Digital Commons Network^™

The Promise & Perils Of Open Finance, Dan Awrey, Joshua Macey

Articles

We are at the dawn of a new age of Open Finance. Open Finance seeks to harness the potential of new platform technology to enhance customer data access, sharing, portability, and interoperability—thereby leveling the informational playing field and fostering greater competition between incumbent financial institutions and a new breed of financial technology (fintech) disruptors. According to its proponents, this competition will yield a radical restructuring of the financial services industry, offering more and better choices for consumers looking to make fast payments, borrow money, invest their savings, manage household budgets, and compare financial products and services. The promise of Open …

Strategic Subdelegation, Brian D. Feinstein, Jennifer Nou

Articles

Appointed leaders of administrative agencies routinely record subdelegations of governmental authority to civil servants. That appointees willingly cede authority in this way presents a puzzle, at least at first glance: Why do these appointees assign their power to civil servants insulated by merit protection laws, that is, to employees over whom they have limited control? This article develops and tests a theory to explain this behavior. Using original data on appointee-to-civil servant delegations and a measure of the ideological distance between these two groups of actors, we show that appointees are more willing to vest power in civil servants when …

Personal Jurisdiction’S Moment Of Opportunity: A Reform Blueprint For Originalists And Nonoriginalists, Allan Erbsen

Articles

Personal jurisdiction doctrine is broken, but there is a moment of opportunity to repair it. The Supreme Court has struggled for decades to explain why constitutional law sometimes prevents states from providing local remedies for local injuries. Basic questions lack satisfying answers. Should doctrine emphasize liberty or federalism? Is the Due Process Clause the proper foundation for limits on state power or are other clauses more relevant? What harms should limits on state power prevent and what harms should limits avoid creating? Decisions addressing these questions rely on jargon rather than a coherent account of how to allocate jurisdictional power …

Moderating The Fediverse: Content Moderation On Distributed Social Media, Alan Rozenshtein

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No abstract provided.

The Partial Success Of Judge Frankel’S Sentencing Commission, Fifty Years On, Richard Frase

Articles

Judge Marvin Frankel’s writings in the early 1970s inspired the creation of sentencing guidelines commissions and guidelines rules in twenty-two state and federal jurisdictions. By the late 1970s Frankel’s tentative proposals had been substantially filled out by other writers and reformers; the two most common guidelines models were adopted by Minnesota (1980) and Pennsylvania (1982). The federal guidelines (1987) have been justly criticized, but most state guidelines have been accepted by judges and other practitioners and observers. This sentencing reform model has also been endorsed by the American Bar Association and the American Law Institute. This essay tells the story …

State Responsibility For Human Rights Violations Perpetrated In The Name Of International Counter-Terrorism Financing Obligations, Fionnuala Ní Aoláin

Articles

This Essay responds to the increasing adoption by States across continents of repressive, over-reaching laws, regulations, and policies aimed at countering the financing of terrorism. It documents the immense international pressure to adopt counter-terrorism financing measures, coupled with the seeming marginalization of concurrent international human rights law obligations. The Essay first sets out the applicable legal framework and rapid normative developments in international counter-terrorism financing law. Second, the Essay provides a snapshot of existing allegations of human rights violations committed in the name of international counter-terrorism financing obligations, including judicial harassment and undue surveillance of human rights defenders and civil …

Textualism And The Administrative Procedure Act, Kristin Hickman

Articles

In recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine. Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking. We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism’s merits. We also will not try to resolve all the many disagreements about textualism’s variations or the APA’s meaning. …

Crimmigrating Narratives: Examining Third-Party Observations Of Us Detained Immigration Court, Linus Chan

Articles

Examining what we call “crimmigrating narratives,” we show that US immigration court criminalizes non-citizens, cements forms of social control, and dispenses punishment in a non-punitive legal setting. Building on theories of crimmigration and a sociology of narrative, we code, categorize, and describe third-party observations of detained immigration court hearings conducted in Fort Snelling, Minnesota, from July 2018 to June 2019. We identify and investigate structural factors of three key crimmigrating narratives in the courtroom: one based on threats (stories of the non-citizen’s criminal history and perceived danger to society), a second involving deservingness (stories of the non-citizen’s social ties, hardship, …

How Privilege Undermines Cybersecurity, Daniel Schwarcz

Articles

In recent years, cyberattacks have cost firms countless billions of dollars, undermined consumer privacy, distorted world geopolitics, and even resulted in death and bodily harm. Rapidly accelerating cyberattacks have not, however, been bad news for many lawyers. On the contrary, lawyers that specialize in coordinating all elements of victims’ incident-response efforts are increasingly in demand. Lawyers’ dominant role in cyber-incident response is driven in part by their purported capacity to ensure that information produced during the breach response process remains confidential, particularly in any subsequent lawsuit. By interposing themselves between their clients and any third party consultants involved in incident …

Bureaucratic Autonomy And The Policymaking Capacity Of United States Agencies, 1998–2021, Nicholas Bednar

Articles

Despite a renewed interest in the health of the US administrative state, the absence of meaningful time-series measures of bureaucratic capacity hinders the testing of core theories of bureaucratic and executive politics. Using over 190 million personnel records, I estimate 5590 yearly policymaking-capacity scores for 261 unique agencies from 1998 to 2021. These measures provide an invaluable tool as either an independent or dependent variable in studies of administrative policymaking. To illustrate the value of these measures, I test longstanding theories about the relationship between bureaucratic autonomy and capacity. In contrast with emerging survey research, this study demonstrates that agencies …

Labor Relations At The Woke Corporation, Matthew Bodie

Articles

This symposium contribution will consider the role of labor relations within the so-called “woke” corporation. Part I will explore the turn in corporate behavior and corporate law theory towards an attention to stakeholders and a larger corporate purpose. Part II examines how this shift in corporate sentiment has not changed the traditional hostility towards the choice of a company’s own workers to unionize. Part III considers how to address this disjunction, both through pressure from the workers themselves and through changes in corporate law, corporate theory, and labor and employment law.

Mitigating Citation Errors In The Interlibrary Loan System, Scott Dewey, David Zopfi-Jordan

Articles

Journal articles from most academic disciplines have long shown high rates of citation errors. American law reviews, with their careful cite-checking, are a rare exception to the overall rule. Incorrect citations are especially costly and problematic for interlibrary loan librarians. This article offers practical suggestions to address the problem.

Theorizing International Business In Africa: A Roadmap, Paul Vaaler

Articles

International business in Africa is complicated by colonial history, late internationalization, and the growing interest of various foreign powers in Africa and its resources. We share key indicators about African countries and offer a conceptual map to help make sense of this complex scholarly terrain. We distinguish between three types of multinational enterprises (MNEs) operating in sub-Saharan Africa: Advanced MNEs (from high-income previous colonial and non-colonial countries), Emerging MNEs (from middle-income countries both inside and outside the region) and Nascent MNEs (from low-income African countries). We show how these distinct types of MNEs provide different development opportunities, how they engage …

Ai Tools For Lawyers: A Practical Guide, Daniel Schwarcz

Articles

This Article provides practical and specific guidance on how to effectively use AI large language models (LLMs), like GPT-4, Bing Chat, and Bard, in legal research and writing. Focusing on GPT-4—the most advanced LLM that is widely available at the time of this writing—it emphasizes that lawyers can use traditional legal skills to refine and verify LLM legal analysis. In the process, lawyers and law students can effectively turn freely available LLMs into highly productive personal legal assistants.

Deepfake 2024: Will Citizens United And Artificial Intelligence Together Destroy Representative Democracy?, Richard Painter

Articles

Deepfakes – computer generated counterfeit videos and audios of people saying and doing things they never said or did – are proliferating on social media and increasingly will be used to target candidates in elections. Citizens United v. FEC, and cases decided in its aftermath, have opened the floodgates of dark money funded electioneering communications, and some of this money will be spent on deepfakes made and disseminated by persons unknown. Some deepfakes may originate outside the United States, as they become a new instrument for foreign interference in U.S. elections.

The Federal Election Commission (FEC) has been asked by …

Independence Reconceived, Claire A. Hill, Yaron Nili

Articles

What makes a director independent? Scholars, regulators, and investors have grappled for decades with the fleeting notion of director independence. Originally conceived as guardians of shareholder interests that could safeguard a corporate board’s ability to check management’s power, independent directors have become a marquee feature of modern corporate governance. But do the corporate actions of directors that are considered “independent” under current standards comport with what we think independence requires? In many cases, the answer would seem to be “no.” From a lack of observable financial impact to the unabated flow of corporate scandals, independent directors seem to keep failing …

The Court’S Morality Play: The Punishment Lens, Sex, And Abortion, June Carbone, Naomi Cahn

Articles

This Article uncovers the hidden framework for the Supreme Court’s approach to public values, a framework that has shaped—and will continue to shape—the abortion debate. The Court has historically used a “punishment lens” to allow the evolution of moral expression in the public square, without enmeshing the Court itself in the underlying values debate. The punishment lens allows a court to redirect attention by focusing on the penalty rather than the potentially inflammatory subject for which the penalty is being imposed, regardless of whether the subject is contraception, abortion, Medicaid expansion, or pretrial detention.

This Article is unique in discussing …

The Value Of Understandable Consumer Insurance Contracts, Daniel Schwarcz, Kyle Logue, Brenda J. Cude

Articles

Insurance consumers, the intermediaries who serve them, and the regulators who protect them all would benefit from understandable consumer insurance contracts. This article outlines the benefits of understandable insurance contracts, identifies the regulatory tools that are or can be used to ensure such comprehensibility, and reviews the existing literature about how well consumers comprehend their insurance policies within the context of personal lines insurance in the U.S. The article concludes by proposing an empirical research strategy to study consumers’ understanding of the terms of homeowners insurance policies and, even when they have not read their policies, their expectations about coverage.

Process As Suffering: How U.S. Immigration Court Process And Culture Prevent Substantive Justice, Christopher Levesque, Kimberly Horner, Linus Chan

Articles

In this article, we argue that there is a form of double punishment unique to the immigration court system that attorneys and their noncitizen clients must navigate throughout changing political contexts. The first form of punishment is the court process during removal proceedings, and the second form of punishment is removal from the United States. Our interviews with removal defense attorneys in the U.S. Upper Midwest illustrate how these punishments intersect with one another and push attorneys to adopt strategies that may not lead to winning a case, but intend to protect their clients by losing as slowly as possible. …

Rethinking Disclosure Obligations In Securities Regulations: Why Less Is (Much) More, Richard Epstein

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No abstract provided.

Chefs’ Perspectives Of Failures In Foodservice Kitchens, Part 2: A Phenomenological Exploration Of The Consequences And Handling Of Food Production Failure, Mohamed Fawzi Afifi, J.J. Healy, Mairtin Mac Con Iomaire

Articles

This paper explores the consequences of food production failure (FPF) and its handling in foodservice operations from the perspective of chefs. A phenomenological epistemology and qualitative methodology were followed. Fifteen semi-structured interviews with chefs working in independent restaurants and hotels were carried out using purposive sampling, and employing an emic posture. Interviews were transcribed verbatim, read repetitively, and coded. Thematic analysis yielded themes on the consequences of FPF, on operation and staff, handling failures with kitchen staff, front of the house (FOH), and management. The findings revealed that the major ramification of FPF is financial through food loss. Representing both …

Fda's Revolving Door: Reckoning And Reform, Laura Karas

Articles

Recent controversy over the FDA's approval of the Alzheimer's therapy Aduhelm (aducanumab) and the Duchenne muscular dystrophy therapy Exondys 51 (eteplirsen) called into question the impartiality and independence of high-level FDA regulators. Atypical associations between FDA regulators and pharmaceutical company sponsors, in addition to fierce internal disputes over the adequacy of the evidence, elicited criticism and triggered concern about potential undue influence at the FDA. The revolving door is one persistent source of undue influence that overshadows the discharge of FDA regulators' duties to the public. Exit from government to private-sector employment via the "revolving door" is a frequent occurrence …

Exploiting Multimode Antennas For Mimo And Aoa Estimation In Size-Constrained Iot Devices, Abel Zandamela, Alessandro Chiumento Alessandro Chiumento, Alessandro Chiumento, Nicola Marchetti, Max Ammann, Adam Narbudowicz

Articles

This work proposes compact multimode Multiple-Input–Multiple-Output (MIMO) antennas for Angle of Arrival (AoA) estimation in miniaturized Internet of Things (IoT) systems. The method excites different orthogonal radiating modes (TM 21 , TM 02 , and TM 31 modes) for beamforming capabilities, and the AoA performance is investigated using the Multiple Signal Classification (MUSIC) algorithm, executed using numerical and experimental data. The technique is tested at 2.238GHz , while using an antenna diameter

A Label-Free Fiber Ring Laser Biosensor For Ultrahigh Sensitivity Detection Of Salmonella Typhimurium, Shi Qiu, Bin Liu, Yuankui Leng, Edward Fox, Xian Zhou, Binbin Yan, Xinzhu Sang, Long Long, Xingdao He, Jinhui Yuan, Gerald Farrell, Qiang Wu

Articles

The rapid detection of low concentrations of Salmonella Typhimurium (S. Typhimurium) is an essential preventive measure for food safety and prevention of foodborne illness. The study presented in this paper addresses this critical issue by proposing a single mode-tapered seven core-single mode (STSS) fiber ring laser (FRL) biosensor for S. Typhimurium detection. The experimental results show that the specific detection time of S. Typhimurium is less than 20 min and the wavelength shift can achieve -0.906 nm for an S. Typhimurium solution (10 cells/mL). Furthermore, at a lower concentration of 1 cell/mL applied to the biosensor, a result of -0.183 …

A Simple Microcalorimetry System To Determine The Adsorption Behaviour Of Acids In Large Adhesive Bond Gaps Using Base-Initiated Solution Polymerisation Of Ethyl-2-Cyanoacrylate, Kevin Raheem, John Cassidy, Tony Betts, Bernard Ryan

Articles

This work presents the use of a simple microcalorimetry cyanoacrylate (CA) polymerisation system for investigating aspects of CA adhesive cure through gap and adsorption of adhesive acid stabiliser by a range of metal and glass substrates. It is well established that strong acid induced inhibition periods (IPs) are almost directly proportional to the acid concentration in weak base initiated polymerisations of alkyl CAs in tetrahydrofuran (THF). Ethyl cyanoacrylate (ECA) polymerisation IP measurements were used to determine the adsorption of methanesulfonic acid (MSA) in THF or ECA solutions by a range of metal, glass and polypropylene (PP) lap shears surfaces. The …

Fair Value As Process: A Retrospective Reconsideration Of Delaware Appraisal, William Wilson Bratton

Articles

This Article reconsiders the jurisprudence of fair value under Delaware's appraisal remedy, placing recent cases in historical perspective and offering a novel account. Its central observation is that appraisal has developed into a process jurisprudence rather than jurisprudence devoted to the articulation of an entitlement. As such it defies expectations and excites the wrath of academic commentators looking for a more conventional, rights-based evolution. There is a nominal entitlement: the cases at all times announce that shareholder dissenters may pursue going concern value (as opposed to third party sale value) as the measure of fair value. But the Delaware courts …

Trade Policing, Kathleen Claussen

Articles

At the core of U.S. economic governance, there is a novel and under-noticed phenomenon that challenges longstanding frameworks of international law and corporate compliance. This practice, which this Article terms the new "trade policing," has extraordinary reach. Recent regulatory makeovers and pathbreaking statutes empower our trade agencies to target, for the first time, companies, rather than foreign governments, as used to be their purview. Trade police now pursue companies wherever they may be in the world, not just for violating U.S. law but also for violating foreign law in areas as diverse as labor rights and environmental protections. Such a …

Cinnamon P. Carlarne, Albany Law School's Nineteenth President And Dean, Garry W. Jenkins, Katrina Fischer Kuh, Jonathan Rosenbloom, Marc Roark, Jessica Owley, Robin Kundis Craig, Keith H. Hirokawa

Articles

No abstract provided.

Mobilizable Labor Law, Scott L. Cummings, Andrew Elmore

Articles

In the history of new labor localism, city-level living wage ordinances emerging in the 1990s with Los Angeles leading the way have generally been understood as a second-best, limited antipoverty device designed to raise wage floors, with only indirect effects on organized labor. Drawing upon original archival materials, this Article offers an alternative reading of the history of the living wage in Los Angeles, showing how it was designed and operationalized as a proactive tool to rebuild union density and reshape city politics. Doing so makes four key contributions. First, the Article theorizes and empirically examines the living wage as …

Brokered Abuse, Thomas E. Kadri

Articles

No abstract provided.