Digital Commons Network^™

The Tactics Of Title Ix, Aaron J. Saiger

Faculty Scholarship

No abstract provided.

Engineered Credit Default Swaps: Innovative Or Manipulative?, Gina-Gail S. Fletcher

Faculty Scholarship

Credit default swaps (“CDS”) are, once again, making waves. Maligned for their role in the 2008 financial crisis and condemned by the Vatican, investors are once more utilizing CDS to achieve results of questionable market benefit. A CDS is a financial contract that allows investors to “bet” on whether a borrower will default on its loan. However, rather than waiting to see how their bets pan out, some CDS investors are collaborating with financially distressed borrowers to guarantee the profitability of their CDS positions—“engineering” the CDS’ outcome. Under the CDS contract, these collaborations are not prohibited, yet they have roiled …

The Design Patent Bar: An Occupational Licensing Failure, Christopher Buccafusco, Jeanne C. Curtis

Faculty Scholarship

Although any attorney can represent clients with complex property, tax, or administrative issues, only a certain class of attorneys can assist with obtaining and challenging patents before the United States Patent & Trademark Office (PTO). Only those who are members of the PTO 's patent bar can prosecute patents, and eligibility for the patent bar is only available to people with substantial scientific or engineering credentials. However much sense the eligibility rules make for utility patents-those based on novel scientific or technical inventions-they are completely irrational when applied to design patents-those based on ornamental or aesthetic industrial design. Nevertheless, the …

Fixing The Design Patent Bar: New Opportunities For Federal Lawyers, Christopher Buccafusco, Jeanne C. Curtis

Faculty Scholarship

No abstract provided.

The Compliance Process, Veronica Root

Faculty Scholarship

Even as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of …

Constituencies And Control In Statutory Drafting: Interviews With Government Tax Counsels, Shu-Yi Oei, Leigh Z. Osofsky

Faculty Scholarship

Tax statutes have long been derided as convoluted and unreadable. But there is little existing research about drafting practices that helps us contextualize such critiques. In this Article, we conduct the first in-depth empirical examination of how tax law drafting and formulation decisions are made. We report findings from interviews with government counsels who participated in the tax legislative process over the past four decades. Our interviews revealed that tax legislation drafting decisions are both targeted to and controlled by experts. Most counsels did not consider statutory formulation or readability important, as long as substantive meaning was accurate. Many held …

Machine Learning At The Patent Office: Lessons For Patents And Administrative Law, Arti K. Rai

Faculty Scholarship

The empirical data indicate that a relatively small increment of additional U.S. Patent and Trademark Office (“Patent Office” or “USPTO”) investment in prior art search at the initial examination stage could be a cost-effective mechanism for improving accuracy in the patent system. This contribution argues that machine learning provides a promising arena for such investment. Notably, the use of machine learning in patent examination does not raise the same potent concerns about individual rights and discrimination that it raises in other areas of administrative and judicial process. To be sure, even an apparently easy case like prior art search at …

“Unknown Symbols”: Online Legal Research In The Age Of Emoji, Jennifer L. Behrens

Faculty Scholarship

Over the last decade, emoji and emoticons have made the leap from text messaging and social media to legal filings, court opinions, and law review articles. However, emoji and emoticons’ growth in popularity has tested the capability of online legal research systems to properly display and retrieve them in search results, posing challenges for future researchers of primary and secondary sources. This article examines current display practices on several of the most popular online legal research services (including Westlaw Edge, Lexis Advance, Bloomberg Law, Fastcase, HeinOnline, and Gale OneFile LegalTrac), and suggests effective workarounds for researchers.

Bans, Joseph Blocher

Faculty Scholarship

In the universe of legal restrictions subject to judicial review, those characterized as fully denying some aspect of a constitutional right—bans—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, the valuable use of property, or a class of weapons, courts in such cases will often short-circuit the standard doctrinal machinery and strike down the law, even if it might have survived heightened scrutiny. Identifying laws as bans can thus provide an end run around the tiers of scrutiny and other familiar forms of means-ends analysis.

And yet it is …

Free Speech And Justified True Belief, Joseph Blocher

Faculty Scholarship

Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.

And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally …

Prophetic Patents, Janet Freilich

Faculty Scholarship

In most contexts, making up data is forbidden - considered fraudulent, even immoral. Not so in patents. Patents often contain experimental data, and it is perfectly acceptable for these experiments to be entirely fictional. These so-called “prophetic examples” are not only explicitly permitted by both the Patent Office and federal courts, but are considered equivalent to factual data in patent doctrine. Though prophetic examples are thought to be common, there are no in-depth studies of the practice, nor any explanation for why fictional data are allowed in patents.

Here, I provide the first historical, theoretical, and empirical analysis of prophetic …

The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation, David Kamin, David Gamage, Ari Glogower, Rebecca Kysar, Darien Shanske, Reuven Aviyonah, Lily Batchelder, J. Clifton Fleming, Daniel Hemel, Mitchell Kane, David Miller, Daniel Shaviro, Manoj Viswanathan

Faculty Scholarship

No abstract provided.

Maps: Scaling Privacy Compliance Analysis To A Million Apps, Sebastian Zimmeck, Peter Story, Daniel Smullen, Abhilasha Ravichander, Ziqi Wang, Joel R. Reidenberg, N. Cameron Russell, Norman Sadeh

Faculty Scholarship

The app economy is largely reliant on data collection as its primary revenue model. To comply with legal requirements, app developers are often obligated to notify users of their privacy practices in privacy policies. However, prior research has suggested that many developers are not accurately disclosing their apps’ privacy practices. Evaluating discrepancies between apps’ code and privacy policies enables the identification of potential compliance issues. In this study, we introduce the Mobile App Privacy System (MAPS) for conducting an extensive privacy census of Android apps. We designed a pipeline for retrieving and analyzing large app populations based on code analysis …

Recovering Tech's Humanity, Olivier Sylvain

Faculty Scholarship

No abstract provided.

Apis And Your Privacy, N. Cameron Russell

Faculty Scholarship

Application programming interfaces, or APIs, have been the topic of much recent discussion. Newsworthy events, including those involving Facebook’s API and Cambridge Analytica obtaining information about millions of Facebook users, have highlighted the technical capabilities of APIs for prominent websites and mobile applications. At the same time, media coverage of ways that APIs have been misused has sparked concern for potential privacy invasions and other issues of public policy. This paper seeks to educate consumers on how APIs work and how they are used within popular websites and mobile apps to gather, share, and utilize data.

APIs are used in …

The Three Ages Of Modern American Lawyering And The Current Crisis In The Legal Profession And Legal Education, Rachel F. Moran

Faculty Scholarship

During the first months of 2018, two short pieces on legal education were published. One reported on the results of a survey of college graduates, law school graduates, and holders of other advanced degrees. The study found that today’s law graduates were less likely than pre-recession counterparts to report that the J.D. degree was worth the cost and more likely to have second thoughts about the decision to go to law school. The findings prompted Aaron Taylor, executive director of the Access Lex Center for Legal Education Excellence, to conclude that there are “two distinct worlds of law graduates” made …

Tempesta Map Of Rome, Jane C. Ginsburg

Faculty Scholarship

In the late 1580s, Florentine painter and printmaker Antonio Tempesta (1555-1630), having thrived under the earlier Pope Gregory XIII, found himself on the ebbing end of the next Pope, Sixtus V's patronage. Tempesta's commissions to fresco churches or residences had fallen off, but the burgeoning print market offered new opportunities. Printed images of Rome proved increasingly popular with pilgrims, particularly in anticipation of the Jubilee of 1600. Moreover, Rome's urban transformation under Sixtus V refocused attention from the ruined glories of the imperial past to the grandiose design of new thoroughfares, piazzas, fountains, and edifices. The newly mastered engineering feat …

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …

Liability Design For Autonomous Vehicles And Human-Driven Vehicles: A Hierarchical Game-Theoretic Approach, Xuan Di, Xu Chen, Eric L. Talley

Faculty Scholarship

Autonomous vehicles (AVs) are inevitably entering our lives with potential benefits for improved traffic safety, mobility, and accessibility. However, AVs’ benefits also introduce a serious potential challenge, in the form of complex interactions with human-driven vehicles (HVs). The emergence of AVs introduces uncertainty in the behavior of human actors and in the impact of the AV manufacturer on autonomous driving design. This paper thus aims to investigate how AVs affect road safety and to design socially optimal liability rules in comparative negligence for AVs and human drivers. A unified game is developed, including a Nash game between human drivers, a …

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William H. Simon

Faculty Scholarship

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial …

Embedding Content Or Interring Copyright: Does The Internet Need The "Server Rule"?, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

The “server rule” holds that online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work. As a result, the rule shields a vast array of online activities from claims of direct copyright infringement, effectively exempting those activities from the reach of the Copyright Act. While the server rule has enjoyed relatively consistent adherence since its adoption in 2007, some courts have recently suggested a departure from that precedent, noting the doctrinal and statutory inconsistencies underlying …

Authors And Machines, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Machines, by providing the means of mass production of works of authorship, engendered copyright law. Throughout history, the emergence of new technologies tested the concept of authorship, and courts in response endeavored to clarify copyright’s foundational principles. Today, developments in computer science have created a new form of machine, the “artificially intelligent” (AI) system apparently endowed with “computational creativity.” AI systems introduce challenging variations on the perennial question of what makes one an “author” in copyright law: Is the creator of a generative program automatically the author of the works her process begets, even if she cannot anticipate the contents …

Janus's Two Faces, Kate Andrias

Faculty Scholarship

In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.Stunning in its disregard of principles of stare decisis, Janus overruled the forty-year-old precedent Abood v Detroit Board of Education.The Janus decision marks the end of the post – New Deal compromise with respect to public sector unions and the First Amendment. Looking to the future, Janus lays the groundwork for further attack on …

Environmental Law In New York, Michael B. Gerrard

Faculty Scholarship

September 2019 issue of Environmental Law in New York.

How Lawyers Can Help Save The Planet, Michael B. Gerrard, John C. Dernbach

Faculty Scholarship

Scientific reports, coming in a steady stream, are highlighting the urgency of reducing greenhouse gas emissions so as to avoid the worst impacts of climate change. Already, hurricanes, coastal and inland flooding, wildfires, heat waves and other extreme weather events are causing severe economic damage and loss of life, and their increasing severity has been attributed to climate change. The decades to come promise to be even worse.

Explanation < Justification: Gdpr And The Perils Of Privacy, Talia B. Gillis, Josh Simons

Faculty Scholarship

The European Union’s General Data Protection Regulation (GDPR) is the most comprehensive legislation yet enacted to govern algorithmic decision-making. Its reception has been dominated by a debate about whether it contains an individual right to an explanation of algorithmic decision-making. We argue that this debate is misguided in both the concepts it invokes and in its broader vision of accountability in modern democracies. It is justification that should guide approaches to governing algorithmic decision-making, not simply explanation. The form of justification – who is justifying what to whom – should determine the appropriate form of explanation. This suggests a sharper …

Broken Experimentation, Sham Evidence-Based Policy, Kristen Underhill

Faculty Scholarship

Evidence-based policy is gaining attention, and legislation and agency regulation have been no exception to calls for greater uptake of research evidence. Indeed, current interest in “moneyball for government” is part of a long history of efforts to promote research-based decisions in government, from the U.S. Census to cost-benefit analysis. But although evidence-based policy-making (EBPM) is often both feasible and desirable, there are reasons to be skeptical of the capacity of EBPM in governmental decision-making. EBPM is itself bounded by limits on rationality, the capacity of science, the objectivity of science, and the authority we wish to give technocrats. Where …

Police Contact And The Legal Socialization Of Urban Teens, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Contemporary American policing has routinized involuntary police contacts with young people through frequent, sometimes intrusive investigative stops. Personal experience with the police has the potential to corrode adolescents’ relationships with law and skew law-related behaviors. We use the Fragile Families and Child Wellbeing Study to estimate how adolescents’ experiences with the police shape their legal socialization. We find that both personal and vicarious police contact are associated with increased legal cynicism. Associations are present across racial groups and are not explained by teens’ behaviors, school settings, or family backgrounds. Legal cynicism is amplified in teens reporting intrusive contact but diminished …

Sovereignty And Complex Interdependence: Some Surprising Indications Of Their Compatibility, Charles F. Sabel

Faculty Scholarship

Even as democratic sovereignty and globalization are increasingly seen as incompatible in theory, this chapter argues that, in some important realms, they are proving compatible in practice. As tariffs have fallen to negligible levels, trade agreements among rich countries have come to focus on reconciling regulatory differences. In many sectors, novel forms of cooperation have emerged that allow trade partners deliberately to investigate and learn from one another’s practices, eventually recognizing the equivalence of regimes that are not strictly identical — and in the process extending domestic political oversight to relations among states while often heightening domestic accountability. The emergent …

Multivariate Multiple Regression Models Of Poly(Ethylene-Terephthalate) Film Degradation Under Outdoor And Multi-Stressor Accelerated Weathering Exposures, Devin A. Gordon, Wei-Heng Huang, Roger H. French, Laura S. Bruckman

Faculty Scholarship

Developing materials for use in photovoltaic (PV) systems requires knowledge of their performance over the warranted lifetime of the PV system. Poly(ethylene-terephthalate) (PET) is a critical component of PV module backsheets due to its dielectric properties and low cost. However, PET is susceptible to environmental stressors and degrades over time. Changes in the physical properties of nine PET grades were modeled after outdoor and accelerated weathering exposures to characterize the degradation process of PET and assess the influence of stabilizing additives and weathering factors. Multivariate multiple regression (MMR) models were developed to quantify changes in color, gloss, and haze of …