Digital Commons Network^™

Reframing Compliance For A Polarized World, Miriam H. Baer

Faculty Scholarship

Corporate compliance relies on an intricate network of individuals and organizations to monitor and report wrongdoing. Compliance improves our collective well-being by curbing corporate misconduct and by facilitating the freer flow of information.

Despite notable failures, compliance has thrived over the past three decades, becoming a well-respected element of corporate governance. Now, however, compliance faces a new challenge, as polarization has become the norm in American life. Political parties have grown more ideologically homogeneous, and politicians embrace more extreme variations of the positions they supported just a few years ago. Partisan thinking has moved beyond discrete political debates, spreading to …

Taking Integrity Risks Seriously, Miriam H. Baer

Faculty Scholarship

Several recent scandals in higher education have illuminated notable weaknesses in the academy’s scholarly self-monitoring function. Plagiarism, undisclosed conflicts of interest, and shocking allegations of data fraud have arisen in contexts suggesting real weaknesses in peer review and other internal monitoring mechanisms.

Although the legal academy is different in many ways from the rest of higher education, it is hardly immune to the familiar precursors of fraud—opportunity, pressure, and rationalizations. Moreover, the academy's reliance on student-written law reviews creates additional challenges for holding wayward legal scholars accountable for their integrity violations.

This Essay, written for a Symposium hosted by the …

100 Years Of The Federal Arbitration Act, Paul Bland, John H. Chun, Linda A. Klein, Pamela K. Bookman

Faculty Scholarship

No abstract provided.

Self-Regulation In Emerging And Innovative Industries, Daniel E. Walters, Hannah J. Wiseman

Faculty Scholarship

Self-regulation—governance of firm behavior by private entities—has a long history both in the United States and globally, and there is an extensive literature on the topic. But there has been far less attention paid to the role self-regulation can play in spurring and enabling innovation and growth within emerging industries. These industries—both currently ascendant ones such as hydrogen and artificial intelligence, as well as formerly new (but now well established) activities in hydraulic fracturing and Internet communications—plausibly benefit from self-regulation’s ability to coordinate economic actors and reassure often skeptical publics. Examining the ways that self-regulation impacts this special type of …

The Globalization Of Copyright Exceptions For Ai Training, Matthew Sag, Peter K. Yu

Faculty Scholarship

Generative AI, machine learning and other computational uses of copyrighted works pose profound questions for copyright law. This article conducts of global survey of how different countries have attempted to answer these questions in relation to the unauthorized use of copyrighted works for training. Although the world has yet to achieve international consensus on this issue, an international equilibrium is emerging. Jurisdictions with common law and civil law traditions, and with varying economic conditions, technological capabilities, political systems, and cultural backgrounds, have found ways to reconcile copyright law and AI training. In this equilibrium, countries recognize that text data mining, …

The Great Unsettling: Administrative Governance After Loper Bright, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest …

Moral Politics Theory Applied To Abortion: Utopias, Dystopias, And Dobbs, Susan Ayres

Faculty Scholarship

This article examines Moral Politics Theory (MPT) as a way to understand current tensions in the US concerning reproductive justice. MPT, as developed and researched for over thirty years by cognitive scientist, George Lakoff, provides a way to explain differences in political worldviews. According to Lakoff’s research in Moral Politics and Don’t Think of an Elephant!, conservatives tend to hold a strict-father model, and progressives hold a nurturant-parent model. People in the political middle tend to endorse both models; Lakoff labels those in the middle as “biconceptuals,” and discusses how this group is most susceptible to persuasion because metaphors frame …

Law, Conflict, And Hybrid Warfare: A Teaching Imperative For A Changing World, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Lawyers increasingly find themselves at the frontlines of the battlefield, just not in the traditional sense. Hybrid warfare is a conflict form that combines traditional military offensive measures with nontraditional methods, including the harnessing of legal systems to achieve strategic goals. Lawyers have always been at the frontline of typical legal risk assessment, thinking about a client's risk of liability or regulation costs generally. Now, lawyers must stand at the ready for a lot more: lawyers must be prepared for cyber-attacks, disinformation campaigns using artificial intelligence, the use of court systems to suppress reporting or shield bad actors, and so …

The United States Healthcare System: From Medicare To Post-Pandemic Health Policy, William M. Sage

Faculty Scholarship

My purpose in this essay is to comment on national health policy in the United States over the past sixty years.  My conclusions are less optimistic than what I had hoped when I began my teaching and research career in the 1990s to be able to say in 2025.  In particular, the successful expansion of publicly supported health coverage via the passage of the Affordable Care Act (“ACA” or “Obamacare”) in 2010 seems to have triggered -- though I hesitate to say that it caused – a backsliding from broader commitments to clinical performance, population health, and social solidarity that …

Determinants Of Socially Responsible Ai Governance, Daryl Lim

Faculty Scholarship

The signing of the first international AI treaty by the United States, European Union, and other nations marks a pivotal step in establishing a global framework for AI governance, ensuring that AI systems respect human rights, democracy, and the rule of law. This article advances the concepts of justice, equity, and the rule of law as yardsticks of socially responsible AI—from development through deployment—to ensure that AI technologies do not exacerbate existing inequalities but actively promote fairness and inclusivity. Part I explores AI’s potential to improve access to justice for marginalized communities and small and medium-sized law firms while scrutinizing …

Discord And The Pentagon's Watchdog: Countering Extremism In The U.S. Military, Amy Gaudion

Faculty Scholarship

In his 2022 book, Ward Farnsworth crafts a metaphor from the lead-pipe theory for the fall of Rome to consider how rage and misinformation traveling through today’s technology-enabled pipes are poisoning our civic engagement and threatening our governmental structures: “We have built networks for the delivery of information––the internet, and especially social media. These networks too, are a marvel. But they also carry a kind of poison with them. The mind fed from those sources learns to subsist happily on quick reactions, easy certainties, one-liners, and rage.”1 This Article carries the metaphor into a new context and considers what should …

Zoning The Subsurface, Hannah Jacobs Wiseman, Anne Menefee, Seth Blumsack, Michael Helbing

Faculty Scholarship

The vast rock formations underlying the United States stand at an important Demsetzian turning point, at which the externalities of inadequately defined property rights justify the costs of solidifying formal property rights for this resource. This need arises from the growing scarcity of pore space (tiny openings) in subsurface rocks—property that is critical to address climate change. Efforts to mitigate and adapt to climate impacts require large-scale underground storage of carbon dioxide, water, and energy within the pore space of subsurface reservoirs. The subsurface will also continue to house millions of miles of pipelines, hundreds of thousands of waste disposal …

Should We Watch The Watcher Or The Watched? The Transparency Debate In Auditor Regulation, Sarah Williams

Faculty Scholarship

Federal law has mandated the use of outside auditors by public companies since 1934. For much of that time, the audit industry watched itself. It monitored audit quality and decided how to address auditor misconduct. In 2002, Congress created the Public Company Accounting Oversight Board (“PCAOB” or “Board”) to watch the auditors. The legislation designed a regulatory scheme that presumed audit performance could be improved through an open and cooperative relationship between the regulator and the regulated audit firm. Congress created accountability for the agency by mandating that it disclose its oversight activities to the public (an approach characterized as …

From Ambiguity To Accountability: The Case For A Legal Definition Of Antisemitism In Academia, Andrea Martin

Faculty Scholarship

Following the October 7, 2023, Hamas attacks on Israel, U.S. college campuses experienced a sharp rise in antisemitic incidents, driven by an antizionism movement aimed at demonizing and delegitimizing the Jewish state and its supporters. A congressional investigation found that antisemitism persisted at prominent universities because administrators repeatedly failed to denounce antizionist conduct that functions as a vehicle for harassment of Jewish students and neglected to enforce their own nondiscrimination policies. The congressional committee, as well as several university antisemitism task forces, identified antizionism as a primary driver of campus antisemitism and strongly recommended that university leaders recognize and address …

Vesting Villainy: The Call To Ban 401(K) Vesting Schedules, Samantha Prince

Faculty Scholarship

The American employee’s efforts to accumulate retirement wealth have been stunted by 401(k) plan vesting schedules for over half a century, yet vesting schedules continue to be legally permissible and pervasively used. Empirical research now exists to show the astronomical number of American workers that annually lose their employer contributions due to vesting schedules—over 1.8 million across 909 plans in 2022 alone. The same research also reveals that in 2022, workers forfeited over $1.5 billion in retirement savings. Critically, employers recycled over 82% of these funds, directly reducing their own contribution obligations. Many private-sector employees in the United States rely …

How Artificial Intelligence Will Shape Securities Regulation, Gabriel Rauterberg

Faculty Scholarship

How will the increasing prevalence and sophistication of artificial intelligence (AI) change the doctrine and practice of securities law? My main thesis is that it will push securities regulation toward a more systems-oriented approach. This approach will replace securities law’s emphasis, in areas like manipulation, on forms of enforcement targeted at specific individuals and accompanied by punitive sanctions with a greater focus on ex ante rules designed to shape an ecology of actors and information.

For Whose Benefit Is The Freedom Of Speech?, Vincent A. Blasi

Faculty Scholarship

In United States v. Alvarez, the US Supreme Court ruled that an official of a water district who introduced himself to his constituents by falsely stating in a public meeting that he had earned the Congressional Medal of Honor had a First Amendment right to make that demonstrably untrue claim. Audience members misled by the statement might well be considered to have a First Amendment interest in not being directly and knowingly lied to in that way. Other members of the community might be thought to have a First Amendment interest in public officials such as Xavier Alvarez telling …

Fixing Mfw: Fairness And Vision In Controller Self-Dealing, Zohar Goshen, Assaf Hamdani, Dorothy S. Lund

Faculty Scholarship

The legal regime governing controlling shareholders relies on the ability of Delaware courts to police conflicted transactions under the stringent "entire fairness" standard of review. This review involves both implicit valuation – evaluating the transaction process, and explicit valuation – assessing the fairness of the transaction's financial terms. This Article reveals a critical flaw in this regime: courts cannot reliably engage in valuation when the transaction involves an entrepreneur's idiosyncratic vision for the company. As a result, there is a gaping hole in Delaware's framework for policing the fairness of controller transactions.

Delaware courts have developed guardrails to avoid judicial …

Competitive Populism, Madhav Khosla

Faculty Scholarship

The preoccupation of comparative constitutional lawyers over the past decade or so has been the rise of authoritarian populism. This chapter focuses on one possible pathway that might follow our present political moment: competitive populism. This phase will involve a certain kind of institutional vacuum: the prior institutions, associated with liberal constitutional democracy, will not lend themselves to being rebooted. In reflecting on this possible future, this chapter explores the nature and form of deinstitutionalization that has occurred under authoritarian populism, and the elements that define the emerging constitutional framework. The implication here is that what will be crucial …

Stories, Statistics, And The Regulation Of Alternative Data, Aniket Kesari, Mark Verstraete

Faculty Scholarship

Financial technology has long relied on data like an applicant’s current indebtedness to make decisions about who gets access to new credit, but AI is now enabling credit determinations based on some unusual inputs. This “alternative data”—or data that is not intuitively connected to creditworthiness—includes information like a consumer’s online shopping habits, whether they paid their rent and utility bills, and even how many friends they have on social media. The use of this kind of data has exciting potential to expand access to credit but exemplifies a well-known feature of machine learning: It works by finding nonintuitive relationships in …

Collective Management Of Copyrights And Human Rights In An Age Of Technological Automation, Laurence R. Helfer, Giulia Priora

Faculty Scholarship

Collective management organizations (CMOs) across the world have remained key to the exercise and enforcement of copyrights and neighbouring rights of individual creators notwithstanding the rapid development of digital technologies and their decentralizing potential. This chapter provides an up-to-date legal analysis on the role and activities carried out by CMOs vis-à-vis the protection of creators’ rights as international human rights. By scrutinizing key treaty provisions and interpretative documents, the analysis reveals how a human rights framework supports numerous functions performed by CMOs. However, significant conflicts may arise from certain practices and policies of CMOs concerning, for example, mandatory membership, promotion …

The Credit Markets Go Dark, Jared A. Ellias, Elisabeth De Fontenay

Faculty Scholarship

Over the past generation, conflicting trends have reshaped the ownership of corporate equity on the one hand and corporate debt on the other. In equity, the two great trends have been the shift from public markets to private ownership and the consolidation of American companies’ stock in the hands of powerful investment funds. In debt, by contrast, the great trends have been a shift from private loans to quasi-public markets and dispersed ownership.

In this Article, we chronicle the recent and dramatic reversal of these trends in the debt markets. Private investment funds executing a “private credit” strategy have become …

Racial Disparities In Crime-Based Removal Proceedings, Emily Ryo, Ian Peacock, Weston Ley, Christopher Levesque

Faculty Scholarship

Whether and to what extent racial minorities experience harsher treatment or face worse outcomes in court are questions of fundamental importance for any justice system. Questions of racial inequality are especially salient in the context of removal proceedings that are triggered by immigrants’ criminal history. Many individuals in crime-based removal proceedings are immigrants of color who face a host of legal disadvantages that are tantamount to double penalties for the same crime for which they have already been punished through the criminal justice system. This Article offers, for the first time, systematic empirical analyses of crime-based removal proceedings decided between …

Money: A Functional Analysis, Steven L. Schwarcz

Faculty Scholarship

Most people currently think of money as government-issued paper certificates or coins that specify units of currency, such as dollars or euros. The advent of digital currencies, which appear abstract because of their intangibility, is therefore confounding almost everyone.

This Article argues that money should also be viewed functionally—as a “right” that serves one or more of the generally accepted functions of money. The Article focuses on two of money’s most generally accepted functions: to serve as a medium of exchange to facilitate the sale of goods and services, and to serve as a store of value. To perform these …

The Reliability Response To Patent Law’S Ai Challenges, Arti K. Rai

Faculty Scholarship

Pervasive AI use adds newfound importance to longstanding debates over patent timing and reliability. Patent claims on speculative ideas generated by AI, or even the infusion of speculative AI-generated ideas into the public domain, may defeat patent incentives for more careful research. Although challenges that AI use poses for patent validity requirements like human inventorship and nonobviousness have received more attention, reliability is equally important.

Indeed, as this Article argues, the issues are linked. If requirements for inventorship and nonobviousness were adjusted to emphasize reliability, a human role could be preserved, and AI use would not necessarily threaten patents. Currently, …

Judicial Reform From The Inside Out, Daniel Epps, Marin K. Levy

Faculty Scholarship

The Judiciary Act of 1925, the subject of this Symposium, is known as “the Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous, perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in judicial reform efforts—what we call judicial reform from the inside out.

We survey examples of judges participating in reform debates from across …

“Murder The Media”: Press Freedom, Violence, And The Public Sphere, Joseph Blocher

Faculty Scholarship

The first goal of this chapter is to argue that the press as an institution is entitled to special solicitude under the First Amendment, not only because it is textually specified in the Constitution or because it serves important roles such as checking public and private power, but because it can contribute to the marketplace of ideas in ways that a healthy democracy needs. In other words, the press as an institution can provide an important link between the First Amendment’s epistemic and democratic values. The chapter’s second goal is to provide a rough and preliminary sketch of the relationship …

Interlocking Directorates In The United States, Yaron Nili

Faculty Scholarship

In corporate America, directors wield increasing influence across multiple companies, often within the same industry (“horizontal directors”), which creates tension between antitrust laws and corporate governance. Horizontal directors are well-positioned to bring industry expertise and potentially increase higher profits, benefiting shareholders but also possibly enabling potential collusion. This chapter provides an overview of the prevalence of horizontal directors, the regulatory grey space in which they exist and the connection to some recently debated issues, including that of common ownership by institutional investors. To inform this debate, this chapter provides a thorough overview of horizontal directors from corporate and antitrust perspectives …

Quantifying Riverine Plastic Pollution Using Participatory Science And Trash Traps, Nancy Lauer, Madison Haley, Emily Sutton, Rob Clark, Hannah Woodburn, Emma Crider, Kaity D’Angelo, Cecilia Kammire, Brandon Jones, David Caldwell, Taylor Register, Emily Fritz, Samantha Krop, Riley Lewis, Lisa Rider, Edgar Miller, Stephanie Stephens, Louisa Pitney, Emma Kaufman, Emma Stewart, Jason A. Somarelli, Michelle B. Nowlin

Faculty Scholarship

Local governments and environmental nonprofits are increasingly using trash traps to intercept and remove escaped plastics and other litter from stormwater systems and surface waters. In this paper, we demonstrate the utility of these devices for collecting data that provide insights into riverine litter sources and solutions. Between 2021 and 2024, seven Waterkeeper organizations in North Carolina maintained 21 in‐stream trash traps in watersheds across the state and trained staff and volunteers to record the types and quantities of litter during cleanouts. Over this period, Waterkeeper organizations and their volunteers documented 150,750 pieces of litter captured by traps. Captured litter …

Rethinking Human Rights Treaty Withdrawals: A Process-Based Approach, Laurence R. Helfer, Başak Çalı

Faculty Scholarship

This article presents the case for reconsidering the rules governing withdrawals from human rights treaties that permit unilateral exit. Once a rarity, such withdrawals have been on the rise across the globe. We propose a process-based approach to address this trend. The heart of our proposal focuses on sequenced domestic and international processes to publicise and scrutinise the nearly unfettered authority of executive branch officials to exit from such human rights treaties. This approach requires that national executives explain and justify a decision to withdraw, which can then be evaluated by a wide range of domestic and international actors. Drawing …