Digital Commons Network^™

Vesting, Jed H. Shugerman

Faculty Scholarship

The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, the idea that the President possesses executive powers like removal without congressional limitations (that is, the powers are indefeasible). An underlying assumption is that “vest” connotes a formalist approach to separation of powers rather than a more functional system of Madisonian checks and balances. Assumptions about “vesting” for official powers are likely the result of semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine …

Nonprofit Board Composition, Atinuke O. Adediran

Faculty Scholarship

This Article addresses a critical gap in the literature and current debates about the composition of nonprofit boards. The law of fiduciary duties and nonprofit governance best practices do not provide sufficient guidance on how to compose boards to empower the communities they serve. And even as the corporate sector is seizing on current important moments to debate the inclusion of employees and racial and ethnic minorities on corporate boards, nonprofit boards are largely left out of these debates. The Article introduces the concept of board capital, which originated from the for-profit management literature, but has gained a stronghold in …

’Make It More Fun’: Residence Life Employees’ Insights On Hosting And Advertising Outreach Programs For Undergraduate Students, Kristen S. Shuyler

Faculty Scholarship

What can library workers learn about student-centered programming and outreach from student employees who design, advertise, and lead programs for college students as part of their employment in a student housing or residence life department? This study draws on cognitive work analysis to understand how employees of the Office of Residence Life (ORL) at a public research university host outreach programs for students. Fourteen interviews were conducted and analyzed to ascertain the definition and purpose of RA-led programming, challenges in this work, and strategies for overcoming challenges. Findings indicate that as these student employees do their programming work, they build …

Some Reflections On The Fourth Chilean-German-Tanzanian Legal Talk, James M. Cooper

Faculty Scholarship

On December 3, 2021, the Heidelberg Center for Latin America convened a group of academicians from around the world to explore the way legal pluralism contests values (including the protection of universal human rights), disrupts our national legal systems, and provides for self-determination. The transnational webinar was co-sponsored by the University of Heidelberg and University of Bayreuth of Germany, Universidad de Chile, University of Dar Es Salaam in Tanzania, Faculdades de Campinas in Brasil, as well as California Western School of Law/Proyecto ACCESO in the United States, and the German Academic Exchange Service (DAAD).

The webinar brought together participants with …

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 …

Of Reservation Boundary Lines And Judicial Battle Lines, Part 1 - Reservation Diminishment/Disestablishment Cases From 1962 To 1975: The Indian Law Justice Files, Episode 1, John P. Lavelle

Faculty Scholarship

This Article is the first of a two-part investigation into the Indian law doctrine of reservation diminishment/disestablishment, examining Supreme Court decisions in this area in light of insights gathered from the collected papers of individual Justices archived at the Library of Congress and various university libraries. The Article first addresses Seymour v. Superintendent (1962) and Mattz v. Arnett (1973), observing that these first two diminishment/disestablishment cases are modern applications of basic, longstanding principles of Indian law which are highly protective of Indigenous people’s rights and tribal sovereignty. The Article then examines in detail DeCoteau v. District County Court, the anomalous …

Revitalizing Tribal Sovereignty In Treatymaking, David H. Moore, Michalyn Steele

Faculty Scholarship

In the current model of federal-Indian relations, the United States claims a plenary legislative power, as putative guardian, to regulate Indian tribes. Under this model, tribes are essentially wards in a state of pupilage. But the federal-tribal relationship was not always so. Originally, the federal government embraced, even promoted, a more robust model of tribal sovereignty in which federal-Indian treatymaking and diplomacy figured prominently. Through treaties, the United States and tribes negotiated territorial boundaries, forged alliances, facilitated trade, and otherwise managed their relations. In 1871, Congress attempted to put an end to federal-Indian treatymaking by purporting to strip tribes of …

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

Faculty Scholarship

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

Selectively Disciplining Advocates, Bruce A. Green

Faculty Scholarship

After lawsuits challenging the results of the 2020 presidential election failed spectacularly, some wondered whether the plaintiffs’ lawyers would be disciplined for filing frivolous complaints. Time will tell. But, if these lawyers are not disciplined, one should not be surprised. This Article presents an empirical study of the New York disciplinary process, which confirms that advocates who violate disciplinary rules by overzealously pursuing their clients’ interests, such as by making frivolous claims, are rarely punished in the disciplinary process. That is because disciplinary prosecutors, operating in secret, have discretion as to whether to bring formal charges against lawyers who violate …

Disclosures For Equity, Atinuke O. Adediran

Faculty Scholarship

This Article addresses how to increase funding to nonprofit organizations that are led by minorities or serve communities of color and how to hold corporations and private foundations who make public commitments to fund these organizations accountable for those commitments. The Article makes two policy recommendations to address these problems, while engaging with Supreme Court jurisprudence on mandatory disclosures to ensure that the proposals are narrowly tailored to institutional donors and include an opt-out provision so as not to chill the constitutional protection of the freedom of association. The first is for charities to publicly disclose their institutional donors in …

The Challenge Of Radical Reform In Pluralist Democracies, Aditi Bagchi

Faculty Scholarship

Martijn Hesselink proposes a new European charter of private law that would correct the deficiencies in private law identified by Katharina Pistor. While Hesselink aims to achieve radical reform by way of radical democracy, this article argues that radical democracy is unlikely to realise a radically progressive vision of private law. Citizens of wealthy, post-industrial democracies lack certainty about both the material consequences of reform and the demands of justice. Because their caution renders them averse to far-reaching, bundled reform packages, public discourse in post-industrial societies as we find them is more likely to produce incremental than radical substantive reform.

Introduction To The Symposium On Feminist Approaches To International Law Thirty Years On: Still Alienating Oscar?, Catherine Powell, Adrien K. Wing

Faculty Scholarship

No abstract provided.

A World Without Roe: The Constitutional Future Of Unwanted Pregnancy, Julie Suk

Faculty Scholarship

With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. …

Law And The Moral Dynamics Of Collective Action, Aditi Bagchi

Faculty Scholarship

Many moral demands on social groups cannot be met without cooperation among group members. In some cases, individual action does not advance the collective moral interest at all without some threshold level of cooperation by other group members. Is an individual required to act as if others will cooperate even if she knows that they will not? This Article argues that individuals may take into account the reality of pervasive noncooperation and decline to attempt cooperation. Only ex ante mandatory rules can solve moral collective action problems. In a political community, those rules are public law. The most compelling argument …

Still Against Prosecutors, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Brief Of R. Michael Cassidy, Nora Freeman Engstrom, Bruce A. Green, Peter A. Joy, Geovanny E. Martinez, Veronica Root Martinez, Richard W. Painter, W. Bradley Wendel, Ronald F. Wright, And Ellen C. Yaroshefsky As Amici Curiae In Support Of Petitioner, R. Michael Cassidy, Nora Freeman Engstrom, Bruce A. Green, Peter A. Joy, Geovanny E. Martinez, Veronica Root Martinez, Richard W. Painter, W. Bradley Wendel, Ronald F. Wright, Ellen C. Yaroshefsky

Faculty Scholarship

No abstract provided.

Cross-Departmental Authority Heading Creation: A Case Study, Janelle Zetty, Heather C. Plaisance

Faculty Scholarship

The Cataloging and the Reference and Research Services departments at the University of Louisiana at Lafayette’s Edith Garland Dupré Library collaborated to create name authority headings for the Library of Congress Name Authority File. The project’s primary goal was to increase the number of the library’s contributions as a Name Authority Cooperative Program participant. The Head of Cataloging determined which Louisiana persons needed name authority headings and compiled a list of names for Reference & Research Services staff to investigate. After using various online resources to collect biographical information, staff submitted their findings via a Google Form. The Head of …

Discarding The Easy Way, Janelle Zetty

Faculty Scholarship

No abstract provided.

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 …

The Law, Economics, And Governance Of Generation Covid-19 Long-Haul, Julia Puaschunder, Martin Gelter

Faculty Scholarship

The SARS-CoV-2 novel coronavirus is an external shock to all societies with lasting impacts that have changed individual, political, and corporate decisions profoundly. Increasing evidence reveals that an estimated 10-50% of those previously infected with COVID-19 face a longer-term or long-term health impact and/or chronic debilitation that in many cases comes and goes in waves. This phenomenon has already been referred to as a pandemic within the pandemic. The broad-based and long-term impact of COVID Long Haulers have also holds the potential to change our world and modern society, lasting through the following three outlined speculative trends: (1) The coronavirus …

Retrospective Risk Allocation, Aditi Bagchi

Faculty Scholarship

No abstract provided.

Do Local Governments Really Have Too Much Power? Understanding The National League Of Cities' Principles Of Home Rule For The 21st Century, Nestor M. Davidson, Richard Schragger

Faculty Scholarship

This Article explains and defends the National League of Cities’ Principles of Home Rule for the 21st Century, which the authors participated in drafting. The Principles project both articulates a vision of state-local relations appropriate to an urban age and, as with previous efforts stretching back to the Progressive Era, includes a model constitutional home rule article designed to serve as the foundation for state-level constitutional law reform. This Article explains the origins of the Principles, outlines the major components of its model constitutional provision, and defends the model against a set of criticisms common to this and past home-rule …

It's About Time: Emphasizing Temporal Dynamics In Dynamic Personality Regulation, Joshua Wilt

Faculty Scholarship

People change over time. These changes are thought to represent some self-regulatory, dynamic processes. However, dynamic processes need to be distinguished from mere stochastic variation. Just as the Brownian motion of a dust mote does not help us understand the basic principles of classical physics, neither does random variation within an individual describe the complexity of self-regulatory processes. This regulation implies solving the problem of competing goals and desires within the constraints of situational presses. And what people feel, think, and do at one moment affects what they feel, think and do in the next moment. Thus, describing and explaining …

Lowering The Stakes Of The Employment Contract, Aditi Bagchi

Faculty Scholarship

Every country has to make hard choices about the distribution of entitlements. But employers control the entitlements that individual Americans enjoy to a far greater extent than those in other rich democracies. In this Essay, I argue that, in the absence of the political consensus necessary to deliver state solutions to political questions, employers here are assigned an exaggerated role in employees’ lives. Government incentives for and directives to employers have become a strategy of political deflection. The effect has been to raise the stakes of employment well beyond the scope of those terms and conditions that relate to attracting …

Countering Gerrymandered Courts, Jed H. Shugerman

Faculty Scholarship

The key insight in Professor Miriam Seifter’s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.

This Piece offers a friendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping …

Afrofuturism And The Law, I. Bennett Capers

Faculty Scholarship

Long before the film Black Panther captured the public’s imagination, the cultural critic Mark Dery coined the term “Afrofuturism” to describe “speculative fiction that treats African-American themes and addresses African-American concerns in the context of twentieth-century technoculture.” Since then, the term has been applied to speculative creatives as diverse as the pop artist Janelle Monae, the science fiction writer Octavia Butler, and the visual artist Nick Cave. But only recently have thinkers turned to how Afrofuturism might guide, and shape, law. This special issue, “Afrofuturism and the Law,” features articles that explore the many ways Afrofuturism can inform a range …

A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan

Faculty Scholarship

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.

This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which …

Firearms And Protest: Lessons From The Black Tradition Of Arms, Nicholas J. Johnson

Faculty Scholarship

Kenosha was no aberration. Our history is filled with episodes of righteous protest boiling over into violence. Where violence is imminent, our traditions and laws allow innocents to use corresponding violence in self-defense. This arrangement is imperfect and demands hard thinking about how to refine and possibly improve it. One source of lessons toward this end is the experience of Black freedom fighters who navigated turmoil that dwarfs our current troubles. The principles that guided their struggle help frame a sphere of legitimate gun use during periods of civil unrest. These principles emerge from a considered philosophy and practice of …

A Comment On Foohey Et Al., Steering Loan Modifications Post-Pandemic, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Discussions In Dispute Resolution: The Foundational Articles, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.