Digital Commons Network^™

Predicting Federal Third-Party Funding Regulation, Victoria Sahani

Faculty Scholarship

Third-party funding is a global phenomenon, although regulatory enforcement is local. Regulatory approaches vary widely from country to country and within countries, especially in federal legal systems, such as Canada, Australia, and the United States. The United States federal government is learning about third-party funding with an eye toward potential future regulation. Congress has been investigating funding, as evidenced by testimony in congressional hearings, proposed federal legislation, and a nonpartisan study on third-party funding by the Government Accountability Office. In addition, after more than a decade of observation, the United States Federal Civil Rules Advisory Committee recently formed a committee …

Critical Constitutional Law And The Alito Palimpsest, William J. Aceves

Faculty Scholarship

This article uses an innovative metaphor—the palimpsest—and a provocative philosophical tradition—genealogy—to generate a new theory of critical constitutional law. It is a theory born from this unique moment in time.

Originalism is now ascendant at the Supreme Court. Its search for essential origins in history as a method for grounding extant constitutional values was used in Dobbs v. Jackson Women’s Health Organization to end recognition of the fundamental right to abortion. The Court’s conservative majority has made clear that Dobbs is only the beginning.

Critical constitutional law uses the metaphor of the palimpsest to study law and the search for …

Generative Contracts, Spencer Williams

Faculty Scholarship

This Article examines how consumers can use generative artificial intelligence to write their own contracts. Popularized by “chatbots” such as OpenAI’s ChatGPT, generative AI is a form of artificial intelligence that uses statistical models trained on massive amounts of data to generate human-like content such as text, images, music, and more. Generative AI is already being integrated into the practice of law and the legal profession. In the context of contracting and transactional law, most generative AI tools are focused on reviewing and managing large volumes of business contracts. Thus far, little attention has been given to using generative AI …

Artificial Intelligence And The Self-Represented Inventor, Brenda M. Simon

Faculty Scholarship

Lack of access to competent legal representation is pervasive throughout the justice system. Unfortunately, the patent system is no exception. Self-represented inventors are far less likely to obtain patents than those with legal representation. Increasing access to artificial intelligence (AI) can mitigate some of the disadvantages of self-representation, but the use of AI will also raise new challenges. To the extent that AI systems can help self-represented inventors, they can begin to address one of the underlying causes of the patent gap—lack of access to high quality legal services. Women and people of color hold fewer patents, in part, because …

Ending The Paper Chase At The U.S. Supreme Court, William J. Aceves

Faculty Scholarship

This Article offers the first systematic analysis of the administrative impact and practical consequences of the U.S. Supreme Court's filing requirements. The lack of meaningful research on this subject reveals how Justices, clerks, and lawyers have become inured to these requirements and their attendant costs.

Every year, the Supreme Court receives approximately five thousand petitions for certiorari. With some exceptions, the Court compels litigants to file multiple paper copies of their submissions. When combined, these submissions exceed two hundred thousand documents, which include over five million separate pieces of paper. If stacked, these documents would reach beyond the height of …

Lone Stars Lessons, Amy F. Kimpel

Faculty Scholarship

This Article provides the first comprehensive empirical account of Operation Lone Star (OLS), Texas Governor Abbott’s immigration enforcement initiative at the southern border. Though OLS consists of several components, including border wall construction and the busing of migrants to “blue” states, the machinery of OLS is primarily designed to apprehend recent migrants and prosecute them for violations of Texas state criminal law. The most common OLS prosecutions are for misdemeanor criminal trespass after migrants are arrested on private ranch lands near the border. As many criminal justice reforms aim to shrink the scale and scope of the criminal legal system, …

Medicare Mandates For Shared Decision Making With Patient Decision Aids: Linking Payment To Preference, Thaddeus Pope

Faculty Scholarship

Since 2015, the Centers for Medicare and Medicaid Services (CMS) has increasingly required shared decision making with evidence-based patient decision aids as an essential Medicare condition for payment. CMS is doing this because it recognizes that most healthcare is preference sensitive and value laden. So, whether treatment is “right” or “beneficial” for a patient is not only a matter of clinical expertise. It equally depends on the patient’s values, preferences, and goals. So, CMS wants to ensure that patients understand the risks, benefits, and alternatives to the healthcare that they receive and for which CMS pays. In short, under its …

New York Environmental Legislation In 2024, Michael B. Gerrard

Faculty Scholarship

In 2024, New York State enacted several laws aimed either at dealing with the adverse impacts of climate change such as extreme heat and increasingl severe and frequent storms or at helping to mitigate greenhouse gas emissions to avoid or minimize the adverse impacts. The final bill signed by Governor Kathy Hochul in 2024 was the most high-profile of these laws — the Climate Change Superfund Act, which will require fossil fuel companies to pay for adaptation measures.

Other new laws last year related to extreme heat in schools and prisons, food waste, expanded polystyrene containers, community gardens, and native …

In Search Of A State, Maeve Glass

Faculty Scholarship

This article offers a legal history of one of America’s earliest campaigns of state legislative resistance: the effort in Massachusetts to protest the national government’s perceived dismantling of an old Atlantic commercial order from 1803 to 1815. To date, scholars have either condemned this protest as a dangerous harbinger of the Civil War or vindicated it as an inevitable and salutary extension of the Founding. This article steers a different course. By focusing on the evolving language of protest and the complex hybrid of ideas and material realities from which this language emerged, this article illuminates how Federalist leaders who …

The Politics Of Bank Supervision: From Eccles To Bessent, Kathryn Judge

Faculty Scholarship

Throughout his tenure as chair of the Federal Reserve Board, Marriner Eccles pressed President Franklin D. Roosevelt to over­haul bank supervision. Eccles eventually made his ongoing service as chair contingent on FDR agreeing to support the effort. This initiative is commonly depicted as a power grab. Federal bank regulation and supervision, then and now, is divvied up among three agencies, the Federal Reserve, the Federal Deposit Insurance Corporation, and the Comptroller of the Currency. Eccles wanted the Fed, and the Fed alone, to be the federal bank supervisor. Having already succeeded in enhancing his power once, by spearheading reforms that …

Altering Rules: The New Frontier For Corporate Governance, Gabriel Rauterberg, Sarath Sanga

Faculty Scholarship

Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules — statutory rights, the fiduciary duty of loyalty, even the central role of the board — and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision permitting boards to completely cede their powers to a shareholder by contract. These developments have sparked a polarized debate, with some calling for a return to mandatory rules, while others push for total contractual freedom.

We argue, however, that the best …

Benched Judges, Anna Roberts

Faculty Scholarship

No abstract provided.

Teaching Cases: How Legal Writing Textbooks Approach The Rule Support Section, Alissa Bauer

Faculty Scholarship

No abstract provided.

Taking Integrity Risks Seriously, Miriam H. Baer

Faculty Scholarship

Several recent scandals in higher education have illuminated notable weaknesses in the academy’s scholarly self-monitoring function. Plagiarism, undisclosed conflicts of interest, and shocking allegations of data fraud have arisen in contexts suggesting real weaknesses in peer review and other internal monitoring mechanisms.

Although the legal academy is different in many ways from the rest of higher education, it is hardly immune to the familiar precursors of fraud—opportunity, pressure, and rationalizations. Moreover, the academy's reliance on student-written law reviews creates additional challenges for holding wayward legal scholars accountable for their integrity violations.

This Essay, written for a Symposium hosted by the …

Grading Legal Research, Julie Tedjeske Crane

Faculty Scholarship

Law school grading practices often conflict with legal research instruction goals. Small class sizes render norm-referenced (curved) grading unreliable, and the emphasis on ranking students detracts from learning essential skills. Drawing on scholarship on legal education and other disciplines, this article examines several grading approaches that may better serve students and instructors, including criteria-referenced, specification-based, and equitable grading systems. It offers practical suggestions for improving grading practices, such as working with colleagues on assessment design, being intentional about grading formative work, and using anonymous grading. The article concludes with a call for more discussion about grading in legal research courses.

Determinants Of Socially Responsible Ai Governance, Daryl Lim

Faculty Scholarship

The signing of the first international AI treaty by the United States, European Union, and other nations marks a pivotal step in establishing a global framework for AI governance, ensuring that AI systems respect human rights, democracy, and the rule of law. This article advances the concepts of justice, equity, and the rule of law as yardsticks of socially responsible AI—from development through deployment—to ensure that AI technologies do not exacerbate existing inequalities but actively promote fairness and inclusivity. Part I explores AI’s potential to improve access to justice for marginalized communities and small and medium-sized law firms while scrutinizing …

Discord And The Pentagon's Watchdog: Countering Extremism In The U.S. Military, Amy Gaudion

Faculty Scholarship

In his 2022 book, Ward Farnsworth crafts a metaphor from the lead-pipe theory for the fall of Rome to consider how rage and misinformation traveling through today’s technology-enabled pipes are poisoning our civic engagement and threatening our governmental structures: “We have built networks for the delivery of information––the internet, and especially social media. These networks too, are a marvel. But they also carry a kind of poison with them. The mind fed from those sources learns to subsist happily on quick reactions, easy certainties, one-liners, and rage.”1 This Article carries the metaphor into a new context and considers what should …

Immigration, Due Process, And Executive Power, Shoba Sivaprasad Wadhia, Peter Margulies

Faculty Scholarship

The current Administration's approach to immigration law enforcement has augmented executive power and reduced procedural safeguards. That approach has raised questions under the Immigration and Nationality Act (INA) and the Constitution. Courts have often pushed back, although the Supreme Court has stayed judicial curbs on one area we'll discuss: Removal to a country other than the home country of the noncitizen (sometimes called third-country removal (TCR)). In other areas, such as the First Amendment rights of foreign students and the reach of the Alien Enemies Act (AEA), adjudication is moving through the courts, although the Supreme Court has imposed limits …

Crafting An Exception To The Principle Of Non-Intervention To End Military Coups, Ronnie R. Gipson Jr.

Faculty Scholarship

Oftentimes, when a foreign state refuses to get involved when another country is subjected to a military coup, the foreign state uses the principle of non-intervention as the reason for inaction. The principle of non-intervention in those instances takes on the role of becoming a shield against preserving or protecting human rights. Specifically, in Myanmar, the principle of non-intervention is being used as a weapon by the military junta, allowing it to strengthen its grip on the levers of power and crush any fledgling opposition to its rule with unimaginable cruelty and violence. This article advances the premise that a …

The Time Has Come To Stop The Bloodshed In Myanmar And Restore The People's Democratically Elected Government, Ronnie R. Gipson Jr.

Faculty Scholarship

Although the Myanmar coup occurred in February 2021, the world paid little attention mostly because the citizens were not white, not European, and the country did not hold huge oil reserves. Subsequent to the coup, Russia invaded Ukraine in 2022, and Israel responded to the Hamas attack on its territory by invading Gaza in 2023. Both of these events assured that the international community paid little to no attention to the plight of the people of Myanmar under the thumb of a repressive military dictatorship after having their freely elected democracy ripped away. If Ukraine is worthy of global attention, …

Birth On Mother Earth: Mitigating The Maternal Health Crisis, Jill C. Engle

Faculty Scholarship

Maternal health outcomes in the U.S. are remarkably poor, especially when compared to those in other industrialized countries. For example, our maternal death rate is more than twice that of Canada’s. Women of color in the U.S. suffer maternal morbidity and mortality at rates considerably higher than white women. Indigenous women experience the worst maternal health outcomes of all. Yet, most maternal deaths and injuries are preventable. Furthermore, rates of maternal harm, including death, are lower when midwives and similar birthing attendants are involved. This Article is the first to fully explore the unique skillset of traditional birth attendants (TBAs). …

Vesting Villainy: The Call To Ban 401(K) Vesting Schedules, Samantha Prince

Faculty Scholarship

The American employee’s efforts to accumulate retirement wealth have been stunted by 401(k) plan vesting schedules for over half a century, yet vesting schedules continue to be legally permissible and pervasively used. Empirical research now exists to show the astronomical number of American workers that annually lose their employer contributions due to vesting schedules—over 1.8 million across 909 plans in 2022 alone. The same research also reveals that in 2022, workers forfeited over $1.5 billion in retirement savings. Critically, employers recycled over 82% of these funds, directly reducing their own contribution obligations. Many private-sector employees in the United States rely …

Introduction, Malia Willey, Scott P. Libson

Faculty Scholarship

The introduction to Teaching Information Literacy by Discipline: Using and Creating Adaptations of the Framework.

Training Module And Assessment Strategy For Light Microscopy Skills Training In A Research Environment, Kristopher E. Kubow, Joseph A. Harsh

Faculty Scholarship

Training in specialized techniques and instrumentation is an important component of undergraduate and graduate education. While such training can occur in formal lab courses, it also occurs as students engage in research. Although training in a research lab setting is typically informal, implementing evidence-based practices from the classroom would be beneficial, particularly for learning complex techniques and instruments, for example, light microscopy. Using advanced microscopes for research is more complicated than using teaching microscopes in a course. In addition, microscopes are easy to misuse because they will generally always produce an image even if that image is suboptimal, misleading, or …

Judicial Reform From The Inside Out, Daniel Epps, Marin K. Levy

Faculty Scholarship

The Judiciary Act of 1925, the subject of this Symposium, is known as “the Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous, perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in judicial reform efforts—what we call judicial reform from the inside out.

We survey examples of judges participating in reform debates from across …

Interlocking Directorates In The United States, Yaron Nili

Faculty Scholarship

In corporate America, directors wield increasing influence across multiple companies, often within the same industry (“horizontal directors”), which creates tension between antitrust laws and corporate governance. Horizontal directors are well-positioned to bring industry expertise and potentially increase higher profits, benefiting shareholders but also possibly enabling potential collusion. This chapter provides an overview of the prevalence of horizontal directors, the regulatory grey space in which they exist and the connection to some recently debated issues, including that of common ownership by institutional investors. To inform this debate, this chapter provides a thorough overview of horizontal directors from corporate and antitrust perspectives …

As They Think Best: A History Of The "One Crowded Hour" Autograph Manuscript, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

A Historical Analysis Of Book Challenges And Banning In Louisiana, Janelle Zetty

Faculty Scholarship

This article explores the history of challenges and bans on library and school materials in Louisiana from 1938 to 2024. It provides context for recent legislation, particularly Act 436 of 2023. The article reviews incidents documented in newspaper articles and library publications, focusing on challenges related to race, sexual content, political views, and LGBTQ+ themes. It discusses the roles of librarians, school boards, and community groups in these circumstances. The historical challenges and book bans in Louisiana reveal a recurring pattern of moral and political arguments used to justify censorship. This pattern directly influences, and is echoed by, recent legislation, …

The Association Between Medication Adherence, Internalized Stigma And Social Support Among Outpatients With Major Depressive Disorder In A Malaysian Hospital: A Cross-Sectional Study, Martha Sajatovic

Faculty Scholarship

Background: Internalized stigma and medication non-adherence pose significant challenges for treating major depressive disorder (MDD), leading to disability, increased suicide risk, and morbidity. Limited data exists on modifiable factors associated with adherence in lower-resourced settings like Malaysia. This study aimed to investigate poor adherence prevalence and the demographic and clinical factors associated with poor medication adherence among patients with MDD. Methods: This cross-sectional survey recruited participants using universal sampling from a major hospital in Selangor, Malaysia. Participants answered questionnaires consisting of demographic and clinical information (medical history, duration of anti-depressant treatment for MDD, psychiatric ward admission history, and any medication …

More Than Miscommunication: Rethinking Interpretation At The Asylum Office, Pooja R. Dadhania, Hillary Mellinger

Faculty Scholarship

The United States requires asylum applicants to provide their own interpreters for their interviews at the Asylum Office, barring exceptional circumstances. Applicants can face significant hurdles in finding suitable interpreters, who play a critical role in giving them a voice in the asylum process. Inaccurate interpretation can have serious ramifications such as denial of an applicant’s asylum claim. Despite the critical need for meaningful language access in the asylum process, interpretation at the Asylum Office remains understudied. This article represents a first attempt at bringing the scholarly and practitioner communities together to rethink interpretation at the Asylum Office, with the …