Digital Commons Network^™

The Ultimate Green Playbook For Condos And Coops, Robert B. Sobelman

Faculty Scholarship

No abstract provided.

To Limit Air Pollution's Risks: A Law/Science Success Story, Jamison E. Colburn

Faculty Scholarship

This is the first major study of the National Ambient Air Quality Standards (NAAQS) in a generation. This study focuses on a unique co-evolution of science and law over more than a half-century of development. Our NAAQSs can be found everywhere from your phone’s air quality index to the trends of cardiovascular and respiratory disease in America. Yet no one has studied the ways in which law and the science of air pollution have reciprocally determined each other through them. Through a study of 26 reviews across seven presidencies and 21 reported opinions adjudicating 106 petitions challenging those reviews/revisions, this …

The Microsoft Litigation’S Lessons For United States V. Google, John E. Lopatka, William H. Page

Faculty Scholarship

The United States Department of Justice (“DOJ”) and three overlapping groups of states have filed federal antitrust cases alleging Google has monopolized internet search, search advertising, internet advertising technologies, and app distribution on Android phones. In this Article, we focus on the DOJ’s claims that Google has used contracts with tech firms that distribute Google’s search services in order to exclude rival search providers and thus to monopolize the markets for search and search advertising—the two sides of Google’s search platform. The primary mechanisms of exclusion, according to the DOJ, are the many contracts Google has used to secure its …

The Uncitral Model Law At The Us State Level, George A. Bermann

Faculty Scholarship

The arbitration law of the United States remains, regrettably, the Federal Arbitration Act (FAA), enacted in 1925 and essentially unchanged. Despite its age, it has been significantly amended only once, in order to transpose into law the New York and Panama Conventions. Otherwise, it reads just as it did when enacted almost a century ago. Given its age and the remarkable developments in the law of arbitration over past decades, the FAA unsurprisingly fails to address a very large number of issues that have arisen in arbitral proceedings and judicial decisions on arbitration in the many intervening years. Even the …

Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee

Faculty Scholarship

Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …

Black Boarding Academies As A Prudential Reparation: Finis Origine Pendet, Roy L. Brooks

Faculty Scholarship

With billions of dollars pledged and trillions of dollars demanded to redress slavery and Jim Crow (“Black Reparations”) the question of how best to use these funds has moved into the forefront of the ongoing campaign for racial justice in our post-civil rights society. Reparatory strategies typically target the norms and structures that sustain racial disadvantage wrought by slavery and Jim Crow. The goal of such transitional reparations is to extinguish the menace of white supremacy and systemic racism across the board. Restructuring in housing, education, employment, voting, law enforcement, health care, and the environment—social transformation—is absolutely needed in the …

Prediction Of Kinase-Substrate Associations Using The Functional Landscape Of Kinases And Phosphorylation Sites, Serhan Yilmaz, Filipa Blasco Tavares Pereira Lopes, Mark R. Chance, Mehmet Koyutürk

Faculty Scholarship

Protein phosphorylation is a key post-translational modification that plays a central role in many cellular processes. With recent advances in biotechnology, thousands of phosphorylated sites can be identified and quantified in a given sample, enabling proteome-wide screening of cellular signaling. However, for most (> 90%) of the phosphorylation sites that are identified in these experiments, the kinase(s) that target these sites are unknown. To broadly utilize available structural, functional, evolutionary, and contextual information in predicting kinase-substrate associations (KSAs), we develop a network-based machine learning framework. Our framework integrates a multitude of data sources to characterize the landscape of functional relationships …

Temperature Dependence Of Crystal Growth Behavior Of Aln On Ni–Al Using Electromagnetic Levitation And Computer Vision Technique, Benjamin G. Pierce, Ahmad M. Karimi, Roger H. French

Faculty Scholarship

Bulk AlN single crystal has a great demand as a substrate material for AlGaN-based optical and electronic devices such as deep ultraviolet light-emitting diodes and high-power transistors. We have previously proposed a novel solution-growth method using Ni–Al solution with an in-situ observation system for solution growth of AlN crystal using electromagnetic levitation. In this paper, to investigate AlN formation behavior on 40 mol%Al–Ni droplets, two precisely synchronized high-speed cameras from the horizontal and vertical directions were installed. AlN formation behavior was evaluated quantitatively using computer vision image processing techniques. Based on the results, we demonstrated the growth of thick AlN …

Delegating War Powers, Michael D. Ramsey, Matthew C. Waxman

Faculty Scholarship

Academic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars. And yet, every major U.S. war in the last sixty years was fought pursuant to war-initiation power that Congress gave to the President in the form of authorizations for the use of military force. As a practical matter, the central constitutional question of modern war initiation is not the President’s independent war power; it is Congress’s ability to delegate its war power to the President.

It was not until quite late in American history that the practice of war power delegation became well accepted as …

Misreading Campbell: Lessons For Warhol, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a “transformative use.” Purporting to rely on the Court’s adoption of “transformative use” as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous “transformativeness” inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might …

The Logic And Limits Of The Federal Reserve Act, Lev Menand

Faculty Scholarship

The Federal Reserve is a monetary authority subject to minimal executive and judicial oversight. It also has the power to create money, which permits it to disburse funds without drawing on the U.S. Treasury. Since 2008, it has leveraged this power to an unprecedented extent. It has rescued teetering financial conglomerates, purchased trillions of dollars of mortgage-backed securities, and opened numerous ad hoc lending facilities to support ordinary businesses, nonprofits, and municipalities.

This Article identifies the causes and consequences of the Federal Reserve's expanded footprint by recovering the logic and limits of its enabling act. It argues that to understand …

The Nih-Moderna Vaccine: Public Science, Private Profit, And Lessons For The Future, Christopher J. Morten

Faculty Scholarship

This commentary highlights the scientific history of the NIH-Moderna COVID-19 vaccine and corroborates Sarpatwari’s theme of private capture of value created by the public. The commentary also identifies missteps by the Trump and Biden Administrations and offers policy recommendations: better contracts with and incentives for pharmaceutical manufacturers and a not-for-profit “public option” for pharmaceutical development.

Money And The Public Debt: Treasury Market Liquidity As A Legal Phenomenon, Lev Menand, Joshua Younger

Faculty Scholarship

The market for U.S. government debt (Treasuries) forms the bedrock of the global financial system. The ability of investors to sell Treasuries quickly, cheaply, and at scale has led to an assumption, in many places enshrined in law, that Treasuries are nearly equivalent to cash. Yet in recent years Treasury market liquidity has evaporated on several occasions and, in 2020, the market’s near collapse led to the most aggressive central bank intervention in history.

This Article pieces together what went wrong and offers a new account of the relationship between money issue and debt issue as mechanisms of public finance. …

Europe's Digital Constitution, Anu Bradford

Faculty Scholarship

This Article uncovers the fundamental values underlying the European Union’s expansive set of digital regulations, which in aggregate can be viewed as Europe’s “digital constitution.” This constitution engrains Europe’s human-centric, rights-preserving, democracy-enhancing, and redistributive vision for the digital economy into binding law. This vision stands in stark contrast to the United States, which has traditionally placed its faith in markets and tech companies’ self-regulation. As a result, American tech companies today are regulated primarily by Brussels and not by Washington. By highlighting the distinctiveness and the global reach of the European digital constitution, this Article challenges the common narrative that …

Shortlisted: A Conversation Between Judge Diane Wood, Renee Knake Jefferson, And Hannah Brenner Johnson, Renee Newman Jefferson, Hannah Brenner Johnson, Diane P. Wood

Faculty Scholarship

This article includes an edited excerpt from the introduction to Shortlisted: Women in the Shadows of the Supreme Court and a discussion with the book's authors led by Judge Diane Wood, a senior judge of the United States Court of Appeals for the Seventh Circuit. They discuss the book, the women who were passed over for seats on the Court, and the lessons their stories offer — for women judges and the legal profession as a whole.

Content Creation Or Interpolation: Ai Generative Digital Art In The Classroom, James Hutson, Martin Lang

Faculty Scholarship

The integration of generative artificial intelligence (AI) tools in art and design has disrupted the traditional creative landscape, leading to debates on the legitimacy of AI-generated art and the emergence of new markets such as non-fungible tokens (NFTs). The US Copyright Office’s February 21, 2023, ruling withdrawing copyright protection for AI-generated comic artwork, while protecting the accompanying text and arrangement, highlights the contested nature of AI art and suggests that significant human intervention in the creative process will be required for monetization. Whether considered content interpolation or content creation, AI generative content for the creation of art and design is …

Gonzalez V. Google: The Case For Protecting “Targeted Recommendations, Tomer Kenneth

Faculty Scholarship

No abstract provided.

The Dog That Didn’T Bark: Looking For Techno-Libertarian Ideology In A Decade Of Public Discourse About Big Tech Regulation, Jodi L. Short, Reuel E, Schiller, Susan Sibley, Noah Jones, Babak Hammatian, Lee Anna Bowman-Carpio

Faculty Scholarship

The internet was built on the techno-libertarian ideology that “information wants to be free,” and that ideology has played a prominent role in academic and policy debates about regulating the internet and the big technology companies that dominate it.2 Techno-libertarian ideology has generated a constellation of claims about tech and regulation—from the suggestion that regulation will stifle innovation in the complex, dynamic tech sector, to the assertion that the large platform companies are literally not regulable. In this article, we explore how much traction such claims and ideologies have in the broader public discourse about big tech and regulation. We …

A Trip To The Border: Legal History And Apa Originalism, Reuel E. Schiller

Faculty Scholarship

This article examines originalist interpretations of the Administrative Procedure Act (APA) from the perspective of a legal historian. After ex­ amining two pieces of originalist scholarship, it concludes that the histor­ ical record may not produce narratives of enough specificity or coherence to assist the originalist project. Nonetheless, it highlights three under-examined subjects of historical inquiry that have the most potential to aid APA originalists: the nature of administrative procedure during the first three decades of the twentieth century when the modem "appellate model" of judicial review emerged; the actual practice of ad­ ministrative law during the New Deal, both …

Climate Choice Architecture, Felix Mormann

Faculty Scholarship

Personal choices drive global warming nearly as much as institutional decisions. Yet, policymakers overwhelmingly target large-scale industrial facilities for reductions in carbon emissions, with individual and household emissions a mere afterthought. Recent advances in behavioral economics, cognitive psychology, and related fields have produced a veritable behavior change revolution. Subtle changes to the choice environment, or nudges, have improved stake-holder decision-making in a wide range of contexts, from healthier food choices to better retirement planning. But the vast potential of choice architecture remains largely untapped for purposes of climate policy and action. This Article explores that untapped potential and makes the …

The Failure Of Market Efficiency, William Magnuson

Faculty Scholarship

Recent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, …

Leading With The Trailing Edge: Facilitating Patient Choice For Insulin Products, Robin Feldman

Faculty Scholarship

Insulin prices have risen sharply, despite a century since its introduction. Against this backdrop, companies have discontinued dozens of insulin prod- ucts. Discontinuation could relate to safety or effectiveness, or to the over- whelming benefits of newer products. On the other hand, discontinuation could suggest strategic behavior hampering competition and supporting prices. To test these theories, this project examined every insulin discontin- uation, analyzing the role discontinuations play in insulin affordability. No evidence emerged of any discontinuation for safety or effectiveness. Rather, dozens of viable products were removed from the market, followed by more expensive versions, often with little or …

Race, Gender, And Class Conscious Approaches To Mentoring, Verónica C. Gonzales

Faculty Scholarship

A presentation designed to teach attendees how to understand how identity is relevant to academic rigor and other "colorblind" standards; to learn best practices for mentoring students from traditionally underrepresented and excluded groups; and how to apply social justice frameworks to enhance diverse mentor-mentee relationships and outcomes.

Abandoning Animus, Robert L. Tsai

Faculty Scholarship

This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the …

Biden V. Nebraska: The New State Standing And The (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman

Faculty Scholarship

Chief Justice Roberts’s majority opinion in Biden v. Nebraska does not sufficiently explain how Missouri has standing under established Article III doctrine, nor how the Court approaches the major questions doctrine as a method of statutory interpretation. Clarification can come from other opinions, even other cases entirely, in which Justice’s counterarguments are suggestive of the real arguments underlying the decisions.

MOHELA may have faced a concrete injury from the student debt waiver, but there was no evidence that Missouri would – and the majority had no answer for how Missouri had standing without an injury. A debate over special state …

The Myth Of The "Nationwide Injunction", Portia Pedro

Faculty Scholarship

A growing number of scholars, judges, and Justices are debating the permissibility and propriety of relief that they are calling "national injunctions" or "nationwide injunctions. "An injunction is a court order that prohibits an entity from taking certain actions or that requires an entity to take specified actions. Drawing from scholarly literature and popular discourse, some define a "nationwide injunction" as an injunction with no geographic limitation that benefits nonparties, in addition to named plaintiffs or defined plaintiff classes. Injunctive relief in a number of high-profile cases falls within the crosshairs of "nationwide injunction" opponents. On the chopping block is …

What Mcculloch V. Maryland Got Wrong: The Original Meaning Of "Necessary" Is Not "Useful", "Convenient", Or "Rational", Steven Gow Calabresi, Elise Kostial, Gary S. Lawson

Faculty Scholarship

McCulloch v. Maryland, echoing Alexander Hamilton nearly thirty years earlier, claimed of the word “necessary” in the Necessary and Proper Clause: “If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports that one thing is convenient, or useful . . . to another.” Modern case law has translated that understanding into a rational-basis test that treats the issue of necessity as all but nonjusticiable; The Supreme Court has never found a congressional law unconstitutional on the ground that it was not “necessary . . . …

Donor-Advised Funds In The Wake Of The Tax Cuts And Jobs Act, David I. Walker

Faculty Scholarship

Donor-advised funds (DAFs) are conduits for charitable giving that support immediate tax deductions while creating a reservoir of assets for subsequent disposition to end-use charities. The number of new DAF accounts has skyrocketed in the wake of the 2017 Tax Cuts and Jobs Act (TCJA). This Article presents evidence suggesting that bunching charitable contributions to game the TCJA-enhanced standard deduction likely motivates much of the onslaught of new DAF accounts established since 2016 and argues that the typical buncher is likely to differ from other DAF account holders in ways that matter from a policy perspective. Thus, while DAF critics …

Affirmative Action After Sffa, Jonathan Feingold

Faculty Scholarship

In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “raceconscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA.

The Association Of Participating In A Summer Prelaw Training Program And First-Year Law School Students’ Grades, Heather M. Buzick, Christopher Robertson, Jessica Findley, Heidi Burross, Matthew Charles, David M. Klieger

Faculty Scholarship

This study estimates the association of participation in a nine-week online educational program to prepare students for post-graduate (juris doctorate) education and law school grades. We collected registrar data from 17 U.S. law schools for participants and non-participants from the same year and a prior year. We compared first-semester law school grades between participating and non-participating students weighted by propensity scores. Course participation was associated with improved first-semester grades in a keyed course (Contracts Law) and overall grade point average. According to pre- and post-survey responses, a substantial portion of those who completed the program reported feeling more prepared for …