Digital Commons Network^™

Restructuring Ruritania: Bankruptcy, Sovereign Debt, And The Equity Receivership, Nathan B. Oman

Faculty Publications

The traditional legal story of sovereign restructuring goes something like this: foreign governments cannot file for bankruptcy under domestic law. When faced with the need to restructure unsustainable debts, they must negotiate with each of their creditors. Since the late 1980s, private debt has been held by increasingly diverse and dispersed bondholders, making renegotiation more difficult. Defaulting debtors face two basic problems: first, they have no process analogous to the automatic stay in bankruptcy, which can pause litigation by creditors and buy time for an orderly reorganization; second, and more importantly, they have no process analogous to the cramdown provisions …

Fairness Writ Large Or Small In International Criminal Justice, Nancy Amoury Combs

Faculty Publications

For this symposium, I was not assigned to talk about Megan [Fairlie]’s work per se, and so I initially planned to discuss something completely different. In the end, however, I came back to Megan’s work because I believe her scholarship provides a new way of thinking about the entrenched challenges currently facing our collective field of study: international criminal law and procedure.

As we all know, Megan was an accomplished comparativist, and her area of expertise was criminal procedure. Even more particularly, Megan specialized in the criminal procedure of the still relatively new international criminal courts and tribunals. She focused …

"We Can't Allow Iot Vendors To Pass Off All Such Liability To The Consumer": Investigating The U.S. Legal Perspectives On Liability For Iot Product Security, Prianka Mandal, Amit Seal Ami, Iria Giuffrida, Daniel Shin, Ella Sullivan, Adwait Nadkarni

Faculty Publications

As the regulatory landscape for the Internet of Things (IoT) evolves, vendors are moving towards certifying their products for security. Thus, we need to understand who is liable when certification failures result in harm, i.e., when certified products have vulnerabilities that are exploited to cause harm to users. This paper addresses the fundamental and timely question that has significant implications for vulnerability detection in certified products: who is liable for harm resulting from vulnerabilities in certified products, and who should be so liable? Through a qualitative analysis of contractual documents from 20 IoT vendors, this paper investigates how liability is …

New Threats To Campus Protest, Timothy Zick

Faculty Publications

This symposium Essay focuses on how universities responded, both initially and after the fact, to campus protests concerning the Hamas-Israel War. During those protests students and others erected encampments, held demonstrations, displayed signs, vandalized university property, and occupied buildings. Some protesters communicated anti-Semitic tropes and slogans. Although a few university leaders responded to the protests by negotiating with protest leaders, most relied on law enforcement and security to clear encampments and restore order. Since the initial protests, universities have adopted a spate of new policies that threaten campus protest. These measures include cancellation of already-permitted demonstrations, content-based speech restrictions, bans …

Understanding The Mechanisms Of Interpretative Change, Aaron-Andrew P. Bruhl

Faculty Publications

Interpretive methodology changes over time, and we appear to be in a period of particular ferment. In federal statutory interpretation, which is the focus of this Article, several important changes in interpretive methods have occurred in recent decades or are underway. There has been a gradual, decades-long shift away from intentionalist tools like legislative history. In addition, as the culmination of a series of smaller steps, the Supreme Court has just reshaped the doctrine governing deference to agency interpretations, a move that will require years of further clarification. And, although this shift is still taking shape, it appears that some …

Climate Liberalism And Decarbonization, Jonathan H. Adler

Faculty Publications

Existing climate policy goals require dramatic and rapid reductions in greenhouse gas (“GHG”) emissions. Achieving such reductions within the desired time frame is a tremendous challenge, particularly through conventional regulatory approaches. The conventional approach to environmental problems is to treat such problems as “market failures” that can be corrected by government intervention, such as through regulation. Such approaches are constrained by various sources of government failure that are exacerbated by the scale and scope of the problem. The knowledge problem, administrative transaction costs, and limits on regulatory throughput capacity all hamper the use of traditional regulatory tools to address the …

Climate Change And Constitutional Overreach, Jonathan H. Adler

Faculty Publications

The failure of the political process to produce meaningful climate mitigation policies has encouraged activists to pursues aggressive and innovative litigation strategies. An increasing number of climate-related lawsuits seek to control greenhouse gas emissions, impose liability on fossil fuel producers, or otherwise force greater action on climate change. In many of these cases, litigants have made aggressive constitutional claims that stretch the bounds of existing constitutional doctrine and threaten to entrench climate policies outside of the traditional political process. This Article critically assesses some of the constitutional arguments made in climate cases, including Massachusetts v. EPA and Juliana v. U.S. …

Electing The Supreme Court, Dmitry Bam

Faculty Publications

There is a curious irony in how we select United States Supreme Court justices. According to basic constitutional theory, as well as the arguments made by many leading Framers at the time of the Founding, one of the Court’s primary roles is to serve as a check on the executive and legislative branches when they exceed the constitutional limits imposed by the American people. Yet, we ask those very branches to jointly select the justices responsible for enforcing these limits, leaving the American people with only an indirect (if any) role in the process. Not surprisingly, the justices nominated by …

International Law And The Rise Of Populism, Shruti Rana, Peter G. Danchin, Jeremy Farrall, Jolyon Ford, Imogen Saunders

Faculty Publications

Contemporary legal scholarship seeks to diagnose populist antagonism towards national and international law and warn about the challenges it poses to the cooperation needed to respond to global threats. What this scholarship overlooks, however, is the role that major shifts in international legal normativity and conceptions of global governance have themselves played in incubating the conditions far the rise of populism. Against the prevailing literature, this Article argues that the key to unlocking this puzzle is recognition that populism, rather than constituting an external social pathology, is a mode of politics arising internal to the intellectual history and practice of …

When Is Discrimination Harmful?, Sandra F. Sperino

Faculty Publications

In Muldrow v. City of St. Louis, the Supreme Court held that Title VII does not require a plaintiff to establish material harm to prove employment discrimination. Instead, any action that is negative and affects a term, condition or privilege of employment is sufficient, if the employer took the action because of a protected trait.

At first glance, Muldrow appears to be a middling case focused on a technical aspect of discrimination law. This Article argues that Muldrow has the potential to be one of the most important modern discrimination cases. If taken to its natural conclusion it will …

Legal And Policy Responses To Sexual Harassment In Housing, Rigel C. Oliveri

Faculty Publications

The sexual harassment of low-income women by their housing providers is a clear national problem that has only recently become the focus of coordinated nationwide enforcement efforts by federal agencies, including the Department of Justice. While these developments are welcome, the problem requires proactive responses as well. This Essay examines data from a study of all of DOJ's sexual harassment in housing cases and uses this information to identify the most problematic types of housing providers and the most common forms of harassment. Specifically, harassment appears to occur most frequently in private rental housing and is perpetuated by managers (usually …

Historical Practice At The Founding, Ryan Snyder

Faculty Publications

In recent years, the Supreme Court has increasingly relied on historical practice—actions other than judicial decisions that implement the law after its adoption. That creates tension with the Court’s professed adherence to originalism—the view that a law’s meaning is fixed at the time of its adoption. To resolve this tension, the Court and many scholars have embraced theories such as “liquidation,” which argue that the Founders themselves used practice to update or change the law’s meaning over time. But until now, no one has systematically examined whether the Founders accepted those theories.

This Article provides the first comprehensive analysis of …

Moore Questions, Some Answers: Fixing The Personal Tax System Despite Constitutional Constraints, David Gamage, John R. Brooks, Edward J. Mccaffery

Faculty Publications

Moore v United States was expected to rule on the constitutional necessity of the tax-law realization requirement originating from Eisner v Macomber, a potential impediment to progressive tax reform efforts aimed at shutting down the planning techniques of Buy Borrow Die. The various opinions in Moore, however, provided no definitive answer to this core question, instead leaving many more questions. Amid the lingering uncertainty, we argue that various responses to the problem of wealthy Americans’ not needing to pay any taxes remain possible after Moore. An incremental, “mix-and-match” approach to progressive tax reform may best suit the …

Church Autonomy, Textualism, And Originalism: Scotus's Use Of History To Give Definition To Church Autonomy Doctrine, Carl H. Esbeck

Faculty Publications

Church autonomy is a First Amendment doctrine altogether distinct from the more familiar causes of action brought under the Establishment Clause and the Free Exercise Clause. The principle of church autonomy was first recognized by the Supreme Court of the United States in the post-Civil War case Watson v. Jones, holding that civil courts must not be drawn into resolving religious questions or settling disputes over church polity. And early this century, in the unanimous decision Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the theory of church autonomy took on its most fully developed form as a constitutional immunity …

Co-Parents With Benefits, Jessica Feinberg

Faculty Publications

The relationshipbetween individuals who share a common child merits significant legal and societal attention. An increasingly high percentageofchildren are being raisedby parents who are not married to each other, and modern social science research demonstrates that the quality of the relationship between co-parents has serious implications for children's well-being. When co-parentage is unaccompanied by marriage, however, the law historically has attachedfew, if any, rights and obligations to the relationship. This historical disregard for the relationship between non-marital co- parents fails to promote children's best interests. Children whose parents are not marriedto each other should not be excludedfrom the benefits that …

Partial Additionality: The Blunt Metric Distorting Carbon Market, Anthony L. Moffa, Joseph Newlen

Faculty Publications

The widespread recognition that climate change presents an existential threat to humanity has spurred the development of numerous technologies, regulatory structures, and voluntary actions aimed to mitigate the pending disaster.

Is Verbal Rehearsal Strategic? An Investigation Into Overt Rehearsal Of Nameable Pictures In 5- To 10-Year-Old Children, Candice C. Morey, Angela M. Aubuchon, Meg Attwood, Thomas Castelain, Nelson Cowan, Davide Crepaldi, Emilie Fjerdingstad, Eivor Fredriksen, Chris Jarrold, Chris Koch, Jaroslaw R. Lelonkiewicz, Gary Lupyan, Whitney Mendenhall, David Moreau, Christina Schonberg, Christian K. Tamnes, Haley Vlach, Emily M. Elliott

Faculty Publications

Though verbal rehearsal is a frequently endorsed strategy for remembering short lists among adults, there is ambiguity around when children deploy it, and what circumstantial factors encourage them to rehearse. We recoded data from a recent multilab replication of a serial picture memory task in which children were observed for evidence of task-related speech or lip movements to extract finer-grained detail about how children spoke during the task. With these data, we aimed to better understand the manner in which children rehearse and the task scenarios which elicit overt rehearsal. Children in several countries from 5 to 10 years old …

Book Challenges And Censorship Attempts In Louisiana: A Case Study, Jennifer E. Steele

Faculty Publications

Book challenges and censorship have long played a significant role in the cultural and educational landscapes of the United States. In recent years, Louisiana has become a focal point in national conversations about intellectual freedom, public and school library governance, parental rights, and the political pressures surrounding children and young adult literature. This dynamic environment has led to significant debates about what materials should be accessible to young people, how libraries should be managed, and what role the state and local governments should play in determining the availability of information. The rise in book challenges across Louisiana reflects national trends …

Playing Politics With Traffic Fines: Sheriff Elections And Political Cycles In Traffic Fines Revenue, Min Su, Christian Buerger

Faculty Publications

The political budget cycle theory has extensively documented how politicians manipulate policies during election years to gain an electoral advantage. This paper focuses on county sheriffs, crucial but often neglected local officials, and investigates their opportunistic political behavior during elections. Using a panel data set covering 57 California county governments over four election cycles, we find compelling evidence of traffic enforcement policy manipulation by county sheriffs during election years. Specifically, a county's per capita traffic fines revenue is 9% lower in the election than in nonelection years. The magnitude of the political cycle intensifies when an election is competitive. Our …

Do Major Customers Affect Firms' Environmental, Social And Governance Activities?, Feng Dong, John A. Doukas, Stephanie Walton, Rongyao Gloria Zhang, Yiyang Zhang

Faculty Publications

We examine the role of major customers in shaping firms' environmental, social and governance (ESG) practices. We find that firms with major customer relationships undertake fewer ESG activities compared to those without such ties. The association is attenuated when institutional ownership is high, firms are less diversified, customers exhibit greater bankruptcy risk and lower switching costs and during periods of elevated equity market sentiment. Taken together, our findings highlight that reliance on a concentrated customer base can weaken firms’ incentives to engage in ESG practices, with important implications for supply chain sustainability.

The Work Of An Hour: A Case Study Of Propaganda, Michael F. Russo

Faculty Publications

This research paper discusses the messaging of United States President George W. Bush and his administration regarding the U.S. led invasion of Iraq. Transcripts of presidential communications, national news programs, and public opinion polls from 2001-03 were analyzed to identify patterns in these communications. This review demonstrated techniques similar to those used in historical propaganda campaigns to sway public opinion. The introduction and repetition of key terminology from the government was followed by magnification by television news programs. These messages were broadcast despite lack of evidence of Iraq’s involvement with the 9/11 attacks or their possession of weapons of mass …

All-Electron Molecular Tunnel Ionization Based On The Weak-Field Asymptotic Theory In The Integral Representation, Imam S. Wahyutama, Denawakage D. Jayasinghe, François Mauger, Kenneth Lopata, Kenneth J. Schafer

Faculty Publications

Tunnel ionization (TI) underlies many important ultrafast processes, such as high-harmonic generation and strong-field ionization. Among the existing theories for TI, many-electron weak-field asymptotic theory (ME-WFAT) is by design capable of accurately treating many-electron effects in TI. An earlier version of ME-WFAT relied on an accurate representation of the asymptotic tail of the orbitals, which hindered its implementation in Gaussian-basis-set-based quantum chemistry programs. In this work, we reformulate ME-WFAT in the integral representation, which makes the quality of the asymptotic tail much less critical, hence greatly facilitating its implementation in standard quantum chemistry packages. The integral reformulation introduced here is …

Five Prairie Reflections On Reviving Rural America, Hannah Haksgaard, Sean Kammer, Travis L. Letellier

Faculty Publications

This Essay offers five reflections on Ann E. Eisenberg’s book Reviving Rural America: Toward Policies for Resilience. Each reflection approaches the book from the positionality of writing from rural America, specifically the prairies of South Dakota. Collectively, the reflections cover the politics of voting in a red rural state, policies of local municipal government, the central economic principles in the book, the presence of energy production in rural America, and environmentalism’s relevancy and impact.

Assessing The Past And Future Of Article Iii, Section 12 Of The South Dakota Constitution, Neil Fulton, Madison Gosch

Faculty Publications

The framers of South Dakota’s Constitution feared corruption among public officials. This inspired them to implement structural checks on corruption in that organic document. One result of that effort was Article III, Section 12. That provision prohibited legislators from entering contracts authorized during their term. It further prohibited legislators from occupying other public offices during the legislative service or being appointed to offices created or given increased compensation during their term. The expansion of state government’s reach over time and a recent reinterpretation of Article III, Section 12 raises the question of how well it aligns with current circumstances. This …

Workplace Retaliation And The Intersection Of Protected Conduct And Job Performance, Chris Schmidt

Faculty Publications

No abstract provided.

Reevaluating South Dakota's Child Support Deduction: Balancing Retirement Contributions And Children's Needs, Marilyn Trefz

Faculty Publications

This article explores how South Dakota’s child support provisions, particularly the 10% allowable deduction for voluntary retirement contributions from parents’ gross income, affect the fair distribution of financial responsibilities between parents. By exploring the historical context and evolution of this statute, this article highlights the challenges and disparities the 10% deduction creates, particularly for custodial parents living in poverty. Through a comparative analysis with other states and a discussion on balancing retirement savings with child support needs, the article argues for reconsideration of the statutory allowance. The article’s aim is to ensure that the next revision of the child support …

Indirect Earnings Management, Scott B. Jackson, Jason T. Rasso, Aaron F. Zimbleman

Faculty Publications

We hypothesize that managers use their hierarchical role as reviewers of accounting judgments and estimates to manage earnings, which we call indirect earnings management (IEM). Across a series of experiments using highly experienced financial executives as participants, we provide evidence that IEM (1) is likely used by managers to achieve current and future earnings targets, (2) reduces both cognitive dissonance associated with managing earnings and the extent to which managers think that their behaviors constitute earnings management, and (3) is more likely to be used when corporate governance is strong than when corporate governance is weak. The results of this …

America's Forgotten History Of Constitutional Crisis, Marcus A. Gadson

Faculty Publications

Scholars have insisted that constitutional crisis is rare in American history. They are wrong. Constitutional crisis has been one of the most important constants in American history. The events of January 6, 2021, the assassination attempt on President Trump, and the debate about whether to invoke the Twenty-Fifth Amendment to force President Biden out of office are child’s play compared to the constitutional crises this country has endured. Those observations are only surprising because so few scholars have studied constitutional crises at the state level. They are focused on national and international constitutional crises. This Article has three goals. First, …

Crypto And The Fiduciary Investor, Eric D. Chason

Faculty Publications

Without much aid from MPT [modern portfolio theory], how should courts approach claims of imprudent investment in cryptocurrency? Courts might take this lack of aid as itself relevant. If MPT cannot place cryptocurrency in a portfolio, then perhaps fiduciary investors should refrain from doing so. Taking this approach would, however, overextend the prudent investor rule’s reliance on MPT. While the creators of the prudent investor rule certainly relied on MPT, the prudent investor rule does expressly adopt it. Moreover, courts should be wary of fixing investment practices in place. It would be ironic if the prudent investor rule, which intended …

Mired In Meyer'S Mischief A Century After Fabrication Of Constitutional Parents' Rights, James G. Dwyer

Faculty Publications

The seminal Supreme Court decisions Meyer v. Nebraska and Pierce v. Society of Sisters, now commemorated on their centenary anniversary, are odd doctrinal ducks. They are both still routinely cited as the foundation for ascribing to persons on whom the state has conferred legal parent status a right under the Fourteenth Amendment Due Process Clause of the United States Constitution. (According to Westlaw, judicial citation count for Meyer now nears 3000, and secondary-source citations have surpassed 7000.) It is a constitutional right to force states to confer on them greater legal power than the state is otherwise inclined to …