Digital Commons Network^™

“Unknown Symbols”: Online Legal Research In The Age Of Emoji, Jennifer L. Behrens

Faculty Scholarship

Over the last decade, emoji and emoticons have made the leap from text messaging and social media to legal filings, court opinions, and law review articles. However, emoji and emoticons’ growth in popularity has tested the capability of online legal research systems to properly display and retrieve them in search results, posing challenges for future researchers of primary and secondary sources. This article examines current display practices on several of the most popular online legal research services (including Westlaw Edge, Lexis Advance, Bloomberg Law, Fastcase, HeinOnline, and Gale OneFile LegalTrac), and suggests effective workarounds for researchers.

Free Speech And Justified True Belief, Joseph Blocher

Faculty Scholarship

Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.

And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally …

Revolving Elites: The Unexplored Risk Of Capturing The Sec, James D. Cox, Randall S. Thomas

Faculty Scholarship

Fears have abounded for years that the sweet spot for capture of regulatory agencies is the "revolving door" whereby civil servants migrate from their roles as regulators to private industry. Recent scholarship on this topic has examined whether America's watchdog for securities markets, the Securities and Exchange Commission (SEC), is hobbled by the long-standing practices of its enforcement staff exiting their jobs at the Commission and migrating to lucrative private sector employment where they represent those they once regulated. The research to date has been inconclusive on whether staff revolving door practices have weakened the SEC' s verve. In this …

Semenya And Asa V Iaaf: Affirming The Lawfulness Of A Sex-Based Eligibility Rule For The Women’S Category In Elite Sport, Doriane Lambelet Coleman

Faculty Scholarship

No abstract provided.

Dartmouth College V. Woodward And The Structure Of Civil Society, Ernest A. Young

Faculty Scholarship

No abstract provided.

Expropriation In The Name Of Rights: Transferable Development Rights (Tdrs), The Bundle Of Sticks And Chinese Politics, Shitong Qiao

Faculty Scholarship

Through an in-depth empirical investigation, this article discloses for the first time how and why land reform programs in the name of empowering and enriching farmers have been serving the purpose of Chinese local governments to compromise the rights revolution in the Chinese national expropriation regime. The concept of “transferable development rights” (TDRs) is simple: development rights from one parcel of land are lifted up and transferred to another. Upon a detailed examination of land tickets in Chongqing and Chengdu, the southwestern Chinese application of TDRs, this article reveals that local governments in both cities have created schemes of land …

Sports In The Courts: The Ncaa And The Future Of Intercollegiate Revenue Sports, Paul H. Haagen

Faculty Scholarship

No abstract provided.

Reclaiming The Role Of Lawyers As Community Connectors, David F. Levi, Dana Remus, Abigail Frisch

Faculty Scholarship

With the prospect of nonlawyers stepping in to do low-fee legal work, how should the legal profession conceive of its relationship to that work and ensure that nonlawyers bolster rather than undermine the value that lawyers add to society? Lawyers should reclaim their role as connectors in their communities: interstitial figures with the knowledge, skill, and trust to help resolve disputes, move beyond stalemates, dispel tensions, and otherwise bring people and resources together in productive solutions. They should do so, at least in part, through pro bono work for poor and low-income clients. It would be a mistake to stand …

Open Science Precision Medicine In Canada: Points To Consider, Palmira Granados Moreno, Sarah E. Ali-Khan, Benjamin Capps, Timothy Caulfield, Damien Chalaud, Aled Edwards, E. Richard Gold, Vasiliki Rahimzadeh, Adrian Thorogood, Daniel Auld, Gabrielle Bertier, Felix Breden, Roxanne Caron, Priscilla M.D.G. César, Robert Cook-Deegan, Megan Doerr, Ros Duncan, Amalia M. Issa, Jerome Reichman, Jacques Simard, Derek So, Sandeep Vanamala, Yann Joly

Faculty Scholarship

Open science can significantly influence the development and translational process of precision medicine in Canada. Precision medicine presents a unique opportunity to improve disease prevention and healthcare, as well as to reduce health-related expenditures. However, the development of precision medicine also brings about economic challenges, such as costly development, high failure rates, and reduced market size in comparison with the traditional blockbuster drug development model. Open science, characterized by principles of open data sharing, fast dissemination of knowledge, cumulative research, and cooperation, presents a unique opportunity to address these economic challenges while also promoting the public good.

The Centre of …

Systematic Regulation Of Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

A decade after the financial crisis, regulators worry that the regulation enacted to help stabilize the financial system may be insufficient to prevent another crisis. Examining that regulation with the benefit of hindsight, this Article finds that much has been accomplished but much remains to be done. Most of the existing regulation is ad hoc, providing “tools” rather than a coherent framework. It also is unduly entity-based, largely ignoring markets and other critical elements of the financial system. Furthermore, some of that entity-based regulation is punitive and misguided, responding to the human intuition to assign blame for harm. Financial stability …

Foreword, Sudha Setty

Faculty Scholarship

In this Article, the Author reflects on legal education and the role of law reviews. Law reviews not only serve as an educational opportunity, but offer potential legal reforms to help legal scholars, practitioners, and the public understand possible shortcomings of the current state of the law and help law and policy makers contemplate potential improvements.

Exploring The Health Implications Of Mixed-Income Communities: Avondale, Cincinnati, Oh, Sherise Mckinney

Faculty Scholarship

This site profile is part of a series that spotlights mixed-income community transformations that emphasize health and wellness in their strategic interventions. The Mixed-Income Strategic Alliance produced these profiles to better understand the health implications of creating thriving and inclusive communities with a socioeconomically and racially diverse population. This site profile, which focuses on Avondale, was developed through interviews with local stakeholders as well as a review of publicly-available and internal documents.

Love's Labors Found, Nicholas Allard

Faculty Scholarship

No abstract provided.

Teaming Up To Learn In The Doctrinal Classroom, Jodi Balsam

Faculty Scholarship

No abstract provided.

A Rule Of Persons, Not Machines: The Limits Of Legal Automation, Frank Pasquale

Faculty Scholarship

No abstract provided.

Facebook's Alternative Facts, Sarah Haan

Faculty Scholarship

No abstract provided.

The Surprising Reach Of Fda Regulation Of Cannabis, Even After Descheduling, Sean O'Connor

Faculty Scholarship

No abstract provided.

Contribution And Distribution Flexibility And Tax Pass-Through Entities, Bradley T. Borden, Brett Freudenberg

Faculty Scholarship

No abstract provided.

Shareholders United?, Andrew K. Jennings

Faculty Scholarship

No abstract provided.

Suing Russia: How Americans Can Fight Back Against Russian Intervention In American Politics, William J. Aceves

Faculty Scholarship

The evidence of Russian intervention in American politics is overwhelming. In the midst of the 2016 US presidential campaign, a growing number of inflammatory social media posts addressing various political topics emerged on Facebook, Instagram, and Twitter. These posts supported the candidacy of Donald Trump, condemned the influx of refugees and migrants, and promoted racial divisions in the United States. Through clicks, likes, shares, and retweets, these messages reached millions of Americans. But, these messages did not originate in the United States; they were drafted and disseminated through inauthentic social media accounts created and controlled by the Internet Research Agency, …

Evaluating Judicial Standards Of Conduct In The Current Political And Social Climate: The Need To Strengthen Impropriety Standards And Removal Remedies To Include Procedural Justice And Community Harm, Joshua E. Kastenberg

Faculty Scholarship

Chief Justice Warren Burger warned that when “people who have long been exploited . . . come to believe that courts cannot vindicate their legal rights from fraud,” an “incalculable damage [is done] to society.”

Part I of this Article presents an examination of the current common frameworks shared by the states for addressing judicial conduct appealing to popular social and political influences. Included in this section is an analysis of the interrelationship between implicit bias and impropriety, as well as on community harm and procedural justice.

Part II provides both a historical and contemporary analysis of “populism,” including the …

Legal Rights, Real-World Consequences: The Ethics Of Know Your Rights Efforts And Towards Improved Community Legal Education, Brandi Lupo

Faculty Scholarship

No abstract provided.

The Pathologies Of Digital Consent, Neil M. Richards, Woodrow Hartzog

Faculty Scholarship

Consent permeates both our law and our lives — especially in the digital context. Consent is the foundation of the relationships we have with search engines, social networks, commercial web sites, and any one of the dozens of other digitally mediated businesses we interact with regularly. We are frequently asked to consent to terms of service, privacy notices, the use of cookies, and so many other commercial practices. Consent is important, but it’s possible to have too much of a good thing. As a number of scholars have documented, while consent models permeate the digital consumer landscape, the practical conditions …

The Inconsentability Of Facial Surveillance, Evan Selinger, Woodrow Hartzog

Faculty Scholarship

Governments and companies often use consent to justify the use of facial recognition technologies for surveillance. Many proposals for regulating facial recognition technology incorporate consent rules as a way to protect those faces that are being tagged and tracked. But consent is a broken regulatory mechanism for facial surveillance. The individual risks of facial surveillance are impossibly opaque, and our collective autonomy and obscurity interests aren’t captured or served by individual decisions.

In this article, we argue that facial recognition technologies have a massive and likely fatal consent problem. We reconstruct some of Nancy Kim’s fundamental claims in Consentability: Consent …

Foreign Affairs Prosecutions, Steven Arrigg Koh

Faculty Scholarship

Contemporary global crime and cross-border law enforcement cooperation have multiplied “foreign affairs prosecutions,” cases that encompass foreign apprehension, evidence gathering, and criminal conduct, as well as cases that implicate foreign nations’ criminal justice interests. Robert Mueller’s Russia investigation, the fugitive Edward Snowden, and the cross-border crimes of FIFA and El Chapo all exemplify such foreign affairs prosecutions. This Article argues that foreign affairs prosecutions represent a consequential shift in U.S. criminal law, offering the promise of closing global impunity gaps. At the same time, however, such cases risk defendant interests at home and U.S. foreign policy abroad. This Article calls …

Data Generated By New Technologies And The Law: A Guide For Massachusetts Practitioners, Andrew Sellars

Faculty Scholarship

This brief paper, created as part of a training on new technologies and evidence for MCLE New England, outlines the standards used to compel disclosure of information under the Stored Communication Act, and reviews the types of data stored on various consumer devices and their likely custodians, as well as cases and notes relevant to each devices. The paper serves as a quick introduction and checklist for those considering gathering information from these devices in the course of investigations in Massachusetts. The devices outlined include cell phones, social media platforms, secure messaging services, fitness trackers, home assistant devices (or "smart …

Digitizing Brandenburg: Common Law Drift Toward A Causal Theory Of Imminence, J. Remy Green

Faculty Scholarship

The Supreme Court’s Brandenburg v. Ohio test provides an exception to the First Amendment’s broad guarantee of freedom of speech. Where speech is (1) directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action, the First Amendment withdraws its promise of protection. Thus, where the “imminence” of lawless action cannot be shown, free speech cannot be restricted. Since Brandenburg, Courts have applied a test for imminence that turns on proximity in space and in time — that is, the test evaluates how spatiotemporally imminent lawless activity is. In this Article, I argue …

Digital Platforms And Antitrust Law, Keith N. Hylton

Faculty Scholarship

This Article is about "big data" and antitrust law. Big data, for my purposes, refers to digital platforms that enable the discovery and sharing of information by consumers, and the harvesting and analysis of consumer data by the platform. The obvious example of such a platform is Google. The big platforms owe their market dominance not to anticompetitive conduct, but to economies of scale. This Article discusses three types of anticompetitive conduct associated with digital platforms: kill zone expropriation, acquisition of nascent rivals, and denial of access to data. There is nothing so unusual about digital platforms that would require …

Regulatory Monitors: Policing Firms In The Compliance Era, Rory Van Loo

Faculty Scholarship

Like police officers patrolling the streets for crime, the front line for most large business regulators — Environmental Protection Agency (EPA) engineers, Consumer Financial Protection Bureau (CFPB) examiners, and Nuclear Regulatory Commission (NRC) inspectors, among others — decide when and how to enforce the law. These regulatory monitors guard against toxic air, financial ruin, and deadly explosions. Yet whereas scholars devote considerable attention to police officers in criminal law enforcement, they have paid limited attention to the structural role of regulatory monitors in civil law enforcement. This Article is the first to chronicle the statutory rise of regulatory monitors and …

Attorney As Accompagnateur: Resilient Lawyering When Victory Is Uncertain Or Nearly Impossible, Margaret Reuter, Stephen A. Rosenbaum, Danielle Pelfrey Duryea

Faculty Scholarship

Social justice lawyers come to the profession intending to make a difference through the instruments of law. And gloriously, they often make a difference in people’s lives for the better. They make our world a more just, compassionate, and tolerant place. But there is no denying that, in poverty law practice, legal success can be illusive, ephemeral, or perhaps a mirage. How does that lawyer feel when the legal remedies at her disposal, even if “successful,” fail to mitigate the injustices suffered by her clients? Are there definitions of professional satisfaction and success that are enduring, even if legal success …