Digital Commons Network^™

The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba

Faculty Scholarship

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete …

The Chicken-And-Egg Of Law And Organizing: Enacting Policy For Power Building, Kate Andrias, Benjamin I. Sachs

Faculty Scholarship

In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure …

Aligning United States Law With International Norms Would Remove Major Barriers To Protection In Gender Claims, Karen B. Musalo Prof.

Faculty Scholarship

The protection of women and girls fleeing gender-based harms has been controversial in the United States (US), with advances followed by setbacks. The US interpretation of particular social group and its nexus analysis, both of which diverge from guidance by the United Nations High Commissioner for Refugees (UNHCR), is the most significant barrier to protection. It has become almost impossible for women and girls to rely upon the particular social group ground because of current requirements that social groups not only be defined by immutable or fundamental characteristics, but also be socially distinct and have particularity. Establishing nexus is also …

Defrosting Regulatory Chill, Guillermo J. Garcia Sanchez

Faculty Scholarship

In Homer’s Odyssey, King Odysseus asked his men to tie him to the mast of his ship with the hope that he would not jump into the sea after listening to the Sirens. The Odyssey’s hero made a pact to bind himself in the future. He knew that the temptation would be impossible to resist without restraints. Similarly, the creators and advocates of international investment agreements believe that providing rights to foreign investors through international treaties will chill State policies that would harm the interests of investors in the future. The “rope” to tie the State is the threat of …

Keynote Address: "Attacking And Defending The Administrative State", Jack M. Beermann

Faculty Scholarship

At the beginning of this semester I told my students at Boston University that this is the most interesting time to take administrative law since I started teaching it nearly forty years ago. Doctrines that seemed settled just a few years ago have been questioned and significant change seems to be on the horizon. Don't get me wrong, we've been here before. In the 1970s and 1980s there were a few Supreme Court decisions on separation of powers¹ that indicated the possibility of big changes, but ultimately it fizzled out into the administrative law revolution that wasn't.

Things feel …

The Ebb, Flow, And Twilight Of Presidential Removal, Jed Handelsman Shugerman

Faculty Scholarship

Just as the Roberts Court has been expanding presidential authority to its historic maximum, recent legal scholarship has shown that the Founders intended, to paraphrase Justice Jackson’s famous Youngstown concurrence, a much lower ebb or at least an ambiguous twilight about “executive power,” in contrast to originalists’ unsupported certainties.

The Last Colony Of The Mind: Narrative, Legal Advocacy, And The Decolonization Of Legal Knowledge, Ayodeji Kamau Perrin

Faculty Scholarship

Philippe Sands’ The Last Colony¹ tells the story of how Chagos Islanders won the right to return to the lands of their birth through a 2019 Advisory Opinion of the International Court of Justice (ICJ).² In 1965, while the United Kingdom stood in the midst of conceding to the independence claims of myriad anti-colonialists throughout its imperial holdings, it took the anachronistic step of creating a colony—the British Indian Ocean Territory (BIOT).³ In flagrant violation of UN Resolution 1514,⁴ the United Kingdom detached the Chagos Archipelago from the colony of Mauritius. And between 1967 and 1973, …

Ogoni Activism And Access To Remedy: Business And Human Rights From The Bottom Up, Ayodeji Kamau Perrin

Faculty Scholarship

Do court victories result in social change? Can victories in court result in losses outside of court? If victories in court are no guarantee of victory outside of court, how much worse are court defeats? This Article explores these questions in part through analyzing Ogoni litigation against Royal Dutch/Shell. In 2002, Esther Kiobel and several co-plaintiffs tried to hold Royal Dutch/Shell accountable for its role in the death of Kiobel’s husband and for wider corporate abuses and related state human rights violations in Ogoniland. But in 2013, a unanimous United States Supreme Court held that the Alien Tort Statute (ATS) …

The Foreshadow Docket, Bert I. Huang

Faculty Scholarship

Imagine the Supreme Court issuing an emergency order that signals interest in departing from precedent, as if foreshadowing a change in the law. Seeing this, should the lower courts start ruling in ways that also anticipate the law of the future? They need not do so in their merits rulings. That much is clear. Such a signal does not create new binding precedent. Rather, it reflects the Justices’ guess about the future of the law — and what if that guess is wrong?

Yet for a lower court ruling on a temporary stay or injunction, the task seems to call …

Racing Dobbs, Katherine M. Franke, Ria Tabacco Mar

Faculty Scholarship

In Dobbs v. Jackson Women's Health Organization, the U.S. Supreme Court reversed Roe v. Wade's limits on a state's ability to restrict, and indeed completely outlaw, abortion. The case raises fundamentally important questions about rights to reproductive autonomy, bodily integrity, sex equality, privacy, and health.

Upon closer examination, Dobbs is also about race and the nation's racial history, as the two papers published here argue. In Dreding Dobbs, Professor Katherine Franke suggests that Dobbs should be read alongside the Supreme Court's 1857 decision in Dred Scott v. Sandford, in which the Court held that Black people-even free or freed Black …

Orders Without Law, Thomas P. Schmidt

Faculty Scholarship

This Review has two goals. The book, by design, largely steers clear of concrete reform proposals; its object is to trace the ways that the Court’s practices around emergency applications shifted over the Trump years and to urge that these developments warrant critical attention (pp. 24–25). My first goal, then, is to propose some reforms. These proposals orbit around a central contention: Any critique of the shadow docket and any proposed solution must depend, explicitly or implicitly, on a theory of the Court — its role in the constitutional order and how it can best serve that role. As a …

Congress's Untapped Authority To Certify U Visas, Elora Mukherjee, Fatma Marouf, Sabrineh Ardalan

Faculty Scholarship

A crucial path to legal status for immigrant victims of crimes is the U visa, which Congress established with strong bipartisan support to protect victims of particular crimes who are helpful to law enforcement. Because the U visa was intended to encourage reporting of crimes, the application requires a certification form to be completed by a federal, state, or local authority that is investigating or prosecuting the alleged offense. Arbitrary and inconsistent certification decisions by state and local authorities make it especially important to identify relevant federal authorities that can serve as certifying authorities for U visas. This Piece argues …

Separation Of Powers By Contract: How Collective Bargaining Reshapes Presidential Power, Nicholas Handler

Faculty Scholarship

This Article demonstrates for the first time how civil servants check and restrain presidential power through collective bargaining. The executive branch is typically depicted as a top-down hierarchy. The President, as chief executive, issues directives with vast implications for federal policy. Usually, the tenured bureaucracy of civil servants below him follow these directives. Occasionally, when the President’s policies appear corrupt or ill-advised, bureaucrats may illicitly “resist” them. This presumed top-down structure shapes many influential critiques of the modern administrative state. Proponents of a strong President decry civil servants as an unelected “deep state” usurping popular will. Skeptics of presidential power …

Democracy And Defections, Madhav Khosla, Milan Vaishnav

Faculty Scholarship

Within comparative constitutional law, there is an emerging consensus that political fragmentation has weakened political parties and hindered the functioning of legislative bodies. This article examines legal efforts to curb fragmentation in parliamentary systems by prohibiting floor crossing, or “defections” — a constitutional approach that concentrates power within party leaders. It conducts a detailed case study of India, exploring what is arguably the most exten¬sive experiment in anti-defection law and its impact on accountability and representation. The article goes on to analyze similar laws in Israel and South Africa, highlighting the challenges of self-regulation. After evaluating the limitations of narrow …

The Missing Half: Revisiting Monetary Remedies To Redress Racial Segregation, Olatunde C.A. Johnson

Faculty Scholarship

This Essay considers whether courts should have awarded monetary remedies in housing desegregation cases. By examining the relief awarded in public housing desegregation cases brought in United States federal courts between 1966 and 1994, this Essay reveals the limitations of the almost exclusive reliance on forward-looking integration relief as a remedy. The Essay argues that there is a “missing half” of remedies that courts never awarded: compensatory damages for the loss of wealth and opportunity caused by housing segregation. Forward-looking remedies that promised integration have often gone unfulfilled. Understanding these “missing” damages is crucial given recent Supreme Court rulings on …

Brief For Amici Curiae Legal Scholars Supporting Respondent, Nicole Huberfeld, Timothy S. Jost, Linda C. Mcclain, Wendy E. Parmet, Erwin Chemerinsky, Elizabeth Mccuskey, Danielle Pelfrey Duryea, Gabriel Scheffler, George J. Annas

Faculty Scholarship

QUESTION PRESENTED: Whether the Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd, preempts Idaho law in the narrow but important circumstance where terminating a pregnancy is required to stabilize an emergency medical condition that would otherwise threaten serious harm to the pregnant woman’s health but the State prohibits an emergency-room physician from providing that care.

Multispecies Comparative Prostate Anatomy By Imaging: Implications For Experimental Models Of Prostatic Disease, Felipe M. Berg, Eduardo T.O. Correia, Eric C. Abenojar, James P. Basilion, Agata A. Exner, Leonardo K. Bittencourt

Faculty Scholarship

Background: There is an increasing interest in using preclinical models for development and assessment of medical devices and imaging techniques for prostatic disease care. Still, a comprehensive assessment of the prostate's radiological anatomy in primary preclinical models such as dogs, rabbits, and mice utilizing human anatomy as a reference point remains necessary with no optimal model for each purpose being clearly defined in the literature. Therefore, this study compares the anatomical characteristics of different animal models to the human prostatic gland from the imaging perspective. Methods: We imaged five Beagle laboratory dogs, five New Zealand White rabbits, and five mice, …

Community Responsive Public Defense, Alexis Hoag-Fordjour

Faculty Scholarship

No abstract provided.

Amazon, Spacex And Other Companies Are Arguing The Government Agency That Has Protected Labor Rights Since 1935 Is Actually Unconstitutional, Kate Andrias

Faculty Scholarship

Amazon, SpaceX, Starbucks and Trader Joe’s have all responded to allegations that they have violated labor laws with the same bold argument. The National Labor Relations Board, they assert in several ongoing legal proceedings, is unconstitutional.

SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”

If these companies prevail, the entire process for holding union elections and for prosecuting employers who break labor laws – in place since …

Parental Rights: Rhetoric Versus Doctrine, Clare Huntington

Faculty Scholarship

Professor Josh Gupta-Kagan observes that the Restatement of Children and the Law does not transform the law of child abuse and neglect. As he contends, this is neither a feature nor a bug. It is simply the reality of a restatement, which can only nudge, not reform, the law. I agree with Gupta-Kagan that only political will, not the American Law Institute (ALI), can fix the significant problems with the family regulation system. For advocates and scholars — including both of us — who seek structural and doctrinal change, the ALI has principles projects, and there is a broader ecosystem …

Black Girls Youth Participatory Action Research & Pedagogies, Kimberlé W. Crenshaw, Venus E. Evans-Winters

Faculty Scholarship

More than a decade ago, as a group of anti-racist and feminist researchers, including one of the authors, set out to survey the landscape of the schooling experiences of Black girls, we encountered a pronounced knowledge desert that threatened research-informed policy interventions that served to protect Black girls. Most research at the time focused on the educational experiences of male, female, or Black students. There was hardly any readily available data on the school-based outcomes of Black girls as a specific group of students with a unique set of experiences. In Black Girls Matter: Pushed Out, Overpoliced, & Underprotected (Crenshaw, …

False Conscience: Sustainability And Smart Evolution—Between Law And Power, Ugo Mattei

Faculty Scholarship

The contribution describes the legal phenomenon as a playing field characterized by a progressive regression of the law, understood as a sovereign will from top to bottom, both in the vision of formalist legal positivisms in continental Europe and in realist terms, in the United States. Soft law represents the main strategy to subordinate the law to the interests of the economy, elasticizing environmental law, making it favorable to the market, reducing ecology to the simplistic metric of CO2 emissions. The consequence is a retreat of the statist vertical normativity of law which is not replaced by a de facto …

Consumer Law For Gen Z Law Students, Neil Sobol

Faculty Scholarship

Whether they are consumers, representing consumers, or advising clients dealing with consumers, law school graduates will inevitably confront numerous consumer law issues. Moreover, most students entering law school are members of Generation Z and face a new wave of consumer laws arising from the 2007–2009 recession and the rapid growth of new technologies. Clickwrap agreements, email spoofing, cybercrimes, cryptocurrencies, fintech, identity theft, online disparagement, data privacy, artificial intelligence, robocalling, and autonomous vehicles are among the evolving topics in modern consumer law. Despite the growth in consumer law concerns, many law students have limited access to consumer law options, with almost …

The Ideology Of Press Freedom, Hannah Bloch-Wehba

Faculty Scholarship

This Article offers a critical account of the law of press freedom. American law and political culture laud the press as an institution that plays a vital role in democracy: guarding against corruption, facilitating self-governance, and advocating for free expression. These democratic functions provide justification for the law of press freedom, which defends the media’s autonomy and shields the press from outside interference.

But the dominant accounts of the press’s democratic role are only partly accurate. The law of press freedom is grounded in large part in journalism’s professional commitments to objectivity, public service, and autonomy. These idealized characterizations, flawed …

Charging Abortion, Milan Markovic

Faculty Scholarship

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

Expanding The Ban On Forced Arbitration To Race Claims, Michael Z. Green

Faculty Scholarship

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural …

Nudging Improvements To The Family Regulation System, Joshua Gupta-Kagan

Faculty Scholarship

The Restatement of Children and the Law features a strong endorsement of parents’ rights to the care, custody, and control of their children because parents’ rights are generally good for children. Building on that foundation, the Restatement’s sections on child neglect and abuse law would resolve several jurisdictional splits in favor of greater protections for family integrity, thus protecting more families against the harms that come from state intervention, especially state separation of parents from children.

But a close read of the Restatement shows that it only goes so far. It is not likely to significantly reduce the wide variation …

Restating The Law In A Child Wellbeing Framework, Elizabeth S. Scott

Faculty Scholarship

The Restatement of Children and the Law is scheduled for formal adoption by the American Law Institute in 2024. When this project was first proposed, it was met with some skepticism, on the view that the regulation of children was not a coherent field of law. But after eight years of work on this Restatement, the Reporters have produced a comprehensive account of the law’s treatment of children and clarified that it is, indeed, an integrated and coherent area of law. Our work has uncovered a deep structure and logic that shapes the legal regulation of children in the family, …

Employer-Sponsored Reproduction, Valarie K. Blake, Elizabeth Mccuskey

Faculty Scholarship

This Article interrogates the current and future role of employer-sponsored health insurance in reproductive choice, revealing the magnitude of impact that employers’ insurance coverage choices have on Americans’ access to reproductive care, as well as the legal infrastructure that prioritizes employer choice over individual autonomy.

Over half the population depends on employers for health insurance. The laws regulating those plans grant employers discretion in what services to cover, with exceptionally wide latitude for employers’ choices about reproductive care services, like abortion, contraception, infertility, and pre-exposure prophylaxis (PrEP). In their role as health care funders, employers pursue their own economic interests, …

Fair Use In The Us Redux: Reformed Or Still Deformed?, Jane C. Ginsburg

Faculty Scholarship

In 2019, Professor Ginsburg delivered the Distinguished Visitor in Intellectual Property Lecture at the Faculty of Law, National University of Singapore. Titled “Fair Use in the US: Transformed, Reformed, Deformed?”, the lecture explored US caselaw applying the statutory fair use exception, highlighting its excesses and apparent rebalancing. Four and half years (and a pandemic) later, the Supreme Court has rendered decisions in two fair use cases (Google v Oracle; Andy Warhol Foundation v Goldsmith). Together, these controversies prompt inquiry whether the Supreme Court has redrawn the landscape of US fair use and copyright law, expanding fair use …