Digital Commons Network^™

The Demise Of Deference — And The Rise Of Delegation To Interpret?, Thomas W. Merrill

Faculty Scholarship

In the concluding days of its recently completed Term, in the midst of headline-grabbing decisions about presidential immunity, gun rights, and abortion, the Supreme Court rendered a momentous decision overruling the Chevron doctrine. The decision in Loper Bright Enterprises v. Raimondo was not a surprise. After treating the Chevron doctrine as a settled principle of administrative law for more than three decades, the Court stopped applying it in 2016. Several Justices authored individual opinions urging that it was unconstitutional, violated the Administrative Procedure Act (APA), was prone to manipulation by judges, created systematic bias in favor of the government, and …

Addressing Energy Insecurity Upstream: Electric Utility Ratemaking And Rate Design As Levers For Change, Emma Shumway, Diana HernáNdez, QëNdresa Krasniqi, Vivek Shastry, Abigail Austin, Michael B. Gerrard

Faculty Scholarship

Millions of Americans are impacted by energy insecurity each year, in part due to unaffordable and inequitable electricity rates. The electric ratemaking process presents opportunities to confront issues of affordability and equity or to instead entrench traditional approaches. State legislatures, public utility commissions (PUCs), and advocates all play vital roles in making the former a reality. Historically, ratemaking has been criticized as an insular and highly technical process that caters to utilities rather than customers. But states like California and New York are making strides by broadening PUC legal authority to include explicit consideration of equity issues, adjusting incentives and …

Balancing Freedom Of Expression And Equality On College Campuses In The Wake Of Intensified Antisemitism, Andrea Martin

Faculty Scholarship

The long-standing debate about free speech on college campuses was reignited by the latest attack on Israel by Hamas on October 7, 2023. Since then, anti-Israel advocacy at universities has drastically escalated. During demonstrations, protests, and rallies, students shout vile antisemitic slogans, call for the death of Jews and the destruction of Israel, promote violence against Jews, and harass and threaten fellow students because they are Jewish. Some university administrators have been publicly accused of floundering in their responses to intensifying antisemitic campus environments and failing to protect Jewish students from harassment. In defense of their inaction, a frequent retort …

Reconstructing Citizenship, Jenny E. Carroll, James Jeter

Faculty Scholarship

In our republican democracy, voting is a central right of citizenship. Yet millions of voters are routinely disenfranchised as a result of convictions or because their carceral status creates barriers to voting. In the past decade, academic scholarship has focused on the impact of disenfranchisement based on conviction. This work has mapped the legal and social implications of policies that deny voting rights to over five million otherwise eligible voters nationwide. Yet this work has some gaps. First, by focusing solely on conviction-based disenfranchisement, the existing scholarship has largely ignored fatal barriers to voting created (and at times perpetuated) by …

Affirmative Action’S Asian American Problem, Huyen Pham, Joseph Thai

Faculty Scholarship

Asian American opponents of affirmative action have received both credit and blame for their pivotal role in toppling racial preferences in university admissions in Students for Fair Admissions v. Harvard (SFFA). Allied conservatives highlighted evidence of discrimination against Asian American applicants as a compelling reason to dismantle affirmative action; liberals either denied this discrimination existed or tolerated it as an acceptable cost of helping other minority applicants. But largely unacknowledged is the precipitating history of the Supreme Court’s marginalization of Asian American applicants and its decades of tacit approval of their exclusion from affirmative action programs. This unwritten …

Seeing The Whole Together Through Relational Mapping: A Method For Engaging In Complex Systems Change, John Paul Stephens

Faculty Scholarship

Complex global challenges cut across organizational and sectoral boundaries, increasing calls for holistic responses. Seeing the whole across diverse stakeholders is challenging for participants in complex systems, yet doing so is essential for engaging effectively in systems change. A promising new method known as relational mapping, based on relational coordination theory, has been used to facilitate complex systems change. Here, we propose that relational mapping can be applied to help participants (1) see the whole in relation to the parts, (2) share their explicit and tacit knowledge, (3) engage in dialogue across distinct perspectives supported by the map as a …

Opening Brief For Plaintiff-Appellant Brandon Velez, Stephen T. Martin, Seth J. Hipple, Madeline H. Meth, Elise Chigier, Bilal Mubarack, Daniel Siemers

Faculty Scholarship

Reasons Why Oral Argument Should Be Heard: Oral argument would significantly aid this Court. This appeal presents important questions about what constitutes excessive force, retaliatory arrest, and unlawful failure to train police officers. Oral argument would allow the Court to investigate the complex facts at issue and the elements of these claims.

Searching For The Radical Constitution, Robert L. Tsai

Faculty Scholarship

Due to its length and richness, The Constitutional Bind could be considered several books in one. It is a socialist critique of American political development that highlights the tradeoffs from incremental rather than transformational progress. It is also a partial intellectual history of radical and alternative constitutional theories marginalized by the set of ideas that came to rule. Finally, the book serves as an urgent plea for fellow citizens to give up the mesmerizing, yet frustratingly confining rhetoric of twentieth-century liberal constitutionalism.

Given Rana’s central objective of investigating the rise of the “creedal” approach to American constitutionalism, I believe it …

Stirred By Your Presence, Jeremy D. Bendik-Keymer

Faculty Scholarship

Traces of you reach me through my senses. But without wondering in your presence, I cannot see you. For beings of sense and meaning such as ourselves, being stirred by another’s presence opens wondering. The implications of such claims are striking for what perception involves, for being in touch with another, and for good relationships. The paper proceeds as a series of “strobes,” from an ancient Greek word for whirling. Turning quickly about, words enact being stirred into won-dering, interspersed with visual glimpses, a photographic series. Building on recent work by the author, the paper draws on Jean-Luc Marion’s phenomenology; …

Proceedings Of The 2022 “Lifestyle Intervention For Epilepsy (Life)” Symposium Hosted By Cleveland Clinic, Martha Sajatovic

Faculty Scholarship

Lifestyle interventions are strategies used to self-manage medical conditions, such as epilepsy, and often complement traditional pharmacologic and surgical therapies. The need for integrating evidence-based lifestyle interventions into mainstream medicine for the treatment of epilepsy is evident given that despite the availability of a multitude of treatments with medications and surgical techniques, a significant proportion of patients have refractory seizures, and even those who are seizure-free report significant adverse effects with current treatments. Although the evidence base for complementary medicine is less robust than it is for traditional forms of medicine, the evidence to date suggests that several forms of …

Reducing Consumer–Brand Incongruity Through Corporate Social Responsibility And Brand Trust: Exploring Negative Word-Of- Mouth (Nwom), Petek Tosun, Sandy Ipeker Cagliyor, Merve Yanar Gürce

Faculty Scholarship

Drawing upon consumer–brand disidentification theory and balance theory, this study examines symbolic and ideological incongruity in consumer–brand relationships through an original conceptual model shaped by negative past experiences, brand trust, perceived corporate social responsibility (CSR), and negative word-of- mouth (NWOM). A preliminary study was conducted to explore the dimensions of consumers' negative past experiences by topic detection. Latent Dirichlet allocation (LDA) topic modeling was undertaken to analyze online consumer reviews (n = 6095) about a coffee chain brand. The dimensions detected in this preliminary study were included in the research model and further analyzed in the main study. The main …

The State Statutes Project, Neel Guha, Diego A. Zambrano

Faculty Scholarship

State statutes are having a moment in national debates. Partly fueled by polarization, state legislatures have pushed the boundaries on almost every important national question, from abortion and regulation of social media, all the way to police lawsuits and drug use. Take, for instance, the by now well-known example of Texas Senate Bill 8. To avoid Roe v. Wade, the Texas Legislature enacted a statute that allowed private parties (really, anyone) to sue abortion providers. The kicker was that the statute prohibited government enforcement in order to prevent Ex parte Young style challenges in federal court. Or take Montana’s attempt …

The International Legal Framework Of Oceanic Shipping Of Carbon Dioxide For Permanent Storage, Carolina Arlota, Michael B. Gerrard

Faculty Scholarship

The Intergovernmental Panel on Climate Change defines carbon dioxide capture and storage (CCS) as “a process in which a relatively pure stream of carbon dioxide (CO2) from industrial and energy-related sources is separated (captured), conditioned, compressed, and transported to a storage location for long-term isolation from the atmosphere.” Therefore, CCS encompasses a series of steps, at minimum: capturing carbon dioxide, its transportation to a storage site, and its injection into the subsurface for permanent storage. As such, CCS does not refer to any single activity or technology. This Article focuses on the transportation aspect of CCS and, more precisely, …

Commercial Boilerplate: A Review And Research Agenda, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Boilerplate contracts have long fascinated legal scholars. But the focus has been largely on consumer contracts, with the debate centered on the question of whether take-it-or-leave-it mass-produced forms imposed on consumers by large corporations should be treated as contracts or as a problem in regulation. By contrast, commercial boilerplate — the standard forms used in transactions for corporate or sovereign bonds or merger agreements — has traditionally received little attention. The assumption has been that form contracts among sophisticated parties may differ in form but not in substance from bespoke contracts between business entities. Yet a growing body of scholarship …

The 2023 Merger Guidelines: An Assessment, Herbert Hovenkamp, Tim Wu, James Keyte

Faculty Scholarship

The 2023 Merger Guidelines1 are ten months old, but they still need some unpacking. To help our readers think through the issues that the Guidelines raise, Antitrust magazine asked two experienced legal scholars — Professors Tim Wu and Herbert Hovenkamp — to discuss the Guidelines with Antitrust editorial board member James Keyte. This discussion took place on May 28, 2024. The transcript has been edited for length and readability.

Cisg, Wayne R. Barnes

Faculty Scholarship

This survey article discusses cases during the prior year, which are decided based on one or more provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is a United Nations treaty that provides a uniform international sales law. It was adopted in Vienna in 1980 and went into effect in 1988. The CISG governs contracts for the international sale of goods between businesses located in different countries that have ratified the treaty. It has been adopted by 95+ countries, including major trading nations like the United States, China, and most European countries. …

Public Financing Of Election Campaigns, Richard Briffault

Faculty Scholarship

Public financing consists of the provision of public dollars to candidates or parties to use to pay for campaign expenses. Public financing has the potential to reduce the influence of wealthy donors and special interests, reduce the burdens of fundraising, and, by leveling the playing field, promote electoral competition and political equality more generally. With the Supreme Court increasingly hostile to campaign finance measures that limit the use of private campaign money, public financing, which puts money into the system, is one reform measure that has consistently passed constitutional muster. In theory, public funding could have many benefits, but it …

A New Era Of Deference: From Chevron To Loper Bright, Daniel E. Walters

Faculty Scholarship

Deference to administrative agencies’ interpretations of ambiguous statutory provisions has been a hallmark of administrative law and regulatory policy for the past forty years. The Supreme Court recently upended that settled allocation of power between agencies and courts, granting interpretive primacy to courts even where statutes essentially require policy choices. However, questions remain about precisely how courts will exercise this policymaking authority that agencies used to exercise, as well as about the multiple “offramps” from this nondeferential standard that the Court left open. Rather than a new era of nondeference, it is just as likely we are embarking on a …

Constitutional Disorder, Robert L. Tsai

Faculty Scholarship

This is a review essay inspired by two books: Yuval Levin's American Covenant (2024) and Erwin Chemerinsky's No Democracy Lasts Forever (2024). I make the following points. First, all treatments of the U.S. Constitution can be mapped on a continuum from the worshipful to the diagnostic. Second, Levin's account, which inclines toward the devotional, extols certain features deemed both originalist and virtuous: social unity over untidiness, consensus over dissent, fear and loathing of mass politics. Third, such accounts may not be sufficiently nimble to grapple with contemporary problems such as new forms of oligarchy or movement capture of traditional parties. …

The False Choice Between Digital Regulation And Innovation, Anu Bradford

Faculty Scholarship

This Article challenges the common view that more stringent regulation of the digital economy inevitably compromises innovation and undermines technological progress. This view, vigorously advocated by the tech industry, has shaped the public discourse in the United States, where the country’s thriving tech economy is often associated with a staunch commitment to free markets. U.S. lawmakers have also traditionally embraced this perspective, which explains their hesitancy to regulate the tech industry to date. The European Union has chosen another path, regulating the digital economy with stringent data privacy, antitrust, content moderation, and other digital regulations designed to shape the evolution …

The International Court Of Justice: New Challenges In The Hague For Adjudication Of Interstate Disputes, John Bellinger, Catherine Amirfar, Sarah H. Cleveland, Juan Manuel Gómez-Robledo Verduzco

Faculty Scholarship

This panel was convened on Thursday, March 30, 2023 at 10:30 a.m. by its moderator Catherine Amirfar of Debevoise & Plimpton LLP, who introduced the panelists: Sarah Cleveland of Columbia University Law School; and Juan Manuel Gómez-Robledo Verduzco, the Deputy Permanent Representative to the United Nations for Mexico.

Speaking Collectively: The First Amendment, The Public Sector, And The Right To Bargain And Strike, Kate Andrias

Faculty Scholarship

How is it that the Supreme Court has not understood collective bargaining and strikes among public sector workers to fall within the First Amendment’s ambit? Public sector union activity involves expression, assembly, association, and petitioning. Workers’ ability to form unions and to engage in concerted action in support of their shared goals is an important part of democratic governance. Through unions, workers engage in active citizenship; through association with one another, they express their views collectively and engage the government and the public on issues of public concern. Indeed, in the context of protecting the putative speech rights of union …

Intellectual Property, Genetic Resources, And Associated Traditional Knowledge, N.S. Gopalakrishnan, Srividhya Ragavan, Narendran Thiruthy

Faculty Scholarship

The recently concluded WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge mandates disclosure requirements in patent applications, thereby creating an obligation to attribute the use of genetic resources and traditional knowledge. The WIPO member countries thus have an opportunity to modify their national patent laws, so that they can effectively control genetic resources and traditional knowledge. This article examines the choices that the biodiversity-rich countries have when designing their national legal systems to implement the treaty.

Shifting Toward Boilerplate Regulation, Wayne R. Barnes

Faculty Scholarship

Consumer assent to standard form contracts has been creating cognitive dissonance among contracts scholars for a century. Businesses impose standard forms on consumers, who never read the terms. But consumers would not understand them if they did. And they don’t have the bargaining power to change them anyway—the terms are famously “take it or leave it.” Contracting is ideally theorized as an act of voluntary, knowing consent to all the terms agreed to. The dissonance is that consumers, although ostensibly signaling their assent to the boilerplate by signing (or clicking, or tapping their phone screen), do not in fact know …

Reply Brief For Plaintiff-Appellant Rocky Freeman, Madeline H. Meth

Faculty Scholarship

Because the Probation Office “dropped the ball,” JA199, false information remained in Rocky Freeman’s pre-sentence report for years. The Bureau of Prisons knew or should have known that it was relying on an inaccurate PSR. Yet, it failed to take any action to obtain correct information until Freeman discovered that BOP had been treating him as if he were a contract killer who had murdered two victims—effectively punishing him for acquitted conduct contrary to a court order. Instead of designating Freeman to the lowest-security-level facility for which he was qualified within 500 miles of his family, the United States sent …

Melanism In Polymorphic Terrestrial Snakes: A Meta-Analysis And Systematic Review, Ryan A. Martin

Faculty Scholarship

Background and Aim: Colour polymorphic populations constitute excellent model systems for testing ecological and evolutionary hypotheses, as alternate colourations are associated with differences in various biological, behavioural and life-history traits. Melanism is the most common and most obvious form of polymorphism. In reptiles in general (and snakes in particular), thermal melanism has been a popular hypothesis used to explain the appearance of black individuals. It suggests that a trade-off exists between superior thermoregulation and reduced protection through the loss of crypsis. Surprisingly, despite the growing body of literature available, to date, there are only two qualitative reviews on the evolutionary …

Fan Works And The Elusive Border Between Derivative And Transformative Uses, Aaron Schwabach

Faculty Scholarship

When Professor Schwabach began writing about fanfic and other fan works over a decade ago it was a niche topic, mostly of interest to fellow fans. It has since generated dozens of articles and a small but steadily increasing amount of litigation. In addition to several previous articles on the topic, Professor Schwabach has contributed a book (Fan Fiction and Copyright) and some book chapters to this ongoing discourse.

When this subject was new each article had to begin with a lengthy explanation of what fanfic is, why fictional characters are or are not protected by copyright, how parody and …

Physiological Role For S-Nitrosylation Of Ryr1 In Skeletal Muscle Function And Development, Qi-An Sun, Zachary W. Grimmett, Douglas T. Hess, Zhaoxia Qian, Ruchi Chaube, Nicholas M. Venetos, Bradley N. Plummer, Kenneth R. Laurita, Richard T. Premont, Jonathan S. Stamler

Faculty Scholarship

Excitation-contraction coupling in skeletal muscle myofibers depends upon Ca2+ release from the sarcoplasmic reticulum through the ryanodine receptor/Ca2+-release channel RyR1. The RyR1 contains ∼100 Cys thiols of which ∼30 comprise an allosteric network subject to posttranslational modification by S-nitrosylation, S-palmitoylation and S-oxidation. However, the role and function of these modifications is not understood. Although aberrant S-nitrosylation of multiple unidentified sites has been associated with dystrophic diseases, malignant hyperthermia and other myopathic syndromes, S-nitrosylation in physiological situations is reportedly specific to a single (1 of ∼100) Cys in RyR1, Cys3636 in a manner gated by pO2. Using mice expressing a form …

Satirical Deepfakes, Surreal Dreamscapes & Nostalgic Pixels: The Rapid Evolution And Cultural Commentary Of Ai-Aesthetics, Andrew Smith, James Hutson

Faculty Scholarship

The rapid evolution of visual aesthetics driven by AI, shared globally through the internet and social media, has dramatically accelerated what once took centuries to develop. This article explores the unique visual tropes emerging from AI-generated content, characterized by surreal, uncanny, and often unsettling imagery. Examples range from the Dor Brothers' stylized narrative videos to horrifying depictions of transformations, such as people morphing into motorcycles. The article contextualizes this aesthetic within historical developments in creative experimentation, drawing parallels with David Bowie's unconventional approach to sound creation in the 1970s. It also considers how AI-driven art, free from copyright constraints in …

Ai Satire And Digital Dystopia: The Dor Brothers Crafting Imperfection And Political Commentary In Contemporary Video Art, James Hutson, Andrew Smith

Faculty Scholarship

The Dor Brothers' AI-generated video content exemplifies an inflection point in digital creativity, where technological limitations are repurposed as aesthetic tools. Drawing on recent interviews with Yonatan Dor, this article explores the innovative techniques of the brothers, such as masking visual imperfections with retro filters and embracing the unpredictability of AI outputs. Through generating numerous clips and meticulously editing selections, they create a unique aesthetic that juxtaposes surrealism with a gritty realism, often reminiscent of early CCTV or VHS footage. Their work not only transcends the typical "morphing face" trope of AI videos but also engages in satire, using deepfake-like …