Digital Commons Network^™

Human Masters/Robot Servants: Highly Automated Vehicle Design, Intoxicated Drivers & Vicarious Liability, William H. Widen, Marilyn C. Wolf

Articles

A traditional engineering role is to design a safe product. Safety engineering is an exercise in harm avoidance ex ante. In contrast, liability attribution is an exercise to compensate for loss post hoc — traditionally viewed as a legal matter. We observe that, when a natural person incurs liability for a loss that exceeds insurance coverage, economic ruin can follow. Neither engineering nor law focus on the loss suffered by defendants considering law as a "safety risk." The highly automated vehicle (HAV) design space, however, provides an opportunity to prevent this kind of economic harm from occurring ex ante just …

The Legacy Of Ferguson: Building Worker, Community, And Student Power To Respond To The Carceral State, Donna Coker, Melody Sinckler, Kira Mikes

Articles

The 2014 killing of Michael Brown in Ferguson, Missouri sparked national outrage regarding police violence in Black communities. But as time passed, Ferguson came to symbolize more than another episode of law enforcement violence. A Department of Justice (DOJ) report revealed that Ferguson's city coffers relied on an intentionally extractive criminal legal system that aggressively levied fines and fees in a racially discriminatory manner. As the DOJ findings illustrate, advocates seeking to transform or abolish the criminal legal system must rigorously analyze the political economy of the carceral system in their locale.

We describe a law school course aimed at …

Cultural Cognition And The Thoughtful Judge, Jack H.L. Whiteley

Articles

That judges follow what the law is, and not what they wish it was, is a requirement of the rule of law. At the same time, scholars, lawyers, and judges often say that judges’ values influence their decisions. Connecting these two ideas has generated a conversation about the relationship between law, ideology, and politics.

Recently, part of this conversation has focused on a theory called cultural cognition. The theory offers an account of how people’s values shape how they interpret things without their noticing. People whose values tend toward hierarchy sometimes perceive facts differently than people whose values tend toward …

Tonry’S Blueprint For The Comparative Study Of Sentencing Law And Policy, Kevin R. Reitz

Articles

This essay explores Michael Tonry’s treatment of sentencing law and policy within the U.S. as an inherently comparative project. The essay draws from Tonry’s “early period” in comparative sentencing from the late 1970s to the middle 1990s, when his writing was largely U.S.-centric, focued on quickly changing conditions in dozens of states and the federal system. Tonry classified the several models of “sentencing reform” that were being tried across the country, drew contrasts in the legal architectures of the new systems, collected data and evaluation research for as many states as possible, and treated the reform-active states as “laboratories” whose …

Standardization And Accuracy Of Race And Ethnicity Data: Equity Implications For Medical Ai, Alexandra Tsalidis, Lakshmi Bharadwaj, Francis X. Shen

Articles

The rapid integration of artificial intelligence (AI) into healthcare has raised many concerns about race bias in AI models. Yet, overlooked in this dialogue is the lack of quality control for the accuracy of patient race and ethnicity (r/e) data in electronic health records (EHR). This article critically examines the factors driving inaccurate and unrepresentative r/e datasets. These include conceptual uncertainties about how to categorize races and ethnicity, shortcomings in data collection practices, EHR standards, and the misclassification of patients’ race or ethnicity. To address these challenges, we propose a two-pronged action plan. First, we present a set of best …

Designer Organs: Ethical Genetic Modifications In The Era Of Machine Perfusion, Irina Filz Von Reiterdank, Susan M. Wolf, Raphaela Bento, Insoo Hyun

Articles

Gene therapy is a rapidly developing field, finally yielding clinical benefits. Genetic engineering of organs for transplantation may soon be an option, thanks to convergence with another breakthrough technology, ex vivo machine perfusion (EVMP). EVMP allows access to the functioning organ for genetic manipulation prior to transplant. EVMP has the potential to enhance genetic engineering efficiency, improve graft survival, and reduce posttransplant complications. This will enable genetic modifications with a vast variety of applications, while raising questions on the ethics and regulation of this emerging technology. This review provides an in-depth discussion of current methodologies for delivering genetic vectors to …

Fairness In Contract Law: An Impossibility Theorem?, Francesco Parisi, Brian H. Bix

Articles

Scholars have long debated whether contract law should prioritize maximizing efficiency and social welfare or, instead, prioritize justice, fairness and other deontological values. The debate is partly prescriptive (what should we try to do with contract law rules) and partly conceptual (how should we understand contract law). This article surveys central positions in this debate, distinguishing between the corrective and redistributive functions of contract law and between doing justice between the parties and more systemic effects. It highlights an impossibility theorem that underscores the self-defeating nature of redistributive policies in price-based contractual relationships, using a numerical example and two policy …

Public Perceptions Of Neurotechnologies Used To Target Mood, Memory, And Motor Symptoms, Rémy A. Furrer, Amanda R. Merner, Ian Stevens, Peter Zuk, Theresa Williamson, Francis X. Shen, Gabriel Lázaro-Muñoz

Articles

Public attitudes toward four neurotechnologies for treating three types of brain disorders (mood, motor, and memory) vary on a range of metrics, such as perceived risk, invasiveness, and likelihood of use. In a survey of 1,052 US participants, deep brain stimulation (DBS) was seen as the most invasive and risky among the surveyed methods, involving the greatest perceived change to the person and the least likely to be used personally. Non-surgical options like transcranial magnetic stimulation (TMS) and pills were viewed as more acceptable. Devices targeting motor symptoms were rated as more beneficial and acceptable than those for mood or …

Standardization And Accuracy Of Race And Ethnicity Data: Equity Implications For Medical Ai, Alexandra Tsalidis, Lakshmi Bharadwaj, Francis X. Shen

Articles

Abstract

The rapid integration of artificial intelligence (AI) into healthcare has raised many concerns about race bias in AI models. Yet, overlooked in this dialogue is the lack of quality control for the accuracy of patient race and ethnicity (r/e) data in electronic health records (EHR). This article critically examines the factors driving inaccurate and unrepresentative r/e datasets. These include conceptual uncertainties about how to categorize races and ethnicity, shortcomings in data collection practices, EHR standards, and the misclassification of patients’ race or ethnicity. To address these challenges, we propose a two-pronged action plan. First, we present a set of …

By Way Of Conclusion: Making Sense Of Fallacies, Claire Hill

Articles

As noted in the Introduction to this volume, our collective goal is to examine some of the key misconceptions and unquestioned assumptions – which we refer to as ‘fallacies’ – that guide, and often misguide, developments in modern corporate law and financial regulation. These fallacies are embedded and instantiated in scholarship, law, public policy and public opinion. Their intellectual and practical impact is considerable, but it is largely hidden. Critically, these fallacies too often frame legal and policy debates, strongly influencing and even determining policy choices. While our volume does not (and indeed cannot) provide an exhaustive analysis of this …

Tribes And Temperament: Two Underappreciated Determinants Of Market Actor Behavior, Motivations And Beliefs, Claire A. Hill

Articles

This chapter, written for a volume on Hidden Fallacies in Corporate Law and Financial Regulation, argues that markets and market actors can be better understood by taking into account some neglected determinants of behavior, motivations and beliefs -- and ultimately, by embracing an expanded view of rationality.

The neglected determinants are tribes, by which I mean communities with their own norms, rituals, and institutions, and temperament, which I use in its colloquial sense. Deal makers, for instance, can be said to have a community, with norms as to, among other things, ‘what’s market.” Knowing and abiding by the norms conveys …

Kill 1l, Prentiss Cox

Articles

No abstract provided.

Beyond The Editorial Analogy: First Amendment Protections For Platform Content Moderation After Moddy V. Netchoice, Alan Rozenshtein, Kyle T. Langvardt

Articles

This Article examines the Supreme Court’s 2024 decision in Moody v. NetChoice and its implications for social media platform regulation. In Moody, which addressed state laws requiring platforms to host certain content, the Court issued a complex set of opinions that left the scope of platforms’ First Amendment rights uncertain. On the procedural question of how such laws may be challenged, the Court provided a clear holding: it rejected facial challenges to broad content-moderation laws, instead requiring case-by-case analysis of how specific regulations affect different platform features—a shift that undermines the tech industry’s longstanding litigation strategy. But on the …

Women And Corporate Governance: Time Horizons And Stakeholder Analysis, June R. Carbone

Articles

This Article will build on my earlier work with Naomi Cahn and Nancy Levit to use the fate of women in individual companies to shine new light on the temporal orientations underlying corporate and labor and employment law and provide a basis for a new foundation for a combined approach. This Article will first explain why the shift to shareholder primacy, and the accompanying emphasis on short-term results tied to high stakes bonus pay, disproportionately short-changes female employees, whether in management or in line positions. The Article will maintain that it is not the shift to shareholder primacy in isolation, …

Anticipating A New Modern Skidmore Standard, Kristin E. Hickman

Articles

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference but blessed giving agency interpretations of statutes “respect” or “weight” under the Skidmore standard during judicial review. Yet, the Court in Loper Bright offered only a few limited references regarding Skidmore as a doctrine, with little guidance regarding what judicial review under Skidmore ought to look like. The Court might not have felt the need to elaborate, as courts have been applying Skidmore for eighty years. As applied, however, Skidmore is a more complicated doctrine than many people realize. An extensive Skidmore jurisprudence exists, with nuances that at …

Legal Scholarship Through The Lens Of Generative Ai, Darkly, Andrew Martineau, Loren Turner

Articles

Unlike traditional search engines limited to connecting users to original source content, generative AI systems produce new, ad-hoc sources of information derived primarily from patterns in their training data and information fed into the system as context. As such, generative AI systems can play a mediating role between users and information sources, especially when these systems are integrated into databases and web search engines. This article examines how GPT-4 (ChatGPT) interacts with law review articles, revealing its unreliability in summarizing them independently but notable accuracy when provided with full-text input. Retrieval augmented generation (RAG) offers a potential solution for improving …

Scientific And Technical Expertise After Loper Bright, Sapna Kumar

Articles

Courts once trusted federal agencies for their expertise in administering complex statutory schemes, particularly regarding science and technology. Unlike judges, agency officials can narrowly focus on a specific area of law and have access to experts to inform their decision making. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court created a presumption that, absent language to the contrary, Congress intends for agencies to interpret statutory ambiguities. Chevron allowed agencies to utilize their varied forms of expertise while ensuring oversight from generalist judges. This court–agency partnership abruptly ended, however, in Loper Bright Enterprises v. Raimondo. The Court …

Unbecoming Public Benefit Corporations, Brett H. Mcdonnell

Articles

Becoming a Public Benefit Corporation by Michael B. Dorff1 is a strong, useful book, clear and well-written. Addressed in good part to entrepreneurs and investors, its sub-title encapsulates much of its core message to them: "Express Your Values, Energize Stakeholders, Make the World a Better Place." I see the book as making two core points. First, benefit corporations are a reasonable legal form for entrepreneurs and investors to adopt. Second, this new legal form may help companies do a better job of behaving in a socially responsible way, though this point is less certain than the first, and benefit corporations …

Abuse Of Power In The Workplace: The New Gender Discrimination Claims, June R. Carbone, Nancy Levit, Naomi Cahn

Articles

This article draws on our book, Fair Shake: Women and the Fight to Build a Just Economy, to show how the fight for gender equality has changed. Antidiscrimination laws took hold during an era of relative economic equality; the fight for gender equality was a fight to gain access to the rights of white men. Today’s economy creates much greater inequality and reserves the greatest rewards for a much smaller group, again predominately white and male, who can defy the rules and get away with it. In such contexts, anti-discrimination law premised on a fight for equality can provide only …

Phyllis Schlafly And How Forgetting Women's Struggles For Equality Perpetuates Inequality, Jill Elaine Hasday

Articles

In a nation whose Constitution purports to speak for “We the People,” too many of the stories that powerful Americans tell about law and society include only We the Men. A long line of judges, politicians, and other influential voices have ignored women’s struggles for equality or distorted them beyond recognition by wildly exaggerating American progress. Even as sexism continues to warp constitutional law, political decisionmaking, and everyday life, prominent Americans have spent more than a century proclaiming that the United States has already left sex discrimination behind.

This symposium essay draws on my book, We the Men, to …

Applying The Regulatory Report Card To Tax Regulations, Kristin E. Hickman, Bridget C.E. Dooling

Articles

An invited contribution to an issue of the Journal of Benefit–Cost Analysis honoring the work of the late Dr. Jerry Ellig, this essay recognizes and draws upon the Regulatory Report Card methodology developed by Ellig and Dr. Patrick McLaughlin to evaluate the quality of regulatory impact analysis published by federal government agencies in conjunction with notice-and-comment rulemaking. The essay anticipates a forthcoming study of changes to tax regulatory practices as a result of a 2018 Memorandum of Agreement between the Treasury Department and the Office of Information and Regulatory Affairs – a study the authors discussed and hoped to conduct …

The Necessary And Proper Clause And The Law Of Administration, Ilan Wurman

Articles

The Necessary and Proper Clause authorizes Congress to establish and shape the administrative state. But the Necessary and Proper Clause is rarely cited in the relevant Supreme Court opinions or litigant briefs. This is a mistake. In several of the Court’s recent prominent cases, the Necessary and Proper Clause’s meaning and effect could have been dispositive. This Article makes that case. It demonstrates that there are plausible arguments against the Supreme Court’s removal and Seventh Amendment jurisprudence as they relate to public administration, though this Article takes no strong position on those arguments. The Court recently and correctly held, on …

Ai Assistance In Legal Analysis: An Empirical Study, Jonathan H. Choi, Daniel Benjamin Schwarcz

Articles

No abstract provided.

Liability, Property, And Inalienability Rules In Employee Data Regulation, Matthew T. Bodie

Articles

Legal protections for workers’ data have usually taken the form of privacy protections designed to deter data processing that is excessive or invasive. Such protections generally fall into the category of liability rules, under which rights can be infringed as long as compensation is provided for the violation. As Guido Calabresi and A. Douglas Melamed have described in “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” liability rules are contrasted with either property rules that prevent the involuntary transfer of rights or inalienability rules that prohibit rights transfers altogether. This article explores how property rules and inalienability …

Free Speech And Incorporation: A Reassessment, Ilan Wurman

Articles

Many of the Supreme Court’s most controversial free speech decisions involve state laws. In Gitlow v. New York, the Court assumed that the First Amendment’s guarantee of freedom of speech applied directly against the states via the Fourteenth Amendment, a doctrine today referred to as incorporation. Yet there is reason to doubt incorporation is correct as a matter of the original meaning of the Fourteenth Amendment. Indeed, much of the historical evidence involves debates over the freedom of speech, but none of the historical actors seemed to think the First Amendment applied against the states. This short essay evaluates the …

Annual Survey Of Georgia Law: Legal Ethics, Patrick Longan

Articles

This Survey covers the period from June 1, 2024–May 31, 2025.1 The Article discusses developments with respect to lawyer discipline, bar admission and reinstatement, malpractice, ineffective assistance of counsel, disqualification of counsel, judicial misconduct and recusal, attorney’s fees and liens, contempt and other sanctions, unauthorized practice of law, attorney-client privilege, prosecutorial misconduct, amendments to the Georgia Rules of Professional Conduct, advisory opinions, one miscellaneous matter, and potential reforms to the delivery of legal services.

The Dangers Of Denying Prosecutorial Independence: Wrongful Convictions, Official Misconduct, And Public Corruption, Meagan R. Hurley

Articles

In recent years, desires to limit prosecutorial discretion have become the focus of a national dialogue on the authority of the elected officials, allegations of their misconduct, and the need for stronger accountability measures. Legislatures across the country have considered a slew of bills aimed at diminishing prosecutorial power by prohibiting “progressive” office policies, creating oversight commissions, and promulgating simplified processes to recall or remove prosecutors entirely. In various jurisdictions, those proposals are now coming to fruition. While heightened scrutiny for some of the legal system’s most powerful leaders may seem attractive, an analysis of national trends aimed at curtailing …

Substance And Process In Corporate Law: Theory And History, William Wilson Bratton, Simone M. Sepe

Articles

Over the last half-century, corporate law has moved from substance to process as the Delaware courts have avoided direct review of the merits of transactions, substituting review of the processes that brought the transactions about. This is a familiar observation, perhaps a truism. But it is a truism that is undertheorized. This article addresses the theory gap, suggesting a structural reason for the trend. Simply, the courts avoid reviewing substance because they lack a theory of value. The theoretical void disables direct evaluation of transactional merits. Process review avoids this problem. Processes and their operation are the lawyer's stock in …

Lawyer Ceos, M. Henderson, Irena Hutton, Danling Jiang, Matthew Pierson

Articles

No abstract provided.

Colonial Experiences And Contemporary Laws, Adam Chilton, Yun-Chien Chang, Nuno Garoupa, Mila Versteeg

Articles

No abstract provided.