Digital Commons Network^™

Legislatures And Localized Resentencing, Ronald F. Wright, Kay L. Levine

Faculty Articles

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels. In the discretionary channels, the chief local prosecutor has …

Federalism, State Action, And Workers’ Medical Privacy, Ani B. Satz

Faculty Articles

Injured workers entering state workers’ compensation systems effectively forego their medical privacy. This is due to widespread judicial misinterpretation of the HIPAA Privacy Rule (HPR) as excluding injured workers from federal medical privacy protections. As a result, medical privacy for workers’ compensation claims is effectively governed by state law. This Article argues that states have failed to protect the medical privacy of injured workers adequately and that there is a pressing need for legislative reform. The Article presents the first comprehensive survey in the legal literature of state action protecting the medical privacy of injured workers. Part I describes the …

Customary Corruption, Ani B. Satz, Liza Vertinsky

Faculty Articles

For over a hundred years, it has been well-accepted among tort scholars that physicians—as one of the legally recognized professions— determine their own customary practices. Within tort law, and medical malpractice more specifically, customary practice establishes whether physicians breach or uphold the required standard of care toward their patients. The results of our hand-coded examination of decided cases and statutes show a more complex picture. While some states have endeavored to shift the standard away from professional custom, it continues to play a critical, and in many cases a determinative, role in establishing physician liability in most states.

Using illustrative …

Super-Groups: Legal Empowerment And “Public Law”, Matthew B. Lawrence

Faculty Articles

Not all interest groups are created equal. Some groups are created by or with the help of law. Law can confer political power on groups through wealth, rents, concentrated interest, and durability, creating synthetic factions that use their state-given influence to dominate lawmaking. Deregulatory and progressive traditions in public law have long thought differently about laws that empower. A deregulatory tradition sees legal empowerment as a democratic pathology that counsels against lawmaking, citing empowerment concerns as a perennial rhetorical point against consumer protection, environmental protection, and social welfare programs, among others, for fear they will lead to “capture.” At the …

Federal Officer Criminal Case Removal, Jonathan R. Nash

Faculty Articles

Recent events have brought the federal officer removal statute to the fore. The statute allows a defendant to remove a criminal prosecution to federal court, provided that the allegedly criminal behavior was performed by the defendant as a federal officer under color of office and provided that the defendant has a federal defense. Current litigation has exposed several open, important questions under the statute, which this Article confronts. On the question of who qualifies as an “officer” who can remove under the statute, it argues that removal is available both to former officers and to presidents. On the question of …

Destroy, Rebuild, Repeat: How To Break The Climate Disaster Cycle, Mark P. Nevitt

Faculty Articles

Climate change is fundamentally reshaping how we live, where we live, and whether we invest in or retreat from climate-exposed communities—but climate and disaster law is not changing with the climate. This legal latency is driven by antiquated statutes, doctrines, and policies that have not kept pace with the climate moment. Ex ante adaptation decisions governing where to live are life and death choices that shape ex post disaster response. Laws and policies should facilitate sound climate decisionmaking, but too often they frustrate individual and governmental decisions on whether to stay or retreat. In this Article, I argue that laws …

Katz'S Imperfect Circle: An Empirical Study Of Reasonable Expectations Of Privacy, Tonja Jacobi, Christopher Brett Jaeger

Faculty Articles

Under Katz v. United States, the Fourth Amendment restricts government actions that infringe upon expectations of privacy that society recognizes as reasonable. This foundational test has long been criticized as circular, both because courts can shape the very expectations they seek to identify through their decisions and because governments can manipulate those expectations to expand the reach of their own power. But how do members of society decide what expectations are reasonable, and how do judges ascertain those expectations? And are expectations of privacy malleable even without deliberate manipulation?

This Article shows that the circularity critique is both understated …

Vice Capital, Andrew K. Jennings, Kimberly D. Krawiec

Faculty Articles

Academic and market interest in environmental, social, and governance (ESG) investing has grown markedly in recent years. Although less prominent, a substantial literature also explores whether “sin pays” in the public capital markets. This literature’s underlying theory is that social norms discourage the funding of businesses that promote vice. According to this theory, some investors—particularly institutions sensitive to social norms, such as pension funds and foundations—will shun vice investments. A consequence of this aversion is a “vice premium” for those investors who will invest in such companies. Largely unexplored, however, is what industries or business models qualify as “vice,” how …

Tort Liability For Failure To Age Gate: A Promising Regulatory Response To Digital Public Health Hazards, Matthew B. Lawrence, Brett Frischmann, Avi Sholkoff

Faculty Articles

Tort liability for failure to “age gate” is a promising legal response to the public health hazards of AI, social media, sports gambling, and other digital spaces. Tort liability for failure to “age gate” hinges liability for harms to minors on an app’s failure to take reasonable steps to prevent minors from gaining access or otherwise to apply appropriate governance rules, such as privacy-protective default settings or ensuring genuine parental consent. While no one legal response is a panacea, tort liability for failure to age gate carries several distinctive advantages that make it a particularly promising option at this stage …

Criminal Investors, Andrew K. Jennings

Faculty Articles

This Article reassesses the culpability of those who invest in law-breaking firms. Prosecutors currently treat investors as victims of corporate wrongdoing rather than as actors who might bear responsibility for it. This Article observes, though, that investment can facilitate, and even cause, illicit corporate activity. When investors intentionally contribute to those effects, substantive criminal law imposes liability on them just the same as it does on accomplices, conspirators, or principals in other contexts. Despite this formal parity, however, investor criminal liability is more a theoretical proposition than a practical reality.

This Article questions that status quo by asking whether and …

Moral Panic Or Public Health Crisis? Lessons From Drugs And Gambling For “Addictive” Design, Matthew B. Lawrence, Haomin (Kevin) Yan

Faculty Articles

In her important book, Unwired: Gaining Control Over Addictive Technologies, Gaia Bernstein illustrates the value of a comparative approach, drawing lessons from fights around the regulation of tobacco and ultra-processed food for the regulation of social media. Building on Bernstein’s work, this symposium contribution aims to draw additional insight from experience with drug and gambling regulation for the regulation of social media, video games, AI, and other potentially-addictive technologies.

Specifically, after introducing Bernstein’s book and the foundation it lays, we draw six lessons from the study of psychoactive drugs and gambling. As we elaborate below: Lesson one is that …

Constitutionalizing Climate Rights, Mark P. Nevitt

Faculty Articles

This Essay proceeds in three Parts. In Part I, I describe and analyze which states have climate and environmental amendments within their state constitutions. Here, I focus on three states (Hawaii, Montana, and Pennsylvania) that have comparably strong Green Amendments and have experienced litigation in recent years enforcing these constitutional provisions. I describe and analyze three cases: Navahine F. v. Hawaii Department of Transportation (Hawaii), Held v. Montana (Montana), and Robinson Township (Pennsylvania). I argue that these three decisions—all of which enjoyed varying degrees of success—will spur greater efforts to constitutionalize state environmental rights. Indeed, there are grassroot efforts within …

Extramural Absolutism, Deepa Das Acevedo

Faculty Articles

As battles over academia escalate, an area of intensifying concern is the speech faculty engage in outside their professional functions—what is often called “extramural” speech. Professors have been criticized, disciplined, pressured to resign, and even terminated for extramural speech that is deemed offensive by individuals inside and outside university communities. And yet, academics generally remain committed to a principle that this Article identifies as extramural absolutism.

The Article explains extramural absolutism’s unpopularity outside academia as a reasonable consequence of the way supporters have presented and justified it. Contrary to widespread scholarly portrayal, extramural absolutism is not a moderate concession justified …

Searching For A Big Score: Analyzing Drug Yield From Search Warrant Executions, Elizabeth Griffiths, Walter Campbell, Kay L. Levine, Joshua C. Hinkle

Faculty Articles

In this study, we investigated the extent to which law enforcement efforts predicted drug and other kinds of illicit yield in search warrant executions. The data are drawn from one major metropolitan police department during 2005, 2009, and 2012. Using multilevel random intercept logistic regression models and multilevel random intercept multinomial logistic regression models, we regress high yields of various kinds of drugs and other illicit items seized during searches on the investigative activities that led to search warrant applications and the enlistment of teams of officers or other agencies in executing the search. Investments in high-effort search warrant work …

Pro Bono Publico Versus Pro Bono Presidential, S. I. Strong

Faculty Articles

In March and April 2025, the Trump Administration issued a series of executive orders directed at various law firms that had represented clients or undertaken actions with which the President disagreed. Those executive orders imposed various sanctions capable of destroying the firms financially. The Administration also threatened numerous other law firms with similar types of executive orders.

Although a few law firms challenged the executive orders in court, the majority of firms targeted by the President entered into informal settlement agreements whereby the firms promised to provide between $40 million and $125 million worth of free “pro bono legal services” …

Chevron Stare Decisis In A Post-Loper Bright World, Jonathan R. Nash

Faculty Articles

In its June 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court jettisoned the longstanding Chevron doctrine, which had directed courts to defer to agencies’ reasonable interpretations of ambiguous statutes. The Loper Bright Court attempted to minimize the substantial effect this change would have on administrative law and governance by declaring that “[t]he holdings” of cases that relied on the Chevron test to conclude “that specific agency actions are lawful...are still subject to statutory stare decisis despite our change in interpretive methodology.” But there are two problems with Chevron stare decisis. First, Chevron stare decisis is …

Defederalizing Opioid Addiction Care, Matthew B. Lawrence

Faculty Articles

Lack of access to evidence-based care for drug addiction is an urgent problem amid a decades-long overdose crisis that kills tens of thousands of Americans a year. Opioid addiction is the primary driver of overdoses today, and medicines exist to treat such addiction that can dramatically improve quality of life while reducing the risk of deadly overdose by more than half. Yet fewer than one in four of the nine million Americans who need such evidence-based medical care for their addiction receive it. Chief among barriers to access are restrictive and burdensome federal requirements limiting the use of narcotic medications …

Teaching Client Counseling In The Shadow Of Homelessness, Gregory Zlotnick

Faculty Articles

Working with clients at risk of or experiencing, homelessness teaches personal and professional humility like few other experiences in law school or the practice of law. Yet such sensitive work also provides an opportunity for law students to develop both a keener understanding of their own professional identity-with its capacities and limitations and critical counseling skills. This essay draws upon experiences gained in three distinct law school projects that work with clients at risk of or experiencing, homelessness.

After providing a brief overview of each project, the essay will explore methods used for training and supervising students during their counseling …

Data Privacy Regulations In The Gaming Industry: A Comparative Analysis Of Singapore, Macau, And Japan, Miloslava Plachkinova

Faculty Articles

This study explores the relatively under-researched area of comparing data privacy regulations and best practices across different countries, with a focus on the gaming industry. It provides an overview of general data privacy principles and existing global regulations, analyzing how gaming operators leverage personal data for competitive advantage. Specifically, the research examines the data privacy approaches and regulatory requirements in Singapore, Macau, and Japan, highlighting the cultural and historical contexts influencing these regulations. Through a comparative analysis, the article discusses the compliance needs for gaming operators in these jurisdictions.

What Lawyers Could Learn From The Corporate Practice Of Medicine, Melissa Mortazavi

Faculty Articles

Proponents of the United States’ domestic experiments in non-lawyer ownership (NLO) of legal practice justify them in terms of increasing “access to justice.” But what if opening ownership of legal practice to investment capital only exacerbates market failures (leading to further consolidation and increased costs to clients), while also compromising professional autonomy and fiduciary duty? The legal profession must be clear-eyed about who are the real winners and losers of such a shift and avoid being blinded by wishful thinking. Prominent legal scholars have repeatedly touted NLO as a solution to the access to justice crisis. However, there is scant …

Dialing In Or Dialing Out? The Relationships Between State Telemedicine Law And Access To Buprenorphine, Stacey A. Tovino

Faculty Articles

This Article begins by reporting the results of a comprehensive 50-state survey assessing state laws and other state sources governing the telemedicine induction (“tele-induction”) and subsequent telemedicine prescription (“tele-prescription”) of buprenorphine for the treatment of opioid use disorder (“OUD”) following the expiration of the COVID-19 public health emergency (“PHE”). Original, concrete findings include: (1) the glaring patchwork of state law governing the tele-induction and subsequent tele-prescription of buprenorphine for the treatment of OUD in the United States; (2) the variety of primary authorities and secondary sources that house relevant permissions, prohibitions, and affiliated requirements; (3) the number of primary authorities …

Homelands Not Graveyards, M. Alexander Pearl

Faculty Articles

Within the last five years, the U.S. Supreme Court has taken up several transformative cases affecting Native nations and federal Indian law jurisprudence. The Supreme Court’s decision in Arizona v. Navajo Nation is no different. This Article examines that decision and situates it within that legal history as well as the realities of present-day water resource availability. While recent decisions have shown the Court’s willingness to confirm fundamental components of federal Indian law, such as the legal tests for determining the persistence of reservation and the authority of Congress to enact the Indian Child Welfare Act, the Court’s examination of …

Corporeal Property And The Limits Of Nagpra, M. Alexander Pearl

Faculty Articles

No abstract provided.

Shareholder Activism & Unconstitutionally Compelled Speech, Steven J. Cleveland

Faculty Articles

No abstract provided.

Increasing Congressional Oversight Of Fisa Section 702 After Risaa, Noah C. Chauvin

Faculty Articles

In April of 2024, Congress passed the Reforming Intelligence and Securing America Act ("RISAA"). This bill reauthorized Section 702 of the Foreign Intelligence Surveillance Act ("FISA'), an important counterterrorism authority that was intended to make it easier for the government to spy on foreign terrorists but which has been repeatedly abused to spy on Americans. While RISAA enacted modest surveillance reforms, it also included substantial expansions of the government's spying powers. Moreover, it largely left intact the existing oversight regime for Section 702, which is deficient as a matter of law, policy, and fact.

This article assesses the extent to …

Subsurface Trespass In The Restatement (Fourth) Of Property: An Appraisal And Alternative Account, Joseph A. Schremmer

Faculty Articles

Building on the scholarly work of leading property theorists Henry Smith and Thomas Merrill, the recently approved Fourth Tentative Draft of the Restatement (Fourth) of Property prescribes treating all entries below ground as ordinary trespasses. That includes entries in the shallow subsurface by building foundations and utility lines, as well as invasions in the deep subsurface by mining shafts, oil and gas wells, and substances injected for disposal and storage. The Restatement comes at an important time in the development of subsurface trespass law, as developers, courts, and policymakers grapple with the growing use of subsurface technologies for horizontal drilling, …

Insider Trading & Unconstitutionally Complelled Speech, Steven J. Cleveland

Faculty Articles

The Supreme Court has recently weaponized the First Amendment to invalidate economic regulations. Consequently, the Court’s current analytical framework risks invalidating as unconstitutional certain speech compelled by Congress and the SEC to combat insider trading.

The government may compel speech to combat fraud, and many courts and commentators view insider trading as a fraud against the counterparty to the insider’s trade. Today, the government primarily resorts to Section 10(b) of the Securities Exchange Act of 1934 and its implementing regulations, including Rule 10b-5, to combat insider trading. Those regulations prohibit deceptive conduct and do not directly compel speech. Interestingly, in …

An Empirical Exploration Of A Jury Veto, Stephen E. Henderson, Vanessa A. Edkins, Matthew L. Jensen

Faculty Articles

Among the many contemporary dissatisfactions with American criminal justice are longstanding concerns relating to the scarcity of jury trials and the resulting lack of democratic oversight and control in the adjudicative process. A novel solution has recently been proposed in the form of a ‘jury veto’: perhaps a jury could be empaneled, prototypically if not exclusively by defense request, that would be empowered to select between the judicially-imposed sentence and a prosecutorial and defense alternative. We conduct the first empirical exploration of such a structure and find reason to believe it could lessen the disconnect between the American framing vision …

Editing Legal Scholarship, Michael L. Smith

Faculty Articles

A consistent byproduct of American legal scholarship is legal scholars' relentless complaints about the system. Most critics overreact to the existence of student editors and the occasional rough edit, demanding that we burn the whole thing down. I suggest a less dramatic response by identifying several editorial tendencies that are consistently more trouble than they're worth and suggesting that reforms begin there. I begin with the text of the Bluebook, which supports a turn away from explanatory parenthetical overuse and the automatic et al.-ing of multi-author sources. I then turn to editors' overreliance on their journal style guides, urging the …

Learning From Mistakes: A Quantitative Comparative Study Of Court Decisions Involving The Excuse Of Contractual Mistake, Brian Mccall

Faculty Articles

In almost two decades of teaching Contracts law to first year law students, I have found one of the hardest doctrines to teach to be the excuse of mistake, both mutual and unilateral Students typically express the frustration that they cannot articulate a clear standard to determine when a party’s claim of an excusing mistake will succeed or fail. This frustration with the doctrine seems to be thousands of years old. After years of struggling to teach this topic, I resolved to dig deeper into the caselaw to see if any trends could be observed that would help dispel some …