Digital Commons Network^™

Major Questions And An Emergency Question Doctrine: The Biden Student Debt Case Study Of Pretextual Abuse Of Emergency Powers, Jed Handelsman Shugerman

Faculty Scholarship

The major question doctrine tries to address one problem, the Imperial Executive, by escalating another, the Imperial Judiciary. This article proposes a solution, with the Biden Student Debt Waiver as a case study: An “emergency question” doctrine.

This emergency questions doctrine would apply when the executive relies on a statutory emergency clause or invokes an emergency in its application of a statutory provision. As a matter of statutory interpretation, the emergency question doctrine would follow the two most important steps of the major question approach: 1) relying on purpose and context to clarify and limit the scope of open-ended emergency …

The Disembodied First Amendment, Nathan Cortez, William M. Sage

Faculty Scholarship

First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - …

Selective Infrared Neural Inhibition Can Be Reproduced By Resistive Heating, Junqi Zhuo, Chloe E. Weidrick, Yehe Liu, Michael A. Moffitt, Hillel J. Chiel, Michael W. Jenkins

Faculty Scholarship

Objectives: Small-diameter afferent axons carry various sensory signals that are critical for vital physiological conditions but sometimes contribute to pathologies. Infrared (IR) neural inhibition (INI) can induce selective heat block of small-diameter axons, which holds potential for translational applications such as pain management. Previous research suggested that IR–heating-induced acceleration of voltage-gated potassium channel kinetics is the mechanism for INI. Therefore, we hypothesized that other heating methods, such as resistive heating (RH) in a cuff, could reproduce the selective inhibition observed in INI. Materials and Methods: We conducted ex vivo nerve-heating experiments on pleural-abdominal connective nerves of Aplysia californica using both …

Sickle Red Blood Cell-Derived Extracellular Vesicles Activate Endothelial Cells And Enhance Sickle Red Cell Adhesion Mediated By Von Willebrand Factor, Ran An, Yuncheng Man, Kevin Cheng, Tianyi Zhang, Fang Wang, Erdem Kucukal, William J. Wulftange, Utku Goreke, Allison Bode, Lalitha V. Nayak, Jane A. Little, Umut A. Gurkan

Faculty Scholarship

Endothelial activation and sickle red blood cell (RBC) adhesion are central to the pathogenesis of sickle cell disease (SCD). Quantitatively, RBC-derived extracellular vesicles (REVs) are more abundant from SS RBCs compared with healthy RBCs (AA RBCs). Sickle RBC-derived REVs (SS REVs) are known to promote endothelial cell (EC) activation through cell signalling and transcriptional regulation at longer terms. However, the SS REV-mediated short-term non-transcriptional response of EC is unclear. Here, we examined the impact of SS REVs on acute microvascular EC activation and RBC adhesion at 2 h. Compared with AA REVs, SS REVs promoted human pulmonary microvascular ECs (HPMEC) …

Jd-Next: A Valid And Reliable Tool To Predict Diverse Students’ Success In Law School, Jessica Findley, Adriana Cimetta, Heidi Burross, Katherine Cheng, Matt Charles, Cayley Balser, Ran Li, Christopher Robertson

Faculty Scholarship

Admissions tests have increasingly come under attack by those seeking to broaden access and reduce disparities in higher education. Meanwhile, in other sectors there is a movement towards “work-sample” or “proximal” testing. Especially for underrepresented students, the goal is to measure not just the accumulated knowledge and skills that they would bring to a new academic program, but also their ability to grow and learn through the program. The JD-Next is a fully online, noncredit, 7- to 10-week course to train potential JD students in case reading and analysis skills, prior to their first year of law school. This study …

A Lack Of Uniformity, Compounded, In Immigration Law, Jill E. Family

Faculty Scholarship

No abstract provided.

Judicial Remedies For Climate Disruption, John C. Dernbach, Patrick A. Parenteau

Faculty Scholarship

No abstract provided.

The Lawyer's Duty Of Competence In A Climate-Imperiled World, John C. Dernbach, Irma Russell, Matthew Bogoshian

Faculty Scholarship

No abstract provided.

Bob Lutz - Expert, Mentor, And Friend, Diane Penneys Edelman

Faculty Scholarship

No abstract provided.

Climate Chauvinism: Rethinking Loss & Damage, Nadia B. Ahmad, Victoria Beatty

Faculty Scholarship

No abstract provided.

Amicus Brief In Sec V. Jarkesy On Original Public Meaning Of Article Ii & Presidential Removal, Jed Handelsman Shugerman

Faculty Scholarship

In holding that the SEC’s administrative law judges’ protections against removal were unconstitutional, the Fifth Circuit extended Free Enterprise Fund v. PCAOB, 561 U.S. 447 (2010), and Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020). Those precedents were based on an incomplete historical record. Subsequent historical research shows that the Founding generation never understood Article II to grant the President an indefeasible removal power.

To be sure, this evidence does not suggest Congress should have unlimited power to protect any executive office or delegate removal to itself. Rather, the bottom line is that the evidence of original public …

A Concrete Proposal For Data Loyalty, Neil Richards, Woodrow Hartzog, Jordan Francis

Faculty Scholarship

Congress and state legislators are finally experimenting with new privacy frameworks, rights, and duties to move past the thoroughly critiqued “notice and choice” model for data privacy. While many new privacy proposals seek a more fortified version of the fair information practices, some legislators have placed a duty of data loyalty at the heart of their proposed privacy bills. This is important because a duty of data loyalty has the potential to anchor American privacy law in a way analogous to how the European Union approach is grounded in fundamental rights of privacy and data protection.

Unfortunately, there remains some …

The Case Against Regional Transmission Monopolies, Kristen Van De Biezendos

Faculty Scholarship

Over the next decade, the United States will need to build significant regional transmission infrastructure to achieve the country’s goal of net-zero power by 2035. However, there is a significant barrier: the transmission system is almost entirely owned by private monopolies. As a result, the grid has grown not to serve the public interest but in accordance with the economic priorities of these monopolies, which are not incentivized to innovate, find efficiencies, or lower costs. Past attempts to encourage competitive bidding for regional transmission projects have been stymied by laws intended to protect the monopolies, including the right of first …

The Unnatural Disaster Of Insurance, Underinsurance, And Natural Disasters, Kenneth S. Klein

Faculty Scholarship

This article presents a novel data set describing the frequency of materially inadequate homeowner insurance in the event of a total loss. For decades, after a natural disaster, large percentages of homeowners who have lost their homes report suffering a second devastating loss — that, entirely to their surprise, they are vastly underinsured. These reports provocatively suggest that a large majority of all insured homes in the United States — not just homes destroyed by a natural disaster—might be profoundly, unknowingly, and unintentionally underinsured. Insurance companies reject this possibility. Insurers posit that underinsurance is rare, that other than after natural …

Synthesizing Energy Transitions, Nadia Ahmad, Uma Outka, Danielle Stokes, Hannah Jacobs Wiseman

Faculty Scholarship

This Article assesses the growing and cross-disciplinary literature on energy transitions to explore how it can guide law and policy reforms for the energy sector. The modern conception of energy transition centers primarily on clean energy—a shift away from fossil energy dependence. It also, however, incorporates equity as a core principle, as an increasing emphasis on energy justice and just transition seeks to create guiding norms for the energy sector’s current state of change. The concept of energy transition is critical for describing and giving meaning to a fundamental societal shift at the local, regional, national, and global scales, aligned …

Negotiation Theories Engage Hybrid Warfare, Sharon Press, Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

The concept of hybrid warfare has arisen recently to describe the efforts, short of outright war, used by nations to disrupt and destabilize each other. This Article reviews available negotiation theories, concepts and skills to determine whether they can help governmental actors and business organizations targeted by hybrid warfare respond effectively. In other words, can negotiation theories, concepts and skills be used to engage effectively in “hybrid conflict management”? The Article urges that international diplomacy and multiparty negotiation theories and skills, as well as the more recent scholarship that has developed regarding hostage negotiation and “wicked problems,” are likely to …

Scientific Guidelines For Evaluating The Validity Of Forensic Feature-Comparison Methods, David L. Faigman, Nicholas Scurich, Thomas D. Albright

Faculty Scholarship

When it comes to questions of fact in a legal context— particularly questions about measurement, association, and causality—courts should employ ordinary standards of applied science. Applied sciences generally develop along a path that proceeds from a basic scientific discovery about some natural process to the formation of a theory of how the process works and what causes it to fail, to the development of an invention intended to assess, repair, or improve the process, to the specification of predictions of the instrument’s actions and, finally, empirical validation to determine that the instrument achieves the intended effect. These elements are salient …

Twenty Years Of Us Digital Copyright: Adapting From Analogue, Jane C. Ginsburg

Faculty Scholarship

This review of the period 2001–21 in US copyright law will summarize digital-dominated developments concerning the scope of exclusive rights and exceptions and liability regimes. It will address several developments, all related to the impact of the internet on the exploitation of works of authorship. Digital storage and communications have called into question the scope of the exclusive rights set out in the US Copyright Act, and they have considerably expanded the reach of the fair use exemption. They have strained statutory and common law regimes of secondary liability and prompted the development of a ‘volition’ predicate to primary liability. …

Accounting For The Employee-Employer Relationship In Antitrust Analysis, Justin Mccrary, Bryan Ricchetti

Faculty Scholarship

Recent years have seen increased regulatory scrutiny of and private litigant claims regarding potential monopsony power in labor markets. In this paper, we discuss a defining feature of that analysis — a feature that differentiates it from antitrust analysis of product-market restraints. That feature is the employee-employer relationship. Employer-employee relationships, and investments that workers and firms make in such relationships, are central to analysis of antitrust issues in labor markets.

Statehood And Sea-Level Rise: Scenarios And Options, Michael B. Gerrard

Faculty Scholarship

Sea-level rise may make some low-lying nations uninhabitable by the end of this century, if not before. If a country is under water, is it still a state? Does it still have a seat in the United Nations? What is the citizenship, if any, of its displaced people?

These questions take on increasing urgency as the world continues doing too little to avert catastrophic climate change. Many climate policy analyses agree the goal should be to keep global average temperatures within 1.5°C (2.7°F) above pre-industrial temperatures. That is the level that the small island states have demanded, as a matter …

Waste And Chemical Management In A 4°C World, Michael B. Gerrard

Faculty Scholarship

Many chemicals and hazardous substances are kept in places that can withstand ordinary rain, but not severe storms or floods. If these events occur and the chemicals are released, people and the environment may be endangered. This Article discusses the hazards posed to chemical and waste disposal facilities by extreme weather events that would be worsened as a result of climate change, and how U.S. laws do (or do not) deal with these hazards; and considers how the law would need to change to cope with what would happen to these facilities in a potentially 4°C world. It is adapted …

Passive Exit, Joshua Mitts

Faculty Scholarship

In recent years, securities lending — making shares available for borrowing by short sellers who “sell first and buy later” — has been an object of increasing regulatory attention. Securities lending is linked to the growth of passive investing because large, buy-and-hold passive investors are among the largest lenders of portfolio securities. But relatively little is understood about the relationship between securities lending and passive investing. In this Article, I show how securities lending allows passive investors to generate revenue from a decline in the value of their investment portfolios in addition to borrowing fees determined by demand from the …

Epic Fail: Harkenrider V. Hochul And New York's 2022 Misadventure In "Independent" Redistricting, Richard Briffault

Faculty Scholarship

In 2014, following passage in two successive legislatures, New York voters ratified amendments to the state constitution to change both the process and substantive rules governing the decennial redistricting of the state’s legislature and congressional delegation. The constitution now includes multiple new substantive requirements for districting plans, including a prohibition on the “draw[ing of] [districts] to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.” It also directs the creation of an “Independent Redistricting Commission” (“IRC”) to draw up, for submission to the legislature, maps that, following an extensive process of …

Comparing Agency Costs In Contract Production: Private Equity M&A Versus Corporate And Sovereign Bonds, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

Different areas of transactional practice, such as M&A or high-yield bonds and sovereign bonds, vary in terms of the degree to which they are afflicted by agency problems. In some areas, clients are actively involved in deal making, and in others they are not present until well after the deal is done. If vulnerability to agency problems differs, and these agency problems impact the quality of contract production, one would expect those differences to appear when comparing contract production across practice areas. This Article compares one feature of contract production — the problems of encrusted and sticky boiler-plate — across …

Ignorance Of The Rules Of Omission: An Essay On Privilege Law, Rebecca Wexler

Faculty Scholarship

Evidentiary privileges--that is, rules that empower people to withhold evidence from legal proceedings-are one thread in a mesh of secrecy powers that control the flow of information in society. They are part and parcel of the laws, rules, norms, and practicalities that determine who can conceal and who can compel, that allocate power based on access to knowledge and its opposite. Despite the significance of privileges and of the harms that they produce, our understanding of this body of law has profound gaps.5 The questions posed above turn out to be more challenging than they might at first appear. Notwithstanding …

Energy Insecurity Mitigation: The Low Income Home Energy Assistance Program And Other Low-Income Relief Programs In The Us, Andrea Nishi, Diana Hernández, Michael B. Gerrard

Faculty Scholarship

Energy insecurity, defined as the “inability to meet basic household energy needs,” can be both a chronic and an acute problem. Chronic energy insecurity manifests as an inability to access or afford adequate supplies of energy, while acute energy insecurity arises when infrastructural, maintenance, environmental, or other external sources disrupt or impede access to energy. A substantial number of individuals and families across the United States experience energy insecurity, which can lead to a variety of adverse consequences including residential instability and poor health outcomes.

Law As Persuasion, Bert I. Huang

Faculty Scholarship

When does the law persuade us about what is right or wrong – and when does it not? On topics ranging from racial equality to abortion to same-sex marriage, historians have debated and puzzled over the law’s persuasive force on our collective moral intuitions. Meanwhile, other scholars have sought out individual-level insights into the psychology of law’s persuasion, under the microscope of controlled experiments.

This chapter presents evidence of the law’s influence on our moral intuitions in a survey experiment based on a classic dilemma known as the “trolley problem,” in which someone must make a choice about whether to …

Election Obstruction, Jason Marisam

Faculty Scholarship

In 2020 and 2022, multiple Republican county canvassers refused to perform their ministerial duty to approve election returns, obstructing the official certification of the results. The canvassers latched onto false claims of fraud and other conspiracies advanced by election deniers. They eventually relented because of court orders and public pressure. The elections produced official winners, and crisis was averted. But, as long as election denialism rots our political discourse, election obstruction by canvassers will be a persistent risk with significant dangers for our democracy. This Essay provides a brief history of election obstruction by canvassers, examines the modern link between …

The Road To Autonomy, Nicole Mcconlogue

Faculty Scholarship

Scholars, activists, and advocates have long identified the “transportation gap” as a significant factor contributing to race- and class-based economic and other disparities. Carlessness correlates closely with race and poverty; meanwhile, widespread disinvestment in public transit results in low-income Black and Brown people suffering a disproportionate lack of access to opportunity and choice in almost every conceivable area of life.

State and local governments most often propose one of three solutions to correct the transportation gap: 1) renewing their investment in public transit; 2) increasing access to shared transit; and 3) making adaptations to the built environment. This Article demonstrates …

Race, Gatekeeping, Magical Words, And The Rules Of Evidence, I. Bennett Capers

Faculty Scholarship

Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence—what is deemed relevant, what is deemed trustworthy—to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.

One area that has escaped racialized scrutiny—at least of the type I am interested in—is that of expert testimony. In this brief Essay written for the Vanderbilt Law Review Symposium, Reimagining the Rules of Evidence at …