Digital Commons Network^™

Climate Chauvinism: Rethinking Loss & Damage, Nadia B. Ahmad, Victoria Beatty

Faculty Scholarship

No abstract provided.

When “Riot” Is In The Eye Of The Beholder: The Critical Need For Constitutional Clarity In Riot Laws, Nancy C. Marcus

Faculty Scholarship

In the twenty-first century, American streets are frequently filled with passionate protest and political dissent. Protesters of diverse backgrounds range from those waving flags or lying on the ground to re-enact police killings to those carrying lit torches or hand-made weapons. This Article addresses how, as between such groups, it may initially seem clear which has a propensity to engage in violent riots, but too often, “rioter” is in the eye of the beholder, with those both regulating and reporting on riots defining the term inconsistently. And ironically, while police brutality is often the subject of protests, non-violent protesters who …

Square Peg Frauds, Miriam H. Baer

Faculty Scholarship

The square-peg fraud is a kind of case that until very recently enjoyed the widespread support of prosecutors, jurists, and the general public. Rather than punishing a scheme that rids a victim of her money or property, the square-peg prosecution has long focused on deprivations of intangible property. For years, enforcement actors have employed this concept to pursue innumerable varieties of corruption.

Nowhere has the square peg been more essential than in the government’s prosecution of higher education scandals. From the Varsity Blues parents who wrongfully secured elite college slots for their children, to the business school dean who shaped …

His Ship Has Sailed—Expelling Columbus From Cultural Heritage Law, Emily T. Behzadi

Faculty Scholarship

Latin America is a region rich with cultural heritage that existed for centuries before its antiquities were looted, trafficked, and sold on the international market. The language used to classify these objects of cultural heritage has been a tool of oppression and erasure. In reference to those objects of historical importance, auction houses, dealers, museums, and even looters themselves consistently use the term “Pre-Columbian.” “Pre-Columbian,” which means “before Columbus,” defines the historical period prior to the establishment of the Spanish culture in the national territories of Mexico, Central America, South America, and the Caribbean islands. In fact, this definition is …

Data Property, Christina Mulligan, James Grimmelmann

Faculty Scholarship

No abstract provided.

Original Public Meaning, Lawrence B. Solum

Faculty Scholarship

“Original public meaning” has become increasingly important in constitutional discourse. This Article investigates the nature of original public meaning in three steps. First, each word in the phrase “original public meaning” is explicated and clarified. The word “original” represents the idea that the meaning of the constitutional text is fixed at the time each provision is framed and ratified. The word “public” signifies that the relevant meaning is ordinary meaning, the understanding of the text conveyed to the public at the time each provision was framed and ratified. The word “meaning” refers to the set of ideas (concepts and propositions) …

Asian American Allyship, Victor C. Romero

Faculty Scholarship

George Floyd's tragic death not only sparked numerous nationwide protests decrying the continued violence against Black people, but also resurrected conversations around the complicity of Asian Americans in Black oppression. Just as officer Tou Thao, a Hmong American, stood idly by while a white officer stepped on Floyd's neck, many Asian Americans have taken positions that run contrary to policies that foster inclusion, or what may be termed "integrative egalitarianism" -- the idea that "governmental programs . . . designed to overcome arbitrary inequalities stemming from accidents of birth are a worthwhile investment in society's future."

Using the Floyd-Thao narrative …

Review Of Rene Van Woudenberg’S "The Epistemology Of Reading And Interpretation.”, Jeffrey C. Goodman

Faculty Scholarship

I here review Rene van Woudenberg’s monograph, The Epistemology of Reading and Interpretation

Contract Production In M&A Markets, Stephen J. Choi, Mitu Gulati, Matthew Jennejohn, Robert E. Scott

Faculty Scholarship

Contract scholarship has devoted considerable attention to how contract terms are designed to incentivize parties to fulfill their obligations. Less attention has been paid to the production of contracts and the tradeoffs between using boilerplate terms and designing bespoke provisions. In thick markets everyone uses the standard form despite the known drawbacks of boilerplate. But in thinner markets, such as the private deal M&A world, parties trade off costs and benefits of using standard provisions and customizing clauses. This Article reports on a case study of contract production in the M&A markets. We find evidence of an informal information network …

Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee

Faculty Scholarship

Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …

Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen-jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys, sampling more than 10,000 people, we find that a majority of Americans views false acquittals and …

A Meditation On The Thirteenth Amendment And Constitutional Redemption, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet

Faculty Scholarship

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …

Any, James J. Brudney, Ethan J. Leib

Faculty Scholarship

Our statute books use the word “any” ubiquitously in coverage and exclusion provisions. As any reader of the Supreme Court’s statutory interpretation docket would know, a large number of cases turn on the contested application of this so-called universal quantifier. It is hard to make sense of the jurisprudence of “any.” And any effort to offer a unified approach—knowing precisely when its scope is expansive (along the “literal-meaning” lines of “every” and “all”) or confining (having a contained domain related to properties provided by contextual cues)—is likely to fail. This Article examines legislative drafting manuals, surveys centuries of Court decisions, …

Criminal Terms, Anna Roberts

Faculty Scholarship

No abstract provided.

Contract Production In M&A Markets, Matthew C. Jennejohn, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Contract law scholarship has devoted considerable attention to understanding how contract terms are designed to properly incentivize parties to fulfill their obligations. Little attention, however, has been paid to the tradeoffs parties make between using widely used boilerplate terms and designing bespoke provisions. In thick markets such as those for corporate or sovereign bonds everyone uses the standard form despite the known drawbacks of boilerplate. But in thinner markets, such as the private deal M&A world, parties trade off costs and benefits of using standard provisions and customizing clauses to their needs. This Article reports on a case study of …

Gender Diversity Cultural Responsiveness Education In Speech-Language Pathology Graduate Programs: A Pilot Survey, Tara Dickinson, Molly Normandin, Rachel W. Mulheren

Faculty Scholarship

Purpose: Gender-affirming voice therapy aims to align a person’s voice and communication with their gender identity. Historically, transgender and gender-nonconforming (TGNC) individuals have been marginalized and continue to face significant healthcare disparities. The goal of this research was to examine the self-perceived preparedness of recent speech-language pathology (SLP) graduates for working with TGNC clients. A survey was developed to include both multiple choice and open-ended questions. Topics included graduate-level training on working with TGNC individuals, perceived preparedness to work with this client population, educational resources sought by respondents, and suggested improvements for SLP graduate programs. Thirty recent (since 2016) SLP …

Three Modalities Of (Originalist) Fiduciary Constitutionalism, Ethan J. Leib

Faculty Scholarship

There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularly originalist varieties of it at the center of recent critiques – it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This paper develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that …

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 …

The Restatement Of Property: The Curse Of Incompleteness, Thomas W. Merrill

Faculty Scholarship

The central feature of the American Law Institute’s Restatement of Property is that it remains incomplete after nearly seventeen volumes produced over nearly ninety years. The principal explanation for this is the proclivities of the Reporters who have been responsible for the first three iterations of this effort. Some of these proclivities, such as a commitment to meticulous research, have been commendable. But the incompleteness of the effort has reduced the influence of the property Restatement, relative to other Restatements like contracts and torts. The chapter concludes with a description of the Fourth Restatement of Property, now underway, and the …

Comparing Agency Costs In Contract Production: Private Equity M&A Versus Corporate And Sovereign Bonds, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

Different areas of transactional practice, such as M&A or high-yield bonds and sovereign bonds, vary in terms of the degree to which they are afflicted by agency problems. In some areas, clients are actively involved in deal making, and in others they are not present until well after the deal is done. If vulnerability to agency problems differs, and these agency problems impact the quality of contract production, one would expect those differences to appear when comparing contract production across practice areas. This Article compares one feature of contract production — the problems of encrusted and sticky boiler-plate — across …

Unexceptional Protest, Amber Baylor

Faculty Scholarship

Anti-protest legislation is billed as applying only in the extreme circumstances of mass-movements and large scale civil disobedience. Mass protest exceptionalism provides justification for passage of anti-protest laws in states otherwise hesitant to expand public order criminal regulation. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These laws might be better described as antiprotest expansions of public order legislation.

While existing critiques of these laws emphasize the chilling effects on …

Debt Textualism And Creditor-On-Creditor Violence: A Modest Plea To Keep The Faith, Eric L. Talley, Sneha Pandya

Faculty Scholarship

In this article, we argue that debt textualism played a key role in laying the groundwork for our present malaise by encouraging contracts to become increasingly bloated, complex, and rigid up to the point of buckling completely. The dense contractual landscape wrought by debt textualism, when freshly populated with a calculating coterie of financial mercenaries, has transformed corporate lending markets into an elaborate and costly contest of Hunger Games-worthy contractual “gotcha” where (a) lenders scour loan agreements for unappreciated loopholes to undercut borrowers; (b) borrowers do the same in an attempt to counteract lenders; and (c) permutated coalitions from …

Private Enforcement In The States, Diego A. Zambrano, Neel Guha, Austin Peters, Jeffrey Xia

Faculty Scholarship

Scholarship on U.S. litigation and civil procedure has scarcely studied the role of private enforcement in the states. Over the past two decades, scholars have established that, almost uniquely in the world, the U.S. often relies on private parties rather than administrative agencies to enforce important statutory provisions. Take your pick of any area in American governance, and you will find private rights of action: environmental law, civil rights, employment discrimination, antitrust, consumer protection, business competition, securities fraud, and so on. In each of these areas, Congress has deliberately empowered private plaintiffs instead of, or in addition to, government agencies. …

There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco

Faculty Scholarship

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …

Originalism-By-Analogy And Second Amendment Adjudication, Joseph Blocher, Eric Ruben

Faculty Scholarship

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United …

Common Good Gun Rights, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Smart Patents, Stephanie Plamondon

Faculty Scholarship

Intellectual property (IP) rights differ from traditional property rights in a crucial respect: the ascertainability of their boundaries. While it is usually a simple task to figure out where a traditional property right (e.g., an ownership right in a piece of land) begins and ends, delineating the metes and bounds of an IP right (e.g., a right to exclude others from practicing an invention as described in a patent claim) can be much more difficult to do.

The indeterminate scope of patent rights in particular leads to many layers of inefficiency. Downstream inventors may find it necessary to engage in …

Biden V. Nebraska: The New State Standing And The (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman

Faculty Scholarship

Chief Justice Roberts’s majority opinion in Biden v. Nebraska does not sufficiently explain how Missouri has standing under established Article III doctrine, nor how the Court approaches the major questions doctrine as a method of statutory interpretation. Clarification can come from other opinions, even other cases entirely, in which Justice’s counterarguments are suggestive of the real arguments underlying the decisions.

MOHELA may have faced a concrete injury from the student debt waiver, but there was no evidence that Missouri would – and the majority had no answer for how Missouri had standing without an injury. A debate over special state …

What Mcculloch V. Maryland Got Wrong: The Original Meaning Of "Necessary" Is Not "Useful", "Convenient", Or "Rational", Steven Gow Calabresi, Elise Kostial, Gary S. Lawson

Faculty Scholarship

McCulloch v. Maryland, echoing Alexander Hamilton nearly thirty years earlier, claimed of the word “necessary” in the Necessary and Proper Clause: “If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports that one thing is convenient, or useful . . . to another.” Modern case law has translated that understanding into a rational-basis test that treats the issue of necessity as all but nonjusticiable; The Supreme Court has never found a congressional law unconstitutional on the ground that it was not “necessary . . . …