Digital Commons Network^™

Beyond Legal Deserts: Access To Counsel For Immigrants Facing Removal, Emily Ryo, Reed Humphrey

Faculty Scholarship

Removal proceedings are high-stakes adversarial proceedings in which immigration judges must decide whether to allow immigrants who allegedly have violated U.S. immigration laws to stay in the United States or to order them deported to their countries of origin. In these proceedings, the government trial attorneys prosecute noncitizens who often lack English fluency, economic resources, and familiarity with our legal system. Yet, most immigrants in removal proceedings do not have legal representation, as removal is considered to be a civil matter and courts have not recognized a right to government­appointed counsel for immigrants facing removal. Advocates, policymakers, and scholars have …

Originalism-By-Analogy And Second Amendment Adjudication, Joseph Blocher, Eric Ruben

Faculty Scholarship

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United …

The Possible Futures Of American Democracy, Jedediah Purdy

Faculty Scholarship

No abstract provided.

Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet

Faculty Scholarship

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …

Judging Firearms Evidence And The Rule 702 Amendments, Brandon Garrett, Nicholas Scurich, Eric Tucker, Hannah Bloom

Faculty Scholarship

No abstract provided.

Minding Rights: Mapping Ethical And Legal Foundations Of ‘Neurorights’, Sjors Ligthart, Marcello Ienca, Gerben Meynen, Fruzsina Molnar-Gabor, Roberto Andorno, Christoph Bublitz, Paul Catley, Lisa Claydon, Thomas Douglas, Nita A. Farahany, Joseph J. Fins, Sara Goering, Pim Haselager, Fabrice Jotterand, Andrea Lavazza, Allan Mccay, Abel Wajnerman Paz, Stephen Rainey, Jesper Ryberg, Philipp Kellmeyer

Faculty Scholarship

The rise of neurotechnologies, especially in combination with artificial intelligence (AI)-based methods for brain data analytics, has given rise to concerns around the protection of mental privacy, mental integrity and cognitive liberty – often framed as “neurorights” in ethical, legal, and policy discussions. Several states are now looking at including neurorights into their constitutional legal frameworks, and international institutions and organizations, such as UNESCO and the Council of Europe, are taking an active interest in developing international policy and governance guidelines on this issue. However, in many discussions of neurorights the philosophical assumptions, ethical frames of reference and legal interpretation …

Open Prosecution, Brandon L. Garrett, William E. Crozier, Kevin Dahaghi, Elizabeth J. Gifford, Catherine Grodensky, Adele Quigley-Mcbride, Jennifer Teitcher

Faculty Scholarship

Where the vast majority of criminal cases are resolved without a trial, the criminal system in the United States is a system of pleas, not trials. While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated—or discriminatory, self-interested, and arbitrary—with very little oversight or sunlight. For years, academics and policymakers have called for meaningful data to fill this crucial void.

In this Article, we open the “black box” of prosecutorial discretion by tasking prosecutors …

Retribution Or Reconciliation? Post-Conflict Attitudes Toward Enemy Collaborators, Kristen Kao, Mara R. Revkin

Faculty Scholarship

Armed groups seeking to govern territory require the cooperation of many civilians, who are widely perceived as enemy collaborators after conflict ends. The empirical literature on attitudes toward transitional justice focuses heavily on fighters, overlooking more nuanced understandings of proportional justice for civilian collaborators. Through a survey experiment conducted in an Iraqi city that was controlled by the Islamic State, we find that variations in the type of collaboration an actor engages in strongly determine preferences for punishment and forgiveness. While exposure to violence is associated with a greater desire for revenge, perceived volition behind an act—a relatively unstudied factor—is …

Can Machines Commit Crimes Under Us Antitrust Laws?, Aslihan Asil, Thomas Wollmann

Faculty Scholarship

Generative artificial intelligence is being rapidly deployed for corporate tasks including pricing. Suppose one of these machines communicates with the pricing manager of a competing firm, proposes to collude, receives assent, and raises price. Is this a crime under U.S. antitrust laws, and, if so, who is liable? Based on the observed behavior of the most widely adopted large language model, we argue that this conduct is imminent, satisfies the requirements for agreement and intent under Section 1 of the Sherman Act, and could confer criminal liability to both firms as well as the pricing manager of the competing firm.

Pauli Murray: Human Rights Visionary And Trailblazer, Darin E. W. Johnson, Catherine Powell

Faculty Scholarship

No abstract provided.

Algorithmic Personalized Wages, Zephyr Teachout

Faculty Scholarship

The paper explores algorithmically created personalized wages: what they are, what they mean, and what we can do about them. First, it establishes a taxonomy of five different forms of algorithmic wage differentiation: productivity-based wage adjustments, wages shifted through incentive bonuses and demerits, behavioral wages, dynamic wages, and wages shifted to conduct an experiment. It argues that these techniques are likely to spread from gig work to the formal employment context.

Second, it argues that the spread of these techniques has democratic implications. They will increase economic and racial inequality. They will harm labor solidarity. Perhaps most importantly, they put …

Home Rulings, Nestor M. Davidson

Faculty Scholarship

Home rule developed through nearly a century and a half of popular reform aimed at devolving legal authority, leaving a legacy of detailed constitutional provisions in many states. State courts, however, can interpret these provisions as a relatively unconstrained instrumental and normative exercise in constitutional common law, reflexively valorizing state authority in the process. Home rule jurisprudence carries an irreducible element of judicial discretion, but this Essay argues that paying insufficient attention to constitutional text—read in the context of the reform movements that help shape the adoption of those home rule provisions—undermines popular sovereignty and risks ossifying the institutional flexibility …

Taxation And The Constitution, Reconsidered, John R. Brooks, David Gamage

Faculty Scholarship

Our current income tax is unable to address growing concentrations of financial wealth and resulting economic inequality. But reforms to address these problems—such as a wealth tax or an income tax on unrealized capital gains—are stymied by fears of unconstitutionality. The basic claim is that wealth taxes and similar reforms are “direct taxes” under the Apportionment Clauses of the Constitution, and since apportionment is not feasible, these taxes are impossible. But this claim is wrong.

This Article shows that there is in fact a long history of federal taxes similar to wealth taxes—both apportioned and uniform—and a well-developed constitutional tax …

Policing "Bad" Mothers, I. Bennett Capers

Faculty Scholarship

Jessamine Chan’s The School for Good Mothers — a speculative novel about a mother who abandons her child for a few hours and is required to attend a school for good mothers to regain custody — may not be a great book, but it is a good yarn, and a page turner, and thought-provoking. Thought-provoking, because to measure her fitness to be a mother, the protagonist is assigned a robot doppelganger of her child — one that is sentient, one that seems almost real, one that might even pass the Turing test, and one that she is required not only …

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 …

Law And Culture, Tamar Frankel, Tomasz Braun

Faculty Scholarship

We often speak of law and culture in one breath. That may be so because both systems impose on each person and organization required rules of behavior. Yet, law and culture are quite different, though they relate to and affect each other. Therefore, it is desirable to examine their similarities and differences and their relationship. While the structures of law and culture are more similar than we might expect, their differences greatly affect the enforcement of the rules issued under each.

To be sure, both systems consist of rules and their enforcement. Most of our thoughts and knowledge, and many …

Household Intimacy And Being Unmarried: Family Pluralism In The Novels Of Anthony Trollope, Linda C. Mcclain, Allison Anna Tait

Faculty Scholarship

Many critics rightfully claim that the marriage market and an inquiry into its innermost workings are at the heart of Anthony Trollope’s novels, but this Article argues that his novels also depict—on the periphery or sometimes just hiding in plain sight—a set of curiously nonmarital households. These households vary in form, but include widows and widowers living on their own, mothers and daughters living collectively, and male cousins sharing space and the work of daily living. Critics have debated whether Trollope was simply a realistic social historian—chronicling families as he found them— or whether he constructively used literary license to …

Feminist Legal Theory And Praxis After Dobbs: Science, Politics, And Expertise, Aziza Ahmed

Faculty Scholarship

Fifty years ago, in Roe v. Wade, Justice Blackmun set into motion the idea that abortion should be a decision between a woman and her doctor.' That idea traveled from the Supreme Court decision to popular discourse; with it, came the notion that when it comes to reproduction, medical experts are a key part of women's liberation. In Dobbs v. Jackson Women's Health Organization, the court ignored the role of experts and threw the question of who should decide when and how a person has an abortion to the people. In my essay for this symposium issue dedicated to feminist …

How Much Do Investors Care About Social Responsibility?, Scott Hirst, Kobi Kastiel, Tamar Kricheli-Katz

Faculty Scholarship

Perhaps the most important corporate law debate over the last several years concerns whether directors and executives should manage the corporation to maximize value for investors or also take into account the interests of other stakeholders and society. But, do investors themselves wish to maximize returns, or are they willing to forgo returns for social purposes? And more broadly, do market participants, such as investors and consumers, differ from donors in the ways in which they prioritize monetary gains and the promotion of social goals?

This project attempts to answer these questions with evidence from an experiment conducted with 279 …

How Do Prosecutors "Send A Message"?, Steven Arrigg Koh

Faculty Scholarship

The recent indictments of former President Trump are stirring national debate about their effects on American society. Commentators speculate on the cases’ impact outside of the courtroom — on the 2024 election, on political polarization, and on the future of American democracy. Such cases originated in the prosecutor’s office, begging the question of if, when, and how prosecutors should consider the societal effects of the cases they bring.

Indeed, prosecutors often publicly claim that they “send a message” when they indict a defendant. What, exactly, does this mean? Often, their assumption is that such messaging goes in one direction: indictment …

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 …

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 …

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 Mediating Effect Of Caregiving Relationship Quality On The Association Between Caregiving Stressors And Mental Health Problems Among Older Spousal Caregivers, Fei Wang, Elliane Irani

Faculty Scholarship

Providing care to a spouse can be especially challenging for older adults given their compounding stressors resulting from aging and caregiving. This cross-sectional study examines the relationships between caregiving stressors and caregiver mental health problems and the potential mediator (i.e., caregiving relationship quality) of these associations. A total of 431 Americans (≥65 years) were selected from the National Study of Caregiving. Path analysis shows that care assistance was positively associated with caregiver mental health problems, and this association was mediated by negative relationship quality (Indirect effect =.14, p =.016). Moreover, role overload was positively associated with caregiver mental health problems, …

Fostering Durable Skills Development: Leveraging Student Worker Programs, James Hutson, Elizabeth Macdonald, Lisa Young, Susan Edele, Chris Smentkowski

Faculty Scholarship

The past half century has witnessed exponential increases in the cost of a college degree paralleled by an increase of undergraduate students who are employed during matriculation. While the impact on learning outcomes due to off-campus employment continues to receive much attention, there has been little attention paid to students employed on-campus through student worker programs and their benefits, especially in developing durable skills and improving retention. Research has demonstrated that engagement in oncampus activities improves retention and persistence in students. Additionally, employers desire power or durable skills (formerly known as “soft skills”), and that student worker programs are suited …

Exploring Data Use In Nonprofit Organizations, Duncan J. Mayer, Robert L. Fischer

Faculty Scholarship

Organizations around the world have increasingly employed data for a variety of purposes, and nonprofit organizations are no exception. This article reviews the use of data in nonprofit organizations, including the types of data collected and accessed, the motivations for data capture, and the barriers to systematic use of data. The literature shows that nonprofit organizations capture a variety of data, including public and financial data, performance measures, program evaluation data, and volunteer information. Organizations use these with diverse motivations such as program or organizational improvement, marketing, and accountability. Prominent barriers faced by organizations include challenges in identifying meaningful information, …

Open Educational Resources And Institutional Repositories: Roles, Challenges, And Opportunities For Libraries, James Hutson, Susan Edele, Elizabeth Macdonald, Paul Huffman, Nancy Messina, Maggie Pavone, Carla Mueller, Gabriela Romero

Faculty Scholarship

The adoption of digital-born, Open Educational Resources (OER) has been proven to improve student retention and learning outcomes, and OER has the flexibly to support multiple modalities of instruction. Institutional Repositories are uniquely situated to act as a platform to support and distribute content that can be created collaboratively between faculty researchers as well as students. However, faculty are still largely hesitant to adopt OER sources for a variety of reasons, not least among them being a lack of exposure and understanding of the potential benefits for both faculty and students in keeping curriculum affordable, up-to-date, and nimble through media-rich, …

Would You Make It To The Future? Teaching Race In An Assisted Reproductive Technologies And The Law Classroom, Sonia Gipson Rankin

Faculty Scholarship

Would you make it to the future? For the last five years, I have started my Assisted Reproductive Technology (ART) lecture in Family Law with this question. Students take the query seriously. They ponder their lived experiences such as home training, medical history, education, financial well-being, personality traits, work ethic, and social graces when determining if they would be the “model DNA” someone might select in a future society. The good-natured jokes about being nearsighted, having a pitiful jump shot, and wearing orthodontic headgear turn reflective when someone raises the question: would someone in the future select my race? In …

The Role Of Virtual Reality In Art Therapy To Mitigate Autism Spectrum Disorder (Asd) Symptoms, James Hutson

Faculty Scholarship

Traditional art therapy sessions are designed for face-to-face engagement with patients as with other mental health services such as counseling. However, the pandemic of 2019 severely limited access to these services and, initially, led to widespread cancelation and postponement until the nature of COVID-19 could be better understood. When treatment resumed, video conferencing was the preferred method of holding therapy sessions one-on-one to diagnose patients and provide services. Similar approaches were taken in art therapy with less efficacy given the hands-on nature of the required activities. With the rise of virtual reality (VR) as a more widely accessible technology since …

Essential Property, Timothy M. Mulvaney, Joseph William Singer

Faculty Scholarship

For a sizable swath of the U.S. population, incomes and wealth are insufficient to cover life’s most basic necessities even in the most ordinary of times. A disturbingly resilient explanation for this state of affairs rests on the view that resource inequities are avoidable through self-reliance, a stance that invites observers to see people in poverty as morally suspect. This Article advances a counterview in contending that the widespread lack of essential resources did not simply arise naturally via individuals’ life choices but instead has been, in very meaningful part, created and perpetuated by our system of property laws.

The …