Digital Commons Network^™

A Short History Of The Early History Of American Student-Edited International Law Journals, Harlan G. Cohen

Faculty Scholarship

How did ideas hatched among Harvard, Virginia, and Columbia students remake the world of international publishing? Part of the Study and Analysis of International Law Scholarship (SAILS) project, this piece follows LLMs in Cambridge (like a young Georges Abi-Saab), moot court competitors in Texas, student Vietnam-war critics in Nashville, idealistic young theorists in the New Haven, and an expanding cadre of international law scholars as they discover and develop a new publishing platform.

Statutory Interpretation In The 2020s: A View Of The Cathedral, Ethan J. Leib, Fordham University School Of Law

Faculty Scholarship

This Comment looks at eighty-seven statutory interpretation cases in the Supreme Court’s docket over the 2020–2022 Terms to evaluate trends in how the nation’s highest court reads statutes in the modern era. It concludes that the overarching story is neither a purely “textualist” one, nor one in which the liberal bloc is very often at odds with the conservative bloc. Instead, statutory interpretation is much more consensual than it is often credited to be—and contextual and purposive arguments continue to remain valid modalities of interpretation, even as standard textualist tools also remain relevant.

Executive Power, The Royal Prerogative, And The Founders’ Presidency, Andrew Kent

Faculty Scholarship

The original meaning of the opening clause of Article II of the Constitution— which vests “[t]he executive power ... in a President of the United States”—has been debated inconclusively for over 200 years. As originalism gains ground as an interpretive theory in U.S. courts, and the U.S. executive branch continues to read the clause very expansively, often by making claims about original meaning, an intense scholarly debate has raged in recent decades about the Clause. A cohort of influential originalist scholars read the Executive Power Clause as a broad grant of war, foreign affairs, and national security power supposedly considered …

Painting A Clearer Picture: Introducing New Federal Rule Of Evidence 107 Regulating Illustrative Aids, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

They say a picture is worth a thousand words—and charts, drawings, diagrams, computer animations, and even tangible items are utilized at trial in virtually every case tried in the federal and state court systems. Litigants have come to depend heavily upon such aids to engage visual learners in the jury box and to present a compelling narrative. And the creative use of trial aids has only increased with the rapid technological advancements of recent decades. The ubiquity of such aids notwithstanding, there is no written standard governing their use, no agreed-upon lexicon for describing them, and no set of uniform …

Regulating For Asymmetric Market Power : Beyond The Consumer Sovereignty Model, Olivier Sylvain

Faculty Scholarship

Recent policy developments suggest that consumer sovereignty models of regulation have substantial, if not fatal, limitations. Binding decisions by the European Data Protection Board in 2023, as well as other recent public law enactments in the EU and the US, overtly reject the assumption that individuals are best situated to manage how companies process or use their personal information. Prevalent online practices are too opaque. And the “ take it or leave it ” services that companies provide render individuals’ rights and commercial choices effectively meaningless. In short, the relative power of consumers as compared to the companies that collect, …

No Strings Attached: How Catholic Institutions Prospered At The Expense Of The Administrative State And Patient Autonomy, Lori Freedman, Kimani Paul-Emile

Faculty Scholarship

Catholic hospitals and health systems have proliferated and succeeded in American healthcare; they now operate four of the largest health systems and serve nearly one in six hospital patients. Like other religious entities that Wuest and Last write about in this issue, in their article Church Against State, they have benefited by and supported the long reach of conservative efforts to undermine the administrative state.

Elective Corporate Governance: Does Board Choice Matter?, Martin Gelter, Mathias M. Siems

Faculty Scholarship

Recent literature discusses how “menu laws” allow corporations to opt into one of multiple competing statutory regimes. This paper contributes to this literature by presenting original empirical research on the choice between corporate board models. Today, many countries not only allow modifications of a particular board structure, but they provide separate legal templates, giving firms a choice between a one-tier and a two-tier board model (and sometimes a third hybrid model). However, how companies actually use these rules is largely underexplored. Based on data from 14 European countries that permit a choice between two models, this paper examines the use …

Demoralizing Elite Fraud, Zephyr Teachout

Faculty Scholarship

The Supreme Court keeps striking down wire fraud convictions. Why?

As I show in this piece, from the 1970s to this year, the Court has repeatedly attempted to shift the framework of fraud cases from moral language to morally neutral language. As a result, the Court ends up making a hash of statutory interpretation, because it then has to interpret statutes that it has effectively rewritten. For instance, much of the current fraud jurisprudence revolves around defining what property means. The Mail Fraud statute does not have the language of property in it, and the legislative history does not involve …

Defamation, Presumed Damages, And Reputational Injury: A Legal And Philosophical Inquiry, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

A Tort For The Digital Age: False Light Invasion Of Privacy Reconsidered, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

In his famous 1960 article, William Prosser identified four privacy torts: Disclosure of Private Facts, False Light Invasion of Privacy, Appropriation of Likeness, and Intrusion Upon Seclusion. Although each was recognized in the Second Torts Restatement and by various courts, the false light tort seems to have foundered. Indeed, starting in the late 1980s, prominent courts rejected it and many academics have expressed grave misgivings about it. Often interpreted as a kind of ‘defamation lite,’ the tort seems to its critics an ill-defined wrong that clever lawyers invoke to evade important limitations on defamation liability.

Drawing from case law and …

Public Confidence, Judges, And Politics On And Off The Bench, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Public confidence in the judiciary is at a low point. There are multiple reasons for the public’s waning faith in judges, but the perception that they are merely politicians in robes plays a significant part. This article analyzes the politicization of the judiciary and argues that while ideology invariably affects judicial decisionmaking, the professional identity of judges limits its impact. A commitment to judicial norms and processes as well as a concern for professional reputation serve as a real break on partisan loyalty and affiliation. The task is to preserve and promote this professional identity and convey to the public …

An Empirical Study Of The Dmca's Anti-Circumvention Provisions, Clark Asay

Faculty Scholarship

The DMCA has been a flashpoint during most of its twenty-five-year existence. One of the most controversial parts of the DMCA is Section 1201. Among other things, Section 1201 prohibits third parties from circumventing certain controls to copyrighted content or trafficking in tools that enable circumvention of technological controls. However, despite its nearly quarter-of-a-century lifespan, we know very little about Section 1201 empirically. While certain aspects of the broader DMCA have received empirical assessments, Section 1201 has not. Our understanding of Section 1201 is largely based on anecdotal evidence, in the form of leading opinions from historically prominent copyright circuits. …

Extra-Legal Uses Of Tm, Clark Asay, Lareina Hingson, Stephanie Plamondon

Faculty Scholarship

Theoretical accounts of trademark law suggest that trademarks serve multiple marketplace functions, including protecting consumers and producers from unfair dealing, reducing consumer search costs, and incentivizing higher quality goods and services. Producers of goods and services often use the ‘TM’ symbol to signal their assertion of legal rights in a mark, arguably helping advance these goals. But recently, an interesting phenomenon has arisen in which individuals not engaged in typical commercial activities have been using the TM signifier in ways that don’t necessarily correspond to the symbol’s legal function. These so-called “extra-legal” uses of the TM symbol can offer insights …

Public Primacy In Corporate Law, Dorothy S. Lund

Faculty Scholarship

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Constitutional Clash: Labor, Capital, And Democracy, Kate Andrias

Faculty Scholarship

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts — “labor’s” efforts for short — seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would …

Transaction-Specific Tax Reform In Three Steps: The Case Of Constructive Ownership, Thomas J. Brennan, David M. Schizer

Faculty Scholarship

Similar investments are often taxed differently, rendering our system less efficient and fair. In principle, fundamental reforms could solve this problem, but they face familiar obstacles. So instead of major surgery, Congress usually responds with a Band-Aid, denying favorable treatment to some transactions, while preserving it for others. These loophole-plugging rules have become a staple of tax reform in recent years. But unfortunately, they often are ineffective or even counterproductive. How can Congress do better? As a case study, we analyze Section 1260, which targets a tax-advantaged way to invest in hedge funds. This analysis is especially timely because a …

New York Environmental Legislation In 2023, Michael B. Gerrard

Faculty Scholarship

In 2023, New York enacted laws to aid the state in achieving the renewable energy and greenhouse gas emissions reduction mandates of the 2019 Climate Leadership and Community Protection Act (CLCPA).The state also now has new laws to reduce exposure to lead in drinking water and paint; to ban natural gas furnaces and stoves in new buildings; to restrict neonicotinoid pesticides; and to encourage “nature-based solutions” for stabilizing tidal coastlines. These and other new and amended environmental and energy laws—as well as notable vetoes—are discussed in this article.

Courting Censorship, Philip A. Hamburger

Faculty Scholarship

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …

Manipulating Citadel: Profiting At The Expense Of Retail Stock Traders' Market Makers, Merritt B. Fox, Lawrence R. Glosten, Sue S. Guan

Faculty Scholarship

This Article considers whether securities market strategies designed to profit at the expense of so-called “internalizers” should properly be considered illegal manipulation. An internalizer acquires from a brokerage firm the right to be the market maker for the broker’s full order flow from its retail customers, promising in return to execute each order at a price slightly better than the best price available on any exchange (“price improvement”) as well as to pay the broker a fee for each executed order (“payment for order flow”). Almost all retail trading — about 29% of the country’s total share volume — is …

Delegation Run Amok, George A. Bermann

Faculty Scholarship

The proper allocation of authority between courts and arbitral tribunals over the enforceability of agreements to arbitrate has long occupied a central place in United States arbitration law, domestic and international alike. From US Supreme Court case law over the years, there has emerged a reasonably well-understood distinction between those issues of enforceability that a court will address if asked by a party to do so and those that it will not. Fundamental to the Court’s jurisprudence is a recognition that some enforceability issues — “gateway issues” — so seriously implicate the consent of parties to arbitrate their disputes that …

Syndromic Antibiograms And Nursing Home Clinicians' Antibiotic Choices For Urinary Tract Infections, Brigid M. Wilson, Taissa A. Bej, Robin L.P. Jump

Faculty Scholarship

Importance: Empirical antibiotic prescribing in nursing homes (NHs) is often suboptimal. The potential for antibiograms to improve empirical antibiotic decision-making in NHs remains poorly understood. Objective: To determine whether providing NH clinicians with a urinary antibiogram improves empirical antibiotic treatment of urinary tract infections (UTIs). Design, Setting, and Participants: This was a survey study using clinical vignettes. Participants were recruited via convenience sampling of professional organization listservs of NH clinicians practicing in the US from December 2021 through April 2022. Data were analyzed from July 2022 to June 2023. Interventions: Respondents were randomized to complete vignettes using a traditional antibiogram …

Historic Redlining And Health Outcomes: A Systematic Review, Noa T. Kraus, Sarah Connor, Krista Shoda, Scott Emory Moore, Elliane Irani

Faculty Scholarship

Objective: The purpose of this systematic review was to synthesize the existing literature on the associations between historic redlining and modern-day health outcomes across the lifespan. Method: This review searched PubMed and CINAHL for peer-reviewed, data-based articles examining the relationship between historic redlining and any health outcome. Articles were appraised using the JBI critical appraisal checklist. The results were synthesized using a narrative summary approach. Results: Thirty-six articles were included and focused on various health outcomes, including cardiovascular outcomes, breast cancer incidence and mortality, firearm injury or death, birth-related outcomes, and asthma outcomes. Most of the included articles (n = …

The Effects Of Poly(Ethylene Glycol) Grafting Density On The Extensional Solution Flows Of High Molecular Weight Polyacrylamide, Adam Linscott, Lauren Hong, Svetlana Morozova

Faculty Scholarship

Controlling the extensional rheological properties of solutions is of great interest for a number of applications, such as printing and coatings, as polymeric additives can modify a fluid's droplet size, formation, and breakup. We have measured the extensional flows of polyacrylamide graft poly(ethylene glycol) amine (PAM-g-PEGa) solutions as a function of grafting density. PAM-g-PEGa is synthesized with grafting densities of 2.5%, 5.5%, 8%, and 30% and extensional flow was analyzed with drop-on-substrate rheology. Flow time scales and profiles are then compared to understand the effects of backbone extension from the addition of side chains. At low grafting densities, the viscous …

Association Of Covid-19 Coinfection With Increased Mortality Among Patients With Pseudomonas Aeruginosa Bloodstream Infection In The Veterans Health Administration System, Leila S. Hojat, Brigid M. Wilson, Federico Perez, Maria F. Mojica, Mendel E. Singer, Robert A. Bonomo

Faculty Scholarship

Objective: Pseudomonas aeruginosa bloodstream infection (PA-BSI) and COVID-19 are independently associated with high mortality. We sought to demonstrate the impact of COVID-19 coinfection on patients with PA-BSI. Design: Retrospective cohort study. Setting: Veterans Health Administration. Patients: Hospitalized patients with PA-BSI in pre-COVID-19 (January 2009 to December 2019) and COVID-19 (January 2020 to June 2022) periods. Patients in the COVID-19 period were further stratified by the presence or absence of concomitant COVID-19 infection. Methods: We characterized trends in resistance, treatment, and mortality over the study period. Multivariable logistic regression and modified Poisson analyses were used to determine the association between COVID-19 …

Amicus Curiae Brief Of The Navajo Nation, Paul Spruhan

Faculty Scholarship

The Navajo Nation Labor Commission ("NNLC" or "Commission") invited the Navajo Nation Department of Justice ("DOJ") to file an amicus brief in this matter. As discussed more fully below, the DOJ recommends that the NNLC hold an evidentiary hearing to gather facts necessary to conduct a full jurisdictional analysis under Montana and determine whether the Northern Apache County Special Healthcare District ("NACSHCD") has sovereign immunity. The fact gathering process is necessary given the fact-intensive analysis under both Montana and Arizona's sovereign immunity laws. As the Navajo Supreme Court has instructed, the proper threshold inquiry is whether jurisdiction exists over the …

Predictors Of Social Emotional Learning In After-School Programming: The Impact Of Relationships, Belonging, And Program Engagement, Amy E. Fisher, Liat R. Johnson, Sonia Minnes, Emily K. Miller, Anastasia Dimitropoulos

Faculty Scholarship

After-school youth development programs support social-emotional functioning which leads to better academic and behavioral outcomes. This article examines three common predictors of social-emotional functioning individually and concurrently to better understand the role of these predictors in the after-school setting. The common predictors are staff/student relationships, sense of belonging, and program engagement. That data came from 144, 3rd through 8th grade, students across 9 different elementary and middle school sites who regularly attended a large youth development program. Regression analyses were run and the results indicated that each variable was an individually significant predictor of social-emotional functioning. Results from multiple regression …

The Public Performativity Of Trust, Lynette Hammond Gerido

Faculty Scholarship

Building trust between academic medical centers and certain communities they depend on in the research process is hard, particularly when those communities consist of minoritized or historically marginalized populations. Some believe that engagement activities like the creation of advisory boards, town halls, or a research workforce that looks more like community members will establish or reestablish trust between academic medical centers and racialized communities. However, without systematic approaches to dismantle racism, those well-intended actions become public performativity, and trust building will fail. In this essay, we draw upon foundational ethical principles of trust, distrust, and trust building; apply the concept …

Self-Management Intervention For Reducing Epilepsy Burden Among Adult Ugandans With Epilepsy (Smart-U): Randomised Clinical Trial Protocol, Jennifer B. Levin, Carolyn Still, Christopher J. Burant, Martha Sajatovic

Faculty Scholarship

Background:Epilepsy is a common chronic brain disorder globally affecting people of all ages, with the majority living in developing countries. The introduction of epilepsy self-management approaches to help people with epilepsy is urgently needed to influence epilepsy-related outcomes. This 2-site randomised controlled trial building on promising preliminary data is intended to explore this further. Methods: A total of 188 adult people with epilepsy (PWE) attending the neurology clinics at Mulago and Mbarara hospitals and consent to participate in the study will be recruited. They will be randomised into intervention versus enhanced treatment control (eTAU) study groups. The intervention group will …

Digital Inclusion For People With Autism Spectrum Disorders: Review Of The Current Legal Models And Doctrinal Concepts, James Hutson, Piper Hutson

Faculty Scholarship

Objective: Today, a significant part of professional tasks are performed in the digital environment, on digital platforms, in virtual and other meetings. This necessitates a critical reflection of traditional views on the problem of accessible environment and digital accessibility, taking into account the basic universal needs of persons with disabilities.

Methods: A gap between the traditional legal perspective on special working conditions for persons with disabilities and the urgent need of a digital workplace (digital environment) clearly shows lacunas in the understanding of accessibility, which are identified and explored with formal-legal and doctrinal methods. The multifaceted aspects of …

The Holistic Archival Personality Profiling Model (Happm): Comprehensive Data Integration For Personality Analysis, James Hutson, Pace Ellsworth

Faculty Scholarship

The traditional approach to biographical profiling, predominantly reliant on limited and fragmented datasets, has frequently resulted in superficial personality understandings. This is largely due to an overemphasis on official records and notable events, neglecting the rich tapestry of everyday experiences and personal interactions that significantly shape personalities. To address this shortcoming, this article introduces a multi-disciplinary methodology, The Holistic Archival Personality Profiling Model (HAPPM), which integrates a diverse array of archival materials, including personal correspondences, social media footprints, and family memorabilia. This approach involves digitizing various data forms, including handwritten documents, into machine-readable text, and then semantically classifying this data …