Digital Commons Network^™

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 …

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 …

The Politics Of Deference, Gregory A. Elinson, Jonathan S. Gould

Faculty Articles

Like so much else in our politics, the administrative state is fiercely contested. Conservatives decry its legitimacy and seek to limit its power; liberals defend its necessity and legality. Debates have increasingly centered on the doctrine of Chevron deference, under which courts defer to agencies’ reasonable interpretations of ambiguous statutory language. Given both sides’ increasingly entrenched positions, it is easy to think that conservatives have always warned of the dangers of deference, while liberals have always defended its virtues. Not so. This Article tells the political history of deference for the first time, using previously untapped primary sources including presidential …

Racialized Religious School Segregation, Erika K. Wilson

Faculty Articles

Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education.

Doctrine And Democratic Deconsolidation: On David Driesen’S Specter Of Dictatorship, Noah A. Rosenblum

Faculty Articles

For the last hundred years or so, Americans have been bullish on their presidents. At the turn of the 20th century, Progressive Era thinkers championed the empowered executive as the royal road to ef-ficacious and accountable government. Reformers in Congress agreed, granting the executive sweeping powers. Over subsequent decades, the office of the president accrued ever greater authority. And some are pushing for still more: respected scholars of public ad-ministration champion expanded executive empowerment today on the same good governance grounds mooted over a century ago. But it is getting harder to keep the faith. Scholars of “democratic deconsolidation” have …

Originalism And The Inseparability Of Decision Procedures From Interpretive Standards, Michael L. Smith

Faculty Articles

In his article, Originalism: Standard and Procedure, Professor Stephen E. Sachs describes a never-ending debate between originalism's advocates and critics. Originalists argue that certain historical facts determine the Constitution's meaning. But determining these facts is difficult, if not impossible for judges, attorneys, and the public. Sachs seeks to rise above this debate, arguing that the legal community should not expect originalism to offer a procedure for interpreting the Constitution. Instead, the legal community should treat originalism as a

standard to judge interpretations.

This Article takes issue with this approach. Originalism is not like other instances in law where statutes or …

A Unifying Doctrine Of Subsurface Property Rights, Joseph Schremmer

Faculty Articles

This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …

Breach By Violence: The Forgotten History Of Sharecropper Litigation In The Post-Slavery South, Brittany Farr

Faculty Articles

This Article uses private law as a lens and a guide to excavate an unfamiliar story about labor and racial violence in the post-slavery south. It is the story of farmers like Colonel Bishop, whose landlord attacked him in the middle of the night in an effort to coerce him into breaching his contract. Violent breaches of contract such as these were not uncommon in the post-slavery south. Indeed, historians have thoroughly documented the violence in this period. Yet much less is known about the doctrinal implications of this violence, particularly in the context of private law. Even less explored …

Weaponizing The Electoral System, Samuel Issacharoff

Faculty Articles

The gravest threat to our democracy does not come from obstacles to voting— indeed, despite state-level efforts at retrenchment, voting remains far easier across the country than in 2008 when the United States first elected a Black president. Rather, the greatest concern is the effort to solidify party control of election mechanisms, turning the ordinary task of tabulating election results into an opportunity for partisan mischief. Under the strains of 2020, despite COVID-19 and its many challenges, the system held up remarkably well. But the stability of these structures depends on a long-haul bipartisan commitment to repeat engagements, a commitment …

Immigration Detention And Dissent: The Role Of The First Amendment On The Road To Abolition, Alina Das

Faculty Articles

The movement to abolish slavery relied heavily on the exercise and protection of enslaved and formerly enslaved people’s freedom of speech against robust efforts to suppress their messaging. The same is true in the context of the movement to abolish immigration detention. For decades, people in immigration detention, formerly detained people, and their allies have exercised their First Amendment rights to expose the conditions of their confinement and demand their freedom. In response to their protests and other forms of individual and collective expression, detained and formerly detained immigrants have faced suppression and retaliation, threatening not only their right to …

Remembering Who Foster Care Is For: Public Accommodation And Other Misconceptions And Missed Opportunities In Fulton V. City Of Philadelphia, Christine Gottlieb

Faculty Articles

The Supreme Court’s opinion in Fulton v. City of Philadelphia, which held that a Catholic foster care agency could refuse to accept gay foster parents, and virtually all commentary on the case, are flawed by a profound misunderstanding of key aspects of the foster care system. The case’s role in the broader culture war between religious rights advocates and those supporting LGBTQ equality has led advocates on both sides to use Fulton for their own purposes at the expense of the families the foster care system is intended to serve. This Article explains that the most important constitutional interests at …

Standing For Democracy: Is Democracy A Procedural Right In Vacuo? A Democratic Perspective On Procedural Violations As A Basis For Article Iii Standing, Helen Hershkoff, Stephen Loffredo

Faculty Articles

Many commentators express concern that democracy in the United States is under threat, whether from the pressure of concentrated wealth and structural racism, government secrecy and authoritarian tendencies, an outdated constitutional structure and old-fashioned corruption, or perhaps a combination of them all. Against this background, this Article argues that the Supreme Court’s treatment of procedural rights for determining standing—the key that opens the door to federal court—is an overlooked factor in contributing to democratic erosion. According to the Court, violation of a congressionally conferred procedural right that does not safeguard some separate, non-procedural, concrete interest of plaintiff—a “procedural right in …

Territoriality In American Criminal Law, Emma Kaufman

Faculty Articles

It is a bedrock principle of American criminal law that the authority to try and punish someone for a crime arises from the crime’s connection to a particular place. Thus, we assume that a person who commits a crime in some location— say, Philadelphia—can be arrested by Philadelphia police for conduct deemed criminal by the Pennsylvania legislature, prosecuted in a Philadelphia court, and punished in a Pennsylvania prison. The idea that criminal law is tied to geography in this way is called the territoriality principle. This idea is so familiar that it usually goes unstated. This Article foregrounds and questions …

Parole, Victim Impact Evidence, And Race, Alexis Karteron

Faculty Articles

This essay proceeds in three parts. Part I describes the parole function, focusing on the purpose and aims of parole. This Part also provides examples of the guidelines and standards, to the extent they exist, that typically underlie the parole decision- making process. Part II lays out research on the relationship between emotion and the law that suggests potential for differential treatment in the parole process on the basis of a victim's race. Lastly, Part III calls for further data collection and research into the role of race in parole decision-making. It further suggests that eliminating victim participation in parole …

Classic Revisited: How Racism Persists In Its Power, Deborah N. Archer

Faculty Articles

Book review of The Fire Next Time, by James Baldwin. New York: Dial Press. 1963 (Vintage International 1993 ed.)

Countering Capture: A Political Theory Of Corporate Criminal Liability, Jennifer H. Arlen

Faculty Articles

In order to effectively deter organizational misconduct, countries must hold companies liable for their organizational misconduct. Some scholars argue, however, that countries should not impose criminal liability on companies and instead should rely entirely on civil liability, which can impose the same sanctions on companies as criminal liability. This claim that corporate civil enforcement is as effective as criminal enforcement is incorrect because it overlooks how the choice between the two affects companies’ ability to use their political influence to undermine corporate enforcement intensity. This Article shows that eliminating federal corporate criminal liability would undermine deterrence because large corporations would …

Are Police The Key To Public Safety?: The Case Of The Unhoused, Barry Friedman

Faculty Articles

We as a nation have to think deeply about what it means for a community to be safe, and what role the police play (or do not play) in achieving that safety. We have conflated, if not entirely confused, two very different things. One is the desire to be safe, and how society can assist with safety, even for the most marginalized or least well-off among us. The other is the role of the police. Contrary to what many seem to think, the police are not a one-size-fits-all provider of public safety. In this paper, I discuss this issue in …

Policing Police Tech: A Soft Law Solution, Barry Friedman, Farhang Heydari, Max Isaacs, Katie Kinsey

Faculty Articles

Policing agencies are undergoing a rapid technological revolution. New products—with almost unfathomable capacities to collect, store, monitor, and transmit data about us— constantly are coming to market. In the hands of policing agencies, some of these products may promise real benefits to society. But too often these public safety benefits are unproven. And many of these products present real harms, including risks to privacy, freedom of speech, racial justice, and much more. Part of “public safety” is being safe from these harms as well. Despite these risks, new policing tech products continue to be adopted and deployed without sufficient (or …

What Is Public Safety?, Barry Friedman

Faculty Articles

For hundreds of years, political leaders and thinkers have deemed public safety the first duty of government. But they have defined public safety rather narrowly, primarily in terms of the “protection” function—protecting individuals from violent harm to person or property from third parties (and also from natural elements). As the first duty, the protection function is privileged. Witness today how we valorize police and other first responders, defer to their decisions without close scrutiny, and immunize them from liability for their mistakes. Yet, is protection really all there is to public safety? For most people, being safe depends on much …

Against Secondary Meaning, Jeanne C. Fromer

Faculty Articles

Trademark law premises protection and scope of marks on secondary meaning, which is established when a mark develops sufficient association to consumers with a business as a source of goods or services in addition to the mark’s linguistic primary meaning. In recent years, scholars have proposed that secondary meaning play an even more central role in trademark law than it already does. Yet enshrining secondary meaning in the law undermines the ultimate goals of trademark law: promoting fair competition and protecting consumers. The dangers of enshrining secondary meaning include the problematic doctrine that has built up to assess it or …

Lemonade: A Racial Justice Reframing Of The Roberts Court’S Criminal Jurisprudence, Daniel S. Harawa

Faculty Articles

The saying goes, when life gives you lemons, make lemonade. When it comes to the Supreme Court’s criminal jurisprudence and its relationship to racial (in)equity, progressive scholars often focus on the tartness of the lemons. In particular, they have studied how the Court often ignores race in its criminal decisions, a move that in turn reifies a racially subordinating criminalization system. However, the Court has recently issued a series of decisions addressing racism in the criminal legal system: Buck v. Davis, Peña-Rodriguez v. Colorado, Timbs v. Indiana, Flowers v. Mississippi, and Ramos v. Louisiana. On their face, the cases teach …

Propertizing Environmental Attributes, Katrina M. Wyman, Adalene Minelli

Faculty Articles

Tangible environmental resources such as land and water have been the object of property rights and traded in markets for millennia. In a development largely unnoticed by legal scholars, technology now allows a new class of environmental resources that are much harder to see and touch to be measured, and potentially sold—environmental attributes. Some of these resources have already been partially packaged into property rights for sale by some governments and private actors, such as actual and avoided carbon emissions, and the environmental benefits of renewable power and electric cars. Other resources, such as avoided water use, remain unpropertized. Trading …

Nysrpa V. Bruen: Weaponizing Race, Daniel S. Harawa

Faculty Articles

While the Supreme Court has weaponized race—particularly America’s history of anti-Black racism—to expand the reach of the Second Amendment, it has not sought to ensure Black people have equal access to the right to bear arms now that the right is broader than ever before. More pointedly, the Court has not seemed keen on revisiting its Fourth Amendment policing doctrines that make public carry for Black people particularly precarious. As this essay explains, itinerant invocations of racial justice are inadequate and potentially harmful. While, as some argued, the total elimination of gun licensing regimes may result in the reduced prosecution …