Digital Commons Network^™

On The Right To Obscurity, Woodrow Hartzog, Evan Selinger

Faculty Scholarship

Tragically, U.S. privacy law has neglected to address a significant dimension of privacy. While lawmakers and judges have routinely recognized intrusions into our secluded spaces and breaches of our confidentiality and secrecy, they have largely failed to protect our most common yet also our most underappreciated form of privacy: the practical obscurity that allows us to live freely and with dignity. Obscurity, which is the state of protection that arises when personal information is difficult for some people to obtain or correctly interpret, serves several vital interests: (1) it safeguards our ability to express ourselves without fear that everything we …

Drug War Repairs Guarantees, Amber Baylor

Faculty Scholarship

Drug legalization, especially cannabis legalization, is a critical step forward in states’ willingness to address systemic disparities, privacy intrusions, violence, and other harms of the drug war. Yet, reforms center on legalization and repair through a narrow lens, focused on changes to the penal code. The public has found that narrow forms of legalization cannot serve their purported reparative purpose. Narrowly drawn legalization is illusory. Drug war harms and punishment for legalized substance use continue. Legalization reforms are vulnerable to political trends, resulting in rollback and retrenchment of drug war operations.

Legalization cannot deliver on its reparative terms without guarantees. …

Revocation Reconsidered: Probation Advocacy Through A Litigation Lens, Shira M. Diner

Faculty Scholarship

Being found in violation of probation has dire consequences. The person found in violation can be imprisoned, upending them from their job, family, and community. Unlike incarceration after a criminal trial, a sentence after a violation of probation is not the result of a legal process characterized by robust due process protections. It is also often not the result of a forceful and thorough defense. It is instead the consequence of a hearing where lawyers with the fixed mindset of an inevitable finding of a violation don’t engage in the same preparation that they would if it was a trial. …

Drug Scheduling As Institutional Design, Matthew B. Lawrence, David E. Pozen

Faculty Scholarship

Controlled Substances Act (CSA), U.S. drug law has simultaneously fueled mass incarceration, inhibited needed access, and enabled an opioid crisis. To make better choices, this Article argues that the CSA’s institutional design must account for three distinctive features of psychoactive drugs: the prohibition problem (drug bans tend to backfire when demand is inelastic), the pharma problem (drug companies have supercharged incentives to manipulate markets and exploit consumers), and the pluralism problem (drug policy involves irreducibly political questions that no expert discipline can answer). On their own, each of these problems calls for reform to the CSA. Taken together, they call …

The Anonymous Officer, Shawn E. Fields

Faculty Scholarship

(Forthcoming 2026) Masked, plainclothes immigration agents in unmarked vans have terrorized communities in Chicago, Los Angeles, Minneapolis, and beyond. The indiscriminate violence committed by federal officers who at times appear indistinguishable from paramilitary units has forced immigrants into hiding and left lawmakers scrambling to address a growing and largely legal anonymity crisis in law enforcement. This Article explores the undertheorized implications of anonymous law enforcement, situating the rise of masked policing within a larger project of democratic retrogression and executive aggrandizement. Anonymity in policing and immigration enforcement frustrates core democratic norms of transparency, accountability, and legitimacy, providing the opacity needed …

Trump's War On Diversity, Equity, And Inclusion, Nancy C. Marcus

Faculty Scholarship

Among the many head-spinning developments that have occurred from the first days of President Trump’s second presidency are his attacks on DEI (diversity, equity, and inclusion), including anti-DEI edicts targeting educational institutions. This article provides a chronology and analysis of the early 2025 Trump administration’s attacks on DEI targeting schools nationwide, the resulting harms, and responses thereto, including litigation. A discernible refrain in the early litigation challenging President Trump’s anti-DEI attacks targeting educational institutions across the country has been how those attacks cross a clear constitutional line: the prohibition of unconstitutionally obscure governmental mandates. At its core, the void-for-vagueness doctrine …

Legislatively Erased: The Failure Of Privacy Legislation To Protect People Connected To The Criminal Legal System, Chaz Arnett, Kate Weisburd

Faculty Scholarship

No abstract provided.

How To Manage The Wolf In The Fold, Susan Bisom-Rapp, Urwana Coiquaud

Faculty Scholarship

Recent scholarly work on regulatory capture in the platform economy accounts for the political role and power wielded by app-based firms aiming to reform the existing legal environment to favor their low-cost labor business models. This article adds to scholarly perspectives on the platform economy by shifting the focus to government actors, the role of narrative in communicating with the public, and institutional constraints which may hamper the government’s ability to provide a cogent rationale for opposing or implementing legal change. The article’s central contribution is underscoring the role the government plays in facilitating or preventing regulatory capture. To that …

Looking Forward, Reflecting Back: The Promise Of Dispute Resolution To Reform The Criminal Legal System, Cynthia Alkon

Faculty Scholarship

The criminal legal system in the United States is plagued by serious and systemic problems. There have been countless efforts at reform over the last many decades that have included changes in what is a crime, how crimes are punished, how prosecutors do their job, and changes in policing. Yet, despite these efforts, problems such as mass incarceration remain deeply embedded. It is easy to be swept up in pessimism when discussing the criminal legal system. Change is hard, at best incremental, and we seem to be in the beginning of an era of backlash against recent reforms. This is …

Information Law Pluralism, Hannah Bloch-Wehba

Faculty Scholarship

Information-intensive activities are reshaping political, social, and economic institutions. As they respond to these shifts, legislators and regulators are embracing information as a regulatory device for tech. Far from limiting themselves to public disclosure, consumer notice, and other traditional mechanisms of fostering transparency and information flows, however, legislators are using other, more nuanced tools to incentivize regulated entities to obtain, generate, and share information.

This Article maps the landscape of the emerging information-based regimes for regulating tech and assesses their conceptual and practical implications. It canvasses an extensive set of recently enacted laws regulating the information economy and shows that, …

Exploit Machina, Andrea Matwyshyn

Faculty Scholarship

Over half a century ago, Hannah Arendt cautioned us to “think what we are doing” when we build new technologies. Engaging with her counsel and a set of historical case studies, this Article frames what it calls exploit machina problems. Exploit machina refers to situations where broken technologies and broken governance combine to irreparably harm the public. In other words, exploit machina involves organizational choices to knowingly leverage technology as part of legally problematic conduct, including various forms of fraud. In the language of data science, exploit machina situations implicate strategic decisions in building and managing artificial intelligence (AI); they …

Export Controls As Intellectual Property Regulation, Doni Bloomfield

Faculty Scholarship

Export-control laws have long regulated information created outside of the U.S. government. Legal scholars have paid little attention to these national-security laws, and have not recognized that the government uses them specifically to assert a right to suppress information held in patent applications and trade secrets. In this Article, I present a new history of the relationship between export controls and intellectual property to show how the government regulates IP transfers, and how the state uses IP laws to national-security ends. Export-control laws regulate IP by controlling how people in the United States and beyond can share or use inventive …

Searches And Seizures Of The Unhoused, Shawn E. Fields

Faculty Scholarship

The United States recorded its largest ever unhoused population in 2024. Acute affordable housing shortages and climate-fueled natural disasters have exacerbated a decades-long unaddressed humanitarian crisis, straining resources in cities and rural areas alike. In response, state and local governments have pivoted to a more punitive approach to houselessness. Draconian "anti-camping" ordinances subject houseless people to fines or arrests while police destroy their property in encampment "sweeps," disconnecting the unhoused from critical social structures. Quality-of-life laws criminalize basic biological functions in public. New York, California, and other states have expanded the reach of involuntary civil commitment procedures, forcibly hospitalizing and …

Why Are Executions Becoming Crueler?, Deborah W. Denno

Faculty Scholarship

Since the modern death penalty era, this country’s six execution methods have become crueler over time. This article details the execution procedures adopted across death penalty states up to the end of 2025, analyzing their societal and cultural underpinnings and explaining how they were implemented, including their shared flaws, unscientific origins and protocols, and reliance on untrained, unqualified, or unknown executioners. While legislatures and courts claim that states move from one technique to the next to enhance greater humaneness, history shows that such switches are primarily propelled by constitutional challenges to a state’s particular technique. In theory, rendering a state’s …

The Surveillance Of System-Adjacent Individuals, Mariam A. Hinds

Faculty Scholarship

Although the Fourth Amendment protects against “unreasonable searches and seizures,” this right is not enjoyed by all people equally. Supreme Court jurisprudence has curtailed the Fourth Amendment privacy rights of individuals under probation or parole supervision. In this line of cases, the Court concluded that the government’s interest in monitoring supervisees, reducing recidivism, and promoting public safety outweighed their reasonable expectation of privacy.

However, surveillance mechanisms like probation and parole extend the criminal legal system’s carceral gaze beyond the supervisees and peer into the bedrooms and digital lives of their families, roommates, and communities, or who this Article calls system-adjacent …

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 Ambitions Of History And Tradition In And Beyond The Second Amendment, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

This Article examines the ambitions of history-and-tradition review in and beyond the Second Amendment. In Bruen and Rahimi, the Roberts Court rejected means-end review in favor of a historical-analogical approach, claiming to constrain the exercise of judicial discretion and thus to promote the democratic decisions of the founders. But our examination of these cases shows that the Court has created new opportunities for judges to advance their values in considerably less transparent ways. We identify contexts in which Second Amendment doctrine enables judicial discretion, key among them that it allows judges to reason about gun rights and regulation at disparate …

Regulating Crisis Pregnancy Centers After Nifla And Dobbs: Controversies Over When Government Is Imposing An Orthodoxy About Abortion, Linda C. Mcclain

Faculty Scholarship

How does this broader sense of Barnette’s proscription of government from imposing “what shall be orthodox” implicate governmental restrictions on reproductive autonomy? Battles over reproductive freedom centrally implicate objections that government is unconstitutionally imposing a gender orthodoxy. Arguments for a right of personal autonomy embodying an antitotalitarian principle of liberty are arguments for a right to resist governmental imposition of an orthodoxy— for example, an idea about the natural or traditional role of women as mothers together with a view about how best to respect the sanctity of life. Rights to reproductive autonomy, grounded in personal autonomy and equality, …

Prevention Beyond Deterrence, Benjamin A. Barsky

Faculty Scholarship

This Article reconceptualizes preventive justice—the public safety paradigm that seeks to prevent harm before it occurs. Scholars have long documented how cities have advanced this paradigm through largely punitive measures, notably variants of broken windows policing, which posit that aggressive misdemeanor enforcement deters more serious crime. Yet in the aftermath of the 2020 George Floyd protests, and as underscored recently in City of Grants Pass v. Johnson, these measures have faced a legitimacy crisis—prompting calls for nonpunitive responses to nonviolent incidents.

This Article establishes a preventive justice approach that advances health and safety without emphasizing crime deterrence. It draws on …

Per Se Non-Takings, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules-standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

Data As Policy, Janet Freilich, W. Nicholson Price Ii

Faculty Scholarship

A large literature on regulation highlights the many different methods of policy-making: command-and-control rulemaking, informational disclosures, tort liability, taxes, and more. But the literature overlooks a powerful method to achieve policy objectives: data. The state can provide (or suppress) data as a regulatory tool to solve policy problems. For administrations with expansive views of government’s purpose, government-provided data can serve as infrastructure for innovation and push innovation in socially desirable directions; for administrations with deregulatory ambitions, suppressing or choosing not to collect data can reduce regulatory power or serve as a back-door mechanism to subvert statutory or common law rules. …

The Sec Proposed Cybersecurity Infrastructure Rules And New Disclosure Requirements, Neal F. Newman, Lawrence J. Trautman, Brian Elzweig

Faculty Scholarship

In addition to regulation of securities market issuers, the Securities & Exchange Commission (SEC) is also responsible for regulation of those entities that provide the networks, either electronic or physical, that enable the functioning of our securities markets. On February 9, 2022, the Commission published a Release for Cybersecurity Risk Management for Investment Advisers, Registered Investment Companies, and Business Development Companies containing proposals that, if adopted, would establish a new cybersecurity incident reporting and disclosure regime and require registered investment advisers (“advisers”) and investment companies (“funds”) to implement policies and procedures designed to address cyber risks. The comment period for …

Civilian Enforcers, Karen Pita Loor

Faculty Scholarship

This Article analyzes the largely unexplored phenomenon of militant civilians engaged in efforts to police and silence activism that challenges entrenched American power systems and economic distributions placing whites atop the social hierarchy in the United States. I argue that this civilian enforcement is an unregulated vessel for state-sponsored violence meant to silence the contestation of the existing racial hierarchy. While scholars, myself included, have written about the many ways police confront and silence racial justice activists on the streets at least since the beginning of the Black Lives Matter (BLM) movement, the role law enforcement plays in silencing racial …

Looking For The Public In Public Law, Nikhil Menezes, David E. Pozen

Faculty Scholarship

The “public” is everywhere and nowhere in contemporary public law. Everywhere, in that the term is constantly invoked to justify and explain existing arrangements. Nowhere, in that serious attempts to identify a relevant public and elicit its input are few and far between. Scholars and officials depict the U.S. public as playing myriad roles in governance — checking, guiding, approving, repudiating—without offering an account of how public preferences are formed or how they exercise influence on questions of interest.

This Article seeks to identify and call attention to the foundational dilemmas underlying this disconnect, to clarify their normative contours and …

Building Layered Defenses To Reduce Illegal Gun Violence, Samuel Kan

Faculty Scholarship

This article examines a multifaceted approach to reducing illegal gun violence in the United States through the implementation of layered defense strategies. While acknowledging the constitutional protections afforded by the Second Amendment, the author argues that targeted legislative and community-based interventions can effectively reduce gun violence without infringing on lawful gun ownership rights. The analysis explores several key defensive measures, including extreme risk laws (risk protection orders), which allow for temporary firearm removal from individuals posing credible threats to themselves or others—a practice recently upheld by the Supreme Court in United States v. Rahimi. The article further examines the constitutional …

Trade Integration, Petros C. Mavroidis

Faculty Scholarship

Accounts concerning the world trading system usually start the debate from the negotiation of the GATT. Trade integration before the First World War, though, had been quite remarkable, and the study of this era enriches our understanding of modern institutions in at least two ways. First, a number of GATT provisions had already been shaped during discussions following the advent of the League of Nations. Second, trade integration before the First World War did not manage to put a brake on belligerent behaviour, putting to rest the old Montesquieuan idea of doux commerce. Recent developments (like the invasion of …

Restating The Law Of Children And Youth: The Evolution Of Reform, Elizabeth S. Scott

Faculty Scholarship

A brief roadmap of this article may be helpful. Part I describes the emergence of the Child Wellbeing framework and its powerful role in shaping twenty-first-century youth justice reforms captured by the Restatement. Part II shows how this framework has begun to have a far broader influence on the law affecting children and how the framework and the developmental approach embodied in the Restatement can guide courts and shape the trajectory of the law in the future. Part III explores potential challenges to the Restatement’s effectiveness in attaining a fully integrated system based on the Child Wellbeing framework.

Antiracist Expert Evidence, Jasmine Gonzales Rose, Asees Bhasin, Spencer Piston

Faculty Scholarship

Since 2020, when mass protests against racism swept across the United States, scholars, lawyers, and the general public have become increasingly aware that racism permeates society and the criminal legal system, from overt racial animus to the nuanced effects of structural racism. Demonstrating the influence of racism is therefore vital to the practice of criminal defense, yet many attorneys do not know how to prove racism in court. We surveyed over seven hundred criminal-defense attorneys across the United States, and nearly half had never heard of expert witnesses testifying or submitting written reports on racism—what we call “antiracist expert evidence.” …

"Price Discrimination" Discrimination, Talia B. Gillis

Faculty Scholarship

Credit price personalization, where lenders set prices based on individual borrower and loan characteristics, is a common practice across many loan types, with conventional accounts of its harms focusing on the ways in which risk-based pricing, or setting prices based on borrowers’ credit risk, can lead to disparities for protected groups like racial minorities and women. This Article examines an often-overlooked yet potentially harmful form of price personalization — charging borrowers different rates based on their willingness-to-pay, known as price discrimination — and argues that this practice can exploit vulnerable borrowers, including protected groups like racial minorities and women, by …

Understanding Processes That Produce Racial Disparities In California Death Sentences: A Review Of The Literature, Catherine M. Grosso, Michael Laurence, Jeffrey A. Fagan

Faculty Scholarship

A robust and extensive body of empirical research, and a rich historical record, documents a recurring and pervasive influence of race in the application of California’s death penalty. This article reviews the legal and social science research to document multiple paths through which institutions and processes produce these racial disparities over many decisions in many cases across four decades. The article reviews relevant literature by decision, institution, or actor and presents key findings. This includes documenting the history of the broad statutory design of the California capital punishment statue. The review also considers research on policing, including the influence of …