Digital Commons Network^™

Strategically Restated Defaults, Wendy G. Couture

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Business and commercial statutes are composed almost entirely of default rules, which parties may override via agreement or adopt via silence. Drafters of these statutes, and theories about the substance of default rules, assume that parties indeed adopt statutory default rules via silence. Against this backdrop, this Article examines unexpected behavior by parties to business and commercial agreements: parties often restate statutory default rules in their agreements rather than adopting those rules via silence. Based on a review of actual limited partnership agreements and security agreements, this Article identifies five unique species of restatement-bald, tweak, refill, baseline, and context restatements-and …

Institutionalized Ostracism, Danieli Evans

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Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism.

Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe …

Abortion Ally Or Abettor: Accomplice And Conspiracy Liability After Dobbs, Mary Fan

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The bristle of state laws criminalizing abortion after Dobbs v. Jackson Women’s Health Organization raises important questions about accomplice and conspiracy liability for helping people pursue reproductive freedoms out of state. Abortion funds, grassroots organizations, pilots, and other humanitarian volunteers are vital for people in need of abortions, who often are trapped by a lack of resources in abortion criminalization jurisdictions. Threats of prosecution are chilling and even shutting down assistance by abortion funds for travel to pursue reproductive freedoms. The liability questions after Dobbs arise against a backdrop of increasing prosecutions in Europe and the United States for crimes …

Tax In Law Schools, Michael Hatfield

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At the 2023 Association of American Law Schools Tax Section meeting, professors discussed their impressions of a decline in the number of JD students studying tax. Their impressions were consistent with declines that have been documented in similar fields. Between 2011 and 2021, U.S. accounting programs saw an 18% drop in students, while new CPA candidates declined 39% from 2010 to 2022. In the United Kingdom, the number of law schools that teach tax has diminished by 43% since 2002. This Article examines tax education in 40 U.S. law schools, focusing on course offerings and enrollment trends from 2012 to …

The Muslim Secular: Parity And The Politics Of India's Partition: By Amar Sohal, Oxford, Oxford University Press, 2023, 328 Pp., £83.00 (Hardback), Isbn: 9780198887638, Salmoli Choudhuri

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Sohal's book explores early to mid-twentieth century Muslim thinkers who rejected communal separatism in favour of a secular nationalism that upheld a unified vision of India. But what was the ideological enemy of the Muslim secular in the high noon of anti-colonial nationalism? Crucially, secularism itself lacks a stable conceptual ‘other’. Often, this space is occupied by ‘communalism’, a unique and ambiguous Indian nomenclature that is pejoratively and variously ascribed to minority positions, exclusive majoritarianism, and anti-nationalism. As a result, despite Sohal’s careful identification of intellectual differences between the thinkers, the master noun he uses to organise them conceals more …

Three Implications Of Moore., Reuven S. Avi-Yonah

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In his majority opinion in Moore, Justice Brett Kavanaugh listed several provisions of the code that could be subject to a constitutional challenge if realization were a constitutional requirement, as suggested by Justices Amy Coney Barrett, Samuel A. Alito Jr., Clarence Thomas, and Neil M. Gorsuch. Kavanaugh wrote: In short, the Moores cannot meaningfully distinguish the [mandatory repatriation tax] from similar taxes such as taxes on partnerships, on S corporations, and on subpart F income. The upshot is that the Moores’ argument, taken to its logical conclusion, could render vast swaths of the Internal Revenue Code unconstitutional. See, e.g., 26 …

From Land Reform To Landfare: Land Claims And The Welfare State In Kerala, India, Sudheesh R.C

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While large-scale land reform may still be underway in many countries, other contexts have states responding to land claims through scattered land provision measures. This article puts forward “landfare” as a lens to capture such measures and unpacks its features in one location. The article first explains this term, outlining its location in and departure from the land reform scholarship. It next shows how Kerala, India, widely cited in the scholarship for its 20th century land reform, addresses the land claims of its Adivasi citizens in the 21st century through landfare. Through an exploration of Adivasi land claims and an …

Gender Equality Plans In Research Organisations And Higher Education Institutions As A Catalyst For Transformative And Sustainable Change, Yvonne Galligan

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Gender Equality Plans (GEPs) play a pivotal role in shaping the European Union’s commitment to fostering sustainable structural change in Research organisations regarding gender equality. This article considers the dynamic evolution of the EU policy on GEPs, assesses the state of play with regards to GEPs following the requirements at EU level, and poses the question: What further can be done to deliver the transformative potential of GEPs, embed their sustainability and advance towards inclusiveness at greater speed? Drawing on the insights of feminist institutionalism, which highlights the relevance of informal practices as well as formal rules in shaping an …

Sweeping Section Three Under The Rug: A Comment On Trump V. Anderson, William Baude, Michael Paulsen

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No abstract provided.

Dispatches From Amendment Valley, Alison Lacroix

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No abstract provided.

Cross-Talk, Alicia Bannon, John Q. Barrett, Tyler Rose Clemons, Wilfred U. Codrington Iii, Mark C. Niles

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The symposium examines the Supreme Court's recent trend of overturning precedent, arguing that this practice undermines the principle of *stare decisis* and the Court's legitimacy. Historically, the Court has used precedent to protect marginalized groups, but recent decisions suggest a shift toward benefiting non-marginalized interests, such as big businesses and conservative groups. This change is seen as a departure from the Court's traditional role and raises concerns about judicial humility and the politicization of the judiciary.

Rahimi And The Future Of (The Rest Of) The Protection Order Prohibition, Bonnie Carlson

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In the summer of 2024, the Supreme Court considered United States v. Rahimi. Scholars and lawyers watched with bated breath to see how the court would interpret and apply the foundation-shifting Second Amendment test it established in New York State Rifle & Pistol Ass’n v. Bruen two years earlier. Ultimately, the Court upheld the federal law which temporarily bans some protection order respondents from possessing firearms. But the Court provided little in the way of additional guidance that lower courts desperately needed as evidenced by the disparate outcomes on gun cases nationwide following Bruen. Rather, the Court opted for a …

Locating Consumer Financial Regulation, Nikita Aggarwal

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Recent advances in data-driven technology in consumer financial markets, commonly referred to as "fintech," have resurfaced the question of whether and to what extent data, particularly consumers' personal data, should be a locus for regulatory intervention in these markets. While innovation in fintech and the accompanying increase in the processing of personal data offer to improve the functioning of consumer financial markets, like all advances in technology, they also come with costs and risks. In 2024, in a move that favored the regulation of personal financial data per se and many of the traditional features of personal data protection regulation, …

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

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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 …

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

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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 …

Race, Gender, And Ordinary Peace: Assessing The Women, Peace, And Security Agenda Through A Coloniality Lens, Fionnuala Niaolain, Claire Wright

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No abstract provided.

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

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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

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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 …

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

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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 …

The Problem Of Purpose In Corporate Law, Matthew T. Bodie, Grant M. Hayden

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For the last half century, shareholder primacy has reigned as the dominant definition of corporate purpose, as to both the purpose of individual companies and corporate law more generally. Recently, however, the Business Roundtable, the American Law Institute’s Restatement of the Law: Corporate Governance, and many business and legal academics have developed new answers to explain why we have corporations, and the ends to which their massive economic powers should be directed. This Essay endeavors to reframe the focus of the debate beyond purpose itself into the realm of actual governing power. In order to be meaningful, purpose needs governance. …

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

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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

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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

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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 …

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

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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

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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 …

Avoision: When Government Lawyers Turn The Sovereign Against Itself, Richard Painter

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Lawyers sometimes use legally permissible but ethically dubious strategies to avoid the law and at other times they cross the line into illegal law evasion. Between the two is a gray area of conduct highly likely, but not certain, to be illegal known as law “avoision.” Lawyering at the outer limits of the law is controversial in the private sector when lawyers represent clients against the government or against other private parties. The better interpretation of the law may stand on the other side, and the lawyer must decide how far to go in an arguably illegal direction on behalf …

The Magna Carta, Jarkesy, And The Constitutional Jury Requirement In Crime-Based Deportation, Linus Chan, Hans Frank-Holzner

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No abstract provided.

Executive Clemency And Immigration Federalism: Reconsidering Presidential Power Over Deportation Orders, Linus Chan, Emma Wittmer, Lauren Butler

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No abstract provided.

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

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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 …

The Emerging Framework For The Recognition & Enforcement Of Annulled Arbitral Awards In U.S. Jurisprudence, Sarah Klim

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The recognition and enforcement of foreign awards are governed almost universally by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"). However, this recognition and enforcement necessarily invokes national judicial power. The New York Convention does not devise a harmonized set of rules for courts to follow when faced with a request to recognize and enforce an annulled award. This has resulted in divergent approaches by national courts, which derive "not from any perversity of judges but from good faith variants in perspectives on how to construe the treaty."  This paper seeks …