Digital Commons Network^™

The Insidious War Powers Status Quo, Rebecca Ingber

Articles

This Essay highlights two features of modern war powers that hide from public view decisions that take the country to war: the executive branch’s exploitation of interpretive ambiguity to defend unilateral presidential authority, and its dispersal of the power to use force to the outer limbs of the bureaucracy.

A Tale Of Two Subject-To-Tax Rules, Sol Picciotto, Jeffery M. Kadet, Bob Michel

Articles

In this article, we analyze and compare two proposals for a new subject-to-tax rule (STTR) provision to be included in tax treaties, one from the U.N. Tax Committee and the other from the G20/OECD inclusive framework on base erosion and profit shifting. The U.N. proposal is broad, and would clarify that restrictions in tax treaties on taxation of income at the source where it is derived are conditional on that income being taxed at an agreed-upon minimum rate in the country where it is received. The inclusive framework version is much more limited, being confined to payments between connected entities …

What Can State Medical Boards Do To Effectively Address Serious Ethical Violations?, Tristan Mcintosh, Elizabeth Pendo, Heidi A. Walsh, Kari A. Baldwin, Patricia King, Emily E. Anderson, Catherine V. Caldicott, Jeffrey D. Carter, Sandra H. Johnson, Katherine Matthews, William A. Norcross, Dana C. Shaffer, James M. Dubois

Articles

State Medical Boards (SMBs) can take severe disciplinary actions (e.g., license revocation or suspension) against physicians who commit egregious wrongdoing in order to protect the public. However, there is noteworthy variability in the extent to which SMBs impose severe disciplinary action. In this manuscript, we present and synthesize a subset of 11 recommendations based on findings from our team’s larger consensus-building project that identified a list of 56 policies and legal provisions SMBs can use to better protect patients from egregious wrongdoing by physicians.

Distinguishing Privacy Law: A Critique Of Privacy As Social Taxonomy, María P. Angel, Ryan Calo

Articles

What distinguishes privacy violations from other harms? This has proven a surprisingly difficult question to answer. For over a century, privacy law scholars labored to define the elusive concept of privacy. Then they gave up. Efforts to distinguish privacy were superseded at the turn of the millennium by a new approach: a taxonomy of privacy problems grounded in social recognition. Privacy law became the field that simply studies whatever courts or scholars talk about as related to privacy.

Decades into privacy as social taxonomy, the field has expanded to encompass a broad range of information-based harms—from consumer manipulation to algorithmic …

Arbitration's Unraveling, Myriam E. Gilles

Articles

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs’ lawyers have tried challenging class action–banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court’s ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit—until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area …

Reimagining First Amendment Remedies, Ronald J. Krotoszynski Jr., Caprice L. Roberts

Articles

Since the Warren Court's landmark First Amendment decisions of the I 9 6os, the Supreme Court has aggressively deployed the Free Speech Clause to provide broad substantive protections for expressive freedoms. These rules, in theory, should effectively safeguard the marketplace of political ideas and facilitate both speaker and audience autonomy. No matter haw broadly fashioned, however, a constitutional rule is only as strong as the remedies available to enforce it–and far too often, First Amendment remedies are either woefully weak or effectively nonexistent. When a would-be First Amendment plaintiff cannot obtain a meaningful remedy for a proven constitutional violation, the …

Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker

Articles

This Term, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, the Supreme Court will expressly consider whether to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.—a bedrock precedent in administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. In our contribution to this Chevron on Trial Symposium, we argue that the Court should decline this invitation because the pull of statutory stare decisis is too strong to overcome.

Why Can't I Have A Robot Lawyer? Limits On The Right To Appear Pro Se, Jessica Gunder

Articles

Some rights are more favored-and some rights are more disfavored than others. The right to self-representation is a disfavored right Despite its historic roots, the right has been subjected to judicially imposed limits that have reduced its scope. The limits on the right to self-representation include restrictions on the type of litigant that can avail themselves of the right, bars regarding the personal characteristics of litigants, barriers on the types of assistance a pro se litigant may receive, and procedural limitations on how a litigant may invoke the right. This Article is the first to study these established limitations on …

European Union/Oecd/International - Klaus Vogel Lecture 2023: The Past, Present And Future Of Destination-Based Income Taxation., Reuven S. Avi-Yonah

Articles

A significant obstacle to the unilateral adoption of the OECD’s Pillar One are tax treaties since many countries cannot override tax treaties unilaterally. In his Klaus Vogel Lecture for 2023, Professor Reuven Avi-Yonah asks what are the chances for adopting a true multilateral convention for income taxation?

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 …

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 …

Integrating Interference Theory, Daiquiri J. Steele

Articles

Robust retaliation protections are an essential component of any effective enforcement regime. Recognizing this, Congress has included a provision prohibiting retaliation in nearly every workplace statute passed in the past century. In statutes more than a century old, like the Civil Rights Act of 1866, where Congress neglected to include an explicit anti-retaliation provision in the statutory language, the Supreme Court has found an implied proscription against retributory behavior. Anti-retaliation protections are undoubtedly integral to effective enforcement. However, they have an equally important counterpart that is often overlooked in compliance discussions-interference protections.

Several workplace statutes contain interference provisions-statutory language that …

Navigating The Conundrum Of Mandatory Reporting Under The Pocso Act: Implications For Medical Professionals, Nanditta Batra

Articles

To address the under reporting of sexual offences against children, the Protection of Children from Sexual Offences (POCSO) Act, 2012, makes reporting of such offences mandatory. The duty to report such offences has been extended to healthcare professionals. The inclusion of healthcare professionals within mandatory reporting, however, strikes at the very foundation of the doctor-patient relationship based on trust and confidentiality and conflicts with the patient confidentiality safeguards of the Mental Healthcare Act, 2017. It also has unintended public health consequences, such as denial of medical termination of pregnancy due to fear of prosecution under POCSO. An urgent reassessment of …

Theorising Political Legitimisation: From Stasis To Processes, Paddy Dolan, Stephen Vertigans, John Connolly

Articles

Legitimacy remains a key concept in political sociology, and perhaps even more so in lay understandings of political processes and structures, as evidenced by conflict over territories and regimes around the world. However, the concept suffers from a rather static representation, and even when addressed in processual form, in terms of specific moments in the process, such as conditions favouring legitimacy or its effects. Building from an Eliasian perspective, we argue for a more processual concept of legitimisation to encompass the dynamic social networks (figurations) that constitute the more unintentional context for deliberate legitimation claims. As networks expand and intensify, …

Shareholder Primacy Versus Shareholder Accountability, William Wilson Bratton

Articles

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance ("ESG") principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter-a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory's central tenet, shareholder primacy. Shareholder primacy builds …

Review Of Brianna E. Robertson-Kirkland, Venanzio Rauzzini And The Birth Of A New Style In English Singing: Scandalous Lessons (New York And Abingdon: Routledge, 2022). Isbn: 978-1-032-20029-3, 244pp, £39.99 (Paperback)., Rachel Talbot

Articles

A Review of Brianna E. Robertson-Kirkland, Venanzio Rauzzini and the Birth of a New Style in English Singing: Scandalous Lessons (New York and Abingdon: Routledge, 2022). ISBN: 978-1-032-20029-3, 244pp, £39.99 (paperback)

Progressing Children's Right To Be Heard In Public Decision-Making: Perspectives On Using Social And Digital Media To Facilitate Children's Participation, Kevin Lalor, Brian O'Neill, Thuy Dinh

Articles

Children's right to be heard is expressed in Article 12 of the U.N. Convention on the Rights of the Child. Mechanisms and methods to facilitate the inclusion of young people's views have been developed by youth workers, advocates and policy-makers and include diverse consultation approaches, including surveys, polls, consultation meetings and formal structures such as youth parliaments. Even though social and digital media are now pervasive in the lives of children, the potential to use these as tools to facilitate youth consultation is still surprisingly at an early stage of development. This paper presents findings from a national mixed-method study …

Micromixing Strategies For Efficient Mixing Processes: A Comprehensive Review, Delara Soltani, Tim Persoons, Sajad Alimohammadi

Articles

The demand for rapid, high-quality, and controlled mixing at the microscale has led to the development of various types of micromixers. Micromixers are commonly categorised as active, or passive based on whether they utilise external energy to enhance mixing. Passive micromixers utilise a complex geometry to enhance the diffusion coefficient at lower Reynolds numbers and induce chaotic advection at higher Reynolds numbers for effectively mixing fluids without external energy. Active micromixers, on the other hand, achieve precise, fast, and controllable mixing by employing external energy sources such as pressure, electric, magnetic, or acoustic fields. Some active methods such as magnetic …

What’S In A Name? Esg Mutual Funds And The Sec’S Names Rule, Jill Fisch, Adriana Robertson

Articles

As investor money flows into environmental, social and governance (“ESG”) mutual funds, regulators have raised growing concerns about greenwashing—specifically that a fund’s name will falsely suggest that the fund invests in companies that meet certain ESG standards. To address these concerns, the Securities & Exchange Commission (“SEC”) proposed amendments to the Investment Company Act (“Names Rule”). The amendments extend the scope of the Names Rule to funds whose names include terms such as ESG, green, or sustainable. If adopted, they will require such funds to invest at least 80% of the value of their assets in companies that meet the …

Discretionary Investing By ‘Passive’ S&P 500 Funds, Adriana Robertson, Peter Molk

Articles

So-called passive index funds—investment funds that are designed to track a prespecified underlying index—have become a dominant force in the investing landscape, collectively controlling over $12 trillion in assets. It is widely assumed that these funds are obligated to follow their underlying index, and that fund managers cannot, or do not, select portfolios that devi- ate from the index’s holdings. As a result, various critics have attacked these funds, raising concerns about their corporate governance incentives and their influence on market efficiency.

We show this assumption is overly simplistic. To do so, we examine funds that track the most prominent …

Administrative Enslavement, Adam Davidson

Articles

No abstract provided.

Tailwiz: Empowering Domain Experts With Easy-To-Use, Task-Specific Natural Language Processing Models, Austin Peters, Tim Daj, Jonah Gelbach, David Freeman, Daniel Khang

Articles

Experts outside the field of machine learning (ML) are interested in using ML techniques to analyze their textual data, but they are inhibited by a lack of convenient natural language processing (NLP) tools. To address this issue, we present tailwiz, an easy-to-use Python tool, powered by supervised fine-tuning of NLP models. tailwiz caters to domain experts by abstracting away technical ML knowledge and running conveniently on personal computers, the preferred mode of computation among domain experts. We show that tailwiz outperforms domain experts’ current textual analysis techniques on a majority of real-world tasks, up to a 384.8% F1 increase (46.18% …

Foreign Affairs, Nondelegation, And The Major Questions Doctrine, Curtis Bradley, Jack Goldsmith

Articles

Some of the Supreme Court Justices and scholars who support a reinvigoration of the nondelegation doctrine would allow for an exception for grants of authority relating to foreign affairs. Others have criticized such an exception as unprincipled or as reflecting improper “foreign affairs exceptionalism.” This Article argues against a foreign affairs exception to the nondelegation doctrine but contends that the doctrine should be applied less strictly when a statutory authorization relates to an area of independent presidential power. The President has more independent power relating to foreign affairs than domestic affairs, so this limitation on the nondelegation doctrine will do …

The Limits Of Diplomacy By Treaty: Evidence From China's Bilateral Investment Treaty Program, Adam Chilton, Weijia Rao

Articles

The web of over 3000 Bilateral Investment Treaties (“BITs”) is the primary body of international law regulating cross-border investments. Research suggests that these treaties may have had a limited impact on promoting new investments, but that they still may have helped to improve countries’ political relationships. In this paper, we document that this pattern was reversed for one of the most prolific signers of BITs: China. Using a stacked-event research design, we find that Chinese BITs are associated with an increase in Bilateral Foreign Direct Investment Flows but a divergence in voting patterns at the United Nations. We then explore …

The Warren Court V. The Roberts Court, Geoffrey Stone

Articles

No abstract provided.

What Brown Taught Us About The Constitution, David Strauss

Articles

No abstract provided.

Falsely Shouting Fire, Genevieve Lakier, Evelyn Douek

Articles

Research on legal diffusion typically focuses on laws’ initial adoption and ignores their later evolution. We develop a typology of three subsequent diffusion patterns: convergence, when countries revise laws to move closer to leading regulators; customization, when countries revise laws to move away from leading regulators; and stagnation, when countries cease legislating, leaving initially adopted laws in place. We then propose a general theory suggesting that economic size and geographic distance from leading regulators predict which of the three patterns countries follow. We explore this theory with case studies on the dynamic diffusion of antitrust laws in Russia, Colombia, and …

Structural Logics Of Presidential Disqualification: An Essay On Trump V. Anderson, Aziz Huq

Articles

No abstract provided.

Opening Dialogue, Lee Bollinger, Geoffrey Stone

Articles

No abstract provided.

The Necessary And Proper Stewardship Of Judicial Data, Aziz Huq, Zachary Clopton

Articles

Governments and commercial firms create profit and social gain by exploiting large pools of data. One source of valuable data, however, lies in public hands yet remains largely untapped. While the deep reservoirs of data produced by Congress and federal agencies have long been available for public use, the data produced by the federal judiciary is only loosely regulated, imperfectly available to the public at large, and largely ignored by scholars.

The ordinary process of litigation in federal courts generates an enormous volume of data. Especially after recent developments in large language models, this data holds immense potential. It can …