Digital Commons Network^™

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 …

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

Faculty Scholarship

No abstract provided.

The Second Amendment In A Carceral State, Alice Ristroph

Faculty Scholarship

No abstract provided.

Crisis And Cultural Evolution: Steering The Next Normal From Self-Interest To Concern And Fairness, Robert A. Bohrer

Faculty Scholarship

This essay examines the current time of crisis and offers a vision of the way in which our society and our law can evolve in response. Crises of this scale are evolution-forcing events and I argue that the current moment can move us towards a fundamentally different vision of law and justice. It is the first essay or article to show that the autonomous pursuit of self-interest was a common assumption or value in the major intellectual forces of the twentieth century: classical free market economics, behavioral economics, and sociobiology, as well as in the competing visions of a just …

Time To Mail It In? A Survey Of 2020 Voting Rights Issues In Arkansas And Recommendations For More Inclusive Elections, Kim Vu-Dinh

Faculty Scholarship

The highly contagious COVID-19 pandemic, combined with over fifty lawsuits brought by former President Donald Trump, made the general election of 2020 one of the most controversial in the history of the United States. Accusations of voter disenfranchisement proliferated across the nation and were initiated by members of both sides of the political spectrum, even before Election Day. Arkansas was no exception to this rule. In 2020, multiple Arkansas lawsuits highlighted the weaknesses of the state’s voter infrastructure, particularly with regard to the absentee ballot process. Voting-by-mail was particularly important in the pandemic year when long lines became a public …

Appellate Courts And Civil Juries, Adam N. Steinman

Faculty Scholarship

In federal civil litigation, decision-making power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation—which is now before the Supreme Court—exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury’s verdict …

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 …

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. …

Precedent As Rational Persuasion, Brian N. Larson

Faculty Scholarship

The ways that judges and lawyers make and justify their arguments and decisions have profound impacts on our lives. Understanding those practices in light of theories of reasoning and argumentation is thus critical for understanding law and the society it shapes. An inquiry that explores the very foundations of all legal reasoning leads to a broad, important question: How do lawyers and judges use cited cases in their legal arguments? It turns out there is practically no empirical research to suggest the answer. As the first step in a comprehensive empirical effort to answer this question, this article performs a …

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 …

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 …

Children In Custody: A Study Of Detained Migrant Children In The United States,, Emily Ryo, Reed Humphrey

Faculty Scholarship

Every year, tens of thousands of migrant children are taken into custody by U.S. immigration authorities. Many of these children are unaccompanied by parents or relatives when they arrive at the U.S. border. Others who are accompanied by parents or relatives are rendered unaccompanied when U.S. immigration authorities separate them upon apprehension. Together, these minors are called unaccompanied alien children (UACs) and transferred to the custody of the Office of Refugee Resettlement (ORR), unless and until their immigration cases are resolved or until the children can be placed with a sponsor in the United States pending the adjudication of their …

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 …

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 …

Second Amendment Equilibria, Darrell A. H. Miller

Faculty Scholarship

Equilibrium-adjustment theory, first articulated by Professor Orin Kerr for Fourth Amendment cases, holds promise for rationalizing Second Amendment doctrine going forward. Like the Fourth Amendment, the Second Amendment suggests an initial equilibrium—or actually, multiple equilibria—between government power to possess, use, and control the implements of violence and private power to do the same. And, like Fourth Amendment doctrine, Second Amendment doctrine must contend with both technological and societal change. These changes—e.g., more deadly and accurate weapons, more public acceptance of concealed carry—can upset whatever initial balance of gun rights and regulation there may have been in the initial state. Although …

Transnational Anti-Bribery Law, Kevin E. Davis, Veronica Root Martinez

Faculty Scholarship

This chapter focuses on private firms’ compliance with norms concerning transnational bribery. It begins with an overview of the regulatory context and obstacles to effective enforcement of norms against transnational bribery. It then reviews how compliance is defined, how it ought to be defined, and obstacles to the achievement of optimal compliance. Finally, it ends by focusing on the next steps forward in this space: (1) greater information sharing from private firms to outsiders in order to better analyze and evaluate the current efficacy of compliance programs targeting anti-bribery, and (2) increased coordination between enforcement agencies at the national and …

On Skepticism, Modesty, And Embracing Those With Whom We Disagree: A Rejoinder, Barak D. Richman, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Cooperating Without Sanctions: Epistemic Institutions Versus Credible Commitments Regimes In International Law, Timothy Meyer

Faculty Scholarship

Like domestic law, international law has experimented in recent decades with new approaches to changing legal subjects’ behavior. Realist and institutionalist scholarship in international law and relations generally assume that states will cheat on their obligations if doing so is in their interest. Below the radar, however, a variety of international regimes have begun to emerge that seek to coordinate state behavior without relying exclusively upon credible commitments, instead relying on producing information relevant to an underlying cooperative problem. This chapter takes a first cut at describing this newer mode of international cooperation, describes the relationship between epistemic and credible …

Racism, Incorporated: Ramos V. Louisiana And Jogging While Black, Victor C. Romero

Faculty Scholarship

There is more to the U.S. Supreme Court’s recent decision in Ramos v.
Louisiana than its holding requiring unanimous state jury verdicts via the
incorporation doctrine. The underlying debate among the Justices in Ramos
about the salience of race in the law is a window into the current cultural
moment. After identifying the racial debate underlying the Justices’ views in
Ramos, this Essay shows how the same pattern emerges in our social and
legal debates around vigilante policing of Black Americans, including a
close-up look at the recent killing of Ahmaud Arbery. Social psychology
teaches us that society stereotypes …

Without Religion W(H)Ither Family Law?, Anita Bernstein

Faculty Scholarship

No abstract provided.

"Equitable Compensation" As "Just Compensation" For Takings, Brian Angelo Lee

Faculty Scholarship

No abstract provided.

Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim

Faculty Scholarship

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.

Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological …

Pore Space Property, Joseph A. Schremmer

Faculty Scholarship

Through modern technology we can use the void pore space of underground rock formations for a growing number of socially beneficial purposes. These run the gamut from unconventional oil and gas production to climate change mitigation. The common law of property and tort, however, has struggled to keep up with advancing technology in this area. Significant questions remain about the nature of property rights in pore space. Of particular interest are the limits, if any, on an owner’s right to use pore space for beneficial purposes when it extends beneath the land of another. For example, may A hydraulically fracture …

Latina And Latino Critical Legal Theory: Latcrit Theory, Praxis And Community, Marc-Tizoc Gonzaléz, Sarudzayi Matambanadzo, Sheila I. Vélez Martínez

Faculty Scholarship

LatCrit theory is a relatively recent genre of critical “outsider jurisprudence” – a category of contemporary scholarship including critical legal studies, feminist legal theory, critical race theory, critical race feminism, Asian American legal scholarship and queer theory. This paper overviews LatCrit’s foundational propositions, key contributions, and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. The paper organizes this conversation highlighting Latcrit’s theory, community and praxis.

A teoria LatCrit é um gênero relativamente recente de teoria do direito “outsider” …

Nature’S Personhood And Property’S Virtues, Laura Spitz, Eduardo M. Peñalver

Faculty Scholarship

This Article evaluates the strategy of claiming personhood for natural objects as a way to advance environmental goals in the United States. Using the Colorado River Ecosystem v. Colorado litigation as the focus, we explore the normative foundation of the claim—elements of nature are legal persons—and the work personhood is being asked to do by the plaintiff and other environmental activists. We identify three possibilities: procedural work, substantive work, and rhetorical work. Of those, we suggest the plaintiff’s strongest case is rhetorical. We say this not only because it will likely be difficult to convince a judge to extend standing …

The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed H. Shugerman

Faculty Scholarship

Kent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer’s account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer’s Story is fundamentally important for students of American history. But in Robert Cover’s account in Justice Accused on northern judges’ deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic comity. …

Industrial Policy And Local Content Rules In Us Energy Policy, Zachary Sturman, Timothy Meyer

Faculty Scholarship

The United States (US) has a long history of using local content requirements (LCRs) – laws, regulations, or governmental measures that condition a benefit, often financial support, on the use of a certain percentage of inputs from the local jurisdiction – to promote the development of favored domestic industries. The energy sector, as well as related infrastructure industries, have been no exception. Historically, the US has used LCRs and similar measures to promote the development of fossil fuel industries. More recent interest by policymakers in the US have spurred the use of local content rules tied to pipeline construction, as …

Cryptocurrency And The State: An Unholy Alliance, Lee Reiners

Faculty Scholarship

This article contextualizes the rise of cryptocurrency within the historical relationship between money and the state. It begins by asking two simple yet critical questions: What is money and where did it come from? Armed with the answers, the article proceeds by taking a fresh look at cryptocurrency through the lens of the credit theory of money. It finds that cryptocurrency, by using new technologies and incentive-based design, attempts to overcome the previous geographic limitations that hindered broad adoption of private currencies. Even with these innovations, cryptocurrency appeared unlikely to challenge the supremacy of sovereign money until Facebook announced the …

Race, Property, And Citizenship, Eleanor M. Brown, June Carbone

Faculty Scholarship

The racial wealth gap is stunning. The net worth of an average white family is nearly ten times greater than that of an African-American family. A 2017 Report finds that, for African-Americans, today’s economy is an extractive one; if existing trends continue, the median African-American family will have a net worth of zero by the middle of the twenty-first century. This article examines these trends in terms of the relationship between race, property, and citizenship. American democracy has long celebrated economic independence as a desired element of citizenship, forging reciprocal bonds between state efforts to promote and protect property ownership …

School "Safety" Measures Jump Constitutional Guardrails, Maryam Ahranjani

Faculty Scholarship

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …