Digital Commons Network^™

From Nuisance To Environmental Protection In Continental Europe, Vanessa Casado-Pérez, Carlos Gomez Liguerre

Faculty Scholarship

This paper analyzes the evolution and complexity of the legal response to neighboring conflicts in European civil law countries. All of the civil codes analyzed (France, Germany, Spain, Netherlands, and Catalonia) are based on Roman Law rules that are not always clear. The fuzziness of those Roman Law rules explains, in part, why despite this common origin, the Civil Codes did not respond homogeneously to nuisances. The first subsection briefly describes the institution of nuisance in Roman Law. Then, the paper describes the original codification of nuisance and the changes in the treatment of this institution. After assessing the initial …

Fear And Lawyering, Heidi K. Brown

Faculty Scholarship

No abstract provided.

Intellectual Property And Human Rights 2.0, Peter K. Yu

Faculty Scholarship

Written in celebration of the seventieth anniversary of the Universal Declaration of Human Rights, this article calls for greater methodological engagement to refine existing human rights approaches to intellectual property and to devise new approaches to advance the promotion and protection of human rights in the intellectual property area.

This article begins by briefly recapturing the past two decades of scholarship on intellectual property and human rights. It documents the progress scholars have made in this intersectional area. The article then draws on the latest research on human rights methods and methodology to explore whether and how we can take …

Data First, Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Part 2), Richard Thompson Ainsworth

Faculty Scholarship

This is the second in a four-part series addressing VAT/GST avoidance schemes involving remote sales of services. These schemes have been growing in importance. The IMF reports that the services component of cross-border trade has been on the rise for fifty-years or more, making the Internet a serious threat to revenue. Technology has accelerated tax avoidance.

Statutory draftsmen in New Zealand have looked at this problem directly with what has been called the Netflix Tax. Technologist in Fiji have been struggling with similar problems and have developed technology-based security systems that would seem to address remote sales of services more …

Shocking Technology: What Happens When Firms Make Large It Investments?, James Bessen, Cesare Righi

Faculty Scholarship

Many economists see information technology (IT) as central to understanding trends in productivity, labor’s share of output, and employment, especially as new “artificial intelligence” (AI) technologies emerge. Yet it has been difficult to measure its effects. This paper takes a first look at the economic impacts of large custom software investment by firms—“IT shocks.” Using a novel difference-in-differences methodology, we estimate the productivity of these shocks and the associated effects on revenues and employment and we explore the implications in terms of labor’s share and other variables, including heterogeneous relationships by industry, AI use, and time. In our preferred models, …

Uncompensated Takings: Insurance, Efficiency, And Relational Justice, Brian Angelo Lee

Faculty Scholarship

No abstract provided.

Sffa V. Harvard: How Affirmative Action Myths Mask White Bonus, Jonathan Feingold

Faculty Scholarship

In the ongoing litigation of Students for Fair Admissions v. Harvard College, Harvard faces allegations that its once-heralded admissions process discriminates against Asian Americans. Public discourse has revealed a dominant narrative: affirmative action is viewed as the presumptive cause of Harvard’s alleged “Asian penalty.” Yet this narrative misrepresents the plaintiff’s own theory of discrimination. Rather than implicating affirmative action, the underlying allegations portray the phenomenon of “negative action” — that is, an admissions regime in which White applicants take the seats of their more qualified Asian-American counterparts. Nonetheless, we are witnessing a broad failure to see this case for what …

Equal Protection Design Defects, Jonathan Feingold

Faculty Scholarship

One can understand constitutional doctrine as a tool designed to effectuate the Constitution and its various provisions. Equal protection doctrine, in turn, comprises a set of Justice-made rules designed to realize the promise of equal protection under the law. The substance of that promise remains a topic of deep contestation. Nonetheless, more than forty years of constitutional jurisprudence have entrenched a vision of constitutional equality that privileges what I refer to herein as the “right to compete.” Simply put, the Supreme Court has repeatedly embraced the view that the Equal Protection Clause mandates the government to allocate public benefits — …

Uncompensated Takings: Insurance, Efficiency, And Relational Justice, Brian Lee

Faculty Scholarship

No abstract provided.

Common Habits, Adverse Events, And Opinions Regarding Pre-Workout Supplement Use Among Regular Consumers, Andrew R. Jagim, Clayton L. Camic, Patrick S. Harty

Faculty Scholarship

The purpose of the present study was to examine characteristics of multi-ingredient pre-workout supplement (MIPS) users, their common patterns/habits of MIPS ingestion, and their associated feelings about the effectiveness and safety of this class of supplements. An online electronic survey was distributed through social media to assess self-reported supplementation practices and preferences among adult males and females who reported regular MIPS use. A total of 1045 individuals responded, with 872 of these individuals (males: n = 636, 72.9%; females: n = 233, 26.7%; mean ± SD; age = 27.7 ± 7.9 years; training age = 8.2 ± 7.3 years) completing …

Executive Overreaching In Immigration Adjudication, Fatma Marouf

Faculty Scholarship

While Presidents have broad powers over immigration, they have traditionally shown restraint when it comes to influencing the adjudication of individual cases. The Trump Administration, however, has pushed past such conventional constraints. This Article examines executive overreaching in immigration adjudication by analyzing three types of interference. First, the Article discusses political interference with immigration adjudicators, including politicized appointments of judges, politicized performance metrics, and politicized training materials. Second, the Article addresses executive interference with the process of adjudication, examining how recent immigration decisions by former Attorney General Jeff Sessions curtail noncitizens’ procedural rights instead of making policy choices and promote …

Reciprocal Concealed Carry: The Constitutional Issues, William Araiza

Faculty Scholarship

No abstract provided.

Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein

Faculty Scholarship

Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in …

Women's Rights, Human Rights And The Criminal Law Or, Feminist Debates And Responses To [De]Criminalization And Sexual And Reproductive Health, Aziza Ahmed

Faculty Scholarship

My comments today seek to highlight how social and economic rights advocates, particularly those concerned with the right to health, engage with ongoing debates about the role of criminal law in human rights. In particular, I emphasize how many “right to health” campaigns fight for the decriminalization of laws that result in the arrest of marginalized communities or health workers. This trend within right to health advocacy complicates what has been called the anti-impunity turn in human rights. In other words, although many scholars have correctly highlighted the rise of a carceral agenda in human rights, there is also ongoing, …

Law's Enterprise: Argumentation Schemes & Legal Analogy, Brian N. Larson

Faculty Scholarship

Reasoning by legal analogy has been described as mystical, reframed by skeptics using the deductive syllogism, and called “no kind of reasoning at all” by Judge Posner. Arguments by legal analogy happen every day in courtrooms, law offices, and law-school classrooms, and they are the essence of what we mean when we talk of thinking like a lawyer. But we have no productive and normative theory for creating and evaluating them. Entries in the debate over the last 25 years by Professors Sunstein, Schauer, Brewer, Weinreb, and others leave us at an impasse: The ‘skeptics’ are too focused on the …

Symposium: Executive Power In The New Administration: Immigration Adjudication Bankruptcy, Jill E. Family

Faculty Scholarship

No abstract provided.

Dynamic Legislation, Rebecca M. Kysar

Faculty Scholarship

No abstract provided.

Comments On Preliminary Draft 4 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

In many respects, PD4 is a helpful synthesis of the law, likely to provoke less controversy than drafts of earlier Chapters. Nevertheless, we remain concerned about this draft’s, like its predecessors’, inconsistent treatment of legal issues. As in earlier drafts, this one sometimes traverses the line between restating positive law and “improving” it. In several instances, these departures from positive law adopt policy positions we would endorse in a different kind of endeavor, such as a “Principles” project, or an acknowledged advocacy piece. But we do not believe it accurate to characterize these departures, however substantively desirable, as “restating” the …

A Hater's Guide To Geoblocking, Peter K. Yu

Faculty Scholarship

Geoblocking restricts access to online content based on the user's geographical location. Territorially based access control is strongly disliked, if not passionately hated, by those who travel abroad frequently as well as those who consume a considerable amount of foreign content. While the past has seen the use of geoblocking as technological self-help, such a technique has now received growing support from policymakers and judges.

Commissioned for a symposium on "Intellectual Property in a Globalized Economy: United States Extraterritoriality in International Business," this article begins by briefly recounting five sets of arguments against geoblocking. The article then draws on the …

Rediscovering The Journal Clause: The Lost History Of Legislative Constitutional Interpretation, Nicholas Handler

Faculty Scholarship

Article I, Section 5 of the United States Constitution requires that each house of Congress keep a Journal of its proceedings. Contemporary observers have largely ignored this provision, treating it as a vestigial record-keeping requirement with little significance for modern law. This dismissive attitude is misguided. Historically, legislative Journals were one of the primary mechanisms by which Parliament, and later Congress, made and interpreted constitutional law. Journals are the official histories of legislatures’ activity. They record what legislatures do as institutions—what powers they exercise, what procedures they use, and what actions by the coordinate branches they protest or resist. In …

Capturing The Regulatory Agenda: An Empirical Study Of Agency Responsiveness To Rulemaking Petitions, Daniel E. Walters

Faculty Scholarship

In environmental regulation as well as in other regulatory domains, a critical question is how outside interests shape the rulemaking agenda. A great deal of skepticism toward regulation stems from the widespread perception that agencies excessively, or even exclusively, cater to business interests. One answer to these concerns is administrative procedure, in particular rulemaking petitions, which are provided for in the Administrative Procedure Act and in many substantive environmental statutes. Although rulemaking petitions could in theory be used by business interests to strengthen their hold on regulatory agenda-setting, a growing number of scholars, highlighting the critical role a rulemaking petition …

Digital Market Perfection, Rory Van Loo

Faculty Scholarship

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap first by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. …

Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh

Faculty Scholarship

In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules that would have brought substantial transparency to mandatory pre-dispute consumer arbitration. In particular, the CFPB proposed to require regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to arbitration clauses, and further, the CFPB proposed to make such information public (with appropriate redactions). Although Congress and the President ultimately annulled the CFPB’s proposed rule, its introduction revealed the need for dispute resolution neutrals to support bringing “measured transparency” to private dispute resolution. To place the CFPB’s …

Rise Of The Robot Lawyers?, Milan Markovic

Faculty Scholarship

The advent of artificial intelligence has provoked considerable speculation about the future of the American workforce, including highly educated professionals such as lawyers and doctors. Although most commentators are alarmed by the prospect of intelligent machines displacing millions of workers, this is not so with respect to the legal sector. Media accounts and some legal scholars envision a future where intelligent machines perform the bulk of legal work, and legal services are less expensive and more accessible. This future is purportedly at hand as lawyers struggle to compete with technologically savvy alternative legal service providers.

This Article challenges the notion …

Forum Clauses At The Margin, James P. George

Faculty Scholarship

This article will first dispel the historical account and demonstrate an enforcement history that was reasoned and fairly consistent in England, but erratic in the United States, yielding to an ever-increasing contract-autonomy view after Bremen. The history concludes with concerns about what is now the Bremen/Atlantic Marine presumption (referred to under either case name depending on the context and time frame), including its encouragement of summary analysis and enforcement. To illustrate this extreme, the last section focuses on a Fifth Circuit decision that, with its cursory analysis and extreme favoring of enforcement, leaves significant questions unanswered—a result the law should …

Cophosk: A Method For Comprehensive Kinase Substrate Annotation Using Co-Phosphorylation Analysis, Marzieh Ayati, Danica D. Wiredja, Daniela M. Schlatzer, Sean Maxwell, Ming Li, Mehmet Koyutürk, Mark R. Chance

Faculty Scholarship

We present CoPhosK to predict kinase-substrate associations for phosphopeptide substrates detected by mass spectrometry (MS). The tool utilizes a Naïve Bayes framework with priors of known kinase-substrate associations (KSAs) to generate its predictions. Through the mining of MS data for the collective dynamic signatures of the kinases’ substrates revealed by correlation analysis of phosphopeptide intensity data, the tool infers KSAs in the data for the considerable body of substrates lacking such annotations. We benchmarked the tool against existing approaches for predicting KSAs that rely on static information (e.g. sequences, structures and interactions) using publically available MS data, including breast, colon, …

Betting On Climate Policy: Using Prediction Markets To Address Global Warming, Gary M. Lucas Jr, Felix Mormann

Faculty Scholarship

Global warming, sea level rise, and extreme weather events have made climate change a top priority for policymakers across the globe. But which policies are best suited to tackle the enormous challenges presented by our changing climate? This Article proposes that policymakers turn to prediction markets to answer that crucial question. Prediction markets have a strong track record of outperforming other forecasting mechanisms across a wide range of contexts — from predicting election outcomes and economic trends to guessing Oscar winners. In the context of climate change, market participants could, for example, bet on important climate outcomes conditioned on the …

The Non-Doctrine Of Redundancy, Saurabh Vishnubhakat

Faculty Scholarship

This Article explores and evaluates a controversial practice that the Patent Office undertook beginning early in the post-AIA regime, the practice of denying otherwise meritorious requests for review because of what the Office termed "redundant" grounds. The controversy over redundancy-based rejections had several sources. One was that making such rejections required the Patent Office to decide petitions piecemeal—and, indeed, the agency claimed that power for itself—even though it was not clear that this power lay within the statute. Another source was that the Patent Office persistently declined to explain what, in the agency's view, did or did not constitute redundancy. …

Artificially Intelligent Law, Lawrence B. Solum

Faculty Scholarship

This paper explores a series of thought experiments that postulate the ex-istence of "artificially intelligent law." An artificially-intelligent legal system is de-fined as one with three functional capacities: 1. The system has the capacity to gen-erate legal norms. 2. The system has the capacity to apply the legal norms that it generates. 3. The system has the capacity to use deep learning to modify the legal norms that it generates. The paper then considers the question whether such a sys-tem would be desirable as a matter of legitimacy and justice. The core idea of the paper is that the key …

The Place Of The People In Criminal Procedure, Jocelyn Simonson

Faculty Scholarship

No abstract provided.