Digital Commons Network^™

Less Is More?: Accountability For White-Collar Offenses Through An Abolitionist Framework, Pedro Gerson

Faculty Scholarship

White-collar crime is underenforced: not enough cases are brought, not many convictions are secured, and when they are, those who were convicted usually benefit from leniency not seen in other kinds of criminal wrongdoing. Calls for accountability center on strengthening the traditional tools of criminal law enforcement to reach actors that have so far eluded criminal liability. These responses, however, risk further entrenching the systems that have led the United States to mass incarceration and its many real and tangible harms. In this Article, I question whether an abolitionist framework is possible for white-collar crime. First, I argue that given …

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel Rauterberg

Faculty Scholarship

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state’s …

Acceptance Governance, Jeremy Bendik-Keymer

Faculty Scholarship

There is a form of power whereby the moral relationship governs those who are part of, or affected by, the relationship. Called “acceptance governance,” it develops “power-with" in a decolonial manner, reframing agency as guided by accountability. Power-with leads to minimal moral relations between worlds out of which processes of acceptance build justice and right relations from the bottom up. There are two senses of acceptance, however, the second being accepting the conditions of acceptance. Power-with then becomes grounded in “power from,” a new form of power uncommon in the literature. In addition to cohering with a number of indigenous …

Adoption Ouroboros: Repeating The Cycle Of Adoption As Rescue, Malinda L. Seymore

Faculty Scholarship

Ouroboros—the circular symbol of the snake eating its tail; an endless cycle. As the U.S. recently withdrew from Afghanistan in chaos and Russia invaded Ukraine, the attention of Americans turned, as it frequently has in times of international conflict, to the plight of children in need of rescue. For many Americans, rescue is synonymous with adoption. The history of international adoption began with rescues following America’s wars in Europe and Asia and continues today through other violent upheavals. International adoption is an ouroboros, repeating the pattern of adoption as a response to humanitarian crises. But as human and charitable as …

Establishing A Conditional Driver Permit In Texas, Luz E. Herrera, Taylor Garner, Crystal Hernandez, Lisa Mares

Faculty Scholarship

The article presents supporting data to expand access to state-issued driver permits for Texans who cannot provide the required documents to obtain a driver’s license. Part I examines the unlicensed and uninsured population in Texas that these efforts attempt to address. Part II discusses state jurisdiction to issue driver licenses and permits. It discusses existing Texas statutes that authorize the issuance of driver’s licenses and permits. The section also offers examples of other state statutes that have expanded their right to regulate driving privileges beyond Real ID Act requirements. Part III presents a partial economic analysis illustrating potential economic benefits …

From Clair To Annalise: How To Get Away With Being A Black Woman Lawyer On Television, Kellyn O Mcgee

Faculty Scholarship

No abstract provided.

Synthesizing Energy Transitions, Nadia Ahmad, Uma Outka, Danielle Stokes, Hannah Jacobs Wiseman

Faculty Scholarship

This Article assesses the growing and cross-disciplinary literature on energy transitions to explore how it can guide law and policy reforms for the energy sector. The modern conception of energy transition centers primarily on clean energy—a shift away from fossil energy dependence. It also, however, incorporates equity as a core principle, as an increasing emphasis on energy justice and just transition seeks to create guiding norms for the energy sector’s current state of change. The concept of energy transition is critical for describing and giving meaning to a fundamental societal shift at the local, regional, national, and global scales, aligned …

His Ship Has Sailed—Expelling Columbus From Cultural Heritage Law, Emily T. Behzadi

Faculty Scholarship

Latin America is a region rich with cultural heritage that existed for centuries before its antiquities were looted, trafficked, and sold on the international market. The language used to classify these objects of cultural heritage has been a tool of oppression and erasure. In reference to those objects of historical importance, auction houses, dealers, museums, and even looters themselves consistently use the term “Pre-Columbian.” “Pre-Columbian,” which means “before Columbus,” defines the historical period prior to the establishment of the Spanish culture in the national territories of Mexico, Central America, South America, and the Caribbean islands. In fact, this definition is …

Voting Rights In Corporate Governance: History And Political Economy, Sarah Haan

Faculty Scholarship

No abstract provided.

The Road To Autonomy, Nicole Mcconlogue

Faculty Scholarship

Scholars, activists, and advocates have long identified the “transportation gap” as a significant factor contributing to race- and class-based economic and other disparities. Carlessness correlates closely with race and poverty; meanwhile, widespread disinvestment in public transit results in low-income Black and Brown people suffering a disproportionate lack of access to opportunity and choice in almost every conceivable area of life.

State and local governments most often propose one of three solutions to correct the transportation gap: 1) renewing their investment in public transit; 2) increasing access to shared transit; and 3) making adaptations to the built environment. This Article demonstrates …

A Fiduciary Theory Of Progressive Prosecution, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Progressive prosecutors differ from their more traditional counterparts primarily in the way in which they make decisions. They tend to bind their discretion by announcing categorical policies rather than making fact-based decisions case by case. This Article catalogs the unusual degree of pushback progressive prosecutors have encountered from the public, legislatures, courts, police, and their own subordinate prosecutors. Drawing on fiduciary theory, it explains this reaction as a response to progressive prosecutors’ abdication of their fiduciary role. As a public fiduciary, prosecutors are entrusted with protecting the public’s abstract interest in justice, and an integral part of this role is …

To Limit Air Pollution's Risks: A Law/Science Success Story, Jamison E. Colburn

Faculty Scholarship

This is the first major study of the National Ambient Air Quality Standards (NAAQS) in a generation. This study focuses on a unique co-evolution of science and law over more than a half-century of development. Our NAAQSs can be found everywhere from your phone’s air quality index to the trends of cardiovascular and respiratory disease in America. Yet no one has studied the ways in which law and the science of air pollution have reciprocally determined each other through them. Through a study of 26 reviews across seven presidencies and 21 reported opinions adjudicating 106 petitions challenging those reviews/revisions, this …

Removing Barriers To State Tax Incentive Reform, Michelle D. Layser

Faculty Scholarship

No abstract provided.

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

Faculty Scholarship

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Camey v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware's requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue "will likely be raised again." The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state's "nonpartisan" …

“A Map Is Not The Territory”: The Theory And Future Of Sensitive Places Doctrine, Joseph Blocher, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, courts are now confronted with new questions about where guns can be restricted and what justifications support those regulations. This Essay urges that the development of the doctrine governing location-based prohibitions should focus as much on the why as the where. Instead of simply isolating each location and considering the historical pedigree of gun restrictions in that place, judges should evaluate the reasons behind the sensitive places doctrine itself. We aim to recenter these first order questions to avoid haphazard doctrinal development …

Toxic Masculinity And Gender-Based Gun Violence In America: A Way Forward, Hayley N. Lawrence

Faculty Scholarship

No abstract provided.

The Phantasm Of Principle, Wilfred Codrington Iii

Faculty Scholarship

No abstract provided.

Racial Time, Yuvraj Joshi

Faculty Scholarship

No abstract provided.

The World The Fire Wrought: A Tribute To Fran Ansley - Panel I, Jennifer Gordon

Faculty Scholarship

No abstract provided.

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 …

Religion And Economic Growth: Evidence From U.S. Counties, Luke Petach, Aiden Powell

Faculty Scholarship

This paper examines the impact of religious participation on regional economic growth. Using data on GDP growth for United States counties from the Bureau of Economic Analysis (BEA) Regional Economic Accounts and data on county-level religious participation from the Association of Religion Data Archives (ARDA), this paper estimates the impact of religiosity on growth using two-way fixed-effects Barro regressions for the period 2000 to 2020. In our preferred specification, a ten percentage-point increase in the county religious adherent share reduces the 10-year compound annual growth rate of per-capita GDP by 0.14 percentage points (a 19% reduction relative to the sample …

Race-Ing Antitrust, I. Bennett Capers, Gregory Day

Faculty Scholarship

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

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 …

Comparing Agency Costs In Contract Production: Private Equity M&A Versus Corporate And Sovereign Bonds, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

Different areas of transactional practice, such as M&A or high-yield bonds and sovereign bonds, vary in terms of the degree to which they are afflicted by agency problems. In some areas, clients are actively involved in deal making, and in others they are not present until well after the deal is done. If vulnerability to agency problems differs, and these agency problems impact the quality of contract production, one would expect those differences to appear when comparing contract production across practice areas. This Article compares one feature of contract production — the problems of encrusted and sticky boiler-plate — across …

The Gravity Of Legal Diffusion, Anu Bradford, Adam S. Chilton, Katerina Linos

Faculty Scholarship

A persistent empirical finding is that bilateral trade between two countries is proportional to the size of their economies and inversely proportional to their geographic distance. We hypothesize that a similar pattern is likely to hold for the diffusion of laws. We specifically argue that countries’ propensity to update their laws to converge with the leading regulator in a given policy area is likely to be proportional to the size of their economies and inversely proportional to their geographic distance. We then empirically test this theory in the area of antitrust and assess countries’ convergence to the world’s leading antitrust …

Gender And The Social Structure Of Exclusion In U.S. Corporate Law, Matthew C. Jennejohn, Afra Afsharipour

Faculty Scholarship

Law develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers choose litigation strategies, craft arguments, and present their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail.

This Article focuses upon a particularly crucial way that the structure of professional networks may shape the path of the law. Prior qualitative research suggests that networks are a crucial source of information, mentoring, and opportunity, and that those social …

"Accompanying The Force" In Modern Armed Conflict, Eric Talbot Jensen

Faculty Scholarship

Throughout history, non-military personnel have routinely accompanied fighting forces on the battlefield for purposes of providing their goods or services to the forces. The 1863 Lieber Code codified many rules concerning the interaction of the armed forces, but it also addressed civilians accompanying such professional forces, including both those “who are attached to the army for its efficiency and promote directly the object of the war” and those “citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors.”
Because of their proximity to the fight, it was inevitable that some of these …

Two Approaches To Equality, With Implications For Grutter, Keith N. Hylton

Faculty Scholarship

The question “what is equality?”, applied to the distribution of resources across races, suggests the following answer: when there appears to be no need for a policy that focuses on improving the welfare of one race relative to another. There is another way to approach the same question: equality is when traditionally-recognized paths to advancement do not give preference to or disadvantage an individual because of his race. Notice the difference here is between end-state and process-based notions of equality, a distinction Nozick emphasized in his examination of justice in distribution. Nozick rejected end-state theories of justice in distribution. I …

Title Ix And The Challenges Of Educating For Equality, Linda C. Mcclain

Faculty Scholarship

Educating for equality to foster practicing equality must be a vital task for the next fifty years of Title IX. It is also a task that fits into the mission and expertise of schools as educational institutions. I use “educating for equality” as shorthand for the role of schools in preparing children, adolescents, and college students to participate in and build a world in which—to echo Title IX’s “37 words that changed everything”¹—“No person in the United States, shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to …

Law And Culture, Tamar Frankel, Tomasz Braun

Faculty Scholarship

We often speak of law and culture in one breath. That may be so because both systems impose on each person and organization required rules of behavior. Yet, law and culture are quite different, though they relate to and affect each other. Therefore, it is desirable to examine their similarities and differences and their relationship. While the structures of law and culture are more similar than we might expect, their differences greatly affect the enforcement of the rules issued under each.

To be sure, both systems consist of rules and their enforcement. Most of our thoughts and knowledge, and many …