Digital Commons Network^™

Zoning The Subsurface, Hannah Jacobs Wiseman, Anne Menefee, Seth Blumsack, Michael Helbing

Faculty Scholarship

The vast rock formations underlying the United States stand at an important Demsetzian turning point, at which the externalities of inadequately defined property rights justify the costs of solidifying formal property rights for this resource. This need arises from the growing scarcity of pore space (tiny openings) in subsurface rocks—property that is critical to address climate change. Efforts to mitigate and adapt to climate impacts require large-scale underground storage of carbon dioxide, water, and energy within the pore space of subsurface reservoirs. The subsurface will also continue to house millions of miles of pipelines, hundreds of thousands of waste disposal …

The Time Has Come To Stop The Bloodshed In Myanmar And Restore The People's Democratically Elected Government, Ronnie R. Gipson Jr.

Faculty Scholarship

Although the Myanmar coup occurred in February 2021, the world paid little attention mostly because the citizens were not white, not European, and the country did not hold huge oil reserves. Subsequent to the coup, Russia invaded Ukraine in 2022, and Israel responded to the Hamas attack on its territory by invading Gaza in 2023. Both of these events assured that the international community paid little to no attention to the plight of the people of Myanmar under the thumb of a repressive military dictatorship after having their freely elected democracy ripped away. If Ukraine is worthy of global attention, …

Birth On Mother Earth: Mitigating The Maternal Health Crisis, Jill C. Engle

Faculty Scholarship

Maternal health outcomes in the U.S. are remarkably poor, especially when compared to those in other industrialized countries. For example, our maternal death rate is more than twice that of Canada’s. Women of color in the U.S. suffer maternal morbidity and mortality at rates considerably higher than white women. Indigenous women experience the worst maternal health outcomes of all. Yet, most maternal deaths and injuries are preventable. Furthermore, rates of maternal harm, including death, are lower when midwives and similar birthing attendants are involved. This Article is the first to fully explore the unique skillset of traditional birth attendants (TBAs). …

Should We Watch The Watcher Or The Watched? The Transparency Debate In Auditor Regulation, Sarah Williams

Faculty Scholarship

Federal law has mandated the use of outside auditors by public companies since 1934. For much of that time, the audit industry watched itself. It monitored audit quality and decided how to address auditor misconduct. In 2002, Congress created the Public Company Accounting Oversight Board (“PCAOB” or “Board”) to watch the auditors. The legislation designed a regulatory scheme that presumed audit performance could be improved through an open and cooperative relationship between the regulator and the regulated audit firm. Congress created accountability for the agency by mandating that it disclose its oversight activities to the public (an approach characterized as …

Racial Disparities In Crime-Based Removal Proceedings, Emily Ryo, Ian Peacock, Weston Ley, Christopher Levesque

Faculty Scholarship

Whether and to what extent racial minorities experience harsher treatment or face worse outcomes in court are questions of fundamental importance for any justice system. Questions of racial inequality are especially salient in the context of removal proceedings that are triggered by immigrants’ criminal history. Many individuals in crime-based removal proceedings are immigrants of color who face a host of legal disadvantages that are tantamount to double penalties for the same crime for which they have already been punished through the criminal justice system. This Article offers, for the first time, systematic empirical analyses of crime-based removal proceedings decided between …

Narrowly Person-Affecting Axiology: A Reconsideration, Matthew D. Adler

Faculty Scholarship

A narrowly person-affecting (NPA) axiology is an account of the moral ranking of outcomes such that the comparison of any two outcomes depends on the magnitude and weight of individuals’ well-being gains and losses between the two. This article systematically explores NPA axiology. It argues that NPA axiology yields an outcome ranking that satisfies three fundamental axioms: Pareto, Anonymity and, plausibly, Pigou-Dalton. The axiology is neutral to non-well-being considerations (desert); and (assuming well-being measurability) leads to the Repugnant Conclusion (RC). In short, NPA axiology provides a grounding for Paretian, equity-regarding welfarism, albeit one that includes the RC.

The Reliability Response To Patent Law’S Ai Challenges, Arti K. Rai

Faculty Scholarship

Pervasive AI use adds newfound importance to longstanding debates over patent timing and reliability. Patent claims on speculative ideas generated by AI, or even the infusion of speculative AI-generated ideas into the public domain, may defeat patent incentives for more careful research. Although challenges that AI use poses for patent validity requirements like human inventorship and nonobviousness have received more attention, reliability is equally important.

Indeed, as this Article argues, the issues are linked. If requirements for inventorship and nonobviousness were adjusted to emphasize reliability, a human role could be preserved, and AI use would not necessarily threaten patents. Currently, …

Judicial Reform From The Inside Out, Daniel Epps, Marin K. Levy

Faculty Scholarship

The Judiciary Act of 1925, the subject of this Symposium, is known as “the Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous, perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in judicial reform efforts—what we call judicial reform from the inside out.

We survey examples of judges participating in reform debates from across …

Interlocking Directorates In The United States, Yaron Nili

Faculty Scholarship

In corporate America, directors wield increasing influence across multiple companies, often within the same industry (“horizontal directors”), which creates tension between antitrust laws and corporate governance. Horizontal directors are well-positioned to bring industry expertise and potentially increase higher profits, benefiting shareholders but also possibly enabling potential collusion. This chapter provides an overview of the prevalence of horizontal directors, the regulatory grey space in which they exist and the connection to some recently debated issues, including that of common ownership by institutional investors. To inform this debate, this chapter provides a thorough overview of horizontal directors from corporate and antitrust perspectives …

As They Think Best: A History Of The "One Crowded Hour" Autograph Manuscript, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

A Historical Analysis Of Book Challenges And Banning In Louisiana, Janelle Zetty

Faculty Scholarship

This article explores the history of challenges and bans on library and school materials in Louisiana from 1938 to 2024. It provides context for recent legislation, particularly Act 436 of 2023. The article reviews incidents documented in newspaper articles and library publications, focusing on challenges related to race, sexual content, political views, and LGBTQ+ themes. It discusses the roles of librarians, school boards, and community groups in these circumstances. The historical challenges and book bans in Louisiana reveal a recurring pattern of moral and political arguments used to justify censorship. This pattern directly influences, and is echoed by, recent legislation, …

Personal Jurisdiction And The Fifth Amendment, Scott Dodson

Faculty Scholarship

The Supreme Court has avoided clarifying the relationship between federal-court personal jurisdiction, congressional statutes, and the Fifth Amendment. Until June 2025, that is. In that month, the Court decided two important cases involving constraints on a federal court's exercise of personal jurisdiction outside of Rule 4(k)(1)(A), which typically ties federal-court personal jurisdiction to state-court personal jurisdiction. This brief essay explains and analyzes those cases, situating them in the Court's larger agenda for personal jurisdiction. It also discusses some open questions raised by the decisions and the role that personal jurisdiction in the United States may now play on the global …

Secretive Sheriffs: Opacity And Variation In California's Jail Responses To Covid-19, Hadar Aviram, Aparna Komarla

Faculty Scholarship

Agnotology is the study of culturally induced ignorance or doubt, particularly the publication of inaccurate or misleading scientific data. In this Article, we draw attention to a disturbing site of agnotology: healthcare in California jails. Often obscured because of the attention to state prisons, jails were sites of opacity and misinformation, largely because of sheriffs’ refusal to collaborate with data collection efforts—both coordinated by the state and solicited through non-profits.

Building on the data collection effort of the Covid In-Custody Project and on public advocacy efforts of the #StopSanQuentinOutbreak coalition and its off-shoots, we show the chasm between data on …

Addressing Perceived Racial And Ethnic Disparities In Attorney Discipline, Susan Saab Fortney, Heather Zirke

Faculty Scholarship

Perceived racial and ethnic disparities in attorney discipline threaten public confidence in the legal profession’s fairness and equity. This Article explores whether lawyers of color are subject to a disproportionate number of disciplinary actions. It draws on studies that reveal patterns of disparate outcomes tied to factors such as practice setting, representation during proceedings, and decision-maker bias. The authors assess how systemic issues may contribute to these disparities and highlights gaps in research and transparency. To address these challenges, the Article recommends a multi-faceted approach. This includes better collection and analysis of demographic data, procedural reforms to ensure equitable treatment, …

Original Discontent, William Magnuson

Faculty Scholarship

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about …

The Great Unsettling: Administrative Governance After Loper Bright, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest …

"Arbitration In Name Only": A Race Claims Mismatch, Michael Z. Green

Faculty Scholarship

With arbitration's meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair "arbitration in name only" that should not be enforced. 

Employers have become savvier in how they require employees to agree to resolve discrimination …

The Transnationalisation Of Civil Society In East Asia’S War Redress Movement, Timothy Webster

Faculty Scholarship

Transnational human rights litigation is commonly associated with developments in Europe and the Americas during the 1990s. But Asian actors have used legal mobilisation to hold corporate actors to account since at least the 1970s. This chapter charts the first usages of transnational litigation in East Asia’s Word War II redress movement, akin to the Holocaust Restitution movement of the West. Korean and Chinese forced labourers liaised with Japanese attorneys, activists and academics to press compensation claims against Japanese corporations for wartime human rights abuses in Tokyo. Legal mobilisation did not succeed in the traditional sense. Yet, the formation of …

Title Ix And Athlete Compensation In The Postamateurism Era, Erin E. Buzuvis

Faculty Scholarship

This Essay argues that Title IX applies to all manners of compensation that universities provide and facilitate to their athletes because of their athletic participation. This includes paying wages (when and if that becomes permissible), paying for NIL (when that permission takes effect), and facilitating payments from booster collectives that are working on those universities’ behalf (as happens now). The statute and its implementing regulations create a structure of substantive equality that is flexible enough to address even the changing landscape of college athletics as it applies to matters of compensation that were not contemplated by the drafters of the …

Data Property & Digital Sales, Christina Mulligan

Faculty Scholarship

No abstract provided.

Fixing Mfw: Fairness And Vision In Controller Self-Dealing, Zohar Goshen, Assaf Hamdani, Dorothy S. Lund

Faculty Scholarship

The legal regime governing controlling shareholders relies on the ability of Delaware courts to police conflicted transactions under the stringent "entire fairness" standard of review. This review involves both implicit valuation – evaluating the transaction process, and explicit valuation – assessing the fairness of the transaction's financial terms. This Article reveals a critical flaw in this regime: courts cannot reliably engage in valuation when the transaction involves an entrepreneur's idiosyncratic vision for the company. As a result, there is a gaping hole in Delaware's framework for policing the fairness of controller transactions.

Delaware courts have developed guardrails to avoid judicial …

For Whose Benefit Is The Freedom Of Speech?, Vincent A. Blasi

Faculty Scholarship

In United States v. Alvarez, the US Supreme Court ruled that an official of a water district who introduced himself to his constituents by falsely stating in a public meeting that he had earned the Congressional Medal of Honor had a First Amendment right to make that demonstrably untrue claim. Audience members misled by the statement might well be considered to have a First Amendment interest in not being directly and knowingly lied to in that way. Other members of the community might be thought to have a First Amendment interest in public officials such as Xavier Alvarez telling …

The Unfulfilled Promise Of Obergefell For Children Of Lgbtq+ Parents: Advancing Non-Discrimination Laws For Familial Association, Jeffrey Dodge

Faculty Scholarship

Since the 2015 Obergefell v. Hodges decision, same-sex marriages have increased significantly in the United States. The American Community Survey data collected in 2022 shows that there are around 1.3 million same-sex couple households in the country, up from 565,000 in 2028. Just over half of these couples are legally married, up nearly 400% from prior to Obergefell. This data not only shows the significance of Obergefell for the LGBTQ+ community, but it also frames a generational shift in attitudes on marriage and family.

With the rise in same-sex couples accessing marriage has come greater visibility, representation, and acknowledgement. …

The Artificial Intelligence Trolley Problem, James Cooper, Kashyap Kompella

Faculty Scholarship

This Essay addresses a growing Constitutional challenge in public governance: the increasing delegation of consequential decisions to algorithmic systems that encode value trade-offs between liberty and security, equity and efficiency, and expression and control, without visibility, legal justification, or institutional oversight. We view this hidden normative choice an example of the “Artificial Intelligence (AI) Trolley Problem.” Like the classic moral dilemma, it involves unavoidable sacrifices among competing goods. Unlike its philosophical counterpart, however, algorithmic trade-offs occur silently. They are embedded in data proxies, optimization logic, and model design, and insulated from scrutiny by claims of technical neutrality. This Essay argues …

Social Justice Unionism: Intersectionality In The Twenty-First Century Workplace, Shirley Lin

Faculty Scholarship

No abstract provided.

Parafamily, Christina Mulligan

Faculty Scholarship

No abstract provided.

Gendered Liberty, Laura Portuondo

Faculty Scholarship

No abstract provided.

Competitive Populism, Madhav Khosla

Faculty Scholarship

The preoccupation of comparative constitutional lawyers over the past decade or so has been the rise of authoritarian populism. This chapter focuses on one possible pathway that might follow our present political moment: competitive populism. This phase will involve a certain kind of institutional vacuum: the prior institutions, associated with liberal constitutional democracy, will not lend themselves to being rebooted. In reflecting on this possible future, this chapter explores the nature and form of deinstitutionalization that has occurred under authoritarian populism, and the elements that define the emerging constitutional framework. The implication here is that what will be crucial …

How Not To Democratize Algorithms, Ngozi Okidegbe

Faculty Scholarship

A growing set of jurisdictions has embraced “consultative algorithmic governance,” the idea that community members, particularly racially and otherwise politically marginalized ones, should be involved in the processes by which state institutions procure, construct, implement, and oversee artificially intelligent algorithms employed in public sector decision-making. Consultative processes range from public hearings that provide communities with an opportunity to comment about anticipated algorithmic use to community advisory boards that help public officials evaluate the impact of current or future algorithmic use.

This Article argues that consultative algorithmic governance is critically flawed and then builds upon this critique to point toward a …

Reimagining Legal Education: Aligning Curriculum And Pedagogy With The Nextgen Bar Exam, Titichia Jackson

Faculty Scholarship

No abstract provided.