Digital Commons Network^™

Unequal Ownership, Ofer Eldar, Rory Van Loo

Faculty Scholarship

Market concentration and weak competition do not just lead to lower efficiency but also result in corporate profits flowing primarily to wealthy households that own a disproportionate share of public corporations. We demonstrate that this is a growing distributional problem not only due to familiar reasons in the literature, most notably shifts in market power, but also due to changes in the socio-economic makeup of ownership. Over the past twenty years, households in the bottom 90 percent of wealth have seen their share of stock ownership decline by half. That is, the ownership of corporations has become increasingly concentrated among …

Consumer Agents, Rory Van Loo

Faculty Scholarship

In the twenty-first century economy, individuals need market help that they are not getting. The technology has long existed for a browser plug-in that would filter out toxic social media content or a virtual shopping assistant that would find and even purchase the best deals online without having to go to many different websites and product pages. Yet tech platforms have used lawsuits and data control to stifle such tools. The lack of digital helpers has potentially profound consequences. Social media use is linked to alarming increases in teenage depression and anxiety. Businesses’ ability to manipulate consumers into paying higher …

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Faculty Scholarship

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Book Review: Biglaw's Race Problem, Angela Onwuachi-Willig, Anthony V. Alfieri

Faculty Scholarship

Ever since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, …

Foundations For Platform Liability, Kathryn E. Spier, Rory Van Loo

Faculty Scholarship

From spreading misinformation to selling deadly products, bad actors use technology platforms to their advantage while causing devastating harms to privacy, health, and even democracy. Despite their central role in enabling these bad actors, the platforms almost entirely escape liability. This legal immunity is purportedly grounded in economics. From the beginning, courts and legislatures feared that liability would chill innovation, growth, and user access. They also speculated that platforms have sufficient market incentives to voluntarily police bad actors, making liability unnecessary.

Whereas many scholars have argued that platform immunity is blind to justice, this Article shows that it is also …

Normalizing Facial Recognition Technology And The End Of Obscurity, Woodrow Hartzog, Evan Selinger, Judy Hyojoo Rhee

Faculty Scholarship

This article argues that facial recognition technology is the most dangerous surveillance tool ever invented. Given the unique threats this morally suspect tool poses to privacy, civil liberties, human flourishing, and democracy, the only appropriate response is a ban. To justify our position, we explain why facial recognition is distinctive among biometrics, clarify how even seemingly benign and positive uses of the technology can trigger dangerous normalization dynamics, and pinpoint why current United States laws (with reverberations in the EU’s AI Act) are designed to accelerate a slippery slope that makes mass surveillance nearly inevitable. Our most fundamental contribution lies …

Copyright Law And Property Law, Keith N. Hylton

Faculty Scholarship

Property is at the core of state law since it is the exclusive power of the individual state governments to define and protect property rights within their jurisdiction. In this paper I will discuss the general connection between copyright and property generally. I will argue that property law sheds important light on copyright law and can help us cut through modern controversies in copyright law. If I am correct in this view, any judge sufficiently familiar with property law doctrines could do better than the Supreme Court of the United States in resolving a new copyright controversy. Specifically, property law …

Digital Servitude, Julie A. Dahlstrom

Faculty Scholarship

This Article addresses the phenomenon of digital servitude—forced labor practices facilitated by information and communications technology (ICT). With advances in technology and the internet, scholars and advocates have observed the rise of technology-facilitated human trafficking. Yet, disproportionate focus has remained on online sex trafficking, including commercial sex websites and online recruitment, despite ample research on work, technology, and digital surveillance. This Article seeks to fill this gap by shedding light on how technology intersects with involuntary servitude and forced labor claims in the United States. By analyzing federal pleadings in civil and criminal labor trafficking cases, it provides new insights …

The Major Questions Doctrine, Post-Chevron?: Skidmore, Loper-Bright, And A Good-Faith Emergency Question Doctrine, Jed Handelsman Shugerman

Faculty Scholarship

When my students and colleagues fretted about Chevron's fate, I have said, "Worry less. Skid-more." Just as old Skidmore "weight" or "respect" returns post-Chevron, the new (and newer) major questions doctrine(s) survive as a reason to give less weight to an agency interpretation. This symposium essay suggests a special role for the post-Chevron major questions doctrine: an Emergency Questions Doctrine. When the executive asserts an emergency power, when the statutory basis is open-ended (often for very good reasons), majorness means less deference to simple and fast textualism, and more time for courts to engage in deeper purposivism to …

Why Did Prosecution Strengthen President Trump In The 2024 Election?, Steven Arrigg Koh

Faculty Scholarship

Why did criminal prosecution strengthen President Donald Trump's electoral prospects in the 2024 federal election? It was not supposed to be this way: after President Trump's 2024 New York state conviction, many speculated that President Trump's "felon" status would imperil his political career. In fact, the opposite occurred: federal and state criminal prosecutions reenergized President Trump's 2024 presidential candidacy. Contemporary criminal law theories-traditional individualist, expressivist, and critical-struggle to explain why. 

This Article advances a theory of criminal coalescence to explain why the Trump prosecutions led the former President to political victory. Criminal coalescence is the intensification of mass support for …

Panel Discussion: Mindfulness In The Law School Environment, Erika George, Nicky Boothe, Kellyn O. Mcgee

Faculty Scholarship

A 2016 study of 13,000 lawyers conducted by American Bar Association Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation found that approximately 28 percent struggle with depression, 19 percent anxiety and 23 percent stress.¹² The study found “younger lawyers in the first ten years of practice and those working in private firms experience the highest rates of problem drinking and depression.”¹³ At least one study suggests that 40-70 percent of disciplinary proceedings and malpractice claims against lawyers involve substance abuse or depression.

According to a 2016 Survey of Law Student Well-Being including over 3,300 law …

Challenging The Law, Steven Arrigg Koh

Faculty Scholarship

Frédéric Mégret’s engaging contribution, A Look Back at The Women’s Hague Peace Conference: What Contribution To International Law Today?, exposes a legal duality. On one hand, the legalist perspective: law is a closed system. From this perspective, law is objective, hard, universal, and bounded. On the other hand, the sociocultural perspective: law is a human practice. From this perspective, law is subjective, organic, particular, and porous. This Essay reads Mégret’s analysis of the 1915 International Congress of Women in The Hague as a “sociocultural challenge,” disrupting the legalist perspective on international law, war, and peace during World War I. …

What We Should Know About The Reliability Of Empirical Legal Studies, Kathryn Zeiler

Faculty Scholarship

The findings of replication studies conducted in the early 2010s led many to declare that science was in the midst of a “replication crisis.” Since then, a growing number of reforms have been proposed and tested. The field of empirical legal studies seems behind other fields such as psychology, economics, political science, medicine, biology, and others that have taken significant steps toward uncovering the general reliability of the field’s empirical work, investigating the causes of observed unreliability, and instituting and testing the effects of various reforms. The purpose of this Article is to summarize what we know about the reliability …

Originalisms' Indifferences?: Friendly Amendments To Sherif Girgis's "Originalism's Difference?", Jed Handelsman Shugerman

Faculty Scholarship

Sherif Girgis’s Lecture Originalism’s Differences? reflects on what had differentiated originalism from other methods and why those differences are eroding. The differences are (or were): (1) avoiding “ostentatious moral reasoning”; (2) relatedly, constraining judges by requiring originalist historical evidence (i.e., tying judges’ hands); and (3) engaging historical research with more “intensity.” Girgis rightly criticizes the Court for engaging in the same kind of flexibility and creativity that originalists had long rejected.

In this commentary, I highlight our areas of agreement and offer friendly amendments. My title takes Girgis’s title two or three steps further: I use an “s-apostrophe” because I …

Automatic Reaction - What Happens To Workers At Firms That Automate?, James Bessen, Maarten Goos, Anna Salomons, Wiljan Van Den Berge

Faculty Scholarship

We provide the first estimate of the impacts of automation on individual workers by combining Dutch micro-data with a direct measure of automation expenditures covering firms in all private non-financial industries over 2000-2016. Using an event study differences-indifferences design, we find that automation at the firm increases the probability of workers separating from their employers and decreases days worked, leading to a 5-year cumulative wage income loss of about 8% of one year’s earnings for incumbent workers. We find little change in wage rates. Further, lost wage earnings are only partially offset by various benefits systems and are disproportionately borne …

Incremental Innovation, George Horvath

Faculty Scholarship

Transformative innovations—the ones that use new technologies to disrupt the world—command our attention. But most new products are the result of a more mundane process of incremental iterative innovation, evolving through a long series of small modifications of existing technologies. Although both kinds of innovation can result in improved safety and utility, both can also create new dangers. We tend to be more aware of this in transformative innovations (as current worries over artificial intelligence show); by contrast, dangers created by incremental iterative innovation often go unrecognized, because the process itself is easy to overlook. Policymakers and regulators need to …

Governance & Guardrails: Emerging Technologies And Low-Wage Workers, Seema N. Patel

Faculty Scholarship

This Article examines an important, but undertheorized phenomenon at the intersection of technology and work: the rapidly increasing presence of artificial intelligence systems into low wage workplaces—and decidedly into the lives of low-wage workers themselves—and the resulting broader implications on work law and democracy. For decades, technology has enabled employers to increasingly exert control over workers; but for all their promise, emerging technologies like artificial intelligence also extend a new and potentially harmful level of concern for low-wage workers in particular. From algorithmic software that unilaterally determines workers’ schedules “on demand” and without notice; to constant and often surreptitious surveillance …

Navigating The Growing Prospects And Growing Pains Of Managed Aquifer Recharge, Dave Owen, Helen Dahlke, Andrew Fisher, Ellen Bruno, Michael Kiparsky

Faculty Scholarship

Increasing water demands and declining groundwater levels have led to rising interest in managed aquifer recharge. That interest is growing in the United States—the focus of this article—and elsewhere. Increasing interest makes sense; managed aquifer recharge can reduce water-supply challenges and provide environmental benefits, sometimes with lower costs than alternative water-management approaches. But managed aquifer recharge also faces growing pains, which will make it difficult for projects to scale up and may limit the benefits provided by those projects that do go forward. Some of the problems arise from the challenges of finding physically suitable locations for managed aquifer recharge; …

Legislatively Erased: The Failure Of Privacy Legislation To Protect People Connected To The Criminal Legal System, Kate Weisburd, Chaz Arnett

Faculty Scholarship

No abstract provided.

Transcultural Courts, Scott Dodson

Faculty Scholarship

Although countries commonly divide their judicial systems along geographic and subject-matter divisions, the idea of creating specialized courts based on culture has not taken root. Instead, courts are generally transcultural. Functionally, the lack of culture-specific courts is surprising because cultural diversity within a population often creates legally significant distinctions. Focusing primarily on the U.S. judicial system, but incorporating attributes of other judicial systems where appropriate, this paper offers three explanations for why courts tend to eschew cultural specializations in favor of transculturality. It also hazards some opportunities for experimenting with cultural specializations in discrete areas of the law that most …

Appropriations Presidentialism, Zachary S. Price, Matthew B. Lawrence, Eloise Pasachoff

Faculty Scholarship

Since the start of the second Trump administration, the executive branch has attempted to change how federal spending works by asserting unilateral, centralized authority to condition, delay, cancel, or otherwise disrupt federal obligations and expenditures without regard to longstanding legal understandings and norms.  This appropriations presidentialism is unprecedented in scope and degree, and it threatens to weaken a key congressional check on executive policy, while also disrupting the settled expectations of civil servants, contractors, grantees, program beneficiaries, and others who were counting on continued federal funding for certain programs or activities.  Those injured by these executive actions are understandably turning …

Feasibility Of A Low-Intensity Intervention To Influence Antibiotic Prescribing Rates Use In Outpatient Settings: A Cluster Randomized Controlled Clinical Trial, Brigid M. Wilson, Sunah Song, Robin L.P. Jump, Federico Perez

Faculty Scholarship

Background. Primary care providers (PCPs) may modify their antibiotic prescription practices if aware of their potentially damaging impact. Methods. We conducted a cluster randomized controlled trial at 12 Veterans Affairs community-based outpatient clinics. PCPs at clinics randomized to the intervention group received quarterly antibiotic use reports with feedback about antibiotics prescribed for acute respiratory infections and adverse event letters alerting about Clostridioides difficile infection or antibiotic-resistant gram-negative bacteria among their patients. The main outcome, antibiotic prescriptions in primary care visits, was compared in the preintervention (April–September 2020), intervention (October 2020 to September 2021), and postintervention periods (September 2021 to September …

Assistive Technologies For Internet Navigation: A Review Of Screen Reader Solutions For The Blind And Visually Impaired, Juan Nino, Sherezada Ochoa, Jocelyne Kiss, Geoffreyjen Edwards, Ernesto Morales, James Hutson, Frédérique Poncet, Walter Wittich

Faculty Scholarship

The internet is a critical resource for individuals with visual impairments (VI), including those with low vision or blindness, enabling access to information and fostering independent participation in society. However, despite advancements in screen reader software, challenges persist in navigating complex and dynamic web content. This narrative review evaluates Assistive Technologies (AT), which enhance internet navigation for VI screen reader users, focusing on design strategies and usability outcomes. A systematic search across the ACM Digital Library, IEEE Xplore, JSTOR, and ScienceDirect identified 698 studies, of which 33 met the inclusion criteria, encompassing 502 participants. Key themes were extracted from bibliographic …

From Codex To Code: Pedagogical Transformations In The Age Of Technological Innovation, James Hutson, W. Travis Mcmaken, Kathi Vosevich

Faculty Scholarship

Generative Artificial Intelligence (GAI) is revolutionizing education, echoing historic shifts such as the emergence of the codex and the printing press. GAI automates complex tasks and personalizes learning to individual needs, enhancing interdisciplinary collaboration and bolstering critical thinking and ethical reasoning skills. Initiatives in new, innovative programming illustrate the benefits of embedding these generative technologies to foster cultural competence and innovative problem-solving. Research indicates that intelligent tools significantly enhance learner engagement and access to quality education, enriching learning environments. However, integrating these tools introduces challenges, including ethical dilemmas, academic integrity issues, and resource disparities. These challenges necessitate comprehensive policy development, …

Beyond Pathology: Inclusive Mentorship, Accommodations, And Policy Reforms For Autistic Women In The Medical Profession, Piper Hutson, James Hutson

Faculty Scholarship

This article addresses the unique challenges faced by autistic women in the medical profession, particularly in navigating traditional medical frameworks that often marginalize neurodiverse individuals. Drawing from a targeted literature review, this paper highlights the importance of adapting medical curricula, establishing mentorship programs, and reforming policies to foster inclusivity. Autistic women in medicine encounter barriers such as a lack of mentorship tailored to their needs, inadequate accommodations, and systemic bias rooted in the pathologization of autism. The article synthesizes current research to provide evidence-based recommendations that address these barriers. Specific examples of successful mentorship programs demonstrate the critical role of …

Expanding Sensory Kit Utilization Across Age And Contexts: Bridging Gaps For Inclusive Accessibility, Piper Hutson, James Hutson

Faculty Scholarship

Sensory kits, initially developed for neurodivergent children, have seen growing integration into various educational, cultural, and therapeutic contexts. However, their broader applicability, particularly for adults and diverse populations, remains underexplored. This study examines existing practices in the design and use of sensory kits within academic, museum, and inclusion frameworks, highlighting their role in promoting focus, reducing anxiety, and supporting self-regulation. Using case studies from institutions such as the Smithsonian and the Metropolitan Museum of Art, alongside a review of evidence-based interventions like weighted items and fidget tools, the research underscores the potential of these tools in diverse environments. The methodology …

The Evolving Role Of Copyright Law In The Age Of Ai-Generated Works, James Hutson

Faculty Scholarship

Objective: to identify the prospects and directions of copyright law development associated with the increasing use of generative artificial intelligence.

Methods: the study is based on the formal-legal, comparative, historical methods, doctrinal analysis, legal forecasting and modeling.

Results:the article states that the emergence of generative artificial intelligence makes one rethink the processes occurring in the field of creative activity and the traditional copyright system, which becomes inadequate to modern realities. The author substantiates the necessity of legal reassessment of copyright and emphasizes the urgent need for updated means of copyright protection. Unlike previous digital tools, which expanded …

The Algorithm Of Fear: Unpacking Prejudice Against Ai And The Mistrust Of Technology, James Hutson, Daniel Plate

Faculty Scholarship

The mistrust of AI seen in the media, industry and education reflects deep-seated cultural anxieties, often comparable to societal prejudices like racism and sexism. Throughout history, literature and media have portrayed machines as antagonists, amplifying fears of technological obsolescence and identity loss. Despite the recent remarkable advancements in AI—particularly in creative and decision-making capacities—human resistance to its adoption persists, rooted in a combination of technophobia, algorithm aversion, and cultural narratives of dystopia. This review investigates the origins of this prejudice, focusing on the parallels between current attitudes toward AI and historical resistance to new technologies. Drawing on examples from popular …

From Concept To Creation: The Role Of Generative Artificial Intelligence In The New Age Of Digital Marketing, Andrew Smith, James Hutson

Faculty Scholarship

Artificial intelligence (AI) has been extensively used in digital marketing. Still, the recent advances in generative AI (GAI) have revolutionized social media marketing and content creation, lowering barriers that once restricted high-quality design to professionals well versed in expensive and complex software like Adobe Suite. GAI tools enable anyone, from students to marketers, to generate logos, branding, and multimedia content without extensive training. This shift has empowered more people to engage in creative expression, expanding the pool of ideas and creativity. However, the abundance of AI-generated content raises questions about the evolving definition of “art” and the emergence of a …

Algotric: Symmetric And Asymmetric Encryption Algorithms For Cryptography – A Comparative Analysis In Ai Era, Naresh Kshetri, Mir Mehedi Rahman, Md Masud Rana, Omar Faruq Osama, James Hutson

Faculty Scholarship

The increasing integration of artificial intelligence (AI) within cybersecurity has necessitated stronger encryption methods to ensure data security. This paper presents a comparative analysis of symmetric (SE) and asymmetric encryption (AE) algorithms, focusing on their role in securing sensitive information in AI-driven environments. Through an in-depth study of various encryption algorithms such as AES, RSA, and others, this research evaluates the efficiency, complexity, and security of these algorithms within modern cybersecurity frameworks. Utilizing both qualitative and quantitative analysis, this research explores the historical evolution of encryption algorithms and their growing relevance in AI applications. The comparison of SE and AE …