Digital Commons Network^™

Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin

Faculty Scholarship

In her nearly thirty years on the United States Supreme Court, Justice Ruth Bader Ginsburg issued momentous decisions and significant dissents concerning constitutional guarantees of equality. She is best known for her leadership – as an advocate, scholar, judge, and justice – on issues of gender discrimination. Although one might expect related commitments to civil liberties to shape cases concerning the criminal justice process, Justice Ginsburg’s mark on constitutional criminal procedure appears comparatively faint.

The Importance Of Race, Gender, And Religion In Naturalization Adjudication In The United States, Emily Ryo, Reed Humphrey

Faculty Scholarship

This study presents an empirical investigation of naturalization adjudication in the United States using new administrative data on naturalization applications decided by the U.S. Citizenship and Immigration Service (USCIS) between October 2014 and March 2018. We find significant group disparities in naturalization approvals based on applicants’ race/ethnicity, gender, and religion, controlling for individual applicant characteristics, adjudication years, and variation between field offices. Non-White applicants and Hispanic applicants are less likely to be approved than non-Hispanic White applicants, male applicants are less likely to be approved than female applicants, and applicants from Muslim-majority countries are less likely to be approved than …

Toward An Optimal Decarceration Strategy, Ben Grunwald

Faculty Scholarship

With mounting support for dramatic criminal justice reform, the question is no longer whether we should decarcerate American prisons but how. This question is far more complicated than it might seem. We could cut the prison population in half, for example, by drastically shortening sentences. Or we could reduce prison admissions. Or we could do both. And we could do either or both for countless combinations of criminal offenses. Moreover, even when they reach the same numeric target, these strategies are not equivalent. They would have vastly different consequences for both prisoners and the public, and widely varying timeframes to …

Land Options For Housing: How New Property Rights Can Break Old Land Monopolies, Roderick M. Hills Jr., Shitong Qiao

Faculty Scholarship

The world today is afflicted by inequality of wealth created in large part by monopolistic ownership of land. Hong Kong, with the least affordable housing in the world, provides a particularly apt example of how property law protects such monopolies—and also how the creation of new property rights can break them up.

In this Article we use Hong Kong as a case study to suggest both a diagnosis and a solution to two aspects of property law that slow down the creation of housing. First, the division of property rights between private owners and the government creates a bilateral monopoly …

Rate Base The Charge Space: The Law Of Utility Ev Infrastructure Investment, Adam D. Orford

Faculty Scholarship

To fight climate change and support the transition to a zero- emissions transportation sector, the United States is setting out to build a huge fleet of electric vehicle (EV) charging stations. But EV charging infrastructure—often called EV supply equipment (EVSE)—is expensive, and how to pay for it is not straightforward. This Article explores the emerging law and policy of using the bill payments of millions of electric utility customers to solve the problem. State utility regulators, in obscure technical proceedings, have begun directing billions of ratepayer dollars toward EVSE. Is this an unfair and risky social spending experiment, as its …

Rescinding Rights, Joseph Landau

Faculty Scholarship

No abstract provided.

In The Zone: Work At The Intersection Of Trade And Migration, Jennifer Gordon

Faculty Scholarship

Trade and immigration are generally described as separate dimensions of globalization. This Article challenges that story by focusing on settings where states and private actors are bringing the two together to achieve disparate economic and policy goals. In one set of cases analyzed here, governments in the Global South are seeking to increase trade through the use of migrant labor, attracting transnational firms to export manufacturing zones by importing lower-cost workers from other countries. In the other, policymakers in the Global North are seeking to decrease immigration through the use of trade by investing in export processing zones in migrant …

Innovation And Equality: An Approach To Constructing A Community Governed Network Commons, Rider W. Foley, Olivier Sylvain, Shelila Foster

Faculty Scholarship

Networked computing affords users distinct opportunities to communicate with each other, build relationships, transact business, and create. Yet, the digital divide perpetuates existing disparities between social groups. Interventions that rely on private ownership or philanthropy often fall short. Efforts to redress these disparities require collaboration across academic disciplines and with government and private sector organizations. This paper chronicles efforts in Harlem to address this through a collaborative approach to networked computing. We draw on two concepts--responsible innovation and co-governance--to sketch a community-based approach to networked computing. Second, the article identifies two potential systems, based in property law, through which a …

A New Telecommunications Act: Prioritizing Consumer Protection And Equality, Olivier Sylvain

Faculty Scholarship

Through the Telecommunications Act of 1996, Congress imposed long overdue duties and structural limits on the telephone, broadcasting, and cable industries. Though the 1934 law was bold and important, legislators unwittingly enabled a handful of companies to concentrate power in those markets.

As needed as it was, the Telecommunications Act also had flaws. Congress’s structureof- the-market approach in 1996 did not protect against disparities in consumers’ access. Nor did it (or could it) anticipate the informational harms that the internet would facilitate or enable.

These concerns ought to be the primary focus of reform today. To be sure, the Federal …

The False Promise Of General Jurisdiction, Maggie Gardner Gardner, Pamela K. Bookman, Andrew Bradt, Zachary Clopton, D. Theodore Rave

Faculty Scholarship

The Supreme Court has said that general jurisdiction provides at least one clear and certain forum to sue defendants, and that assumption has begun to shape the Court’s understanding of specific jurisdiction. But that assumption is wrong. General jurisdiction does not provide a guaranteed U.S. forum for foreign defendants or in cases involving multiple defendants. And even when defendants can be sued “at home,” such cases may be (and not infrequently are) dismissed for forum non conveniens, sometimes even when no alternative forum is available.

Nor is a regime reliant on a general jurisdiction backstop desirable. The Court’s narrowed version …

Beyond Bake Sales: Environmental Justice Through Superfund Removal Actions, Clifford Villa

Faculty Scholarship

Few people outside of EPA seem to be aware of the existence of the Superfund removal program, a program through which millions of dollars are allocated through EPA’s ten regional offices each year for cleaning up contaminated sites that are not designated 'Superfund' sites. This essay will provide a basic introduction to the Superfund removal program and particularly encourage consideration of Superfund removals to address growing concerns for environmental justice. Part II examines the legal authorities and limitations of the Superfund removal program. Part III provides examples of removal actions in environmental justice communities across the country. Part IV considers …

Third Amendment To The Chinese Copyright Law, Peter K. Yu

Faculty Scholarship

Since July 2011, China has actively explored ways to upgrade its copyright law. Although the law was already amended the year before, only two changes were made at that time. The last time Chinese copyright law undertook a major overhaul was more than two decades ago, two months before the country became the 143rd member of the WTO in December 2001.

On November 11, 2020, the Standing Committee of the National People's Congress of China finally approved the Third Amendment to the Chinese Copyright Law. Covering a wide range of issues from eligibility to ownership and from enforcement to anti-circumvention …

Advertising Medicine: Selling The Cure, Robin Feldman

Faculty Scholarship

Although most countries forbid advertising medicine to patients, “direct-to- consumer advertising” has flourished in the United States over the past century. Research shows that the practice prompts inappropriate prescriptions and disadvantages generic competitors, leading to adverse drug reactions and increased prescription drug spending. Nevertheless, a comprehensive regulatory system for direct-to-consumer advertising continues to escape the grasp of policymakers. Regulatory authority has bounced between the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA), where primary jurisdiction now resides. Since the FDA assumed responsibility, the agency’s only major regulatory initiative has been to minimize disclosure requirements for advertisements. Enforcement …

Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser

Faculty Scholarship

Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …

Collective Cognitive Capital, Emily R. Murphy

Faculty Scholarship

This Article calls for a new project for law and neuroscience. It outlines a structural, not individual, application of brain and behavioral science that is aligned with the general goal of basic science research: improving the lives of citizens with a better un- derstanding of the human experience. It asks brain and behavioral science to move explicitly into public policy territory, and specifically onto ground more traditionally occupied by economists—but in ways the project of “behavioral economics” has not yet ventured. Put sim- ply, policy analysts should focus on brains—“collective cognitive capital”—with the same intensity with which they focus on …

Challenges With Defining Pharmaceutical Markets And Potential Remedies To Screen For Industry Consolidation, Robin Feldman, Brent D. Fulton, Jamie R. Godwin, Richard M. Scheffler

Faculty Scholarship

Context: Dramatic increases in pharmaceutical merger and acquisition (M&A) activity since 2010 suggest we are in the midst of a third wave of industry consolidation. Methods: The authors reviewed 168 economic, legal, medical, industry, and government sources to examine the effects of consolidation on competition and innovation and to explore how industry attributes complicate M&A regulation in a pharmaceutical context. Findings: The authors find that, in spite of certain metrics that might argue otherwise, con- solidation consistently reduces innovation and harms the public good. They also find that several factors within the pharmaceutical industry impede proper evaluation of proposed mergers. …

How The Pandemic Flipped My Perspective On Flipping The Tax Law Classroom, Heather Field

Faculty Scholarship

No abstract provided.

Trade Secrets In Biologic Medicine: The Boundary With Patents, Robin Feldman

Faculty Scholarship

Can something be both open and secret? That is the conundrum facing society as trade secret rights chafe against patent rights in cutting-edge, biologic medicine. The conflict is unsurprising. Trade secret has emerged as a relatively late bloomer among the family of intellectual property rights and only recently has begun to establish the boundaries of its own space, a process in which it will inevitably knock against other intellectual property doctrines already occupying their own domains. Nor is it surprising that the clash would arise in a fast-moving area of medical science. From insulin products, to cancer treatments, to mRNA …

Public Undersight, Christina Koningisor

Faculty Scholarship

No abstract provided.

The Negotiable Implementation Of Environmental Law, Dave Owen

Faculty Scholarship

tional wisdom describes environmental law as a field filled with rigid mandates. ith that rigidity as a key premise, and they allege that inflexibility is a central failing or, alternatively, a squandered virtue. Influential reform proposals follow from both allegations. This Article demonstrates that these premises are often mistaken. Based on literature reviews and interviews with environmental-law practitioners, it shows that flexibility pervades environmental law, and regulators, regulated entities, and other interest groups routinely use negotiations to navigate that flexibility. Indeed, negotiation is so central to the field that one cannot understand environmental law, either in theory or practice, without …

Dual Federalism, Constitutional Openings, And The Convention On The Rights Of Persons With Disabilities, Benjamin Barsky

Faculty Scholarship

The Convention on the Rights of Persons with Disabilities (“CRPD”) represents a historic achievement for the global disability rights movement. Yet, when the U.S. Senate refused to ratify it on December 4, 2012, its influence on American law and policy seemed doomed. The Founders, after all, had conceived of a constitutional vision where the federal government acts as the ultimate arbiter of questions of international policy. Under this vision of “dual federalism”—which dominated how the legal profession understood U.S. involvement in foreign affairs for over a century—only the federal political branches have the power to make and implement international laws …

No “Box To Be Checked”: Environmental Justice In Modern Legal Practice, Clifford J. Villa

Faculty Scholarship

For nearly thirty years, environmental justice has been part of our civic conversation and included in the mission of federal agencies. But while public attention to environmental justice has waxed and waned over time, environmental justice principles have endured and developed into rules of law. This development may be expected to continue and accelerate with recent events such as the nationwide outcry after the police killing of George Floyd in 2020, the disparate impacts of COVID-19 on people of color, and the express priorities of the Biden administration. This paper seeks to help legal practitioners and other interested parties comprehend …

Adapting To A 4°C World, Clifford Villa

Faculty Scholarship

The Paris Agreement’s goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.

A Contentious Mission: Water Supply And Corps Of Engineers Reservoirs, Reed D. Benson

Faculty Scholarship

The U.S. Army Corps of Engineers operates hundreds of multi-purpose reservoirs nationwide, many of which provide water for municipal and industrial purposes. Demands for water from Corps reservoirs are sure to grow, and Congress has ordered the Corps to report on whether water supply should become a primary mission of the agency. The Corps has experienced controversy over water supply decisions, including disputes involving its Missouri River reservoirs and Lake Lanier in Georgia. When the Corps proposed a national Water Supply Rule in 2016 it drew significant opposition, forcing the agency to withdraw the rule and reassess its policies. This …

A Unifying Doctrine Of Subsurface Property Rights, Joseph A. Schremmer

Faculty Scholarship

This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …

Motivation To Move Out Of The Community As A Moderator Of Bullying Victimization And Delinquent Behavior: Comparing Non-Heterosexual/Cisgender And Heterosexual African American Adolescents In Chicago’S Southside, Dexter R. Voisin

Faculty Scholarship

A growing body of research documents that bullying victimization is associated with delinquent behavior. There is an increasing need to better illuminate the factors that might moderate this relationship. This study examined whether the motivation to move out of low-resourced neighborhoods and sexual orientation/gender identity moderated the relationship between bullying victimization and delinquent behavior among a sample of 450 heterosexual and 91 non-heterosexual/cisgender African American youths. Measures considered were bullying victimization, delinquent behavior, sexual orientation/gender identity, motivation to move out, and family demographics. Sexual orientation/gender identity was not associated with youth delinquent behavior after controlling for covariates. Being motivated to …

A Simplified Stress Analysis Of Functionally Graded Beams And Influence Of Material Function On Deflection, Elias Ali

Faculty Scholarship

This paper aims at providing a simplified analytical solution for functionally graded beam stress analysis and optimized material gradation on the beam deflection. The power-law (P-FGM) and exponential (E-FGM) material functions were considered for an exact solution of the normal and shear stress distributions across the beam thickness. Optimization of material function on the FGM beam deflection, which is new of its kind, was also investigated considering both simply supported and cantilever beams. It was observed that the non-dimensional normal stress and shear stress are independent of the elastic moduli values of the constituent materials but rather depends on both …

Carbon Fiber Electrodes For Intracellular Recording And Stimulation, Yu Huan, Jeffrey P. Gill, Hillel J. Chiel

Faculty Scholarship

Objective. To understand neural circuit dynamics, it is critical to manipulate and record many individual neurons. Traditional recording methods, such as glass microelectrodes, can only control a small number of neurons. More recently, devices with high electrode density have been developed, but few of them can be used for intracellular recording or stimulation in intact nervous systems. Carbon fiber electrodes (CFEs) are 8 µm-diameter electrodes that can be assembled into dense arrays (pitches 80 µm). They have good signal-to-noise ratios (SNRs) and provide stable extracellular recordings both acutely and chronically in neural tissue in vivo (e.g. rat motor cortex). The …

The Pocketbook Next Time: From Civil Rights To Market Power In The Latinx Community, Rachel F. Moran

Faculty Scholarship

The United States is undergoing a demographic transformation. Nearly one in five Americans already is Latinx, and the United States Census Bureau projects that by 2060, nearly one in three will be. Latinx will substantially outnumber every other historically underrepresented racial and ethnic minority group, and non-Hispanic whites no longer will be a majority. Those changes have unsettled traditional approaches to full inclusion.

Civil rights activists have suffered numerous setbacks, and the burgeoning Latinx population is searching for other paths to belonging. Some leaders have turned to growing Latinx market power to demand recognition and equal opportunity. These efforts rely …

Information Technology And The New Capitalism, James Bessen

Faculty Scholarship

Harnessing Digitalization for Sustainable Economic Development: Insights for Asia describes digitalization’s role in raising the productive capacities of economies. It examines how digital transformation can enhance trade, financial inclusion, and firm competitiveness, as well as how greater digital infrastructure investment, internet connectivity, and financial and digital education in the region can maximize digitalization’s economic benefits. It also explains the importance of striking the right balance between the regulation and supervision of financial technology to enable innovation and safeguarding financial stability and consumer protection.

Part I of the book seeks to build an understanding of digitalization’s effects on macroeconomic performance, including …