Digital Commons Network^™

To Repudiate Or Merely Curtail? Justice Gorsuch And Chevron Deference, Kristin Hickman

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No abstract provided.

Buried Treasure: Excavating Foreign Law From Civil Pleadings Filed In U.S. Federal Courts, Loren Turner

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The Animal Science case is one of many cases in U.S. federal courts wherein parties rely in some measure on foreign law as part of a claim or defense. Yet, none of our legal research databases tracks and catalogs the foreign law and legal analysis filed in our courts. In fact, none of our legal research databases even provides an efficient way to find the foreign law and legal analysis filed in our courts. Despite the increasing frequency of cross-border litigation and the various types of cases that trigger a need to determine foreign law, access to foreign law as …

What To Do About Chevron--Nothing, Nicholas Bednar

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For thirty-five years, doctrinalists have tormented themselves trying to dissect the Supreme Court’s most infamous administrative-law doctrine: Chevron deference. We have asked when and how it applies. At the same time, we have asked whether Chevron should exist at all. In other words, does Chevron have any normative advantages that warrant its continued existence and prolific use? Despite thirty-five years to work out our differences, the academy — and the courts — remain torn on the answers to all of these questions.

Justifying Delay: Why Agencies Delay Compliance Dates And How They Do It, Nicholas Bednar

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Every administration since President Reagan has used compliance delays to postpone the implementation of midnight rules promulgated by the outgoing administration. Recent cases involving the Trump Administration’s delay of Obama Administration rules have reinvigorated courts’ interests in whether such delays require notice and an opportunity for comment under the Administrative Procedure Act (“APA”). Some scholars have written about why incoming administrations use compliance delays to prevent implementation of the previous administration’s “midnight rules.” These delays are often cast as a precursor to repeal, engendering fears that the now-postponed final rule will be reversed. Yet a more overarching discussion of compliance …

From Governess To Governance: Advancing Gender Equity In Corporate Leadership, Kellye Y. Testy

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Even as corporate influence on every aspect of life continues to grow, women (overall, and especially women of color) remain woefully underrepresented in corporate governance roles, particularly on boards of directors. This lack of gender diversity in the corporate boardroom is prevalent not only in more established companies but also persists—often at even higher levels— in new ventures as well. This Essay details the persistent lack of progress over more than a half century in diversifying leadership in corporate governance. This progress is especially concerning given that the benefits of diversity for sound decisionmaking and overall corporate welfare have been …

Nobody Knew How Complicated: Constraining The President's Power To Re(Shape) Health Reform, Sallie Thieme Sanford

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Beginning on inauguration day, President Trump has attempted an executive repeal of the Affordable Care Act. In doing so, he has tested the limits of presidential power. He has challenged the force of institutional and non-institutional constraints. And, ironically, he has helped boost public support for the ACA’s central features. The first two sections of this article respectively consider the use of the President’s tools to advance and to subvert health reform.

The final two sections consider the forces constraining the administration’s attempted executive repeal. I argue that the most important institutional constraint, thus far, is found in multifaceted actions …

Employees As Regulators: The New Private Ordering In High Technology Companies, Jennifer S. Fan

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There is mounting public concern over the influence that high technology companies have in our society. In the past, these companies were lauded for their innovations, but now as one scandal after another has plagued them, from being a conduit in influencing elections (think Cambridge Analytica) to the development of weaponized artificial intelligence, to their own moment of reckoning with the #MeToo movement, these same companies are under scrutiny. Leaders in high technology companies created their own sets of norms through private ordering. Their work was largely unfettered by regulators, with the exception of the Securities and Exchange Commission’s oversight …

Health Reform And Higher Ed: Campuses As Harbingers Of Medicaid Universality And Medicare Commonality, Sallie Thieme Sanford

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Between 2010 and 2016, the percentage of uninsured higher education students dropped by more than half. All the Affordable Care Act’s key access provisions contributed, but the most important factor appears to be the Medicaid expansion. This article is the first to highlight this phenomenon and ground it in data. It explores the reasons for this dramatic expansion of coverage, links it to theoretical frameworks, and considers its implications for the future of health reform.

Drawing on Medicaid universality scholarship, I discuss potential consequences of including the educationally privileged in this historically stigmatized program. Extending this scholarship, I argue that …

Contracts Mattered As Much As Copyrights, Robert W. Gomulkiewicz

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Scholars have begun to appreciate the fundamental role that contracts played in the development of copyrights. Contracts gave copyrights vitalilty. This article explores the network of book publishing contracts that formed the legal infrastructure for a pre-modern “internet” at the dawn of copyright law in Great Britain in the eighteenth century. Drawing on insights from archival research, the article shows how this network of copyright contracts advanced an important goal of copyright: the spread of ideas and information throughout all parts of society. Appreciating the historical significance of copyright contracts provides valuable context for modern debates about copyright policy. Indeed, …

America's (D)Evolving Childcare Tax Laws, Shannon Weeks Mccormack

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Proponents have touted the ability of the Tax Cuts and Jobs Act (the TCJA) — enacted in the twilight of 2017 — to help American working families. But while the TCJA expanded some benefits available to parents with dependent children, these parental tax benefits may be claimed regardless of whether or to what extent childcare costs are incurred to work outside the home. To help working parents with these costs (which are often their largest expense), Congress might have turned to two other mechanisms in the tax law — the “child and dependent care credit” and the “dependent care exclusion.” …

Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Monte Mills, Eduardo R.C. Capulong, Andrew King-Ries

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Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed white supremacist reaction to the nation’s first black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore the roots …

Disrupting Adhesion Contracts With #Metoo Innovators, Xuan-Thao Nguyen

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Adhesion contracts are everywhere. Take it or leave it, the dominant party holds the leverage while the weaker party adheres. Ninety percent of employment contracts contain mandatory arbitration clauses, and attempts to challenge arbitration requirements meet with judicial indifference or hostility. Ultimately, arbitration clauses eviscerate the employee's right to a jury trial and access to the court system in general. In recent years, employers in the tech sector have faced unexpected resistance from innovators. Just as innovators are known for disrupting old business models through technological innovations, #MeToo reformers are disrupting the seemingly insurmountable adhesion contract regime. They organize, protest, …

Attacking Innovation, Xuan-Thao Nguyen, Jeffrey A. Maine

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Economists generally agree that innovation is important to economic growth and that government support for innovation is necessary. Historically, the U.S. government has supported innovation in a variety of ways: (1) a strong legal system for patents; (2) direct support through research performed by government agencies, grants, loans, and loan guarantees; and (3) indirect support through various tax incentives for private firms. In recent years, however, we have seen a weakening of the U.S. patent system, a decline in direct funding of research, and a weakening of tax policy tools used to encourage new innovation. These disruptive changes threaten the …

Privacy Law's Indeterminacy, Ryan Calo

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American legal realism numbers among the most important theoretical contributions of legal academia to date. Given the movement’s influence, as well as the common centrality of certain key figures, it is surprising that privacy scholarship in the United States has paid next to no attention to the movement. This inattention is unfortunate for several reasons, including that privacy law furnishes rich examples of the indeterminacy thesis—a key concept of American legal realism—and because the interdisciplinary efforts of privacy scholars to explore extra-legal influences on privacy law arguably further the plot of legal realism itself

Transitioning From Gilti To Fdii? Foreign Branch Income Issues, Jeffery M. Kadet, David L. Koontz

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In this article, Kadet and Koontz explain the risks and benefits multinationals must consider in deciding whether to transition some operations conducted within a controlled foreign corporation (along with the associated income) into a domestic group member to achieve a structure that qualifies for foreign-derived intangible income.

Commuting To Mars: A Response To Professors Abraham And Rabin, Ryan Calo

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The remarks that follow are less about the particular wisdom of manufacturer enterprise responsibility (MER) for driverless cars, and more about the limits of legal scholarship in grappling with unfolding technologic change. The contingency of technology and its social impacts caution against sweeping interventions. And the role of law and technology scholarship—as opposed to legal scholarship that touches upon technology—is arguably to recognize the unique challenges that arise at this intersection.

The Surprising Reach Of Fda Regulation Of Cannabis Even After Rescheduling, Sean M. O'Connor, Erika Lietzan

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As more states legalize cannabis, the push to “deschedule” it from the Controlled Substances Act is gaining momentum. At the same time, the Food and Drug Administration (FDA) recently approved the first conventional drug containing a cannabinoid derived from cannabis—cannabidiol (CBD) for two rare seizure disorders. This would all seem to bode well for proponents of full federal legalization of medical cannabis. But some traditional providers are wary of drug companies pulling medical cannabis into the regular small molecule drug development system. The FDA’s focus on precise analytical characterization and on individual active and inactive ingredients may be fundamentally inconsistent …

Letter From Jeffery M. Kadet To Internal Revenue Serv. (Oct. 6, 2019) On Notice 2019-30, 2019-2020 Priority Guidance Plan - Sourcing Of Cloud Services Income, Jeffery M. Kadet

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No abstract provided.

Us Supreme Court Bars Punitive Damages In Unseaworthiness Claims, Craig H. Allen

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To appreciate the reach of the Court's decision on punitive damages for unseaworthiness claims, it is important to understand the federal courts' steady expansion of the class of workers who now qualify as "seamen," the class of floating vessels and structures that now qualify as "vessels," and the strict liability standard for determining whether a vessel is seaworthy.

Professionally Responsible Artificial Intelligence, Michael Hatfield

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As artificial intelligence (AI) developers produce more applications for professional use, how will we determine when the use is professionally responsible? One way to answer the question is to determine whether the AI augments the professional’s intelligence or whether it is used as a substitute for it. To augment the professional’s intelligence would be to make it greater, that is, to increase and improve the professional’s expertise. But a professional who substitutes artificial intelligence for his or her own puts both the professional role and the client at risk. The problem is developing guidance that encourages professionals to use AI …

Ask Me Anything: Promoting Archive Collections On Reddit, Sara May

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Social media is an important marketing and outreach tool for many libraries. While Facebook, Twitter, and Instagram are commonly used, Reddit is underutilized despite its popularity and high user engagement. Special collections can use Reddit to reach and engage with their target audiences, no matter how niche. This article explains how to use Reddit and host an event called “Ask Me Anything” (AMA), using as a model a successful AMA hosted by archivists at the Rochester Institute of Technology. It also provides practical tips including how to choose an appropriate “subreddit” (or Reddit community), promote the AMA, and respond to …

Ameliorating The Federal Trial Penalty Through A Systematic Judicial “Second Look” Procedure, Janeanne Murray

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The trial penalty -- the threat of a substantially more severe conviction or longer sentence after trial than the one available upon a guilty plea -- is a key driver of mass incarceration. It undergirds not just the number of people behind bars, but the long sentences so many of them serve. One path to ameliorating the impact of the trial penalty is through a systematic judicial “second look” procedure, whereby judges revisit the propriety of a long sentence after the defendant has served a substantial portion of it. Taking the proposed “second look” provision of the revised Model Penal …

Rethinking Police Rulemaking, Maria Ponomarenko

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No abstract provided.

Cost-Effective, Time-Efficient Passenger Rail System For The Eastern United States, James A. Mathias, Dal Hyung Kim

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A program was developed using a genetic algorithm and automated lookup features to design an efficient passenger rail system for the eastern-half of the United States connecting large cities, metropolitan populations greater than two million, with overnight rail service. The results of the program predicted a passenger starting at the farthest point of the system boards the train at 16:02 on average and arrives at a different point of the system at 07:57 on average the following day, assuming the train travels an average speed of 70 mph. The design used actual distances by train track where possible. The system …

Reputation And Accountability: Another Look At The United Nations’ Response To The Cholera Epidemic In Haiti, Kristina Daugirdas

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The cholera outbreak in Haiti offers a useful case study of reputation as a disciplinarian of international organizations. On the one hand, UN officials and member states alike have emphasized the need to repair the organization’s damaged reputation. On the other hand, the UN secretariat declined to take certain steps that might have averted—or at least mitigated—that reputational damage in the first place. This contribution argues that the United Nations’ response to cholera in Haiti showcases some important limitations and complications of reputation as a disciplinarian. Reputation will function as a less effective disciplinarian of organizations in the context of …

Investment Ramifications Of Distortionary Tax Subsidies, James R. Hines Jr., Jongsang Park

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This paper examines the investment effects of tax subsidies for which some assets and not others are eligible. Distortionary tax subsidies concentrate investments in tax-favored assets, thereby reducing the expected pre-tax profitability of investment and reducing payoffs to bondholders in the event of default. Anticipation of asset substitution encourages lenders to require covenants in debt contracts, which only imperfectly address asset substitution and distort investment. The result is that borrowing is made more expensive, which in turn discourages investment. Borrowing rates can react so strongly that aggregate investment may rise very little, or even fall, in response to higher tax …

Prosecutors And Voters Are Becoming Smart On Crime, Barbara L. Mcquade

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How to explain the recent trend of electing reform-minded local prosecutors? It may be that voters are seeing through tough talk to embrace smarter strategies to reduce crime.

Restructuring Rebuttal Of The Marital Presumption For The Modern Era, Jessica Feinberg

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The marital presumption of paternity, which arose from English common law, has served as a core component of the law governing parentage in the United States since the nation’s inception. Pursuant to the marital presumption, a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage. Historically, the marital presumption was extremely difficult to rebut, generally requiring proof of the husband’s non-access to his wife during the time of conception, the husband’s sterility or impotence, or adultery on the part of the wife. As these early grounds for rebuttal …

“You Can't Afford To Flinch In The Face Of Duty”: Judge William Augustus Bootle And The Desegregation Of The University Of Georgia, Patrick Emery Longan

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On January 6, 1961, United States District Judge William Augustus Bootle granted a permanent injunction that required the University of Georgia to admit its first two black students, Hamilton E. Holmes and Charlayne A. Hunter. The backlash began immediately. Newspaper editorials condemned the decision. The Governor of Georgia threatened to close the University. Students rioted. A man escaped from an insane asylum, armed himself and went looking for Charlayne Hunter at her dormitory. Judge Bootle received numerous critical letters, including some that were threatening. Yet Judge Bootle’s attitude was that he did no more than what his position as a …

Voice, Strength, And No-Contest Clauses, Karen J. Sneddon

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The will is a unilateral written disposition of probate property to be effective upon the will-maker's death. To have any legal effect, however, the will-maker's family, beneficiaries, and personal representatives, along with the probate court, need to implement the will provisions. To buttress the strength of the will, the language of the will is definitive, certain, and strong. But when the will relies upon standardized language, the voice of the will-maker is flattened or even non-existent. The absence of the willmaker's voice may jeopardize the legal effect of the will.

This Article argues that the over-reliance on "time-tested" formulaic language …