Digital Commons Network^™

Return To Sender?: Analyzing The Senior Leader “Open Letter” On Civilian Control Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

In response to the September 2022 open letter, “To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations,” by eight former secretaries of defense and five former chairmen of the Joint Chiefs of Staff, this Article adds a piece to the unsettled puzzle of civil-military relations. The Letter attempts to detail “core principles or best practices” (CP/BP) regarding civil-military relations, and in response, this Article comments on and clarifies these well-intended efforts. This Article sequentially dissects each CP/BP in today’s context of hyper-politicization, partisanship, technology, and more. Where necessary, the Article explains how the law may …

Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet

Faculty Scholarship

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …

Finance Against Law: The Case Of China, Shitong Qiao

Faculty Scholarship

Can there be a highly developed financial market without legal protection for investors and creditors? The influential law and finance literature is built on the assumption that legal protection is essential to the development of an impersonal financial market. This Article investigates how two financial markets of trillions of dollars have developed extralegally in the past two decades despite the risk of regulatory enforcement and contract defaults. Specifically, I examine (1) how Chinese internet companies from Sina to Alibaba have designed contracts to circumvent the Chinese government’s ban on foreign capital in its internet industry and (2) how Chinese entities …

Any, James J. Brudney, Ethan J. Leib

Faculty Scholarship

Our statute books use the word “any” ubiquitously in coverage and exclusion provisions. As any reader of the Supreme Court’s statutory interpretation docket would know, a large number of cases turn on the contested application of this so-called universal quantifier. It is hard to make sense of the jurisprudence of “any.” And any effort to offer a unified approach—knowing precisely when its scope is expansive (along the “literal-meaning” lines of “every” and “all”) or confining (having a contained domain related to properties provided by contextual cues)—is likely to fail. This Article examines legislative drafting manuals, surveys centuries of Court decisions, …

Racial Time, Yuvraj Joshi

Faculty Scholarship

No abstract provided.

Disrupting Carceral Logic In Family Policing, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Taming Online Public Health Misinformation, Tomer Kenneth

Faculty Scholarship

No abstract provided.

Real Estate Trends: Title And Blockchain Technology, Laura M. Padilla

Faculty Scholarship

This article discusses how blockchain technology could revolutionize real property title record-keeping, or not. It begins with a brief history of property transfers and title registry in the United States, followed by a basic overview of blockchain technology. Then it outlines how title is typically recorded today, including the role of traditional grantor-grantee indexes, plus less common tract indexes. It describes common title problems, often caused by human error, and exacerbated by an outdated system, together with an explanation of how blockchain and even tract indexes could eliminate or mitigate many title problems and simplify an antiquated system. The article …

Policing The Unhoused, Ernesto A. Longa

Faculty Scholarship

[A]n Albuquerque police officer ordered Joleen Nez, a 37- year-old, unhoused, American Indian woman, “to pick up her litter [from the street] and of the consequences if she did not.” Joleen refused, stating, “It’s not my trash.” The consequences were that Joleen was summoned to appear in court for littering, booked into the Bernalillo County Metropolitan Detention Center (“MDC”) when she failed to appear and declared an in-custody death the next day.These stories and others like them prompted a series of questions. Why are non-violent petty criminal offenders being murdered by police and dying in county jails? What does the …

Keeping All The Lights On: A Roadmap To Affordable, Universal Electricity Service In The Clean Energy Transition, Gabriel Pacyniak

Faculty Scholarship

The COVID-19 pandemic, the ongoing reckoning with structural racism, and an emerging focus on justice in the clean energy transition have combined to spotlight utility disconnections and the related issues of energy access, affordability, and security. Recent empirical scholarship has demonstrated that electricity disconnections of lower-income people are relatively common, disproportionately affect people of color, and cause significant harm. This Article describes how a number of U.S. states are fashioning an emerging policy model that makes significant progress toward truly affordable and accessible electricity service for all. It also describes how these state actions are consistent with U.S. utility law …

Content Creation Or Interpolation: Ai Generative Digital Art In The Classroom, James Hutson, Martin Lang

Faculty Scholarship

The integration of generative artificial intelligence (AI) tools in art and design has disrupted the traditional creative landscape, leading to debates on the legitimacy of AI-generated art and the emergence of new markets such as non-fungible tokens (NFTs). The US Copyright Office’s February 21, 2023, ruling withdrawing copyright protection for AI-generated comic artwork, while protecting the accompanying text and arrangement, highlights the contested nature of AI art and suggests that significant human intervention in the creative process will be required for monetization. Whether considered content interpolation or content creation, AI generative content for the creation of art and design is …

Temperature Dependence Of Crystal Growth Behavior Of Aln On Ni–Al Using Electromagnetic Levitation And Computer Vision Technique, Benjamin G. Pierce, Ahmad M. Karimi, Roger H. French

Faculty Scholarship

Bulk AlN single crystal has a great demand as a substrate material for AlGaN-based optical and electronic devices such as deep ultraviolet light-emitting diodes and high-power transistors. We have previously proposed a novel solution-growth method using Ni–Al solution with an in-situ observation system for solution growth of AlN crystal using electromagnetic levitation. In this paper, to investigate AlN formation behavior on 40 mol%Al–Ni droplets, two precisely synchronized high-speed cameras from the horizontal and vertical directions were installed. AlN formation behavior was evaluated quantitatively using computer vision image processing techniques. Based on the results, we demonstrated the growth of thick AlN …

Policing "Bad" Mothers, I. Bennett Capers

Faculty Scholarship

Jessamine Chan’s The School for Good Mothers — a speculative novel about a mother who abandons her child for a few hours and is required to attend a school for good mothers to regain custody — may not be a great book, but it is a good yarn, and a page turner, and thought-provoking. Thought-provoking, because to measure her fitness to be a mother, the protagonist is assigned a robot doppelganger of her child — one that is sentient, one that seems almost real, one that might even pass the Turing test, and one that she is required not only …

Reflections: My Mother Who Fathered Me, Eleanor Brown

Faculty Scholarship

Despite the prevalence of West Indian Americans and their networks throughout the United States, little attention is given to the significant accomplishments stemming from the collective work of West Indian Americans. Even less attention is given to the fact that many of these networks are predominantly comprised of women, many of whom are single mothers. This article focuses on the trend amongst West Indian American women to pursue motherhood regardless of marriage or intimate partnership despite the risks attendant to motherhood. The author argues that para-professional West Indian American women may be more willing than their counterparts in other communities …

It's A Code: Amending The Federal Rules Of Evidence To Achieve Uniform Results, Daniel J. Capra, Jessica Berch

Faculty Scholarship

This Article identifies, explores, and attempts to resolve nine conflicts that have arisen in the federal courts regarding the proper interpretation and scope of the Federal Rules of Evidence. For each conflict, we set forth the language of the current rule, its policy goals, and the differing positions taken by the courts. We then analyze the merits of the debate and propose new rule language to resolve the matter.

In this Article, we consider whether theft-based convictions are automatically admissible under Rule 609(a)(2), and how to calculate the passage of ten years for old convictions under Rule 609(b). We chart …

Three Modalities Of (Originalist) Fiduciary Constitutionalism, Ethan J. Leib

Faculty Scholarship

There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularly originalist varieties of it at the center of recent critiques – it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This paper develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that …

Beyond Legal Deserts: Access To Counsel For Immigrants Facing Removal, Emily Ryo, Reed Humphrey

Faculty Scholarship

Removal proceedings are high-stakes adversarial proceedings in which immigration judges must decide whether to allow immigrants who allegedly have violated U.S. immigration laws to stay in the United States or to order them deported to their countries of origin. In these proceedings, the government trial attorneys prosecute noncitizens who often lack English fluency, economic resources, and familiarity with our legal system. Yet, most immigrants in removal proceedings do not have legal representation, as removal is considered to be a civil matter and courts have not recognized a right to government­appointed counsel for immigrants facing removal. Advocates, policymakers, and scholars have …

Guided By History: Protecting The Public Sphere From Weapons Threats Under Bruen, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Since the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have criticized Bruen for requiring public safety laws to mimic founding practice, while conservatives have criticized it for licensing regulatory change not within the original understanding. In this Article we argue that Bruen’s analogical method looks to the past to guide …

Delegating War Powers, Michael D. Ramsey, Matthew C. Waxman

Faculty Scholarship

Academic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars. And yet, every major U.S. war in the last sixty years was fought pursuant to war-initiation power that Congress gave to the President in the form of authorizations for the use of military force. As a practical matter, the central constitutional question of modern war initiation is not the President’s independent war power; it is Congress’s ability to delegate its war power to the President.

It was not until quite late in American history that the practice of war power delegation became well accepted as …

Benjamin Cardozo And American Natural Law Theory, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

The Immigration Shadow Docket, Faiza Sayed

Faculty Scholarship

No abstract provided.

The Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed H. Shugerman

Faculty Scholarship

The unitary executive theory relies on the First Congress and an ostensible “Decision of 1789” as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.

Seila Law’s strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president’s power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist view …

Megalopolis Bound?, Nestor M. Davidson

Faculty Scholarship

Since ancient Greece’s “megalopolis,” the concept of vast cities has loomed in the urban discourse. A century ago, English planner Patrick Geddes warned about a growing imbalance between traditional society and ever-larger conurbations, an anxiety that Lewis Mumford later invoked to predict that urban hubris would inevitably collapse of its own weight. In 1961, by contrast, the geographer Jean Gottman surveyed the interconnected agglomeration stretching from Washington, D.C. up the east coast of the United States to the cities of southern New England, and more optimistically highlighted this new urban form’s governance potential.

Today, the question is not whether urbanism …

Ad Coelum And The Design Of Property Rights, Joseph A. Schremmer

Faculty Scholarship

This Article seizes on a specific doctrinal discussion in Eric Claeys’s Natural Property Rights to argue for the importance of understanding property doctrines in the context of a system of interconnecting rules and standards and not in isolation. The ad coelum doctrine provides that land ownership entails ownership of the suprajacent airspace as well as the underlying subsurface. As Claeys’s discussion highlights, scholars disagree about the significance of ad coelum both conceptually, as to what function the rule serves in defining and allocating property, and normatively. It is only by viewing ad coelum in the context of how it interacts …

The Need For An Asian American Supreme Court Justice, Vinay Harpalani

Faculty Scholarship

In her insightful Comment on Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (hereinafter SFFA cases), Dean Angela Onwuachi-Willig critiques Chief Justice Roberts’s majority opinion for its “simplistic understanding of race and racism.” She interrogates the “doxa” — the “unexamined cultural beliefs” that structure the majority’s narrative on racial experiences. Onwuachi- Willig elucidates how Chief Justice Roberts accepts whiteness as a tacit norm and ignores the marginalization of people of color. She contrasts this with the “fuller” history of American racism brought forth by Justices …

Rolling Back Transparency In China's Courts, Benjamin L. Liebman, Rachel E. Stern, Xiaohan Wu, Margaret Roberts

Faculty Scholarship

Despite a burgeoning conversation about the centrality of information management to governments, scholars are only just beginning to address the role of legal information in sustaining authoritarian rule. This Essay presents a case study showing how legal information can be manipulated: through the deletion of previously published cases from China’s online public database of court decisions. Using our own dataset of all 42 million cases made public in China between January 1, 2014, and September 2, 2018, we examine the recent deletion of criminal cases from the China Judgements Online website. We find that the deletion of cases likely results …

Our Unruly Administrative State, Philip A. Hamburger

Faculty Scholarship

One of the perennial academic rituals of administrative “law” is to explain its compatibility with the rule of law. As surely as seasons pass, academics muster their formidable intellectual resources to reassure us, and themselves, that in pursuing administrative power, they have not abandoned the rule of law.

A more immediate justificatory project might be to explain the constitutionality of the administrative state. But notwithstanding valiant efforts, its constitutionality remains in doubt. So a fallback measure of its legitimacy seems valuable.

From this perspective, even if the administrative state is not quite constitutional, it can enjoy legitimacy under traditional common …

Killing Precedent: The Slaughter-House Constitution, Maeve Glass

Faculty Scholarship

This Essay offers a revisionist account of the Slaughter-House Cases. It argues that the opinion’s primary significance lies not in its gutting of the Privileges or Immunities Clause but in its omission of a people’s archive of slavery.

Decades before the decision, Black abolitionists began compiling the testimonies of refugees who had fled slavery. By 1872, this archival practice had produced a published record of Black struggle and become a platform for the celebration of Black resistance and a new era of Black leadership. Although the lead compiler of this record sent a copy to the Chief Justice, the …

There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco

Faculty Scholarship

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …

Treaty Interpretation At The Human Rights Committee: Reconciling International Law And Normativity, David H. Moore

Faculty Scholarship

The Human Rights Committee, the expert body overseeing states’ compliance with the International Covenant on Civil and Political Rights (“ICCPR”), is a key institution in the international human rights architecture. The Committee’s work requires constant interpretation of the ICCPR’s human rights guarantees. While international law dictates how to interpret treaty provisions, including those of the ICCPR, the Committee does not consistently follow the international law of treaty interpretation. Rather, normativity plays an influential role in the Committee’s interpretations. This approach is not uniformly negative; it has both costs and benefits. To minimize the costs, however, this Article identifies a path …