Digital Commons Network^™

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Faculty Publications

The concept of rivalry is central to modern accounts of property. When one person’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all.

This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that framework, it argues that rivalry should …

Supreme Court Litigators In The Age Of Textualism, Aaron-Andrew P. Bruhl

Faculty Publications

The Supreme Court’s approach to statutory interpretation has moved in a textualist direction over the last several decades, but there is little systematic information on how litigators’ briefing practices have changed during this era of textualist ascendancy. This Article examines thirty-five years’ worth of party briefs (over 8,000 briefs total), explores the briefs’ use of interpretive tools (including differences across categories of attorneys), and compares the briefs to the Court’s opinions.

This examination yields several valuable findings. Although the briefs show a textualist shift, they differ from the Court’s opinions in a few ways. The magnitude of the textualist shift …

Mothers With Disabilities In The Workplace Post-Pandemic & Post-Dobbs, Nicole Buonocore Porter

Faculty Publications

Between when I wrote Mothers with Disabilities and Fall 2023, two major developments have occurred that justify revisiting this topic. The first is the COVID-19 pandemic, which dramatically changed all aspects of our work lives and home lives. The second is the Supreme Court’s landmark decision in 2022, Dobbs v. Jackson Women’s Health Organization, which overturned a woman’s constitutional right to have an abortion. Both of these developments have unique, sometimes conflicting effects on mothers with disabilities.

Accordingly, this Article explores the workplace effects of the pandemic and the Dobbs decision on mothers with disabilities. Drawing on my prior …

Mercy For The Masses: A Default Rule For Automatically Triggered Commutations, Adam Gershowitz

Faculty Publications

This Essay considers how governors who are interested in reducing mass imprisonment can provide “mercy for the masses” who are in the middle of the criminal justice punishment spectrum. It draws on the successful mass pardons for misdemeanor marijuana offenses, as well as the aspects of the Obama Clemency Initiative that worked well. The proposals that follow offer four variations on a default rule for automatic, but modest, mass commutations.

[...]

This Essay proceeds as follows. First, Part I explains how the modern clemency power has often been focused on death penalty cases and low-level misdemeanors. Part II then recounts …

Public Protest And Government Immunities, Timothy Zick

Faculty Publications

This Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental immunities in the context of public protest. Relying on three unique datasets of federal court decisions examining First Amendment and Fourth Amendment claims, the Article concludes that public protester plaintiffs face an array of obstacles when suing state, local, and federal officials for constitutional injuries. Quantitative findings show that protesters’ claims are frequently dismissed under qualified immunity doctrines and that plaintiffs also face strict limits on municipal liability, new restrictions on First Amendment retaliation claims, and the possible extinction of …

Learning To Disagree Agreeably, Allison Orr Larsen

Faculty Publications

But the most important lesson I learned from Judge Wilkinson—out of many important lessons—is the one brought home to me by witnessing his friendship with Judge Michael: the law works only when lawyers learn to “disagree agreeably.” This is a phrase the Judge taught me—and he always attributed to people from whom he learned it—but for me it encapsulates the Judge in every way. It is easy to talk about being collegial in the abstract, but Judge Wilkinson practices what he preaches.

In this brief Essay, on the occasion of celebrating a man who shaped my career and life in …

Becoming A Doctrine, Allison Orr Larsen

Faculty Publications

On the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does …

Tarnished Gold: The Endangered Species Act At 50, Jonathan H. Adler

Faculty Publications

This Article aims to take stock of the [Endangered Species Act] ESA’s success and failures during its first fifty years, particularly with regard to the conservation of species habitat on private land. While the ESA authorizes powerful regulatory tools for species conservation, there are serious questions as to whether such tools are the most effective means of conserving species and the habitats on which they rely. Given that most species rely upon private land for their survival, the ESA’s ability to foster private land conservation will affect the law’s overall success.

This abstract has been taken from the author's introduction.

The Broken Token Problem: Why Crypto Classification Remains Elusive, Lev E. Breydo

Faculty Publications

Crypto is at a crossroads. After trillions in value destruction, a cascade of bankruptcies and millions of defrauded believers, many are wondering whether the sector has a future. Regulators, meanwhile, are not taking chances, “carpet bombing” crypto with legal actions. Notwithstanding the stakes, consensus remains elusive regarding first-order questions—including, what is crypto?

Part of the problem, this Article posits, is that we have largely been thinking about crypto incorrectly. Rather than a simple, uniform asset, crypto represents a highly heterogenous ten-thousand-instrument universe. One size cannot possibly fit all.

This Article introduces a novel unifying taxonomy for the sector based …

Aggressor Status And Its Impact On International Criminal Law Case Selection, Nancy Amoury Combs

Faculty Publications

The laws of war apply equally to all parties to a conflict; thus, a party that violates international law by launching a war is granted the same international humanitarian law rights as a party that is required to defend against the illegal war. This doctrine—known as the equal application doctrine—has been sharply critiqued, particularly by philosophers, who claim the doctrine to be morally indefensible. Lawyers and legal academics, by contrast, defend the equal application doctrine because they reasonably fear that applying different rules to different warring parties will sharply reduce states’ willingness to comply with the international humanitarian law system …

Permitting The Future, Jonathan H. Adler

Faculty Publications

Introduction to the research colloquium, "Permitting the Future" (2023) sponsored by the Coleman P. Burke Center for Environmental Law and the Property and Environment Research Center.

Papers "explore the ways in which the extensive permitting and review requirements adopted at the federal and state level are constraining needed development and infrastructure and suggest possible avenues of reform."

Foia-Flooded Elections, Rebecca Green

Faculty Publications

After the 2020 election, the United States has witnessed a crisis in confidence in election outcomes. The crisis has fueled massive public pressure on election offices to release election records via state 'freedom of information act" (FOIA) requests. This deluge of records requests places enormous strain on already overburdened and underfunded state and local election offices. Operating under strict statutory FOIA response deadlines, election officials spend hundreds of hours on records requests to the detriment of election preparedness potentially further exacerbating criticism of their offices. Making matters worse, election officials often lack guidance on which records may and may not …

Reimagining The Inclusive Jury, Anna Offit

Faculty Publications

At the height of the COVID-19 pandemic, everyday life for many Americans was upended. And yet, the jury trial remained viable — even vital. Faced with an era-defining public health disaster, courts innovated, embracing novel technologies and techniques to reimagine where and how justice might be made. But why did it take a pandemic to spur this kind of institutional creativity? Prior to the outbreak of COVID-19, people who were otherwise eligible to participate as jurors were routinely — and uncontroversially — struck or exempted from service due to limited mobility, vision and hearing loss, and caregiving responsibilities. Recent experience …

The Delegation Doctrine, Jonathan H. Adler

Faculty Publications

Despite the focus on the Court’s recent major questions cases, signs of an emergent delegation doctrine can also be found elsewhere. Most significantly, seeds of a delegation doctrine have been planted within the Court’s Chevron jurisprudence. The Court’s increased reluctance to grant Chevron deference to administrative agencies--and its insistence that courts first conclude that interpretive authority has been delegated before deferring to any agency interpretation—rests on the same core premise as the Court’s recent major questions doctrine decisions. It also suggests that the “new” major questions doctrine is not as new as it might seem, but rather a logical outgrowth …

Naming, Expressive Interests, And The Law: The Implications Of Governmental Form Design, Laura A. Heymann

Faculty Publications

The design of governmental forms can result in restrictions on the ability of individuals to submit truthful personal naming choices, such as when a form field has character limitations or does not accept diacritics. In some instances, form design operationalizes government policy. But in other instances, form design can itself create law by limiting the ability to submit accurate names on the front end. Awareness of the legal implications of form design is critically important. A more inclusive and accurate approach toward the legal documentation of naming choices means that forms should adapt to people, not the other way around.

Patent Term Tailoring, Sarah R. Wasserman Rajec

Faculty Publications

Patent rights are designed to encourage innovation with both the promise of a patent and with its expiration. Currently, patent term lasts from issuance until twenty years from the application date, with minor exceptions. The patent term is limited so that rewards for past invention do not overly hinder future progress. Although the goal is laudable, a uniform patent term is a blunt instrument to achieve such a nuanced balance. Historically, the patent system was not averse to tailoring terms through, for example, individually granted extensions to undercompensated inventors or term curtailment when a foreign patent holder failed to “work” …

The Game, The Players, And The Board, Bruce E. Boyden

Faculty Publications

Christopher Seaman and Thuan Tran’s fascinating article, Intellectual Property and Tabletop Games, raises important questions about the role of intellectual property in developing and distributing innovative products. The market for tabletop games, Seaman and Tran argue, is able to sustain a high level of creativity at a high up-front cost, all while protected by some but not all of the IP rights that other industries’ outputs receive. Is that evidence of IP’s necessity or its superfluousness? In this Response, I argue that the answer is a little bit of both. Whereas prior scholarship has shown the lack of an …

El Pequeño Riego De México: Puebla, Morelos, Y Baja California Sur, José A. Rivera Ph.D.

Faculty Publications

Small to medium-sized irrigation systems in México are characterized in the literature as El Pequeño Riego. Some systems can be compared to those in northern New Mexico and southern Colorado, while others are significantly larger and more complex. Regardless of irrigated acres or hectáreas, however, there are many elements that are commonly shared across these regions. Firstly, the irrigation works are based on the use of acequias dug from the earth that need to be maintained and cleaned season to season. The terms canals and acequias are interchangeable. Secondly, the irrigators themselves, whether called parciantes or regantes, take …

Irreconcilable: Mcdonnell Douglas And Summary Judgment, Sandra F. Sperino

Faculty Publications

The McDonnell Douglas framework is the most important analytical structure in employment discrimination law. Scholars and judges have regularly criticized the three-part burden-shifting test. Despite decades of criticism, a central feature of the framework remains unexamined - its second step is incompatible with the summaryjudgment standard.

In employment discrimination cases courts often grant summaryjudgment in the employer's favor. Scholars have offered various accounts of why this happens, including docket pressures and published case law that focuses on grants of summary judgment. The second step of the inquiry has largely escaped scrutiny because it appears to be a quirky, but somewhat …

Breaking The Vicious Cycle Fragmenting National Law, Ryan Vacca, Peter S. Menell

Faculty Publications

One of the most troubling and increasingly overlooked problems plaguing the federal judiciary has been the reduction of throughput at the Supreme Court and the resulting fragmentation of national law. The imperative to resolve circuit splits has taken a back seat as the Court grapples with high-profile battles and the relentless crush of certiorari petitions. This fuels confusion and greater fragmentation of national law. Add in the general expansion of national law, and the vicious cycle intensifies.

This Article proposes a solution for expanding structural capacity to address fragmentation that does not require legislative reform or constitutional amendment. It utilizes …

Mackinlay Kantor: The Tangled Past Of A Once-Famous Author, Roy R. Behrens

Faculty Publications

No abstract provided.

Psychological Traits And Public Attitudes Towards Abortion: The Role Of Empathy, Locus Of Control, And Need For Cognition, Jiuqing Cheng, Ping Xu, Chloe Thostenson

Faculty Publications

In the summer of 2022, the U.S. Supreme Court overturned the historic Roe v. Wade ruling, prompting various states to put forth ballot measures regarding state-level abortion rights. While earlier studies have established associations between demographics, such as religious beliefs and political ideologies, and attitudes toward abortion, the current research delves into the role of psychological traits such as empathy, locus of control, and need for cognition. A sample of 294 U.S. adults was obtained via Amazon Mechanical Turk, and participants were asked to provide their attitudes on seven abortion scenarios. They also responded to scales measuring empathy toward the …

Organic Hazes As A Source Of Life’S Building Blocks To Warm Little Ponds On The Hadean Earth, Ben K.D. Pearce, Sarah M. Hörst, Joshua A. Sebree, Chao He

Faculty Publications

Over 4 billion years ago, Earth is thought to have been a hazy world akin to Saturn’s moon Titan. The organic hazes in the atmosphere at this time could have contained a vast inventory of life’s building blocks and thus may have seeded warm little ponds for life. In this work, we produce organic hazes in the lab in atmospheres with high (5%) and low (0.5%) CH4 abundances and analyze the solid particles for nucleobases, amino acids, and a few other organics using GC/MS/MS to obtain their concentrations. We also analyze heated (200°C) samples from the high methane organic haze …

Pressure Induced Modification Of Electronic And Magnetic Properties Of Mncrnbal And Mncrtaal, Brandon Schmidt, Paul M. Shand, Parashu Kharel, Pavel V. Lukashev

Faculty Publications

Spin-gapless semiconductor (SGS) is a new class of material that has been studied recently for potential applications in spintronics. This material behaves as an insulator for one spin channel, and as a gapless semiconductor for the opposite spin. In this work, we present results of a computational study of two quaternary Heusler alloys, MnCrNbAl and MnCrTaAl that have been recently reported to exhibit spin-gapless semiconducting electronic structure. In particular, using density functional calculations we analyze the effect of external pressure on electronic and magnetic properties of these compounds. It is shown that while these two alloys exhibit nearly SGS behavior …

Sefer Yosippon As A Source For Hasmonean History: The Mysterious Story Of John Hyrcanus And The Parthians, Kenneth Atkinson

Faculty Publications

No abstract provided.

The Reno Court Of Inquiry, Albert Winkler

Faculty Publications

Following the Battle of the Little Big Horn, there had been many accusations of poor conduct, neglect of duty, or outright cowardice leveled chiefly at both Major Marcus Reno and Captain Frederick Benteen for their actions or inactions at the engagement, which could have led to the destruction of Custer's command. Most significantly, Frederick Whittaker's attack on Reno and Benteen in his A Complete Life of Gen. George Armstrong Custer published in December 1876 was simply scathing.

Intermittent Digital Fasting: The Mental Health Benefits Of A One-Hour Daily Social Media Hiatus, Austin Lahue, James Gaskin, Kennedy Daniel

Faculty Publications

In an era where social media ubiquity persists, concerns over its impact on mental health have escalated. This preliminary study investigates the effects of a one-hour daily social media hiatus on the mental wellbeing of 60 college students over two weeks. Unlike common interventions demanding prolonged abstinence, this research explores a more feasible, short-term avoidance approach. The experimental design, including treatment and control groups, illuminates the potential mental health benefits of brief, yet regular, digital disengagements. Preliminary results suggest that even minimal breaks from social media can yield significant improvements in users' mental health. Interestingly, these benefits come not from …

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 …

Explaining Corporate Tax Avoidance, Andrew Belnap, Kaitlyn Kroeger, Jacob Thornock

Faculty Publications

The tax avoidance literature identifies dozens of variables that are related to corporate tax avoidance, but it lacks a framework for understanding the relative importance of these variables and the theories that drive these relations. We distill thirty years of tax avoidance research into key theories, and then use novel empirical techniques to quantify the relative and total importance of proposed explanations. We find that factors tied to investment opportunities contribute more to explained variation than other proposed theories. On the other hand, agency costs and financial reporting concerns explain very little variation in tax avoidance proxies, while operating metrics …

Mining The Qhapaq Ñan With Micaela De Vivero: Decolonial Cords, Joy Sperling

Faculty Publications

No abstract provided.