Digital Commons Network^™

Determinants Of Socially Responsible Ai Governance, Daryl Lim

Faculty Scholarship

The signing of the first international AI treaty by the United States, European Union, and other nations marks a pivotal step in establishing a global framework for AI governance, ensuring that AI systems respect human rights, democracy, and the rule of law. This article advances the concepts of justice, equity, and the rule of law as yardsticks of socially responsible AI—from development through deployment—to ensure that AI technologies do not exacerbate existing inequalities but actively promote fairness and inclusivity. Part I explores AI’s potential to improve access to justice for marginalized communities and small and medium-sized law firms while scrutinizing …

Racial Disparities In Crime-Based Removal Proceedings, Emily Ryo, Ian Peacock, Weston Ley, Christopher Levesque

Faculty Scholarship

Whether and to what extent racial minorities experience harsher treatment or face worse outcomes in court are questions of fundamental importance for any justice system. Questions of racial inequality are especially salient in the context of removal proceedings that are triggered by immigrants’ criminal history. Many individuals in crime-based removal proceedings are immigrants of color who face a host of legal disadvantages that are tantamount to double penalties for the same crime for which they have already been punished through the criminal justice system. This Article offers, for the first time, systematic empirical analyses of crime-based removal proceedings decided between …

Social Justice Unionism: Intersectionality In The Twenty-First Century Workplace, Shirley Lin

Faculty Scholarship

No abstract provided.

Replacing This Old House: Certifying And Regulating New Legal Services Providers, Bruce A. Green, M. Ellen Murphy

Faculty Scholarship

This Article comprehensively examines the decisions that state courts must make, and have made to date, when they certify and regulate new categories of legal services providers: those individuals other than lawyers who are authorized to provide discrete legal services that the laws governing the unauthorized practice of law (UPL) generally reserve to lawyers.

In certifying new categories of legal services providers, courts must make an array of interrelated decisions. These include decisions about the rules for educational and testing requirements, the scope of services that legal services providers may offer, the conditions under which they may provide services, and …

Reimagining Legal Education: Aligning Curriculum And Pedagogy With The Nextgen Bar Exam, Titichia Jackson

Faculty Scholarship

No abstract provided.

Novel Sex Work Anti-Discrimination Protections, Chi Adanna Mgbako, Christine Eldabh, Katie Falk, Emma Pennie

Faculty Scholarship

Sex workers throughout the world experience ubiquitous and acute discrimination in every facet of their lives due to deeprooted stigma. Societal fear and hatred of sex workers often lead to their exclusion from healthcare services, financial institutions, and accessible housing, as well as their marginalization by the carceral state, family law systems, media, and politicians. Between 2022 and 2024, the Australian jurisdictions of the Northern Territory, Queensland, and Victoria passed groundbreaking legislation codifying novel anti-discrimination protections for sex workers. These laws are the first in the world to explicitly protect sex workers against discrimination in accommodation, employment, government services, and …

Book Review: Biglaw's Race Problem, Angela Onwuachi-Willig, Anthony V. Alfieri

Faculty Scholarship

Ever since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, …

Predicting Federal Third-Party Funding Regulation, Victoria Sahani

Faculty Scholarship

Third-party funding is a global phenomenon, although regulatory enforcement is local. Regulatory approaches vary widely from country to country and within countries, especially in federal legal systems, such as Canada, Australia, and the United States. The United States federal government is learning about third-party funding with an eye toward potential future regulation. Congress has been investigating funding, as evidenced by testimony in congressional hearings, proposed federal legislation, and a nonpartisan study on third-party funding by the Government Accountability Office. In addition, after more than a decade of observation, the United States Federal Civil Rules Advisory Committee recently formed a committee …

Transcultural Courts, Scott Dodson

Faculty Scholarship

Although countries commonly divide their judicial systems along geographic and subject-matter divisions, the idea of creating specialized courts based on culture has not taken root. Instead, courts are generally transcultural. Functionally, the lack of culture-specific courts is surprising because cultural diversity within a population often creates legally significant distinctions. Focusing primarily on the U.S. judicial system, but incorporating attributes of other judicial systems where appropriate, this paper offers three explanations for why courts tend to eschew cultural specializations in favor of transculturality. It also hazards some opportunities for experimenting with cultural specializations in discrete areas of the law that most …

Juror Privacy Via Anonymity, Jayne S. Ressler

Faculty Scholarship

No abstract provided.

Why Mlp Legal Care Should Be Financed As Health Care, William M. Sage, Keegan D. Warren

Faculty Scholarship

Medical-legal partnership (MLP) integrates the unique expertise of lawyers into collaborative clinical environments. MLP teams meet the needs of individual patients while also detecting structural problems at the root of health inequities and advancing solutions at the institutional, community, and system levels. Yet MLPs today operate in limited settings and survive on scant budgets. Expanding their impact requires secure funding. Financing MLPs as health care can do the following: (1) help address inequity at the point of care; (2) enable expert diagnosis and treatment of nonmedical drivers of health; (3) enhance team-based practice in health care organizations; (4) offer another …

The Subfederal In Immigration Polarization, Huyen Pham, Pham Hoang Van

Faculty Scholarship

The framing of subfederal immigration regulation as a red- blue divide is conventional wisdom. As more states, cities, and counties have engaged in the regulation of immigrants within their jurisdictions, it is not particularly surprising to see deep-red states like Texas enacting laws that restrict the rights of immigrants in their jurisdictions (e.g., requiring police within the state to honor detainers issued by United States Immigration and Customs Enforcement (ICE)) or deep-blue states like California enacting laws that protect immigrants’ rights (e.g., issuing driver’s licenses without requiring proof of lawful immigration status).

Rather than only reflecting national polarization on immigration …

Aligning United States Law With International Norms Would Remove Major Barriers To Protection In Gender Claims, Karen B. Musalo Prof.

Faculty Scholarship

The protection of women and girls fleeing gender-based harms has been controversial in the United States (US), with advances followed by setbacks. The US interpretation of particular social group and its nexus analysis, both of which diverge from guidance by the United Nations High Commissioner for Refugees (UNHCR), is the most significant barrier to protection. It has become almost impossible for women and girls to rely upon the particular social group ground because of current requirements that social groups not only be defined by immutable or fundamental characteristics, but also be socially distinct and have particularity. Establishing nexus is also …

Consumer Law For Gen Z Law Students, Neil Sobol

Faculty Scholarship

Whether they are consumers, representing consumers, or advising clients dealing with consumers, law school graduates will inevitably confront numerous consumer law issues. Moreover, most students entering law school are members of Generation Z and face a new wave of consumer laws arising from the 2007–2009 recession and the rapid growth of new technologies. Clickwrap agreements, email spoofing, cybercrimes, cryptocurrencies, fintech, identity theft, online disparagement, data privacy, artificial intelligence, robocalling, and autonomous vehicles are among the evolving topics in modern consumer law. Despite the growth in consumer law concerns, many law students have limited access to consumer law options, with almost …

Nudging Improvements To The Family Regulation System, Joshua Gupta-Kagan

Faculty Scholarship

The Restatement of Children and the Law features a strong endorsement of parents’ rights to the care, custody, and control of their children because parents’ rights are generally good for children. Building on that foundation, the Restatement’s sections on child neglect and abuse law would resolve several jurisdictional splits in favor of greater protections for family integrity, thus protecting more families against the harms that come from state intervention, especially state separation of parents from children.

But a close read of the Restatement shows that it only goes so far. It is not likely to significantly reduce the wide variation …

Teaching Critical Use Of Legal Research Technology, Jennifer E. Chapman

Faculty Scholarship

No abstract provided.

Implementing Aba Standard 303(B)(3): Positive Legal Education Through A Community Of Inquiry, Joshua Aaron Jones

Faculty Scholarship

According to William Adams, Executive Director of Legal Education and Bar Admissions at the American Bar Association (ABA), “Full implementation [of 303(b)(3)] [was] expected by 2023.” The revised Standard requires that law schools provide “substantial opportunities” for professional identity development (PID). Though the ABA’s Standards and Rules of Procedure for Approval of Law Schools and the related interpretations allow flexibility, the ABA left law schools without detailed guidance; without a unified professional identity concept, law schools across the country will implement a patchwork of programs, some stronger than others, that may curtail a global strengthening of the profession. Fortunately, scholars …

Mutiny For A Bounty, Emily Strauss, Joseph A. Grundfest

Faculty Scholarship

Experience teaches that attorneys may violate duties of confidentiality and trust to pursue personal gain. Multiple insider trading, embezzlement, and fraud prosecutions prove the point. The Dodd-Frank Act of 2010 establishes a bounty regime whereby certain whistleblowers are eligible for awards of 10%–30% of Securities and Exchange Commission (“SEC”) enforcement recoveries exceeding $1 million. Since its inception, this program has paid at least 207 whistleblowers more than $1 billion. The Commission’s bounty program thus may be a meaningful inducement to breach privilege.

The SEC asserts that its whistleblower authority preempts state law and that it can accept attorney–client privileged information. …

A Framework For Applying Copyright Law To The Training Of Textual Generative Artificial Intelligence, Art Neill, James Thomas, Erika Lee

Faculty Scholarship

The rise in the popularity of consumer-facing generative artificial intelligence (GenAI) has created considerable confusion and consternation among some copyright owners. The ability to automate the generation of original works based on user input is considered by some copyright holders to have been made possible by large-scale direct infringement by OpenAI, Microsoft, and other major GenAI developers. This article explores the application of copyright law to the training of OpenAI’s ChatGPT, specifically focusing on the legal issues surrounding the unauthorized use of copyrighted textual works in the GenAI training process.

The large language models (LLMs) that drive ChatGPT and similar …

Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib

Faculty Scholarship

This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.

Immigration Detention Abolition And The Violence Of Digital Cages, Sarah R. Sherman-Stokes

Faculty Scholarship

The United States has a long history of devastating immigration enforcement and surveillance. Today, in addition to more than 34,000 people held in immigration detention, Immigration and Customs Enforcement (“ICE”) surveils an astounding 296,000 people under its “Alternatives to Detention” program. The number of people subjected to this surveillance has grown dramatically in the last two decades, from just 1,339 in 2005. ICE’s rapidly expanding Alternatives to Detention program is marked by “digital cages,” consisting of GPS-outfitted ankle shackles and invasive phone and location tracking. Government officials and some immigrant advocates have categorized these digital cages as a humane “reform”; …

How Bad Is Bad Enough?: Gatekeeping A Tenant's Right To 100% Habitable Housing, Sean Ahern

Faculty Scholarship

Tenants seeking to defend against eviction and to correct substandard conditions in their homes are hamstrung. Even in jurisdictions with “progressive housing policies,” there are steep doctrinal hurdles placed in front of tenants who try to establish a breach of the warranty of habitability and to defend against eviction. Such obstacles are baked directly into the judicial system and the standards that the judiciary applies in practice. While there are many systemic barriers to tenants vindicating themselves of the right to a fully habitable home, the most perniciously overlooked offender is a “substantiality” standard which trial court judges use to …

Swimming Together Upstream: How To Align Mlp Services With U.S. Healthcare Delivery, William M. Sage, Keegan D. Warren

Faculty Scholarship

Medical-legal partnership (MLP) embeds attorneys and paralegals into care delivery to help clinicians address root causes of health inequities. Notwithstanding decades of favorable outcomes, MLP is not as well-known as might be expected. In this essay, the authors explore ways in which strategic alignment of legal services with healthcare services in terms of professionalism, information collection and sharing, and financing might help the MLP movement become a more widespread, sustainable model for holistic care delivery.

The Futures Of Law, Lawyers, And Law Schools: A Dialogue Authors, Sameer M. Ashar, Benjamin H. Barton, Michael J. Madison, Rachel F. Moran

Faculty Scholarship

On April 19 and 20, 2023, Professors Bernard Hibbitts and Richard Weisberg convened a conference at the University of Pittsburgh School of Law titled “Disarmed, Distracted, Disconnected, and Distressed: Modern Legal Education and the Unmaking of American Lawyers.” Four speakers concluded the event with a spirited conversation about themes expressed during the proceedings. Distilling a lively two days, they asked: what are the most critical challenges now facing United States legal education and, by extension, lawyers and the communities they serve? Their agreements and disagreements were striking, so much so that Professors Hibbitts and Weisberg invited those four to extend …

A Perfect Storm For Legal Education: Privatization, Polarization, And Pedagogy, Rachel F. Moran

Faculty Scholarship

Today, the legal profession faces new challenges to its integrity and legitimacy due to technological change, rising political polarization, and a stratified bar. In this Article, I first explore how technological innovations are undermining lawyers’ claims to a unique monopoly based on expert professionalism. These technologies are designed to transform routinized law practice in ways that improve efficiency. With little focus on attorneys’ obligations to serve the greater good, technology entrepreneurs emphasize practical advantages over traditional forms of representation. These proponents promise reduced costs and superior results through a single-minded commitment to market dynamics. Those promises in turn depend on …

Reporte Final Del Estudio Del "Proyecto De Reintegración Mexicana", Guillermo J. Garcia Sanchez, Sonia Hernandez, Luz E. Herrera, Angela D. Morrison, Huyen Pham, Nancy Plankey-Videla

Faculty Scholarship

El fenómeno de los mexicanos que estan regresando a México después de una estadía prolongada en Estados Unidos es cada vez más importante. Aunque las estimaciones para el período de 2014 a 2019 muestran que más mexicanos han migrado a Estados Unidos de los que se fueron, la migración neta todavía está muy por debajo del pico de migración neta de 1995 a 2000. En el período de 2014-2019, la migración neta de mexicanos a Estados Unidos era de tan solo 160,000 versus 2.3 millones durante el periodo de 1995 a 2000. Entre 2005 y 2014, Estados Unidos experimentó una …

What Do Law Professors Believe About Law And The Legal Academy?, Eric H. Martinez, Kevin Tobia

Faculty Scholarship

Legal scholarship is replete with debates about competing legal theories: textualism or purposivism; formalism or realism; natural law or positivism; prison reform or abolition; universal or culturally specific human rights? Despite voluminous literature about these debates, great uncertainty remains about which views experts endorse. This Article presents the first dataset of American law professors’ views about legal theory. A study of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding debates.

Law professors also debate questions about the legal academy. These include descriptive questions: Which subjects (for example, constitutional law) and methods (for example, law …

"They Don't Know What They Don't Know": A Study Of Diversion In Lieu Of Lawyer Discipline, Leslie C. Levin, Susan Saab Fortney

Faculty Scholarship

Lawyer misconduct can have devastating consequences for clients. But what is the appropriate regulatory response when lawyers make less serious mistakes? For almost thirty years, jurisdictions have offered some lawyers diversion in lieu of discipline. Diversion is intended to help educate lawyers or treat those with impairments so that they do not reoffend. Yet remarkably little is known about how diversion operates, whether it is used appropriately, and how well it seems to work. This Article addresses these questions. It draws on the limited published data and on interviews with disciplinary regulators in twenty-nine jurisdictions about their use of diversion. …

Even Lawyers Do Not Like Legalese, Eric H. Martinez, Francis Mollica, Edward Gibson

Faculty Scholarship

Significance

Facilitators And Barriers To Reunification Among Housing Unstable Families, Robert L. Fischer, David Crampton

Faculty Scholarship

Housing unstable families with child welfare system involvement face multiple challenges to successfully reunifying with their families. This explanatory qualitative study followed up on findings from a county-sponsored Pay for Success (PFS) RCT. The study focused on understanding the facilitators and barriers to reunification, bringing together the perspectives of a random sample of 16 housing-unstable caregivers whose children were in foster care, their PFS program workers, and their child welfare caseworkers. We conducted in-depth, in-person interviews with 52 participants. Major facilitators of reunification included strong client motivation, PFS program workers empowering and advocating for clients, the program's ability to meet …