. Recognizing this, labor scholars have made the restoration of the right …

Corporations As Conduits: A Cautionary Note About Regulating Hypotheticals, Douglas M. Spencer

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No abstract provided.

Public Lands, Conservation, And The Possibility Of Justice, Sarah Krakoff

Publications

On December 28, 2016, President Obama issued a proclamation designating the Bears Ears National Monument pursuant to his authority under the Antiquities Act of 1906, which allows the President to create monuments on federal public lands. Bears Ears, which is located in the heart of Utah’s dramatic red rock country, contains a surfeit of ancient Puebloan cliff-dwellings, petroglyphs, pictographs, and archeological artifacts. The area is also famous for its paleontological finds and its desert biodiversity. Like other national monuments, Bears Ears therefore readily meets the statutory objective of preserving “historic and prehistoric structures, and other objects of historic or scientific …

Bloomberg’S Points Of Law: Can They Compete With Headnotes?, Jill Sturgeon

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No abstract provided.

To Sue And Be Sued: Capacity And Immunity Of American Indian Nations, Richard B. Collins

Publications

Can American Indian nations sue and be sued in federal and state courts? Specific issues are whether tribes have corporate capacity to sue, whether a Native group has recognized status as a tribe, and whether and to what extent tribes and their officers have governmental immunity from suit. Tribal capacity to sue is now well established, and federal law has well-defined procedures and rules for tribal recognition. But tribal sovereign immunity is actively disputed.

This Article reviews retained tribal sovereignty in general and summarizes past contests over tribal capacity to sue and their resolution into today’s settled rule. Next is …

Criminal Employment Law, Benjamin Levin

Publications

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton

Publications

Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of …

The Government's Manufacture Of Doubt, Helen Norton

Publications

“The manufacture of doubt” refers to a speaker’s strategic efforts to undermine factual assertions that threaten its self-interest. This strategy was perhaps most famously employed by the tobacco industry in its longstanding campaign to contest mounting medical evidence linking cigarettes to a wide range of health risks. At its best, the government’s speech can counter such efforts and protect the public interest, as exemplified by the Surgeon General’s groundbreaking 1964 report on the dangers of tobacco, a report that challenged the industry’s preferred narrative. But the government’s speech is not always so heroic, and governments themselves sometimes seek to manufacture …

That Was Close! Reward Reporting Of Cybersecurity “Near Misses”, Jonathan Bair, Steven M. Bellovin, Andrew Manley, Blake Reid, Adam Shostak

Publications

Building, deploying, and maintaining systems with sufficient cybersecurity is challenging. Faster improvement would be valuable to society as a whole. Are we doing as much as we can to improve? We examine robust and long-standing systems for learning from near misses in aviation, and propose the creation of a Cyber Safety Reporting System (CSRS).

To support this argument, we examine the liability concerns which inhibit learning, including both civil and regulatory liability. We look to the way in which cybersecurity engineering and science is done today, and propose that a small amount of ‘policy entrepreneurship’ could have substantial positive impact. …

Beyond Brooke Group: Bringing Reality To The Law Of Predatory Pricing, C. Scott Hemphill, Philip J. Weiser

Publications

This Feature offers a roadmap for bringing and deciding predatory pricing cases under the Supreme Court’s restrictive Brooke Group decision. Brooke Group requires a plaintiff to show that the defendant set a price below cost and had a sufficient likelihood of recouping its investment in predation. This framework, which was adopted without any contested presentation of its merits, has endured despite its flaws. Beyond this framework, the Court opined in dicta that predation is implausible.

We identify points of flexibility within the Court’s framework that permit an empirically grounded evaluation of the predation claim. Under the price-cost test, a plaintiff …

Tracking Colorado Legislation, Robert Linz

Publications

No abstract provided.

Arguing With The Building Inspector About Gender-Neutral Bathrooms, Jennifer S. Hendricks

Publications

Conventional interpretations of building codes are among the greatest barriers to building the gender-neutral bathrooms of the future. Focusing on the example of schools, this Essay argues for a reinterpretation of the International Building Code in light of its policy goals: safe, private, and equitable access to public bathrooms. Under this reinterpretation, the Code allows all public bathrooms to be gender-neutral.

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Publications

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …

Thinking Fast And Slow About The Concept Of Materiality, Mark J. Loewenstein

Publications

Determining whether, for securities law purposes, a misrepresentation or omission is material raises interesting questions. The Court of Appeals in SEC v. Texas Gulf Sulphur Co. provided some guidance on materiality, and the U.S. Supreme Court has weighed in several times in the past 50 years. This article first discusses what Texas Gulf Sulphur contributed to the doctrine of materiality, then briefly considers other dimensions of the doctrine, and finally moves to its thesis: The doctrine of materiality should take into account important psychological insights and heuristics that may affect the way that a fact finder decides whether a misrepresentation …

The Disruptive Neuroscience Of Judicial Choice, Anna Spain Bradley

Publications

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, …

Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen

Publications

My intended focus is on the widespread response--in cities, churches, campuses, and corporations that together comprise "sanctuary networks"--to the Trump Administration's Executive Order 13768 Enhancing Public Safety in the Interior of the United States as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump Interior E.O., the focus of the Article shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor.

Celebrating Mundane Conflict, Deborah J. Cantrell

Publications

This Article interrogates the dominant conception of conflict and challenges the narrative of conflict as hard, difficult and painful to engage. The Article reveals two primary framing errors that cause one to misperceive how ubiquitous and ordinary is conflict. The first error is to misperceive conflict as categorical — something either is a conflict or it is not. People make that error as a way of trying to avoid conflict. People falsely hope that there might be a category of “not conflict,” like disagreements, that will be easier to navigate. The second error is to misperceive the world and individuals …

The Myth Of Platform Neutrality, Vivek Krishnamurthy, Anupam Chander

Publications

No abstract provided.