Digital Commons Network^™

Minding Rights: Mapping Ethical And Legal Foundations Of ‘Neurorights’, Sjors Ligthart, Marcello Ienca, Gerben Meynen, Fruzsina Molnar-Gabor, Roberto Andorno, Christoph Bublitz, Paul Catley, Lisa Claydon, Thomas Douglas, Nita A. Farahany, Joseph J. Fins, Sara Goering, Pim Haselager, Fabrice Jotterand, Andrea Lavazza, Allan Mccay, Abel Wajnerman Paz, Stephen Rainey, Jesper Ryberg, Philipp Kellmeyer

Faculty Scholarship

The rise of neurotechnologies, especially in combination with artificial intelligence (AI)-based methods for brain data analytics, has given rise to concerns around the protection of mental privacy, mental integrity and cognitive liberty – often framed as “neurorights” in ethical, legal, and policy discussions. Several states are now looking at including neurorights into their constitutional legal frameworks, and international institutions and organizations, such as UNESCO and the Council of Europe, are taking an active interest in developing international policy and governance guidelines on this issue. However, in many discussions of neurorights the philosophical assumptions, ethical frames of reference and legal interpretation …

On The Basis Of Childbirth: How The Federal Clerkship's Lack Of Parental Leave Fosters Gender Inequality, Bailey K. Sanders

Faculty Scholarship

This Essay argues that the lack of paid parental leave for federal law clerks enables pregnancy discrimination, restricts women’s reproductive choice, and perpetuates gender inequality within the legal profession. Protections against pregnancy discrimination are hollow when clerks can be fired—or have clerkship offers rescinded—for requiring maternity leave, and the lack of leave disproportionately impacts female clerks by constraining their ability to pursue career and family simultaneously. The lack of leave also restricts (some) pregnant women’s reproductive choice by forcing them to choose between keeping their position or carrying their pregnancy to term. Such a state of affairs was intolerable in …

Transboundary Marine Species At Risk & Their Recovery In A Changing Climate: Workshop Report, Jonathan J. Choi, Olga Koubrak, Jess Kuesel, Michelle B. Nowlin, Stephen E. Roady, Susan J. Rolston, David L. Vanderzwaag

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 …

Firearms Law And Scholarship Beyond Bullets And Bodies, Joseph Blocher, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Academic work is increasingly important to court rulings on the Second Amendment and firearms law more generally. This article highlights two recent trends in social science research that supplement the traditional focus on guns and physical harm. The first strand of research focuses on the changing ways that gun owners connect with firearms, with personal security, status, identity, and cultural markers being key reasons people offer for possessing firearms. The second strand focuses on broadening our understanding of the impact of guns on the public sphere beyond just physical safety. This research surfaces the ways that guns can create fear, …

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 …

Public Reporting Of Monitorship Outcomes, Veronica Root Martinez

Faculty Scholarship

When a corporation engages in misconduct that is widespread or pervasive, courts, regulators, or prosecutors often insist that the firm obtain assistance from an independent third party — a monitor — to oversee the firm’s remediation effort. The largest firms in the world — from Deutsche Bank, to Volkswagen, to Carnival Cruise Lines — have found themselves having to retain a monitor for corporate misconduct, despite attempts to avoid a monitorship entirely. Traditionally, monitors, or their special master forebearers, were utilized by courts to assist in overseeing compliance with court orders, and their work was both accessible and transparent. As …

“Made To Feel Broken”: Ending Conversion Practices And Saving Transgender Lives, Jennifer Levi, Kevin M. Barry

Faculty Scholarship

There has been a recent unprecedented, coordinated campaign by state governments to deny gender-transition care to transgender youth. It is within this context that Florence Ashley argues in Banning Transgender Conversion Practices: A Legal and Policy Analysis that legislation banning conversion practices is both lifesaving to transgender people directly affected and an important step in securing health and the recognition of dignity for all transgender people. The Authors highly recommend the book as a thoughtful and well-researched look at the issue. They also expand on several topics discussed in the book, including the harm caused by these practices, the constitutionality …

Social Enterprise Governance Post-Sox, Alina Ball

Faculty Scholarship

Social enterprises-nonprofit and for-profit businesses that use market-based strate­ gies to achieve social change for marginalized populations-demonstrate a new para­ digm for doing business in the United States. The Sarbanes-Oxley Act of 2002 ("SOX"), which transformed financial reporting and heightened internal controls for public com­ panies, has, perhaps unintentionally, also had an outsized influence on the development of social enterprise governance. The primary impact of SOX is found in the state-level auditing and reporting reforms imposed on large nonprofits. Moreover, "benefit re­ ports," the lynchpin of social enterprise state legislation, also mirror the SOX emphasis on transparency through third-party assessment. …

Patent Term Extensions And The Last Man Standing, Robin Feldman

Faculty Scholarship

In 1984, with the passing of the Hatch-Waxman Act, Congress orchestrated a compromise that permanently changed how drug markets operate. This piece of legislation created an expedited pathway for generics to enter the market, and, in exchange, brand drugs could extend their patents to account for time lost during their market approval process. Although this well-configured trade was supposed to help generics enter the scene quicker, the current drug market landscape makes one question whether this legislation has succeeded in its aims. The following study explores the lifecycle of top-selling brand drugs in comparison to the vision put forth by …

Rights Violations As Punishment, Kate Weisburd

Faculty Scholarship

Is punishment generally exempt from the Constitution? That is, can the deprivation of basic constitutional rights—such as the rights to marry, bear children, worship, consult a lawyer, and protest—be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not “cruel and unusual” under the Eighth Amendment? On one hand, such state intrusion on fundamental rights would seem unconstitutional. On the other hand, such intrusions are often less harsh than the restriction of rights inherent in prison. If a judge can sentence someone to life in prison, how can a judge not …

Carceral Control: A Nationwide Survey Of Criminal Court Supervision Rules, Kate Weisburd

Faculty Scholarship

The day-to-day operation of criminal court supervision—including probation, parole, and electronic ankle monitoring—is understudied and undertheorized. To better understand the mechanics of these systems, this study comprehensively analyzes the rules governing people on criminal court supervision in the United States. Drawing on the analysis of 187 public records from all fifty states, this study documents how criminal court supervision functions and impacts daily life. In particular, this study examines the various ways that supervision rules limit or restrict privacy, bodily autonomy, liberty, dignity, speech, and financial independence. This study also explores the nature and prevalence of supervision rules across the …

Leading With The Trailing Edge: Facilitating Patient Choice For Insulin Products, Robin Feldman

Faculty Scholarship

Insulin prices have risen sharply, despite a century since its introduction. Against this backdrop, companies have discontinued dozens of insulin prod- ucts. Discontinuation could relate to safety or effectiveness, or to the over- whelming benefits of newer products. On the other hand, discontinuation could suggest strategic behavior hampering competition and supporting prices. To test these theories, this project examined every insulin discontin- uation, analyzing the role discontinuations play in insulin affordability. No evidence emerged of any discontinuation for safety or effectiveness. Rather, dozens of viable products were removed from the market, followed by more expensive versions, often with little or …

Restorative Justice Diversion As A Structural Health Intervention In The Criminal Legal System The Criminal Legal System, Thalia Gonzalez

Faculty Scholarship

A new discourse at the intersection of criminal justice and public health is bringing to light how exposure to the ordinariness of racism in the criminal legal system—whether in policing practices or carceral settings—leads to extraordinary outcomes in health. Drawing on empirical evidence of the deleterious health effects of system involvement coupled with new threats posed by COVID-19, advocates and academics have increasingly called for race-conscious public health-driven reforms to carcerality in the United States. Recognizing the significance of health to carceral reform, the initiation of a health justice grounded lexicon in criminal justice has opened the doorway to new …

Federal Nonenforcement At A Crossroads, Zachary Price

Faculty Scholarship

As a novel aspect of “presidential administration”—the president- centered approach to federal governance discussed in a 2001 article by then-Professor and future Supreme Court Justice Elena Kagan—broad federal nonenforcement policies have been a major source of controversy in the past decade. As illustrated by the Obama Administration’s ex- pansive nonenforcement policies relating to marijuana, immigration, and Affordable Care Act implementation, recent presidents have recog- nized nonenforcement’s potential to reshape statutory law to suit an administration’s policy aims. This Article takes stock of this develop- ment as it relates to the past three presidential administrations. While advocating a limited view of …

Empowering Victims Of Grand Corruption: An Emerging Trend, Naomi Roht-Arriaza

Faculty Scholarship

Who is the victim of systemic corruption? The traditional answer in law is everyone and no one, or public administration itself. When state funds are misused or go missing, at the most the State is the victim. Therefore, only the State has standing to sue for, or receive restitution of, the stolen assets. But that long-held consensus is changing. Activists and lawyers have begun to argue that under systematic corruption it’s not just states, but individuals and communities as well as society as a whole that suffer losses and need to be both represented and repaired. Courts are beginning to …

Vaccination Mandates—An Old Public Health Tool Faces New Challenges, Dorit Rubenstein Reiss, Lawrence O. Gostin, Michelle M. Mello

Faculty Scholarship

No abstract provided.

The Dog That Didn’T Bark: Looking For Techno-Libertarian Ideology In A Decade Of Public Discourse About Big Tech Regulation, Jodi L. Short, Reuel E, Schiller, Susan Sibley, Noah Jones, Babak Hammatian, Lee Anna Bowman-Carpio

Faculty Scholarship

The internet was built on the techno-libertarian ideology that “information wants to be free,” and that ideology has played a prominent role in academic and policy debates about regulating the internet and the big technology companies that dominate it.2 Techno-libertarian ideology has generated a constellation of claims about tech and regulation—from the suggestion that regulation will stifle innovation in the complex, dynamic tech sector, to the assertion that the large platform companies are literally not regulable. In this article, we explore how much traction such claims and ideologies have in the broader public discourse about big tech and regulation. We …

Regulatory Managerialism As Gaslighting Government, Jodi L. Short

Faculty Scholarship

No abstract provided.

Misinformation And Covid-19, Dorit Rubenstein Reiss

Faculty Scholarship

The COVID-19 pandemic’s impact on our world cannot be overstated. One of its noticeable features was the prominence of misinformation generally, and anti-vaccine misinformation more specifically. This article provides a breakdown of the five major themes of antivaccine misinformation and the way they were used to create fear, uncertainty, and doubt about COVID- 19 vaccines. Long before the pandemic, anti-vaccine activists argued using a five-part playbook. They argued that (1) vaccine preventable diseases were not really dangerous, (2) vaccines were dangerous and ineffective, (3) there were alternative treatments that were better than (dangerous and ineffective) vaccines, (4) there was a …

Wolf Law, David Takacs

Faculty Scholarship

Various populations of wolves have been listed as threatened or endan- gered under the U.S. Endangered Species Act since the 1970s. But no listed species has aroused, and continues to arouse, so much controversy as the Northern Gray wolf. “Wolf law” is unique, odd, and often counterproductive— at least if the goal is to ensure the species’ survival and revitalize damaged ecosystems upon which healthy human communities depend. This Article identifies some of the unique characteristics of wolf law, analyzes how and why it has developed in this strange way, and proposes some more sensible ways for healthy human communities …

Rewarding Failure With Patents, Robin Feldman

Faculty Scholarship

It is axiomatic that patents promote success. And yet, a contrary notion—that the patent incentive for medicine should be sufficient to compensate for the losses incurred when other research fails—is quietly permeating modern court decisions, commentary, and Congressional discussions, coloring debates relating to pricing and regulation of medicine. The conceptualization is moving forward unchallenged, as if failure compensation follows logically from the innovation incentives built into the patent construct. As this Article demonstrates, however, the notion is antithetical to patent law, putting modern conceptualizations on a collision course with the history and theory of patents reaching back to this nation’s …

Restorative Justice Diversion As A Structural Health Intervention In The Criminal Legal System, Thalia Gonzalez

Faculty Scholarship

No abstract provided.

The Uncertain Future Of Restorative Justice: Anti-Woke Legislation, Retrenchment And Politics Of The Right, Thalia Gonzalez, Mara Schiff

Faculty Scholarship

As diverse forms of anti-democratic and anti-inclusionary politics escalate in the United States, public education is increasingly a site for retrenchment and contestation with targeted efforts to silence and erase civil rights victories for equity and access. Addressing a critical, yet unattended issue at the intersection of education law and policy and civil rights, this Article joins with the growing discourse interrogating the “parental rights” movement and racially regressive legislation. Employing a case study analysis of social movement activism and education policy legislation from 2018–2023 in Florida, it aims to provoke critical praxis emanating from essential inquiry— what is the …

Family Law For The One-Hundred-Year Life, Naomi R. Cahn, Clare Huntington, Elizabeth Scott

Faculty Scholarship

Family law is for young people. To facilitate child rearing and help spouses pool resources over a lifetime, the law obligates parents to minor children and spouses to each other. Family law’s presumption of young, financially interdependent, conjugal couples raising children privileges one family form—marriage—and centers the dependency needs of children.

This age myopia fundamentally fails older adults. Families are essential to flourishing in the last third of life, but the legal system offers neither the family forms many older adults want nor the support of family care older adults need. Racial and economic inequities, accumulated across lifetimes, exacerbate these …

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 …

The Ghosts Of Chevron Present And Future, Gary S. Lawson

Faculty Scholarship

In the October 2021 term, the Supreme Court decided six cases involving federal agency interpretations of statutes, at least five of which seemingly implicated the Chevron doctrine and several of which explicitly turned on applications of Chevron in the lower courts. But while the Chevron doctrine has dominated federal administrative law for nearly four decades, not a single majority opinion during the term even cited Chevron. Three of those cases formalized the so-called “major questions” doctrine, which functions essentially as an anti-Chevron doctrine by requiring clear congressional statements of authority to justify agency action on matters of great legal and …

Waivers, Keith N. Hylton

Faculty Scholarship

Waiver contracts are agreements in which one party promises not to sue the other for injuries that occur during their contractual relationship. Waivers are controversial in the consumer context, especially when presented in standard form, take-it-or-leave-it contracts. The law on waivers appears muddled, with no consistent doctrine or policy among the courts on enforceability. The aim of this paper is to offer a consistent set of policies that can form the foundation of a consistent set of doctrines, leading ultimately to a more apparently consistent treatment of waivers in the courts. The most basic piece of this paper’s framework is …

Title Ix’S Unrealized Potential To Prevent Sexual Violence, Katharine B. Silbaugh

Faculty Scholarship

The mandate of Title IX is equality in educational opportunities. If educational institutions could prevent sexual assaults from occurring, they would more fully ensure that students are not limited in their ability to benefit from the school’s educational programs. However, Title IX administration on college campuses still focuses far more on post-assault infrastructure than on assault prevention.

Yet with the ever-increasing particularity of the assault response requirements emanating from the Department of Education (“DOE”)2 and courts, Title IX jurisprudence has strayed too far from this basic purpose: to ensure that students in federally funding schools are not denied or limited …

Feminist Legal Theory And Praxis After Dobbs: Science, Politics, And Expertise, Aziza Ahmed

Faculty Scholarship

Fifty years ago, in Roe v. Wade, Justice Blackmun set into motion the idea that abortion should be a decision between a woman and her doctor.' That idea traveled from the Supreme Court decision to popular discourse; with it, came the notion that when it comes to reproduction, medical experts are a key part of women's liberation. In Dobbs v. Jackson Women's Health Organization, the court ignored the role of experts and threw the question of who should decide when and how a person has an abortion to the people. In my essay for this symposium issue dedicated to feminist …