Digital Commons Network^™

Hidden In Plain Sight: Redefining The Field Of National Security, Aziza Ahmed

Faculty Scholarship

Throughout his campaign for presidency, Trump called for a ban on Muslims entering the United States. As President, he kept his word. Only days after he took office, the new administration released the first version of the Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States. The first Executive Order, however, did not say the word Muslim. Instead, it listed only Muslim-majority countries as necessary for restrictions on entry. The Executive Order also trafficked in stereotypes about Muslims, such as the need to ban people who engage in acts of "bigotry or hatred," including honor killings. …

Dci Submission To The Brazil Ministry Of Economy On The Economic And Competitive Aspects Of Digital Platforms, Pinar Akman, Stephen Dnes, Keith N. Hylton, Bowman Heiden, Constance Hiatt, Nicolas Petit, Jennifer Pullen, Annika Stohr

Faculty Scholarship

In its comments on the ‘Economic and Competitive Aspects of Digital Platforms’ for the Brazil Ministry of Economy, the Dynamic Competition Initiative (DCI) suggests that law and policy initiatives towards digital platforms should (1) focus on curbing monopoly rents in bottleneck markets, and not undermine diversification efforts towards technological frontiers; (2) leverage the capability and flexibility of existing competition rules to address digital platforms anticompetitive conduct; and (3) properly credit the consumer welfare gains stemming from digital platforms ecosystems given the domestic economic context.

Confronting Structural Inequality In State Labor Law, Andrew Elmore

Faculty Scholarship

Low-wage workers face a structural problem in seeking to improve their work standards: While companies have substantial labor market power to impose work terms and conditions, workers require affirmative state support to collectively press their workplace demands. But their employers can mobilize private capital and property rights, often with judicial deference, to fend off state intrusions into the workplace. While the National Labor Relations Act aims to resolve this structural problem by protecting the rights of workers to join unions, strike, and collectively bargain, employers, backed by judicial support for managerial prerogatives and property rights, can often leverage NLRA weaknesses …

Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat Albrecht, Perry Moriearty

Faculty Scholarship

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

Innovative Approaches To On-Demand Continuing Legal Education Ethics Training: A Case Study, Tigran W. Eldred, Molly J. Walker Wilson

Faculty Scholarship

In the ongoing discussions about continuing legal education (CLE), concerns have been raised about the quality of programming that is created and delivered. Critics have emphasized the weaknesses in mandatory programs, arguing that requiring annual training on topics such as legal ethics tends to fall short of stated goals.¹ Too often, it is said, such programs fail to deliver content in an engaging manner that is likely to improve competence.² The picture conjured up is of the bored lawyer, sitting in the back of a room flipping through a newspaper or some other distraction, as CLE instructors passively …

The Thrusts And Parries Of Policy Arguments, Scott Hirst

Faculty Scholarship

Anyone who has ever put forward a policy proposal has heard the response, “if it ain’t broke, don’t fix it.” But despite the ubiquity of this attack on policy proposals, there has been little sustained inquiry into how the attack works and how it can be defended. The goal of this Article is to identify policy attacks like this, and to show their underlying logical structure, and how they function to attack policy proposals. The Article demonstrates this approach by considering three generic attacks on policy proposals, which I refer to as ain’t broke attacks, partial framing attacks, and dollar …

Afreeist Legal Theory And The Problem Of Innocence, Stephen G. Marks

Faculty Scholarship

Afreeism refers to the lack of the assumption that human beings have free will. Rather, it assumes that humans are subject to the same laws of physics, chemistry, biology, etc., that govern all other phenomena. Afreeist Legal Theory in turn is a legal theory that forgoes the assumption of free will. By foregoing the notion of free will, we also forgo notions of desert, blame, and moral responsibility. Human beings are causally or stochastically deterministic beings. As such, they can never do other than what they do. And because they never possess the ability to do otherwise, they are at …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Faculty Scholarship

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Venality: A Strangely Practical History Of Unremovable Offices And Limited Executive Power, Jed Handelsman Shugerman

Faculty Scholarship

The Roberts Court has asserted that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In response to counterevidence from the Founding era, unitary executive theorists have claimed a “British Backdrop” of a general removal power under the English Crown and European “executive power.” These assumptions are incorrect.

This Article shows that many powerful executive officers through the late eighteenth century, especially high English Treasury offices and even “department heads” in the cabinet, were unremovable. A long common law tradition protected many English offices as freehold property rights. Moreover, this Article explains why it was widely understood …

Panel 2: Trademark Law, Stacey Dogan, Christine Haight Farley, Jessica Silbey, Rebecca Tushnet, Felix Wu

Faculty Scholarship

But that's because, you know, trademark law has interpreted the concept of confusion quite broadly to include, among other things, a notion of sponsorship confusion that might make you think it's a licensed product. All right. And then, in a somewhat circular way, it was decided that the existence of licensing markets is enough to show the way in which consumers are going to be confused about licensing. So that's the theory that Jack Daniel's brings. One of two theories. So that was one of two theories. The other one was a dilution, and in particular dilution by tarnishment, claiming …

Utility, Copyright, And Fair Use After Warhol, Keith N. Hylton

Faculty Scholarship

This paper is a reaction to AWF v. Goldsmith (Warhol), which finds that Warhol’s adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol’s use, while the dissent emphasizes the artistically transformative quality of Warhol’s adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of the fair use doctrine. That need was largely …

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …

Beyond "Hard" Skills: Teaching Outward - And Inward-Facing Character-Based Skills To 1ls In Light Of Aba Standard 303(B)(3)'S Professional Identity Requirement, Marni Goldstein Caputo, Kathleen Luz

Faculty Scholarship

In this article, we share some ways in which we have adjusted our teaching to comply with Standard 303(b)(3) by addressing professional identity formation through the vehicles of outward-facing and inward-facing character-based skills. We believe that if law students do not intentionally start *811 exploring their professional identities as soon as they step foot into law school, they run the risk of believing that legal education and practice are somehow separate from their inner, personal identities as lawyers when, of course, they are, and ought to be, enmeshed. By injecting skills into the 1L curriculum that force both the development …

Two Ai Truths And A Lie, Woodrow Hartzog

Faculty Scholarship

Industry will take everything it can in developing Artificial Intelligence (AI) systems. We will get used to it. This will be done for our benefit. Two of these things are true and one of them is a lie. It is critical that lawmakers identify them correctly. In this Essay, I argue that no matter how AI systems develop, if lawmakers do not address the dynamics of dangerous extraction, harmful normalization, and adversarial self-dealing, then AI systems will likely be used to do more harm than good.

Given these inevitabilities, lawmakers will need to change their usual approach to regulating technology. …

Structural Sex Discrimination: Why Gynecology Patients Suffer Avoidable Injuries And What The Law Can Do About It, Christopher Robertson, Annabel Kupke, Louise P. King

Faculty Scholarship

The nearly four million Americans who undergo gynecological surgeries each year suffer avoidable lifelong, painful, and disabling injuries. This Article diagnoses the root cause in our legal framework for healthcare finance and identifies legal solutions.

America’s public-private system for reimbursing healthcare pays for procedures rather than outcomes, and it pays substantially more for work on male rather than female anatomies. This disparity is due to the federal government’s reliance on a secretive industry committee to set those rates, and the committee’s reliance on junk science surveys, allowing self-interested and gender-biased responses, contrary to objective measures.

As payors disvalue the bodies …

Rethinking Foundations And Analyzing New Conflicts: Teaching Law After Dobbs, Nicole Huberfeld, Linda C. Mcclain, Aziza Ahmed

Faculty Scholarship

This Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs' overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to "the people" and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well …

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V. S. Subrahmanian, John Tunheim

Faculty Scholarship

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

Human Psychology And Robot Evidence In The Courtroom, Alternative Dispute Resolution, And Agency Proceedings, Sara Sun Beale, Hayley Lawrence

Faculty Scholarship

In human–robot interactions in legal proceedings, human responses to robot-generated evidence will present unique challenges to the accuracy of litigation as well as ancillary goals such as fairness and transparency, though it may also enhance accuracy in other respects. The most important feature of human–robot interactions is the human tendency to anthropomorphize robots, which can generate misleading impressions and be manipulated by designing robots to make them appear more trustworthy and believable. Although robot-generated evidence may also offer unique advantages, there are concerns about the degree to which the traditional methods of testing the accuracy of evidence, particularly cross-examination, will …

The Harlan Court: A Constitutional Alternate History, H. Jefferson Powell

Faculty Scholarship

Walter Dellinger shared the widespread perception that the Burger Court was characterized by “rootless activism” rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger’s idea and …

Reexamining Enron's Regulatory Consequences, Steven L. Schwarcz

Faculty Scholarship

The downfall of Enron Corporation often epitomizes corporate fraud. One of the world’s fastest growing and most inventive companies, Enron had engaged in a range of complex structured hedging transactions designed to achieve accounting rather than operating results. Its principal motivation, though, was to avoid the risk of incurring financial-statement losses that could impair its credit rating and thereby destroy its primary business of derivatives-based energy trading.

Enron’s management has been criticized for engaging in these structured hedging transactions, and some of its managers were sent to jail. This symposium article concerning “Business and Financial Crimes” attempts to set forth …

False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin

Faculty Scholarship

According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an …

Originalism And Historical Fact-Finding, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on the idea that it is simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the …

Repurposed Energy, Hannah Jacobs Wiseman, Alexandra Klass

Faculty Scholarship

Wildfires, weather extremes, and other conditions induced partially by climate change add urgency to the project of accelerating the clean energy transition from fossil fuels to zero-carbon energy infrastructure. Yet the hurdles to accomplishing such a massive industrial-scale transition are daunting. Indeed, large renewable energy generation projects regularly face denials or project-killing delays across the United States. This Article proposes a national policy to channel the bulk of new clean energy projects to targeted categories of both rural lands and urban, post-industrial lands that we define collectively as “repurposed energy” sites. Such lands will consist of marginal farmland, abandoned coal …

Transgender Students And The First Amendment, Dara Purvis

Faculty Scholarship

Suppose a transgender child experiences teasing and harassment from their classmates, whose hostile reactions interrupt the school day. School administrators tell the transgender child that, in order to allow educational activities to continue, they must dress in more gender-neutral clothing, ideally cionsistent with the sex they were assigned at birth. The student's parents protest, arguing that their child's clothing is speech that expresses their gender identity. The school points to Tinker v. Des Moines, allowing suppression of student speech where it creates a material disruption, as well as recent legislation characterizing discussion of gender identity as lewd and obscene. …

Mythical Adverse Effect, Naveen Thomas

Faculty Scholarship

No abstract provided.

Temporary Protection For Ukrainians In The European Union: Why Now And When Again, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Racing And Erasing Parental Rights, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Kinship Care And Adoption Myopia, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Medical Expenditures And The Measurement Of Poverty In The United States, Luke Petach, David Wyant

Faculty Scholarship

Using data from the Medical Expenditure Panel Survey (MEPS) we estimate the fraction of the US population that is health poor. A person is health poor if their income prior to paying health insurance premiums and out-of-pocket healthcare costs is above the poverty line, but their income net-of-premiums and out-of-pocket healthcare costs is below the poverty line. Because resources used to finance health insurance premiums and out-of-pocket costs are (A) lexicographically preferred and (B) cannot be used to maintain an individual’s standard of living, they should be excluded from official poverty estimates. Approximately 1% to 2% of the US population …

Toward Best Practices For Trade-Security Measures, Harlan G. Cohen

Faculty Scholarship

The global economy is increasingly being weaponized. Citing security concerns from traditional defence to economic competitiveness, health emergency, and climate crisis, states are turning to sanctions, tariffs, export controls, investment screening, and subsidies. But while economic statecraft is becoming common, rules remain scarce. Questions about notice, duration, proportionality, harm minimization, compensation, retaliation, and/or rebalancing lack clear answers and seem almost theoretical. Once, we might have hoped the World Trade Organization (WTO) would play a role in developing such rules. But in the absence of an Appellate Body and in the face of state rejections of review, WTO’s deliberative processes have …