Digital Commons Network^™

Courting Censorship, Philip A. Hamburger

Faculty Scholarship

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …

Competition And Congestion In Trademark Law, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna

Faculty Scholarship

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this Article, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being …

The Right To A Glass Box: Rethinking The Use Of Artificial Intelligence In Criminal Justice, Brandon L. Garrett, Cynthia Rudin

Faculty Scholarship

Artificial intelligence (“AI”) increasingly is used to make important decisions that affect individuals and society. As governments and corporations use AI more pervasively, one of the most troubling trends is that developers so often design it to be a “black box.” Designers create AI models too complex for people to understand or they conceal how AI functions. Policymakers and the public increasingly sound alarms about black box AI. A particularly pressing area of concern has been criminal cases, in which a person’s life, liberty, and public safety can be at stake. In the United States and globally, despite concerns that …

Evidence-Based Transitional Justice: Incorporating Public Opinion Into The Field, With New Data From Iraq And Ukraine, Mara Revkin, Ala Alrababah, Rachel Myrick

Faculty Scholarship

The field of “transitional justice” refers to a range of processes and mechanisms for accountability, truth-seeking, and reconciliation that governments and communities pursue in the aftermath of major societal traumas, including civil war, mass atrocities, and authoritarianism. This relatively new field emerged in the 1980s as scholars, practitioners, and policymakers looked for guidance to support post-authoritarian and post-communist transitions to democracy in Eastern Europe and Latin America. Since then, the field has grown rapidly—so rapidly that it is outpacing its capacity to learn from past mistakes. Recent methodological advances in the study of public attitudes about transitional justice through quantitative …

The Rise Of Private Equity Continuation Funds, Kobi Kastiel, Yaron Nili

Faculty Scholarship

This Article provides the first comprehensive examination of an emerging practice within the private equity sector: continuation funds. Continuation funds break from the traditional private equity model by allowing sponsors to hold on to assets beyond the typical fund term and, instead of selling the assets to third parties, sell them to their own newly established fund. Lauded by the private equity industry as providing “optionality” to investors by allowing them to cash out or roll over, continuation funds have grown to represent a major segment of investment activity in the United States. Despite their surging popularity among private equity …

The Children Are Our Future (Not Our Future Criminals): Protecting South Carolina’S Youngest Citizens By Setting A Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

No abstract provided.

Too Young To Suspend: Ending Early Grade School Exclusion By Applying Lessons From The Fight To Increase The Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

In many respects, the evolution of juvenile court reform and school discipline reform follow similar trajectories. This Article begins by tracking those respective evolutions. Part I outlines the evolution of the juvenile court system in the United States and focuses on the fledgling system’s distinction of children from adults and its “rehabilitative ideal” that children could outgrow challenging behavior if given the right treatment and services. After a long period of “adultification” of the juvenile court in response to rising crime rates, more recent reform efforts have focused on returning to the early court’s rehabilitative model, including policies that would …

From Pollution To Resource: Advancing Swine Waste Treatment In The Usa, Viney P. Aneja, Ryke Longest, Matias B. Vanotti, Ariel A. Szogi, Gudigopuram B. Reddy

Faculty Scholarship

Concentrated animal feeding operations (CAFOs) have led to environmental challenges, specifically waste management. Swine CAFOs generate large amounts of waste, requiring proper treatment to avoid air and water pollution. Conventional waste management technologies, such as lagoon and spray field systems, do not prevent air and water pollution impacts. Research for the past few decades led to recommendations for waste treatment technologies superior to lagoons and spray fields. Private environmental sustainability initiatives focused on reducing greenhouse gas emissions in the food supply chain have implemented biogas digester projects for capturing methane in covered swine lagoons to reduce greenhouse gas emissions. However, …

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Faculty Scholarship

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

The Limits Of Individual Prosecutions In Deterring Corporate Fraud, Samuel W. Buell

Faculty Scholarship

Fifteen years after the largest financial scandal and economic crisis in a century, discussion of the problem of corporate crime too often borders on cliché. Endless calls from Congress, the media, the public, many scholars, and even the Justice Department itself, to recommit, over and over, to locking up more managers and executives to deter corporate wrongdoing portray the problem as relatively straightforward and blame legislative and executive failure of will. Through examination of the litigation record from over 100 prosecutions spanning the period from the 2008 financial crisis to the present, this Article presents evidence that relying on individual …

Mickey, Disney, And The Public Domain: A Ninety-Five-Year Love Triangle, Jennifer Jenkins

Faculty Scholarship

No abstract provided.

U.S. Public Perceptions Of The Sensitivity Of Brain Data, Shenyang Huang, Umika Paul, Shikhar Gupta, Karan Desai, Melinda Guo, Jennifer Jung, Beatrice Capestany, William D. Krenzer, Dylan Stonecipher, Nita A. Farahany

Faculty Scholarship

As we approach an era of potentially widespread consumer neurotechnology, scholars and organizations worldwide have started to raise concerns about the data privacy issues these devices will present. Notably absent in these discussions is empirical evidence about how the public perceives that same information. This article presents the results of a nationwide survey on public perceptions of brain data, to inform discussions of law and policy regarding brain data governance. The survey reveals that the public may perceive certain brain data as less sensitive than other ‘private’ information, like social security numbers, but more sensitive than some ‘public’ information, like …

Transdisciplinary Doctoral Training To Address Global Sustainability Challenges, Zoie Taylor Diana, John Virdin, Michelle B. Nowlin, Nishad Jayasundara, Daniel Rittschof

Faculty Scholarship

No abstract provided.

Taking Liberties: The Supreme Court’S New Hierarchy Of Rights And Its Victims, Richard B. Katskee

Faculty Scholarship

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …

Grid Reliability In The Electric Era, Joshua C. Macey, Shelley Welton, Hannah Jacobs Wiseman

Faculty Scholarship

The United States has delegated the responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Although NERC is a crucial example of industry-led governance—and regulates in an area that is central to our economy and basic human survival—this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To decarbonize its economy, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run largely on clean but intermittent renewable resources. These new resources …

Public Confidence, Judges, And Politics On And Off The Bench, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Public confidence in the judiciary is at a low point. There are multiple reasons for the public’s waning faith in judges, but the perception that they are merely politicians in robes plays a significant part. This article analyzes the politicization of the judiciary and argues that while ideology invariably affects judicial decisionmaking, the professional identity of judges limits its impact. A commitment to judicial norms and processes as well as a concern for professional reputation serve as a real break on partisan loyalty and affiliation. The task is to preserve and promote this professional identity and convey to the public …

Older Women Workers, The Pandemic, Employment Discrimination And Lifetime Disadvantage, Susan Bisom-Rapp

Faculty Scholarship

As a group, older women workers were among those most severely impacted by the COVID-19 crisis. Drawing from both intersectionality and cumulative disadvantage theory, the Model of Lifetime Disadvantage created by Bisom-Rapp and Sargeant helps frame the position of these workers in the labor market prior to and during the pandemic. The model also explains why and how disjointed, incremental legal interventions are unable to meet the challenge of gendered ageism, which surged during the crisis. Disasters produce impacts unevenly on individuals and communities. Older women are a diverse group, whose social position is mediated by race, ethnicity, sexual orientation …

Municipal Abortion Bans: When Local Control Clashes With State Power, Laura D. Hermer

Faculty Scholarship

Anti-abortion activists are using different strategies in different states. Some focus on restricting zoning for abortion clinics. Others address the licensure of abortion providers. Some purport to create a cause of action for private individuals to sue neighbors and others in their municipality who get an abortion. Still, others seek to enforce the federal Comstock Act, alleging that it prohibits the mailing of abortifacients and preempts state abortion law to the contrary.

This Article evaluates the likely success of each of these strategies in two states in which they are currently being tried: Nebraska and New Mexico. Part I will …

Accommodating Trans Rights, Susan Hazeldean

Faculty Scholarship

No abstract provided.

Carbon Emissions And Energy Benchmarking, Richard J. Sobelsohn

Faculty Scholarship

No abstract provided.

Mass Accommodations: Signposts To A Hidden Jurisprudence, Shirley Lin

Faculty Scholarship

No abstract provided.

Proxy Taxes: Taxing The Wrong Person Can Be The Right Policy, Linda Sugin

Faculty Scholarship

Congress seems unable to fix the inequities and inefficiencies that riddle the tax law. This article suggests such a new strategy for building a better tax system that Congress should find politically possible. It proposes taxing the wrong taxpayer for the right reasons-to raise revenue and improve fairness. It introduces a conceptual and theoretical framework for provisions that are already in the Internal Revenue Code, explaining why they should be understood as examples of "proxy taxes," and proposes that proxy taxes can solve many intractable problems in the law.

“Proxy taxes,” as defined in this article, impose liability on taxpayers …

Racial Targets, Atinuke O. Adediran

Faculty Scholarship

It is common scholarly and popular wisdom that racial quotas are illegal. However, the reality is that since 2020’s racial reckoning, many of the largest companies have been touting specific, albeit voluntary, goals to hire or promote people of color, which this Article refers to as “racial targets.” The Article addresses this phenomenon and shows that companies can defend racial targets as distinct from racial quotas, which involve a rigid number or proportion of opportunities reserved exclusively for minority groups. The political implications of the legal defensibility of racial targets are significant in this moment in American history, where race …

Long Live The Federal Rules Of Evidence!, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

The Federal Rules of Evidence have been pronounced dead. Indeed, the Federal Rules of Evidence have recently been declared dormant, stagnant, frozen, lethargic, and yes, deceased. In The Living Rules of Evidence, 170 U. Pa. L. Rev. 937 (March 2022), Professor Alexander Nunn claims that the Rules are lifeless, incapable of any meaningful change, and littered with anachronistic and even dangerous standards and provisions. To blame for the moribund state of the Federal Rules of Evidence is the bureaucratic and complex federal rulemaking process that requires amendments to traverse multiple constituencies in a multi-year process before taking effect. As a …

Regulating For Asymmetric Market Power : Beyond The Consumer Sovereignty Model, Olivier Sylvain

Faculty Scholarship

Recent policy developments suggest that consumer sovereignty models of regulation have substantial, if not fatal, limitations. Binding decisions by the European Data Protection Board in 2023, as well as other recent public law enactments in the EU and the US, overtly reject the assumption that individuals are best situated to manage how companies process or use their personal information. Prevalent online practices are too opaque. And the “ take it or leave it ” services that companies provide render individuals’ rights and commercial choices effectively meaningless. In short, the relative power of consumers as compared to the companies that collect, …

Corporate Speech And Corporate Purpose: A Theory Of Corporate First Amendment Rights, Sean J. Griffith

Faculty Scholarship

The negative speech right (the right to refrain from speaking) strains the standard rationale for corporate speech rights. First Amendment jurisprudence extends speech rights to corporations on a mix of intrinsic and instrumental rationales. The intrinsic rationale is derived from the natural rights of persons, and often thought not to apply to corporations. Meanwhile the instrumental rationale, grounded on the value of speech in promoting self-government, would seem not to apply to the negative right. Remaining silent, after all, does little to advance public debate.    This article uses the SEC’s shareholder proposal rule to examine the larger question of corporate …

A Roadmap For Sex Workers’ Rights Reform: Lessons Learned From Recent Legal Advancements, Chi Adanna Mgbako

Faculty Scholarship

The past decade has witnessed unprecedented growth in the legal recognition of sex workers’ rights. Recent legislation and court judgments strengthening sex workers’ rights protections have occurred in the Australian jurisdictions of the Northern Territory, Queensland, and Victoria, as well as in Belgium, India, and Malawi. These legal advancements conform with the goals of the global sex workers’ rights movement. They include newly decriminalized legal frameworks governing sex work, groundbreaking labor and anti-discrimination protections for sex workers, the striking down of vagrancy laws that indirectly target sex workers, and judicial directives on state protection of sex workers’ rights. Despite the …

Competition & Risk, Doni Bloomfield

Faculty Scholarship

No abstract provided.

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V. S. Subrahmanian, John Tunheim

Faculty Scholarship

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

Reexamining Enron's Regulatory Consequences, Steven L. Schwarcz

Faculty Scholarship

The downfall of Enron Corporation often epitomizes corporate fraud. One of the world’s fastest growing and most inventive companies, Enron had engaged in a range of complex structured hedging transactions designed to achieve accounting rather than operating results. Its principal motivation, though, was to avoid the risk of incurring financial-statement losses that could impair its credit rating and thereby destroy its primary business of derivatives-based energy trading.

Enron’s management has been criticized for engaging in these structured hedging transactions, and some of its managers were sent to jail. This symposium article concerning “Business and Financial Crimes” attempts to set forth …