Digital Commons Network^™

The Brussels Effect And The Extraterritoriality Of Delaware Corporate Law, William J. Moon

Faculty Scholarship

This essay explores possible shareholder claims in the United States that may arise  if and when member states of the European Union implement the proposed Directive  on Corporate Sustainability Due Diligence. As a doctrinal matter, legal compliance  obligations for corporations incorporated in Delaware extend beyond the borders of  the United States. Under Delaware law, shareholders can bring viable fiduciary suits  against directors and officers when corporations violate applicable “positive law.”  This jurisprudence, principally aimed at ascertaining whether directors and officers  betrayed shareholders by engaging in or facilitating lawbreaking, is not limited to  complying with American law. As Delaware corporations expand …

Embracing Ai In English Composition: Insights And Innovations In Hybrid Pedagogical Practices, James Hutson, Daniel Plate, Kadence Berry

Faculty Scholarship

In the rapidly evolving landscape of English composition education, the integration of AI writing tools like ChatGPT and Claude 2.0 has marked a significant shift in pedagogical practices. A mixed-method study conducted in Fall 2023 across three sections, including one English Composition I and two English Composition II courses, provides insightful revelations. The study, comprising 28 student respondents, delved into the impact of AI tools through surveys, analysis of writing artifacts, and a best practices guide developed by an honors student. Initially, the study observed a notable anxiety and mistrust among students regarding the use of AI in writing. However, …

Response: Client Counseling In Post-Conviction, Alexis Hoag-Fordjour

Faculty Scholarship

No abstract provided.

Transaction-Specific Tax Reform In Three Steps: The Case Of Constructive Ownership, Thomas J. Brennan, David M. Schizer

Faculty Scholarship

Similar investments are often taxed differently, rendering our system less efficient and fair. In principle, fundamental reforms could solve this problem, but they face familiar obstacles. So instead of major surgery, Congress usually responds with a Band-Aid, denying favorable treatment to some transactions, while preserving it for others. These loophole-plugging rules have become a staple of tax reform in recent years. But unfortunately, they often are ineffective or even counterproductive. How can Congress do better? As a case study, we analyze Section 1260, which targets a tax-advantaged way to invest in hedge funds. This analysis is especially timely because a …

New York Environmental Legislation In 2023, Michael B. Gerrard

Faculty Scholarship

In 2023, New York enacted laws to aid the state in achieving the renewable energy and greenhouse gas emissions reduction mandates of the 2019 Climate Leadership and Community Protection Act (CLCPA).The state also now has new laws to reduce exposure to lead in drinking water and paint; to ban natural gas furnaces and stoves in new buildings; to restrict neonicotinoid pesticides; and to encourage “nature-based solutions” for stabilizing tidal coastlines. These and other new and amended environmental and energy laws—as well as notable vetoes—are discussed in this article.

Courting Censorship, Philip A. Hamburger

Faculty Scholarship

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …

Contractual Landmines, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Conventional wisdom is that the standardized boilerplate terms used in large commercial markets survive unchanged because they are an optimal solution to the contracting problems facing parties in these markets. As Smith and Warner explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals numerous instances of harmful landmines — some are deliberate changes to standard language that increase a creditor’s nonpayment risk, others are blatant drafting errors, and yet others are inapt terms that have been carelessly imported from corporate transactions. Moreover, these landmines differ from each other …

"Don't Go Chasing Waterfalls": Fiduciary Duties In Venture Capital Backed Startups, Sarath Sanga, Eric L. Talley

Faculty Scholarship

We develop a model of venture capital contracting and use it to evaluate an emergent set of judicial precedents in corporate law, which we label the Trados doctrine. In our model, founders hold common stock, while venture capital investors hold convertible preferred stock. We show that preferred shareholders have inefficient incentives to liquidate low-valued firms and to continue high-valued firms, while common shareholders inefficiently favor the opposite. The extent of incentive misalignment depends on the firm’s intrinsic and outside valuations, and it is most severe around preferred shareholders’ liquidation preference and conversion point. Although legal liability rules can rectify these …

Digital Resurrection Of Historical Figures: A Case Study On Mary Sibley Through Customized Chatgpt, James Hutson, Paul Huffman, Jeremiah Ratican

Faculty Scholarship

This study investigates the emerging realm of digital resurrection, focusing on Mary Sibley (1800–1878), the esteemed founder of Lindenwood University. The core objective was to demonstrate the capability of advanced artificial intelligence, specifically a customized version of ChatGPT, in revitalizing historical figures for educational and engagement purposes. By integrating comprehensive diaries from Sibley with Claude 2.0, the research utilized a substantial autobiographical dataset to develop a GPT beta version that replicates her distinct voice and tone. The incorporation of her official portrait and diaries into the GPT Builder was pivotal, creating an interactive platform that accurately reflects her perspectives on …

Intentional Parenthood, Contingent Fetal Personhood, And The Right To Reproductive Self-Determination, Laura D. Hermer

Faculty Scholarship

This Article argues that intent should govern legal parenthood, regardless of the method of conception, the person’s biological or genetic relationship to the resulting embryo/fetus, or the person’s gender. This proposition is not new. This Article adds to scholarly discourse by extending the concept: Intent should not just determine parenthood, but also fetal rights. When a pregnant person establishes their procreational intent (or lack thereof) prior to birth, then both the existence (or lack thereof) of legal protections for the embryo/fetus and the gestator’s rights and duties (or lack thereof) should flow from this intent. Non-gestating gamete contributors would do …

If Not Here, Where?: Transnational Litigation Against U.S. Tech Giants Around The World, Pamela K. Bookman

Faculty Scholarship

In recent suits around the world against U.S. tech giants-e.g., litigation in Canada against Twitter (now X), in Kenya against Facebook, and in Europe against Google-plaintiffs urge foreign courts to adapt concepts like specific personal jurisdiction in flexible ways to allow litigation to proceed. In their defense, the U.S. companies are reusing the argument that similarly situated defendants successfully deployed in U.S. courts over the last few decades-that the cases are too foreign and do not belong in these courts. But these defendants have lost their home court advantage. They find themselves in courts with closer ties to the disputes …

Race And Regulatory Equity, Ming Hsu Chen

Faculty Scholarship

This article contemplates the proper role of regulatory agencies in implementing equity orders. More specifically, what is their role with regard to higher education admissions, in the post-SFFA v. Harvard landscape of racial equity?

Covid-19 Pediatric Vaccine Authorization, Fda Authority, And Individual Misperception Of Risk, Joanna K. Sax, Neal Doran

Faculty Scholarship

Vaccines are one component to the public health strategies to alleviate the COVID-19 pandemic. Hesitancy regarding COVID-19 vaccines in the United States has been problematic, which is not surprising given increasing overall vaccine hesitancy in recent decades. Most vaccines are administered during childhood years. Consequently, understanding hesitancy toward administration of vaccines in this age group may provide insight into possible interventions to reduce vaccine hesitancy. The present study analyzed a subset of over 130,000 public comments posted in response to a notice of meeting of the vaccine advisory group to the Food and Drug Administration. The meeting addressed whether to …

Ukraine, Moral Outrage, And International Law, Heidi Gilchrist

Faculty Scholarship

No abstract provided.

Bespoke Regulation Of Artificial Intelligence, Brenda M. Simon

Faculty Scholarship

The decision to regulate artificial intelligence (AI) has far reaching consequences. Determining how to address budding applications of AI technology should depend on their effects. This article describes how regulation should be carefully tailored to avoid harm while maximizing social welfare, building on Orly Lobel's taxonomy of regulatory tools. Part I examines the foundational difficulties in governing AI, including industry influence in regulation and deficiencies in enforcement. Part II elaborates on Lobel's framework, detailing the benefits and limitations of a variety of tools, such as voluntary standards, soft law mechanisms, and public-private partnerships. It describes how bringing in diverse stakeholders …

Are ‘Friends’ Electric?, James Cooper

Faculty Scholarship

No abstract provided.

A Framework For Applying Copyright Law To The Training Of Textual Generative Artificial Intelligence, Art Neill, James Thomas, Erika Lee

Faculty Scholarship

The rise in the popularity of consumer-facing generative artificial intelligence (GenAI) has created considerable confusion and consternation among some copyright owners. The ability to automate the generation of original works based on user input is considered by some copyright holders to have been made possible by large-scale direct infringement by OpenAI, Microsoft, and other major GenAI developers. This article explores the application of copyright law to the training of OpenAI’s ChatGPT, specifically focusing on the legal issues surrounding the unauthorized use of copyrighted textual works in the GenAI training process.

The large language models (LLMs) that drive ChatGPT and similar …

Everybody Wants To Rule The World: Central Bank Digital Currencies In The Era Of Decoupling The World’S Two Largest Economies, James M. Cooper

Faculty Scholarship

Some 130 central banks around the world are experimenting with various levels of a central bank digital currency (“CBDC”), a digitized form of a sovereign-backed, national currency that is a liability of that country’s central bank. Unlike fiat currency, CBDCs are trackable and potentially subject to interference and even freezing by government authorities. CBDCs will affect citizens’ control over commerce, payments, and savings, and impact their privacy rights. The Chinese government has piloted, refined, and rolled out its own CBDC called the Digital Currency/Electronic Payment initiative (“DC/EP”), also known as the digital yuan or e-CNY. The Chinese government is far …

The Intrusive State: Restrictions On Gender-Affirming Healthcare For Minors, Exceptions To The Doctrine Of Parental Consent, And Reliance On Science And Medical Expertise, Lois A. Weithorn

Faculty Scholarship

The provision of gender-affirming medical care to transgender or gender diverse (“TGD”) youth is currently the subject of substantial controversy despite an overwhelming consensus in the healthcare community as to the safety and potential benefits of recommended treatments. Much of the debate is fueled by misinformation and inaccurate characterization of research and practice. Against this backdrop, twenty-three states enacted restrictions or complete prohibitions on access to gender-affirming medical care for adolescents between 2021 and the time of this writing in early 2024. The policies typically place healthcare practitioners who provide such services at risk of license revocation. Some statutes create …

Case Rounds Redefined: Multidisciplinary Perspectives In Reflective Practice, Nira Geevargis

Faculty Scholarship

This article describes the rounds process used in clinic and externship seminars and considers how adjustments to the structure can address different needs or goals. The authors draw on teaching methods found in similar professional education programs to identify options for faculty facilitating rounds. Ultimately, the authors use externship rounds to highlight lawyering skills, including developing curiosity, withholding judgment, and generating options. The authors posit that rounds facilitate deeper self-reflection and foster a sense of community by encouraging law students to work collaboratively to consider lessons learned in fieldwork. The rounds structure overview can be assigned to students before class …

Racial Reckoning And The Police-Free Schools Movement, Thalia Gonzalez, Rebecca Epstein

Faculty Scholarship

Across the country, students of color face daily threats of arrest, exclusion, and violence at the hands of school police officers. Whether deemed threatening, defiant, or hypersexualized, Black students, in particular, pay a heavy price to access their right to free public education. Despite victories in dismantling educational carcerality since the mid-2000s, efforts to formally remove police from public schools has been limited. However, during the 2020 racial reckonings, political opportunity catalyzed social movement campaigns, resulting in the passage of sixty-nine police-free policies. This represented an inflection point for civil rights, education justice, and police abolition scholars and activists. This …

Hierarchies Of Discrimination In Baby Making? A Response To Professor Carroll, Radhika Rao

Faculty Scholarship

No abstract provided.

Race-Consciousness And Black Humanity: Reinterpreting The Brown Footnote 11 Doll Studies, Vinay Harpalani

Faculty Scholarship

Much has been written about Brown v. Board of Education and the doctrinal conflicts between the anti-classification principle, which espouses colorblindness, and the antisubordination principle, which allows race-consciousness under certain circumstances. But one aspect that is unexplored is how Brown Footnote 11 and reactions to it played a role in the Supreme Court's move away from race-consciousness. In Footnote 11, the Court cited social science evidence to establish the harm of segregation. Footnote 11 is particularly known for the famous doll studies conducted by Professor Kenneth Bancroft Clark and Dr. Mamie Phipps Clark. The Brown Court took the doll studies, …

Trial By Ambush: The Prosecution Of Indians In Federal Court, Samuel Winder

Faculty Scholarship

This Article addresses the Federal Rules of Criminal Procedure’s unjust impact in the prosecution of Indians in federal court. As the rules of engagement used by federal prosecutors and defense attorneys in federal court when prosecuting Indians under the Major Crimes Act and the General Crimes Act, the Federal Rules of Criminal Procedure differ from those of Civil Procedure with regard to discovery procedures. Specifically, the Federal Rules of Criminal Procedure are unjust because they do not allow defense attorneys to conduct pretrial interviews or depositions of prospective witnesses whose evidence the United States will introduce at trial or use …

Surviving The Megadrought, Warigia Bowman

Faculty Scholarship

According to NASA, the Earth experienced its hottest day in recorded history on July 22, 2024, surpassing the previous hottest day, which was set in 2023. The year 2024 will enter the record books as the hottest year since pre-industrial times. The temperatures in 2024 exceeded the year 2023, during which the average global surface temperature was the warmest ever recorded in the past 174 years. These meteorological facts—although alarming on their own—are the backdrop for the legal analysis contained in this Article. The driest states in the Southwest, including Arizona, Colorado, Nevada, New Mexico, and Utah, have long relied …

Tax Enforcement By The Private Sector: Deputizing Tax Insurers, Heather M. Field

Faculty Scholarship

The IRS is outgunned when trying to ensure compliance by large corporations and other sophisticated taxpayers. The private sector can help. Private sector actors, such as financial institutions, employers, and whistleblowers, have been valuable allies in the IRS’s efforts to improve compliance and enforcement. This Article argues for using another, largely overlooked, private sector party—tax insurers—to expand the IRS’s enforcement abilities. Tax insurers insure sophisticated taxpayers’ uncertain tax positions (e.g., the tax-free treatment of a corporate spinoff or tax credits critical to a renewable energy project). For a premium, a tax insurer agrees to pay any additional taxes owed with …

First Amendment Disequilibrium, Christina Koningisor, Lyrissa Lidsky

Faculty Scholarship

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers …

Education Equity And Brown: Reform, Retrenchment, And Exclusionary School Discipline, Thalia Gonzalez, Will Martel

Faculty Scholarship

Public schools have served as sites of social, political, and legal contestation since their inception in the United States. And, while the pathways of racialized inequalities have arguably waxed and waned, threats of exclusion and segregation—constituted and governed by anti-Blackness—have cast a long shadow on the promise of educational equity. In response to the central provocation of the 2024 Georgetown Journal of Law & Modern Critical Race Perspectives symposium—revisiting Brown v. Board of Education and the struggle for racial equity in education—this Essay seeks to (re)connect the past and present. More directly, through the Critical Race Theory reform and retrenchment …

Empirically Assessing Medical Device Innovation, George Horvath

Faculty Scholarship

No abstract provided.

Dance Of The Biologics, Robin Feldman, Gideon Schor

Faculty Scholarship

From COVID-19 vaccines to cancer treatments, biologic medicines are gaining importance in the U.S. health care system. Their high price tags, however, make these medications difficult for many Americans to afford. The Biosimilars Act, enacted in 2010, aimed to reduce costs and increase access to biologic medications by encouraging follow-on competition. The legislative effort followed in the footsteps of its predecessor, the Hatch-Waxman Act of 1984.

Although the Hatch-Waxman system succeeded in creating a landscape of more affordable and widely used generic drugs, the Biosimilars Act has failed to live up to its promise. Biologic drugs in the United States …