Digital Commons Network^™

Crisis Construction In Contract Boilerplate, Emily Strauss

Faculty Scholarship

No abstract provided.

"Easing Out" The Fcpa Facilitation Payment Exception, Emily Strauss

Faculty Scholarship

No abstract provided.

Standing For Rivers, Mountains - And Trees - In The Anthropocene, David Takacs

Faculty Scholarship

In his well-known article, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, Professor Christopher Stone proposed that courts grant nonhuman entities standing as plaintiffs so their interests may directly represented in court. In this Article, I review Stone’s ideas about standing and our relationship with the natural environment and describe the current, burgeoning, widespread trend toward granting not just standing, but legal rights and legal personhood to rivers, mountains, and other natural entities. I analyze the ways in which courts and legislatures in New Zealand, Australia, Colombia, and elsewhere are addressing concerns similar to Stone’s with expansive, even radical …

Practical Considerations In Starting And Operating An Academic Low-Income Taxpayer Clinic, Minoj Viswanathan, Amy Spivey

Faculty Scholarship

Low-income taxpayer clinics (“LITCs”) provide legal assistance to underserved clients with active federal tax controversies, conduct educational outreach to low-income and English-as-a-second-language taxpayers, and work to ensure the fairness and integrity of the tax system. Despite the availability of IRS grant funding for LITCs and the alignment of LITC goals with the core values that underlie clinical legal education, a relatively small percentage of U.S. law schools currently operates an LITC. Moreover, many law school LITCs have closed within the past ten years, demonstrating that, even if started, academic LITCs are challenging to sustain. This Article incorporates the authors’ experiences …

The Center Cannot Hold: Zoom As A Potemkin Village, Hadar Aviram

Faculty Scholarship

No abstract provided.

Transactional Community Lawyering, Alina S. Ball

Faculty Scholarship

The racial reckoning during the summer of 2020 presented a renewed call to action for movement lawyers committed to collaborating with mobilized clients to advance racial equity and economic justice. During the last thirty years, community lawyering scholarship has made significant interventions into poverty lawyering and provides the theoretical framework for contemporary movement lawyers. Conceptually, community lawyering theory can be implemented in any practice area; however, prevailing narratives and models for community lawyering are based on group advocacy campaigns and, to a lesser extent, individual representation in dispute resolution. Transactional lawyers—who use private ordering to represent business entities as they …

Response: Radicalism And Democracy In Monetary System Reform, John Crawford

Faculty Scholarship

No abstract provided.

Personal Jurisdiction, Comparativism, And Ford, Scott Dodson

Faculty Scholarship

No abstract provided.

Bankruptcy Process For Sale, Kenneth Ayotte, Jared Ellias

Faculty Scholarship

The lenders that fund Chapter 11 reorganizations exert significant influence over the bankruptcy process through the contract associated with the debtor-in-possession (DIP) loan. In this Article, we study a large sample of DIP loan contracts and document a trend: over the past three decades, DIP lenders have steadily increased their contractual control of Chapter 11. In fact, today’s DIP loan agreements routinely go so far as to dictate the very outcome of the restructuring process. When managers sell control over the bankruptcy case to a subset of the creditors in exchange for compensation, we call this transaction a “bankruptcy process …

Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser

Faculty Scholarship

Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …

The Price Tag Of "Pay-For-Delay", Robin C. Feldman

Faculty Scholarship

In a landmark decision nearly a decade ago, the U.S. Supreme Court opened the door for antitrust suits against brand and generic pharmaceutical companies who engage in collusive settlements to delay the time for the generic to come to market. With these “pay-for-delay” agreements, brand-name companies offer prospective generics some form of compensation in exchange for the generic’s promise not to enter the market until an agreed-upon date. Laying the groundwork for the lawsuit that would eventually lead to the Actavis decision, the Federal Trade Commission (“FTC”) published a study estimating that pay-for-delay agreements cost American consumers $3.5 billion annually, …

Ai Governance In The Financial Industry, Robin C. Feldman, Kara Stein

Faculty Scholarship

Legal regimes in the United States generally conceptualize obligations as attaching along one of two pathways: through the entity or the individual. Although these dual conceptualizations made sense in an ordinary pre-modem world, they no longer capture the financial system land­ scape, now that artificial intelligence has entered the scene. Neither person nor entity, artificial intelligence is an activity or a capacity, something that mediates relations between individuals and entities. And whether we like it or not, artificial intelligence has already reshaped financial markets. From Robinhood, to the Flash Crash, to Twitter's Hash Crash, to the Knight Capital incident, each …

Captive Generics: The Wolf In Sheep’S Clothing, Robin C. Feldman

Faculty Scholarship

No abstract provided.

Rulemaking's Second Founding, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Collective Cognitive Capital, Emily R. Murphy

Faculty Scholarship

This Article calls for a new project for law and neuroscience. It outlines a structural, not individual, application of brain and behavioral science that is aligned with the general goal of basic science research: improving the lives of citizens with a better un- derstanding of the human experience. It asks brain and behavioral science to move explicitly into public policy territory, and specifically onto ground more traditionally occupied by economists—but in ways the project of “behavioral economics” has not yet ventured. Put sim- ply, policy analysts should focus on brains—“collective cognitive capital”—with the same intensity with which they focus on …

The Legal And Moral Responsibility To Protect, Karen Musalo

Faculty Scholarship

No abstract provided.

The Realities Of Takings Litigation, Dave Owen

Faculty Scholarship

This Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field. That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an important role in the United States’ …

Death By Dehumanization: Prosecutorial Narratives Of Death-Sentenced Women And Lgbtq Prisoners, Jessica Sutton, John Mills, Jennifer Merrigan, Kristin Swain

Faculty Scholarship

No abstract provided.

New Originalism: Arizona's Founding Progressives On Extreme Punishment, John Mills, Aliya Sternstein

Faculty Scholarship

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike. Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly regarding constitutional questions. Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines for discerning the meaning of an ambiguous provision of its Constitution.

Yet, the Arizona state courts have not engaged with the views of the state’s founders on key issues concerning the purposes of punishment, as demonstrated by the founders’ words and deeds. Arizona was founded in 1912 as …

Cop Tracing, Jonathan Abel

Faculty Scholarship

What happens to an officer’s old cases when that officer is exposed as corrupt? Often, the answer is nothing. This Article calls for “cop tracing”: an effort to identify and investigate the past cases handled by dishonest cops. The Article first describes the existing action and inaction with respect to such tracing. Next, it examines the logistical and legal barriers to cop tracing. Finally, the Article considers the implications of cop tracing’s absence. The failure to engage in cop tracing is symptomatic of the failure to see the misconduct of even a single bad officer in systemic terms.

Atomistic Antitrust, Robin C. Feldman, Mark A. Lemley

Faculty Scholarship

No abstract provided.

The House Always Wins: Doctrine And Animus In California’S Covid-19 Prison Litigation, Hadar Aviram

Faculty Scholarship

No abstract provided.

Pursuing Citizenship During Covid-19, Ming Hsu Chen

Faculty Scholarship

No abstract provided.

The Making Of The Supreme Court Rules, Scott Dodson

Faculty Scholarship

The reality that rules define institutions is no less applicable to the Su- preme Court. Yet the literature on the Supreme Court Rules, and the rulemak- ing process behind them, is practically nonexistent. Part of the reason is that the rulemaking process for the Supreme Court Rules is a black box—the Court promulgates its rules with neither oversight nor transparency. This Arti- cle, relying on interviews with current and former government officials, opens that black box to reveal the history of the rulemaking process for the Supreme Court Rules from the 1980s to the present. That process, as contrasted with …

Challenges With Defining Pharmaceutical Markets And Potential Remedies To Screen For Industry Consolidation, Robin Feldman, Brent D. Fulton, Jamie R. Godwin, Richard M. Scheffler

Faculty Scholarship

Context: Dramatic increases in pharmaceutical merger and acquisition (M&A) activity since 2010 suggest we are in the midst of a third wave of industry consolidation. Methods: The authors reviewed 168 economic, legal, medical, industry, and government sources to examine the effects of consolidation on competition and innovation and to explore how industry attributes complicate M&A regulation in a pharmaceutical context. Findings: The authors find that, in spite of certain metrics that might argue otherwise, con- solidation consistently reduces innovation and harms the public good. They also find that several factors within the pharmaceutical industry impede proper evaluation of proposed mergers. …

Lochner Revenant: The Dormant Commerce Clause & Extraterritoriality, Robin Feldman, Gideon Schor

Faculty Scholarship

During the Lochner era, the Supreme Court, relying on broad inter- pretations of constitutional doctrine, struck down scores of state statutes with an essentially free hand. Today, some federal courts are heading to- wards a new Lochner era, in which numerous state laws regulating health and safety can be invalidated on the thinnest of constitutional grounds. The issues implicate not only a vast amount of national commerce but also the Constitution’s careful balance between federal and state power. Specifically, in two decisions from the late 1980s, the Supreme Court extracted language from a 1935 decision and used that language to …

A Call For An Intersectional Feminist Restorative Justice Approach To Addressing The Criminalization Of Black Girls, Thalia Gonzalez, Donna Coker

Faculty Scholarship

No abstract provided.

A Health Justice Response To School Discipline And Policing, Thalia Gonzalez, Alexis Etow, Cesar De La Vega

Faculty Scholarship

Inequities in school discipline and policing have been long documented by researchers and advocates. Longitudinal data is clear that Black, Indigenous, people of color (BIPOC) students are punished and policed at higher rates than their white classmates. For students who have disabilities, especially those with intersectional identities, the impact of school discipline and policing is amplified, with disparities existing at some of the highest rates across multiple categories. And this disproportionality has not diminished during short- and long-term school closures resulting from the COVID-19 pandemic. In fact, schools have employed new models of exclusion in the pandemic setting that operate …

Race, Public Health, And The Epidemic Of Incarceration, Thalia Gonzalez, Emma Kaeser

Faculty Scholarship

No abstract provided.

The Death Of Law, Ugo Mattei

Faculty Scholarship

This is a talk about the decline and fall of constitutional law, an over-arching characteristic of the new millennium. I focus on the period from the end of the Cold War—once described as the end of history—to what I call the “Second Cold War” beginning in the second decade of this century and having escalated in the proxy war in Ukraine. The Second Cold War is also characterized by an aborted cooptation of China through the World Trade Organization (to tame China’s seemingly unstoppable ascension to global supremacy) as well as a state of per-manent emergency.