Digital Commons Network^™

Remediating Injustices For Black Land Loss: Taking The Next Step To Protect Heirs' Property, Phyllis C. Taite

Faculty Articles

No abstract provided.

Privacy For Student-Patients: A Call To Action, Stacey A. Tovino

Faculty Articles

Consider a law student who has a mental or reproductive health issue that the student wishes to keep private. If the student seeks care at an off-campus health clinic that is not affiliated with the student’s law school or university, the student typically has a number of federally enforceable privacy rights. For example, the federal HIPAA Privacy Rule will typically apply and prohibit the clinic from disclosing the student’s protected health information to professors, parents, and other third parties without the student’s prior written authorization. The law student also will have the right to receive a notice of privacy practices, …

Defunding C.O.P.S.: Conditioning Federal Funding To State And Local Law Enforcement Agencies Upon The Implementation Of A Program That Screens Its Current And Future Officers For White Supremacist Affiliations, Jerron R. Wheeler

Faculty Articles

This Article calls upon Congress to protect its citizens where state and local legislators will not. Although Congress is limited in its ability to regulate local policing, the United States Constitution does provide authority for some congressional reform and oversight into matters of state and local law enforcement through Article 1, Section 8. Congress can (and has before) conditioned the receipt of federal funds over states' conformity to federal standards or programs. This Article proposes that the millions of dollars in federal grants sent to state and local police organizations be conditioned upon each organization's compliance with a program designed …

Search And Seizure Budgets, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

This article proposes a new means of restraining police power: quantitative limits on the number of law enforcement intrusions—searches and seizures—that may occur over a given period of time. Like monetary constraints, search and seizure budgets would aim to curb abusive policing and improve democratic oversight. But unlike their monetary counterparts, budgets would be indexed directly to the specific police activities that most enable escalation and abuse. What is more, budgets are a tool that finds support, conceptually, in the American framing experience. The Fourth Amendment has long been understood to require procedural limits, such as probable cause, on specific …

Private Sanctions, Public Harm?, Jon J. Lee

Faculty Articles

The legal profession has a secret. In response to widespread public distrust in the profession’s ability to regulate itself, state disciplinary authorities have undertaken modest efforts over the last several decades to make their activities more transparent. They have opened up their formal proceedings, publicized the identities of sanctioned attorneys, and shared information about their work online. But at the same time, most have quietly continued to resolve cases of ostensibly “minor” and “isolated” misconduct through the use of private sanctions, keeping the identities of disciplined attorneys—and their misconduct—hidden from view. This Article provides the first comprehensive scholarly contribution on …

Taxing Wealth: Strategic Methods To Address Growing Inequalities, Phyllis C. Taite

Faculty Articles

No abstract provided.

The S.E.C.'S Unconstitutionally Compelled Speech, Steven J. Cleveland

Faculty Articles

Congress delegated to the Securities & Exchange Commission (S.E.C.) the regulation of the sale and trading of securities as well as the solicitation of proxies. The S.E.C. compels disclosure by involved parties to ensure that investors can make informed decisions regarding their trades and the exercise of voting rights with respect to their securities. Such important governmental interests routinely leave one without basis to challenge the compelled speech imposed by the S.E.C. Because it generally can compel speech by parties involved in securities transactions and the solicitation of proxies, the S.E.C. is insensitive to situations when legitimate First Amendment issues …

Opus As The Core Of Property, Adam J. Macleod

Faculty Articles

No account of property law can achieve a comprehensive understanding without factoring in natural rights. Professor Eric Claeys's new book offers a significant contribution to contemporary property theory by setting out the most comprehensive and defensible theory of natural property rights to appear in a long time. Claeys describes the function of property as productive work. Intentional planning, purposeful effort, and creative ordering enable people to achieve lives of flourishing. And, as Claeys demonstrates in careful detail, the various norms and institutions of property law make possible those exercises of practical reason and the flourishing that results from them. Natural …

A Quarter Century Of Challenges And Progress In Education, And An Agenda For The Next Quarter Century, Albert H. Kauffman

Faculty Articles

As a native Texan who attended intentionally segregated Texas public schools, then an effectively segregated Texas public law school, litigated many cases against discrimination in Texas education, and now teaches Texas education law, I have what I think to be informed opinions on where we have been, where we are going, and what we should do next. I will briefly describe our sad history of discrimination in segregation, school finance, testing, higher education, and lack of responsiveness to newer issues in education at all levels. I will then summarize some of our ongoing challenges and some possible approaches that I …

A Real Chance To Effect Real Change, Robert C. Boruchowitz

Faculty Articles

No abstract provided.

Prioritizing Intellectual Property’S Freedom To Operate, Margaret Chon

Faculty Articles

No abstract provided.

Confiscation Nation: Settler Postcolonialism And The Property Paradox, Daniel J. Hulsebosch

Faculty Articles

This essay, part of a forum on Claire Priest’s Credit Nation: Property Laws and Institutions in Early America, points toward a different framing for the history of property and credit in early America, one compatible with many of Priest’s finding but that trades off the theoretical elegance of the New Institutional Economics in favor of wider historical context that includes space for revolutionary ideas. It places the destabilization of property, including confiscation, at the center of the creation of American property law. Consequently, it focuses on the revolutionary struggle for property: a struggle over how property was supposed to function …

How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel Richman, Sarah A. Seo

Faculty Articles

This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is crucial …

Air Pollution And Environmental Justice, Richard L. Revesz

Faculty Articles

Particulate matter emissions give rise to the environmental problem with the worst public health consequences. Despite a half century of regulatory efforts, they still lead to 85,000 to 200,000 additional deaths each year and produce more than 100,000 heart attacks and almost nine million cases of exacerbated asthma. These enormously serious adverse health consequences are borne disproportionately by communities of color and individuals of low socioeconomic status. Nonetheless, attacking the root cause of the problem— excessive air pollution from a myriad of sources that mixes in the air and often has its most serious health impacts hundreds of miles from …

Easterbrook And Fischel On Corporate Purpose, Edward B. Rock

Faculty Articles

Frank Easterbrook and Daniel Fischel’s comments on corporate purpose are as fresh today as they were when they were first published in the 1980s. Starting from the “contractarian” perspective, they asked a key question about questions such as “what is the goal of the corporation?”, namely, “Who cares?” In this contribution to the symposium volume in their honor, I examine the current corporate purpose debate through the lens of their rather brief comments that first appeared in their 1989 article, “The Corporate Contract.” In doing so, I focus on a variety of issues raised by their analysis: What are the …

Nonparty Jurisdiction, Aaron D. Simowitz, Linda J. Silberman

Faculty Articles

The Supreme Court's recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must …

Strict Scrutiny & The Black Body, Devon W. Carbado

Faculty Articles

When people in law think about strict scrutiny, often they are also thinking about equal protection law’s treatment of race. For more than four decades, scholars have vigorously challenged that legal regime. Yet none of that contestation has interrogated the social manifestation of strict scrutiny. This Article does that work. Its central claim is that Black people live under a social regime of strict scrutiny that treats the mere sight of Blackness as a suspect classification. This social regime trades on some of the same racial logics that underwrite the legal regime. Like its legal counterpart, the social version of …

Puzzles Of Progressive Constitutionalism, Jonathan S. Gould

Faculty Articles

This Review examines the relationship between progressivism and constitutionalism. In doing so, it considers three different ways of thinking about a constitution’s role in a political system. First is constitutionalism as a distinct ideology of governance in which an apex court plays a major role in deciding issues of public policy and articulating national values. Second is the way constitutional culture prompts political actors to argue for their preferred policies in constitutional terms, even when calling for legislative rather than judicial action. Third is constitutional design, the rules of the political game that dictate how lawmaking takes place. Each of …

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

The Fall Of An American Lawyer, Michael Ariens

Faculty Articles

John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers’s property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall’s disbarment.

Randall had acted grievously in serving as Lovell Myers’s attorney. …

"Only To Have A Say In The Way He Dies:" Bodily Autonomy And Methods Of Execution, Alexandra L. Klein

Faculty Articles

Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain …

Beyond Compulsory Licensing: Pfizer Shares Its Covid-19 Medicines With The Patent Pool, Chenglin Liu

Faculty Articles

On March 15, 2022, the United States, European Union, India, and South Africa reached an agreement on the waiver of intellectual property rights (IP rights) for COVID-19 vaccines. The waiver agreement has rekindled the debate on the balance between IP rights protection and equitable access to medicines during a public health crisis. India, South Africa, and other developing countries maintain that a waiver was the only way to make vaccines affordable and accessible. Leading pharmaceutical companies argue that the waiver will stifle innovation and make lifesaving medicines less accessible. Both sides have seemingly overlooked Pfizer's voluntary agreement with the Medicines …

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

Faculty Articles

Originalism has received a great deal of recent, mainstream attention. President Donald Trump's nomination of three justices to the Supreme Court amplified discussions of their judicial philosophies during and following their confirmation proceedings. Supporters of these nominations highlighted the nominees' originalist credentials, arguing that originalism was the dominant approach to constitutional interpretation.

In the academic sphere, volumes of articles and books set forth originalist theories and methodology. Its academic proponents also refer to it as the dominant form of constitutional interpretation—often asserting that opponents of originalism have failed to enunciate a coherent alternative theory. Some argue that originalism (at least, …

Reimagining Corporate Accountability: Moving Beyond Human Rights Due Diligence, Rachel Chambers, Jena Martin

Faculty Articles

The global movement towards the adoption of human rights due diligence laws is gaining momentum. Starting in France, moving to Germany, and now at the European Union level, lawmakers are heeding the call to mandate that companies conduct human rights due diligence throughout their global operations. The situation in the United States is very different: although ESG (environmental, social, and governance) has received increasing national attention, there is currently no law that mandates corporate human rights due diligence.

Recognizing this disparity and acknowledging the specific context for ESG-related issues in the United States, we consider how the United States could …

Assessing Legal Protection Of Biometric Data In China: Gaps, Principles, And Policy Recommendations, Qian Li, Jianyu Zhou, Jennifer S. Stevenson

Faculty Articles

The legal protection of biometric data is becoming an increasingly important issue in the information society. China attaches importance to the legal protection of biometric data. Over the past decades, the rapid development of digital technology has profoundly influenced Chinese information society. However, digital technology may also trigger substantial risks. In this article, we provide an in-depth examination of existing Chinese laws protecting biometric data. We explore general laws and facial recognition laws, administrative regulations, sector-based rules, judicial interpretations, regulatory documents, policy documents, and (draft) national standards. We find gaps in laws in China. Building on this analysis, we elaborate …

Trade Secrecy And Innovation In Forensic Technology, Eli Siems, Katherine J. Strandburg, Nicholas Vincent

Faculty Articles

Trade secrecy is a major barrier to public scrutiny of probabilistic software tools that are increasingly used at all stages of the criminal system, from policing and investigation through trial and sentencing. Such tools allow prosecutors to leverage imperfect forensic evidence, such as DNA mixtures, smudged fingerprints, and grainy video footage. Probabilistic software tools unavoidably rely on potentially contestable assumptions, parameters, and implementation choices. Judicially recognized trade secrecy in criminal cases impedes scrutiny of these tools by defendants and the public. Previous critics have focused on secrecy’s potential to undermine the integrity and fairness of the criminal justice system, invoking …

Litigating Terror In The Sinai After The Egyptian Spring Revolution: Should States Be Liable To Foreign Investors For Failure To Prevent Terrorist Attacks?, Robert L. Howse, Amin R. Yacoub

Faculty Articles

The ambiguity of the due diligence standard of the Full Protection and Security obligation in investment treaties persists to this day. A recent ICSID tribunal found a developing state liable for breaching the Full Protection and Security obligation due to its inability to protect a foreign investment against terrorist attacks in a remote deserted area. In this article, we analytically criticize the Ampal v. Egypt arbitral award against the comprehensive factual matrix behind the case. Based on our criticism of Ampal, we argue that developing states should not be liable for failing to prevent or stop terrorist attacks under the …

Family Separation Conditions, Alexis Karteron

Faculty Articles

America’s mass incarceration crisis does not end at the prison gates. While an estimated two million people are presently incarcerated, nearly twice that number of people are subject to probation, parole, and other forms of community supervision. This Article documents one particularly troubling aspect of this system of “nonincarceration mass incarceration”: the widespread use of supervision conditions that separate people on parole, probation, and supervised release from their families. Courts regularly approve supervision conditions that categorically bar supervisees from contacting or interacting with their family members. Although these conditions are sometimes justified, they are used indiscriminately without individualized analysis of …

A Sober Look At Spacs, Michael Klausner, Michael Ohlrogge, Emily Ruan

Faculty Articles

Special Purpose Acquisition Companies (SPACs)—touted as a better alternative to an IPO for taking a company public—have become the next big thing in the securities markets. This Article analyzes the structure of SPACs and the costs embedded in that structure. We find that costs embedded in the SPAC structure are subtle, opaque, higher than has been previously recognized, and higher than the cost of an IPO. Although SPACs raise $10.00 per share from investors in their IPOs, by the time a SPAC merges with a private company to take it public, the SPAC holds far less in net cash per …

Technological Self-Sufficiency And The Role Of Novelty Traps, Rochelle C. Dreyfuss, Daniel Benoliel

Faculty Articles

The COVID pandemic has demonstrated the tragic consequences of technological dependency. Unable to manufacture vaccines for themselves, developing countries must rely on obtaining supplies from other nations. While strong arguments have been made to waive international obligations under the TRIPS Agreement to permit these countries to freely use COVID-related patented inventions, it is not clear that this move would produce sufficient vaccines to meet global demand. Considerable scholarship has been devoted to the question of how to help these countries reach the technological frontier and become technologically independent. In this Article, we identify a novel source of their problem: a …