Digital Commons Network^™

Intra-Eu Investment Disputes And The Monopoly Over The Interpretation Of Eu Law, Petros C. Mavroidis, Frederico Ortino

Faculty Scholarship

Following a recent European Charter Treaty (“ECT”) decision, it appears that the fate of intra-EU investment disputes, when adjudicated in fora other than the Luxembourg courts, is finally all but sealed. In Green Power, an arbitration tribunal confirmed prior decisions taken in different jurisdictions that there is no room for adjudicating intra-EU investment disputes away from Luxembourg. This decision sided with the approach already developed by the Court of Justice of the European Union (“CJEU”) in three decisions, namely, Achmea, Komstroy, and PL Holdings, which in turn led to legislative action by the Energy Charter Treaty aiming to put an …

Red White And Blue – And Also Green: How Energy Policy Can Protect Both National Security And The Environment, David M. Schizer

Faculty Scholarship

Too often, energy policy protects the environment while neglecting national security, or vice versa. Since each goal is critical, this Article shows how to advance both at the same time.

For national security, the key is to avoid depending on the wrong suppliers. If they are vulnerable to attack (like some Middle Eastern producers), they need to be defended. Or, if they are themselves geopolitical threats (like Russia and Iran), their energy exports fund harmful conduct. This Article breaks new ground in showing why suppliers tend to be insecure or menacing: authoritarian regimes — which are more likely to pose …

Life, Liberty, And Data Privacy: The Global Cloud, The Criminally Accused, And Executive Versus Judicial Compulsory Process Powers, Rebecca Wexler

Faculty Scholarship

U.S. policymakers’ responses to a wave of global data privacy laws are creating a deep structural unfairness in the criminal legal system. In an era of cloud computing, when data about communications and activities occurring anywhere in the world can be stored on servers located anywhere else, access to such data can make the difference between convictions and acquittals. At the same time, new global data privacy laws risk cutting off cross-border access to digital evidence in criminal investigations. Recognizing the threat to law enforcement interests, U.S. policymakers enacted the CLOUD Act of 2018 to create special procedures for law …

Trump’S Political Action Committee Wants A $60 Million Refund On Paying His Legal Fees – 3 Key Things To Know About Pacs, Richard Briffault

Faculty Scholarship

Save America, one of former President Donald Trump’s political organizations, is seeking a US$60 million refund from Make America Great Again, Inc., another Trump political organization that is less strictly regulated by federal rules.

Save America has paid Trump’s legal fees connected to multiple investigations into alleged criminal activities and is now down to less than $4 million in its account, The New York Times reported on July 31, 2023. It started 2022 with $105 million in the bank.

Trump’s use of political action committees, often known as PACs, to pay his mounting legal fees has raised questions about these …

Black Boarding Academies As A Prudential Reparation: Finis Origine Pendet, Roy L. Brooks

Faculty Scholarship

With billions of dollars pledged and trillions of dollars demanded to redress slavery and Jim Crow (“Black Reparations”) the question of how best to use these funds has moved into the forefront of the ongoing campaign for racial justice in our post-civil rights society. Reparatory strategies typically target the norms and structures that sustain racial disadvantage wrought by slavery and Jim Crow. The goal of such transitional reparations is to extinguish the menace of white supremacy and systemic racism across the board. Restructuring in housing, education, employment, voting, law enforcement, health care, and the environment—social transformation—is absolutely needed in the …

Return To Sender?: Analyzing The Senior Leader “Open Letter” On Civilian Control Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

In response to the September 2022 open letter, “To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations,” by eight former secretaries of defense and five former chairmen of the Joint Chiefs of Staff, this Article adds a piece to the unsettled puzzle of civil-military relations. The Letter attempts to detail “core principles or best practices” (CP/BP) regarding civil-military relations, and in response, this Article comments on and clarifies these well-intended efforts. This Article sequentially dissects each CP/BP in today’s context of hyper-politicization, partisanship, technology, and more. Where necessary, the Article explains how the law may …

The Possible Futures Of American Democracy, Jedediah Purdy

Faculty Scholarship

No abstract provided.

Extreme Risk Protection Orders In The Post-Bruen Age: Weighing Evidence, Scholarship, And Rights For A Promising Gun Violence Prevention Tool, Andrew Willinger, Shannon Frattaroli

Faculty Scholarship

Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. This Article notes that the presence of multiple constitutional challenges in many ERPO-related cases has confused judicial …

Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet

Faculty Scholarship

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …

Independence Reconceived, Claire Hill, Yaron Nili

Faculty Scholarship

What makes a director independent? Scholars, regulators, and investors have grappled for decades with the fleeting notion of director independence. Originally conceived as guardians of shareholder interests that could safeguard a corporate board’s ability to check management’s power, independent directors have become a marquee feature of modern corporate governance. But do the corporate actions of directors that are considered “independent” under current standards comport with what we think independence requires? In many cases, the answer would seem to be “no.” From a lack of observable financial impact to the unabated flow of corporate scandals, independent directors seem to keep failing …

The Meta Oversight Board's Human Rights Future, Laurence R. Helfer, Molly K. Land

Faculty Scholarship

Responses to the new Oversight Board created by Facebook (now Meta) have run the gamut from enthusiastic to overtly suspicious. Many observers are highly skeptical of the Board’s ability to hold Meta accountable or to protect the company’s users. Much of this skepticism is based on a misplaced analogy between the Board and domestic courts. We argue, in contrast, that the core challenges and opportunities that the Oversight Board faces are similar to those confronted by international human rights tribunals. Analyzing the Oversight Board as a de facto human rights tribunal sheds light on the strengths and weaknesses of its …

Finance Against Law: The Case Of China, Shitong Qiao

Faculty Scholarship

Can there be a highly developed financial market without legal protection for investors and creditors? The influential law and finance literature is built on the assumption that legal protection is essential to the development of an impersonal financial market. This Article investigates how two financial markets of trillions of dollars have developed extralegally in the past two decades despite the risk of regulatory enforcement and contract defaults. Specifically, I examine (1) how Chinese internet companies from Sina to Alibaba have designed contracts to circumvent the Chinese government’s ban on foreign capital in its internet industry and (2) how Chinese entities …

Cryptic Patent Reform Through The Inflation Reduction Act, Arti K. Rai, Rachel E. Sachs, W. Nicholson Price Ii

Faculty Scholarship

If a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (“IRA”) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to …

Corporate Governance And Risk-Taking: A Statistical Approach, Steven L. Schwarcz

Faculty Scholarship

Because prudent corporate governance often requires managers to take risks based on statistically expected outcomes, corporate failures that have a small but finite chance of occurring cannot always be prevented. This Article makes three related claims about risk-taking in corporate governance.

This Article’s first claim is that managers should not automatically be presumed to be at fault for corporate failures that result from risk-taking decisions based on statistical methodologies that reasonably justify the decisions ex ante. Conceptually, the business judgment rule should protect corporate managers for engaging in a reasonable decision-making process, including one that is statistically based. Jurisdictionally, however, …

What We Talk About When We Talk About Tax Shelters, Lawrence A. Zelenak

Faculty Scholarship

This Response to Jonathan H. Choi’s recent Article, Beyond Purposivism in Tax Law, endorses Choi’s preference for purposivist approaches to the interpretation of tax statutes, but notes and explains three areas of disagreement. First, this Response proposes a different definition of a tax shelter, under which the “puzzle” motivating Choi’s analysis disappears. Second, this Response explains how an inductive approach to tax shelter analysis can produce important insights likely to be missed by Choi’s preferred deductive approach. Finally, this Response criticizes Choi’s conclusion that “the normative [policy] preferences of tax experts” should prevail over legislative intent; this Response instead urges …

Victim Civil Litigation And The Elusive Goal Of Corporate Accountability, Howard M. Erichson

Faculty Scholarship

This article, written for the Clifford Symposium on Tort Law and Public Policy, examines the challenges of using victim civil litigation to hold corporations accountable for serious wrongdoing. First, it offers thoughts on defining the terms of victim civil litigation, corporate wrongdoing, and corporate accountability. Next, taking seriously the distinction between accountability grounded in punishing the wrongdoer and accountability grounded in providing redress to victims, it considers four major hurdles and how they interfere with each kind of accountability. It calls these hurdles the information asymmetry problem, the collective action problem, the Whac-a-Mole problem, and the agency problem. Using the …

Private Law And Public Discourse, Aditi Bagchi

Faculty Scholarship

Democracies need institutions that help to build public consensus on fundamental principles of justice. However, the major public institutions associated with this task – electoral institutions, the press, education, and civil society—each face a trade-off between a high degree of governmental control over their agendas, on the one hand, and self-segregation by participants, on the other. This Article identifies private law—the litigation of private claims and their judicial resolution—as an unlikely but ultimately critical site for building consensus on political principles. After laying out what public discourse requires (and what it does not), the Article argues that private law is …

Disrupting Carceral Logic In Family Policing, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Taming Online Public Health Misinformation, Tomer Kenneth

Faculty Scholarship

No abstract provided.

Criminal Terms, Anna Roberts

Faculty Scholarship

No abstract provided.

Rethinking International Investment Law: Form, Function & Reform, Stratos Pahis

Faculty Scholarship

No abstract provided.

Bridging The Gap In Lgbtq+ Rights Litigation: A Community Discussion On Bisexual Visibility In The Law, Nancy C. Marcus, Bendita Malakia, Ann E. Tweedy, Mya Reid

Faculty Scholarship

This essay discusses the genesis of BiLaw, a coalition of Bi+ lawyers and law students, and highlights the importance of a 2021 Lavender Law session organized by BiLaw in which representatives of LGBT rights organizations discussed the erasure of Bi+ persons in jurisprudence and the importance of, and their commitment to, serving the needs of the Bi+ community, along with those of other stakeholders. A transcript of the groundbreaking discussion follows the essay.

Shortlisted: A Conversation Between Judge Diane Wood, Renee Knake Jefferson, And Hannah Brenner Johnson, Renee Newman Jefferson, Hannah Brenner Johnson, Diane P. Wood

Faculty Scholarship

This article includes an edited excerpt from the introduction to Shortlisted: Women in the Shadows of the Supreme Court and a discussion with the book's authors led by Judge Diane Wood, a senior judge of the United States Court of Appeals for the Seventh Circuit. They discuss the book, the women who were passed over for seats on the Court, and the lessons their stories offer — for women judges and the legal profession as a whole.

Content Creation Or Interpolation: Ai Generative Digital Art In The Classroom, James Hutson, Martin Lang

Faculty Scholarship

The integration of generative artificial intelligence (AI) tools in art and design has disrupted the traditional creative landscape, leading to debates on the legitimacy of AI-generated art and the emergence of new markets such as non-fungible tokens (NFTs). The US Copyright Office’s February 21, 2023, ruling withdrawing copyright protection for AI-generated comic artwork, while protecting the accompanying text and arrangement, highlights the contested nature of AI art and suggests that significant human intervention in the creative process will be required for monetization. Whether considered content interpolation or content creation, AI generative content for the creation of art and design is …

Gonzalez V. Google: The Case For Protecting “Targeted Recommendations, Tomer Kenneth

Faculty Scholarship

No abstract provided.

Tragedy Of The Digital Commons, Chinmayi Sharma

Faculty Scholarship

Google, iPhones, the national power grid, surgical operating rooms, baby monitors, surveillance technology, and wastewater management systems all run on open-source software. Open-source software, or software that is free and publicly available, powers our day-to-day lives. As a resource, it defies economic logic; it is built by developers, many of whom are volunteers, who build projects with the altruistic intention of donating them to the digital commons. Developers use it because it saves time and money and promotes innovation. Its benefits have led to its ubiquity and indispensability. Today, over ninety-seven percent of all software uses open source. Without it, …

Gender Diversity Cultural Responsiveness Education In Speech-Language Pathology Graduate Programs: A Pilot Survey, Tara Dickinson, Molly Normandin, Rachel W. Mulheren

Faculty Scholarship

Purpose: Gender-affirming voice therapy aims to align a person’s voice and communication with their gender identity. Historically, transgender and gender-nonconforming (TGNC) individuals have been marginalized and continue to face significant healthcare disparities. The goal of this research was to examine the self-perceived preparedness of recent speech-language pathology (SLP) graduates for working with TGNC clients. A survey was developed to include both multiple choice and open-ended questions. Topics included graduate-level training on working with TGNC individuals, perceived preparedness to work with this client population, educational resources sought by respondents, and suggested improvements for SLP graduate programs. Thirty recent (since 2016) SLP …

Anti-Carceral Human Rights Advocacy, Chi Adanna Mgbako, Nate Johnson, Vivienne Bang Brown, Megan Cheah, Kimya Zahedi

Faculty Scholarship

The theory of carceral abolition entered the mainstream during the 2020 global protests for Black lives. Abolition calls for divestment from carceral institutions like police and prisons in favor of the expansion of social and economic programs that ensure public safety and nurture community well-being. Although there is little scholarship explicitly linking abolition to international human rights, there are scholars and advocates who implicitly echo abolitionist theories by critiquing the international human rights regime's overreliance on criminal law. These critics argue that relying on carceral institutions to address impunity for human rights abuses and promote gender justice does little to …

Disclosing Corporate Diversity, Atinuke O. Adediran

Faculty Scholarship

This Article’s central claim is that disclosures can be used instrumentally to increase diversity in corporate America in terms of race, gender, sexual orientation, and disability. Until recently, scholars and policymakers have underappreciated this possibility because diversity was often omitted from the larger Environmental, Social, and Governance (“ESG”) disclosures context, even though, as this Article empirically shows, public companies make diversity disclosures in that context.

Diversity disclosures are important not only for shareholders’ interests in transparency, but also for the benefit of other stakeholders, including employees, customers, and the communities in which companies operate, who want to know whether companies …

Taxation And The Constitution, Reconsidered, John R. Brooks, David Gamage

Faculty Scholarship

Our current income tax is unable to address growing concentrations of financial wealth and resulting economic inequality. But reforms to address these problems—such as a wealth tax or an income tax on unrealized capital gains—are stymied by fears of unconstitutionality. The basic claim is that wealth taxes and similar reforms are “direct taxes” under the Apportionment Clauses of the Constitution, and since apportionment is not feasible, these taxes are impossible. But this claim is wrong.

This Article shows that there is in fact a long history of federal taxes similar to wealth taxes—both apportioned and uniform—and a well-developed constitutional tax …