Digital Commons Network^™

Prosecutorial Data Transparency And Data Justice, Perry Moriearty

Articles

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

The Right To Fail, Alexander Boni-Saenz

Articles

In 2013, the Department of Justice entered into a consent decree with the state of New York concerning the lives of 4,000 people with mental illness who had been segregated into group homes in the state. These group homes were overcrowded and dangerous, and New York agreed to move all but the most severely mentally ill people into supportive housing, if they desired it. This outcome was seen as vindicating the dignity of risk, a foundational value of disability rights scholarship and politics. This principle holds that it is normatively desirable for individuals to be able to make their own …

When An Indicted Candidate Wins The Presidency: What Happens To The Trials If Donald Trump Wins The Election?, Richard Painter, Claire Finkelstein

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For the first time in U.S. history, one of the two leading candidates for President is a convicted felon and is in the middle of multiple criminal trials on other charges in both state and federal courts. This set of unprecedented circumstances raises a series of urgent legal questions of first impression, particularly in the case in which Donald Trump wins the election. Three questions in particular require urgent examination in the run-up to the 2024 presidential election, and potentially in the immediate post-election period, depending on the outcome. First, with regard to the federal charges prosecuted by the Department …

The Three-Verdict Problem, Jack Whiteley

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!n Scotland, for hundreds of years, juries have chosen between three criminal verdicts: “guilty,” “not guilty,” and “not proven.” The “not proven” verdict’s legal meaning remains mysterious. In this article, I aim to describe and solve the problem. Applying modern ideas about standards of proof to the intellectual history of “not proven” yields eight plausible meanings for the verdict. With the extent of the problem in mind, I offer a solution. In the three-verdict system, jurors should deliver a “guilty” verdict when they believe that the accused has committed the crime and a “not guilty” verdict when they believe that …

Scotus House: Can A Supreme Court Ethics Lawyer And Inspector General Help Get This Fraternity Under Control?, Richard Painter

Articles

Today, the United States Supreme Court is immersed in an ethics crisis of unprecedented proportions. Public confidence in the Court is at an all-time low and Congress is considering action. The Court is less likely to police itself than it was over fifty years ago when Justice Abraham Fortas resigned over a scandal that was probably less serious than that facing at least one justice today. This article discusses the Court’s recent scandals and explains multiple factors that make the Court prone to ethics lapses, perhaps more so than the other two branches of government. This Article then proposes that …

Stakeholder Engagement, Brett H. Mcdonnell

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No abstract provided.

Chevron On The Eve Of Loper Bright, Nicholas Bednar

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Chevron is dead. What does this mean for judicial review of agency interpretations of statutes in the lower courts? Perhaps not much. Using new data of circuit court decisions from 2012 and 2022, this Essay examines how lower courts changed their decision-making as the Supreme Court became more skeptical of Chevron deference. This Essay finds that---contrary to the assertion of some justices---circuit courts had not stopped applying Chevron in the lead up to Loper Bright. Moreover, courts agreed with agency interpretations of statutes at similar rates in both 2012 and 2022. Nevertheless, the data shows that the Supreme Court's …

Opportunistic Breach Of Contract, Francesco Parisi, Brian H. Bix, Ariel Porat

Articles

Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We …

The Seven Essential Law School Simulation Courses, Mitch Zamoff

Articles

As we mark the ten-year anniversary of the American Bar Association’s six-credit experiential learning requirement and the launch of the NextGen bar exam, it is critical for U.S. law schools to conduct rigorous assessments of their experiential education curricula. While most law schools now offer students meaningful opportunities to develop lawyering skills in clinics and field placements, there is much less consistency in their simulation course offerings. Simulation courses are a critical component of experiential legal education. While students in clinics and field placements gain valuable, realistic experience addressing the issues presented by their actual clients, those issues may sometimes …

Why Mass Incarceration Is Uniquely American, Michael Tonry

Articles

Mass incarceration, among Western countries a uniquely American phenomenon, resulted from a transformation of American criminal justice systems. Indeterminate sentencing systems in which legislatures established maximum sentences, prosecutors processed cases, judges decided who went to prison, and parole boards decided how long people stayed there were replaced by determinate systems in which legislatures prescribed minimum sentences, prosecutors made the key charging and sentencing decisions, judges processed cases and sentenced minor crimes, and parole boards lost much of their authority. Parole boards and judges become largely irrelevant whenever prosecutors file charges subject to mandatory sentence, three-strikes, truth-in-sentencing, and life without parole …

Metals Derivatives Markets And The Energy Transition, James W. Coleman, Colleen M. Baker

Articles

Despite their escalating importance, thus far, there has been minimal legal scholarship on metals derivatives markets. Given the key role of these markets in the transition to a clean energy future, increased focus on them is imperative.

Hence, it is not surprising that the agendas for the last four meetings of the Commodity Futures Trading Commission’s Energy and Environmental Markets Advisory Committee each dedicated a significant portion of the meeting to metals derivatives markets and their role in the transition to a clean energy future.

Fundamentally, the United States and the world are moving from their long-term dependence on the …

Derivatives Markets Fragilities And The Energy Transition, James W. Coleman, Colleen Baker

Articles

It is common knowledge that climate change concerns have prompted countries around the world to plan for a reduction in their fossil fuel dependencies. Yet while much attention has been placed on new low-carbon sources of energy such as wind, solar, and nuclear, comparatively little focus has centered on the commodity inputs, critical metals, needed to create this clean energy. In this article, we argue that at the heart of the energy transition is a commodities transition representing an unprecedented international reliance on critical metals, traditionally capricious commodities traded in global markets. Indeed, nations around the world have begun to …

What Should Caremark Encompass?, Claire A. Hill, Zohreh Zakiani

Articles

Under In re Caremark Int’l Inc. Derivative Litig., decided in 1996, directors are required to oversee corporate compliance and can be liable for breaching their fiduciary duties if their oversight efforts do not suffice. Since it was decided, Caremark has been very influential, notwithstanding its high bar to liability. Notably, its influence far exceeds the actual probability that directors would be found liable under the doctrine. Instead, much of Caremark’s force is “soft,” through extra-legal mechanisms such as norms and pressures from various constituencies. Caremark clearly covers oversight for violations of law or regulation. But what, beyond those two things, …

Redefining Public Benefits, Naomi Cahn, June R. Carbone

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This Article considers the interaction between marriage, households, and public welfare-type benefits. In light of constant cultural and media attention to “the two-parent privilege,” the article argues that the very purpose of public benefits in the modern era is up for redefinition. The information age, much like the industrial revolution before it, has remade the preconditions for entry into the middle class and contributed to new middle-class family strategies geared to the changing labor market realities. This new era, which has increased income instability and employment insecurity, has increased economic inequality and eroded what were once secure pathways into middle-class …

Advanced Porous Hip Implants: A Comprehensive Review, Babak Ziaie, Xavier Velay, Waqas Saleem

Articles

The field of orthopaedic implants has experienced significant advancements in recent years, transforming the approach to orthopaedic treatments. Amongst these advancements, porous structures have emerged as a promising solution to address the limitations of traditional solid implants. This comprehensive review paper offers a thorough overview of the importance of advanced porous hip implants, focusing on three key areas bone morphology and biomechanical parameters, complications associated with solid implants, and the benefits of porous structures and porous implants. Understanding the intricate interplay between bone morphology and biomechanical parameters is crucial when designing orthopaedic implants. Mimicking the native bone structure ensures optimal …

Supporting Educators To Stimulate Engineering Students' Lifelong Learning Competencies & Personal Development Process, Lynn Van Den Broeck, Rani Dujardin, Sofie Craps, Una Beagon, Aimee Byrne, Caitriona Depaor, Johanna Naukkarinen

Articles

This paper explores the possibilities to develop students' lifelong learning (LLL) competencies via supporting their personal development process (PDP) in engineering education. Despite the recognized importance of LLL, its embedment in learning outcomes remains limited. A survey revealed that both engineering students and educators value LLL competencies, but perceive them to be taught and evaluated only to a limited extent. This paper introduces a PDP model to support educators in fostering students' LLL competencies. The model, developed through literature review and educators' input, includes (1) a matrix with various interventions, such as e-portfolios, reflective writing, and student-centred teaching, categorised by …

Conferring Prestige Within Irish Diplomatic Dining: Éamon De Valera At Dublin Castle, 1934-1940, Elaine Mahon

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This article explores the use of the diplomatic meal to confer prestige within Irish international relations between 1934 and 1940 when Éamon de Valera was both President of the Executive Council of the Irish Free State and Minister for External Affairs. It examines how state hospitality evolved under de Valera’s leadership and how de Valera used the meal to confer varying levels of prestige, indicative of rank, status and provenance, on his guests of honour at Dublin Castle. The results would lay the foundation for further developments in state protocols for entertaining important visitors in preparation for Ireland’s growing international …

Access To Justice: A Roadmap To Creating And Launching Consumer Bankruptcy Experiential Programs In Law Schools, Ishaq Kundawala

Articles

It is increasingly difficult for people who need consumer bankruptcy relief to access it. Ironically, many of the people who most need it cannot afford it, and oftentimes they come from underserved communities. Large-scale solutions to this access to consumer bankruptcy problem have been discussed, and even proposed, but not yet implemented. While law schools cannot solve the access problem without congressional intervention, they can, at least, take steps to improve the status quo. One way law schools can address this problem is to create experiential programs focusing on consumer bankruptcy.

These types of programs offer a dual benefit. They …

Building Tomorrow's Consumer Bankruptcy Lawyers, Ishaq Kundawala

Articles

The consumer bankruptcy bar is aging, with many seasoned practitioners nearing retirement. A recent article from the American Bar Association highlights that nearly 14% of lawyers in the United States are 65 or older. I think the percentage of older lawyers may be even higher in the consumer bankruptcy bar. Next time you attend a bankruptcy conference, do me a favor and look around you. I promise you will be shocked by the glaring absence of newer lawyers.

Reconciling Riverside Bayview Homes, Sackett, And County Of Maui, Stephen Johnson

Articles

Near the end of the 2022 term, the Supreme Court issued its decision in Sackett v. EPA. The case has been described as "the most important Clean Water Act case the Court has ever decided, and ... probably ... one of the most impactful environmental decisions in the Court's history."  For the fourth time, the Court interpreted the meaning of the term "navigable waters" in the Clean Water Act (CWA), and the Sackett Court narrowed the interpretation of the term in a manner that critics claim will eliminate federal protection for more than 50% of the wetlands in the United …

Situating The Modern Public Trust Doctrine In Trust Law: The Duty Of Loyalty And The Case For Bifurcated, De Novo Judicial Review, Edward A. Zelinsky

Articles

This article situates the modern public trust doctrine (PTD) in contemporary trust law. Grounding the PTD in trust law leads to two important corollaries. First, the PTD planted in trust law imposes upon government actors and agencies trust law’s fiduciary duty of loyalty. In the context of the PTD, that duty of loyalty runs to the public as the beneficiary of the PTD. Second, faced with plausible claims that this fiduciary duty of loyalty to the public has been violated, courts should apply trust law’s de novo standard of review to those administrative and legislative decisions alleged to impair public …

Dobbs And Democracy, Melissa Murray, Katherine A. Shaw

Articles

In Dobbs v. Jackson Women’s Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree …

The Sweep And Force Of Section Three, William Baude, Michael Paulsen

Articles

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This Article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by …

Constraining Constitution-Making, Adam Chilton, Cristián Eyzaguirre, David Landau, Mila Versteeg

Articles

Whether constitution-making should be constrained has long been debated, but little is known about whether it is possible. We make several contributions to this question. We start by providing a typology of three types of constraints on constitution- making: Substantive, Procedural, and Institutional. We next develop a positive theory of when these constraints are likely to influence drafters’ behavior. We then use a mixed-methods approach to explore these ideas in the context of Chile’s constitutional reform process. In a survey experiment conducted in Chile before citizens voted on the draft constitution, we find that most respondents supported constraints in the …

The Doj And Ftc's Misguided Attack On Mergers, Richard Epstein

Articles

This Article reviews two recent joint statements by the DOJ and FTC. The first was their request for information on their proposals to “strengthen” the antitrust laws on mergers. The second was the July 2023 release of new draft guidelines which were subject to many comments, often critical of the new regime. The difficulties with both documents start with the initial premise of their inquiries, which falsely posit that any “improvement” of the antitrust laws requires imposing new sanctions on private activities—when in many cases a relaxation of current restrictions may be best. But both agencies write as if the …

Which Constitutional Provisions Are Most Important?, Adam Chilton, Richard Albert, Netta Barak-Corren, Daniel Brinks, Rosalind Dixon, Zachary Elkins, Tom Ginsburg, Ran Hirschl, David Landau, Ashley Moran, Yvonne Tew, Mila Versteeg

Articles

National constitutions codify provisions on a wide range of topics, ranging from presidential term limits to the country’s flag. But are all constitutional provisions equally important? Some are likely to be particularly consequential for how governments function, while others are likely to be largely symbolic. To date, there has been little research on the relative importance of constitutional provisions. To explore current thinking on this subject, we assembled a group of twelve comparative constitutional scholars to rate the relative importance of 340 constitutional provisions to the functioning of a country’s government. These aggregate ratings make three contributions to constitutional studies: …

Shadows Or Forgeries? Explaining Legal Normativity, Alma Diamond

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No abstract provided.

Relentless As Entrenchment, Jonathan Masur

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No abstract provided.

Lies And The Law: An Introduction, Genevieve Lakier

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No abstract provided.

The Additionality Double Standard, James Salzman, David Weisbach

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Carbon offsets are widely criticized for lacking additionality. The public debate, how- ever, has failed to recognize that the problem of additionality goes far beyond offsets. It arises any time the government subsidizes an activity. Programs with longer histories than offsets and far more money at stake offer valuable lessons for managing lack of additionality in offsets. The article sets out the current efforts to prove offset additionality, explains why major gov- ernment programs present comparable additionality challenges, and show why other programs’ problems of additionality are perceived as significantly different than those for offsets. We examine the toolkit used …