Digital Commons Network^™

Moral Economies Of Family Reunification In The Trump Era: Translating Natural Affiliation, Autonomy, And Stability Arguments Into Constitutional Rights, Kerry Abrams, Daniel Pham

Faculty Scholarship

No abstract provided.

Securing Gun Rights By Statute: The Right To Keep And Bear Arms Outside The Constitution, Jacob D. Charles

Faculty Scholarship

In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike …

Cities, Preemption, And The Statutory Second Amendment, Joseph Blocher

Faculty Scholarship

Although the Second Amendment tends to dominate the discussion about legal limits on gun regulation, nothing has done more to shape the state of urban gun law than state preemption laws, which fully or partially limit cities’ ability to regulate guns at the local level. The goals of this short Essay are to shed light on this “Statutory Second Amendment” and to provide a basic framework for evaluating it.

Brief Of R. Michael Cassidy, Nora Freeman Engstrom, Bruce A. Green, Peter A. Joy, Geovanny E. Martinez, Veronica Root Martinez, Richard W. Painter, W. Bradley Wendel, Ronald F. Wright, And Ellen C. Yaroshefsky As Amici Curiae In Support Of Petitioner, R. Michael Cassidy, Nora Freeman Engstrom, Bruce A. Green, Peter A. Joy, Geovanny E. Martinez, Veronica Root Martinez, Richard W. Painter, W. Bradley Wendel, Ronald F. Wright, Ellen C. Yaroshefsky

Faculty Scholarship

No abstract provided.

Toward An Optimal Decarceration Strategy, Ben Grunwald

Faculty Scholarship

With mounting support for dramatic criminal justice reform, the question is no longer whether we should decarcerate American prisons but how. This question is far more complicated than it might seem. We could cut the prison population in half, for example, by drastically shortening sentences. Or we could reduce prison admissions. Or we could do both. And we could do either or both for countless combinations of criminal offenses. Moreover, even when they reach the same numeric target, these strategies are not equivalent. They would have vastly different consequences for both prisoners and the public, and widely varying timeframes to …

Feminist Legal History And Legal Pedagogy, Paula A. Monopoli

Faculty Scholarship

Women are mere trace elements in the traditional law school curriculum. They exist only on the margins of the canonical cases. Built on masculine norms, traditional modes of legal pedagogy involve appellate cases that overwhelmingly involve men as judges and advocates. The resulting silence signals that women are not makers of law—especially constitutional law. Teaching students critical modes of analysis like feminist legal theory and critical race feminism matters. But unmoored from feminist legal history, such critical theory is incomplete and far less persuasive. This Essay focuses on feminist legal history as foundational if students are to understand the implications …

Cross-Departmental Authority Heading Creation: A Case Study, Janelle Zetty, Heather C. Plaisance

Faculty Scholarship

The Cataloging and the Reference and Research Services departments at the University of Louisiana at Lafayette’s Edith Garland Dupré Library collaborated to create name authority headings for the Library of Congress Name Authority File. The project’s primary goal was to increase the number of the library’s contributions as a Name Authority Cooperative Program participant. The Head of Cataloging determined which Louisiana persons needed name authority headings and compiled a list of names for Reference & Research Services staff to investigate. After using various online resources to collect biographical information, staff submitted their findings via a Google Form. The Head of …

Nation’S Business And The Environment: The U.S. Chamber’S Changing Relationships With Pollution, “Ecologists,” Regulations, And Renewables, 1945-1981, Adam D. Orford

Faculty Scholarship

Nation’s Business was a monthly business magazine published by the U.S. Chamber of Commerce, with a subscription list larger than Business Week, Forbes, or Fortune. This study explores how the magazine responded and adapted to the rise of environmentalism, and environmental regulation of business, by exploring its treatment of four topics: DDT, environmentalists, government regulation, and renewable energy. It is built on a full-text review of all issues of Nation’s Business published between 1945 and 1981. It reveals the development of a variety of anti-environmental logics and discourses, including the delegitimization of environmentalism as emotional and irrational, the undermining of …

Impeaching Legal Ethics, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

In the investigations, hearings, and aftermath of President Trump’s first impeachment, lawyer-commentators invoked the rules of professional conduct to criticize the government lawyers involved. To a large extent, these commentators mischaracterized or misapplied the rules. Although these commentators often presented themselves to the public as neutral experts, they were engaged in political advocacy, using the rules, as private litigators often do, as a strategic weapon against an adversary in the court of public opinion. For example, commentators on the left wrongly conveyed that, under the rules, government lawyers had a responsibility to the public to voluntarily assist in the impeachment, …

When Desperate Patients Go To Court For Unproven Treatments - The Battle For Hospital Independence, Christopher Robertson, Margaret Houtz

Faculty Scholarship

As the Covid-19 pandemic wears on, patients have asked courts to compel hospitals to administer unproven therapies, with mixed legal results. Although talk radio hosts, politicians, and social media users have promoted various treatment approaches, they have given particular attention to ivermectin. The Food and Drug Administration (FDA) has approved ivermectin for use in humans for treating onchocerciasis (river blindness), intestinal strongyloidiasis, certain other parasitic worms, head lice, and skin conditions such as rosacea. Although this approval facilitates legal offlabel use for prophylaxis against or treatment of other conditions, both the FDA and the Centers for Disease Control and Prevention …

Margins Of Empire: The Sakhalin Koreans’ Long Saga Home, Timothy Webster

Faculty Scholarship

Migration carries with it many risks, from perilous journeys along risky corridors to hostile environments in one's adopted country. But what happens when migrants cannot return home? This Article examines the difficulties endured by Sakhalin Koreans, a group of ethnic Koreans who emigrated to Sakhalin Island during the Japanese colonial period and found themselves stranded in a foreign country (the Soviet Union) for the next half century. After recounting the migration of Koreans to Sakhalin, and analyzing lawsuits filed in Japan to repatriate them, it analyzes the infirmities of the international human rights system and the challenges of repatriating a …

Illegitimate Parents, Susan Hazeldean

Faculty Scholarship

No abstract provided.

Innovation In Adversity, Clark Asay, Stephanie Plamondon

Faculty Scholarship

Adverse experiences, like long-term poverty, can inhibit innovation. But as much research and many real-world examples show, adversity can also stimulate innovation. Indeed, the COVID-19 pandemic provides a number of recent examples where adverse conditions have led individuals, firms, and governments to innovate in the hope of benefiting society.

Despite the fact that some forms of adversity undermine innovation while others stimulate it, legal scholars have largely failed to distinguish between the two forms or even account for adversity's relationship to innovation when assessing innovation law and policy, including intellectual property (IP) laws. Yet given adversity's significant role in affecting …

The Sociology And Psychology Of Innovation: A Synthesis And Research Agenda For Intellectual Property Scholars, Stephanie Plamondon Bair, Laura Pedraza-Fariña

Faculty Scholarship

Intellectual Property (IP) and innovation law scholarship is generally concerned with the question of how to promote socially beneficial innovation. Until recently, the analysis brought to bear on that question in the literature has been dominated by an individual, rational-actor-centered model grounded in the neoclassical economics tradition. Under this model, individual innovators are assumed to respond to innovation incentives in rational ways, unswayed by their social environments or their own psychology.

Of course, as innovation scholars are beginning to recognize, the road to innovation is much more winding and complex than the straight path from incentive to innovation that the …

Do Networks Govern Contracts?, Matthew C. Jennejohn

Faculty Scholarship

An influential literature in private law argues that the legal system interferes with modern markets’ “private ordering.” Private ordering refers to parties relying upon informal institutions, like social norms and reputational sanctions, to enforce legal obligations. This informal governance is made possible by thick networks of social or commercial relationships, which circulate information about parties’ behavior. Social networks, not the state, govern commerce.

This Article argues that the private ordering literature has overlooked a paradox at the heart of its theory. The same networks that circulate reputational information also provide conduits for valuable technical information to leak from one company …

Revitalizing Tribal Sovereignty In Treatymaking, David H. Moore, Michalyn Steele

Faculty Scholarship

In the current model of federal-Indian relations, the United States claims a plenary legislative power, as putative guardian, to regulate Indian tribes. Under this model, tribes are essentially wards in a state of pupilage. But the federal-tribal relationship was not always so. Originally, the federal government embraced, even promoted, a more robust model of tribal sovereignty in which federal-Indian treatymaking and diplomacy figured prominently. Through treaties, the United States and tribes negotiated territorial boundaries, forged alliances, facilitated trade, and otherwise managed their relations. In 1871, Congress attempted to put an end to federal-Indian treatymaking by purporting to strip tribes of …

Coase And Accommodation: A Reply, Frederick Mark Gedicks

Faculty Scholarship

Written for a Festschrift in honor of Michael Perry, this essay responds to the argument that the Coase theorem refutes the third-party harm doctrine, which holds that the Establishment Clause prohibits any religious accommodation imposing material burdens (“harms”) on those who derive no benefit from the accommodation because they do not engage in the exempted practice (“third parties”). In economic terms, the third-party harm doctrine prohibits negative externalities created by religious accommodations which shift material costs of practicing the accommodated religion to a relatively small number of third parties who practice a different religion or none at all.

Enter Coase, …

Actively Achieving Greater Racial Equity In The Law School Classroom, Catherine Bramble

Faculty Scholarship

2020 and 2021 continue to illustrate the pervasiveness of implicit and explicit racism in our society. Less well-acknowledged and recognized is the extent to which Socratic pedagogy also reflects those pervasive racist realities while simultaneously resulting in inferior learning based on a teaching method invented 150+ years ago. Despite this racist and outdated reality, the legal academy has been reluctant to alter the traditional method of teaching. Tangible, empirical evidence obtained from data-driven cognitive learning science research demonstrates that active learning not only improves learning outcomes for all students, but also mitigates the structural effects of racism in the classroom …

Transactional Clinical Support For Mutual Aid Groups: Toward A Theory Of Transactional Movement Lawyering, Michael Haber

Faculty Scholarship

No abstract provided.

Contractual Evolution, Matthew C. Jennejohn, Eric Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each …

The Transactional Dynamics Of Market Fragility, Matthew C. Jennejohn

Faculty Scholarship

This Article takes a step toward more clearly diagnosing market fragility for the purpose of developing better policy choices that anticipate and address future crises. It does so by connecting two erstwhile and distinct literatures: the legal scholarship on relational contracting and the social science on the diffusion of shocks in economic networks. This Article attempts to connect the strategies parties pursue in designing their agreements—a familiar topic to contract scholars—to the diffusion patterns observed in disrupted markets—an increasingly important area of study in macroeconomics. By investigating that intersection, this Article introduces a new potential policy domain for remediating market …

Innovation In A Time Of Crisis: The Utah Supreme Court's Order On Emergency Diploma Privilege, Catherine Bramble

Faculty Scholarship

This article discusses the Utah Supreme Court's order on emergency diploma privilege during the COVID-19 pandemic.

Verification Dilemmas In Law And The Promise Of Zero-Knowledge Proofs, Kenneth A. Bamberger, Ron Canetti, Shafi Goldwasser, Evan J. Zimmerman

Faculty Scholarship

Individuals who wish to access a website or qualify for a loan are expected to expose personally identifying information, undermining their privacy and security. Firms share proprietary information in dealmaking negotiations which, if the deal fails, may be used by the negotiating partner for a competitive advantage. Regulators are expected to disclose their algorithmic tools to comply with public transparency and oversight requirements, a practice that risks rendering these tools circumventable and ineffective. Litigants might have to reveal trade secrets in court proceedings to prove a claim or defense. Such “verification dilemmas” — costly choices between opportunities that require the …

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

Faculty Scholarship

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

Innovation And Equality: An Approach To Constructing A Community Governed Network Commons, Rider W. Foley, Olivier Sylvain, Shelila Foster

Faculty Scholarship

Networked computing affords users distinct opportunities to communicate with each other, build relationships, transact business, and create. Yet, the digital divide perpetuates existing disparities between social groups. Interventions that rely on private ownership or philanthropy often fall short. Efforts to redress these disparities require collaboration across academic disciplines and with government and private sector organizations. This paper chronicles efforts in Harlem to address this through a collaborative approach to networked computing. We draw on two concepts--responsible innovation and co-governance--to sketch a community-based approach to networked computing. Second, the article identifies two potential systems, based in property law, through which a …

It's About Time: Emphasizing Temporal Dynamics In Dynamic Personality Regulation, Joshua Wilt

Faculty Scholarship

People change over time. These changes are thought to represent some self-regulatory, dynamic processes. However, dynamic processes need to be distinguished from mere stochastic variation. Just as the Brownian motion of a dust mote does not help us understand the basic principles of classical physics, neither does random variation within an individual describe the complexity of self-regulatory processes. This regulation implies solving the problem of competing goals and desires within the constraints of situational presses. And what people feel, think, and do at one moment affects what they feel, think and do in the next moment. Thus, describing and explaining …

Countering Gerrymandered Courts, Jed H. Shugerman

Faculty Scholarship

The key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.

This Piece offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping …

A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan

Faculty Scholarship

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.

This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which …

Housing The Decarcerated: Covid-19, Abolition & The Right To Housing, Norrinda Brown

Faculty Scholarship

The coronavirus pandemic revealed the need to advance the right to housing and abolition movements. The need for advancements in both spaces was no more painfully apparent than among the recently decarcerated population. Securing housing for the recently decarcerated is particularly difficult due to the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court’s ruling in HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels: eligibility, enforcement, and set asides. As …

Firearms And Protest: Lessons From The Black Tradition Of Arms, Nicholas J. Johnson

Faculty Scholarship

Kenosha was no aberration. Our history is filled with episodes of righteous protest boiling over into violence. Where violence is imminent, our traditions and laws allow innocents to use corresponding violence in self-defense. This arrangement is imperfect and demands hard thinking about how to refine and possibly improve it. One source of lessons toward this end is the experience of Black freedom fighters who navigated turmoil that dwarfs our current troubles. The principles that guided their struggle help frame a sphere of legitimate gun use during periods of civil unrest. These principles emerge from a considered philosophy and practice of …