Digital Commons Network^™

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 …

The Separation Of Platforms And Commerce, Lina M. Khan

Faculty Scholarship

A handful of digital platforms mediate a growing share of online commerce and communications. By structuring access to markets, these firms function as gatekeepers for billions of dollars in economic activity. One feature dominant digital platforms share is that they have inte­grated across business lines such that they both operate a platform and market their own goods and services on it. This structure places domi­nant platforms in direct competition with some of the businesses that de­pend on them, creating a conflict of interest that platforms can exploit to further entrench their dominance, thwart competition, and stifle innovation.

This Article argues …

Price And Prejudice: An Empirical Test Of Financial Incentives, Altruism, And Racial Bias, Kristen Underhill

Faculty Scholarship

Many argue that paying people for good behavior can crowd out beneficial motivations like altruism. But little is known about how financial incentives interact with harmful motivations like racial bias. Two randomized vignette studies test how financial incentives affect bias. The first experiment varies the race of a hypothetical patient in need of a kidney transplant (black or white), an incentive ($18,500 or none), and addition of a message appealing to altruism. Incentives encouraged donation but introduced a significant bias favoring white patients. The second experiment assesses willingness to donate to a patient (black or white) without an incentive and …

Is Korematsu Good Law?, Jamal Greene

Faculty Scholarship

In Trump v. Hawaii, the Supreme Court claimed to overrule its infamous Korematsu decision. This Essay argues that this claim is both empty and grotesque. It is empty because a decision to overrule a prior case is not meaningful unless it specifies which propositions the Court is disavowing. Korematsu stands for many propositions, not all of which are agreed upon, but the Hawaii Court underspecifies what it meant to overrule. The Court’s claim of overruling Korematsu is grotesque because its emptiness means to conceal its disturbing affinity with that case.

China As A "National Strategic Buyer": Toward A Multilateral Regime For Cross-Border M&A, Jeffrey N. Gordon, Curtis J. Milhaupt

Faculty Scholarship

Unlike the case of cross-border trade, there is no explicit international governance regime for cross-border M&A; rather, there is a shared understanding that publicly traded companies are generally for purchase by any bidder – domestic or foreign – willing to offer a sufficiently large premium over a target’s stock market price. The unspoken premise that undergirds the system is that the prospective buyer is motivated by private economic gain-seeking.

The entry of China into the global M&A market threatens the fundamental assumptions of the current permissive international regime. China has become a significant player in the cross-border M&A market, particularly …

Showcase Panel I: What Is Regulation For?, Richard Epstein, Philip A. Hamburger, Kathryn Kovacs, John D. Michaels, Britt Grant

Faculty Scholarship

2018 National Lawyers Convention Transcripts

“The administrative state, with roots over a century old, was founded on the premise that Congress lacked the expertise to deal with the many complex issues facing government in a fast-changing country, and that it was unhelpfully mired in and influenced by politics, leading to bad outcomes when it did act. The alternative was to establish administrative agencies, each with assigned areas of responsibility, housing learned experts qualified to make policy decisions, deliberately insulated from political accountability. The Administrative Procedure Act (APA), passed in 1946, both governs the manner in which agencies may adopt and …

Justice Kennedy's Prose – Style And Substance, Eric Segall, Eric Berger, Michael C. Dorf, Jamal Greene

Faculty Scholarship

Supreme Court Justice Anthony Kennedy's retirement in June 2018 sent shockwaves throughout America. After Justice Sandra Day O'Connor left the Court in 2005, Justice Kennedy became the Court's all-important swing vote in virtually every important area of constitutional law. His views on affirmative action, abortion, campaign finance reform, free speech, and the separation of church and state (among many other constitutional issues) were the ones that mattered the most among the Justices. Lawyers prepared arguments and filed briefs in the Supreme Court for the main purpose of persuading Justice Kennedy to rule for their clients. He was, quite simply, the …

How Lawyers Can Help Save The Planet, Michael B. Gerrard, John C. Dernbach

Faculty Scholarship

Scientific reports, coming in a steady stream, are highlighting the urgency of reducing greenhouse gas emissions so as to avoid the worst impacts of climate change. Already, hurricanes, coastal and inland flooding, wildfires, heat waves and other extreme weather events are causing severe economic damage and loss of life, and their increasing severity has been attributed to climate change. The decades to come promise to be even worse.

Explanation < Justification: Gdpr And The Perils Of Privacy, Talia B. Gillis, Josh Simons

Faculty Scholarship

The European Union’s General Data Protection Regulation (GDPR) is the most comprehensive legislation yet enacted to govern algorithmic decision-making. Its reception has been dominated by a debate about whether it contains an individual right to an explanation of algorithmic decision-making. We argue that this debate is misguided in both the concepts it invokes and in its broader vision of accountability in modern democracies. It is justification that should guide approaches to governing algorithmic decision-making, not simply explanation. The form of justification – who is justifying what to whom – should determine the appropriate form of explanation. This suggests a sharper …

Edward Snowden, National Security Whistleblowing, And Civil Disobedience, David E. Pozen

Faculty Scholarship

No recent whistleblower has been more lionized or vilified than Edward Snowden. He has been nominated for the Nobel Peace Prize and denounced as a "total traitor" deserving of the death penalty. In these debates, Snowden's defenders tend to portray him as a civil disobedient. Yet for a range of reasons, Snowden's situation does not map neatly onto traditional theories of civil disobedience. The same holds true for most cases of national security whistleblowing.

The contradictory and confused responses that these cases provoke, this essay suggests, are not just the product of polarized politics or insufficient information. Rather, they reflect …

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …

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.

The Data Standardization Challenge, Kathryn Judge, Richard Berner

Faculty Scholarship

Data standardization offers significant benefits for industry and regulators alike, suggesting that it should be easy. In practice, however, the process has been difficult and slow moving. Moving from an abstract incentive-based analysis to one focused on institutional detail reveals myriad frictions favoring the status quo despite foregone gains. This paper explores the benefits of and challenges confronting standardization, why it should be a top regulatory priority, and how to overcome some of the obstacles to implementation.

The paper also uses data standardization as a lens into the challenges that impede optimal financial regulation. Alongside capture and other common explanations …

Open Plurilateral Agreements, International Regulatory Cooperation And The Wto, Charles F. Sabel, Bernard Hoekman

Faculty Scholarship

Sustained high growth in many developing countries (‘the rise of the rest’) combined with long-standing WTO working practices hampers the ability of the WTO to perform its routine functions and paralyzes efforts to adapt to new circumstances. Preferential trade agreements have taken up some of the slack in addressing differences in domestic regulation of product safety, environmental and social conditions, but are exclusionary and inefficient from a global perspective. In this paper, we argue that a new type of agreement based on open plurilateral cooperation offers better prospects for groups of countries to explore and develop their potential common interests …

Embedding Content Or Interring Copyright: Does The Internet Need The "Server Rule"?, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

The “server rule” holds that online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work. As a result, the rule shields a vast array of online activities from claims of direct copyright infringement, effectively exempting those activities from the reach of the Copyright Act. While the server rule has enjoyed relatively consistent adherence since its adoption in 2007, some courts have recently suggested a departure from that precedent, noting the doctrinal and statutory inconsistencies underlying …

Authors And Machines, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Machines, by providing the means of mass production of works of authorship, engendered copyright law. Throughout history, the emergence of new technologies tested the concept of authorship, and courts in response endeavored to clarify copyright’s foundational principles. Today, developments in computer science have created a new form of machine, the “artificially intelligent” (AI) system apparently endowed with “computational creativity.” AI systems introduce challenging variations on the perennial question of what makes one an “author” in copyright law: Is the creator of a generative program automatically the author of the works her process begets, even if she cannot anticipate the contents …

Protecting Consumers In The Age Of The Internet Of Things, Nicole Smith Futrell

Faculty Scholarship

“Wake up, baby!”

Imagine waking up in the middle of the night to the sound of a stranger speaking to your baby through the baby monitor. For one Texas couple, this horror story became reality when a man hacked their internet-connected monitors to watch and stalk their child. In a similarly horrifying scenario, a hacker stalked Miss Teen USA, Cassidy Wolf, for a year via her webcam. The stalker had 24/7 access to her webcam and also traced the keystrokes on her keyboard to learn her passwords for various web accounts. Subsequently, the hacker used private information he learned about …

Please Tweet Responsibly: The Social And Professional Ethics Of Public Defenders Using Client Information In Social Media Advocacy, Nicole Smith Futrell

Faculty Scholarship

Every day the criminal legal system hauls poor and marginalized individuals through a process wrought with trauma, indignity, and abuse. Public defenders representing the criminally accused view their clients and the system from a unique vantage point: they bear witness to the human costs of a system that falls far short of its purported norms and ideals. For the public defender who works within this reality day in and day out, fighting for each individual client might feel limited in its wider impact. Some public defenders have found that using online and social media platforms, such as Twitter, to provide …

Trump, Gender Rebels, And Masculinities, Dara Purvis

Faculty Scholarship

Since the inauguration of President Trump, most of his Administration’s actions have been sharply conservative: notably, his efforts to ban transgender Americans from military service. There have been exceptions, however, such as proposals to create support for paid parental leave, an issue previously championed by Democrats.

This seeming contradiction of progressive and regressive policies can be reconciled by viewing the Trump Administration through the lens of masculinities theory. Hegemonic masculinity depends upon sharp differentiation between “real” men and everyone else, the latter occupying places in a hierarchy far below men. In this reading, Trump’s version of parental support makes sense: …

Soft Law Often Should Be Permitted To Bind Agency Staff, Peter L. Strauss

Faculty Scholarship

For an event honoring the scholarship of Professor Bill Funk, another contributor to this on-line symposium, I have written an essay, Domesticating Guidance, summarizing my thinking about the use and misuse of agency guidance documents. No one doubts that that the soft law of guidance documents, which do not require notice and comment under the APA, should not veer into the hard law of legislative rules, which generally do require that procedure. Unfortunate confusion, though, arises from lower court concerns that purported guidance documents may be “binding in practice” — thus, they reason, functionally, an invalid legislative rule that …

Eroding "Checks" On Presidential Authority – Norms, The Civil Service, And The Courts, Peter L. Strauss

Faculty Scholarship

Susan Rose-Ackerman's "Executive Rulemaking and Democratic Legitimacy: 'Reform' in the United States and the United Kingdom's Route to Brexit" insightfully illuminates important differences between parliamentary and presidential systems of government in relation to executive bodies' production of the large volume of secondary legislation common, indeed inevitable, for both. Agreeing heartily with her conclusion that the weakness of parliamentary engagement with secondary legislation, and limited judicial review of its production, counsels greater provision for public participation and transparency of action at the agency level, there is little for me to add. Aware, too, as she remarks, that others have dealt more …

Regulating Bite Mark Evidence: Lesbian Vampires And Other Myths Of Forensic Odontology, Jennifer D. Oliva, Valena E. Beety

Faculty Scholarship

e third piece in a trilogy that examines and evaluates the standards that American co e proffered by prosecutors in criminal trials. The first two articles in the trilogy expose the criminal courts’ on-going practice of admitting false forensic evidence that is virtually always excluded in civil cases. They also advance a panoply of procedural and evidentiary solutions aimed at reforming this legally unviable discrepancy. Those solutions are court-centric insofar as they advocate for, among other things, open and early criminal discovery, pre-trial Daubert hearings to challenge evidence and experts, and court-appointment of qualified forensic science experts. This Article takes …

Statutory Interpretation As “Interbranch Dialogue”?, James J. Brudney, Ethan J. Leib

Faculty Scholarship

Much in the field of statutory interpretation is predicated on “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This Article attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.

The Article itself proceeds by using a dialogic and dialectical method. It first develops various positions against “interbranch dialogue.” By invoking arguments from textualism, public choice, and positive political theory, it advances …

The Twenty-Fifth Amendment: Its Crafting And Drafting Process, John D. Feerick

Faculty Scholarship

No abstract provided.

Abortion Talk, Clare Huntington

Faculty Scholarship

No abstract provided.

We The People: These United Divided States, Catherine Powell

Faculty Scholarship

No abstract provided.

Law & Neighborhood Names, Nestor M. Davidson, Dave Fagundes

Faculty Scholarship

This Article provides a novel investigation of how law both enables and constrains the ability of city residents to claim, name, and often rename their neighborhoods. A rich interdisciplinary dialogue in areas such as geography and sociology has emerged on the significance of place names, but this literature has largely ignored the legal dimensions of the phenomenon, with its implications for urban governance, belonging, and community conflict. This Article’s empirical exploration of the role of law in change and conflict regarding neighborhood identity thus advances the discourse both for legal scholars focused on urban dynamics and across disciplines.

From gentrification …

Prosecutors In The Court Of Public Opinion, Bruce A. Green

Faculty Scholarship

No abstract provided.

Unbundling School, Aaron J. Saiger

Faculty Scholarship

No abstract provided.

Latin American Racial Equality Law As Criminal Law, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.