Digital Commons Network^™

The Racial Reckoning Of Public Interest Law, Atinuke O. Adediran, Shaun Ossei-Owusu

Faculty Scholarship

No abstract provided.

The Anxiety Of Influence And Judicial Self-Aggrandizement In Rabbinic Jurisprudence, Ethan J. Leib

Faculty Scholarship

No abstract provided.

The Chinese Advantage In Emergency Law, Ugo Mattei, Guanghua Liu, Emanuele Ariano

Faculty Scholarship

This Article has a twofold purpose. On the one hand, it offers comparative materials for an informed discussion of COVID-determined emergency law in China and Italy by assessing its normative implications and political genealogy. On the other hand, it explores the essential contiguity between the ‘state of exception’ triggered by the pandemic and the possible geopolitical shifts in global legal hegemony in the actual phase of surveillance capitalism which is witnessing a decline of law as a form of social organization and its replacement by the predictive models elaborated by technology. In this respect, the traditional Western iconography has long …

The Easterbrook Theorem: An Application To Digital Markets, Joshua D. Wright, Murat C. Mungan

Faculty Scholarship

The rise of large firms in the digital economy, including Amazon, Apple, Facebook, and Google, has rekindled the debate about monopolization law. There are proposals to make finding liability easier against alleged digital monopolists by relaxing substantive standards; to flip burdens of proof; and to overturn broad swaths of existing Supreme Court precedent, and even to condemn a law review article. Frank Easterbrook’s seminal 1984 article, The Limits of Antitrust, theorizes that Type I error costs are greater than Type II error costs in the antitrust context, a proposition that has been woven deeply into antitrust law by the Supreme …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This Article offers a model for addressing current inequities in U.S. municipal criminal regulation through design justice theory. Historically, municipal courts in the United States have been the arbiter of minor crimes, processing traffic tickets and other low-level criminal charges. They have also served to uphold Black Codes, segregation, anti-protest laws, and “broken windows” criminal regulation. Enhancing equality in municipal courts requires meaningful participation from across the city’s populace. Participatory design- a framework within urban planning, architecture and design fields- is a practice with honed protocols for implementing meaningful participation from “users” of a place or product. The goal of …

Rethinking The Supreme Court's Interstate Waters Jurisprudence, Jamison Colburn

Faculty Scholarship

For more than a century the Supreme Court has heard a steady stream of original jurisdiction controversies “between two or more States” over interstate waters. It has for even longer heard and decided similar cases involving non-state parties from its appellate dockets. Until now, no synthesis has combined these traditions to describe and explain states’ legal interests in interstate waters as an amalgam of federal common law, Article III’s judicial federalism, and the separation of powers. This article disentangles legacy opinions, orders, and jurisdictional traditions, revealing the bundle of interests that all courts are obliged to protect. It finally offers …

Religion, Conscience, And The Law: Reasons, Bases, And Limits For Exemptions, Kent Greenawalt

Faculty Scholarship

Kent Greenawalt discusses the permissibility, scope, and rationale for law to provide exemptions to protect religious and nonreligious conscience in the United States. It may be difficult for the law to determine which sentiments amount to conscience given differences in individuals’ perception and the strength of their convictions. Even the notion of a religious conscience is complex. Religious citizens’ conclusions about matters of interest to religion may proceed from both religion and reason, or only from reason. It is not clear what should count as religious, given differences between denominations and their ideas over time. There are a host of …

Obsolescence: The Intractable Production Problem In Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome "obsolescence” – the persistence of rules that only solve yesterday’s contracting problems? Until the early 20th century, contract law was largely created by common law courts. The law's default rules were efficient when created and courts updated them as commerce changed. But there were few rules and the common law process is slow. In response, the 20th century saw public and private lawmaking bodies enact commercial statutes in discrete legal areas such as secured credit, commercial …

The Big Data Regulator, Rebooted: Why And How The Fda Can And Should Disclose Confidential Data On Prescription Drugs And Vaccines, Christopher J. Morten, Amy Kapczynski

Faculty Scholarship

Medicines and vaccines are complex products, and it is often extraordinarily difficult to know whether they help or hurt. The Food and Drug Administration (FDA) holds an enormous reservoir of data that sheds light on that precise question, yet currently releases only a trickle to researchers, doctors, and patients. Recent examples show that data secrecy can be deadly, and existing laws such as the Freedom of Information Act (FOIA) cannot solve the problem. We present here a wealth of new evidence about the urgency of the problem and argue that the FDA must “reboot” its rules to proactively disclose all …

On Inadvertently Created Tables: A Brockean Theory Of Concrete Artifacts, Jeffrey C. Goodman

Faculty Scholarship

There has been a lot of discussion recently regarding abstract artifacts and how such entities (e.g., fictional characters like Sherlock Holmes, and mythological planets like Vulcan), if they indeed exist, could possibly be our creations.  Much of this debate has been carried out by Stuart Brock and David Friedell in this journal.  One interesting aspect of their discussion concerned the extent to which creative intentions play a role in the creation of artifacts, both abstract and concrete.  I here address the creation of concrete artifacts in particular.  I ultimately defend a Brock-inspired, heterodox view on which creative intentions are not …

Arguing About The Jus Ad Bellum, Monica Hakimi

Faculty Scholarship

Quite a bit of research suggests that international law’s argumentative practice has value insofar as it leads to or affirms some kind of normative settlement. This chapter uses the argumentative practice in the jus ad bellum to counter that view. The chapter’s central claim is that arguments about the jus ad bellum are valuable, even when they do not lead to normative settlement and the law’s content on the issue in dispute remains contested. The reason they are valuable is that they promote certain values that are associated with the rule of law.

Property Transitions, Michael A. Heller

Faculty Scholarship

Time plays a key role in this book. The last two chapters discussed two reasons why time matters to the life of property: over time, owners effect voluntary changes to property in order to carry out their life plans and the state imposes involuntary changes (from the individual owner’s perspective) in response to changing circumstances, shifting needs and wants, and revised public goals. For the state to function – and to remain justified on liberal principles – the government must have this ability to adjust ownership. However, state-initiated transitions to ownership – implemented through governments’ police and takings powers – …

Patriot Games: India And China: Brinkmanship In The Realm Of Apps, Neeraj Rajan Sabitha, Petros C. Mavroidis

Faculty Scholarship

India recently decided to ban a slew of applications (“apps”), mostly Chinese, accessed on mobile phones and other internet-based devices citing privacy and security concerns arising from the surreptitious mining and profiling of user data that is collected by these apps. It found these activities to be prejudicial to the sovereignty and integrity of India, defence of India, security of the state and public order. China responded that it suspected India’s decision to ban these apps to have violated the obligations that India had committed to under the framework of he World Trade Organization (WTO). Through this paper, we explore …

Authoring The Law, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law denies protection to legal texts through a rule known as the “government edicts doctrine”. Entirely a creation of nineteenth century courts, the government edicts doctrine treats expression produced by lawmakers in the exercise of their lawmaking function as altogether uncopyrightable. Despite having been in existence for over a century, the doctrine remains shrouded in significant mystery and complexity. Lacking statutory recognition, the doctrine has come to be seen as driven by open-ended considerations of “public policy” that draw on the overarching importance of public access to laws. In its decision in Georgia v. Public.Resource.Org., Inc., the Supreme …

Disability Admin: The Invisible Costs Of Being Disabled, Elizabeth F. Emens

Faculty Scholarship

This Essay comes in five parts. After this Introduction, Part I begins by briefly sketching the concept of life admin and setting out the understanding of disability that informs the ADA. Part II demonstrates the special burdens that admin places on people with disabilities and uses this argument to refine the social model of disability and clarify its implications. This theoretical insight lays the groundwork for Part III to fill a gap in the analysis of “reasonable” accommodation under Title I. This Part shows that, although courts have set out a cost-benefit analysis as the framework for determining the “reasonableness” …

Removing Carbon Dioxide Through Ocean Alkalinity Enhancement: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard

Faculty Scholarship

Many scientists now agree that achieving the 2015 Paris Agreement’s goal of limiting global warming to “well below” 2°C, and ideally to 1.5°C, above pre-industrial levels will require both major reductions in greenhouse gas emissions and the removal of massive amounts of carbon dioxide from the atmosphere. Various terrestrial and ocean-based carbon dioxide removal techniques have been proposed, but further research is needed to evaluate their relative benefits and drawbacks. Initial studies suggest that terrestrial carbon dioxide removal techniques, such as bioenergy with carbon capture and storage, may require large amounts of land, which could lead to conflicts with other …

Removing Carbon Dioxide Through Seaweed Cultivation: Legal Challenges And Opportunities, Korey Silverman-Roati, Michael B. Gerrard, Romany M. Webb

Faculty Scholarship

Scientists increasingly agree that carbon dioxide removal will be needed, alongside deep emissions cuts, to stave off the worst impacts of climate change. A wide variety of technologies and strategies have been proposed to remove carbon dioxide from the atmosphere. To date, most research has focused on terrestrial-based approaches, but they often have large land requirements, and may present other risks and challenges. As such, there is growing interest in using the oceans, which have already absorbed more than a quarter of anthropogenic carbon dioxide emissions, and could become an even larger carbon sink in the future.

This paper explores …

Why Supervise Banks? The Foundations Of The American Monetary Settlement, Lev Menand

Faculty Scholarship

Administrative agencies are generally designed to operate at arm’s length, making rules and adjudicating cases. But the banking agencies are different: they are designed to supervise. They work cooperatively with banks and their remedial powers are so extensive they rarely use them. Oversight proceeds through informal, confidential dialogue.

Today, supervision is under threat: banks oppose it, the banking agencies restrict it, and scholars misconstrue it. Recently, the critique has turned legal. Supervision’s skeptics draw on a uniform, flattened view of administrative law to argue that supervision is inconsistent with norms of due process and transparency. These arguments erode the intellectual …

Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh

Faculty Scholarship

In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious impli­cations for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copy­right adjudication that is at odds with the dominant approach under the Copyright …

Presidential Primacy Amidst Democratic Decline, Ashraf Ahmed, Karen M. Tani

Faculty Scholarship

Fifty years ago, when the Harvard Law Review asked Professor Harry Kalven, Jr., to take stock of the Supreme Court’s 1970 Term, Kalven faced a task not unlike Professor Cristina Rodríguez’s. That Term’s Court had two new members, Justices Harry Blackmun and Warren Burger. The Nixon Administration was young, but clearly bent on making its own stamp on American law, including via the Supreme Court. Kalven thus expected to see “dislocations” when he reviewed the Court’s recent handiwork. He reported the opposite. Surveying a Term that included such cases as Palmer v. Thompson, Younger v. Harris, Boddie v. …

Spoofing And Its Regulation, Merritt B. Fox, Lawrence R. Glosten, Sue S. Guan

Faculty Scholarship

Nearly a century after the United States enacted its first securities laws, urgent questions remain as to the scope of manipulation law: whether manipulation is possible in principle, and if so, how the law should respond in practice. Sharp disagreement among courts, economists, and legal scholars as to whether trading or quoting activity constitutes illegal manipulation has led to a legal framework that lacks precision and cogency. Moreover, the poorly articulated normative basis for court rulings has resulted in enforcement that is both under-inclusive and over-inclusive in ways that do a poor job of discouraging socially harmful transactions and enabling …

Trading Pharma Goods The Wto Legal Framework, Neeraj Rajan Sabitha, Petros C. Mavroidis

Faculty Scholarship

Trading of pharma goods has attracted widespread global attention in the wake of the COVID-19 pandemic. The Agreement on Trade in Pharmaceutical Products (“Pharma Agreement”) – a sectoral agreement between a handful of WTO members – was concluded in 1994 and aimed to eliminate duties on various pharmaceutical products. Nevertheless, this is all that the Pharma Agreement does: it eliminates duties and does not touch upon the regulatory aspects relating to marketing of pharmaceutical goods. WTO members remain sovereign to decide on this score, but must observe the WTO Licensing Agreement as well as nondiscrimination. Thus, while the intensity of …

Do Legal Origins Predict Legal Substance?, Anu Bradford, Yun-Chien Chang, Adam S. Chilton, Nuno Garoupa

Faculty Scholarship

There is a large body of research in economics and law suggesting that the legal origin of a country – that is, whether its legal regime is based on English common law or French, German, or Nordic civil law – profoundly impacts a range of outcomes. However, the exact relationship between legal origin and legal substance has been disputed in the literature and not fully explored with nuanced legal coding. We revisit this debate while leveraging novel cross-country data sets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly …

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended …

The Practice And Pedagogy Of Carceral Abolition In A Criminal Defense Clinic, Nicole Smith Futrell

Faculty Scholarship

Current social and racial justice movements have helped to advance deeper interest in the long-standing work of carceral abolitionists. Abolitionists understand that the criminal legal process ineffectively uses state-sanctioned violence, surveillance, punishment, and exclusion to address, and counterproductively perpetuate, the underlying problems that produce violence and harmful behavior in our communities. Abolition focuses on dismantling our current carceral systems and finding completely new, restorative, and collaborative ways of addressing harmful social behaviors. While abolitionist thought has long existed in organizing and non-legal academic spaces, law students and legal scholars are increasingly considering how a carceral abolitionist perspective can inform legal …

Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg

Faculty Scholarship

This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a …

Removing Carbon Dioxide Through Ocean Alkalinity Enhancement And Seaweed Cultivation: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard

Faculty Scholarship

This paper explores two ocean-based carbon dioxide removal strategies – ocean alkalinity enhancement and seaweed cultivation. Ocean alkalinity enhancement involves adding alkalinity to ocean waters, either by discharging alkaline rocks or through an electrochemical process, which increases ocean pH levels and thereby enables greater uptake of carbon dioxide, as well as reducing the adverse impacts of ocean acidification. Seaweed cultivation involves the growing of kelp and other macroalgae to store carbon in biomass, which can then either be used to replace more greenhouse gas-intensive products or sequestered.

This paper also examines the international and U.S. legal frameworks that apply to …

Adolescent Medical Decisionmaking Rights: Reconciling Medicine And Law, Doriane Lambelet Coleman, Philip M. Rosoff

Faculty Scholarship

Dennis Lindberg came into his aunt’s care when he was in the 4th grade because his parents struggled with drug addiction and could not provide for him. At thirteen, he was baptized in his aunt’s faith as a Jehovah’s Witness. Just days after he turned fourteen, on November 6, he was diagnosed with acute lymphoblastic leukemia.

The prognosis was that Dennis had a 75% chance of cure with standard oncology treatment. Consistent with the requirements of his new faith, however, Dennis told his doctors, “I do not want to be treated if the requirement is that I would have to …

Artificial Intelligence As Evidence, Paul W. Grimm, Maura R. Grossman, Gordon V. Cormack

Faculty Scholarship

This article explores issues that govern the admissibility of Artificial Intelligence (“AI”) applications in civil and criminal cases, from the perspective of a federal trial judge and two computer scientists, one of whom also is an experienced attorney. It provides a detailed yet intelligible discussion of what AI is and how it works, a history of its development, and a description of the wide variety of functions that it is designed to accomplish, stressing that AI applications are ubiquitous, both in the private and public sectors. Applications today include: health care, education, employment-related decision-making, finance, law enforcement, and the legal …

How Many Latours Is Too Many? Measuring Brand Name Congestion In Bordeaux Wine, Christopher Buccafusco, Jonathan S. Masur, Ryan Whalen

Faculty Scholarship

Firms rely on brand names to market goods to consumers, and consumers rely on brand names to locate goods that satisfy their preferences. If multiple firms are using the same or similar names, consumers may be confused about which product to buy, and firms may not obtain the benefits of their investments in quality. Recently, both firms and scholars in a number of industries have expressed concern about brand name congestion—too many firms clustering around too few terms. This paper applies computational linguistic analysis to chateau names in the Bordeaux wine region to study the degree of brand congestion within …