Digital Commons Network^™

Saving Software's Fair Use Future, Pamela Samuelson, Clark Asay

Faculty Scholarship

The freedom to reimplement application program interfaces (APIs) in independently written software is the key issue at stake in Oracle America, Inc. v. Google Inc. In May 2016, on remand a jury found Google’s use of the Java API elements was a fair use. After the District Court declined to vacate the jury verdict, Oracle appealed for the second time to the Federal Circuit, claiming that it is entitled to a judgment in its favor on the fair use issue as a matter of law. This Article, which is a derivative work of the amicus curiae brief of 42 Intellectual …

Malleable Rationality, Stephanie Plamondon

Faculty Scholarship

In 1998, Christine Jolls, Cass Sunstein, and Richard Thaler published A Behavioral Approach to Law and Economics, one of the most important pieces of scholarship in decades. Their article famously proposes a departure from the neoclassical law and economics approach to legal analysis. Breaking from neoclassical law and economics’ rational actor construct, the authors apply empirical insights about human behavior to introduce the concept of a boundedly rational actor limited by cognitive constraints. Over the past two decades, the behavioral law and economics approach, with its focus on the boundedly rational actor, has contributed needed realism to legal analyses. Unfortunately, …

Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg

Faculty Scholarship

“If you’re afraid to offend, you can’t be honest.”

“If you offend me, I can’t hear what you’re trying to tell me.”

—overheard on campus

The debate over how colleges and universities should respond to contentious guest speakers on campus is not a new one. A quick look back to the early 1990s, among other times, shows commentators squaring off much as they do today about the tensions between protecting free expression and ensuring meaningful equality.

Perhaps not surprisingly, the issues that contested speakers address are also much the same as they have been for several decades – government action …

Intermediary Design Duties, Olivier Sylvain

Faculty Scholarship

Online social networking applications and marketplaces enable users to discover ideas, people, places, and products. The companies behind these services purport to be little more than the conduits through which users socialize and transact business. It is on this premise that, pursuant to the Communications Decency Act (CDA), courts are reluctant to impose liability on intermediaries for their users' illegal online conduct. In spite of language in the statute that would limit the safe harbor to intermediaries that voluntarily moderate users' content and behavior, courts today refrain from granting immunity only in cases in which intermediaries "materially contribute" to illegal …

Integrative Information Platforms: The Case Of Zero-Rating, Olivier Sylvain

Faculty Scholarship

No abstract provided.

Four Principles For Digital Expression (You Won't Believe #3!), Danielle K. Citron, Neil Richards

Faculty Scholarship

At the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike down a federal law - the Communications Decency Act - that restricted digital expression to forms that were merely “decent.” Far more than the printing press, the Court explained, the mid-90s Internet enabled anyone to become a town crier. Communication no longer required the permission of powerful entities. With a network connection, the powerless had as much luck reaching a …

The Reliability Of Evidence In Evidence-Based Legislation, Sean J. Kealy, Alex Fomey

Faculty Scholarship

As evidence-based legislation develops, and as technology puts more information at our fingertips, there should be a better understanding of what exactly constitutes reliable evidence. Robert and Ann Seidman devoted their professional careers to developing the evidence-based Institutional Legislative Theory and Methodology and teaching it to legislative drafters around the world. Although ILTAM was firmly grounded in – and driven by – evidence, the question becomes what evidence is reliable and a worthy input for the methodology. Further, how can the drafter avoid the misuses of evidence such as confirmation bias and naïve beliefs? We aim to give a guide …

The New Health Care Federalism On The Ground, Abbe R. Gluck, Nicole Huberfeld

Faculty Scholarship

This essay, part of a symposium investigating methods of empirically evaluating health policy, focuses on American health care federalism, the relationship between the federal and state governments in the realm of health care policy and regulation. We describe the results of a five year study of the implementation of the Patient Protection and Affordable Care Act (ACA) from 2012-2017. Our study focused on two key pillars of the ACA, which happen to be its most state-centered — expansion of Medicaid and the implementation of health insurance exchanges — and sheds light on federalism in the modern era of nationally-enacted health …

Narrative Topoi In The Digital Age, Zahr K. Said, Jessica Silbey

Faculty Scholarship

Decades of thoughtful law and humanities scholarship have made the case for using humanistic texts and methods in the legal classroom. We build on that scholarship by identifying and describing three “narrative topoi” of the twenty-first century – podcasts, twitter and fake news. We use the term “topos” (from the Greek meaning “place”) and its plural, “topoi,” to mean “a literary commonplace” and “general setting for discussion” in the context of literary forms. Like an identifiable genre, narrative topoi are familiar story paths for audiences to travel. These narrative topoi live in contemporary popular culture and are products of digital …

A (Nude) Picture Is Worth A Thousand Words — But How Many Dollars?: Using Copyright As A Metric For Harm In "Revenge Porn" Cases, J. Remy Green

Faculty Scholarship

So-called “Revenge Porn” — pornography published without the subject’s permission — is a growing issue. While much discussion exists about how best to outlaw the practice, less has been said about precisely how to measure the harm done. This paper is grounded in an in-depth analysis of the particular way that the Federal Sentencing Guidelines prioritize financial harms and non-financial harms, specifically looking at how many dollars of harm it takes to buy each additional sentencing point. I graph the enforcement priorities for financial and non-financial harm using the numbers federal agencies use for the value of a statistical life. …

Are Privacy Laws Deficient?, Woodrow Hartzog

Faculty Scholarship

Privacy law around the world is deficient because it ignores design. Lawmakers have attempted to establish limits on the collection, use, and distribution of personal information. But they have largely overlooked the power of design. They have discounted the role that design plays in facilitating the conduct and harm privacy law is meant to prevent. Design pitches and picks privacy winners and losers, with people as data subjects and surveillance objects often on the losing side.

Bringing Human Rights Into Bilateral Investment Treaties: South Africa And A Different Approach To International Investment Disputes, Erika George, Elizabeth Thomas

Faculty Scholarship

This Article therefore begins with a discussion of the Western imperialist history underlying the pasts of China and Africa, discussing the evolution of a Chinese-African economic alliance. Next, this Article discusses the broader roles of BITs in the ISDS system within the context of Chinese and South Africa BITs. It continues with a discussion on the Southern African Development Community's Model BIT, explaining why this particular model is a step in the right direction towards the protection of human rights in all IIAs. This Article highlights the relationship between international investment law, foreign direct investment ("FDI"), BITs, and human rights, …

But Maybe Everything That Dies Someday Comes Back, Martin S. Flaherty

Faculty Scholarship

Book review: The death of treaty supremacy: an invisible constitutional change. By David L. Sloss. New York: Oxford University Press, 2016. Pp. xiv + 472. Reviewed by Martin S. Flaherty.

The Empirical Turn In Family Law, Clare Huntington

Faculty Scholarship

No abstract provided.

Criminally Bad Management, Samuel W. Buell

Faculty Scholarship

Because of their leverage over employees, corporate managers are prime targets for incentives to control corporate crime, even when managers do not themselves commit crimes. Moreover, the collective actions of corporate management — producing what is sometimes referred to as corporate culture — can be the cause of corporate crime, not just a locus of the failure to control it. Because civil liability and private compensation arrangements have limited effects on management behavior — and because the problem is, after all, crime — criminal law is often expected to intervene. This handbook chapter offers a functional explanation for corporate criminal …

Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell

Faculty Scholarship

Criminal procedure law does not require prosecutors to speak outside of court. Professional regulations and norms discourage and sometimes prohibit prosecutors from doing so. Litigation often rewards strategic and tactical maintenance of the element of surprise. Institutional incentives encourage bureaucrats, especially those not bound by procedural requirements of administrative law, to decline to commit themselves to future action. In the always exceptional field of corporate crime, however, the Department of Justice and federal line prosecutors have developed practices of signaling and describing their exercise of discretion through detailed press releases, case filings, and policy documents. This contribution to a symposium …

Sustaining Collective Self-Governance And Collective Action: A Constitutional Role Morality For Presidents And Members Of Congress, Neil S. Siegel

Faculty Scholarship

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution …

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Faculty Scholarship

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a …

Why The Nagoya Protocol To The Cbd Matters To Science And Industry In Canada And The United States, Jerome H. Reichman

Faculty Scholarship

No abstract provided.

The Myth Of The Ideal Investor, Elisabeth De Fontenay

Faculty Scholarship

Critiques of specific investor behavior often assume an ideal investor against which all others should be compared. This ideal investor figures prominently in the heated debates over the impact of investor time horizons on firm value. In much of the commentary, the ideal is a longterm investor that actively monitors management, but the specifics are typically left vague. That is no coincidence. The various characteristics that we might wish for in such an investor cannot peacefully coexist in practice.

If the ideal investor remains illusory, which of the real-world investor types should we champion instead? The answer, I argue, is …

Whose Lands? Which Public?: The Shape Of Public-Lands Law And Trump's National Monument Proclamations, Jedediah Britton-Purdy

Faculty Scholarship

President Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. …

If We Pay Football Players, Why Not Kidney Donors, Philip J. Cook, Kimberly D. Krawiec

Faculty Scholarship

Ethicists who oppose compensating kidney donors claim they do so because kidney donation is risky for the donor’s health, donors may not appreciate the risks and may be cognitively biased in other ways, and donors may come from disadvantaged groups and thus could be exploited. However, few ethical qualms are raised about professional football players, who face much greater health risks than kidney donors, have much less counseling and screening concerning that risk, and who often come from racial and economic groups deemed disadvantaged. It thus seems that either ethicists—and the law—should ban both professional football and compensated organ donation, …

The Rights Of Marriage: Obergefell, Din, And The Future Of Constitutional Family Law, Kerry Abrams

Faculty Scholarship

In the summer of 2015 the United States Supreme Court handed down two groundbreaking constitutional family law decisions. One decision became famous overnight Obergefell v. Hodges declared that same-sex couples have the constitutional right to marry. The other, Kerry v. Din, went largely overlooked. That later case concerned not the right to marry but the rights of marriage. In particular, it asked whether a person has a constitutional liberty interest in living with his or her spouse. This case is suddenly of paramount importance: executive orders targeting particular groups of immigrants implicate directly this right to family reunification.

This Article …

Judicial Appraisals Of Risk Assessment In Sentencing, John Monahan, Ann Metz, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Normcore, Jedediah Purdy

Faculty Scholarship

The proliferating "crisis-of-democracy" literature, like The Fast and the Furious franchise, has only one plot. And, like the crash-up car-chase movies, it has not let this fact slow its growth. Likely none of these books would exist—certainly none would be remotely the same—if Hillary Clinton had pulled a hundred thousand more votes out of the Midwest in 2016. All are organized around the shock of Trump's victory and allege a national and international crisis of democracy. Just what is the crisis? What is missing from these works, and the commentariat that they represent, is a genuine reckoning with twenty-first-century questions: …

When Terrorists Govern: Protecting Civilians In Conflicts With State-Building Armed Groups, Mara R. Revkin

Faculty Scholarship

Many existing U.S. counter-terrorism policies, including those governing targeting and detention, rely on an empirical assumption that terrorist groups are primarily military organizations. This assumption may be appropriate in the case of al-Qaeda, but it fails to describe terrorist groups that engage not only in warfare but also in governance and state-building such as the Islamic State, a self-declared “caliphate” that—at the height of its expansion in 2014—claimed sovereignty over an estimated 34,000 square miles and 10 million civilians. This Article identifies a category of “state-building” terrorist groups that can be distinguished by the following characteristics: (1) the presence of …

Leak-Driven Law, Shu-Yi Oei, Diane Ring

Faculty Scholarship

Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries.

The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially and economically beneficial. This Article argues, however, that the conventional wisdom …

Maduro Bonds, G. Mitu Gulati, Ugo Panizza

Faculty Scholarship

No abstract provided.

The Trafficking Victim Protection Act: The Best Hope For International Human Rights Litigation In The U.S. Courts?, Sara Sun Beale

Faculty Scholarship

The article focuses on uses Alien Tort Statute as a vehicle for litigating human rights abuses in both civil and criminal prosecutions in the U.S. Topics discussed include developments in International Criminal Law in addressing human rights violations; judicial attitudes that could affect the interpretation of the Trafficking Victim Protection Act; and Sosa v. Alvarez-Machain court case on the same.

Evidence-Informed Criminal Justice, Brandon L. Garrett

Faculty Scholarship

The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along …