Digital Commons Network^™

The Master’S Tools Will Never Dismantle The Master’S House: Kavanaugh’S Confirmation Hearing And The Perils Of Progressive Punitivism, Hadar Aviram

Faculty Scholarship

No abstract provided.

Scattered: The Assimilation Of Sushi, The Internment Of Japanese Americans, And The Killing Of Vincent Chin, A Personal Essay, Frank Wu

Faculty Scholarship

In a personal Essay, Frank H. Wu discusses the acceptance of sushi in America as a means of analyzing the acceptance of Japanese Americans, before, during, and after World War II. The murder of Vincent Chin in Detroit in 1982 is used as a defining moment for Asian Americans, explaining the shared experiences of people perceived as "perpetual foreigners."

Using The Anglo-American Respondeat Superior Principle To Assign Responsibility For Worker Statutory Benefits And Protections, Michael C. Harper

Faculty Scholarship

When viewed flexibly, not to find doctrinal rules, but rather to find insight from judges' collective judgment on social values, the common law may have particular value for modern policy makers. For instance, a common law insight could set policy makers in both the United States (U.S.) and the United Kingdom (U.K.) on a promising path for defining when workers are to be protected and benefitted by employment statutes. That insight reflects the underlying rationale for the common law that made relevant the initial distinction between employees and independent contractors - the common law of vicarious liability through respondeat superior. …

Digital Platforms And Antitrust Law, Keith N. Hylton

Faculty Scholarship

This Article is about "big data" and antitrust law. Big data, for my purposes, refers to digital platforms that enable the discovery and sharing of information by consumers, and the harvesting and analysis of consumer data by the platform. The obvious example of such a platform is Google. The big platforms owe their market dominance not to anticompetitive conduct, but to economies of scale. This Article discusses three types of anticompetitive conduct associated with digital platforms: kill zone expropriation, acquisition of nascent rivals, and denial of access to data. There is nothing so unusual about digital platforms that would require …

The Global Preclinical Antibacterial Pipeline, Ursula Theuretzbacher, Kevin Outterson, Aleks Engel, Anders Karlén

Faculty Scholarship

Antibacterial resistance is a great concern and requires global action. A critical question is whether enough new antibacterial drugs are being discovered and developed. A review of the clinical antibacterial drug pipeline was recently published, but comprehensive information about the global preclinical pipeline is unavailable. This Review focuses on discovery and preclinical development projects and has found, as of 1 May 2019, 407 antibacterial projects from 314 institutions. The focus is on Gram-negative pathogens, particularly bacteria on the WHO priority bacteria list. The preclinical pipeline is characterized by high levels of diversity and interesting scientific concepts, with 135 projects on …

Digitizing Brandenburg: Common Law Drift Toward A Causal Theory Of Imminence, J. Remy Green

Faculty Scholarship

The Supreme Court’s Brandenburg v. Ohio test provides an exception to the First Amendment’s broad guarantee of freedom of speech. Where speech is (1) directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action, the First Amendment withdraws its promise of protection. Thus, where the “imminence” of lawless action cannot be shown, free speech cannot be restricted. Since Brandenburg, Courts have applied a test for imminence that turns on proximity in space and in time — that is, the test evaluates how spatiotemporally imminent lawless activity is. In this Article, I argue …

A Common-Sense Defense Of Janus: Forthcoming Changes In The Public Sector, Maria O'Brien

Faculty Scholarship

Many scholars and others have, for some time now, been calling attention to the alarming growth in post-employment and other benefits for unionized employees in the public sector. ¹⁷ A fairly well-understood phenomenon is thought to explain the inability of state and local governments to resist outsized demands from their public unions. As ¹⁸ Is and others ¹⁹ have argued, the central problem with public sector unions is that they find it easy to capture their employers (taxpayers) in ways that private sector unions cannot. The role played by often eager and feckless elected officials in this process has also …

The Hidden Costs Of Dissent, Robert L. Tsai

Faculty Scholarship

This essay appears as part of a symposium dedicated to the book, ROBERT L. TSAI, PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION (W.W. Norton 2019), and published in CONSTITUTIONAL COMMENTARY. In it, I jointly respond to two separate review essays by Franita Tolson and Nelson Tebbe. First, I emphasize that the book presents not a comprehensive theory of equality, i.e., what egalitarianism should look like under ideal conditions, but instead an account of egalitarian ethics and a menu of work-arounds that can be useful to promote egalitarian goals under more trying circumstances. Second, as to the concern that over-reliance …

Research Report On Federal Agency Alj Hiring After Lucia And Executive Order 13843, Jack M. Beermann

Faculty Scholarship

This draft report examines federal agency hiring practices for administrative law judges ("ALJs"), who preside over formal agency hearings, in light of the Supreme Court's determination that ALJs are constitutional officers and President Trump's executive order to exempt ALJs from certain statutory competitive-service hiring requirements. The report also provides recommendations for best agency hiring practices. Professors Jack Beermann and Jennifer Mascott co-authored this initial draft report. After Professor Mascott stepped down from the Administrative Conference of the United States to work in the Department of Justice's Office of Legal Counsel, Professor Beermann edited the report and produced its final May …

Immigration Unilateralism And American Ethnonationalism, Robert L. Tsai

Faculty Scholarship

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …

Revisionist History? Responding To Gun Violence Under Historical Limitations, Michael Ulrich

Faculty Scholarship

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this …

Unity And Diversity In International Law, William W. Park

Faculty Scholarship

The primordial Greek sea-god Proteus could alter his shape at will, notwithstanding that his divine substance remained the same. Reinventing himself by adapting to new circumstances, Proteus still stayed unchanged in essence.

Unlike the sea-god’s protean nature, the substance of international law may well undergo alterations when examined through the telescope of legal culture, or with predispositions of divergent educational backgrounds. For the thoughtful reader, scholarly speculation on such variations will be triggered by reading Is International Law International?. In that book, Professor Anthea Roberts explores a variety of elements in the teaching and practice of international law, viewed …

Rising Confusion About "Arising Under" Jurisdiction In Patent Cases, Paul Gugliuzza

Faculty Scholarship

By statute, all cases “arising under” patent law must be heard exclusively by the federal courts (not state courts) and, on appeal, by the Federal Circuit (not the twelve regional circuits). But not all cases involving patents “arise under” patent law. As recently as 2013, the Supreme Court ruled that the mere need to apply patent law in, for example, a malpractice case involving a patent lawyer, is insufficient to trigger exclusive jurisdiction. Rather, the Court held, for a case that does not involve claims of patent infringement to arise under patent law, the patent issue must be “important . …

Race-Conscious Admissions, Diversity, And Academic Freedom, Vinay Harpalani

Faculty Scholarship

This Essay examines the First Amendment component to race-conscious admissions policies. It argues that these policies reflect a core First Amendment value: academic freedom. It illustrates that race-conscious admissions policies promote academic freedom in two ways. One aspect of a university’s academic freedom is the selection of its own student body. Justice Felix Frankfurter stated this explicitly in his concurrence in Sweezy v. New Hampshire (1957), which was later cited in Justice Lewis Powell's influential concurrence in Regents of the University of California v. Bakke (1978). Additionally, the compelling interest in diversity has roots in the First Amendment. By …

Book Review: Jonathan P. Thompson, River Of Lost Souls: The Science, Politics, And Green Behind The Gold King Mine Disaster (2018), Clifford J. Villa

Faculty Scholarship

On August 5, 2015, contractors for the U.S. Environmental Protection Agency (EPA) investigating the Gold King Mine in southwestern Colorado accidently released some three million gallons of contaminated water into the Animas River, triggering weeks of front-page headlines, months of congressional hearings, and now years of litigation. River of Lost Souls: The Science, Politics, and Greed Behind the Gold King Mine Disaster, a new book by Jonathan P. Thompson, suggests by its title a human folly behind this “disaster” much broader and deeper than one tragic accident wrought by EPA contractors. On this thesis, Thompson certainly delivers. However, what …

Evaluating Judicial Standards Of Conduct In The Current Political And Social Climate: The Need To Strengthen Impropriety Standards And Removal Remedies To Include Procedural Justice And Community Harm, Joshua E. Kastenberg

Faculty Scholarship

Chief Justice Warren Burger warned that when “people who have long been exploited . . . come to believe that courts cannot vindicate their legal rights from fraud,” an “incalculable damage [is done] to society.”

Part I of this Article presents an examination of the current common frameworks shared by the states for addressing judicial conduct appealing to popular social and political influences. Included in this section is an analysis of the interrelationship between implicit bias and impropriety, as well as on community harm and procedural justice.

Part II provides both a historical and contemporary analysis of “populism,” including the …

Affirmative Action, David Oppenheimer, Angela Onwuachi-Willig, Nancy Leong

Faculty Scholarship

There are consistent messages to people of color about their proper place in
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/="/">advancing white supremacy. Referring back to what Professor Haney-Lopez
/="/">asserted earlier today, in today’s post-civil rights society, few people would
/="/">argue in favor of segregation in racial terms explicitly so. And few people would
/="/">assert that Blacks, for example, do not belong in certain places. However,
/="/">opponents of affirmative action have begun to articulate a form of these
/="/">arguments as an add-on to the mismatch theory. In the …

"I'M Leavin' It (All) Up To You": Gundy And The (Sort-Of) Resurrection Of The Subdelegation Doctrine, Gary S. Lawson

Faculty Scholarship

In 2000, Cass Sunstein quipped that the conventional nondelegation doctrine, which holds that there are judicially enforceable constitutional limits on the extent to which Congress can confer discretion on other actors to determine the content of federal law, “has had one good year, and 211 bad ones (and counting).”1 The “one good year,” he said, was 1935, when the Court twice held unconstitutional certain provisions of the National Industrial Recovery Act that gave the president power to approve or create codes of conduct for essentially all American businesses, subject only to very vague, and often contradictory, statutory exhortations to pursue …

The Inconsentability Of Facial Surveillance, Evan Selinger, Woodrow Hartzog

Faculty Scholarship

Governments and companies often use consent to justify the use of facial recognition technologies for surveillance. Many proposals for regulating facial recognition technology incorporate consent rules as a way to protect those faces that are being tagged and tracked. But consent is a broken regulatory mechanism for facial surveillance. The individual risks of facial surveillance are impossibly opaque, and our collective autonomy and obscurity interests aren’t captured or served by individual decisions.

In this article, we argue that facial recognition technologies have a massive and likely fatal consent problem. We reconstruct some of Nancy Kim’s fundamental claims in Consentability: Consent …

The Pathologies Of Digital Consent, Neil M. Richards, Woodrow Hartzog

Faculty Scholarship

Consent permeates both our law and our lives — especially in the digital context. Consent is the foundation of the relationships we have with search engines, social networks, commercial web sites, and any one of the dozens of other digitally mediated businesses we interact with regularly. We are frequently asked to consent to terms of service, privacy notices, the use of cookies, and so many other commercial practices. Consent is important, but it’s possible to have too much of a good thing. As a number of scholars have documented, while consent models permeate the digital consumer landscape, the practical conditions …

Foreign Affairs Prosecutions, Steven Arrigg Koh

Faculty Scholarship

Contemporary global crime and cross-border law enforcement cooperation have multiplied “foreign affairs prosecutions,” cases that encompass foreign apprehension, evidence gathering, and criminal conduct, as well as cases that implicate foreign nations’ criminal justice interests. Robert Mueller’s Russia investigation, the fugitive Edward Snowden, and the cross-border crimes of FIFA and El Chapo all exemplify such foreign affairs prosecutions. This Article argues that foreign affairs prosecutions represent a consequential shift in U.S. criminal law, offering the promise of closing global impunity gaps. At the same time, however, such cases risk defendant interests at home and U.S. foreign policy abroad. This Article calls …

Islam In The Mind Of American State Courts: 1960 To 2001, Marie Failinger

Faculty Scholarship

This project reviews how American state courts portrayed Islam and Muslims from 1960 until September 11, 2001. The purpose of this project is not to construct some overarching theoretical framework to explain American social and legal views of Islam and Muslims, though I will necessarily interpret what the cases say to some extent. Given the lengthy time period involved, the number of cases in which Muslims or Islam are referenced, and the fact that these cases come from many states, it seemed prudent to defer to others who have constructed critiques of the way American law as a whole has …

The Constitutionalization Of Fatherhood, Dara Purvis

Faculty Scholarship

Beginning in the 1970s, the Supreme Court heard a series of challenges to family law statutes brought by unwed biological fathers, questioning the constitutionality of laws that treated unwed fathers differently than unwed mothers. The Court’s opinions created a starkly different constitutional status for unwed fathers than for unwed mothers, demanding additional actions and relationships before an unwed father was considered a constitutional father. Although state parentage statutes have progressed beyond their 1970s incarnations, the doctrine created in those family law cases continues to have impact far beyond family law. Transmission of citizenship in the context of immigration law and …

Proprietary Milk Protein Concentrate Reduces Joint Discomfort While Improving Exercise Performance In Non-Osteoarthritic Individuals, Tim N. Ziegenfuss, Chad M. Kerksick, A. William Kedia, Jennifer Sandrock, Betsy Raub, Hector L. Lopez

Faculty Scholarship

Milk and dairy products are known to contain various bioactives with potential anti-inflammatory and immune modulating effects. Previous research has indicated that milk produced from hyperimmunized cows provided meaningful health benefits to individuals suffering from varying degrees of osteoarthritis and rheumatoid arthritis. PURPOSE: To examine the impact of a proprietary milk protein concentrate on joint discomfort and physical function, exercise performance, quality of life and various measures of affect. METHODS: Non-osteoarthritic men (42.5 ± 8.9 years, 176.7 ± 6.7 cm, 89.9 ± 11.5 kg, 28.8 ± 3.5 kg/m2, n = 30) and women (46.4 ± 9.6 years, 163.1 ± 8.2 …

On Reading, Jeffrey C. Goodman

Faculty Scholarship

What is reading?  Seeing and comprehending a contentful, written text counts as reading, of course, but that is simply the paradigm; it is not reading itself.  Blind people, e.g., often read using Braille.  It is sometimes claimed that one engages in reading when one listens to an audiobook.  So, my project in this paper is to address this question: What is the proper analysis of person S reads text W?  Surprisingly, no philosophical attempts to analyze reading exist; this question has (to my knowledge, anyway) yet to be tackled.  Can other sensory modalities be used to read?  What more …

Open Plurilateral Agreements, International Regulatory Cooperation And The Wto, Charles F. Sabel, Bernard Hoekman

Faculty Scholarship

Sustained high growth in many developing countries (‘the rise of the rest’) combined with long-standing WTO working practices hampers the ability of the WTO to perform its routine functions and paralyzes efforts to adapt to new circumstances. Preferential trade agreements have taken up some of the slack in addressing differences in domestic regulation of product safety, environmental and social conditions, but are exclusionary and inefficient from a global perspective. In this paper, we argue that a new type of agreement based on open plurilateral cooperation offers better prospects for groups of countries to explore and develop their potential common interests …

Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan

Faculty Scholarship

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use …

The Outsized Influence Of The Fcpa?, Veronica Root Martinez

Faculty Scholarship

The current power and influence of the Foreign Corrupt Practices Act (“FCPA”) is really quite remarkable when one considers the statute was largely ignored for its first twenty-five years of existence. This statute, meant to reign in corruption by United States companies doing business abroad; has generated billions of dollars in revenue for the United States government; prompted the development of law firm practice groups and law school courses; become the subject of numerous scholarly articles; and has, arguably, made anti-bribery efforts the highest of priorities for multinational corporations engaged in robust compliance efforts. Corporations, scholars, and the public would …

Private International Law As An Ethic Of Responsivity, Ralf Michaels

Faculty Scholarship

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our …

The Private Law Critique Of International Investment Law, Julian Arato

Faculty Scholarship

No abstract provided.