Digital Commons Network^™

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …

A Skeptical View Of Information Fiduciaries, Lina M. Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online-platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support …

Price And Prejudice: An Empirical Test Of Financial Incentives, Altruism, And Racial Bias, Kristen Underhill

Faculty Scholarship

Many argue that paying people for good behavior can crowd out beneficial motivations like altruism. But little is known about how financial incentives interact with harmful motivations like racial bias. Two randomized vignette studies test how financial incentives affect bias. The first experiment varies the race of a hypothetical patient in need of a kidney transplant (black or white), an incentive ($18,500 or none), and addition of a message appealing to altruism. Incentives encouraged donation but introduced a significant bias favoring white patients. The second experiment assesses willingness to donate to a patient (black or white) without an incentive and …

Justice Kennedy's Prose – Style And Substance, Eric Segall, Eric Berger, Michael C. Dorf, Jamal Greene

Faculty Scholarship

Supreme Court Justice Anthony Kennedy's retirement in June 2018 sent shockwaves throughout America. After Justice Sandra Day O'Connor left the Court in 2005, Justice Kennedy became the Court's all-important swing vote in virtually every important area of constitutional law. His views on affirmative action, abortion, campaign finance reform, free speech, and the separation of church and state (among many other constitutional issues) were the ones that mattered the most among the Justices. Lawyers prepared arguments and filed briefs in the Supreme Court for the main purpose of persuading Justice Kennedy to rule for their clients. He was, quite simply, the …

Police Contact And The Legal Socialization Of Urban Teens, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Contemporary American policing has routinized involuntary police contacts with young people through frequent, sometimes intrusive investigative stops. Personal experience with the police has the potential to corrode adolescents’ relationships with law and skew law-related behaviors. We use the Fragile Families and Child Wellbeing Study to estimate how adolescents’ experiences with the police shape their legal socialization. We find that both personal and vicarious police contact are associated with increased legal cynicism. Associations are present across racial groups and are not explained by teens’ behaviors, school settings, or family backgrounds. Legal cynicism is amplified in teens reporting intrusive contact but diminished …

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Faculty Scholarship

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

Constitutional Moral Hazard And Campus Speech, Jamal Greene

Faculty Scholarship

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …

Zoned Out: How Zoning Law Undermines Family Law’S Functional Turn, Kate Redburn

Faculty Scholarship

A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law doctrines have increasingly embraced the claims of “functional families” — those whose bonds can be traced to cohabitation and shared domestic life. At the same time, zoning laws have narrowed to recognize only formal families, effectively restricting residency to individuals related by blood, marriage, or adoption. As a result, family law’s “functional turn” remains vulnerable in at least thirty-one states. Using original legal analysis and historical research, this Note illuminates that contradiction, explains how it arose, and argues that …

Asking The Right Question: The Statutory Right Of Appraisal And Efficient Markets, Jonathan Macey, Joshua Mitts

Faculty Scholarship

In this article, we make several contributions to the literature on appraisal rights and cases in which courts assign values to a company's shares in the litigation context. First, we applaud the recent trend in Delaware cases to consider the market prices of the stock of the company being valued if that stock trades in an efficient market, and we defend this market-oriented methodology against claims that recent discoveries in behavioral finance indicate that share prices are unreliable due to various cognitive biases. Next, we propose that the framework and methodology for utilizing market prices be clarified. We maintain that …

Abortion Talk, Clare Huntington

Faculty Scholarship

Public service announcements routinely note that one in eight women will be diagnosed with breast cancer. Advocates frequently invoke the twenty percent wage gap between men and women. And educational groups often cite the (more contested) statistic that one in five women will be sexually assaulted during college. But there is another data point not regularly part of public conversation: nearly one in four women will have an abortion by the age of forty-five. The widespread — but largely secret — practice of terminating pregnancies is what Carol Sanger wants us to talk about. As much as possible.

A Promising Start For Early Childhood Development And The Law, Clare Huntington

Faculty Scholarship

Examining the role of the law in early childhood development is not new; several legal scholars have engaged in such an inquiry, including scholars at this symposium. But this engagement has not led to a sustained debate about how the legal system can foster early childhood development, nor has it yet led to the integration of legal scholars into the interdisciplinary research on, and policy debates about, early childhood. I have argued that the creation of a new subdiscipline in family law — early childhood development and the law — would achieve these goals, sparking debate within law, bringing a …

When Does Big Law Work?, Abraham Cable

Faculty Scholarship

No abstract provided.

Harnessing Virtual Reality To Prevent Prosecutorial Misconduct, Kate Bloch

Faculty Scholarship

No abstract provided.

Using And Misusing Legal Decisions: Why Antivaccine Claims About Nvicp Cases Are Wrong, Dorit Rubinstein Reiss, Rachel Heap

Faculty Scholarship

No abstract provided.

The Master’S Tools Will Never Dismantle The Master’S House: Kavanaugh’S Confirmation Hearing And The Perils Of Progressive Punitivism, Hadar Aviram

Faculty Scholarship

No abstract provided.

Scattered: The Assimilation Of Sushi, The Internment Of Japanese Americans, And The Killing Of Vincent Chin, A Personal Essay, Frank Wu

Faculty Scholarship

In a personal Essay, Frank H. Wu discusses the acceptance of sushi in America as a means of analyzing the acceptance of Japanese Americans, before, during, and after World War II. The murder of Vincent Chin in Detroit in 1982 is used as a defining moment for Asian Americans, explaining the shared experiences of people perceived as "perpetual foreigners."

Health Equity, School Discipline And Restorative Justice, Thalia Gonzalez, Alexis Etow, Cesar De La Vega

Faculty Scholarship

No abstract provided.

What's Reasonable Now? Sexual Harassment Law After The Norm Cascade, Joan C. Williams, Jodi L. Short, Margot Brooks, Hilary Hardcastle, Tiffanie Ellis, Rayna Saron

Faculty Scholarship

No abstract provided.

Barnette And Masterpiece Cakeshop: Some Unanswered Questions, Abner S. Greene

Faculty Scholarship

This symposium piece addresses three issues stemming from the Court’s Masterpiece Cakeshop case and that case’s relationship to West Virginia v. Barnette. First, it discusses the relationship between claims for exemption from laws of general applicability and as-applied claims. Second, it addresses the issue most discussed in the Cakeshop briefs and oral argument, but not ultimately resolved by the Court: what counts as compelled speech in the setting of provision of services such as custom-made wedding cakes? Third, it intervenes in the fascinating sidebar between Justice Kagan and Justice Gorsuch regarding the state commission’s refusal to sanction bakers who wouldn’t …

The Appearance Of Professionalism, Elizabeth B. Cooper

Faculty Scholarship

The dominant image of a lawyer persists: a neatly dressed man wearing a conservative dark suit, white shirt, and muted accessories. Many attorneys can conform to this expectation, but there are a growing number of “outsider” lawyers for whom compliance with appearance norms can challenge their fundamental identities. People of color, women, LGBTQ individuals, religiously observant persons, and those who inhabit intersectional identities are among those who disproportionately remain excluded from the dominant culture and centers of power in the legal profession. Expectations of appearance conformity create profound concerns that go well beyond style preferences, raising questions of autonomy and …

Neuroscience And The Personalization Of Criminal Law, Deborah W. Denno

Faculty Scholarship

While objective standards of reasonableness permeate most legal disciplines, criminal law has trended toward personalization since the 1960s, when the Model Penal Code introduced conceptions of mental states based on Freudian psychoanalytic theory. Today, advancements in neuroscience offer previously inconceivable insights into living brain structures and damage. This Essay contends that a criminal justice system that uses personalizing neuroscientific evidence will yield better outcomes. This Essay contributes two unique tools to the personalized law debate. First are the results of my two-decade-long Neuroscience Study, in which I have compiled eight hundred criminal cases that addressed neuroscientific evidence in any capacity. …

Bounded Rationality, Paternalism, And Trademark Law, Stacey Dogan

Faculty Scholarship

We don’t need behavioral economics to understand that trade marks can shape consumer preferences in ways that have little to do with objectively measurable differences in product quality. Scholars, judges, economists, and policymakers have long recognized the tendency of strong marks to skew consumer decisions. The concern lies not only in price effects but with the allocative effects of encouraging investment in persuasive advertising, rather than product innovation or similar “productive” pursuits. While informative advertising can benefit consumers, advertising that creates artificial brand-based differences between otherwise identical products appears not only costly to consumers but also socially wasteful.

This Essay …

Mental Health Problems Of The Youngest Generation Of American Veterans (Problemy Zdrowia Psychicznego Najmłodszego Pokolenia Weteranów Amerykańskich), Jaroslaw Richard Romaniuk

Faculty Scholarship

Wartime activities determine the threats to a soldier’s life and health. To prepare soldiers for a new forms of warfare, one should know the challenges the soldier faces in the midst of battle and after returning home. From 2001 to 2015, 1.2 million American soldiers returning from Iraq and Afghanistan used the health care services of the Department of Veterans’ Affairs. An analysis of the resulting medical interventions makes possible a long term evaluation of the effects of war, some of which appear only after the soldier returns to civilian life. This study analyzes the research on the mental health …

Seeing Bullshit Rhetorically: Human Encounters And Cultural Values, Leonard Shedletsky

Faculty Scholarship

This essay explores the idea that calling bullshit exemplifi es Mercier and Sperber”s social intuitionist theory. It discusses a range of empirical research related to bullshit, including belief in the worldviews of Individualist vs. Communitarian and Hierarchical vs. Egalitarian with regard to accepting and rejecting ideas. Calling bullshit fits well with using the heuristics of like/not like and cognitive mechanisms of debunking misinformation.

Diverse Originalism, Christina Mulligan

Faculty Scholarship

No abstract provided.

A "Bad Rap":R. V. Skeete And The Admissibility Of Rap Lyric Evidence, Ngozi Okidegbe

Faculty Scholarship

The use of accused-authored rap lyric evidence is no longer rare in Canadian criminal proceedings. Adduced by Crown prosecutors, rap lyrics written or co-written by an accused are increasingly used in criminal trials as evidence of the accused’s intent, knowledge, motive, identity, or confession to the commission of the specific offence charged. The practice is not without controversy. The introduction of an accused’s artistic work in the form of rap lyrics at trial engages trial fairness concerns. Without a keen awareness of the social and cultural context that produces rap music, trial actors risk inflating their probative value and underestimating …

Delphi Survey Of Maintenance Lithium Treatment In Older Adults With Bipolar Disorder: An Isbd Task Force Report, Martha Sajatovic

Faculty Scholarship

Objectives: Despite the growing numbers and proportion of older adults with bipolar disorder (OABD), there are very limited guidelines for the use of lithium with its double-edged potential for effectiveness and toxicity in this population. The primary aims of this Delphi survey were: (a) To determine the place of lithium among the preferred choices for maintenance treatment of OABD. (b) To provide detailed clinical guidelines for the safe and effective use of lithium in OABD. Methods: In the face of limited evidence, the Delphi survey method was used to achieve consensus by a group of 25 experts in OABD from …

Safety Of Creatine Supplementation In Active Adolescents And Youth: A Brief Review, Andrew R. Jagim, Richard A. Stecker, Patrick S. Harty, Jacob L. Erickson, Chad M. Kerksick

Faculty Scholarship

Creatine has been extensively researched and is well-supported as one of the most effective dietary supplements available. There is overwhelming support within the literature regarding the ability of creatine to augment performance following short term (5–7 days) and long-duration supplementation periods. There is also strong support for creatine regarding its safety profile and minimal risk for adverse events or any negative influence on markers of clinical health and safety. Recent research has also highlighted the ability of creatine to confer several health-related benefits in select clinical populations in addition to offering cognitive benefits. Creatine is also a popular supplement of …

Democratizing Interpretation, Anya Bernstein

Faculty Scholarship

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact, each funnels power right back to the judge.

These outsourcing approaches show a disconnect between the questions judges pose and the methods they use …

Exposure To Community Violence And Substance Use Among Black Men Who Have Sex With Men: Examining The Role Of Psychological Distress And Criminal Justice Involvement, Dexter R. Voisin

Faculty Scholarship

Young Black MSM (YBMSM) are disproportionately affected by violence, criminal justice involvement, and other structural factors that also increase vulnerability to HIV. This study examined associations between exposure to community violence (ECV) and substance use, psychological distress, and criminal justice involvement (CJI) among YBMSM in Chicago, IL. Respondent driven sampling was used to recruit a sample of 618 YBMSM (aged 16–29) from the South Side of Chicago between June 2013 and July 2014. Weighted logistic regression assessed the direct effects of ECV, CJI, and psychological distress on substance use outcomes. Indirect effects were assessed via path analysis with mean and …