Digital Commons Network^™

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 …

Lawyers’ And Law Professors’ Experience With Worker Governance, Brett H. Mcdonnell

Articles

Part I surveys some of the leading arguments concerning the benefits and costs of worker governance. It also describes some of the ways in which those benefits and costs can evolve along with the growth, or lack thereof, of companies with worker governance. Part II looks at governance in law firms. It considers how the explanations for the adoption of worker governance fare with respect to law firms, notes the limited, elitist nature of worker governance within law firms, and considers the consequences of that real but elitist worker governance for the understanding of lawyers. Part III considers the same …

Criminal Procedure In A Time Of Abolition, Adam Davidson

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No abstract provided.

Gender Equality In World Athletics: Transnational Norm Development By Private International Organizations, Michele Krech

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No abstract provided.

Judicial Economy In The Age Of Ai, Yonathan A. Arbel

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Individuals do not vindicate the majority of their legal claims because of access to justice barriers. This entrenched state of affairs is now facing a disruption. Lawyers and non-lawyers alike are adopting artificial intelligence (AI) tools to perform legal tasks tools that sharply reduce the costs of generating legal materials. There is finally hope that AI might allow many more to access justice.

Paradoxically, what we gain in access to justice we might lose in the delivery of justice. The problem is not that AI tools are ineffective. Indeed, they are even more effective than most realize affecting every stage …

Physicists As Environmental Experts, Rachel Rothschild

Articles

The question of which scientists are qualified to provide expert guidance in legal controversies is a perennial debate among scholars, judges, and lawyers. Scientists who participate in legal disputes can achieve enormous power and influence, not only over the case at hand but over long-term developments in legal doctrine. While these issues arise in many areas of the law, environmental litigation has been a particularly active site of contestations over epistemic authority. Courts have frequently relied on scientists to understand whether the government is justified in regulating pollution and who may be liable for environmental and public health harms.

This …

Judicial Economy In The Age Of Ai, Yonathan Arbel

Articles

Individuals do not vindicate the majority of their legal claims because of access to justice barriers. This entrenched state of affairs is now facing a disruption. Lawyers and non-lawyers alike are adopting artificial intelligence (AI) tools to perform legal tasks-tools that sharply reduce the costs of generating legal materials. There is finally hope that AI might allow many more to access justice.

Paradoxically, what we gain in access to justice we might lose in the delivery of justice. The problem is not that AI tools are ineffective. Indeed, they are even more effective than most realize-affecting every stage of the …

Co-Constructing The Future Of Digital Intimacy, Chris Geeng, Lucy Qin, Allison Mcdonald, Amna Batool, Diana Freed, Oliver L. Haimson, Jevan Hutson, Elissa M. Redmiles, Zahra Stardust, Miranda Wei, Douglas Zytko

Articles

The Internet, artificial intelligence, and other emerging technologies have transformed the way humans can interact with each other and express romance, sex, and other forms of intimacy. Digital intimacy, including online dating, sexual/intimate content sharing, online sex work, and romantic chatbots, has grown ubiquitous. This can both be a source of great joy, such as when connecting remote partners and supporting sexual self-expression, and a source of harms, including but not limited to image-based sexual abuse, deepfakes, location privacy violations, and technology-enabled intimate partner violence. As new technologies continue to transform digital intimacy, this workshop aims to create a sex-positive …

The Violence Of Bright Lines, Terrell Woolfolk, Kathryn E. Miller

Articles

The U.S. Supreme Court interprets the Eighth Amendment to prohibit members of certain groups from serving extreme punishments, such as the death penalty and life without parole. For example, the Court has long banned death sentences for people with intellectual disability and for those who were under eighteen years old at the time of their crime. More recently, in Graham v. Florida and Miller v. Alabama, the Court extended this reasoning to sentences of life without parole for those under eighteen—prohibiting the sentence altogether for nonhomicide crimes and barring its mandatory imposition for homicides.

Many scholars and advocates have applauded …

Driving Impactful Change: Entrepreneurial Insights For Social Responsibility In The Irish Context, Anna Zherdeva, Deirdre Mcquillan, Lucia Morales

Articles

Today’s volatile situation at the global level, provoked by a significant rise in Economic and Political Uncertainty, emerged as an answer on countries attempts to manage the climate change crisis, armed conflicts, the rising cost of living, a growing divide between the more prosperous Global North and the poorest Global South that are reflected on the emergence of multifaceted, multiple and long-lasting crises. During periods of heightened instability and economic uncertainty, businesses struggle to build trusting relationships with stakeholders as they seek to reduce costs. Additionally, companies seek deep engagement as they confront the costs associated with sustainability challenges and …

The New Glass Ceiling, Andrea K. Schneider, Abigail R. Bogli, Hannah L. Chin

Articles

Until the last decade, gender inequality in the legal profession was selfevident. Law school classrooms and law firm offices were overwhelmingly filled with men. In recent years, women have outnumbered men in law school classes and reached parity with men among first-year associates. These developments have created the misperception that gender equality has been achieved. In this Article, we challenge this complacency. We present new evidence from a detailed case study of law firms in a midsize city, showing that women remain underrepresented in leadership roles and underpaid relative to their colleagues. We then show how the limited opportunities and …

New Legal Realism At 20: Rethinking Law In An Era Of Populism And Social Movements, Jeffrey Omari, Pablo Rueda-Saiz, Richard Ashby Wilson

Articles

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR's unique methodological and substantive contributions, we explore the movement's relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, cross-national exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of "looking up, down, and sideways." Notably, NLR embraces both "top-down" and "bottom-up" methods, providing comprehensive insights into the intricate interactions …

Should Ireland Have Taxed Apple?, Reuven S. Avi-Yonah, Nessa Ní Chasaide

Articles

On September 10 the EU’s Court of Justice issued its long-awaited decision in the Apple state aid case. Surprisingly, it reversed the EU’s General Court decision and held that the European Commission was correct in finding that Ireland had provided prohibited state aid to Apple, and therefore Apple must pay Ireland the €13 billion in taxes that it would have paid but for the illegal subsidy. This state aid case, the largest in the EU’s history, highlights significant issues about the legal governance of corporate tax. This article examines the notable features of the Court ruling, then outlines why we …

A Fresh Look At Judicial Remedies In Eu Equality Law And Beyond: The Untapped Possibility Of Structural Injunctions., Daniel H. Halberstam, Sina Van Den Bogaert

Articles

This article proposes a shift in thinking about judicial remedies (or “sanctions”), from anti-discrimination law to equal pay and beyond.We suggest the currently preferred remedies – one-off declarations, compensation, fines, and simple orders to obey the law – may be insufficient when confronting a recalcitrant institution, complex violations, and broad, ongoing harm. In such cases, we suggest considering a remedy long overlooked in Europe: a “structural injunction”, i.e. ordering changes to an offending organization’s structure, processes, or rules. We argue that under certain circumstances, an injunction, including a structural injunction, may be appropriate or required under EU law to remedy …

Blurring Boundaries: A Proposed Research Agenda For Ethical, Legal, Social, And Historical Studies At The Intersection Of Infectious And Genetic Disease, Seethal Jose, Juli Bollinger, Gail Geller, Jeremy Greene, Leslie Meltzer Henry, Brian Hutler, Eric Thomas Juengst, Jeffrey Kahn, Anna Mastroianni, Graham Mooney

Articles

Contemporary understanding of the mechanisms of disease increasingly points to examples of “genetic diseases” with an infectious component and of “infectious diseases” with a genetic component. Such blurred boundaries generate ethical, legal, and social issues and highlight historical contexts that must be examined when incorporating host genomic information into the prevention, outbreak control, and treatment of infectious diseases.

The Origins Of The Major Questions Doctrine, Rachel Rothschild

Articles

In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

A Social Status Theory Of Defamation Law, Yonathan A. Arbel

Articles

Despite deep inequality in social status and social capital in American society, legal scholarship has done relatively little to understand the structures that produce status and maintain its distribution. The Article argues that defamation law plays such a role. The orthodox view is that defamation law's goal is to protect dignity. This view was expressed in a famous Supreme Court holding in 1966, which held that defamation law is necessary to protect "the essential dignity" of "every human being. " The later seminal work of Robert Post cemented it. Seemingly unrelated, scholars of defamation law have found its structure mystifying, …

Comparing The Roles Of Secondary Schools And Universities In The Formation Of British Cabinet Ministers1922-2022, John William Hogan, Sharon Feeney

Articles

The role played by the education system in the creation and reproduction of governing elites, and its countervailing potential to create a more meritocratic and egalitarian society, has been a topic of enduring concern. However, these debates have been rendered opaque by an inability to directly compare elite formation systems both within and between countries. To resolve this problem, we employ elite formation quantitative indices to compare the roles of the secondary school and higher education systems, of the United Kingdom of Great Britain and Northern Ireland, in the formation of its political elite – cabinet ministers – between 1922–2022. …

The Broader Lessons Of Privacy Law, Salome Viljoen

Articles

This Article explores the trend of privacy—and what kind of techno-social or legal effect ought to count as a “privacy harm”—expanding to encompass a growing set of social factors. This big-tent approach to privacy has several virtues. However, it also comes with a few costs. While others have explored the conceptual and doctrinal tradeoffs that an expansive approach to privacy may entail, this Article focuses on a secondary effect the trend toward expansiveness has had on the relationship between privacy scholarship and legal scholarship more broadly. This Article suggests that the internal expansiveness of privacy means that insights developed within …

Water Management And Conservation In India Fostering Water Justice: Arguing For Adopting Just Sustainability In Water Governance, Gayathri D Naik Dr, Sanjay Shenoi P

Articles

The water sector is characterised by everyday water injustices where factors like social discrimination, economic disparities, and political preferences influence the determination of water resource access, allocation, and management. The increasing anthropogenic impacts on water resources and consequent threats to sustainability add to the water injustices, often impacting the poorer, socially downtrodden communities that bear the brunt of water scarcity and cannot afford alternatives. The current water governance patterns, prioritising equality over equity, fail to address the issues of water injustices created by social, political, and economic factors in water management and sideline the ecological impacts on water resources. Moving …

Trade Law Policing On The Factory Floor: Next Generation Agreements And Their Corporate Accountability Tools, Kathleen Claussen

Articles

Trade policymakers' increased attention to sustainability has prompted the development of trade tools focused on corporate accountability within international trade agreements. As evidenced by the creation and use of the United States-Mexico-Canada Agreement's Rapid Response Labor Mechanism, this institutional shift has potent implications for labour rights and environmental protections. This article, which transcribes a lecture delivered at the Lauterpacht Centre in October 2023, scrutinises the turn toward supply-chain policing within international trade law and its institutional, legal, sociological, rhetorical and disciplinary effects.

The Myth Of Slavery Abolition, Jocelyn Getgen Kestenbaum

Articles

In many countries today, slavery and the slave trade continue with impunity. International human rights law prohibits both abuses, but states are rarely held accountable and people who are enslaved or slave traded rarely receive redress. This Article offers a novel account of why international human rights law advocacy neglects slavery and the slave trade. Specifically, this Article demonstrates that the abolition of the Transatlantic and East African slave trades was achieved through a legal framework that marginalized the human rights of enslaved persons while consolidating empire. In the wake of World War II, prohibitions on slavery and the slave …

Medical-Legal Partnerships Reinvigorate Systems Lawyering Using An Upstream Approach, Kate L. Mitchell, Debra Chopp

Articles

The upstream framework presented in public health and medicine considers health problems from a preventive perspective, seeking to understand and address the root causes of poor health. Medical-legal partnerships (MLPs) have demonstrated the value of this upstream framework in the practice of law and engage in upstream lawyering by utilizing systemic advocacy to address root causes of injustices and health inequities. This article explores upstreaming and its use by MLPs in reframing legal practice.

Generative Interpretation, Yonathan A. Arbel, David A. Hoffman

Articles

We introduce generative interpretation, a new approach to estimating contractual meaning using large language models. As AI triumphalism is the order of the day, we proceed by way of grounded case studies, each illustrating the capabilities of these novel tools in distinct ways. Taking well-known contracts opinions, and sourcing the actual agreements that they adjudicated, we show that AI models can help factfinders ascertain ordinary meaning in context, quantify ambiguity, and fill gaps in parties' agreements. We also illustrate how models can calculate the probative value of individual pieces of extrinsic evidence.

After offering best practices for the use of …

Reproductive Objectification, Meghan M. Boone, Benjamin J. Mcmichael

Articles

The American system of rights is individualized - premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a pregnant person becomes conceptually unintelligible as it contains potentially two, interrelated people. Such a circumstance is fundamentally a contradiction within a framework that insists that rights attach to people who are, by definition, singular, separate, and autonomous.

This Article argues that, as a result of this apparent contradiction, fetal personhood laws make the …

Generative Interpretation, Yonathan Arbel, David A. Hoffman

Articles

We introduce generative interpretation, a new approach to estimating contractual meaning using large language models. As AI triumphalism is the order of the day, we proceed by way of grounded case studies, each illustrating the capabilities of these novel tools in distinct ways. Taking well-known contracts opinions, and sourcing the actual agreements that they adjudicated, we show that AI models can help factfinders ascertain ordinary meaning in context, quantify ambiguity, and fill gaps in parties' agreements. We also illustrate how models can calculate the probative value of individual pieces of extrinsic evidence.

After offering best practices for the use of …

Rejoinder To Rural Transformations And Rural Crime Book Review Published In Rural Society (Vol. 32, Iss. 3), Matt Bowden, Alistair Harkness

Articles

In his review, John Scott makes two key but misleading charges: first is an intimation that rural criminology is dominated by a clique of scholars; and second that the book by and large lacks ‘critical’ analysis to his liking. The reviewer provides a glimpse of a broad analysis of the field and adopts an independently minded position. Indeed, some observations and claims are made that should rightly be part of a wider debate in criminology broadly, about its relevance, impact and contribution to the social sciences: legitimate and important questions that ought to be addressed. However, a few errors in …

Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A.E. Pottow

Articles

In the world of cross-border corporate insolvency, those in the know are familiar with the increasingly popular scheme of arrangement, the British quasi-reorganization procedure that allows a company to restructure some, but not all, of its debt. The typical scheme effects a corporate balance sheet reshuffling by supermajoritarian approval (and judicial "sanction") but often leaves other debt, such as the trade, untouched. A key conceptual component of the scheme mechanism is its intentional modularity, called by some its "selectivity." It does not require a comprehensive reckoning of all claims against a given debtor, only some. The scheme has proved popular-so …

What Do Consumers Understand About Predispute Arbitration Agreements? An Empirical Investigation, Roseanna Sommers

Articles

The results of a survey of 1,071 adults in the United States reveal that most consumers do not pay attention to, let alone understand, arbitration clauses in their everyday lives. The vast majority of survey respondents (over 97%) report having opened an account with a company that requires disputes to be submitted to binding arbitration (e.g., Netflix, Hulu, Cash App, a phone or cable company), yet most are unaware that they have, in fact, agreed to mandatory arbitration (also known as “forced arbitration”). Indeed, over 99% of respondents who think they have never entered into an arbitration agreement likely have …

Immigration - Lifeboat Earth - Is The Boat Full, Thomas Power

Articles

The Lifeboat Earth metaphor requires western liberals to consider answers to those normative questions posed by Hardin. But the answer to them possibly depends on the economic effects of immigration and this can come from both economic theory and research.