Digital Commons Network^™

Sealed Justice: Federal Courts' Inconsistent Record-Sealing Rules And Their Impact On Judicial Transparency, David S. Ardia

Faculty Publications

Public access to court records is a cornerstone of democratic governance, enabling public oversight of the judiciary and fostering confidence in the rule of law. Despite a strong presumption in favor of openness under both the First Amendment and common law, the sealing of federal court records has become widespread, often with minimal judicial scrutiny. Re-cent investigations have revealed that excessive court secrecy shields government and corporate misconduct, conceals vital public-safety information, and erodes public confidence in the courts.

This Article presents the first comprehensive analysis of the local rules governing sealing in all 94 federal districts, reviewing more than …

Wellness And The Tax Law, Leigh Z. Osofsky

Faculty Publications

The tax law has long provided extensive subsidies for “medical care.” These subsidies cost the government hundreds of billions of dollars a year. The definition of medical care, which is at the heart of these subsidies, originated many decades ago at a time when there was little to no conception of wellness.

Times have changed in the medical world. Medical science now emphasizes that wellness practices, like exercise, meditation, and social connection, have an important impact on physical as well as mental health, including by playing a significant role in preventing and treating disease. Under the tax statute, medical care …

A Patent System For Temple Grandin, Andrew Chin

Faculty Publications

This article explores the intersection of neurodiversity and innovation through the lens of Temple Grandin’s contributions to livestock handling systems and her philosophical alignment with the U.S. patent system. Drawing on cognitive research by Simon Baron-Cohen, archaeological insights from Penny Spikins, and personal reflections, I argue that autistic cognitive styles—characterized by heightened “folk physics” aptitudes and visual thinking—have historically driven technological progress. Grandin’s patented inventions, motivated by sensory-based empathy for animals, exemplify how neurodivergent inventors seek to embed their conceptions of ethical utility into the nation’s technological infrastructure. The article critiques modern patent litigation trends, advocating instead for a system …

Retrenchment By Diversion: The New Law And Politics Of Parental Rights, Mary Ziegler, Maxine Eichner, Naomi Cahn

Faculty Publications

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent?

This Article …

Scrutinizing Transgender Healthcare Bans Through Intersex Exceptions, Holning Lau, Barbara A. Fedders

Faculty Publications

Major professional medical organizations—for example, the American Academy of Pediatrics, American Medical Association, and Endocrine Society—consider gender-affirming care to be safe and, at times, essential for vulnerable transgender youth. Despite these benefits, 26 states have banned gender-affirming care for minors. Proponents of these bans raise concerns about potential medical harms, the irreversibility of treatments, and the adequacy of informed consent.

Every state ban includes an exception for so-called gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary. The procedures are rarely medically necessary, but proponents of the surgeries contend …

Flooding The Zone: The State Of Federal Flood Insurance At The Beginning Of Trump 2.0, Maggie Caudle, Jacob Dowler, Donald T. Hornstein

Faculty Publications

The risks of flooding in the United States have never been more apparent, making all the more significant the state of flood insurance and the legal and political volatility of the National Flood Insurance Program. In this Article we discuss the details of “Risk Rating 2.0,” the most significant change to federal flood insurance in half a century, and its legal and political future in the new world of Trump 2.0. And, in addition to describing the details of this new change to federal flood insurance, we describe its advantages and disadvantages in both the newfound political environment in which …

Government Lawyers, Ethical Dilemmas: The Case Of Herbert Wechsler And Japanese American Incarceration, Eric L. Muller

Faculty Publications

This essay examines ethical dilemmas facing government agency lawyers through two episodes from Herbert Wechsler’s wartime service as head of the DOJ War Division: overseeing the Supreme Court brief in Korematsu v. United States and administering the Renunciation Act of 1944 amid turmoil at the Tule Lake Segregation Center. In the Korematsu matter, Wechsler managed a brief that skirted the Army’s problematic “Final Report” claims (including shore-to-ship signaling), privileging institutional role fidelity over disclosure, and helping sustain a framework that justified mass removal of Japanese Americans. In the renunciation program, he chose to accept any “voluntary” citizenship renunciation regardless of …

Civic Duties And Cultural Change, Daniel B. Rice

Faculty Publications

What duties do Americans owe the state? Today, this question seems almost incomprehensible. Compulsions in the common interest are received coolly in our rights-obsessed culture, and the Supreme Court has never announced a framework for identifying the burdens of citizenship. Yet the concept of civic duty has played a central role in America’s constitutional tradition. From shoveling snow to repairing roads to fighting overseas, private individuals have long been forced to serve the public in ways menial and profound. Strangely, the discourse of obligation that legitimated numerous compulsions has faded from professional view. Judges’ mawkish tributes to liberty pay no …

Notice, Consent, And Choice-Of-Jurisdiction Clauses In The United States, John F. Coyle

Faculty Publications

Although choice-of-jurisdiction clauses are routinely enforced by courts in the United States, there are circumstances where they are subject to special scrutiny. One of these circumstances is when the party resisting the clause was not provided with proper notice as to the existence of the clause or the identity of the chosen jurisdiction. This Article first reviews the existing case law in this area and shows that while some U.S. courts have refused to enforce clauses for lack of notice, others do so as a matter of course. It then discusses several decisions where U.S. courts have held that notice …

The Right To A Jury And The Rise Of Guilty Pleas Across Common Law Countries, Carissa Byrne Hessick

Faculty Publications

Juries have long been considered a key common law institution, yet their use has become quite uncommon in common law systems over time. Rather than trials by juries, most criminal cases are instead resolved by way of guilty pleas. The prevalence of guilty pleas is not merely a matter of defendants’ independent choices to accept responsibility and give up the right to a trial. Common law countries have adopted various legal structures over the past half century that incentivize guilty pleas and discourage trials.

This Essay will document the decline of jury trials and the rise of guilty pleas in …

Equality And Justice: An Essay In Memory Of Dan Markel, Carissa Byrne Hessick

Faculty Publications

One of the traits that I admired most about Dan Markel was that he held legal scholarship to a very high standard. Whether it was his own work or the work of others, he believed that our work could only improve if we insisted on giving each other critical feedback.

It has been a decade since Dan’s tragic death. And while a Festschrift is ordinarily seen as an opportunity to praise the work of one’s colleagues, I want to celebrate Dan Markel in the way that I imagine he would respect most—by providing critical feedback about his work. In particular, …

Generative Identity Theft: Criminalizing Deepfakes Using The Right Of Publicity, Dustin Marlan

Faculty Publications

The right of publicity grants individuals control over the commercial use of their identity, particularly name, image, and likeness. Currently, publicity laws are a fragmented patchwork of state statutes and case law, leading to frequent calls for reform, including the establishment of a federal right of publicity. This issue has gained renewed urgency amid the rise of generative artificial intelligence and deepfake technologies. In response, Congress has introduced multiple bipartisan proposals—most prominently, the Senate’s No FAKES Act and the House’s No AI FRAUD Act—that seek to create federal protections against unauthorized digital replicas of likeness, voice, and other aspects of …

Popular Sovereignty And A Right To Know About The Government, David S. Ardia

Faculty Publications

This Article argues that the U.S. Constitution implicitly contains a structural “right to know” about the government, rooted in the doctrine of popular sovereignty rather than the First Amendment. Democratic self‑government requires public access to governmental information; without it, the people cannot exercise informed consent or their sovereign authority. The Article critiques reliance on purely statutory transparency regimes such as FOIA, noting their fragility and susceptibility to political rollback. Through historical and structural analysis, it shows that the Framers viewed an informed citizenry as essential to maintaining checks and balances. The Article proposes three principles for operationalizing a constitutional right …

Death And Debts, Kevin Bennardo

Faculty Publications

This Article analyzes how inheritance law treats debts owed to and by a decedent, focusing on the Uniform Probate Code’s treatment of unpaid purchase-price balances associated with specifically devised property. While UPC §2‑606(a)(1) automatically gives the outstanding balance to the specific devisee, the Article argues that this rule is inconsistent with modern intent‑based ademption doctrine and with the Code’s treatment of debts owed by the estate. It contends that only outstanding balances secured by the devised asset reflect a meaningful connection to the testator’s likely intent. Unsecured balances, by contrast, should not automatically avoid ademption. The Article proposes amending the …

Debt, Work, And The State, Kate Sablosky Elengold

Faculty Publications

In every state and the District of Columbia, an individual who owes a debt to the state can lose their license to work. Without the ability to make a living, it is much harder to pay off debt. Although using occupational license restrictions as a debt collection tool appears nonsensical, it has never before been the subject of scholarly debate. This Article thus begins an important conversation about debt, work, and the state.

This Article identifies the pervasive authority that state and local governments have to revoke an individual’s occupational license solely because that person owes a debt to the …

Arrest Unbound, Eisha Jain

Faculty Publications

Arrest has long been legally defined as a seizure, or temporary restraint on liberty, under the Fourth Amendment. But when the government arrests someone today, it imposes far more than a seizure. The government also marks individuals with arrest records, which enable wide-ranging penalties, such as deportation, civil detention, loss of a professional license, and disruption of custody. One consequence is that this regulatory structure unravels arrest from the key institutional checks that would permit the public or key actors to examine whether the government-imposed consequences stemming from arrest are fair and justified. Proportionality depends on the public at large …

The Nuances Of Prosecutorial Nonenforcement, Meighan R. Parsh, Carissa Byrne Hessick

Faculty Publications

The academic literature on prosecutors is divided: Some commentors believe that prosecutors should more aggressively use their ability to decline to bring charges, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration. Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and public safety. While the visibility of this debate has increased—spilling over from the pages of law reviews into political campaigns and headlines—the terms of this debate are at times unclear. Prosecutorial nonenforcement is a multifaceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs …

The Criminal System Under Racial Capitalism, Sandeep Singh Dhaliwal

Faculty Publications

In 2021, major segments of the business lobby converged around a consensus for criminal system reform. As the United States experienced historic levels of labor market tightness, business groups argued for removing “barriers” to employment that system-involved people face. Just a few months later, the orientation of business to the criminal system was decidedly more mixed. By March 2022, the U.S. Chamber of Commerce, the country’s most powerful business lobby, had stepped to the forefront of the national moral panic around retail theft, launching a vigorous campaign to defend and even strengthen criminal punishment across the country.

Anchoring its analysis …

Queers, Closets, And Corporate Governance, Darren Rosenblum

Faculty Publications

The past few years have seen several corporate diversity initiatives that include Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ+) people. In 2020, Nasdaq, the world’s second-largest stock exchange, and California, the largest state, both adopted rules to encourage board diversity for underrepresented groups, including LGBTQ+ people. Since that time, the Los Angeles Superior Court struck down California’s law, the Fifth Circuit invalidated Nasdaq’s rule, and the Trump administration initiated a slew of anti-Diversity Equity and Inclusion (DEI) and anti-LGBTQ+ measures. In the context of this sharp ideological turn, this Article attempts to step back and tackle a larger question: how can …

Dividing Trademark Use, Jeremy N. Sheff

Faculty Publications

The trademark law of the United States places special emphasis on whether and how a trademark is used in commerce. But over the long history of the Lanham Act—including some less-than-careful drafting by Congress and some aggressive acts of interpretation by the federal courts—the concept of “use” has become complicated and in many ways confused. Two recent Supreme Court cases—Jack Daniel’s Properties, Inc. v. VIP Products LLC and Abitron Austria GmbH v. Hetronic International, Inc.—reflect and in some ways exacerbate that confusion. But the opinions in these cases also expose an interesting property of “use” in trademark law …

Family Regulation's Consent Problem, Anna Arons

Faculty Publications

The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.

This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining consent in criminal cases, it shows that common family regulation investigation tactics render consent involuntary and the ensuing searches unconstitutional. And yet, it argues, the Constitution is not enough. Though constitutional litigation could …

Status, Conduct, Belief, And Message: The Wedding Vendor Cases, Mark L. Movsesian

Faculty Publications

(Excerpt)

I’d like to speak today about one of the more neuralgic episodes in the United States’s ongoing culture wars: the wedding vendor cases. These are cases in which small business owners decline, from religious conviction, to provide services for same-sex weddings. A baker declines to bake a wedding cake for a gay couple because, as a Christian, he opposes same-sex marriage and doesn’t want to participate in sinful behavior. A Christian web designer declines to create websites for same-sex weddings, since doing so would express her support for such weddings, which she doesn’t want to do. Other examples involve …

Student Protests And “Fighting Words”: Critical Race Theory And The Evolution Of Hate Speech Codes On College Campuses, Mark C. Niles

Faculty Publications

Devastating Hamas attacks on Israeli civilians and military personnel in October 2023, and the Israeli military response to those attacks in Gaza, have given rise to protests around the world, notably on college campuses in the United States. These protests (on more than fifty campuses in all parts of the country) have in turn generated multiple allegations of antisemitic statements and conduct by protestors. Many high-profile university donors and board members, portions of the media, and some elected officials responded to these allegations by identifying perceived deficiencies in campus administrative responses to these complaints and to calls for more robust …

Ban Cookie Banners: A Case Study In Tech Regulation, Kate Klonick

Faculty Publications

Few experiences on the modern internet are as universally reviled as the cookie banner. They clutter websites with pop-ups, interrupt user flow, make information harder to access, and demand repetitive, meaningless clicks. What was once heralded as a tool to advance individual autonomy and privacy has, in practice, become a daily annoyance that breeds cynicism with the very concept of consent itself. Cookie banners do not empower; they weary. They do not inform; they obscure. They do not prevent surveillance; they normalize it.

The tragedy of the cookie banner is that it embodies the best intentions but worst solutionism of …

Securities Arbitration Case Law Update 2024–2025 (July 2025), Elissa Germaine, Anthony Rivera

Faculty Publications

(Excerpt)

This article summarizes recent cases regarding the constitutionality of FINRA and leading arbitration cases that are of particular relevance to securities arbitration practitioners.

Business Communication And Editing Students’ Evaluations Of Written Error: An Eye-Tracking Study, Matt Baker, Grant Eck, Ana Barraza, Benjamin Duffield

Faculty Publications

Using eye-tracking and interview methods, this study investigates how business communication students and editing students attend to and evaluate writing. Participants reviewed blog posts embedded with errors and judged publication readiness. While both groups visually fixated longer on errors than non-errors, business communication students were more likely to approve error-containing texts for publication. Qualitative data revealed that business communication students prioritized content while editing students prioritized surface-level issues. These findings suggest that disciplinary background informs evaluative standards, even when error-detection behavior is similar. The results carry implications for instruction in business writing and editing, especially concerning collaborative, cross-disciplinary workplace writing.

Disclosure Benchmarking By Lawyers: Evidence Fromthe Ipo Setting, Michael S. Drake, Jeff Mcmullin, Kenneth Merkley, Chase Potter, John Treu

Faculty Publications

Lawyers play an important advisory role in drafting financial reports, yet empirical evidence documenting the influence of external legal counsel on this process remains sparse. This study focuses on a specific aspect of lawyers’ drafting process: the practice of reviewing disclosures previously filed by other issuers—a practice termed “disclosure benchmarking.” Using initial public offering (IPO) disclosures as the setting, we find that disclosure benchmarking is associated with amore efficient Securities and Exchange Commission (SEC) review process. We further find that it is associated with several measures of disclosure quality, including disclosures that are less likely to be revised in subsequent …

The Influence Of Financial Data Subscriptions On Analyst Research, Braiden Coleman, Travis Dyer, Mark Lang

Faculty Publications

We use disclosed “source” data from analyst reports to infer brokerage financial data subscriptions (FDS) and investigate their effects on analyst research. When brokerages add FDS, their analysts’ forecast accuracy increases. Effect sizes are at least as large as those for analyst experience, busyness, and brokerage size. Benefits are largest for less experienced and busier analysts with less private access to management forecasting over longer horizons. Although adding new FDS benefits individual analysts, there is substantial overlap in FDS across brokerages, leading to homogenized market views. Specifically, when brokerages have overlapping FDS, their analysts’ forecasts, timing, boldness, recommendations, report content, …

An House For The Lord: Solomon's Temple And Temple Worship In Ancient Israel, Dan Belnap

Faculty Publications

It would not be exaggeration to say that at the center of Old Testament history and theology is covenantal worship and the temple. From the Garden of Eden to the altars constructed by Abraham and the patriarchs, and the portable tabernacle of Moses, the concept of sacred space plays a fundamental role throughout biblical history and in the life of ancient Israel. But during the period of the monarchy, it became possible to construct a permanent house for the Lord. Thus, the construction and dedication of the temple are the primary subject within Solomon’s narrative arc. This chapter explores the …

Existing Personal Leadership Prototypes Versus Organizational Leadership Prototypes: How Individuals Manage Tensions Between Leading With Authenticity And Conformity During Their Socialization As Leaders In Organizations, Benjamin M. Galvin, Jeffrey S. Bednar, Archie Bates

Faculty Publications

Based on qualitative data collected at the United States Military Academy (West Point), this research enhances our understanding of how individuals manage tensions between leading with authenticity and organizational pressures for conformity, resulting from a lack of alignment between their existing personal leadership prototypes and organizational prototypes of leadership. Our theoretical model moves beyond existing research on leader identity construction− which largely treats individuals as blank slates as they construct who they will be as leaders in organizations− by highlighting how individuals learn to enact a leadership approach during socialization that fits within their personal zone of acceptable authenticity and …