Digital Commons Network^™

Achille Mbembe, "Brutalism", Atreyee Majumder

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Book Review: Achille Mbembe, Brutalism (Duke University Press 2024)

Why We Should Stop Talking About Violent Offenders: Storytelling And Decarceration, Mira Edmonds

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The movement to decarcerate risks foundering because of its failure to grapple with so-called violent offenders, who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison …

Should Racially Vulnerable Victims Show Mercy?, Ekow N. Yankah

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On June 17, 2015, twenty-one-year-old Dylann Roof entered the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, sat, and prayed with nine congregants for at least an hour before pulling out a handgun and killing Cynthia Hurd, Susan Jackson, Ethel Lance, DePayne Middleton-Doctor, State Senator Rev. Clementa Pinckney, Tywanza Sanders, Rev. Daniel Simmons, Sharonda Singleton, and Myra Thompson.' He left three survivors, explicitly so they could "tell the story" of his killings. Roof did so for his own demented reasons; his racist rage was laid out publicly in an online manifesto, and he hoped his murders would begin a …

Beyond The Human: Crossovers For An Onto-Epistemological Bifurcation, Ester Toribio-Roura

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Building upon recent studies in new materialisms and feminist critical posthumanism with a focus on human and more-than-human relationships, this paper examines how the posthuman paradigm, by postulating the queering of identit(ies) via entanglement with the more-than-human (including technology), and by offering a critical examination of diverse modes of existence within a broader ecological context, can foster more inclusive and ethically sound ways of being in the world. Although posthumanism encompasses a wide range of perspectives and theories, including transhumanism, at its core, it challenges traditional notions of humanism, blurring the boundaries between what is human and what is more-than-human, …

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

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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.

Should U.S. Tax Law Be Constitutionalized?, Reuven S. Avi-Yonah

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Moore is the first Supreme Court case involving a constitutional challenge to a federal income tax law since Macomber, which was decided more than a century ago. Whatever way the Court rules, other such cases are likely to be brought and some of them may reach the Court. Moore won’t be the last case of its kind.

Soil Organic Matter Components And Characteristics Of Forest Soil In Spruce And Sycamore Plantations In The Temperate Region, Samuel Obeng Apori, Michelle Giltrap, Julie Dunne, Furong Tian Nanolab Research Centre, Focas Research Institute

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The stability of soil organic matter (SOM) that governs soil organic carbon (SOC) storage depends on its characteristics and components, but little is known about how tree species in forest ecosystems affect SOM components and characteristics. In this study, we used FTIR spectroscopy to investigate plantations of two ecologically and economically significant tree species—namely, spruce (Picea spp.) and sycamore (Acer pseudoplatanus)—in order to determine how the different litter inputs and root-microbe interactions of these two plantations affect the functional groups, components, and characteristics of their SOM. Soil samples were taken from the topsoil (0–10 cm) and subsoil (10–20 cm). In …

Can Investment Treaties Defeat Pillar 2?, Reuven S. Avi-Yonah

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In their excellent recent Tax Notes International article, “Using Investment Treaties to Prevent Pillar 2’s Revocation of Promised Tax Incentives,” Javier Rubinstein, Lauren Friedman, and Tamsin Parzen make an interesting new argument about the interaction between bilateral investment treaties (BITs) and pillar 2. They argue that an investor benefiting from an existing BIT can rely on it to prevent the imposition of a qualified domestic minimum top-up tax (QDMTT) even without resorting to treaty arbitration. This argument is problematic, however, because it does not fully address the likely reaction of other countries that are not party to the BIT.

Reynolds Revisited: The Original Meaning Of Reynolds V. United States And Free Exercise After Fulton, Clark B. Lombardi

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This Article calls for a profound reevaluation of the stories that are being told today about the Supreme Court’s free exercise jurisprudence starting with the Court’s seminal 1879 decision in Reynolds v. United States and proceeding up to the present day. Scholars and judges today agree that the Supreme Court in Reynolds interpreted the Free Exercise Clause of the First Amendment to protect only religious belief and not religiously motivated action. All casebooks today embrace this interpretation of the case, and the Supreme Court has regularly endorsed it over the past twenty years, most recently in 2022. However, this Article …

Administrative Reliance, Haiyun Damon-Feng

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Presidential regime change and the federal policy shifts that accompany it raise significant questions concerning continuity, stability, and governance in the administrative state. Presidential policymaking through the administrative state may generate serious reliance interests recognized under administrative law (what this Article calls “administrative reliance”), which agencies must consider prior to enacting policy change. Administrative reliance has developed into a robust form of judicial review over agency action. Administrative reliance has been invoked in highly politicized contexts, such as immigration law, to challenge a sitting administration’s termination of a prior administration’s policies. Despite its powerful and consequential effects, the doctrine of …

Generative Interpretation, Yonathan Arbel, David A. Hoffman

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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 …

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 …

Biosensor-Enhanced Organ-On-A-Chip Models For Investigating Glioblastoma Tumor Microenvironment Dynamics, Gayathree Thenuwara, Bilal Javed, Baljit Singh, Furong Tian

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Glioblastoma, an aggressive primary brain tumor, poses a significant challenge owing to its dynamic and intricate tumor microenvironment. This review investigates the innovative integration of biosensor-enhanced organ-on-a-chip (OOC) models as a novel strategy for an in-depth exploration of glioblastoma tumor microenvironment dynamics. In recent years, the transformative approach of incorporating biosensors into OOC platforms has enabled real-time monitoring and analysis of cellular behaviors within a controlled microenvironment. Conventional in vitro and in vivo models exhibit inherent limitations in accurately replicating the complex nature of glioblastoma progression. This review addresses the existing research gap by pioneering the integration of biosensor-enhanced OOC …

Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel

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A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

Rethinking Taxing Excess Profits, Reuven S. Avi-Yonah, Tamir Shanan

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This article discusses the application of excess profit taxes (EPTs, also referred to as windfall taxes) that have gained renewed interest and popularity over the past several years. The revival of these windfall taxes gained renewed interest following the COVID-19 outbreak, which led to a sharp price increase in corporate revenues of medical equipment and within pharmaceutical industries. However, the revival of such taxes was also used following the recent rise in energy prices mainly in Europe, leading to a sharp increase in corporate revenues of energy corporations and the recent surge in borrowing interest rates that was not accompanied …

A History Of Corporate Law Federalism In The Twentieth Century, William Wilson Bratton

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This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey's successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

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No abstract provided.

Rule 11 Is No Match For Generative Al, Jessica Gunder

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In a series of high-profile ethics debacles, attorneys who used generative Al technology found themselves in hot water after they negligently relied on fictitious cases and false statements of law crafted by the technology. These attorneys mistakenly relied upon the output they received from a generative Al product without verifying and validating that output. Their embarrassing ethical breaches made national news, and spurred judges to implement standing orders that require attorneys to disclose their use of Al technology. Scholars were quick to criticize these standing orders' and the standing orders are rife with problems. But are they needed? Or are …

Big Data Searches And The Future Of Criminal Procedure, Mary Fan

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This Article proceeds in three parts. Part I illuminates the nostalgic Luddism that influences Fourth Amendment jurisprudence and the challenges posed by evolving technologies to this dominant lens. This Part explains the operation of geofence and keyword warrants and how their power to crack cold cases by unidentified perpetrators both tempt and terrify. The confusion in the courts over the constitutionality of geofence and keyword warrants is emblematic of the larger challenges of the Romantic Luddism in Fourth Amendment originalism that has grown in influence over the decades.

Part II frames and theorizes the concepts of collateral impact and collateral …

Liability Rules For Automated Vehicle: Definitions And Details, William H. Widen, Phillip Koopman

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This paper explains how the law ought to assign liability for automated vehicle accidents by providing an example of a proposed statute. We advocate for the creation of the legal fiction of a "Computer Driver," which can have negligence liability, anytime a court or jury determines that the Computer Driver's behavior failed to imitate or exceed the level of care we would expect of an attentive and unimpaired Human Driver in similar circumstances. We then use this concept to explain how to determine contributory negligence and comparative fault when control of a vehicle is transferred from a Computer Driver to …

Integrating Human Rights In Domestic Clinical Practice, Tamar Ezer, Elizabeth Brundige, Aya Fujimura-Fanselow, Ryan Thoreson

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Given that the human rights framework contains a rich and evolving body of norms and standards, integrating human rights law into clinical teaching provides new avenues to approach problem-solving. A human rights framework offers additional sources to ground moral and legal claims, as well as new strategies and advocacy targets. These alternatives work to foster creativity and lawyering skills, particularly in areas where domestic law is limited or constraining. Moreover, U.S. advocates have much to learn from global human rights struggles and advocacy efforts and can benefit from engaging in human rights discourse and practice. This article introduces readers to …

Symposium: Consortium For The Study And Analysis Of International Law Scholarship (Sails): Foreword, Kathleen Claussen

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No abstract provided.

Taxing The Metaverse, Young Ran (Christine) Kim

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The buzz surrounding the Metaverse has been growing steadily for the past couple of years, but the tax implications of this novel ecosystem remain fuzzy to most tax scholars. Such uncertainty is concerning, given the potential and momentum of this emerging technology. Although the Metaverse evolved from online video games focused only on user consumption, it now allows users to produce income and accumulate wealth entirely within the Metaverse. Current law seems to defer taxation of such until a realization or cash-out event. This Article challenges this approach and offers novel arguments justifying Metaverse taxation. Because economic activity within the …

Bounded Entities And (Some Of) Their Discontents, Saurabh Vishnubhakat

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In his new article An Organizational Theory of International Technology Transfer, Professor Peter Lee offers two richly detailed accounts at once. One is a novel theoretical framework of "bounded entities" that generalizes both from the classic theory of the firm and, of more recent vintage, from the knowledge-based theory of the firm to specify a broader notion of organizations that are bounded in the sense of robust internal integration through corporate or contractual means. In short, such entities are not firms but resemble them in consequential ways. The other account is a practical elaboration of bounded entities that are multinational …

Legislating Courts, Michael C. Pollack

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No abstract provided.

Slipping Into Judicial Barbarism?, Pranav Verma

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Book Review | Gautam Bhatia, Unsealed Covers: A Decade of the Constitution, the Courts and the State, HarperCollins Publisher India, 2023

The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw

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In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates …

Federal Indian Law As Method, Matthew L. M. Fletcher

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Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

‘Is This Song A Rebel Song?’: Republican Legitimacy And The Contested Narratives Of The Irish Revolutionary Soundscape, Seán Ó Cadhla

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This article will demonstrate how the diverse body of musical narratives broadly collectivised as ‘Irish rebel songs’ exhibit multi-layered categorisation difficulties beyond those typically pertaining to the wider canon of traditional folksong. Due to the systemic, often febrile, contestation surrounding ideological legitimacy within the Irish national struggle, such texts must necessarily navigate multiple historico-political complexities, foremost of which is the dogmatically essentialised, yet organisationally splintered, tradition of physical-force Irish Republicanism. Such disputed ideological demarcations encourage a notable subjectivity in terms of how rebel songs are viewed from both musicological and political perspectives in Ireland to the present, a liminality reflected …

What Matters In Moore, Reuven Avi-Yonah

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Why does the pending Moore case in the Supreme Court matter? The obvious answer is that if the Court decides that realization is a constitutional requirement for an income tax, the holding will have significant implications for the existing income tax regime. Depending on how broad the decision is, it could enable constitutional challenges to subpart F, the global intangible low-taxed income regime, partnership and subchapter S taxation, and sections 275, 877A, 1256, and 1259, to name just a few. And even if most or all of these challenges are ultimately decided against the taxpayers (for example, because realization does …