Digital Commons Network^™

The Legal Crisis Within The Climate Crisis, Mark P. Nevitt

Faculty Articles

Climate change creates a difficult choice for property owners and governmental officials alike: Should they invest in costly climate adaptation measures or retreat from climate-exposed areas? Either decision is fraught with legal uncertainty, running headfirst into antiquated legal doctrines designed for a more stable world. Climate impacts to the coastline are forcing policymakers to consider four adaptation tools: (1) resisting climate impacts by building sea walls and armoring the shoreline; (2) accommodating those impacts by elevating existing structures; (3) managed retreat such as systematically and preemptively moving people out of harm’s way; and (4) reactively moving people to new locations …

Partisan Panel Composition And Reliance On Earlier Opinions In The Circuit Courts, Stuart M. Benjamin, Byungkoo Kim, Kevin M. Quinn

Faculty Articles

Does the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard’s treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. First, are panels composed of three Democratic (Republican) appointees more likely to follow opinions decided by panels of three Democratic (Republican) appointees than are panels composed of three Republican (Democratic) appointees? Second, does the presence of a single out-party judge change how a panel relies on earlier decisions compared to what …

Second-Class Administrative Law: Lincoln V. Vigil'S Puzzling Presumption Of Unreviewability, Matthew B. Lawrence

Faculty Articles

Administrative law ordinarily presumes that someone hurt by “arbitrary and capricious” agency action may seek relief in federal court unless Congress says otherwise. Administrative law does the opposite, however, when the harmful agency action happens to be one “allocating a lump-sum appropriation” (whatever that means). When it comes to spending programs that courts deem to fit in this ill-defined category, agency actions are presumptively immune from judicial review, insulated from the safeguards of administrative law no matter how arbitrary.

This Article looks behind the superficial, technocratic simplicity of the presumption of unreviewability through a novel, person-sensitive study of its origins …

Fairness And Fair Use In Generative Ai, Matthew Sag

Faculty Articles

Although we are still a long way from the science fiction version of “artificial general intelligence” that thinks, feels, and refuses to “open the pod bay doors,” recent advances in machine learning and artificial intelligence (AI) have captured the public’s imagination and lawmakers’ interest. We now have large language models (LLMs) that can pass the bar exam, carry on (what passes for) a conversation about almost any topic, create new music, and create new visual art. These artifacts are often indistinguishable from their human-authored counterparts and yet can be produced at a speed and scale surpassing human ability.

“Generative AI” …

Separation Of Structures, Alex Zhang

Faculty Articles

This Article makes three main contributions. First, it fleshes out the theory of separation of structures as distinct from contemporary scholarly approaches. Second, it writes the intellectual history of separation of structures, which has been an integral part of the separation of powers enterprise since its inception, including at the Founding. Third, it explores the scholarly and doctrinal implications of structural separation of powers. In particular, adjudicating the constitutionality of agency structures requires methodological pluralism that incorporates the normative values underlying the structural design. That is, under separation of structures, current doctrine should evolve beyond the formalism heavily criticized by …

When Is Legal Methodology Binding?, Jonathan R. Nash

Faculty Articles

Common-law interpretive methodologies are mostly nonbinding, but some interpretive methodologies are seen as binding precedent. This Article offers an explanation for this state of affairs. Whereas the extant scholarship on common-law interpretive methodologies offers descriptive accounts (often assuming that common-law methodologies are per se nonbinding) and normative analysis, this Article fills a gap in the literature by providing a realist explanation for the legal landscape of binding interpretive methodologies. It identifies whether a methodology is rule-like, and whether it increases judicial legitimacy and/or court power as “pull factors”—that is, incentives that might attract judges to recognize interpretive methodologies as binding. …

Pyrrhic Victories: The Mirage Of Winning At The Supreme Court, Tonja Jacobi, Clare G. Willis

Faculty Articles

We conduct in-depth archival research of landmark constitutional criminal procedure cases and find two ways in which the declarations of the vindication of rights they contain are misleading. First, most defendants who successfully establish police violations of their constitutional rights before the highest court in the land nonetheless remain in prison for years or decades subsequently. The multitude of ways in which the state can convict the individual defendant even in the face of one or more constitutional violations means that the Supreme Court precedents that bear their names seldom translate to genuine wins for the defendants. Second, there are …

Climate Risk, Insurance Retreat, And State Response, Mark P. Nevitt, Michael Pappas

Faculty Articles

Climate change is fundamentally destabilizing the private insurance industry, with many high-profile insurance companies exiting states in the face of catastrophic, climate-­induced risk. This rapid "insurance retreat" represents a major market signal in response to climate-exacerbated risks. Private businesses are making actuarial decisions, assessing that some locations are just too vulnerable to insure. At the same time, this insurance retreat also poses a policy challenge for states as they react to the mounting insurance gaps left by exiting private insurers.

This Article analyzes insurance retreat, its attendant policy challenges, and the lessons that can be drawn from state responses. It …

A New Great Awakening Of Religious Freedom In America, John Witte Jr.

Faculty Articles

While loud criticisms of religion continue to clatter in the media and the law reviews, the U.S. Supreme Court has led a great awakening of American religious freedom. In more than two dozen cases since 2011, the Court has used both the First Amendment and federal statutes to strengthen the rights of religious organizations to make their own internal decisions about employment and employee benefits. The Court has held that some forms of government aid to religion and religious education are not only permissible under the Establishment Clause, but also required under the Free Exercise and Free Speech Clauses. The …

Corporate Law As Decolonization, Martin W. Sybblis

Faculty Articles

After centuries of colonial subordination, Black and Brown former colonies are still fighting to achieve the fruits of decolonization. The traditional theory is that former colonies will emerge from the colonial period with the legal mandate and international recognition needed to chart their own futures. But, for those Black and Brown British colonies that achieved political independence, it became clear that, without economic strength to care for their societies, legal separation could not deliver on its promise of freedom from subordination. This Article argues that investments in corporate law innovations by some jurisdictions, such as Bermuda, the British Virgin Islands, …

Learning Law In Elementary And High School: Innovating Civics Education For A More Empowered Citizenry, Ariel J. Liberman, Michael J. Broyde

Faculty Articles

A principal objective of the public school system in a democracy is to promote societal cohesion by way of preparing students for civic engagement. There exists a founding belief that a democratic nation ought to be composed of educated activists, run by innovators, and kept in check by involved citizens. For, indisputably, the democratic experiment—our values, our institutions—can only be upheld anew with each generation on the backs of critique, reinvention, and reinvigoration. But, as so many have mentioned when discussing the civics education paradigm, the increase in educational opportunities and the marked expansion of our school system has not …

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

Faculty Articles

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 for exonerees. In …

Human Capital Disclosure & Corporate Governance: The New Evidence, George S. Georgiev

Faculty Articles

This Article explores the evolution of human capital disclosure—firm-supplied information about various workforce-related matters—as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management (“HCM”) disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in board of directors’ oversight responsibilities in a number of areas, including HCM, while labor’s power has unexpectedly increased in some …

Operationalizing Power In Health Law: The Hospital Abolition Hypothesis, Matthew B. Lawrence

Faculty Articles

This symposium Article describes how prison abolitionist arguments also support the hypothesis that a defining goal of health law should be the abolition of hospitals. Like prison abolitionism, the hospital abolition hypothesis can provide a constructive way to shift the focus of legal analysis from substantive dimensions (in health law — cost, quality, access, and equity) to the dimension of power.

Law In Inaction: The Origins And Implications Of Chronic Drug Law Underenforcement In One Southern County, Kay L. Levine, Elizabeth Griffiths, Joshua M. Hinkle, Volkan Topalli

Faculty Articles

Common accounts of police and prosecutorial nonenforcement discretion tend to valorize individual declination choices as demonstrations of mercy and resource constraint. Simultaneously, these accounts critique blanket nonenforcement policies as being outside the bounds of executive authority. Both accounts fail to consider the origins and implications of nonenforcement decisions made by police officers and prosecutors in individual cases that, when taken together, amount to significant underenforcement of an otherwise valid law.

This Article fills the gap between these differing perspectives by empirically examining the hidden and habitual underenforcement of technically valid drug-free-zone (DFZ) laws in one Southern county. Data matching the …

Rethinking Health Law Architecture, Ani B. Satz

Faculty Articles

Neither the individualistic regulatory health paradigm nor the vulnerable populations approach of public health can provide the legal structure necessary to address the most pressing problems in health care today. These approaches fail to address conflicts between individuals and populations as well as challenges to qualifying for care and are in inherent conflict with each other, sometimes within the same statute. As health concerns become more global, it is necessary to move past a vulnerable populations approach to a broader population approach that respects individual choice but does not sacrifice community health for liberty interests.

Climatizing National Security, Mark P. Nevitt

Faculty Articles

Is climate change a national security issue? Human security? Ecological security? This Article addresses the growing nexus between climate change and various conceptions of security with a particular emphasis on climate change's national security impacts. This Article argues that there is a growing connection between national security and climate change and a corresponding need to address the normative implications of "climatizing national security." This connection can be observed through three lenses: mitigation (reducing greenhouse gas emissions from military and national security sources); adaptation (investing in climate resilient infrastructure in an effort to prepare for climate impacts), and response (addressing climate-exacerbated …

Anna Nicole's Constitutional Estates Law Legacy, David Fagundes

Faculty Articles

This Essay examines Anna Nicole's surprising constitutional estates legacy in three parts. First, it overviews the bitter litigation between Anna Nicole and the estate of J. Howard Marshall II. It then turns to the pair of Supreme Court cases spawned by that litigation. Part II discusses the holding and significance of Marshall v. Marshall, a successful challenge to the scope of the wills exception to federal jurisdiction. Part III dis­cusses the holding and significance of Stern v. Marshall, which held that Article I bankruptcy judges cannot enter final judgments on state law counterclaims. In its Conclusion, the Essay …

Derailing Democracy, Shrinking Responsibility: The New Election Law Landscape, Cory Conley, Tonja Jacobi

Faculty Articles

In democracy jurisprudence, the Roberts Court wears two faces. Its most recent duo of cases illustrates the inconsistency. In Rucho v. Common Cause, the Court ruled that even grossly partisan gerrymanders are nonjusticiable in federal courts. Yet, in Moore v. Harper, the Court rejected granting unreviewable authority to state lawmakers to regulate federal elections—for now. This combination of rulings is not ideological moderation or judicial restraint, as the Court claims. These recent cases are emblematic of broader unpredictability and selectivity in election law. The assertions of judicial humility in Rucho stand in stark contrast to the bald activism …

Innovator Ecosystem Diversity As A Global Competitiveness Imperative, Margo A. Bagley

Faculty Articles

There are myriad ways that discrimination and bias can combine to profoundly limit inventor participation in the patent process. The utilitarian purpose of patents is to incentivize inventors to invent and disclose, so it makes sense to incentivize as large and as diverse a group as possible in order to maximize the likely output of innovative activity. This incentive is important in terms of our geopolitical aspirations as a country, but hopefully also because of our democratic commitment to provide opportunities for flourishing and reaching one's potential that are available to all.

The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli

Faculty Articles

School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.

Tax credits’ prevalence is not inexplicable, of course. It is …

Institutional Design And The Predictability Of Judicial Interruptions At Oral Argument, Tonja Jacobi, Patrick Leslie, Zoë Robinson

Faculty Articles

Examining oral argument in the Australian High Court and comparing to the U.S. Supreme Court, this article shows that institutional design drives judicial interruptive behavior. Many of the same individual- and case-level factors predict oral argument behavior. Notably, despite orthodoxy of the High Court as “apolitical,” ideology strongly predicts interruptions, just as in the United States. Yet, important divergent institutional design features between the two apex courts translate into meaningful behavioral differences, with the greater power of the Chief Justice resulting in differences in interruptions. Finally, gender effects are lower and only identifiable with new methodological techniques we develop and …

Environmental War, Climate Security, And The Russia-Ukraine Crisis, Mark P. Nevitt

Faculty Articles

This Article addresses the Russia-Ukraine conflict’s broad implications for energy security, climate security, and environment protections during wartime. I assert that in the short-term the Russian-Ukraine war is poised to hinder much-needed international climate progress. It will stymie international decarbonization efforts and cause greater uncertainty in other climate-destabilized parts of the world, such as the Arctic. While Russia has become a pariah in the eyes of the United States and other Western nations, it has forged new partnerships and capitalized on new, lucrative energy markets outside the West and Global South. But in the long term, the global renewable energy …

The Past As A Colonialist Resource, Deepa Das Acevedo

Faculty Articles

Originalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.

Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on …

Rethinking Eisner V. Macomber, And The Future Of Structural Tax Reform, Alex Zhang

Faculty Articles

In June 2023, the Supreme Court granted the petition for a writ of certiorari in Moore v. United States, ostensibly a challenge to an obscure provision of the 2017 tax legislation. Moore’s real target is the constitutionality of federal wealth and accrual taxation, which policymakers have proposed to combat record inequality and raise revenue for social-welfare reform. At the center of the doctrinal dispute in Moore is a century-old case, Eisner v. Macomber, on which the Moore petitioners and other commentators have relied to argue that Congress has no power to tax wealth or unrealized gains—e.g., appreciation …

Cultivating Attentiveness To Law In India Through Legal Anthropology, Deepa Das Acevedo, Jahnavi Chamarthi

Faculty Articles

This Article reviews and analyses scholarship at the intersection of anthropology and law. The first half of the Article provides context for understanding the boundaries, animating concerns, and tensions that have characterised the anthropology of law as an area of interdisciplinary inquiry. We focus especially on the subdiscipline’s Anglo-American history and show how a promising early period of engagement dissipated as both anthropologists and legal scholars lost enthusiasm for each others’ insights and methods. Then, we expand our analysis outward. Because legal anthropology belongs within, and is increasingly attentive to, the broader field of law and society scholarship, we explore …

Assessing The Potential Consequences Of Students For Fair Admissions (Sffa) On The Small Business Development Program, Erin Carr, Ralph Capio

Faculty Articles

Small businesses play a pivotal role in the United States job market, constituting the largest source of employment throughout the national economy and employing more than 60 million Americans. However, small socially and economically disadvantaged firms, particularly those owned and operated by minoritized entrepreneurs, face substantial underrepresentation and challenges in securing government contract awards. Minority-owned firms have historically had difficulty in securing capital investments in comparison to non-minority-owned businesses due to having had to contend with the ongoing effects of systemic racism over generations. Acknowledging the tremendous value of small socially and economically disadvantaged businesses to the overall health and …

Balancing Interests: Ai, Business & Human Rights, And The Legal Landscape In An Era Of Disruption, Jena Martin, Ritu Narula

Faculty Articles

On October 30, 2023, the Biden Administration issued a sweeping executive order espousing a policy to advance the development and use of artificial intelligence ("Al") while also establishing safeguards across the federal government. The Executive Order marked the U.S. government's largest move forward related to the regulation of Al. The Order also represents the government's latest effort to advance equity, privacy, and national security in the use of AI systems. Moreover, the Order comes at a time when governments around the world are wrestling with the impact of AI and its disruptive effect, not just on markets, but on society …

Library Crime, Michael L. Smith

Faculty Articles

Libraries are often idealized as one of the few remaining safe, public spaces. Beyond providing books and internet access, they are a source of shelter, warmth, restrooms, and a place to stay without a reason for society's most vulnerable. But libraries are also at the core of a network of criminal laws that punish a wide array of library-related conduct. Steal a book? Write in or otherwise damage materials? Fail to return an item? Hide a book in a manner that looks like you are about to steal it? Many states criminalize these activities, often punishing them with potential jail …

Investigating The Effect Of Organizational Culture On Knowledge Management Across A Large Banking Network In Sub-Saharan Africa, Samson Debela Ayana, Getachew H. Mengesha, Philip F. Musa, Solomon Negash

Faculty Articles

This study intends to understand how organizational culture affects knowledge management using the Newman and Conrad knowledge management and competing value framework. A survey questionnaire was used to collect data from 161 respondents at Awash Bank located in Addis Ababa, Ethiopia. Smart PLS V.3 was used to analyze the data. The finding reveals that organizational culture significantly affects knowledge management. The study also affirms that clan culture and adhocracy culture have a strong direct effect on knowledge management. Hierarchy culture has a less positive effect on knowledge management. In a nutshell, the outcome of the study indicates that a supportive …