Digital Commons Network^™

Water And The Western City, Dave Owen

Faculty Scholarship

No abstract provided.

Border Decriminalization As A State Project: Lessons From Marijuana And Assisted Suicide Legalization Across The United States, Victor C. Romero

Faculty Scholarship

My prior work argued for the decriminalization of border crossings without proof of specific intent to violate another law (like drug trafficking), which is even less likely to happen now than it was when the piece was published, given the current presidential administration’s zealous deportation strategy and Congress’s seeming acquiescence. As such, I advocate for a second-best solution involving federal-state cooperative agreements wherein border states abutting both Mexico and Canada are given the option by the federal government to pass local legislation decriminalizing border crossings into their states as their communities desire. To the extent that the current presidential administration …

Replacing This Old House: Certifying And Regulating New Legal Services Providers, Bruce A. Green, M. Ellen Murphy

Faculty Scholarship

This Article comprehensively examines the decisions that state courts must make, and have made to date, when they certify and regulate new categories of legal services providers: those individuals other than lawyers who are authorized to provide discrete legal services that the laws governing the unauthorized practice of law (UPL) generally reserve to lawyers.

In certifying new categories of legal services providers, courts must make an array of interrelated decisions. These include decisions about the rules for educational and testing requirements, the scope of services that legal services providers may offer, the conditions under which they may provide services, and …

Stories, Statistics, And The Regulation Of Alternative Data, Aniket Kesari, Mark Verstraete

Faculty Scholarship

Financial technology has long relied on data like an applicant’s current indebtedness to make decisions about who gets access to new credit, but AI is now enabling credit determinations based on some unusual inputs. This “alternative data”—or data that is not intuitively connected to creditworthiness—includes information like a consumer’s online shopping habits, whether they paid their rent and utility bills, and even how many friends they have on social media. The use of this kind of data has exciting potential to expand access to credit but exemplifies a well-known feature of machine learning: It works by finding nonintuitive relationships in …

Abolitionism, Artificial Intelligence, And Non-Reformist Reform, Youngjae Lee

Faculty Scholarship

Prison abolitionism has gained significant prominence in criminal law scholarship, while artificial intelligence (AI) has emerged as a transformative force across society. Two schools of thought have arisen regarding their intersection. Some scholars contend abolitionists should welcome AI technologies to reduce the carceral state’s reach. Critics view these tools skeptically, arguing that they lead to biased surveillance and incarceration practices. Using this debate as an example, this article seeks to illuminate the distinction between reformist and non-reformist reforms. The article argues that abolitionists’ criticism of reformists as agents of oppression risks alienating potential allies and discouraging progressive interventions in pivotal, …

Content-Neutral Restrictions Revisited, Abner S. Greene

Faculty Scholarship

Whether a law affecting free speech does so in a content-based or content-neutral way is usually the first step in analyzing the law’s constitutionality.  But the Supreme Court has not had an easy time sorting statutes as content based or content neutral, and it has similarly struggled in sorting and explaining the difference between content-neutral laws that incidentally affect expression (O’Brien laws) and content-neutral laws that regulate the time, place, or manner of expression (TPM laws).  Scholarship on content-neutral restrictions has nibbled around the edges of these difficulties but has yet to comprehensively analyze the doctrine.  This Article provides a …

Gig Work At What Cost? Exploring Privacy Risks Of Gig Work Platform Participation In The U.S., Amogh Pradeep, Johanna Gunawan, Álvaro Feal, Woodrow Hartzog, David Choffnes

Faculty Scholarship

In recent years, "gig work" platforms have gained popularity as a way for individuals to earn money; as of 2021, 16% of Americans have at some point earned money from such platforms. Despite their popularity and their history of unfair data collection practices and worker safety, little is known about the data collected from workers (and users) by gig platforms and about the privacy dark pattern designs present in their apps.

This paper presents an empirical measurement of 16 gig work platforms' data practices in the U.S. We analyze what data is collected by these platforms, and how it is …

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Faculty Scholarship

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

How Theories Of Art Can Inform Debates About Ai, Jessica Silbey

Faculty Scholarship

Debates about artificial intelligence (AI) tend to swing between the optimistic and the apocalyptic. I propose a less binary approach that frames conversations about AI from the perspectives of theories of art and creativity. Whether we agree that AI is artificial or intelligent, whether it should be constrained or liberated, we cannot deny its influence on literary, artistic, and innovative production. AI may be described as simply a new tool to produce art and science, like the camera or the microscope, or it may transform art and science, the way the internet transformed global communication. Either way, these debates about …

Foundations For Platform Liability, Kathryn E. Spier, Rory Van Loo

Faculty Scholarship

From spreading misinformation to selling deadly products, bad actors use technology platforms to their advantage while causing devastating harms to privacy, health, and even democracy. Despite their central role in enabling these bad actors, the platforms almost entirely escape liability. This legal immunity is purportedly grounded in economics. From the beginning, courts and legislatures feared that liability would chill innovation, growth, and user access. They also speculated that platforms have sufficient market incentives to voluntarily police bad actors, making liability unnecessary.

Whereas many scholars have argued that platform immunity is blind to justice, this Article shows that it is also …

What We Should Know About The Reliability Of Empirical Legal Studies, Kathryn Zeiler

Faculty Scholarship

The findings of replication studies conducted in the early 2010s led many to declare that science was in the midst of a “replication crisis.” Since then, a growing number of reforms have been proposed and tested. The field of empirical legal studies seems behind other fields such as psychology, economics, political science, medicine, biology, and others that have taken significant steps toward uncovering the general reliability of the field’s empirical work, investigating the causes of observed unreliability, and instituting and testing the effects of various reforms. The purpose of this Article is to summarize what we know about the reliability …

Federal Open Data As An Artificial Intelligence Resource, Erik Stallman, Aniket Kesari

Faculty Scholarship

In the 2010s, the open government data movement—a confluence of government transparency and open source advocacy—succeeded in making most federal data disclosed by default and free of restriction on downstream use. However, keen-eyed observers noted a “new ambiguity” in open government data policies.

Bailing Out Biometrics, Chinmayi Sharma, Elijah Gordon

Faculty Scholarship

In 2023, hackers breached 23andMe and extracted the biometric and genealogical data of nearly seven million people. By 2025, that data-originally offered up in the spirit of medical discovery and consumer empowerment-was being auctioned off in bankruptcy court as a corporate asset. The breach exposed more than technical lapses or governance failures. It revealed a structural gap in how the law understands, regulates, and protects biometric identity. Biometric data is intimate, immutable, and implicates human dignity and autonomy. And yet, the legal frameworks most often tasked with protecting it-tort, contract, and even modern privacy statutes-have consistently failed to impose meaningful …

Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Faculty Scholarship

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

The International Risk Governance Council: Reflections On A 20-Year Experiment In Support Of Improved Risk Governance, M. Granger Morgan, Marie-Valentine Florin, Igor Linkov, Kenneth A. Oye, Arthur C. Petersen, Ortwin Renn, Jonathan B. Wiener, Lan Xue

Faculty Scholarship

The International Risk Governance Council (IRGC) was a nonprofit foundation, based first as an independent, freestanding Swiss foundation in Geneva from 2003 to 2012, and then affiliated with École Polytechnique Fédérale de Lausanne in Lausanne from 2012 to 2023. IRGC's mission was to identify and improve the governance of emerging and systemic risks that have, or could have, impacts on human and environmental health, the economy and society, and overall sustainability. In this paper, we recount IRGC's history, describe its many reports, workshops, and conference activities (including tables referencing the many published products), and provide six brief case histories of …

The Hidden Cost Of Venture Capital, Emilie Aguirre

Faculty Scholarship

Founders, employees, consumers, and even funders increasingly expect businesses to pursue social goals alongside financial performance. Yet even the most committed firms have found it difficult to maintain social performance over time. Scholars in economics, management, and law have put forth several explanations for this “mission drift,” including inappropriate governance, poor management, lack of genuine commitment, and threat of takeovers. Puzzlingly, research to date primarily focuses on later-stage firms, even though the events and decisions that take place in a firm’s early stages can critically impact retention of its social performance.

Drawing from over five years of qualitative field research …

Affording Oral Tradition Evidence Due Weight Before The International Court Of Justice, Terrence Neal

Faculty Scholarship

Oral traditions are irreplaceable sources of historical information, particularly with regard to Indigenous Peoples’ histories and cultures. However, when states have submitted oral traditions as evidence of historical practices, events, and circumstances in cases before the International Court of Justice (“Court”), the Court has been reluctant to afford them significant weight. This Article, which is the first detailed study on the Court’s treatment of oral traditions, examines whether the Court is failing to provide them due or appropriate weight. Based on historical, archaeological, and anthropological research, it establishes that oral traditions can be as reliable as written documents for reconstructing …

Artificial Intelligence And Procedural Due Process, Brandon L. Garrett

Faculty Scholarship

Artificial intelligence (AI) violates procedural due process rights if the government uses it to deprive people of life, liberty, and property without adequate notice or an opportunity to be heard. A wide range of government agencies deploy AI systems, including in courts, law enforcement, public benefits administration, and national security. If the government refuses to disclose the reasons why it denied a person bail, public benefits, or immigration status, serious due process concerns arise. If the government delegates such tasks to an AI system, the due process analysis does not change. One asks whether a person received adequate notice and …

Measuring The Value Of Trademark Distinctiveness: Evidence From The Market For Bordeaux Wine, Christopher Buccafusco, Jonathan S. Masur, Ryan Whalen

Faculty Scholarship

The market value of distinctive trademarks is a fundamental assumption of both trademark law and marketing theory. However, there is little empirical evidence underlying this assumption. We examine the relationship between brand dissimilarity and market prices in the context of the Bordeaux wine market. Using a unique dataset covering thousands of wines and their associated prices and professional ratings, we find that brand distinctiveness is related to higher wine prices. We further show that this relationship persists across the wine quality spectrum, with both lower quality and higher quality wines benefiting from dissimilar marks. Finally, we show that while there …

The Social Cost Of Plastic To The United States, Nancy Lauer, Tibor Vegh, Michelle Nowlin, John Virdin, Jason Somarelli

Faculty Scholarship

No abstract provided.

The Solicitor General, Consistency, And Credibility, Margaret H. Lemos, Deborah A. Widiss

Faculty Scholarship

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on …

Technologies Of Violence: Law, Markets, And Innovation For Gun Safety, Joseph Blocher, Christopher Buccafusco

Faculty Scholarship

Violence in the United States is distinctive in many ways, perhaps none more visceral and fundamental than the technologies with which it is practiced. American violence disproportionately involves guns, and because guns are such an effective tool of violence, confrontations involving them are disproportionately deadly. Decades of research confirm this "instrumentality effect, " and it is reflected in the broad, bipartisan agreement that the nation has a gun violence problem. The deep disagreement, of course, remains about how to address it, with most of the debate focused on regulating who can carry which guns, where, and how.

But fully understanding, …

Quantifying Riverine Plastic Pollution Using Participatory Science And Trash Traps, Nancy Lauer, Madison Haley, Emily Sutton, Rob Clark, Hannah Woodburn, Emma Crider, Kaity D’Angelo, Cecilia Kammire, Brandon Jones, David Caldwell, Taylor Register, Emily Fritz, Samantha Krop, Riley Lewis, Lisa Rider, Edgar Miller, Stephanie Stephens, Louisa Pitney, Emma Kaufman, Emma Stewart, Jason A. Somarelli, Michelle B. Nowlin

Faculty Scholarship

Local governments and environmental nonprofits are increasingly using trash traps to intercept and remove escaped plastics and other litter from stormwater systems and surface waters. In this paper, we demonstrate the utility of these devices for collecting data that provide insights into riverine litter sources and solutions. Between 2021 and 2024, seven Waterkeeper organizations in North Carolina maintained 21 in‐stream trash traps in watersheds across the state and trained staff and volunteers to record the types and quantities of litter during cleanouts. Over this period, Waterkeeper organizations and their volunteers documented 150,750 pieces of litter captured by traps. Captured litter …

Judge–Scholar Collaboration And The Second Amendment, Andrew Willinger, Eric Ruben

Faculty Scholarship

Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the classic critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.

We raise several explanations for the distinctive scholarly role in …

Multi-Risk Governance Of Solar Radiation Modification, Jonathan B. Wiener, Tyler Felgenhauer, Mark E. Borsuk

Faculty Scholarship

Solar radiation modification (SRM) presents important challenges to risk regulation and governance, arising from the array of multiple risks that SRM may influence. SRM would not simply reverse climate change, but could pose further ancillary impacts, depending on the method of SRM, such as stratospheric aerosol injection (SAI), marine cloud brightening (MCB), or a space-based planetary sunshade system (PSS). We identify multiple risks that SRM may influence, both biophysical and sociopolitical, to be compared to the multiple risks that may be affected by greenhouse gas (GHG) mitigation and climate adaptation. This multi-risk framework helps analysts and decision makers identify, evaluate, …

How Ai Reinforces Caste: Creating And Amplifying Systematic Inequality, Catherine Powell

Faculty Scholarship

In arguing that artificial intelligence (“AI”) creates, reinscribes, and amplifies caste, this Article asserts that algorithmic discrimination is not just a bug, it is an essential feature of the system that powers the digital economy. Because this economy traffics in our information and is monetized through targeted advertising, it depends on knowing our race, gender, and other protected characteristics (i.e., our caste). Given that the digital economy is inherently an information economy, it is driven by population-wide demographics and predictions, which algorithms can process and commodify at scale. As such, digital surveillance can lead not only to individual harm, but …

Navigating The Growing Prospects And Growing Pains Of Managed Aquifer Recharge, Dave Owen, Helen Dahlke, Andrew Fisher, Ellen Bruno, Michael Kiparsky

Faculty Scholarship

Increasing water demands and declining groundwater levels have led to rising interest in managed aquifer recharge. That interest is growing in the United States—the focus of this article—and elsewhere. Increasing interest makes sense; managed aquifer recharge can reduce water-supply challenges and provide environmental benefits, sometimes with lower costs than alternative water-management approaches. But managed aquifer recharge also faces growing pains, which will make it difficult for projects to scale up and may limit the benefits provided by those projects that do go forward. Some of the problems arise from the challenges of finding physically suitable locations for managed aquifer recharge; …

Incremental Innovation, George Horvath

Faculty Scholarship

Transformative innovations—the ones that use new technologies to disrupt the world—command our attention. But most new products are the result of a more mundane process of incremental iterative innovation, evolving through a long series of small modifications of existing technologies. Although both kinds of innovation can result in improved safety and utility, both can also create new dangers. We tend to be more aware of this in transformative innovations (as current worries over artificial intelligence show); by contrast, dangers created by incremental iterative innovation often go unrecognized, because the process itself is easy to overlook. Policymakers and regulators need to …

Governance & Guardrails: Emerging Technologies And Low-Wage Workers, Seema N. Patel

Faculty Scholarship

This Article examines an important, but undertheorized phenomenon at the intersection of technology and work: the rapidly increasing presence of artificial intelligence systems into low wage workplaces—and decidedly into the lives of low-wage workers themselves—and the resulting broader implications on work law and democracy. For decades, technology has enabled employers to increasingly exert control over workers; but for all their promise, emerging technologies like artificial intelligence also extend a new and potentially harmful level of concern for low-wage workers in particular. From algorithmic software that unilaterally determines workers’ schedules “on demand” and without notice; to constant and often surreptitious surveillance …

Navigating Copyright In Ai-Enhanced Game Design: Legal Challenges In Multimodal And Dynamic Content Creation, Andrew Begemann, James Hutson

Faculty Scholarship

The integration of artificial intelligence (AI) in video game design has transformed traditional workflows, allowing for the generation of text, images, music, videos, and code at unprecedented scales. However, this advancement presents complex challenges for copyright law, traditionally rooted in human originality and authorship. This article examines recent case law that underscores the evolving legal landscape, exploring landmark cases such as Zarya of the Dawn and Andersen v. Stability AI. These cases reveal the tensions between AI-generated outputs and copyright eligibility, especially in the dynamic, multimodal compositions inherent to video games. The review analyzes how various AI tools are employed …