Digital Commons Network^™

Blue States, Red States: The United States?, Catherine Powell

Faculty Scholarship

No abstract provided.

Mass Digitization Of Chinese Court Decisions: How To Use Text As Data In The Field Of Chinese Law, Benjamin L. Liebman, Margaret Roberts, Rachel E. Stern, Alice Z. Wang

Faculty Scholarship

Since 2014, Chinese courts have placed tens of millions of court judgments online. We analyze the promise and pitfalls of using this new data source, highlighting takeaways for readers facing similar issues using other collections of legal texts. Drawing on 1,058,986 documents from Henan Province, we identify problems with missing data and call on scholars to treat variation in court disclosure rates as an urgent research question. We also outline strategies for learning from a corpus that is vast and incomplete. Using a topic model of administrative litigation in Henan, we complicate conventional wisdom that administrative lawsuits are an extension …

Election 2020 Sees Record $11 Billion In Campaign Spending, Mostly From A Handful Of Super-Rich Donors, Richard Briffault

Faculty Scholarship

Total spending in the 2020 federal elections is projected to set a new record of almost US$11 billion by November.

When adjusted for inflation, that’s over 50% higher than 2016 election spending. This year’s federal election spending – for the presidency, the Senate and the House of Representatives – is on track to be double what it was in 2008.

The surge in campaign spending is striking. But my research on campaign finance regulation suggests the volume of election spending is not the main problem with the U.S. campaign finance system.

The real challenge for American democracy is where this …

All Faiths & None: A Guide To Protecting Religious Liberty For Everyone, Elizabeth Reiner Platt, Katherine M. Franke, Keisha E. Mckenzie, Katharine Rhodes Henderson

Faculty Scholarship

Religious liberty rights have been immeasurably damaged over the past several years — often in the name of protecting religious liberty.

Government officials have embraced Islamophobic policies and rhetoric; shut the door on refugees fleeing religious persecution; elevated the religious rights of their political allies over the rights — religious and otherwise — of other communities; used religion as a tool of economic deregulation; and denigrated the beliefs of religious minorities, atheists, and religious progressives.

To achieve true freedom for those of all faiths and none, a complete overhaul of religious liberty policy, and a new understanding of what this …

Letter To Council Members Regarding Council Draft 4, Jane C. Ginsburg

Faculty Scholarship

We understand that the ALI Council will consider Council Draft 4 (CD4) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on January 16-17, 2020. We appreciate the opportunity to provide comments on CD4. We hope that you will give careful consideration to these comments and send CD4 back to the Reporters to address the problems we describe below.

Antitrust & Corruption: Overruling Noerr, Tim Wu

Faculty Scholarship

We live in a time when concerns about influence over the American political process by powerful private interests have reached an apogee, both on the left and the right. Among the laws originally intended to fight excessive private influence over republican institutions were the antitrust laws, whose sponsors were concerned not just with monopoly, but also its influence over legislatures and politicians. While no one would claim that the antitrust laws were meant to be comprehensive anti-corruption laws, there can be little question that they were passed with concerns about the political influence of powerful firms and industry cartels.

Since …

A United States Perspective On Digital Single Market Directive Art. 17, Jane C. Ginsburg

Faculty Scholarship

To a US appraiser, article 17 of the Digital Single Market Directive suggests the EU has learned from American mistakes (and from its own) in the allocation of internet intermediaries’ liability for hosting and communicating user-posted content. Before the DSM Directive, art. 14 of the 2000 eCommerce Directive set out a notice-and-takedown system very similar to the regime provided in 17 U.S.C. section 512(c). Both regimes replaced the normal copyright default, which requires authorization to exploit works, with a limitation on the liability of service providers who complied with statutory prerequisites. Because the limitation ensured that service providers would not …

Covid-19 And Lgbt Rights, Suzanne B. Goldberg

Faculty Scholarship

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.

This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) …

Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe

Faculty Scholarship

The WTO is looking for a new Director-General (DG). What does the trade community think is needed? This paper reports on the results of an expert survey undertaken as part of a research project on global trade governance at the European University Institute to solicit views on what WTO members and the international trade community consider the most important attributes of candidates for the position, as well as views on the substantive policy and institutional reform priorities confronting the WTO – and thus the new DG. The results suggest strong support for someone with managerial and political experience, and a …

A Better Financing System? The Death And Possible Rebirth Of The Presidential Nomination Public Financing Program, Richard Briffault

Faculty Scholarship

In the spring of 1974, the 31-year-old junior Senator from Delaware, Joseph R. Biden, Jr., published a law review article in which he decried the traditional system of privately financed election campaigns. Private financing, Senator Biden contended, “affords certain wealthy individuals or special interest groups the potential for exerting a disproportionate influence over both the electoral mechanism and the policy-making processes of the government.” Moreover, Biden urged, private funding poses an obstacle to the candidacies of “individuals of moderate means” and so was at odds with the “concept of American democracy [that] presumes that all citizens, regardless of access to …

Seeing Transparency More Clearly, David E. Pozen

Faculty Scholarship

In recent years, transparency has been proposed as the solution to, and the cause of, a remarkable range of public problems. The proliferation of seemingly contradictory claims about transparency becomes less puzzling, this essay argues, when one appreciates that transparency is not, in itself, a coherent normative ideal. Nor does it have a straightforward instrumental relationship to any primary goals of governance. To gain greater purchase on how transparency policies operate, scholars must therefore move beyond abstract assumptions and drill down into the specific legal, institutional, historical, political, and cultural contexts in which these policies are crafted and implemented. The …

The Covid-19 Pandemic And Business Law: A Series Of Posts From The Oxford Business Law Blog, Gert-Jan Boon, Markus K. Brunnermeier, Horst Eidenmueller, Luca Enriques, Aurelio Gurrea-Martínez, Kathryn Judge, Jean-Pierre Landau, Marco Pagano, Ricardo Reis, Kristin Van Zwieten

Faculty Scholarship

The COVID-19 Pandemic is the biggest challenge for the world since World War Two, warned UN Secretary General, António Guterres, on 1 April 2020. Millions of lives may be lost. The threat to our livelihoods is extreme as well. Job losses worldwide may exceed 25 million.

Legal systems are under extreme stress too. Contracts are disrupted, judicial services suspended, and insolvency procedures tested. Quarantine regulations threaten constitutional liberties. However, laws can also be a powerful tool to contain the effects of the pandemic on our lives and reduce its economic fallout. To achieve this goal, rules designed for normal times …

Lessons From The Prekindergarten Movement, Clare Huntington

Faculty Scholarship

I am deeply grateful for the ambition of Nancy Dowd’s book, Reimagining Equality. Professor Dowd offers a powerful and essential vision for addressing the entrenched inequalities that pervade our society. And she is unapologetic about the breadth and depth of change needed to achieve this vision. I do not want to distract from her inspiring call for a New Deal for Children by introducing questions about political feasibility, but thinking about what is possible in the here and now is a useful place to begin the conversation about systemic change.

So, what is possible in this era of Trump? …

Legislatures, Executives And Political Control Of Government, Gillian E. Metzger

Faculty Scholarship

This chapter examines how political control over government is exercised today in the UK, the US, and France, focusing on control of the executive branch by the legislature and control of the administrative executive by the political executive. These three jurisdictions were chosen because they are paradigmatic examples of different political regimes: parliamentarism, separation of powers presidentialism, and semi-presidentialism. In theory, these different institutional structures should affect how political control is understood and wielded. In the traditional Westminster parliamentary model, for example, the government is formed from the leadership of the majority party in Parliament and it is the government …

Money Matters But It Doesn’T Decide: The Case Of Michael Bloomberg’S Presidential Campaign, Richard Briffault

Faculty Scholarship

Michael Bloomberg spent nearly a billion dollars in personal wealth on an unsuccessful bid for the US presidency. While personal spending is not limited by campaign finance laws, self-funded candidates often find it difficult to win elections.

Copyright And Economic Viability: Evidence From The Music Industry, Kristelia A. Garcia, James Hicks, Justin Mccrary

Faculty Scholarship

Copyright provides a long term of legal excludability, ostensibly to encourage the production of new creative works. How long this term should last, and the extent to which current law aligns with the economic incentives of copyright owners, has been the subject of vigorous theoretical debate. We investigate the economic viability of content in a major content industry — commercial music — using a novel longitudinal dataset of weekly sales and streaming counts. We find that the typical sound recording has an extremely short commercial half-life — on the order of months, rather than years or decades — but also …

Executive Overreach And Underreach In The Pandemic, Kim Lane Scheppele, David E. Pozen

Faculty Scholarship

The pandemic that convulsed the globe in 2020 was long foretold but still surprising to many. Within a few months of its appearance, COVID-19 became one of the leading causes of death worldwide. Governments struggled at first to comprehend what was happening – and then reacted in very different ways. Most political leaders followed the advice of epidemiologists. Many declared states of emergency. A few pursued autocratic agendas. And some did almost nothing.

During emergencies, constitutional scholars normally worry about executive aggrandizement at the expense of human rights and democratic values. Emergencies often require national executives to act quickly and …

Cyberattacks And The Constitution, Matthew C. Waxman

Faculty Scholarship

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers – and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.

The Art Of Access: Innovative Protests Of An Inaccessible City, Elizabeth F. Emens

Faculty Scholarship

This Essay considers inaccessible New York City through the lens of artistic production. The landscape of disability art and protest is vast and wildly diverse. This Essay proposes to capture one slice of this array. From Ellis Avery’s Zodiac of NYC transit elevators, to Shannon Finnegan’s Anti-Stairs Club Lounge at the Vessel in Hudson Yards, to Park McArthur’s work exhibiting the ramps that provided her access to galleries showing her work – these and other creative endeavors offer a unique way in to understanding the problems and potential of inaccessible cities. Legal actions have challenged some of the specific sites …

Executive Underreach, In Pandemics And Otherwise, David E. Pozen, Kim Lane Scheppele

Faculty Scholarship

Legal scholars are familiar with the problem of executive overreach, especially in emergencies. But sometimes, instead of being too audacious or extreme, a national executive's attempts to address a true threat prove far too limited and insubstantial. In this Essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in which such underreach may compromise constitutional governance and the international legal order; and to suggest a partial remedy.

Exemplary Legal Writing 2019: Four Recommendations, Jed S. Rakoff, Lev Menand

Faculty Scholarship

Part of the purpose of recommending exemplary law books of the past year to readers of the Green Bag is to bring to their focus books even such erudite readers may not have noticed that nonetheless deserve their attention.

The Promise And Limits Of Cyber Power In International Law: Remarks, Monica Hakimi, Ann Väljataga, Zhixiong Huang, Charles Allen, Sue Robertson, Doug Wilson

Faculty Scholarship

Hi, everyone. I am Monica Hakimi from the University of Michigan Law School, and I would like to welcome you to our panel on cyber power and its limits. The topic almost does not need an introduction. We all know just from reading the news that our collective dependence on cyberspace is also a huge vulnerability, and state and non-state actors exploit this vulnerability to do one another harm. They use cyber technologies not just to spy on one another, but also, for example, to interfere in national elections, to steal trade secrets or other valuable information, to disrupt the …

Public Health Law Tools: A Brief Guide, Kristen Underhill

Faculty Scholarship

The COVID-19 pandemic offers a threat with few precedents in modern times and tests the tools of modern surveillance and public health law. The goal of this chapter is to provide a brief overview of the types of measures that state and federal governments can invoke to treat and prevent the spread of infectious disease. The following sections will provide an orientation to domestic public health law followed by the types of measures available to state and federal public health authorities.

Although this chapter does not consider international institutions, treaties, or norms that affect public health, these are also essential …

An Environmental Lawyer's Fraught Quest For Legal Tools To Hold Back The Seas, Michael B. Gerrard

Faculty Scholarship

The law is the principal mechanism by which society resolves disputes and implements policies. For more than forty years, I have worked to use the law to address environmental problems, initially by trying to stop projects that would increase pollution and harm communities. But there are limits to what the courts can do without explicit direction from legislatures. Climate change is a prime example. Some have seen litigation as a silver bullet, but at least so far that has not been the case. Elections matter more than lawsuits. Until and unless elections bring to power a president, a Congress, and …

Long-Term Bias, Eric L. Talley, Michal Barzuza

Faculty Scholarship

An emerging consensus in certain legal, business, and scholarly communities maintains that corporate managers are pressured unduly into chasing short-term gains at the expense of superior long-term prospects. The forces inducing managerial myopia are easy to spot, typically embodied by activist hedge funds and Wall Street gadflies with outsized appetites for next quarter’s earnings. Warnings about the dangers of “short termism” have become so well established, in fact, that they are now driving changes to mainstream practice, as courts, regulators and practitioners fashion legal and transactional constraints designed to insulate firms and managers from the influence of investor short-termism. This …

In Times Of Chaos: Creating Blueprints For Law School Responses To Natural Disasters, Jeffrey R. Baker, Christine E. Cerniglia, Davida Finger, Luz E. Herrera, Jonel Newman

Faculty Scholarship

A recent onslaught of domestic natural disasters created acute, critical needs for legal services for people displaced and harmed by storms and fires. In 2017, Hurricanes Harvey, Irma, Maria and Michael struck much of Texas, Florida, and Puerto Rico, displacing millions from their homes. Wildfires burned throughout California and tested the capacity of pro bono and legal aid systems across the state. In 2018, Hurricane Florence flooded North Carolina, and Hurricane Michael devastated the Florida Panhandle. California again suffered wildfires, the largest and most devastating in recorded history. Natural disasters are both more common and more destructive, the “new abnormal.” …

Kamala Harris And The Complexity Of Racial Identity Politics, Vinay Harpalani

Faculty Scholarship

Vinay Harpalani reviews Kamala Harris' run as Democratic nominee for President, contrasting her challenges with Barak Obama's campaign to show how racial identity politics are complicated and constantly evolving as well as the intersectional, or multifaceted, issues Kamala faced during her candidacy.

Metal-Free Deep Eutectic Solvents: Preparation, Physical Properties, And Significance, Burcu E. Gurkan, Henry Squire

Faculty Scholarship

In the past decade, reports detailing the preparation, characterization, and application of deep eutectic solvents (DESs) have grown in number significantly, showing signs of increased interest and attention. Indeed, these systems provide tunable polar environments attractive for their ease of synthesis and lack of need for purification. DESs are homogeneous systems composed of two or more components having a significantly depressed melting point compared to either constituent material. As interest and application of DESs grow, the need for a common understanding of their preparation and characterization is required. In this Perspective, we discuss metal-free DESs, focusing on their preparation, characterization …

Negative Liberty Meets Positive Social Change, Anita Bernstein

Faculty Scholarship

No abstract provided.

Follow The Money? A Proposed Approach For Disclosure Of Litigation Finance Agreements, Maya Steinitz

Faculty Scholarship

Litigation finance is the new and fast-growing practice by which a non-party funds a plaintiff’s litigation either for-profit or for some other motivation. Some estimates placed the size of the litigation finance market at 50–100 billion dollars. Both proponents and opponents of this newly -emergent phenomenon are in agreement that the it is the most important development in civil justice of this era. Litigation finance is already transforming civil litigation at the level of the single case as well as, incrementally, at the level of the civil justice system as a whole. It is also beginning to transform the way …