Digital Commons Network^™

The Mistaken Law Of Mistakes Of Law: Mistakes Negating Culpability Under The Model Penal Code, Scott England

Faculty Scholarship

This Article examines the relationship between two core principles of American criminal law. On one hand, ignorance of the law is no excuse. On the other hand, criminal liability requires not just a guilty act but also a guilty mind. As the criminal law has become more complex, criminal offenses have increasingly raised issues about whether they require culpability as to issues of law, often bringing culpability requirements and the ignorance maxim into apparent conflict.

In 1962, the American Law Institute published the Model Penal Code (“MPC” or “the Code”). The MPC changed American criminal law significantly, and the Code’s …

Environmental Justice Beyond 2°C, Clifford Villa

Faculty Scholarship

In the last four decades, average temperatures have risen significantly across the United States, with Alaska and New Mexico among the fastest warming states. Since 1970, average temperatures in New Mexico have risen 3.5 degrees Fahrenheit (°F)—or nearly 2 degrees Celsius (°C). The international scientific community has urged world leaders to contain global warming above pre-industrial levels to 1.5°C ideally, and to 2°C at worst. Current trajectories, however, suggest we may shoot past 2°C of global warming this century and enter a world of 3-4°C or beyond... The “trade offs” and “letting go” as we confront the looming 4°C world …

A New Day For Environmental Justice At The U.S. Epa, Clifford Villa

Faculty Scholarship

September 24, 2022, was a big day in the history of the EPA. On this day, EPA Administrator Michael Regan signed an order creating a new Office of Environmental Justice and External Civil Rights (“OEJECR”) within the EPA. We’re very excited about our new office of environmental justice at the EPA. However, the EPA takes environmental justice seriously across all the offices, including my own Office of Land and Emergency Management (“OLEM”).

In this lecture, we will begin with some early history of environmental justice, how we realized the existence of environmental injustice in the first place. Then we’ll talk …

Anticipating The Needs Of Future Law Students Based On Current Post-Pandemic National Reading Comprehension Test Scores, Nicole R. Chong

Faculty Scholarship

The current state of education in the elementary, middle, and high school levels regarding students’ reading comprehension skills is bleak. Post-pandemic scores are showing up to a thirty-year backslide in reading comprehension testing scores. These concerning decreases do not bode well for students who may enter law schools one day. Let’s anticipate those needs by thinking ahead of ways to remedy potential shortcomings.

Reading comprehension is tied closely to the skills of critical reading and thinking. Other scholars have written extensively in the legal academia field about critical reading and thinking. In fact, no one likely would dispute that critical …

Contractual Landmines, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Conventional wisdom is that the standardized boilerplate terms used in large commercial markets survive unchanged because they are an optimal solution to the contracting problems facing parties in these markets. As Smith and Warner explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals numerous instances of harmful landmines — some are deliberate changes to standard language that increase a creditor’s nonpayment risk, others are blatant drafting errors, and yet others are inapt terms that have been carelessly imported from corporate transactions. Moreover, these landmines differ from each other …

Fights Over Continuity - In Life And Law, Jamison E. Colburn

Faculty Scholarship

What is the whole: a river or that river and its tributaries? There is no “natural” answer to the question, only so many answers as there are reasons for asking. Lately, the Clean Water Act has been the captive of such diversions in our Supreme Court’s agenda. Changing it will not free it from that captivity. For whatever reforms we choose could still provide boundless opportunities for frustration in questions like the above. If the Court is as eager to cause that frustration as it has appeared lately, maybe we should help the Court to its fight with this iconic …

The Legal Metaverse And Comparative Taxonomy: A Reappraisal, Ugo Mattei

Faculty Scholarship

The present Article revisits my “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems”—published in this very Journal a quarter century ago—which acknowledged the ideological nature of the law versus politics distinction and posited taxonomy as a means for understanding law. The original article classified law into professional law, political law, and traditional law, and heralded the tentative and dynamic natures of such classification. The two purposes of the present Article are to (i) reflect on legal transformations that have since occurred as reactions to global geopolitical, technological, and economic changes, and (ii) interrogate whether epistemological assumptions …

Going Federal, Staying Stateside: Felons, Firearms, And The ‘Federalization’ Of Crime, Jonathan Abel

Faculty Scholarship

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers. Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity. Yet, no one has obtained the state-court data needed to substantiate these comparisons. This Article fills that gap with an examination of the …

Paucity Of Intellectual Property Rights Information In The Us Biologics System A Decade After Passage Of The Biosimilars Act, Robin Feldman

Faculty Scholarship

No abstract provided.

Disability, Race, And Health Beyond The Carceral State, Benjamin Barsky, Craig Konnoth, Michael A. Stein

Faculty Scholarship

No abstract provided.

Ai & Antitrust: The Algorithm Made Me Do It, Robin Feldman, Caroline Yuen

Faculty Scholarship

As the dawn of artificial intelligence (“AI”) rises rapidly, competition authorities should contemplate the potential for hazy days ahead. Undoubtedly, AI’s already ubiquitous presence offers exciting possibilities, from enhancing efficiency, to leveling the playing field for non-native speakers,to enabling scientific discovery.Despite these breathtaking advancements, however, recent data from the Pew Research Center reveal that only 15% of adults surveyed were “more excited than concerned about the increasing use of AI in daily life,” with 46% expressing “an equal mix of concern and excitement.”

Policymakers also manifest concerns about AI, exemplified by the extent to which government actors are racing to …

Toward A Taxonomy Of Freedom Of Movement Claims: Identifying Rights-Based Pathways For Today’S Refugees Beyond The 1951 Refugee Convention, Moria Paz

Faculty Scholarship

This Article discusses the current migratory crisis as one instance of a conceptual mismatch in human rights between formal law and the tools that courts and other quasi-judicial bodies actually utilize in adjudication. While the doctrine centers around individual right-holders, enforcement bodies provide a remedy only when there is a state duty-holder. Human rights scholarship regarding refugees focuses on the right to freedom of movement. However, this right frequently offers little benefit to these individuals adrift at sea or wandering in the desert.

An alternative framing might ultimately be more effective before human rights courts and other quasi-judicial bodies. This …

Hierarchies Of Discrimination In Baby Making? A Response To Professor Carroll, Radhika Rao

Faculty Scholarship

No abstract provided.

Access To Care And Outcomes With The Affordable Care Act For Persons With Criminal Legal Involvement: A Scoping Review, James René Jolin, Benjamin A. Barsky, Carrie G. Wade, Meredith B. Rosenthal

Faculty Scholarship

IMPORTANCE By expanding health insurance to millions of people in the US, the Patient Protection and Affordable Care Act (ACA) may have important health, economic, and social welfare implications for people with criminal legal involvement—a population with disproportionately high morbidity and mortality rates.

OBJECTIVE To scope the literature for studies assessing the association of any provision of the ACA with 5 types of outcomes, including insurance coverage rates, access to care, health outcomes, costs of care, and social welfare outcomes among people with criminal legal involvement.

EVIDENCE REVIEW The literature search included results from PubMed, CINAHL Complete, APA Psycinfo, Embase, …

The Road Not Taken: A Critical Juncture In Racial Preferences For Naturalized Citizenship, Ming Hsu Chen

Faculty Scholarship

In the “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government’s attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a “super-statute.” While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era as …

Constitutional Liberalism Through Thick And Thin: Reflections On Frank Michelman’S Constitutional Essentials, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

In his new book, Constitutional Essentials, Frank Michelman provides a splendid elaboration and defense of “the constitutional theory of political liberalism” implicit in John Rawls’s classic work, Political Liberalism. In this essay, we make some observations about what a difference 30 years makes, comparing the political and constitutional climate in which Rawls wrote and published Political Liberalism in 1993 with the climate in which Frank wrote and published this exegesis of it. We focus on (1) changes in our circumstances of pluralism, including the accentuation of polarization and unreasonable views, and (2) the simultaneous breakdown of trust in the Supreme …

Advancing Human Rights And The Rule Of Law In Haiti, Kate E. Bloch, Ariel Chéry, Marie Gerda Dorcy, Roxane Edmond Dimanche, Yvon Janvier, Maxo Mezilas, Benjamin Trouille

Faculty Scholarship

The rule of law in Haiti is precarious. The ESCDROJ law school clinic in the town of Jérémie champions indigent individuals whose human rights are under siege during their prolonged and unconstitutional pre-trial connement in prison. To our knowledge, it is the only operating in-house law school clinic in Ha1iti. Despite myriad obstacles, during its initial pre-pandemic period of op- eration in 2018-2019, the inaugural clinic team represented clients in 43 cases brought to trial and succeeded in garnering the release of 25 of those individuals. That is a trial release success rate of over 58%. Subsequently, however, the ad- …

Tax Enforcement By The Private Sector: Deputizing Tax Insurers, Heather M. Field

Faculty Scholarship

The IRS is outgunned when trying to ensure compliance by large corporations and other sophisticated taxpayers. The private sector can help. Private sector actors, such as financial institutions, employers, and whistleblowers, have been valuable allies in the IRS’s efforts to improve compliance and enforcement. This Article argues for using another, largely overlooked, private sector party—tax insurers—to expand the IRS’s enforcement abilities. Tax insurers insure sophisticated taxpayers’ uncertain tax positions (e.g., the tax-free treatment of a corporate spinoff or tax credits critical to a renewable energy project). For a premium, a tax insurer agrees to pay any additional taxes owed with …

Education Equity And Brown: Reform, Retrenchment, And Exclusionary School Discipline, Thalia Gonzalez, Will Martel

Faculty Scholarship

Public schools have served as sites of social, political, and legal contestation since their inception in the United States. And, while the pathways of racialized inequalities have arguably waxed and waned, threats of exclusion and segregation—constituted and governed by anti-Blackness—have cast a long shadow on the promise of educational equity. In response to the central provocation of the 2024 Georgetown Journal of Law & Modern Critical Race Perspectives symposium—revisiting Brown v. Board of Education and the struggle for racial equity in education—this Essay seeks to (re)connect the past and present. More directly, through the Critical Race Theory reform and retrenchment …

Racial Reckoning And The Police-Free Schools Movement, Thalia Gonzalez, Rebecca Epstein

Faculty Scholarship

Across the country, students of color face daily threats of arrest, exclusion, and violence at the hands of school police officers. Whether deemed threatening, defiant, or hypersexualized, Black students, in particular, pay a heavy price to access their right to free public education. Despite victories in dismantling educational carcerality since the mid-2000s, efforts to formally remove police from public schools has been limited. However, during the 2020 racial reckonings, political opportunity catalyzed social movement campaigns, resulting in the passage of sixty-nine police-free policies. This represented an inflection point for civil rights, education justice, and police abolition scholars and activists. This …

Beyond Implicit Bias, Thomas Albright, William A. Darity Jr., Diana Dunn Dunn, Rayid Ghani, Deena Hayes-Greene, Tanya K. Hernandez, Sheryl Heron

Faculty Scholarship

In their introduction to this edition of Dædalus, Goodwin Liu and Camara Phyllis Jones write that “it is unlikely that implicit bias can be effectively addressed by cognitive interventions alone, without broader institutional, legal, and structural reforms.” They note that the genesis for the volume was a March 2021 workshop on the science of implicit bias convened by the Committee on Science, Technology, and Law of the National Academies of Sciences, Engineering, and Medicine. That workshop provided an opportunity to demonstrate that implicit bias is a common form of cognitive processing that develops in response to social, cultural, and …

A Roadmap For Sex Workers’ Rights Reform: Lessons Learned From Recent Legal Advancements, Chi Adanna Mgbako

Faculty Scholarship

The past decade has witnessed unprecedented growth in the legal recognition of sex workers’ rights. Recent legislation and court judgments strengthening sex workers’ rights protections have occurred in the Australian jurisdictions of the Northern Territory, Queensland, and Victoria, as well as in Belgium, India, and Malawi. These legal advancements conform with the goals of the global sex workers’ rights movement. They include newly decriminalized legal frameworks governing sex work, groundbreaking labor and anti-discrimination protections for sex workers, the striking down of vagrancy laws that indirectly target sex workers, and judicial directives on state protection of sex workers’ rights. Despite the …

Blue Carbon Law, Adam D. Orford

Faculty Scholarship

This Article explores the emerging law of blue carbon, defined as rules governing human interventions into Earth’s marine carbon cycles. Blue carbon law is of growing importance today as pressure mounts to incorporate coastal conservation and restoration activities into market-based carbon sequestration schemes, and as the planet’s deep oceans are evaluated for their carbon sequestration potential. The Article conceptualizes two broad trends in blue carbon law: the international law of carbon credit markets creating incentives to commodify and monetize blue carbon resources; and the responsive integration of commodification concepts into existing laws that already manage and influence blue carbon systems, …

Overselling Bil And Ira, Adam D. Orford

Faculty Scholarship

This Article argues that the Bipartisan Infrastructure Law (BIL) and Inflation Reduction Act (IRA) are less likely to reduce U.S. greenhouse gas emissions than typically believed, and that a misconceived narrative of spending effectiveness is now threatening to undercut the perceived urgency of further legislative action on climate change in the United States. With the passage of BIL and IRA, the United States has committed to a climate law strategy predominated by public spending in lieu of regulatory mandates. Recent studies, including studies produced by the U.S. federal government, predict that this spending will push U.S. annual greenhouse gas emissions …

Voice, Prevention, Remedy: Key Elements In A Global Supply Chain Convention, James J. Brudney

Faculty Scholarship

In a global supply chain (GSC) setting, workers’ voice may be understood as the extent to which employees and others toiling in the supply chain are able to participate—individually and/or collectively—in decisions affecting their labor conditions and rights. Policy instruments may strengthen this voice insofar as they provide mechanisms enabling workers to identify and actualize their labor rights within the GSC. This Article initially situates the role of workers’ voice in GSCs by reference to the writings of political economist Albert O. Hirschman. In his classic book, Exit Voice, and Loyalty, and related articles, Hirschman focused on mechanisms for addressing …

Competition & Risk, Doni Bloomfield

Faculty Scholarship

No abstract provided.

The Original Meaning Of The Sixteenth Amendment, John R. Brooks, David Gamage

Faculty Scholarship

The Sixteenth Amendment to the United States Constitution enshrines Congress’s “power to lay and collect taxes on incomes, from whatever source derived.” Challenges to the exercise of that power have typically turned on whether the thing being taxed is “income” or not. In the most recent example, the 2023 Supreme Court case of Moore v. United States, taxpayers have argued that the Sixteenth Amendment only authorizes taxation of realized income—this is, that gain from appreciated property can only be taxed as “income” when there has been a sale or conversion of that property.

In this Article we argue—based on the …

Mutiny For A Bounty, Emily Strauss, Joseph A. Grundfest

Faculty Scholarship

Experience teaches that attorneys may violate duties of confidentiality and trust to pursue personal gain. Multiple insider trading, embezzlement, and fraud prosecutions prove the point. The Dodd-Frank Act of 2010 establishes a bounty regime whereby certain whistleblowers are eligible for awards of 10%–30% of Securities and Exchange Commission (“SEC”) enforcement recoveries exceeding $1 million. Since its inception, this program has paid at least 207 whistleblowers more than $1 billion. The Commission’s bounty program thus may be a meaningful inducement to breach privilege.

The SEC asserts that its whistleblower authority preempts state law and that it can accept attorney–client privileged information. …

Standing And Snitches, Emily Strauss

Faculty Scholarship

No abstract provided.

First Amendment Disequilibrium, Christina Koningisor, Lyrissa Lidsky

Faculty Scholarship

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers …