Digital Commons Network^™

Empirically Assessing Medical Device Innovation, George Horvath

Faculty Scholarship

No abstract provided.

Dance Of The Biologics, Robin Feldman, Gideon Schor

Faculty Scholarship

From COVID-19 vaccines to cancer treatments, biologic medicines are gaining importance in the U.S. health care system. Their high price tags, however, make these medications difficult for many Americans to afford. The Biosimilars Act, enacted in 2010, aimed to reduce costs and increase access to biologic medications by encouraging follow-on competition. The legislative effort followed in the footsteps of its predecessor, the Hatch-Waxman Act of 1984.

Although the Hatch-Waxman system succeeded in creating a landscape of more affordable and widely used generic drugs, the Biosimilars Act has failed to live up to its promise. Biologic drugs in the United States …

Just Look At The Map: Bounding Environmental Review Of Housing Development In California, Eric Biber, Christopher S. Elmendorf, Nicholas Marantz, Moira O’Neill

Faculty Scholarship

California faces a dire housing crisis. California’s land-use regulatory system remains a key driver of this crisis. State law grants local governments broad power to craft their own regulations on how to review and approve housing development. Though state law may limit a locality’s ability to outright deny some types of housing development, local governments can and do use creative ways to stall approvals or functionally deny housing by making it infeasible to develop. One such strategy is to demand more intensive environmental review of new housing projects under the California Environmental Quality Act (CEQA) than what state law requires. …

The Illusion Of Progress: Rethinking Human Rights And The Legal Regulation Of Mobility, Moria Paz

Faculty Scholarship

The development of human rights law is generally presented as a story of progress. This progress is an evolution from an “old” legal regime that did not recognize individual rights to a “new” law (starting with the 1948 Universal Declaration of Human Rights (UDHR)) that anointed all individuals as possessors of internationally recognized rights against their states. Further, the definition of these rights has supposedly expanded over time, adding elements of complementary protection and extraterritorial application.

However, at least as it concerns border-crossing, this standard genealogy is wrong. The story of human rights is, in fact, one of retreat—a contraction …

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 …

Major Questions About Presidentialism: Untangling The 'Chain Of Dependence' Across Administrative Law, Jodi L. Short, Jed H. Shugerman

Faculty Scholarship

No abstract provided.

Making Social Security Progressive, Manoj Viswanathan

Faculty Scholarship

Social Security is funded by a regressive tax in which wages below the wage cap ($160,200 in 2023) are taxed at a flat rate but wages above the cap are taxed at zero. To address this normative shortcoming and make Social Security progressive, this Piece proposes eliminating the wage cap and using the resulting additional revenue to fund a zero-rate Social Security tax bracket analogous to the standard deduction of the federal income tax. IRS data show that these changes could fund an exemption of at least $10,000, thereby saving low-wage taxpayers approximately $1,200. By altering only the distribution of …

The Intrusive State: Restrictions On Gender-Affirming Healthcare For Minors, Exceptions To The Doctrine Of Parental Consent, And Reliance On Science And Medical Expertise, Lois A. Weithorn

Faculty Scholarship

The provision of gender-affirming medical care to transgender or gender diverse (“TGD”) youth is currently the subject of substantial controversy despite an overwhelming consensus in the healthcare community as to the safety and potential benefits of recommended treatments. Much of the debate is fueled by misinformation and inaccurate characterization of research and practice. Against this backdrop, twenty-three states enacted restrictions or complete prohibitions on access to gender-affirming medical care for adolescents between 2021 and the time of this writing in early 2024. The policies typically place healthcare practitioners who provide such services at risk of license revocation. Some statutes create …

Through A Glass Darkly: Tplf Viewed Through A Procedural Lens, Richard L. Marcus

Faculty Scholarship

Legal responses to litigation funding could take many forms—consumer protection, regulation of interest rates and fees, perhaps even prohibition (as under the old doctrines of champerty and maintenance). In the U.S., procedural responses, often emphasizing disclosure of funding, have featured prominently. From the perspective of one directly involved in the U.S. rulemaking effort, this Article explores the challenges of designing such a rule. Among other things, it notes that litigation funding actually could support important law-implementation features of American litigation. But a host of uncertainties mean that for the present, the future of mandated disclosure of funding remains unclear, as …

“Legally Magic” Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Kate Weisburd, Roseanna Sommers

Faculty Scholarship

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using “explicit,” “clear,” and “unambiguous” statements—or, as some dissenting judges have lamented, using “legally magic” words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do courts. …

Mass Surveillance As Racialized Control, Prithika Balakrishnan

Faculty Scholarship

This Article examines how the expanded use of pretrial GPS surveillance is radically changing the presumption of innocence by implicating punitive measures absent constitutional protections and amplifying the racial disparities in our criminal justice system. Largely viewed as a substitution for physical detention and therefore a less onerous intrusion on a defendant’s liberty, pretrial GPS surveillance erodes fundamental liberties under the guise of criminal justice regulation. These highly racialized but invisible repercussions include harms to physical and psychological health, freedom of movement, privacy, and future economic self-determination. I argue that, in light of these substantial harms, courts must examine how …

Race And Regulatory Equity, Ming Hsu Chen

Faculty Scholarship

This article contemplates the proper role of regulatory agencies in implementing equity orders. More specifically, what is their role with regard to higher education admissions, in the post-SFFA v. Harvard landscape of racial equity?

Internet Drug Prohibition And The Opioid Overdose Crisis, Benjamin Barsky

Faculty Scholarship

The Ryan Haight Online Pharmacy Consumer Protection Act (Ryan Haight Act) prohibits controlled substance tele-prescribing when it occurs without a preliminary in-person medical evaluation. This Article details the Ryan Haight Act’s consequences for the practice of telemedicine in general and opioid addiction treatment in particular. In doing so, it builds on literature exploring the tension between the federal criminal regulation of controlled substance prescribing and the management of large-scale public health crises, particularly the opioid overdose crisis.

By restricting the tele-prescription of certain controlled substances used for opioid addiction treatment, the Ryan Haight Act limits access to care for a …

Reproducing Inequality: Racial Capitalism And The Cost Of Public Education, Thalia Gonzalez, Paige Joki

Faculty Scholarship

American democracy is marked by an unwavering deployment of racialized economic modalities of fines, fees, and debt aimed at scaffolding hierarchies of white power and prescribing Black people as commodities, not human beings. Over the last two decades, an expanding praxis in the economic justice field has emerged, opposing and disrupting racialized economic logics within a national anti-fine, fee and cost movement. From scholarly discourse to legal interventions and reforms at city- and county-levels, the movement has sought to target interlocking material and ideological forces that comprise racial capitalist geographies across many criminal and civil systems. Despite this significant work, …

Psychic Income & Democratized Investing, Abraham J.B. Cable

Faculty Scholarship

No abstract provided.

"Don't Go Chasing Waterfalls": Fiduciary Duties In Venture Capital Backed Startups, Sarath Sanga, Eric L. Talley

Faculty Scholarship

We develop a model of venture capital contracting and use it to evaluate an emergent set of judicial precedents in corporate law, which we label the Trados doctrine. In our model, founders hold common stock, while venture capital investors hold convertible preferred stock. We show that preferred shareholders have inefficient incentives to liquidate low-valued firms and to continue high-valued firms, while common shareholders inefficiently favor the opposite. The extent of incentive misalignment depends on the firm’s intrinsic and outside valuations, and it is most severe around preferred shareholders’ liquidation preference and conversion point. Although legal liability rules can rectify these …

Comment On Part 4 Essays: Goodwin And Dailey And Rosenbury, Elizabeth S. Scott

Faculty Scholarship

Professors Michelle Goodwin and Anne Dailey and President Laura Rosenbury have written two compelling essays on Part 4 of the Restatement of Children and the Law, dealing with Children in Society. Goodwin’s essay, She’s So Exceptional: Rape and Incest Exceptions Post-Dobbs, focuses on § 19.02 of the Restatement, dealing with the right of minors to reproductive health treatments. This Section was approved by the American Law Institute before the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade. In her essay, Goodwin explores the harms that will follow if minors’ right of access …

Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib

Faculty Scholarship

This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.

Afrofuturism And The Law: A Manifesto, I. Bennett Capers

Faculty Scholarship

Afrofuturism seems to be everywhere these days. In music, film, dance, literature. And in this special symposium issue of the Georgetown Law Journal, “Afrofuturism and the Law.” This prompts a foundational question. What is “Afrofuturism and the Law”? More specifically, as a practice, as a discipline, and a legal movement, what should Afrofuturism and the Law be. Indeed, given Afrofuturism’s seeming staying power, and its incursion into law, is it time for a manifesto to set parameters? Hence, this proposed manifesto. To be sure, I am troubled by the word manifesto, especially given its connection to the word manifest, which …

The Legacy Of The Troubles: Casting A Long Shadow Over Northern Ireland, Jacqueline M. Nolan-Haley

Faculty Scholarship

The Good Friday/Belfast Agreement (Agreement) brought hope to Northern Ireland after thirty years of violent conflict during a period known as the Troubles (1968 - 1998). The Agreement offered a framework for ending the conflict and for addressing the needs of victims. However, unlike peace agreements from many other post-conflict societies, it did not provide a transitional justice process for dealing with contentious issues of the past. As a result, more than 25 years after the signing of the Agreement, the problematic legacy of the conflict continues. Paramilitaries are still a cause for concern. Peace walls still exist. Competing sectarian …

Corporate Speech And Corporate Purpose: A Theory Of Corporate First Amendment Rights, Sean J. Griffith

Faculty Scholarship

The negative speech right (the right to refrain from speaking) strains the standard rationale for corporate speech rights. First Amendment jurisprudence extends speech rights to corporations on a mix of intrinsic and instrumental rationales. The intrinsic rationale is derived from the natural rights of persons, and often thought not to apply to corporations. Meanwhile the instrumental rationale, grounded on the value of speech in promoting self-government, would seem not to apply to the negative right. Remaining silent, after all, does little to advance public debate.    This article uses the SEC’s shareholder proposal rule to examine the larger question of corporate …

The Implications Of Section 230 For Black Communities, Spencer Overton, Catherine Powell

Faculty Scholarship

Section 230 of the Communications Decency Act generally immunizes online platforms such as Facebook, YouTube, Amazon, and Uber from liability for third-party user content (for example, posts, comments, and videos) and for moderation of that content. This Article addresses an important issue overlooked by both defenders and critics of Section 230: the implications of the law and proposed reforms for Black communities in particular. By relieving tech platforms of most legal liability for third-party content, Section 230 helps facilitate Black social activism, entrepreneurship, and artistic creativity. Section 230 also relieves platforms of most legal liability for content moderation, which boosts …

The Global Tax Deal And The New International Economic Governance, Rebecca Kysar

Faculty Scholarship

The ethos of economic integration and trade liberation no longer reigns supreme. Instead of multilateral trade agreements, nations are turning towards protectionism and unilateralism. Yet in late 2021, nearly 140 countries agreed to a new global tax deal that is aimed at coordinating their tax systems to curtail tax competition and corporation profit shifting to tax havens, as well as constructing a new allocation of taxing rights among nations. Although multilateral trade agreements now seem out of reach, tax multilateralism is ascendant. This is surprising given the deep tradition of national control over tax policy. It also perplexing since international …

Is There A Presumption Against Wealth Taxation?, Linda Sugin

Faculty Scholarship

No abstract provided.

Racial Targets, Atinuke O. Adediran

Faculty Scholarship

It is common scholarly and popular wisdom that racial quotas are illegal. However, the reality is that since 2020’s racial reckoning, many of the largest companies have been touting specific, albeit voluntary, goals to hire or promote people of color, which this Article refers to as “racial targets.” The Article addresses this phenomenon and shows that companies can defend racial targets as distinct from racial quotas, which involve a rigid number or proportion of opportunities reserved exclusively for minority groups. The political implications of the legal defensibility of racial targets are significant in this moment in American history, where race …

Can Crt Save Dei?: Workplace Diversity, Equity & Inclusion In The Shadow Of Anti-Affirmative Action, Tanya K. Hernandez

Faculty Scholarship

Just four years after the nation’s summer of 2020 protests—sparked by the murder of George Floyd— culminated in a racial reckoning in which many organizations across the country instituted racial equity measures and policies, legislators across the nation are enacting anti-Critical Race Theory (CRT) bans in a seeming backlash to this advocacy for racial justice. The bans simultaneously mischaracterize CRT as anti-White discrimination while strategically conflating it with workplace diversity, equity, and inclusion (DEI) initiatives. Further inflaming the racially hostile public discourse is the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard (2023), which greatly narrows …

The Celebration Of Interracial Intimacy Racial Mixture As The Cure For Racism – A Critical View, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.

Impact Ipsa Loquitur: A Reverse Hand Rule For Consumer Finance, Susan Block-Lieb, Edward J. Janger

Faculty Scholarship

Algorithms in consumer finance can entrench, exacerbate, and conceal bias. This article considers the increased importance, in the age of algorithmic lending, of disparate impact analysis as a tool to combat predation and discrimination in consumer finance transactions. It explores the existing legal landscape and finds gaps in the relationship between discrimination and predatory lending doctrines. It then situates both disparate impact analysis and UDAAP doctrines within the broader context of balancing and burden-shifting rules in tort law and considers how this analysis might be tailored for the new algorithmic lending environment. We conclude that predatory discrimination permits consideration of …

Consent And Disagreement, Aditi Bagchi

Faculty Scholarship

Contracts purport to settle rights and obligations between parties. The fact that parties have consented to a given set of terms seems to hold the promise of preempting conflict about those terms after the fact. But contract gives rise to disputes about consent itself. Many disputes about implied conditions, for example, are best understood as disagreements about the scope of consent.

This article identifies several moral ambiguities in the concept of concept. We not only disagree about the analytic merits of competing conceptions among ourselves but, even as individuals, we tend not to endorse and consistently apply a single version …

Long Live The Federal Rules Of Evidence!, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

The Federal Rules of Evidence have been pronounced dead. Indeed, the Federal Rules of Evidence have recently been declared dormant, stagnant, frozen, lethargic, and yes, deceased. In The Living Rules of Evidence, 170 U. Pa. L. Rev. 937 (March 2022), Professor Alexander Nunn claims that the Rules are lifeless, incapable of any meaningful change, and littered with anachronistic and even dangerous standards and provisions. To blame for the moribund state of the Federal Rules of Evidence is the bureaucratic and complex federal rulemaking process that requires amendments to traverse multiple constituencies in a multi-year process before taking effect. As a …