Digital Commons Network^™

Crowdsourcing Surveillance, Chaz Arnett

Faculty Scholarship

In Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Devon W. Carbado illuminates how both the spectacular and quotidian forms of racialized terror, brutality, and surveillance—characteristic of enslavement—have shaped the construction of our constitutional order. He argues that the combined social normalization and legal naturalization of racial hierarchy paved the way for the development of slave patrols and other early iterations of policing where incredible acts of violence against Black bodies were made ordinary and essential. He explains how this legacy continues today with Fourth Amendment jurisprudence not simply failing to protect rights but rather licensing police violence …

Enhancing Proprioception And Regulating Cognitive Load In Neurodiverse Populations Through Biometric Monitoring With Wearable Technologies, James Hutson, Piper Hutson

Faculty Scholarship

This paper considers the realm of wearable technologies and their prospective applications for individuals with neurodivergent conditions, specifically Autism Spectrum Disorders (ASDs). The study undertakes a multifaceted analysis that encompasses biomarker sensing technologies, AI-driven biofeedback mechanisms, and haptic devices, focusing on their implications for enhancing proprioception and social interaction among neurodivergent populations. While wearables offer a range of opportunities for societal advancement, a discernable gap remains: a scarcity of consumer-oriented applications tailored to the unique physiological and psychological needs of these individuals. Key takeaways underscore the emergent promise of tailored auditory stimuli in workplace dynamics and the efficacy of haptic …

Book Review: Markham’S Opus Remembering The Past—Watching It Repeat From The Great Recession To The Covid-19 Pandemic (Jerry W. Markham, A Financial History Of The United States 2010–2020), Christian A. Johnson

Faculty Scholarship

No abstract provided.

Equity For Intermediaries: The Resolution Of Financial Firms In Bankruptcy And Bank Resolution, Edward Janger

Faculty Scholarship

No abstract provided.

Delegated Corporate Voting And The Deliberative Franchise, Sarah Haan

Faculty Scholarship

No abstract provided.

Renewing Products Liability With Semen, Anita Bernstein

Faculty Scholarship

No abstract provided.

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 …

First Amendment Fetishism, John M. Kang

Faculty Scholarship

The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:

• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium

• a White skinhead’s cross burning on the front lawn of a Black family’s house

• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain …

Empowering Neurodivergence: The Role Of Positive Language In Challenging Systemic Ableism, Piper Hutson, James Hutson

Faculty Scholarship

This review article examines the power of language in shaping perceptions of neurodivergent individuals and the systemic ableism embedded in society. The analysis begins by exploring the historical development of terms like "disabled" and their impact on societal attitudes, focusing on how deficit-based language reinforces exclusion. By contrasting this with strength-based and inclusive language, the article advocates for a shift toward reframing disability in terms of social constructs and accessibility, rather than inherent limitations. Drawing on neuroscientific research, it demonstrates how language shapes neural pathways, reinforcing either stigma or empowerment. The review further critiques euphemisms like "differently abled" for minimizing …

Surveilling Disability, Harming Integration, Prianka Nair

Faculty Scholarship

No abstract provided.

One-Offs, William Araiza

Faculty Scholarship

No abstract provided.

Tax-Law Analysis, Bradley T. Borden

Faculty Scholarship

No abstract provided.

Keeping Your Eye On The Esg Sustainable Development Ball, Richard J. Sobelsohn

Faculty Scholarship

No abstract provided.

“Legally Magic” Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Kate Weisburd, Roseanna Sommers

Faculty Scholarship

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using “explicit,” “clear,” and “unambiguous” statements—or, as some dissenting judges have lamented, using “legally magic” words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do courts. …

Tyrannical Hoas And How To Reign In Their Foreclosure Power And Further Protect Homeowners, Juliette Koves

Faculty Scholarship

No abstract provided.

Elective Corporate Governance: Does Board Choice Matter?, Martin Gelter, Mathias M. Siems

Faculty Scholarship

Recent literature discusses how “menu laws” allow corporations to opt into one of multiple competing statutory regimes. This paper contributes to this literature by presenting original empirical research on the choice between corporate board models. Today, many countries not only allow modifications of a particular board structure, but they provide separate legal templates, giving firms a choice between a one-tier and a two-tier board model (and sometimes a third hybrid model). However, how companies actually use these rules is largely underexplored. Based on data from 14 European countries that permit a choice between two models, this paper examines the use …

The Legacy Of The Troubles: Casting A Long Shadow Over Northern Ireland, Jacqueline M. Nolan-Haley

Faculty Scholarship

The Good Friday/Belfast Agreement (Agreement) brought hope to Northern Ireland after thirty years of violent conflict during a period known as the Troubles (1968 - 1998). The Agreement offered a framework for ending the conflict and for addressing the needs of victims. However, unlike peace agreements from many other post-conflict societies, it did not provide a transitional justice process for dealing with contentious issues of the past. As a result, more than 25 years after the signing of the Agreement, the problematic legacy of the conflict continues. Paramilitaries are still a cause for concern. Peace walls still exist. Competing sectarian …

Transdisciplinary Doctoral Training To Address Global Sustainability Challenges, Zoie Taylor Diana, John Virdin, Michelle B. Nowlin, Nishad Jayasundara, Daniel Rittschof

Faculty Scholarship

No abstract provided.

King, Christian Ethics, And The Promise Of Positive Fundamental Rights, H. Timothy Lovelace Jr., Patrick T. Smith

Faculty Scholarship

On February 6, 1968, leaders of the Southern Christian Leadership Conference drafted a letter addressed to the president, Congress, and the U.S. Supreme Court. The letter argued that the U.S. constitution facilitated economic and social second-class citizenship because the constitution did not protect economic and social rights but instead protected only civil and political rights. The letter’s authors demanded that the nation repent for its continued subordination of the poor and minorities and atone by recognizing economic and social rights. In this article, the authors recover the draft letter—a proposed economic and social bill of rights—and assert it was and …

Taking Liberties: The Supreme Court’S New Hierarchy Of Rights And Its Victims, Richard B. Katskee

Faculty Scholarship

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …

Second-Generation Flanking Policies: Addressing Extraterritorial And Non-Economic Costs Of Trade Liberalization, Timothy Meyer

Faculty Scholarship

Flanking policies – policies that aim to address potential negative effects of trade liberalization, and/or the concerns of domestic stakeholders regarding those negative effects, and that are either legally or factually linked to trade liberalization – have been a critical component of international trade policy since at least 1962. Over the years, however, flanking policies have changed. This Article argues that there is a heretofore unnoticed distinction between what I term first-generation flanking policies and second-generation flanking policies. Specifically, first-generation flanking policies target negative economic effects, or costs, of trade liberalization experienced within the enacting country. Trade adjustment assistance is …

Sharing Pathogen Sequence Data For Global Scientific Research Under The Nagoya Protocol To The Convention On Biological Diversity, Jerome H. Reichman, Carolina Dos S. Ribeiro, George B. Haringhuizen, Paul F. Uhlir

Faculty Scholarship

The Nagoya Protocol to the Convention on Biological Diversity (CBD) has threatened to impede access to genetic resources and related data for cross-border scientific research. In principle, every use of genetic resources would require a set of contracts under the CBD, in a “bilateral” regime. The related transaction costs could overwhelm many transnational research undertakings, affecting even public health responses to outbreaks and epidemics. However, the Nagoya Protocol also offers a unique opportunity to resolve this dilemma, despite struggles to define the meaning and coverage of “digital sequence information.” The coverage of genetic sequence data under the CBD remains controversial …

State Sovereign Immunity After The Revolution, Ernest A. Young

Faculty Scholarship

The Supreme Court’s 1996 decision in Seminole Tribe v. Florida opened an era of dramatic expansion of states’ sovereign immunity from suits by private parties. Nationalist Justices vigorously contested that expansion, vowing that they would never accept Seminole Tribe’s legitimacy or accord it stare decisis effect. In 2020, however, the unanimous decision in Allen v. Cooper did accept Seminole Tribe’s vision of state immunity, apparently ending the Court’s longstanding and bitter division on this issue. This Article assesses Seminole Tribe as a revolution in legal doctrine that established a new paradigm of state immunity law, analogous to the scientific upheavals …

Fractionalizing Investment Securities: Using Fintech To Expand Financial Inclusion, Steven L. Schwarcz, Robert Bourret

Faculty Scholarship

Recent innovations in financial technology, or “FinTech,” are enabling the fractionalization of investment securities, such as shares of stock and bonds. We explain how this fractionalization can fundamentally expand financial inclusion both for investors and for businesses, including small and medium-sized enterprises (SMEs). Using the fractionalization of investment securities as a model, we also counter the argument that FinTech-enabled transactions should not need regulation because they are governed by mathematical algorithms under so-called smart contracts. Additionally, we derive and test a regulatory framework to identify and help to mitigate the risks caused by fractionalization. In the process, we also explain …

Representations & Warranties, Fraud, And Risk Shifting: An Analytical Framework, Steven L. Schwarcz

Faculty Scholarship

Do violations of contractual representations and warranties (“R&Ws”) merely shift risk by giving rise to contract-breach damages, or can they also give rise to fraud claims? This question is at the heart of numerous lawsuits, including billions of dollars of securitization-related litigation. Many agreements governing the issuance of securities in these transactions limit R&W breach claims to a sole contractual remedy—curing the violation or repurchasing nonconforming loans that caused the violation. Although parties making the R&Ws argue that this sole remedy should adequately shift risk, investor plaintiffs contend that it insufficiently shifts the risk if the violations are extensive. Plaintiffs …

Ucc § 2-510: A Commercial Law Blunder?, Steven L. Schwarcz

Faculty Scholarship

Commercial law, as codified by the Uniform Commercial Code ("UCC"), recognizes certain important policy goals and commercial realities as a basis to override property law. Among other provisions, § 2-509 of the UCC allocates the risk of loss to goods in transit to the party who controls and would be expected to insure the goods, whether or not that party owns the goods at the time of their loss. Promoting commercial reality over the "arbitrary shifting" of rights based on property has been widely praised. Shortly after that risk-of-loss provision was enacted, however, it was modified by an additional UCC …

The Progressive Case For American Power: Retrenchment Would Do More Harm Than Good, Megan A. Stewart, Jonathan B. Petkun, Mara R. Revkin

Faculty Scholarship

After more than 20 years of costly military adventures, the United States has failed to root out extremism or bring liberal democracy to the oppressed. Thousands of American soldiers have lost their lives in the failed wars in Afghanistan, Iraq, and beyond—and the death toll among civilians is in the millions. In the wake of these calamities, progressives have united around an overriding foreign policy prescription: the United States should jettison its world-dominating ambitions, restrain itself from taking on new commitments, and retrench from the world, shrinking the U.S. military’s footprint. In think tanks and universities, progressives are calling on …

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V. S. Subrahmanian, John Tunheim

Faculty Scholarship

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

Human Psychology And Robot Evidence In The Courtroom, Alternative Dispute Resolution, And Agency Proceedings, Sara Sun Beale, Hayley Lawrence

Faculty Scholarship

In human–robot interactions in legal proceedings, human responses to robot-generated evidence will present unique challenges to the accuracy of litigation as well as ancillary goals such as fairness and transparency, though it may also enhance accuracy in other respects. The most important feature of human–robot interactions is the human tendency to anthropomorphize robots, which can generate misleading impressions and be manipulated by designing robots to make them appear more trustworthy and believable. Although robot-generated evidence may also offer unique advantages, there are concerns about the degree to which the traditional methods of testing the accuracy of evidence, particularly cross-examination, will …

Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Gutte

Faculty Scholarship

Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the "injurer-innovator problem." Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation …