Digital Commons Network^™

Beyond Emissions: Migration, Prisons, And The Green New Deal, Wyatt Sassman, Danielle C. Jefferis

Faculty Scholarship

The Green New Deal is a bold resolution that asks us to envision climate policy beyond emissions reductions and pollution controls. The proposal seeks to reduce environmental impacts, including by dramatically reducing carbon emissions, while supporting domestic manufacturing, unionized labor, sustainable agriculture, and social equity. The Biden Administration has expressed support for the Green New Deal as “a crucial framework for meeting the climate challenges we face,” and the proposal has influenced the Administration’s early actions to reduce carbon emissions. How can the Green New Deal’s framework guide climate policy beyond emissions reductions, and who should be a part of …

Finding Original Public Meaning, James Macleod

Faculty Scholarship

No abstract provided.

Skirting The Law: Medicaid Block Grants And Per-Capita Caps In A Pandemic, Laura D. Hermer

Faculty Scholarship

To what extent can an administration abridge Medicaid’s entitlement status by administrative fiat? In the final year of the Trump administration, just before the COVID-19 pandemic, the Centers for Medicare and Medicaid Services (CMS) sought to push the outer bounds of this question by announcing the Healthy Adult Opportunity (HAO) initiative. It invited states to submit § 1115 demonstration applications to cover individuals not eligible for Medicaid benefits under the state’ s Medicaid plan—meaning, in many cases, the Affordable Care Act’s (ACA’s) Medicaid expansion population. Spending on those populations would be capped, not by purporting to waive federal law regarding …

Mitchell Hamline School Of Law Summer 2020 Covid-19 Legal Response Clinic, Natalie Netzel, Ana Pottratz Acosta, Joanna Woolman, Kate Kruse, Jon Geffen

Faculty Scholarship

This essay is a reflection on lawyering in a time of crisis. It details the Mitchell Hamline School of Law Clinical Faculty’s response to the community needs resulting from the COVID-19 pandemic by creating the COVID-19 Legal Response Clinic. It also recounts the impact of the murder of George Floyd and the long overdue national reckoning with systemic racism, sparked in our city. Additionally, against this backdrop, it examines the trauma-informed approach taken in clinical work and the classroom to help students process their own trauma and apply this approach in their work with clients.

Amid these concurrent crises in …

Designing A State Court Small Claims Odr System: Hitting A Moving Target In New York During A Pandemic, David Allen Larson

Faculty Scholarship

When I began helping the New York State Unified Court System design a pilot online dispute resolution (“ODR”) system back in October 2016, I never imagined more than four years would pass before a system was implemented. One reason our journey was so long is because our target kept moving. After completing a detailed credit card debt collection ODR platform, we had to change direction before implementation and focus instead on small claims cases. Then like the rest of the world, we suddenly had to deal with the COVID-19 pandemic. Although it took longer than anticipated, we achieved our goal …

The Information Shortfalls Of Prosecuting Irresponsible Executives, Miriam H. Baer

Faculty Scholarship

This Essay, written for the 2020 Clifford Symposium on Tort Law and Social Policy, focuses on the prosecution and conviction of three corporate executives under the responsible corporate officer (RCO) doctrine in connection with Purdue Pharma’s misbranding of OxyContin. The RCO doctrine relieves prosecutors of having to demonstrate a difficult-to-prove mental state such as purpose or knowledge and instead holds corporate officers criminally responsible for certain violations that take place on their watch. Although Purdue Pharma’s three executives suffered economic consequences from their 2007 convictions, they received no term of imprisonment. This result elicited a fair amount of criticism, which …

The Labor Of Emerging Adults In International Settings: A Call For Critical Praxis In A Time Of Widening Economic Injustice., Donna M. San Antonio Dr.

Faculty Scholarship

No abstract provided.

Are You There, Law? It's Me, Semen, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Professionalization Of Compliance: Its Progress, Impediments, And Outcomes, James A. Fanto

Faculty Scholarship

No abstract provided.

Menstruation: An Ableist Narrative, Prianka Nair

Faculty Scholarship

No abstract provided.

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 …

Disaggregating Chevron, Lawrence B. Solum

Faculty Scholarship

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is widely regarded as the most important administrative law decision in the history of the United States. The scholarly literature is vast and defies summary or cataloging. Moreover, Chevron is contested and criticized, defended and derided, lauded and lamented—the source of “angst and rancor” in the words of Professor Kristin E. Hickman and R. David Hahn in their article, Categorizing Chevron. One might think that when it comes to Chevron, there is “no new thing under the sun,” but in fact, Chevron is still full of surprises. When we turn …

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 …

Inside The Master's Gates: Resources And Tools To Dismantle Racism And Sexism In Higher Education, Susan Ayres

Faculty Scholarship

The spring of 2020 saw waves of protest as police killed people of color. After George Floyd’s death, protests erupted in over 140 cities. The systemic racism exhibited by these killings has been uncontrollable, hopeless, and endless. Our country is facing a national crisis. In response to the police killings, businesses, schools, and communities held diversity workshops across the nation, and businesses and organizations posted antiracism statements. Legislators and City Councils introduced bills and orders to defund police and to limit qualified immunity. As schools prepared for the fall semester, teachers considered ways to incorporate antiracism materials into the curriculum. …

Beyond Transparency And Accountability: Three Additional Features Algorithm Designers Should Build Into Intelligent Platforms, Peter K. Yu

Faculty Scholarship

In the age of artificial intelligence, innovative businesses are eager to deploy intelligent platforms to detect and recognize patterns, predict customer choices and shape user preferences. Yet such deployment has brought along the widely documented problems of automated systems, including coding errors, corrupt data, algorithmic biases, accountability deficits and dehumanizing tendencies. In response to these problems, policymakers, commentators and consumer advocates have increasingly called on businesses seeking to ride the artificial intelligence wave to build transparency and accountability into algorithmic designs.

While acknowledging these calls for action and appreciating the benefits and urgency of building transparency and accountability into algorithmic …

Equality Of Autonomy? Physician Aid In Dying And Supported Decision Making, Megan S. Wright

Faculty Scholarship

The legalization of physician aid in dying (“PAID”) has been spreading across the United States and is currently legal in ten jurisdictions. Meant to respect autonomy at the end of life, PAID legislation is modeled after the Oregon Death with Dignity Act, which permits only terminally ill adults with contemporaneous decisional capacity to choose to hasten death with PAID. Right-to-die advocates and legal scholars have critiqued the strict eligibility requirements, which although meant to function as safeguards against mistakes and abuse, can be autonomy thwarting. Advocates and scholars have thus proposed using advance directives for PAID to expand access to …

Unrules, Daniel Walters, Cary Coglianese, Gabriel Scheffler

Faculty Scholarship

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet, for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation, for instance through waivers, exemptions, and exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Recovery Plan And Rule Of Law Conditionality: A New Era Beckons, Takis Tridimas

Faculty Scholarship

No abstract provided.

Prosocial Fraud, Julia Y. Lee

Faculty Scholarship

This Article identifies the concept of prosocial fraud--that is, fraud motivated by the desire to help others. The current incentive-based legal framework focuses on deterring rational bad actors who must be constrained from acting on their worst impulses. This overlooks a less sinister, but more endemic species of fraud that is not driven by greed or the desire to take advantage of others. Prosocial fraud is induced by prosocial motives and propagated through cooperative norms. This Article argues that prosocial fraud cannot be effectively deterred through increased sanctions because its moral ambiguity lends itself to self-deception and motivated blindness. The …

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 …

Cleaning Corporate Governance, Jens Frankenreiter, Cathy Hwang, Yaron Nili, Eric L. Talley

Faculty Scholarship

Although empirical scholarship dominates the field of law and finance, much of it shares a common vulnerability: an abiding faith in the accuracy and integrity of a small, specialized collection of corporate governance data. In this paper, we unveil a novel collection of three decades’ worth of corporate charters for thousands of public companies, which shows that this faith is misplaced.

We make three principal contributions to the literature. First, we label our corpus for a variety of firm- and state-level governance features. Doing so reveals significant infirmities within the most well-known corporate governance datasets, including an error rate exceeding …

The Giant Shadow Of Corporate Gadflies, Kobi Kastiel, Yaron Nili

Faculty Scholarship

Modern-day shareholders influence corporate America more than ever before. From demanding greater accountability of executives to lobbying for a variety of social and environmental policies, shareholders today have the power to alter how American companies are run. Amazingly, a small group of individual shareholders wields unprecedented power to set corporate agendas and stands at the epicenter of our contemporary corporate governance ecosystem. In fact, the power of these individuals, known as “corporate gadflies,” continues to rise.

Corporate gadflies present a puzzling reality. Although public corporations in the United States are increasingly owned by large institutional investors, much of their corporate …

Social Corporate Governance, Jeremy Mcclane, Yaron Nili

Faculty Scholarship

Corporate directors, like most people, are social creatures, and their social networks affect their decisions. But directors’ social networks remain both understudied and under-theorized by scholars and inconsistently addressed by courts. This Article comprehensively examines the importance of director networks to corporate governance for the first time. Using qualitative and quantitative data, the Article uncovers the importance of director networks to corporate governance and the implications that network theory poses for the study of corporate law. In doing so, the Article tackles an understudied corner of corporate decision-making at a critical time, when directors have an outsized influence over their …

Better Than Our Biases: Using Psychological Research To Inform Our Approach To Effective, Inclusive Feedback, Anne D. Gordon

Faculty Scholarship

As teaching faculty, we are obligated to create an inclusive learning environment for all students. When we fail to be thoughtful about our own bias, our teaching suffers – and students from under-represented backgrounds are left behind. This paper draws on legal, pedagogical, and psychological research to create a practical guide for clinical teaching faculty in understanding, examining, and mitigating our own biases, so that we may better teach and support our students. First, I discuss two kinds of bias that interfere with our decision-making and behavior: cognitive biases (such as confirmation bias, primacy and recency effects, and the halo …

Mark Of The Devil: The University As Brand Bully, James Boyle, Jennifer Jenkins

Faculty Scholarship

In recent years, universities have been accused in news stories of becoming “trademark bullies,” entities that use their trademarks to harass and intimidate beyond what the law can reasonably be interpreted to allow. Universities have also intensified efforts to gain expansive new marks. The Ohio State University’s attempt to trademark the word “the” is probably the most notorious. There has also been criticism of universities’ attempts to use their trademarks to police clearly legal speech about their activities. But beyond provocative anecdotes, how can one assess whether a particular university is truly bullying, since there are entirely legitimate reasons for …

Unwilling Or Unable? The Failure To Conform The Nonstate Actor Standard In Asylum Claims To The Refugee Act, Charles Shane Ellison, Anjum Gupta

Faculty Scholarship

Pursuant to its obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” For decades, both the Board of Immigration Appeals and federal courts recognized that individuals could obtain asylum based on a fear of persecution at the hands of nonstate actors, so long as the applicant demonstrated that their government was “unable or unwilling” to control the persecution.

As part of a wide-ranging attack on asylum, the Trump administration has sought to eliminate asylum based on nonstate actor persecution. In …

Dumping: On Law Reviews, James Boyle

Faculty Scholarship

No abstract provided.

When Guns Threaten The Public Sphere: A New Account Of Public Safety Regulation Under Heller, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Government regulates guns, it is widely assumed, because of the death and injuries guns can inflict. This standard account is radically incomplete—and in ways that dramatically skew constitutional analysis of gun rights. As we show in an account of the armed protesters who invaded the Michigan legislature in 2020, guns can be used not only to injure but also to intimidate. The government must regulate guns to prevent physical injuries and weapons threats in order to protect public safety and the public sphere on which a constitutional democracy depends.

For centuries the Anglo-American common law has regulated weapons not only …

Whistleblowers: Implications For Corporate Governance, Deborah A. Demott

Faculty Scholarship

Often overlooked in academic accounts of corporate governance and the actors who populate governance structures, whistleblowers are no more visible in formal governance frameworks. Within a corporation, whistleblowers may be lower-rank employees, not directors or officers; they may report perceptions of wrongdoing to others within the corporation or inform governmental or other actors who are externally situated. Nonetheless, it is striking how often retrospective accounts of corporate scandals involve episodes of internal whistleblowing associated with governance and compliance failures. This paper argues that incorporating whistleblowers into formal governance structures could spur more proactive involvement by directors in monitoring compliance with …

Clinicians Reflect On Covid-19: Lessons Learned And Looking Beyond, Deborah Archer, Caitlin Barry, Priya Baskaran, Lisa Bliss, Jennifer Fernandez, Crystal Grant, Anju Gupta, Gautam Hans, Julia Hernandez, Vida Johnson, Carolyn Kaas, Alexis Karteron, Shobha Mahadev, Lynnise Pantin, Kele Stewart, Erika Wilson

Faculty Scholarship

As a result of the unprecedented COVID-19 pandemic, clinical faculty had to abruptly adapt their clinical teaching and case supervision practices to adjust to the myriad restrictions brought on by the pandemic. This brought specialized challenges for clinicians who uniquely serve as both legal practitioners and law teachers in the law school setting. With little support and guidance, clinicians tackled never before seen difficulties in the uncharted waters of running a clinical law practice during a pandemic.

In this report, we review the responses of 220 clinicians to survey questions relating to how law clinics and clinicians were treated by …