Digital Commons Network^™

The Right To Fail, Alexander Boni-Saenz

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In 2013, the Department of Justice entered into a consent decree with the state of New York concerning the lives of 4,000 people with mental illness who had been segregated into group homes in the state. These group homes were overcrowded and dangerous, and New York agreed to move all but the most severely mentally ill people into supportive housing, if they desired it. This outcome was seen as vindicating the dignity of risk, a foundational value of disability rights scholarship and politics. This principle holds that it is normatively desirable for individuals to be able to make their own …

Scotus House: Can A Supreme Court Ethics Lawyer And Inspector General Help Get This Fraternity Under Control?, Richard Painter

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Today, the United States Supreme Court is immersed in an ethics crisis of unprecedented proportions. Public confidence in the Court is at an all-time low and Congress is considering action. The Court is less likely to police itself than it was over fifty years ago when Justice Abraham Fortas resigned over a scandal that was probably less serious than that facing at least one justice today. This article discusses the Court’s recent scandals and explains multiple factors that make the Court prone to ethics lapses, perhaps more so than the other two branches of government. This Article then proposes that …

Chevron On The Eve Of Loper Bright, Nicholas Bednar

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Chevron is dead. What does this mean for judicial review of agency interpretations of statutes in the lower courts? Perhaps not much. Using new data of circuit court decisions from 2012 and 2022, this Essay examines how lower courts changed their decision-making as the Supreme Court became more skeptical of Chevron deference. This Essay finds that---contrary to the assertion of some justices---circuit courts had not stopped applying Chevron in the lead up to Loper Bright. Moreover, courts agreed with agency interpretations of statutes at similar rates in both 2012 and 2022. Nevertheless, the data shows that the Supreme Court's …

What Should Caremark Encompass?, Claire A. Hill, Zohreh Zakiani

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Under In re Caremark Int’l Inc. Derivative Litig., decided in 1996, directors are required to oversee corporate compliance and can be liable for breaching their fiduciary duties if their oversight efforts do not suffice. Since it was decided, Caremark has been very influential, notwithstanding its high bar to liability. Notably, its influence far exceeds the actual probability that directors would be found liable under the doctrine. Instead, much of Caremark’s force is “soft,” through extra-legal mechanisms such as norms and pressures from various constituencies. Caremark clearly covers oversight for violations of law or regulation. But what, beyond those two things, …

Redefining Public Benefits, Naomi Cahn, June R. Carbone

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This Article considers the interaction between marriage, households, and public welfare-type benefits. In light of constant cultural and media attention to “the two-parent privilege,” the article argues that the very purpose of public benefits in the modern era is up for redefinition. The information age, much like the industrial revolution before it, has remade the preconditions for entry into the middle class and contributed to new middle-class family strategies geared to the changing labor market realities. This new era, which has increased income instability and employment insecurity, has increased economic inequality and eroded what were once secure pathways into middle-class …

Supporting Educators To Stimulate Engineering Students' Lifelong Learning Competencies & Personal Development Process, Lynn Van Den Broeck, Rani Dujardin, Sofie Craps, Una Beagon, Aimee Byrne, Caitriona Depaor, Johanna Naukkarinen

Articles

This paper explores the possibilities to develop students' lifelong learning (LLL) competencies via supporting their personal development process (PDP) in engineering education. Despite the recognized importance of LLL, its embedment in learning outcomes remains limited. A survey revealed that both engineering students and educators value LLL competencies, but perceive them to be taught and evaluated only to a limited extent. This paper introduces a PDP model to support educators in fostering students' LLL competencies. The model, developed through literature review and educators' input, includes (1) a matrix with various interventions, such as e-portfolios, reflective writing, and student-centred teaching, categorised by …

Access To Justice: A Roadmap To Creating And Launching Consumer Bankruptcy Experiential Programs In Law Schools, Ishaq Kundawala

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It is increasingly difficult for people who need consumer bankruptcy relief to access it. Ironically, many of the people who most need it cannot afford it, and oftentimes they come from underserved communities. Large-scale solutions to this access to consumer bankruptcy problem have been discussed, and even proposed, but not yet implemented. While law schools cannot solve the access problem without congressional intervention, they can, at least, take steps to improve the status quo. One way law schools can address this problem is to create experiential programs focusing on consumer bankruptcy.

These types of programs offer a dual benefit. They …

Reconciling Riverside Bayview Homes, Sackett, And County Of Maui, Stephen Johnson

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Near the end of the 2022 term, the Supreme Court issued its decision in Sackett v. EPA. The case has been described as "the most important Clean Water Act case the Court has ever decided, and ... probably ... one of the most impactful environmental decisions in the Court's history."  For the fourth time, the Court interpreted the meaning of the term "navigable waters" in the Clean Water Act (CWA), and the Sackett Court narrowed the interpretation of the term in a manner that critics claim will eliminate federal protection for more than 50% of the wetlands in the United …

The Doj And Ftc's Misguided Attack On Mergers, Richard Epstein

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This Article reviews two recent joint statements by the DOJ and FTC. The first was their request for information on their proposals to “strengthen” the antitrust laws on mergers. The second was the July 2023 release of new draft guidelines which were subject to many comments, often critical of the new regime. The difficulties with both documents start with the initial premise of their inquiries, which falsely posit that any “improvement” of the antitrust laws requires imposing new sanctions on private activities—when in many cases a relaxation of current restrictions may be best. But both agencies write as if the …

Shadows Or Forgeries? Explaining Legal Normativity, Alma Diamond

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No abstract provided.

Relentless As Entrenchment, Jonathan Masur

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No abstract provided.

The Additionality Double Standard, James Salzman, David Weisbach

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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 …

Historical Analogy And The Role Morality Of Reason-Giving, Darrell Miller

Articles

The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen.

The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of …

Are They All Textualists Now?, Austin Peters

Articles

Recent developments at the U.S. Supreme Court have rekindled debates over textualism. Missing from the conversation is a discussion of the courts that decide the vast majority of statutory interpretation cases in the United States—state courts. This Article uses supervised machine learning to conduct the first-ever empirical study of the statutory interpretation methods used by state supreme courts. In total, this study analyzes over 44,000 opinions from all fifty states from 1980 to 2019.

This Article establishes several key descriptive findings. First, since the 1980s, textualism has risen rapidly in state supreme court opinions. Second, this rise is primarily attributable …

Amendments To The Case-Zablocki Act Concerning Reporting And Publication Of International Agreements And Related Regulations (U.S.), Curtis Bradley

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No abstract provided.

Social Rights Scapegoating, Adam Chilton, Cristián Eyzaguirre, Mila Versteeg

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No abstract provided.

The Trouble With Classifications, Aziz Huq

Articles

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests …

Bankruptcy By Another Name, Anthony Casey, Joshua Macey

Articles

In a recent essay, Abbe R. Gluck, Elizabeth Chamblee Burch, and Adam S. Zimmerman object to the increasing use of bankruptcy to resolve mass-tort claims. They and others are concerned that bankruptcy reduces plaintiff voice, impedes the development of state law remedies, and limits discovery that can drive state and federal regulatory interventions. This Response addresses these critiques. Contrary to popular descriptions of the bankruptcy system, bankruptcy courts do not simply aim to maximize economic efficiency and financial recoveries. Bankruptcy includes numerous procedures, including robust disclosure, bellwether trials, future-claims representatives, and voting, to ensure a fair process and promote noneconomic …

Secrecy By Stipulation, Nora Freeman, David Freeman, Jonah Gelbach, Austin Peters, Aaron Schaffer-Neitz

Articles

GM Ignition Switch. Dalkon Shield. Oxycontin. For decades, protective orders—court orders that require parties to maintain the confidentiality of information unearthed during discovery—have hid deadly defects and pervasive abuse from the public, perpetuating unnecessary harm.

But how worrisome are these protective orders, really? Under Rule 26(c)’s plain language, protective orders are to be granted only upon a showing of “good cause.” Doesn’t that adequately cabin the orders’ entry? Prominent judges and scholars have long insisted it does, and that, under Rule 26(c), the day-to-day grant of protective orders is careful, not cavalier. Critics disagree. They charge that parties frequently agree …

Imputing Unreported Hate Crimes Using Google Search Data, Aziz Huq, Dhammika Dharmapala

Articles

U.S. law requires the Attorney General to collect data on hate crime victimization from states and municipalities, but states and localities are under no obligation to cooperate by gathering or sharing information. Data production hence varies considerably across jurisdictions. This paper addresses the ensuing “missing data” problem by imputing unreported hate crimes using Google search rates for a racial epithet. It uses two alternative benchmarks for which jurisdictions more effectively collect hate crime data: all states that were not part of the erstwhile Confederacy, and those states with statutory provisions relating to hate crime reporting. We regress rates of racially-motivated …

Brown V. Board Of Education Why Do We Need Constitutional Rights?, Geoffrey Stone

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No abstract provided.

Free Speech On The Internet: The Crisis Of Epistemic Authority, Brian Leiter

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No abstract provided.

Redistribution With Political Constraints: Legal Rules Compared To Taxes And Transfers, David Weisbach

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No abstract provided.

Machine-Learning Human Rights, Han-Wei Ho, Patrick Chung-Chia, Nuno Garoupa, Martin Wells, Yun-Chien Chang, Tom Ginsburg

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Utilizing a comprehensive panel dataset spanning from 1900 to 2020, this study introduces an innovative methodology for the analysis and categorization of legal documents, specifically national constitutions. Contrary to the predominant reliance on unsupervised methods within the field, this research incorporates a supervised machine-learning approach, notably the SEMMS method, alongside traditional unsupervised algorithms. This dual approach facilitates a nuanced analysis of the human rights provisions contained within national constitutions, resulting in the identification of both traditional and novel constitutional groupings. Broadly speaking, the more traditional common law-civil law divide does not seem particularly relevant in this context. Furthermore, our methodology …

Untangling Unreliable Citations, Margie Alsbrook

Articles

Citations are the vernacular that the legal profession uses to communicate the precedents that underline our arguments and analysis. They are the building blocks of legal communications and legal arguments, and lawyers and judges need to be able to rely upon the accuracy of each other’s citations to work in a stabilized democracy. Democratic stability is in jeopardy due to an erosion of norms from a variety of well-documented sources, most of which are well beyond the control of the average lawyer. But lawyers and judges can control the reliability of the authority we use in our own work product, …

Solving A Sixth Amendment Crisis: The Case For Resource Parity In Georgia's Indigent Defense System, Meagan R. Hurley

Articles

The United States criminal legal system employs what is said to be an “adversary” system—one in which opposing parties—the prosecution and the defense—present their evidence and arguments (usually in conflict with one another) to a neutral third party (a judge or jury) for adjudication. The idea behind the adversarial process is that a judge or jury is best positioned to make determinations of guilt or innocence once provided with reliable information from competent, zealous, and prepared advocates on both sides of the podium. At its core, the adversarial system is meant to function as the mechanism by which constitutional principles …

Family Talk Versus Usual Services In Improving Child And Family Psychosocial Functioning In Families With Parental Mental Illness: A Randomised Controlled Trial And Cost Analysis, Mairead Furlong, Colm Mcguinness, Christine Marie Mulligan, Sharon Lisa Mcgarr, Sinead Mcgilloway

Articles

Background: Parental mental illness (PMI) is common and places children at high risk of developing psychological disorders. Family Talk (FT) is a well-known, whole-family, 7-session intervention designed to reduce the risk of transgenerational psychopathology. However, very few larger-scale evaluations of FT (across only a limited number of settings) have been conducted to date while there have been no cost analyses. This study aimed to assess the effectiveness and costs of delivering FT in improving child and family psychosocial functioning in families with PMI within routine mental health settings. Methods: A total of 83 families with PMI, with children aged 5-18 …

Enhancing Inclusive Entrepreneurial Activity Through Community Engagement Led By Higher Education Institutions, Emma O'Brien, Thomas M. Cooney

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Purpose: While supporting entrepreneurship through government intervention has become a global phenomenon, the OECD (2021) has identified that several communities (including women, youth, seniors, unemployed and immigrants) remain under-represented in terms of entrepreneurial activity. Inclusive entrepreneurship policies seek to enhance economic and social inclusion and emphasise the significant contribution that people from within these communities could make to local and regional development if appropriate support was offered. The purpose of this study is to examine how higher education institutions (HEIs) can co-create inclusive entrepreneurial training initiatives with local communities that support economic and social inclusion. Design/methodology/approach: This in-depth qualitative study …

Antibiotics Misuse And Antimicrobial Resistance Development In Agriculture: A Global Challenge, Baljit Singh, Abhijnan Bhat, Kamna Ravi

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No abstract provided.

Arsenic Contamination Needs Serious Attention: An Opinion And Global Scenario, Abhijnan Bhat, Kamna Ravi, Furong Tian, Singh Baljit

Articles

Arsenic (As) contamination is a serious global concern, polluting our natural resources, including water and soil, and posing a danger to the environment and public health. Arsenic is present in the groundwater of several countries and this contaminated water is used for irrigation, drinking, and food preparation, which poses the greatest threat to public health. Nearly 106 countries are affected by groundwater arsenic contamination and an estimated 230 million individuals worldwide are exposed to its adverse health effects, including increased cancer risks, associated cardiovascular disease and diabetes, skin lesions, neurological effects, kidney damage, and foetal or cognitive-development-related complications. Arsenic is …