Digital Commons Network^™

Rights Violations As Punishment, Kate Weisburd

Faculty Scholarship

Is punishment generally exempt from the Constitution? That is, can the deprivation of basic constitutional rights—such as the rights to marry, bear children, worship, consult a lawyer, and protest—be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not “cruel and unusual” under the Eighth Amendment? On one hand, such state intrusion on fundamental rights would seem unconstitutional. On the other hand, such intrusions are often less harsh than the restriction of rights inherent in prison. If a judge can sentence someone to life in prison, how can a judge not …

The Immigration Shadow Docket, Faiza Sayed

Faculty Scholarship

No abstract provided.

Tax Benefits And Fairness In K–12 Education, Linda Sugin

Faculty Scholarship

This Article examines the tax law’s subsidies for inequality and segregation in primary and secondary education, analyzing the federal charitable deduction and education savings plans, and state tax credits for education. It argues that the tax system diverts funds from traditional public education into private education, fostering economic, racial, religious, and political separation. The tax law also operates to increase resource inequality within public education by subsidizing schools that affluent children attend. In a novel analysis, the Article contends that the jurisprudence around the charitable deduction for education—though longstanding—is legally incoherent, and argues that no deduction should ever be allowed …

Punishment Without The State, I. Bennett Capers

Faculty Scholarship

People are speaking up on social media and in other virtual spaces, sometimes to spur the criminal process, sometimes in response to the criminal system’s perceived failures, and even sometimes completely indifferent to the criminal system. People are expressing moral condemnation. They are shaming, shunning, banishing, and canceling. What are the implications of punishment through virtual spaces, in lieu of the usual—and now seemingly antiquated—space of physical courtrooms? More broadly, when all the world can become a virtual courtroom, a “place” for judgment, what are the implications for how we think about crime itself? And perhaps most importantly, if social …

Reflection, Deliberation, And Dialogue: Stipanowich's Contribution To Dispute Resolution, Jacqueline Nolan-Haley .

Faculty Scholarship

No abstract provided.

Professor Samuel H. Pillsbury's Science Of Mind: A Tribute, Deborah W. Denno

Faculty Scholarship

No abstract provided.

The Need For An Asian American Supreme Court Justice, Vinay Harpalani

Faculty Scholarship

In her insightful Comment on Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (hereinafter SFFA cases), Dean Angela Onwuachi-Willig critiques Chief Justice Roberts’s majority opinion for its “simplistic understanding of race and racism.” She interrogates the “doxa” — the “unexamined cultural beliefs” that structure the majority’s narrative on racial experiences. Onwuachi- Willig elucidates how Chief Justice Roberts accepts whiteness as a tacit norm and ignores the marginalization of people of color. She contrasts this with the “fuller” history of American racism brought forth by Justices …

Rolling Back Transparency In China's Courts, Benjamin L. Liebman, Rachel E. Stern, Xiaohan Wu, Margaret Roberts

Faculty Scholarship

Despite a burgeoning conversation about the centrality of information management to governments, scholars are only just beginning to address the role of legal information in sustaining authoritarian rule. This Essay presents a case study showing how legal information can be manipulated: through the deletion of previously published cases from China’s online public database of court decisions. Using our own dataset of all 42 million cases made public in China between January 1, 2014, and September 2, 2018, we examine the recent deletion of criminal cases from the China Judgements Online website. We find that the deletion of cases likely results …

Comparing Agency Costs In Contract Production: Private Equity M&A Versus Corporate And Sovereign Bonds, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

Different areas of transactional practice, such as M&A or high-yield bonds and sovereign bonds, vary in terms of the degree to which they are afflicted by agency problems. In some areas, clients are actively involved in deal making, and in others they are not present until well after the deal is done. If vulnerability to agency problems differs, and these agency problems impact the quality of contract production, one would expect those differences to appear when comparing contract production across practice areas. This Article compares one feature of contract production — the problems of encrusted and sticky boiler-plate — across …

The (Immediate) Future Of Prosecution, Daniel C. Richman

Faculty Scholarship

Even as others make cogent arguments for diminishing the work of prosecutors, work remains – cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group – judges, prosecutors and defense counsel- can provide. The (immediate) future also requires prosecutors to do …

Unexceptional Protest, Amber Baylor

Faculty Scholarship

Anti-protest legislation is billed as applying only in the extreme circumstances of mass-movements and large scale civil disobedience. Mass protest exceptionalism provides justification for passage of anti-protest laws in states otherwise hesitant to expand public order criminal regulation. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These laws might be better described as antiprotest expansions of public order legislation.

While existing critiques of these laws emphasize the chilling effects on …

Twenty Years Of Us Digital Copyright: Adapting From Analogue, Jane C. Ginsburg

Faculty Scholarship

This review of the period 2001–21 in US copyright law will summarize digital-dominated developments concerning the scope of exclusive rights and exceptions and liability regimes. It will address several developments, all related to the impact of the internet on the exploitation of works of authorship. Digital storage and communications have called into question the scope of the exclusive rights set out in the US Copyright Act, and they have considerably expanded the reach of the fair use exemption. They have strained statutory and common law regimes of secondary liability and prompted the development of a ‘volition’ predicate to primary liability. …

Europe's Digital Constitution, Anu Bradford

Faculty Scholarship

This Article uncovers the fundamental values underlying the European Union’s expansive set of digital regulations, which in aggregate can be viewed as Europe’s “digital constitution.” This constitution engrains Europe’s human-centric, rights-preserving, democracy-enhancing, and redistributive vision for the digital economy into binding law. This vision stands in stark contrast to the United States, which has traditionally placed its faith in markets and tech companies’ self-regulation. As a result, American tech companies today are regulated primarily by Brussels and not by Washington. By highlighting the distinctiveness and the global reach of the European digital constitution, this Article challenges the common narrative that …

Briggs V. Southwestern Energy Production: Hydraulic Fracturing And Subsurface Trespass, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

The tort of trespass to land has proven to be controversial as applied to airplane overflights (and more recently to drones) as well as to oil and gas production using hydraulic fracking technology. The key to applying trespass to intrusions above and below the surface of land is to distinguish between possession of land and the right to possess land. Surface owners have the right to possess the column of space above and below the surface (a kind of option value), but only to the extent that this space is subject to possible effective possession. The Pennsylvania Supreme Court in …

Publicizing Corporate Secrets, Christopher J. Morten

Faculty Scholarship

Federal regulatory agencies in the United States hold a treasure trove of valuable information essential to a functional society. Yet little of this immense and nominally “public” resource is accessible to the public. That worrying phenomenon is particularly true for the valuable information that agencies hold on powerful private actors. Corporations regularly shield vast swaths of the information they share with federal regulatory agencies from public view, claiming that the information contains legally protected trade secrets (or other proprietary “confidential commercial information”). Federal agencies themselves have largely acceded to these claims and even fueled them, by construing restrictively various doctrines …

Energy Insecurity Mitigation: The Low Income Home Energy Assistance Program And Other Low-Income Relief Programs In The Us, Andrea Nishi, Diana Hernández, Michael B. Gerrard

Faculty Scholarship

Energy insecurity, defined as the “inability to meet basic household energy needs,” can be both a chronic and an acute problem. Chronic energy insecurity manifests as an inability to access or afford adequate supplies of energy, while acute energy insecurity arises when infrastructural, maintenance, environmental, or other external sources disrupt or impede access to energy. A substantial number of individuals and families across the United States experience energy insecurity, which can lead to a variety of adverse consequences including residential instability and poor health outcomes.

Ignorance Of The Rules Of Omission: An Essay On Privilege Law, Rebecca Wexler

Faculty Scholarship

Evidentiary privileges--that is, rules that empower people to withhold evidence from legal proceedings-are one thread in a mesh of secrecy powers that control the flow of information in society. They are part and parcel of the laws, rules, norms, and practicalities that determine who can conceal and who can compel, that allocate power based on access to knowledge and its opposite. Despite the significance of privileges and of the harms that they produce, our understanding of this body of law has profound gaps.5 The questions posed above turn out to be more challenging than they might at first appear. Notwithstanding …

The End Of Asylum Redux And The Role Of Law School Clinics, Elora Mukherjee

Faculty Scholarship

The Biden Administration has perpetuated many of the prior administration’s hostile policies undermining access to asylum at the southern border. This Essay first examines these policies and then identifies emerging opportunities for law school clinics to address these new challenges, including by serving asylum seekers south of the U.S.-Mexico border.

Child Development And The Family Regulation System, Clare Huntington

Faculty Scholarship

Child abuse and neglect clearly harm children, but the risks that accompany involvement with the family regulation system (also known as the child welfare system), especially placement in foster care, also present considerable risks to child development. This chapter describes these competing risks to child development, the legal framework governing the family regulation system, and scholarly debates in the field. It then analyzes the system in the broader context of the legal regulation of children, showing that the family regulation system is out of step with other areas and in need of significant reform. A core problem with the system …

Event-Driven Suits And The Rethinking Of Securities Litigation, Merritt B. Fox, Joshua Mitts

Faculty Scholarship

Event-driven securities suits-ones that arise after an issuer has experienced some kind of disaster-have become increasingly prevalent in recent years. These suits are based on the fraud-on-the-market doctrine, a doctrine that ultimately gives rise to the bulk of the damages paid out in settlements and judgments pursuant to private litigation under the U.S. securities laws. The theory behind fraud-on-the-market cases is that when an issuer's share price has been inflated by a Rule-10b-5-violating misstatement, investors who purchased shares at the inflated price have suffered a compensable injury if they still hold the shares after the inflation is gone. Although these …

Killing Precedent: The Slaughter-House Constitution, Maeve Glass

Faculty Scholarship

This Essay offers a revisionist account of the Slaughter-House Cases. It argues that the opinion’s primary significance lies not in its gutting of the Privileges or Immunities Clause but in its omission of a people’s archive of slavery.

Decades before the decision, Black abolitionists began compiling the testimonies of refugees who had fled slavery. By 1872, this archival practice had produced a published record of Black struggle and become a platform for the celebration of Black resistance and a new era of Black leadership. Although the lead compiler of this record sent a copy to the Chief Justice, the …

There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco

Faculty Scholarship

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …

Directions For U.S. International Tax Policy, A Response To Hanna And Wilson, Stephen E. Shay, J. Clifton Fleming Jr., Robert J. Peroni

Faculty Scholarship

Christopher Hanna and Cody Wilson argue in U.S. International Tax Policy and Corporate America that an international tax reform proposal focusing on maintaining low financial accounting effective tax rates could win over proponents of full current rate taxation of foreign income as well as U.S. publicly traded corporate America. They propose combining full current rate taxation of foreign income with a reduced overall corporate tax rate of approximately 15%. This, they assert, could be roughly revenue neutral or raise revenue. As long-time proponents of full current taxation of foreign income subject to a credit for foreign taxes, we explain why …

Gender And The Social Structure Of Exclusion In U.S. Corporate Law, Matthew C. Jennejohn, Afra Afsharipour

Faculty Scholarship

Law develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers choose litigation strategies, craft arguments, and present their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail.

This Article focuses upon a particularly crucial way that the structure of professional networks may shape the path of the law. Prior qualitative research suggests that networks are a crucial source of information, mentoring, and opportunity, and that those social …

"Attacking" Big Data: Strategic Competition, The Race For Ai, And The International Law Of Cyber Sabotage, Gary P. Corn, Eric Talbot Jensen

Faculty Scholarship

This chapter begins with a discussion of the national security threat that China’s AI development efforts pose, and the importance of big data to those efforts. It then moves to a review of potential cyber-enabled operations, particularly as applied to data, that could impede or thwart China’s AI development. The chapter then proceeds to a review of the international law implications of cyber sabotage, beginning with a discussion of the jus ad bellum and followed by a review of other relevant aspects of the international law of state responsibility such as the rule of prohibited intervention, principles of state sovereignty, …

Food And Drug Regulation: Statutory And Regulatory Supplement (2023), Adam I. Muchmore

Faculty Scholarship

This Statutory and Regulatory Supplement is intended for use with its companion casebook, Food and Drug Regulation: A Statutory Approach (2021). This is not a traditional statutory supplement. Instead, it contains selected, aggressively edited provisions of the Federal Food, Drug and Cosmetic Act (FFDCA), related statutes, and the Code of Federal Regulations. The Supplement includes all provisions assigned as reading in the casebook, as well as a few additional provisions that some professors may wish to cover. The excerpts are designed to be teachable rather than

Asian American Allyship, Victor C. Romero

Faculty Scholarship

George Floyd's tragic death not only sparked numerous nationwide protests decrying the continued violence against Black people, but also resurrected conversations around the complicity of Asian Americans in Black oppression. Just as officer Tou Thao, a Hmong American, stood idly by while a white officer stepped on Floyd's neck, many Asian Americans have taken positions that run contrary to policies that foster inclusion, or what may be termed "integrative egalitarianism" -- the idea that "governmental programs . . . designed to overcome arbitrary inequalities stemming from accidents of birth are a worthwhile investment in society's future."

Using the Floyd-Thao narrative …

Promoting Female Sporting Opportunities Without Title Ix: The Spanish Experience, Stephen Ross, Maria Josefa Garcia Cirac

Faculty Scholarship

This article compares the American approach to improving sporting opportunities for females – Title IX – with approaches taken by Spain. Because of the singular American dedication to elite interscholastic and intercollegiate sports, Title IX’s requirement of equal treatment requires that elite female athletes have equivalent opportunities to elite male athletes. The Spanish approach looks instead on the social benefits of athletics participation for boys, men, girls, and women.

Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey

Faculty Scholarship

Today's intellectual property debates, in both law and the larger society, are a bellwether of changing justice needs in the twenty-first century. As the digital age democratizes technological opportunities, it brings intellectual property law into mainstream everyday culture. This generates debates about the relationship between the constitutional interest in "the progress of science and useful arts" and other fundamental values, such as equality, privacy, and distributive justice. These values, which were not explicitly part of intellectual property regimes in prior eras, are especially challenged in today's internet world.

The article (which was presented as the annual Nies Lecture in April …

Feminist Legal Theory And Praxis After Dobbs: Science, Politics, And Expertise, Aziza Ahmed

Faculty Scholarship

Fifty years ago, in Roe v. Wade, Justice Blackmun set into motion the idea that abortion should be a decision between a woman and her doctor.' That idea traveled from the Supreme Court decision to popular discourse; with it, came the notion that when it comes to reproduction, medical experts are a key part of women's liberation. In Dobbs v. Jackson Women's Health Organization, the court ignored the role of experts and threw the question of who should decide when and how a person has an abortion to the people. In my essay for this symposium issue dedicated to feminist …