Digital Commons Network^™

"With Great Power Comes Great Responsibility": Improving Your Feedback And Hallmarks Of Effective Feedback, Randall Ryder

Articles

Effective feedback can change a law student’s trajectory in law school and beyond. The feedback-centric nature of experiential learning courses allows law students to both develop their skills and personal lawyering style. However, many experiential instructors are from a different generation, with different expectations and communication styles than today’s law students. This article highlights hallmarks of effective feedback for the modern law school classroom. As the field of law continues to evolve, law schools will need to as well.

This article discusses four key hallmarks: (1) provide feedback in multiple formats,(2) help each student develop their personal style, (3) explain …

Platform Unions, Charlotte Garden

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How should we regulate social media platforms to prevent harmful treatment of users? Regulators, advocates, and scholars have grappled with this problem for years. Many proposed solutions, ranging from improving privacy disclosures, to promoting competition between platforms, to requiring platforms to pay users for their data, are at best incomplete.

This Article begins from the premise that platform problems are collective problems and proposes a collective solution: empowering users to organize platform unions. Much like labor unions give employees a say in in their working conditions even when they lack individual bargaining power, platform unions would facilitate collective bargaining over …

The Conservative Case For Esg, Richard Painter

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There is a growing consensus across the political spectrum that corporations should not just make money for shareholders but also advance the public good. Conservatives and liberals often disagree about what the public good is, or what the priorities of corporate governance should be, but both sides are discontent with corporations focusing only on profits.

This Article discusses reasons why political conservatives should support efforts to include environmental, social and governance (ESG) factors in corporate governance. Conservatives do not embrace contemporary ESG rhetoric which they associate with liberal social and economic viewpoints, but conservatives nonetheless oppose corporations maximizing profits at …

Fatherhood, Family Law, And The Crisis Of Boys And Men, June Carbone, Clare Huntington

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Boys and men in all racial and ethnic groups and across most socioeconomic groups are struggling on many fronts, including education, employment, physical and mental health, and social integration. In these areas and more, boys and men are much worse off than they were only a few decades ago. The crisis—which is concentrated among men without college degrees—is rooted in large-scale structural changes to the economy that have decimated jobs for this group and policy choices that emphasize incarceration while doing little to address economic inequality.

The decline in male well-being is not just a problem for boys and men. …

Presidential Investment In The Administrative State, Nicholas Bednar, David E. Lewis

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In this paper, we explain how presidents strategically invest in administrative capacity, noting that presidents have few incentives to invest effort in capacity building in most agencies. We test our account with two analyses. First, we examine the time it took for the Bush, Obama, Trump, and Biden Administrations to nominate individuals to appointed positions. We find that presidents prioritize appointments to policy over management positions and that nominations occur sooner in agencies that implement presidential priorities. Second, we examine the responses of federal executives to the 2020 Survey on the Future of Government Service to see whether perceptions of …

Conducting Research With Highly Portable Mri In Community Settings: A Practical Guide To Navigating Ethical Issues And Elsi Checklist, Francis X. Shen, Susan Wolf, Frances Lawrenz, Donnella S. Comeau, Barbara J. Evans, Damien Fair, Martha J. Farah, Michael Garwood, S. Duke Han, July Illes, Jonathan D. Jackson, Eran Klein, Matthew S. Rosen, Efraín Torres, Paul Tuite, J. Thomas Vaughan

Articles

Highly portable and accessible MRI technology will allow researchers to conduct field-based MRI research in community settings. Previous guidance for researchers working with fixed MRI does not address the novel ethical, legal, and societal issues (ELSI) of portable MRI (pMRI). Our interdisciplinary Working Group (WG) previously identified 15 core ELSI challenges associated with pMRI research and recommended solutions. In this article, we distill those detailed recommendations into a Portable MRI Research ELSI Checklist that offers practical operational guidance for researchers contemplating using this technology.

Ethical, Legal, And Policy Challenges In Field-Based Neuroimaging Research Using Emerging Portable Mri Technologies: Guidance For Investigators And For Oversight, Francis X. Shen, Susan M. Wolf, Francez Lawrenz, Donnella S. Comeau, Kafui Dzirasa, Barbara J. Evans, Damien Fair, Martha J. Farah, S. Duke Han, Judy Illes, Jonathan D. Jackson, Eran Klein, Karen S. Rommelfanger, Matthew S. Rosen, Efraín Torres, Paul Tuite, J. Thomas Vaughan, Michael Garwood

Articles

Researchers are rapidly developing and deploying highly portable MRI technology to conduct field-based research. The new technology will widen access to include new investigators in remote and unconventional settings and will facilitate greater inclusion of rural, economically disadvantaged, and historically underrepresented populations. To address the ethical, legal, and societal issues raised by highly accessible and portable MRI, an interdisciplinary Working Group (WG) engaged in a multi-year structured process of analysis and consensus building, informed by empirical research on the perspectives of experts and the general public. This article presents the WG’s consensus recommendations. These recommendations address technology quality control, design …

Returning Individual Research Results From Digital Phenotyping In Psychiatry, Francis X. Shen, Matthew L. Baum, Nicole Martinez-Martin, Adam S. Miner, Melissa Abraham, Catherine A. Brownstein, Nathan Cortez, Barbara J. Evans, Laura T. Germine, David C. Grady, Ingrid A. Holm, Elisa A. Hurley, Sara Kimble, Gabriel Lazaro-Munoz, Kimberlyn Leary, Mason Marks, Patrick J. Monette, Jukka-Pekka Onnela, P. Pearl O'Rourke, Scott L. Rauch, Carmel Shachar, Srijan Sen, Ipsit Vahia, Jason L. Vassy, Justin T. Baker, Barbara E. Bierer, Benjamin C. Silverman

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Psychiatry is rapidly adopting digital phenotyping and artificial intelligence/machine learning tools to study mental illness based on tracking participants’ locations, online activity, phone and text message usage, heart rate, sleep, physical activity, and more. Existing ethical frame-works for return of individual research results (IRRs) are inadequate to guide researchers for when, if, and how to return this unprecedented number of potentially sensitive results about each participant’s real-world behavior. To address this gap, we convened an interdisciplinary expert working group, supported by a National Institute of Mental Health grant. Building on established guidelines and the emerging norm of returning results in …

The Rise Of Counter-Terrorism And The Demise Of Human Rights, Fionnuala Niaolain

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This lecture addressed the consolidation and expansion of counter-terrorism norms and institutions since 9/11. The rise of counterterrorism has enabled the consolidation of autocracy, sustained democratic backsliding and undermined the capacity of civil society to function across the globe. The impact on human rights has been extensive and highly detrimental to the most vulnerable individuals and groups across the world. Drawing on my work as United Nations Special Rapporteur on Counter-Terrorism and Human Rights since my 2017 appointment, the lecture shows the hard choices that must be made nationally and globally to reverse these trends.

Just Don’T Do It: Why Cannabis Regulations Are The Reason Cannabis Businesses Are Failing, Edward Adams

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Part I will provide a historical overview of the cannabis plant and our country’s experience with it prior to the election of President Richard Nixon. It is at that point, the early 1970s, that the current federal cannabis scheme began to take shape. Sections I.A though I.C will discuss the inception of the War on Drugs during the Nixon Administration and examine the subsequent social movement that led President Reagan to revamp and expand the War on Drugs throughout the 1980s.

The legal framework for federal cannabis regulation has largely remained stagnant since the Reagan Administration. Nevertheless, the federal stance …

Interpreting The Ambiguities Of Section 230, Alan Rozenshtein

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As evidenced by the confusion expressed by multiple Justices in last Term’s Gonzalez v. Google, there is little consensus as to the scope of Section 230, the law that broadly immunizes internet platforms from liability for third-party content. This is particularly striking given that no statute has had a bigger impact on the internet than Section 230, often called the “Magna Carta of the internet.”

In this essay I argue that Section 230, despite its simple-seeming language, is a deeply ambiguous statute. This ambiguity stems from a repeated series of errors committed by Congress, the lower courts, and the Supreme …

Prosecutorial Data Transparency And Data Justice, Perry Moriearty

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The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

The Three-Verdict Problem, Jack Whiteley

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!n Scotland, for hundreds of years, juries have chosen between three criminal verdicts: “guilty,” “not guilty,” and “not proven.” The “not proven” verdict’s legal meaning remains mysterious. In this article, I aim to describe and solve the problem. Applying modern ideas about standards of proof to the intellectual history of “not proven” yields eight plausible meanings for the verdict. With the extent of the problem in mind, I offer a solution. In the three-verdict system, jurors should deliver a “guilty” verdict when they believe that the accused has committed the crime and a “not guilty” verdict when they believe that …

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

Articles

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 …

Stakeholder Engagement, Brett H. Mcdonnell

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No abstract provided.

The Seven Essential Law School Simulation Courses, Mitch Zamoff

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As we mark the ten-year anniversary of the American Bar Association’s six-credit experiential learning requirement and the launch of the NextGen bar exam, it is critical for U.S. law schools to conduct rigorous assessments of their experiential education curricula. While most law schools now offer students meaningful opportunities to develop lawyering skills in clinics and field placements, there is much less consistency in their simulation course offerings. Simulation courses are a critical component of experiential legal education. While students in clinics and field placements gain valuable, realistic experience addressing the issues presented by their actual clients, those issues may sometimes …

Why Mass Incarceration Is Uniquely American, Michael Tonry

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Mass incarceration, among Western countries a uniquely American phenomenon, resulted from a transformation of American criminal justice systems. Indeterminate sentencing systems in which legislatures established maximum sentences, prosecutors processed cases, judges decided who went to prison, and parole boards decided how long people stayed there were replaced by determinate systems in which legislatures prescribed minimum sentences, prosecutors made the key charging and sentencing decisions, judges processed cases and sentenced minor crimes, and parole boards lost much of their authority. Parole boards and judges become largely irrelevant whenever prosecutors file charges subject to mandatory sentence, three-strikes, truth-in-sentencing, and life without parole …

Derivatives Markets Fragilities And The Energy Transition, James W. Coleman, Colleen Baker

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It is common knowledge that climate change concerns have prompted countries around the world to plan for a reduction in their fossil fuel dependencies. Yet while much attention has been placed on new low-carbon sources of energy such as wind, solar, and nuclear, comparatively little focus has centered on the commodity inputs, critical metals, needed to create this clean energy. In this article, we argue that at the heart of the energy transition is a commodities transition representing an unprecedented international reliance on critical metals, traditionally capricious commodities traded in global markets. Indeed, nations around the world have begun to …

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 …

Conferring Prestige Within Irish Diplomatic Dining: Éamon De Valera At Dublin Castle, 1934-1940, Elaine Mahon

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This article explores the use of the diplomatic meal to confer prestige within Irish international relations between 1934 and 1940 when Éamon de Valera was both President of the Executive Council of the Irish Free State and Minister for External Affairs. It examines how state hospitality evolved under de Valera’s leadership and how de Valera used the meal to confer varying levels of prestige, indicative of rank, status and provenance, on his guests of honour at Dublin Castle. The results would lay the foundation for further developments in state protocols for entertaining important visitors in preparation for Ireland’s growing international …

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 …

Constraining Constitution-Making, Adam Chilton, Cristián Eyzaguirre, David Landau, Mila Versteeg

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Whether constitution-making should be constrained has long been debated, but little is known about whether it is possible. We make several contributions to this question. We start by providing a typology of three types of constraints on constitution- making: Substantive, Procedural, and Institutional. We next develop a positive theory of when these constraints are likely to influence drafters’ behavior. We then use a mixed-methods approach to explore these ideas in the context of Chile’s constitutional reform process. In a survey experiment conducted in Chile before citizens voted on the draft constitution, we find that most respondents supported constraints in the …

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 …

Lies And The Law: An Introduction, Genevieve Lakier

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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 …

Sharing Where Bargains Are Impossible, Saul Levmore, Andrew Verstein

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Cooperation sometimes breaks down, and former teammates will disagree about what happens next. For example, when can an employee quit to join a competitor? Courts often resolve disputes by looking at the parties actual or hypothetical bargain. Thus, a court may ask whether there was a non-competition agreement (and whether it was reasonable), or whether the employee is taking a “corporate opportunity” as she departs. These are all-or-nothing determinations by courts; either the bargain, or law, fully allows or fully prohibits the disputed conduct.

This is a suitable approach when fair and efficient bargains are possible. But, this article argues …

Private Security And Public Police, Ben Grunwald, John Rappaport, Michael Berg

Articles

Private security officers outnumber police by a wide margin, and the gap may be growing. As cities have claimed to defund the police, many have quietly expanded their use of private security, reallocating spending from the public to the private sector. It is difficult to know what to make of these trends, largely because we know so little about what private security looks like on the ground. On one prevalent view of the facts, a shift from public to private security would mean little more than a change of uniform, as the two labor markets are deeply intertwined. Indeed, academics, …

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

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No abstract provided.

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 …