Digital Commons Network^™

Venality: A Strangely Practical History Of Unremovable Offices And Limited Executive Power, Jed Handelsman Shugerman

Faculty Scholarship

The Roberts Court has asserted that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In response to counterevidence from the Founding era, unitary executive theorists have claimed a “British Backdrop” of a general removal power under the English Crown and European “executive power.” These assumptions are incorrect.

This Article shows that many powerful executive officers through the late eighteenth century, especially high English Treasury offices and even “department heads” in the cabinet, were unremovable. A long common law tradition protected many English offices as freehold property rights. Moreover, this Article explains why it was widely understood …

Human Psychology And Robot Evidence In The Courtroom, Alternative Dispute Resolution, And Agency Proceedings, Sara Sun Beale, Hayley Lawrence

Faculty Scholarship

In human–robot interactions in legal proceedings, human responses to robot-generated evidence will present unique challenges to the accuracy of litigation as well as ancillary goals such as fairness and transparency, though it may also enhance accuracy in other respects. The most important feature of human–robot interactions is the human tendency to anthropomorphize robots, which can generate misleading impressions and be manipulated by designing robots to make them appear more trustworthy and believable. Although robot-generated evidence may also offer unique advantages, there are concerns about the degree to which the traditional methods of testing the accuracy of evidence, particularly cross-examination, will …

The Harlan Court: A Constitutional Alternate History, H. Jefferson Powell

Faculty Scholarship

Walter Dellinger shared the widespread perception that the Burger Court was characterized by “rootless activism” rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger’s idea and …

Originalism And Historical Fact-Finding, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on the idea that it is simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the …

Psychic Income & Democratized Investing, Abraham J.B. Cable

Faculty Scholarship

No abstract provided.

Empirically Assessing Medical Device Innovation, George Horvath

Faculty Scholarship

No abstract provided.

Just Look At The Map: Bounding Environmental Review Of Housing Development In California, Eric Biber, Christopher S. Elmendorf, Nicholas Marantz, Moira O’Neill

Faculty Scholarship

California faces a dire housing crisis. California’s land-use regulatory system remains a key driver of this crisis. State law grants local governments broad power to craft their own regulations on how to review and approve housing development. Though state law may limit a locality’s ability to outright deny some types of housing development, local governments can and do use creative ways to stall approvals or functionally deny housing by making it infeasible to develop. One such strategy is to demand more intensive environmental review of new housing projects under the California Environmental Quality Act (CEQA) than what state law requires. …

Ai & Antitrust: The Algorithm Made Me Do It, Robin Feldman, Caroline Yuen

Faculty Scholarship

As the dawn of artificial intelligence (“AI”) rises rapidly, competition authorities should contemplate the potential for hazy days ahead. Undoubtedly, AI’s already ubiquitous presence offers exciting possibilities, from enhancing efficiency, to leveling the playing field for non-native speakers,to enabling scientific discovery.Despite these breathtaking advancements, however, recent data from the Pew Research Center reveal that only 15% of adults surveyed were “more excited than concerned about the increasing use of AI in daily life,” with 46% expressing “an equal mix of concern and excitement.”

Policymakers also manifest concerns about AI, exemplified by the extent to which government actors are racing to …

Hierarchies Of Discrimination In Baby Making? A Response To Professor Carroll, Radhika Rao

Faculty Scholarship

No abstract provided.

Standing And Snitches, Emily Strauss

Faculty Scholarship

No abstract provided.

Toward A Taxonomy Of Freedom Of Movement Claims: Identifying Rights-Based Pathways For Today’S Refugees Beyond The 1951 Refugee Convention, Moria Paz

Faculty Scholarship

This Article discusses the current migratory crisis as one instance of a conceptual mismatch in human rights between formal law and the tools that courts and other quasi-judicial bodies actually utilize in adjudication. While the doctrine centers around individual right-holders, enforcement bodies provide a remedy only when there is a state duty-holder. Human rights scholarship regarding refugees focuses on the right to freedom of movement. However, this right frequently offers little benefit to these individuals adrift at sea or wandering in the desert.

An alternative framing might ultimately be more effective before human rights courts and other quasi-judicial bodies. This …

Advancing Human Rights And The Rule Of Law In Haiti, Kate E. Bloch, Ariel Chéry, Marie Gerda Dorcy, Roxane Edmond Dimanche, Yvon Janvier, Maxo Mezilas, Benjamin Trouille

Faculty Scholarship

The rule of law in Haiti is precarious. The ESCDROJ law school clinic in the town of Jérémie champions indigent individuals whose human rights are under siege during their prolonged and unconstitutional pre-trial connement in prison. To our knowledge, it is the only operating in-house law school clinic in Ha1iti. Despite myriad obstacles, during its initial pre-pandemic period of op- eration in 2018-2019, the inaugural clinic team represented clients in 43 cases brought to trial and succeeded in garnering the release of 25 of those individuals. That is a trial release success rate of over 58%. Subsequently, however, the ad- …

The Legal Metaverse And Comparative Taxonomy: A Reappraisal, Ugo Mattei

Faculty Scholarship

The present Article revisits my “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems”—published in this very Journal a quarter century ago—which acknowledged the ideological nature of the law versus politics distinction and posited taxonomy as a means for understanding law. The original article classified law into professional law, political law, and traditional law, and heralded the tentative and dynamic natures of such classification. The two purposes of the present Article are to (i) reflect on legal transformations that have since occurred as reactions to global geopolitical, technological, and economic changes, and (ii) interrogate whether epistemological assumptions …

The Road Not Taken: A Critical Juncture In Racial Preferences For Naturalized Citizenship, Ming Hsu Chen

Faculty Scholarship

In the “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government’s attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a “super-statute.” While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era as …

Paucity Of Intellectual Property Rights Information In The Us Biologics System A Decade After Passage Of The Biosimilars Act, Robin Feldman

Faculty Scholarship

No abstract provided.

The Intrusive State: Restrictions On Gender-Affirming Healthcare For Minors, Exceptions To The Doctrine Of Parental Consent, And Reliance On Science And Medical Expertise, Lois A. Weithorn

Faculty Scholarship

The provision of gender-affirming medical care to transgender or gender diverse (“TGD”) youth is currently the subject of substantial controversy despite an overwhelming consensus in the healthcare community as to the safety and potential benefits of recommended treatments. Much of the debate is fueled by misinformation and inaccurate characterization of research and practice. Against this backdrop, twenty-three states enacted restrictions or complete prohibitions on access to gender-affirming medical care for adolescents between 2021 and the time of this writing in early 2024. The policies typically place healthcare practitioners who provide such services at risk of license revocation. Some statutes create …

Making Social Security Progressive, Manoj Viswanathan

Faculty Scholarship

Social Security is funded by a regressive tax in which wages below the wage cap ($160,200 in 2023) are taxed at a flat rate but wages above the cap are taxed at zero. To address this normative shortcoming and make Social Security progressive, this Piece proposes eliminating the wage cap and using the resulting additional revenue to fund a zero-rate Social Security tax bracket analogous to the standard deduction of the federal income tax. IRS data show that these changes could fund an exemption of at least $10,000, thereby saving low-wage taxpayers approximately $1,200. By altering only the distribution of …

Race And Regulatory Equity, Ming Hsu Chen

Faculty Scholarship

This article contemplates the proper role of regulatory agencies in implementing equity orders. More specifically, what is their role with regard to higher education admissions, in the post-SFFA v. Harvard landscape of racial equity?

Racial Reckoning And The Police-Free Schools Movement, Thalia Gonzalez, Rebecca Epstein

Faculty Scholarship

Across the country, students of color face daily threats of arrest, exclusion, and violence at the hands of school police officers. Whether deemed threatening, defiant, or hypersexualized, Black students, in particular, pay a heavy price to access their right to free public education. Despite victories in dismantling educational carcerality since the mid-2000s, efforts to formally remove police from public schools has been limited. However, during the 2020 racial reckonings, political opportunity catalyzed social movement campaigns, resulting in the passage of sixty-nine police-free policies. This represented an inflection point for civil rights, education justice, and police abolition scholars and activists. This …

Education Equity And Brown: Reform, Retrenchment, And Exclusionary School Discipline, Thalia Gonzalez, Will Martel

Faculty Scholarship

Public schools have served as sites of social, political, and legal contestation since their inception in the United States. And, while the pathways of racialized inequalities have arguably waxed and waned, threats of exclusion and segregation—constituted and governed by anti-Blackness—have cast a long shadow on the promise of educational equity. In response to the central provocation of the 2024 Georgetown Journal of Law & Modern Critical Race Perspectives symposium—revisiting Brown v. Board of Education and the struggle for racial equity in education—this Essay seeks to (re)connect the past and present. More directly, through the Critical Race Theory reform and retrenchment …

Internet Drug Prohibition And The Opioid Overdose Crisis, Benjamin Barsky

Faculty Scholarship

The Ryan Haight Online Pharmacy Consumer Protection Act (Ryan Haight Act) prohibits controlled substance tele-prescribing when it occurs without a preliminary in-person medical evaluation. This Article details the Ryan Haight Act’s consequences for the practice of telemedicine in general and opioid addiction treatment in particular. In doing so, it builds on literature exploring the tension between the federal criminal regulation of controlled substance prescribing and the management of large-scale public health crises, particularly the opioid overdose crisis.

By restricting the tele-prescription of certain controlled substances used for opioid addiction treatment, the Ryan Haight Act limits access to care for a …

Reproducing Inequality: Racial Capitalism And The Cost Of Public Education, Thalia Gonzalez, Paige Joki

Faculty Scholarship

American democracy is marked by an unwavering deployment of racialized economic modalities of fines, fees, and debt aimed at scaffolding hierarchies of white power and prescribing Black people as commodities, not human beings. Over the last two decades, an expanding praxis in the economic justice field has emerged, opposing and disrupting racialized economic logics within a national anti-fine, fee and cost movement. From scholarly discourse to legal interventions and reforms at city- and county-levels, the movement has sought to target interlocking material and ideological forces that comprise racial capitalist geographies across many criminal and civil systems. Despite this significant work, …

Case Rounds Redefined: Multidisciplinary Perspectives In Reflective Practice, Nira Geevargis

Faculty Scholarship

This article describes the rounds process used in clinic and externship seminars and considers how adjustments to the structure can address different needs or goals. The authors draw on teaching methods found in similar professional education programs to identify options for faculty facilitating rounds. Ultimately, the authors use externship rounds to highlight lawyering skills, including developing curiosity, withholding judgment, and generating options. The authors posit that rounds facilitate deeper self-reflection and foster a sense of community by encouraging law students to work collaboratively to consider lessons learned in fieldwork. The rounds structure overview can be assigned to students before class …

Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Gutte

Faculty Scholarship

Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the "injurer-innovator problem." Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Faculty Scholarship

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Social Welfare Functions And Health Policy: A New Approach, Matthew D. Adler

Faculty Scholarship

The social welfare function (SWF) framework converts the possible outcomes of governmental policy choice into vectors (lists) of interpersonally comparable well-being numbers, measuring the lifetime well-being of each individual in the population of interest. The SWF proper is a rule for ranking these vectors. The utilitarian SWF adds up well-being numbers. A prioritarian SWF adds up well-being numbers plugged into a strictly increasing and strictly concave transformation function. Governmental policies are conceptualized as probability distributions over well-being vectors. A recent literature applies the SWF framework to health policy. This article first provides a brief overview of the SWF framework and …

The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher

Faculty Scholarship

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations …

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

The U.S. Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations,” but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

A Codified Liability Regime To Stimulate Greater Investment In Subpatentable Innovation, Jerome H. Reichman, Ana Santos Rutschman

Faculty Scholarship

The global intellectual property system rests on a distinction between exclusive property rights and free competition. Exclusive rights vary in strength and intensity, but the opposite of protection is almost always free competition. Distinctions of intensity are drawn in terms of the length of protection given to different subject matters plus variable lists of exceptions and limitations to exclusive rights. But the bottom line is that, when protection is not available under the existing system, free competition prevails, and vice-versa (i.e., where there is exclusivity, free competition is deferred for a specified period of time).

This Article departs from a …

The Sense Of Safety Theoretical Framework: A Trauma-Informed And Healing-Oriented Approach For Whole Person Care, Kurt C. Stange

Faculty Scholarship

Objectives: This research describes four aspects of the development of the Sense of Safety Theoretical Framework for whole person care: exploring the meaning of the phrase “sense of safety”—the whole person language; the range of human experience that impacts sense of safety—whole person scope; the dynamics that build sense of safety—the healing goals; and the personal and cross-disciplinary trauma-informed practitioner skills and attitudes that facilitate sense of safety. Methods: This qualitative participatory study was conducted in two phases. Researchers iteratively explored the concept of sense of safety using focus groups and semi-structured interviews. Overarching research questions were: “Does the transdisciplinary …