Digital Commons Network^™

Teaching Interdisciplinary Perspectives On Citizenship And Immigration, Ming Hsu Chen

Faculty Scholarship

This essay reflects on the use of interdisciplinary perspectives in teaching survey and seminar classes on immigration and citizenship. It focuses on three benefits. First, empirical research gives the doctrine a reality check. Second, normative inquiry evaluates the doctrine against desired values. Third, policy analysis opens up possibilities for reforming and improving on doctrine.

Colorblind Nationalism And The Limits Of Liberalism, Ming Hsu Chen

Faculty Scholarship

Policymakers and lawyers posit formal citizenship as the key to inclusion. Rather than presume that formal citizenship will necessarily promote equality, this Article examines the relationship between citizenship, racial equality, and nationalism. It asks: What role does formal citizenship play in excluding noncitizens and Asian, Latinx, and Muslim citizens racialized as foreigners? What effects does it have on the meaning of being American as a non-White citizen? The Article argues that commitments to colorblind equality and democratic self-governance of the nation stand in contradiction to aspirations to protect all persons within the nation. Consequently, individual rights designed to remedy racial …

Advertising Medicine: Selling The Cure, Robin Feldman

Faculty Scholarship

Although most countries forbid advertising medicine to patients, “direct-to- consumer advertising” has flourished in the United States over the past century. Research shows that the practice prompts inappropriate prescriptions and disadvantages generic competitors, leading to adverse drug reactions and increased prescription drug spending. Nevertheless, a comprehensive regulatory system for direct-to-consumer advertising continues to escape the grasp of policymakers. Regulatory authority has bounced between the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA), where primary jurisdiction now resides. Since the FDA assumed responsibility, the agency’s only major regulatory initiative has been to minimize disclosure requirements for advertisements. Enforcement …

Patents As Property For The Takings, Robin Feldman

Faculty Scholarship

The Fifth Amendment’s Compensation Clause contains only a few simple words: “nor shall private property be taken for public use without just compensation.” Yet these simple words have confounded legal minds for over 200 years, and as Congress has contemplated various patent law reforms in recent decades, the specter of the Fifth Amendment looms on the horizon. Conventionally, commentators and judges break down the clause into a few diferent components, each of which has generated a voluminous body of caselaw and corresponding scholarly inquiry. First, there is the question of takings: How does one know if something has been “taken” …

Critical Race Feminism, Health, And Restorative Practices In Schools: Centering The Experiences Of Black And Latina Girls, Thalia Gonzalez, Rebecca Epstein

Faculty Scholarship

Restorative practices (RP) in K-12 schools in the United States have grown exponentially since the early 1990s. Developing against a backdrop of systemic racism, RP has become embedded in educa- tion practice and policy to counteract the harmful and persistent patterns of disparities in school discipline experienced by students of color. Within this legal, social, and political context, the em- pirical evidence that has been gathered on school-based restora- tive justice has framed and named RP as a behavioral interven- tion aimed at reducing discipline incidents—that is, an “alternative” to punitive and exclusionary practices. While this view of RP is …

Trade Secrets In Biologic Medicine: The Boundary With Patents, Robin Feldman

Faculty Scholarship

Can something be both open and secret? That is the conundrum facing society as trade secret rights chafe against patent rights in cutting-edge, biologic medicine. The conflict is unsurprising. Trade secret has emerged as a relatively late bloomer among the family of intellectual property rights and only recently has begun to establish the boundaries of its own space, a process in which it will inevitably knock against other intellectual property doctrines already occupying their own domains. Nor is it surprising that the clash would arise in a fast-moving area of medical science. From insulin products, to cancer treatments, to mRNA …

Public Undersight, Christina Koningisor

Faculty Scholarship

No abstract provided.

#Fintok And Financial Regulation, Nikita Aggarwal, D. Bondy Valdovinos Kaye, Christopher K. Odinet

Faculty Scholarship

Social media platforms are becoming an increasingly important site for consumer finance. This phenomenon is referred to as “FinTok,” a reference to the “#fintok” hashtag that identifies financial content on TikTok, a popular social media platform. This Essay examines the new methodological possibilities for consumer financial regulation due to FinTok. It argues that FinTok content offers a novel and valuable source of data for identifying emerging fintech trends and associated consumer risks. As such, financial regulators should use FinTok content analysis—and social media content analysis more broadly—as an additional method for the supervision and regulation of consumer financial markets. The …

Measuring Local Policy To Advance Fair Housing And Climate Goals Through A Comprehensive Assessment Of Land Use Entitlements, Moira O’Neill, Eric Biber, Nicholas Marantz

Faculty Scholarship

California’s legislature has passed several laws that intervene in local land-use regulation in order to increase desperately needed housing production—particularly affordable housing production. Some of these new laws expand local reporting requirements concerning zoning and planning laws, and the application of those laws apply to proposed housing development. This emphasis on measurement requires the state to develop a housing data strategy to support both enforcement of existing law and effective policymaking in the future. Our Comprehensive Assessment of Land Use Entitlements Study (CALES) predates, but aligns with and supports, this state-led effort to improve local reporting. For the cities that …

Sustainable Communities Or The Next Urban Renewal?, Moira O’Neill, Giulia Gualco-Nelson, Eric Biber

Faculty Scholarship

Inadequate housing supply in California’s most expensive metro areas drives a statewide housing crisis that challenges climate policy implementation, fair housing goals, and poverty reduction. Many scholars and policy makers agree that increasing dense infill transit-oriented residential development (TOD) in high-cost metro areas could address this housing crisis while also mitigating the impacts of climate change. But some advocates and scholars liken state policy that promotes TOD to twentieth century urban renewal—contending that state-incentivized TOD disproportionately displaces lower income communities. To explore this issue, and to examine the relative influence of both state law promoting TOD and local law regulating …

Laws Prohibiting Vaccine Mandates: An Overview, Dorit Rubenstein Reiss

Faculty Scholarship

During the COVID-19 pandemic, for the first time, a significant minority of states passed laws limiting or outright prohibiting vaccines mandates. The laws varied greatly in what they covered, the way they addressed the issue, and their intended results. This Article provides a detailed overview of these mandate bans. Consequently, this Article demonstrates that most of the bans target potential vaccine mandates limiting access to government buildings and services—and points out that no states adopted such mandates. That said, a growing sub-set of states also adopted laws or executive orders prohibiting private actors from imposing mandates—either on customers or on …

Class, Care, And The Equal Rights Amendment, Kate Andrias

Faculty Scholarship

This piece was submitted in connection with the 2022 Symposium The Equal Rights Amendment: A New Guarantee of Sex Equality in the U.S. Constitution. The event was co-sponsored by the Columbia Journal of Gender and Law and the Columbia Law School ERA Project.

Courts, Constitutionalism, And State Capacity: A Preliminary Inquiry, Madhav Khosla, Mark Tushnet

Faculty Scholarship

Modern constitutional theory deals almost exclusively with the mechanisms for controlling the exercise of public power. In particular, the focus of constitutional scholars lies in explaining and justifying how courts can effectively keep the exercise of public power within bounds. But there is little point in worrying about the excesses of government power when the government lacks the capacity to get things done in the first place. In this Article, we examine relations between the courts, constitutionalism, and state capacity other than through limiting state power. Through a series of case studies, we suggest how courts confront the problem of …

Dual Federalism, Constitutional Openings, And The Convention On The Rights Of Persons With Disabilities, Benjamin Barsky

Faculty Scholarship

The Convention on the Rights of Persons with Disabilities (“CRPD”) represents a historic achievement for the global disability rights movement. Yet, when the U.S. Senate refused to ratify it on December 4, 2012, its influence on American law and policy seemed doomed. The Founders, after all, had conceived of a constitutional vision where the federal government acts as the ultimate arbiter of questions of international policy. Under this vision of “dual federalism”—which dominated how the legal profession understood U.S. involvement in foreign affairs for over a century—only the federal political branches have the power to make and implement international laws …

The Institutions Of Family Law, Clare Huntington

Faculty Scholarship

Family law scholarship is thriving, with scholars using varied methodologies to analyze intimate partner violence, cohabitation, child maltreatment, juvenile misconduct, and child custody, to name but a few areas of study. Despite the richness of this discourse, however, most family law scholars ignore a key tool deployed in virtually every other legal-academic domain: institutional analysis.

This methodology, which plays a foundational role in legal scholarship, focuses on four basic questions. Scholars often begin empirically, identifying the specific legal, social, and economic institutions that shape an area of legal regulation. Beyond descriptive accounts, scholars analyze how authority is and should be …

Rescinding Rights, Joseph Landau

Faculty Scholarship

No abstract provided.

Derailing The Deference Lockstep, Aaron J. Saiger

Faculty Scholarship

Key voices, most prominently that of Justice Neil Gorsuch, have embraced the position that the Chevron doctrine, under which federal courts defer to an agency’s reasonable interpretation of its organizing statutes, is incompatible with the judicial duty to “say what the law is.” These voices include several state supreme courts, which have held (often citing Justice Gorsuch) that state-court deference to state agency interpretations likewise impinges upon the fundamental duty of state judges to decide, on their own, what state law is.

This Article urges states to resist the uncritical importation into state law of antideference arguments based on the …

Grid Reliability Through Clean Energy, Hannah Jacobs Wiseman, Alexandra Klass, Joshua Macey, Shelley Welton

Faculty Scholarship

In the wake of recent high-profile power failures, policymakers and politicians have asserted that there is an inherent tension between the aims of clean energy and grid reliability. But continuing to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme climate-related weather events. These extremes will disrupt the power supply, with impacts rippling far beyond the electricity sector.

This Article shows that much of the perceived tension between clean energy and reliability is a failure of law and governance resulting from the United States’ siloed approach to regulating the electric grid. …

What Law Schools Should Leave Behind, Danielle L. Tully

Faculty Scholarship

No abstract provided.

Introduction: Amr Belongs In The Pandemic Instrument, Susan Rogers Van Katwyk, Kevin Outterson

Faculty Scholarship

In the wake of COVID-19, the World Health Organization established an Intergovernmental Negotiating Body to negotiate a new instrument for pandemic prevention, preparedness, and response. This special issue of the Journal of Law, Medicine & Ethics brings together multidisciplinary scholarship to address the question of whether antimicrobial resistance should be included in this new instrument. Drawing from disciplines including law, anthropology, history, public health, public policy, economics, and veterinary medicine, this special issue explores the inclusion of AMR within the Pandemic Instrument from three perspectives: first, through the lens of global AMR governance, second, from the perspective of technical governance …

A Critique Of Expertise For Health Law, Aziza Ahmed

Faculty Scholarship

A health justice approach requires a progressive critique of expertise. This article considers two recent high-profile cases – the mask mandate and medication abortion -- to understand how we should think the mobilization of expertise in the context of public health law. Following from this, the article offers news ways to better understand how to think of the relationship between health law, expertise, and politics.

Abortion Experts, Aziza Ahmed

Faculty Scholarship

The COVID-19 pandemic, and the overturning of Roe v. Wade,¹ has intensified the fight for access to medication abortion. ² As state governors put emergency orders into place limiting health care provisions to essential services, some also limited access to abortion, designating it a nonessential service. ³ In the face of these challenges, women's health advocates, in keeping with prior advocacy, have called for greater access to medication abortion.⁴ The increased reliance on telemedicine during the COVID-19 pandemic provides new possibilities for the provision of abortion medication that do not rely on a patient engaging in-person at a …

Empathic Solidarity On The Frontline, Julie A. Dahlstrom

Faculty Scholarship

Jacqueline Bhabha's important article, The Imperative of Sustaining (Rather Than Destroying) Frontline Empathic Solidarity for Distress Migrants, highlights the pivotal role that "frontline communities" now play in international migration. Bhabha explores how frontline communities frequently lack the infrastructure, political will, and resources to respond adequately to "distress migrants." Yet, she unearths the potential of "empathic solidarity" to counteract bias and, more optimistically, provide a "welcoming and humanizing experience" to migrants. Indeed, in this hopeful, ambitious article, Bhabha posits that empathic solidarity can play a significant generative role for migrants' rights.

Trust, Brutality, And Human Dignity: How “Partial Birth Abortion” Helps Shape American Biopolitics, George J. Annas

Faculty Scholarship

In this Article, I explore how nearly continuous public rhetorical challenges to abortion in the political realm first led the public and the courts to turn away from a particular abortion procedure (intact dilation and extraction, also known as partial-birth abortion) which political agitators labeled as “barbaric” and then to view physicians who performed abortions not as legitimate professionals, but simply as “abortionists,” and sometimes as evil “Frankensteins.” “Abortionists” use no “medical judgment” and are unworthy of deference by state legislatures, Congress, or the courts when deciding how or when to perform an abortion. The concentration on the welfare of …

The Bi-Partisan Enabling Of Presidential Power: A Review Of David Driesen's The Specter Of Dictatorship: Judicial Enabling Of Presidential Power (2021), Jed Handelsman Shugerman

Faculty Scholarship

In "The Specter of Dictatorship: Judicial Enabling of Presidential Power," David Driesen questions the unitary executive theory and other doctrines of unchecked executive power. He offers primarily a critique of purposivism, a mix of original public meaning and more recent history illuminating those purposes: the Founders’ anti-tyranny purpose and then the rise of European tyranny from Nazi Germany to contemporary Hungary, Turkey, and Poland.
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/="/">This review first focuses on Driesen’s approach to Congress: He identifies the broad congressional delegation of powers to the president as a source of expansive executive power, but he does not entertain that doctrines …

Privacy Pretexts, Rory Van Loo

Faculty Scholarship

Data privacy’s ethos lies in protecting the individual from institutions. Increasingly, however, institutions are deploying privacy arguments in ways that harm individuals. Platforms like Amazon, Facebook, and Google wall off information from competitors in the name of privacy. Financial institutions under investigation justify withholding files from the Consumer Financial Protection Bureau by saying they must protect sensitive customer data. In these and other ways, the private sector is exploiting privacy to avoid competition and accountability. This Article highlights the breadth of privacy pretexts and uncovers their moral structure. Like most pretexts, there is an element of truth to the claims. …

Of Afrofuturism, Of Algorithms, Ngozi Okidegbe

Faculty Scholarship

Algorithms are proliferating in criminal legal structures. The predictions produced by these algorithms inform life-altering decisions around surveillance and incarceration. Their continued use poses a challenge to ongoing racial justice efforts. Contesting how algorithms of today maintain the racial status quo requires a fundamental rethinking of the algorithm project. This essay explores how Afrofuturism can facilitate such a rethinking. It imagines how applying an Afrofuturist paradigm to the adoption, construction, implementation, and oversight of algorithms could radically change the kind of algorithms developed and the purposes for which they are developed. Tapping into this potential offers the chance for members …

Legislating Data Loyalty, Woodrow Hartzog, Neil Richards

Faculty Scholarship

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our …

Market Myopia's Climate Bubble, Madison Condon

Faculty Scholarship

A growing number of financial institutions, ranging from BlackRock to the Bank of England, have warned that markets may not be accurately incorporating climate change-related risks into asset prices. This Article seeks to explain how this mispricing can exist at the level of individual assets drawing from scholarship on corporate governance and the mechanisms of market (in)efficiency. Market actors: 1. Lack the fine-grained asset-level data they need in order to assess risk exposure; 2. Continue to rely on outdated means of assessing risk; 3. Have misaligned incentives resulting in climate-specific agency costs; 4. Have myopic biases exacerbated by climate change …

Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing "Armies Of Compassion" 2.0?, Linda C. Mcclain

Faculty Scholarship

Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it …