Digital Commons Network^™

The Power Side Of The Second Amendment Question: Limited, Enumerated Powers And The Continuing Battle Over The Legitimacy Of The Individual Right To Arms, Nicholas J. Johnson

Faculty Scholarship

Roughly a decade has passed since the Supreme Court’s decision in District of Columbia v. Heller and the battle over the basic legitimacy of the right to keep and bear arms continues. A significant segment of the academy, the Bar, and the judiciary remains skeptical about the constitutional bona fides of the individual right to arms. A primary source of that skepticism is the view pressed most forcefully by professional historians that the Second Amendment had nothing to do with individual self-defense and at best protects an “individual militia right” that has no practical application in modern America. This Article …

From The Myth Of Babel To Google Translate: Confronting Malicious Use Of Artificial Intelligence— Copyright And Algorithmic Biases In Online Translation Systems, Shlomit Yanisky-Ravid, Cynthia Martens

Faculty Scholarship

No abstract provided.

Private Law Statutory Interpretation, Shyamkrishna Balganesh

Faculty Scholarship

While scholars routinely question the normative significance of the distinction between public law and private law, few – if any – question its conceptual basis. Put in simple terms, private law refers to bodies of legal doctrine that govern the horizontal interaction between actors, be they individuals, corporate entities, or on occasion the state acting in its private capacity. Public law on the other hand refers to doctrinal areas that deal with vertical interaction between the state and non-state actors, wherein the state exerts a direct and overbearing influence on the shape and course of the law. The latter is …

The Global Dominance Of European Competition Law Over American Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos, Alex Weaver

Faculty Scholarship

The world’s biggest consumer markets – the European Union and the United States – have adopted different approaches to regulating competition. This has not only put the EU and US at odds in high-profile investigations of anticompetitive conduct, but also made them race to spread their regulatory models. Using a novel dataset of competition statutes, we investigate this race to influence the world’s regulatory landscape and find that the EU’s competition laws have been more widely emulated than the US’s competition laws. We then argue that both “push” and “pull” factors explain the appeal of the EU’s competition regime: the …

Constitutional Reform In Japan, Nobuhisa Ishizuka

Faculty Scholarship

Over seventy years ago it would have seemed inconceivable in the aftermath of a calamitous war that a complete reorientation of Japan into a pacifist society, modeled on Western principles of individual rights and democracy, would succeed in upending a deeply entrenched political order with roots dating back centuries.

The post-war Japanese constitution lies at the heart of this transformation. Drafted, negotiated and promulgated a mere fourteen months after Japan's formal surrender, it has remained a model of stability amidst transformational changes in the domestic and international political landscape. In the seventy-plus years since its adoption, it has not been …

Law's Halo And The Moral Machine, Bert I. Huang

Faculty Scholarship

How will we assess the morality of decisions made by artificial intelli­gence – and will our judgments be swayed by what the law says? Focusing on a moral dilemma in which a driverless car chooses to sacrifice its passenger to save more people, this study offers evidence that our moral intuitions can be influenced by the presence of the law.

On Dancy’S Account Of Practical Reasoning, Joseph Raz

Faculty Scholarship

Dancy's main thesis is that the conclusion of practical reasoning is an action, and indeed that makes the reasoning practical. I trace his argument, suggest improvements to its superficial deficiencies, and conclude that it fails because Dancy misunderstands the nature of reasoning.

Domesticating Guidance, Peter L. Strauss

Faculty Scholarship

This Essay, written for an occasion celebrating the scholarship of Professor William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents — statements of general policy and interpretive rules — that today one generally finds discussed under the rubric “guidance.” These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. § 553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its …

Grounding Originalism, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official …

Originalism And The Law Of The Past, William Baude, Stephen E. Sachs

Faculty Scholarship

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …

Machine Learning At The Patent Office: Lessons For Patents And Administrative Law, Arti K. Rai

Faculty Scholarship

The empirical data indicate that a relatively small increment of additional U.S. Patent and Trademark Office (“Patent Office” or “USPTO”) investment in prior art search at the initial examination stage could be a cost-effective mechanism for improving accuracy in the patent system. This contribution argues that machine learning provides a promising arena for such investment. Notably, the use of machine learning in patent examination does not raise the same potent concerns about individual rights and discrimination that it raises in other areas of administrative and judicial process. To be sure, even an apparently easy case like prior art search at …

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and …

Citizenship Gaps, D. Carolina Nuñez

Faculty Scholarship

The concept of citizenship is undeniably powerful. The terms “citizenship” and “citizen” evoke notions of belonging, participation, equality, civic duty, democracy, and virtually any other term associated with a well-functioning polity. In fact, the term “citizenship” often serves as a shorthand reference to an abstract sense of civic virtue and the right to exercise that civic virtue to shape the polity. Citizenship, as popularly imagined, is a fundamental element of our democracy.

These noble ideals, however, do not necessarily map onto any legal definition of citizenship, nor do they accurately depict the experience of many U.S. citizens who find themselves …

Unity And Diversity In International Law, William W. Park

Faculty Scholarship

The primordial Greek sea-god Proteus could alter his shape at will, notwithstanding that his divine substance remained the same. Reinventing himself by adapting to new circumstances, Proteus still stayed unchanged in essence.

Unlike the sea-god’s protean nature, the substance of international law may well undergo alterations when examined through the telescope of legal culture, or with predispositions of divergent educational backgrounds. For the thoughtful reader, scholarly speculation on such variations will be triggered by reading Is International Law International?. In that book, Professor Anthea Roberts explores a variety of elements in the teaching and practice of international law, viewed …

Artificial Intelligence In The Health Care Space: How We Can Trust What We Cannot Know, Robin Feldman, Ehrik Aldana, Kara Stein

Faculty Scholarship

As Al moves rapidly into the health care field, it promises to revolutionize and transform our approach to medical treatment. The black-box nature of AI, however, produces a shiver of discomfort for many people. How can we trust our health, let alone our very lives, to decisions whose pathways are unknown and impenetrable?

As challenging as these questions may be, they are not insurmountable. And, in fact, the health care field provides the perfect ground for finding our way through these challenges. How can that be? Why would we suggest that a circumstance in which we are putting our lives …

Scattered: The Assimilation Of Sushi, The Internment Of Japanese Americans, And The Killing Of Vincent Chin, A Personal Essay, Frank Wu

Faculty Scholarship

In a personal Essay, Frank H. Wu discusses the acceptance of sushi in America as a means of analyzing the acceptance of Japanese Americans, before, during, and after World War II. The murder of Vincent Chin in Detroit in 1982 is used as a defining moment for Asian Americans, explaining the shared experiences of people perceived as "perpetual foreigners."

Whose Voices Count In Biodiversity Conservation? Ecological Democracy In Biodiversity Offsetting, Redd , And Rewilding, David Takacs

Faculty Scholarship

Ecological democracy seeks environmentally sustainable ends through broad, active democratic participation. What happens when laws fostering participation in environmental decision-making and biodiversity preservation lead to differing results? What is best for biodiversity may not be what for local citizens believe is best. I examine conflicts and congruencies in the context of Biodiversity Offsetting, REDD+ (Reducing Emissions from Deforestation and forest Degradation), and the Rewilding movement. I ask questions that are legal (Who has what legal rights to speak for or against programs that enhance biodiversity?), epistemological (Whose expertise and knowledge matters when scientists and non-scientists don’t agree?), axiological (Are some …

Hands Off “My” Colors, Patterns, And Shapes! How Non-Traditional Trademarks Promote Standardization And May Negatively Impact Creativity And Innovation, Irene Calboli

Faculty Scholarship

This chapter criticizes the protection of non-traditional trademarks (NTTMs) by focusing on three specific examples from the fashion industry: Louboutin, Gucci, and Bottega Veneta. In particular, besides repeating that granting exclusive rights to NTTMs equates in foreclosing competitors and third parties from using any identical and similar product design and products feature, this chapter highlights an additional problem related to the protection of NTTMs. Notably, that, by recognizing and protecting as marks elements that are product design and aesthetic product features, protecting these marks supports a system of intellectual property protection that promotes standardization, rather than creativity and innovation, in …

Bounded Rationality, Paternalism, And Trademark Law, Stacey Dogan

Faculty Scholarship

We don’t need behavioral economics to understand that trade marks can shape consumer preferences in ways that have little to do with objectively measurable differences in product quality. Scholars, judges, economists, and policymakers have long recognized the tendency of strong marks to skew consumer decisions. The concern lies not only in price effects but with the allocative effects of encouraging investment in persuasive advertising, rather than product innovation or similar “productive” pursuits. While informative advertising can benefit consumers, advertising that creates artificial brand-based differences between otherwise identical products appears not only costly to consumers but also socially wasteful.

This Essay …

Diverse Originalism, Christina Mulligan

Faculty Scholarship

No abstract provided.

Democratizing Interpretation, Anya Bernstein

Faculty Scholarship

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact, each funnels power right back to the judge.

These outsourcing approaches show a disconnect between the questions judges pose and the methods they use …

Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum

Faculty Scholarship

This Article provides some introductory thoughts about the relationship between originalist constitutional theory and the proper role of precedent in the American judicial system. The development of these thoughts begins in Part I, which provides a brief introduction to originalism and its principle rival, which is sometimes called “living constitutionalism.” Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. …

Farewell To The Felonry, Alice Ristroph

Faculty Scholarship

No abstract provided.

The Search For Protection For Stateless Refugees In The Middle East: Palestinians And Kurds In Lebanon And Jordan, Susan M. Akram

Faculty Scholarship

Most Arab countries have not ratified the 1951 Refugee Convention/1967 Protocol or the 1954 Convention on the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness has no ratifications in the Middle East. While regional conventions dealing with refugees in the Arab world have been developed, they have been honoured primarily in the breach. Further, many Arab countries do not have domestic laws governing the status of refugees or stateless persons per se, but have applied ad hoc policies to the waves of refugees that have entered and stayed – some for decades – in …

Bridging Rhetoric And Pragmatics With Relevance Theory, Brian N. Larson

Faculty Scholarship

In this chapter, I bridge rhetoric and pragmatics, both of which concern themselves with language-in-use and meaning-making beyond formal syntax and semantics. Previous efforts to link these fields have failed, but Sperber and Wilson’s relevance theory (RT), an approach to experimental pragmatics grounded in cognitive science, offers the bridge. I begin by reviewing Gricean pragmatics and its incompatibility with rhetoric and cognitive science. I then sketch RT, but importantly, I identify revisions to RT that make it a powerful tool for rhetorical analysis, a cognitive pragmatic rhetorical (CPR) theory. CPR theory strengthens RT by clarifying what it means to be …

Lies, Deceit, And Bullshit In Law, Lawrence Solan

Faculty Scholarship

No abstract provided.

A ;-) At The Past And Future Of English, Tiffany Li

Faculty Scholarship

It is always with a certain amount of wry, knowing amusement that we turn to the thoughts of people from the past remarking on the future (that is, our present). It is similar to how slightly older children view slightly younger children. They were so innocent then, those thinkers of the past! Look at what they thought computers could do, what language could be! How adorably naïve! Not like us, we who have put away our childish things.

Of course, the science fiction of our present may someday seem as pathetically misconceived as that of the past. So, too, will …

Federalism And The State Police Power: Why Immigration And Customs Enforcement Must Stay Away From State Courthouses, George Bach

Faculty Scholarship

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This presence has had an adverse effect on domestic violence victims who are immigrants, as they fear encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about the …

Hls 200: A Latina's Story About The Bicentennial, Margaret E. Montoya

Faculty Scholarship

This essay sketches an arc from my childhood to being an Harvard Law School student to my academic work and professional commitments as a law professor and an alumna of Harvard Law School, working to increase access and success in the legal and medical professions for students and faculty of color. I compare aspects of legal and medical education using demographic data as well as some observations about how diverse faculty have transformed the two professions in their respective approaches to and rationales for diversifying the professions and examine the work being done by diverse faculty in law and health. …

Brief For Professors, Lamar, Archer & Cofrin, Llp V. R. Scott Appling As Amicus Curiae, Laura Spitz

Faculty Scholarship

This brief is concerned with the Petitioner’s misinterpretation of §523(a)(2) of the United States Bankruptcy Code, 11 U.S.C. §101, et seq., which wrongly maintains that a false oral statement describing a single asset gives rise to a non-dischargeable debt. This brief shows Congress understood that §523(a)(2) simply re-enacted statutory language already having a completely settled understanding that a statement about a single asset was a “statement respecting financial condition” which must be in writing in order to give rise to a nondischargeable debt. This brief also submits that even if, arguendo, Petitioner were correct that a statement respecting financial condition …