Digital Commons Network^™

Untangling Ai Openness, Parth Nobel, Alan Z. Rozenshtein, Chinmayi Sharma

Faculty Scholarship

The debate over AI openness—whether to make components of an artificial intelligence system available for public inspection and modification—forces policymakers to balance innovation, democratized access, safety and national security. By inviting startups and researchers into the fold, it enables independent oversight and inclusive collaboration. But technology giants can also use it to entrench their own power, while adversaries can use it to shortcut years and billions of dollars in building systems, like China’s Deepseek-R1, that rival our own. How we govern AI openness today will shape the future of AI and America’s role in it.   Policymakers and scholars grasp the …

The One-Stop-Shop Is One Step In The Right Direction, Olivier Sylvain

Faculty Scholarship

In Brokering Safety, Sharma, Kadri, and Adler urge federal policymakers to impose on data brokers the greater duty of policing and stemming online stalking, harassment, and related abuse; that burden should not fall to victims, they argue. Their proposal would close the unevenness among state laws, shift the burden of oversight away from victims, and, importantly, ensure accountability at a systemic level, addressing gaps in enforcement that allow brokers to evade meaningful consequences. Yet, the one-stop-shop solution that Brokering Safety proposes also accedes to the core neoliberal presumption insofar as it individualizes harm. Online abuse, like dark patterns and …

Brokering Safety, Chinmayi Sharma, Thomas E. Kadri, Sam Adler

Faculty Scholarship

For victims of abuse, safety means hiding. Not just hiding themselves, but also their contact details, their address, their workplace, their roommates, and any other information that could enable their abuser to target them. Yet today, no number of name changes and relocations can prevent data brokers from sharing a victim’s personal information online. Thanks to brokers, abusers can find what they need with a single search, a few clicks, and a few dollars. For many victims, then, the best hope for safety lies in obscurity—that is, making themselves and their information harder to find.

This Article exposes privacy law’s …

Reversing Progress: The Political And Legal Ramifications Of The 2025 Dei Policy Rollback, Bridgette Baldwin

Faculty Scholarship

The year 2025 will mark a significant turning point in the landscape of American civil rights policy, as federal executive orders the Trump administration initiated seek to dismantle longstanding diversity, equity, and inclusion ("DEI") initiatives. Rooted in a historical context of civil rights progress, these orders aim to curtail affirmative action programs, eliminate DEI mandates within federal agencies and contractors, and challenge the legal foundations of inclusive policies across the country. This Article explores the evolving landscape of civil rights and DEI in the United States, examining its historical roots, recent legal and political developments, and ongoing challenges. From landmark …

Health Truth To Power: Professional Collaboration To Bolster Trust Against Misinformation, William M. Sage, Keegan D. Warren

Faculty Scholarship

This Article is about health, leaving aside more general challenges to shared civic information today. The Article begins by surveying the principal challenges for health information in post-pandemic, arguably post-truth America, and then describes briefly the sources and limits of medical professional authority. Noting the double-edged sword of free speech guarantees under the U.S. Constitution, the Article continues by commenting on speaking truth to government, to industry, and to the crowd. Next, the Article considers the physicians’ role in speaking truth to power from the perspective of standard medical professional ethics and identity, comparing it to that of lawyers. Finally, …

Crypto Litigation And Market Efficiency, Robert E. Bishop, Bradford Levy, Frank Partnoy, Daniel Taylor, Andrew Yeh

Faculty Scholarship

This paper investigates, for the first time in the literature, the factors that should matter to courts in determining whether a crypto  market is “efficient,” meaning that prices are sufficiently responsive to information. Based on new empirical evidence and a series of event studies, we recommend a new judicial framework for assessing market  efficiency in crypto litigation.

Market efficiency tests based on event studies have played an important role in other areas of litigation, particularly securities litigation, where courts frequently rely on what have become known as the “Cammer factors.” Academics have not yet assessed the extent to which market …

Confession Contamination And Dna Exonerations, 1989-2025, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Universities, Capital, And Democratic Vulnerability, Steven Dean, Dana Brakman Reiser

Faculty Scholarship

For many, the university serves as a crucial guardian of democracy. Still, the capitulation of leading American private universities to authoritarian pressure from the Trump Administration should not be terribly surprising. This Essay offers one reason why. It does so by focusing on the law governing private nonprofit universities. It examines both the origins and the impact of a fundamental tension between their charitable missions and their need for capital. It shows how the legal framework designed to protect these nonprofit universities from market pressures can actually intensify their vulnerability.

The so-called “nondistribution constraint” stands at the core of U.S. …

Memory Warriors, Pluralists, And Abnegators In Constitutional Interpretation: An Essay On Jack Balkin's Pluralist Originalism In Memory And Authority, Jed Handelsman Shugerman, Zachary Shugerman Handelsman

Faculty Scholarship

Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation brings into conversation the scholarly insights of constitutional theory, history, and the growing field of “the politics of memory,” especially the concept of the “memory entrepreneur.”

Balkin appropriately connects the memory wars in American constitutional law back to Eastern

European memory wars during the World Wars and their aftermath. Prompted by Balkin, we turn to Jan Kubik and Michael Bernhard edited volume Twenty Years After Communism (2014), which has become even more widely influential after Putin’s invasion of Ukraine and a new round of Eastern European memory wars. …

Truth And Consequences: What Catastrophe Teaches Us About Homeownership And Underinsurance, Kenneth S. Klein

Faculty Scholarship

The firestorms enveloping Los Angeles in January 2025 made yet more inescapable the reality of the increasingly overwhelming impacts that climate change is having on communities. Many thousands of owner-occupied homes were destroyed. Most homes will have insurance, but many homeowners will be surprised to find themselves underinsured, meaning their insurance proceeds will be materially less than the insurer-reported, incurred cost of rebuilding their destroyed home. The human consequences on these homeowners, each of whom has lost everything in a single week, are a now sadly all too imaginable tragedy in real time.

How underinsurance happened and what could have …

Measuring Lawyer Mental Illness: Evidence From Two National Surveys, Benjamin David Pyle, Clifford Rosky

Faculty Scholarship

The American Bar Association declared a “well-being crisis” among lawyers, but the empirical basis for this claim has been contested in recent years. This study systematically compares two high-quality, nationally representative surveys —the National Health Interview Survey (NHIS) and the National Survey on Drug Use and Health (NSDUH)—to measure the prevalence of mental illness and alcohol misuse among lawyers. In both surveys, lawyers report elevated rates of alcohol misuse compared to the general public and similarly educated peers. The NHIS finds that lawyers experience psychological distress at rates lower than the general public and similar to, or moderately higher than, …

Beyond Digital Pessimism: How A Focus On Trust Can Enhance Eu Digital Law, Neil Richards, Woodrow Hartzog, Claire Boine, Lea Despotis

Faculty Scholarship

Lawmakers looking to foster technological innovation on the European market are adopting laws they hope will promote consumer trust in digital products. Their strategy can be broken down into three components. First, they aim to empower consumers to choose how much data they want to share with companies through an express consent framework. Second, they seek to avoid harms from digital products through product safety law such as adapting the Product Safety Regulation to digital products or adopting the AI Act. Third, they endeavor to prevent manipulation of consumers through digital means.

In this essay, we argue that while laudable, …

Informed Applicants: Anti-Discrimination Enforcement Based On The Use Of Criminal Records, Benjamin David Pyle

Faculty Scholarship

Navigating the labor market with a criminal record is treacherous. Countless job applicants will be turned down immediately after a potential employer learns they have had contact with the criminal legal system. Criminal records reflect and exacerbate long-standing racial and economic inequalities in the United States. Thus, the use of records in employment decisions will often implicate anti-discrimination laws. However, successfully enforcing these protections requires job applicants to, at minimum, understand why they were not hired. Many applicants never learn why they were not hired and thus will never be able to protect their rights. This Article argues that understanding …

Against Ai Half Measures, Woodrow Hartzog, Neil Richards, Ryan Durrie, Jordan Francis

Faculty Scholarship

So far, U.S. consumer protection policy for artificial intelligence (AI) accountability has largely consisted of industry-led approaches such as encouraging transparency, mitigating bias, promoting principles of ethics, and empowering people. These approaches are vital, but they are only half measures. To bring AI within the rule of law, lawmakers must start drawing substantive lines.

In this Article, we identify four AI regulatory approaches to consumer, data, and democratic harms as half measures. First, transparency does not produce accountability on its own. Second, while mitigating bias in AI systems is critical, even unbiased systems are a threat to the vulnerable. Third, …

The Unitary Theorists' Appointments Clause Problems, Jed Handelsman Shugerman

Faculty Scholarship

The unitary executive theorists’ recent retreat to the Appointments Clause as a basis for unconditional presidential removal power is contradicted by the text and by overwhelming originalist evidence.

It is a surprising argument for a power of presidential removal, because the text of the Appointments Clause plainly requires both the President and Senate to appoint. The noncommon sense reading, that the president alone appoints, and thus the president can remove, was not in any of the Trump Administration’s briefs, but it was in a single amicus brief, and it was picked up in oral argument and the mainstream media.

This …

The Power And Peril Of The Aca's Universality At Fifteen, Nicole Huberfeld

Faculty Scholarship

As part of the symposium "15th Anniversary of the ACA: A Health Equity Review," this essay explores the ACA's mix of private law and public law provisions that rendered measurable improvements in health equity and health outcomes, especially for populations that experienced longstanding health disparities before its enactment.  Congress’s central objective was near-universal health insurance coverage, and the ACA employed a variety of mechanisms to reach that goal. The law’s health equity successes grew from establishing a principle of inclusion across federal statutes. This principle, which I have called “universality,” centered a human right to health approach: No longer would …

Corporate Childrearing, Katharine B. Silbaugh

Faculty Scholarship

With children influencing a trillion dollars in spending annually, corporations actively seek to shape children's identities in support of consumer culture and profit. Yet there are no scholarly treatments or theories of the legal relationship between children and corporations. Instead, scholars address individual industries such as food, social media, cosmetics, tobacco, or fashion, missing the structural role corporations play in children's identity formation. Family law evaluates child wellbeing interventions using a triangle to map the legal dynamics among child, parent, and state. This article adds corporations as fourth actors, reconceptualizing that triangle as a square. This square provides the first …

Obscurity And The Fallacy Of No Privacy In Public Information, Woodrow Hartzog

Faculty Scholarship

The main thesis of this chapter is that because there are so many different possible interpretations of ‘public information’, the concept cannot be used to justify data practices and surveillance without first articulating a more precise meaning that recognises what is at stake. By disposing of the myth that there is an objective and dispassionate concept of public information, judges and lawmakers can clear the way for information rules based on overt value choices. In short, if the concept of ‘public’ is going to shape people’s social and legal obligations, its meaning and neutrality should not be assumed.

My argument …

Third-Party Funding: Balancing Transparency, National Security, And Access To Justice, Victoria Sahani

Faculty Scholarship

Many lawmakers who have recently become aware of the multi-billion-dollar global third-party funding industry are raising new national security concerns that further complicate preexisting, longstanding debates about transparency, disclosure, access to justice, and the best way to regulate third-party funding. In response, this Article briefly asserts three main points relating to the question of how best to regulate third-party funding. First, this Article explains the third-party funding industry, including its global regulatory landscape and how it serves three distinct populations: consumers, businesses, and law firms. Second, this Article explains that third-party funding is one tool that can help expand access …

Sidelining The Public, Anya Bernstein, Glen Staszewski, Wendy E. Wagner

Faculty Scholarship

This Article challenges the widely held view that Congress is the American government’s institution closest to the people, while administrative agencies are unaccountable and unresponsive. Providing a systematic, side-by-side institutional analysis, we compare the actual practices and capacities of these two institutions to engage affected publics in policymaking. We find that despite the democratic bona fides of an elected legislature, agencies possess superior capacities, more evolved practices, stricter rules, and stronger incentives for meaningful public engagement. Yet these capacities have been eroded—particularly over the last 50 years—by intensifying legal, political, and managerial obstacles. The Supreme Court and political actors have …

The Hypocrisy Of Data Governance, Zubair Shafiq, Olivia Figueira, Athina Markopoulou, Woodrow Hartzog, Michael Lavine

Faculty Scholarship

“Data governance” is an empty term, like a Rorschach inkblot just waiting to be filled with meaning. Tech companies take advantage of this ambiguity to craft narratives about their data-governance capabilities to fit their audience and purpose. On one hand, tech companies brag about their data-governance capabilities when it fits their business model (for example, to advertisers) and public image (for example, to their customers). On the other hand, tech companies claim that meaningful data governance is challenging or impossible when accountability is demanded.

In this Article, we argue that tech companies systematically misrepresent or selectively ignore their data-governance capabilities. …

Privacy’S Autonomy Thicket: Disentangling Choice, Consent And Control, Jordan Francis, Woodrow Hartzog, Neil Richards

Faculty Scholarship

When it comes to talking about autonomy, privacy law could use a little clarity. Its discourse uses terms like “choice,” “consent,” and “control” to evoke autonomy, but these terms are too rarely defined and too often used interchangeably, even though they can mean very different things. The three terms have become entangled in a way that has become confusing and counterproductive. We call this problem “privacy’s autonomy thicket,” and it matters because it encourages talking past each other in policy debates, enabling the redefinition of these terms in misleading ways that produce weak and disempowering “notice and choice” regimes.

In …

Taking Scale Seriously In Technology Law, Mark P. Mckenna, Woodrow Hartzog

Faculty Scholarship

Issues of scale—the relationship between the amount of an activity and its associated costs and benefits—permeate discussions around law and technologies. Indeed, it’s not much of an exaggeration to say that scale is the reason for most technology regulation.

But it’s not always clear how lawmakers and judges conceptualize “scale” when approaching questions around automated technologies. Scale is often used intuitively, just to mean “more.” But scale is not always just about more—scale can introduce new harms and benefits along different dimensions, not simply costs or efficiencies of greater magnitude.

In this Article, we argue for a more sustained interrogation …

The Missing Constitutional Law Of Executive Conditions, Nicole Huberfeld, Matthew B. Lawrence

Faculty Scholarship

This Article contributes to development of the constitutional law of executive conditions. Courts are wrestling with the constitutionality of federal efforts to encourage what the federal government cannot mandate—speech on particular subjects, participation in cooperative federalism programs, and so on—but have failed to appreciate an important distinction. Binding statutory conditions articulated by Congress or an executive branch delegee (statutory conditions) and non-binding executive conditions articulated by executive branch actors engaged in regulation by deal (executive conditions) are different in constitutionally salient ways that can and should inform the development of workable doctrine. Yet courts, advocates, and scholars have only begun …

Five Lessons From Ken Kersch’S Conservatives And The Constitution For The Present Moment, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

Timothy Snyder’s On Tyranny, a New York Times bestseller, has the subtitle, “Twenty Lessons from the Twentieth Century.” Ken Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (2019) provides at least twenty lessons from the second half of the Twentieth Century about the development of conservative constitutional thought and activism. Although conservatism has changed in many ways since the 1954-1980 period on which Kersch’s book focuses, these lessons are relevant for understanding the present political moment, filled with concerns that the U.S., during the second Trump Administration, is lurching toward tyranny, authoritarianism, and …

The Punishment Paradox, Steven Arrigg Koh

Faculty Scholarship

What does criminal punishment do? Across centuries of criminal legal thought, a shared answer persists: punishment incapacitates the wrongdoer. And yet punishment sometimes yields its opposite. Paradoxically, punishment sometimes becomes a rallying point-expanding community identification and solidarity around the defendant. This Article shows this punishment paradox using the 2023-24 prosecutions of President Trump and recent and historical case examples-from Luigi Mangione to Karen Read to Rosa Parks. By arguing that criminal law can generate solidarity rather than stigma, the Article both rethinks foundational theories of punishment and reconsiders the role of criminal law in democratic politics. Such an approach transcends …

Pharmaceutical Mergers: Do We Have The Right Cure?, Robin Feldman, Gideon Schor, Yaniv Konchitchki, Tanziuzzaman Sakib

Faculty Scholarship

Few federal agencies wield tools more powerful than the Federal Trade Commission’s authority to review—and deny—proposed mergers between companies. This authority is powerful for a reason: Large mergers can be uniquely harmful to the United States economy, potentially reducing competition, undercutting consumer choice, and inflating prices.

The pharmaceutical industry is particularly sensitive to merger harms, given the limited number of competitors and the inelasticity of demand for prescription drugs. As a result, when pharmaceutical companies seek to merge, the FTC often requires that one of the companies divest ownership of certain drugs not yet on the market—so-called “pipeline” drugs––to a …

An International Approach To Homelessness. Part I: The Case Of India., Pranit Lanjewar, Jaroslaw Richard Romaniuk

Faculty Scholarship

This paper, the first in a two-part study on homelessness in developing countries, explores the causes of homelessness in countries with significant populations living in poverty. This instalment focuses primarily on homelessness in India. The country’s diversity in terms of culture and religion is reflected in challenges when approaching issues related to homelessness. We highlight governmental initiatives to combat homelessness and provide impoverished people and families with access to essential services. A qualitative research method was used. We interviewed the recipients of government services aimed at helping their families overcome homelessness. Our findings highlight the role of education and educational …

Attitudes Driving Regional Differences In Long-Acting Injectable Antipsychotic Utilization For Schizophrenia Among Healthcare Professionals, Patients, And Caregivers (Advance): Results From A Multinational Survey Study, Martha Sajatovic

Faculty Scholarship

Background: Long-acting injectable (LAI) antipsychotics improve adherence and reduce schizophrenia relapse rates vs oral antipsychotics (OAs) but remain underused. The ADVANCE study explored country-level differences in LAI use among healthcare professionals (HCPs), patients, and caregivers, to identify drivers of LAI use. Study Design: ADVANCE included participants from Australia, Canada, China, Germany, Israel, South Korea, Spain, and the United States. Eligible HCPs spent ≥25% of their time in direct patient care, managed an adult population of whom ≥10% have schizophrenia, and treated patients prescribed LAIs. Patients aged ≥18 years and caregivers of adults living with schizophrenia who had tried/been offered an …

Opening Brief For Plaintiff-Appellant Emery Barron, Steven Mitchell, Carolyn Sacco, Shaina Sikka, Madeline H. Meth

Faculty Scholarship

By the time Emery Barron sued Pennsylvania Department of Corrections officials in 2021, they had kept him caged for almost six years in solitary confinement without providing a pathway for him to reenter general population. Department of Correction policy calls for officials to review the ongoing need for solitary confinement after an initial ninety-day stint in disciplinary confinement. However, procedural carve outs allow officials to leave people like Barron in solitary indefinitely without an opportunity to be heard by a decisionmaker and without requiring officials to assert any legitimate penological interest behind the confinement.

Under this scheme, which violated both …