Digital Commons Network^™

The Origins Of The Legal Imagination, James Boyd White

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I want to say at the outset that I feel honored beyond imagining at this celebration of the fiftieth anniversary of my book, and all the more because it is you who have set this up—so many beloved friends over the years and others who will surely become friends. I thank you deeply.

As I wondered about what I might say this morning, I thought perhaps you would be interested in where this truly odd book, with its 986 pages of readings and questions, came from.

What Is The Best Candidate For A Post-Moore Constitutional Challenge?, Reuven S. Avi-Yonah

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On December 5, 2023, the Supreme Court heard oral arguments in Moore, the case challenging the constitutionality of the mandatory repatriation tax enacted in 2017 (section 965). Most of the justices' questions focused on the potential collateral consequences from requiring realization as a constitutional matter, and the majority seemed inclined to avoid the constitutional issue by focusing on the fact that the income in Moore was realized and that section 965 simply followed a long list of precedents by attributing this corporate income to shareholders in a closely held corporation.

Effects From Moore: Does The Corporate Tax Require Realization?, Reuven S. Avi-Yonah

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This paper explores the history of the corporate tax as an excise versus income tax and explains potential effects from the Moore and Altria cases.

Research Access To Social Media Data: Lessons From Clinical Trial Data Sharing, Christopher J. Morten, Gabriel Nicholas, Salomé Vilgoen

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For years, social media companies have sparred with lawmakers over how much independent access to platform data they should provide researchers. Sharing data with researchers allows the public to better understand the risks and harms associated with social media, including areas such as misinformation, child safety, and political polarization. Yet researcher access is controversial. Privacy advocates and companies raise the potential privacy threats of researchers using such data irresponsibly. In addition, social media companies raise concerns over trade secrecy: the data these companies hold and the algorithms powered by that data are secretive sources of competitive advantage. This Article shows …

Valuing Social Data, Amanda Parsons, Salome Viljoen

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Social data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production that is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that …

Congress And Shifting Sands In Administrative Law., Christopher J. Walker

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In recent years, we have seen an anti-administrativist turn in the federal judiciary, with the Supreme Court limiting agency power in important respects. These shifting sands in administrative law seem to be motivated, at least in part, by the Court’s perception of the rise of presidential administration and decline in legislative activity. As part of the Widener Commonwealth Law Review Judging in Administrative Law Symposium, this Essay assesses how the Court has responded to concerns about over-presidentialism and then sketches out several ways Congress can respond to reassert itself in federal lawmaking.

Applying Strict Scrutiny In Termination Of Parental Rights Proceedings: Why Alabama’S Jurisprudence Should Reshape Child Protection Practice, Christopher Church, Vivek Sankaran

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“Our decision in [Pierce] holds that parents have a fundamental constitutional right to rear their children . . . . I would apply strict scrutiny to infringements of fundamental rights.” “[S]trict scrutiny leaves few survivors.” Termination of parental rights (TPR) stands as “a unique kind of deprivation” that results in the state irrevocably severing a parent’s fundamental right to care for their child. In The Ties that Bind Us, we scrutinized the child protection system’s overuse of TPR, employing clinical, empirical, and constitutional perspectives. This Article advocates for a constitutionally anchored framework aimed at enforcing strict scrutiny when considering TPR …

Taxation And Corporate Governance, Reuven S. Avi-Yonah, Ariel Siman

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Legal and economic scholars have examined the intersection between corporate governance and taxation; however, recent legal scholarship has generally focused on the interplay between director compensation, management measures in the face of the market for corporate control, and the double taxation of inter-corporate dividends. Other aspects of the relationship between corporate governance and taxation have received limited attention. This article aims to fill this gap in the literature. First, this paper discusses the corporate agency problem and the existing justifications for the corporate tax. Second, this paper argues that the corporate tax can be justified on the ground that it …

The American Antimonopoly Tradition: Origins, Contradictions, Transformations, Daniel A. Crane

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Proponents of antitrust reform argue for the rediscovery of an American antimonopoly tradition that predated the Sherman Act by centuries and suggests the reimagination of a more robust contemporary policy against concentrated economic power. But historically there have been a number of distinct and often contradictory strands of American antimonopoly. The American colanists inherited a weak, recent, and largely invented antimonopoly common law tradition focused on exclusive grants of privilege from the crown. In the nineteenth century, antimonopoly became a generative and ubiquitous concept in state legislatures and courts, but one with multiple, inconsistent meanings that evolved in the decades …

America's Next "Stop Model!": Model Deletion, Jevan Hutson, Ben Winters

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This Essay explores the emergence of model deletion- the compelled destruction or dispossession of certain data, algorithms, models, and associated work products created or shaped by illegal means- as a remedy, right, and requirement for harmful applications of Al and ML systems. Part I examines model deletion's emergence as a consumer protection remedy and its conception as a positive right and regulatory requirement. Part II considers the constellation of federal and state actors, such as federal and state enforcement agencies and legislative bodies, who might seek model deletion to address particular Al and ML harms. Part III underscores the need …

Entrepreneurship As Collective Action: The Next Frontier., Cyrine Ben-Hafaïedh, Claire Champenois, Thomas M. Cooney, Leon Schjoedt

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Collective action in entrepreneurship is lacking in the extant literature. Despite entrepreneurship research progressively moves away from the focus of a lone heroic entrepreneur, scholars have yet to absorb the full potential of entrepreneurship as collective action. Also missing is a collective stance on key entrepreneurship concepts such as opportunity discovery or construction and entrepreneurial agency. Accordingly, this article reviews and critiques five articles that constitute this Special Issue seeking to establish ‘entrepreneurship as collective action’ as the next frontier of entrepreneurship theory development. The articles in this Special Issue each investigate a specific instance of collective action in entrepreneurship. …

Regulating More?: Comparing Ireland's Original And Amended Lobbying Legislation, John Hogan

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This paper compares the amendments introduced by the Regulation of Lobbying and Oireachtas (Allowances to Members) (Amendment) Act 2023 with the original regulations of the Regulation of Lobbying Act 2015. The study was conducted using the Hired Guns Method for assessing the robustness of lobbying legislation, developed by the Centre for Public Integrity (CPI), allowing findings to be compared with lobbying regulations internationally. The 2015 legislation was introduced after years of tribunals, scandals, unfulfilled political promises, and economic crisis, in an effort to increase the public's trust in politicians, representative institutions, democracy and the wider bureaucracy. The 2023 Amendment came …

Framing A Feminist Phenomenological Inquiry Into The Lived Experiences Of Women Entrepreneurs, Edicleia Oliveira, Serge Basini, Thomas M. Cooney

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Purpose: This article aims to explore the potential of feminist phenomenology as a conceptual framework for advancing women's entrepreneurship research and the suitability of interpretative phenomenological analysis (IPA) to the proposed framework. Design/methodology/approach: The article critically examines the current state of women's entrepreneurship research regarding the institutional context and highlights the benefits of a shift towards feminist phenomenology. Findings: The prevailing disembodied and gender-neutral portrayal of entrepreneurship has resulted in an equivocal understanding of women's entrepreneurship and perpetuated a male-biased discourse within research and practice. By adopting a feminist phenomenological approach, this article argues for the importance of considering the …

Navigating Gendered Spaces: A Feminist Phenomenological Exploration Of Women Entrepreneurs Lived Experiences Within Government Support Agencies, Edicleia Oliveira, Serge Basini, Thomas M. Cooney

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Purpose: This article explores women entrepreneurs' lived experiences in their interactions with government enterprise support agencies. It investigates the relationship between gendering and Entrepreneurial Orientation (EO), as a normative orientation adopted at the institutional level and justified by an economic rationale. It also explores how women entrepreneurs articulate their experiences through embodied metaphors and image schemas, shedding light on how they navigate the institutional entrepreneurial space. Design/methodology/approach: This study is framed within the concept of Phenomenological Orientation as conceptualised in feminist phenomenology. It applies Interpretative Phenomenological Analysis, a qualitative methodology focused on interpreting accounts of first-person lived experiences of a …

Enhancing Inclusive Entrepreneurial Activity Through Community Engagement Led By Higher Education Institutions, Emma O'Brien, Thomas M. Cooney

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While supporting entrepreneurship through government intervention has become a global phenomenon, the OECD (2021) has identified that several communities (including women, youth, seniors, unemployed and immigrants) remain under-represented in terms of entrepreneurial activity. Inclusive entrepreneurship policies seek to enhance economic and social inclusion and emphasise the significant contribution that people from within these communities could make to local and regional development if appropriate support was offered. The purpose of this study is to examine how higher education institutions (HEIs) can co-create inclusive entrepreneurial training initiatives with local communities that support economic and social inclusion.

A Critical Race Theory Analysis Of Critical Race Theory Bans, Caroline Mala Corbin

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A majority of state legislatures have introduced bills prohibiting public schools from teaching certain "divisive concepts" attributed to critical race theory (CRT), with at least fifteen states successfully enacting them. This Article applies a critical race theory analysis to these critical race theory bans, finding that the bans embody white privilege and especially its companion, white fragility.

After providing a primer on critical race theory, Part I explains how the state bans profoundly misunderstand critical race theory, which focuses on how systems and institutions reproduce racial inequality. These bans, however, assume that racism is individual, intentional, and rare, and that …

Exoneration Finance, Kay L. Levine, Russell M. Gold

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The path to financial compensation for the wrongfully convicted can be complex and time-consuming. Exonerees often struggle to make ends meet and function in free society, let alone navigate serpentine processes while waiting years for the recovery they deserve. Securing the assistance of an attorney is often a critical step, but too few lawyers are willing to risk accepting these complicated cases on a contingency-fee basis the only way that exoneree-clients can likely pay their lawyers without outside help.

Litigation finance an important tool for increasing access to justice in tort cases could help close this access to justice gap …

A Scholarly Judge: The Honorable William Holcombe Pryor Jr., Kenneth M. Rosen

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No abstract provided.

The Price Of Criminal Law, Russell M. Gold

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Should tax dollars pay for more criminal law, better public schools, or a new community center? Different counties will answer the question differently, but facing these tradeoffs is profoundly important to democratic governance. Nonetheless, because the criminal legal system diffuses power and hides and offioads costs, officials and voters do not have to honestly consider that question. These structural features place a hidden thumb on the scale that gives counties more criminal enforcement than they pay for. That is a problem. Too much enforcement is particularly pernicious in criminal law: Incarceration inflicts tremendous suffering, especially in poor communities of color. …

Children's Autonomy Rights Online, Clare Ryan

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No abstract provided.

The Right To Remove In Agency Adjudication, Christopher J. Walker, David Zaring

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In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication …

Rethinking Innovation At Fda, Rachel E. Sachs, Nicholson Price, Patricia J. Zeitler

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In several controversial drug approval decisions in recent years, the Food & Drug Administration (“FDA”) has publicly justified its decision partly on the ground that approving the drugs in question would support innovation in those fields going forward. To some observers, these arguments were surprising, as the Agency’s determination whether a drug is “safe” and “effective” does not seem to depend on whether its approval also supports innovation. But FDA’s use of these innovation arguments in drug approval decisions is just one example of the ways in which the Agency has come to make many innovation-related judgments as part of …

Two Takes On Administrative Change From The Roberts Court, Daniel Deacon, Leah Litman

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In Loper Bright Enterprises v. Raimondo, the Supreme Court finally did what many long hoped (or feared) it would do: overrule Chevron v. Natural Resources Defense Council. Chevron instructed courts to defer to an agency’s interpretation of an ambiguous statutory provision, provided the interpretation was reasonable. Chevron, according to Justice Kagan, had “served as a cornerstone of administrative law” and “the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” Not surprisingly, statutes governing such matters contain quite a number of …

Sins And Omissions: Slavery And The Bill Of Rights, Richard Primus

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According to the conventional story, the Constitutional Convention declined to include a bill of rights in the Constitution because it trusted the enumeration of congressional powers to do the necessary work of limiting the federal government. That conventional story is historically unfounded. It is not supported by contemporary evidence, and it was roundly disbelieved at the time. Although it is not possible to know for certain why (really, for what mix of reasons) the Framers omitted a bill of rights, it seems likely that one major reason was that formulating a bill of rights would have provoked a bitter fight …

Channeling A Federal Right To Education Through State Constitutions And Courts, Nicole Sunderlin, Evan Caminker

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Professor Black attributes the ubiquitous adoption of education clauses in state constitutions in the immediate pre- and especially post-Reconstruction era to a “constitutional compromise” struck by Congress and the states. The State Citizenship commitment was designed to enhance the republican nature of both levels of governance by ensuring broader access to political participation through voting and broader access to public education to inform and support democratic deliberation. The education component of this commitment was uniquely secured, argues Black, through a state-federal compromise using two complementary mechanisms: first, by mandating states to embrace a state constitutional obligation to provide basic educational …

Raman Spectroscopic Analysis Of Human Blood Serum Of Glaucoma Patients Supplemented With Macular Pigment Carotenoids, Joy Udensi, Ekaterina Loskutova, James Loughman, Hugh J. Byrne

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As all major dietary carotenoids are contained in blood, it is a suitable substrate to evaluate their content, in vivo. Following 18-month supplementation of open-angle glaucoma patients with macula-pigment carotenoids (Lutein, Zeaxanthin and Meso-Zeaxanthin) in the European Nutrition in Glaucoma Management trial, Raman spectroscopic analysis of the carotenoid content of pre- and post-supplementation participant blood serum was carried out, to investigate the systemic impact of the supplementation regimen and explore a more direct way of quantifying this impact using routine blood tests. Using a 532 nm laser source for optimal response, a consistent increase in serum carotenoid concentration was observed …

The Forthcoming General Election In The Republic Of Ireland: Winds Of (Left-Wing) Change Or Plus Ça Change?, Chris O'Ralaigh

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The forthcoming general election will be the most consequential electoral contest for the Republic of Ireland in a century. The polity is situated in truly novel territory with the potential for an historic first: the incoming of a Sinn Féin-led, left-wing government. Any such government would portend change in the North of Ireland, symbolising a critical juncture on the path towards the ending of partition. Analysing electoral and ideological shifts across the post-2008 period, this article examines the immediate prospects for the coming to power of a left-wing government and an historic first in Irish politics.

Ideological Presuppositions In Media Coverage Of Corporation Tax Policy In The Uk And Ireland: A Critical Discourse Analysis, Ciara Graham, Brendan K. O'Rourke

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This paper argues that the state's capacity to tax corporations in order to fund itself is reaching crisis proportions. Following decades of trade liberalization, deregulation, and globalization, large multinational companies have been able to take advantage of tax competition between states in order to avoid taxation and offset their obligations. This crisis, arguably, has been facilitated by state actors and exacerbated by non-state actors: we explore the ways in which multi-national corporations (MNCs) manipulate their capital, assets, and supply chains to minimize their tax burdens; and we further consider the ways in which media narratives construct this issue and whether …

Can Community Festivals Make Urban Places More Hospitable?, Bernadette Quinn

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Cultivating places and spaces to encourage sociality and foster sociocultural inclusion is a very pertinent societal challenge. Community festivals are often marshalled in the interest of making cities more hospitable for the increasing numbers of migrants, refugees, remote workers and tourists internationally on the move. This study investigates if and how community festivals are constructing hospitality through their practices. The findings are drawn from a qualitative study of two community festivals in Dublin's North East Inner City, an ethnically diverse area characterized by social disadvantage. They suggest that community festivals can make places more hospitable. However, the approaches taken to …

Why The United States Needs A Gaar, Reuven S. Avi-Yonah

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The Internal Revenue Code of 1986, as amended, has over 1 million words and more than 5,600 pages. It is by far the longest and most complicated law in the U.S. code. The regulations add over 4 million words. Why?