Digital Commons Network^™

Tax Law’S Workplace Shift, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In December 2017, Congress passed major tax reform. The reform included an important new provision that granted independent contractors and other pass-through taxpayers—but not employees or corporations—a potential tax deduction equal to 20% of their qualified business income. Critics have argued that this new deduction (codified at 26 U.S.C. § 199A) could lead to a widespread shift toward independent contractor jobs as workers seek to reduce taxes paid. This shift could cause workers to lose important employee protections and leave them more economically vulnerable.

This Article examines whether this new tax provision will create a large-scale workplace shift and, if …

The Fallacy Of Director Independence, Yaron Nili

Faculty Scholarship

Director independence has become a key cornerstone of the contemporary corporate governance landscape. Over the past few decades, the composition of public firms’ boards of directors in the United States has changed dramatically, shifting towards an increased reliance on directors labeled as “independent.” Courts, regulators, and investors have come to increasingly rely on these independent directors and have made their presence on boards a priority.

However, despite the increased attention, the current system of selecting, anointing, and ensuring director independence is laden with gaps. This Essay highlights three key issues with the current independence framework. First, the current designation and …

Changing The Law To Change Policing: First Steps, Barry Friedman, Brandon L. Garrett, Rachel Harmon, Christy E. Lopez, Tracey L. Meares, Maria Ponomarenko, Christopher Slobogin, Tom R. Tyler

Faculty Scholarship

Recent events have brought to the fore longstanding concerns about the nature of policing in the United States and how it undermines racial equity. As an institution, policing needs significant reconsideration. It is time to rethink the structure and governance of policing. It is also time to engage in a deeper conversation about the meaning of public safety. In the meantime, however, the following is a list of urgently-needed reforms, compiled by a small group of law school faculty, each of whom runs or is associated with an academic center devoted to policing and the criminal justice system. The reforms …

Judging Risk, Brandon L. Garrett, John Monahan

Faculty Scholarship

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process, from policing, to pre-trial, sentencing, corrections, and during parole. As efforts to reduce incarceration have led to adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid and whether they might reinforce rather than reduce bias in criminal justice outcomes. Such work has neglected how decisionmakers use risk-assessment in practice. In this Article, we examine in detail the judging of risk assessment and we study why decisionmakers so often fail to consistently use such …

The Costs And Benefits Of Forensics, Brandon L. Garrett

Faculty Scholarship

Supreme Court Justice Louis Brandeis famously wrote that states can be laboratories for experimentation in law and policy. Disappointingly, however, the actual laboratories that states and local governments run are not a home for experimentation. We do not have adequate information about either the costs or the benefits of forensic testing or allocation of resources. Increased spending and expansion of crime laboratories has perversely accompanied growing backlogs. Poor quality control has resulted in a series of audits and even closures of crime laboratories. In response to these problems, however, some laboratories and some entire states have developed new approaches toward …

Never Waste A Crisis: Anticorruption Reforms In South America, Rachel Brewster, Andres Ortiz

Faculty Scholarship

In the midst of dramatic corruption scandals, South American countries have passed some of the most noteworthy anticorruption legislation in the region’s history. This Article examines the wave of anticorruption reforms and how international law, and in particular anticorruption treaties, has had an important influence on the content of these reforms. Specifically, this Article argues that that the OECD Anti-Bribery Working Group has acted as a political entrepreneur, advocating for specific and meaningful reforms. The influence of international law was critical in ensuring that the reforms adopted during these corruption scandals were robust and that the opportunity presented by these …

Protecting Local News Outlets From Fatal Legal Expenses, Nicole J. Ligon

Faculty Scholarship

As lawsuits targeting the press continue to rise in response to today’s political climate, local news outlets are more likely to find themselves facing unexpected legal expenses. Although the national news media can generally weather the costs of libel lawsuits and subpoena requests, smaller news outlets have gone bankrupt or barely escaped such a fate while paying off legal fees, even when these outlets have ultimately been successful in their legal battles. Because local news outlets serve a critical role in underserved communities and are powerful agents of positive social change, they ought to be protected against fatal legal expenses. …

Covid-19'S Impact On Students With Disabilities In Under-Resourced School Districts, Crystal Grant

Faculty Scholarship

This Essay explores the plight of students with disabilities during the COVID-19 pandemic, particularly those enrolled in under-resourced school districts. To address these ongoing disparities, remediate student regression, and prevent further educational loss, we must act quickly to get resources to the students who need it most and to guide districts towards using these resources effectively. This Essay questions whether federal and state governments are truly committed to creatively examining the current special education framework and adopting solutions that will prioritize expanding access to resources for students with disabilities. These solutions include an immediate advancement of funds to aid states …

The Transparency Of Jail Data, William E. Crozier, Brandon L. Garrett, Arvind Krishnamurthy

Faculty Scholarship

Across the country, pretrial policies and practices concerning the use of cash bail are in flux, but it is not readily possible for members of the public to assess whether or how those changes in policy and practice are affecting outcomes. A range of actors affect the jail population, including: law enforcement who make arrest decisions, magistrates and judges who rule at hearings on pretrial conditions and may modify such conditions, prosecutors and defense lawyers who litigate at hearings, pretrial-service providers who assist in evaluation and supervision of persons detained pretrial, and the custodian of the jail who supervises facilities. …

Commentary On Meritor Savings Bank, Fsb V. Vinson, Trina Jones

Faculty Scholarship

No abstract provided.

What Explains Taxation By Resource-Rich Rebels? Evidence From The Islamic State In Syria, Mara R. Revkin

Faculty Scholarship

Greed-based theories of civil war predict that rebel groups will only engage in taxation and other state-building activities in areas where they lack exploitable resources. However, this prediction is contradicted by the Islamic State’s pattern of taxation across time and space. A new data set mapping seven types of revenue-extracting policies imposed by the Islamic State, a jihadist rebel group, in the 19 Syrian districts that it governed between 2013 and 2017 indicates that these policies were just as prevalent in resource-rich as in resource-poor districts. I propose a new theory that better explains this pattern—a rebel group’s pattern of …

Horizontal Directors, Yaron Nili

Faculty Scholarship

Directors wield increasing influence in corporate America, making pivotal decisions regarding corporate affairs and management. A robust literature recognizes directors’ important role and examines their incentives and performance. In particular, scholars have worried that “busy directors”—those who serve on multiple corporate boards—may face time constraints that affect their performance. Little attention, however, has been paid to directors who sit on the boards of multiple companies within the same industry. This Article terms them “horizontal directors” and spotlights, for the first time, the legal and policy issues they raise. The “horizontal” feature of directorships, a term often used in the antitrust …

Accountability, Secrecy, And Innovation In Ai-Enabled Clinical Decision Software, Arti K. Rai, Isha Sharma, Christina Silcox

Faculty Scholarship

This article employs analytical and empirical tools to dissect the complex relationship between secrecy, accountability, and innovation incentives in clinical decision software enabled by machine learning (ML-CD). Although secrecy can provide incentives for innovation, it can also diminish the ability of third parties to adjudicate risk and benefit responsibly. Our first aim is descriptive. We address how the interrelated regimes of intellectual property law, Food and Drug Administration (FDA) regulation, and tort liability are currently shaping information flow and innovation incentives. We find that developers regard secrecy over training data and details of the trained model as central to competitive …

Digging Into Algorithms: Legal Ethics And Legal Access, Carla L. Reyes, Jeff Ward

Faculty Scholarship

The current discussions around algorithms, legal ethics, and expanding legal access through technological tools gravitate around two themes: (1) protection of the integrity of the legal profession and (2) a desire to ensure greater access to legal services. The hype cycle often pits the desire to protect the integrity of the legal profession against the ability to use algorithms to provide greater access to legal services, as though they are mutually exclusive. In reality, the arguments around protecting the profession from the threats posed by algorithms represent an over-fit in relation to what algorithms can actually achieve, while the visions …

Library Experiences Of Technical Services And Special Collections During The Covid-19 Pandemic At Edith Garland Dupré Library, University Of Louisiana At Lafayette, Zachary G. Stein, Sheryl Curry, Janelle Zetty, Michael Mitchell, Scott Jordan

Faculty Scholarship

The COVID-19 pandemic put a major strain on everyday life. Academic institutions were forced to close, leaving many employees to resort to teleworking. Academic libraries were put in an unusual position, as they strove to provide access to library materials and services, despite limited to no access to the actual sites. This proved to be especially tricky for technical services and special collections departments, which heavily rely on being present at libraries. Therefore, these departments needed to develop solutions that would allow them to continue performing their duties while adhering to stay-at-home orders. With careful preparation and frequent communication, the …

Contributions To The Intellectual Life Of The Institution And The Profession, Janet Sinder

Faculty Scholarship

No abstract provided.

Disgorging Harvey Weinstein's Salary, Jessica K. Fink

Faculty Scholarship

Harvey Weinstein dramatically altered the way that people view sexual harassment in the workplace. While workplace sexual harassment is far from a new phenomenon – with many perpetrators of such harassment (including Weinstein himself) having gotten away with this misbehavior for decades – the exposure of Weinstein’s misdeeds opened the floodgates, leading countless women from a variety of work environments to share their own experiences with sexual harassment at work. As the #MeToo movement has continued to occupy the headlines, workplace harassment has begun to seem as ubiquitous as it is distressing.

This intensified spotlight on sexual harassment has exposed …

Abortion Regulation As Compelled Speech, Laura Portuondo

Faculty Scholarship

No abstract provided.

Guns In The Private Square, Cody Jacobs

Faculty Scholarship

The regulation of guns has been one of the most hotly debated public policy issues in the United States throughout the country’s history. But, up until recently, it has always been just that — a debate about public policy. Two recent developments have changed the landscape and moved the debate about publicly carrying firearms from the realm of public policy, to the realm of private decision-making and private law. First, laws related to publicly carrying firearms have been dramatically loosened throughout the United States to the point that, in the vast majority of states, anyone who is legally allowed to …

Bipa: The Most Important Biometric Privacy Law In The Us?, Woodrow Hartzog

Faculty Scholarship

In May 2020, Clearview AI abruptly ended all service contracts with all non-law enforcement entities based in Illinois. The reason? It hoped to avoid an injunction and potentially large damages under one of the most important privacy laws in America: the Illinois Biometric Information Privacy Act (BIPA).

Automation: A Guide For Policymakers, James Bessen, Maarten Goos, Anna Salomons, Wiljan Van Den Berge

Faculty Scholarship

Advancing technologies are increasingly able to fully or partially automate job tasks. These technologies range from robotics to machine learning and other forms of artificial intelligence, and are being adopted across many sectors of the economy. Applications range from selecting job applicants for interviewing, picking orders in a warehouse, interpreting X-rays to diagnose disease, and automated customer service. These developments have raised concern that workers are being displaced by advancing automation technology. Indeed, over 18 recent studies predict job losses from new automation technologies, including some predictions of massive job losses (Winick 2018). A large literature on worker displacement [1] …

First Man And Second Woman: Reflections On The Anniversaries Of Apollo 11 And Cruzan, George J. Annas

Faculty Scholarship

THE United States Supreme Court's decision in Cruzan v. Director, Missouri Department of Health marks its thirtieth anniversary in 2020.' This follows closely after the fiftieth anniversary of the Apollo 11 moon landing.² Anniversaries provide an opportunity for reflection and to gain perspective. We can, I suggest, gain deeper insights regarding human life and death by considering these two anniversaries together. Apollo 11 may seem far from Nancy Cruzan-but the discovery of disturbing details about the death of Neil Armstrong, the first man on the moon, is a productive introduction to the topic of death in a modern American …

Understanding Violent-Crime Recidivism, J. J. Prescott, Benjamin David Pyle, Sonja B. Starr

Faculty Scholarship

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration. Serious efforts to shrink the large footprint of the prison system will need to recognize this fact. This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic. Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars. Excluding them from protective measures will deeply undermine those …

Me Too? Incentivising States To Adopt Consent-Based Sex Education, Seth Reiner

Faculty Scholarship

In November 2018, Columbia University published a study showing that students who received formal sex education before entering college that included training in refusing unwanted sex were half as likely to be assaulted as those who had not. That study claims to be the first to research sex education’s effect on sexual violence instead of its impact on pregnancy or HIV prevention. A different study, conducted by Planned Parenthood in 2015, shows confusion around the definition of sexual consent itself: it found that 19% of people strongly agreed that not saying “no” indicated consent for more sexual activity, whereas 20% …

Racial Purges, Robert L. Tsai

Faculty Scholarship

In a two-year period, 1885-86, over 168 communities in America forcibly expelled Chinese residents from their midst. This essay, inspired by historian Beth Lew-Williams's book, THE CHINESE MUST GO, investigates the nineteenth-century purges of Chinese residents that occurred throughout the American west. I make three arguments. First, these acts of racial and political terror complicate our understanding of racial violence in America. Many of the actions were denounced, but they were also surprisingly effective in forcing business and political leaders to support the indefinite suspension of Chinese migration. Perpetrators faced almost no legal repercussions, and unlike for freed persons, racial …

A Public Health Law Path For Second Amendment Jurisprudence, Michael Ulrich

Faculty Scholarship

The two landmark gun rights cases, District of Columbia v. Heller and McDonald v. City of Chicago, came down in 2008 and 2010, respectively. In the decade that has followed, two things have become abundantly clear. First, these cases provide little clarity about the nature and scope of Second Amendment rights, resulting in chaos and circuit splits in the lower courts. Second, growing empirical evidence has revealed that, in the background of the debate on individual constitutional rights, a serious gun violence epidemic is intensifying around the country. In one corner, gun rights advocates worry that increased firearm regulation will …

State Handgun Purchase Age Minimums In The Us And Adolescent Suicide Rates: Regression Discontinuity And Difference-In-Differences Analyses, Julia Raifman, Elysia Larson, Colleen L. Barry, Michael Siegel, Michael Ulrich, Anita Knopov, Sandro Galea

Faculty Scholarship

Objective To evaluate the association between US state policies that establish age 18 or 21 years as the minimum purchaser age for the sale of handguns and adolescent suicide rate.

Design Regression discontinuity and difference-in-differences analyses.

Setting 46 US states without policy changes between 2001 and 2017; Missouri and South Carolina, which lowered the age for handgun sales in 2007 and 2008, respectively; and West Virginia and Wyoming, which increased the age for handgun sales in 2010.

Participants Adolescents aged 13 to 20 years(554 461 961 from 2001 to 2017) in the regression discontinuity analysis, and adolescents aged 18 …

Rethinking The Impact Of Third-Party Funding On Access To Civil Justice, Victoria Sahani

Faculty Scholarship

Third-party funding indisputably puts a gold-weighted thumb on the scales of justice in favor of funded parties for two main reasons: (1) funded cases already tend to be calculable winners on the merits, and (2) third-party funders seeking a profit generally do not fund cases that are demonstrably likely to lose on the merits. Thus, we are left with both the promising potential for winners to be more likely to win with third-party funding and the alarming realization that not all winners are offered this same chance. This provokes a larger, fundamental question: If funders are picking winners among the …

Cyber Mobs, Disinformation, And Death Videos: The Internet As It Is (And As It Should Be), Danielle K. Citron

Faculty Scholarship

Fiction and visual representations can alter our understanding of human experiences and struggles. They help us understand human frailties and suffering in a visceral way. Nick Drnaso’s graphic novel Sabrina does that in spades. In Sabrina, a woman is murdered by a misogynist, and a video of her execution is leaked. Conspiracy theorists deem her murder a hoax. A cyber mob smears the woman’s loved ones as crisis actors, posts death threats, and spreads their personal information. The attacks continue until a shooting massacre redirects the cyber mob’s wrath to other mourners. Sabrina captures the breathtaking velocity of disinformation online …

Is Medicare For All The Answer? Assessing The Health Reform Gestalt As The Aca Turns 10, Nicole Huberfeld

Faculty Scholarship

As presidential candidates debate health reform, the expression “Medicare for All” (“M4A”) is on repeat, yet few appear to understand precisely what Medicare is or what M4A would mean. Even more striking is that Americans are vigorously debating health reform when the ACA – President Obama’s signature legislation and a health reform effort on a scale not seen in decades – turns 10 on March 23.

The ACA pioneered universal coverage, but it also ratcheted up health care complexity by building new scaffolding around an old foundation. This fragmented landscape has been exacerbated by a crazy quilt of implementation crafted …